Exhibit 99(b)(2)
CONFORMED COPY
DATED 1999
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(1) UNITED NEWS & MEDIA PLC
as Original Borrower
- and -
(2) MAI PLC
UNITED FINANCE LIMITED
as Original Subsidiary Borrowers
- and -
(3) CHASE INVESTMENT BANK LIMITED
LLOYDS BANK PLC CAPITAL MARKETS
as Arrangers
- and -
(4) LLOYDS BANK PLC CAPITAL MARKETS
as Facility Agent
- and -
(5) LLOYDS BANK PLC NEW YORK
as Dollar Swing-Line Agent
- and -
(6) THE FINANCIAL INSTITUTIONS NAMED HEREIN
as Revolving Banks and Dollar Swing-Line Banks
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MULTICURRENCY
REVOLVING CREDIT
AGREEMENT
(pound)1,000,000,000
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CONTENTS
1. INTERPRETATION..........................................................4
2. THE FACILITY...........................................................25
3. PURPOSE OF FACILITY....................................................28
4. CONDITIONS PRECEDENT TO AVAILABILITY OF FACILITY.......................28
5. CONDITIONS PRECEDENT TO EACH ADVANCE...................................28
6. UTILISATION OF THE FACILITY............................................29
7. ALTERNATIVE CURRENCIES.................................................33
8. INTEREST...............................................................34
9. DEFAULT INTEREST.......................................................35
10. MARKET DISRUPTION.....................................................36
11. REPAYMENT OF ADVANCES.................................................37
12. NETTING OF PAYMENTS...................................................37
13. PARTIAL PAYMENTS......................................................38
14. CANCELLATION AND PREPAYMENT...........................................38
15. PAYMENTS..............................................................40
16. TAXES.................................................................43
17. INCREASED COSTS.......................................................47
18. ILLEGALITY............................................................49
19. MITIGATION............................................................50
20. REPRESENTATIONS.......................................................51
21. FINANCIAL INFORMATION.................................................54
22. FINANCIAL CONDITION OF THE GROUP......................................56
23. COVENANTS.............................................................58
24. EVENTS OF DEFAULT.....................................................61
25. GUARANTEE.............................................................65
26. ACCESSION AND CESSATION OF SUBSIDIARY BORROWERS.......................69
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27. INDEMNITIES...........................................................70
28. FEES..................................................................72
29. COSTS AND EXPENSES....................................................73
30. THE AGENTS............................................................74
31. TRANSFERS.............................................................79
32. REDISTRIBUTION PROVISIONS.............................................82
33. CALCULATIONS AND EVIDENCE OF DEBT.....................................85
34. AMENDMENTS AND WAIVERS................................................86
35. NOTICES...............................................................88
36. PARTIAL INVALIDITY....................................................89
37. REMEDIES AND WAIVERS..................................................90
38. COUNTERPARTS..........................................................90
39. JURISDICTION..........................................................90
40. GOVERNING LAW.........................................................91
SCHEDULE 1................................................................92
Part A.................................................................92
The Revolving Banks....................................................92
SCHEDULE 1................................................................93
Part B.................................................................93
The Dollar Swing-Line Banks............................................93
SCHEDULE 2................................................................94
Conditions Precedent...................................................94
SCHEDULE 3................................................................95
Form of Drawdown Request...............................................95
SCHEDULE 4................................................................97
Form of Novation Certificate...........................................97
THE SCHEDULE..............................................................99
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SCHEDULE 5................................................................98
Timetable..............................................................98
SCHEDULE 6................................................................99
Mandatory Liquid Asset Costs Formula...................................99
SCHEDULE 7...............................................................101
Form of Subsidiary Borrower's Accession Memorandum....................101
SCHEDULE 8...............................................................104
Documents to Accompany Subsidiary Borrower's Accession Memorandum.....104
SCHEDULE 9...............................................................106
Form of Subsidiary Borrower's Cessation Notice........................106
SCHEDULE 10..............................................................107
Form of Compliance Certificate........................................107
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THIS CREDIT AGREEMENT is made on 1999
BETWEEN:
(1) UNITED NEWS & MEDIA PLC (the "Original Borrower");
(2) MAI PLC and UNITED FINANCE LIMITED ("UFL") (the "Original Subsidiary
Borrowers" and each an "Original Subsidiary Borrower");
(3) CHASE INVESTMENT BANK LIMITED and LLOYDS BANK PLC CAPITAL MARKETS (the
"Arrangers");
(4) LLOYDS BANK PLC CAPITAL MARKETS (the "Facility Agent");
(5) LLOYDS BANK PLC NEW YORK (the "Dollar Swing-Line Agent");
(6) THE FINANCIAL INSTITUTIONS named in Part A of Schedule 1 (the "Revolving
Banks");
(7) THE FINANCIAL INSTITUTIONS named in Part B of Schedule 1 (the "Dollar
Swing-Line Banks");
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement:
"Acceding Subsidiary Borrower" means any Subsidiary of the Original
Borrower provided that it has executed and delivered a Subsidiary
Borrower's Accession Memorandum to the Facility Agent pursuant to
clause 26.1 (Delivery of Subsidiary Borrower's Accession Memorandum)
and delivered to the Facility Agent each of the documents set out in
schedule 8 (Documents to accompany Subsidiary Borrower's Accession
Memorandum) in respect of such Subsidiary in form and substance
satisfactory to the Facility Agent;
"Accounts" means the latest audited annual accounts of the Original
Borrower or, if the same are prepared, the latest audited
consolidated annual accounts of the Group;
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"Adjusted Share Capital and Reserves" means the aggregate as
certified by the auditors of the Original Borrower of:
(a) the amount paid up or credited as paid up on the issued share
capital of the Original Borrower; and
(b) the amount standing to the credit of the reserves of the
Original Borrower and its Subsidiaries including share premium
account and capital redemption reserve and plus or minus (as
the case may be) the credit or debit balance on profit and
loss account,
all as shown by the Latest Consolidated Balance Sheet but after:
(c) adjusting for any variation in such paid up share capital,
share premium account and capital redemption and other
reserves (excluding profit and loss account) and any variation
in interests in Subsidiaries since the date of the Latest
Consolidated Balance Sheet (for which purpose an issue or
proposed issue of share capital for cash which has been
underwritten shall be deemed paid up to the extent that the
underwriters are liable for the issue and that such capital
will be paid up within six months from the date on which such
underwriting becomes unconditional);
(d) deducting any amount distributed or proposed to be distributed
out of the profits except to the extent that such distribution
is attributable to the Original Borrower or any of its
Subsidiaries or has been provided for in such consolidation;
and
(e) excluding any amounts attributable to minority interests in
Subsidiaries, amounts provided for deferred taxation and
amounts attributable to goodwill and any other intangible
assets (other than publishing rights, titles and benefits)
provided that there should be added back the amount of
goodwill (but not other intangibles) that would have remained
on such balance sheet if all goodwill had been carried on the
balance sheet as an asset and amortised on a straight line
basis over 20 years (or such longer period, as determined by
the Original Borrower, as may be in accordance with generally
accepted
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accounting practice in the United Kingdom) such amount to be
certified by the auditors of the Original Borrower.
The determination of the auditors as to the amount of the Adjusted
Share Capital and Reserves at any time shall, in the absence of
manifest error, be conclusive and binding on all concerned and, for
the purposes of their computation, the auditors may at their
discretion make such further or other adjustments (if any) as they
think fit;
"Advance" means each Revolving Advance and each Dollar Swing-Line
Advance made, or to be made, by a Revolving Bank or, as the case may
be, by a Dollar Swing-Line Bank under this Agreement and any Overdue
Amount payable to a Revolving Bank or, as the case may be, to a
Dollar Swing-Line Bank;
"Affiliate" means, in respect of any Person, a Subsidiary or Holding
Company of such Person, or a Subsidiary of a Holding Company of such
Person;
"Agent" in the singular, means:
(i) in respect of matters relating solely to Dollar Swing-Line
Advances, the Dollar Swing-Line Agent; and
(ii) in respect of all other matters, the Facility Agent
and, "Agents" shall mean both of them;
"Agents' Fee Letter" means the letter of even date herewith
addressed by the Facility Agent to the Original Borrower;
"Alternative Currency" means any currency (other than Sterling and
ECU) which is (if applicable, having regard to the amount being
requested under this Agreement) freely transferable and convertible
into Sterling in the London foreign exchange market;
"Applicable Treaties" means, in relation to any bank or financial
institution and an Obligor, such double tax treaties or conventions
between the jurisdiction in which such bank or financial institution
is resident for Tax purposes on the one hand and the jurisdiction in
which the relevant Obligor is resident on the other;
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"Arrangers' Fee Letters" means the letters of even date herewith
addressed by the Arrangers to the Original Borrower;
"Authorised Signatory" means, in relation to any Person and any
communication to be made, or any document to be executed or
certified by that Person, any individual that has been duly
authorised by that Person to make such communication or to execute
or certify any documents on behalf of that Person;
"Availability Period" means the period commencing on the later of 21
May 1997 and the date that the Facility Agent notifies the other
Parties pursuant to clause 4 (Conditions Precedent to Availability
of Facility) that each of the conditions precedent to the
availability of the Facility have been satisfied and ending on the
date falling one month before the Final Repayment Date (both dates
inclusive);
"Available Dollar Swing-Line Commitment" means, in relation to a
Dollar Swing-Line Bank at any time and subject always to the
provisions of clause 2.2, its Dollar Swing-Line Commitment less the
aggregate principal amount of its Dollar Swing-Line Advances which
are outstanding at such time adjusted, in the case of a proposed
Utilisation only, so as to take into account:
(a) any reduction in the Dollar Swing-Line Commitment of such
Dollar Swing-Line Bank which will occur prior to the
commencement of, or during, the Term relating to the proposed
Utilisation consequent upon a cancellation of the whole or a
part of that Dollar Swing-Line Bank's Dollar Swing-Line
Commitment and/or (in its capacity as a Revolving Bank)
Revolving Commitment under this Agreement;
(b) the principal amount of any Dollar Swing-Line Advances which,
pursuant to any other Drawdown Request, such Dollar Swing-Line
Bank has been requested to make on or before the proposed
Drawdown Date; and
(c) the principal amount of any Dollar Swing-Line Advances which
were made by such Dollar Swing-Line Bank and which are due to
be repaid on or before the proposed Drawdown Date;
"Available Dollar Swing-Line Facility" means, at any time, the
aggregate of the Available Dollar Swing-Line Commitments at such
time;
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"Available Revolving Commitment" means, in relation to any Bank at
any time but subject always to the provisions of clause 2.2 , its
Revolving Commitment less the aggregate Sterling Amount of its
Advances which are outstanding at such time adjusted, in the case of
a proposed Utilisation only, so as to take into account:
(a) any reduction in the Revolving Commitment of such Revolving
Bank which will occur prior to the commencement of, or during,
the Term relating to the proposed Utilisation consequent upon
a cancellation of the whole or a part of that Revolving Bank's
Revolving Commitment under this Agreement;
(b) the Sterling Amounts of any Advances which, pursuant to any
other Drawdown Request, such Revolving Bank has been requested
to make on or before the proposed Drawdown Date; and
(c) the Sterling Amounts of any Advances which were made by such
Revolving Bank and which are due to be repaid on or before the
proposed Drawdown Date;
"Available Revolving Facility" means, at any time, the aggregate of
the Available Revolving Commitments at such time;
"Banks" means the Revolving Banks and the Dollar Swing-Line Banks
(each a "Bank");
"Basle Paper" refers to the paper prepared by the Basle Committee on
Banking Regulations and Supervisory Practice dated July 1988 (as
amended in November 1991) entitled "International Convergence of
Capital Measurement and Capital Standards";
"Business Day" means a day (excluding a Saturday and Sunday) on
which banks are open for business in London, and, if such reference
relates to a date for the payment or purchase of any sum denominated
in an Alternative Currency, a day on which banks are generally open
to all business in the principal financial centre in the country or,
as the case may be, countries of such Alternative Currency;
"Borrowers" means, at any time, the Original Borrower and the
Subsidiary Borrowers at such time and "Borrower" means any of
them;
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"Certified Copy" means, in respect of any document, agreement or
communication to be delivered in connection with this Agreement, a
copy thereof which has been certified by an Authorised Signatory of
the Person providing the document, agreement or communication as
being a true copy of the original;
"clause" refers, unless otherwise stated, to a clause of this
Agreement;
"Compliance Certificate" means a certificate substantially in the
form set out at Schedule 10 (Form of Compliance Certificate);
"Default" means an Event of Default or a Potential Event of Default;
"Default Interest Period" is defined at clause 9.2 (Default
Interest);
"Dollars" and "$" means the lawful currency of the United States of
America;
"Dollar Swing-Line Advance" means any swing-line advance made, or to
be made, by a Dollar Swing-Line Bank under this Agreement;
"Dollar Swing-Line Commitment" means, in relation to a Dollar
Swing-Line Bank, at any time and save as provided herein, the
relevant amount set opposite its name in Part B of Schedule 1 (Banks
and Commitments);
"Dollar Swing-Line Facility" means the Dollar Swing-Line Facility
granted to the Borrowers in this Agreement;
"Dollar Swing-Line Rate" means, for any day, the rate per annum,
determined by the Dollar Swing-Line Agent, which is the higher on
such day of:
(i) the Reference Rate; and
(ii) the aggregate of the Federal Funds Rate and 0.50 per cent. per
annum;
"Drawdown Date" means, in respect of an Advance, the date such
Advance is made, or is proposed to be made, under this Agreement;
"Drawdown Request" means a request substantially in the form set out
at Schedule 3 (Form of Drawdown Request);
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"ECU" means a unit of account identical in currency composition to
the European Currency Unit, being the unit of account for the time
being used in the European Monetary System;
"Event of Default" means one of the events specified in clause 24.1
(The Events of Default) as being an "Event of Default";
"Existing Facilities" means each of:
(i) the multi-currency revolving advances and Sterling acceptance
credits facility of up to(pound)535,000,000 (increased
to(pound)802,500,000 pursuant to an agreement to that effect
dated 29 April 1996) and the Dollar advances facility of up to
US$255,000,000 made available pursuant to a facilities
agreement dated 8 February 1996 made between (i) United News &
Media PLC as Borrower (ii) MAI PLC and MAI Finance Limited as
Subsidiary Borrowers, (iii) The Chase Manhattan Bank (formerly
known as Chemical Bank) and Lloyds Bank PLC Capital Markets
Group as Arrangers, (iv) Lloyds Bank PLC as Agent and (v) the
financial institutions named therein as Banks; and
(ii) the revolving credit facility of up to(pound)150,000,000 and
the term loan facility of up to(pound)150,000,000 made
available pursuant to a facilities agreement dated 22 October
1996 made between (i) United News & Media PLC as Borrower,
(ii) MAI PLC and UFL as Subsidiary Borrowers, (iii) Chase
Investment Bank Limited and Lloyds Bank PLC Capital Markets
Group as Arrangers, (iv) Lloyds Bank PLC Capital Markets Group
as Agent and, (v) the financial institutions named therein as
Banks;
"Facility" means the Revolving Facility and the Dollar Swing-Line
Facility;
"Facility Office" means,
(i) in relation to the Facility Agent, the office identified with
its signature below;
(ii) in relation to the Dollar Swing-Line Agent, the office
identified with its signature below;
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(iii) in relation to a Dollar Swing-Line Bank and Dollar Swing-Line
Advances to be made by it, the relevant office identified with
its signature below (or, in the case of a New Bank, at the end
of the Novation Certificate to which it is a party as New
Bank); and
(iv) in relation to any Revolving Bank, the office identified with
its signature below (or, in the case of a New Bank, at the end
of the Novation Certificate to which it is a party as New
Bank);
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to:
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on
such transactions received by the Dollar Swing-Line Agent from
three federal funds brokers of recognised standing selected by
it;
"Fee Letters" means the Arrangers' Fee Letters and the Agents' Fee
Letter when referred to together;
"First Increase Date" means 9 June 1997 or such later date on which
the Facility Agent is satisfied that the principal amount
outstanding under the Existing Facilities does not exceed
(pound)85,000,000 and there are no amounts available for drawing
thereunder;
"Final Repayment Date" means the date falling on the expiry of 60
months from 21 May 1997;
"Finance Documents" means each of this Agreement, each Subsidiary
Borrower's Accession Memorandum, each Subsidiary Borrower's
Cessation Notice and the Fee Letters and "Finance Document" means
any of them;
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"Finance Party" means, as the context requires, an Arranger, an
Agent, a Manager, a Dollar Swing-Line Bank or a Bank and "Finance
Parties" means each of them;
"Financial Indebtedness" means, in relation to any Person, any
obligation, whether incurred as a principal or as a surety, actual
or contingent, present or future, for the payment or repayment of
money, in respect of:
(a) monies borrowed or monies raised by acceptance under an
acceptance credit arrangement;
(b) any note, bond (other than a performance bond issued in the
ordinary course of trading by one Group Member in respect of
the obligations of another Group Member), debenture, loan
stock or other similar instrument;
(c) receivables sold or discounted to the extent of any recourse
to any Group Member;
(d) the purchase price payable in respect of an asset, the payment
of which is deferred where the deferred payment is arranged
primarily as a method of finance or financing or refinancing
the acquisition of the asset acquired;
(e) payment obligations under hire purchase agreements,
conditional sale agreements and finance leases, the primary
purpose of which is to raise finance or to finance the
acquisition of the relevant asset (but, for the avoidance of
doubt, not including any liabilities arising under operating
leases);
(f) any interest rate swap, currency swap, currency exchange
transaction, cap, floor, collar or option arrangement and any
other hedging or treasury transaction (or any combination of
any such transactions) which is entered into with a view to
managing exposure to fluctuations in interest rates or
currency exchange rates (the amount of such Financial
Indebtedness in relation to any such transaction or
arrangement shall be calculated by the ▇▇▇▇-to-market
valuation of such transaction at the time such valuation is
carried out); and
(g) any amount raised under any other transaction having, as a
primary and not an incidental effect, the commercial effect of
a borrowing or raising of money;
provided that where the amount of Financial Indebtedness falls to be
calculated:
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(i) Financial Indebtedness owed by one Group Member to another
wholly-owned Group Member shall be excluded;
(ii) no amount shall be taken into account more than once in the
same calculation;
(iii) when any amount required to be taken into account on any
particular day is denominated or payable in a currency other
than Sterling, that amount shall be converted into Sterling at
the Rate of Exchange on that day for the purchase of such
other currency;
"Group" means the Original Borrower and its Subsidiaries;
"Group Member" means a member of the Group;
"Guarantor" means United News & Media PLC in its capacity as
guarantor of the obligations of the Subsidiary Borrowers as
contemplated pursuant to clause 25 (Guarantee) of this Agreement;
"Holding Company" means, in respect of any Person, the company or
corporation of which such Person is a Subsidiary;
"Indebtedness" shall be construed so as to mean any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;
"Information Memorandum" means the paper so entitled dated March
1997 prepared by the Arrangers at the Original Borrower's request
and on its behalf in connection with this Agreement;
"Initial Financial Statements" means the audited consolidated
accounts of the Original Borrower for the Financial Year ended 31
December 1996;
"Interest Rate Fixing Day" means:
(a) in the case of an Advance (other than an Advance denominated
in Sterling or a Dollar Swing-Line Advance), the day falling
two Business Days before that Advance's Drawdown Date; and
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(b) in the case of an Advance denominated in Sterling that
Advance's Drawdown Date; and
(c) in the case of an Overdue Amount (other than an Overdue Amount
denominated in Sterling or a Dollar Swing-Line Advance), the
day falling two Business Days before the commencement of the
period for which the rate is to be determined in respect of
such Overdue Amount; and
(d) in the case of an Overdue Amount denominated in Sterling the
first day of the period for which the rate is to be determined
in respect of such Overdue Amount;
"Latest Consolidated Balance Sheet" means, at any date, the then
latest consolidated balance sheet forming part of the group accounts
of the Original Borrower prepared for the purpose of the Companies
▇▇▇ ▇▇▇▇, as amended from time to time, which has been audited and
has been reported on by the auditors as the main accounts of the
Group, whether prepared in accordance with the historical cost
convention or current cost convention or otherwise.
"LIBOR" means in relation to any Revolving Advance or Overdue
Amount, on any day, the London Interbank Offered Rate for deposits
in the specified currency, being determined by the Facility Agent to
be either:
(i) the offered rate (if any) for the specified term which appears
on page 3750 of the Telerate screen which displays British
Bankers Association Interest Settlement Rates for deposits in
the specified currency for the period for which such rate is
to be determined at 11.00am London time on the relevant
Interest Rate Fixing Day; or
(ii) if no such display rate is then available for such period or
currency the arithmetic mean (rounded upwards, if not already
such a multiple, to the nearest five decimal places) of the
respective rates notified to the Facility Agent by each of the
Reference Banks as the rate at which it is offered deposits in
an amount approximately equal to the relevant Advance in the
specified currency and for the specified term by prime banks
in the London
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Interbank Market at 11.00am London time on the relevant
Interest Rate Fixing Day for the specified term,
and for the purpose of this definition "specified currency" means
the currency of such Revolving Advance or, as the case may be,
Overdue Amount and "specified term" means the Term of such Revolving
Advance or, as the case may be, in respect of an Overdue Amount, the
Default Interest Period selected by the Facility Agent pursuant to
clause 9 (Default Interest);
"Majority Banks" means a Revolving Bank or group of Revolving Banks
whose aggregate Revolving Commitments amount to more than sixty-six
and two thirds per cent. of the Total Revolving Commitments or, if
each Revolving Bank's Revolving Commitment has been reduced to zero,
would have amounted in aggregate to more than sixty-six and two
thirds per cent. of the Total Revolving Commitments, immediately
prior to such reduction to zero;
"Manager" means, as the context requires, an Arranger, a Lead
Manager or a Manager and "Managers" means each of them;
"Mandatory Liquid Asset Costs" means the cost calculated in
accordance with Schedule 6 (Mandatory Liquid Asset Costs Formula)
carried by a Bank of complying with the Mandatory Liquid Asset
requirements of the Bank of England in relation to an Advance or an
Overdue Amount denominated in Sterling;
"Margin" means 0.20 per cent. per annum;
"Material Adverse Effect" means an effect resulting from any
occurrence of whatever nature (including without limitation any
adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), which is materially
adverse to the ability of:
(i) the Original Borrower or any Subsidiary Borrower to comply
with its obligations (other than its payment obligations)
under the Finance Documents; or
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(ii) the Original Borrower to comply with its payment obligations
under the Finance Documents (including, without limitation,
pursuant to clause 25 (Guarantee));
"month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the following
calendar month, unless such corresponding day is not a Business Day,
in which case it shall end on the next day which is a Business Day
or, if there is not a corresponding day in that calendar month, the
last Business Day in that calendar month;
"New Bank" is defined at clause 31.2 (Banks);
"Non-Recourse Indebtedness" means any Indebtedness of a Group
Member, which is a single purpose company whose principal assets and
business are constituted by a particular project (an "SPV") and,
under the terms of such Indebtedness, payment (or repayment) thereof
is to be made solely from the revenues arising out of such project
with recourse for such payment only to (i) such revenues; and/or
(ii) the assets of such SPV, and for the avoidance of doubt none of
the liabilities of that SPV are directly or indirectly the subject
of security or a guarantee, indemnity or any other form of
assurance, undertaking or support from any other Group Member other
than Security Interests granted by a Group Member over the shares of
such SPV to secure the said Indebtedness;
"Novation Certificate" means a certificate substantially in the form
set out in Schedule 4 (Form of Novation Certificate);
"Obligors" means the Borrowers and the Guarantor (each an
"Obligor");
"Overdue Amount" is defined at clause 9 (Default Interest);
"Party" means any Person party to this Agreement;
"Permitted Security Interests" means:
(i) Security Interests in favour of the Banks in relation to the
obligations of any Obligor under the Facility;
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(ii) Security Interests for which the Borrower has ensured, in a
manner on each occasion satisfactory to the Majority Banks
that the obligations of any relevant Obligor under this
Agreement (i) share equally and rateably with the indebtedness
or other obligations secured by any such Security Interest and
that in the creation of such Security Interest express
provision is made to such effect, or (ii) receive the benefit
of a Security Interest on other assets or income of the Group
which is, in the opinion of the Majority Banks, equivalent to
that granted in relation to such other indebtedness or
obligations;
(iii) Security Interests for taxes due and any liens arising by
operation of law or in the ordinary course of trade provided
that in each such case the underlying obligation is not
overdue for a period in excess of 30 days;
(iv) Security Interests arising pursuant to conditional sale or
other title retention arrangements relating to supplies made
to any Group Member in the ordinary course of trading;
(v) Security Interests given or arising over cash and marketable
securities in the normal course of business of those Group
Members whose principal business is securities broking;
(vi) Security Interests arising in connection with any cash
management or netting arrangement made between any banks or
financial institution and any Group Member in the ordinary
course of business;
(vii) Security Interests created in the ordinary course of business
over cash or debt securities provided as collateral to any
bank, financial institution, stock exchange or clearing house
for foreign exchange, swaps or other hedging transactions in
the ordinary course of participating in such transactions;
(viii) any Security Interests existing or future created over a
deposit in connection with a back-to-back loan facility
arrangement where (i) the deposit is in the same currency as
the outstanding advances under the loan facility to which it
relates and (ii) the amount of the deposit does not exceed the
higher of (aa) the amount of the said loan facility and (bb)
the aggregate amount of the advances outstanding under the
said loan facility plus an amount equal to the aggregate
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of the interest that will accrue on all such advances during
the interest periods then current;
(ix) the giving, simultaneously with or within ninety (90) days
after the acquisition of shares or debentures of any person or
entity, of any Security Interest for the unpaid purchase price
of, or borrowed monies to purchase, such shares or debentures,
on such share or debentures hereafter acquired and not
heretofore owned by the Original Borrower or the relevant
Subsidiary, provided that in each such case such Security
Interest is limited to such acquired shares or debentures;
(x) Security Interests which may exist over any property or other
asset at the time when such property or other asset is
acquired by the Original Borrower or the relevant Subsidiary
or which may be created at the time of acquisition thereof to
secure an amount not exceeding the purchase price thereof and
interest thereon (but so that the principal amount thereby
secured may not be increased);
(xi) Security Interests (a) which may exist over any property or
other assets of a body corporate or any of its Subsidiaries at
any time when share capital of such body corporate is acquired
by the Original Borrower, or the relevant Subsidiary, or (b)
which may be created (if permitted by applicable law) at the
time of such acquisition to secure an amount not exceeding the
acquisition price of such share capital and interest thereon
at then commercial rates (but so that, in the case of (a) or
(b) the principal amount thereby secured may not be
increased);
(xii) Security Interests securing an aggregate principal amount not
exceeding (pound)30,000,000 (or its equivalent in other
currencies) over land and buildings owned directly or
indirectly by United News & Media (Property Investments)
Limited where the amount secured is raised to finance or
refinance the acquisition or development of that land or
buildings and where the indebtedness so secured is not
guaranteed or secured by any Group Member; or
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18
(xiii) Security Interests created by any Group Member to secure any
Non-Recourse Indebtedness;
(xiv) Security Interests granted with the prior written consent of
the Majority Banks from time to time; and
(xv) Security Interests securing an aggregate principal amount not
exceeding the higher of 5% of Adjusted Capital and Reserves
and (pound)50,000,000 (or its equivalent in other currencies);
"Person" shall include any person, firm, company, corporation,
Government, State or agency of a State or any association or
partnership (whether or not having a separate legal personality) of
two or more of the foregoing;
"Potential Event of Default" means an event which, with the passage
of time, the giving of notice, or the making of any determination
(or any combination of those three), will become an Event of
Default;
"Principal Subsidiary" means, at any time;
(i) any Subsidiary of the Original Borrower (other than a
Subsidiary which does not trade and acts solely as a Holding
Company);
(a) whose turnover in any Financial Year is equal to or
greater than six per cent. of the turnover of the Group
in such Financial Year; or
(b) whose Profit before Interest and Tax in any Financial
Year is equal to or greater than six per cent. of the
Consolidated Profit before Interest and Tax of the Group
in such Financial Year,
each as determined by reference to the latest audited
financial statements (or, in the case where under or in
accordance with applicable law or accounting practice, audited
accounts are not required or available, the latest accounts as
incorporated in the most recent audited consolidated financial
statements of the Group) of such Subsidiary and the latest
audited consolidated financial statements of the Group,
provided that, in the case of a Subsidiary acquired after the
end of the Financial Year to which the latest relevant audited
accounts related, the reference to the latest audited
financial statements (or, as
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19
the case may be, latest accounts as incorporated in the most
recent audited consolidated financial statements of the Group)
for the calculation above shall, until audited accounts for
the financial period in which the acquisition is made are
published, be deemed to be a reference to such first-mentioned
accounts as if such Subsidiary had been shown in such accounts
by reference to its own latest audited accounts (or, as the
case may be, latest accounts as so incorporated), adjusted as
deemed appropriate by the auditors of the Original Borrower;
or
(ii) any Subsidiary (other than a Subsidiary which does not trade
and acts solely as a Holding Company) not falling within
paragraph (i) above but which, as a result of any intra-group
transfer or reorganisation would, adopting the test referred
to in paragraph (i) above and as if the accounts referred to
in such paragraph had been drawn up immediately following such
transfer or reorganisation, be a Principal Subsidiary upon the
completion of such transfer or reorganisation, and a report by
the auditors of the Original Borrower that in their opinion a
Subsidiary is or is not, or was or was not, at a particular
time or during any particular period a Principal Subsidiary
shall, in the absence of manifest error, be conclusive and
binding on all the Parties hereto;
For the purposes of the above "Profit before Interest and Tax"
of any Subsidiary shall be determined in accordance with
"Consolidated Profit before Interest and Tax" in clause 22.2
(Financial definitions) but on an individual company basis
only and by reference to the unconsolidated accounts of such
Subsidiary by itself regardless of whether such Subsidiary
itself has Subsidiaries.
"Proportion" means, in relation to any Bank:
(i) whilst no Advances are outstanding hereunder, the proportion
borne by its Revolving Commitment to the Total Revolving
Commitments (or, if the Total Revolving Commitments are then
zero, by its Revolving Commitment to the Total Revolving
Commitments immediately prior to their reduction to zero); or
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20
(ii) whilst at least one Advance is outstanding hereunder, the
proportion borne by its share of the Sterling Amount of the
Facility to the Sterling Amount of the Facility;
"Qualifying Bank" means
(a) in relation to any Utilisation by an Obligor resident in the
United Kingdom, a Bank which is:
(i) a bank as defined in Section 840A of the Taxes Act and
which is within the charge to UK Corporation Tax as
regards any interest received by it under this
Agreement; or
(ii) resident in a jurisdiction which has a double taxation
treaty with the United Kingdom and under or by virtue of
such treaty payments or principal and interest are
exempted in full from retention, reduction, withholding
or similar of or on account of any Taxes and which is
not acting through a Facility Office in the United
Kingdom; or
(b) in relation to any Utilisation by an Obligor not resident in
the United Kingdom, a Bank which, at the date such Bank gives
its approval to such Obligor acceding to this Agreement as a
Subsidiary Borrower pursuant to clause 26.1 (Delivery of
Subsidiary Borrower's Accession Memorandum), or in the case of
a Bank that becomes a party to this Agreement pursuant to a
Novation Certificate, at the date such Bank signed such
Novation Certificate would, if a payment of principal,
interest or otherwise was made by such Obligor under this
Agreement, be entitled by virtue of the laws of the
jurisdiction of residence of the Obligor or by virtue of an
Applicable Treaty to receive such payment from the Obligor
without deduction or withholding of Tax;
"Rate of Exchange" means, on any date, the Facility Agent's spot
rate of exchange, at or about 10am on such date, for the purchase of
Sterling with the relevant Alternative Currency;
"Reference Banks" means the principal London offices of each of The
Chase Manhattan Bank, and Lloyds Bank Plc or such additional or
replacement banks as are appointed under clause 33.7 (Reference
Banks);
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21
"Reference Rate" means for any day, the rate per annum which is the
prime rate of Lloyds Bank Plc, New York as publicly announced from
time to time, in effect on such date, it being expressly
acknowledged:
(i) that such prime rate is not intended to be the lowest rate of
interest charged by Lloyds Bank Plc, New York in connection
with extensions of credit to debtors; and
(ii) any change in such prime rate shall be effective on and from
the day on which it is announced or, if such announcement
provides for such change to come into effect on a later day,
on and from such later date;
"Repayment Date" means, in relation to any Advance, the last day of
its Term;
"Requested Amount" means, in respect of a Drawdown Request, the
principal amount requested to be borrowed under that Drawdown
Request;
"Revolving Advance" means save as otherwise provided herein, an
advance made, or to be made, by a Revolving Bank pursuant to clause
6.1 (Delivery of Drawdown Request);
"Revolving Commitment" means, in relation to a Revolving Bank, at
any time and save as otherwise provided herein, the relevant amount
set opposite its name in Part A of Schedule 1 (Banks and
Commitments);
"Revolving Facility" means the multicurrency revolving credit
Facility granted to the Borrowers in this Agreement;
"Second Increase Date" means the date on which the Facility Agent is
satisfied that principal amount outstanding under the Existing
Facilities is zero and there are no amounts available for drawing
thereunder;
"Schedule" means, unless otherwise stated, a schedule of this
Agreement;
"Scheduled Time" means, in respect of any clause where such
expression appears, the time set opposite such clause at schedule 5
(Timetable) under the heading "Scheduled Time";
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22
"Security Interest" shall be construed as a reference to a mortgage,
charge, pledge, lien, security interest, conditional sale or other
title retention agreement or other encumbrance securing any
obligation of any Person;
"Sterling" and "(pound)" means the lawful currency of the United
Kingdom;
"Sterling Amount" means, in relation to an Advance denominated in
Sterling, the principal amount of such Advance and, in relation to
any other Advance, the amount of Sterling which may be purchased
with the principal amount of such Advance at the Rate of Exchange on
the date falling three Business Days before that Advance's Drawdown
Date;
"Subsidiary" means:-
(a) a subsidiary within the meaning of Section 736 of the
Companies ▇▇▇ ▇▇▇▇; and
(b) unless the context otherwise requires, a subsidiary
undertaking within the meaning of Section 258 of the Companies
▇▇▇ ▇▇▇▇,
in each case, as at the date of this Agreement;
"Subsidiary Borrower's Accession Memorandum" means a memorandum in
the form or substantially in the form, set out at Schedule 7 (Form
of Subsidiary Borrower's Accession Memorandum) to be delivered by
the Original Borrower to the Facility Agent pursuant to clause 26.1
(Delivery of Subsidiary Borrower's Accession Memorandum);
"Subsidiary Borrower's Cessation Notice" means a notice in the form
or substantially in the form set out at Schedule 9 (Form of
Subsidiary Borrower's Cessation Notice) to be delivered by the
Original Borrower to the Facility Agent pursuant to clause 26.3
(Cessation of Subsidiary Borrower);
"Subsidiary Borrowers" means the Original Subsidiary Borrowers and
any Acceding Subsidiary Borrower that has not ceased to be a
Subsidiary Borrower pursuant to clause 26.3 (Cessation of Subsidiary
Borrower) and "Subsidiary Borrower" means any of them;
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23
"Tax" shall be construed so as to include all present and future
taxes, charges, imposts, duties, levies, deductions, withholdings or
amounts or charges of a similar nature, or any amount payable on
account of, or as security for, any of the foregoing, including any
penalties, fines, surcharges or interest payable in connection with
such amounts, and "Taxes" and "Taxation" shall be construed
accordingly;
"Taxes Act" means the Income and Corporation Taxes Act 1988 as the
same may have been or may from time to time be, amended or
re-enacted.
"Term" means, in relation to an Advance, the period for which such
Advance is requested to be borrowed, as adjusted under this
Agreement;
"Total Dollar Swing-Line Commitments" means, at any time, the
aggregate of the Dollar Swing-Line Banks' Dollar Swing-Line
Commitments at that time;
"Total Revolving Commitments" means, at any time, the aggregate of
the Revolving Banks' Revolving Commitments at that time;
"Utilisation" means a utilisation of the Facility; and
"VAT" means value added tax.
1.2 Construction
Unless the contrary is indicated the following rules of construction
shall apply to this Agreement:
1.2.1 "including" means "including without limitation";
1.2.2 references to the "winding-up", "dissolution" or
"administration" of a company or a corporation shall include
any equivalent or analogous proceedings or proceedings having
a similar effect thereto under the law of the place in which
such company or corporation is incorporated or in which it
carries on business;
1.2.3 a "wholly-owned subsidiary" of a Person shall be construed as
a reference to any Person which has no other members except
that other Person and that
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24
other Person's wholly-owned Subsidiaries or Persons acting on
behalf of that other Person or its wholly-owned Subsidiaries;
1.2.4 references to laws or regulations shall be construed as a
reference to such laws or regulations as amended or
re-enacted;
1.2.5 a Bank may procure that its obligations to make a Revolving
Advance to a Borrower incorporated in a jurisdiction outside
the United Kingdom or to make a Dollar Swing-Line Advance to
any Borrower are performed by one of its Affiliates. In this
event, references to that Bank in respect of any such Advance
will, unless the context otherwise requires, be construed as a
reference to that Affiliate. However, this will not prejudice
the obligations of that Bank to the other Parties, and, for
the purposes of its Available Dollar Swing-Line Commitment and
its Available Revolving Commitment, that Bank and the
Affiliate will be treated as a single Bank;
1.2.6 references to any agreement or document, including this
Agreement (but not the Basle Paper), shall be construed as a
reference to that agreement or document as amended, novated or
supplemented;
1.2.7 a person includes its successors and assigns;
1.2.8 unless otherwise stated to the contrary, a time of day is a
reference to London time;
1.2.9 headings are for convenience only and shall be ignored in
construing this Agreement; and
1.2.10 references to the plural include the singular and vice versa.
2. THE FACILITY
2.1 The Facility
Subject to and upon the terms and conditions of this Agreement, the
Revolving ▇▇▇▇▇ ▇▇▇▇▇ to the Borrowers a committed multicurrency
revolving credit facility and the Dollar Swing-Line ▇▇▇▇▇ ▇▇▇▇▇ to
the Borrowers a Dollar swing-line facility.
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25
2.2 Commitments and Maximum amount outstanding
2.2.1 The aggregate Sterling Amount of outstanding Advances shall
not, at any time, exceed the Total Revolving Commitments at
that time which, at the date of this Agreement, is
(pound)775,000,000. On the First Increase Date, the Total
Revolving Commitments shall be increased to
(pound)825,000,000. On the Second Increase Date the Total
Revolving Commitments shall be increased to
(pound)1,000,000,000.
2.2.2 Without prejudice to paragraph (a) above, the aggregate
principal amount of Dollar Swing-Line Advances shall not, at
any time, exceed the Total Dollar Swing-Line Commitments at
that time which, at the date of this Agreement, is
$200,000,000.
2.2.3 The aggregate Sterling Amount of Revolving Advances made by a
Revolving Bank shall not, at any time, exceed that Bank's
Revolving Commitment at that time.
2.2.4 Without prejudice to paragraph (c) above, the aggregate
principal amount of Dollar Swing-Line Advances made by a
Dollar Swing-Line Bank shall not, at any time, exceed that
Dollar Swing-Line Bank's Dollar Swing-Line Commitment at that
time.
2.3 Number of Utilisations
A maximum of twenty Utilisations outstanding at any time.
2.4 Change of currency
2.4.1 If in any jurisdiction more than one currency or currency unit
are at the same time recognised by the central bank (or
analogous body) as the lawful currency of such jurisdiction
and either an Advance is outstanding or has been requested
under this Agreement at such time denominated in such
currency, or the relevant jurisdiction is England and Wales,
then:
2.4.1.1 any reference in this Agreement to, and any
obligations arising under this Agreement in the
currency of such jurisdiction as at the date of this
Agreement shall be translated into, or paid in the
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26
currency or currency unit of such jurisdiction
agreed by the Original Borrower with the Facility
Agent; and
2.4.1.2 any translation from one currency unit to another
shall be at the official rate of exchange recognised
by the central bank (or analogous body) of such
jurisdiction for the conversion of that currency or
currency unit into the other rounded up or down in
accordance with any appropriate regulation.
2.4.2 If a change in the currency of any jurisdiction to which
paragraph (a) above applies occurs, this Agreement will be
amended to the extent the Facility Agent (following
consultation with the Original Borrower) reasonably specifies
to be necessary to reflect the change in currency and to put
each of the Finance Parties and the Obligors in the same
position, so far as possible, that they would have been in if
no change in currency had occurred. However, in no
circumstances may any such changes to this Agreement or to
any currency entitle any Party to be released from any of
their respective obligations hereunder or to treat this
Agreement as having been frustrated or materially altered
such that this Agreement and/or any Advances made hereunder
are thereby discharged whether by operation of law or due to
the apparent non-satisfaction of any condition precedent to
drawings.
2.5 Nature of Banks' obligations and rights
2.5.1 The obligations of each of the Banks under this Agreement are
several. The failure of a Bank to perform any of its
obligations will not:
2.5.1.1 increase the liability of any other Bank under this
Agreement nor impose any liability on an Agent; or
2.5.1.2 relieve any other Party from their respective
obligations under this Agreement.
2.5.2 The rights of a Finance Party under this Agreement are
several. A Finance Party may, except as otherwise stated in
this Agreement, separately enforce those rights.
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3. PURPOSE OF FACILITY
3.1 Each Advance shall be used for general corporate purposes (which
includes the refinancing of the Existing Facilities).
3.2 Without affecting the obligations of any Borrower under (a) above,
no Finance Party shall be obliged to concern itself with the
application of amounts raised by any Borrower under this Agreement.
4. CONDITIONS PRECEDENT TO AVAILABILITY OF FACILITY
No Borrower may deliver a Drawdown Request unless the Facility Agent has
previously confirmed to the Original Borrower and each of the Banks that
it has received all of the documents set out in Schedule 2 (Conditions
Precedent) and that each is, in form and substance, satisfactory to the
Facility Agent.
5. CONDITIONS PRECEDENT TO EACH ADVANCE
5.1 The obligation of each Bank to participate in the first Advance
hereunder is subject to the condition precedent that the Facility
Agent shall have received evidence satisfactory to it that the
principal amount outstanding under the Existing Facilities does not
exceed the aggregate of (pound)85,000,000 and $80,000,000.
5.2 The obligation of each Bank to participate in an Advance is subject
to the further conditions precedent that, on both the date that the
relevant Drawdown Request is delivered to the relevant Agent and the
Drawdown Date for that Advance:
5.2.1 no Default has occurred which is either continuing or has not
been waived in writing by the Facility Agent pursuant to
clause 34 (Amendments and Waivers); and
5.2.2 the representations in clause 20 (Representations) which are
to be repeated pursuant to clause 20.3 (Repetition of
representations) on those dates are true and correct.
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6. UTILISATION OF THE FACILITY
6.1 Delivery of Drawdown Request
6.1.1 A Borrower may utilise the Revolving Facility and/or the
Swing-Line Facility by delivering to the Facility Agent or, as
appropriate, the Dollar Swing-Line Agent, not later than the
Scheduled Time, a duly completed Drawdown Request. Each
Drawdown Request delivered to an Agent under this paragraph
(a) shall be copied to the other Agent.
6.1.2 Each Drawdown Request delivered to the Facility Agent or, as
appropriate, the Dollar Swing-Line Agent, shall oblige the
relevant Borrower to borrow the Requested Amount on its
Drawdown Date on the terms and conditions stated in this
Agreement.
6.2 Completion of Drawdown Request for Revolving Advances
Each Drawdown Request in respect of Revolving Advances delivered to
the Facility Agent pursuant to clause 6.1 (Delivery of Drawdown
Request) shall be irrevocable and shall not be considered to have
been duly completed unless it specifies:
6.2.1 the proposed Drawdown Date for the making of the Revolving
Advances requested, which shall be a Business Day occurring
during the Availability Period;
6.2.2 the currency in which the proposed Revolving Advances are to
be denominated which shall be either Sterling and/or an
Alternative Currency;
6.2.3 the Requested Amount, which shall be:
6.2.3.1 if the Requested Amount is in Sterling, a minimum
amount of (pound)5,000,000, an integral multiple of
(pound)1,000,000 and less than the Available Revolving
Facility; or
6.2.3.2 if the Requested Amount is in an Alternative Currency,
an amount comparable to the amount specified in
paragraph (i) above which is less than the Available
Revolving Facility; or
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6.2.4 an amount equal to the Available Revolving Facility;
6.2.5 the Term of the Revolving Advances being requested, which
shall be a period of one, two, three or six months (or such
other duration as the Revolving Banks may have previously
agreed in writing for such Revolving Advances) which will
begin on the proposed Drawdown Date and end on a Business Day
which is or precedes the Final Repayment Date; and
6.2.6 the account to which the proceeds of the proposed Utilisation
are to be paid.
6.3 Completion of Drawdown Request for Dollar Swing-Line Advances
Each Drawdown Request in respect of Dollar Swing-Line Advances
delivered to the Dollar Swing-Line Agent pursuant to clause 6.1
(Delivery of Drawdown Request) shall be irrevocable and shall not be
considered to have been duly completed unless it specifies:
6.3.1 the proposed Drawdown Date for the making of the Dollar
Swing-Line Advances requested which shall be a Business Day
occurring during the Availability Period;
6.3.2 the Requested Amount, which shall be:
6.3.2.1 a minimum amount of $5,000,000, an integral multiple
of $1,000,000 and less than the lower of the Available
Dollar Swing-Line Facility and the aggregate of the
Available Revolving Commitments of those Revolving Banks
that are also Dollar Swing-Line Banks; or
6.3.2.2 an amount equal to the lower of the Available Dollar
Swing-Line Facility and the aggregate of the Available
Revolving Commitments of those Revolving Banks that are
also Dollar Swing-Line Banks;
6.3.3 the Term of the Dollar Swing-Line Advances being requested
which shall not exceed seven days, and shall end on a Business
Day which is or precedes the Final Repayment Date;
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30
6.3.4 the account to which the proceeds of the proposed Utilisation
are to be paid.
6.4 Procedure for Dollar Swing-Line Advances
In respect of each Dollar Swing-Line Advance each Dollar Swing-Line
Bank shall, no later than the Scheduled Time:
6.4.1 through its Facility Office make, or procure to be made, its
Dollar Swing-Line Advance available to the Dollar Swing-Line
Agent in accordance with this clause 6 (Utilisation of the
Facility); and
6.4.2 advise the Dollar Swing-Line Agent by telephone, telefax or
telex of the Federal Reserve Bank wire number or the CHIPS
number (as applicable) effecting the transfer required by (a)
above.
6.5 Requested Amount exceeds Available Revolving Facility or Available
Dollar Swing-Line Facility
If the Requested Amount stipulated in a Drawdown Request would,
whether as a result of the Rate of Exchange applicable to the
Advances requested under that Drawdown Request or otherwise, exceed
the Available Revolving Facility or, as the case may be, the
Available Dollar Swing-Line Facility, the Requested Amount shall be
deemed to be equal to the Available Revolving Facility or, as the
case may be, the Available Dollar Swing-Line Facility.
6.6 Amount of each Bank's Advance
6.6.1 The amount of each Revolving Bank's Revolving Advance and each
Dollar Swing-Line Bank's Dollar Swing-Line Advance will,
subject to the terms of this Agreement, be the proportion of
the Requested Amount which its Available Revolving Commitment
or, as the case may be, Available Dollar Swing-Line Commitment
bears to the Available Revolving Facility or, as the case may
be, Available Dollar Swing-Line Facility on the date the
Facility Agent or, as the case may be, the Dollar Swing-Line
Agent receives the relevant Drawdown Request.
6.6.2 No Revolving Bank or, as the case may be, Dollar Swing-Line
Bank shall be required to make its Advance if its Revolving
Commitment or its Dollar
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Swing-Line Commitment will be fully cancelled under this
Agreement either prior to, or during, the Term of the
requested Advance.
6.7 Notification by Agents
6.7.1 The Facility Agent or, as the case may be, Dollar Swing-Line
Agent shall, not later than the Scheduled Time, notify each
Revolving Bank or, as the case may be, Dollar Swing-Line Bank
by telephone (in the case of the Dollar Swing-Line Agent only)
to be confirmed no later than the Scheduled Time by telefax or
letter of the details of the requested Revolving Advances or,
as the case may be, Dollar Swing-Line Advances and the
principal amount of that Revolving Bank's or, as the case may
be, Dollar Swing-Line Bank's Advance.
6.7.2 If a Revolving Bank's Revolving Commitment or a Dollar
Swing-Line Bank's Dollar Swing-Line Commitment is reduced in
accordance with this Agreement after the Facility Agent or, as
the case may be, the Dollar Swing-Line Agent has received a
Drawdown Request, then such part of the proposed Utilisation
as is attributable to that Revolving Bank or, as the case may
be, that Dollar Swing-Line Bank and exceeds its Available
Revolving Commitment or, as the case may be, its Available
Dollar Swing-Line Commitment (as so reduced) shall not be made
and the amount of such Utilisation shall be reduced
accordingly.
6.8 Making of Advances
Subject to the terms and conditions of this Agreement, each
Revolving Bank shall make its Revolving Advance available to the
Facility Agent and each Dollar Swing-Line Bank shall make its Dollar
Swing-Line Advance available to the Dollar Swing-Line Agent in
accordance with clause 15 (Payments) and, in the case of a Dollar
Swing-Line Advance, clause 6.4 (Procedure for Dollar Swing-Line
Advances) on the relevant Drawdown Date.
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7. ALTERNATIVE CURRENCIES
7.1 Revolving Bank's inability to fund
If a Borrower has delivered a Drawdown Request for Revolving
Advances to be denominated in an Alternative Currency a Revolving
Bank may, not later than the Scheduled Time, notify the Facility
Agent that it does not agree to such request because, in that
Revolving Bank's considered and reasonable opinion:
7.1.1 it would be unable, because of circumstances affecting the
London Interbank Market generally, to obtain matching deposits
in that Alternative Currency in the London Interbank Market at
the required time and in sufficient amounts to fund its
Advance; or
7.1.2 it is, or would be, unlawful (whether by reason of that
Revolving Bank's inability to obtain exchange control consent
or any governmental or other approval or authorisation) to
make, fund or permit to remain outstanding the proposed
Advance; or
7.1.3 provided that the Facility Agent has, in respect of that
Utilisation, been notified by a group of Revolving Banks
(including that Revolving Bank) to whom in aggregate fifty per
cent. or more of the Sterling Amount of the outstanding
Advances is (or, if the requested Advance was made, would be)
owed that LIBOR will not, because of circumstances affecting
the London Interbank Market generally, reflect the cost to
that Revolving Bank of obtaining deposits in such Alternative
Currency for the Term of such Advance,
then clause 7.2 (Notification by Facility Agent) shall apply.
7.2 Notification by Facility Agent
If a Revolving Bank gives notice under clause 7.1 (Revolving Bank's
inability to fund), it is not required to make an Advance in the
requested Alternative Currency, but shall, instead make an Advance
denominated in Sterling on the relevant Drawdown Date in an amount
equal to the Sterling Amount of such Advance and for the same Term.
The Facility Agent shall, not later than the Scheduled Time, inform
the relevant Borrower if
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any Advances are to be made in Sterling pursuant to the provisions
of this clause 7 (Alternative Currencies).
8. INTEREST
8.1 Interest rate
8.1.1 The rate of interest which shall accrue on each Advance (other
than a Dollar Swing-Line Advance) for its Term is the rate,
per annum, determined by the Facility Agent to be the
aggregate of LIBOR, the Margin and, in respect of any Advance
denominated in Sterling, the Mandatory Liquid Asset Costs
applicable to that Advance.
8.1.2 The rate of interest applicable to a Dollar Swing-Line Advance
shall be the rate per annum determined by the Dollar
Swing-Line Agent in accordance with this Agreement to be the
Dollar Swing-Line Rate from time to time during its Term.
8.2 Due date
Save as otherwise provided in this Agreement, accrued interest on
each Advance is payable by the relevant Borrower in arrear on that
Advance's Repayment Date and, if the Term of an Advance exceeds six
months, on the expiry of each period of six months during its Term.
8.3 Duration
Interest on any Advance shall accrue from (and including) the
Drawdown Date for that Advance to (but excluding) its Repayment
Date.
8.4 Notification of LIBOR and Dollar Swing-Line Rate
8.4.1 The Facility Agent shall promptly notify the relevant Borrower
and the Revolving Banks of any determination of LIBOR made by
it under this Agreement;
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8.4.2 The Dollar Swing-Line Facility Agent shall promptly notify the
relevant Borrower and the Dollar Swing-Line Banks of any
determination of the Dollar Swing-Line Rate made by it under
this Agreement.
9. DEFAULT INTEREST
9.1 If any Obligor fails to pay any amount payable by it under this
Agreement on the due date (the unpaid balance being an "Overdue
Amount"), that Obligor shall pay default interest on the Overdue
Amount from (and including) the due date to (but excluding) the date
such Overdue Amount is repaid in full, both before and after
judgment.
9.2 Default interest shall be payable:
9.2.1 on an Overdue Amount (that is not all or part of a Dollar
Swing-Line Advance) at a rate, per annum, equal to one per
cent. plus the Margin and, LIBOR and, in respect of any
Overdue Amount denominated in Sterling, the Mandatory Liquid
Asset Costs applicable to that Overdue Amount; and
9.2.2 if such Overdue Amount is all or part of a Dollar Swing-Line
Advance or any interest which shall have accrued under this
Agreement in relation thereto, then such Overdue Amount shall
bear interest at the rate per annum which is the sum of one
per cent. and the Dollar Swing-Line Rate.
9.3 The period during which an Overdue Amount is outstanding shall be
divided into successive periods (each a "Default Interest Period"),
each of which (apart from the first) shall start on the last day of
the preceding Default Interest Period. The duration of each Default
Interest Period shall (save as provided at paragraph (d) below) be
selected by the Facility Agent having regard, where possible, to the
likely date that the relevant Overdue Amount will be repaid in full.
9.4 If any Overdue Amount corresponds to the principal amount payable in
respect of an Advance which has become repayable prior to its
Repayment Date, the first Default Interest Period which shall be
selected by the Facility Agent shall be of a duration equal to the
unexpired portion of the Term of such Advance. The rate of the
default interest payable in respect of such Overdue Amount during
that unexpired period shall be one per cent. (1%) over the rate
which would have been applicable to such Advance had it not so
fallen due.
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9.5 If less than two of the Reference Banks are offering deposits in the
currency in which an Overdue Amount (that is not all or part of a
Dollar Swing-Line Advance) is denominated, the rate of default
interest in respect of such Overdue Amount shall be equal to one per
cent. (1%), the Margin, the cost to each of the Reference Banks
(expressed as a percentage rate per annum) of funding that Overdue
Amount for the applicable Default Interest Period and, in respect of
any Overdue Amount denominated in Sterling, the Mandatory Liquid
Asset Costs applicable to that Overdue Amount.
9.6 Any interest which shall have accrued under this clause 9 (Default
Interest) in respect of an Overdue Amount shall be payable on demand
and, if not paid, compounded at the end of its then current Default
Interest Period.
10. MARKET DISRUPTION
10.1 If paragraph (ii) of the definition "LIBOR" applies and the Facility
Agent is unable to determine LIBOR in relation to any requested
Revolving Advance for the purposes of this Agreement as a result of
less than two Reference Banks' supplying the required quotations,
the Facility Agent shall promptly notify each of the other Parties.
10.2 If the requested Revolving Advances were to be denominated:
10.2.1 in an Alternative Currency, such Revolving Advances shall not
be made; or
10.2.2 in Sterling, the requested Revolving Advances will, subject
to the terms and conditions of this Agreement, be made by the
Revolving Banks, have a Term of one month and bear interest
during their Term at the rate determined by the Facility Agent
to be the aggregate of the Margin plus the rate determined by
each Revolving Bank before the Repayment Date of their Advance
to be the rate which expresses (as a percentage rate per
annum) the cost to that Revolving Bank of funding its Advance
from whatever source it may select (acting reasonably).
10.3 If the Facility Agent requires, within three Business Days of the
Facility Agent giving a notice under paragraph (a), the Facility
Agent and the Original Borrower will enter into negotiations with a
view to agreeing a substitute basis for determining the rate of
interest which may be applicable to any future Revolving Advances.
Any substitute
36
basis that is agreed shall be confirmed in writing, be deemed to be
a term of this Agreement, take effect in accordance with its terms
and be binding on the Parties. The Facility Agent confirms to the
Revolving Banks that it will not agree to any substitute basis
without the prior consent of each Revolving Bank.
10.4 If, in relation to any Dollar Swing-Line Advance, no Federal Funds
Rate is available, the Dollar Swing-Line Agent shall notify the
relevant Borrower and each of the Dollar Swing-Line Banks of the
event and such Dollar Swing-Line Advance shall bear interest during
its Term at the Reference Rate.
11. REPAYMENT OF ADVANCES
The Borrower shall repay each Advance made to it in full on its Repayment
Date. Subject to the terms and conditions of this Agreement, any amounts
repaid may, during the Availability Period, be reborrowed. All outstanding
Advances, together with accrued interest thereon and any other amounts
payable to the Banks under this Agreement shall be repaid in full on the
Final Repayment Date.
12. NETTING OF PAYMENTS
12.1 If the Repayment Date of a Revolving Advance made to a Borrower
coincides with the Drawdown Date of another Revolving Advance being
made to that Borrower and the Revolving Advances are denominated in
the same currency, the Facility Agent may apply any amount which
would otherwise have been paid to, or credited to, that Borrower's
account under this Facility Agreement in or towards the discharge of
amounts payable by that Borrower under this Agreement on that date
(other than amounts that relate solely to Dollar Swing-Line
Advances, which shall not, for the avoidance of doubt, include any
commitment commission).
12.2 If the Repayment Date of a Dollar Swing-Line Advance made to a
Borrower coincides with the Drawdown Date of another Dollar
Swing-Line Advance being made to that Borrower the Dollar Swing-Line
Agent may apply any amount which would otherwise have been paid to
or credited to that Borrower's account under this Agreement in or
towards the discharge of amounts payable by that Borrower under this
Agreement on that date that relate solely to Dollar Swing-Line
Advances.
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37
13. PARTIAL PAYMENTS
If an Agent receives a payment which is insufficient to discharge all the
amounts due and payable by an Obligor under this Agreement on the day such
payment is received, such Agent shall apply that payment in or towards the
discharge of the Obligors' obligations under this Agreement in the
following order:
13.1 firstly (and at its discretion), in or towards payment of any unpaid
costs and expenses of the Agents incurred by them in connection with
this Agreement;
13.2 secondly, in or towards payment (pro rata) of any unpaid fees under
clause 28 (Fees);
13.3 thirdly, in or towards payment (pro rata) of any unpaid interest
(including default interest);
13.4 fourthly, in or towards repayment (pro rata) of any unpaid
principal; and
13.5 fifthly, in or towards payment of any other amounts due and payable
to the relevant Obligor under this Agreement.
14. CANCELLATION AND PREPAYMENT
14.1 Cancellation of Total Revolving Commitments
The Original Borrower may, by giving to the Facility Agent not less
than 5 Business Days' prior notice to that effect, cancel the whole
or any part (being a minimum amount of (pound)10,000,000 and an
integral multiple of (pound)5,000,000) of the Total Revolving
Commitments. Any such cancellation shall reduce the Revolving
Commitment of each Revolving Bank pro rata.
14.2 Cancellation and prepayment of a Revolving Bank's Revolving
Commitment and repayment of its Advances
14.2.1 If any Obligor is required to make any additional payment to
a Bank pursuant to clause 16 (Taxes) or any Bank claims
indemnification under clause 16 (Taxes) or clause 17
(Increased Costs), the Original Borrower may, provided that
the relevant circumstances are still continuing, serve a
notice on that
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38
Bank, through the Facility Agent, whereupon that Bank's
Revolving Commitment shall immediately be cancelled.
14.2.2 Five Business Days after the date of service of any such
notice, (unless the Original Borrower had stated in such
notice that the provisions of this paragraph (b) would not
apply) each Borrower shall repay each outstanding Advance
(including, for the avoidance of doubt, if such Bank is also a
Dollar Swing-Line Bank, each outstanding Dollar Swing-Line
Advance made to it by that Bank or that Bank's Affiliate in
its capacity as a Dollar Swing-Line Bank) made to it by that
Bank together with accrued interest thereon and any other
amounts payable by that Borrower to that Bank under this
Agreement, including any amount payable in respect of breakage
costs on the amount prepaid pursuant to clause 27.1.2 (Broken
funding).
14.3 Cancellation - Dollar Swing-Line Banks
If a Bank is also a Dollar Swing-Line Bank or such Bank is an
Affiliate of a Dollar Swing-Line Bank, any cancellation of the
Bank's Revolving Commitment shall, for the avoidance of doubt, apply
to its and/or its Affiliate's Dollar Swing-Line Commitment
accordingly and any cancellation of such Bank's Revolving Commitment
shall reduce such Bank's and/or its Affiliate's Dollar Swing-Line
Commitment rateably.
14.4 Voluntary prepayment
Any Borrower may, on giving not less than 5 Business Days' prior
notice to the Facility Agent and subject to clause 27.1.2 (Broken
Funding), prepay the Revolving Advances or any part thereof such
that the Sterling Amount so prepaid is in a minimum amount of
(pound)10,000,000 and an integral multiple of (pound)5,000,000. Any
amount so notified shall be due and payable on expiry of such notice
together with interest accrued thereon and any other sums then due
and payable under this Agreement.
14.5 Notices of prepayment/cancellation
14.5.1 Any notice of prepayment and/or cancellation delivered under
this Agreement is irrevocable.
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14.5.2 Each notice shall specify the date upon which such
cancellation and/or prepayment is to be made and the amount of
such cancellation and/or prepayment.
14.6 Notification of Bank(s)
The Facility Agent shall notify the relevant Bank(s) and, if
applicable, the relevant Dollar Swing-Line Bank(s) promptly upon
receipt of any notice of cancellation and/or prepayment.
14.7 Only method
No payment, prepayment or cancellation (with respect to this
Agreement) is permitted other than in accordance with the provisions
of this Agreement.
15. PAYMENTS
15.1 To Facility Agent and Dollar Swing-Line Agent
On each date that a Party (other than the Facility Agent or the
Dollar Swing-Line Agent) is obliged to make a payment under this
Agreement, that Party shall make the same available to the Facility
Agent or, as the case may be, the Dollar Swing-Line Agent;
15.1.1 if the amount is denominated in Sterling, by payment in
Sterling in immediately available, freely transferable,
cleared funds, to the Facility Agent's account number ▇▇▇▇▇▇▇
with Lloyds Bank Plc, Treasury Division, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (Quoting CHAPS
Sort Code 30-15-57) or such other account as the Facility
Agent may have specified for this purpose; or
15.1.2 if the amount is denominated in Dollars and relates to, or is
in respect of the Dollar Swing-Line Facility by payment in
Dollars and in same day funds (or in such funds as may for the
time being be customary in New York City for the settlement in
New York City of international banking transactions in
Dollars) to the Dollar Swing-Line Agent at Bank of America
International, New York account Lloyds Bank Plc, Miami, ABA
code 026 009 593, account number 655 010 1938 reference New
York/United News & Media or such
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40
other account as the Dollar Swing-Line Agent may have
specified for this purpose; or
15.1.3 if the amount is denominated in Dollars and paragraph (b)
above does not apply by payment in Dollars and in same day
funds (or in such funds as may be customary in New York City
for the settlement in New York City of international banking
transactions in Dollars) to the Facility Agent at Bank of New
York, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇, Account 890 0047 003
in the name of Lloyds Bank Plc, Loans Administration,
reference UNM or such other account as the Facility Agent may
have specified for this purpose; or
15.1.4 if the amount is denominated in an Alternative Currency
(other than Dollars), by payment in such Alternative Currency
and in immediately available, freely transferable, cleared
funds to such account with such bank in the principal
financial centre of the country of such Alternative Currency
as the Facility Agent shall have specified for this purpose.
15.2 Distribution by Agents
15.2.1 If an Agent receives a payment for the account of another
Party in connection with this Agreement, such Agent shall make
that payment available to such Party for value the same day by
transfer to such account of such Party with such bank in the
principal financial centre of the country of the currency of
such payment as that Party shall have previously notified to
that Agent in writing for this purpose.
15.2.2 If a sum is paid under this Agreement to an Agent for the
account of another Party, such Agent shall not be obliged to
pay that amount to that Party until such Agent has
established, to its satisfaction, that it has actually
received and retained that sum.
15.2.3 Each Agent may, but shall not be obliged to, assume that it
has received and retained all amounts payable to it under this
Agreement on the due date and, in reliance on that assumption,
make available to the relevant Party a corresponding amount.
If, however, such a sum has not been received and retained by
such Agent the relevant Party shall, on demand by such Agent
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41
promptly refund the corresponding amount to such Agent
together with interest on that amount from (and including) the
date of payment by such Agent to (but excluding) the date such
amount is repaid to such Agent in full, at a rate calculated
by such Agent so as to reflect its cost of funding such
payment.
15.3 Currency of payment
15.3.1 A repayment and/or prepayment of an Advance shall be made in
the currency in which such Advance is denominated.
15.3.2 Each payment of interest shall be made in the currency in
which the sum in respect of which such interest is payable is
denominated.
15.3.3 Any payment made in respect of costs, expenses or Taxes shall
be made in the currency in which it is incurred and each
payment made pursuant to clause 16 (Taxes) or clause 17
(Increased Costs) shall be made in the currency in which it
was incurred or as specified by the Party making the claim.
15.3.4 Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in Sterling.
15.4 Set-off and counterclaim
15.4.1 All payments required to be made by any Obligor under this
Agreement shall be made without reference to any set-off or
counterclaim and shall be made free and clear of and without
any deduction for or on account of any set-off or
counterclaim.
15.4.2 Each Obligor authorises each Bank after the occurrence of an
Event of Default and whilst the same is continuing to apply
any credit balance to which that Obligor is entitled on any
account of that Obligor with that Bank in satisfaction of any
sum due and payable from that Obligor to that Bank under this
Agreement but unpaid. Each Bank is, accordingly, authorised to
purchase with any credit balance of any such account such
other currencies as may be necessary to effect such
application. No Bank shall be obliged to exercise any right
given to it by this paragraph (b).
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16. TAXES
16.1 Payment of Taxes
16.1.1 All payments to be made by the Obligors under or in respect
of this Agreement shall be made free and clear of and without
any deduction or withholding of Tax.
16.1.2 If an Obligor is required to make any deduction or
withholding of Tax, that Obligor shall:
16.1.2.1 promptly notify the Facility Agent of the amount
which it is required to deduct or withhold; and
16.1.2.2 pay such additional amounts as are necessary to
ensure that the relevant Finance Party receives and
retains a net amount equal to the full amount which it
would have received had the payment not been made
subject to a deduction or a withholding.
16.2 Tax indemnity
Without prejudice to the provisions of clause 16.1 (Payment of
Taxes), if any Finance Party, or any other Person through which a
payment relating to this Agreement is made, is required to make any
payment on account of Tax (other than Tax on the net income of its
Facility Office imposed by the Tax authorities in the jurisdiction
in which it is incorporated or in which its Facility Office is
located or, in respect of any Person, on its net income imposed by
the Tax authorities in the jurisdiction in which it is incorporated
or through which payment is made) on or in relation to any sum
received or receivable under this Agreement by that Finance Party,
or any other Person through which such a payment is made, the
relevant Obligor shall, upon demand by the Facility Agent, indemnify
the relevant Finance Party against such payment, together with any
interest, penalties and expenses payable or incurred in connection
therewith (otherwise than any such interest, penalties or expense
payable or incurred by virtue of unreasonable delay on the part of
the relevant Finance Party in remitting to a tax authority an amount
paid to it by an Obligor or in notifying the relevant Obligor of any
assessment or other notification of an amount payable received from
a tax authority).
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16.3 Notification of claims
Without prejudice to clause 16.2 (Tax indemnity), if the relevant
Obligor so requests, the relevant Finance Party shall notify the
relevant Obligor of the reason for making a claim under clause 16.2
(Tax indemnity) and provide, in reasonable detail, the calculation
and cause of the amount being claimed. This clause 16.3
(Notification of claims) shall not oblige any Finance Party to
disclose any information relating to the organisation of its
business or tax affairs or how the amount requested was calculated
if it considers, in its sole opinion, that such information is
confidential.
16.4 Tax receipts
If, as a result of a payment being made by or on behalf of an
Obligor under this Agreement, that Obligor is required to pay any
Tax, the Obligor shall pay such Tax in full to the relevant
authority within the time allowed for such payment under applicable
law. The Obligor shall, within 30 days of the payment being made,
deliver to the Facility Agent an original (or a Certified Copy) of
any receipt issued by the relevant authority evidencing that payment
in full has been received by the relevant authority.
16.5 Tax credits
16.5.1 If an Obligor makes a payment under clause 16.1 (Payment of
Taxes) or clause 16.2 (Tax Indemnity) for the account of any
Finance Party and that Finance Party, in its sole opinion,
determines that it has received or been granted a credit
against or relief from or remission for, or repayment of, any
Tax paid or payable by that Obligor in respect of, or
calculated by reference to, the deduction or withholding
giving rise to such payment, such Finance Party shall, to the
extent that it can do so without prejudice to the retention of
the amount of such credit, relief, remission or repayment, pay
to that Obligor (through the Facility Agent) such amount as
such Finance Party shall, in its sole opinion, have determined
to be attributable to such deduction or withholding.
16.5.2 Any payment made by a Finance Party under this clause 16.5
(Tax credits) shall be conclusive evidence of the amount due
to the relevant Obligor under this clause 16.5 (Tax credits)
and shall be accepted by that Obligor in full and
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44
final settlement of its rights of reimbursement under this
Agreement in respect of the relevant deduction or withholding.
Nothing in this clause 16.5 (Tax credits) shall interfere with
the right of each Finance Party to arrange its affairs
(including its Tax affairs) in such manner as it thinks fit
and, in particular, no Finance Party shall be under any
obligation to claim any credit, relief, remission or repayment
from or against its corporate profits or similar Tax
liabilities in respect of the amount of such deduction or
withholding in priority to any other claims, reliefs, credits
or deductions available to it.
16.5.3 No Finance Party will be obliged to disclose any information
or computations relating to its Tax affairs to the Obligors or
to any other Person.
16.6 Qualifying Banks
16.6.1 No Obligor shall be required to pay an additional amount
under this clause 16 (Taxes) if the relevant Finance Party
either:
16.6.1.1 is not at the date it becomes a party to this
Agreement a Qualifying Bank; or
16.6.1.2 ceases after the date it becomes a party to this
Agreement to be a Qualifying Bank,
and, in either case, the obligation to deduct or withhold
would not have arisen if the relevant Finance Party had been
or had not ceased to be a Qualifying Bank, unless such Finance
Party ceases to be a Qualifying Bank as a result of a change
in any applicable law, regulation, practice or concession of
any taxation authority (whether in the United Kingdom or
elsewhere).
16.6.2 Each Bank warrants to each Obligor that as at the date of
this Agreement and, as at the date it gives its approval to a
Subsidiary Borrower not resident in the United Kingdom,
acceding to this Agreement in such capacity pursuant to clause
26.1 (Delivery of Subsidiary Borrower's Accession Memorandum)
(or, in the case of a New Bank, at the date of the relevant
Novation Certificate or, in the case of an assignee of a Bank,
as at the date on which the assignment to such assignee
becomes effective) it is a Qualifying Bank. Each Bank agrees
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45
to notify the Facility Agent and the Borrower promptly should
it cease to be a Qualifying Bank.
16.7 Double tax-treaties
Each Bank and the Facility Agent or the relevant Agent or the
relevant Obligor (as the case may be) shall as soon as reasonably
practicable after the date hereof or upon becoming a party to this
Agreement or (as the case may be) after the date a Subsidiary
Borrower not incorporated in the United Kingdom accedes to this
Agreement submit the form or forms to the appropriate Revenue
authorities as may reasonably be necessary in order to comply with
the requirements of any applicable law or Applicable Treaties in
relation to the payment of any interest and commitment commission
hereunder to such Bank or such Agent free (or subject to any
applicable reduced rate) of deduction or withholding of or on
account of any Tax which would otherwise be applicable and, if such
Bank or such Agent fails to comply with this clause 16.7 (Double
tax-treaties) the relevant Obligor shall not have any obligation to
pay any increased amount required by clause 16.1 (Payment of Taxes)
or clause 16.2 (Tax Indemnity) if and to the extent that it would
not have been required to make any deduction or withholding (or
would only have been required to make any such deduction or
withholding at any applicable reduced rate) of or on account of any
Tax had such Bank or such Agent complied with this clause 16.7
(Double tax-treaties).
16.8 Banks' representation
Each Bank confirms in favour of the Agents (on the date hereof, or,
in the case of a New Bank, on the date on which the relevant
transfer becomes effective) that either:
16.8.1 it is not resident for tax purposes in the United Kingdom and
is beneficially entitled to the Advances it makes under this
Agreement and the interest thereon; or
16.8.2 it is a bank falling within the definition of "bank" for the
purposes of Section 349 of the Income and Corporation Taxes
Act 1988 and is beneficially entitled to the Advances it
makes under this Agreement and the interest thereon;
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46
and each Bank in favour of the Agents agrees to notify the Facility
Agent if there is any change in its position from that set out
above.
17. INCREASED COSTS
17.1 Indemnity for increased costs
If as a result of:
17.1.1 the introduction or variation of any law or any change in the
administration or interpretation of any law; and/or
17.1.2 compliance with any request from or requirement of any
central bank or other fiscal, monetary or other authority made
after the date hereof (including any request or requirement
which affects the manner in which a Bank or any Holding
Company of such Bank is required to, or does, maintain capital
resources having regard to such Bank's obligations under this
Agreement and to amounts which are owing to it under this
Agreement):
17.1.2.1 such Bank, or any Holding Company of such Bank,
incurs a cost (being a cost which it would not otherwise
have incurred) as a result of it having entered into
and/or it performing its obligations under this
Agreement and/or it assuming or maintaining its
Commitment under this Agreement and/or it making one or
more Advances under this Agreement; or
17.1.2.2 such Bank, or any Holding Company of such Bank, is
unable to obtain the rate of return on its overall
capital which it would have been able to obtain but for
it having entered into and/or assuming or maintaining a
Commitment under this Agreement; or
17.1.2.3 there is any increase in the cost to such Bank, or
any Holding Company of such Bank, of funding or
maintaining all or any of the assets or liabilities
comprised in a class of assets or liabilities formed by,
or including, those referable to this Agreement; or
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47
17.1.2.4 such Bank, or any Holding Company of such Bank,
becomes liable to make any payment on account of Tax
(other than Tax on its overall net income) or otherwise
on or calculated by reference to the amount of Advances
made or to be made by it under this Agreement and/or any
sum received or receivable by it under this Agreement,
then the Original Borrower shall, from time to time on demand
by the Facility Agent, pay to the Agent for the account of
that Bank, amounts sufficient to indemnify that Bank against,
as the case may be, (i) such costs, (ii) such reduction, (iii)
such increased costs (or such proportion of such increased
costs as is, in the opinion of that Bank, attributable to its
funding, maintaining or assuming assets or liabilities
referable to this Agreement) or (iv) such liability.
17.2 Exceptions
No Bank shall be entitled to make any claim under clause 17.1
(Indemnity for increased costs) which:
17.2.1 is compensated for by the operation of clause 16 (Taxes); or
17.2.2 is compensated for by Mandatory Liquid Asset Costs; or
17.2.3 is attributable to any change in the rate of Tax on the
overall net income of such Bank or its Holding Company; or
17.2.4 arises directly as a result of a breach by such Bank of any
regulation, guideline or requirement of any central bank or
other fiscal, monetary or other authority (whether or not
having the force of law); or
17.2.5 arises directly as a result of the implementation by any
authority after the date of this Agreement of any of the
matters set out in the Basle Paper.
17.3 Notification by Bank
Any Bank proposing to make a claim pursuant to clause 17.1
(Indemnity for increased costs) shall notify the Original Borrower
(through the Facility Agent), setting out, in reasonable detail, the
calculation and cause of the amounts claimed. No Bank shall be
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48
required to disclose any information relating to the organisation of
its affairs which it considers to be confidential.
18. ILLEGALITY
If, as a result of the introduction, imposition or variation of any law,
regulation or regulatory requirement of any authority (including any
fiscal or monetary authority) or any change in the interpretation or
application thereof after the date hereof, it is unlawful for any Bank to
make, maintain or fund any Advance, or be a party to this Agreement then,
unless such illegality is avoided in accordance with clause 19.
(Mitigation):
18.1 the relevant Bank shall not be obliged to make any Advances and its
Revolving Commitment and, if applicable, its or, as the case may be,
its Affiliate's Dollar Swing-Line Commitment shall be cancelled and
reduced to zero; and
18.2 the Borrowers shall, on the latest date by which the relevant law
requires that the same be repaid and/or paid, (as the case may be)
repay each outstanding Advance, together with accrued interest
thereon and any other amounts owing to that Bank and, if applicable
in its capacity as a Dollar Swing-Line Bank (or its Affiliate in
such capacity).
19. MITIGATION
19.1 If, in respect of any Bank, circumstances arise which would, or on
the giving of notice would, result in:
19.1.1 an increase in the amount of any payment to be made to it
under clause 16.1 (Payment of Taxes); or
19.1.2 any claim for indemnification being made under clause 16.2
(Tax indemnity) or under clause 17.1 (Indemnity for increased
costs); or
19.1.3 any prepayment or cancellation under clause 18 (Illegality),
then, without limiting the obligations of any of the Obligors under
this Agreement, and without prejudice to the terms and conditions of
those clauses, that Bank will (provided that it considers that it is
reasonably practicable for it to do so), promptly upon becoming
aware of the same, notify the Facility Agent and, in consultation
with the
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49
Facility Agent and the Borrower, take steps to mitigate the effects
of such circumstances, including, if appropriate, changing its
Facility Office and/or transferring its rights and obligations under
this Agreement to another branch or financial institution acceptable
to the Original Borrower, provided that:
19.1.4 no Bank shall be obliged to take any steps under this clause
19 (Mitigation) if it considers, in its bona fide opinion,
that to do so might have an adverse effect on its business,
operation or financial condition or it considers such steps to
be unreasonable and
19.1.5 such Bank shall, notwithstanding the foregoing, be under no
obligation to achieve any particular result and shall incur no
liability to any Obligor by virtue of such steps resulting in
less than complete mitigation.
19.2 In the event that any Obligor shall have received a certificate from
the Facility Agent pursuant to clause 18 (Illegality) demand shall
have been made on the Original Borrower by the Facility Agent
pursuant to clause 17 (Increased Costs) or any Borrower shall have
been required to make a deduction or withholding pursuant to clause
16.1 (Payment of Taxes) or have been notified by the Facility Agent
pursuant to clause 16.3 (Notification of Claims) (the "Trigger
Events"), the Original Borrower (acting on behalf of all the
Obligors) may (within thirty days of receipt thereof) notify the
Facility Agent that it wishes to replace the relevant Bank in
respect of which such certificate, demand, deduction, withholding
or, as the case may be, notification relates, with a successor bank
which must be a Qualifying Bank ("Successor Bank"). The Original
Borrower acting on behalf of all the Obligors shall enter into
negotiations with the Facility Agent to determine a Successor Bank
(but for the avoidance of doubt the Facility Agent shall be under no
obligation to find a Successor Bank) provided that in the event that
the Original Borrower and the Facility Agent shall not agree a
Successor Bank, the Original Borrower may nominate a Successor Bank
which shall be a bank of international repute.
19.3 Upon determination of the identity of the Successor Bank, the
Facility Agent shall promptly notify the Bank in question of such
identity (which shall, in any event, be no later than forty days
after the relevant Trigger Event) and, provided the Bank in question
is able to do so, the Bank in question shall as soon as reasonably
practical arrange to transfer its Revolving Commitment (and, if such
Bank is a Dollar Swing-
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50
Line Bank, its Dollar Swing-Line Commitment) hereunder (together
with all outstandings hereunder valued at par and accrued interest
thereon) to the Successor Bank in accordance with the provisions of
clause 31 (Transfers) at such time as may be agreed between the
parties hereto.
20. REPRESENTATIONS
20.1 Continuing representations
The Original Borrower represents in respect of itself, each Obligor
and each Principal Subsidiary (provided that in respect of any
company which becomes a Group Member after the date hereof and which
is not an Obligor such representation shall not take effect in
relation to such Group Member or any of its Subsidiaries until the
earlier of the date being six months after the date on which such
company becomes a Group Member and the date of delivery by such
company of a Subsidiary Borrower's Accession Memorandum) that:
20.1.1 Body corporate: each such Group Member is a corporation duly
organised and validly existing under applicable law;
20.1.2 Power and authority: each such Group Member has authority,
and has completed all proceedings and obtained all approvals
and consents necessary, to execute, deliver and perform the
Finance Documents to which it is a party, and the transactions
contemplated thereby;
20.1.3 Legal and valid: the obligations expressed to be assumed by
each Group Member in the Finance Documents to which it is a
party are legal and valid obligations binding on it in
accordance with the terms thereof except that the
enforceability of each Finance Document may be limited by
insolvency or other similar laws of general application
affecting the enforcement of creditors' rights generally and
by a court in relation to equitable remedies;
20.1.4 Litigation: except as previously disclosed to the Facility
Agent in writing, no action, suit or proceeding which would be
reasonably expected to succeed, and if successful, which would
be reasonably likely by itself or together with any other such
proceedings or claims to have a Material Adverse Effect has
been started or, to its knowledge, threatened (disregarding
for this purpose
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51
any such action, suit or proceedings where the alleged
liability of the relevant Group Member is fully covered by an
insurance policy issued by a Person who is not a Group
Member);
20.1.5 Contravention: its execution, delivery and performance of
those Finance Documents to which such Group Member is a party
and the transactions contemplated thereby will not contravene
or constitute a default under or result in any Security
Interest upon assets of any Group Member pursuant to any
applicable law or regulation, any constitutive document of any
Group Member, or any contract, agreement, judgement, order,
decree or other instruction binding upon or affecting any
Group Member; and
20.1.6 Accuracy of Information:
20.1.6.1 each set of financial statements delivered by and
pursuant to clause 21.1.1 and 21.1.2 (Provision of
information) was prepared in accordance with generally
accepted accounting principles and practices in the
jurisdiction of incorporation of the Original Borrower
or, as the case may be, of each other Obligor and fairly
represents the financial condition of the Group or, as
the case may be, of such Obligor as at the end of the
period to which those financial statements relate and of
the results of its operations during such period; and
20.1.6.2 each Compliance Certificate delivered by the Original
Borrower pursuant to clause 21.1.3 (Provision of
information) shall be true and accurate in every
material respect as at the date on which such
certificate is given.
20.2 Other representations
The Original Borrower further represents in respect of itself, each
Obligor and each Principal Subsidiary as at the date of this
Agreement as follows:
20.2.1 No conflict: no Group Member is in breach of or in default
under any agreement to which it is a party or which is binding
on it or any of its assets to
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52
an extent or in a manner which would be reasonably likely to
have a Material Adverse Effect;
20.2.2 Information Memorandum: (a) all statements of fact contained
in the Information Memorandum relating to the Group are or
will be true in all respects material to the Facility, (b) all
expressions of opinion or expectations and all forecasts and
projections provided in the Information Memorandum, have been
or will be arrived at in good faith and have been or will be
based on reasonable grounds (in each case at the date they are
or will be made or expressed to be made and in final form),
and (c) it is not aware of any material facts or circumstances
that have not been disclosed to the Facility Agent and the
Banks and which would, if disclosed, be reasonably likely to
affect the decision of a person considering whether or not to
provide finance to the Original Borrower and its Subsidiaries;
20.2.3 Financial Condition: there has been no material adverse
change in the financial condition of the Group taken as a
whole since 31st December 1996, being the date of the last
audited financial statements of the Original Borrower
published before the date of this Agreement;
20.2.4 Security Interests: no Security Interest, other than a
Permitted Security Interest, exists over all or any of the
present or future revenues or assets of the Original Borrower
or any of its Subsidiaries;
20.2.5 Withholding Tax: there is no deduction or withholding for or
on account of any Tax required to be made from any payment to
be made by it hereunder to a Qualifying Bank;
20.2.6 Filings: it is not necessary that any of the Finance
Documents be filed, recorded or enrolled with any court or
other authority in the United Kingdom or any other
jurisdiction in which an Obligor is incorporated or that any
stamp, registration or similar tax be paid on or in relation
to any of the Finance Documents; and
20.2.7 Licences: it has, in the conduct of its business complied
with the provisions of all applicable laws and obtained (and
maintained in full force and effect) all
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53
licences, consents, approvals and authorisations required for
the conduct of its business and has complied with all
conditions thereof where the failure to comply with such
provisions or the failure to obtain and maintain such
licences, consents, approvals or authorisations would be
reasonably likely to have a Material Adverse Effect.
20.3 Repetition of representations
Each of the representations set out in clause 20.1 (Continuing
representations) shall be deemed to be repeated as at the date of
each Drawdown Request and each Drawdown Date by reference to the
then existing circumstances.
21. FINANCIAL INFORMATION
21.1 Provision of information
The Original Borrower shall:
21.1.1 as soon as the same become available, but in any event within
180 days after the end of each of its Financial Years, deliver
to the Facility Agent (in sufficient copies for each of the
Finance Parties);
21.1.1.1 its audited consolidated financial statements for
such Financial Year; and
21.1.1.2 the audited (or if it is not required by any
applicable law, regulation or accounting standard or
principle to prepare audited accounts, the unaudited)
unconsolidated financial statements of each other
Obligor for such Financial Year;
21.1.2 as soon as the same become available, but in any event within
120 days after the end of the first half of each of its
Financial Years, deliver to the Facility Agent (in sufficient
copies for each of the Finance Parties) its unaudited
consolidated interim financial statements for such period
signed by a director of the Original Borrower;
21.1.3 together with the accounts specified in paragraph (i) and
(ii) above, deliver to the Facility Agent a Compliance
Certificate signed by a director of the
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54
Original Borrower setting out in reasonable detail
computations, establishing compliance with clause 22
(Financial Condition of the Group) and, in the case of each
Compliance Certificate delivered together with the accounts
specified in paragraph (i) above, setting out in reasonable
detail computations regarding the determination of the
Adjusted Share Capital and Reserves; and
21.1.4 from time to time on the request of the Facility Agent,
furnish the Facility Agent with such other information about
the business and financial condition of the Group as the
Facility Agent may reasonably require.
21.2 GAAP
The Original Borrower shall ensure that each set of financial
statements delivered by it pursuant to clause 21.1 is prepared in
accordance with generally accepted accounting principles and
practices in the jurisdiction of incorporation of the relevant Group
Member.
22. FINANCIAL CONDITION OF THE GROUP
22.1 Ratio
The Original Borrower shall procure that the ratio of Consolidated
Profit Before Interest and Tax for each period of twelve months
ending at the end of any Financial Year and at the end of any
Financial Half Year to Consolidated Net Finance Charges for the same
period shall not be less than 3.0:1.0.
22.2 Financial definitions
For the purposes of this clause 22 (Financial Condition of the
Group):
"Consolidated Net Finance Charges" means, for any period, all
interest expense and all other continuing regular or periodic costs,
charges and expenses in the nature of interest (including, for the
avoidance of doubt but without limitation, any acceptance commission
relating to any bills of exchange) incurred by the Group during such
period minus all interest income and income in the nature of
interest of the Group received or receivable during such period;
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55
"Consolidated Profit Before Interest and Tax" means, in relation to
any period, the sum of (a) Consolidated Profit Before Tax of the
Group plus (b) Consolidated Net Finance Charges for that period (to
the extent deducted in determining Consolidated Profit Before Tax);
"Consolidated Profit Before Tax" means, for any period, the gross
revenues of the Group less all expenses and other proper charges,
but excluding in any event:
22.2.1 Exceptional Items;
22.2.2 net earnings and losses of any Subsidiary of the Borrower
accrued prior to the date it became such a Subsidiary;
22.2.3 all income taxes paid or accrued by the members of the Group;
and
22.2.4 earnings or charges resulting from any reappraisal,
revaluation, write-up or write-down of assets (other than
fees and expenses of such reappraisal or revaluation).
"Exceptional Items" means for any period all items of income or
expense reported in the financial statements as exceptional in
accordance with Financial Reporting Standard 3, (including, for the
avoidance of doubt,
22.2.5 any exceptional profits or losses on the sale or termination
of an operation,
22.2.6 exceptional costs of a fundamental reorganisation or
restructuring, and
22.2.7 any exceptional profits or losses on a disposal of fixed
assets and extraordinary items);
"Financial Half Year" means any financial half year of the Group;
and
"Financial Year" means any financial year of the Group.
Any amount outstanding in a currency (other than Sterling) is to be
taken into account at its Sterling equivalent calculated on the
basis of the rate of exchange used for such purpose in the relevant
accounts.
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56
22.3 Different basis
22.3.1 Subject to paragraph (b) below, all the terms used in clause
22.1 (Ratio) (including, for the avoidance of doubt,
intangible assets and the inclusion of intangible asset in any
relevant term) are to be calculated or treated consistently in
accordance with the accounting principles applied in
connection with the Initial Financial Statements.
22.3.2 If any financial statements delivered to the Facility Agent
pursuant to clause 21.1.1 or 21.1.2 (Provision of information)
are prepared on a different basis from that used in the
preparation of the Initial Financial Statements and in the
reasonable opinion of the Facility Agent (having regard to
accounting principles applicable at the relevant time), this
alters the interpretation of any expressions used in clause
22.2 (Financial definitions) in any material respect, then:
22.3.2.1 the Original Borrower and the Facility Agent shall,
at the Facility Agent's request, negotiate in good faith
with a view to agreeing any amendments to clause 22.2
(Financial definitions) and/or the definitions used
therein as may be necessary to give the Banks
protection, which protection, considered overall, is at
least equivalent to that granted to the Banks as at the
date hereof; and
22.3.2.2 if no such agreement is reached within 30 days of the
Facility Agent's request, the Original Borrower shall
procure at the request of the Facility Agent that the
Original Borrower's auditors determine any amendments to
clause 22.2 (Financial definitions) and/or the
definitions used therein which the auditors consider
appropriate to grant to the Banks protection which
protection considered overall, is at least equivalent to
that granted to the Banks as at the date hereof, such
determination of the auditors, in the absence of
manifest error, to be conclusive. Any costs and expenses
of the auditors in making the above determination shall
be for the account of the Original Borrower.
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57
23. COVENANTS
23.1 Positive covenants
The Original Borrower shall:
23.1.1 Default: promptly inform the Facility Agent of the occurrence
of any continuing Event of Default or Potential Event of
Default (which has not been remedied or waived) of which it is
aware;
23.1.2 Litigation: promptly inform the Facility Agent of any claims,
proceedings or disputes against, or to the knowledge of the
Original Borrower, threatened or affecting the Original
Borrower or any of its Subsidiaries which, if adversely
determined, would have a Material Adverse Effect;
23.1.3 Compliance with contracts, etc: comply and shall procure that
each Principal Subsidiary shall comply with the terms of any
agreement, contract or other instrument to which it may be a
party or under which it or its assets may be bound, if
non-compliance will have a Material Adverse Effect except
where contested in good faith and by proper proceedings;
23.1.4 Pari Passu: ensure that all amounts payable hereunder by any
Obligor will rank at least pari passu in priority of payment
with all other present and future unsecured indebtedness of
such Obligor, except to the extent otherwise provided by
operation of law;
23.1.5 Group Structure: ensure that each Subsidiary Borrower is and
remains a subsidiary of the Borrower; and
23.1.6 Compliance with laws: shall, and shall procure that each
Group Member will:
23.1.6.1 comply with the provisions of all applicable laws in
the conduct of its business; and
23.1.6.2 obtain (and maintain in full force and effect) all
licences, consents, approvals and authorisations
required for the conduct of its business and will comply
with all conditions thereof,
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58
where the failure to comply with such provisions or the
failure to obtain and maintain such licences, consents,
approvals or authorisations would be reasonably likely
to have a Material Adverse Effect.
23.2 Negative covenants
The Original Borrower shall ensure that neither it, nor any other
Group Member shall:
23.2.1 Negative pledge: create or permit to exist against any of its
assets now or hereafter acquired any Security Interest other
than a Permitted Security Interest; or
23.2.2 Disposals: without the consent of the Majority Banks (such
consent not to be unreasonably withheld or delayed) sell,
transfer, lease or otherwise dispose of all or a substantial
part of its assets or revenues (which shall not include cash
for this purpose) either in a single transaction or in a
series of transactions, whether related or not and whether
voluntarily or involuntarily other than by:
23.2.2.1 disposals made in the ordinary course of business of
the disposing entity; or
23.2.2.2 at a fair market value and on an arms length basis;
or
23.2.2.3 disposals made by one Group Member to another Group
Member; or
23.2.2.4 without prejudice to clause 23.2.2.1, 23.2.2.2 and
23.2.2.3, and (iii) above, disposals of assets in
any Financial Year which together generated in the
preceding Financial Year profit before interest and
tax for the Group not exceeding 25% of Consolidated
Profit Before Interest and Tax for such preceding
Financial Year. Where the asset disposed of was not
owned by any Group Member for the whole of the
preceding Financial Year, or was not owned by any
Group Member during the preceding Financial Year,
the profit before interest and tax in respect
thereof shall be computed by reference to the annual
profit before interest and tax such asset could
reasonably be
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59
taken to generate (as deployed by the relevant Group
Member) based on generally accepted accounting
principles and the Consolidated Profit Before
Interest and Tax shall be adjusted to reflect
inclusion of such asset for the relevant Financial
Year. "Financial Year" and "Consolidated Profit
Before Interest and Tax" have the respective
meanings given to them by clause 22.2 (Financial
definitions). The Original Borrower shall if so
requested by the Facility Agent deliver to the
Facility Agent a certificate signed by a director of
the Original Borrower containing computations in
reasonable detail and any other information
reasonably required to determine whether or not any
particular disposal meets the requirements of this
exception.
24. EVENTS OF DEFAULT
24.1 The Events of Default
If:
24.1.1 Non Payment: (i) any Obligor fails to pay any amount in
respect of principal due from it under any Finance Document
on its due date or, if that failure results solely from
technical or administrative difficulties relating to the
transfer of that amount from the relevant Obligor to the
relevant Agent, on or within three Business Days of its due
date, or (ii) any other sum payable under any Finance
Document on or within seven Business Days of its due date; or
24.1.2 Breach of representation: any representation made by any
Obligor in the Finance Documents or in any Drawdown Request
is or proves to have been materially incorrect or misleading
when made or repeated; or
24.1.3 Breach of undertaking: any Obligor fails duly to perform or
comply with any provision of clause 22 (Financial Condition
of the Group) or clause 23.2.1 (Negative pledge); or
24.1.4 Breach of other provisions: any Obligor fails duly to perform
or comply with any other provision of this Agreement and such
failure is not remedied within
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60
30 days after the Facility Agent has given notice thereof to
the Original Borrower; or
24.1.5 Unable to pay debts: any Obligor or any Principal Subsidiary:
24.1.5.1 is unable to pay its debts as they fall due or
admits in writing its inability to pay its debts
when due; or
24.1.5.2
(a) stops or suspends making payments (whether of
principal or interest) with respect to all or
a material part of its debts; or
(b) convenes a meeting of its creditors with a
view to making or makes any arrangement or
composition with, or any assignment for the
benefit of, its or their creditors save where
the same is entered into or made for the
purpose of the solvent winding up, solvent
dissolution or solvent reconstruction,
amalgamation or re-organisation of any
Principal Subsidiary (not being an Obligor) or
(with the prior written approval of the
Majority Banks) of any Obligor; or
24.1.5.3 takes any corporate action or other formal steps are
taken or legal proceedings are started for its
winding-up, dissolution or reorganisation or for the
appointment of a receiver, administrative receiver,
administrator, trustee or similar officer of it or
all or substantially all of its revenues and assets
(other than in the case of a winding-up petition or
similar or analogous insolvency proceedings
presented by a third party, where it is disputed in
good faith and is discharged within 30 days (or in
the case of any Obligor or Principal Subsidiary
incorporated in any part of the United States, 90
days) or the Majority Banks acting in good faith
agree the same is without foundation, or the solvent
winding up, solvent dissolution or solvent
reconstruction,
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61
amalgamation or reorganisation of any Principal
Subsidiary (not being an Obligor) or (with the prior
written approval of the Majority Banks) of any
Obligor); or
24.1.5.4 is the subject of distress or any form of execution
being levied or enforced upon or sued out against
all or substantially all of its business or assets
which is not discharged or stayed within 60 days of
being levied, enforced, or sued out; or
24.1.6 Analogous events: any event occurs which under the laws of
any relevant jurisdiction has an analogous effect to any of
the events referred to in clause 24.1.5 above; or
24.1.7 Cross-default: In relation to any Obligor or Principal
Subsidiary:
24.1.7.1 any other present or future Financial Indebtedness
(other than Non-Recourse Indebtedness) of any
Obligor or any Principal Subsidiary becomes due and
payable prior to its stated maturity by reason of
default; or
24.1.7.2 any Financial Indebtedness (other than Non-Recourse
Indebtedness) of any Obligor or any Principal
Subsidiary is not paid when due or, as the case may
be, within an applicable grace period; or
24.1.7.3 any Security Interest securing Financial
Indebtedness (other than Non-Recourse Indebtedness)
of any Obligor or any Principal Subsidiary becomes
enforceable and any formal step is taken to enforce
it;
provided that the aggregate amount of the relevant Financial
Indebtedness, in respect of which the relevant event
mentioned in each of paragraphs (i)-(iii) has occurred is
equal to or exceeds the higher of (pound)15,000,000 (or its
equivalent in any other currency or currencies) and one per
cent. (1%) of the Adjusted Share Capital and Reserves (or its
equivalent in any other currency or currencies) provided
that, for the purposes of this clause 24.1.7 neither any
Obligor, nor any Principal Subsidiary shall be deemed to be
in default with
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62
respect to the non-payment of such Financial Indebtedness, if
(a) it shall be contesting in good faith by appropriate means
its liability to make payment thereunder; and (b) it has been
advised by independent legal advisers of recognised standing
that it is reasonable to do so; or
24.1.8 Material adverse change: there is a material adverse
change in the business or financial condition of the
Group which will have a Material Adverse Effect; or
24.1.9 Cessation of business: save as previously approved
in writing by the Facility Agent (acting on the
instructions of the Majority Banks), the Original
Borrower, any other Obligor or any Principal
Subsidiary ceases, or threatens to cease, to carry
on all or a substantial part of its business where
such cessation will have a Material Adverse Effect,
then, and in any such case and at any time thereafter, the
Facility Agent may (and, if so instructed by the Majority
Banks, shall) by written notice to the Original Borrower:
24.1.10 declare the Advances to be immediately due and
payable (whereupon the same shall become so payable
together with accrued interest thereon and any other
sums then owed by any Obligor hereunder) or declare
the Advances to be due and payable on demand of the
Facility Agent; and/or
24.1.11 inform the Original Borrower that the Facility is to
be immediately cancelled and the Revolving
Commitment of each Revolving Bank and the Dollar
Swing-Line Commitment of each Dollar Swing-Line Bank
thereunder is to be reduced to zero (whether or not
there are then any outstanding Advances whereupon
the Facility shall be immediately cancelled and the
Revolving Commitment of each Revolving Bank and the
Dollar Swing-Line Commitment of each Dollar
Swing-Line Bank thereunder shall be reduced to
zero).
24.2 Change of Control
If at any time any Person or group of connected Persons, which does
not at the date hereof have, or would not be held under section 416
of the Taxes Act to have at the date hereof, control of the
Borrower, acquires such control (for the purposes of this paragraph
"connected person` shall be construed in accordance with section 839
of the
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63
Taxes Act) then the Original Borrower (through the Facility Agent)
shall consult with each Bank and unless each Bank agrees otherwise
with the Original Borrower, the Revolving Commitment of such
Revolving Bank (and, if such Bank is, or its Affiliate is, also a
Dollar Swing-Line Bank, its Dollar Swing-Line Commitment) shall be
reduced to zero and the Original Borrower shall procure that each
Borrower shall prepay for the account of such Bank such Bank's
Advances made to such Borrower, such reduction to take effect, and
such prepayment to be effected, on the thirtieth day after such
acquisition (or, if such day is not a Business Day, the previous day
that is).
25. GUARANTEE
25.1 Guarantee obligations
The Original Borrower hereby irrevocably and unconditionally:
25.1.1 guarantees to each Finance Party the due and punctual
observance and performance of all payment obligations on the
part of each Subsidiary Borrower contained in the Finance
Documents and agrees unconditionally to pay to the Facility
Agent from time to time on demand any and every sum or sums
of money which a Subsidiary Borrower shall at any time be
liable to pay to such Finance Party under or pursuant to the
Finance Documents and which shall not have been paid at the
time such demand is made; and
25.1.2 agrees as a primary obligation to indemnify each of the
Finance Parties from time to time on demand by the Facility
Agent from and against any loss incurred by such Finance
Party as a result of any of the obligations of any of the
Subsidiary Borrowers under or pursuant to any of the Finance
Documents being or becoming void, voidable, unenforceable or
ineffective as against such Subsidiary Borrower for any
reason whatsoever, whether or not known to the Facility Agent
or any other person, the amount of such loss being the amount
which the person or persons suffering it would otherwise have
been entitled to recover from such Subsidiary Borrower.
25.2 Preservation of rights
The obligations of the Original Borrower herein contained shall be
in addition to and independent of every other security which the
Facility Agent may at any time hold in
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respect of any obligations of the Subsidiary Borrowers under any of
the Finance Documents.
25.3 Continuing obligations
The obligations of the Original Borrower herein contained shall
constitute and be continuing obligations notwithstanding any
settlement of account or other matter or thing whatsoever, and in
particular but without limitation, shall not be considered satisfied
by an intermediate payment or satisfaction of any part of the
obligations of any of the Subsidiary Borrowers under each of the
Finance Documents and shall continue in full force and effect until
final payment in full of all amounts owing by each of the Subsidiary
Borrowers hereunder and total satisfaction of all of each of the
Subsidiary Borrowers actual and contingent obligations hereunder.
25.4 Non-discharge
Neither the obligations of the Original Borrower herein contained
nor the rights, powers and remedies conferred in respect of the
Original Borrower upon any of the Finance Parties by any of the
Finance Documents or by law shall be discharged, impaired or
otherwise affected by:
25.4.1 the winding-up, dissolution, administration or reorganisation
of any of the Subsidiary Borrowers or any other Person or any
change in its status, function, control or ownership;
25.4.2 any of the obligations of any of the Subsidiary Borrowers or
any other Person under any of the Finance Documents or under
any other security taken in respect of any of its obligations
thereunder being or becoming illegal, invalid, unenforceable
or ineffective in any respect;
25.4.3 time or other indulgence being granted or agreed to be
granted to any of the Subsidiary Borrowers or any other
Person in respect of its obligations under any of the Finance
Subsidiary Documents or under any such other security;
25.4.4 any amendment to, or any variation, waiver or release of, any
obligation of any of the Subsidiary Borrowers or any other
Person under any of the Finance Documents or under any such
other security;
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25.4.5 any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken in
respect of any of the Subsidiary Borrowers under any of the
Finance Documents;
25.4.6 any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
security taken in respect of any of the Subsidiary Borrowers'
obligations under any of the Finance Documents;
25.4.7 the accession of any one or more Acceding Subsidiary
Borrowers to this Agreement by means of the procedure set out
in clause 26 (Accession and Cessation of Subsidiary
Borrowers) or the utilisation of the Facility by any such
Acceding Subsidiary Borrower; or
25.4.8 any other act, event or omission which, but for this clause
25.4 (Non-discharge), might operate to discharge, impair or
otherwise affect any of the obligations of the Original
Borrower herein contained or any of the rights, powers or
remedies conferred upon the Finance Parties by this Agreement
or by law.
25.5 Insolvency
Any settlement or discharge between the Original Borrower and any of
the Finance Parties shall be conditional upon no security or payment
to the Finance Parties by any of the Subsidiary Borrowers or any
other Person on behalf of such Subsidiary Borrower being avoided or
reduced by virtue of any provisions or enactments relating to
bankruptcy, insolvency, liquidation or similar laws of general
application for the time being in force and, if any such security or
payment is so avoided or reduced, the Finance Parties shall be
entitled to recover the value or amount of such security or payment
from the Original Borrower subsequently as if such settlement or
discharge had not occurred.
25.6 Immediate recourse
The Finance Parties shall not be obliged before exercising any of
the rights, powers or remedies conferred upon it in respect of the
Original Borrower by this Agreement or by law:
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25.6.1 to make any demand of any of the Subsidiary Borrowers;
25.6.2 to take any action or obtain judgment in any court against
any of the Subsidiary Borrowers;
25.6.3 to make or file any claim or proof in a winding-up or
dissolution of any of the Subsidiary Borrowers; or
25.6.4 to enforce or seek to enforce any other security taken in
respect of any of the obligations of any of the Subsidiary
Borrowers hereunder.
25.7 Non-competition
The Original Borrower agrees that, so long as any amounts are or may
be owed by any Subsidiary Borrower under this Agreement or any of
the Subsidiary Borrowers is under any actual or contingent
obligations hereunder, any rights which it may at any time have by
reason of performance by it of its obligations hereunder:
25.7.1 to be indemnified by such Subsidiary Borrower;
25.7.2 to claim any contribution from any other guarantor of such
Subsidiary Borrower's obligations under this Agreement;
and/or
25.7.3 to take the benefit (in whole or in part and whether by way
of subrogation or otherwise) of any rights of the Finance
Parties under any of the Finance Documents or of any other
security taken pursuant to, or in connection with, any of the
Finance Documents by the Finance Parties,
shall be exercised by the Original Borrower in such manner and upon
such terms as the Finance Parties may require and the Original
Borrower further agrees to hold any moneys at any time received by
it as a result of the exercise of any such rights for and on behalf
of, and to the order or, the Finance Parties for application in or
towards payment of any sums at any time owed by any of the
Subsidiary Borrowers under this Agreement.
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25.8 Suspense account
All moneys received, recovered or realised by the Facility Agent by
virtue of clause 25.1 (Guarantee obligations) may, in the Facility
Agent's absolute discretion, be credited to an interest-bearing
suspense or impersonal account and may be held in such account for
so long as the Facility Agent thinks fit acting reasonably pending
the application from time to time (as the Facility Agent may think
fit acting reasonably) of such moneys in or towards the payment and
discharge of any amounts owing by any of the Subsidiary Borrowers to
the Finance Parties hereunder.
26. ACCESSION AND CESSATION OF SUBSIDIARY BORROWERS
26.1 Delivery of Subsidiary Borrower's Accession Memorandum
If it is proposed that any Subsidiary of the Original Borrower is to
become a Subsidiary Borrower under this Agreement the Original
Borrower shall deliver to the Facility Agent:
26.1.1 a request proposing that such Subsidiary becomes a Subsidiary
Borrower hereunder and a party hereto, having all the rights,
benefits, liabilities and obligations of a Subsidiary
Borrower hereunder; and
26.1.2 a Subsidiary Borrower's Accession Memorandum relating to the
proposed Subsidiary Borrower duly completed and executed by
the Original Borrower (on its own behalf and on behalf of
each of the other Obligors for the time being) and the
proposed Subsidiary Borrower, together with each of the
documents mentioned in Schedule 8 (Documents to accompany
Subsidiary Borrower's Accession Memorandum),
and, in the case of a Subsidiary which is incorporated outside
England and Wales upon the Facility Agent having informed the
Original Borrower in writing that it has received the approval of
all the Banks to such Subsidiary becoming a Subsidiary Borrower
(such approval not to be unreasonably withheld or delayed), if the
Facility Agent has confirmed to the Original Borrower (such
confirmation not to be unreasonably withheld or delayed) that each
of the documents delivered to it as contemplated by paragraph (b)
above is in form and substance satisfactory to the Facility Agent,
the Facility Agent shall (and is hereby authorised to) execute such
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Borrower's Accession Memorandum on its own behalf and for and on
behalf of each of the other Finance Parties.
26.2 Acceding Subsidiary Borrower's obligations
On the date on which the Facility Agent executes a Subsidiary
Borrower's Accession Memorandum relating to a proposed Subsidiary
Borrower pursuant to clause 26.1 (Delivery of Subsidiary Borrower's
Accession Memorandum), such proposed Subsidiary Borrower shall
become a Subsidiary Borrower and a party hereto and accordingly:
26.2.1 such proposed Subsidiary Borrower shall have liabilities and
obligations identical to those expressed to be assumed by a
Borrower hereunder;
26.2.2 such proposed Subsidiary Borrower shall be entitled to the
rights and benefits of a Borrower hereunder; and
26.2.3 the obligations of the Original Borrower under clause 25
(Guarantee) shall thereupon extend to any sum or sums from
time to time due from such proposed Subsidiary Borrower under
this Agreement.
26.3 Cessation of Subsidiary Borrower
The Original Borrower may declare that a Subsidiary Borrower shall
cease to be a Subsidiary Borrower hereunder for the purposes of this
Agreement by so notifying the Facility Agent in writing. Upon
receipt by the Facility Agent of a Subsidiary Borrower's Cessation
Notice, duly executed by the Original Borrower, such Subsidiary
Borrower shall relinquish all the rights and cease to be liable for
all its obligations hereunder and thereafter shall not be treated as
a Subsidiary Borrower for the purposes of this Agreement, provided
that at the time of such receipt (a) such Subsidiary Borrower is
under no actual or contingent obligation to make any payment under
this Agreement, and (b) no Default has occurred which (in either
case) has not been remedied or waived by the Facility Agent in
accordance with the provisions of this Agreement.
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27. INDEMNITIES
27.1 Indemnifiable events
The Original Borrower agrees to indemnify each Finance Party on
demand against any loss or expense, including legal fees, and any
applicable VAT, (to the extent that the loss or expense incurred by
such Finance Party did not arise solely as a result of the breach by
such Finance Party of any of its material obligations under this
Agreement or its negligence or wilful default) which any of them may
sustain or incur as a result or a consequence of any of the events
referred to in this clause 27.1 (Indemnifiable events) having
occurred:
27.1.1 Advance not made
the funding of an Advance following delivery of a Drawdown
Request but which is not borrowed because of the application
of one or more of the provisions of this Agreement; or
27.1.2 Broken funding
receiving or recovering all or any part of an Advance other
than on its Repayment Date or at the end of any period
selected by the Facility Agent under clause 9 (Default
Interest), including any amount required to compensate that
Finance Party in respect of any loss, premium, penalty or
other compensating payment sustained or incurred by it in
liquidating, employing or redeploying deposits acquired or
arranged or entered into in order to make, fund or maintain
such Advance; or
27.1.3 Alternative Currency request
any loss that Finance Party may suffer as a result of it
funding an Advance requested by a Borrower to be made in an
Alternative Currency but which is denominated in Sterling as
a result of the application of clause 7 (Alternative
Currencies); or
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27.2 Occurrence of an Event of Default
The Original Borrower agrees to indemnify each Finance Party on
demand against any reasonable loss, expense, including legal fees
and any applicable VAT, which any of them may reasonably sustain or
incur as a result of the occurrence of an Event of Default or any
other breach of the obligations of any Obligor expressed to be
assumed by it under any Finance Document.
27.3 Stamp duty
27.3.1 The Original Borrower will pay all stamp, documentary,
registration and other similar duties or Taxes, including any
penalties, additions, surcharges or interest relating to such
amounts, which are imposed or chargeable on or in connection
with this Agreement or any judgment given in connection with
this Agreement.
27.3.2 The Facility Agent may, but shall not be obliged to, pay any
amounts which are referred to at paragraph (a) above. If the
Facility Agent does so, the Original Borrower shall, on
demand, indemnify the Facility Agent against any such
payment, together with any costs and expenses, including
legal fees, and any applicable VAT, incurred by or on behalf
of the Facility Agent in connection with such payment.
27.4 Currency Indemnity
If any sum due from an Obligor under a Finance Document or any order
or judgment given or made in relation thereto has to be converted
from the currency (the "first currency") in which the same is
payable hereunder or under such order or judgment into another
currency (the "second currency") for the purpose of (i) making or
filing a claim or proof against an Obligor, (ii) obtaining an order
or judgment in any court or other tribunal or (iii) enforcing any
order or judgment given or made in relation hereto, such Obligor
shall indemnify and hold harmless each of the Persons to whom such
sum is due from and against any loss suffered as a result of any
discrepancy between (a) the rate of exchange used for such purpose
to convert the sum in question from the first currency into the
second currency and (b) the rate or rates of exchange at which such
Person may in the ordinary course of business purchase the first
currency with the
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second currency upon receipt of a sum paid to it in satisfaction, in
whole or in part, of any such order, judgment, claim or proof.
28. FEES
28.1 Commitment fees
28.1.1 The Original Borrower shall pay to the Facility Agent, for
the account of each Revolving Bank, a commitment fee
calculated at the rate of 0.095 per cent. per annum on the
amount of that Revolving Bank's Available Revolving
Commitment during the period from (and including) 21 May 1997
to (but excluding) the Final Repayment Date.
28.1.2 Subject to paragraph (d) below, commitment fees are payable
every three months and on the Final Repayment Date or, if
earlier, the date on which the Total Revolving Commitments
are cancelled and reduced to zero.
28.1.3 The first payment of commitment fees will be due three months
after the date of this Agreement.
28.1.4 The Original Borrower shall pay the commitment fees to the
Facility Agent for the account of each Revolving Bank, within
10 Business Days of receiving notice from the Facility Agent
that such fees are due.
28.1.5 If any Revolving Bank's Revolving Commitment is cancelled and
reduced to zero, any commitment fee which had accrued at such
time in relation to that Revolving Bank and which has not
been paid, shall be payable by the Original Borrower on the
date the cancellation is effective.
28.2 Agency fees
The Original Borrower shall pay to the Agents, for their own
account, an agency fee in the amount and at the times specified in
the Agents' Fee Letter.
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28.3 Arrangement fee
The Original Borrower shall pay to the Facility Agent, for the
account of the Arrangers, an arrangement fee in the amount and at
the time specified in the Arrangers' Fee Letters.
29. COSTS AND EXPENSES
29.1 Initial costs
The Original Borrower shall pay to the Facility Agent or, as the
case may be, the Arrangers (or either of them) an amount equal to
all reasonable costs and expenses, including legal fees, and any
applicable VAT incurred by the Agents and the Arrangers in
connection with the negotiation, preparation and execution of this
Agreement and the completion and syndication of the transactions
contemplated in this Agreement.
29.2 Amendments
The Original Borrower shall pay to the Facility Agent an amount
equal to all reasonable costs and expenses, including legal fees,
and any VAT payable thereon, incurred by the Agents in connection
with the negotiation, preparation and execution of any amendment,
waiver, release or consent which any of the Finance Parties is
requested to give in connection with this Agreement and the
transactions contemplated by it.
29.3 Protection, enforcement, etc.
The Original Borrower shall pay, through the Facility Agent, an
amount equal to all reasonable costs and expenses, including legal
fees, and any applicable VAT reasonably incurred by any Finance
Party in connection with protecting, preserving or enforcing (or
attempting to do so) any of their rights under or arising out of
this Agreement.
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30. THE AGENTS
30.1 Appointment of the Agents
30.1.1 Each Bank and the Arrangers irrevocably appoints each of the
Agents to act as its agent in connection with this Agreement
and the transactions contemplated by it.
30.1.2 Each Agent is authorised to take such action and to exercise
and carry out all the discretions, authorisations, rights,
powers and duties as are specifically delegated to it in this
Agreement, together with such discretions, rights and powers
as such Agent reasonably considers to be incidental.
30.1.3 Neither Agent is, nor will it be considered to be, acting as
trustee or in a fiduciary capacity under or in connection
with any of the Finance Documents. The duties of the Agents
are restricted to those expressly stated in this Agreement.
30.2 Duties of the Agents
30.2.1 Each Agent will promptly forward to the relevant Party the
original or a copy of any notice or document received by it
in its capacity as an Agent for such Party.
30.2.2 Each Agent will promptly notify the Banks if it receives
notice from any Party of the occurrence of a Default or any
other breach of this Agreement by an Obligor and that notice
states the Default or breach and makes reference to the
specific Event of Default and/or the clause that has been
breached.
30.2.3 Except as otherwise stated in this Agreement, each Agent will
act in accordance with any instructions given to it by the
Majority Banks, such instructions being binding on all the
Banks whether or not they form part of the Majority Banks.
30.3 Exculpatory provisions
Except where this Agreement specifically provides otherwise, neither
Agent is obliged:
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30.3.1 to review or check the accuracy or completeness of any
document, notice or other communication it receives or
forwards to another Party;
30.3.2 to monitor or enquire if a Default has occurred, or if the
representations made by any Obligor under or in connection
with this Agreement are true, correct or accurate, or whether
any Obligor has performed each of the obligations expressed
to be assumed by it under or in connection with this
Agreement;
30.3.3 to disclose to any Party any information (whether in a
documentary form or otherwise) if such disclosure would or
might, in its opinion, constitute a breach of law,
regulation, its duty of confidentiality or otherwise be
actionable at the suit of any Person;
30.3.4 to take any action or exercise any right, power or discretion
under this Agreement, unless specifically instructed to do so
by the Majority Banks, the Banks or any other Finance Party
which is entitled to instruct it under this Agreement and the
manner in which such right, power or discretion should be
exercised; or
30.3.5 to begin any legal action or proceeding under or in
connection with this Agreement, unless it is satisfied that
it has received such security as it may require in respect of
any costs, claims, liability or loss, including legal fees,
and any applicable VAT, which it will or may incur in respect
of, or in connection with, such actions or proceedings.
30.4 Assumptions
Each Agent and each Arranger may assume that:
30.4.1 no Default has occurred and that no Obligor is in breach of
its obligations under any of the Finance Documents; and
30.4.2 each representation made by an Obligor under or in connection
with any of the Finance Documents is correct,
unless it has, in its capacity as an Agent, received notice to the
contrary from any Party; and
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30.4.3 that the Facility Office of any Bank is that office which has
been notified to it by that Bank for such purpose by ten
Business Days' notice, until such Bank informs the Facility
Agent that it has designated another office as its Facility
Office.
30.5 Agents not responsible to other Parties
Neither the Agents nor the Arrangers are responsible to any other
Party for:
30.5.1 the execution, validity or enforceability of this Agreement
or any documentation or communication delivered or made in
connection therewith;
30.5.2 the accuracy and/or completeness of any information supplied
(whether orally or in writing) by or on behalf of the
Obligors, including the Information Memorandum; or
30.5.3 taking, or omitting to take, any action in connection with
this Agreement, unless such Party suffers loss directly as a
result of such Agent's or such Arranger's negligence or
wilful misconduct.
30.6 Delegation and advisers
Each Agent may:
30.6.1 engage, pay for and rely on the advice or services of any
expert or professional (whether a lawyer, accountant,
surveyor or otherwise); and
30.6.2 act through any of its, or its Affiliates', personnel and
agents.
30.7 Indemnity
Upon demand by an Agent, each Bank shall, in its Proportion,
indemnify such Agent from and against any liabilities, costs,
claims, losses and expenses, including legal fees, and any
applicable VAT which it may incur in any way relating to or arising
out of it acting in its capacity as an Agent, unless incurred solely
as a result of such Agent's negligence or wilful misconduct.
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30.8 Resignation of an Agent
30.8.1 Each of the Agents may (having previously informed the
Original Borrower of its intention to do so) resign its
appointment under this Agreement by giving notice to that
effect to each of the other Parties stating whether or not it
has appointed its Affiliate as its successor. An Agent's
resignation shall not become effective until a successor has
been appointed pursuant to this clause 30.8 (Resignation of
an Agent).
30.8.2 If the successor to an Agent is to be:
30.8.2.1 one of its Affiliates, such Affiliate shall become
the Facility Agent or, as the case may be, the
Dollar Swing-Line Agent under this Agreement upon
notice to that effect being given by the resigning
Agent and its successor to each of the other
Parties; or
30.8.2.2 other than one of its Affiliates, its successor
shall be appointed by the Majority Banks with the
prior approval of the Original Borrower, such
approval not to be unreasonably withheld or delayed.
If the Majority Banks have not appointed a successor
within 30 days of an Agent's notice given under (a)
above, the relevant Agent may appoint its successor,
such appointment becoming effective upon notice to
that effect being given by the resigning Agent and
its successor to each of the other Parties.
30.8.3 After a successor to an Agent has been appointed, the
retiring Agent shall continue to be entitled to the benefits
of this clause 30 (The Agents) and its successor and each of
the Parties shall have the same rights and obligations
amongst themselves as if the successor had been a Party to
this Agreement instead of the retiring Agent.
30.8.4 The retiring Agent will make available to its successor any
documents, records and advice which its successor reasonably
requires in order to enable it to perform its functions as an
Agent.
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30.9 Separate entity
Each of the Agent's agency divisions shall be treated as a separate
entity from any of its other departments or divisions. Therefore,
unless an Agent receives any information concerning any Group Member
in connection with this Agreement or the facilities contemplated by
this Agreement in its capacity as an Agent, it shall be entitled to
treat that information as confidential.
30.10 Banks to make own appraisals
It is understood and agreed by each Bank that it has itself been,
and will continue to be, solely responsible for making its own
independent appraisal of and investigations into the financial
condition, creditworthiness, condition, affairs, status and nature
of each Obligor, and accordingly, each Bank confirms to each of the
Agents that it has not relied and will not thereafter rely on such
Agent:
30.10.1 to check or enquire on its behalf into the adequacy,
accuracy or completeness of any information provided by an
Obligor in connection with this Agreement or the
transactions herein contemplated (whether or not such
information has been or is hereafter circulated to such Bank
by such Agent); or
30.10.2 to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or
nature of an Obligor.
30.11 Miscellaneous provisions
30.11.1 Each of the Agents and the Arrangers shall, if they are also
a Bank, have the same rights and obligations under this
Agreement as if they were not an Agent or an Arranger and
exercise those rights and perform those obligations
accordingly.
30.11.2 Each of the Agents and Arrangers may contract any banking or
other business with any Group Member.
30.11.3 None of the Banks will assert against any individual any
claim which it may have against either of the Agents or any
of the Managers.
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31. TRANSFERS
31.1 Obligors
No Obligor may assign, transfer, novate or dispose of all or any of
its rights or obligations under any of the Finance Documents.
31.2 Banks
31.2.1 Subject to clause 31.2.3, any Bank (the "Existing Bank") may,
at any time, assign, transfer or novate all or any part of
its rights, benefits and obligations under this Agreement to
another financial institution (the "New Bank") by, in the
case of a transfer or a novation, delivering, or causing to
be delivered, to the Facility Agent a Novation Certificate
duly completed and executed by the Existing Bank and the New
Bank and to be executed upon receipt by the Facility Agent
Provided that, if the Existing Bank is a Dollar Swing-Line
Bank, unless the transfer or novation is to an Affiliate of
such Existing Bank, it shall transfer or novate its Revolving
Commitment and its Dollar Swing-Line Commitment pro rata.
31.2.2 Unless the proposed assignment, transfer or novation is to
another Bank or an Affiliate of a Bank (which is a Qualifying
Bank), or an Event of Default has occurred and is continuing,
the prior consent of the Original Borrower shall be required.
31.2.3 If, at the time of an assignment, a transfer or novation of
all or any part of the rights or obligations of a Bank
pursuant to the terms of the Finance Documents or any change
in a Bank's Facility Office, or immediately thereafter, or if
a payment of principal, interest or otherwise was to be made
by an Obligor under the Finance Documents at such time to or
for the account of the proposed New Bank or, as the case may
be, such Bank (the "Relevant Bank"), an Obligor would (due to
any law, regulation, treaty, official directive in existence
or the subject of a formal and public proposal by any
competent authority at that time) be liable to pay any
additional amount or compensation in accordance with the
Finance Documents, then the Relevant Bank shall be entitled
to receive those amounts only to the extent that the Relevant
Bank
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would have been so entitled had there been no such
assignment, transfer, novation or change in Facility Office.
31.2.4 The Original Borrower shall not unreasonably withhold or
delay in giving its consent to any requested assignment,
transfer or novation under this Agreement.
31.3 Time of transfer
Upon execution of a Novation Certificate by the New Bank, the
Existing Bank and the Facility Agent (or if later, the date
specified for this purpose in the Novation Certificate) and to the
extent that they are expressed to be subject to the transfer stated
therein:
31.3.1 the Existing Bank shall be released from its obligations to
each other Party (the "released obligations") and each other
Party shall be released from its obligations to the Existing
Bank;
31.3.2 the New Bank will assume obligations towards each other Party
which differ from the released obligations only in so far as
they are owed to or assumed by the New Bank and not the
Existing Bank;
31.3.3 the rights of the Existing Bank against the other Parties and
vice versa (the "cancelled rights") will be cancelled; and
31.3.4 the New Bank and the other Parties will acquire rights
against each other which differ from the cancelled rights
only insofar as they are exercisable by or against the New
Bank and not the Existing Bank.
Each Party (other than the Existing Bank and the New Bank)
irrevocably authorises the Facility Agent to execute each Novation
Certificate on its behalf.
31.4 Administration fee
Not later than on the date a transfer becomes effective in
accordance with clause 31.3 (Time of transfer), the New Bank will
pay to the Facility Agent, for its own account, an administration
fee of (pound)950.
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31.5 Disclosure of information
31.5.1 Any Finance Party may provide to a Permitted Recipient a copy
of this Agreement and such information concerning the Group
as it considers appropriate.
31.5.2 A "Permitted Recipient" means, in respect of any Finance
Party:
31.5.2.1 its Affiliates;
31.5.2.2 any Person which it is considering entering into
contractual relations with in connection with this
Agreement (being a financial institution which
purports to be a Qualifying Bank);
31.5.2.3 its advisers;
31.5.2.4 the courts, regulatory and other bodies in
accordance with whose orders or regulations it is
required or is accustomed to comply; and
31.5.2.5 any other Person who that Finance Party reasonably
considers appropriate to receive such information in
order to protect or preserve that Finance Party's
position.
Provided always that no such disclosure shall be made by a
Bank unless such Bank has, prior thereto, consulted with the
Original Borrower in relation to the nature of the
information so to be disclosed (such consultation obligation
to be without prejudice to a Bank's right to effect such a
disclosure irrespective of the results of such consultation)
and provided further that no consultation will be required in
the case of disclosure to a sub-participant if such
disclosure is limited to the Finance Documents, publicly
available information, details of Utilisations hereunder and
details of compliance or non-compliance by an Obligor with
the provisions of the Finance Documents.
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32. REDISTRIBUTION PROVISIONS
32.1 Redistributions
32.1.1 Subject to clause 32.3 (Exceptions), if all or any part of an
Obligor's obligations under this Agreement owed to any
Finance Party are discharged, whether in relation to the
Revolving Facility or, if applicable, the Dollar Swing-Line
Facility and whether by way of set-off, payment, combination
of accounts or otherwise, other than as a result of the
relevant Agent receiving payment and distributing such
payment in accordance with clause 15 (Payments), that Finance
Party (the "Recovering Party") shall promptly pay to the
Facility Agent an amount equal to the amount so discharged
(the "Discharged Amount").
32.1.2 The Facility Agent shall treat each Discharged Amount
received by it from a Recovering Party as if it had received
the Discharged Amount from the relevant Obligor and
distribute it amongst the Finance Parties (including the
Recovering Party) in accordance with clause 15.2
(Distribution by Agent).
32.1.3 Upon a Discharged Amount being distributed by the Facility
Agent, the relevant Recovering Party shall be subrogated to
the rights of each of the other Finance Parties which
received such a distribution to the extent of such
distribution and the relevant Obligor will owe the Recovering
Party a debt which is equal to the amount so distributed to
each of the other Finance Parties.
32.2 Repayment of a Discharged Amount
If a Recovering Party is required to return or repay an amount which
it determines relates to a Discharged Amount made by it under clause
32.1 (Redistributions), it shall promptly inform the Facility Agent.
Each of the Finance Parties (other than the Recovering Party which
received a payment as a result of the Discharged Amount being
distributed) shall pay to the Facility Agent (for the account of the
Recovering Party) all that it has received of the Discharged Amount.
Upon such payment being made, the rights of subrogation provided in
clause 32.1.3 (Redistributions) above shall be operated in reverse
to the extent of the reimbursement.
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32.3 Exceptions
32.3.1 A Recovering Party is not obliged to pay any amount under
clause 32.1 (Redistributions) if, in its opinion (acting
reasonably), after such payment it would not have a valid
claim against the relevant Obligor by way of subrogation or
otherwise in respect of such payment.
32.3.2 A Finance Party shall not be obliged to make any payment
under clause 32.1 (Redistributions) if the obligations owed
to that Finance Party are discharged as a result of it
receiving payment from a New Bank in respect of a Novation
Certificate.
32.3.3 A Recovering Party which has commenced or joined in an action
or proceeding in any court to recover any amount due to it
under this Agreement and pursuant to a judgment obtained in
such court or a settlement or compromise of that action or
proceeding shall have received any amount, shall not be
obliged to share all or any proportion of that amount with
any Finance Party which has the legal right to, but does not,
join in such action or proceeding or commence and diligently
prosecute a separate action or proceeding to enforce its
rights under this Agreement in the same or another court.
32.4 Re-Allocation - Determination
Following the occurrence of an Event of Default and the Facility
Agent having been instructed by the Majority Banks to deliver a
written notice to the Original Borrower pursuant to clause 24.1
(Events of Default), and without prejudice to the other provisions
of this clause 32 (Redistribution Provisions),
32.4.1 the Facility Agent shall determine, in respect of each Bank,
the Sterling Amount of such Bank's outstanding Advances
(including, for the avoidance of doubt, if such Bank (or its
Affiliate) is a Dollar Swing-Line Bank, the Sterling Amount
of its outstanding Dollar Swing-Line Advances); and
32.4.2 the Facility Agent shall determine the Sterling Amount of a
Bank's aggregate outstanding Advances, when expressed as a
percentage of the aggregate Sterling Amount of all
outstanding Advances (in respect of such Bank, its
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"Advances Percentage") and such Bank's Revolving Commitment
expressed as a percentage of the Total Revolving Commitments
at such time (in respect of such Bank, its "Commitment
Percentage"), following which it shall determine whether such
Bank's Advances Percentage is greater than, equal to or less
than such Bank's "Commitment Percentage" and promptly notify
each Bank of its determination.
32.5 Re-Allocation - Notification
If a Bank is informed by the Facility Agent pursuant to clause 32.4
(Re-Allocation - Determination) above that its Advances Percentage
is less than its Commitment Percentage it shall pay to the Facility
Agent such amount(s) and in such currency or currencies as the
Facility Agent shall inform it for these purposes so as to enable
the Facility Agent to redistribute the same together with any other
amounts required to be paid to the Facility Agent at such time
pursuant to this clause 32.5 (Re-Allocation - Notification) to such
Bank or Banks that have an Advances Percentage greater than their
respective Commitment Percentage such that following each
redistribution required to be made pursuant to this clause 32.5
(Re-allocation - Notification) each Bank's Advances Percentage is
equal to its respective Commitment Percentage.
32.6 Re-Allocation - Transfers
Following the redistributions referred to at clause 32.5
(Re-Allocation Notification) the provisions of clause 31 (Transfers)
shall, to the extent the required payments were made thereunder, be
deemed to apply such that following such payments the Advances
Percentage of each Bank shall equal such Bank's Commitment
Percentage whereupon the Facility Agent shall confirm to each of the
Banks their respective outstanding Advances, the currency thereof,
the Sterling Amount thereof, the date each such Advance was made,
the identity of the respective Borrower and such other details
relating thereto as the Facility Agent considers appropriate.
33. CALCULATIONS AND EVIDENCE OF DEBT
33.1 Calculations
Interest and each commitment fee payable pursuant to clause 28.1
(Commitment fees) shall accrue from day to day and shall be
calculated on the basis of a year of 365 days
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84
or, in the case of an Alternative Currency, 360 days (or, if market
practice differs, in accordance with market practice) and the actual
number of days elapsed.
33.2 Accounts
Each of the Banks shall, in accordance with its usual practices,
maintain on its books an account reflecting the amount which it has
lent and the amount owing to it under this Agreement from time to
time.
33.3 Control account
Each Agent shall, in accordance with its usual practices, maintain
on its books a control account reflecting any amounts received or
recovered by it in connection with this Agreement and any amounts
which are payable by any Party in connection with this Agreement and
the Parties' respective interests in such amounts.
33.4 Actual amount received
The amount owed by any Obligor to any Finance Party under this
Agreement shall be reduced by the amount actually received or
recovered by such Finance Party and not by reference to any rate of
exchange applied by any court or other body in calculating how much
is payable by that Obligor under any judgment or order given in
connection with this Agreement.
33.5 Prima facie evidence
The accounts referred to in clauses 33.2 (Accounts) and 33.3
(Control account) are prima facie evidence of the amount and details
recorded in those accounts.
33.6 Certificates and determinations
Any certificate delivered or determination made by a Finance Party
of a rate or an amount shall, in the absence of manifest error, be
conclusive evidence of the matters to which such certificate or
determination relates.
33.7 Reference Banks
33.7.1 If any Reference Bank fails to provide the Facility Agent
with a quotation when required for the purposes of this
Agreement, the rate for which such
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85
quotation was required shall, provided that at least two such
quotations are so provided, be determined by reference to the
quotations that are received by the Facility Agent.
33.7.2 Additional or replacement banks may, by agreement between the
Original Borrower and the Majority Banks, be appointed as a
Reference Bank.
34. AMENDMENTS AND WAIVERS
34.1 Majority Banks
Unless prohibited by clause 34.2 (All Banks), clause 34.3 (All
Parties) or clause 34.4 (The Agents), any provision of this
Agreement may be amended, waived or supplemented or any consent
given by written agreement made between the Original Borrower and
the Majority Banks or, if the Facility Agent has received the
Majority Banks' prior approval, the Facility Agent on their behalf.
34.2 All Banks
The provisions contained in this Agreement and which relate to the
following shall not be amended, supplemented or modified or any
consent given without the prior consent of all Parties (other than
the Facility Agent):
34.2.1 the definitions of "Final Repayment Date", "Majority Banks",
and "Repayment Date";
34.2.2 any provision of this Agreement which expressly requires the
consent of each Bank and, in particular, the provisions of
clause 2.5 (Nature of Banks' Obligations and Rights), 25
(Guarantee), 31 (Transfers) or 32 (Redistributions); and
34.2.3 any provision having the effect of changing the amount of the
Revolving Facility, the Dollar Swing-Line Facility, a
Revolving Bank's Revolving Commitment or Available Revolving
Commitment or a Dollar Swing-Line Bank's Dollar Swing-Line
Commitment or Available Dollar Swing-Line Commitment or have
the effect of decreasing the amount or changing the currency
of any amount (whether principal, interest, fees or
otherwise)
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86
payable to an Agent or a Bank under this Agreement or
extending the Term of an Advance.
34.3 All Parties
Without the prior consent of all Parties, this clause 34 (Amendments
and Waivers) may not be amended, waived of supplemented.
34.4 The Agents
Without the prior consent of the Facility Agent or, as the case may
be, the Dollar Swing-Line Agent, none of such Facility Agent's or,
as the case may be the Dollar Swing-Line Agent's rights or
obligations under this Agreement may be amended, waived or
supplemented.
35. NOTICES
35.1 Method of delivery
All notices or other communications made or given in connection with
this Agreement shall be made in writing by facsimile, letter or
telex.
35.2 Addresses
Each communication or document to be made or delivered in connection
with this Agreement to a Party shall be delivered or sent to the
address or facsimile number that has been:
35.2.1 notified to the Facility Agent by that Party before it became
a Party; or
35.2.2 notified to the Facility Agent by at least five Business
Days' notice.
35.3 Agents' details
Unless an Agent has given the other Parties five Business Days'
notice to that effect, its address, telex and facsimile number are:
35.3.1 Facility Agent:
35.3.1.1 Bank House
--------------------------------------------------------------------------------
▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
35.3.1.2 N/A
35.3.1.3 0117 923 3367
35.3.1.4 Loans Administration Department
35.3.2 Dollar Swing-Line Agent:
35.3.2.1 ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ Seaport Station
▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
35.3.2.2 N/A
35.3.2.3 001 212 607 4999/5410
35.3.2.4 Corporate Banking Department
35.4 Receipt of notices
35.4.1 Any notice or communication will be deemed to have been
given, if sent by post, when delivered and, if by facsimile,
when received. However, if the notice or communication is for
an Agent, it shall only be effective when the same is
received by the department or the officer referred to at,
clause 35.3 (Agents' details) or as otherwise notified by
such Agent under that clause.
35.4.2 Any notice or communication to be delivered to any Obligor
shall be deemed to have been delivered to such Obligor if
delivered to the Original Borrower in accordance with this
Agreement.
35.4.3 The Original Borrower shall forthwith on demand indemnify
each Finance Party against any direct loss or liability which
that Finance Party incurs (and that Finance Party shall not
be liable to an Obligor in any respect) as a consequence of:
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88
35.4.3.1 any Person to whom any notice or communication under
or in connection with this Agreement is sent by
facsimile failing to receive that notice or
communication (unless such loss or liability is
directly caused by that Person's negligence or
wilful default); or
35.4.3.2 any facsimile communication which appears to that
Finance Party (acting reasonably) to have been sent
by an Obligor having in fact been sent by a Person
other than an Obligor.
36. PARTIAL INVALIDITY
If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, it shall
not affect or impair the legality, validity or enforceability of:
36.1 any other provision of this Agreement; or
36.2 that provision, under the law of any other jurisdiction.
37. REMEDIES AND WAIVERS
37.1 If any of the Finance Parties do not exercise, or delay in
exercising, any of their respective rights or remedies under or in
connection with this Agreement, it shall not operate as a waiver of
any such right or remedy.
37.2 The single or partial exercise of any right or remedy shall not
prevent any further or other exercise of that right or remedy.
37.3 The rights and remedies provided in this Agreement are additional to
any rights or remedies provided by law.
38. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different Parties on separate counterparts each of which, when executed
and delivered, shall constitute an original and all the counterparts shall
together constitute but one and the same instrument.
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89
39. JURISDICTION
39.1 Courts of England
For the benefit of each Finance Party, each Obligor incorporated outside
England and Wales agrees that the courts of England have jurisdiction to
hear and settle any action, suite, proceeding or dispute arising out of or
in connection with the Finance Documents to which it is a party and
therefore irrevocably submits to the jurisdiction of those courts.
39.2 Non-exclusivity
The submission to the jurisdiction of the English courts does not restrict
the right of a Finance Party to take proceedings against any such Obligor
arising out of or in connection with the Finance Documents to which it is
a party in any other court of competent jurisdiction, whether concurrently
or not.
39.3 Service of process agent
39.3.1 In addition to any other appropriate method of service, each
such Obligor irrevocably agrees that any suit, action or
proceeding arising out of or in connection with the Finance
Documents may be served on it by being delivered to United
News & Media Plc at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or its registered office and confirms that it
has appointed United News & Media Plc as its agent for such
purpose.
39.3.2 Each such Obligor confirms that failure by its process agent
to notify it of receipt of any process will not invalidate
the proceedings to which it relates.
39.3.3 If the appointment of a process agent ceases to be effective,
each such Obligor shall immediately appoint a further Person
in England as its process agent in respect of this Agreement
and notify the Facility Agent of such appointment. If such a
Person is not appointed within 15 days the Facility Agent
shall be entitled to appoint such a Person.
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90
39.4 Non-convenience of forum
Each such Obligor confirms that the English courts are not an inconvenient
forum and irrevocably waives any right it may have to object to them on
the grounds of inconvenience or otherwise.
40. GOVERNING LAW
This Agreement is governed by and shall be construed in accordance with
English law.
This Agreement has been entered into by the Parties on the date stated at
the beginning of this Agreement.
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91
SCHEDULE 1
Part A
The Revolving Banks
Name of Revolving Bank Revolving Commitment (pound)
First Second
Date hereof increase increase
The Chase Manhattan Bank 37,975,000 40,425,000 49,000,000
Lloyds Bank Plc 37,975,000 40,425,000 49,000,000
The Bank of Nova Scotia 33,712,500 35,887,500 43,500,000
The Bank of Tokyo-Mitsubishi, Ltd 33,712,500 35,887,500 43,500,000
Banque Nationale de Paris London 33,712,500 35,887,500 43,500,000
Branch
The Dai-Ichi Kangyo Bank, Limited 33,712,500 35,887,500 43,500,000
Den Danske Bank Akktieselskab 33,712,500 35,887,500 43,500,000
Dresdner Bank AG London Branch 33,712,500 35,887,500 43,500,000
The Fuji Bank, Limited 33,712,500 35,887,500 43,500,000
Midland Bank plc 33,712,500 35,887,500 43,500,000
▇▇▇▇▇▇ Guaranty Trust Company of 33,712,500 35,887,500 43,500,000
New York
National Westminster Bank Plc 33,712,500 35,887,500 43,500,000
Societe Generale Finance (Ireland) 33,712,500 35,887,500 43,500,000
Limited
Westdeutsche Landesbank 33,712,500 35,887,500 43,500,000
Girozentrale, London Branch
Banque Paribas 27,125,000 28,875,000 35,000,000
C.I.B.C. Wood Gundy Ireland Ltd. 27,125,000 28,875,000 35,000,000
The Sumitomo Bank, Limited 27,125,000 28,875,000 35,000,000
ABN AMRO Bank N.V 19,375,000 20,625,000 25,000,000
Banca Nazionale del Lavoro S.p.A., 19,375,000 20,625,000 25,000,000
London
Bank of Montreal 19,375,000 20,625,000 25,000,000
Bankers Trust Company 19,375,000 20,625,000 25,000,000
Bayerische Landesbank 19,375,000 20,625,000 25,000,000
Girozentrale, London Branch
Kredietbank N.V., London Branch 19,375,000 20,625,0002 5,000,000
The Nikko Bank (UK) Plc 19,375,000 20,625,000 25,000,000
The Sakura Bank, Limited 19,375,000 20,625,000 25,000,000
The Toronto-Dominion Bank 19,375,000 20,625,000 25,000,000
Union Bank of Switzerland 19,375,000 20,625,000 25,000,000
Westpac Banking Corporation 19,375,000 20,625,000 25,000,000
Totals 775,000,000 825,000,000 1,000,000,000
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92
SCHEDULE 1
Part B
The Dollar Swing-Line Banks
Dollar Swing-Line Bank Dollar Swing-Line Commitment (US$)
The Chase Manhattan Bank 33,333,333.34
Lloyds Bank Plc 33,333,333.34
▇▇▇▇▇▇ Guaranty Trust Company of New York 33,333,333.33
Midland Bank plc 33,333,333.33
NatWest Bank Plc New York Branch 33,333,333.33
The Toronto-Dominion Bank, Houston Branch 33,333,333.33
Totals 200,000,000.00
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93
SCHEDULE 2
Conditions Precedent
1. The Original Borrower and each Original Subsidiary Borrower shall deliver
(in respect of itself):
1.1 A Certified Copy of its Memorandum and Articles of Association (or
its equivalent constitutive documents), its certificate of
incorporation and any changes of name which are applicable to it.
1.2 A Certified Copy of its board resolution relating to the Agreement
and the transactions contemplated under it.
1.3 Specimen signatures of its Authorised Signatories.
1.4 A certificate of an Authorised Signatory confirming that, if an
amount equal to the Total Revolving Commitments was drawn down in
one amount, it would not breach any borrowing limit applicable to
that Borrower in its Memorandum and Articles of Association (or its
equivalent constitutive documents) or in any agreement or contract
to which it is a party or which is binding on it or any of its
assets and that all requisite corporate and other action has been
duly taken to approve the Borrower entering into and performing its
obligations under this Agreement.
2. An opinion of Dibb ▇▇▇▇▇▇ ▇▇▇▇▇, legal advisers to the Facility Agent, in
substantially the form distributed to and approved by the Banks prior to
the date hereof.
3. Evidence that undrawn amounts under the Existing Facilities will be
cancelled on or prior to 21 May 1997.
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94
SCHEDULE 3
Form of Drawdown Request
To: [Lloyds Bank Plc Capital Markets] as Facility Agent and [Lloyds Bank Plc
New York] as Dollar Swing-Line Agent].
From: [Borrower].
Date: [[diamond] ]
Dear Sirs,
Re (pound)1,000,000,000 Multicurrency Revolving Credit Facility dated 12 May
1997 (the "Facility Agreement")
1. We hereby give you notice that, pursuant to the Facility Agreement and
upon the terms and subject to the conditions contained therein, we wish
*[Revolving Advances/[Dollar Swing-Line Advances] to be made to us as
follows:
1.1 ** Currency:
1.2 Requested Amount:
1.3 Drawdown Date:
1.4 **Term:
2. We confirm that, at the date hereof:
2.1 the representations set out in clause 20.1(Continuing
representations) of the Facility Agreement are true and correct in
all material respects; and
2.2 no Event of Default or Potential Event of Default has occurred which
is continuing and has not been waived in writing by the Facility
Agent pursuant to clause 37 (Remedies and Waivers).
3. The Advances should be credited to [insert account details].
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95
4. Terms used in this Drawdown Request and not otherwise defined shall bear
the same meaning as in the Facility Agreement.
5. This Drawdown Request is governed by and shall be construed in accordance
with English law.
Yours faithfully
[Borrower]
Authorised Signatory
*Delete as relevant
**In the case of a Dollar Swing-Line Advance, it shall only be denominated in
Dollars and for a Term not exceeding seven days.
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96
SCHEDULE 4
Form of Novation Certificate
To: Lloyds Bank Plc Capital Markets (the "Facility Agent")
From: [The Existing Bank] (the "Existing Bank") and
[The New Bank] (the "New Bank")
Date: [[diamond] ]
Dear Sirs
Re: (pound)1,000,000,000 Multicurrency Revolving Credit Facility dated 12 May
1997 (the "Facility Agreement")
1. Terms defined in the Facility Agreement and not otherwise defined shall
bear the same meaning in this Novation Certificate.
2. The Existing Bank and the New Bank have agreed to novate such of the
Existing Bank's rights and obligations as are set out in the Schedule to
this Novation Certificate in accordance with clause 31 (Transfers).
3. The date upon which the novation recorded in this Novation Certificate is
to be effective shall be [o ].
4. The Facility Office(s) of the New Bank is (are) as follows:
[Insert details].
5. The New Bank has received a copy of the Facility Agreement and such other
information as it requires in relation to the Facility Agreement and the
transactions contemplated in the Facility Agreement.
6. The New Bank has not, and will not, rely on the Existing Bank or any other
Party, nor do any of the Parties make any representation:
6.1 as to the legality, validity, effectiveness, adequacy, accuracy or
completeness of any information the New Bank has obtained in
connection with or the transactions contemplated in the Facility
Agreement; or
--------------------------------------------------------------------------------
97
6.2 in relation to the financial condition, creditworthiness, condition,
affairs, status or nature of the Borrower.
7. By accepting this Novation Certificate, the New Bank undertakes with each
of the other Parties to the Facility Agreement that it will perform in
accordance with its terms all of the obligations which it assumes as a
result of this Novation Certificate.
8. Nothing contained in or arising out of this Novation Certificate shall
oblige the Existing Bank to:
8.1 accept a re-novation from the New Bank of all or any portion of the
rights and obligations which are novated by this Novation
Certificate; or
8.2 support any losses directly or indirectly suffered by the New Bank
for any reason whatsoever, including non-performance of the Borrower
or any other Party to the Facility Agreement of the obligations
expressed to be assumed by its under the Facility Agreement.
9. The New Bank acknowledges that it has fully considered the implications of
clause 16 (Taxes) and the definition of "Qualifying Bank" as the same
applies to it, having regard to the jurisdiction(s) in which the Obligors
are incorporated, and the provisions of clause 31.2.3.
10. This Novation Certificate is governed by and shall be construed in
accordance with English law.
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98
THE SCHEDULE
1. Total Revolving Commitment:
2. Existing Bank's Revolving Commitment:
3. Existing Bank's Available Revolving Commitment:
4. Existing Bank's outstanding Revolving Advances:
--------------------------------------------------------------------------------
Drawdown Date Amount Borrower Repayment Date
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. [Total Dollar Swing-Line Commitment:
6. Existing Dollar Swing-Line Bank's Dollar Swing-Line Commitment:
7. Existing Dollar Swing-Line Bank's Available Dollar Swing-Line Commitment:
8. Existing Dollar Swing-Line Bank's outstanding Dollar Swing-Line Advances:]
--------------------------------------------------------------------------------
Drawdown Date Amount Borrower Repayment Date
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
99
9. Percentage of Existing Bank's [Revolving Commitment/Dollar Swing-Line
Commitment] [and/,][Available Revolving Commitment/Available Dollar
Swing-Line Commitment] [and outstanding Revolving Advances/Dollar
Swing-Line Advances being novated] is [[diamond] per cent.]
[Name of Existing Bank] [Name of New Bank]
By: By:
Date: Date:
Lloyds Bank Plc Capital Markets
By:
Date:
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100
SCHEDULE 5
Timetable
"DD" = Drawdown Date
"DD - X" = X Business Days prior to Drawdown Date
"Bs" = Banks
"A" = Facility Agent
"DSA" = Dollar Swing-Line Agent
"( )" = clause Number
--------------------------------------------------------------------------------
Sterling Alternative Dollar Swing
Advances Currency Line Advances
(London time) Advances (New York time)
(other than
Dollar
Swing-Line
Advances)
(London time)
--------------------------------------------------------------------------------
1. Delivery of Drawdown DD 9.15am DD - 3 noon DD 10.30am
Request to A (6.1(a))
--------------------------------------------------------------------------------
2. A to notify Bs of DD 10am DD - 3 3pm DD 12 noon
allocation (6.5(a))
--------------------------------------------------------------------------------
3. LIBOR fixing DD 11am DD - 2 11am
--------------------------------------------------------------------------------
4. B to notify A that DD - 2 12 noon
unable to fund
Alternative Currency
Advance (7.1)
--------------------------------------------------------------------------------
5. A to notify relevant DD - 2 3pm
Borrower that B is
unable to fund
Alternative Currency
Advance (7.2)
--------------------------------------------------------------------------------
6. Advance made to DD DD DD 2.30pm
specified
account/Transfer of
funds and advice to
Dollar Swing-Line Agent
of Federal Reserve Bank
with number
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
101
SCHEDULE 6
Mandatory Liquid Asset Costs Formula
9. The Mandatory Liquid Asset Costs for each Advance or Overdue Amount
denominated in Sterling shall be calculated in accordance with the
following formulae:
Mandatory Liquid=AB+C(B-D) + E (B-F)% per annum
Asset Rate 100 - (A+E)
Where, on the day the formula is applied:
A is the percentage of Facility Agent's eligible liabilities which it
is required by the Bank of England, to hold on a non-interest
bearing deposit account.
B is the rate at which the Facility Agent offers to leading banks
Sterling deposits in the London interbank market at or about 11.00
a.m. on that date for the relevant Term or Default Interest Period.
C is the percentage of eligible liabilities which the Facility Agent
is required by the Bank of England to maintain with financial
institutions (recognised for this purpose by the Bank of England).
D is the average of the rates at which financial institutions
(recognised for this purpose by the Bank of England) are bidding for
Sterling deposits at or about 11.00 a.m. on that date for the
relevant Term or Default Interest Period.
E is the percentage of the Facility Agent's eligible liabilities which
it is required by the Bank of England to place as a special deposit.
F is the rate of interest, per annum, paid by the Bank of England on
special deposits.
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102
1. In this Schedule 6 "eligible liabilities" and "special deposits" have the
meanings given to them, at the date the formula is applied, by the Bank of
England.
2. Each of A, B, C, D, E and F are to be included in the formula as figures
and not as percentages. Therefore if A = 0.5% and B = 10%, AB = 5 and not
5%.
3. If more than one rate is provided in respect of the above formula, the
applicable rate shall be the average of the rates so provided, rounded up
to five decimal places.
4. If the Facility Agent determines that the application of the above formula
is no longer appropriate as a result of a change occurring after the date
of this Agreement, the Facility Agent shall notify the Borrower and the
Banks of such fact and the manner in which the
5. Mandatory Liquid Asset Costs Rate shall be determined, and, if
appropriate, shall substitute a new formula. Any determination made by the
Facility Agent shall, in the absence of manifest error, be binding on all
the Parties.
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103
SCHEDULE 7
Form of Subsidiary Borrower's Accession Memorandum
To: Lloyds Bank Plc Capital Markets
From: [proposed Subsidiary Borrower] and United News & Media Plc on behalf of
the Obligors
Date: [[diamond] ]
Dear Sirs,
Re (pound)1,000,000,000 Multicurrency Revolving Credit Agreement dated 12 May
1997 (the "Agreement")
1. We hereby give you notice that we wish [proposed Borrower] of [address,
facsimile] a company incorporated in [[diamond] ] to become a
Borrower pursuant to clause 26 (Accession and Cessation of Subsidiary
Borrowers) of the Agreement.
2. As contemplated by the provisions of the Agreement we [proposed Borrower],
shall accordingly become entitled to utilise the Facility available to the
Subsidiary Borrower(s) under the Agreement in accordance with the terms
and conditions thereof and undertake with each of the Finance Parties and
each of the Obligors to be bound by the terms and conditions of the
Agreement as if we were one of the existing Borrowers thereunder.
3. We confirm that at the date hereof the representations set out in clause
20.1 ( Continuing representations)), of the Agreement are, save as
otherwise agreed by the Banks, true and that so far as we are aware no
Default has occurred which has not been remedied or waived.
4. We enclose herewith in respect of [proposed Subsidiary Borrower] the
documents and evidence listed in schedule 8 (Documents to accompany
Subsidiary Borrower's Accession Memorandum).
5. Unless expressly provided for, or the context otherwise requires, terms
and expressions used in the Agreement shall have the same meanings when
used herein.
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104
6. This document shall be governed by, and construed in accordance with,
English law.
7. [We irrevocably agree for the benefit of each of the Finance Parties that
the courts of England shall have jurisdiction to hear and determine any
suit, action or proceeding, and to settle any disputes, which may arise
out of or in connection with this document and for the purposes of any
suit, action or proceeding arising out of or in connection with this
document we irrevocably submit to the jurisdiction of the courts of
England and hereby appoint United News & Media Plc of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ as our agent to receive service of
process in respect of any such suit action or proceeding.]*
8. [We irrevocably waive any objection which we may have now or hereafter to
the courts of England being nominated as the forum to hear and determine
any suit, action or proceeding, and to settle any disputes, which may
arise out of or in connection with this document and any claim that such
court is not a convenient or appropriate forum.]*
9. [The submission to the jurisdiction of the courts of England shall not
(and shall not be construed so as to) limit the right of the Facility
Agent and the Banks to take proceedings against us in whatsoever
jurisdictions shall to it or them seem fit nor shall the taking of
proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction (whether concurrently or not) and to
the extent permitted by applicable law.]*
10. [PLEASE NOTE - AS WE ARE INCORPORATED IN [[diamond] ] AND NOT
INCORPORATED IN ENGLAND AND WALES IT IS IMPORTANT THAT EACH BANK, WHEN
DETERMINING WHETHER TO GIVE ITS APPROVAL TO OUR ACCESSION TO THE
AGREEMENT, CONSIDERS THE IMPLICATIONS (IF ANY) THAT MAY ARISE AS A RESULT
THEREOF, PAYING PARTICULAR REGARD TO CLAUSE 16 (TAXES), OUR OBLIGATIONS
THEREUNDER AND THE DEFINITION OF "QUALIFYING BANK" AT CLAUSE 1.1
(DEFINITIONS)]
Yours faithfully,
...............................
for and on behalf of
[proposed Subsidiary Borrower]
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105
...............................
for and on behalf of
UNITED NEWS & MEDIA PLC
(on behalf of the Obligors)
*Delete if Acceding Subsidiary Borrower is incorporated in England and Wales
To: [proposed Subsidiary Borrower] and United News & Media Plc
From: Lloyds Bank Plc Capital Markets
Date: [[diamond] ]
We acknowledge receipt of a Subsidiary Borrower's Accession Memorandum dated
[[diamond] ] and agree to the terms thereof and confirm herewith that
we have received from you each of the documents mentioned in Schedule 8
(Documents to accompany Subsidiary Borrower's Accession Memorandum) to the
Agreement and that such documents are in form and substance satisfactory to us.
Accordingly, the proposed Subsidiary Borrower has become a Subsidiary Borrower
under the Agreement.
..............................
For and on behalf of
LLOYDS BANK PLC CAPITAL MARKETS
(on behalf of the Finance Parties)
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106
SCHEDULE 8
Documents to Accompany Subsidiary Borrower's Accession Memorandum
1. The proposed Subsidiary Borrower shall deliver:
1.1 A Certified Copy of its constitutive documents.
1.2 A Certified Copy of its board resolution:
1.2.1 approving the execution, delivery and performance by the
proposed Borrower of a Subsidiary Borrower Accession
Memorandum in the form set out in Schedule 7 (Form of
Subsidiary Borrower's Accession Memorandum) and each of the
Finance Documents to which it is expressed to be a party and
other documents to be delivered pursuant thereto and the terms
and conditions thereof and authorising a named person or
persons to sign the Subsidiary Borrower's Accession
Memorandum, the Finance Documents and such other documents and
to give any notices on behalf of the proposed Subsidiary
Borrower in connection with such Finance Documents, or to give
such notices, to another person or persons; or
1.2.2 appointing a committee of the directors of the proposed
Subsidiary Borrower with authority to give the approvals and
authorisations referred to in (i) above on behalf of the board
of directors of the proposed Subsidiary Borrower,
and, in the case of (ii) above, a Certified Copy of a resolution of
the committee of directors referred to in (ii) above giving the
approvals and authorisations referred to in (i) above.
1.3 A list of its Authorised Signatories.
1.4 A certificate of an Authorised Signatory of the proposed Subsidiary
Borrower confirming that neither the execution and delivery of the
Subsidiary Borrower's Accession Memorandum and the Finance Documents
to which the proposed Subsidiary Borrower is expressed to be a party
nor the exercise of the proposed Subsidiary Borrower's rights, and
the performance of the proposed Subsidiary Borrower's
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obligations, under such Subsidiary Borrower's Accession Memorandum
and Finance Documents would result in any breach of the proposed
Subsidiary Borrower's constitutive documents if the proposed
Borrower were to utilise the Facility in an aggregate amount of
equal to the Total Commitments on the date hereof.
1.5 An opinion of the proposed Subsidiary Borrower's English counsel
addressed to the Facility Agent and acceptable to the Banks.
2. In relation to any proposed Borrower not incorporated in any part of the
United Kingdom:
2.1 evidence that United News & Media Plc has agreed to act as the
proposed Subsidiary Borrower's service of process agent; and
2.2 an opinion of the proposed Subsidiary Borrower's local counsel
addressed to the Facility Agent and acceptable to the Banks.
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SCHEDULE 9
Form of Subsidiary Borrower's Cessation Notice
To: Lloyds Bank Plc Capital Markets
Dated:
Dear Sirs
(pound)1,000,000,000 MULTI-CURRENCY REVOLVING CREDIT FACILITY - UNITED NEWS &
MEDIA PLC AND OTHERS
1. We confirm that, [name of retiring Subsidiary Borrower] is under no
obligation (whether actual or contingent) to make any payment under the
Facility Agreement, and that no Default has occurred under the Agreement
which (in either case) has not been remedied.
2. Accordingly, pursuant to clause 26.3 (Cessation of Subsidiary Borrower) of
the Facility Agreement and with effect from your receipt of this notice,
[name of retiring Subsidiary Borrower] shall cease to be a Subsidiary
Borrower under the Agreement.
Yours faithfully
..............................
for and on behalf of
UNITED NEWS & MEDIA PLC
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SCHEDULE 10
Form of Compliance Certificate
From: United News & Media PLC
To: Lloyds Bank PLC Capital Markets
Date:[[diamond] ]
Dear Sirs,
Re: (pound)1,000,000,000 Multicurrency Revolving Credit Agreement dated 12 May
1997 (the "Facility Agreement")
1. We are writing to you in your capacity as Facility Agent under the
Facility Agreement.
2. We refer to (a) the [relevant financial statements delivered pursuant to
clause 21.1.1/21.1.2] and 21.1.2 clause 20.321 (Financial Condition of the
Group) of the Facility Agreement and confirm that in respect of the
[relevant period ended [[diamond] ]], Consolidated Profit
Before Interest and Tax was [[diamond] ] and Consolidated Net
Finance Charges were [[diamond] ].
3. We therefore confirm that the [financial condition] referred to in clause
22 (Financial Condition of the Group) was satisfied as at
[[diamond] ].
4. *[4. The Adjusted Share Capital and Reserves is: [[diamond] ].
5. This Compliance Certificate relates to the period ended,
[[diamond] ] and is given on the basis of the accounting
information contained in the above referred to financial statements.
6. Terms used in this Compliance Certificate and not otherwise defined shall
bear the same meaning as in the Facility Agreement.
7. This Compliance Certificate is governed by and shall be construed in
accordance with English law.
Yours faithfully
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110
Signed:[Director]
UNITED NEWS & MEDIA PLC
*Only required when the Compliance Certificate relates to the Original
Borrower's annual audited financial statement.
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111
EXECUTION PAGES
The Borrower
UNITED NEWS & MEDIA PLC
By: ▇.▇. ▇▇▇▇▇
The Subsidiary Borrowers
MAI PLC
By: ▇.▇. ▇▇▇▇▇
UNITED FINANCE LIMITED
By: ▇.▇. ▇▇▇▇▇
The Arrangers
CHASE INVESTMENT BANK LIMITED
By: ▇.▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇
LLOYDS BANK PLC Capital Markets
By: ▇.▇. ▇▇▇▇▇▇▇
The Facility Agent
LLOYDS BANK PLC Capital Markets
By: ▇.▇. ▇▇▇▇▇▇▇
The Dollar Swing-Line Agent
LLOYDS BANK PLC Capital Markets
By: ▇.▇. ▇▇▇▇▇▇▇
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The Revolving Banks
THE CHASE MANHATTAN BANK
By: ▇.▇. ▇▇▇▇▇
LLOYDS BANK PLC
By: ▇.▇. ▇▇▇▇▇
THE BANK OF NOVA SCOTIA
By: ▇.▇. ▇▇▇▇▇▇▇▇
THE BANK OF TOKYO-MITSUBISHI, LTD
By: ▇.▇. ▇▇▇▇▇
BANQUE NATIONALE DE PARIS LONDON BRANCH
By: ▇.▇. ▇▇▇▇
THE DAI-ICHI KANGYO BANK, LIMITED
By: ▇.▇. ▇▇▇▇▇▇
DEN DANSKE BANK AKKTIESELSKAB
By: ▇.▇. ▇▇▇▇▇▇ S.E.L. ▇▇▇▇▇▇▇▇
DRESDNER BANK AG LONDON BRANCH
By: ▇.▇. ▇▇▇▇▇
THE FUJI BANK, LIMITED
By: ▇. ▇▇▇▇▇▇▇
MIDLAND BANK PLC
By: D.A.J. ▇▇▇▇▇▇
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▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By: ▇. ▇▇▇▇▇
NATIONAL WESTMINSTER BANK PLC
By: ▇.▇. ▇▇▇▇▇
SOCIETE GENERALE FINANCE (IRELAND) LIMITED
By: ▇.▇. ▇▇▇▇▇▇▇
WESTDEUTSCHE LANDESBANK GIROZENTRALE, LONDON BRANCH
By: ▇. ▇▇▇▇▇▇▇▇▇
BANQUE PARIBAS
By: ▇.▇. ▇▇▇▇▇▇
C.I.B.C. WOOD GUNDY IRELAND LTD.
By: ▇. ▇▇▇▇▇
THE SUMITOMO BANK, LIMITED
By: ▇.▇. ▇▇▇▇▇
ABN AMRO BANK N.V.
By: ▇. ▇▇▇▇▇▇
BANCA NAZIONALE DEL LAVORO S.P.A., LONDON BRANCH
By: ▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
BANK OF MONTREAL
By: ▇. ▇▇▇▇▇▇
BANKERS TRUST COMPANY
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114
By: ▇. ▇▇▇▇▇▇▇▇▇
BAYERISCHE LANDESBANK GIROZENTRALE, LONDON BRANCH
By: ▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
KREDIETBANK N.V., LONDON BRANCH
By: ▇. ▇▇▇▇▇▇
THE NIKKO BANK (UK) PLC
By: ▇. ▇▇▇▇▇▇
THE SAKURA BANK, LIMITED
By: ▇. ▇▇▇▇▇▇
THE TORONTO-DOMINION BANK
By: ▇. ▇▇▇▇▇
UNION BANK OF SWITZERLAND
By: ▇. ▇▇▇▇▇▇▇
WESTPAC BANKING CORPORATION
By: ▇. ▇▇ ▇▇▇▇▇
The Dollar Swing-Line Banks
THE CHASE MANHATTAN BANK
By: ▇.▇. ▇▇▇▇▇
LLOYDS BANK PLC
By: ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
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115
By: ▇. ▇▇▇▇▇
MIDLAND BANK PLC
By: D.A.J. ▇▇▇▇▇▇
NATWEST BANK PLC NEW YORK BRANCH
By: ▇.▇. ▇▇▇▇▇
THE TORONTO-DOMINION BANK, HOUSTON BRANCH
By: ▇. ▇▇▇▇▇
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