EXHIBIT 4.13
CONFORMED COPY
DATED 6th March, 2002
SUPPLEMENTAL AGREEMENT
BETWEEN
SPIRENT plc
(formerly known as ▇▇▇▇▇▇▇▇▇ plc)
AND
HSBC INVESTMENT BANK PLC
as Agent
relating to a L315,000,000 and U.S.$200,000,000 CREDIT AGREEMENT
dated 14th June, 1999 (as amended by a supplemental agreement dated
15th July, 1999, a syndication agreement dated 16th August, 1999
and two further supplemental agreements each dated 15th November, 2000)
▇▇▇▇▇ & OVERY
London
INDEX
CLAUSE PAGE
1. Interpretation.........................................................1
2. Amendments.............................................................1
3. Representations........................................................2
4. Fees...................................................................2
5. Miscellaneous..........................................................3
6. Governing law..........................................................3
SCHEDULE
THIS
SUPPLEMENTAL AGREEMENT is dated 6th March, 2002 between:
(1)
SPIRENT plc (formerly known as ▇▇▇▇▇▇▇▇▇ plc) (Registered No. 470893)
(the "COMPANY"); and
(2) HSBC INVESTMENT BANK PLC as agent (in this capacity the "AGENT").
BACKGROUND
(A) This Agreement is supplemental to and amends a credit agreement dated
14th June, 1999, as amended by a
supplemental agreement dated 15th July,
1999, a syndication agreement dated 16th August, 1999 and two further
supplemental agreements, each dated 15th November, 2000 between, among
others, the Company and the Facility Agent (the "CREDIT AGREEMENT").
(B) The Majority Banks (as defined in the Credit Agreement) have consented to
the amendments to the Credit Agreement contemplated by this Agreement.
Accordingly, the Agent is authorised to execute this Agreement on behalf
of the Finance Parties.
(C) The Parties have agreed that as of 23rd November, 2001 Tranche A (of
which U.S $152,000,000 is currently outstanding) would be converted from
a term loan facility to a revolving credit facility.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
Capitalised terms defined in the Credit Agreement have, unless expressly
defined in this Agreement, the same meaning in this Agreement.
"EFFECTIVE DATE"
means 7th March 2002 or such other date as the Company and the Facility
Agent may agree.
"SUPPLEMENTAL FEE LETTER"
means the letter dated the date of this Agreement between the Company and
the Agent setting out the amount of the fee referred to in Clause 4
(Fees).
1.2 CONSTRUCTION
The provisions of Clause 1.2 (Construction) of the Credit Agreement apply
to this Agreement as though they were set out in full in this Agreement
except that references to the Credit Agreement are to be construed as
references to this Agreement.
2. AMENDMENTS
Subject as set out below, the Credit Agreement will be amended and
restated in the form set out in Schedule 2 (Restated Credit Agreement).
The Credit Agreement will not be amended by this Agreement unless the
Agent notifies the Company and the Banks that it has received all of the
documents set out in Schedule 1 in
2
form and substance satisfactory to the Agent on or prior to the Effective
Date. The Agent must give this notification as soon as reasonably
practicable.
If the Agent fails to give the notification under paragraph (a) above by
the Effective Date, the Credit Agreement will not be amended in the
manner contemplated by this Agreement.
3. REPRESENTATIONS
3.1 REPRESENTATIONS
The representations set out in this Clause are made by the Company on the
date of this Agreement to each Finance Party.
3.2 POWERS AND AUTHORITY
It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into and performance of this Agreement and
the transactions contemplated by this Agreement.
3.3 LEGAL VALIDITY
This Agreement constitutes its legally binding, valid and enforceable
obligation.
3.4 NON-CONFLICT
The entry into and performance by it of, and the transactions
contemplated by, this Agreement do not and will not conflict with:
(a) any law or regulation applicable to it; or
(b) its or any of its Subsidiaries' constitutional documents; or
(c) any document which is binding on it or any of its Subsidiaries or
any of its or its Subsidiaries' assets.
3.5 AUTHORISATIONS
All authorisations required by it in connection with the entry into,
performance, validity and enforceability of, and the transactions
contemplated by, this Agreement have been obtained or effected (as
appropriate) and are in full force and effect.
3.6 CREDIT AGREEMENT
The representations set out in Clause 18 (Representations and warranties)
of the Credit Agreement (with the exception of Clause 18.8(d) (Accounts))
are true as if made on the date of this Agreement and as if references to
the Credit Agreement are references to the Credit Agreement, as amended
by this Agreement, with reference to the facts and circumstances then
existing.
4. FEES
The Company shall on the date of this Agreement pay to the Agent for each
Bank a fee in the amount referred to in the Supplemental Fee Letter.
3
5. MISCELLANEOUS
(a) This Agreement is a Finance Document.
(b) Subject to the terms of this Agreement, the Credit Agreement will remain
in full force and effect and the Credit Agreement and this Agreement will
be read and construed as one document.
6. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
4
SCHEDULE 1
CONDITIONS PRECEDENT DOCUMENTS
1. A copy of the constitutional documents of the relevant Obligor or, if the
Agent already has a copy, a certificate of an authorised signatory of the
relevant Obligor confirming that the copy in the Agent's possession is
still correct, complete and in full force and effect as at a date no
earlier than the date of this Agreement.
2. A copy of a resolution of the board of directors of each Obligor (or a
committee of its board of directors) approving the terms of, and the
transactions contemplated by, this Agreement.
3. If applicable, a copy of a resolution of the board of directors of each
Obligor establishing the committee referred to in paragraph 2 above.
4. If not already supplied to the Agent, a specimen of the signature of each
person authorised on behalf of each Obligor to sign this Agreement.
5. A certificate of an authorised signatory of each Obligor certifying that
each copy document specified in this Schedule is correct, complete and in
full force and effect as at a date no earlier than the date of this
Agreement.
6. A copy of any other authorisation or other document, opinion or assurance
which the Agent has notified the Company is necessary or desirable in
connection with the entry into and performance of, and the transactions
contemplated by, this Agreement or for the validity and enforceability of
this Agreement.
7. Evidence that all fees and expenses then due and payable from the Company
in respect of this Agreement have been paid.
5
SCHEDULE 2
RESTATED CREDIT AGREEMENT
AGREEMENT
DATED 14th June, 1999
L315,000,000 and U.S. $200,000,000
AMENDED AND RESTATED
CREDIT FACILITY
FOR
SPIRENT plc (formerly known as ▇▇▇▇▇▇▇▇▇ plc)
ARRANGED BY
DEUTSCHE BANK AG
LONDON
HSBC INVESTMENT BANK plc
▇▇▇▇▇ & OVERY
London
6
CONTENTS
CLAUSE PAGE
1. Interpretation........................................................8
2. The Facilities.......................................................30
3. Purpose..............................................................32
4. Conditions precedent.................................................32
5. Loans and Term-out Option............................................33
6. Repayment............................................................34
7. Prepayment and cancellation..........................................35
8. Interest Periods.....................................................39
9. Interest.............................................................41
10. Optional Currencies..................................................43
11. Amount of Optional Currencies........................................43
12. Payments.............................................................44
13. Taxes................................................................46
14. Market disruption....................................................48
15. Increased costs......................................................50
16. Illegality...........................................................51
17. Guarantee............................................................51
18. Representations and warranties.......................................54
19. Undertakings.........................................................57
20. Default..............................................................63
21. The Agent and the Arrangers..........................................67
22. Fees.................................................................71
23. Expenses.............................................................73
24. Stamp duties.........................................................73
25. Indemnities..........................................................73
26. Evidence and calculations............................................75
27. Amendments and waivers...............................................75
28. Changes to the parties...............................................76
29. Disclosure of information............................................80
30. Set-off..............................................................81
31. Pro rata sharing.....................................................81
32. Severability.........................................................82
33. Counterparts.........................................................82
34. Notices..............................................................83
35. Language.............................................................84
36. Jurisdiction.........................................................84
37. Governing law........................................................85
7
SCHEDULES
ERROR! NO TABLE OF CONTENTS ENTRIES FOUND.
8
THIS AGREEMENT is made on 14th June, 1999 between:
(1)
SPIRENT plc (formerly known as ▇▇▇▇▇▇▇▇▇ plc) (Registered No. 470893)
(the "COMPANY");
(2) DEUTSCHE BANK AG
LONDON AND HSBC INVESTMENT BANK plc as arrangers (in
this capacity the "ARRANGERS");
(3) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the "BANKS");
and
(4) HSBC INVESTMENT BANK plc as agent (in this capacity the "AGENT").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCOUNTING PERIOD"
means:
(a) in respect of the Group, any period of 12 months ending on the
last day of a financial year or financial half-year of the Group;
or
(b) for the purposes of Clause 19.18 (Material Subsidiaries), in
respect of the Company or any Material Subsidiary, any period of
12 months ending on the last day of a financial year or financial
half-year of the Company or that Material Subsidiary (as
applicable).
"ACCOUNTS"
means, at any time:
(a) in respect of any Accounting Period of the Group, the
consolidated balance sheet and profit and loss account of the
Group provided to the Agent under Clause 19.2(a) or (b)
(Financial information) in respect of that Accounting Period; or
(b) for the purposes of Clause 19.18 (Material Subsidiaries), in
respect of any Accounting Period of the Company or any Material
Subsidiary the balance sheet and profit and loss account of the
Company or that Material Subsidiary (as applicable) in respect of
that Accounting Period.
"ACQUISITION FINANCIAL INDEBTEDNESS"
means any indebtedness (without double counting) in respect of:
(a) moneys borrowed;
(b) any debenture, bond, note, loan stock or other similar security;
9
(c) any acceptance credit;
(d) the acquisition cost of any asset to the extent payable before or
after the time of acquisition or possession by the party liable
where the advance or deferred payment is arranged primarily as a
method of raising finance or financing the acquisition of that
asset to the extent that it is required by generally accepted
U.K. accounting principles to be shown as a borrowing in the
Accounts of the relevant company; or
(e) any amount raised under any other transaction having the
commercial effect of a borrowing or raising of money.
"ADDITIONAL BORROWER"
means a member of the Group which becomes a Borrower in accordance with
Clause 28.5 (Additional Borrowers).
"ADDITIONAL GUARANTOR"
means a member of the Group which becomes a Guarantor in accordance with
Clause 28.6 (Additional Guarantors).
"AFFILIATE"
means a Subsidiary or a Holding Company of a person or any other
Subsidiary of that Holding Company.
"AGENT'S SPOT RATE OF EXCHANGE"
means the Agent's spot rate of exchange for the purchase of the relevant
Optional Currency in the
London foreign exchange market with Sterling at
or about 11.00 a.m. on a particular day.
"BALANCE SHEET"
means, at any time, the latest published consolidated balance sheet of
the Group, which, for the avoidance of doubt, shall be deemed not to
include the Excluded Subsidiaries.
"BORROWER"
means, subject to Clause 28.7 (Removal of Obligors), the Company or an
Additional Borrower.
"BORROWER ACCESSION AGREEMENT"
means a letter substantially in the form of Part II of Schedule 5 with
such amendments as the Agent and the Company may agree.
"BUSINESS DAY"
means a day (other than a Saturday or Sunday) on which banks are open for
general business in
London and:
(a) in relation to a payment in an Optional Currency other than
euros, the principal financial centre of the country of that
Optional Currency; or
10
(b) in relation to a payment in euros, a TARGET Business Day.
"CASH AND CASH EQUIVALENTS"
means, at any time:
(a) cash on deposit in any Permitted Bank;
(b) any investment in:
(i) marketable obligations issued or guaranteed by the U.S.
or the U.K. or by an instrumentality or agency of the
U.S. or the U.K. having an equivalent credit rating;
(ii) certificates of deposit, maturing within one year after
acquisition thereof, issued by a Permitted Bank;
(iii) bankers' acceptances and eligible bills accepted by
Permitted Banks, maturing within one year after
acquisition thereof; and
(iv) open market commercial paper or other unsubordinated
indebtedness:
(A) for which a recognised trading market exists on any
Business Day;
(B) issued in the U.S., the U.K. or the Eurodollar
market;
(C) which matures within one year after acquisition
thereof; and
(D) which has a credit rating of either A-1 by Standard
& Poor's or IBCA or P-1 by Moody's or any future
equivalent of any such credit rating, or, if no
rating is available with respect to such commercial
paper or indebtedness, the issuer of which has, in
respect of its long-term debt obligations, an
equivalent rating; or
(c) any other instrument, security or investment approved by the
Majority Banks,
in each case, to which any member of the Group is beneficially entitled
at that time.
"CLEAN-UP PERIOD"
means the period from the date of this Agreement to the date falling 180
days after the Target becomes a Subsidiary of the Company.
"CODE"
means the United States Internal Revenue Code of 1986 as amended from
time to time.
"COMMITMENT"
means a Tranche A Commitment, a Tranche B Commitment or a Tranche C
Commitment.
11
"COMMITMENT PERIOD"
means the Tranche A Commitment Period, the Tranche B Commitment Period or
the Tranche C Commitment Period.
"COMPLIANCE CERTIFICATE"
means a certificate substantially in the form of Schedule 6.
"CONSOLIDATED EBIT"
means, in relation to any Accounting Period of the Group, the
consolidated operating profit of the Group for that Accounting Period
calculated by reference to the Accounts of the Group for that Accounting
Period and:
(a) before deducting, charging or providing for:
(i) Consolidated Net Interest Expense; and
(ii) any taxation as shown in the profit and loss section of
those Accounts for that Accounting Period; and
(b) before taking into account any exceptional items (including,
without limitation, profits or losses on the sale or termination
of an operation, costs of a fundamental reorganisation or
restructuring and profits or losses on the disposal of fixed
assets) as shown in the profit and loss section of the Accounts
of the Group for that Accounting Period.
"CONSOLIDATED EBITA"
means, in relation to any Accounting Period of the Group, the
consolidated operating profit of the Group for that Accounting Period
calculated by reference to the Accounts of the Group for that Accounting
Period and:
(a) before deducting, charging or providing for:
(i) Consolidated Net Interest Expense;
(ii) any taxation as shown in the profit and loss section of
those Accounts for that Accounting Period;
(iii) amortisation charged during that Accounting Period; and
(b) before taking into account any exceptional items (including,
without limitation, profits or losses on the sale or termination
of an operation, costs of a fundamental reorganisation or
restructuring and profits or losses on the disposal of fixed
assets) as shown in the profit and loss section of the Accounts
of the Group for that Accounting Period.
12
"CONSOLIDATED EBITDA"
means, in relation to any Accounting Period, the consolidated operating
profit of the Group for that Accounting Period calculated by reference to
the Accounts for that Accounting Period and:
(a) before deducting, charging or providing for:
(i) Consolidated Net Interest Expense;
(ii) any taxation as shown in the profit and loss section of
those Accounts for that Accounting Period;
(iii) depreciation in respect of that Accounting Period; and
(iv) amortisation charged during that Accounting Period; and
(b) before taking into account any exceptional items (including,
without limitation, profits or losses on the sale or termination
of an operation, costs of a fundamental reorganisation or
restructuring and profits or losses on the disposal of fixed
assets) as shown in the profit and loss section of the Accounts
of the Group for that Accounting Period.
"CONSOLIDATED INTEREST EXPENSE"
means, in relation to any Accounting Period, all interest, acceptance
commission and any other continuing, regular or periodic costs and
expenses in the nature of interest (whether paid, payable or capitalised)
incurred by the Group (other than interest paid or payable to another
member of the Group) during that Accounting Period.
"CONSOLIDATED INTEREST RECEIVABLE"
means, in relation to any Accounting Period, all interest received or
receivable by any member of the Group (other than interest received or
receivable from another member of the Group) during that Accounting
Period.
"CONSOLIDATED NET DEBT"
means, at any time and without double counting, Total Consolidated Debt
less Cash and Cash Equivalents at that time.
"CONSOLIDATED NET INTEREST EXPENSE"
means, in relation to any Accounting Period, Consolidated Interest
Expense for that period less Consolidated Interest Receivable for that
period.
"CONSOLIDATED TOTAL ASSETS"
means, at any time, the consolidated fixed assets and consolidated
current assets of the Group as shown in its Balance Sheet excluding, for
the avoidance of doubt, goodwill and investment in joint ventures.
13
"DANGEROUS SUBSTANCES"
means any radioactive emissions and any natural or artificial substance
(whether in solid or liquid form or in the form of a gas or vapour), the
generation, transportation, storage, treatment, use or disposal of which
(whether alone or in combination with any other substance) gives a risk
of causing harm to man or any other living organism or damaging in any
material respect the environment or public health or welfare, including,
but not limited to, any controlled, special, hazardous, toxic,
radioactive or dangerous waste.
"DEFAULT"
means an Event of Default or a Potential Event of Default.
"DRAWDOWN DATE"
means the date of the making of a Loan.
"EBIT"
means, in relation to any Accounting Period for the Company or any
Material Subsidiary, the operating profit of the Company or that Material
Subsidiary (as applicable) for that Accounting Period calculated by
reference to the Accounts of the Company or that Material Subsidiary (as
applicable) for that Accounting Period and:
(a) before deducting, charging or providing for:
(i) all interest, acceptance commission and any other
continuing, regular or periodic costs and expenses in the
nature of interest (whether paid, payable or capitalised)
incurred by the Company or that Material Subsidiary (as
applicable) during that Accounting Period less all
interest received or receivable by the Company or that
Material Subsidiary (as applicable) during that
Accounting Period; and
(ii) any taxation as shown in the profit and loss section of
those Accounts for that Accounting Period; and
(b) before taking into account any exceptional items (including,
without limitation, profits or losses on the sale or termination
of an operation, costs of a fundamental reorganisation or
restructuring and profits or losses on the disposal of fixed
assets) as shown in the profit and loss section of those Accounts
for that Accounting Period.
"ECB COSTS"
means the cost imputed to the Banks of compliance with any reserve asset
requirements of the European Central Bank.
"ENVIRONMENTAL CLAIM"
means any claim by any person:
(a) in respect of losses or liabilities suffered or incurred by that
person as a result of or in connection with the violation of any
Environmental Law; or
14
(b) giving rise to any remedy or penalty that may be enforced or
assessed by private or public legal action as a result of
environmental contamination or any application for any interim or
financial, judicial or administrative decree, injunction, cease
and desist order, abatement order, compliance order, consent
order, clean-up order, or enforcement notice, stop notice,
improvement notice, prohibition notice or revocation order in
respect of that environmental contamination; or
(c) in respect of any other remedial action or action to comply that
the relevant person is obliged to take pursuant to any
Environmental Law in respect of any environmental contamination.
"ENVIRONMENTAL LAW"
means any common or statutory law or regulation concerning the protection
of human health, any living organism, the workplace or the environment or
the conditions of the workplace or the generation, transportation,
storage, treatment or disposal of Dangerous Substances.
"ERISA"
means the United States Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rulings and regulations issued
under it.
"ERISA AFFILIATE"
means any person which is, for the purposes of Title IV of ERISA, a
member of the controlled group of any U.S. Borrower or U.S. Material
Subsidiary or under common control of any U.S. Borrower or U.S. Material
Subsidiary within the meaning of section 414(b), (c), (m) or (o) of the
Code.
"EURO" OR "EURO"
means the single currency of the Participating Member States.
"EVENT OF DEFAULT"
means an event specified as such in Clause 20.1 (Events of Default).
"EXCLUDED SUBSIDIARY"
means:
(a) WAGO Kontakttechnik GmbH and its Subsidiaries;
(b) WAGO Contact SA and its Subsidiaries; or
(c) any other Subsidiary of the Company which is designated as such
with the approval of the Agent,
but only for so long as such Subsidiary is not treated as a Subsidiary
for the purposes of the audited consolidated accounts of the Group.
15
"EXISTING FACILITY"
means:
(a) the L25,000,000 facility provided by Deutsche Bank AG
London
pursuant to a facility agreement dated 1st July, 1998 (as
supplemented on 14th March, 1999) between Deutsche Bank AG
London
and the Company; or
(b) the L50,000,000 facility provided by Midland Bank plc pursuant to
a facility agreement dated 5th June, 1998 (as supplemented on
12th January, 1999) between Midland Bank plc and the Company.
"FACILITY"
means the Tranche A Facility, the Tranche B Facility or the Tranche C
Facility and "FACILITIES" means all of them.
"FACILITY OFFICE"
means the office(s) notified by a Bank to the Agent:
(a) on or before the date it becomes a Bank; or
(b) by not less than 5 Business Days' notice,
as the office(s) through which it will perform all or any of its
obligations under this Agreement which, in the case of:
(i) any U.K. Bank shall be situated in the U.K.; and
(ii) any U.K. Treaty Bank shall be situated outside the U.K.
"FEE LETTER"
means a letter dated on or about the date of this Agreement between the
Arrangers and the Company or the Agent and the Company setting out the
amount of various fees referred to in Clause 22 (Fees).
"FINAL MATURITY DATE"
means the fifth anniversary of the first Drawdown Date.
"FINANCE DOCUMENT"
means:
(a) this Agreement;
(b) a Novation Certificate;
(c) a Fee Letter;
(d) the Mandate Letter;
16
(e) a Borrower Accession Agreement;
(f) a Guarantor Accession Agreement;
(g) the Syndication Side-Letter;
(h) a Syndication Agreement; or
(i) any other document designated as such by the Agent and the
Company.
"FINANCE PARTY"
means an Arranger, a Bank or the Agent.
"FINANCIAL INDEBTEDNESS"
means any indebtedness (without double counting) in respect of:
(a) moneys borrowed;
(b) any debenture, bond, note, loan stock or other similar security;
(c) any acceptance credit;
(d) receivables sold or discounted (to the extent of recourse);
(e) the acquisition cost of any asset to the extent payable before or
after the time of acquisition or possession by the party liable
where the advance or deferred payment is arranged primarily as a
method of raising finance or financing the acquisition of that
asset and, for the purposes of Clause 19.8 (Preferred
Indebtedness), to the extent that it is required by generally
accepted U.K. accounting principles to be shown as a borrowing in
the Accounts of the relevant company;
(f) any lease entered into primarily as a method of raising finance
or financing the acquisition of the asset leased and required to
be accounted for as a finance lease under SSAP 21 or FRS 5;
(g) any currency swap or interest swap, cap or collar arrangement or
any other derivative instrument the amount of which will be
calculated on a ▇▇▇▇ to market basis;
(h) any amount raised under any other transaction having the
commercial effect of a borrowing or raising of money; or
(i) any guarantee, indemnity, counter indemnity or similar assurance
against financial loss of any person given for a type of
indebtedness referred to in paragraphs (a) to (h) above.
"FRS"
means a financial reporting standard issued by the Accounting Standards
Board.
17
"GROUP"
means the Company and its Subsidiaries other than any Excluded
Subsidiary.
"GUARANTOR"
means, subject to Clause 28.7 (Removal of Obligors), the Company or an
Additional Guarantor.
"GUARANTOR ACCESSION AGREEMENT"
means a letter substantially in the form of Part III of Schedule 5 with
such amendments as the Agent and the Company may agree.
"HOLDING COMPANY"
has the meaning given to it in Section 736 of the Companies ▇▇▇ ▇▇▇▇.
"IBCA"
means The Fitch IBCA Group.
"INFORMATION MEMORANDUM"
means the information memorandum to be prepared on behalf of the Company
and delivered to potential Banks in connection with the syndication of
the Facilities.
"INTEREST PERIOD"
means each period determined in accordance with Clause 8 (Interest
Periods).
"LIBOR"
means:
(a) the rate per annum appearing on page 3750 or page 3740 (as
appropriate) on the Telerate Screen information display (the
"TELERATE SCREEN"); or
(b) if no rate appears on the Telerate Screen (or its successor), the
arithmetic mean (rounded upward to four decimal places) of the
rates, as supplied to the Agent at its request, quoted by the
Reference Banks to leading banks in the
London interbank market,
at or about 11.00 a.m. on the applicable Rate Fixing Day for the offering
of deposits in the currency of the relevant Loan for a period comparable
to the relevant Interest Period.
"LOAN"
means, subject to Clauses 8 (Interest Periods) and 10 (Optional
Currencies), the principal amount of each borrowing by a Borrower under
this Agreement or the principal amount outstanding of that borrowing.
18
"MAJORITY BANKS"
means, at any time:
(a) if any Loan is outstanding, Banks with an aggregate outstanding
Original Sterling Amount of participations in Loans at that time
of more than 66 2/3 per cent. of the aggregate Original Sterling
Amount of all Loans then outstanding; or
(b) if no Loan is outstanding, Banks whose Commitments then aggregate
more than 66 2/3 per cent. of the Total Commitments (or, if the
Total Commitments have been reduced to zero, aggregated more than
66 2/3 per cent. of the Total Commitments immediately before the
reduction).
"MANDATE LETTER"
means the mandate letter dated 14th June, 1999 between the Arrangers and
the Company.
"MANDATORY COST"
means the cost of complying with certain regulatory requirements, expressed as a
percentage rate per annum and calculated by the Agent under Schedule 3.
"MARGIN"
means, subject to Clause 9.5 (Adjustment of the Margin), 0.80 per cent.
per annum.
"MARGIN CERTIFICATE"
means a certificate substantially in the form of Schedule 7.
"MATERIAL ADVERSE EFFECT"
means a material adverse effect on the ability of the Company to perform:
(a) any of its payment obligations under the Finance Documents; or
(b) any of its obligations under Clause 19.10 (Financial covenants).
"MATERIAL SUBSIDIARY"
means:
(a) before any Compliance Certificate is delivered under Clause
19.2(c) (Financial information), each Subsidiary of the Company
listed in Schedule 9; or
(b) each Subsidiary of the Company listed in the Compliance
Certificate most recently provided to the Agent under Clause
19.2(c) (Financial information),
so long as it is a Subsidiary of the Company.
"MERGER"
means the merger of the Target and ▇▇▇▇▇▇ Acquisition Corp. pursuant to
the Merger Agreement.
19
"MERGER AGREEMENT"
means the merger agreement dated on or around the date of this Agreement
and made between the Target, Norman Acquisition Corp., ▇▇▇▇▇▇▇▇▇
Financing Corp. and the stockholders of the Target named therein.
"MOODY'S"
means ▇▇▇▇▇'▇ Investors Service, Limited.
"NOVATION CERTIFICATE"
has the meaning given to it in Clause 28.3 (Procedure for novations).
"OBLIGOR"
means a Borrower or a Guarantor.
"OPTIONAL CURRENCY"
means:
(a) U.S. Dollars; and
(b) any other currency (other than Sterling) which is for the time
being freely transferable and convertible into Sterling and
deposits of which are readily available in the
London interbank
market.
"ORIGINAL GROUP ACCOUNTS"
means the audited consolidated accounts of the Group for the year ended
31st December, 1998.
"ORIGINAL STERLING AMOUNT"
means:
(a) the principal amount of a Loan denominated in Sterling; or
(b) the principal amount of a Loan denominated in an Optional
Currency translated into Sterling on the basis of the Agent's
Spot Rate of Exchange 3 Business Days before its Drawdown Date
or, in the case of a Term Loan, its then current Interest Period.
"PARTICIPATING MEMBER STATE"
means a member state of the European Communities that adopts the euro as
its currency in accordance with legislation of the European Union
relating to European Economic and Monetary Union.
"PARTY"
means a party to this Agreement.
20
"PBGC"
means the Pension Benefit Guaranty Corporation and any entity succeeding
to any of its functions under ERISA.
"PENSION PLAN"
means any single employer plan as defined in Section 4001(a)(15) of ERISA
which is subject to Title IV of ERISA that is maintained for employees of
any U.S. Obligor, U.S. Material Subsidiary or any ERISA Affiliate.
"PERMITTED BANK"
means:
(a) any commercial bank or trust company having, in respect of its
long-term debt obligations, a rating of A or higher by Standard &
Poor's or IBCA or A-2 or higher by Moody's or a comparable rating
from a nationally recognised (in England) credit rating agency;
or
(b) the Agent.
"POTENTIAL EVENT OF DEFAULT"
means an event or circumstance which, with the giving of notice and/or
lapse of time and/or fulfilment of any other applicable condition, as
provided in Clause 20.1 (Events of Default), would constitute an Event of
Default.
"PREFERRED INDEBTEDNESS"
means the principal amount of Financial Indebtedness (or in the case of
any derivative transaction, the ▇▇▇▇ to market value of that derivative
transaction) of:
(a) all members of the Group (other than Guarantors); and
(b) the Guarantors which is secured by Security Interests,
other than:
(i) the Financial Indebtedness listed in Schedule 8 and outstanding
as at 14th May, 1999 (and any Financial Indebtedness incurred in
refinancing any of the Financial Indebtedness listed in Schedule
8 and any Financial Indebtedness listed in Schedule 8 which has
been repaid and reborrowed, in each case, up to the amount of
that Financial Indebtedness set out in Schedule 8 which has been
refinanced or repaid and reborrowed);
(ii) Financial Indebtedness incurred under the Finance Documents; and
(iii) the ▇▇▇▇ to market value of any derivative transaction entered
into by any Obligor.
21
"PRESS RELEASE"
means the press release to be made by or on behalf of the Company
announcing the terms of the Merger.
"QUALIFYING BANK"
means:
(a) in respect of the UK:
(i) a U.K. Bank;
(ii) to the extent permitted in the Syndication Side-Letter, a
U.K. Treaty Bank; or
(b) in respect of the U.S. a U.S. Bank or a U.S. Treaty Bank.
"RATE FIXING DAY"
means:
(a) the first day of an Interest Period for a Loan denominated in
Sterling;
(b) the second TARGET Business Day before the first day of an
Interest Period for a Loan denominated in euros; or
(c) the second Business Day before the first day of an Interest
Period for a Loan denominated in any currency other than Sterling
or euros,
or such other day as is generally treated as the rate fixing day by
market practice in the London interbank market for the currency
concerned, as notified by the Agent to the other Parties by not less than
five Business Days' notice.
"REFERENCE BANKS"
means, subject to Clause 28.8 (Reference Banks), Deutsche Bank AG London
and HSBC Bank plc and, following completion of Syndication, one other
Bank (or an Affiliate of a Bank) selected by the Agent in accordance with
Clause 28.8(b) (Reference Banks).
"REGULATION D"
means Regulation D of the Board of Governors of the Federal Reserve
System (or any successor).
"REGULATION D COSTS"
means, in relation to its participation in a Loan made to a U.S. Borrower
(or deposits maintained by a Bank to fund that participation), the amount
(if any) certified by a Bank to be the cost to it of complying with
Regulation D (or any similar reserve requirements) in respect of its
participation or those deposits.
22
"REQUEST"
means a request made by a Borrower to utilise a Facility, substantially
in the form of Schedule 4.
"REVOLVING LOAN"
means a Tranche A Loan, Tranche B Loan or a Tranche C Loan before the
exercise of the Term-out Option.
"REVOLVING CREDIT REPAYMENT DATE"
means, in relation to a Revolving Loan, the last day of its Interest
Period.
"ROLLOVER LOAN"
means a requested Loan:
(a) which is being made solely to refinance an outstanding Loan;
(b) whose Original Sterling Amount is equal to or less than that
outstanding Loan; and
(c) whose Drawdown Date coincides with the Revolving Credit Repayment
Date of that outstanding Loan.
"SECURITY INTEREST"
means any mortgage, charge, assignment, pledge, lien, hypothecation or
security interest or any other agreement having the effect of conferring
security but, for the avoidance of doubt, excluding any finance lease.
"SSAP"
means a standard of accounting practice issued by the Accounting
Standards Committee.
"STANDARD & POOR'S"
means Standard & Poor's Rating Services, a division of McGraw Hill
Companies Inc.
"STERLING" OR "L"
means the lawful currency for the time being of the U.K.
"SUBSIDIARY"
means:
(a) a subsidiary within the meaning of section 736 of the Companies
▇▇▇ ▇▇▇▇; and
(b) in relation to the financial statements or any financial
covenants in respect of the Group, a subsidiary undertaking
within the meaning of section 258 of the Companies ▇▇▇ ▇▇▇▇.
23
"SYNDICATION"
means general syndication of the Facilities by the Arrangers.
"SYNDICATION AGREEMENT"
means an agreement between the then Parties and other banks and financial
institutions, substantially in the form of Part IV of Schedule 5.
"SYNDICATION SIDE-LETTER"
means the letter between the Company and the Arrangers, dated on or about
the date of this Agreement, relating to primary syndication (which will
comprise both the sub-underwriting and general syndication processes).
"TARGET"
means Netcom Systems, Inc.
"TARGET BUSINESS DAY"
means a day on which the Trans-European Real-Time Gross Settlement
(TARGET) System is open.
"TARGET GROUP"
means the Target and its Subsidiaries.
"TAXES"
includes all present and future income and other taxes, levies, imposts,
deductions and charges and withholdings whatsoever together with interest
thereon and penalties with respect thereto, if any, and any payments made
on or in respect thereof; "TAXATION" and "TAX" shall be construed
accordingly.
"TERM DATE"
means the Tranche A Term Date, the Tranche B Term Date or the Tranche C
Term Date.
"TERM LOAN"
means a Tranche C Loan after the exercise of the Term-out Option.
"TERM-OUT OPTION"
means the option of the Company in Clause 5.4 (Term-out Option) to
convert the Tranche C Facility into a term loan facility.
"TOTAL ASSETS"
means, at any time in respect of the Company or any Material Subsidiary,
the fixed assets and current assets of the Company or that Material
Subsidiary (as applicable) as shown in the then
24
latest balance sheet of the Company or that Material Subsidiary (as
applicable) excluding, for the avoidance of doubt, goodwill.
"TOTAL COMMITMENTS"
means, at any time, the aggregate of the Total Tranche A Commitments
(converted from U.S. Dollars into Sterling at the exchange rate of
1.6:1), the Total Tranche B Commitments and the Total Tranche C
Commitments.
"TOTAL CONSOLIDATED DEBT"
means at any time the aggregate (without double counting) of the
following:
(a) the outstanding principal amount of any moneys borrowed by any
member of the Group and any outstanding overdraft debit balance
of any member of the Group (but subject to set-off in accordance
with generally accepted U.K. accounting principles);
(b) the outstanding principal amount of any debenture, bond, note,
loan stock or other similar security of any member of the Group;
(c) the outstanding principal amount of any acceptance under any
acceptance credit opened by a bank or other financial institution
in favour of any member of the Group;
(d) any amount raised pursuant to any issue of shares which are or
may be expressed to be redeemable at the insistence of the holder
at any time prior to the date on which all amounts due and owing
by the Obligors or any of them to any of the Finance Parties
hereunder, whether present or future, actual or contingent, have
been irrevocably and unconditionally discharged in full;
(e) the outstanding principal amount of all moneys owing by a member
of the Group in connection with the sale or discounting of
receivables (to the extent of recourse to that member of the
Group);
(f) the outstanding principal amount of any indebtedness of any
member of the Group arising from any advance or deferred payment
agreements arranged primarily as a method of raising finance or
financing the acquisition of an asset to the extent that is
required by generally accepted U.K. accounting principles to be
shown as a borrowing in the Accounts;
(g) the capitalised element of indebtedness of any member of the
Group in respect of a lease entered into primarily as a method of
raising finance or financing the acquisition of the asset leased
and required to be accounted for under SSAP 21 or FRS 5;
(h) any fixed or minimum premium on the repayment or redemption at
maturity of any instrument referred to in paragraph (b) above
which is or may be expressed to be payable at any time prior to
the date on which all amounts due and owing by the Obligors or
any of them to any of the Finance Parties hereunder, whether
present or future, actual or contingent, have been irrevocably
and unconditionally discharged in full; and
(i) the outstanding principal amount of any indebtedness of any
person of a type referred to in paragraphs (a) - (h) above which
is the subject of a guarantee, indemnity or similar assurance
against financial loss given by any member of the Group.
25
"TOTAL TRANCHE A COMMITMENTS"
means the aggregate of the Tranche A Commitments of all the Banks, being
U.S.$200,000,000 at 15th July, 1999.
"TOTAL TRANCHE B COMMITMENTS"
means the aggregate of the Tranche B Commitments of all the Banks,
being L100,000,000 at 15th July, 1999.
"TOTAL TRANCHE C COMMITMENTS"
means the aggregate of the Tranche C Commitments of all the Banks, being
L215,000,000 at 15th July, 1999.
"TRANCHE A FACILITY"
means the facility referred to in Clause 2.1(a)(i) (Facilities).
"TRANCHE A COMMITMENT"
means:
(a) in relation to a Bank which is a Bank on the date of this
Agreement, the amount in U.S. Dollars set opposite its name in
Part I of Schedule 1 under the heading "Tranche A Commitment" and
the amount of any other Bank's Tranche A Commitment acquired by
it under Clause 28 (Changes to the Parties); and
(b) in relation to a Bank which becomes a Bank after the date of this
Agreement, the amount of any other Bank's Tranche A Commitment
acquired by it under Clause 28 (Changes to the Parties),
to the extent not cancelled, transferred or reduced under this Agreement.
"TRANCHE A COMMITMENT PERIOD"
means the period from the date of this Agreement up to and including the
Tranche A Term Date.
"TRANCHE A LOAN"
means a Loan drawn down or to be drawn down under the Tranche A Facility.
"TRANCHE A LOAN REDUCTION AMOUNT"
has the meaning given to it in Clause 6.1 (Reduction of Tranche A).
"TRANCHE A TERM DATE"
means the Final Maturity Date.
26
"TRANCHE B COMMITMENT"
means:
(a) in relation to a Bank which is a Bank on the date of this
Agreement, the amount in Sterling set opposite its name in Part
II of Schedule 1 under the heading "Tranche B Commitment" and the
amount of any other Bank's Tranche B Commitment acquired by it
under Clause 28 (Changes to the Parties); and
(b) in relation to a Bank which becomes a Bank after the date of this
Agreement, the amount of any other Bank's Tranche B Commitment
acquired by it under Clause 28 (Changes to the Parties),
to the extent not cancelled, transferred or reduced under this Agreement.
"TRANCHE B COMMITMENT PERIOD"
means the period from the date of this Agreement up to and including the
Tranche B Term Date.
"TRANCHE B FACILITY"
means the facility referred to in Clause 2.1(a)(ii) (Facilities).
"TRANCHE B LOAN"
means a Loan drawn down or to be drawn down under the Tranche B Facility.
"TRANCHE B TERM DATE"
means the earliest of:
(a) unless the Merger has become effective in accordance with the
Merger Agreement, the date falling 150 days after the date of
this Agreement; or
(b) the date upon which the Merger Agreement is terminated; and
(c) the Final Maturity Date.
"TRANCHE C COMMITMENT"
means:
(a) in relation to a Bank which is a Bank on the date of this
Agreement, the amount in Sterling set opposite its name in Part
III of Schedule 1 under the heading "Tranche C Commitment" and
the amount of any other Bank's Tranche C Commitment acquired by
it under Clause 28 (Changes to the Parties); and
(b) in relation to a Bank which becomes a Bank after the date of this
Agreement, the amount of any other Bank's Tranche C Commitment
acquired by it under Clause 28 (Changes to the Parties),
to the extent not cancelled, transferred or reduced under this Agreement.
27
"TRANCHE C COMMITMENT PERIOD"
means the period from the date of this Agreement up to and including the
Tranche C Term Date.
"TRANCHE C CURRENT FINAL MATURITY DATE"
means the date falling 364 days after the 11th June, 2001 (being 364 days
after the date of this Agreement).
"TRANCHE C FACILITY"
means the facility referred to in Clause 2.1(a)(iii) (Facilities).
"TRANCHE C FINAL MATURITY DATE"
means the latest of:
(a) the Tranche C Current Final Maturity Date;
(b) the date specified by the Agent in accordance with Clause 2.4(b)
(Extension of Tranche C Final Maturity Date) i.e. the date
falling 364 days after the Tranche C Current Final Maturity Date;
or
(c) if the Term-out Option is exercised, 364 days after the Term-out
Option is exercised.
"TRANCHE C LOAN"
means a Loan drawn down or to be drawn down under the Tranche C Facility.
"TRANCHE C TERM DATE"
means the earliest of:
(a) unless the Merger has become effective in accordance with the
Merger Agreement, the date falling 150 days after the date of
this Agreement;
(b) the date on which the Merger Agreement is terminated; and
(c) if the Agent:
(i) has been provided a notice under Clause 2.4(b) (Extension
of Tranche C Final Maturity Date), the date falling 364
days after the Tranche C Current Final Maturity Date; or
(ii) has not been provided a notice under Clause 2.4 (b)
(Extension of Tranche C Final Maturity Date), the Tranche
C Current Final Maturity Date.
"U.K."
means the United Kingdom.
28
"U.K. BANK"
means a person which is:
(a) a bank as defined in section 840A of the Income and Corporation
Taxes ▇▇▇ ▇▇▇▇; and
(b) beneficially entitled, and within the charge to U.K. corporation
tax for the purposes of section 349(3) of the Income and
Corporation Taxes ▇▇▇ ▇▇▇▇, as regards any interest received by
it under this Agreement.
"U.K. TREATY BANK"
means any person to whom payments of interest and fees on the Loans may
be made free from U.K. withholding tax or deduction for or on account of
tax by virtue of a double tax treaty entered into between the U.K. and
the jurisdiction in which that person is resident.
"U.S."
means the United States of America.
"U.S. BANK"
means a bank or financial institution which is organised under the laws
of the U.S., any state of the U.S. or the District of Columbia or any
branch or office located in the U.S. through which any Bank is
participating in any Loan.
"U.S. BORROWER"
means a Borrower which is incorporated in the U.S.
"U.S. DOLLARS" OR "U.S.$"
means the lawful currency for the time being of the U.S.
"U.S. MATERIAL SUBSIDIARY"
means a Material Subsidiary which is incorporated in the U.S.
"U.S. OBLIGOR"
means an Obligor which is incorporated in the U.S.
"U.S. TREATY BANK"
means a Bank which is entitled to the benefit of a double taxation treaty
between the U.S. and the jurisdiction in which that Bank is resident
under which payments of interest and fees under this Agreement may be
made free of U.S. withholding tax to that Bank.
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a reference to:
29
(i) an "AMENDMENT" includes a supplement, novation or re-enactment
and "AMENDED" is to be construed accordingly;
"ASSETS" includes present and future properties, revenues and
rights of every description;
an "AUTHORISATION" includes an authorisation, consent, approval,
resolution, licence, exemption, filing and registration;
a "MONTH" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in
the next calendar month, except that:
(1) if there is no numerically corresponding day in the month
in which that period ends, that period shall end on the
last Business Day in that calendar month; or
(2) if an Interest Period commences on the last Business Day
of a calendar month, that Interest Period shall end on
the last Business Day in the calendar month in which it
is to end;
a "PERSON" includes any person, company, partnership,
association, government, state, agency or other entity or any of
its successors and assigns;
a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law but,
if not having the force of law, being of a type which the person
to whom it applies is accustomed to comply) of any governmental,
inter-governmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;
(ii) a provision of law is a reference to that provision as amended or
re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of or a
schedule to this Agreement;
(iv) a person includes its successors, transferees and assigns;
(v) a Finance Document or another document is a reference to that
Finance Document or other document as amended; and
(vi) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in
this Agreement.
(c) Unless expressly provided to the contrary in a Finance Document, a person
who is not a party to a Finance Document may not enforce any of its terms
under the Contract (Rights of Third Parties) ▇▇▇ ▇▇▇▇ and notwithstanding
any term of any Finance Document, the consent of any third party is not
required for any variation (including any release or compromise or any
liability) or termination of that Finance Document.
(d) The index to and the headings in this Agreement are for convenience only
and are to be ignored in construing this Agreement.
30
2. THE FACILITIES
2.1 FACILITIES
(a) Subject to the terms of this Agreement, the Banks agree to make available
to the Borrowers the following facilities:
(i) a committed U.S. Dollar revolving credit facility under which the
Banks agree to make Tranche A Loans to the Borrowers up to an
aggregate amount not exceeding the Total Tranche A Commitments;
and
(ii) a committed multicurrency revolving credit facility under which
the Banks agree to make Tranche B Loans to the Borrowers up to an
aggregate outstanding Original Sterling Amount not exceeding the
Total Tranche B Commitments; and
(iii) a committed multicurrency revolving credit facility (with
term-out and extension options) under which the Banks agree to
make Tranche C Loans to the Borrowers up to an aggregate
outstanding Original Sterling Amount not exceeding the Total
Tranche C Commitments.
(b) The:
(i) aggregate of all outstanding Tranche A Loans shall not exceed the
Total Tranche A Commitments;
(ii) aggregate Original Sterling Amount of all Tranche B Loans shall
not exceed the Total Tranche B Commitments; and
(iii) aggregate Original Sterling Amount of all Tranche C Loans shall
not exceed the Total Tranche C Commitments.
(c) No Bank is obliged to lend if it would cause:
(i) the aggregate of its participations in the Tranche A Loans to
exceed its Tranche A Commitment;
(ii) the Original Sterling Amount of the aggregate of its
participations in the Tranche B Loans to exceed its Tranche B
Commitment; or
(iii) the Original Sterling Amount of the aggregate of its
participations in the Tranche C Loans to exceed its Tranche C
Commitment.
2.2 NATURE OF A FINANCE PARTY'S RIGHTS AND OBLIGATIONS
(a) The obligations of a Finance Party under the Finance Documents are
several. Failure of a Finance Party to carry out those obligations does
not relieve any other Party of its obligations under the Finance
Documents. No Finance Party is responsible for the obligations of any
other Finance Party under the Finance Documents.
(b) The rights of a Finance Party under the Finance Documents are divided
rights. A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
31
2.3 NUMBER OF LOANS AND CURRENCIES
Unless otherwise agreed by the Agent, no more than 40 Loans may be
outstanding at any time and Loans may not be denominated in more than
eight currencies at any time.
2.4 EXTENSION OF TRANCHE C FINAL MATURITY DATE
(a) If the Term-out Option has not been exercised, the Company may, by not
more than 60 days' nor less than 30 days' notice prior to the Tranche C
Current Final Maturity Date, request an extension of the Tranche C Final
Maturity Date to the date falling 364 days after the date of the Tranche
C Current Final Maturity Date.
(b) If the Agent has received, not less than 10 days before the Tranche C
Current Final Maturity Date, a notice of acceptance to any request made
by the Company under paragraph (a) above from all the Banks, the Tranche
C Final Maturity Date shall be extended to the date falling 364 days
after the Tranche C Current Final Maturity Date and the Agent shall
promptly notify the Company accordingly.
(c) The Agent shall notify the Banks promptly on receipt of any notice under
paragraph (a) above and any such notice will be irrevocable.
(d) The Company may only make one request under paragraph (a) above.
2.5 AFFILIATES OF BANKS
(a) Each Bank may, if it so elects, fulfil its commitment as to any Loan by
designating a branch or an Affiliate to make that Loan. However:
(i) the Bank shall remain solely responsible for the performance of
its obligations under this Agreement;
(ii) no such designation shall result in any additional costs to the
Obligors (whether under this Agreement, by loss or limitation of
tax deduction or relief or otherwise); and
(iii) the branch or Affiliate shall:
(A) be a Qualifying Bank;
(B) in the case of any U.K. Bank, be situated in the U.K.;
(C) in the case of any U.K. Treaty Bank, be situated outside
the U.K.; and
(D) comply with all form, delivery and other requirements
under this Agreement.
(b) A Bank may provide for an Affiliate to participate in certain Loans in
the manner contemplated in paragraph (a) above by:
(i) joining the relevant Affiliate in as a Bank by means of a
Novation Certificate in accordance with Clause 28.2 (Transfers by
Banks); and
(ii) giving notice to the Agent and the Company, detailing the Loans
in which that Affiliate will participate.
32
In this event that Bank and its Affiliate:
(A) will be treated as having a single relevant Commitment, but, for
all other purposes other than that mentioned in paragraph (c)
below, will be treated as separate Banks; and
(B) participate in Loans in the manner described in sub-paragraph
(ii) above.
(c) For the purposes of:
(i) compliance with Clause 28.2 (Transfers by Banks); and
(ii) voting in connection with any Finance Document,
each Bank and its Affiliate will be regarded as a single Bank.
3. PURPOSE
(a) (i) Each Borrower shall apply each Tranche A Loan borrowed by it
towards its general corporate purposes.
(ii) Each Borrower shall apply each Tranche B Loan borrowed by it
towards its working capital requirements or the payment of any
amount under Clause 11 (Amount of Optional Currencies) or, after
the Tranche C Facility has been repaid and/or cancelled in full,
towards its general corporate purposes including the refinancing
of existing indebtedness.
(iii) Each Borrower shall apply each Tranche C Loan borrowed by it
towards its general corporate purposes including the refinancing
of existing indebtedness.
(b) Without affecting the obligations of any Borrower in any way, no Finance
Party is bound to monitor or verify the application of any Loan.
4. CONDITIONS PRECEDENT
4.1 DOCUMENTARY CONDITIONS PRECEDENT
(a) No Borrower may deliver the first Request until the Agent has received:
(i) all of the documents set out in Part I of Schedule 2, in form and
substance satisfactory to the Agent; and
(ii) all of the documents set out in Part II of Schedule 2.
(b) Any references to an Arranger and/or this Agreement contained in the
documents referred to in paragraph (a)(ii) above shall be in the form
approved by the Arrangers (such approval not to be unreasonably withheld
or delayed).
4.2 FURTHER CONDITIONS PRECEDENT
The obligations of each Bank to participate in any Loan are subject to
the further conditions precedent that:
33
(a) on both the date for the Request and the Drawdown Date for that
Loan:
(i) the representations and warranties in Clause 18
(Representations and Warranties) to be repeated on those
dates are correct and will be correct immediately after
the Loan is made; and
(ii) no Default or (in the case of a Rollover Loan) no Event
of Default is outstanding or would result from the Loan;
and
(b) the Loan would not cause Clause 2.1 (Facilities) to be
contravened.
5. LOANS AND TERM-OUT OPTION
5.1 COMMITMENT PERIOD
A Borrower may borrow a Loan during the relevant Commitment Period if the
Agent receives, not later than 10.00 a.m. three (or, in the case of a
Loan in Sterling, one) Business Day(s) before the proposed Drawdown Date,
a duly completed Request. Each Request is irrevocable and, subject to the
terms of this Agreement, shall oblige the Borrower to borrow the Loan.
5.2 COMPLETION OF REQUESTS
A Request will not be regarded as having been duly completed unless:
(a) it specifies whether the Loan is a Tranche A Loan, a Tranche B
Loan or a Tranche C Loan;
(b) the Drawdown Date is a Business Day falling on or before the
final day of the relevant Commitment Period;
(c) the amount of the Loan is:
(i) if the currency is Sterling, a minimum of L5,000,000 and
an integral multiple of L1,000,000; or
(ii) if the currency is U.S. Dollars, a minimum of
U.S.$8,000,000 and an integral multiple of
U.S.$1,000,000; or
(iii) if the currency is euro, a minimum of EURO6,000,000 and
an integral multiple of EURO1,000,000; or
(iv) if the currency is an Optional Currency other than U.S.
Dollars or euro either:
(A) the equivalent of a minimum of L5,000,000 and an
integral multiple of 1,000,000 units of the relevant
currency; or
(B) such amount as the Agent and the Company may agree;
or
(v) the balance of the relevant undrawn Commitments;
(d) the amount selected under paragraph (c) above does not cause
Clause 2.1 (Facilities) to be contravened;
34
(e) the currency selected complies with Clause 10 (Optional
Currencies);
(f) the Interest Period selected complies with Clause 8 (Interest
Periods) and does not extend beyond the Final Maturity Date or
Tranche C Final Maturity Date, as appropriate; and
(g) the payment instructions comply with Clause 12 (Payments).
Each Request must specify one Loan only, but the Borrowers may, subject
to the other terms of this Agreement, deliver more than one Request on
any one day.
5.3 ADVANCE OF LOAN
(a) The Agent shall promptly notify each Bank of the details of the requested
Loan and the amount of its participation in the Loan.
(b) Subject to the terms of this Agreement, each Bank shall make its
participation in the Loan available to the Agent for the relevant
Borrower on the relevant Drawdown Date.
(c) The amount of each Bank's participation in the Loan will be the
proportion of the Loan which its relevant Commitment bears to the Total
Tranche A Commitments, the Total Tranche B Commitments or the Total
Tranche C Commitments, as appropriate, on the proposed Drawdown Date.
5.4 TERM-OUT OPTION
(a) Provided that the Tranche C Final Maturity Date has not been extended in
accordance with Clause 2.4 (Extension of the Tranche C Final Maturity
Date), the Company may at any time prior to the Tranche C Current Final
Maturity Date by notice to the Agent convert the Tranche C Facility into
a term loan facility.
(b) With effect from the date of the notice under paragraph(a) above all
Tranche C Loans will be Term Loans.
6. REPAYMENT
6.1 REDUCTION OF TRANCHE A
Subject to Clause 7 (Prepayment and cancellation), on each date specified
below (each a "TRANCHE A REDUCTION DATE"), the Borrower shall repay (if
necessary) an amount of the Tranche A Loans set opposite that date below
so that the Total Tranche A Commitments shall be cancelled (if not
already) by the amount set opposite that date below ("TRANCHE A LOAN
REDUCTION AMOUNT"):
TRANCHE A REDUCTION DATE TRANCHE A LOAN REDUCTION AMOUNT (U.S.$)
15th January, 2003 U.S.$40,000,000
15th January, 2004 U.S.$56,000,000
Final Maturity Date remainder of Tranche A Total Commitments
35
provided that if on any Tranche A Reduction Date the amounts of the
Tranche A Total Commitments are less than the required Tranche A Loan
Reduction Amount then the amount to be repaid and cancelled on that date
will be equal to the Total Tranche A Commitments on that date.
6.2 REPAYMENT OF TRANCHE A LOANS
Subject to Clause 6.1 (Reduction of Tranche A), each Borrower shall repay
in full each Tranche A Loan made to it on its Revolving Credit Repayment
Date.
6.3 REPAYMENT OF TRANCHE B LOANS
Each Borrower shall repay in full each Tranche B Loan made to it on its
Revolving Credit Repayment Date.
6.4 REPAYMENT OF TRANCHE C LOANS
(a) Subject to paragraph (b) below, each Borrower shall repay each Tranche C
Loan made to it in full on its Revolving Credit Repayment Date.
(b) After the exercise of the Term-out Option, each Borrower shall repay each
Tranche C Loan in full on the Tranche C Final Maturity Date.
6.5 RE-BORROWING
Subject to Clause 6.1 (Reduction of Tranche A) and the other terms of
this Agreement:(a) any Revolving Credit Loan repaid may be re-borrowed;
and
(b) no amount of a Term Loan prepaid or repaid under this Agreement
may be subsequently re-borrowed.
7. PREPAYMENT AND CANCELLATION
7.1 AUTOMATIC CANCELLATION
(a) The undrawn Tranche A Commitment of each Bank shall be automatically
cancelled at the close of business in London on the Tranche A Term Date.
(b) The Tranche B Commitment of each Bank shall be automatically cancelled at
the close of business in London on the Tranche B Term Date.
(c) (i) If the Term-out Option has not been exercised, the Tranche C
Commitment of each Bank shall be automatically cancelled at the
close of business in London on the Tranche C Term Date.
(ii) If the Term-out Option has been exercised, the undrawn amount of
the Tranche C Commitment of each Bank shall be automatically
cancelled at the close of business in London on the Tranche C
Current Final Maturity Date.
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7.2 VOLUNTARY CANCELLATION
(a) The Company may, by giving not less than 14 days' prior notice to the
Agent (or such shorter period as the Majority Banks may agree), at any
time prior to the relevant Term Date, cancel the unutilised portion of:
(i) the Total Tranche A Commitments in whole or in part (but, if in
part, in a minimum of U.S.$8,000,000 and an integral multiple of
U.S.$1,000,000).
(ii) the Total Tranche B Commitments or the Total Tranche C
Commitments, as appropriate, in whole or in part (but, if in
part, in a minimum of L5,000,000 and an integral multiple of
L1,000,000).
(b) Any cancellation in part shall be applied against the relevant Commitment
of each Bank pro rata.
7.3 MANDATORY PREPAYMENT - CHANGE OF CONTROL
(a) (i) If any person, or group of persons acting in concert (as defined
in the City Code on Takeovers and Mergers) acquires control (as
defined in the City Code on Takeovers and Mergers) of the
Company, the Company shall immediately notify the Agent.
(ii) On the date falling 5 Business Days after notice under
sub-paragraph (i) above:
(A) the Facilities shall be cancelled; and
(B) each Borrower shall prepay all Loans made to it together
with accrued interest and all other amounts payable by it
under the Finance Documents.
(b) (i) If any Borrower ceases to be beneficially wholly-owned by the
Company, the Company shall immediately notify the Agent. For this
purpose, a Borrower will be regarded as wholly-owned if a portion
of the share capital is required to be held by law by officers of
that Borrower.
(ii) On the date falling 5 Business Days after notice under
sub-paragraph (i) above the relevant Borrower shall either:
(A) prepay all Loans made to it together with accrued
interest and all other amounts payable by it under the
Finance Documents; or
(B) transfer its obligations under the Finance Documents to
another Borrower pursuant to Clause 28.1(b) (Transfers by
Obligors).
(iii) Any amount prepaid under sub-paragraph (ii)(A) above shall,
subject to the other terms of this Agreement, remain available
for re-borrowing by any other Borrower.
7.4 MANDATORY PREPAYMENT/CANCELLATION - TRANCHE C
(a) If, at any time when the Total Tranche C Commitments equal or exceed
L107,500,000, any member of the Group makes a capital markets issue,
then:
37
(i) the net proceeds of that capital markets issue shall be applied
by the Company in prepayment of the Tranche C Loans but only to
the extent necessary to reduce the aggregate Tranche C Loans to
L107,500,000; and
(ii) the Total Tranche C Commitments shall be reduced by an amount
equal to the lesser of (A) the net proceeds of that capital
markets issue and (B) an amount necessary to reduce the Total
Tranche C Commitments to L107,500,000.
Any such prepayment and cancellation shall occur promptly on receipt of
the net proceeds of the capital markets issue.
(b) If, at any time when the Total Tranche C Commitments equal or exceed
L107,500,000, any member of the Group disposes (in a single transaction
or a series of transactions, whether related or not) of any business or a
substantial part of a business of that member of the Group otherwise than
to another member of the Group, and, if the aggregate net proceeds of all
such disposals exceed L60,000,000 (or its equivalent in any other
currency or currencies) in any financial year of the Company then, in
respect of the amount in excess of L60,000,000:
(i) the Company:
(A) may use all or any part of that excess to prepay the
Tranche C Loans so as to reduce the aggregate Tranche C
Loans outstanding to L107,500,000; or
(B) if the Company does not prepay the Tranche C Loans under
sub-paragraph (A) above, shall promptly (subject to
sub-paragraph (ii) below) pay the amount of that excess
into a separate interest bearing account of the Company
with the Agent (on behalf of the Finance Parties) on
terms to be agreed between the Company and the Agent;
(ii) the Company shall apply the amount standing to the credit of the
account referred to in sub-paragraph (i)(B) above in or towards
prepaying the Tranche C Loans on or before the date falling 364
days after the date of this Agreement (but only to the extent
necessary to reduce the aggregate Tranche C Loans to
L107,500,000);
(iii) the Total Tranche C Commitments shall be reduced by an amount
equal to any prepayment under sub-paragraphs (i) or (ii) above;
(iv) if on the date falling 364 days after the date of this Agreement
the aggregate Tranche C Loans outstanding exceed L 107,500,000
the Total Tranche C Commitments shall be reduced by an amount
equal to the lesser of (A) the amount then standing to the credit
of the account referred to in sub-paragraph (i) above and (B) an
amount necessary to reduce the Total Tranche C Commitments to
L107,500,000; and
(v) any moneys standing to the credit of the account referred to in
sub-paragraph (i)(B) above may be withdrawn by the Company at any
time if the Total Tranche C Commitments have been reduced to
L107,500,000.
(c) For the purpose of this Clause 7.4:
(i) "NET PROCEEDS" means the proceeds of the capital markets issue or
disposal, as appropriate, received by the relevant member of the
Group less all directly related tax and expenses;
38
(ii) "CAPITAL MARKETS ISSUE" means any debt capital markets issue; and
(iii) any cancellation to be made under paragraph (a) or (b) above
shall be converted (if applicable) into Sterling at the Agent's
Spot Rate of Exchange on the date of that cancellation.
7.5 VOLUNTARY PREPAYMENT
A Borrower may, by giving not less than 14 days' prior notice to the
Agent and, subject to Clause 25.2(d) (Other indemnities), prepay:
(a) any Tranche A Loan in whole or in part (but, if in part, in a
minimum amount of U.S.$8,000,000 and an integral multiple of
U.S.$1,000,000); or
(b) any Term Loan in whole or in part (but, if in part, in a minimum
Original Sterling Amount of L5,000,000 and an integral multiple
of L1,000,000).
7.6 ADDITIONAL RIGHT OF PREPAYMENT AND CANCELLATION
(a) If:
(i) a Borrower is required to pay to a Bank any additional amounts
under Clause 13 (Taxes); or
(ii) a Borrower is required to pay to a Bank any amount under Clause
15 (Increased Costs); or
(iii) interest on a Bank's participation in a Loan is being calculated
in accordance with Clause 14.3(d) (Alternative basis),
and that Borrower has not transferred its obligations under the Finance
Documents in accordance with Clause 28.1 (Transfers by Obligors) to
another Borrower, then, without prejudice to the obligations of any
Obligor under those Clauses, the Company may, whilst the circumstances
giving rise to the requirement continue, serve a notice of prepayment and
cancellation on that Bank through the Agent. On the date falling 2
Business Days after the date of service of the notice and subject to
Clause 25.2(d) (Other indemnities):
(A) that Borrower shall prepay that Bank's participation in all the
Loans made to it; and
(B) if the notice given by the Company so specifies, the Commitments
of that Bank shall be cancelled.
(b) Any amount prepaid under paragraph (a) above shall, subject to the other
terms of this Agreement, remain available for re-borrowing by any other
Borrower.
7.7 MITIGATION
If, in respect of any Bank, circumstances arise which would, or would on
the giving of notice, result in:
(a) any additional amounts becoming payable under Clause 13 (Taxes);
or
39
(b) any amount becoming payable under Clause 15 (Increased Costs); or
(c) any prepayment, early payment or cancellation under Clause 16
(Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
obligations of any Obligor under this Agreement and without prejudice to
the terms of those Clauses, that Bank shall, in consultation with, and at
the reasonable expense of, the Company through the Agent and to the
extent that it can do so lawfully, take such reasonable steps as may be
open to it to mitigate or remove such circumstances, including (without
limitation) the transfer of its rights and obligations under this
Agreement to another branch or an Affiliate or another bank or financial
institution nominated by the Company, unless to do so might (in the
reasonable opinion of the Bank) be prejudicial to it.
7.8 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable. The Agent shall notify the Banks promptly of receipt of any
such notice.
(b) All prepayments under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to Clause 25.2(d) (Other
indemnities), without premium or penalty.
(c) No prepayment or cancellation is permitted except in accordance with the
express terms of this Agreement.
(d) Any cancellation of all or part of the Total Tranche A Commitments will
be applied against the Tranche A Loan Reduction Amount pro rata.
(e) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
(f) Without prejudice to the right of a Borrower to re-borrow amounts repaid
under Clauses 6.2 (Repayment of Tranche A Loans), 6.3 (Repayment of
Tranche B Loans) or Clause 6.4 (Repayment of Tranche C Loans) in
accordance with Clause 6.5 (Re-borrowing) or amounts prepaid under Clause
7.3(b) (Mandatory prepayment - change of control) or Clause 7.6
(Additional right of prepayment and cancellation), no amount repaid or
prepaid under any other provision of this Agreement may subsequently be
re-borrowed.
(g) Any cancellation in part of the Total Tranche C Commitments shall be
applied against the Tranche C Commitment of each Bank pro rata.
8. INTEREST PERIODS
8.1 SELECTION
(a) (i) Each Term Loan will have successive Interest Periods.
(ii) Each Revolving Loan has one Interest Period only.
(b) A Borrower may select the Interest Period for a Revolving Loan in the
relevant Request. Each Interest Period for a Revolving Loan will commence
on its Drawdown Date.
40
(c) A Borrower may select the Interest Period for a Term Loan in the relevant
Request or, if the Term Loan has been borrowed, in a notice received by
the Agent not later than 10.00 a.m. three (or, in the case of Sterling,
one) Business Day(s) before the commencement of that Interest Period.
Each Interest Period for a Term Loan (other than the first which shall
commence on its Drawdown Date) shall commence on the expiry of its
preceding Interest Period.
(d) Subject to the following provisions of this Clause 8, each Interest
Period will be one, two, three or six months or any other period agreed
by the relevant Borrower and the Banks.
(e) If the Borrower fails to select an Interest Period for a Term Loan in
accordance with paragraph (c) above, that Interest Period will, subject
to the other provisions of this Clause 8, be three months.
(f) Prior to completion of Syndication, each Interest Period will be agreed
between the Company and the Arrangers and will be a maximum of one month
unless otherwise agreed by the Arrangers.
8.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall instead end on the next Business
Day in that calendar month (if there is one) or the preceding Business
Day (if there is not).
8.3 CONSOLIDATION
In the case of each Term Loan to any Borrower then, notwithstanding
Clause 8.1 (Selection) and only if the Company and the Agent agree the
next Interest Period for that Term Loan shall end on the same day as the
current Interest Period for any other Term Loan denominated in the same
currency and borrowed by that Borrower and on the last day of those
Interest Periods, those Term Loans shall be consolidated and treated as
one Term Loan.
8.4 COINCIDENCE WITH REPAYMENT DATES
(a) If an Interest Period for a Loan would otherwise overrun the Final
Maturity Date or the Tranche C Final Maturity Date, as appropriate, it
will be shortened so that it ends on the Final Maturity Date or the
Tranche C Final Maturity Date, as appropriate.
(b) Any Interest Period for any Tranche A Loan will be shortened to ensure
that the aggregate principal amount of Tranche A Loans with an Interest
Period ending on a Tranche A Reduction Date is not less than the amount
required to enable the Borrowers to comply with Clause 6.1 (Reduction of
Tranche A).
8.5 OTHER ADJUSTMENTS
The Agent (after consultation with the Banks) and the Company may enter
into such other arrangements as they may agree for the adjustment of
Interest Periods and the consolidation and/or splitting of Loans.
8.6 NOTIFICATION
The Agent shall notify the relevant Borrower and the Banks of the
duration of each Interest Period promptly after ascertaining its
duration.
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9. INTEREST
9.1 INTEREST RATE
The rate of interest on each Loan for each of its Interest Periods is the
rate per annum determined by the Agent to be the aggregate of the
applicable:
(a) Margin;
(b) LIBOR; and
(c) Mandatory Cost.
9.2 DUE DATES
Except as otherwise provided in this Agreement, accrued interest on each
Loan is payable by the relevant Borrower on the last day of each Interest
Period for that Loan and also, if the Interest Period is longer than six
months, on the dates falling at six monthly intervals after the first day
of that Interest Period.
9.3 DEFAULT INTEREST
(a) If an Obligor fails to pay any amount payable by it under the Finance
Documents, it shall forthwith on demand by the Agent pay interest on the
overdue amount from the due date up to the date of actual payment, as
well after as before judgment, at a rate (the "DEFAULT RATE") determined
by the Agent to be one per cent. per annum above, subject to
sub-paragraph (b) below, the rate which would have been payable if the
overdue amount had, during the period of non-payment, constituted a Loan
in the currency of the overdue amount for such successive Interest
Periods of such duration as the Agent may determine having due regard to
the likely date for payment of the overdue amount (each a "DESIGNATED
INTEREST PERIOD").
(b) If the overdue amount is a principal amount of a Loan and it becomes due
and payable prior to the last day of an Interest Period for that Loan,
then:
(i) the first Designated Interest Period for that overdue sum will be
the unexpired portion of that Interest Period; and
(ii) the rate of interest on the overdue amount for that first
Designated Interest Period will be one per cent. per annum above
the rate on the overdue amount under Clause 9.1 (Interest rate)
immediately before the due date.
After the expiry of the first Designated Interest Period for that overdue
amount, the rate on the overdue amount will be calculated in accordance
with sub-paragraph (a) above.
(c) The default rate will be determined by the Agent (acting reasonably) on
each Business Day or the first day of, or 2 Business Days before the
first day of, the relevant Designated Interest Period, as appropriate.
(d) If the Agent (acting reasonably) determines that deposits in the currency
of the overdue amount are not at the relevant time being made available
by the Reference Banks to leading banks in the relevant interbank market,
the default rate will be determined by reference to the cost of funds to
the Agent from whatever sources it may reasonably select.
42
(e) Default interest will be compounded at the end of each Designated
Interest Period.
9.4 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify each relevant Party of the determination
of a rate of interest under this Agreement.
9.5 ADJUSTMENT OF THE MARGIN
(a) The Company shall deliver to the Agent with any press release with the
preliminary results of the Company a Margin Certificate signed by two
authorised signatories of the Company for the purposes of calculating
whether the Margin is to be adjusted in accordance with this Clause 9.5.
(b) Following delivery of each Margin Certificate, the Margin for each
Facility will be adjusted as appropriate by reference to the ratio of
Consolidated Net Debt to Consolidated EBITDA as follows:
RATIO OF CONSOLIDATED NET DEBT TO APPLICABLE MARGIN (PER ANNUM)
CONSOLIDATED EBITDA
Equal to or above 2.5 to 1 0.80%
Less than 2.5 to 1 but greater than or 0.70%
equal to 2.0 to 1
Less than 2.0 to 1 but greater than or 0.625%
equal to 1.5 to 1
Less than 1.5 to 1 0.55%
(c) The adjustment (if any) specified in paragraph (b) above will apply in
the case of an outstanding Term Loan, from the commencement of its next
Interest Period and, in the case of Revolving Loans, will take effect
only in respect of a Revolving Loan made after the date the Company
delivers the relevant Margin Certificate.
(d) Whilst a Potential Event of Default is outstanding the Margin may be
increased under paragraph (b) above but not decreased and, when no
Potential Event of Default is outstanding will revert to the applicable
rate calculated under paragraph (b) above.
(e) For so long as:
(i) the Company is in default of its obligation to provide the
relevant Margin Certificate or to provide accounts under Clause
19.2(a)(i) or (b) (Financial information); or
(ii) an Event of Default is outstanding;
the Margin for any Loan made or outstanding in the period during which
that default or Event of Default remains outstanding will be (if it is
not already) 0.80 per cent. per annum and will subsequently revert to the
applicable rate calculated under paragraph (b) above. Any adjustment to
the Margin under this paragraph (e) for an outstanding Term Loan will
apply from the commencement of its next Interest Period.
43
(f) The Company shall deliver to the Agent with any accounts delivered by it
under Clause 19.2(a)(i) and (b) (Financial information), a Margin
Certificate signed by two authorised signatories of the Company. If that
Margin Certificate (a "Supported Certificate") shows that in reliance on
a Margin Certificate (an "Unsupported Certificate") delivered under
paragraph (a) above the applicable Margin of any Loan for any Interest
Period has been incorrectly adjusted or determined at a level lower than
required by paragraph (b) above, such Margin shall be re-adjusted or
re-determined with effect from the first day of such Interest Period and
if the Borrowers have, in reliance on such Unsupported Certificate, paid
to the Finance Parties an amount less than the amount which the Borrowers
would have paid if the Supported Certificate had been delivered to the
Agent instead of the Unsupported Certificate, the Company shall, within 5
Business Days of demand, pay to the Agent for the Banks an amount equal
to that difference.
10. OPTIONAL CURRENCIES
10.1 SELECTION
(a) A Borrower may select the currency of a Loan in the relevant Request
except that each Tranche A Loan shall be in U.S. Dollars.
(b) The currency of each Loan must be Sterling or an Optional Currency except
that each Tranche A Loan shall be in U.S. Dollars.
10.2 REVOCATION OF CURRENCY
If, before 9.30 a.m. on any Rate Fixing Day for a Loan denominated in an
Optional Currency (other than U.S. Dollars or euros), the Agent receives
notice from a Bank that:
(a) it is impracticable for that Bank to fund its participation in
the Loan in the relevant Optional Currency during that Interest
Period in the ordinary course of business in the relevant
interbank market; and/or
(b) the use of the proposed Optional Currency might contravene any
law or regulation,
the Agent shall give notice to the relevant Borrower and to the Banks to
that effect before 11.00 a.m. on that day. In this event:
(i) the Borrower and the Banks may agree that the drawdown
will not be made; or
(ii) in the absence of agreement or for a Term Loan, that
Bank's participation in the Loan (or if more than one
Bank is similarly affected, those Banks' participations
in the Loan) shall be treated as a separate Loan
denominated in Sterling during that Interest Period.
11. AMOUNT OF OPTIONAL CURRENCIES
11.1 DRAWDOWNS
If a Loan is to be drawn down in an Optional Currency, the Original
Sterling Amount of each Bank's participation in that Loan will be
determined by converting into Sterling the Bank's participation in that
Loan on the basis of the applicable Agent's Spot Rate of Exchange 3
44
Business Days before its Drawdown Date. The Agent shall notify each Bank
and each Borrower of the Original Sterling Amount of each Loan
denominated in an Optional Currency and the applicable Agent's Spot Rate
of Exchange promptly after they are ascertained.
11.2 DENOMINATION OF TERM LOANS
Subject to the terms of this Agreement, a Term Loan will remain
denominated in the same currency.
12. PAYMENTS
12.1 PLACE
All payments by an Obligor or a Bank under the Finance Documents shall be
made to the Agent to its account at such office or bank:
(a) in the principal financial centre of the country of the relevant
currency; or
(b) in the case of euros, in the principal financial centre of a
Participating Member State or London,
as it may notify to that Obligor or Bank for this purpose.
12.2 FUNDS
Payments under the Finance Documents to the Agent shall be made for value
on the due date in such funds as the Agent may specify to the Party
concerned as being customary at the time for the settlement of
transactions in the relevant currency in the place for payment.
12.3 DISTRIBUTION
(a) Each payment received by the Agent under the Finance Documents for
another Party shall, subject to paragraphs (b) and (c) below, be made
available by the Agent to that Party by payment (on the date and in the
currency and funds of receipt) to its account with such office or bank:
(i) in the principal financial centre of the country of the relevant
currency; or
(ii) in the case of euros, in the principal financial centre of a
Participating Member State or London,
as it may notify to the Agent for this purpose by not less than 5
Business Days' prior notice or in the relevant Request.
(b) If the relevant Obligor agrees, the Agent may apply any amount received
by it for an Obligor in or towards payment (on the date and in the
currency and funds of receipt) of any amount due from that Obligor under
the Finance Documents or in or towards the purchase of any amount of any
currency to be so applied.
(c) Where a sum is to be paid to the Agent under the Finance Documents for
another Party, the Agent is not obliged to pay that sum to that Party
until it has established that it has actually received that sum. The
Agent may, however, assume that the sum has been paid to it in accordance
with this Agreement, and, in reliance on that assumption, make available
to that
45
Party a corresponding amount. If the sum has not been made available but
the Agent has paid a corresponding amount to another Party, that Party
shall forthwith on demand by the Agent refund the corresponding amount
together with interest on that amount from the date of payment to the
date of receipt, calculated at a rate determined by the Agent (acting
reasonably) to reflect its cost of funds.
12.4 CURRENCY
(a) A repayment or prepayment of a Loan or any part of a Loan is payable in
the currency in which the Loan is denominated on its due date.
(b) Interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
(c) Amounts payable in respect of costs, expenses and taxes and the like are
payable in the currency in which they are incurred.
(d) Any other amount payable under the Finance Documents is, except as
otherwise provided in this Agreement, payable in Sterling.
12.5 SET-OFF AND COUNTERCLAIM
All payments made by an Obligor under the Finance Documents shall be made
without set-off or counterclaim.
12.6 NON-BUSINESS DAYS
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on that principal at the rate payable
on the original due date.
12.7 PARTIAL PAYMENTS
(a) If the Agent receives a payment insufficient to discharge all the amounts
then due and payable by the Obligors under the Finance Documents, the
Agent shall apply that payment towards the obligations of the Obligors
under the Finance Documents in the following order:
(i) FIRST, in or towards payment pro rata of any unpaid fees, costs
and expenses of the Agent under the Finance Documents;
(ii) SECONDLY, in or towards payment of any commitment fee due under
Clause 22.3 (Commitment fee) but unpaid;
(iii) THIRDLY, in or towards payment pro rata of any accrued interest
due but unpaid under this Agreement;
(iv) FOURTHLY, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
46
(v) FIFTHLY, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) The Agent shall, if so directed by all the Banks, vary the order set out
in sub-paragraphs (a)(ii) to (v) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by an
Obligor.
13. TAXES
13.1 GROSS-UP
All payments by an Obligor under the Finance Documents shall be made
without any deduction and free and clear of and without any deduction for
or on account of any Taxes, except to the extent that the Obligor is
required by law to make payment subject to any Taxes. If any Tax, or
amounts in respect of Tax, must be deducted from any amounts payable or
paid by an Obligor, or paid or payable by the Agent to a Bank, under the
Finance Documents, the Obligor shall pay such additional amounts as may
be necessary to ensure that the relevant Bank receives a net amount equal
to the full amount which it would have received had payment not been made
subject to Tax. Notwithstanding the foregoing, no Obligor shall be
required to pay additional amounts under this Clause 13.1 in respect of
such Taxes to the extent they are net income taxes or branch taxes or
franchise taxes imposed in lieu of net income taxes on any Finance Party.
13.2 TAX RECEIPTS
All Taxes required by law to be deducted by an Obligor from any amounts
paid or payable under the Finance Documents shall be paid by the relevant
Obligor when due and the Obligor shall, as soon as practicable, deliver
to the Agent for the relevant Bank appropriate evidence that the payment
has been duly remitted to the appropriate authority.
13.3 QUALIFYING BANKS
(a) Subject to paragraph (b) below, if a Bank is not or ceases to be a
Qualifying Bank in respect of the U.K., no Obligor will be liable to pay
to that Bank under Clause 13.1 (Gross-up), any amount in respect of taxes
levied or imposed by the U.K. or any taxing authority of or in the U.K.
in excess of the amount it would have been obliged to pay if that Bank
had been, or had not ceased to be, a Qualifying Bank in respect of the
U.K.
(b) Paragraph (a) above does not apply if a Bank ceases to be a Qualifying
Bank in respect of the U.K. as a result of the introduction of, change
in, or any change in the interpretation, administration or application
of, any law or regulation or any practice or concession of the U.K.
Inland Revenue occurring after the date of this Agreement.
(c) Each Bank represents and warrants to each Obligor that it is a Qualifying
Bank in respect of the U.K. on the date of this Agreement or, in the case
of a Bank which becomes a Party after the date of this Agreement, on the
date it becomes a Party. If at any time after the date of this Agreement
any Bank is aware that it is not or will cease to be a Qualifying Bank in
respect of the U.K., it shall promptly notify the Agent and the Company.
(d) Each U.K. Treaty Bank shall, subject to paragraph (e) below, deliver to
each Borrower incorporated in the U.K. via the Agent on the date it
becomes a Party (and prior to the expiry of any such form previously
provided by that U.K. Treaty Bank), all such forms required to
47
allow that Borrower to make payments to that U.K. Treaty Bank without
deduction or withholding in respect of any tax imposed by the U.K.
(e) No Bank is obliged to deliver any form(s) under paragraph (d) above if
that Bank is unable to complete the form(s) in a manner which will enable
any Borrower incorporated in the U.K. to make payments to that Bank
without deduction or withholding in respect of taxes imposed by the U.K
as a result of the introduction of or any change in, or in the
interpretation or application by any relevant authority of, any law,
treaty or regulation or any practice, position or concession of the U.K.,
Inland Revenue after the date of this Agreement.
13.4 U.S. TAXES
(a) Each Bank that is not organised under the laws of the U.S. (a "NON-U.S.
BANK") represents and warrants to each U.S. Borrower on the date that
U.S. Borrower becomes a Party or, if later, on the date that Bank becomes
a Party, that it is a U.S. Treaty Bank. Each Non-U.S. Bank agrees that it
shall promptly notify the Agent and the Company if it is aware that it is
not or will cease to be a U.S. Treaty Bank.
(b) Subject to paragraph (c) below, if a Non-U.S. Bank is not or ceases to be
a U.S. Treaty Bank, no Obligor will be liable to pay to that Non-U.S.
Bank under Clause 13.1 (Gross-up) any amount in respect of taxes levied
or imposed by the U.S. or any taxing authority of or in the U.S. in
excess of the amount it would have been obliged to pay if that Non-U.S.
Bank had been, or had not ceased to be, a U.S. Treaty Bank.
(c) Paragraph (b) above does not apply if a Non-U.S. Bank ceases to be a U.S.
Treaty Bank as a result of the introduction of, change in, or any change
in the interpretation, administration or application of, any law or
regulation or any practice or concession of the U.S. Internal Revenue
Service after the date of this Agreement. For the purposes of this Clause
13.4(c), a change in, or a change in the interpretation, administration
or application of, any law or regulation or any practice or concession of
the U.S. Internal Revenue Service shall not include (i) the ratification
or entry into force of the income tax treaty between the United States
and Luxembourg or (ii) the new United States withholding regulations
(Treasury Decision 8734 and Treasury Decision 8804).
(d) Each Non-U.S. Bank shall, subject to paragraph (f) below, deliver to each
Borrower incorporated in the U.S. via the Agent on the date it becomes a
Party (and prior to the expiry of any such form previously provided by
that Non-U.S. Bank), the appropriate number of copies of duly executed
U.S. Internal Revenue Service Forms W-8BEN or W-8ECI or W-8IMY or any
successor or additional form allowing that Borrower to make payments to
that Non-U.S. Bank without deduction or withholding in respect of Income
Taxes imposed by the United States of America.
(e) Each Bank that is organised under the federal laws of, or the laws of any
of, the United States of America or the District of Columbia shall,
subject to paragraph (f) below, deliver to the Company via the Agent on
the date it becomes a Party (and prior to the expiry of any such form
previously provided by that Bank) the appropriate number of copies of
duly executed U.S. Internal Revenue Service Forms W-9 or any successor to
that form.
(f) No Bank is obliged to deliver any form(s) under paragraph (d) or (e)
above if the Bank is unable to complete the form(s) in a manner which
will enable any U.S. Borrower to make payments to that Bank without
deduction or withholding in respect of taxes imposed by the United States
of America as a result of the introduction of or any change in, or in the
interpretation or application by any relevant authority of, any law,
treaty or regulation or any
48
practice, position or concession of the U.S. Internal Revenue Service
after the date of this Agreement.
13.5 OTHER TAX FORMS
Without prejudice to Clause 13.3 (Qualifying Banks) or 13.4 (U.S. Taxes)
each Finance Party shall cooperate with the relevant Obligor and the
Agent in respect of any application to the relevant revenue authorities
by the completion and execution (as soon as reasonably practicable
following a request from the Obligor or the Agent) of such certificates,
claim forms or other documentation as:
(a) the Finance Party is reasonably able to complete and execute
without incurring any significant administrative burden on its
part; and
(b) the Obligor or the Agent reasonably requests for the purpose of
enabling the Obligor or the Agent to obtain authorisation from
the relevant revenue authorities to make interest payments in
full without deduction or withholding of Tax.
13.6 REIMBURSEMENT OF TAX CREDITS
(a) If:
(i) an Obligor pays any additional amount (a "TAX PAYMENT") under
Clause 13.1 (Gross-up); and
(ii) a Bank effectively obtains a refund of Tax, or credit against Tax
on its overall net income, by reason of that Tax Payment (a "TAX
CREDIT"); and
(iii) that Bank is able to identify such Tax Credit as being
attributable to the Tax Payment,
then the Bank shall reimburse to the relevant Obligor such proportion of
such Tax Credit as will leave the Bank, after that reimbursement, in no
better or worse position than it would have been in if such Tax Payment
had not been required.
(b) Each Bank has an absolute discretion as to whether to claim any Tax
Credit which may be due to it (and, if it does claim, the extent, order
and manner in which it does so) and whether any amount is due from it
under this Clause 13.6. No Bank is obliged to disclose any information
regarding its tax affairs or computations to any Obligor.
14. MARKET DISRUPTION
14.1 ABSENCE OF QUOTATIONS
If LIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply an offered rate by 11.30 a.m. on the
relevant Rate Fixing Day, the applicable LIBOR shall, subject to Clause
14.2 (Market disruption), be determined on the basis of the quotations of
the remaining Reference Banks.
14.2 MARKET DISRUPTION
If:
49
(a) LIBOR is to be determined by reference to the Reference Banks but
no, or (following the appointment of additional Reference Banks
pursuant to Clause 28.8 (Reference Banks)) only one, Reference
Bank supplies a rate by 11.30 a.m. on the Rate Fixing Day; or
(b) the Agent receives notification from Banks whose participations
in a Loan exceed 33 1/3 per cent. of that Loan that, in their
opinion:
(i) matching deposits may not be available to them in the
relevant interbank market in the ordinary course of
business to fund their participations in that Loan for
the relevant Interest Period; or
(ii) the cost to them of matching deposits in the relevant
interbank market would be in excess of the relevant
LIBOR,
the Agent shall promptly notify the relevant Borrower and the Banks of
the fact and that this Clause 14 is in operation.
14.3 ALTERNATIVE BASIS
If a notification under Clause 14.2 (Market disruption) applies:
(a) (i) in the case of a Loan which has not been made, and unless
the relevant Borrower notifies the Agent to the contrary
before close of business on the day it received the
notification under Clause 14.2 (Market disruption), the
Loan shall still be made but it shall be denominated (at
the option of the relevant Borrower) in Sterling or U.S.
Dollars (or a combination) shall have an Interest Period
of one month and the interest payable on that Loan shall
be determined in accordance with this Clause 14.3; and
(ii) in the case of a Term Loan which has been made, the Loan
shall continue but it shall have an Interest Period of
one month and the interest payable on that Loan shall be
determined in accordance with this Clause 14.3;
(b) within 5 Business Days of receipt of the notification for a Loan
under Clause 14.2 (Market disruption), the Company and the Agent
shall enter into negotiations for a period of not more than 30
days with a view to agreeing an alternative basis for determining
the rate of interest and/or funding applicable to that Loan;
(c) any alternative basis agreed under paragraph (b) above shall be,
with the prior consent of all the Banks, binding on all the
Parties;
(d) if no alternative basis is agreed each Bank shall (through the
Agent) certify on or before 10.00 a.m. on the last day of the
Interest Period (in respect of a Loan in Sterling) or 10.00 a.m.
on the second Business Day before the last day of the Interest
Period (in respect of a Loan in an Optional Currency) to which
the notification relates an alternative basis for maintaining its
participation in that Loan;
(e) any alternative basis under paragraph (b) or (d) above may
include an alternative method of fixing the interest rate,
alternative Interest Periods or optional currencies but it must
reflect the cost to each Bank of funding its participation in the
Loan from whatever sources it may select plus the applicable
Margin plus any applicable Mandatory Cost;
50
(f) each alternative basis so certified shall be binding on the
Obligors and each certifying Bank and treated as part of this
Agreement; and
(g) the Agent and the Company shall consult in good faith following
any significant change in market conditions with a view to
returning to the normal provisions of this Agreement.
15. INCREASED COSTS
15.1 INCREASED COSTS
(a) Subject to Clause 15.2 (Exceptions), the Company shall within five
Business Days of demand by a Bank pay to that Bank the amount of any
increased cost incurred by it or its Holding Company as a result of:
(i) the introduction of, or any change in, or any change in the
interpretation or application of any law or regulation; or
(ii) compliance with any regulation made after the date of this
Agreement,
including any law or regulation relating to taxation or reserve asset,
special deposit, cash ratio, liquidity or capital adequacy requirements
or any other form of banking or monetary control.
(b) In this Agreement "INCREASED COST" means:
(i) an additional cost incurred by a Bank or its Holding Company as a
result of having entered into, or performing, maintaining or
funding its obligations under, this Agreement; or
(ii) that portion of an additional cost incurred by a Bank or its
Holding Company in making, funding or maintaining all or any
advances comprised in a class of advances formed by or including
that Bank's participations in the Loans made or to be made under
this Agreement as is attributable to that Bank making, funding or
maintaining those participations; or
(iii) a reduction in any amount payable to a Bank or its Holding
Company or the effective return to a Bank or its Holding Company
under this Agreement or (to the extent that it is attributable to
this Agreement) on its capital.
(c) Each Bank shall notify the Company promptly upon it becoming aware of any
increased cost incurred (or which is reasonably likely to be incurred) by
it or its Holding Company. Any demand under paragraph (a) above shall be
accompanied by a calculation of the increased cost in reasonable detail.
However, a Finance Party is not obliged to disclose any confidential
information.
15.2 EXCEPTIONS
Clause 15.1 (Increased costs) does not apply to any increased cost:
(a) intended to be compensated for by the payment of the Mandatory
Cost; or
51
(b) referred to in Clause 13 (Taxes); or
(c) attributable to tax on the overall net income of a Bank or its
Holding Company.
15.3 REGULATION D COSTS
Each U.S. Borrower shall, within 5 Business Days of demand by any Bank
(through the Agent), pay to that Bank the amount of any Regulation D
Costs actually incurred by that Bank in respect of its participation in
any Loan made by it to that U.S. Borrower.
15.4 ECB COSTS
Each Borrower shall, within 5 Business Days of demand by any Bank
(through the Agent), pay to that Bank the amount of any ECB Costs
actually incurred by that Bank in respect of its participation in any
Loan made by it to that Borrower.
16. ILLEGALITY
If it is or becomes unlawful in any jurisdiction for a Bank to give
effect to any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in any Loan, then:
(a) that Bank may notify the Company through the Agent accordingly;
and
(b) if the relevant Borrowers have not transferred their obligations
under the Finance Documents to another Borrower pursuant to
Clause 28.1(b) (Transfers by Obligors) so that after such
transfer that unlawfulness has ceased to exist:
(i) each Borrower shall forthwith or (if later) on the latest
date(s) permitted by the relevant law prepay the
participations of that Bank in all the Loans made to that
Borrower; and
(ii) the Commitments of that Bank shall forthwith or (if
later) on the latest date(s) permitted by the relevant
law be cancelled.
17. GUARANTEE
17.1 GUARANTEE
Each Guarantor irrevocably and unconditionally:
(a) as principal obligor guarantees to each Finance Party prompt
performance by each Borrower of all its payment obligations under
the Finance Documents;
(b) undertakes with each Finance Party that whenever a Borrower does
not pay any amount when due under or in connection with any
Finance Document, that Guarantor shall on demand by the Agent pay
that amount as if that Guarantor instead of the relevant Borrower
were expressed to be the principal obligor; and
(c) indemnifies as primary obligor each Finance Party on demand
against any loss or liability suffered by it if any obligation
guaranteed by that Guarantor is or becomes unenforceable, invalid
or illegal.
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17.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by the Borrowers under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
17.3 REINSTATEMENT
(a) Where any discharge (whether in respect of the obligations of any Obligor
or any security for those obligations or otherwise) is made in whole or
in part or any arrangement is made on the faith of any payment, security
or other disposition which is avoided or must be restored on insolvency,
liquidation or otherwise without limitation, the liability of each
Guarantor under this Clause 17 shall continue as if the discharge or
arrangement had not occurred.
(b) Each Finance Party may concede or compromise any claim that any payment,
security or other disposition is liable to avoidance or restoration if it
has received legal advice to this effect.
17.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 17 will not be
affected by an act, omission, matter or thing which, but for this
provision, would reduce, release or prejudice any of its obligations
under this Clause 17 or prejudice or diminish those obligations in whole
or in part, including (whether or not known to it or any Finance Party):
(a) any time or waiver granted to, or composition with, any Obligor
or other person;
(b) the release of any other Obligor or any other person under the
terms of any composition or arrangement with any creditor or any
member of the Group;
(c) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any Obligor or other
person or any non-presentation or non-observance of any formality
or other requirement in respect of any instrument or any failure
to realise the full value of any security;
(d) any incapacity or lack of powers, authority or legal personality
of or dissolution or change in the members or status of an
Obligor or any other person;
(e) any variation (however fundamental) or replacement of a Finance
Document or any other document or security so that references to
that Finance Document in this Clause 17 shall include each
variation or replacement;
(f) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document or
security, to the intent that the Guarantors obligations under
this Clause 17 shall remain in full force and its guarantee be
construed accordingly, as if there were no unenforceability,
illegality or invalidity; or
(g) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any Obligor
under a Finance Document resulting from any insolvency,
liquidation or dissolution proceedings or from any law,
regulation or order so that each such obligation shall for the
purposes of each
53
Guarantor's obligations under this Clause 17 be construed as if
there were no such circumstance.
17.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed against
or enforce any other rights or security or claim payment from any person
before claiming from that Guarantor under this Clause 17.
17.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Borrowers under
or in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and
(b) hold in a suspense account any moneys received from a Guarantor
or on account of that Guarantor's liability under this Clause 17,
and interest will accrue on those moneys at the rate payable by
the relevant Borrower on the corresponding amount outstanding
under this Agreement.
17.7 NON-COMPETITION
Until all amounts which may be or become payable by the Borrowers under
or in connection with the Finance Documents have been irrevocably paid in
full, no Guarantor shall, after a claim has been made or by virtue of any
payment or performance by it under this Clause 17:
(a) be subrogated to any rights, security or moneys held, received or
receivable by any Finance Party (or any trustee or agent on its
behalf) or be entitled to any right of contribution or indemnity
in respect of any payment made or moneys received on account of
that Guarantor's liability under this Clause 17;
(b) claim, rank, prove or vote as a creditor of any Obligor or its
estate in competition with any Finance Party (or any trustee or
agent on its behalf); or
(c) receive, claim or have the benefit of any payment, distribution
or security from or on account of any Obligor, or exercise any
right of set-off as against any Obligor,
unless the Agent otherwise directs. Each Guarantor shall hold in trust
for and forthwith pay or transfer to the Agent for the Finance Parties
any payment or distribution or benefit of security received by it
contrary to this Clause 17.7 or as directed by the Agent.
17.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other security now or subsequently held by any Finance Party.
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18. REPRESENTATIONS AND WARRANTIES
18.1 REPRESENTATIONS AND WARRANTIES
Each Obligor makes the representations and warranties set out in this
Clause 18 to each Finance Party. The representations and warranties to be
made by the Company will be made in respect of itself and, where
applicable, any other member of the Group. The representations and
warranties to be given by each other Obligor will be made in respect of
itself only.
18.2 STATUS
It is a limited liability company, duly incorporated and validly existing
under the laws of its jurisdiction of incorporation and, where relevant
under those laws, in good standing and has the power to own its assets
and carry on its business as it is being conducted.
18.3 POWERS AND AUTHORITY
It has the corporate power to enter into and perform its obligations
under the Finance Documents to which it is a party and has taken all
necessary corporate action to authorise the entry into and performance of
its obligations under those Finance Documents.
18.4 LEGAL VALIDITY
Subject to any qualifications as to matters of law set out in the legal
opinion delivered under Schedule 2 in respect of that Obligor, this
Agreement constitutes, and each other Finance Document to which it is a
party (when executed in accordance with the terms of this Agreement) will
constitute, its legal, valid, binding and enforceable obligation.
18.5 NON-CONFLICT
Except to the extent contemplated by Clause 19.15 (Borrowing limits), the
entry into and performance of each Finance Document does not and will not
conflict with:
(a) any applicable law or regulation or any applicable official or
judicial order in the jurisdiction of its incorporation;
(b) its constitutional documents; or
(c) any document to which it is a party or which is binding upon it
or any of its assets.
18.6 AUTHORISATIONS
All authorisations required by it in connection with the entry into,
performance, validity and enforceability of each Finance Document to
which it is a party and the transactions contemplated by each such
Finance Document have been obtained or effected and are in (or will at
the relevant time be) full force and effect.
18.7 PARI PASSU
Its obligations under the Finance Documents do and will rank at least
pari passu with all of its other unsecured and unsubordinated obligations
other than those obligations which are mandatorily preferred by law and
not by reason of contract.
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18.8 ACCOUNTS
(a) In the case of the Company, the audited consolidated accounts of the
Group most recently delivered to the Agent (which, at the date of this
Agreement, are the Original Group Accounts):
(i) have been prepared in accordance with accounting principles
generally accepted in the U.K. and consistently applied or (if
not consistently applied) are accompanied by details of the
inconsistencies; and
(ii) give a true and fair view of the consolidated financial condition
of the Group as at the date to which they were drawn up.
(b) In the case of each Obligor (other than the Company) which produces
audited accounts, its audited accounts most recently delivered to the
Agent under Clause 19.2(a)(ii) (Financial Information):
(i) have been prepared in accordance with:
(A) accounting principles generally accepted in the U.K. and
consistently applied or (if not consistently applied) are
accompanied by details of the inconsistencies; or
(B) accounting principles generally accepted in its
jurisdiction of incorporation and consistently applied or
(if not consistently applied) are accompanied by details
of the inconsistencies; and
(ii) give a true and fair view of the financial condition of that
Obligor as at the date to which they were drawn up.
(c) In the case of each Obligor which does not produce audited accounts, the
accounts of that Obligor most recently delivered to the Agent under
Clause 19.2(a)(iii) (Financial information) have been prepared in
accordance with accounting principles required in order to consolidate
the accounts of that Obligor into the consolidated accounts of the
Company.
(d) As at the date of this Agreement, there has been no material adverse
change in the consolidated financial condition of the Group since the
date the Original Group Accounts were drawn up.
18.9 LITIGATION
As at the date of this Agreement, no litigation, arbitration or
administrative proceedings has been commenced or, to its knowledge, is
threatened or pending against any member of the Group which would be
reasonably likely to have a Material Adverse Effect.
18.10 NO DEFAULT
No Event of Default or (unless this representation is being repeated or
deemed to be repeated on the date of a Request or a Drawdown Date in
respect of a Rollover Loan) Potential Event of Default has occurred and
is continuing which has not been waived.
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18.11 YEAR 2000
The occurrence of the year 2000 will not affect the capacity of any
computer system, software or other equipment owned or used by any member
of the Group to perform any function capable of being performed by that
computer system, software or other equipment prior to the year 2000 to an
extent which would be reasonably likely to have a Material Adverse
Effect.
18.12 ERISA
(a) In the case of the Company, each U.S. Borrower and each U.S. Material
Subsidiary, each Pension Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and any other
applicable Federal law.
(b) In the case of the Company, each U.S. Borrower and each U.S. Material
Subsidiary, no event or condition has occurred or exists as a result of
which it would be under an obligation to furnish a report to the Agent in
accordance with Clause 19.17 (ERISA).
18.13 INVESTMENT COMPANY ACT
In the case of the Company, each U.S. Borrower and each U.S. Material
Subsidiary, neither it nor any of its Subsidiaries is an "investment
company", or a company "controlled" by an "investment company", within
the meaning of the Investment Company Act of 1940 of the United States of
America.
18.14 USE OF PROCEEDS
In the case of the Company, each U.S. Borrower and each U.S. Material
Subsidiary, neither it nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying Margin Stock, and no part of the proceeds
of the Loans will be used to buy or carry any Margin Stock in violation
of Regulation T, U or X of the Board of Governors of the Federal Reserve
System. For purposes of this Clause, "MARGIN STOCK" means "margin stock"
within the meaning of Regulations T, U and X of the Board of Governors of
the Federal Reserve System (or any successor), as the same may be
modified and supplemented and in effect from time to time.
18.15 ENVIRONMENTAL MATTERS
(a) It and each member of the Group complies, in all respects, with all
requirements of all Environmental Laws where failure to do so has or is
reasonably likely to have a Material Adverse Effect; and
(b) no Environmental Claim is existing or, to its knowledge pending or
threatened against it or any member of the Group which has or is
reasonably likely to have a Material Adverse Effect.
18.16 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in this Clause 18
(Representations and warranties):
(a) (i) in the case of an Obligor which is a Party on the date of
this Agreement, are made by that Obligor on that date;
and
57
(ii) in the case of an Obligor which becomes a Party after the
date of this Agreement, (with the exception of the
representations and warranties in Clauses 18.8(d)
(Accounts) and 18.9 (Litigation)) will be deemed to be
made by that Obligor on the date it executes a Borrower
Accession Agreement or Guarantor Accession Agreement, as
appropriate; and
(b) (with the exception of the representations and warranties in
Clauses 18.8(d) (Accounts) and 18.9 (Litigation)) are deemed to
be repeated by each Obligor on the date of each Request, each
Drawdown Date, the date of the Syndication Agreement and the
first day of each Interest Period with reference to the facts and
circumstances then existing.
(c) Notwithstanding the above provisions of this Clause 18.16, prior
to the Clean-Up Date any representation or warranty under this
Clause 18 which is made or deemed to be repeated in respect of
the Target Group shall not have effect.
19. UNDERTAKINGS
19.1 DURATION
(a) The undertakings in this Clause 19 remain in force from the date
of this Agreement for so long as any amount is or may be
outstanding under this Agreement or any Commitment is in force.
(b) During the Clean-Up Period the undertakings contained in Clauses
19.8 (Preferred Indebtedness), 19.9 (Disposals), 19.13
(Environmental Laws), 19.16 (Insurance) and 19.17 (ERISA) will
not apply to the Target Group.
19.2 FINANCIAL INFORMATION
The Company shall supply to the Agent in sufficient copies for all the
Banks in respect of the items referred to in paragraphs (a) and (b) below
and in sufficient copies for all the Banks in respect of the item
referred to in paragraphs (c) below if the Agent so requests:
(a) as soon as practicable (and in any event within 145 days after
the close of each of its financial years):
(i) the audited consolidated accounts of the Company;
(ii) in the case of any Obligor where the jurisdiction in
which that Obligor is incorporated requires that Obligor
to produce annual audited accounts, the audited accounts
of that Obligor; or
(iii) in any other case, the accounts of each Obligor used by
the auditors of the Company in preparing the audited
consolidated accounts of the Company,
for that year;
(b) as soon as practicable (and in any event within 120 days of the
end of the first half of each of its financial years) the
unaudited consolidated accounts of the Company for that half
year; and
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(c) together with the accounts specified in paragraphs (a)(i) and (b)
above, a Compliance Certificate signed by two duly authorised
signatories as at the end of the relevant Accounting Period.
19.3 FORM OF ACCOUNTS
If, at any time, the Company changes or proposes to change the accounting
policies upon which any of the information provided pursuant to
paragraphs (a)(i) and (b) of Clause 19.2 (Financial information) is
prepared, then:
(a) it shall notify the Agent of the change or proposed change;
(b) within 5 Business Days of receipt of the notification, it and the
Agent shall enter into discussions for a period of not more than
45 days with a view to agreeing the amendments which would be
required to be made to this Agreement (including, without
limitation, Clause 19.10 (Financial covenants)) to reflect the
basis upon which this Agreement was entered into by it and the
Banks;
(c) any agreement between it and the Agent under sub-paragraph (b)
above shall be, with the prior consent of the Majority Banks,
binding on all the Parties; and
(d) if no agreement is reached under sub-paragraph (b) above, then
Company's auditors (acting as experts) shall certify the
amendments which would be required to be made to this Agreement
to place the Company and the Banks in the same position they
would have been in if the change had not taken place; a
certificate of the Company's auditors in accordance with the
above will, in the absence of manifest error, be binding on all
the Parties.
19.4 INFORMATION - MISCELLANEOUS
The Company shall supply to the Agent:
(a) all documents despatched by the Company to its shareholders
generally (or any class of them) or its creditors generally (or
any class of them) at the same time as they are despatched;
(b) promptly upon becoming aware of them, details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending, and which might, if adversely determined,
be reasonably expected to have a Material Adverse Effect; and
(c) promptly, such further information in the possession or control
of any member of the Group regarding its financial condition and
operations as any Finance Party may reasonably request,
in sufficient copies for all of the Banks, if the Agent so requests.
19.5 NOTIFICATION OF DEFAULT
The Company shall notify the Agent of any Default (and the steps, if any,
being taken to remedy it) promptly upon becoming aware of its occurrence.
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19.6 AUTHORISATIONS
Each Obligor shall obtain and promptly renew from time to time, and will
promptly upon the request of the Agent furnish certified copies to the
Agent of, all such material authorisations as may be required under any
applicable law or regulation to enable any Obligor to perform its
obligations under, or for the validity or enforceability of, any Finance
Document.
19.7 PARI PASSU RANKING
Each Obligor undertakes that its obligations under the Finance Documents
shall rank at least pari passu with all of its other present and future
unsecured and unsubordinated obligations other than those obligations
which are mandatorily preferred by law and not by reason of contract.
19.8 PREFERRED INDEBTEDNESS
The Company shall procure that:
(a) Preferred Indebtedness does not at any time exceed L80,000,000
(or its equivalent in any other currency or currencies) in
aggregate; and
(b) the Company shall ensure that, if any derivative transaction is
or is to be entered into by a Borrower, then, unless any
applicable law prevents that Borrower becoming a Guarantor, that
Borrower will (unless it is already a Guarantor) become an
Additional Guarantor.
19.9 DISPOSALS
No Obligor shall, and the Company shall procure that no member of the
Group will, either in a single transaction or in a series of
transactions, whether related or not and whether voluntarily or
involuntarily, sell, transfer, lease or otherwise dispose of all or a
substantial part of its respective assets, except that the following
disposals shall not be taken into account:
(a) disposals made in the ordinary course of trade of the disposing
entity;
(b) disposals from a member of the Group to another member of the
Group;
(c) disposals of cash raised or borrowed for the purposes for which
it was raised or borrowed;
(d) disposals of assets in exchange for other assets comparable or
superior as to type, value and quality;
(e) disposals of certain real property in Scotland and ▇▇▇▇▇▇▇
notified to the Agent in writing before the date of this
Agreement;
(f) disposals of obsolete assets for cash; and
(g) other disposals of assets provided that the aggregate amount of
all such disposals by members of the Group permitted by this
paragraph (g) shall not exceed either:
(i) 20 per cent. of Consolidated Total Assets in any
financial year; or
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(ii) 40 per cent. of Consolidated Total Assets since the date
of this Agreement.
19.10 FINANCIAL COVENANTS
(a) The Company shall procure that:
(i) the ratio of Consolidated Net Debt to Consolidated EBITDA is not,
as at any testing date, greater than 3.0:1, and
(ii) the ratio of Consolidated EBITA to Consolidated Net Interest
Expense is not, as at any testing date, less than 3.0 to 1.
(b) (i) Notwithstanding that the amount of the terms used in paragraph
(a) above will (subject to paragraph (c) below) be derived from
the latest accounts, all the terms used in paragraph (a) above
are, subject to Clause 19.3 (Form of accounts), to be calculated
in accordance with the accounting principles applied in
connection with the Original Group Accounts;
(ii) "TESTING DATE" means the last day of each financial year and
financial half year of the Company;
(iii) if there is a dispute as to any interpretation of, or computation
for, such definitions or terms, the interpretation or computation
of the Company's auditors notified to the Agent and the Company
prevails in the absence of manifest error; and
(iv) any amount denominated in a currency other than Sterling is to be
taken into account at its Sterling equivalent calculated on the
basis set out in the then latest Accounts.
(c) For the purposes of paragraph (a) above in the case of the testing dates
falling on 31st December, 1999 and 30th June, 2000, it shall be assumed
that any acquisition of a business (including the Target Group) in 1999
occurred on 1st January, 1999 and the amounts required to be calculated
shall be derived from accounts prepared on a proforma basis.
The pro forma accounts referred to above will be prepared as follows:
(i) including the actual EBITDA and EBITA of the Target Group as if
it were a member of the Group during the twelve months period
ending on the relevant testing date;
(ii) annualising retrospectively the portion of Consolidated Net
Interest Expense attributable to the indebtedness incurred in
acquiring the Target Group over the twelve months period ending
on the relevant testing date to take into account any period of
time when the relevant Target Group was not part of the Group;
(iii) annualising retrospectively the actual EBITDA and EBITA
attributable to any acquisition in 1999 (other than the Target
Group) over the 12 months' period ending on the relevant testing
date to take into account any period of time when the relevant
business was not owned by the Group;
(iv) annualising retrospectively the Consolidated Net Interest Expense
attributable to any acquisition in 1999 (other than the Target
Group) over the 12 months period ending on the relevant testing
date to take into account any period of time when the relevant
business was not owned by the Group, and assuming for this
purpose that each such acquisition was fully funded by a part of
Total Consolidated Debt.
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19.11 ACQUISITIONS
(a) Subject to paragraph (b) below, until the date falling 18 months after
the date of this Agreement, the Company shall procure that no member of
the Group will make any acquisition the cash element of the consideration
for which is funded by raising Acquisition Financial Indebtedness (other
than under this Agreement):
(i) the Acquisition Financial Indebtedness element of which is in
excess of L50,000,000 in respect of a single acquisition; or
(ii) which, when aggregated with the principal amount of all other
Acquisition Financial Indebtedness (other than under this
Agreement) incurred since the date of this Agreement in respect
of acquisitions, exceeds L100,000,000.
(b) Any Financial Indebtedness for the purpose of the acquisition of a
division of a Canadian company which, as at the date of this Agreement,
is being negotiated up to an aggregate principal amount of Canadian
Dollars 25,000,000 shall be excluded from the calculation in paragraph
(a) above.
19.12 CHANGE OF BUSINESS
The Company shall procure that, except as disclosed to the Arrangers
prior to the date of this Agreement and in the Information Memorandum, no
substantial change is made to the nature of the Group's business from
that carried on at the date of this Agreement.
19.13 ENVIRONMENTAL LAWS
The Company shall, and the Company shall procure that each member of the
Group will, comply with and carry out its business in accordance with all
Environmental Laws necessary for the conduct of its business where any
failure to comply or carry out its business in accordance with that
Environmental Law might have a Material Adverse Effect.
19.14 COMPLIANCE WITH LAWS
The Company shall, and the Company shall procure that each member of the
Group will, comply with and carry out its business in accordance with all
laws necessary for the conduct of its business where any failure to
comply or carry out its business in accordance with that law might have a
Material Adverse Effect.
19.15 BORROWING LIMITS
The Company shall promptly and in any event:
(a) before the first Drawdown Date, increase the borrowing limit
under its articles of association so that the borrowing of the
Total Commitments in full would not breach that borrowing limit;
and
(b) within 90 days of the date of this Agreement ensure that the
borrowing of any Loan will not breach the gearing covenant in the
private placement agreement dated 25th October, 1993 to which the
Company is a party.
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19.16 INSURANCE
Each Obligor shall, and the Company shall procure that each of its
Subsidiaries will, insure and keep insured its assets with underwriters
or insurance companies in accordance with sound business practice and
where failure to do so would be reasonably likely to have a Material
Adverse Effect.
19.17 ERISA
(a) As soon as possible, and in any event within 30 days, after any U.S.
Borrower or any other member of the Group knows or has reason to know
that any of the events or conditions mentioned in paragraph (b) below
have occurred or exist, where such event or condition has or is
reasonably likely to have a Material Adverse Effect, it will furnish to
the Agent a statement signed by a senior financial officer of the
relevant company (without personal liability) setting forth details
respecting such event or condition and the action, if any, which the
relevant company or an ERISA Affiliate proposes to take with respect
thereto.
(b) The events or conditions mentioned in paragraph (a) above are:
(i) any reportable event, as defined in Section 4043(c) of ERISA with
respect to a Pension Plan, as to which the PBGC has not by
regulation waived the requirement of Section 4043(a) of ERISA
that it be notified within 30 days of the occurrence of such
event;
(ii) the failure to meet the minimum funding standards of Section 412
of the Code or Section 302 of ERISA with respect to a Pension
Plan or any request for a waiver under Section 412(d) of the Code
or Section 303 of ERISA, or for an extension under Section 412(e)
of the Code or Section 304 of ERISA for any Pension Plan;
(iii) the distribution under Section 4041(c) of ERISA of a notice of
intent to terminate any Pension Plan;
(iv) the institution by PBGC of proceedings under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan, or the receipt by any U.S.
Borrower, U.S. Material Subsidiary or any ERISA Affiliate of a
notice that such action has been taken by PBGC with respect to a
Multiemployer Plan;
(v) the complete or partial withdrawal from a Multiemployer Plan by
any U.S. Borrower or any ERISA Affiliate that results in
liability under Section 4201 or 4204 of ERISA or the receipt by
any U.S. Borrower, U.S. Material Subsidiary or any ERISA
Affiliate of notice from a Multiemployer Plan that it is in
reorganisation or insolvency pursuant to Section 4241 or 4245 of
ERISA or that it intends to terminate or has terminated under
Section 4041A of ERISA;
(vi) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against any U.S. Borrower, U.S. Material
Subsidiary or any ERISA Affiliate to enforce Section 515 of
ERISA, which proceeding is not dismissed within 30 days;
(vii) the adoption of an amendment to any Pension Plan pursuant to
Section 307 of ERISA that requires the provision of security to
such Pension Plan; or
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(viii) the conditions for the imposition of a Security Interest under
Section 302(f) of ERISA shall have been met with respect to any
Pension Plan.
(c) The Company shall furnish to the Agent, promptly after the request of the
Agent, copies of each Schedule B (actuarial information) to the annual
report (Form 5500) filed with respect to each Pension Plan.
19.18 MATERIAL SUBSIDIARIES
(a) In each Compliance Certificate the Company shall designate the
Subsidiaries which are to be Material Subsidiaries from the date of that
Compliance Certificate to the date of the next Compliance Certificate. In
each Compliance Certificate, the Company shall list Subsidiaries in
descending order of their contribution to Consolidated EBIT and, where
the Consolidated EBIT for two or more Subsidiaries is the same, list
those Subsidiaries in descending order of their contribution to
Consolidated Total Assets.
(b) The Company shall procure that the list provided in each Compliance
Certificate shall be such that, as at the end of the Accounting Period to
which the Compliance Certificate relates, the aggregate of the EBIT and
Total Assets of each Material Subsidiary plus the EBIT and Total Assets
of the Company accounts for at least 66 per cent. of Consolidated EBIT
and 50 per cent. of Consolidated Total Assets. The list shall set out the
proportion which the aggregate EBIT and Total Assets of the Company and
each Material Subsidiary bears to the Consolidated EBIT and Consolidated
Total Assets.
20. DEFAULT
20.1 EVENTS OF DEFAULT
Each of the events set out in this Clause 20 is an Event of Default
(whether or not caused by any reason whatsoever outside the control of
any Obligor or any other person).
20.2 NON-PAYMENT
An Obligor does not pay on the due date any amount payable by it under
the Finance Documents at the place at and in the currency in which it is
expressed to be payable and (if caused solely by technical or
administrative error) the non-payment continues unremedied for 3 Business
Days after notice of non-payment is received from the Agent.
20.3 BREACH OF OTHER OBLIGATIONS
(a) An Obligor fails to comply with any provision of Clauses 19.8 (Preferred
Indebtedness), 19.9 (Disposals), 19.10 (Financial covenants) or 19.11
(Acquisitions);
(b) An Obligor does not comply with any provision of the Finance Documents
(other than those referred to in Clause 20.2 (Non-payment) or paragraph
(a) above) and, if that default is capable of remedy, it is not remedied
within 20 days of the earlier of the relevant Obligor becoming aware of
the default and receipt by it of a notice of default from the Agent.
20.4 MISREPRESENTATION
A representation or warranty made or repeated in any Finance Document or
in any document delivered by or on behalf of any Obligor under or in
connection with any Finance Document
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is incorrect in any material respect when made or deemed to be made or
repeated by reference to the facts and circumstances then subsisting.
20.5 CROSS-DEFAULT
(a) Any Financial Indebtedness of a member of the Group is not paid when due
or within any applicable grace period; or
(b) an event of default howsoever described occurs under any document
relating to Financial Indebtedness of a member of the Group; or
(c) any Financial Indebtedness of a member of the Group becomes prematurely
due and payable or is placed on demand as a result of an event of default
(howsoever described) under the document relating to that Financial
Indebtedness; or
(d) any commitment for, or underwriting of, any Financial Indebtedness of a
member of the Group is cancelled or suspended as a result of an event of
default (howsoever described) under the document relating to that
Financial Indebtedness; or
(e) any Security Interest securing Financial Indebtedness over any asset of a
member of the Group becomes enforceable,
unless, in any such case or cases:
(i) the aggregate amount of all such Financial Indebtedness is less
than L10,000,000 (or its equivalent in other currencies); or
(ii) the Financial Indebtedness is that of the Target or a Subsidiary
of the Target and the relevant event occurs prior to the Clean-Up
Date.
20.6 INSOLVENCY
(a) An Obligor or a Material Subsidiary is, or is deemed for the purposes of
any law to be, unable to pay its debts as they fall due or to be
insolvent, or admits inability to pay its debts as they fall due; or
(b) an Obligor or a Material Subsidiary suspends making payments on all or
any class of its debts or announces an intention to do so, or a
moratorium is declared in respect of all or any class of its
indebtedness; or
(c) an Obligor or a Material Subsidiary by reason of financial difficulties,
begins negotiations with one or more of its creditors with a view to the
readjustment or rescheduling of all or any class of its indebtedness.
20.7 INSOLVENCY PROCEEDINGS
(a) Any step (including petition, proposal or convening a meeting) is taken
with a view to a composition, assignment or arrangement with any
creditors of an Obligor or a Material Subsidiary; or
(b) a meeting of an Obligor or a Material Subsidiary is convened for the
purpose of considering any resolution for (or to petition for) its
winding-up or its administration or any such resolution is passed; or
65
(c) any person presents a petition for the winding-up or for the
administration of an Obligor or a Material Subsidiary, and, in the case
of a petition for winding-up presented by a creditor, it is not
withdrawn, discharged or stayed within 30 days; or
(d) any order is made for the winding-up or administration of an Obligor or a
Material Subsidiary; or
(e) any other step (including petition, proposal or convening a meeting) is
taken with a view to the rehabilitation, administration, custodianship,
liquidation, winding-up or dissolution of or any other insolvency
proceedings involving an Obligor or a Material Subsidiary, and, in the
case of any such step taken by a creditor, it is not withdrawn,
discharged or stayed within 30 days.
20.8 APPOINTMENT OF RECEIVERS AND MANAGERS
(a) Any liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or the like is
appointed in respect of an Obligor or a Material Subsidiary or any part
of its assets; or
(b) the directors of an Obligor or a Material Subsidiary request the
appointment of a liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver, administrator or
the like; or
(c) any other step is taken to enforce any security over any part of the
assets of an Obligor or a Material Subsidiary and is not withdrawn,
discharged or stayed within 30 days.
20.9 CREDITORS' PROCESS
Any attachment, sequestration, distress or execution affects any assets
of an Obligor or a Material Subsidiary having an aggregate value of
L1,000,000 (or its equivalent in other currencies) and is not discharged
within 30 days.
20.10 U.S. OBLIGOR OR U.S. MATERIAL SUBSIDIARY INSOLVENCY EVENTS OF DEFAULT
(a) Any proceeding shall be instituted by or against any U.S. Obligor or U.S.
Material Subsidiary seeking:
(i) to adjudicate it a bankrupt or insolvent in the U.S.; or
(ii) liquidation, winding-up, reorganisation, arrangement, adjustment,
protection, relief, or composition of it or its debts under any
U.S. law relating to bankruptcy, insolvency or reorganisation or
relief of debtors; or
(iii) the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any
substantial part of its assets in the U.S.;
and, in the case of any such proceeding instituted against it (but not
instituted by it), either:
(1) the proceeding shall remain undismissed or unstayed for a period
of 60 days; or
66
(2) any of the actions sought in the proceeding (including, without
limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar
official for, it or any substantial part of its assets) shall
occur; or
(b) any U.S. Obligor or U.S. Material Subsidiary shall take any corporate
action to authorise any of the actions set out above in this Clause; or
(c) any U.S. Obligor or U.S. Material Subsidiary is unable to pay its debts
generally as they fall due or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit
of creditors.
20.11 ANALOGOUS PROCEEDINGS
There occurs, in relation to an Obligor or a Material Subsidiary, any
event anywhere which, in the opinion of the Majority Banks, appears to
correspond with any of those mentioned in Clauses 20.6 (Insolvency) to
20.10 (U.S. Obligor or U.S. Material Subsidiary insolvency events of
default) (inclusive).
20.12 UNLAWFULNESS
It is or becomes unlawful for any Obligor to perform any of its
obligations under the Finance Documents.
20.13 CESSATION OF BUSINESS
Any Obligor or Material Subsidiary ceases to carry on business unless the
business is transferred to any other member of the Group.
20.14 EFFECTIVENESS OF GUARANTEE
The guarantee of a Guarantor is ineffective or is alleged by any Obligor
to be ineffective, for any reason, and, in the case of the guarantee of a
Guarantor (other than the Company), the Company would be in breach of
Clause 19.8 (Preferred Indebtedness) if that guarantee was ineffective.
20.15 MATERIAL ADVERSE CHANGE
Any event or series of events occurs which, in the reasonable opinion of
the Majority Banks, has or is reasonably likely to have a Material
Adverse Effect.
20.16 ACCELERATION
On and at any time after the occurrence of an Event of Default which is
continuing the Agent may, and shall if so directed by the Majority Banks,
by notice to the Company:
(a) cancel the Total Commitments; and/or
(b) demand that all or part of the Loans, together with accrued
interest, and all other amounts accrued under this Agreement be
immediately due and payable, whereupon they shall become
immediately due and payable; and/or
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(c) demand that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent (acting on the instructions of the Majority Banks).
21. THE AGENT AND THE ARRANGERS
21.1 APPOINTMENT AND DUTIES OF THE AGENT
(a) Each Finance Party (other than the Agent) irrevocably appoints the Agent
to act as its agent under and in connection with the Finance Documents.
(b) Each Party appointing the Agent irrevocably authorises the Agent on its
behalf to:
(i) perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in
connection with the Finance Documents, together with any other
incidental rights, powers and discretions; and
(ii) execute each Finance Document expressed to be executed by the
Agent on that Party's behalf.
(c) The Agent has only those duties which are expressly specified in the
Finance Documents. Those duties are solely of a mechanical and
administrative nature.
21.2 ROLE OF THE ARRANGERS
Except as specifically provided in the Finance Documents, no Arranger has
any obligations of any kind to any other Party under or in connection
with any Finance Document.
21.3 RELATIONSHIP
The relationship between the Agent and the other Finance Parties is that
of agent and principal only. Except as contemplated by the Finance
Documents, nothing in this Agreement constitutes the Agent as trustee or
fiduciary for any other Party or any other person and the Agent need not
hold in trust any moneys paid to it for a Party or be liable to account
for interest on those moneys.
21.4 MAJORITY BANKS' INSTRUCTIONS
(a) The Agent will be fully protected if it acts in accordance with the
instructions of the Majority Banks in connection with the exercise of any
right, power or discretion or any matter not expressly provided for in
the Finance Documents. Any such instructions given by the Majority Banks
will be binding on all the Banks. In the absence of such instructions,
the Agent may act as it considers to be in the best interests of all the
Banks.
(b) The Agent is not authorised to act on behalf of a Bank (without first
obtaining that Bank's consent) in any legal or arbitration proceedings
relating to any Finance Document.
21.5 DELEGATION
The Agent may act under the Finance Documents through its personnel and
agents.
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21.6 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor any Arranger is responsible to any other Party for:
(a) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(b) the collectability of amounts payable under any Finance Document;
or
(c) the accuracy of any statements (whether written or oral) made in
or in connection with any Finance Document (including, without
limitation, the Information Memorandum).
21.7 DEFAULT
(a) The Agent is not obliged to monitor or enquire as to whether or not a
Default has occurred. The Agent will not be deemed to have knowledge of
the occurrence of a Default. However, if the Agent receives notice from a
Party referring to this Agreement, describing the Default and stating
that the event is a Default, it shall promptly notify the Banks.
(b) The Agent may require the receipt of security satisfactory to it, whether
by way of payment in advance or otherwise, against any liability or loss
which it will or may incur in taking any proceedings or action arising
out of or in connection with any Finance Document before it commences
those proceedings or takes that action.
21.8 EXONERATION
(a) Without limiting paragraph (b) below, the Agent will not be liable to any
other Finance Party for any action taken or not taken by it under or in
connection with any Finance Document, unless directly caused by its gross
negligence or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee or agent
of the Agent in respect of any claim it might have against the Agent or
in respect of any act or omission of any kind (including gross negligence
or wilful misconduct) by that officer, employee or agent in relation to
any Finance Document.
21.9 RELIANCE
The Agent may:
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of, the
proper person;
(b) rely on any statement made by a director or employee of any
person regarding any matters which may reasonably be assumed to
be within his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional advisers
selected by it (including those in the Agent's employment and
those representing a Party other than the Agent).
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21.10 CREDIT APPROVAL AND APPRAISAL
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Bank confirms that it:
(a) has made its own independent investigation and assessment of the
financial condition and affairs of each Obligor and its related
entities in connection with its participation in this Agreement
and has not relied exclusively on any information provided to it
by the Agent or any Arranger in connection with any Finance
Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities while
any amount is or may be outstanding under the Finance Documents
or any Commitment is in force.
21.11 INFORMATION
(a) The Agent shall promptly forward to the person concerned the original or
a copy of any document which is delivered to the Agent by a Party for
that person.
(b) The Agent shall promptly supply a Bank with a copy of each document
received by the Agent under Clauses 4 (Conditions precedent), 28.5
(Additional Borrowers) or 28.6 (Additional Guarantors) upon the request
and at the expense of that Bank.
(c) Except where this Agreement specifically provides otherwise, the Agent is
not obliged to review or check the accuracy or completeness of any
document it forwards to another Party.
(d) Except as provided above, the Agent has no duty:
(i) either initially or on a continuing basis to provide any Bank
with any credit or other information concerning the financial
condition or affairs of any Obligor or any related entity of any
Obligor whether coming into its possession before, on or after
the date of this Agreement; or
(ii) unless specifically requested to do so by a Bank in accordance
with a Finance Document, to request any certificates or other
documents from any Obligor.
21.12 THE AGENT AND THE ARRANGERS INDIVIDUALLY
(a) If it is also a Bank, the Agent and each Arranger has the same rights and
powers under this Agreement as any other Bank and may exercise those
rights and powers as though it were not the Agent or an Arranger.
(b) The Agent and each Arranger may:
(i) carry on any business with an Obligor or its related entities;
(ii) act as agent or trustee for, or in relation to any financing
involving, an Obligor or its related entities; and
(iii) retain any profits or remuneration in connection with its
activities under this Agreement or in relation to any of the
foregoing.
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(c) If it is also a Bank, any reference in the Finance Documents to the Agent
means the agency department of the Agent specifically responsible for
acting as Agent under and in connection with the Finance Documents, as
referred to in Clause 34 (Notices). In acting as Agent, the agency
department will be treated as a separate entity from any other department
or division of the Bank concerned. Without limiting the above, the Agent
will not be deemed to have notice of a document, information, fact,
matter or thing in the possession or knowledge of any other department or
division of that Bank.
(d) Each Obligor irrevocably authorises the Agent to disclose to the other
Finance Parties any information which, in the opinion of the Agent, is
received by it in its capacity as the Agent.
(e) The Agent may deduct from any amount received by it for the Banks pro
rata any unpaid fees, costs and expenses of the Agent incurred by it in
connection with the Finance Documents.
21.13 INDEMNITIES
(a) Without limiting the liability of any Obligor under the Finance
Documents, each Bank shall forthwith on demand indemnify the Agent for
that Bank's proportion of any liability or loss incurred by the Agent in
any way relating to or arising out of its acting as the Agent, except to
the extent that the liability or loss arises directly from the Agent's
gross negligence or wilful misconduct.
(b) A Bank's proportion of the liability or loss set out in paragraph (a)
above will be the proportion which its participation in the Loans (if
any) bears to the Original Sterling Amount of all the Loans on the date
of the demand. However, if there is no Loan outstanding on the date of
demand, then the proportion will be the proportion which its Commitments
bears to the Total Commitments at the date of demand or, if the Total
Commitments have then been cancelled, bore to the Total Commitments
immediately before being cancelled.
21.14 COMPLIANCE
(a) The Agent may refrain from doing anything which might, in its opinion,
constitute a breach of any law or regulation or be otherwise actionable
at the suit of any person, and may do anything which, in its opinion, is
necessary or desirable to comply with any law or regulation of any
jurisdiction.
(b) Without limiting paragraph (a) above, the Agent need not disclose any
information relating to any Obligor or any of its related entities if the
disclosure might, in the opinion of the Agent, constitute a breach of any
law or regulation or any duty of secrecy or confidentiality or be
otherwise actionable at the suit of any person.
21.15 RESIGNATION OF THE AGENT
(a) Notwithstanding its irrevocable appointment, the Agent may resign by
giving notice to the Banks and the Company, in which case the Agent may
forthwith appoint one of its Affiliates as successor Agent or, failing
that, the Majority Banks may (with the prior consent of the Company)
appoint a successor Agent.
(b) If the appointment of a successor Agent is to be made by the Majority
Banks but they have not, within 30 days after notice of resignation,
appointed a successor Agent which accepts the appointment, the Agent may
(with the prior consent of the Company) appoint a successor Agent.
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(c) The resignation of the Agent and the appointment of any successor Agent
will both become effective only upon the successor Agent notifying all
the Parties that it accepts its appointment. On giving the notification,
the successor Agent will succeed to the position of the Agent and the
term "AGENT" will mean the successor Agent.
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such assistance as
the successor Agent may reasonably request for the purposes of performing
its functions as the Agent under this Agreement.
(e) Upon its resignation becoming effective, this Clause 21 shall continue to
benefit the retiring Agent in respect of any action taken or not taken by
it under or in connection with the Finance Documents while it was the
Agent, and, subject to paragraph (d) above, it shall have no further
obligations under any Finance Document.
(f) The Majority Banks may, by notice to the Agent, require it to resign in
accordance with paragraph (a) above. In this event, the Agent shall
resign in accordance with paragraph (a) above but it shall not be
entitled to appoint one of its Affiliates as successor Agent.
21.16 BANKS
(a) (i) The Agent may treat each Bank as a Bank, entitled to payments
under this Agreement and as acting through its Facility Office(s)
until it has received not less than 5 Business Days' prior notice
from that Bank to the contrary.
(ii) The Agent may at any time, and shall if requested to do so by the
Company or the Majority Banks, convene a meeting of the Banks.
(b) Each Bank, on the date on which it becomes a party to this Agreement,
represents to the Agent that it is:
(i) either:
(A) not resident in the United Kingdom for United Kingdom tax
purposes; or
(B) a "bank" as defined in section 840A of the Income and
Corporation Taxes Act 1988 and resident in the United
Kingdom; and
(ii) beneficially entitled to the principal and interest payable by
the Agent to it under this Agreement,
and shall forthwith notify the Agent if either representation ceases to
be correct.
22. FEES
22.1 ARRANGEMENT FEE
Subject to Clause 22.5 (Joint and several liability), the Borrowers shall
pay to the Agent for the account of Arrangers an arrangement fee in the
amounts and on the dates agreed in the Fee Letter between the Company and
the Arrangers.
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22.2 AGENT'S FEE
Subject to Clause 22.5 (Joint and several liability), the Borrowers shall
pay to the Agent for its own account an agency fee in the amount and on
the dates agreed in the Fee Letter between the Agent and the Company.
22.3 COMMITMENT FEE
(a) Subject to Clause 22.5 (Joint and several liability), the Borrowers shall
during the relevant Commitment Period pay to the Agent for each Bank a
commitment fee computed at the rate of:
(i) half the applicable Margin on the undrawn, uncancelled amount of
that Bank's Tranche A Commitment;
(ii) half the applicable Margin on the undrawn, uncancelled amount of
that Bank's Tranche B Commitment; and
(iii) 0.125 per cent. per annum on the undrawn, uncancelled amount of
that Bank's Tranche C Commitment.
(b) For the purpose of calculating commitment fee, Loans (other than Tranche
A Loans) are taken at their Original Sterling Amount. Any change to the
rate of this fee under sub-paragraph (a) above will take effect at the
same time as any change in the Margin occurs under Clause 9.5 (Adjustment
of the Margin) as if a Loan was borrowed at that time.
(c) Accrued commitment fee is payable quarterly in arrear, with the first
payment being payable three months after the date of this Agreement.
Accrued commitment fee shall also be payable to the Agent for the
relevant Bank on the cancelled amount of its Commitment at the time the
cancellation comes into effect. Accrued commitment fee is payable in U.S.
Dollars (in the case of sub-paragraph (a)(i) above) or Sterling (in the
case of sub-paragraphs (a)(ii) and (a)(iii) above).
22.4 VAT
Any fee referred to in this Clause 22 is exclusive of any value added tax
or any other tax which might be chargeable in connection with that fee.
If any value added tax or other tax is so chargeable, it shall be paid by
the Borrowers at the same time as it pays the relevant fee.
22.5 JOINT AND SEVERAL LIABILITY
(a) The obligations of the Borrowers under this Clause 22 are joint and
several obligations of each Borrower.
(b) The obligations of each Borrower under this Clause 22 shall not be
affected by any release of any Obligor or any other person under the
terms of any composition or arrangement with any creditor of any Obligor.
(c) Failure of any Borrower to carry out its obligations under this Clause 22
does not relieve any other Borrower of its obligations under this Clause
22.
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23. EXPENSES
23.1 INITIAL AND SPECIAL COSTS
The Company shall within 5 Business Days of demand pay the Arrangers the
amount of all reasonable costs and expenses (including legal fees to any
limit agreed in the Mandate Letter, and any applicable value added tax)
incurred by them in connection with:
(a) the negotiation, preparation, printing and execution of:
(i) this Agreement and any other documents referred to in
this Agreement;
(ii) any other Finance Document (other than a Novation
Certificate) executed after the date of this Agreement;
and
(iii) the arrangement and syndication of the Facilities; and
(b) any amendments, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf of
an Obligor or, in the case of Clause 27.2 (Change of Currency)
the Agent, and relating to a Finance Document or a document
referred to in a Finance Document.
23.2 ENFORCEMENT COSTS
The Company shall forthwith on demand pay to each Finance Party the
amount of all costs and expenses (including legal fees and any applicable
value added tax) incurred by it in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.
24. STAMP DUTIES
The Company shall pay and within 5 Business Days of demand indemnify each
Finance Party against any liability it incurs in respect of any stamp,
registration and similar tax which is or becomes payable in connection
with the entry into, performance or enforcement of any Finance Document
(other than the entry into of a Novation Certificate), including any
liability which results from any failure to pay or any delay in paying
such tax.
25. INDEMNITIES
25.1 CURRENCY INDEMNITY
(a) If a Finance Party receives an amount in respect of an Obligor's
liability under the Finance Documents or if that liability is converted
into a claim, proof, judgment or order in a currency other than the
currency (the "CONTRACTUAL CURRENCY") in which the amount is expressed to
be payable under the relevant Finance Document:
(i) that Obligor shall indemnify that Finance Party as an independent
obligation against any loss or liability arising out of or as a
result of the conversion;
(ii) if the amount received by that Finance Party, when converted into
the contractual currency at a market rate in the usual course of
its business is less than the amount owed in the contractual
currency, the Obligor concerned shall forthwith on demand
74
pay to that Finance Party an amount in the contractual currency
equal to the deficit; and
(iii) the Obligor shall forthwith on demand pay to the Finance Party
concerned any exchange costs and taxes payable in connection with
any such conversion.
(b) Each Obligor waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency other than that in which
it is expressed to be payable.
25.2 OTHER INDEMNITIES
The Company shall indemnify each Finance Party against any loss or
liability which that Finance Party incurs as a consequence of:
(a) the occurrence of any Event of Default;
(b) the operation of Clause 20.16 (Acceleration);
(c) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment or (other than by reason of negligence or
default by any Finance Party) a Loan not being made after the
Borrower has delivered a Request; or
(d) any payment of principal or an overdue amount being received from
any source otherwise than on the last day of a relevant Interest
Period or Designated Interest Period (as defined in Clause 9.3
(Default interest)) relative to the amount so received.
The Company's liability in each case includes any loss (other than loss
of margin) or expense on account of funds borrowed, contracted for or
utilised to fund any amount payable under any Finance Document, any
amount repaid or prepaid or any Loan.
25.3 ACQUISITION FINANCE INDEMNITY
(a) The Company shall within 5 Business Days of demand indemnify each Finance
Party against any loss or liability which that Finance Party suffers or
incurs as a consequence of any litigation proceeding arising, pending or
threatened against that Finance Party as a result of the Merger (whether
or not made) or of it agreeing to finance or refinance the Merger or
arising out of the use of proceeds of any Loan ("RELEVANT LITIGATION")
except to the extent caused by its gross negligence or wilful misconduct.
(b) A Finance Party shall notify the Company promptly upon becoming aware,
and in reasonable detail, of any relevant litigation and shall keep the
Company informed of its progress.
(c) A Finance Party shall conduct any relevant litigation in good faith and
will give careful consideration to the views of the Company in relation
to the appointment of professional advisers and the conduct of the
litigation taking into account (to the extent practicable) both its
interests and the interests of the Company.
(d) A Finance Party may only concede or compromise any claim in respect of
any relevant litigation if it has consulted the Company (as time may
permit) before so doing.
(e) Notwithstanding paragraphs (a) to (d) above, a Finance Party is not
required to disclose to the Company any matter in respect of which it is
under a duty of non-disclosure or which is subject to any attorney/client
privilege, or which relates to a Finance Party's policy or other
75
extrinsic matters. Any information disclosed by a Finance Party to the
Company under this Clause 25.3 shall be subject to the same conditions of
confidentiality as those set out in Clause 29 (Disclosure of Information)
in relation to disclosure to potential transferees.
26. EVIDENCE AND CALCULATIONS
26.1 ACCOUNTS
Accounts maintained by a Finance Party in connection with this Agreement
are prima facie evidence of the matters to which they relate.
26.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount
under the Finance Documents is prima facie evidence of the matters to
which it relates.
26.3 CALCULATIONS
Interest and the fee payable under Clause 22.3 (Commitment fee) accrue
from day to day and are calculated on the basis of the actual number of
days elapsed and a year of 365 days, or, in the case of interest payable
on an amount denominated in an Optional Currency or unless market
practice otherwise dictates, 360 days.
27. AMENDMENTS AND WAIVERS
27.1 PROCEDURE
(a) Subject to Clause 27.3 (Exceptions), any term of the Finance Documents
may be amended or waived with the agreement of the Company and the
Majority Banks. The Agent may effect, on behalf of any Finance Party, an
amendment or waiver permitted under this Clause.
(b) The Agent shall promptly notify the other Parties of any amendment or
waiver effected under paragraph (a) above, and any such amendment or
waiver shall be binding on all the Parties.
27.2 CHANGE OF CURRENCY
Notwithstanding Clause 27.1 (Procedure) if a change in any currency of a
country occurs, this Agreement will be amended to the extent the Agent
determines is necessary to reflect the change in currency and to put each
Finance Party in the same position, so far as possible, that it would
have been in if no change in currency had occurred.
27.3 EXCEPTIONS
(a) An amendment or waiver which relates to:
(i) the definition of "MAJORITY BANKS" in Clause 1.1 (Definitions);
(ii) an extension of the date (including any Revolving Credit
Repayment Date or Final Maturity Date) for, or a decrease in an
amount or (subject to Clause 27.2 (Change of currency)) a change
in the currency of, any payment to that Bank under the Finance
Documents (including the Margin and any fee payable under Clause
22.3 (Commitment fee));
76
(iii) an increase in a Bank's Commitment;
(iv) the incorporation of additional borrowers otherwise than in
accordance with Clause 28.5 (Additional Borrowers);
(v) a term of a Finance Document which expressly requires the consent
of all the Banks; or
(vi) Clause 2.2 (Nature of a Finance Party's rights and obligations),
Clause 28.2 (Transfers by Banks), Clause 31 (Pro rata sharing) or
this Clause 27,
may not be effected without the agreement of all the Banks.
(b) An amendment or waiver which relates to the rights and/or obligations of
the Agent may not be effected without the agreement of the Agent.
27.4 WAIVERS AND REMEDIES CUMULATIVE
The rights of each Party under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
28. CHANGES TO THE PARTIES
28.1 TRANSFERS BY OBLIGORS
(a) Subject to paragraph (b) below, no Obligor may assign, transfer, novate
or dispose of any of, or any interest in, its rights and/or obligations
under the Finance Documents;
(b) If no Default is outstanding at that time, a Borrower (the "EXISTING
BORROWER") may transfer all or any part of its obligations under the
Finance Documents to any other Borrower (the "NEW BORROWER") and the New
Borrower may enter into such documentation as the Agent may reasonably
require to effect the transfer.
28.2 TRANSFERS BY BANKS
(a) A Bank (the "EXISTING BANK") may, subject to paragraph (b) below, at any
time assign, transfer or novate any of its Commitments and/or any of its
rights and/or obligations under this Agreement to another bank or
financial institution which is a Qualifying Bank (the "NEW BANK").
(b) (i) A transfer of part of a Commitment must be in a minimum amount of
at least L10,000,000 (or its equivalent in any other
currency).
(ii) The prior consent of the Company is required for any assignment,
transfer or novation under paragraph (a) above unless the New
Bank is another Bank or an Affiliate of a Bank or an Event of
Default is outstanding. However, this consent must
77
not be unreasonably withheld or delayed and will be deemed to
have been given if it is not refused by the Company within 10
Business Days of receipt of a request for it.
(iii) A Bank may only assign, transfer or novate part of one of its
Commitments if it assigns, transfers or novates at the same time
a pro rata proportion of its other Commitments.
(iv) The prior consent of the Company is required if the New Bank is a
U.K. Treaty Bank.
(v) A Bank will still be treated as a Qualifying Bank if it takes
advantage of Clause 2.5 (Affiliates of Banks) to satisfy the
requirements of this Clause so long as the branch or Affiliate
under Clause 2.5 (Affiliates of Banks) is a Qualifying Bank.
(c) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with Clause 28.3
(Procedure for novations); or
(ii) the New Bank confirms to the Agent and the Company that it
undertakes to be bound by the terms of this Agreement as a Bank
in form and substance satisfactory to the Agent. On the transfer
becoming effective in this manner the Existing Bank shall be
relieved of its obligations under this Agreement to the extent
that they are transferred to the New Bank.
(d) Nothing in this Agreement restricts the ability of a Bank to sub-contract
an obligation to a person if that Bank remains liable under this
Agreement for that obligation.
(e) On each occasion an Existing Bank assigns, transfers or novates any of
its Commitments and/or any of its rights and/or obligations under this
Agreement (otherwise than pursuant to a Syndication Agreement), the New
Bank shall, on the date the assignment, transfer and/or novation takes
effect, pay to the Agent for its own account a fee of L750.
(f) An Existing Bank is not responsible to a New Bank for:
(i) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance Document;
or
(iii) the accuracy of any statements (whether written or oral) made in
or in connection with any Finance Document.
(g) Each New Bank confirms to the Existing Bank and the other Finance Parties
that it:
(i) has made its own independent investigation and assessment of the
financial condition and affairs of each Obligor and its related
entities in connection with its participation in this Agreement
and has not relied exclusively on any information provided to it
by the Existing Bank in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities while
any amount is or may be outstanding under this Agreement or any
Commitment is in force.
78
(h) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the rights and/or
obligations assigned, transferred or novated under this Clause;
or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by any Borrower of its obligations under this
Agreement or otherwise.
(i) Any reference in this Agreement to a Bank includes a New Bank but
excludes a Bank if no amount is or may be owed to or by it under this
Agreement and its Commitments have been cancelled or reduced to nil.
28.3 PROCEDURE FOR NOVATIONS
(a) A novation is effected if:
(i) the Existing Bank and the New Bank deliver to the Agent a duly
completed certificate, substantially in the form of Part I of
Schedule 5 (a "NOVATION CERTIFICATE") and the Agent executes it;
or
(ii) a Syndication Agreement is executed by all the parties to it.
(b) Each Party (other than the Existing Bank and the New Bank) irrevocably
authorises the Agent to execute any duly completed Novation Certificate
on its behalf.
(c) To the extent that they are expressed to be the subject of the novation
in the Novation Certificate:
(i) the Existing Bank and the other Parties (the "EXISTING PARTIES")
will be released from their obligations to each other (the
"DISCHARGED OBLIGATIONS");
(ii) the New Bank and the existing Parties will assume obligations
towards each other which differ from the discharged obligations
only insofar as they are owed to or assumed by the New Bank
instead of the Existing Bank;
(iii) the rights of the Existing Bank against the existing Parties and
vice versa (the "DISCHARGED RIGHTS") will be cancelled; and
(iv) the New Bank and the existing Parties will acquire rights against
each other which differ from the discharged rights only insofar
as they are exercisable by or against the New Bank instead of the
Existing Bank,
all on the date of execution of the Novation Certificate by the Agent or,
if later, the date specified in the Novation Certificate.
28.4 INCREASED COSTS OR CHANGES TO THE FACILITY OFFICE
(a) If:
(i) a Bank assigns, transfers or novates any of its Commitments
and/or rights and/or obligations under the Finance Documents or
changes its Facility Office without the prior consent of the
Company; and
79
(ii) as a result of circumstances existing at the date the assignment,
transfer, novation or change occurs, an Obligor would be obliged
to make a payment to the New Bank or Bank acting through its new
Facility Office under Clause 13 (Taxes) or Clause 15 (Increased
costs) or Clause 16 (Illegality),
then, notwithstanding the provisions of Clause 13 (Taxes), 15 (Increased
costs) or 16 (Illegality), the relevant New Bank or Bank acting through
its new Facility Office is only entitled to receive payment under those
Clauses from an Obligor in respect of those circumstances to the same
extent as the relevant Existing Bank or Bank acting through its previous
Facility Office would have been if the assignment, transfer, novation or
change had not occurred.
(b) No:
(i) U.K. Bank will move its Facility Office outside the U.K.; or
(ii) U.K. Treaty Bank will move its Facility Office inside the U.K.,
without prior consent of the Company.
28.5 ADDITIONAL BORROWERS
(a) If the Company wishes one of its wholly-owned Subsidiaries to become an
Additional Borrower, then it may, with the prior consent of the Banks
(except that no consent is required in respect of ▇▇▇▇▇▇▇▇▇ International
Inc., ▇▇▇▇▇▇▇▇▇ Holdings Corporation or ▇▇▇▇▇▇▇▇▇ B.V.), deliver to the
Agent a Borrower Accession Agreement.
(b) On delivery of a Borrower Accession Agreement, executed by the relevant
Subsidiary and the Company, the Subsidiary concerned will become an
Additional Borrower. However it may not submit a Request until the Agent
confirms to the other Finance Parties that it has received all the
documents listed in Part II of Schedule 2.
(c) Delivery of a Borrower Accession Agreement, executed by the relevant
Subsidiary and the Company, constitutes confirmation by that Subsidiary
and the Company that the representations and warranties set out in Clause
18 (Representations and warranties) deemed to be made on that date are
correct on the date of the Borrower Accession Agreement, as if made by
them with reference to the facts and circumstances then existing.
(d) For the purpose of this Clause, a Subsidiary will be regarded as
wholly-owned if a portion of the share capital is required to be held by
law by officers of that Subsidiary.
28.6 ADDITIONAL GUARANTORS
(a) If the Company wishes one of its wholly-owned Subsidiaries to become an
Additional Guarantor, then it may (with the prior agreement of the Agent
acting on instructions of the Majority Banks) deliver to the Agent the
documents listed in Part IV of Schedule 2.
(b) On delivery of a Guarantor Accession Agreement, executed by the relevant
Subsidiary and the Company, the Subsidiary concerned will become an
Additional Guarantor.
(c) Delivery of a Guarantor Accession Agreement, executed by the relevant
Subsidiary and the Company, constitutes confirmation by that Subsidiary
and the Company that the representations and warranties set out in Clause
18 (Representations and warranties) deemed
80
to be made on that date are correct on the date of the Guarantor
Accession Agreement, as if made by them with reference to the facts and
circumstances then existing.
(d) For the purpose of this Clause, a Subsidiary will be regarded as
wholly-owned if a portion of the share capital is required to be held by
law by officers of that Subsidiary.
28.7 REMOVAL OF OBLIGORS
(a) At any time any Obligor (other than the Company) may by notice to the
Agent (countersigned by two authorised signatories of the Company)
request that it ceases to be an Obligor.
(b) If:
(i) no Default is outstanding at that time or is likely to result
from that Obligor ceasing to be an Obligor; and
(ii) in the case of any Borrower, it has no outstanding obligations
under the Finance Documents (except under Clause 22 (Fees)),
that Obligor shall cease to be an Obligor.
28.8 REFERENCE BANKS
(a) If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be a Bank, the Agent shall (in
consultation with the Company) appoint another Bank or an Affiliate of a
Bank to replace that Reference Bank.
(b) Following completion of Syndication, the Agent will (in consultation with
the Company) select another Bank (or an Affiliate of a Bank) to act as an
additional Reference Bank and, promptly following that selection, shall
notify the Parties of the identity of that Reference Bank.
28.9 REGISTER
The Agent shall keep a register of all the Parties and shall supply any
other Party (at that Party's expense) with a copy of the register on
request.
29. DISCLOSURE OF INFORMATION
(a) A Bank may disclose to one of its Affiliates or any person with whom it
is proposing to enter, or has entered into, any kind of transfer,
participation or other agreement in relation to this Agreement:
(i) a copy of any Finance Document; and
(ii) any information which that Bank has acquired under or in
connection with any Finance Document,
but only if the recipient of the information has agreed to keep that
information confidential on the terms of paragraph (b) below.
(b) Each Finance Party shall keep confidential and shall not, without the
prior consent of the Company, use any information (other than information
which is publicly available other than
81
as a result of a breach by that Finance Party of this paragraph(b))
supplied by or on behalf of any Obligor under or in connection with the
Finance Documents otherwise than in connection with the Finance
Documents. However, the restriction set out in this paragraph (b) shall
not apply to, and each Finance Party shall be entitled to disclose,
information:
(i) in connection with any legal proceedings arising out of or in
connection with a Finance Document; or
(ii) if required to do so by an order of a court of competent
jurisdiction whether under any procedure for discovering
documents or otherwise; or
(iii) pursuant to any law or regulation in accordance with which that
Finance Party is required or accustomed to act; or
(iv) to a governmental, banking, taxation or other regulatory
authority of any competent jurisdiction; or
(v) to its accountants or legal or other professional advisers.
30. SET-OFF
A Finance Party may set off any matured obligation owed by an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any obligation (whether or not matured) owed by
that Finance Party to that Obligor, regardless of the place of payment,
booking branch or currency of either obligation. If the obligations are
in different currencies, the Finance Party may convert either obligation
at a market rate of exchange in its usual course of business for the
purpose of the set-off. If either obligation is unliquidated or
unascertained, the Finance Party may set off in an amount estimated by it
in good faith to be the amount of that obligation. Any right to set off
under this paragraph is not intended to constitute a Security Interest.
31. PRO RATA SHARING
31.1 REDISTRIBUTION
If any amount owing by an Obligor under this Agreement to a Finance Party
(the "RECOVERING FINANCE PARTY") is discharged by payment, set-off or any
other manner other than through the Agent in accordance with Clause 12
(Payments) (a "RECOVERY"), then:
(a) the recovering Finance Party shall, within 3 Business Days,
notify details of the recovery to the Agent;
(b) the Agent shall determine whether the recovery is in excess of
the amount which the recovering Finance Party would have received
had the recovery been received by the Agent and distributed in
accordance with Clause 12 (Payments);
(c) subject to Clause 31.3 (Exceptions), the recovering Finance Party
shall within 3 Business Days of demand by the Agent pay to the
Agent an amount (the "REDISTRIBUTION") equal to the excess;
(d) the Agent shall treat the redistribution as if it were a payment
by the Obligor concerned under Clause 12 (Payments) and shall pay
the redistribution to the Finance
82
Parties (other than the recovering Finance Party) in accordance
with Clause 12.7 (Partial payments); and
(e) after payment of the full redistribution, the recovering Finance
Party will be subrogated to the portion of the claims paid under
paragraph (d) above and that Obligor will owe the recovering
Finance Party a debt which is equal to the redistribution,
immediately payable and of the type originally discharged.
31.2 REVERSAL OF REDISTRIBUTION
If under Clause 31.1 (Redistribution):
(a) a recovering Finance Party must subsequently return a recovery,
or an amount measured by reference to a recovery, to an Obligor;
and
(b) the recovering Finance Party has paid a redistribution in
relation to that recovery,
each Finance Party shall, within 3 Business Days of demand by the
recovering Finance Party through the Agent, reimburse the recovering
Finance Party all or the appropriate portion of the redistribution paid
to that Finance Party together with interest on the amount to be returned
to the recovering Finance Party for the period whilst it held the
redistribution. Thereupon, the subrogation in Clause 31.1(e)
(Redistribution) will operate in reverse to the extent of the
reimbursement.
31.3 EXCEPTIONS
(a) A recovering Finance Party need not pay a redistribution to the extent
that it would not, after the payment, have a valid claim against the
Obligor concerned in the amount of the redistribution pursuant to Clause
31.1(e) (Redistribution).
(b) A recovering Finance Party is not obliged to share with any other Finance
Party any amount which the recovering Finance Party has received or
recovered as a result of taking legal proceedings, if the other Finance
Party had an opportunity to participate in those legal proceedings but
did not do so or did not take separate legal proceedings.
32. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any other
provision of the Finance Documents; or
(b) the validity or enforceability in other jurisdictions of that or
any other provision of the Finance Documents.
33. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
83
34. NOTICES
34.1 GIVING OF NOTICES
All notices or other communications under or in connection with this
Agreement shall be given in writing and, unless otherwise stated, may be
made by letter or facsimile. Any such notice will be deemed to be given
as follows:
(a) if by letter, when delivered personally or on actual receipt; and
(b) if by facsimile, when received in legible form.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will only
be deemed to be given on the next working day in that place. Any notice
to the Agent by facsimile must be confirmed in writing, but failure to so
confirm in writing will not prejudice the validity of the notice by
facsimile.
34.2 ADDRESSES FOR NOTICES
(a) The address and facsimile number of each Party (other than the Company
and the Agent) for all notices under or in connection with the Finance
Documents are:
(i) those notified by that Party for this purpose to the Agent on or
before the date it becomes a Party; or
(ii) any other notified by that Party for this purpose to the Agent by
not less than 5 Business Days' notice.
(b) The address and facsimile number of the Company are:
Spirent House
▇▇▇▇▇▇▇ Business Quarter
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Facsimile no: 01293 767944
For the attention of: Group Treasurer
or (for all notices in respect of a Default):
Facsimile no: 01293 510527
For the attention of: Company Secretary
or such other as the Company may notify to the Agent by not less than 5
Business Days' notice.
(c) The address and facsimile number of the Agent are:
▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile no: 020 7779 1717
For the attention of: HSBCLS Execution & Agency
or such other as the Agent may notify to the other Parties by not less
than 5 Business Days' notice.
(d) All notices from or to an Obligor shall be sent through the Agent.
(e) The Agent shall, promptly upon request from any Party, give to that Party
the address or facsimile number of any other Party applicable at the time
for the purposes of this Clause.
(f) Each Obligor (other than the Company) irrevocably appoints the Company to
act as its agent for the purpose of executing, giving and receiving any
document (including a Finance Document), notice or other communication in
connection with this Agreement.
35. LANGUAGE
(a) Any notice given under or in connection with any Finance Document shall
be in English.
(b) All other documents provided under or in connection with any Finance
Document shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified English translation
and, in this case, the English translation shall prevail unless
the document is a statutory or other official document.
36. JURISDICTION
36.1 SUBMISSION
For the benefit of each Finance Party, each Obligor agrees that the
courts of England have jurisdiction to settle any disputes in connection
with any Finance Document and accordingly submits to the jurisdiction of
the English courts.
36.2 SERVICE OF PROCESS
Without prejudice to any other mode of service, each Obligor (other than
an Obligor incorporated in England and Wales):
(a) irrevocably appoints the Company as its agent for service of
process in relation to any proceedings before the English courts
in connection with any Finance Document;
(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned; and
85
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 34.2 (Addresses
for notices).
36.3 FORUM CONVENIENCE AND ENFORCEMENT ABROAD
Each Obligor:
(a) waives objection to the English courts on grounds of inconvenient
forum or otherwise as regards proceedings in connection with a
Finance Document; and
(b) agrees that a judgment or order of an English court in connection
with a Finance Document is conclusive and binding on it and may
be enforced against it in the courts of any other jurisdiction.
36.4 NON-EXCLUSIVITY
Nothing in this Clause 36 limits the right of a Finance Party to bring
proceedings against an Obligor in connection with any Finance Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
37. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
86
SCHEDULE 1
PART I
BANKS AND TRANCHE A COMMITMENTS
BANKS TRANCHE A COMMITMENTS
U.S.$
Deutsche Bank AG London 100,000,000
Midland Bank plc 100,000,000
Total Tranche A 200,000,000
Commitments
87
PART II
BANKS AND TRANCHE B COMMITMENTS
BANKS TRANCHE B COMMITMENTS
L
Deutsche Bank AG London 50,000,000
Midland Bank plc 50,000,000
Total Tranche B L100,000,000
Commitments
88
PART III
BANKS AND TRANCHE C COMMITMENTS
BANKS TRANCHE C COMMITMENTS
L
Deutsche Bank AG London 107,500,000
Midland Bank plc 107,500,000
Total Tranche C L215,000,000
Commitments
89
SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
PART I
TO BE DELIVERED ON OR ABOUT SIGNING
1. AUTHORISATIONS
(a) A copy of the memorandum and articles of association and certificate of
incorporation of the Company.
(b) A copy of a resolution of the board of directors (or other appropriate
body) of the Company:
(i) approving the terms of, and the transactions contemplated by,
this Agreement (including the guarantee contained in Clause 17
(Guarantee)) and resolving that it execute this Agreement;
(ii) authorising a specified person or persons to execute the
Agreement on its behalf;
(iii) authorising a specified person or persons, on its behalf to sign
and/or despatch all other documents and notices to be signed
and/or despatched by it under or in connection with this
Agreement (including Requests).
together (if applicable) with a copy of a resolution of the board of
directors of the Company establishing that body.
(c) A certificate of an authorised signatory of the Company certifying that
each copy document specified in paragraphs 1(a), 1(b) and 3(b) of Part I
of this Schedule 2 is correct, complete and in full force and effect as
at a date no earlier than the date of this Agreement.
2. FINANCIAL INFORMATION
A copy of the Original Group Accounts.
3. OTHER DOCUMENTS
(a) A copy of the latest draft of:
(i) the Merger Agreement;
(ii) the circular to shareholders of the Company relating to the
Merger;
(iii) the Press Release; and
(iv) the employment and non-compete arrangements with the management
of the Target.
(b) A copy of:
(i) Legal Due Diligence report dated 14th June, 1999 from Debevoise &
▇▇▇▇▇▇▇▇;
90
(ii) Tax Due Diligence report dated 14th June, 1999 from Ernst &
Young;
(iii) Financial Due Diligence report dated 11th June, 1999 from Ernst &
Young together with an executive summary of that report dated 8th
June, 1999;
(iv) Commercial Due Diligence report dated 9th June, 1999 from A D
Little;
(v) Insurance Due Diligence report dated 3rd June from ▇▇▇▇▇▇
▇▇▇▇▇▇▇; and
(vi) Phase I Environmental report dated 10th June from ECS Risk
Control Inc.,
together with confirmation from the Company that (except for anything
disclosed in sections of those reports specifically brought to the
Arranger's attention by the Company) those due diligence reports do not
disclose, to its knowledge, anything which might reasonably be expected
to affect materially a lender's decision whether to enter into this
Agreement.
4. LEGAL OPINION
A legal opinion of ▇▇▇▇▇ & Overy, legal advisers in England to the
Arrangers and the Agent, addressed to the Finance Parties, substantially
in the form of Schedule 10.
91
PART II
TO BE DELIVERED BEFORE THE FIRST LOAN
1. A certified copy of (in each case showing no material change to the form
provided under Part I of Schedule 2 delivered to the Agent on or about
the date of this Agreement unless previously approved by the Arrangers):
(a) the executed Merger Agreement;
(b) the circular to the shareholders of the Company relating to the
Merger; and
(c) the executed non-compete arrangements with ▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇,
▇▇ ▇. ▇▇▇▇▇ and executed employment contracts for ▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇. ▇▇▇▇▇.
2 A specimen of the signature of each person authorised by any Resolution
of the Company provided under Part I of Schedule 2.
3. Confirmation from the Company that its shareholders have approved the
acquisition of the Target Group.
4. A copy of the resolution passed at a meeting of the Company increasing
the borrowing limit contained in the articles of association of the
Company so that the borrowing of the Total Commitments would not be a
breach of the articles of association.
5. Confirmation from the Company that all necessary regulatory consents for
the acquisition of the Target Group have been obtained.
6. In respect of each Existing Facility copies of the notice of:
(a) cancellation of all commitments under the Existing Facility; and
(b) prepayment of all amounts outstanding under the Existing
Facility,
in each case, to take effect on the first Drawdown Date.
7. Evidence that the Company has written to the lenders of its 6.89 per
cent. US$75,000,000 private placement dated 25th October, 1993 (as
amended) concerning the waiver or amendment of the gearing covenant
contained therein.
8. Confirmation that all waiting periods under the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Anti
Trust Improvement Act 1976 (as amended) and any regulations made under it
in relation to the Merger have expired or terminated.
9. Evidence that the proceeds of the first Loan (other than amounts being
used to repay or prepay all amounts outstanding under the Existing
Facilities) will not be released by the Company until the Merger is
effective.
10. A certified copy of the Press Release.
92
11. Evidence that shareholders holding at least 66 2/3 per cent. of the
shares in the Target have executed the Merger Agreement.
93
PART III
TO BE DELIVERED BY AN ADDITIONAL BORROWER
1. A Borrower Accession Agreement, duly executed by the Additional Borrower
and the Company.
2. A copy of the constitutional documents of the Additional Borrower.
3. If the Additional Borrower is incorporated in the U.S., a Certificate of
Good Standing from the Secretary of State of the state of incorporation
of that Additional Borrower dated not more than 5 Business Days prior to
the date of the relevant Borrower Accession Agreement.
4. A copy of a resolution of the board of directors of the Additional
Borrower:
(i) approving the terms of, and the transactions contemplated by, the
Borrower Accession Agreement and resolving that it execute the
Borrower Accession Agreement;
(ii) authorising a specified person or persons to execute the Borrower
Accession Agreement on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices (including
Requests) to be signed and/or despatched by it under or in
connection with this Agreement.
5. A certificate of an authorised signatory of the Additional Borrower
confirming that the execution by the Additional Borrower of each Finance
Document to which it is a party and the performance by it of its
obligations under each such Finance Document are within its corporate
powers and have been duly approved by all necessary corporate action.
6. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 4 above.
7. The latest accounts (audited if produced) of the Additional Borrower.
8. A certificate of an authorised signatory of the Additional Borrower
certifying that each copy document specified in Part III of this Schedule
2 is correct, complete and in full force and effect as at a date no
earlier than the date of the Borrower Accession Agreement.
9. A legal opinion of each of ▇▇▇▇▇ & ▇▇▇▇▇ and lawyers acceptable to the
Agent in the jurisdiction of incorporation of the Additional Borrower,
addressed to the Finance Parties.
10. A copy of any other authorisation or other document, opinion or assurance
which the Agent considers to be necessary in connection with the entry
into and performance of, and the transactions contemplated by, the
Borrower Accession Agreement or for the validity and enforceability of
any Finance Document.
94
PART IV
TO BE DELIVERED BY AN ADDITIONAL GUARANTOR
1. A Guarantor Accession Agreement, duly executed as a deed by the
Additional Guarantor and the Company.
2. A copy of the constitutional documents of the Additional Guarantor.
3. A copy of a resolution of the board of directors of the Additional
Guarantor:
(a) approving the terms of, and the transactions contemplated by, the
Guarantor Accession Agreement and resolving that it execute the
Guarantor Accession Agreement;
(b) authorising a specified person or persons to execute the
Guarantor Accession Agreement on its behalf; and
(c) authorising a specified person or persons, on its behalf to sign
and/or despatch all other documents and notices to be signed
and/or despatched by it under or in connection with the
Agreement.
4. If lawyers in the jurisdiction of the Additional Guarantor have advised
the Agent to obtain such a resolution, a copy of a resolution, signed by
all the holders of the issued or allotted shares in the Additional
Guarantor, approving the terms of, and the transactions contemplated by,
the Guarantor Accession Agreement.
5. A certificate of an authorised signatory of the Additional Guarantor
confirming that the execution by the Additional Guarantor of each Finance
Document to which it is a party and the performance by it of its
obligations under each such Finance Document are within its corporate
powers and have been duly approved by all necessary corporate action.
6. A specimen of the signature of each person authorised by the resolutions
referred to in paragraph 3 above.
7. The latest accounts (audited if produced) of the Additional Guarantor.
8. A certificate of an authorised signatory of the Additional Guarantor
certifying that each copy document specified in Part IV of this Schedule
2 is correct, complete and in full force and effect as at a date no
earlier than the date of the Guarantor Accession Agreement.
9. If applicable, a copy of all resolutions, written decisions,
declarations, certificates of incorporation and re-registration and other
documents required to ensure compliance with sections 151 to 158 of the
Companies ▇▇▇ ▇▇▇▇ including an auditor's report from an auditor
acceptable to the Agent, addressed to the Company and the Finance
Parties, together with a letter from the Company confirming that it will
register the relevant documents at Companies House.
10. A legal opinion of ▇▇▇▇▇ & ▇▇▇▇▇ and lawyers, acceptable to the Agent, in
the jurisdiction of incorporation of the Additional Guarantor addressed
to the Finance Parties.
95
11. A copy of any other authorisation or other document, opinion or assurance
which the Agent considers to be necessary in connection with the entry
into and performance of, and the transactions contemplated by, the
Guarantor Accession Agreement or for the validity and enforceability of
any Finance Document.
96
SCHEDULE 3
CALCULATION OF THE MANDATORY COST
(a) The Mandatory Cost for a Loan for its Interest Period or each of its
Interest Periods, as appropriate, is the rate determined by the Agent to
be equal to the arithmetic mean (rounded upward, if necessary, to four
decimal places) of the respective rates notified by each of the Reference
Banks to the Agent and calculated in accordance with the following
formulae:
In relation to a Loan denominated in Sterling:
BY + S(Y-Z) + F x 0.01% per annum = Mandatory Cost
---------------------------------
100-(B + S)
in relation to any other Loan:
F x 0.01% per annum = Mandatory Cost
-------------------
300
where on the day of application of the formula:
B is the percentage of the Reference Bank's eligible liabilities
(in excess of any stated minimum) which the Bank of England
requires the Reference Bank to hold on a non-interest-bearing
deposit account in accordance with its cash ratio requirements;
Y is LIBOR as appropriate for the relevant Interest Period;
S is the percentage of the Reference Bank's eligible liabilities
which the Bank of England requires the Reference Bank to place as
a special deposit;
Z is the interest rate per annum allowed by the Bank of England on
special deposits; and
F is the charge payable by the Reference Bank to the Financial
Services Authority under paragraph 2.02 or 2.03 (as appropriate)
of the Fees Regulations (but where for this purpose, the figure
in paragraph 2.02b and 2.03b will be deemed to be zero) expressed
in pounds per L1 million of the fee base of the Reference Bank.
(b) For the purposes of this Schedule 3:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings
given to them at the time of application of the formula by the
Bank of England; and
(ii) "FEE BASE" has the meaning given to it in the Fees Regulations;
(iii) "FEES REGULATIONS" means the then current Financial Services
Banking Supervision (Fees) Regulations and/or any other
regulations governing the payment of fees for banking
supervision.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%,
BY is calculated as 0.5 x 15.
97
(d) If a Reference Bank does not supply a rate to the Agent, the applicable
Mandatory Cost will be determined on the basis of the rate(s) supplied by
the remaining Reference Banks.
(e) (i) Each formula is applied on the first day of the relevant Interest
Period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(f) If the Agent determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Agent (after consultation
with the Banks) shall notify the Company of the manner in which the
Mandatory Cost will subsequently be calculated. The manner of calculation
so notified by the Agent must not place the Banks in a better or worse
position than they had been in prior to the change of circumstances and
shall, in the absence of manifest error, be binding on all the Parties.
98
SCHEDULE 4
FORM OF REQUEST
(BY LETTER OR BY FAX)
To: HSBC Investment Bank plc as Agent
From: [BORROWER]
Date: [ ]
SPIRENT PLC (FORMERLY ▇▇▇▇▇▇▇▇▇ PLC) - L315,000,000 AND U.S.$200,000,000
CREDIT AGREEMENT DATED [ ] JUNE, 1999
1. We wish to utilise [the Tranche A Facility/the Tranche B Facility /the
Tranche C Facility] as follows:
(a) Drawdown Date: [ ]***
(b) Amount and currency: [ ]***
(c) [First]. Interest Period: [ ] ***
(d) Payment instructions: [ ]."**
2. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Request.
By:
----------------------------------------
[BORROWER]
----------
*** To be completed in accordance with Clause 5.2 (Completion of Requests).
** Include only for Term Loans.
99
SCHEDULE 5
FORMS OF ACCESSION DOCUMENTS
PART I
NOVATION CERTIFICATE
To: HSBC Investment Bank plc as Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
SPIRENT PLC (FORMERLY ▇▇▇▇▇▇▇▇▇ PLC) - L315,000,000 AND U.S.$200,000,000
CREDIT AGREEMENT DATED [ ] JUNE, 1999
We refer to Clause 28.3 (Procedure for novations).
1. We [ ] (the "EXISTING BANK") and [ ] (the "NEW BANK")
agree to the Existing Bank and the New Bank novating all or part of the
Existing Bank's Commitments, rights and obligations referred to in the
Schedule in accordance with Clause 28.3 (Procedure for novations).
2. The specified date for the purposes of Clause 28.3(c) (Procedure for
novations) is [date of novation].
3. The Facility Office and address for notices of the New Bank for the
purposes of Clause 34.2 (Addresses for notices) are set out in the
Schedule.
4. This Novation Certificate is governed by English law.
THE SCHEDULE
COMMITMENTS/RIGHTS AND OBLIGATIONS TO BE NOVATED
[insert relevant details].
[Existing Bank] [New Bank]
By: By:
Date: Date:
[NEW BANK]
[Facility Office Address for notices]
HSBC Investment Bank plc
By:
Date:
100
PART II
BORROWER ACCESSION AGREEMENT
To: HSBC Investment Bank plc as Agent
From: [PROPOSED BORROWER] and
SPIRENT plc (formerly ▇▇▇▇▇▇▇▇▇ plc)
Date: [ ]
SPIRENT PLC (FORMERLY ▇▇▇▇▇▇▇▇▇ PLC) - L315,000,000 AND U.S.$200,000,000
CREDIT AGREEMENT DATED [ ] JUNE, 1999 (THE "CREDIT AGREEMENT")
We refer to Clause 28.5 (Additional Borrowers).
We, [name of proposed borrower] of [Registered Office] (Registered no. [ ]),
agree to become an Additional Borrower and to be bound by the terms of the
Credit Agreement as an Additional Borrower in accordance with Clause 28.5
(Additional Borrowers).
Our address for notices for the purposes of Clause 34.2 (Addresses for notices)
is:
[
]
We, [name of proposed borrower] and
Spirent plc, confirm that the
representations and warranties set out in Clause 18 (Representations and
warranties) deemed to be made on the date of this Agreement are correct on the
date of this Agreement.
This Agreement is governed by English law.
By:
[PROPOSED BORROWER]
Authorised Signatory
By:
----------------------------- ---------------------------
SPIRENT plc
101
PART III
GUARANTOR ACCESSION AGREEMENT
To: HSBC Investment Bank plc as Agent
From: [PROPOSED GUARANTOR] and SPIRENT plc (formerly ▇▇▇▇▇▇▇▇▇ plc)
Date: [ ]
SPIRENT PLC (FORMERLY ▇▇▇▇▇▇▇▇▇ PLC) - L315,000,000 AND U.S.$200,000,000
CREDIT AGREEMENT DATED [ ] JUNE, 1999 (THE "CREDIT AGREEMENT")
We refer to Clause 28.6 (Additional Guarantors).
We, [name of proposed guarantor] of [Registered Office] (Registered no. [ ]),
agree to become an Additional Guarantor and to be bound by the terms of the
Credit Agreement as an Additional Guarantor in accordance with Clause 28.6
(Additional Guarantors).
Our address for notices for the purposes of Clause 34.2 (Addresses for notices)
is:
[
]
We, [name of proposed guarantor] and ▇▇▇▇▇▇▇▇▇ plc, confirm that the
representations and warranties set out in Clause 18 (Representations and
warranties) deemed to be made on the date of this Agreement are correct on the
date of this Agreement.
This Agreement is entered into as a deed and is governed by English law.
[APPLICABLE EXECUTION CLAUSE FOR ADDITIONAL GUARANTOR FOR SIGNING DEEDS]
By:
----------------------------- ---------------------------
SPIRENT plc
102
PART IV
FORM OF SYNDICATION AGREEMENT
SYNDICATION AGREEMENT
DATED [ ], 1999
relating to a L315,000,000 and U.S.$200,000,000 Credit Facility
dated [ ] June, 1999
for
▇▇▇▇▇▇▇▇▇ plc
arranged by
DEUTSCHE BANK AG LONDON
HSBC INVESTMENT BANK plc
103
THIS AGREEMENT is dated [ ], 1999 between:
(1) ▇▇▇▇▇▇▇▇▇ plc (the "COMPANY");
(2) DEUTSCHE BANK AG LONDON AND HSBC INVESTMENT BANK plc as arrangers (in
this capacity the "ARRANGERS");
(3) DEUTSCHE BANK AG LONDON and MIDLAND BANK plc [and [)* as the banks party
to the Credit Agreement (as defined below) as at today's date (the
"EXISTING BANKS");
(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as the banks who wish to
accede to the Credit Agreement as Banks (the "NEW BANKS"); and
(5) HSBC INVESTMENT BANK plc as agent (the "AGENT").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the contrary intention appears or the context
otherwise requires:
"CREDIT AGREEMENT"
means the Original Credit Agreement as amended pursuant to Clause 4
(Nature of this Agreement) of this Agreement.
"EFFECTIVE DATE"
means [ ].
"ORIGINAL CREDIT AGREEMENT"
means the Credit Agreement dated [ ] June, 1999 between the Company,
the Arrangers, [certain of]* the Existing Banks and the Agent [as amended
by a Syndication Agreement dated [ ], 1999]*.
"TRANCHE A LOAN PARTICIPATION"
means, in relation to an Existing Bank, the amount in Sterling set out
opposite the name of that Existing Bank in Part I of Schedule 2 and, in
relation to a New Bank, the amount in Sterling set out opposite the name
of that New Bank in Part I of Schedule 3.
"TRANCHE B LOAN PARTICIPATION"
means, in relation to an Existing Bank, the amount in Sterling set out
opposite the name of that Existing Bank in Part II of Schedule 2 and, in
relation to a New Bank, the amount in Sterling set out opposite the name
of that New Bank in Part II of Schedule 3.
----------
* [MISSING DATA]
104
"TRANCHE C LOAN PARTICIPATION"
means, in relation to an Existing Bank, the amount in Sterling set out
opposite the name of that Existing Bank in Part III of Schedule 2 and, in
relation to a New Bank, the amount in Sterling set out opposite the name
of that New Bank in Part III of Schedule 3.
1.2 INCORPORATION OF CREDIT AGREEMENT DEFINITIONS
Terms defined in the Credit Agreement shall, unless the contrary
intention appears or the context otherwise requires, have the same
meaning in this Agreement.
1.3 INCORPORATION
Clauses 1.2 (Construction), 12 (Payments), 27 (Amendments and waivers),
32 (Severability), 33 (Counterparts) and 34 (Notices) of the Credit
Agreement shall apply to this Agreement, as though they were set out in
full in this Agreement but as if references to the Credit Agreement are
to be construed as references to this Agreement.
2. CONSENT AND CONFIRMATION
The Company, each Obligor, the Arrangers, the Existing Banks and the
Agent each consent to the New Banks becoming Banks and confirm that,
except as expressly provided by the terms of this Agreement, the Credit
Agreement and each of the documents contemplated by the Credit Agreement
shall continue in full force and effect.
105
3. NOVATION
3.1 NOVATION OF TRANCHE A PARTICIPATIONS AND RELATED RIGHTS AND
OBLIGATION(1)**
----------
(1) [MISSING DATA]
106
----------
** To be amended according to whether the Total Loan Commitments are all,
partly or not drawn and whether there is one or [MISSING DATA]
107
On the Effective Date (regardless of whether a Default is then
continuing):
(a) each New Bank will become a Bank under the Credit Agreement with
a participation in the Tranche A Loans equal to its Tranche A
Loan Participation;
(b) the amount of each Existing Bank's participation in the Tranche A
Loans shall be and will be deemed to be reduced down to its
Tranche A Loan Participation;
(c) each New Bank will automatically obtain and assume, and
undertakes to perform, all of the rights and obligations of a
Bank under and in respect of each of the Finance Documents in
respect of the rights and obligations transferred to it under
paragraphs (a) and (b) above;
[(d) each Existing Bank shall transfer to each New Bank the amount (as
notified to each Existing Bank by the Agent) necessary to ensure
that after transfer the amount of each Existing Bank's
participation in the Tranche A Loans is equal to its Tranche A
Loan Participation and the amount of each New Bank's
participation in the Tranche A Loans is equal to its Tranche A
Loan Participation;
(e) each New Bank will pay to the Agent, to the Agent's account (for
the account of each Existing Bank) as notified to each New Bank
prior to the Effective Date in [ ] in same day funds
without any deduction or withholding of any nature and in
immediately available and freely transferable funds, to be
received for value on the Effective Date, an amount equal to its
Tranche A Loan Participation;
(f) the Agent shall (to the extent received by it) pay to each
Existing Bank an amount equal to the consideration payable by the
New Banks under paragraph (e) above up to a maximum amount equal
to the difference between that Existing Bank's Tranche A Loan
Commitment under the Credit Agreement on the date of the Credit
Agreement and its Tranche A Loan Participation.]
3.2 NOVATION OF TRANCHE A COMMITMENTS AND RELATED RIGHTS AND OBLIGATIONS
On the Effective Date (regardless of whether a Default is then
continuing):
(a) each New Bank will become a Bank under the Credit Agreement with
those Tranche A Commitments as set out opposite its name in Part
I of Schedule 4;
(b) the Tranche A Commitments of each Existing Bank shall be and be
deemed to be reduced down to the level set out opposite its name
in Part I of Schedule 4 so long as the overall level of the
Tranche A Total Commitments is not reduced; and
(c) each New Bank will automatically obtain and assume, and
undertakes to perform, all of the rights and obligations of a
Bank under and in respect of the Credit Agreement and the
documents contemplated in the Credit Agreement in respect of the
rights and obligations transferred to it under paragraphs (a) and
(b) above.
108
3.3 NOVATION OF TRANCHE B LOAN PARTICIPATIONS AND RELATED RIGHTS AND
OBLIGATIONS(2)**
On the Effective Date (regardless of whether a Default is then
continuing):
(a) each New Bank will become a Bank under the Credit Agreement with
a participation in the Tranche B Loans equal to its Tranche B
Loan Participation;
(b) the amount of each Existing Bank's participation in the Tranche B
Loans shall be and will be deemed to be reduced down to its
Tranche B Loan Participation;
(c) each New Bank will automatically obtain and assume, and
undertakes to perform, all of the rights and obligations of a
Bank under and in respect of each of the Finance Documents in
respect of the rights and obligations transferred to it under
paragraphs (a) and (b) above;
[(d) each Existing Bank shall transfer to each New Bank the amount (as
notified to each Existing Bank by the Agent) necessary to ensure
that after transfer the amount of each Existing Bank's
participation in the Tranche B Loans is equal to its Tranche B
Loan Participation and the amount of each New Bank's
participation in the Tranche B Loans is equal to its Tranche B
Loan Participation;
(e) each New Bank will pay to the Agent, to the Agent's account (for
the amount of each Existing Bank) as notified to each New Bank
prior to the Effective Date in [ ] in same day funds
without any deduction or withholding of any nature and in
immediately available and freely transferable funds, to be
Tranche B Loan Participation;
(f) the Agent shall (to the extent received by it) pay to each
Existing Bank an amount equal to the consideration payable by the
New Banks under paragraph (e) above up to a maximum amount equal
to the difference between that Existing Bank's Tranche B
Commitment under the Credit Agreement on the date of the Credit
Agreement and its Tranche B Loan Participation.]
3.4 NOVATION OF TRANCHE B COMMITMENTS AND RELATED RIGHTS AND OBLIGATIONS
On the Effective Date (regardless of whether a Default is then
continuing):
(a) each New Bank will become a Bank under the Credit Agreement with
a Tranche B Commitment as set out opposite its name in Part II of
Schedule 4;
(b) the Existing Bank's Tranche B Commitment shall be and be deemed
to be reduced down to, the amount set out opposite its name in
Part II of Schedule 4; and
(c) each New Bank will automatically obtain and assume, and
undertakes to perform, all of the rights and obligations of a
Bank under and in respect of each of the Finance Documents in
respect of the rights and obligations transferred to it under
paragraphs (a) and (b) above.
----------
(2) [MISSING DATA]
109
3.5 NOVATION OF TRANCHE C LOAN PARTICIPATIONS AND RELATED RIGHTS AND
OBLIGATIONS**
On the Effective Date (regardless of whether a Default is then
continuing):
(a) each New Bank will become a Bank under the Credit Agreement with
a participation in the Tranche C Loans equal to its Tranche C
Loan Participation;
(b) the amount of each Existing Bank's participation in the Tranche C
Loans shall be and will be deemed to be reduced down to its
Tranche C Loan Participation;
(c) each New Bank will automatically obtain and assume, and
undertakes to perform, all of the rights and obligations of a
Bank under and in respect of each of the Finance Documents in
respect of the rights and obligations transferred to it under
paragraphs (a) and (b) above;
[(d) each Existing Bank shall transfer to each New Bank the amount (as
notified to each Existing Bank by the Agent) necessary to ensure
that after transfer the amount of each Existing Bank's
participation in the Tranche C Loans is equal to Tranche C Loan
Participation and the amount of each New Bank's participation in
the Tranche C Loans is equal to its Tranche C Loan Participation;
(e) each New Bank will pay to the Agent, to the Agent's account (for
the amount of each Existing Bank) as notified to each New Bank
prior to the Effective Date in [ ] in same day funds
without any deduction or withholding of any nature and in
immediately available and freely transferable funds, to be
received for value on the Effective Date, an amount equal to its
Tranche C Loan Participation;
(f) the Agent shall (to the extent received by it) pay to each
Existing Bank an amount equal to the consideration payable by the
New Banks under paragraph (e) above up to a maximum amount equal
to the difference between that Existing Bank's Tranche C
Commitment under the Credit Agreement on the date of the Credit
Agreement and its Tranche C Loan Participation.]
3.6 NOVATION OF TRANCHE C COMMITMENTS AND RELATED RIGHTS AND OBLIGATIONS
On the Effective Date (regardless of whether a Default is then
continuing):
(a) each New Bank will become a Bank under the Credit Agreement with
a Tranche C Commitment as set out opposite its name in Part III
of Schedule 4;
(b) the Existing Bank's Tranche C Commitment shall be and be deemed
to be reduced down to, the amount set out opposite its name in
Part III of Schedule 4; and
(c) each New Bank will automatically obtain and assume, and
undertakes to perform, all of the rights and obligations of a
Bank under and in respect of each of the Finance Documents in
respect of the rights and obligations transferred to it under
paragraphs (a) and (b) above.
3.7 AMOUNTS DUE ON OR BEFORE THE EFFECTIVE DATE
(a) All amounts (if any) payable to an Existing Bank by any Obligor on or
before the Effective Date (including, without limitation, all interest
and fees payable on the Effective Date) in respect of any period ending
prior to the Effective Date shall be for the account of the
110
Existing Banks, and none of the New Banks shall have any interest in, or
any rights in respect of, any such amounts.
(b) If any Loan falls to be made on the Effective Date:
(i) the Agent will promptly notify each of the New Banks of that fact
(and the amount of its participation in that Loan in accordance
with paragraph (ii) below); and
(ii) each Existing Bank and each New Bank shall participate in that
Loan (subject to the terms of the Credit Agreement) as if the
novation of the Commitments under Clauses 3.2(a) and (b)
(Novation of Tranche A Commitments and related rights and
obligations), 3.4(a) and (b) (Novation of Tranche B Commitments
and related rights and obligations) and 3.6(a) and (b) (Novation
of Tranche C Commitments) of this Agreement had taken effect
prior to opening of business on the Business Day before the
Effective Date,
and the relevant Borrower acknowledges that no Existing Bank will be
obliged to participate in any such Loan to any greater extent.
3.8 ADMINISTRATIVE DETAILS
Each New Bank has delivered to the Agent its initial details for the
purposes of Clause 34 (Notices) of the Credit Agreement.
4. NATURE OF THIS AGREEMENT
The novation of Commitments and rights and obligations contemplated by
this Agreement shall take effect (in accordance with its terms) as a
novation so that:
(a) Part I of Schedule 4 to this Agreement is substituted for Part I
of Schedule 1 to the Credit Agreement on the Effective Date;
(b) Part II of Schedule 4 to this Agreement is substituted for Part
II of Schedule 1 to the Credit Agreement on the Effective Date;
(c) Part III of Schedule 4 to this Agreement is substituted for Part
III of Schedule 1 to the Credit Agreement on the Effective Date;
and
(c) Clause 28 (Procedure for novations) of the Credit Agreement shall
apply to the Commitments, rights and obligations transferred,
assumed and released under Clauses 3.1 (Novation of Tranche A
Loan Participations and related rights and obligations) to 3.6
(Novation of Tranche C Commitments and related rights and
obligations) inclusive of this Agreement and to the associated
rights and obligations under the Credit Agreement and the
documents contemplated in the Credit Agreement, as if this
Agreement were a Novation Certificate.
5. REPRESENTATION AND WARRANTY FROM THE COMPANY
The Company represents and warrants for the benefit of each other party
to this Agreement in respect of the Information Memorandum:
(a) the material factual information relating to the Group contained
in the Information Memorandum was true and accurate in all
material respects as at its date;
111
(b) the material factual information relating to the Target Group
contained in the Information Memorandum was:
(i) to the extent that such information was public
information, accurately extracted from public
information; or
(ii) to the extent that such information was not public
information, true and accurate in all material respects
as at its date;
(c) to the best of its knowledge the opinions, projections and
forecasts contained in it and the assumptions on which they are
based were arrived at after due and careful consideration and
genuinely represented its view; and
(d) to the best of its knowledge there are no material facts or
circumstances which have not been disclosed to the parties to
this Agreement in the Information Memorandum and which would make
any of the information, opinions, projections, forecasts or
assumptions contained in it untrue, incomplete, inaccurate or
misleading in any material respect or which might reasonably be
expected to affect materially a lender's decision whether to
enter into the Credit Agreement.
6. CLAW-BACK
The Agent is not obliged to pay any amount to any Existing Bank under
Clause 3 (Novation) until it has established that it has actually
received a related amount from a New Bank pursuant to that Clause. The
Agent may, however, assume that each New Bank has paid the amount due
from it under Clause 3 (Novation) and, in reliance on that assumption,
make available to any Existing Bank the relevant amount. If any New Bank
has not made such payment but the Agent has paid an amount to any
Existing Bank on the basis that it had made it, any Existing Bank will
within 5 Business Days of demand by the Agent refund the relevant amount
together with interest on that amount from the date of payment to the
date of receipt, calculated at a rate determined by the Agent to reflect
its cost of funds.
7. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
112
SCHEDULE 1
THE NEW BANKS
[
]
113
SCHEDULE 2
PART I
EXISTING BANKS AND TRANCHE A PARTICIPATIONS
EXISTING BANKS TRANCHE A PARTICIPATIONS
L
114
PART II
EXISTING BANKS AND TRANCHE B PARTICIPATIONS
EXISTING BANKS TRANCHE B PARTICIPATIONS
L
115
PART III
EXISTING BANKS AND TRANCHE C PARTICIPATIONS
EXISTING BANKS TRANCHE C PARTICIPATIONS
L
116
SCHEDULE 3
PART I
BANKS AND TRANCHE A PARTICIPATIONS
BANKS TRANCHE A PARTICIPATIONS
L
117
PART II
BANKS AND TRANCHE B PARTICIPATIONS
BANKS TRANCHE B PARTICIPATIONS
L
118
PART III
BANKS AND TRANCHE C PARTICIPATIONS
BANKS TRANCHE C PARTICIPATIONS
L
119
SCHEDULE 4
PART I
BANKS AND TRANCHE A COMMITMENTS
BANKS TRANCHE A COMMITMENTS
L
------------
Total Tranche A Commitments L125,000,000
120
PART II
BANKS AND TRANCHE B COMMITMENTS
BANKS TRANCHE B COMMITMENTS
L
------------
Total Tranche B Commitments L100,000,000
121
PART III
BANKS AND TRANCHE C COMMITMENTS
BANKS TRANCHE C COMMITMENTS
L
------------
Total Tranche C Commitments L215,000,000
122
SIGNATORIES
(to the Syndication Agreement)
COMPANY
▇▇▇▇▇▇▇▇▇ plc
By:
-------------------- --------------------
ARRANGERS
DEUTSCHE BANK AG LONDON
By:
HSBC INVESTMENT BANK plc
By:
EXISTING BANKS
DEUTSCHE BANK AG LONDON
By:
MIDLAND BANK plc
By:
NEW BANKS
[ ]
By:
AGENT
HSBC INVESTMENT BANK plc
By:
123
SCHEDULE 6
FORM OF COMPLIANCE CERTIFICATE
To: HSBC Investment Bank plc as Agent
From: Spirent plc
Date: [ ]
SPIRENT PLC (FORMERLY ▇▇▇▇▇▇▇▇▇ PLC) - L315,000,000 AND U.S.$200,000,000 CREDIT
AGREEMENT DATED [ ] JUNE, 1999 (THE "CREDIT AGREEMENT")
This is a Compliance Certificate.
We confirm that:
(a) as at [ ] (the "TESTING DATE"), Consolidated Net Debt was
L[ ] and ConsolidaTed EBITDA was L[ ]; therefore, the ratio
of Consolidated Net Debt to Consolidated EBITDA was [ ] to 1;
the maximum ratio permitted under Clause 19.10(a)(i) (Financial
covenants) at the testing date is [ ] to 1; and
(b) as at the testing date, Consolidated EBITA was L[ ] and
Consolidated Net Interest Expense is L[ ]; therefore, the
ratio of Consolidated EBITA to Consolidated Net Interest Expense is
[ ] to 1; the minimum ratio permitted under Clause 19.10(a)(ii)
(Financial covenants) at the testing date is 3.0 to 1; and
(c) the following companies are Material Subsidiaries:
[ ]
(d) Percentage of Consolidated EBIT and Consolidated Total Assets provided by
the Company and these Material Subsidiaries is [ ] and
[ ].
By:
------------------------- ---------------------------
SPIRENT plc
124
SCHEDULE 7
FORM OF MARGIN CERTIFICATE
To: HSBC Investment Bank plc as Agent
From: Spirent plc
Date: [ ]
SPIRENT PLC (FORMERLY ▇▇▇▇▇▇▇▇▇ PLC) - L315,000,000 AND U.S.$200,000,000
CREDIT AGREEMENT DATED [ ] JUNE, 1999 (THE "CREDIT AGREEMENT")
This is a Margin Certificate.
We confirm that as at [ ], Consolidated Net Debt was L[ ] and
Consolidated EBITDA was L[ ] and therefore the ratio of Consolidated
Net Debt to Consolidated EBITDA was [ ] to 1. Accordingly the
applicable Margin is, in accordance with Clause 9.5 (Adjustment of the Margin),
[ ] per cent. per annum.
By:
------------------------- ---------------------------
SPIRENT plc
125
SCHEDULE 8
EXISTING PREFERRED INDEBTEDNESS
SUMMARY OF PREFERRED INDEBTEDNESS AS AT 14TH MAY, 1999
TOTAL TOTAL 14-May-99 14-May-99 14-May-99
OVERDRAFT LOAN OVERDRAFT LOAN TOTAL
FACILITIES FACILITIES BALANCE BALANCE O'STDING
(L000's) (L000's) (L000's) (L000's) (L000's)
------------ ------------- ------------ ----------- ------------
SECURED 2,624 25,632 461 17,669 18,130
UNSECURED 13,744 2,929 4,297 1,999 6,296
FINANCE LEASES 7,318 7,318
------------ ------------- ------------ ----------- ------------
PREFERRED INDEBTEDNESS 16,368 28,561 4,758 26,986 31,744
------------ ------------- ------------ ----------- ------------
126
SCHEDULE 9
MATERIAL SUBSIDIARIES
Adtech Inc
▇▇▇▇▇ & ▇▇▇▇▇ International plc
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ GmbH
Telecom Analysis Systems Inc
Tyton Hellermann Corporation
Autronics Corporation
Keystone Thermometrics Corporation
Thermometrics Inc
Global Simulation Systems Ltd
Western Pacific Data Systems Inc
Switching Systems International
▇▇▇▇ Instruments Inc
▇▇▇▇▇ & ▇▇▇▇▇ Controls Ltd
Tyton Hellermann do Brasil Industria e Comerco Ltda
General Eastern Instruments Inc
Hellermann France ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (Pty) Ltd
P&G Aerospace Inc
Hellermann Scandinavia AB
Western Pacific Data Systems Ltd
Atlantic Scientific Corporation
Protimeter plc
127
SCHEDULE 10
FORM OF ▇▇▇▇▇ & ▇▇▇▇▇ LEGAL OPINION
To: The Finance Parties named as
original parties to the Credit Agreement
(as defined below)
[ ] June, 1999
Dear Sirs,
▇▇▇▇▇▇▇▇▇ PLC (THE "BORROWER") - L315,000,000 AND U.S.$200,000,000 CREDIT
AGREEMENT DATED [ ] JUNE, 1999 (THE "CREDIT AGREEMENT")
We have received instructions from and participated in discussions with the
Arrangers and the Agent in connection with the Credit Agreement.
Terms defined in the Credit Agreement have the same meaning in this opinion.
For the purposes of this opinion we have examined the following documents:
A. a signed copy of the Credit Agreement;
B. a certified copy of the memorandum and articles of association and
certificate of incorporation of the Borrower;
C. a certified copy of the minutes of a meeting of the board of directors of
the Borrower held on [ ] June, 1999; and
D. a certified copy of the minutes of a meeting of a committee of the board
of directors of the Borrower held on [ ] June, 1999.
On [ ] June, 1999, we carried out a search of the Borrower at the Companies
Registry. On [ ] June, 1999 we made a telephone search of the Borrower at
the winding-up petitions at the Companies court.
The above are the only documents or records we have examined and the only
searches and enquiries we have carried out.
We assume that:
A. the Borrower is able to pay its debts within the meaning of section 123
of the Insolvency Act, 1986 at the time it enters into the Credit
Agreement and will not, as a consequence of the Credit Agreement, be
unable to pay its debts within the meaning of that section;
B. no step has been taken to wind up the Borrower or appoint a receiver in
respect of it or any of its assets although the searches of the Companies
Registry referred to above give no indication that any winding-up order
or appointment of a receiver has been made;
C. all signatures and documents are genuine;
128
D. all documents are and remain up-to-date;
E. the correct procedure was carried out for the board meeting referred to
in paragraphs (c) and (d) above; for example, there was a valid quorum,
all relevant interests of directors were declared and the resolutions
were duly passed at each of the meetings;
F. any restrictions in the Borrower's Articles of Association would not be
contravened by the performance by the Borrower of the Credit Agreement;
in this regard, it should be noted that, as contemplated in the Credit
Agreement, the borrowing limits in the Articles of Association of the
Company will need to be changed;
G. the Credit Agreement has been duly executed on behalf of the Borrower by
the person[s] authorised by the resolution passed at the meeting referred
to in paragraph (c) above; and
H. the Credit Agreement is a legally binding, valid and enforceable
obligation of each Finance Party.
Subject to the qualifications set out below and to any matters not disclosed to
us, it is our opinion that, so far as the present laws of England are concerned:
I. STATUS: The Borrower is a company incorporated with limited liability
under the laws of England and is not in liquidation.
II. POWERS AND AUTHORITY: The Borrower has the corporate power to enter into
and perform the Credit Agreement and has taken all necessary corporate
action to authorise the execution, delivery and performance of the Credit
Agreement.
III. LEGAL VALIDITY: The Credit Agreement constitutes a legally binding, valid
and enforceable obligation of the Borrower.
IV. NON-CONFLICT: The execution, delivery and performance by the Borrower of
the Credit Agreement will not violate any provision of (i) any existing
English law applicable to companies generally, or (ii) the memorandum or
articles of association of the Borrower.
V. CONSENTS: No authorisations of governmental, judicial or public bodies or
authorities in England are required by the Borrower in connection with
the performance, validity or enforceability of the Credit Agreement.
VI. TAXES: All payments due from the Borrower under the Credit Agreement may
be made without deduction of any United Kingdom taxes if, in the case of
any interest, the person that made the Loan to which the interest relates
was, at the time of making the Loan, a "bank" as defined in section 840A
of the Income and Corporation Taxes Act 1988 and the person beneficially
entitled to the interest is within the charge to United Kingdom
corporation tax as respects that interest at the time the interest is
paid.
VII. REGISTRATION REQUIREMENTS: It is not necessary or advisable to file,
register or record the Credit Agreement in any public place or elsewhere
in England.
VIII. STAMP DUTIES: No stamp, registration or similar tax or charge is payable
in England in respect of the Credit Agreement.
This opinion is subject to the following qualifications:
129
1. This opinion is subject to all insolvency and other laws affecting the
rights of creditors or secured creditors generally.
2. No opinion is expressed on matters of fact.
3. We assume that no foreign law affects the conclusions stated above.
4. The term "enforceable" means that a document is of a type and form
enforced by the English courts. It does not mean that each obligation
will be enforced in accordance with its terms. Certain rights and
obligations may be qualified by the non-conclusivity of certificates,
doctrines of good faith and fair conduct, the availability of equitable
remedies and other matters, but in our view these qualifications would
not defeat your legitimate expectations in any material respect.
This opinion is given for your sole benefit and may not be relied upon by or
disclosed to any other person.
Yours faithfully,
▇▇▇▇▇ & ▇▇▇▇▇
130
SIGNATORIES
COMPANY
▇▇▇▇▇▇▇▇▇ plc
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ARRANGERS
DEUTSCHE BANK AG LONDON
By: ▇▇▇▇ ▇▇▇▇▇▇
HSBC INVESTMENT BANK plc
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
BANKS
DEUTSCHE BANK AG LONDON
By: ▇▇▇▇ ▇▇▇▇▇▇
MIDLAND BANK plc
By: ▇▇▇▇▇▇ ▇▇▇▇▇
AGENT
HSBC INVESTMENT BANK plc
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
131
SIGNATORIES TO
SUPPLEMENTAL AGREEMENT
COMPANY
SPIRENT PLC
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
AGENT
HSBC INVESTMENT BANK PLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇