EXHIBIT (b)
Pounds 325,000,000
MULTICURRENCY MULTI-OPTION FACILITY AGREEMENT
between
▇▇▇▇▇▇▇ PLC
and
▇▇▇▇▇▇▇ INC.
as Original Borrowers
▇▇▇▇▇▇▇ PLC
as Guarantor
MIDLAND BANK PLC
and
UNION BANK OF SWITZERLAND
as Arrangers
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. LIMITED
as Facility Agent
and
Sterling Swing-Line Agent
MIDLAND BANK PLC
as
Dollar Swing-Line Agent
and
OTHERS
▇▇▇▇▇▇▇▇ Chance
London
CONTENTS
CLAUSE PAGE NO.
PART 1
INTERPRETATION
1. Interpretation............................................. 1
PART 2
THE FACILITY
2. The Facility............................................... 16
3. Purpose.................................................... 16
4. Conditions Precedent....................................... 16
5. Nature of Banks' Obligations............................... 16
PART 3
UTILISATION OF THE FACILITY
6. Utilisation of the Facility................................ 17
7. Advances Option in lieu of Bills........................... 19
8. Competitive Bid Option..................................... 20
PART 4
THE BILLS
9. Acceptance and Discount of Bills........................... 24
10. Acceptance Commission...................................... 25
11. The Bills.................................................. 26
12. Payment of Bills........................................... 27
PART 5
THE ADVANCES
13. Making of Advances......................................... 28
14. Interest................................................... 29
15. Repayment and Prepayment................................... 30
PART 6
CANCELLATION
16. Cancellation............................................... 31
PART 7
CHANGES IN CIRCUMSTANCES
17. Taxes...................................................... 32
18. Tax Receipts and Tax Credits............................... 34
19. Increased Costs............................................ 34
20. Illegality and Mitigation.................................. 36
21. Market Disruption.......................................... 37
PART 8
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
22. Representations............................................ 39
23. Financial Information...................................... 40
24. Financial Condition........................................ 43
25. Covenants.................................................. 43
26. Events of Default.......................................... 46
PART 9
GUARANTEE
27. Guarantee.................................................. 50
28. Preservation of Rights..................................... 50
PART 10
DEFAULT INTEREST AND INDEMNITY
29. Default Interest and Indemnity............................. 53
PART 11
PAYMENTS
30. Currency of Account and Payment............................ 55
31. Payments................................................... 55
32. Set-Off.................................................... 57
33. Redistribution of Payments................................. 57
PART 12
FEES, COSTS AND EXPENSES
34. Fees....................................................... 59
35. Costs and Expenses......................................... 59
PART 13
AGENCY PROVISIONS
36. The Agents, the Arrangers and the Banks.................... 61
PART 14
ASSIGNMENTS AND TRANSFERS
37. Benefit of Agreement....................................... 65
38. Assignments and Transfers by the Borrowers................. 65
39. Assignments and Transfers by Banks......................... 65
40. Disclosure of Information.................................. 66
PART 15
MISCELLANEOUS
41. Acceding and Seceding Borrowers............................ 67
42. Calculations and Evidence of Debt.......................... 67
43. Remedies and Waivers....................................... 68
44. Partial Invalidity......................................... 68
45. Amendments................................................. 68
46. Notices.................................................... 69
47. Counterparts............................................... 70
PART 16
LAW AND JURISDICTION
48. Law........................................................ 71
49. Jurisdiction............................................... 71
THE SCHEDULES
The First Schedule
Part I : The Banks
Part II : The Swing-Line Banks
The Second Schedule : Form of Transfer Certificate
The Third Schedule : Conditions Precedent
The Fourth Schedule : Form of Utilisation Request
The Fifth Schedule : Timetables
The Sixth Schedule : Associated Costs Rate
The Seventh Schedule : Form of Borrower Accession Memorandum
The Eighth Schedule : Documents to Accompany Borrower Accession Memorandum
The Ninth Schedule : Form of Borrower Secession Memorandum
The Tenth Schedule : Existing Encumbrances
The Eleventh Schedule
Part I : Form of Competitive Bid Request
Part II : Form of Invitation for Competitive Bid
Part III : Form of Competitive Bid
Part IV : Form of Competitive Bid Utilisation Confirmation Letter
The Twelfth Schedule : Form of Power of Attorney
THIS AGREEMENT is made the 25th day of August 1995
BETWEEN
(1) ▇▇▇▇▇▇▇ PLC ("PLC");
(2) ▇▇▇▇▇▇▇ INC. (together with PLC, the "ORIGINAL BORROWERS");
(3) MIDLAND BANK PLC and UNION BANK OF SWITZERLAND as arrangers of the Facility
(the "ARRANGERS");
(4) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. LIMITED in its capacity as facility agent for the
Banks (the "FACILITY AGENT");
(5) MIDLAND BANK PLC, NEW YORK BRANCH in its capacity as dollar swing-line
agent for the Banks (the "DOLLAR SWING-LINE AGENT")
(6) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. LIMITED in its capacity as sterling swing-line agent
for the Banks (the "STERLING SWING-LINE AGENT"); and
(7) THE FINANCIAL INSTITUTIONS named in the First Schedule (the "BANKS").
NOW IT IS HEREBY AGREED as follows:
PART 1
INTERPRETATION
1. INTERPRETATION
1.1 In this Agreement:
"ACCEDING BORROWER" means any company which has executed and delivered a
Borrower Accession Memorandum, and which has not subsequently ceased to be an
Acceding Borrower, pursuant to Clause 41;
"ACCEPTANCE COMMISSION RATE" means:
(i) in the case of any ▇▇▇▇ accepted pursuant to Clause 6 hereof:
(a) at all times up to and including the fifth anniversary of the date
hereof, an acceptance commission rate of 0.11 per cent. per annum;
and
(b) at all times after and excluding the fifth anniversary of the
date hereof, an acceptance commission rate of 0.135 per cent. per
annum; and
1
(ii) in the case of any Competitive ▇▇▇▇ accepted pursuant to Clause 8
hereof, the relevant Competitive Bid Rate for such ▇▇▇▇;
"ADVANCE" means, save as otherwise provided herein, an advance made or to be
made by a Bank pursuant to the terms hereof including (unless otherwise
provided), without limitation, a Swing-Line Advance and a Competitive Advance;
"AGENTS" means the Dollar Swing-Line Agent, the Sterling Swing-Line Agent and
the Facility Agent and "AGENT" means, as the context may require, any one of
them;
"APPLICABLE MARGIN" means:
(i) in relation to any Advance other than a Swing-Line Advance and a
Competitive Advance:
(a) at all times up to and including the fifth anniversary of the
date hereof, 0.11 per cent. per annum; and
(b) at all times after and excluding the fifth anniversary of the
date hereof, 0.135 per cent. per annum; and
(ii) in relation to any Competitive Advance, the relevant Competitive Bid
Rate relating thereto;
"ASSOCIATED COSTS RATE" means, in relation to any Advance or unpaid sum
denominated in sterling, the rate determined in accordance with the Sixth
Schedule;
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, its Commitment at such time LESS its share of the
Outstandings at such time and adjusted, for the purposes of a proposed
Utilisation only, so as to take into account:
(i) any reduction in the Commitment of a Bank which will occur prior to
or during the Term or Tenor relating to the proposed Utilisation
consequent upon a cancellation of the whole or any part of the
Commitment of such Bank pursuant to the terms hereof;
(ii) the aggregate Sterling Amount of any Advances and/or Bills which,
pursuant to any other Utilisation, such Bank is then obliged to make
or, as the case may be, accept on or before the proposed Utilisation
Date relating to such proposed Utilisation; and
(iii) the aggregate Sterling Amount of any Advances and/or Bills which were
made or, as the case may be, accepted by such Bank pursuant hereto
and which are due to be repaid or, as the case may be, mature on or
before the proposed Utilisation Date relating to such Utilisation,
Provided that such amount shall not be less than zero;
2
"AVAILABLE FACILITY" means at any time, the aggregate of the Commitments at such
time LESS the Outstandings at such time, and adjusted, in the case of a proposed
Utilisation only, so as to take into account:
(i) any reduction in the Commitment of a Bank which will occur prior to
or during the Term or Tenor relating to the proposed Utilisation
consequent upon a cancellation of the whole or any part of the
Commitment of such Bank pursuant to the terms hereof;
(ii) the aggregate Sterling Amount of any Advances and/or Bills which,
pursuant to any other Utilisation, any Banks are then obliged to make
or, as the case may be, accept on or before the proposed Utilisation
Date relating to such proposed Utilisation; and
(iii) the aggregate Sterling Amount of any Advances and/or Bills which were
made or, as the case may be, accepted by any Banks pursuant hereto
and which are due to be repaid or, as the case may be, mature on or
before the proposed Utilisation Date relating to such Utilisation;
"AVAILABLE SWING-LINE COMMITMENT" means, in relation to a Swing-Line Bank at any
time and save as otherwise provided herein, the lesser of (a) its Swing-Line
Commitment LESS its share of the Swing-Line Outstandings at such time and (b)
its Available Commitment at such time adjusted (in either case), for the
purposes of a proposed Utilisation only, so as to take into account:-
(i) any reduction in the Swing-Line Commitment or Commitment of a Swing-
Line Bank which will occur prior to or during the Term relating to
the proposed Utilisation consequent upon a cancellation of the whole
or any part of the Swing-Line Commitment or Commitment of such Swing-
Line Bank pursuant to the terms hereof;
(ii) the aggregate Sterling Amount of any Advances or Bills which,
pursuant to any other Utilisation, such Swing-Line Bank is then
obliged to make or, as the case may be, accept on or before the
proposed Utilisation Date relating to such proposed Utilisation; and
(iii) the aggregate Sterling Amount of any Advances or Bills which were
made or, as the case may be, accepted, by such Swing-Line Bank
pursuant hereto and which are due to be repaid or, as the case may
be, mature on or before the proposed Utilisation Date relating to
such Utilisation,
Provided that such amount shall not be less than zero;
"AVAILABLE SWING-LINE FACILITY" means at any time, the lesser of (a) the
aggregate of the Swing-Line Commitments LESS the Swing-Line Outstandings at such
time and (b) the aggregate of the Available Commitments of the Swing-Line Banks
at such time adjusted (in either case), in the case of a proposed Utilisation
only, so as to take into account:
3
(i) any reduction in the Swing-Line Commitment or Commitment of a Swing-
Line Bank which will occur prior to or during the Term or Tenor
relating to the proposed Utilisation consequent upon a cancellation
of the whole or any part of the Swing-Line Commitment or Commitment
of such Swing-Line Bank pursuant to the terms hereof;
(ii) the aggregate Sterling Amount of any Advances and/or Bills which,
pursuant to any other Utilisation, any of the Swing-Line Banks are
then obliged to make or, as the case may be, accept on or before the
proposed Utilisation Date relating to such proposed Utilisation; and
(iii) the aggregate Sterling Amount of any Advances and/or Bills which were
made or, as the case may be, accepted by the Swing-Line Banks
pursuant hereto and which are due to be repaid or, as the case may
be, mature on or before the proposed Utilisation Date relating to
such Utilisation;
"AUTHORISED SIGNATORY" means, in relation to PLC or any other Borrower, any
person whose name and signature appears in any of (a) a certificate referred to
in paragraph 1(iii) of the Third Schedule, (b) the certificate referred to in
paragraph 3 of the Eighth Schedule and (c) a certificate delivered to the
Facility Agent at any time after the date hereof duly executed by a director,
the Secretary or any Authorised Signatory of PLC or such Borrower (as the case
may be) setting out the names and signatures of person(s) authorised to sign on
behalf of PLC or that Borrower (as the case may be) any documents to be
delivered by PLC or such Borrower (as the case may be) pursuant hereto or in
connection herewith and to make Utilisations hereunder and whose authority has
not been revoked by a certificate duly executed by two directors (or any other
Authorised Signatory) of PLC or such Borrower (as the case may be) to that
effect and delivered to the Facility Agent;
"AUTHORISED VERIFIER" means, in relation to PLC or any other Borrower, any
person described as such whose name appears in any of (a) a certificate referred
to in paragraph 1(iii) of the Third Schedule, (b) the certificate referred to in
paragraph 3 of the Eighth Schedule and (c) a certificate delivered to the
Facility Agent at any time after the date hereof duly executed by a director,
the Secretary or any Authorised Signatory of PLC or such Borrower (as the case
may be) setting out the names of person(s) authorised to verify any notice or
communication delivered pursuant to Clause 46.1 by PLC or that Borrower (as the
case may be) and whose authority has not been revoked by a certificate duly
executed by two directors (or any Authorised Signatory) of PLC or such Borrower
(as the case may be) to that effect and delivered to the Facility Agent;
"▇▇▇▇" means a ▇▇▇▇▇▇▇▇ ▇▇▇▇ of exchange accepted, or to be accepted, by a Bank
hereunder including (unless otherwise provided), without limitation, a
Competitive ▇▇▇▇;
"BORROWER ACCESSION MEMORANDUM" means a memorandum to be delivered to the
Facility Agent pursuant to Clause 41.1 by PLC and any Acceding Borrower
substantially in the form set out in the Seventh Schedule;
"BORROWER SECESSION MEMORANDUM" means a memorandum to be delivered to the
Facility Agent pursuant to Clause 41.3 by PLC substantially in the form set out
in the Ninth Schedule;
4
"BORROWERS" means each of the Original Borrowers and any Acceding Borrower and
"BORROWER" means any one of them;
"COMMITMENT" means, in relation to a Bank at any time and save as otherwise
provided herein, the amount set opposite its name in Part I of the First
Schedule;
"COMPETITIVE ADVANCE" means an Advance made or to be made by a Bank pursuant to
the bidding procedure described in Clause 8;
"COMPETITIVE BID" means an offer by a Bank to make a Competitive Advance or, as
the case may be, accept a Competitive ▇▇▇▇, pursuant to Clause 8 in the form of
Part III of the Eleventh Schedule;
"COMPETITIVE BID RATE" means, in relation to any Competitive Bid made by a Bank
pursuant to Clause 8, in the case of a Competitive Advance, the applicable
margin or, in the case of a Competitive ▇▇▇▇, the acceptance commission rate
offered by the Bank making such Competitive Bid;
"COMPETITIVE BID REQUEST" means a request made pursuant to Clause 8 in the form
of Part I of the Eleventh Schedule;
"COMPETITIVE BID UTILISATION CONFIRMATION LETTER" means a confirmation made by a
Borrower pursuant to Clause 8 in the form of Part IV of the Eleventh Schedule;
"COMPETITIVE ▇▇▇▇" means a ▇▇▇▇ accepted or to be accepted by a Bank pursuant to
the bidding procedure described in Clause 8;
"CONSOLIDATED INTEREST" means at any time, the net interest payable by the Group
as shown in the consolidated profit and loss account included in the latest
audited consolidated financial statements of PLC delivered pursuant to Clause
23.1(i) (or, if none, the Original Financial Statements);
"CONSOLIDATED MARKET VALUE" means, in respect of any financial year of PLC (the
"RELEVANT YEAR") the sum of A+B where:
A= (OS X P) + (CS X S)
where:
"OS" means the aggregate number of ordinary shares in PLC in issue as at
the end of the financial year of PLC immediately preceding the
Relevant Year (the "PRECEDING YEAR") as shown in the audited
consolidated financial statements of the Group for the Preceding
Year;
"P" means the mid-market closing price for ordinary shares of PLC on the
last business day of the Preceding Year (as published in the
Financial Times or in such other source as is agreed between PLC and
the Facility Agent);
"CS" means the aggregate number of securities (of whatever kind) issued by
any member of the Group which are convertible into ordinary shares of
PLC and which are in
5
issue as at the end of the Preceding Year as shown in the audited
consolidated financial statements of the Group for the Preceding
Year; and
"S" means the weighted average of the mid-market closing prices of each
type of convertible security referred to in the definition of "CS"
above on the last business day of the Preceding Year (as published in
the Financial Times or in such other source as is agreed between PLC
and the Facility Agent); and
B= AB - ACLF
where:
"AB" means the aggregate amount of borrowings (short, medium and long
term) of the Group as at the end of the Preceding Year as shown in
the audited consolidated balance sheet of the Group contained in the
audited consolidated financial statements of the Group for the
Preceding Year; and
"ACLF" means the aggregate amount of cash and liquid funds of the Group as
at the end of the Preceding Year as shown in the audited consolidated
balance sheet of the Group contained in the audited consolidated
financial statements of the Group for the Preceding Year.
"CONSOLIDATED NET TANGIBLE WORTH" means at any time the sum (as determined from
the latest audited consolidated financial statements of PLC delivered pursuant
to Clause 23.1(i) or, if none, the Original Financial Statements) of the total
amount paid up on the share capital of PLC plus or minus the aggregate amount
standing to the credit or debit of the consolidated reserves of the Group
(including the profit and loss account and any share premium account, but after
deducting the amount of all assets of PLC and its subsidiaries which would in
accordance with generally accepted accounting principles in the United Kingdom
be classified as intangible assets), and (for the avoidance of doubt) excluding
(a) the amount of provisions made in respect of deferred taxation on a
consolidated basis and (b) any amounts attributable to minority interests in
subsidiaries;
"CONSOLIDATED OPERATING PROFIT" means in respect of any period the operating
profit of the Group for such period (as determined from the latest audited
consolidated financial statements of PLC delivered pursuant to Clause 23.1(i)
or, if none, the Original Financial Statements);
"DOLLAR SWING-LINE ADVANCE" means any dollar advance made or to be made by a
Swing-Line Bank pursuant to a Utilisation Request under Clause 6.4;
"DOLLAR SWING-LINE RATE" means at any time, the higher of:-
(i) the Dollar Swing-Line Agent's Prime Rate; and
(ii) the Federal Funds Rate at that time plus 0.25% per annum;
"ELIGIBLE BANK" means a bank whose acceptance of a ▇▇▇▇ of exchange would, if
such ▇▇▇▇ of exchange was otherwise so eligible, make such ▇▇▇▇ of exchange
eligible for rediscount at the Bank of England;
6
"ELIGIBLE ▇▇▇▇" means a ▇▇▇▇▇▇▇▇ ▇▇▇▇ of exchange eligible for rediscount at the
Bank of England;
"ELIGIBLE ▇▇▇▇ DISCOUNT RATE" means, in respect of any Utilisation Date, the
rate (as conclusively determined by the Facility Agent (in the absence of
manifest error) at or about 11.00 a.m. on such Utilisation Date) at which
Eligible Bills of an equivalent aggregate face amount and a tenor equivalent to
the Tenor of the Bills to be discounted by the Facility Agent pursuant to Clause
9.2 can be discounted in the London Discount Market on such Utilisation Date;
"EVENT OF DEFAULT" means any of those events specified in Clause 26.1;
"EXISTING ENCUMBRANCE" means an encumbrance listed in the Tenth Schedule hereto;
"FACILITY" means the multicurrency multi-option facility granted to the
Borrowers in this Agreement;
"FACILITY OFFICE" means:
(i) in relation to the Facility Agent or any Bank (other than in such
Bank's capacity as a Swing-Line Bank), each office identified in Part
I of the First Schedule (or, in the case of a Transferee, at the end
of the Transfer Certificate to which it is a party as Transferee) or
such other office as it may from time to time select; and
(ii) in relation to the Dollar Swing-Line Agent or any Swing-Line Bank (in
relation to a Utilisation by means of Dollar Swing-Line Advances),
its office in the United States of America (or the associated
offshore office of its office in the United States of America) in the
same time zone as New York City identified in Part II of the First
Schedule (or in the case of a Transferee, at the end of the Transfer
Certificate to which it is a party as Transferee), or such other
office in the United States of America (or associated offshore
office) in the same time zone as New York City as it may from time to
time select; and
(iii) in relation to the Sterling Swing-Line Agent or any Swing-Line Bank
(in relation to a Utilisation by means of Sterling Swing-Line
Advances), its office in the United Kingdom identified in Part II of
the First Schedule (or in the case of a Transferee, at the end of the
Transfer Certificate to which it is a party as Transferee) or such
other office in the United Kingdom as it may from time to time
select;
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to:
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers as published for such day (or, if such day is
not a business day, for the next preceding business day) by the
Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a business day,
the average of the quotations for such transactions received by the
Dollar Swing-Line Agent from three federal funds brokers of
recognised standing selected by it;
7
"FINANCE DOCUMENTS" means each of this Agreement, the Bills and any Borrower
Accession Memorandum;
"GROUP" means PLC and its subsidiaries from time to time;
"INDICATIVE AMOUNT" means, in relation to any Competitive Bid Request, the
aggregate principal amount of the Advances or, as the case may be, the aggregate
face amount of the Bills therein requested;
"INSTRUCTING GROUP" means:
(i) for the purposes of Clauses 26.2 and 26.3 at any time when there are
no Advances or Bills outstanding other than Competitive Advances
and/or Competitive Bills and an Event of Default has occurred, a Bank
or group of Banks to whom an amount in excess of 66 2/3% of the
Outstandings is then due or to become due; and
(ii) at all other times, and save as otherwise provided herein, a Bank or
group of Banks whose Commitments amount (or, if each Bank's
Commitment has been reduced to zero, did immediately before such
reduction to zero, amount) in aggregate to more than 66 2/3% of the
Total Commitments;
"INVITATION FOR COMPETITIVE BIDS" means an invitation for competitive bids made
by a Borrower pursuant to Clause 8 in the form of Part II of the Eleventh
Schedule;
"LIBOR" means, in relation to any Advance (other than a Dollar Swing-Line
Advance) or unpaid sum, the rate per annum determined by the Facility Agent to
be (i) the Screen Rate for the specified period or (ii) (in the event that LIBOR
cannot be determined by reference to the Screen Rate) the rate per annum
determined by the Facility Agent to be equal to the arithmetic mean (rounded
upwards, if not already such a multiple, to the nearest 0.00001 per cent.) of
the rates (as notified to the Facility Agent) at which each of the Reference
Banks was offering to prime banks in the London Interbank Market deposits in the
currency in which such Advance or unpaid sum is to be denominated and for the
specified period at or about 11.00 a.m. on the Quotation Date therefor and, for
the purposes of this definition, "SPECIFIED PERIOD" means the Term of such
Advance or, as the case may be, the relevant period in respect of which LIBOR
falls to be determined in relation to such unpaid sum;
"LIMITED RECOURSE LOAN" means any moneys borrowed or raised for the purpose of
financing expenditure on or in connection with any project forming part of the
business of any member of the Group, such moneys borrowed or raised not being
guaranteed by any member of the Group and only being secured on the assets
forming part of, or constituting, the relevant project on terms which provide,
inter alia, that:-
(i) in the event of any default thereunder the creditor(s) shall not be
entitled to have recourse for the payment or recovery of any moneys
owing thereunder or in respect thereof, to any present or future
assets of the member(s) of the Group borrowing or raising such moneys
not forming part of the assets so secured; and
8
(ii) except for enforcing such security the creditor(s) shall not have any
right to take any action against the member(s) of the Group borrowing
or raising such moneys or in relation to such member's assets, by
proceedings in any court or otherwise, to recover any amounts owing
thereunder or in respect thereof;
"MATURITY DATE" means, in relation to any ▇▇▇▇, the last day of the Tenor
thereof;
"OPTIONAL CURRENCY" means, any currency (other than sterling and the european
currency unit) which is freely transferable and freely convertible into sterling
and is available to banks in the London Interbank Market;
"ORIGINAL FINANCIAL STATEMENTS" means, the audited consolidated financial
statements of PLC for its financial year ended 31st December 1994;
"OUTSTANDINGS" means, at any time, the aggregate of the Sterling Amounts of:
(i) each outstanding Advance; and
(ii) each outstanding ▇▇▇▇;
"PERMITTED ENCUMBRANCE" means any Existing Encumbrance and any other
encumbrance:
(i) created after the date hereof by a member of the Group incorporated
outside the United Kingdom over any property of such member outside
the United Kingdom solely for the purpose of securing financial
indebtedness incurred by such member for the purpose of its business
or that of its subsidiaries but only if the amount of such borrowings
(or the equivalent thereof in sterling at the relevant time) when
aggregated with the total amount secured by any other subsisting
encumbrances permitted by this sub-paragraph (i) does not exceed
Pounds 50,000,000;
(ii) created by a member of the Group to secure any Limited Recourse Loan
made to such member or any other member of the Group;
(iii) created by a member of the Group in respect of which the prior
written consent of an Instructing Group has been obtained;
(iv) arising by virtue of any right on the part of any bank to apply any
part of any credit balance(s) representing any moneys standing to the
credit of any bank account of any member of the Group in the books of
such bank in discharge or satisfaction of any part of any debit
balance(s) of any bank account of any member of the Group in the
books of such bank;
(v) any encumbrance:-
(a) created by a member of the Group prior to its becoming a member
of the Group; or
9
(b) created over an asset acquired by a member of the Group prior to
its acquisition and subject to which such acquisition was made
Provided that (1) such encumbrance was not created in contemplation
of such company becoming a member of the Group or, as the case may
be, the acquisition of such asset and (2) the amount thereby secured
was not increased in contemplation of such company becoming a member
of the Group or, as the case may be, the acquisition of such asset;
and
(vi) any other encumbrance created after 31st December, 1994 over any
property of a member of the Group but only if the amount of financial
indebtedness secured thereby (or its equivalent in sterling at the
relevant time) when aggregated with the total amount secured by any
other subsisting encumbrances permitted by this sub-paragraph (vi)
does not exceed the greater of:-
(a) 15% of Consolidated Net Tangible Worth; and
(b) Pounds 75,000,000;
"POTENTIAL EVENT OF DEFAULT" means, any event which would become (with the
passage of time, the giving of notice, the making of any determination hereunder
or any combination thereof), if not remedied or waived within any applicable
time limit, an Event of Default;
"PRIME RATE" means, for any day, the rate per annum which is the prime rate of
the Dollar Swing-Line Agent in New York City, from time to time, in force on
such date;
"PRINCIPAL SUBSIDIARY" means at any time:-
(i) any subsidiary of PLC whose unconsolidated profit before interest,
tax and extraordinary items (as determined by reference to the latest
audited financial statements of that subsidiary) is not less than
five per cent (5%) of Consolidated Operating Profit; and
(ii) ▇▇▇▇▇▇▇ Inc;
"PROPORTION" means, in relation to a Bank either:-
(i) the proportion borne by its Commitment to the Total Commitments; or
(ii) at any time when the Total Commitments are zero, the proportion borne
by its share of the Outstandings to the Outstandings;
"QUALIFYING BANK" means a person which is recognised by the Inland Revenue as
carrying on a bona fide banking business in the United Kingdom for the purposes
of Section 349 of the Income and Corporation Taxes ▇▇▇ ▇▇▇▇;
10
"QUOTATION DATE" means, in relation to any period for which an interest rate is
to be determined hereunder, the day on which quotations would ordinarily be
given by prime banks in the London Interbank Market for deposits in the currency
in relation to which such rate is to be determined for delivery on the first day
of that period Provided that, if for any such period quotations would
ordinarily be given on more than one date, the Quotation Date for that period
shall be the last of those dates;
"REFERENCE BANKS" means the principal London offices of Midland Bank PLC, Union
Bank of Switzerland and Deutsche Bank AG or such other bank or banks as may from
time to time be agreed between PLC and an Instructing Group;
"REPAYMENT DATE" means, in relation to any Advance, the last day of the Term
thereof;
"REQUESTED AMOUNT" means, in relation to any Utilisation Request or Competitive
Bid Utilisation Confirmation Letter, the aggregate principal amount of the
Advances or, as the case may be, the aggregate face amount of the Bills therein
requested;
"SCREEN RATE" means either (i) the arithmetic mean (rounded upwards if not
already such a multiple, to the nearest 0.00001 per cent.) of the offered rates
(if any) appearing on page 3740 or page 3750 of the Telerate Screen (or such
other page or service as may replace such pages on such system for this purpose)
which displays British Bankers Association Interest Settlement Rates for
deposits in the currency in which the relevant Advance or unpaid sum is to be
denominated at or about 11.00 a.m. on the Quotation Date therefor or (ii) (in
the case of an Advance or unpaid sum denominated in Hong Kong Dollars) the
arithmetic mean (rounded upwards if not already such a multiple, to the nearest
0.00001 per cent.) of the offered rates (if any) appearing on page HIBO of the
Reuters Screen (or such other page or service as may replace such page on such
system for this purpose) which displays Hong Kong Interbank Offered Rates for
deposits in Hong Kong dollars at or about 11.00 a.m. on the Quotation Date
therefor;
"STERLING AMOUNT" means:
(i) in relation to any Advance, Indicative Amount or Requested Amount,
the principal amount thereof or, if such Advance, Indicative Amount
or Requested Amount is not denominated in sterling, the equivalent of
such amount in sterling calculated as at the date of the relevant
Utilisation Request, Competitive Bid Request or, as the case may be,
Competitive Bid Utilisation Letter; and
(ii) in relation to any ▇▇▇▇, the face amount thereof;
"STERLING SWING-LINE ADVANCE" means any sterling advance made or to be made by a
Sterling Swing-Line Bank pursuant to a Utilisation Request under Clause 6.4;
"STERLING SWING-LINE RATE" means, at any time, the aggregate of:
(i) LIBOR;
(ii) 0.25% per annum; and
11
(iii) the Associated Costs Rate applicable thereto;
"SWING-LINE ADVANCE" means a Dollar Swing-Line Advance or a Sterling Swing-Line
Advance as the context may require;
"SWING-LINE BANK" means a Bank whose name appears in Part II of the First
Schedule;
"SWING-LINE COMMITMENT" means, in relation to a Swing-Line Bank at any time and
save as otherwise provided herein, the amount set opposite its name in Part II
of the First Schedule;
"SWING-LINE OUTSTANDINGS" means, at any time, the aggregate of the Sterling
Amounts of the outstanding Swing-Line Advances;
"SWING-LINE RATE" means the Dollar Swing-Line Rate or the Sterling Swing-Line
Rate as the context may require;
"TENOR" means, in relation to any ▇▇▇▇, the period from the Utilisation Date on
which it is accepted until its maturity as specified in the Utilisation Request
or Competitive Bid Request relating thereto;
"TERM" means, save as otherwise provided herein, in relation to any Advance, the
period for which such Advance is borrowed as specified in the Utilisation
Request or Competitive Bid Request relating thereto;
"TERMINATION DATE" means the seventh anniversary of the date hereof;
"TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks' Commitments
at such time;
"TRANSFER CERTIFICATE" means a certificate substantially in the form set out in
the Second Schedule signed by a Bank and a Transferee whereby:
(i) such Bank seeks to procure the transfer to such Transferee of all or
a part of such Bank's rights and obligations hereunder upon and
subject to the terms and conditions set out in Clause 39; and
(ii) such Transferee undertakes to perform the obligations it will assume
as a result of delivery of such certificate to the Facility Agent as
is contemplated in Clause 39.3;
"TRANSFER DATE" means, in relation to any Transfer Certificate, the date for the
making of the transfer as specified in the schedule to such Transfer
Certificate;
"TRANSFEREE" means a bank or other financial institution to which a Bank seeks
to transfer all or part of such Bank's rights and obligations hereunder in
accordance with Clause 39;
"UTILISATION" means a utilisation of the Facility hereunder;
"UTILISATION DATE" means the date of a Utilisation being the date on which the
Advances in respect thereof are to be made or the Bills in respect thereof are
to be accepted;
12
"UTILISATION REQUEST" means a notice given to the Facility Agent pursuant to
Clause 6.1 or, as the case may be, Clause 6.4 substantially in the form set out
in the Fourth Schedule; and
"1988 FACILITY" means the transferable multi-option facility agreement dated
10th February, 1988 between ▇▇▇▇▇▇▇ plc and ▇▇▇▇▇▇▇ Inc. as borrowers, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Limited as agent and others.
1.2 Any reference in this Agreement to:
an "AGENT", an "ARRANGER" or any "BANK" shall be construed so as to include its
and any subsequent successors, Transferees and assigns in accordance with their
respective interests;
a "BUSINESS DAY" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks are generally open for business in London or,
in the case of any Dollar Swing-Line Advance, in London and New York City or if
such reference relates to a date for the payment or purchase of any sum
denominated in an Optional Currency, in London and the principal financial
centre of the country of such Optional Currency;
a "CLAUSE" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
an "ENCUMBRANCE" shall be construed as a reference to a mortgage, charge,
pledge, lien (other than a lien arising by operation of law), security interest,
conditional sale or other title retention agreement or other encumbrance
securing any obligation of any person;
the "EQUIVALENT" on any given date in one currency (the "FIRST CURRENCY") of an
amount denominated in another currency (the "SECOND CURRENCY") is a reference to
the amount of the first currency which could be purchased with the amount of the
second currency at the spot rate of exchange quoted by the Facility Agent at or
about 9.15 a.m. on such date for the purchase of the first currency with the
second currency;
"FINANCIAL INDEBTEDNESS" shall be construed as a reference to any indebtedness
for or in respect of moneys borrowed or raised by whatever means (including,
without limitation, by means of acceptances, deposits and finance leases and any
liability evidenced by bonds, debentures, notes or similar instruments);
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned company or
corporation is a subsidiary;
"INDEBTEDNESS" shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
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 succeeding calendar
month save that, where any such period would otherwise end on a non-business
day, it shall end on the next business day unless that day falls in the calendar
month succeeding that in which it would otherwise have ended, in which case it
shall end on the preceding business day Provided that, if a period starts on the
last business day
13
in a calendar month or if there is no numerically corresponding day in the
calendar month in which that period ends, that period shall end on the last
business day in that later month;
a "PART" shall, subject to any contrary indication, be construed as a reference
to a part hereof;
a "PERSON" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or more of
the foregoing;
a "SCHEDULE" shall, subject to any contrary indication, be construed as a
reference to a schedule hereto;
a "SUBSIDIARY" of a person means any other person which:
(a) is a subsidiary of that person within the meaning of Section 736 of
the Companies ▇▇▇ ▇▇▇▇; and
(b) for the purposes of Clauses 22.1(vii), 23 and 24, the defined terms
used therein and all other references herein to the Original
Financial Statements or any other financial statements of PLC and its
subsidiaries or of the Group, is a subsidiary undertaking of that
person within the meaning of Section 258 of the Companies ▇▇▇ ▇▇▇▇;
"TAX" shall be construed so as to include any tax, levy, impost, duty or other
charge of a similar nature (including, without limitation, any penalty or
interest payable in connection with any failure to pay or any delay in paying
any of the same);
"VAT" shall be construed as a reference to value added tax including any similar
tax which may be imposed in place thereof from time to time;
a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation shall be construed as a
reference to any company or corporation which has no other members except that
other company or corporation and that other company's or corporation's wholly-
owned subsidiaries or persons acting on behalf of that other company or
corporation or its wholly-owned subsidiaries; and
the "WINDING-UP", "DISSOLUTION", "ADMINISTRATION" or "ADMINISTRATIVE
RECEIVERSHIP" of a company or corporation shall be construed so as to include
any equivalent or analogous proceedings under the law of the jurisdiction in
which such company or corporation is incorporated or any jurisdiction in which
such company or corporation carries on business.
1.3 "$" and "DOLLARS" denote lawful currency of the United States of America,
"(Pounds)" and "STERLING" denote lawful currency of the United Kingdom.
14
1.4 Save where the contrary is indicated, any reference in this Agreement to:
(i) this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may
be, such other agreement or document as the same may have been,
or may from time to time be, amended, varied, novated or
supplemented;
(ii) a statute shall be construed as a reference to such statute as
the same may have been, or may from time to time be, amended or
re-enacted; and
(iii) a time of day shall be construed as a reference to London
time.
1.5 Clause, Part and Schedule headings are for ease of reference only.
1.6 There are set out in the Fifth Schedule timetables of certain of the
procedures provided for in this Agreement. For the purpose of construction, any
reference herein to a "specified time" shall be construed as a reference to the
relevant time set forth in the relevant timetable.
1.7 All expressions used in the definitions contained in Clause 24 which are
not otherwise defined herein shall be construed in accordance with generally
accepted accounting principles in the United Kingdom (as used in the Group's
latest audited consolidated financial statements delivered pursuant to Clause
23.1(i) hereof, or, if none, the Original Financial Statements).
15
PART 2
THE FACILITY
2. THE FACILITY
The ▇▇▇▇▇ ▇▇▇▇▇ to the Borrowers, upon the terms and subject to the conditions
hereof, a multicurrency multi-option facility (incorporating a competitive bid
option) in an aggregate amount of (Pounds)325,000,000 or its equivalent from
time to time in Optional Currencies, a maximum amount of (Pounds)150,000,000 (or
its equivalent) of which is available as dollar swing-line advances or sterling
swing-line advances.
3. PURPOSE
3.1 The Facility is intended for general corporate purposes including (without
limitation) the refinancing of amounts outstanding under existing facilities
(including the 1988 Facility) and the provision of back-up financing in relation
to dollar and sterling commercial paper facilities and accordingly, each of the
Borrowers shall apply all amounts raised by it hereunder in or towards
satisfaction of such general corporate purposes.
3.2 Without prejudice to the obligations of the Borrowers under Clause 3.1,
none of the Agents, the Arrangers and the Banks shall be obliged to concern
themselves with the application of amounts raised by any of the Borrowers
hereunder.
4. CONDITIONS PRECEDENT
None of the Borrowers may deliver any Utilisation Request or Competitive Bid
Request hereunder unless the Facility Agent has confirmed to PLC and the Banks
that it has received all of the documents and other evidence listed in the Third
Schedule and that each is, in form and substance, satisfactory to the Facility
Agent.
5. NATURE OF BANKS' OBLIGATIONS
5.1 The obligations of each Bank hereunder are several.
5.2 The failure by a Bank to perform its obligations hereunder shall not affect
the rights of any Borrower against such Bank in relation to such failure or the
obligations of PLC or any of the other Borrowers towards any other party hereto
nor shall any other party be liable for the failure by such Bank to perform that
Bank's obligations hereunder.
16
PART 3
UTILISATION OF THE FACILITY
6. UTILISATION OF THE FACILITY
6.1 Save as otherwise provided herein, any Borrower (being, in the case of a
Utilisation by means of Bills, incorporated in the United Kingdom) may from time
to time utilise the Facility by means of Advances (other than Swing-Line
Advances which are dealt with in Clause 6.4 and Competitive Advances which are
dealt with in Clause 8) or Bills (other than Competitive Bills which are dealt
with in Clause 8) by delivering to the Facility Agent by no later than the
specified time a duly completed Utilisation Request therefor.
6.2 Each Utilisation Request delivered to the Facility Agent pursuant to Clause
6.1 shall be irrevocable and shall specify:
(i) whether the Utilisation is to be by means of Advances or Bills;
(ii) the proposed Utilisation Date which shall be a business day;
(iii) in the case of a Utilisation Request for Advances, the currency of
denomination of the proposed Advances, which shall be sterling or an
Optional Currency;
(iv) the Requested Amount which shall be:
(a) in the case of a Utilisation by means of Advances denominated in
sterling or Bills, an amount which does not exceed the Available
Facility for such Utilisation and which, if less than the
Available Facility for such Utilisation, is a minimum amount of
(Pounds)10,000,000 and an integral multiple of (Pounds)1,000,000
(or such other integral multiple as PLC and the Facility Agent
may agree); and
(b) in the case of a Utilisation by means of Advances denominated in
an Optional Currency, an amount in such Optional Currency, the
Sterling Amount of which does not exceed the Available Facility
for such Utilisation, and which, if the Sterling Amount is less
than the Available Facility for such Utilisation, is in a minimum
Sterling Amount of (Pounds)10,000,000 and is an integral multiple
of 1,000,000 of the largest currency unit of such Optional
Currency (or such other integral multiple as PLC and the Facility
Agent may agree);
(v) the Term or Tenor in question, being:
(a) in respect of Advances (and subject to Clause 7.2), a period of 14
days, one, two, three, four, five or six months (or such other
period as may be agreed between the Banks and the relevant
Borrower);
17
(b) in respect of Bills, a period of between 7 days and 187 days,
which will begin on the proposed Utilisation Date and end on a
business day which is or precedes the Termination Date; and
(vi) the account to which the proceeds of the proposed Utilisation are to
be paid.
6.3 If and whenever, on the occasion of a Utilisation, the Banks are required
to make Advances or accept Bills pursuant to the foregoing Clauses of this
Clause 6, the aggregate principal Sterling Amount of the Advances to be so made
or, as the case may be, the aggregate face amount of the Bills to be so accepted
shall be allocated to, and apportioned among, the Banks rateably to their
respective Available Commitments for such Utilisation.
6.4 Save as otherwise provided herein, any Borrower may from time to time
request the making of a Dollar Swing-Line Advance or a Sterling Swing-Line
Advance under the Facility by delivering to the Facility Agent (with a copy to
the Dollar Swing-Line Agent or, as the case may be, the Sterling Swing-Line
Agent) a duly completed Utilisation Request therefor by no later than the
specified time.
6.5 Each Utilisation Request delivered pursuant to Clause 6.4 shall be
irrevocable and shall specify:
(i) whether the Utilisation is to be by means of Dollar Swing-Line
Advances or Sterling Swing-Line Advances;
(ii) the proposed Utilisation Date which shall be a business day;
(iii) the Requested Amount (a) the Sterling Amount of which shall be an
amount which does not exceed the Available Swing-Line Facility for
such Utilisation and (b) which shall be a minimum of
Pounds 10,000,000 (or, in the case of a Dollar Swing-Line Advance,
$10,000,000) and an integral multiple of Pounds 1,000,000 (or, in
the case of a Dollar Swing-Line Advance, $1,000,000) (or, in each
case, such other integral multiple as PLC and the Facility Agent may
agree);
(iv) the Term (which shall not exceed 7 days and which shall begin on the
proposed Utilisation Date and end on a business day which is or which
precedes the Termination Date); and
(v) the account to which the proceeds of the proposed Utilisation are to
be paid.
6.6 In respect of each Utilisation by means of Dollar Swing-Line Advances, each
Swing-Line Bank shall (subject as provided in Clause 13), no later than the
specified time on the Utilisation Date relating thereto:
(i) through its Facility Office make, or procure to be made, its Dollar
Swing-Line Advance available to the Dollar Swing-Line Agent in
accordance with Clause 6.8; and
18
(ii) advise the Dollar Swing-Line Agent by telephone or telex of the
Federal Reserve Bank wire number effecting the transfer required by
(i) above.
6.7 In respect of each Utilisation by means of Sterling Swing-Line Advances,
each Swing-Line Bank shall (subject as provided in Clause 13), no later than the
specified time on the Utilisation Date relating thereto through its Facility
Office make, or procure to be made, its Sterling Swing-Line Advance available to
the Sterling Swing-Line Agent in accordance with Clause 6.8.
6.8 Each Swing-Line Bank will participate through its Facility Office in each
Swing-Line Advance made pursuant to this Clause 6 in the proportion borne by its
Available Swing-Line Commitment to the Available Swing-Line Facility immediately
prior to making the Swing-Line Advance.
6.9 Each Bank shall in respect of any Utilisation hereunder, subject to the
terms hereof, be obliged, through its Facility Office, to make an Advance or,
subject to Clause 7, accept a ▇▇▇▇ on the proposed Utilisation Date in a
principal amount or, as the case may be, a face amount equal to the amount
allocated to it pursuant to this Clause 6.
6.10 The Facility Agent in the case of Advances (other than Swing-Line Advances)
and Bills, the Dollar Swing-Line Agent in the case of Dollar Swing-Line Advances
and the Sterling Swing-Line Agent in the case of Sterling Swing-Line Advances,
shall not later than the specified time notify each Bank of the principal amount
or, as the case may be, the face amount allocated to it pursuant to this Clause
6.
6.11 If a Bank has been notified pursuant to Clause 6.10 that it is to accept
Bills, it may, no later than the specified time, notify the Facility Agent that
it does not wish the Facility Agent to arrange for the discounting of the Bills
in question.
6.12 If a Bank's Commitment or Swing-Line Commitment is reduced, in accordance
with the terms hereof, after the Facility Agent has received a Utilisation
Request or made an allocation hereunder then such part of the proposed
Utilisation as is attributable to that Bank and exceeds its Available Commitment
or, as the case may be, its Available Swing-Line Commitment, (as so reduced)
shall not be made and the amount of such Utilisation shall be reduced
accordingly.
7. ADVANCES OPTION IN LIEU OF BILLS
7.1 Notwithstanding that any Borrower has in any Utilisation Request delivered
pursuant to Clause 6 made a request for a Utilisation by means of Bills, any
Bank may by no later than the specified time notify the Facility Agent by
telephone (to be confirmed no later than the specified time by telex, telefax or
letter) that it is unable to accept such Bills by virtue of any Bank of England
restriction relating to the acceptance of bills of exchange placed on it and, as
a result, wishes to elect to make an Advance instead, in which case it shall, if
it would otherwise be required to accept Bills pursuant to Clause 9, not be
obliged to do so, but instead be required to make an Advance (other than a
Swing-Line Advance) in accordance with Clause 7.2. If the Facility Agent is not
so notified by any Bank by the specified time then such Bank shall (and the
Facility Agent may assume that it shall), if required to do so under Clause 9,
be obliged to accept Bills in respect of the Utilisation in question.
19
7.2 A Bank required to make an Advance under Clause 7.1 shall make such Advance
in an amount equal to the aggregate face amount of the Bills which it would,
except for Clause 7.1, be required to accept hereunder and having a Term equal
to the Tenor of such Bills.
8. COMPETITIVE BID OPTION
8.1 In addition to Advances and Bills requested under Clause 6.1, a Borrower
(being in the case of a Utilisation by means of Competitive Bills, incorporated
in the United Kingdom) may, as set forth in this Clause 8 request the Banks to
make offers to make Competitive Advances or to accept Competitive Bills. The
Banks may, but shall have no obligation to, make such offers, and the relevant
Borrower may, but shall have no obligation to, accept any such offers in the
manner set forth in the following provisions of this Clause 8 (and may, by
notice to the Banks through the Facility Agent given by the specified time as
provided in Clause 8.9, require the Banks to make Advances and/or accept Bills
in lieu of any Competitive Advances or Competitive Bills requested).
8.2 If a Borrower wishes to request offers to make Competitive Advances or to
accept Competitive Bills under this Clause 8, it shall deliver a Competitive
Bid Request to the Facility Agent, to be received by the Facility Agent no later
than the specified time, specifying:
(i) whether the request relates to Competitive Advances or
Competitive Bills;
(ii) the proposed Utilisation Date, which shall be a business day;
(iii) in the case of a request relating to Competitive Advances, the
currency of denomination of the proposed Competitive Advances,
which shall be sterling or an Optional Currency;
(iv) the Indicative Amount which shall be:
(a) in the case of Competitive Advances denominated in sterling
or Bills, an amount which does not exceed the Available
Facility for such Utilisation and which, if less than the
Available Facility for such Utilisation is a minimum amount
of Pounds 10,000,000 and an integral multiple of
Pounds 1,000,000 (or such other integral multiple as PLC
and the Facility Agent may agree); and
(b) in the case of a Utilisation by means of Competitive
Advances denominated in an Optional Currency, an amount in
such Optional Currency the Sterling Amount of which does not
exceed the Available Facility for such Utilisation, and
which, if the Sterling Amount is less than the Available
Facility for such Utilisation, is in a minimum Sterling
Amount of Pounds 10,000,000 and is an integral multiple of
1,000,000 of the largest currency unit of such Optional
Currency (or such other integral multiple as PLC and the
Facility Agent may agree); and
20
(v) the Term or Tenor in question being:
(a) in respect of Competitive Advances, a period of 14 days,
one, two, three, four, five or six months or such other
period as may be required; and
(b) in respect of Competitive Bills, a period of between 7 days
and 187 days;
which will begin on the proposed Utilisation Date and end on a
business day which is or which precedes the Termination Date.
8.3 Promptly after its receipt of a Competitive Bid Request conforming to the
requirements of Clause 8.2 (but, in any event, no later than the specified time)
the Facility Agent shall send to each of the Banks an Invitation for Competitive
Bids which shall constitute an invitation by the relevant Borrower to each such
Bank to bid, on the terms and conditions of this Agreement, to make Competitive
Advances or, as the case may be, accept Competitive Bills pursuant to the
Competitive Bid Request.
8.4 Each Bank may submit a Competitive Bid containing an offer to make
Competitive Advances or, as the case may be, accept Competitive Bills in
response to such Invitation for Competitive Bids. Each Competitive Bid must
comply with the requirements of this Clause 8.4 and must be submitted to the
Facility Agent not later than the specified time PROVIDED that any Competitive
Bid submitted by the Facility Agent in its capacity as a Bank may only be
submitted if the Facility Agent notifies the relevant Borrower of the terms of
the offer contained therein not later than the close of business on the business
day preceding the deadline for the other Banks. A Competitive Bid submitted by a
Bank pursuant to this Clause 8.4 shall be irrevocable and shall specify:-
(i) the date of the proposed Utilisation;
(ii) the aggregate principal amount of the Competitive Advances or,
as the case may be, Competitive Bills for which such offer is
being made, which principal amount (a) may be an amount the
Sterling Amount of which is greater than the Available Commitment
of the bidding Bank but may not be greater than the Indicative
Amount and (b) must be in a minimum principal amount of
Pounds 1,000,000 or a multiple of Pounds 1,000,000 in excess
thereof (or, in the case of a Utilisation by means of Competitive
Advances denominated in an Optional Currency, must be in a
minimum Sterling Amount of Pounds 1,000,000 and be an integral
multiple of 1,000,000 of the largest currency unit of such
Optional Currency (or such other integral multiple as PLC and the
Facility Agent may agree));
(iii) the Competitive Bid Rate offered for the relevant Competitive
Advance or Competitive Bills; and
(iv) the identity of the bidding Bank.
26
8.5 The Facility Agent shall promptly (and, in any event, by no later than the
specified time) notify the relevant Borrower, by telephone (confirmed by
telefax), whether or not any Competitive Bids have been received and of all of
the valid Competitive Bids (if any) made in response to such Invitation for
Competitive Bids (excluding any bids disregarded by reason of not complying with
Clause 8.4), listing the Competitive Bid Rate and the principal amount of each
Competitive Advance or, as the case may be, the Competitive Bid Rate and the
face amount of each Competitive ▇▇▇▇ in respect of which a Competitive Bid was
made and the identity of the Bank that made each bid.
8.6 The relevant Borrower shall at its sole discretion and after it has
received the information referred to in Clause 8.5 notify the Facility Agent no
later than the specified time by telephone confirmed immediately thereafter by
telefax in the form of a Competitive Bid Utilisation Confirmation Letter,
whether or not it wishes to proceed with a Utilisation in respect of the
relevant Competitive Bid Request and if so the Requested Amount thereof provided
that:
(i) if the relevant Borrower fails to give such notice by the specified
time it shall be deemed to have elected not to proceed with a
Utilisation in respect of the relevant Competitive Bid Request and to
have rejected all the bids referred to in Clause 8.5; and
(ii) the Requested Amount specified in any Competitive Bid Utilisation
Confirmation Letter shall be an amount which complies with the
requirements of Clause 8.2(iv) and may not exceed the Indicative
Amount specified in the relevant Competitive Bid Request.
A notice given by a Borrower pursuant to this Clause 8.6 shall be irrevocable.
8.7 After receipt of a Competitive Bid Utilisation Confirmation Letter
indicating that the relevant Borrower wishes to proceed with a Utilisation in
respect of the relevant Competitive Bid Request, Competitive Bids (if any) made
by the Banks whose Competitive Bid Rates are less than or equal to the
Applicable Margin or, as the case may be, the Acceptance Commission Rate shall
be accepted by the Facility Agent on behalf of the relevant Borrower in
ascending order of the Competitive Bid Rates bid for the Competitive Bills or
Competitive Advances (as the case may be) the subject of the relevant
Competitive Bid Request up to an aggregate amount equal to the Requested Amount
specified in the relevant Competitive Bid Utilisation Confirmation Letter
Provided that:
(i) if there is a Competitive Bid which would not on this basis be
accepted in full then such Competitive Bid shall be partially
accepted in an amount which when aggregated with the amount of all
other Competitive Bids accepted is equal to the Requested Amount or,
where such partially accepted Competitive Bid relates to Competitive
Bills, in such other amount as the Facility Agent considers necessary
to ensure that the face amount of each such Competitive ▇▇▇▇ is not
less than Pounds 250,000 (or such lesser amount as PLC and the
Facility Agent may agree), an integral multiple of Pounds 50,000 (or
such other amount as PLC and the Facility Agent may agree) and does
not exceed Pounds 1,000,000; or
(ii) if there are two or more Competitive Bids with the same Competitive
Bid Rates which would not on this basis be accepted in full then each
such Competitive Bid
22
shall be partially accepted by the Facility Agent on behalf of the
relevant Borrower in the proportion which the Competitive Bid in
question bears to the aggregate of such Competitive Bids and, where
such partially accepted Competitive Bids relate to Competitive Bills,
with such rounding upwards or downwards as the Facility Agent
considers necessary in order to ensure that the face amount of each
Competitive ▇▇▇▇ is not less than Pounds 250,000 (or such other
amount as PLC and the Facility Agent may agree), an integral multiple
of Pounds 50,000 (or such other amount as PLC and the Facility Agent
may agree) and does not exceed Pounds 1,000,000.
8.8 The Facility Agent shall promptly (and, in any event, by no later than the
specified time) notify each bidding Bank whether or not its Competitive Bid has
been accepted (and if so, in what amount and at what Competitive Bid Rate), and
each successful bidder will thereupon become bound, subject to the other
applicable conditions hereof, to make the Competitive Advance or, as the case
may be, to accept the Competitive Bills in respect of which its bid has been
accepted.
8.9 In the event that no Competitive Bids are accepted under Clause 8.7 or the
aggregate amount of the Competitive Bids accepted under Clause 8.7 is less than
the Requested Amount specified in such Competitive Bid Utilisation Confirmation
Letter, such Competitive Bid Utilisation Confirmation Letter shall automatically
and without the requirement for any further action by the relevant Borrower be
deemed to constitute a Utilisation Request made by the relevant Borrower
requiring the Banks to make Advances or, as the case may be, to accept Bills
(with the same Utilisation Date, currency and Term or Tenor as specified in the
relevant Competitive Bid Request) in an aggregate amount equal to the shortfall
between such Requested Amount and the aggregate of the principal or face amounts
of the Competitive Advances or, as the case may be, the Competitive Bills in
respect of which Competitive Bids have been accepted under Clause 8.7 (or, in
such lesser amount in the case of Bills, as the Facility Agent considers
necessary to ensure that the face amount of each such ▇▇▇▇ is not less than
Pounds 250,000 (or such lesser amounts as PLC and the Facility Agent may
agree), an integral multiple of Pounds 50,000 (or such other amount as PLC and
the Facility Agent may agree) and does not exceed Pounds 1,000,000). Such a
Utilisation Request shall be treated as if it were delivered in accordance with
the provisions of Clause 6.1 and the making of such Advances or the acceptance
of such Bills (as the case may be) shall accordingly proceed as provided for in
Clause 6 provided that the provisions of Clause 6.2(iv) relating to minimum
amounts and integral multiples shall not apply thereto.
23
PART 4
THE BILLS
9. ACCEPTANCE AND DISCOUNT OF BILLS
9.1 If the Facility Agent notifies any Bank in accordance with Clause 6.10 or
Clause 8.8 that it is to accept any Bills (and such Bank does not elect to make
an Advance pursuant to Clause 7), the Facility Agent shall, by the specified
time, deliver to such Bank Bills in the requisite amount duly drawn by the
Borrower whose Bills are to be accepted and duly completed on behalf of such
Borrower in accordance with Clause 11. Such Bank shall endorse and accept such
Bills and shall, subject to Clause 9.4, return the same to the Facility Agent
(or, if so specified by the Facility Agent, to the Facility Agent's account with
the Central Moneymarkets Office) at such Bank's own risk by the specified time.
9.2 If on the proposed Utilisation Date relating to any Bills:
(i) sterling bills of exchange drawn on and accepted by Eligible Banks
can then be discounted in the London Discount Market;
(ii) the Facility Agent has been able to determine the Eligible ▇▇▇▇
Discount Rate applicable thereto or, if applicable, an alternative
basis rate in substitution therefor pursuant to Clause 21.1(c);
(iii) no Event of Default or Potential Event of Default has occurred which
has not been remedied or waived pursuant to Clause 45;
(iv) the representations set out in Clause 22 are true on and as of such
Utilisation Date; and
(v) the proposed Utilisation would not result in there being Advances and
Bills outstanding which have been made or accepted pursuant to
fifteen (15) or more Utilisations under the Facility,
the Facility Agent shall, subject to Clauses 9.3 and 9.4, either offer such
Bills for discount in the London Discount Market at the Eligible ▇▇▇▇ Discount
Rate for such Utilisation Date or, at the Facility Agent's discretion, elect, no
later than the specified time, to purchase all or any of such Bills as principal
for an amount equal to the amount which it would have received had it arranged
for the discounting of such Bills at such Eligible ▇▇▇▇ Discount Rate. The
Facility Agent will notify such Eligible ▇▇▇▇ Discount Rate by no later than the
specified time to the Borrower whose Bills are being accepted and each Bank
which is to discount Bills pursuant to Clause 9.3 or 9.4. If, on any proposed
Utilisation Date, the conditions set forth in Clause 9.2(i) to (v) have not been
complied with, then the proposed Utilisation shall not be made and any Bills
accepted by the Banks in respect of such proposed Utilisation shall be cancelled
and the respective obligations of the parties in relation thereto shall be
terminated.
24
9.3 If, on any occasion, the Facility Agent does not exercise its discretion to
purchase any or all of the Bills accepted by any Bank and it is unable to
arrange for such Bills to be discounted in the London Discount Market at the
Eligible ▇▇▇▇ Discount Rate, it shall promptly notify such Bank to such effect
and with an accompanying notice to such Bank, it will instruct the Central
Moneymarkets Office at the Bank of England to transfer such Bills to the account
of such Bank or such Bank's agent and return such Bills to such Bank, whereupon:
(i) such Bank shall itself discount or arrange for the discounting of
such Bills and such Bills shall be deemed to have been so discounted
at the Eligible ▇▇▇▇ Discount Rate notified by the Facility Agent
pursuant to Clause 9.2 (whether or not such Bank is able so to
discount such Bills); and
(ii) such Bank shall, in relation to such Bills, pay to the Facility Agent
on the relevant Utilisation Date an amount equal to the amount which
the Facility Agent would have received had the Facility Agent itself
arranged for the discounting of such Bills at such rate (but after
deducting and retaining for its own account all acceptance commission
payable by the relevant Borrower to such Bank pursuant to Clause 10).
9.4 If, on any occasion, a Bank has specified in a notice given by it to the
Facility Agent pursuant to Clause 6.11 that it does not wish the Facility Agent
to arrange for the discounting of the Bills in question, such Bank shall not
return such Bills to the Facility Agent in accordance with Clause 9.1 and, if
the conditions set forth in Clause 9.2(i) to (v) have been complied with:
(i) such Bills shall be deemed to have been so discounted at the Eligible
▇▇▇▇ Discount Rate notified pursuant to Clause 9.2 (whether or not
such Bank is able so to discount such Bills); and
(ii) such Bank shall, in relation to such Bills, pay to the Facility Agent
on the relevant Utilisation Date an amount equal to the amount which
the Facility Agent would have received had the Facility Agent itself
arranged for the discounting of such Bills at such Eligible ▇▇▇▇
Discount Rate (but after deducting and retaining for its own account
all acceptance commission payable by the relevant Borrower to the
Facility Agent for the account of such Bank pursuant to Clause 10).
9.5 The Facility Agent will account to the relevant Borrower for all proceeds
of deemed discounting or discounting received by it pursuant to Clauses 9.2, 9.3
and 9.4 and, if applicable, the purchase price payable by the Facility Agent as
principal pursuant to Clause 9.2 but after deducting and paying to the Banks the
acceptance commission payable to them pursuant to Clause 10 (to the extent not
already deducted and retained by them pursuant to Clause 9.3 or Clause 9.4).
10. ACCEPTANCE COMMISSION
The relevant Borrower whose Bills are accepted hereunder shall be obliged, on
the day such Bills are accepted, to pay to the Facility Agent for the account of
each Bank which accepts its Bills under Clause 9.1 an acceptance commission in
sterling at the Acceptance Commission Rate on the face amount thereof and for
the Tenor thereof.
25
11. THE BILLS
11.1 The relevant Borrower shall ensure upon delivery of any Utilisation Request
for a Utilisation by means of Bills that the Facility Agent has a sufficient
stock of blank unsigned Bills to enable it to proceed with such Utilisation.
Such Borrower shall also, prior to delivery by it of its first Utilisation
Request for Bills, provide the Facility Agent with a power of attorney in the
form of the Twelfth Schedule or in such other form as the Facility Agent may
require authorising the Facility Agent to prepare, complete and sign Bills
consistently with any proposed Utilisation (subject as provided herein) and on
such Borrower's behalf to present the same to the Banks for acceptance.
11.2 Each ▇▇▇▇ supplied to the Facility Agent by the relevant Borrower for the
purpose set out in Clause 11.1 shall:
(i) be claused in such manner as to comply with the Bank of England's
requirements for Eligible Bills current at the time;
(ii) be undated; and
(iii) have the maturity date, amount and drawee left blank.
11.3 The Facility Agent shall (i) prepare and complete Bills on behalf of the
relevant Borrower by (a) dating such Bills with the issue and maturity dates,
(b) signing such Bills on behalf of such Borrower, (c) inserting the name of the
relevant Bank as drawee and (d) inserting the face amount of each ▇▇▇▇ in a
manner consistent with allocations under Clause 6 or Clause 8, as the case may
be, and (ii) deliver the same to Banks for acceptance Provided that the face
amount of each ▇▇▇▇ shall not exceed Pounds 1,000,000.
11.4 The relevant Borrower shall give to the Facility Agent and each Bank which
has accepted a ▇▇▇▇ on its request such information relating to the underlying
trade transaction to which such ▇▇▇▇ relates as the Facility Agent or such Bank,
through the Facility Agent, may reasonably request to confirm that such ▇▇▇▇ is
an Eligible ▇▇▇▇.
11.5 The Facility Agent hereby agrees:-
(i) only to prepare, complete and sign the Bills in accordance with
Clause 11.3; and
(ii) to indemnify each Borrower and hold it harmless against all or any
proceedings, actions, claims and demands which may be brought or made
against such Borrower and all losses, costs, charges, damages and
expenses which such Borrower may incur or sustain or for which such
Borrower may become liable by reason of the completion by the
Facility Agent of Bills otherwise than in accordance with Clause
11.3.
26
12. PAYMENT OF BILLS
On the Maturity Date of each ▇▇▇▇ the Borrower which drew such ▇▇▇▇ shall pay to
the Facility Agent, for account of the Bank which accepted such ▇▇▇▇, an amount
in sterling equal to the face amount of such ▇▇▇▇.
27
PART 5
THE ADVANCES
13. MAKING OF ADVANCES
13.1 If any of the Facility Agent, the Dollar Swing-Line Agent or the Sterling
Swing-Line Agent notifies any Bank in accordance with Clause 6 or Clause 8.8
that it is to make any Advance (or if any Bank notifies the Facility Agent in
accordance with Clause 7 that it wishes to make an Advance), and if on the
proposed Utilisation Date relating to such an Advance:
(i) the event mentioned in Clause 21.1(i) has not occurred or an
alternative basis rate in substitution for LIBOR has been
determined pursuant to Clause 21.1(c);
(ii) no Event of Default or Potential Event of Default has occurred
which has not been remedied or waived pursuant to Clause 45;
(iii) the representations set out in Clause 22 are true on and as of
such Utilisation Date;
(iv) the proposed Utilisation would not result in there being
Advances and Bills outstanding which have been made or accepted
pursuant to fifteen (15) or more Utilisations under the Facility;
and
(v) in the case of a Dollar Swing-Line Advance, no other Utilisation
Request has been delivered to the Dollar Swing-Line Agent for a
Utilisation on that Utilisation Date,
then, on such Utilisation Date, such Bank shall, save as otherwise provided
herein, make such Advance through its Facility Office to the Borrower that
requested such Advance.
13.2 If on the proposed Utilisation Date on which any Advances are to be made to
any Borrower by any of the Banks, any Bank does not wish to make an Advance to
such Borrower by reason of such Borrower being incorporated in a jurisdiction
other than within the United Kingdom where such Borrower would be obliged to
make a payment hereunder after making a deduction or withholding for or on
account of tax, and where in the reasonable opinion of such Bank it would be
unlawful for such Borrower to comply fully with the provisions of Clause 17.1
hereof, such Bank may by no later than 5.00 p.m. on the day prior to the
Quotation Date for such Advance notify the Facility Agent by telephone (to be
confirmed no later than 9.30 a.m. on the Quotation Date by telex, telefax or
letter) that it does not wish to do so, in which case it shall not be obliged to
do so, but instead shall be required to make an Advance to PLC in accordance
with Clause 13.3.
13.3 A Bank required to make an Advance to PLC under Clause 13.2 shall make such
Advance in otherwise identical terms (as to amount, currency and duration), to
the Advance to such other Borrower which it would, except for Clause 13.2, be
required to make.
28
14. INTEREST
14.1 On the Repayment Date relating to each Advance (and, in the case of an
Advance which has a Term in excess of six months, on the expiry of each period
of six months during such Term) the Borrower to which such Advance has been made
shall pay accrued interest on that Advance.
14.2 The rate of interest applicable to an Advance (other than a Swing-Line
Advance) made by a Bank hereunder during the Term of such Advance shall be the
rate per annum determined by the Facility Agent to be the sum of:
(i) LIBOR for such Advance;
(ii) the Applicable Margin; and
(iii) if the Advance is to be denominated in sterling, the Associated Costs
Rate applicable thereto.
14.3 The rate of interest applicable to a Dollar Swing-Line Advance shall be the
rate per annum determined by the Dollar Swing-Line Agent in accordance with this
Agreement to be the Dollar Swing-Line Rate from time to time during its Term.
14.4 The rate of interest applicable to a Sterling Swing-Line Advance shall be
the rate per annum determined by the Sterling Swing-Line Agent in accordance
with this Agreement to be the Sterling Swing-Line Rate from time to time during
its Term.
14.5 Each Agent shall promptly notify the relevant Borrower and the relevant
Banks of each determination of LIBOR or a Swing-Line Rate made by it pursuant to
this Clause 14.
14.6 (i) If any Bank which is actually required to maintain reserves with
respect to Eurocurrency Liabilities (as defined in Regulation D of
the Board of Governors of the Federal Reserve System, or any
successor thereto ("Regulation D") in connection with any Advance,
the related Borrower with respect to such Advance shall pay to such
Bank additional interest on the unpaid principal amount of such
Advance of such Bank from the date of such Advance until such
principal amount is paid in full, payable as provided in paragraph
(ii) of this Clause 14.6, at an interest rate per annum equal to the
excess of (a)(1) LIBOR as calculated in respect of such Advance,
divided by (2) 1.00 minus the Reserve Percentage during the Term of
such Advance over (b) the rate specified in (a)(1). For the purposes
of the preceding sentence, "Reserve Percentage" means, for each day
of the Term, that percentage (expressed as a decimal) which is in
effect on such day, for determining the maximum reserve requirement
for such Bank under Regulation D for Eurocurrency Liabilities.
29
(ii) A certificate of any Bank entitled to payment under paragraph (i) of
this Clause 14.6 setting forth such amount as shall be necessary to
compensate such Bank in accordance with such Clause and identifying
with reasonable specificity the basis for calculating such amount
shall be delivered through the Facility Agent to the appropriate
Borrower within six months after the last day of the Term of the
Advance with respect to which such compensation is requested. Such
Borrower shall pay to the Facility Agent for account of such Bank the
amount shown as due on such certificate within ten days after such
Borrower's receipt thereof Provided however, that such Borrower
shall not be obliged to pay any such amount with respect to such Term
if such Borrower shall have received such certificate more than six
months after the last day of such Term.
15. REPAYMENT AND PREPAYMENT
15.1 Each Borrower shall repay each Advance made to it in full on the Repayment
Date relating thereto.
15.2 If:
(a) PLC gives notice of cancellation pursuant to Clause 16.3 it may at
the same time give notice to the Facility Agent of the intention of
the Borrowers to prepay all outstanding Advances made by such Bank
together with accrued interest thereon and/or to comply prematurely
with their obligations under Clause 12 in respect of all outstanding
Bills accepted by such Bank in either case upon such date as may be
specified in such notice; or
(b) PLC so elects it may at any time give not less than 10 business days'
notice to the Facility Agent of the intention of the Borrowers to
prepay all outstanding Advances made by the Banks or any part of
outstanding Advances made by the Banks together with accrued interest
thereon and/or to comply prematurely with their obligations under
Clause 12 in respect of all outstanding Bills accepted by the Banks
or any part of outstanding Bills accepted by the Banks in each case
upon such date as may be specified in such notice Provided that (i)
any prepayment of part shall be an amount such that the Sterling
Amount of such Advances and/or Bills shall be reduced by a minimum
amount of Pounds 10,000,000 and an integral multiple of Pounds
1,000,000 and (ii) any prepayment shall reduce the Outstandings of
the Banks rateably.
Any such notice shall be irrevocable and shall oblige each Borrower to make
the repayments or payments in question on the date specified therein together
with all other sums due from it under any of the Finance Documents in respect of
the Advances or Bills in question. If a Bank receives an amount pursuant to
this Clause 15.2 or Clause 20.1 in relation to a ▇▇▇▇ then, on the Maturity Date
of such ▇▇▇▇, such Bank shall account to the Borrower which made such payment
for an amount equal to interest thereon for the period from and including the
date of such payment to but excluding such maturity date at the rate (as
determined by such Bank) at which it pays interest to its corporate customers
for time deposits of comparable term and amount in the relevant currency.
30
PART 6
CANCELLATION
16. CANCELLATION
16.1 PLC may, by giving to the Facility Agent (copied to the Dollar Swing-Line
Agent and the Sterling Swing-Line Agent) not less than ten (10) days' prior
notice to that effect, cancel the whole or any part (if part, being a minimum
amount of Pounds 10,000,000 and integral multiple of Pounds 1,000,000) of the
Available Facility. Any such cancellation shall reduce the Available Commitment
and Available Swing-Line Commitment of each Bank in the proportion which its
Commitment bears to the Total Commitments.
16.2 Any notice of cancellation given by PLC pursuant to Clause 16.1 shall be
irrevocable and shall specify the date upon which such cancellation is to be
made and the amount of such cancellation.
16.3 If (i) by reason of (a) any change after the date hereof in law
(including any modification or revocation of an applicable tax
treaty) or in its interpretation or administration and/or (b)
compliance with any request from or requirement of any central
bank or other fiscal, monetary or other authority which is of a
general nature and compliance with which is in accordance with the
reasonable practice of banks to which it applies and which request
or requirement is made, imposed, renewed or modified at any time
after the date hereof (including, without limitation, a change,
request or requirement which affects the manner in which a Bank
allocates capital resources to underwriting commitments in
compliance with any such change, request or requirement):-
(1) the amount of any payment to be made to or for the account of
any Bank by any Borrower is increased under Clause 17.1; or
(2) it becomes apparent that any such payment will be required to
be so increased; or
(ii) any representation made by a Bank pursuant to Clause 17.7 is
untrue; or would at any time, if it were to be repeated at such
time, be untrue; or
(iii) any Bank claims indemnification from any Borrower under Clauses
17.8 or 19.1,
then PLC may, within sixty days thereafter and by not less than ten (10) days'
prior written notice to the Facility Agent, cancel such Bank's Available
Commitment whereupon such Bank shall cease to be obliged to accept any further
Bills or to make Advances hereunder and its Available Commitment shall be
reduced to zero.
31
PART 7
CHANGES IN CIRCUMSTANCES
17. TAXES
17.1 All payments to be made by any of the Borrowers to any person hereunder
shall be made free and clear of and without deduction for or on account of tax
unless such Borrower is required to make such a payment subject to the deduction
or withholding of tax, in which case (subject only to Clauses 17.2, 17.6 and
19.3) the sum payable by such Borrower in respect of which such deduction or
withholding is required to be made shall be increased to the extent necessary to
ensure that, after the making of the required deduction or withholding, such
person receives and retains (free from any liability in respect of any such
deduction or withholding) a net sum equal to the sum which it would have
received and so retained had no such deduction or withholding been made or
required to be made. If, on behalf of the relevant Borrower, the Facility Agent
or any Bank pays any amount in respect of any tax which the relevant Borrower
has agreed to pay pursuant to this Clause 17.1, the relevant Borrower shall
reimburse the Facility Agent or such Bank (as the case may be) for such payment
on demand.
17.2 No Borrower resident in the United Kingdom for United Kingdom tax purposes
shall be obliged to make any additional payment pursuant to Clause 17.1 to any
Bank if the obligation to make such an additional payment has arisen (i) by
reason of such Bank (acting through a Facility Office for the purpose of
Utilisations by that Borrower) not being a Qualifying Bank otherwise than by
reason of any change in any law or regulation or in its interpretation or
administration or any change in any extra-statutory or Inland Revenue concession
or (ii) by reason of the failure by such Bank to bring into account payments of
interest made to that Facility Office by such Borrower as trading receipts of a
bona fide banking business carried on by such Bank in the United Kingdom.
17.3 Each Bank that is not a US Person (as such term is defined in Section
7701(a) (30) of the United States Internal Revenue Code of 1986, as amended)
shall submit to PLC, within 60 days of becoming a party to this Agreement (but
in no event later than the earliest date on which payments are to be made to
such Bank under this Agreement by a Borrower organised in or under the laws of
the United States of America), two duly completed and signed copies of either US
Internal Revenue Service Form 1001, entitling it to complete exemption from
withholding (or such reduced rate of withholding as may be available to it) on
all amounts to be received by such Bank hereunder from any Borrower that is
organised in the United States of America, or US Internal Revenue Service Form
4224 entitling it to complete exemption from withholding on all amounts to be
received by such Bank hereunder from any such Borrower. Thereafter and from
time to time, each such Bank shall submit to PLC such additional duly completed
and signed copies of one or the other of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may be notified by PLC to such Bank and required under then
current United States law or regulations to avoid or reduce United
States withholding taxes on payments in respect of all amounts to be received by
such Bank hereunder. Within 60 days after becoming a party to this Agreement
(but in no event later than the earliest date on which payments are to be made
to such Bank under this Agreement by a Borrower organised in or under the laws
of the United States of America), each Bank that is a US Person (as such term is
defined in Section 7701(a)(30) of the United States Internal Revenue Code of
1986, as amended) shall submit to PLC a certificate to the effect that it is
such a
32
US Person. Notwithstanding the foregoing, no Bank shall be required to submit
any such forms or certificates if such Bank is not allowed validly to file any
of such forms or certificates and has taken reasonable steps to obtain such
United States withholding tax exemption (if any) as is available to it in the
circumstances.
17.4 Each Bank shall use reasonable endeavours to enable any Borrower to make
payments hereunder without withholding or deduction for or on account of tax
(such action to include the giving of any direction or certificate as may be
required by the Facility Agent to enable it to effect any payment without such
withholding or deduction) except that nothing herein shall oblige any Bank to
take any action which within the sole opinion of such Bank is prejudicial to its
interests.
17.5 If any Bank determines, as a result of any change in any law, regulation or
treaty or in its official application or interpretation, that it is unable to
submit to PLC any form or certificate that such Bank is obliged to submit
pursuant to Clause 17.3, or that such Bank is required to withdraw or cancel any
such form or certificate previously submitted, such Bank shall promptly notify
PLC of such fact.
17.6 No Borrower that is organised in the United States of America shall be
obliged to make any additional payment pursuant to Clause 17.1 to any Bank (i)
to the extent that such obligation existed on the date hereof, (ii) to the
extent that any Bank has failed to provide the forms or certificates, as the
case may be, described in Clause 17.3 (except where such Bank is not allowed
validly to file any of such forms or certificates, and has taken reasonable
steps to obtain such United States withholding tax exemption (if any) as is
available to it in the circumstances), or (iii) if any amount of interest
payable to it under this Agreement is not beneficially owned by it, in each case
for a reason that is not related to a change in United States federal income tax
law, including any regulations, amendments thereto, or official interpretation
thereof, any modification or revocation of an applicable tax treaty or any
change in the official position regarding the application or interpretation
thereof, occurring after the date hereof. No such Borrower shall be obligated
to make any additional payment pursuant to Clause 17.1 to any Bank that is
organised in the United States of America or any political subdivision or taxing
authority thereof or therein.
17.7 Each Bank represents to each Borrower resident in the United Kingdom for
tax purposes that, as at the date hereof, such Bank is, acting through its
Facility Office for the purpose of Utilisations (other than by way of Dollar
Swing-Line Advances) by that Borrower, a Qualifying Bank and that it presently
intends that all amounts of interest payable to that Facility Office under this
Agreement by that Borrower will be brought into account as a trading receipt of
a bona fide banking business carried on by it in the United Kingdom. Each Bank
undertakes that it will, as soon as reasonably practicable after it becomes
aware of the same, inform PLC if such representation was untrue at the time it
was made or if it ceases to be a Qualifying Bank at any time after the date
hereof.
17.8 Without prejudice to the provisions of Clause 17.1 but subject to the
provisions of Clause 19.3, if any Bank or any Agent on its behalf is required by
law or otherwise to make any payment on account of tax on or in relation to any
sum received or receivable hereunder by such Bank or an Agent on its behalf
(including, without limitation, any sum received or receivable under this Clause
17) or any liability in respect of any such payment is imposed, levied or
assessed against such Bank or the Facility Agent on its behalf, it shall deliver
to PLC through the Facility Agent a certificate to that effect setting out in
reasonable detail the basis and computation of such claim. PLC
33
will, upon demand of the Facility Agent (made by it promptly after delivery by
it to PLC of such certificate) promptly indemnify such Bank or Agent (as the
case may be) against such payment or liability, together with any interest,
penalties and expenses payable or incurred in connection therewith.
18. TAX RECEIPTS AND TAX CREDITS
18.1 If, at any time, any of the Borrowers is required by law to make any
deduction or withholding from any sum payable by it hereunder (or if thereafter
there is any change in the rates at which or the manner in which such deductions
or withholdings are calculated), such Borrower shall promptly notify the
Facility Agent of such requirement.
18.2 If any of the Borrowers makes any payment hereunder in respect of which it
is required to make any deduction or withholding, it shall pay the full amount
required to be deducted or withheld to the relevant taxation or other authority
within the time allowed for such payment under applicable law and promptly (if
such is obtainable) shall deliver to the Facility Agent for each Bank an
original receipt (or a certified copy thereof) evidencing the payment to such
authority of all amounts so required to be deducted or withheld in respect of
that Bank's share of such payment.
18.3 If any Borrower makes a payment under Clause 17.1 for account of any person
and such person, in its sole opinion, determines that it has received or been
granted a credit against or relief or remission for, or repayment of, any tax
paid or payable by it in respect of or calculated with reference to the
deduction or withholding giving rise to such payment, such person shall, to the
extent that it can do so without prejudice to the retention of the amount of
such credit, relief, remission or repayment, pay to such Borrower such amount as
such person shall, in its sole opinion, have determined to be attributable to
such deduction or withholding and which will leave such person (after such
payment) in no better or worse position that it would have been in if such
Borrower had not been required to make such deduction or withholding. Any
payment made by a person under this Clause 18.3 shall be conclusive evidence of
the amount due to such Borrower hereunder and shall be accepted by such Borrower
in full and final settlement of its rights of reimbursement hereunder in respect
of the relevant deduction or withholding. Nothing herein contained shall
interfere with the right of a person to arrange its tax affairs in whatever
manner it thinks fit nor oblige any person to disclose any information relating
to its tax affairs or any computations in respect hereof.
19. INCREASED COSTS
19.1 Subject to Clause 19.3 if, by reason of (i) any change after the date
hereof in law or in its interpretation or administration and/or (ii) compliance
with any request from or requirement of any central bank or other fiscal,
monetary or other authority which is of a general nature and compliance with
which is in accordance with the reasonable practice of banks to which it applies
and which request or requirement is made, imposed, reviewed or modified at any
time after the date hereof (including, without limitation, a change, request or
requirement which affects the manner in which a Bank is required to or does
maintain capital resources to underwriting commitments in compliance with any
such change, request or requirement):
(a) a Bank suffers a cost (including, without limitation, the cost of
complying with any reserve, special deposit, liquidity, cash ratio or
other requirement) as a result of its
34
having entered into and/or performing its obligations under this
Agreement and/or maintaining its Commitment hereunder and/or its
accepting one or more Bills and/or its having outstanding to it one
or more Advances or unpaid sums hereunder;
(b) a Bank suffers a reduction in the rate of return on its overall
capital as a result of a change in the manner in which such Bank is
required to allocate resources to its obligations hereunder;
(c) there is any increase in the cost to a Bank of funding or maintaining
all or any of the advances comprised in a class of advances formed by
or including the Advances made or to be made by such Bank hereunder;
(d) a Bank becomes liable to make any payment on or calculated by
reference to the amount of any acceptances made or to be made by it
hereunder and/or any Advances or unpaid sums owed to it and/or to any
sum received or receivable by it hereunder,
then and in any such event, PLC shall, from time to time within ten (10) days of
receipt by it of a demand by the Facility Agent, pay to the Facility Agent for
the account of that Bank amounts sufficient to indemnify that Bank against, as
the case may be:
(i) such cost (or such proportion of such cost as is in the reasonable
opinion of such Bank attributable to this Agreement);
(ii) such proportion of such reduction as is in the reasonable opinion of
such Bank attributable to this Agreement;
(iii) such increased cost (or such proportion of such increased cost as is
in the reasonable opinion of that Bank attributable to its funding or
maintaining such Advances or unpaid sums hereunder); or
(iv) such liability,
Provided that any such demand by the Facility Agent shall not be made more than
six months after such cost, reduction, increased cost or liability in respect of
which such claim is made is actually suffered by such Bank.
19.2 A Bank intending to make a claim pursuant to Clause 19.1 shall notify the
Facility Agent of the event by reason of which it is entitled to do so setting
out in reasonable detail the computation of such claim whereupon the Facility
Agent shall notify PLC thereof Provided that nothing herein shall require such
Bank to disclose any confidential information relating to the funding of its
obligations hereunder or generally.
35
19.3 Clauses 17.1, 17.8 and 19.1 shall not apply to:-
(i) any cost or amount included in the Associated Costs Rate or payable
pursuant to Clause 14.6; or
(ii) any amount attributable to any Bank complying with any law,
regulation, treaty or official directive or request (whether or not
having the force of law) in existence at the date such Bank first
became a party to this Agreement, where such Bank was not in
compliance with the same at such date and was required to be in
compliance with the same at such date; or
(iii) any cost that is a tax based on, or computed by reference to, (a)
the overall profit or net income (or any part thereof) of any Bank or
the Facility Office through which it is acting, or any tax imposed on
branch profits under section 884 of the United States Internal
Revenue Code of 1986 or (b) the capital of any Bank.
20. ILLEGALITY AND MITIGATION
20.1 If, at any time, it is unlawful or contrary to any request from, or
requirement of, any fiscal, monetary or other authority (which request or
requirement is of a general nature and compliance with which is the normal
practice of banks to which it applies) for a Bank to make, fund or allow to
remain outstanding all or any of the Advances made or to be made by it hereunder
or to accept or allow to remain outstanding all or any of the Bills accepted or
to be accepted by it hereunder, then that Bank shall, promptly after becoming
aware of the same, deliver to PLC through the Facility Agent a certificate to
that effect and, unless such illegality is avoided in accordance with Clause
20.2:
(i) such Bank shall not thereafter be obliged to make any Advances or to
accept any Bills and the amount of its Available Commitment shall be
immediately reduced to zero; and
(ii) if the Facility Agent on behalf of such Bank so requires, PLC shall
procure that the relevant Borrower or Borrowers shall on such date as
the Facility Agent shall have specified (being the latest date on
which the relevant law requires that the same be repaid):
(a) repay each outstanding Advance together with accrued interest
thereon and all other amounts owing to such Bank hereunder;
and/or
(b) comply prematurely with its obligations under Clause 12 in
respect of any Bills drawn by it and accepted by such Bank.
20.2 If, in respect of any Bank, circumstances arise which would or would upon
the giving of notice result in:-
(i) the reduction of its Commitment to zero pursuant to Clause 20.1;
(ii) an increase in the amount of any payment to be made to it or for its
account pursuant to Clause 17.1; or
(iii) a claim for indemnification pursuant to Clauses 17.8 or 19.1,
then, without in any way limiting, reducing or otherwise qualifying the
obligations of any of the Borrowers under any of the Clauses referred to in (i),
(ii) or (iii) above, such Bank shall promptly upon becoming aware of the same
notify the Facility Agent thereof and, in consultation with the Facility Agent
and PLC take such reasonable steps as may be reasonably open to it to mitigate
the effects of such circumstances including the transfer of its Facility Office
or the transfer of its rights and obligations hereunder to another financial
institution acceptable to PLC and willing to participate in the Facility
Provided that such Bank shall be under no obligation to take any such action if,
in the reasonable opinion of such Bank, to do so would have an adverse effect
upon its (or any part of its) business, operations or financial condition.
21. MARKET DISRUPTION
21.1 If, in relation to any Utilisation:
(i) by way of Advances (other than Dollar Swing-Line Advances) the
Facility Agent determines that at or about 11.00 a.m. on the
Quotation Date in respect of such Advances, LIBOR cannot be
determined (by reason of the failure of all the Reference Banks to
supply the quotations necessary to make such determination); or
(ii) by way of Advances denominated in Hong Kong Dollars, the Facility
Agent is notified by a group of Banks whose Commitments together
amount to 50% or more of the Total Commitments at or about 11.00 a.m.
on the Quotation Date in respect of such Advances that the Screen
Rate is materially different to the cost to such Banks of funding
such Advances; or
(iii) in relation to any Utilisation by way of Bills, the Facility Agent is
unable to make any determination of an applicable Eligible ▇▇▇▇
Discount Rate,
then, notwithstanding the provisions of Clause 13:
(a) the Facility Agent shall promptly notify the other parties hereto of
such event;
(b) such Advances or such Bills (as the case may be) shall not be made or
accepted (as the case may be) unless a substitute basis has been
agreed pursuant to Clause 21.1(c); and
(c) the Facility Agent shall, if so required by PLC, enter into
negotiations with PLC in good faith with a view to agreeing an
alternative means for determining a basis rate in substitution for
LIBOR (in the case of Clause 21.1(i)), the Screen Rate (in the case
of Clause 21.1(ii)) or, as the case may be, the Eligible ▇▇▇▇
Discount Rate (in the case of Clause 21.1(iii)) for in the future and
if such a substitute basis is
37
agreed by PLC the Facility Agent and an Instructing Group, it shall
take effect in accordance with its terms.
21.2 If, in relation to any Utilisation by way of Dollar Swing-Line Advances,
the Dollar Swing-Line Agent determines that the Federal Funds Rate cannot be
determined on the first day of the Term of such Advance, the Dollar Swing-Line
Agent shall notify the other parties hereto of that event and each Swing-Line
Bank's proportion of such Dollar Swing-Line Advance shall bear interest during
its Term at the higher of (i) the Prime Rate and (ii) the rate per annum
determined by the Dollar Swing-Line Agent to be the sum of the cost to such
Swing-Line Bank of funding such portion of such Dollar Swing-Line Advance from
whatever sources it may reasonably select and 0.25 per cent. per annum.
38
PART 8
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
22. REPRESENTATIONS
22.1 Each of the Borrowers represents that, subject to the same reservations
(but not the assumptions) stated in the legal opinions of English and U.S.
counsel referred to in the Third Schedule when and as actually delivered:
(i) it is duly incorporated and validly existing under the laws of
the country in which it is incorporated and has power, and is
able lawfully, to execute and deliver each of the Finance
Documents to which it is or is to be party and to exercise its
rights and perform its obligations thereunder and all corporate
or other action required to authorise the execution and delivery
of each such Finance Document by it and the performance by it of
its obligations thereunder has been duly taken;
(ii) each of the Finance Documents to which it is or is to be party
constitutes (or will, when completed, executed and delivered in
the manner contemplated hereby, constitute) its legal, valid,
binding and enforceable obligation;
(iii) the execution and delivery by it of the Finance Documents and
the performance by it of its obligations thereunder will not:
(a) contravene any provisions of any law, statute, decree, rule
or regulation to which it or any of its assets or revenues
is subject, or of any order, judgment, injunction, decree,
resolution, determination or award of any court or other
judicial, administrative or other governmental authority or
organisation having applicability to it or any of its assets
or revenues;
(b) violate any provision of its constitutive documents;
(c) contravene the provisions of any agreement, indenture,
mortgage, deed of trust, bond or other obligation to which
it is a party or by which it or any of its assets or
revenues may be bound or affected; or
(d) oblige it to create any encumbrance other than a Permitted
Encumbrance over all or any of its present or future
revenues or assets,
in circumstances where (in the case of (a) or (c)) such
contravention would reasonably be expected to have a material
adverse effect on such Borrower's ability to meet its obligations
under the Finance Documents to which it is a party;
39
(iv) it has obtained (and there are in full force and effect) all
governmental or other authorisations, approvals or consents
required by it for the execution and delivery by it of any of the
Finance Documents, for the exercise by it of its rights and the
observance and performance by it of all of its obligations and
duties thereunder and for all other matters and things therein
contemplated;
(v) no utilisation of the Facility by it will cause any limit or
restriction on its borrowing or other powers (whether imposed by
law, decree, rule, regulation, agreement, its corporate
constitutional documents or otherwise howsoever) or on the right
or ability of its directors to exercise any such powers to be
exceeded or breached;
(vi) no Event of Default or Potential Event of Default has occurred
and is continuing;
(vii) the Original Financial Statements and (if different) the most
recently published annual consolidated financial statements of
PLC give a true and fair view of the state of affairs of PLC and
the Group as at the dates as of which the same were prepared and,
since the date as at which the Original Financial Statements were
prepared, there has been no change in the financial condition of
the Group taken as a whole as would materially and adversely
affect the ability of PLC to meet its payment obligations under
the Finance Documents;
(viii) no litigation or dispute is current, pending or to its
knowledge threatened against it or any of its subsidiaries, or
any of their respective assets, which would reasonably be
expected to have a material adverse effect upon the ability of
PLC to perform its payment obligations under the Finance
Documents; and
(ix) none of the transactions contemplated in this Agreement
(including, without limitation, the borrowings hereunder and the
use of the proceeds thereof) will violate or result in a
violation of Section 7 of the Securities Exchange Act of 1934 (or
any regulations issued pursuant thereto, including, without
limitation, Regulations G, U and X of the Board of Governors of
the Federal Reserve System).
22.2 Each of the representations contained in Clause 22.1 shall be deemed to be
repeated by PLC and the Borrower making the relevant Utilisation on and as of
each Utilisation Date by reference to the facts and circumstances then existing.
23. FINANCIAL INFORMATION
23.1 PLC shall:
40
(i) as soon as the same become available, but in any event within 180
days after the end of each of its financial years, deliver to the
Facility Agent in sufficient copies for the Facility Agent, the
Dollar Swing-Line Agent and the Sterling Swing-Line Agent and the
Banks the audited consolidated financial statements of the Group for
such financial year;
(ii) as soon as the same become available, but in any event within 180
days after the end of each financial year of each Borrower (other
than PLC) in respect of which the Facility Agent shall have so
requested, deliver to the Facility Agent sufficient copies for the
Facility Agent and the Banks of the audited financial statements of
such Borrower;
(iii) as soon as practicable but in any event within 30 days of the same
becoming available deliver to the Facility Agent in sufficient copies
for the Facility Agent and the Banks the interim financial statements
(whether audited or not and whether consolidated or not) provided by
PLC to its shareholders;
(iv) supply such other information concerning the business, operations and
condition (financial or otherwise) of it and its subsidiaries as the
Facility Agent or any Bank, through the Facility Agent, may from time
to time reasonably request, but so that all information provided to
the Facility Agent or any Bank pursuant to this sub-paragraph (iv)
shall be confidential to the Facility Agent and the Banks, their
servants and their legal advisers and other consultants and auditors
except:
(a) to the extent to which disclosure is required by law or any other
official directive or request (whether or not having the force of
law);
(b) where such information is generally available; or
(c) where and to the extent that disclosure is necessary in
connection with the enforcement, or preservation, of any rights
hereunder; and
(v) promptly upon receipt of a written request from the Facility Agent
confirm to the Facility Agent that during the Tenor of any Bills
accepted under the Facility the value of such items as may from time
to time be specified in the ▇▇▇▇▇▇▇▇ of Bills pursuant to Clause 11.2
(excluding such goods which were the subject of any other financing
arrangement) exceeded the aggregate face amount of such Bills drawn
against such items.
23.2 PLC shall ensure that each set of financial statements delivered by it
pursuant to Clauses 23.1(i), 23.1(ii) and 23.1(iii) is prepared (subject to
Clause 23.3) on the same basis as was used in the preparation of its Original
Financial Statements and in accordance with accounting principles generally
accepted in the United Kingdom in the case of PLC and the Group or, in relation
to any other Borrower, accounting principles generally accepted in the
jurisdiction of incorporation of that Borrower.
41
23.3 If, at any time, there is a change in accounting principles generally
accepted in the United Kingdom or PLC changes, or PLC's Board of Directors
resolves to change, the basis, or one or more of the accounting policies, upon
which its audited annual consolidated financial statements are prepared (in
circumstances where any such change would have a material effect on such
financial statements) or its Accounting Reference Date then:
(i) PLC shall promptly notify the Facility Agent of such change or
proposed change;
(ii) PLC and the Facility Agent shall enter into negotiations in good
faith with a view to agreeing:
(a) whether or not such change or proposed change might result in any
material alteration in the compliance by PLC with the financial
ratios set out herein or the determination of which of PLC's
subsidiaries is a Principal Subsidiary;
(b) if so, any amendments to this Agreement which may be necessary in
order to ensure that such change or proposed change does not
result in any material alteration in such matters,
and, if any such amendments are agreed, they shall take effect and be
binding upon the parties hereto in accordance with their terms; and
(iii) if within a period of 60 days after such notification PLC and the
Facility Agent have failed to reach agreement then:
(a) PLC shall procure that within a further period of 60 days its
auditors certify to the Facility Agent what changes to the
provisions referred to in sub-paragraph (ii) (a) above are, in
the opinion of the auditors, necessary to ensure that any test
imposed by those provisions (as amended) by reference to the
financial statements prepared on the new basis shall be
substantially similar (and, in so far as practicable, identical)
in effect to the relevant test imposed by the existing provisions
by reference to financial statements prepared on the old basis;
any change certified by the auditors pursuant to this sub-
paragraph (iii) (a) shall, if circumstances permit, consist of an
adjustment to the percentage, figure or ratio contained in the
relevant test proportionate to the change in the results or
financial position disclosed on the new basis compared to those
prepared on the old basis;
(b) the Banks may, at their own cost, appoint a firm of independent
accountants to produce a certificate to the same effect, such
certificate to be produced no later than three months after the
certificate of PLC's auditors;
(c) such amendments shall thereafter be made to this Agreement as may
be necessary to reflect:
(1) the amendments certified by PLC's auditors; or
42
(2) if a further certificate has been produced pursuant to (b)
above and there is a discrepancy between the two
certificates, the mid-point between the two certificates;
and
(d) pending the finalisation of such amendments PLC shall procure
that each set of financial statements prepared on the new basis
is accompanied by a certificate of its auditors certifying the
information necessary to enable the Facility Agent to determine
whether, if such financial statements had been prepared on the
old basis, the provisions of this Agreement are being complied
with and the provisions of this Agreement shall, in such event,
be applied by reference to the financial statements prepared on
the new basis,
Provided that the Facility Agent shall not be entitled to agree any of the
matters referred to in (ii) above without the prior consent of all the Banks.
24. FINANCIAL CONDITION
PLC shall ensure that, at all times:
(i) either Consolidated Net Tangible Worth is equal to or greater than
Pounds 250,000,000 or (in the event that Consolidated Net Tangible
Worth is less than Pounds 250,000,000) that the ratio of
Consolidated Operating Profit to Consolidated Interest is not less
than 3:1; and
(ii) the ratio of Consolidated Operating Profit to Consolidated Interest
is equal to or greater than 2:1.
25. COVENANTS
25.1 PLC shall:
(i) comply, and ensure that its subsidiaries comply, with the
requirements of all applicable laws, rules, regulations, orders and
decrees of any administrative or governmental authority or
organisation, non-compliance with which would materially and
adversely affect the ability of any Borrower to perform its
obligations under any of the Finance Documents;
(ii) give to the Facility Agent at least 28 days' prior written notice in
reasonable detail of any corporate action or other steps which are
intended to be taken by it or its subsidiaries, or of any legal
proceedings intended to be taken by it or its subsidiaries, in either
case for (a) the liquidation or winding-up or dissolution of any of
its Principal Subsidiaries or (b) for the appointment of a receiver,
administrator, administrative receiver, trustee or similar officer to
any Principal Subsidiary or any of its revenues or assets (other
than, in each case, for the purposes of an amalgamation or
reconstruction);
43
(iii) promptly inform the Facility Agent of the occurrence of any Event of
Default or Potential Event of Default and, upon receipt of a written
request to that effect from the Facility Agent, confirm to the
Facility Agent that, save as previously notified to the Facility
Agent or as notified in such confirmation, no Event of Default or
Potential Event of Default has occurred; and
(iv) ensure that (save to the extent provided by general law in relation
to the rights of creditors generally) at all times the claims of the
Banks against each Borrower under each of the Finance Documents rank
at least pari passu with the claims of all its other unsecured and
unsubordinated creditors.
25.2 PLC shall ensure that no member of the Group shall:
(i) create or allow to subsist over all or any of its present or future
revenues or assets any encumbrance (other than a Permitted
Encumbrance) to secure borrowings which are shown as such in the
consolidated balance sheet of PLC included in the latest audited
consolidated financial statements of PLC delivered pursuant to Clause
23.1(i) (or, if none, the Original Financial Statements) or which
would, if such borrowings remained outstanding at the relevant time,
fall to be included in the next such balance sheet Provided, however,
that this Clause 25.2(i) shall not apply to any encumbrance with
respect to Margin Stock (as such term is defined in Regulation U of
the United States Board of Governors of the Federal Reserve System)
to the extent such Margin Stock represents more than 25% of the value
(determined with reference to the latest audited consolidated
financial statements of PLC delivered pursuant to Clause 23.1(i)) or,
if none, the Original Financial Statements) of the assets subject to
this Clause;
(ii) (either in a single transaction or in a series of transactions,
whether related or not) sell, convey, transfer or otherwise dispose
of the whole or any part of its undertaking or assets, (including any
of its subsidiaries) if to do so would cause the sum of the aggregate
consideration received in respect of all assets of the Group so
disposed of in the then current financial year of PLC and the
aggregate net debt (being borrowings, short, medium and long term,
less cash and liquid funds) for which the Group ceases at the time of
such disposals to be liable as a result of such disposals during such
financial year to exceed the higher of (Pounds)500,000,000 or 15% of
Consolidated Market Value in respect of such financial year. For the
purposes of determining the amount of aggregate net debt attributable
to such disposals in any financial year, the Facility Agent may
request and PLC, shall if so requested, provide the Facility Agent
with the contract of sale entered into by any member of the Group in
connection with such disposal or the management accounts of PLC
prepared at or around the time of such disposal or such other
information or records as may be agreed between the Facility Agent
and PLC.
This Clause 25.2(ii) shall not apply with respect to sales,
conveyances, transfers or other dispositions of Margin Stock (as such
term is defined in Regulation U of the United States Board of
Governors of the Federal Reserve System) to the extent such Margin
Stock represents more than 25% of the value (determined with
reference to
44
the then most recent audited consolidated financial statements
delivered pursuant to Clause 23.1 or, if none, the Original Financial
Statements) of the assets subject to this Clause 25.2(ii) and
Provided Further that:
(a) neither disposals by members of the Group to other members of the
Group nor disposals in the ordinary course of business at market
value shall be taken into account in determining if the terms of this
Clause 25.2(ii) are breached; and
(b) for the purposes of this Clause 25.2(ii), none of the following shall
be deemed to be a sale, conveyance, transfer or disposal:-
(i) the exchange of assets for assets of a similar nature and of
approximately equal value;
(ii) the payment of cash howsoever acquired (other than the
proceeds of sale falling within Clauses 25.2(ii)(b)(iv) or
(v)) by any member of the Group in the ordinary course of
business of such member or as consideration or part
consideration for the acquisition (whether by way of
subscription, purchase, loan or otherwise) of any undertaking
or business or part of any undertaking or business or any
assets;
(iii) the temporary application of funds not immediately required
for the purposes of the business of any member of the Group in
the purchase of investments and the subsequent sale thereof;
(iv) the sale of assets (other than companies or businesses) for
cash and the application within a period of one year (or such
longer period as the Banks may agree), of a sum approximately
equal to the net proceeds less the expenses relating thereto
(after taking into account any taxation arising as a
consequence of such sale except in so far as this would result
in such sum being less than the book value as at 31st
December, 1994, or when the asset was first acquired if later,
of the assets being sold) in the acquisition of assets of a
similar nature or immovable property whether or not to be
employed in the same type of business Provided that in the
case of a sale of immovable property the end proceeds are
reinvested in the acquisition of immovable property of a
similar nature;
(v) the sale of a company or business for cash and the application
within a period of one year (or such longer period as the
Banks may agree) of a sum approximately equal to the net
proceeds of sale less the expenses relating thereto (after
taking into account any taxation as described in Clause
25.2(ii)(b)(iv)) in the acquisition of a company or business
of a similar nature thereto;
(vi) the sale of shares or securities in bodies corporate in which
PLC and/or any of its subsidiaries is interested but which are
not subsidiaries of PLC;
45
(vii) the application of the proceeds of an issue of share or loan
capital for the purpose for which such issue is intended;
(viii) the distribution in a winding up of a subsidiary of any of
its assets to minority shareholders in accordance with their
rights;
(ix) the repayment of any loan; and
(x) the payment of dividends in the ordinary course of business.
25.3 For the purposes of determining the shares of Margin Stock, if any, to
which Clause 25.2 is not applicable, shares of Margin Stock shall be allocated
such that the shares most recently acquired by PLC or any of its subsidiaries
are the shares, if any, to which Clause 25.2 is not applicable.
26. EVENTS OF DEFAULT
26.1 Each of the events set out below is an Event of Default (whether or not
caused by any reason whatsoever outside the control of PLC, any other Borrower
or any other person):
(i) any Borrower does not pay for value within four (4) business days of
the relevant due date any amount of interest or principal payable by
it under any of the Finance Documents at the place and in the
currency expressed to be payable; or
(ii) any Borrower fails to comply with any other provision of any of the
Finance Documents and does not remedy such failure (if capable of
remedy within twenty-one (21) days in the opinion of the Facility
Agent) within twenty-one (21) days of notice to remedy such failure
from the Facility Agent; or
(iii) any representation, warranty or statement made, deemed to be made, or
repeated under any of the Finance Documents or in any accounts,
certificate, notice, instrument, written statement or opinion
delivered by any Borrower under any of the Finance Documents or in
connection therewith is incorrect in any material adverse respect
when made, deemed to be made or repeated; or
(iv) either (i) any financial indebtedness in excess of (Pounds)15,000,000
(whether singularly or in aggregate) of members of the Group becomes
prematurely due and payable as a result of a default thereunder (and
such prepayment or default is not waived by the creditor in respect
thereof or a trustee for such creditor) and is not paid by such
company or any other person; or (ii) any such financial indebtedness
or any sum payable in respect thereof is not paid when due or within
any applicable period of grace provided for by agreement prior to the
due date for such payment; or
(v) PLC, any of its Principal Subsidiaries or any other Borrower:
(a) is unable, deemed by applicable statute to be unable or
admits its inability to pay its debts as they mature; or
46
(b) makes a general assignment for the benefit of creditors; or
(c) becomes insolvent; or
(d) files a petition for liquidation or a petition or an answer
seeking reorganisation or an arrangement with creditors
Provided that this sub-paragraph (d) shall not apply to (1)
any reconstruction or amalgamation on terms previously
approved by an Instructing Group (such approval not to be
unreasonably withheld) or (2) any liquidation of a solvent
subsidiary of PLC where the assets are distributed to PLC,
any of its Principal Subsidiaries or any other Borrower to
the extent of such company's interest therein immediately
prior to such liquidation; or
(vi) PLC or any of its Principal Subsidiaries or any Borrower applies for
or consents to the appointment of a receiver, official manager,
administrator, trustee, liquidator or similar officer of itself or
of all or a substantial part of its undertaking, assets or revenues
(including uncalled capital), or any such receiver, official
manager, administrator, trustee, liquidator or similar officer is
appointed, or any order is made or resolution passed for the
liquidation, winding-up or dissolution of PLC, any of its Principal
Subsidiaries or any Borrower Provided that this paragraph (vi) shall
not apply to (1) any reconstruction or amalgamation on terms
previously approved by any Instructing Group (such approval not to
be unreasonably withheld), or (2) any liquidation of a solvent
subsidiary of PLC where the assets are distributed to PLC, any of
its Principal Subsidiaries or any Borrower to the extent of such
company's interest therein immediately prior to such liquidation; or
(vii) any distress, execution, attachment, sequestration or other process
directly attaches or applies to any asset of PLC, any of its
Principal Subsidiaries or any Borrower and remains undischarged and
not stayed for a period of twenty-one (21) days; or
(viii) anything analogous to or having a substantially similar effect to
any of the events specified in paragraphs (v) to (vii) inclusive
shall occur under the laws of any applicable jurisdiction; or
(ix) except with the prior written consent of an Instructing Group, PLC
or any of its Principal Subsidiaries ceases to carry on all or
substantially all of its business otherwise than (a) as a result of
a transfer of all or any part of its business to PLC or to any other
member of the Group which, at the time of such transfer is, or upon
such transfer becomes, a Principal Subsidiary or (b) in accordance
with the provisions of Clause 25.2(ii); or
(x) any authorisation, approval, consent, licence, exemption, filing,
registration or notarisation or other requirement necessary to
enable any Borrower to comply with any of its obligations under any
of the Finance Documents is modified in any manner which could
adversely affect the ability of any Borrower or PLC to perform its
47
obligations hereunder, revoked or withheld or does not remain in
full force and effect; or
(xi) at any time it is unlawful for any Borrower to perform any of its
obligations under any of the Finance Documents; or
(xii) the authority of PLC or any Principal Subsidiary in the conduct of
its business is wholly or substantially curtailed by any seizure or
intervention by or on behalf of any authority,
Provided that, except in the case of:
(1) paragraph (i); or
(2) (insofar as such paragraphs apply to PLC) paragraphs (v), (vi),
(viii) (insofar as it incorporates paragraphs (v) and (vi)) and
(ix),
an Instructing Group has determined that such event may have a material
adverse effect on the ability of PLC to comply with all or any of its
obligations hereunder.
26.2 If an Event of Default occurs, then, and in any such case and at any time
thereafter, the Facility Agent may (and, if so instructed by an Instructing
Group, shall) by written notice to the Borrowers:
(i) declare the Advances to be immediately due and payable (whereupon the
same shall become so payable together with accrued interest thereon
and any other sums then owed by the relevant Borrower or Borrowers
hereunder) or declare the Advances to be due and payable on demand of
the Facility Agent; and/or
(ii) declare that an amount equal to the aggregate face amount of all
outstanding Bills shall become immediately due and payable by the
relevant Borrower or Borrowers (whereupon such Borrower or Borrowers
shall be obliged to pay such amount to the Facility Agent for the
account of the Banks which accepted such Bills forthwith instead of
on the dates provided for in Clause 12) or declare that such an
amount be due and payable on demand of the Facility Agent; and/or
(iii) declare that the Facility shall be cancelled, whereupon the same
shall be cancelled and the Commitment of each Bank shall be reduced
to zero.
26.3 If, pursuant to Clause 26.2, the Facility Agent declares the Advances
and/or the aggregate face amount of the Bills to be due and payable on demand of
the Facility Agent, then, and at any time thereafter, the Facility Agent may
(and, if so instructed by an Instructing Group, shall) by written notice to the
Borrowers:
(i) call for repayment of the Advances on such date as it may specify in
such notice (whereupon the same shall become due and payable on such
date together with accrued interest thereon and any other sums then
owed by the relevant Borrower or
48
Borrowers hereunder) or withdraw its declaration with effect from
such date as it may specify in such notice; and/or
(ii) call for payment of an amount equal to the aggregate face amount of
all outstanding Bills on such date as it may specify in such notice
(whereupon the same shall become due and payable on such date).
26.4 If, pursuant to Clause 26.2, the Facility Agent declares the Advances to be
due and payable on demand of the Agent, the Term in respect of any such Advance
shall, if the Facility Agent subsequently demands payment before the scheduled
Repayment Date in respect of such Advance, be deemed (except for the purposes of
Clause 29.4) to be of such length that it ends on the date that such demand is
made.
26.5 If an Event of Default occurs and the Facility Agent has notified the Banks
of the occurrence of such Event of Default and within a period of three business
days thereafter the relevant Instructing Group shall not have instructed the
Facility Agent to take the actions referred to in paragraphs (i) and (ii) of
Clause 26.2, the Facility Agent shall thereupon notify the Banks to that effect
and, at any time thereafter and so long as the Event of Default in question is
continuing, the Facility Agent shall (without prejudice to Clauses 26.2 or 26.3)
take the actions referred to in those paragraphs if so instructed by a Bank or
group of Banks to whom an amount in excess of 50% of the Outstandings is then
due or to become due hereunder.
26.6 If any Bank receives an amount pursuant to Clause 26.3(ii) in relation to a
▇▇▇▇ accepted by it, then on the Maturity Date of such ▇▇▇▇ such Bank shall pay
to the Borrower which made such payment an amount equal to interest thereon for
the period from and including the date of such payment to but excluding such
Maturity Date at the rate (as determined by such Bank) at which it pays interest
to its corporate customers for time deposits of comparable term and amount in
the relevant currency.
49
PART 9
GUARANTEE
27. GUARANTEE
PLC hereby irrevocably and unconditionally:
(i) guarantees to the Agents and the Banks the due and punctual
observance and performance of all the terms, conditions and covenants
on the part of each Borrower (other than PLC) contained in any of the
Finance Documents and agrees to pay on demand to any Agent any and
every sum or sums of money which any such Borrower shall at any time
be liable to pay to the Agents, the Arrangers and the Banks or any of
them under or pursuant to any of the Finance Documents and which are
not duly and punctually paid in accordance with the terms thereof;
and
(ii) agrees as a primary obligation to indemnify the Agents and the Banks
from time to time on demand by any Agent from and against any loss
incurred by the Agents, the Arrangers and the Banks or any of them as
a result of any of the obligations of any Borrower under or pursuant
to any of the Finance Documents being or becoming void, voidable,
unenforceable or ineffective as against such Borrower for any reason
whatsoever, whether or not known to the Agents, the Arrangers and the
Banks or any of them or any other person, the amount of such loss
being the amount which the person or persons suffering it would
otherwise have been entitled to recover from such Borrower.
28. PRESERVATION OF RIGHTS
28.1 The obligations of PLC herein contained shall be in addition to and
independent of every other security which the Agents, the Arrangers and the
Banks or any of them may at any time hold in respect of any obligations of any
Borrower under any of the Finance Documents.
28.2 The obligations of PLC herein contained shall constitute and be continuing
obligations notwithstanding any settlement of account or other matter or thing
whatsoever, and in particular but without limitation, shall not be considered
satisfied by any intermediate payment or satisfaction of all or any of the
obligations of any Borrower under any of the Finance Documents and shall
continue in full force and effect until final payment in full of all amounts
owing by any Borrower thereunder and total satisfaction of all the Borrowers'
actual and contingent obligations thereunder.
28.3 Neither the obligations of PLC herein contained nor the rights, powers and
remedies conferred in respect of PLC upon the Agents, the Arrangers and the
Banks or any of them by any of the Finance Documents or by law shall be
discharged, impaired or otherwise affected by:
(i) the winding-up, dissolution, administration or re-organisation of any
Borrower or any other person or any change in its status, function,
control or ownership;
50
(ii) any of the obligations of any Borrower or any other person under any
of the Finance Documents or under any other security taken in respect
of any of its obligations thereunder being or becoming illegal,
invalid, unenforceable or ineffective in any respect;
(iii) time or other indulgence being granted or agreed to be granted to any
Borrower in respect of its obligations under any of the Finance
Documents or under any such other security;
(iv) any amendment to, or any variation, waiver or release of, any
obligation of any Borrower under any of the Finance Documents or
under any such other security whether pursuant to Clause 45 or
otherwise;
(v) any failure to take, or fully to take, any security contemplated
hereby or otherwise agreed to be taken in respect of any Borrower's
obligations under any of the Finance Documents;
(vi) any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security taken
in respect of any Borrower's obligations under any of the Finance
Documents; or
(vii) any other act, event or omission (including, without limitation, any
amendment, waiver, supplement or modification to this Agreement made
pursuant to Clause 45) which, but for this Clause 28.3, might operate
to discharge, impair or otherwise affect any of the obligations of
PLC herein contained or any of the rights, powers or remedies
conferred upon the Agents, the Arrangers and the Banks or any of them
by this Agreement or by law.
28.4 Any settlement or discharge between PLC and the Agents, the Arrangers and
the Banks or any of them shall be conditional upon no security or payment to the
Agents, the Arrangers and the Banks or any of them by any Borrower or any other
person on behalf of such Borrower being avoided or reduced by virtue of any
provisions or enactments relating to bankruptcy, insolvency, liquidation or
similar laws of general application for the time being in force and, if any such
security or payment is so avoided or reduced, the Agents, the Arrangers and the
Banks shall each be entitled to recover the value or amount of such security or
payment from PLC subsequently as if such settlement or discharge had not
occurred.
28.5 No Agent, Arranger or Bank shall be obliged before exercising any of the
rights, powers or remedies conferred upon it in respect of PLC by this Agreement
or by law:
(i) to make any demand of any Borrower;
(ii) to take any action or obtain judgment in any court against any
Borrower;
(iii) to make or file any claim or proof in a winding-up or dissolution of
any Borrower; or
51
(iv) to enforce or seek to enforce any other security taken in respect of
any of the obligations of any Borrower under any of the Finance
Documents.
28.6 PLC agrees that, so long as any amounts are or may be owed by any Borrower
under any of the Finance Documents or any Borrower is under any actual or
contingent obligations thereunder, it shall not exercise any rights which it may
at any time have by reason of performance by it of its obligations hereunder:
(i) to be indemnified by any Borrower; and/or
(ii) to claim any contribution from any other guarantor of any such
Borrower's obligations under any of the Finance Documents; and/or
(iii) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Agents, the Arrangers
and the Banks under any of the Finance Documents or of any other
security taken pursuant to, or in connection with, any of the Finance
Documents by all or any of the Agents, the Arrangers and the Banks.
52
PART 10
DEFAULT INTEREST AND INDEMNITY
29. DEFAULT INTEREST AND INDEMNITY
29.1 If any sum due and payable by any of the Borrowers under any of the Finance
Documents is not paid on the due date therefor in accordance with the provisions
of Clause 31 or if any sum due and payable by any of the Borrowers under any
judgment of any court in connection herewith is not paid on the date of such
judgment, the period beginning on such due date or, as the case may be, the date
of such judgment and ending on the date upon which the obligation of such
Borrower to pay such sum (the balance thereof for the time being unpaid being
herein referred to as an "UNPAID SUM") is discharged shall be divided into
successive periods, each of which (other than the first) shall start on the last
day of the preceding such period and the duration of each of which shall (except
as otherwise provided in this Clause 29) be selected by the Facility Agent but
which shall not exceed three months.
29.2 During each such period relating thereto as is mentioned in Clause 29.1 an
unpaid sum shall bear interest at the rate per annum which is the sum from time
to time of one per cent., the Applicable Margin at such time (and, in the case
of any such sum denominated in sterling, the Associated Costs Rate in respect
thereof at such time) and LIBOR on the first day of the Term thereof Provided
that:
(i) if, for any such period, LIBOR cannot be determined, the rate of
interest applicable to such unpaid sum shall be the sum from time to
time of one per cent., the Applicable Margin at such time (and, in
the case of any such sum denominated in sterling, the Associated
Costs Rate in respect thereof at such time) and the rate per annum
determined by the Facility Agent to be the arithmetic mean (rounded
upwards, if not already such a multiple, to the nearest 0.00001 per
cent.) of the rates notified by each Reference Bank to the Facility
Agent before the last day of such period to be those which express as
a percentage rate per annum the cost to it of funding from whatever
sources it may select its portion of such unpaid sum for such period;
and
(ii) if such unpaid sum is all or part of an Advance which became due and
payable on a day other than the last day of the Term thereof, the
first such period applicable thereto shall be of a duration equal to
the unexpired portion of that Term and the rate of interest
applicable thereto from time to time during such period shall be that
which exceeds by one per cent. the rate which would have been
applicable to it had it not so fallen due, and
(iii) if such unpaid sum is all or part of a Dollar Swing-Line Advance or
any interest which shall have accrued hereunder in relation thereto,
then each Swing-Line Bank's portion of such unpaid sum shall bear
interest at the rate per annum determined by the Facility Agent to be
the sum of one per cent. and the Dollar Swing-Line Rate (or, if the
Federal Funds Rate cannot be determined, the higher of the cost to
such Swing-Line Bank of funding its portion of such unpaid sum from
whatever sources it may reasonably select and the Prime Rate) from
time to time.
53
29.3 Any interest which shall have accrued under Clause 29.2 in respect of an
unpaid sum shall be due and payable and shall be paid by the Borrower owing such
unpaid sum at the end of the period by reference to which it is calculated or on
such other date or dates as the Facility Agent may specify by written notice to
such Borrower.
29.4 If any Bank or an Agent on its behalf receives or recovers all or any part
of an Advance made by such Bank otherwise than on the last day of the Term
thereof, the Borrower to which such Advance was made shall pay to the Facility
Agent on demand for account of such Bank an amount equal to the amount (if any)
by which (i) the additional interest which would have been payable on the amount
so received or recovered had it been received or recovered on the last day of
the Term thereof exceeds (ii) the amount of interest which in the reasonable
opinion of the Facility Agent would have been payable to the Facility Agent on
the last day of the Term thereof in respect of a deposit in the currency of the
amount so received or recovered equal to the amount so received or recovered
placed by it with a prime bank in London for a period starting on the business
day (or, in the case of an Optional Currency, the second business day) following
the date of such receipt or recovery and ending on the last day of the Term
thereof.
29.5 PLC undertakes to indemnify:
(i) each of the Agents, the Arrangers and the Banks against any cost,
loss or expense (including, without limitation, legal fees) together
with any VAT thereon, which any of them may properly sustain or incur
as a consequence of the occurrence of any Event of Default or any
default by any of the Borrowers in the performance of any of the
obligations expressed to be assumed by it in the Finance Documents;
(ii) any Agent against any loss it may suffer as a result of its entering
into, or performing, any foreign exchange contract for the purposes
of, and in accordance with, Part 11; and
(iii) each Bank against any loss it may suffer as a result of its funding
an Advance or accepting Bills requested by any of the Borrowers
hereunder but not made or, as the case may be, discounted or deemed
to be discounted by reason of the operation of any one or more of the
provisions hereof other than as a result of a breach by such Bank of
its obligations hereunder.
29.6 Any unpaid sum shall (for the purposes of this Clause 29, Clause 19.1 and
the Sixth Schedule) be treated as an advance and accordingly in this Clause 29,
Clause 19.1 and the Sixth Schedule the term "Advance" includes any unpaid sum
and "Term", in relation to an unpaid sum, includes each such period relating
thereto as is mentioned in Clause 29.1.
54
PART 11
PAYMENTS
30. CURRENCY OF ACCOUNT AND PAYMENT
30.1 Sterling is the currency of account and payment for each and every sum at
any time due from any of the Borrowers under the Finance Documents Provided
that:
(i) each repayment of an Advance or a part thereof shall be made in the
currency in which such Advance is denominated at the time of that
repayment;
(ii) each payment of interest shall be made in the currency in which the
sum in respect of which such interest is payable is denominated;
(iii) each payment in respect of costs and expenses shall be made in the
currency in which the same were incurred;
(iv) each payment pursuant to Clause 17.8 or Clause 19.1 shall be made in
the currency in which the relevant loss, cost, reduction, increased
cost or liability (as the case may be) was suffered or incurred by
the Bank; and
(v) any amount expressed to be payable in a currency other than sterling
shall be paid in that other currency.
30.2 If any sum due from any of the Borrowers under the Finance Documents or any
order or judgment given or made in relation thereto has to be converted from the
currency (the "FIRST CURRENCY") in which the same is payable thereunder or under
such order or judgment into another currency (the "SECOND CURRENCY") for the
purpose of (i) making or filing a claim or proof against such Borrower, (ii)
obtaining an order or judgment in any court or other tribunal or (iii) enforcing
any order or judgment given or made in relation thereto, PLC shall indemnify and
hold harmless each of the persons to whom such sum is due from and against any
loss suffered as a result of any discrepancy between (a) the rate of exchange
used for such purpose to convert the sum in question from the first currency
into the second currency and (b) the rate or rates of exchange at which such
person may in the ordinary course of business purchase the first currency with
the second currency upon receipt of a sum paid to it in satisfaction, in whole
or in part, of any such order, judgment, claim or proof.
31. PAYMENTS
31.1 On each date on which this Agreement requires an amount to be paid by any
of the Borrowers or any of the Banks under any of the Finance Documents, such
Borrower or, as the case may be, such Bank shall make the same available to the
Facility Agent or, as the case may be the relevant Swing-Line Agent:
(i) in relation to Advances (other than Swing-Line Advances); and where
such amount is denominated in sterling, by payment in sterling and in
immediately available,
55
freely transferable, cleared funds to the account of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Limited, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, CHAPS Sort Code
40-48-05 (or such other account or bank as the Facility Agent may
have specified for this purpose); or
(ii) in the case of a Sterling Swing-Line Advance, by payment in sterling
and immediately available, freely transferable, cleared funds to the
account of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, CHAPS Sort Code 40-48-05 (or such other account or
bank as the Sterling Swing-Line Agent may have specified for this
purpose); or
(iii) in the case of a Dollar Swing-Line Advance, by payment in dollars and
in same day funds (or such other funds as may for the time being be
customary in New York City for the settlement in New York City of
international banking transactions in dollars) to the Dollar Swing-
Line Agent's account with such bank in New York as the Dollar Swing-
Line Agent may have specified for this purpose); or
(iv) where such amount is denominated in an Optional Currency, by payment
in such Optional Currency and in immediately available, freely
transferable, cleared funds to such account with such bank in the
principal financial centre of the country of such Optional Currency
as the Facility Agent shall have specified for this purpose.
31.2 If, at any time, it shall become impracticable (by reason of any action of
any governmental authority or any change in law, exchange control regulations or
any similar event) for any or all of the Borrowers to make any payments
hereunder in the manner specified in Clause 31.1, then such Borrower may agree
with each or any of the Banks alternative arrangements for the payment direct to
such Bank of amounts due to such Bank hereunder Provided that, in the absence
of any such agreement with any Bank, such Borrower shall be obliged to make all
payments due to such Bank in the manner specified herein. Upon reaching such
agreement such Borrower and such Bank shall immediately notify the Facility
Agent or, as the case may be, the relevant Swing-Line Agent thereof and shall
promptly thereafter notify the Facility Agent, or as the case may be, the
relevant Swing-Line Agent of all payments made direct to such Bank.
31.3 Save as otherwise provided herein, each payment received by an Agent for
the account of another person pursuant to Clause 31.1 shall:
(i) in the case of a payment received for the account of any Borrower, be
made available by the relevant Agent to such Borrower by application:
(a) first, in or towards payment (on the date, and in the currency
and funds, of receipt) of any amount then due from such Borrower
hereunder to the person from whom the amount was so received or
in or towards the purchase of any amount of any currency to be so
applied; and
(b) secondly, in or towards payment (on the date, and in the currency
and funds, of receipt) to such account with such bank in the
principal financial
56
centre of the country of the currency of such payment as such
Borrower shall have previously notified to the relevant Agent for
this purpose; and
(ii) in the case of any other payment, be made available by an Agent to
the person for whose account such payment was received (in the case
of a Bank, for the account of its Facility Office) for value the same
day by transfer to such account of such person with such bank in the
principal financial centre of the country of the currency of such
payment as such person shall have previously notified to the relevant
Agent.
31.4 All payments required to be made by any of the Borrowers under the Finance
Documents shall be calculated without reference to any set-off or counterclaim
and shall be made free and clear of and without any deduction for or on account
of any set-off or counterclaim.
31.5 All moneys received, recovered or realised by a Bank by virtue of Clause 27
may, in that Bank's discretion, be credited to a suspense or impersonal account
bearing interest and may be held in such account for so long as such Bank thinks
fit pending the application from time to time (as such Bank may think fit) of
such moneys in or towards the payment and discharge of any amounts owing by any
of the Borrowers to such Bank hereunder.
31.6 Where a sum is to be paid hereunder to an Agent for account of another
person, the relevant Agent shall not be obliged to make the same available to
that other person or to enter into or perform any exchange contract in
connection therewith until it has been able to establish to its satisfaction
that it has actually received such sum, but if it does so and it proves to be
the case that it had not actually received such sum, then the person to whom
such sum or the proceeds of such exchange contract was so made available shall
on request refund the same to the relevant Agent, together with an amount
sufficient to indemnify the relevant Agent against any cost or loss it may have
suffered or incurred by reason of its having paid out such sum or the proceeds
of such exchange contract prior to its having received such sum.
32. SET-OFF
Each of the Borrowers authorises each Bank to apply any credit balance to which
such Borrower is entitled on any account of such Borrower with that Bank in
satisfaction of any sum due and payable from such Borrower to such Bank
hereunder but unpaid; for this purpose, each Bank is authorised to purchase with
the moneys standing to the credit of any such account such other currencies as
may be necessary to effect such application. No Bank shall be obliged to
exercise any right given to it by this Clause 32 but any Bank which does so
shall promptly notify the Facility Agent thereof. Nothing in this Clause 32
shall confer on any Bank a security interest over any property of any Borrower.
33. REDISTRIBUTION OF PAYMENTS
33.1 If, at any time, the proportion which any Bank (a "RECOVERING BANK") has
received or recovered (whether by payment, the exercise of a right of set-off or
combination of accounts or otherwise) in respect of its portion of any payment
(a "RELEVANT PAYMENT") to be made under this Agreement by any of the Borrowers
for account of such Recovering Bank and one or more other Banks is greater (the
portion of such receipt or recovery giving rise to such excess proportion being
57
herein called an "EXCESS AMOUNT") than the proportion thereof so received or
recovered by the Bank or Banks so receiving or recovering the smallest
proportion thereof, then:
(i) such Recovering Bank shall pay to the Facility Agent an amount equal
to such excess amount;
(ii) there shall thereupon fall due from such Borrower to such Recovering
Bank an amount equal to the amount paid out by such Recovering Bank
pursuant to paragraph (i) above, the amount so due being, for the
purposes hereof, treated as if it were an unpaid part of such
Recovering Bank's portion of such relevant payment; and
(iii) the Facility Agent shall treat the amount received by it from such
Recovering Bank pursuant to paragraph (i) above as if such amount had
been received by it from such Borrower in respect of such relevant
payment and shall pay the same to the persons entitled thereto
(including such Recovering Bank) pro rata to their respective
entitlements thereto,
Provided that to the extent that any excess amount is attributable to a payment
to a Bank pursuant to Clause 31.3(i)(a) such portion of such excess amount as is
so attributable shall not be required to be shared pursuant hereto.
33.2 Nothing in this Clause 33 shall confer on any Bank a security interest over
any property of any Borrower and the obligations and liabilities of each
Borrower arising under this Clause 33 shall have effect accordingly.
33.3 If any sum (a "RELEVANT SUM") received or recovered by a Recovering Bank in
respect of any amount owing to it by any of the Borrowers becomes repayable and
is repaid by such Recovering Bank, then:
(i) each Bank which has received a share of such relevant sum by reason
of the implementation of Clause 33.1 shall, upon request of the
Facility Agent pay to the Facility Agent for account of such
Recovering Bank an amount equal to its share of such relevant sum;
and
(ii) there shall thereupon fall due from such Borrower to each such Bank
an amount equal to the amount paid out by it pursuant to paragraph
(i) above, the amount so due being, for the purposes hereof, treated
as if it were the sum payable to such Bank against which such Bank's
share of such relevant sum was applied.
33.4 Without prejudice to the preceding provisions of this Clause 33, if the
Facility Agent shall receive from PLC or any other Borrower hereunder funds
which are insufficient to satisfy in full the obligations of such person under
the Finance Documents then due to be discharged, the Facility Agent shall
allocate the funds so received in or towards discharging the amounts then so due
from such person pro rata to the amounts of such obligations and each party
hereto irrevocably authorises and directs the Facility Agent so to act.
58
PART 12
FEES, COSTS AND EXPENSES
34. FEES
34.1 PLC shall pay to the Facility Agent for account of each Bank a facility fee
on the amount of such Bank's Commitment from day to day during the period
beginning on the date on which the Facility Agent has confirmed to PLC that it
has received all of the documents and other evidence listed in the Third
Schedule and that each is, in form and substance, satisfactory to it and ending
on the Termination Date, such facility fee to be calculated at the rate of 0.09
per cent. per annum and payable in arrear on the last day of each successive
period of three months which ends during such period and on the Termination
Date.
34.2 PLC shall pay to each of the Arrangers the fees specified in the letters of
even date herewith from each Arranger to PLC at the time, and in the amount,
specified in such letters.
34.3 PLC shall pay to:
(i) each Agent for its own account the agency fees specified in the
letter of even date herewith from the Facility Agent on behalf of the
Agents to PLC at the times, and in the amounts specified in such
letter; and
(ii) the Facility Agent, on behalf of the Banks, the participation fees
specified in the letter of even date herewith from the Facility Agent
to PLC at the times and in the amounts specified in such letter.
35. COSTS AND EXPENSES
35.1 PLC shall, from time to time on demand of any Agent, reimburse that Agent
and each of the Arrangers for all reasonable costs and expenses (including,
without limitation, legal fees) subject to any limitations specified in a letter
of even date from the Facility Agent to PLC together with any VAT thereon
incurred by it in connection with the negotiation, preparation and execution of
the Finance Documents and the completion of the transactions therein
contemplated.
35.2 PLC shall, from time to time on demand of any Agent, reimburse that Agent,
the Arrangers and the Banks for all reasonable costs and expenses (including,
without limitation, legal fees) together with any VAT thereon incurred in or in
connection with the preservation and/or enforcement of any of the rights of that
Agent, the Arrangers and the Banks under any of the Finance Documents.
35.3 PLC shall pay all stamp, registration and other taxes to which any of the
Finance Documents or any judgment given in connection therewith is or at any
time may be subject and shall, from time to time on demand of any Agent,
indemnify the Agents, the Arrangers and the Banks against any liabilities,
costs, claims and expenses resulting from any failure to pay or any delay in
paying any such tax.
59
35.4 If PLC fails to perform any of its obligations under this Clause 35, each
Bank shall, in its Proportion, indemnify the Agents and the Arrangers against
any loss incurred by any of them as a result of such failure and PLC shall
forthwith reimburse each Bank for any payment made by it pursuant to this Clause
35.4.
60
PART 13
AGENCY PROVISIONS
36. THE AGENTS, THE ARRANGERS AND THE BANKS
36.1 Each Bank hereby appoints each of the Agents to act as its agent in
connection with the Finance Documents and authorises the Agents to exercise such
rights, powers, authorities and discretions as are specifically delegated to the
Agents by the terms of any of the Finance Documents together with all such
rights, powers, authorities and discretions as are reasonably incidental
thereto.
36.2 Each Agent may:
(i) assume that:
(a) any representation made by any of the Borrowers in connection
with any of the Finance Documents is true;
(b) no Event of Default or Potential Event of Default has occurred;
(c) none of the Borrowers is in breach of or default under its
obligations under any of the Finance Documents; and
(d) any right, power, authority or discretion vested in any of the
Finance Documents upon an Instructing Group, the Banks or any
other person or group of persons has not been exercised,
unless it has, in its capacity as agent for the Banks, received
notice to the contrary from any other party hereto;
(ii) assume that the relevant Facility Office of each Bank is that
identified with its signature below (or, in the case of a Transferee,
at the end of the Transfer Certificate to which it is a party as
Transferee) until it has received from such Bank a notice designating
some other office of such Bank to replace its Facility Office and act
upon any such notice until the same is superseded by a further such
notice;
(iii) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services may
to it seem necessary, expedient or desirable and rely upon any advice
so obtained;
(iv) rely as to any matters of fact which might reasonably be expected to
be within the knowledge of any of the Borrowers upon a certificate
signed by or on behalf of such Borrower;
(v) rely upon any communication or document believed by it to be genuine;
61
(vi) refrain from exercising any right, power or discretion vested in it
as agent under any of the Finance Documents unless and until
instructed by an Instructing Group as to whether or not such right,
power or discretion is to be exercised and, if it is to be exercised,
as to the manner in which it should be exercised; and
(vii) refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding arising out
of or in connection with any of the Finance Documents until it shall
have received such security as it may require (whether by way of
payment in advance or otherwise) for all costs, claims, losses,
expenses (including, without limitation, legal fees) and liabilities
together with any VAT thereon which it will or may expend or incur in
complying with such instructions.
36.3 Each Agent shall:
(i) promptly inform each Bank of the contents of any notice or document
received by it in its capacity as an Agent from any of the Borrowers
hereunder;
(ii) promptly notify each Bank of the occurrence of any Event of Default
or any default by any of the Borrowers in the due performance of or
compliance with its obligations under any of the Finance Documents of
which it has notice in its capacity as an Agent hereunder from any
other party hereto;
(iii) save as otherwise provided herein, act in accordance with any
instructions given to it by an Instructing Group, which instructions
shall be binding on all of the Arrangers and the Banks; and
(iv) if so instructed by an Instructing Group, refrain from exercising any
right, power or discretion vested in it as agent under any of the
Finance Documents.
36.4 Notwithstanding anything to the contrary expressed or implied herein,
neither the Agents nor any of the Arrangers shall:
(i) be bound to enquire as to:
(a) whether or not any representation made by any of the Borrowers in
connection with any of the Finance Documents is true;
(b) the occurrence or otherwise of any Event of Default or Potential
Event of Default;
(c) the performance by any of the Borrowers of its obligations under
any of the Finance Documents; or
(d) any breach of or default by any of the Borrowers of or under its
obligations under any Finance Document;
62
(ii) be bound to account to any Bank for any sum or the profit element of
any sum received by it for its own account (including without
limitation any sum received by it in respect of any Bills purchased
by it pursuant to Clause 9.2);
(iii) be bound to disclose to any other person any information relating to
any member of the Group if such disclosure would or might in its
opinion constitute a breach of any law or regulation or be otherwise
actionable at the suit of any person; or
(iv) be under any obligations other than those for which express provision
is made in any of the Finance Documents.
36.5 Each Bank shall, in its Proportion, from time to time on demand by any
Agent, indemnify that Agent, against any and all costs, claims, losses, expenses
(including, without limitation, legal fees) and liabilities together with any
VAT thereon which that Agent may incur, otherwise than by reason of its own
fraud, gross negligence or wilful misconduct, in acting in its capacity as agent
under the Finance Documents.
36.6 No Agent or Arranger accepts any responsibility for the accuracy and/or
completeness of any information supplied by any of the Borrowers in connection
herewith or for the legality, validity, effectiveness, adequacy or
enforceability of any of the Finance Documents and no Agent or Arranger shall be
under any liability as a result of taking or omitting to take any action in
relation to any of the Finance Documents, save in the case of fraud, gross
negligence or wilful misconduct.
36.7 Each of the Banks agrees that it will not assert or seek to assert against
any director, officer or employee of any Agent or any Arranger any claim it
might have against any of them in respect of the matters referred to in Clause
36.6.
36.8 Any Agent and each of the Arrangers may accept deposits from, lend money to
and generally engage in any kind of banking or other business with any member of
the Group.
36.9 Any Agent may resign its appointment hereunder at any time without
assigning any reason therefor by giving not less than thirty days' prior written
notice to that effect to each of the other parties hereto, in which case an
Instructing Group (or, in the circumstances referred to in Clause 26.5, such
group as is referred to therein), subject always to PLC's consent (not to be
unreasonably withheld or delayed), may appoint a successor during such period
but if none does so the relevant Agent shall appoint as its successor a
reputable and experienced financial institution with offices in London (in the
case of the Facility Agent or the Sterling Swing-Line Agent) or New York (in the
case of the Dollar Swing-Line Agent). Any such appointment shall take effect
upon notice thereof (and, in the case of the Facility Agent and the Sterling
Swing-Line Agent, upon notice of the bank in London to which payments to the
Facility Agent should thereafter be made, being given to PLC and each Bank,
subject always to PLC's consent (not to be unreasonably withheld or delayed)
Provided that no such resignation shall be effective until a successor for the
relevant Agent is appointed in accordance with the provisions of this Clause 36.
63
36.10 If a successor to an Agent is appointed under the provisions of Clause
36.9, then (i) the relevant retiring Agent shall be discharged from any further
obligations hereunder but shall remain entitled to the benefit of the provisions
of this Clause 36 and (ii) its successor and each of the other parties hereto
shall have the same rights and obligations amongst themselves as they would have
had if such successor had been a party hereto.
36.11 It is understood and agreed by each Bank that it has itself been, and
will continue to be, solely responsible for making its own independent appraisal
of and investigations into the financial condition, creditworthiness, condition,
affairs, status and nature of each member of the Group and, accordingly, each
Bank warrants to the Agents and the Arrangers that it has not relied on and will
not hereafter rely on any Agent or Arranger:
(i) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by any of the Borrowers in
connection with this Agreement or the transactions herein
contemplated (whether or not such information has been or is
hereafter circulated to such Bank by the Facility Agent and the
Arrangers or any of them); or
(ii) to assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of any member
of the Group.
36.12 In acting as agent and/or Arrangers for the Banks, the agency division of
each Agent and each Arranger shall be treated as a separate entity from any
other of its divisions or departments and, notwithstanding the foregoing
provisions of this Clause 36, in the event that an Agent or, as the case may be,
any Arranger should act for any member of the Group in any capacity in relation
to any other matter, any information given by such member of the Group to that
Agent or, as the case may be, such Arranger in such other capacity may be
treated as confidential by that Agent or, as the case may be, such Arranger.
36.13 Each Agent shall supply such information to each other Agent as is
necessary or desirable for the purposes of this Agreement. In particular, the
Facility Agent shall provide each other Agent with copies of all financial
statements delivered to it pursuant to Clause 23.1 promptly after receipt of the
same and shall notify each other Agent of any breach of Clause 25 or the
occurrence of any Event of Default promptly upon becoming aware of the same.
64
PART 14
ASSIGNMENTS AND TRANSFERS
37. BENEFIT OF AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each party
hereto and its or any subsequent successors, Transferees and assigns.
38. ASSIGNMENTS AND TRANSFERS BY THE BORROWERS
None of the Borrowers shall be entitled to assign or transfer all or any of its
rights, benefits and obligations hereunder.
39. ASSIGNMENTS AND TRANSFERS BY BANKS
39.1 Any Bank may, at any time, assign all or any of its rights and benefits
hereunder or transfer in accordance with Clause 39.3 all or any of its rights,
benefits and obligations hereunder. Provided that the transferee is a Qualifying
Bank and an Eligible Bank and (save in the case of an assignment of rights and
benefits, or a transfer, to (i) any subsidiary or holding company, or to any
subsidiary of any holding company, of such Bank or (ii) any other Bank) no such
assignment or transfer may be made without the prior written consent of PLC. No
Bank may enter into a sub-participation agreement in relation to any of its
rights and/or obligations under any Finance Document without the prior written
consent of PLC thereto.
39.2 If any Bank assigns all or any of its rights and benefits hereunder in
accordance with Clause 39.1, then, unless and until the assignee has undertaken
in favour of the Agents, the Arrangers and the other Banks that it shall be
under the same obligations towards each of them as it would have been under if
it had been an original party hereto as a Bank, the Agents, the Arrangers and
the other Banks shall not be obliged to recognise such assignee as having the
rights against each of them which it would have had if it had been such a party
hereto.
39.3 If any Bank wishes to transfer all or any of its rights, benefits and/or
obligations hereunder as contemplated in Clause 39.1, then such transfer may be
effected by the delivery to the Facility Agent (copied to PLC, the Dollar Swing-
Line Agent and the Sterling Swing-Line Agent) of a duly completed and duly
executed Transfer Certificate in which event, on the later of the Transfer Date
specified in such Transfer Certificate and the fifth business day after (or such
earlier business day endorsed by the Facility Agent on such Transfer Certificate
falling on or after) the date of delivery of such Transfer Certificate to the
Facility Agent:
(i) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights, benefits and obligations
hereunder, each of the Borrowers and such Bank shall be released from
further obligations towards one another hereunder and their
respective rights and benefits against one another shall be cancelled
(such rights, benefits and obligations being referred to in this
Clause 39.3 as "DISCHARGED RIGHTS AND OBLIGATIONS");
65
(ii) each of the Borrowers and the Transferee party thereto shall assume
obligations towards one another and/or acquire rights and benefits
against one another which differ from such discharged rights and
obligations only insofar as such Borrower and such Transferee have
assumed and/or acquired the same in place of such Borrower and such
Bank; and
(iii) the Agents, the Arrangers, such Transferee and the other Banks shall
acquire the same rights and benefits and assume the same obligations
between themselves as they would have acquired and assumed had such
Transferee been an original party hereto as a Bank with the rights,
benefits and/or obligations acquired or assumed by it as a result of
such transfer.
39.4 On the date upon which a transfer takes effect pursuant to Clause 39.3, the
Transferee in respect of such transfer shall pay to the Facility Agent for its
own account a transfer fee of (Pounds)300.
40. DISCLOSURE OF INFORMATION
No Bank may disclose to a proposed assignee or Transferee or other person
proposing to enter or having entered into a contract with such Bank in relation
to this Agreement any information in the possession of such Bank relating to PLC
and its subsidiaries except:
(i) information which is generally available; or
(ii) information which has been approved by PLC for the purpose of
such disclosure; or
(iii) to a proposed assignee or Transferee named in a consent of PLC
to an assignment or transfer contemplated by Clause 39, where
such disclosure is in connection with the proposed assignment
or transfer.
66
PART 15
MISCELLANEOUS
41. ACCEDING AND SECEDING BORROWERS
41.1 If the Facility Agent has confirmed to PLC that the conditions set forth in
the Third Schedule have been satisfied, PLC may request that any of its wholly-
owned subsidiaries becomes an Acceding Borrower for the purposes of utilising
the Facility by delivering, or procuring the delivery to, the Facility Agent
(copied to the Dollar Swing-Line Agent and the Sterling Swing-Line Agent) of a
Borrower Accession Memorandum duly executed by PLC and such subsidiary.
41.2 Upon delivery of a Borrower Accession Memorandum, the Acceding Borrower
shall, subject to the terms and conditions of this Agreement, acquire all the
rights and assume all the obligations of a Borrower hereunder Provided that the
Facility Agent has confirmed to PLC that it has received, in a form satisfactory
to it, all the documents set out in the Eighth Schedule.
41.3 If at any time a Borrower (other than PLC) is under no actual or contingent
obligation under or pursuant to any Finance Document, PLC may declare that such
Borrower shall cease to be a Borrower hereunder by delivering to the Facility
Agent a Borrower Secession Memorandum to that effect in which event such
Borrower shall forthwith cease to be a Borrower upon receipt by the Facility
Agent of such notice.
42. CALCULATIONS AND EVIDENCE OF DEBT
42.1 Interest and facility fees shall accrue from day to day and shall be
calculated on the basis of a year of 365 days (or, in the case of any Advance
denominated in an Optional Currency (other than Hong Kong dollars and Belgian
francs) 360 days) and the actual number of days elapsed (or, in any case where
market practice differs, in accordance with market practice).
42.2 Acceptance commission in respect of any ▇▇▇▇ shall be calculated on the
basis of a year of 365 days and the actual number of days in the Tenor thereof
(or, in any case where market practice differs, in accordance with market
practice).
42.3 If on any occasion a Reference Bank or Bank fails to supply any Agent with
a quotation required of it under the foregoing provisions of this Agreement, the
rate for which such quotation was required shall be determined from those
quotations which are supplied to such Agent.
42.4 Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it hereunder.
42.5 The Facility Agent shall maintain on its books a control account or
accounts in which shall be recorded (i) the amount of any Advance made or
arising hereunder and the face amount of any ▇▇▇▇ accepted and, in each case,
the name of the Bank to which such sum relates, (ii) the amount of all
principal, interest and other sums due or to become due from any of the
Borrowers to any of the Banks hereunder and each Bank's share therein and (iii)
the amount of any sum received or recovered by the Agents hereunder and each
Bank's share therein.
67
42.6 In any legal action or proceeding arising out of or in connection with this
Agreement, the entries made in the accounts maintained pursuant to Clauses 42.4
and 42.5 shall be prima facie evidence of the existence and amounts of the
obligations of the Borrowers therein recorded.
42.7 A certificate of a Bank as to (i) the amount by which a sum payable to it
hereunder is to be increased under Clause 17.1 or (ii) the amount for the time
being required to indemnify it against any such cost, reduction, increased cost,
payment or liability as is mentioned in Clause 17.8 or 19.1 shall, in the
absence of manifest error, be conclusive for the purposes of this Agreement and
prima facie evidence in any legal action or proceeding arising out of or in
connection with this Agreement.
42.8 A certificate of any Agent as to the amount at any time due from any
Borrower hereunder or the amount which, but for any of the obligations of any
Borrower hereunder being or becoming void, voidable, unenforceable or
ineffective, at any time would have been due from such Borrower hereunder shall,
in the absence of manifest error, be conclusive for the purposes of Part 9 and
prima facie evidence in any legal action or proceeding arising out of or in
connection with this Agreement.
43. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the Agents,
the Arrangers and the Banks or any of them, any right or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise thereof or the exercise of
any other right or remedy. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by law.
44. PARTIAL INVALIDITY
If, at any time, any provision of any Finance Document is or becomes illegal,
invalid or unenforceable in any respect under the law of any jurisdiction,
neither the legality, validity or enforceability of the remaining provisions of
the Finance Documents nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in any way be affected
or impaired thereby.
45. AMENDMENTS
45.1 Any amendment, waiver, modification, variation or consent in respect hereof
which is agreed to in writing by PLC on behalf of the Borrowers, the Agents and
an Instructing Group (or, in the circumstances referred to in Clause 26.5, such
group as is referred to therein) shall be binding upon all the other parties
hereto Provided that:
(i) any amendment, waiver, modification or variation of Clause 46 agreed
to in writing by PLC on behalf of the Borrowers and any Agent in
respect of their respective rights and obligations to each other
under such Clause shall be binding on all the other parties hereto;
(ii) this Clause 45 shall not authorise (without the prior written consent
of all the Banks) any amendment, waiver, modification, variation or
consent which would have the effect of:-
68
(a) changing the rate at which interest is payable under this
Agreement;
(b) extending the date for, or altering the amount or currency of,
any payment of principal, interest, fee, commission or any other
amount payable under this Agreement;
(c) increasing any Bank's participation in the Facility, the
Available Facility or the Available Swing-Line Facility;
(d) changing the Termination Date;
(e) waiving or changing any of the conditions under which a
Competitive Advance or Competitive ▇▇▇▇ is to be made or accepted
hereunder; or
(f) varying (i) the definition of Instructing Group; (ii) any of
Clauses 26.5, 27 and 28; (ii) this Clause 45; or (iv) any other
provision of this Agreement which requires the consent of all the
Banks; and
(iii) notwithstanding any other provision hereof, none of the Agents shall
be obliged to agree any such amendment, waiver, modification,
variation or consent if the same would otherwise have the effect of
amending, modifying, or waiving any of the Agents' rights under this
Agreement or subjecting any of the Agents to any additional
obligations hereunder.
45.2 If PLC requests any amendment, waiver, modification, variation or consent
in accordance with Clause 45.1, then PLC shall, within five business days of
demand of any Agent, reimburse that Agent for all costs and expenses (including,
without limitation, legal fees) together with any VAT thereon incurred by that
Agent in the negotiation, preparation and execution of any written instrument
contemplated by Clause 45.1.
46. NOTICES
46.1 Each communication to be made hereunder shall, unless otherwise stated, be
made in writing by telex, telefax or letter. Communications made by telefax by
PLC or any other Borrower to any Agent shall be confirmed by a telephone call
from the relevant Agent to an Authorised Verifier of PLC or such other Borrower
(as the case may be) (and if not so confirmed, the original telefax
communication will be void) and by letter. A failure to confirm such telefax
communication by letter will not affect the validity of the original telefax
communication. Communications made by telefax to any Agent by any person other
than PLC or any other Borrower shall be confirmed by letter, but a failure to do
so will not affect the validity of the original telefax communication.
46.2 Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall (unless that other person has by
fifteen days' written notice to the Facility Agent specified otherwise) be made
or delivered to that other person at the address (in the case of a letter),
telefax number (in the case of a telefax), telex number (in the case of a telex)
and if applicable, to the person and department identified with its signature
below (or, in the case of a Transferee, at the end of the Transfer Certificate
to which it is a party as Transferee or, in the case
69
of an Acceding Borrower, in the Borrower Accession Memorandum to which it is a
party). Any communication or document to be made or delivered under this
Agreement shall be effective only when received at the address, letter or
telefax number and, if applicable, person and department, to which it is to be
sent pursuant to Clause 46.2.
46.3 Each communication and document made or delivered by one party to another
pursuant to this Agreement shall be in the English language or accompanied by a
translation thereof into English certified (by an officer of the person making
or delivering the same) as being a true and accurate translation thereof.
47. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by different
parties hereto on separate counterparts each of which, when executed and
delivered, shall constitute an original, but all the counterparts shall together
constitute but one and the same instrument.
70
PART 16
LAW AND JURISDICTION
48. LAW
This Agreement shall be governed by, and shall be construed in accordance with,
English law.
49. JURISDICTION
49.1 Each of the parties hereto irrevocably agrees for the benefit of the
Agents, the Arrangers and the Banks that the courts of England shall have
jurisdiction to hear and determine any suit, action or proceeding, and to settle
any disputes, which may arise out of or in connection with the Finance Documents
and, for such purposes, irrevocably submits to the jurisdiction of such courts.
49.2 Without prejudice to Clause 49.1, each Borrower further irrevocably agrees
for the benefit of the Agents, the Arrangers and the Banks that any proceedings
arising out of or in connection with this Agreement may be brought in the New
York State Supreme Court, First Department, or the United States District Court
for the Southern District of New York, in each case sitting in the Borough of
Manhattan, the City of New York, State of New York and for such purposes
irrevocably submits to the non-exclusive jurisdiction of such courts.
49.3 Each of the Borrowers irrevocably waives any objection which it might now
or hereafter have to the courts referred to in Clause 49.1 or 49.2 being
nominated as the forum to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with this
Agreement and agrees not to claim that any such court is not a convenient or
appropriate forum.
49.4 Each of the Borrowers which is not incorporated in England and Wales agrees
that the process by which any suit, action or proceeding is begun in England may
be served on it by being delivered to ▇▇▇▇▇▇▇ plc at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or other its registered office for the time being. Each of the
Borrowers which is not incorporated in New York agrees that the process by which
any suit, action or proceedings begin in New York may be served on it by being
delivered to Pearson Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ or
other its principal place of business in New York for the time being. If the
appointment of the person mentioned in this Clause 49.4 ceases to be effective
in respect of any or all of the Borrowers, such Borrower or Borrowers shall
immediately appoint a further person in England or, New York, as the case may
be, to accept service of process on its behalf in England and, failing such
appointment within 15 days, the Facility Agent shall be entitled to appoint such
a person by notice to such Borrower or Borrowers. Nothing contained herein
shall affect the right to serve process in any other manner permitted by law.
49.5 The submission to the jurisdiction of the courts referred to in Clauses
49.1 and 49.2 shall not (and shall not be construed so as to) limit the right of
the Agents, the Arrangers and the Banks or any of them to take proceedings
against any of the Borrowers in any other court of competent jurisdiction nor
shall the taking of proceedings in any one or more jurisdictions preclude the
taking of proceedings in any other jurisdiction (whether concurrently or not) if
and to the extent permitted by applicable law.
71
49.6 Each of the Borrowers hereby consents generally in respect of any legal
action or proceeding arising out of or in connection with this Agreement to the
giving of any relief or the issue of any process in connection with such action
or proceeding including, without limitation, the making, enforcement or
execution against any property whatsoever (irrespective of its use or intended
use) of any order or judgment which may be made or given in such action or
proceeding.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
72
THE FIRST SCHEDULE
PART I
THE BANKS
BANK FACILITY OFFICE(S) COMMITMENT (Pounds)
Midland Bank plc Midland Bank plc 27,500,000
▇▇-▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 8954744
Union Bank of Switzerland Union Bank of Switzerland 27,500,000
P O ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 941 3848/3944 UBS COR G
73
Australia and New Zealand Banking Group Limited Australia and New Zealand Banking Group Limited 27,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇ ▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇/2378
Telex: 8812741 Anzbka g
885043-6 Grndly g
Banque Nationale de Paris, Banque Nationale de Paris, London Branch 27,000,000
London Branch P O Box 781
▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 883412 BNPLNX G
74
Barclays Bank PLC Barclays Bank PLC 27,000,000
▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 934148 BBSAIO G
Credit Lyonnais Credit Lyonnais 27,000,000
P O Box 81
▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇/1909
Telex: 885479
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇ 27,000,000
▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 9401 5555
National Westminster Bank Plc National Westminster Bank Plc 27,000,000
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 882121
76
Royal Bank of Canada Royal Bank of Canada Royal Bank of Canada 27,000,000
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ (▇▇▇▇▇ America No. 1)
▇▇▇▇ ▇▇▇ Branch
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Tel: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 929111 RBCCTY Telex: MCT 625219 ROYBAN
The Sumitomo Bank, Limited The Sumitomo Bank, Limited 27,000,000
Temple Court
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 887667
▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Bank 27,000,000
Triton Court
▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 886142
Westdeutsche Landesbank Girozentrale Westdeutsche Landesbank Girozentrale, London Branch 27,000,000
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 887984/5
TOTAL 325,000,000
78
PART II
THE SWING-LINE BANKS
BANK FACILITY OFFICE SWING-LINE COMMITMENT
(STERLING) (DOLLARS) EXPRESSED AS A PERCENTAGE
OF THE TOTAL SWING-LINE
COMMITMENTS OF Pounds 150,000,000
Midland Bank plc 27-32 Poultry ▇▇▇ ▇▇▇▇▇▇▇▇ 8.4615
London New York
EC2P 2BX ▇▇ ▇▇▇▇▇
▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Tel: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 8954744 Telex: 62390
Union Bank of Switzerlan Union Bank of Switzerland Union Bank of Switzerland 8.3077
▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
100 Liverpool Street New York
London NY 10171
▇▇▇▇ ▇▇▇ USA
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Tel: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 941 3848/3944 Telex: 620 317
COR G
79
Australia and New Zealand Australia and New Zealand Australia and New Zealand 8.3077
Banking Group Limited Banking Group Limited Banking Group Limited
▇▇▇▇▇▇▇ House 1177 Avenue of the Americas
P O Box 7 New York
Montague Close New York 10036-2798
London USA
▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Tel: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇/2378 Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 8812741 Anzbka g Telex: 667 559
885043-6 Grndly g
Banque Nationale de Paris, Banque Nationale de Paris, Banque Nationale de Paris 8.3077
London Branch London Branch ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Tel: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 883412 BNPLNX G Telex: 824209 ABNPWFC UF
80
Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC 8.3077
▇▇▇▇▇▇ House ▇▇▇▇▇▇ House
1 Royal Mint Court 1 Royal ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 934148 BBSAIO G Telex: 934148 BBSAIO G
Credit Lyonnais Credit Lyonnais Credit Lyonnais
P O ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ of the 8.3077
▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Americas
London New York 10019
EC4P 4LX USA
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Tel: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇/1909 Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 885479 Telex: 62410
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇ Deutsche Bank AG, 8.3077
London ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Tel: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 9401 5555 Telex: 429166
National Westminster Bank Plc National Westminster National Westminster 8.3077
Bank Plc Bank Plc
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Tel: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 882121 Telex: 232222 NWB KUR
82
Royal Bank of Canada Royal Bank of Canada Royal Bank of Canada 8.3077
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Grand Cayman
London (North America No. 1)
▇▇▇▇ ▇▇▇ Branch
c/o New York Branch
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Tel: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 929111 RBCCTY Telex: MCT 625219 ROYBAN
The Sumitomo Bank, Limited The Sumitomo Bank, Limited The Sumitomo Bank, Limited 8.3077
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Street New York
London NY 10172
▇▇▇▇ ▇▇▇ USA
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Tel: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 887667 Telex: 420515
▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Bank 8.3077
Triton Court Houston Agency
▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
London 17th Floor
EC2A 1DB ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Tel: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 886142 Telex: N/A
Westdeutsche Landesbank Westdeutsche Landesbank Westdeutsche Landesbank 8.3077
Girozentrale Girozentrale, Girozentrale,
London Branch New York Branch
51 Moorgate 1211 Avenue of the Americas
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Tel: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 887984/5 Telex: N/A
TOTAL 100.00
84
THE SECOND SCHEDULE
FORM OF TRANSFER CERTIFICATE
To: [Facility Agent] as Facility Agent for the Banks and on behalf of the
Borrowers
cc: [Dollar Swing-Line Agent and Sterling Swing-Line Agent]
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facility Agreement") dated [ ] 199[ ] whereby a
Pounds 325,000,000 multicurrency multi-option credit facility was made
available to ▇▇▇▇▇▇▇ plc ("PLC") and ▇▇▇▇▇▇▇ Inc as original borrowers under the
guarantee of PLC as guarantor by a group of banks on whose behalf ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Limited acted as facility agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank and Transferee are
defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule hereto under the
heading "BANK'S COMMITMENT" or "ADVANCE(S)" accurately summarises its Commitment
and/or, as the case may be, the Term and Repayment Date of one or more existing
Advances made by it and (ii) requests the Transferee to accept and procure the
transfer to the Transferee of the portion specified in the schedule hereto of,
as the case may be, its Commitment and/or such Advance(s) by counter-signing and
delivering this Transfer Certificate to the Facility Agent at its address for
the service of notices specified in the Facility Agreement.
3. The Transferee hereby requests the Facility Agent to accept this Transfer
Certificate as being delivered to the Facility Agent pursuant to and for the
purposes of Clause 39.3 of the Facility Agreement so as to take effect in
accordance with the terms thereof on the Transfer Date or on such later date as
may be determined in accordance with the terms thereof.
4. The Transferee confirms that it has received a copy of the Facility
Agreement together with such other information as it has required in connection
with this transaction and that it has not relied and will not hereafter rely on
the Bank to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such information and
further agrees that it has not relied and will not rely on the Bank to assess or
keep under review on its behalf the financial condition, creditworthiness,
condition, affairs, status or nature of any of the Borrowers.
5. Execution of this Transfer Certificate by the Transferee constitutes:
(i) its representation to the Transferor and/or other parties to the
Facility Agreement that it has power to become a party to the
Facility Agreement as a Bank on the terms herein and therein set out
and has taken all necessary steps to authorise execution and delivery
of this transfer certificate; and
85
(ii) a representation to each Borrower resident in the United Kingdom for
tax purposes that, as at the date hereof, such Bank is, acting
through its Facility Office for the purpose of Utilisations (other
than by way of Dollar Swing-Line Advances) by that Borrower, a
Qualifying Bank and that it presently intends that all amounts of
interest payable to that Facility Office under the Facility Agreement
by that Borrower will be brought into account as a trading receipt of
a bona fide banking business carried on by it in the United Kingdom.
6. The Transferee hereby undertakes with the Bank and each of the other
parties to the Facility Agreement that it will perform in accordance with their
terms all those obligations which by the terms of the Facility Agreement will be
assumed by it after delivery of this Transfer Certificate to the Facility Agent
and satisfaction of the conditions (if any) subject to which this Transfer
Certificate is expressed to take effect.
7. The Bank makes no representation or warranty and assumes no responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Facility Agreement or any document relating thereto and
assumes no responsibility for the financial condition of any of the Borrowers or
for the performance and observance by such Borrower of any of its obligations
under the Facility Agreement or any document relating thereto and any and all
such conditions and warranties, whether express or implied by law or otherwise,
are hereby excluded.
8. The Bank hereby gives notice that nothing herein or in the Facility
Agreement (or any document relating thereto) shall oblige the Bank to (i) accept
a re-transfer from the Transferee of the whole or any part of its rights,
benefits and/or obligations under the Facility Agreement transferred pursuant
hereto or (ii) support any losses directly or indirectly sustained or incurred
by the Transferee for any reason whatsoever including, without limitation, the
non-performance by any of the Borrowers or any other party to the Facility
Agreement (or any document relating thereto) of its obligations under any such
document. The Transferee hereby acknowledges the absence of any such obligation
as is referred to in (i) or (ii) above.
9. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Commitment: Portion Transferred
5. Advance(s):
Term and Repayment Date Portion Transferred
86
6. ▇▇▇▇(s):
Tenor and Maturity Date Portion Transferred
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
ADMINISTRATIVE DETAILS OF TRANSFEREE
London Facility Office Address: New York Facility Office Address:
Contact Name: Contact Name:
Telex: Telex:
Telefax: Telefax:
Telephone: Telephone:
Account for Payments Account for Payments
in sterling: in dollars:
87
THE THIRD SCHEDULE
CONDITIONS PRECEDENT
1. In relation to each of the Original Borrowers:
(i) a copy, certified a true copy by a duly authorised officer of such
Original Borrower, of the constitutive documents of such Original
Borrower;
(ii) a copy, certified a true copy by a duly authorised officer of such
Original Borrower, of a resolution of the Board of Directors of such
Original Borrower (or a duly authorised committee thereof) approving
the execution, delivery and performance of the Finance Documents and
the terms and conditions hereof and authorising a named person or
persons to sign the Finance Documents and any documents to be
delivered by such Original Borrower pursuant hereto or in connection
herewith and to make Utilisations hereunder;
(iii) a certificate of a duly authorised officer of such Original Borrower
setting out the names of persons authorised to verify notices and
communications as contemplated in Clause 46.1 and the names and
signatures of the persons authorised to sign, on behalf of such
Original Borrower, the Finance Documents and any documents to be
delivered by such Original Borrower pursuant hereto or in connection
herewith and to make Utilisations hereunder; and
(iv) if the resolution (referred to in (ii) above) is that of a committee
of the Board of Directors, a copy, certified by the Secretary or an
Authorised Signatory of such Original Borrower, to be a true,
complete and up to date resolution of the Board of Directors of such
Original Borrower appointing such committee with authority to
authorise the matters referred to in (ii) above.
2. A certificate addressed to the Facility Agent and signed by an officer of
each Original Borrower stating that the execution by such Original Borrower of
the Finance Documents, the performance by it of its obligations thereunder and
the utilisation by it of the Facility are within its corporate powers, have been
duly approved by all necessary corporate action and will not cause any limit or
restriction on any of its powers (whether imposed by law, decree, rule,
regulation, its Memorandum or Articles of Association (or other equivalent
constitutive documents), agreement or otherwise) or on the right or ability of
its Directors to exercise such powers, to be exceeded or breached.
3. For ▇▇▇▇▇▇▇ Inc., an opinion of ▇▇▇▇▇▇▇ Inc.'s counsel in the jurisdiction
of incorporation of ▇▇▇▇▇▇▇ Inc. in a form satisfactory to the Facility Agent.
4. An opinion of ▇▇▇▇▇▇▇▇ Chance, solicitors to the Agents, in substantially
the form distributed to the Banks prior to the execution hereof.
5. Evidence that PLC has agreed to act as the agent of the Borrowers (other
than itself) for the service of process in England.
88
6. Evidence that ▇▇▇▇▇▇▇ Inc. has agreed to act as the agent of the Borrowers
(other than itself) for the service of process in New York.
7. Evidence that a notice cancelling the commitments under the 1988 Facility
has been delivered to the Agent thereunder and evidence satisfactory to the
Facility Agent that such commitments will be cancelled and all outstandings
under the 1988 Facility reduced to zero on or prior to the Utilisation Date of
the first Utilisation hereunder.
8. A power of attorney substantially in the form of the Twelfth Schedule
issued by PLC.
89
THE FOURTH SCHEDULE
UTILISATION REQUEST
From: [Name of Borrower]
To: [Facility Agent]
cc: [each other Agent]
Dated:
Dear Sirs,
1. Reference is made to the multi-currency multi-option facility agreement,
dated [ ] August, 1995 (as the same may be amended, varied, novated or
supplemented from time to time, the "AGREEMENT"), between ▇▇▇▇▇▇▇ plc and
▇▇▇▇▇▇▇ Inc. as original borrowers, the Banks as defined therein, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Limited as agent and others.
2. We hereby give you notice that, pursuant to the Facility Agreement, we wish
the Banks to *[make Advances/Dollar Swing-Line Advances/Sterling Swing-Line
Advances/accept Bills] as follows:
(i) Currency
(ii) Aggregate *[principal/face] amount:
(iii) Utilisation Date:
(iv) *[Term/Tenor]:
(v) *[Repayment Date/Maturity Date]:
3. We confirm that, at the date hereof, the representations set out in Clause
22 of the Facility Agreement are true and no Event of Default or Potential Event
of Default has occurred which has not been remedied or waived pursuant to Clause
45.
-------------------------------------------------------------------------------
* Delete as appropriate
90
4. The proceeds of this Utilisation should be credited to [insert account
details].
Yours faithfully
.............................
for and on behalf of
[NAME OF BORROWER]
91
THE FIFTH SCHEDULE
TIMETABLES
UTILISATION BY MEANS OF ADVANCES
"D" = Utilisation Date
"D-x" = x business days prior to Utilisation Date
"Bs" = Banks
"SLA" = Relevant Swing-Line Agent
"SLBs" = Swing-Line Banks
"FA" = Facility Agent
"( )" = Clause number of Agreement
ADVANCES OTHER THAN SWING-LINE ADVANCES AND COMPETITIVE ADVANCES
STERLING OPTIONAL CURRENCY
ADVANCES ADVANCES
(LONDON TIME) (LONDON TIME)
1. Utilisation Request to FA (6.1) D-1 10.00 a.m. D-3 10.00 a.m.
2. FA to notify Bs of ▇-▇ ▇▇▇▇ ▇-▇ ▇▇▇▇
allocations (6.10)
3. LIBOR fixing (1.1) D 11.00 a.m. D-2 11.00 a.m.
SWING-LINE ADVANCES
STERLING SWING-LINE DOLLAR SWING-LINE
ADVANCES ADVANCES
(LONDON TIME) (NEW YORK TIME)
1. Utilisation Request to FA D 9.45 a.m. D 11.00 a.m.
with copy to SLA (6.4)
2. SLA to notify Bs of D 10.30 a.m. D Noon
allocations (6.10)
3. Rate Fixing D 11.00 a.m. N/A
92
4. SLBs to advise SLA of wire number N/A D 2.00 p.m.
effecting transfer (6.6)
5. SLA to advise Borrower of
wire number effecting transfer N/A D 2.00 p.m.
6. Payment by SLBs to SLA D 1.00 p.m. D 2.00 p.m.
7. Payment by SLA to relevant Borrower D 2.00 p.m. D 2.30 p.m.
COMPETITIVE ADVANCES
STERLING OPTIONAL CURRENCY
COMPETITIVE ADVANCES COMPETITIVE ADVANCES
(LONDON TIME) (LONDON TIME)
1. Competitive Bid Request to FA (8.2) D-2 11.00 a.m. D-4 11.00 a.m.
2. FA to send Invitation for Competitive D-2 2.00 p.m. D-4 2.00 p.m.
Bids to Bs (8.3)
3. Bs send Competitive Bids to FA (8.4) D-1 9.00 a.m. D-3 9.00 a.m.
4. FA to notify relevant Borrower of D-1 10.30 a.m. D-3 10.30 a.m.
Competitive Bids (8.5)
5. Borrower to confirm to FA the D-1 Noon D-3 Noon
Requested Amount
6. FA to notify Bs of acceptance/rejection D-1 3.00 p.m. D-3 3.00 p.m.
and allocations (8.8)
7. LIBOR fixing (1.1) D 11.00 a.m. D-2 11.00 a.m.
93
UTILISATION BY MEANS OF BILLS
"D" = Utilisation Date
"D-x" = x business days prior to Utilisation Date
"Bs" = Banks
"FA" = Facility Agent
"( )" = Clause number of Agreement
BILLS OTHER THAN COMPETITIVE BILLS
1. Utilisation Request to FA (6.1) D-1 10.00 a.m.
2. FA to notify Bs of allocations (6.10) D-1 Noon
3. If applicable Bs to notify FA D-1 3.00 p.m.
of election to make an Advance (7.1)
4. If applicable Bs to notify FA D-1 3.00 p.m.
that FA will not be required to
discount Bills (6.11)
5. FA to elect whether or not to D 11.00 a.m.
purchase any Bills (9.2)
6. Eligible ▇▇▇▇ Discount Rate D 11.00 a.m.
Fixing (1.1 and 9.2)
7. If applicable Bills to be delivered D 11.00 a.m.
by FA to relevant Bs (9.1)
8. FA to notify relevant Borrower and relevant D 11.30 a.m.
Bs to which Clause 9.3 or 9.4 applies of
Eligible ▇▇▇▇ Discount Rate (9.2)
9. If applicable Bills to be returned D 1.00 p.m.
to FA (9.1)
94
COMPETITIVE BILLS
1. Competitive Bid request to FA (8.2) D-2 11.00 a.m.
2. FA to send Invitation for Competitive Bids to Bs (8.3) D-2 2.00 p.m.
3. Bs send Competitive Bids to FA (8.4) D-1 9.00 a.m.
4. FA to notify relevant Borrower of Competitive Bids (8.5) D-1 10.30 a.m.
5. Borrower to notify FA of Requested Amount (8.6) D-1 Noon
6. FA to notify Bs of acceptance/rejection and D-1 3.00
allocation (8.8) p.m.
7. If applicable Bs to notify FA that FA will not be D-1 5.00 p.m.
required to discount Bills (6.10)
8. If applicable Bills to be delivered by FA to relevant D 11.00 a.m.
Bs (9.1)
9. Eligible ▇▇▇▇ Discount Rate Fixing (1.1 and 9.2) D 11.00 a.m.
10. FA to notify the relevant Borrower and relevant Bs to which D 11.30 a.m.
Clause 9.3 or 9.4 applies of Eligible ▇▇▇▇ Discount Rate (9.2)
11. If applicable Bills to be returned to FA (9.1) D 1.00 p.m.
95
THE SIXTH SCHEDULE
ASSOCIATED COSTS RATE
1. For the purposes of this Agreement, the cost of compliance with existing
requirements of the Bank of England in respect of Advances denominated in
sterling will be calculated by the Facility Agent in relation to each Advance on
the basis of rates to be supplied by each of the Reference Banks by reference to
the circumstances existing on the first day of the Term in respect of such
Advance and, if such Term exceeds three months, at three calendar monthly
intervals from the first day of such Term during its duration in accordance with
the following formula:
AB + C(B - E) + D(B - F) per cent. per annum
------------------------
100 - (A + D)
Where:
A is the percentage of eligible liabilities which such Reference Bank is
from time to time required to maintain as an interest free cash deposit
with the Bank of England to comply with cash ratio requirements.
B is the percentage rate per annum at which sterling deposits are offered
by such Reference Bank, in accordance with its normal practice, for a
period equal to (i) the Term (or, as the case may be, remainder of such
Term) in respect of the relevant Advance or (ii) three months,
whichever is the shorter, to a leading bank in the London Interbank
Market at or about 11.00 a.m. in a sum approximately equal to the
amount of such Advance.
C is the percentage of eligible liabilities which such Reference Bank is
from time to time required by the Bank of England to maintain as
secured money with members of the London Discount Market Association
("LDMA") and/or as secured call money with money brokers and gilt edged
market makers.
D is the percentage of eligible liabilities which such Reference Bank is
required from time to time to maintain as interest bearing special
deposits with the Bank of England.
E is the percentage rate per annum at which members of the LDMA are
offered sterling deposits in a sum approximately equal to the amount of
the relevant Advance as a callable fixture from such Reference Bank for
such period as determined in accordance with B above at or about 11.00
a.m.
F is the percentage rate per annum payable by the Bank of England to such
Reference Bank on interest bearing special deposits.
2. For the purposes of this Schedule "ELIGIBLE LIABILITIES" and "SPECIAL
DEPOSITS" shall bear the meanings ascribed to them from time to time by the Bank
of England.
96
3. The percentages used in A, C and D above shall be those required to be
maintained on the first day of the relevant period as determined in accordance
with B above.
4. In application of the above formula, A, B, C, D, E and F will be included
in the formula as figures and not as percentages e.g. if A is 0.5 per cent. and
B is 12 per cent., AB will be calculated as 0.5 x 12 and not as 0.5 per cent. x
12 per cent.
5. Calculations will be made on the basis of a 365 day year (or, if market
practice differs, in accordance with market practice).
6. A negative result obtained by subtracting E from B or F from B shall be
taken as zero.
7. The arithmetic mean of the resulting figures for each Reference Bank shall
be calculated and shall then be rounded upwards, if not already such a multiple,
to the nearest 0.0001 per cent. per annum.
8. Additional amounts calculated in accordance with this Schedule are payable
on the last day of the Term to which they relate.
9. The Facility Agent's determination of the Associated Costs Rate in relation
to any period shall, in the absence of manifest error, be conclusive and binding
on all of the parties hereto.
10. The Facility Agent may from time to time, after consultation with PLC and
the Banks, determine and notify to all the parties hereto any amendments or
variations which are required to be made to the formula set out above in order
to comply with any requirements from time to time imposed by the Bank of England
in relation to Advances denominated in sterling (including without limitation,
any requirements relating to sterling primary liquidity) and, any such
determination shall, in the absence of manifest error, be conclusive and binding
on all the parties hereto.
97
THE SEVENTH SCHEDULE
FORM OF BORROWER ACCESSION MEMORANDUM
To: [Facility Agent]
CC: [Dollar Swing-Line Agent and Sterling Swing-Line Agent]
From: [PLC and Subsidiary]
Dated:
Dear Sirs,
1. We refer to an agreement (the "Facility Agreement") dated [ ], August
1995 and made between ▇▇▇▇▇▇▇ plc ("PLC") and ▇▇▇▇▇▇▇ Inc as original borrowers,
PLC as guarantor, Midland Bank plc and Union Bank of Switzerland as arrangers,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited as facility agent, the financial institutions
defined therein as Banks and others.
2. Terms defined in the Facility Agreement shall bear the same meaning herein.
3. PLC hereby requests that [Subsidiary] become an Acceding Borrower pursuant
to Clause 41.1 of the Facility Agreement.
4. [Subsidiary] is a corporation duly organised under the laws of [Name of
Relevant Jurisdiction].
5. [Subsidiary] undertakes to deliver the documents listed in the Eighth
Schedule to the Facility Agreement.
6. [Subsidiary] hereby agrees to such request and accordingly undertakes, upon
its becoming a Borrower, to perform all the obligations expressed to be
undertaken under the Facility Agreement by a Borrower in all respects as if it
had been an original party thereto as an Original Borrower.
7. PLC confirms that it will guarantee in accordance with Clause 27 of the
Facility Agreement all the obligations of [Subsidiary] under the Finance
Documents in all respects in accordance with the terms of the Facility
Agreement.
8. PLC (on behalf of itself and each other Borrower):
(i) hereby makes, for the benefit of the Agents and each of the
Banks, each of the representations set out in Clause 22 of the
Facility Agreement; and
(ii) confirms that no Event of Default or Potential Event of Default
has occurred and is continuing.
98
9. [Subsidiary's] administrative details as follows:
Address:
Telephone No.:
Telex No.:
Telefax No.:
10. This memorandum shall be governed by and construed in all respects in
accordance with English law.
▇▇▇▇▇▇▇ plc [Subsidiary]
By: ..................... By: .....................
99
THE EIGHTH SCHEDULE
DOCUMENTS TO ACCOMPANY BORROWER ACCESSION MEMORANDUM
1. A copy, certified a true copy by a duly authorised officer of the proposed
Borrower of the constitutive documents of such proposed Borrower.
2. A copy, certified a true copy by a duly authorised officer of the proposed
Borrower, of a board resolution of such proposed Borrower approving the
execution and delivery of a Borrower Accession Memorandum, the accession of such
proposed Borrower to the Facility Agreement and the performance of its
obligations under the Finance Documents and authorising a person or persons
(specified by name or office) on behalf of such proposed Borrower to sign such
Borrower Accession Memorandum, any other Finance Document and any other
documents to be delivered by such proposed Borrower pursuant thereto or in
connection herewith and to make Utilisations hereunder.
3. A certificate of a duly authorised officer of the proposed Borrower setting
out the names and signatures of the person or persons mentioned in the
resolution referred to in paragraph 2 above and the names of persons authorised
to verify notices and communications as contemplated in Clause 46.1.
4. Where the proposed Borrower is not incorporated in England and Wales, a
copy, certified a true copy by or on behalf of the proposed Borrower, of each
such law, decree, consent, licence, approval, registration or declaration as is,
in the opinion of counsel to the Banks, necessary to render the relevant
Borrower Accession Memorandum legal, valid, binding and enforceable, to make
such Borrower Accession Memorandum admissible in evidence in the proposed
Borrower's jurisdiction of incorporation and to enable the proposed Borrower to
perform its obligations thereunder and under the other Finance Documents.
5. Legal opinions of English solicitors and, where such proposed Borrower is
not incorporated in England and Wales, counsel in the proposed Borrower's
jurisdiction of incorporation in a form satisfactory to the Facility Agent.
100
THE NINTH SCHEDULE
FORM OF BORROWER SECESSION MEMORANDUM
To: [the Facility Agent]
CC: [The Dollar Swing-Line Agent and the Sterling Swing-Line Agent]
From: ▇▇▇▇▇▇▇ plc
Dated:
Dear Sirs,
1. We refer to an agreement (the "Facility Agreement") dated [ ], August
1995 and made between ▇▇▇▇▇▇▇ plc ("PLC") and ▇▇▇▇▇▇▇ Inc as original borrowers,
PLC as guarantor, Midland Bank plc and Union Bank of Switzerland as arrangers,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited as facility agent, the financial institutions
defined therein as Banks and others.
2. Terms defined in the Facility Agreement shall bear the same meaning herein.
3. We hereby declare that [name of Borrower other than PLC] is under no actual
or contingent obligation under or pursuant to any Finance Document in its
capacity as a Borrower.
4. Accordingly, pursuant to Clause 41.3 of the Facility Agreement and with
effect from receipt of this notice, [name of relevant Borrower] shall cease to
be a Borrower under the Facility Agreement.
Yours faithfully
For and on behalf of
▇▇▇▇▇▇▇ plc
101
THE TENTH SCHEDULE
EXISTING ENCUMBRANCES
1. A first charge created by ▇. ▇▇▇▇▇▇▇ & Son Limited over the net earnings of
the Partnership and a further charge on the undertaking and all property and
assets present and future, including uncalled capital dated 4th December, 1901,
in order to secure an issue of debentures totalling Pounds 750,000; and
2. a charge created by Mindscape Bordeaux SA (formerly Atreid Concept SA) in
April 1993 over the revenues of the company from two software products to secure
obligations under a FRF1,500,000 loan agreement between the company and UFB
Locabail dated April 1993.
102
THE ELEVENTH SCHEDULE
PART I
FORM OF COMPETITIVE BID REQUEST
To: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited as Facility Agent for
the Banks referred to below,
From:
Attention: [ ], 199[ ]
Dear Sirs
We refer to the multicurrency multi-option facility agreement, dated [ ]
August, 1995 (as amended, varied, novated or supplemented from time to time, the
"AGREEMENT"), between ▇▇▇▇▇▇▇ plc and ▇▇▇▇▇▇▇ Inc as original borrowers, the
Banks as defined therein, yourselves as Facility Agent and others.
Terms defined in the Agreement shall have the same meaning herein. We hereby
give you notice pursuant to Clause 8 of the Agreement that we request a
competitive bidding under the Agreement, and in that connection set forth below
the terms on which such competitive bidding is requested to be made:
(A) Utilisation Date
--------------------
(B) Advances/Bills
--------------------
(C) Aggregate amount and currency for which
Competitive Bids are requested
--------------------
(D) Term/Tenor
--------------------
Yours faithfully
The proceeds of any bids made and accepted in due course should be credited to
[insert account details]
[ BORROWER ]
By: ___________________________________
Name:
Title:
103
PART II
FORM OF INVITATION FOR COMPETITIVE BID
[Name of Bank]
[Address]
Attention: [ ] [ ], 199[ ]
Dear Sirs
Reference is made to the multi-currency multi-option facility agreement,
dated [ ] August, 1995 (as the same may be amended, varied, novated or
supplemented from time to time, the "AGREEMENT"), between ▇▇▇▇▇▇▇ plc and
▇▇▇▇▇▇▇ Inc. as original borrowers, the Banks as defined therein, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Limited as agent and others.
Terms defined in the Agreement shall have the same meanings herein.
[Borrower] made a Competitive Bid Request on [ ], pursuant to Clause 8 of
the Agreement, and in that connection you are invited to submit a Competitive
Bid by [Date]/[Time]. Your Competitive Bid must comply with Clause 8 of the
Agreement and the terms set forth below on which the Competitive Bid Request was
made:
(A) Utilisation Date ----------------------
(B) Advances/Bills ----------------------
(C) Aggregate amount and currency for which
Competitive Bids are requested ----------------------
(D) Term/Tenor ----------------------
Yours faithfully
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited
as Facility Agent
By: ___________________________________
Name:
Title:
104
PART III
FORM OF COMPETITIVE BID
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited as Facility Agent
for the Banks referred to below
Attention: [ ] [ ], 199[ ]
Dear Sirs
We refer to the multi-currency multi-option facility agreement, dated [
] August, 1995 (as the same may be amended, varied, novated or supplemented from
time to time, the "AGREEMENT"), between ▇▇▇▇▇▇▇ plc and ▇▇▇▇▇▇▇ Inc. as original
borrowers, the Banks as defined therein, yourselves as Facility Agent and
others.
Terms defined in the Agreement shall have the same meanings herein. We hereby
make a Competitive Bid pursuant to Clause 8 of the Agreement, in response to the
Competitive Bid Request made by the Borrower on [ ] and in that
connection set forth below the terms on which such competitive Bid is made:
(A) Utilisation Date -------------------
(B) Advances/Bills -------------------
(C) Principal Amount and currency -------------------
(D) Competitive Bid Rate -------------------
(E) Tenor/Term -------------------
We hereby confirm that we are prepared, subject to the conditions set forth
in the Agreement, to extend credit to the Borrower upon acceptance by the
Borrower of this bid in accordance with Clause 8 of the Agreement.
Yours faithfully,
[NAME OF BANK]
By: ___________________________________
Name:
105
PART IV
FORM OF COMPETITIVE BID - UTILISATION CONFIRMATION LETTER
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited as Facility Agent for the Banks referred to below
Attention: [Date]
Dear Sirs
1. We refer to the multi-currency multi-option facility agreement, dated [ ]
August, 1995, (as the same may be amended, varied, novated or supplemented from
time to time, the "AGREEMENT"), between ▇▇▇▇▇▇▇ plc and ▇▇▇▇▇▇▇ Inc as original
borrowers, the Banks as defined therein, yourselves as Facility Agent and
others. Terms defined in the Agreement shall have the same meaning when used
herein.
2. In relation to the Competitive Bid Request dated [ ], we hereby give you
notice pursuant to Clause 8.6 of the Agreement that [we wish to proceed with a
Utilisation in respect thereof and the Requested Amount thereof is [ ]] **[we
do not wish to proceed with a Utilisation in respect thereof].
***3. We confirm that, at the date hereof, the representations set out in
Clause 22 of the Agreement are true and no Event of Default or Potential Event
of Default has occurred which has not been remedied or waived pursuant to Clause
45.
***The proceeds of the Utilisation the subject of this letter should be credited
to [insert accounts details].
.........................
for and on behalf of
[NAME OF BORROWER]
By:
Name:
Title:
-------------------------------------------------------------------------------
*Delete whichever is inapplicable
***Delete if no Utilisation is to be proceeded with
106
THE TWELFTH SCHEDULE
FORM OF POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made as a deed the day of 199 by
[insert na me of company] of [insert registered address of company] (the
"COMPANY") for the purposes of Clause 11 of the multi currency multi-option
facility agreement dated [ ], 1995 (the "FACILITY AGREEMENT") made between
▇▇▇▇▇▇▇ plc[/the Company*] ▇▇▇▇▇▇▇ Inc. [/the Company/*/] [and the
Company/*/], ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited as Facility Agent, the financial
institutions defined therein as Banks and others [to which the Company has
become a party pursuant to the borrower accession memorandum dated [ ] a
copy of which is attached hereto/*/].
1. Terms defined in the Facility Agreement have the same meanings when used in
this Power of Attorney.
2. The Company hereby appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited to be the true and
lawful attorney of the Company, on behalf of and in the name of the Company
(i) to complete Bills on behalf of the Company by (a) dating such Bills
with the issue and maturity dates, (b) inserting the name of the relevant
Bank as drawee, (c) inserting the face amount of each ▇▇▇▇ in a manner
consistent with allocations under Clause 6 of the Facility Agreement and
(d) signing such Bills and (ii) to deliver the same to Banks for acceptance
(Provided that the face amount of each ▇▇▇▇ shall not exceed
(Pounds)1,000,000) as provided in Clause 11 of the Facility Agreement in
accordance with the following provisions of this Power of Attorney.
3. The powers conferred on ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited under paragraph 2 of
this Power of Attorney shall be exercisable jointly by any two persons who
are for the time being authorised signatories of, and appear in, the
Signatures List of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited.
4. In exercising those powers, such authorised signatories shall:
(i) act as the agents of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited in its
capacity as the Company's attorney under this Power of Attorney;
and
(ii) sign on behalf of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited and the Company
as follows:
"For and on behalf of [ ] by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited as
Attorney.
........................
Authorised Signatory"
--------------------------------------------------------------------------------
*Delete as appropriate
107
5. Any authorised signatory of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited may make such
arrangements as appear to him or her, as the case may be, proper for the
Bills drawn and endorsed under this Power of Attorney to be delivered in
accordance with the Facility Agreement.
6. Any Bills drawn, endorsed and delivered in accordance with this Power of
Attorney shall be binding upon the Company for all purposes and the Company
hereby (i) declares that each act, deed, matter and thing which shall be
made, executed or done by any Attorney pursuant to its powers hereunder
shall be as good, valid and effectual as if the Company had made, executed
or done the same and (ii) agrees to ratify any and all acts, deeds, matters
and things made, executed or done by or on behalf of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Limited in accordance with the terms of this Power of Attorney.
7. The Company hereby agrees to indemnify ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited and
each other Attorney in respect of all and any costs, losses and or expenses
which it may suffer as a result of the exercise of any of its powers
hereunder other than as a result of a breach by any one of them of Clause
11.3 or Clause 11.5(i) of the Facility Agreement.
8. This Power of Attorney shall remain in full force and effect and may be
acted upon until the receipt by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited of a notice in
writing which is signed by a director or the secretary of the Company, is
addressed to the Specialised Financing Department of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Limited, is left at (not posted to) the offices of Sa muel Montagu & Co.
Limited at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ and expressly revokes
this Power of Attorney.
9. Notwithstanding the foregoing such revocation shall not take effect with
respect to any Bills in relation to which a Utilisation Request has been
made prior to the time of receipt by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited of the
notice of revocation referred to in paragraph 8 above and in relation to
which the powers of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Limited contained in this Power of
Attorney shall remain in full force and effect.
10. This Power of Attorney shall be governed by English law.
IN WITNESS whereof the Company has executed and delivered this Power of Attorney
as a deed on the date first before written.
Executed as a deed )
)
on behalf of )
[ ] )
by:
........................
director
........................
director/secretary
108
THE ORIGINAL BORROWERS
▇▇▇▇▇▇▇ PLC
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
Address: ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇/2299
Telex: 8953869
▇▇▇▇▇▇▇ INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
▇▇▇
Telephone: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: N/A
THE ARRANGERS
MIDLAND BANK PLC
By: /s/ P.C. BULL
Address: ▇▇-▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 895 4744
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇. ▇▇▇▇▇▇▇
Address: P O ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 941 3848/3944 UBS COR G
THE FACILITY AGENT
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. LIMITED
By: /s/ ▇.▇ ▇▇▇▇
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 919316 SMTPUT G
Attention: Specialised Financing Support
THE DOLLAR SWING-LINE AGENT
MIDLAND BANK PLC, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
▇▇▇
Telephone: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 426423 MID BK
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
110
THE STERLING SWING-LINE AGENT
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. LIMITED
By: /s/ ▇.▇. ▇▇▇▇
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 919316 SMTPUT G
Attention: Specialised Financing Support
THE BANKS
MIDLAND BANK PLC
By: /s/ P.C. BULL
Address: ▇▇-▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: ▇▇▇▇▇▇▇
UNION BANK OF SWITZERLAND
By: /s/ ▇. ▇▇▇▇▇▇▇
Address: P O ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Telex: 941 3848/3944 UBS COR G
111
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
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Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇/2378
Telex: 8812741 Anzbka g
885043-6 Grndly g
BANQUE NATIONALE DE PARIS, LONDON BRANCH
By: /s/ N.J. SAINT
Address: P O Box 781
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Telex: 883412 BNPLNX G
BARCLAYS BANK PLC
By: /s/ ▇.▇. ▇▇▇▇▇
Address: for Credit Matters: for Administration Matters:
▇▇▇▇▇▇ House Central Loans Administration
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Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇ Facsimile: 0171 621 4583
Telex: 934148 BBSAIO G Telex: 8950821 BARIBG G
112
CREDIT LYONNAIS
By: /s/ ▇▇▇▇▇▇ VERROEST
Address: P O Box 81
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Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇/1909
Telex: 885479
DEUTSCHE BANK AG, LONDON
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇ ▇▇▇▇▇▇▇▇▇▇▇
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Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 9401 5555
NATIONAL WESTMINSTER BANK PLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
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Telex: 882121
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By: /s/ ▇. ▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Telex: 929111 RBCCTY
THE SUMITOMO BANK, LIMITED
By: /s/ ▇.▇. ▇▇▇▇▇▇
Address: Temple Court
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Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: ▇▇▇▇▇▇
TORONTO-DOMINION BANK
By: /s/ ▇.▇. ▇▇▇▇▇
Address: ▇▇▇▇▇▇ ▇▇▇▇▇
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Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telex: 886142
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Address: ▇▇ ▇▇▇▇▇▇▇▇
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Telex: 887984/5
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