Dated 28th October 1996
560,000,000 Pounds Sterling
TERM LOAN AND REVOLVING FACILITY AGREEMENT
between
CE ELECTRIC UK HOLDINGS
as Company
CE ELECTRIC UK plc
as Bidco
CREDIT SUISSE
as Arranger and Agent
and
OTHERS
Clifford Chance
200 Aldersgate Street
London EC1A 4JJ
CONTENTS
Clause
PART 1
INTERPRETATION
1. Interpretation
PART 2
THE FACILITIES
2. The Facilities
3. Term and Purpose of the Facilities
4. Amount of the Facilities and Option to Utilise Overdraft Facility
5. Conditions Precedent
6. Rights and Obligations
PART 3
CANCELLATION AND PREPAYMENT
7. Cancellation
8. Prepayment
PART 4
UTILISATION PROCEDURES
9. Utilisation Requests
10. Amount of Utilisation
11. Allocation Amongst Banks
PART 5
THE ADVANCES
12. Making of Advances
13. Interest Periods
14. Interest
15. Repayment
PART 6
CHANGE IN CIRCUMSTANCES
16. Taxes
17. Increased Costs
18. Illegality
19. Mitigation
20. Market Disruption
PART 7
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
21. Representations
22. Information
23. Undertakings
24. Default
PART 8
GUARANTEE
25. Guarantee
PART 9
PAYMENTS
26. Currency of Amount
27. Payments
28. Redistribution of Payments
29. Netting of Payments and Set-Off
PART 10
DEFAULT INTEREST AND INDEMNITY
30. Default Interest and Indemnity
PART 11
FEES, COSTS AND EXPENSES
31. Fees
32. Costs and Expenses
PART 12
AGENCY PROVISIONS
33. The Agent and the Arranger
PART 13
ASSIGNMENT AND TRANSFERS
34. Benefit of Agreement
35. Assignments and Transfers by the Obligors
36. Assignments and Transfers by Banks
37. Disclosure of Information
PART 14
MISCELLANEOUS
38. Calculations and Evidence of Net Debt
39. Partial Invalidity
40. Remedies, Amendments and Waivers
41. Notices
42. Law
THIS AGREEMENT is made on 28th October 1996.
BETWEEN:
(1) CE ELECTRIC UK HOLDINGS an unlimited liability company
incorporated in England and Wales with company no. 3270696 (the
"Company");
(2) CE ELECTRIC UK plc a limited liability company incorporated
in England and Wales with company no. 3271033 ("Bidco");
(3) CREDIT SUISSE in its capacity as arranger of the facilities
(the "Arranger");
(4) CREDIT SUISSE as agent for the banks (the "Agent"); and
(5) CREDIT SUISSE as original lender (the "Original Lender").
NOW IT IS HEREBY AGREED as follows:
PART 1
INTERPRETATION
1. Interpretation
1.1 In this Agreement:
"Accession Memorandum" means a memorandum in the form set out in
the Ninth Schedule;
"Act" means the Electricity Act 1989 and, unless the context
otherwise requires, all subordinate legislation made pursuant
thereto;
"Adjusted Share Capital and Reserves" means the aggregate of the
following items namely:
(i) the amount (including any share premium) of the share
capital of the Company for the time being issued and paid up or
credit as paid up; and
(ii) the amounts standing to the credit of all capital and
revenue reserve accounts and the consolidated profit and loss
account of the Group;
but adjusted to the extent that the following items have not
already been added, deducted or excluded in arriving at the
figures referred to in (i) or (ii) above;
(iii) by adding the outstanding amount of any Subordinated Debt;
(iv) by deducting the amounts standing to the debt of all
capital and revenue reserve accounts and the consolidated profit
and loss account of the Group;
(v) by deducting any amounts shown in respect of interests of
non-Group members in Group subsidiaries;
(vi) by adding the amount of goodwill arising upon and in
respect of the acquisition of the Shares; and
(vii) by deducting the amount of any distribution declared or
made by the Company or any of its subsidiaries (other than to
another member of the Group) out of profits included within
reserves to the extent that those reserves have not already been
reduced on account thereof,
but so that no amount to be added, deducted or excluded as a
result of any of the foregoing shall be added, deducted or
excluded more than once in the same calculation and each such
amount shall be determined by reference to the most recent
financial statements and compliance certificates delivered
hereunder as adjusted pursuant to the provisions of Clause 22.9
(Change in Basis);
"Advance" means a Revolving Advance or, as the case may be, a
Term Advance;
"Announcement Date" means the date on which the Press Release is
issued;
"Associated Costs Rate" means, in respect of any period, the
percentage rate per annum given by the formula set out in the
Third Schedule (Associated Costs Rate);
"Authorised Signatory" means in relation to any communication to
be made, or any document to be executed or certified by an
Obligor, any Person;
(i) who is at such time duly authorised, by or pursuant to the
board resolution or other authorisation mentioned in the Second
Schedule (Conditions Precedent) or, as the case may be, the Tenth
Schedule (Documents to Accompany Accession Memorandum) or in such
other manner as may be acceptable to the Agent, to make such
communication, or to execute or certify such document, on behalf
of such Obligor; and
(ii) in respect of whom the Agent has received a certificate of
the Secretary (or other duly authorised officer) of such Obligor
setting out the name and, where such Person is authorised to
execute or certify documents, signature of such Person and
confirming such Person's authority to act as aforesaid;
"Available Revolving Commitment" means, in relation to a Bank,
its Revolving Commitment less its Revolving Outstandings, if any;
"Available Revolving Facility" means, at any time, the aggregate
of the Available Revolving Commitments;
"Available Term Commitment" means, in relation to a Bank, the
aggregate of its Available Tranche A Term Commitment and its
Available Tranche B Term Commitment;
"Available Term Facility" means, at any time the aggregate of the
Available Term Commitments;
"Available Tranche A Term Commitment" means, in relation to a
Bank, its Tranche A Term Commitment (to the extent not cancelled
or reduced) less the aggregate of the outstanding Tranche A Term
Advances previously made by such Bank;
"Available Tranche B Term Commitment" means, in relation to a
Bank, its Tranche B Term Commitment (to the extent not cancelled
or reduced) less the aggregate of the outstanding Tranche B Term
Advances previously made by such Bank;
"Banks" means, subject to Clause 7.5 (Bank's Cessation), the
Original Lender and any transferee which becomes a party hereto
pursuant to a Transfer Certificate or, as the case may be, a
Global Transfer Certificate acting in their capacity as providers
of the Facilities and "Bank" means any one of them;
"Borrowers" means the Company and, upon the Target or any other
member of the Group becoming a Borrower pursuant to Clause 5.3
(Accession), the Target or such other member of the Group and
"Borrower" means any of them;
"Borrowings" means, any Indebtedness for, or for interest or
other charges relating to, or otherwise in respect of or pursuant
to:
(a) moneys borrowed or raised, including, without limitation,
monies raised by the sale of receivables or other financial
assets on terms (and to the extent) that recourse may be had to
the vendor in the event of non-payment of such receivables or
financial assets when due and monies raised under acceptance
credit facilities through the issue of bonds, notes, debentures,
bills, loan stocks and other debt securities (including any debt
security convertible, but not at the relevant time converted,
into share capital), provided that the Subordinated Debt (if any)
shall not constitute a Borrowing;
(b) the acquisition cost of assets or services to the extent
payable on deferred payment terms after the time of acquisition
or possession thereof by the party liable (whether or not
evidenced by any bond, note, debenture, loan stock or other debt
security), excluding (i) retentions which are normal in the trade
concerned and not entered into primarily as a means of raising
finance, (ii) any payment relating to construction works or the
acquisition of fixed assets which will become payable only upon
fulfilment of conditions relating to or comprising completion or
commissioning of certain stages in such works or in the supply
programme or the granting of any planning permission for such
works or fixed assets and which has not yet become payable by
reason of the non-fulfilment of any such condition, and (iii) any
such cost payable on deferred payment terms which are normal in
the business concerned and not entered into primarily as a means
of raising finance, and which do not involve any deferral of
payment of any sum for more than six months;
(c) moneys received in consideration for the supply of goods
and/or services to the extent received more than six months
before the due date for such supply (but excluding any liability
in respect of bona fide advance payments and deposits received
from customers in the ordinary course of trade);
(d) instalments under conditional sale agreements entered into
primarily as a method of raising finance;
(e) payments under leases (whether in respect of land,
machinery, equipment or otherwise) and payments under hire
purchase agreements and similar agreements and instruments, in
each case where such leases, agreements or instruments are
treated as finance leases in accordance with generally accepted
accounting principles;
(f) (i) any guarantee, indemnity, letter of credit or other
legally binding instrument to assure payment of, or against loss
in respect of non-payment of, any of the Indebtedness specified
in this definition and any counter-indemnity in respect of any
thereof; and/or
(ii) any legally binding agreement or other instrument entered
into in connection with any of the Indebtedness specified in this
definition requiring, or giving any Person the right
(contingently or otherwise) to require, that any other Person
invest in, make advances to, purchase assets of, or maintain the
solvency or financial condition of, any other Person;
(g) any interest rate and/or currency swap, and any other
interest or currency protection, hedging or financial futures
transaction or arrangement,
provided that double counting shall be avoided and that in
computing an amount of Borrowings of any Person or Persons for
the purposes of the definition of Net Debt or for the purposes of
Clause 23.6 (Restriction on Borrowings):
(i) any interest, dividends, commission, fees or other like
financing charges, and any item falling within paragraph (g),
shall be excluded, save in each case to the extent capitalised or
more than 15 days overdue for payment;
(ii) in respect of any bonds, notes, debentures, loan stocks
and/or other debt securities issued at a discount or redeemable
at a premium and constituting a Borrowing, the issue price
thereof, together with any applicable discount or premium
recognised or required by generally accepted accounting
principles to be recognised at the time of calculation (other
than amounts required by generally accepted accounting principles
to be accounted for as interest) in the relevant financial
statement of the relevant person (were any then to be prepared),
shall be included;
(iii) in respect of paragraphs (d) and (e) (but in case of
paragraph (d), only where no interest or similar charge is
charged), only the principal amount thereof as determined by
generally accepted accounting principles or (in the case of
paragraph (e)) the capitalised value (as so determined) of any
items falling thereunder shall be included;
(iv) any item falling within paragraph (f) which is in respect of
any sum excluded by item (i) or (iii) of this proviso shall be
excluded; and
(v) any item falling within paragraph (f) shall be included only
to the extent that the same has been or (in accordance with
generally accepted accounting principles) ought to be given a
value in the latest or next relevant financial statements, or in
any notes to those financial statements;
"Capitalisation" means, at any particular time, the aggregate of
Adjusted Share Capital and Reserves and Net Debt at such time;
"Certain Funds Period" means the period commencing at opening of
business on the date hereof and ending at close of business:
(a) on the earlier of:
(i) the date which falls 180 days after the Announcement Date;
(ii) the date which falls three months after the Unconditional
Date; and
(iii) the date which falls 200 days after the date hereof; or
(b) for the purposes of a Utilisation under paragraph (a) of
Clauses 3.2 (Purpose of Tranche A Term Facility) only on the date
which falls no later than 200 days after the date hereof; or
(c) for the purpose of a Utilisation under paragraph (b)(iii) of
Clause 3.2 (Purpose of Tranche A Term Facility) only no later
than 180 days after the date of the offer (as that term is used
in the Companies Act 1985) or, if one or more applications to
court are made under Section 430(C)(1) of the Companies Act 1985
the first business day after the last day on which any such
application is disposed of, whichever is the latter
"Clean-Up Date" means the date falling 150 days after Target
becomes a subsidiary of the Company;
"Code" means The City Code on Takeovers and Mergers;
"Commitments" means, in relation to a Bank, its Revolving
Commitment and/or its Tranche A Term Commitment and/or its Trance
B Term Commitment, as the case may be;
"Dangerous Substance" means any radioactive emissions, noise, any
natural or artificial substance (whether in the form of a solid,
liquid, gas or vapour) the generation, transportation, storage,
treatment, use or disposal of which (whether alone or in
combination with any other substance) including (without
limitation) any controlled, special, hazardous, toxic,
radioactive or dangerous substance or waste, gives rise to a risk
of causing harm to man or any other living organism or damaging
the Environment or public health or welfare;
"Director General" means the Person appointed from time to time
by the Secretary of State to hold office as the Director General
of Electricity Supply for the purposes of the Act;
"EBITDA" means, in respect of any Relevant Period, the total
operating profit for continuing operations, acquisitions ( as a
component of continuing operations) and discounted operations
after taking into account all exceptional items but before taking
account (or, as the case may be, deducting) (i) Interest Payable
and Interest Receivable, (ii) all amounts provided for
depreciation, goodwill and amortisation, (iii) all extraordinary
items, (iv) all Taxes and (v) any Offer Costs in each case, for
that Relevant Period (calculated on a consolidated basis
disregarding any portion of any item taken into account in that
calculation which is attributable to any minority interests in
subsidiaries of the Company) all as determined by reference to
the most recent financial statements and compliance certificates
delivered hereunder as adjusted pursuant to the provisions of
Clause 22.9 (Change in Basis);
"Environment" means all, or any of, the following media: the air
(including, without limitation, the air within buildings and the
air within other natural or man-made structures above or below
ground), water (including, without limitation, ground and surface
water) and land (including, without limitation, surface and sub-
surface soil);
"Environmental Claim" means any claim by any Person:
(a) in respect of loss or liability suffered or incurred by that
Person as a result of or in connection with any violation of
Environmental Law; or
(b) that arises as a result of or in connection with
Environmental Contamination and that could give rise to any
remedy or penalty (whether interim or final) that may be enforced
or assessed by private or public legal action or administrative
order or proceedings, including without limitation, any such
claim arising from injury to Persons, property or natural
resources;
"Environmental Contamination" means each of the following and
their consequences:
(a) any release, emission, leakage or spillage of any Dangerous
Substance at or from any site owned, occupied or used by any
member of the Group into any part of the Environment; or
(b) any accident, fire, explosion or sudden event at any site
owned, occupied or used by any member of the Group which is
directly or indirectly caused by or attributable to any Dangerous
Substance; or
(c) any other pollution of the Environment;
"Environmental Law" means all applicable laws (including, without
limitation, common law), regulations and directing codes of
practice, circulars, guidance notices and the like having the
force of the law (whether in the United Kingdom or elsewhere)
concerning pollution or the protection of human health, the
environment, the conditions of the work place or the generation,
transportation, storage, treatment or disposal of Dangerous
Substances;
"Environmental Licence" means any permit, licence, authorisation,
consent or other approval required by any Environmental Law;
"Event of Default" means, subject to Clause 24.4 (Clean-Up
Period), any of the events mentioned in Clause 24.1 (Events of
Default);
"Facilities" means the Revolving Facility, the Tranche A Term
Facility and the Tranche B Term Facility;
"Facility Office" means, in relation to the Original Lender, its
office identified with its signature below, or in relation to a
Transferee to whom the participation of a Bank is being
transferred, its office identified in the "Administrative
Details" section to the relevant Transfer Certificate or, as the
case may be, Global Transfer Certificate or, in any case, such
other office as it may from time to time, by notice to the Agent,
select or such other office as may be agreed pursuant to Clause
19 (Mitigation);
"Facility Termination Date" means:
(i) when designed "Term", the last day of the Certain Funds
Period; and
(ii) when designated "Revolving", (a) (if no Term Advance is
drawn at all) the Term Facility Termination Date and (b)
otherwise the Final Maturity Date;
"Final Maturity Date" means the date falling on the fifth
anniversary of the Unconditional Date;
"Finance Documents" means this Agreement, the Intercreditor
Agreement, the side letter referred to in paragraph 7 of the
Second Schedule and the fee letter referred to in Clauses 31.2
(Agency Fees) and 31.3 (Arrangements Fees);
"Global Transfer Certificate" means a certificate substantially
in the form set out in Part 2 of the Sixth Schedule (Form of
Global Transfer Certificate) signed by a Bank and each Transferee
whereby;
(i) such Bank seeks to procure the transfer to each Transferee
of part of such Bank's rights and obligations hereunder, subject
to and upon the terms and conditions set out in Clause 36
(Assignments and Transfers by Banks); and
(ii) each Transferee undertakes to perform the obligations it
will assume as a result of the delivery of such certificate to
the Agent as contemplated in Clause 36 (Assignments and Transfers
by Banks);
"Group" means, at any time, the Company and each of its
subsidiaries (if any) at such time;
"Information Memorandum" means an information memorandum in
connection herewith as, when and if agreed between the Company
and the Arranger for use in the syndication of the Facilities;
"Instructing Group" means, at any time a Bank or group of Banks
the aggregate of whose Commitment equals or exceeds 66 2/3% of
the Commitments of all the Banks (or, if the Commitments have
been reduced to zero equalled or exceeded such percentage
immediately before such reduction) Provided that for the
purposes hereof the operation of Clause 4.2 (Overdraft Facility)
shall be ignored;
"Intercreditor Agreement" means an agreement in the Agreed Form
made or to be made between, inter alia, the Company, the Agent
and the creditors from time to time in respect of the
Subordinated Debt;
"Interest Payable; means, in respect of any Relevant Period, all
interest (including, without limitation, the interest elements of
finance leases), commission, fees (of a recurring nature) and
similar charges as shown in (or in the notes to) the financial
statements of the Group calculated on a consolidated basis for
the Relevant Period all as determined by reference to the most
recent financial statements and compliance certificates delivered
hereunder as adjusted pursuant to the provisions of Clause 22.9
(Change in Basis);
"Interest Period" means, save as otherwise provided herein, any
of those periods mentioned in Clause 13 (Interest Periods);
"Interest Receivable" means, in respect of any Relevant Period,
all interest receivable and similar income as shown in (or in the
notes to) the financial statements of the Group calculated on a
consolidated basis for the Relevant Period all as determined by
reference to the most recent financial statements and compliance
certificates delivered hereunder as adjusted pursuant to the
provisions of Clause 22.9 (Change in Basis);
"LIBOR" means, in relation to any Advance or unpaid sum, on any
day, the rate per annum determined by the Agent to be equal to
the arithmetic mean (rounded upwards, if necessary to four
decimal places) of the respective rates notified to the Agent by
each of the Reference Banks as the rate at which such Reference
Bank is offering deposits in sterling and for the specified term
to prime banks in the London Interbank Market at or about 11.00
a.m. on the Quotation Date for deposits in sterling of such term
and, for the purposes of this definition, "specified term" means,
in relation to a Revolving Advance, the Term of such Revolving
Advance, in relation to a Term Advance, the Interest Period in
respect of such Advance and, in relation to an unpaid sum, the
period in respect of which LIBOR falls to be determined on that
day in relation to such unpaid sum;
"Licence" means the existing public electricity supply licence
granted by the Secretary of State to Target under Section 6(1)(c)
of the Act, as modified and/or extended from time to time;
"Licenceholder" means at any time the member of the Group which
then holds the Licence;
"Licence Undertaking" means any and each undertaking or assurance
given in connection with the Offer by any one or more of the
Shareholders, the Company or the Target or any Affiliate of any
of them to the Director General or the Secretary of State
concerning the management and/or ownership of and/or other
matters concerning the Target once it has become a subsidiary of
the Company;
"Margin" means a rate per annum of 0.75% Provided that if on any
Margin Adjustment Date:
(i) an Event of Default has not occurred or has occurred but is
not continuing; and
(ii) it is determined by the Agent by reference to:
(a) from the date hereof to (but excluding) the last day of the
Certain Funds Period, consolidated unaudited accounts of the
Company and its subsidiaries prepared on a pro forma basis
prepared as if all the Shares had been acquired pursuant to the
Offer, the Facilities had been fully drawn and the condition set
out in paragraph 9 of the Second Schedule (Conditions Precedent)
had been satisfied; or
(b) from the last day of the Certain Funds Period, the latest
accounts at that time,
that:
(A) the ration of Net Debt to Capitalisation of the Group
calculated in accordance with Clause 23.9 (Financial Ratios) is
equal to or less than 65% but greater than 60%, then the
applicable Margin shall, with effect from that Margin Adjustment
Date, be reduced from 0.75% to 0.625% per annum;
(B) the ratio of Net Debt to Capitalisation of the Group
calculated in accordance with Clause 23.9 (Financial Ratios) is
equal to or less than 60% but greater than 55%, then the
applicable Margin shall, with effect from that Margin Adjustment
Date, be reduced from 0.75% to 0.5% per annum; and
(C) the ration of Net Debt to Capitalisation of the Group
calculated in accordance with Clause 23.9 (Financial Ratios) is
equal to or less than 55%, then the applicable Margin shall, with
effect from that Margin Adjustment Date, be reduced from 0.75% to
0.325% per annum;
"Margin Adjustment Date" means the first Utilisation Date and
thereafter the next business day following the date of delivery
of any set of quarterly accounts to the Agent pursuant to Clause
22.3 (Semi-annual and Quarterly Information);
"Material Subsidiary" means, at any time, each Obligor (other
than the Company), Bidco, the Target and any other Person which
is a subsidiary of the Company and is a Licenceholder or (other
than any Project Finance Subsidiary):
(i) (a) whose profits before tax on ordinary activities or (b)
whose gross assets (excluding goodwill) represent 10% or more of
the consolidated profits before tax on ordinary activities of the
Group or, as the case may be, consolidated gross assets
(excluding goodwill) of the Group in each case as calculated by
reference to the latest consolidated financial statements of such
subsidiary and the latest consolidated financial statements of
the Group adjusted in such manner as the auditors of the Company
may determine (which determination shall be conclusive in the
absence of manifest error) to reflect the profits (or losses)
before tax on ordinary activities and consolidated gross assets
(excluding goodwill) of any Person which has become or ceased to
be a member of the Group since the end of the financial period to
which the latest financial statements of the Group relate); or
(ii) to which is transferred all or substantially all of the
business, undertaking or assets of a Person which immediately
prior to such transfer is a Material Subsidiary whereupon the
transferor shall cease to be a Material Subsidiary and the
transferee shall become a Material Subsidiary under this sub-
Clause (ii) upon the completion of such transfer;
Provided that any determination made by the auditors of the
Company as to whether a subsidiary of the Company is or is not a
Material Subsidiary at any time shall be conclusive in the
absence of manifest error;
"Net Debt" means at any time, the amount of the Borrowings of the
members of the Group from sources external to the Group plus the
amount of any actual or contingent liability of any member of the
Group to provide funds by loan, subscription for share capital or
otherwise to any Person in which any member of the Group has an
ownership interest at such time less the cash in hand and cash
equivalents of the members of the Group at that time, in each
case giving effect to the proviso to the definition of
"Borrowings";
"Net Interest Payable" means, in respect of any Relevant Period,
Interest Payable less Interest Receivable for that Relevant
Period;
"Obligors" means the Company in its capacity as a Borrower
hereunder and each of the Company and Bidco in its capacity as
guarantor pursuant to Clause 25 (Guarantee) and, upon any Person
becoming a Borrower pursuant to Clause 5 (Conditions Precedent),
that Person (and "Obligor" means any of them);
"Offer" means the offer proposed to be made by or on behalf of
Bidco, substantially on the terms and conditions set out in the
Press Release, to acquire the whole of the ordinary share capital
(whether in issue or falling to be allotted) of the Target not
already owned by Bidco, as such offer may from time to time be
amended, added to, revised, renewed or waived in compliance with
the terms hereof;
"Offer Costs" means all costs, fees and expenses (and Taxes
thereon) and all stamp, documentary, registration or similar
Taxes incurred by or on behalf of the Company or any subsidiary
of the Company in connection with the Offer and the Preference
Share Offer including the preparation, negotiation and entry into
of this Agreement;
"Offer Document" means the offer document to be despatched to
shareholders of the Target in respect of the Offer and the
Preference Share Offer;
"Ordinary Shares" means the ordinary shares of 56 12/23p each in
the capital of the Target;
"Original Financial Statements" means the audited consolidated
accounts of the Target for its financial year ended 31st March
1996;
"Outstandings" means, in relation to a Bank, its Revolving
Outstandings and/or its Tranche A Term Outstandings and/or its
Tranche B Term Outstandings, as the context may require;
"Overdraft Bank" means a Bank designated for the time being as an
Overdraft Bank for the purposes hereof pursuant to Clause 4.2
(Overdraft Facility);
"Overdraft Facility" means any facility designated to such
pursuant to Clause 4.2 (Overdraft Facility);
"Panel" means the Panel on Takeovers and Mergers;
"Pooling and Settlement Agreement" means an agreement dated 30
March 1990 made by the target with The National Grid Company plc
and others setting out the rules and procedures for the operation
of an electricity trading pool and of a settlement system and,
while the same has effect, the "Initial Settlement Agreement"
also dated 30 March 1990 and made between the same parties, as
amended from time to time;
"Potential Event of Default" means any event which with the
giving of notice or the expiry of any grace period or the
fulfilment of any other condition (apart from the mere occurrence
of such event) (or any combination thereof) would become an Event
of Default Provided that any such event which by reason of the
express provisions of any Finance Document requires the
satisfaction of a condition as to materiality before it may
become an Event of Default shall not be a Potential Event of
Default unless that condition is satisfied;
"Preference Share Offer" means the offer proposed to be made by
or on behalf of Bidco, substantially on the terms and conditions
set out in the Press Release, to acquire the whole of the
preference share capital (whether in issue or falling to be
allotted), as such offer may from time to time be amended, added
to, revised, reviewed or waived in compliance with the terms
hereof;
"Preference Shares" means a press announcement to be released by
Bidco announcing the terms of the Offer and the Preference Share
Offer in the Agreed Form;
"Press Release" means a press announcement to be released by
Bidco announcing the terms of the Offer and the Preference Share
Offer in the Agreed Form;
"Project Finance Indebtedness" means any Indebtedness incurred to
finance the ownership, acquisition, construction, development
and/or operation of an asset:
(a) which is incurred by a Project Finance Subsidiary; or
(b) in respect of which the Person or Persons to whom such
Indebtedness is or may be owed by the relevant debtor (whether or
not a member of the Group) have no recourse whatsoever for the
repayment of or payment of any sum relating to such Indebtedness
other than:
(i) recourse to such debtor for amounts limited to the aggregate
cash flow or net cash flow (other than historic cash flow or
historic net cash flow) from such asset; and/or
(ii) recourse to such debtor for the purpose only of enabling
amounts to be claimed in respect of such Indebtedness in an
enforcement of any encumbrance given by such debtor over such
asset or the income, cash flow or other proceeds deriving
therefrom to secure such Indebtedness or any recourse referred to
in (iii) below, Provided that (A) the extent of such recourse to
such debtor is limited solely to the amount of any recoveries
made on any such enforcement, and (B) such Person or Persons are
not entitled, by virtue of any right or claim arising out of or
in connection with such Indebtedness, to commence proceedings for
the winding up or dissolution of the debtor or to appoint to
procure the appointment of any receiver, trustee or similar
Person or officer in respect of the debtor or any of its assets
(save for the assets the subject of such encumbrance); and/or
(iii) recourse to such debtor generally, which recourse is
limited to a claim for damages (other than liquidated damages and
damages required to be a calculated in a specified way) for
breach of an obligation (not being a payment obligation or an
obligation to procure payment by another or an obligation to
comply or to procure compliance by another with any financial
ratios or other test of financial condition) by the Person
against whom such recourse is available;
"Project Finance Subsidiary" means any subsidiary of the Company
(other than Bidco, the Target or a Licenceholder):
(a) which is a company whose principal assets and business are
constituted by the ownership, acquisition, development and/or
operation of an asset whether directly or indirectly;
(b) none of whose Borrowings in respect of the financing of such
ownership, acquisition, development and/or operation of an asset
benefits from any recourse whatsoever to any member of the Group
(other than the subsidiary itself or another Project Finance
Subsidiary) in respect of the repayment thereof, except as
expressly referred to in paragraph (b)(iii) of the definition of
"Project Finance Indebtedness"; and
(c) which has been designated as such by the Company by written
notice to the Agent, Provided that the Company may give written
notice to the Agent at any time that any Project Finance
Subsidiary is no longer a Project Finance Subsidiary, whereupon
it shall cease to be a Project Finance Subsidiary;
"Qualifying Lender" means a bank as defined in or pursuant to
section 840A of the Income and Corporation Taxes Act 1988 and
which is within the charge to United Kingdom Corporation Tax as
regards interest received by it under this Agreement;
"Quotation Date" means, in relation to any period for which an
interest rate is to be determined hereunder, the first day of
that period;
"Reference Banks" means the principal London office of Credit
Suisse and, in the event there being three or more Banks, any
such additional Bank as may be selected by the Company and the
Agent from time to time or such substitute reference banks as may
be agreed by the Company and the Agent;
"Relevant Period" means each annual financial period of the
Company ending in (subject to provided in Clause 22.11
(Accounting Reference Period)) March in each calendar year and
each period of four financial quarters of the Company ending in
June, September and December in each calendar year (including,
where contemplated in the definition of Margin, pro forma
accounting periods);
"Repayment Date" means, in relation to any Revolving Advance, the
last day of the Term of such Revolving Advance;
"Requested Amount" means in relation to any Utilisation Request,
the aggregate principal amount of the Advance therein requested;
"Revolving Advance" means an advance made or to be made by a Bank
under the Revolving Facility pursuant to the terms hereof or, as
the case may be, the outstanding principal amount of any such
advance;
"Revolving Commitment" means, in relation to a Bank and save as
otherwise provided herein, the amount set opposite its name in
Column A of the First Schedule (The Original Lender)(or, as the
case may be, the amount specified in the Transfer Certificate or,
as the case may be, Global Transfer Certificate pursuant to which
such Bank became a party hereto minus (in the case of any
Overdraft Bank) the relevant amount duly designated for the time
being pursuant to Clause 4.2 (Overdraft Facility);
"Revolving Facility" means the sterling revolving credit facility
in an amount of up to 1,000,000,000 pounds sterling (adjusted
where necessary in accordance with Clause 4.2 (Overdraft
Facility) granted to the Borrowers by the Banks pursuant to
Clause 2.1 (Revolving Facility));
"Revolving Outstandings" means, in relation to any Bank and any
proposed Utilisation of the Revolving Facility, the aggregate of:
(i) the outstanding Revolving Advances previously made by such
Bank; and
(ii) any Revolving Advance which such Bank is then obliged to
make on or before the proposed Utilisation in question pursuant
to any other Utilisation;
but (in the case of paragraph (i) above) excluding any
outstanding Revolving Advances which will become repayable or
mature on or before the proposed Utilisation in question;
"Revolving Utilisation Request" means a notice given to the Agent
pursuant to paragraph (i) of Clause 9.1 (Delivery of Requests) in
the form set out in Part A of the Fifth Schedule (Form of
Revolving Utilisation Request);
"Rollover Utilisation" means a proposed Utilisation of the
Revolving Facility whose amount does not exceed the amount of
Revolving Advances to be repaid on the proposed Utilisation from
the proceeds of such proposed Utilisation;
"Secretary of State" means the Secretary of State for Energy from
time to time or such other Person as may for the time being be
fulfilling the functions of the Secretary of State under the Act;
"Shares" means the Ordinary Shares and the Preference Shares;
"Shareholders" means CE Energy, Inc., CE Power, Inc. and Kiewit
Energy UK, Inc. and each is a "Shareholder";
"Shareholders' Agreement" means an agreement dated on or about
the date of this Agreement between the Shareholders relating to
their shareholding in the Company;
"Subordinated Debt" means unsecured Borrowings of Bidco and/or
the Company, if any, which is subordinated to all Indebtedness
arising under this Agreement on the terms set out in the Eighth
Schedule (Terms of Subordinated Debt);
"Target" means Northern Electric plc;
"Term" means, in relation to any Revolving Advance, the period
for which such Advance is borrowed, as specified in the Revolving
Utilisation Request relating thereto;
"Term Advance" means a Tranche A Term Advance and/or Tranche B
Term Advance;
"Term Commitment" means, in relation to a Bank, either its
Tranche A Term Commitment or its Tranche B Term Commitment;
"Term Facility" means (a) the sterling term loan facility in an
aggregate amount of up to 460,000,000 pounds sterling granted to
the Company by the Banks pursuant to Clause 2.3 (Term Facility),
(b) when designated "Tranche A", that part of such term loan
facility for the purposes referred to in Clause 3.2 (Purpose of
Tranche A Term Facility) and (c) when designated "Tranche B", the
term loan facility for the purposes referred to in Clause 3.3
(Purpose of Tranche B Term Facility);
"Term Outstandings" means, at any time, the aggregate of the
principal amount of each outstanding Term Advance at that time;
"Term Utilisation Request" when designated "Tranche A" or
"Tranche B" (as the case may be) means a notice given to the
Agent pursuant to paragraph (ii) of Clause 9.1 (Delivery of
Requests), in the form set out in Part B of the Fifth Schedule
(Form of Term Utilisation Request);
"Tranche A Term Advance" means an advance (as from time to time
reduced by repayment) made or to be made by a Bank under Tranche
A of the Term Facility pursuant to the terms hereof;
"Tranche B Term Advance" means an advance (as from time to time
reduced by repayment) made or to be made by a Bank under Tranche
B of the Term Facility pursuant to the terms hereof;
"Tranche A Term Commitment" means, in relation to a Bank and save
as otherwise provided herein, the amount set out in a side letter
of even date herewith between, among others, the Original Lender
and the Company or, as the case may be, the amount specified in
the Transfer Certificate, (or, as the case may be), Global
Transfer Certificate, pursuant to which such Bank became party
hereto;
"Tranche B Term Commitment" means, in relation to a Bank and save
as otherwise provided herein, the amount set out in a side letter
of even date herewith between, among others, the Original Lender
and the Company or, as the case may be, the amount specified in
the Transfer Certificate, (or, as the case may be), Global
Transfer Certificate, pursuant to which such Bank became a party
hereto;
"Transaction Documents" means the Finance Documents, the Licence
and any and each Licence Undertaking;
"Transfer Certificate" means a certificate substantially in the
form set out in Part 1 of the Sixth Schedule (Form of Transfer
Certificate) signed by a Bank and a Transferee whereby:
(i) such Bank seeks to procure the transfer to such Transferee
of all or part of such Bank's rights and obligations hereunder,
subject to and upon the terms and conditions set out in Clause 36
(Assignments and Transfers by Banks); and
(ii) such Transferee undertakes to perform the obligations it
will assume as a result of delivery of such certificate to the
Agent as contemplated in Clause 36 (Assignments and Transfers by
Banks);
"Transferees" means banks to which a Bank seeks to transfer all
or part of its rights and obligations in accordance with Clause
36 (Assignments and Transfers by Banks) and "Transferee" means
one of them;
"Unconditional Date" means the date on which the Offer is
declared or becomes unconditional in all respects;
"Utilisation" means a utilisation of the Facilities hereunder;
"Utilisation Date" means the date of a Utilisation, being a date
specified in the relevant Term or Revolving Utilisation Request
on which the Advances are to be made; and
"Utilisation Request" means a Term Utilisation Request or a
Revolving Utilisation Request.
1.2 Any reference in this Agreement to:
an "Affiliate" of any Person means any subsidiary or holding
company of that Person, or any subsidiary of any such holding
company, or any other Person in which that Person or any such
holding company or subsidiary owns at least 20% of the equity
share capital or the like;
the "Agent"; the "Original Lender" or any "Bank" shall, subject
to otherwise provided in this Agreement, be construed so as to
include their respective successors and permitted transferees and
assigns;
an "Agency" of a state includes any agency, authority, central
bank, department, government, legislature, minister, ministry,
official or public or statutory Person (whether autonomous or
not) of, or of the government of, that state;
a document in the "Agreed Form" means that document in the form
initialled by or on behalf of the Company and the Agent;
the "Assets" of any Person means all or any part of its business,
undertaking, property, assets, revenues (including any right to
receive revenues) and uncalled capital, wherever situated;
a "business day" shall be construed as a reference to a day
(excluding Saturday and Sunday) on which banks are open for
business London;
"Consent" also includes an approval, authorisation, exemption,
filing, licence, order, permission, recording or registration
(and references to obtaining Consents shall be construed
accordingly);
a "Directive" includes any present or future directive,
regulation, request, requirement, rule or credit restraint
programme of any Agency of any state or of any self-regulating
organisation (whether or not having the force of law but, if not
having the force of law, only if compliance with the Directive is
in accordance with the general practice of Persons to whom the
Directive is intended to apply);
"generally accepted accounting principles" means the accounting
principles and practices specified in Clause 22.1 (Preparation of
Accounts);
"Indebtedness" includes, with respect to any Person (the
"Relevant Person"), any obligation (whether present or future,
actual or contingent, secured or unsecured, as principal, surety
or otherwise) (a) of the Relevant Person for the payment or
repayment of money or (b) of any other Person for the payment or
repayment of money secured by Security on Assets of the Relevant
Person, whether or not the Relevant Person is liable in respect
of any obligation so secured;
a "law" includes common or customary law and any constitution,
decree, judgment, legislation, order, ordinance, regulation,
statute, treaty or other legislative measure, in each case of any
jurisdiction whatever (and "lawful" and "unlawful" shall be
construed accordingly);
something having a "Material Adverse Effect" is to its having a
material adverse effect on the ability of an Obligor to perform
and comply with its payment obligations under any Finance
Document, its obligations under Clause 23.9 (Financial Ratios)
and any other of its material obligations under the Finance
Documents;
a "month" is reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in
the next 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 numerically corresponding day in the
month in which that period ends, that period shall end on the
last business day in that later month (and references to "months"
shall be construed accordingly);
any "obligation" of any Person under this Agreement or any other
agreement or document shall be construed as a reference to an
obligation expressed to be assumed by or imposed on it under this
Agreement or, as the case may be, that other agreement or
document (and "due", "owing", "payable" and "receivable" shall be
similarly construed);
a "Person" includes any individual, company, corporation, firm,
partnership, joint venture, undertaking, association,
organisation, trust, state or Agency of a state (in each case,
whether or not having separate legal personality);
"Security" includes any mortgage, pledge, lien, hypothecation,
security interest, charge, encumbrance, assignment or trust
arrangement for the purpose of providing security or other
security agreement or arrangement having the effect of providing
security (including, without limitation, the deposit of monies or
property with a person with the primary intention of affording
such a person a right of set-off or lien and including without
limitation, any sale and lease back arrangement) (and "secured"
shall be construed accordingly);
"Tax(es)" includes any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed,
levied, collected, withheld or assessed (and "Taxation" shall be
construed accordingly);
"Tax on Overall Net Income" of a Person shall be construed as a
reference to Tax (other than Tax deducted or withheld from any
payment) imposed on that Person by the jurisdiction in which its
principal office (and/or, in the case of a Bank, its Facility
Office) is located by reference to (a) the net income, profits or
gains of that Person worldwide or (b) such of its net income,
profits or gains as arise in or relate to that jurisdiction;
the "winding-up" or "dissolution" or "administration" of a
company, or the appointment of an "administrative receiver", a
"receiver" or an "administrator" shall be construed so as to
include any equivalent or analogous proceedings or, as the case
may be, Person under the law of the jurisdiction in which such
company is incorporated or any jurisdiction in which such company
carries on business; and
"a time of day" is, unless otherwise stated, a reference to
London time.
1.3 Any reference in this Agreement to this Agreement or to
another document shall be construed as a reference to this
Agreement or that other document as the same may have been, or
may from time to time be, amended, restated, varied, supplemented
or novated.
1.4 "sterling" denote the lawful currency of the United Kingdom
of Great Britain and Northern Ireland.
1.5 Clause and Part headings are for ease of reference only.
1.6 A "subsidiary" is a reference to (a) a subsidiary as defined
in Section 736 of the Companies Act 1985 and (b) a subsidiary
undertaking as defined in Section 258 of the Companies Act 1985,
provided that an entity falling only within paragraph (b) shall
come within the definition of "subsidiary" only if it is the
Licenceholder or (otherwise) for the purposes of Clauses 23.5
(Restriction on Distributions), 23.6 (Restriction on Borrowings)
and 23.9 (Financial Ratios) and all accounts and other financial
information to be delivered hereunder.
1.7 For the purposes of this Agreement a company is a "wholly-
owned subsidiary" of another company if the first company has no
members except that other and that other's wholly-owned
subsidiaries or Persons acting on behalf of that other or its
wholly-owned subsidiaries.
1.8 For the purposes of this Agreement a company shall be
treated as being "controlled" by another company if that other
company is able to direct its affairs and/or controls the
composition of its board of directors.
1.9 Save where the context otherwise requires words importing
the singular number include the plural number and vice versa.
1.10 Adjusted Share Capital and Reserves, Borrowings,
Capitalisation, Net Debt, Interest Payable, Interest Receivable
and Subordinated Debt shall be interpreted in accordance with
generally accepted accounting principles.
PART 2
THE FACILITIES
2. The Facilities
2.1 Revolving Facility: The Banks grant to the Borrowers, upon
the terms and subject to the conditions hereof, a sterling
revolving credit facility in an aggregate amount of up to
100,000,000 pounds sterling whereby the Banks will, at the
request of a Borrower, make Revolving Advances to such Borrower
in sterling.
2.2 Participation in Revolving Facility: Each Bank will
participate in the Revolving Facility up to the amount of its
Revolving Commitment from time to time.
2.3 Term Facility: The Banks grant to the Company, upon the
terms and subject to the conditions hereof, a sterling term loan
facility in an aggregate amount of up to 460,000,000 pounds
sterling whereby the Banks will, at the request of the Company,
make Tranche A Term Advances up to an aggregate amount set out in
a side letter between, among others, the Original Lender and the
Company or, as the case may be, Tranche B Term Advances up to an
aggregate amount set out in a side letter between, among others,
the Original Lender and the Company, to the Company in sterling.
2.4 Participation in Term Facility: Each Bank will participate
in the Term Facility up to the amount of its Tranche A Term
Commitment and/or, as the case may be, its Tranche B Term
Commitment from time to time.
3. Term and Purpose of the Facilities
3.1 Term: Subject to the other provisions of this Agreement,
the Term Facility is available for drawing until and including
the Term Facility Termination Date and the Revolving Facility is
available for drawing prior to the Revolving Facility Termination
Date.
3.2 Purpose of Tranche A Term Facility: Each Utilisation under
the Tranche A Term Facility will be applied in or towards:-
(a) financing or refinancing Offer Costs; and/or
(b) the subscription by the Company in cash for shares in Bidco
(or the making by the Company of loans available to Bidco) the
proceeds of which will be used by Bidco for:
(i) financing or refinancing the consideration payable to Target
shareholders in respect of open market purchases of the Shares
the subject of the Offer; and/or
(ii) financing or refinancing the acquisition of those of the
Shares to be acquired by Bidco pursuant to the Offer; and/or
(iii) financing or refinancing the consideration payable
pursuant to the operation by Bidco of the procedures contained in
sections 428-430 of the Companies Act 1985 in respect of the
Shares the subject of the Offer; and/or
(iv) financing or refinancing consideration payable to the
Target share option holders pursuant to the Offer; and/or
(v) financing (directly or indirectly) any special dividend
payable by Target as referred to in the Offer.
3.3 Purpose of Tranche B Term Facility: Each Utilisation of a
Tranche B Term Advance will be applied in or towards financing or
refinancing the acquisition of the Preference Shares pursuant to
the Preference Share Offer.
3.4 Purpose of Revolving Facility: The Revolving Facility will
be available for:
(i) those purposes listed in Clause 3.2 up to a limit set forth
in a side letter of even date herewith; and/or
(ii) refinancing any indebtedness of Target or its subsidiaries
which is outstanding as at the date of First Utilisation; and/or
(iii) the working capital and general corporate purposes of any
member of the Group.
3.5 Agent and Arranger: Neither the Agent nor the Arranger need
check that the proceeds of any Utilisation are applied as
specified in this Clause 3.
4. Amount of the Facilities and Option to Utilise Overdraft
Facility
4.1 Amount: Notwithstanding any other provisions of this
Agreement, the aggregate of all Revolving Outstandings shall not
at any time exceed 100,000,000 pounds sterling and the aggregate
of all Term Outstandings shall not at any time exceed 460,000,000
pounds sterling.
4.2 Overdraft Facility: The Company may at any time elect that
part of the Revolving Facility be made available by way of an
overdraft facility and/or other ancillary facilities by (with the
agreement of the relevant Bank) designating (in a written notice
to the Agent) one or more Bank as being an Overdraft Bank for the
purposes hereof. Such designation shall specify the net limit of
each of the relevant facilities (being an amount not exceeding
the Revolving Commitment of the relevant Bank) and the Revolving
Commitment of any Overdraft Bank notify the Agent that the
designation has ceased to be applicable) be reduced by the amount
of such net limit.
5. Conditions Precedent
5.1 Conditions Precedent: No Term Utilisation Request or
Revolving Utilisation Request may be issued until the
Unconditional Date has occurred and until the Agent has confirmed
to the Company and to each Bank that it has received all of the
documents listed in the Second Schedule (Conditions Precedent),
in the form agreed before the date hereof or otherwise in the
form and substance reasonably satisfactory to it, which, in the
event that it has received such documents, the Agent agrees to do
promptly.
5.2 Acceding Borrower: The Company may request that the Target
or any other member of the Group incorporated in England and
Wales becomes a Borrower for the purposes of utilising the
Revolving Facility by delivering, or procuring the delivery to,
the Agent of an Accession Memorandum duly executed by the Company
and the Target or such other member of the Group (as the case may
be) together with the documents listed in the Tenth Schedule
(Documents to accompany Accession memorandum), in form and
substance reasonably satisfactory to the Agent.
5.3 Accession: Upon delivery of the documents referred to in
Clause 5.2 (Acceding Borrower), Target or, as the case may be,
the relevant other member of the Group shall, subject to the
terms and conditions of this Agreement, acquire all the rights
and assume all the obligations of a Borrower hereunder.
6. Rights and Obligations
6.1 Banks' Rights and Obligations: The rights and obligations
of each Bank hereunder are several.
6.2 Failure and Enforcement: The failure by a Bank to perform
its obligations hereunder shall not affect the obligations (i) of
any other Bank towards any Obligor or (ii) of any Obligor towards
any other party hereto nor shall any such other party be liable
for the failure by such Bank to perform its obligations
hereunder. Each Bank may, except as otherwise stated herein,
separately enforce its rights hereunder.
6.3 Borrowers' Rights and Obligations: The obligations of the
Borrowers hereunder are several.
PART 3
CANCELLATION AND PREPAYMENT
7. Cancellation
7.1 Voluntary: (i) The Company may at any time and from time
to time prior to the Revolving Facility Termination Date cancel
without penalty the whole or any part of the Revolving
Commitments of all the Banks by giving the Agent not less than
three business days' prior written notice to that effect
specifying the date and amount of the proposed cancellation
Provided that:
(a) any partial cancellation shall be a minimum amount of
5,000,000 pounds sterling and an integral multiple of 1,000,000
pounds sterling and shall reduce the Revolving Commitment of each
Bank rateably;
(b) no such cancellation shall become effective if as a result
thereof the Revolving Commitments would be reduced to an amount
which is less than the Revolving Outstandings; and
(c) any such cancellation shall reduce a pro rata proportion of
the limit of any Overdraft Facility.
(ii) The Company may at any time and from time to time prior to
the Term Facility Termination Date cancel without penalty the
whole or any part of the Tranche A Term Commitments and the
Tranche B Term Commitments of all the Banks by giving the Agent
not less than two business days' prior written notice to that
effect specifying the date and amount of the proposed
cancellation. Provided that any partial cancellation shall be in
a minimum amount of 5,000,000 pounds sterling and an integral
multiple of 1,000,000 pounds sterling and shall reduce the
Tranche A Term Commitment and/or, as the case may be, the Tranche
B Term Commitment of each Bank rateably.
7.2 Pursuant to Increased Costs: If the amount of any payment
to be made to or for the account of any Bank by an Obligor is, or
will be, increased under Clause 16.1 (Gross Up) or any Bank
claims indemnification from the Company under Clause 16.2 (Tax
Indemnity) or Clause 17 (Increased Costs) then the Company may,
at any time thereafter and by not less than one business days'
prior notice to the Agent cancel the Commitments of such Bank
whereupon such Bank shall cease to be obliged to make Advances
hereunder and its Commitment shall be reduced to zero (and if it
is an Overdraft Bank the net limit under the relevant Overdraft
Facility shall be reduced to zero).
7.3 Prepayment following Cancellation: If the Company gives a
notice of cancellation pursuant to Clause 7.2 (Pursuant to
Increased Costs), it shall at the same time and in the same
notice give notice to the Agent of the relevant Borrower's
intention to prepay (without penalty but subject to Clause 30.4
(Break Costs)) all outstanding Advances made by the relevant Bank
together with accrued interest thereon upon such date as may be
specified in such notice, which notice shall be irrevocable and
shall oblige the relevant Borrower to make the prepayments in
question without penalty on the date specified therein with all
other sums due from it under this Agreement in respect of the
Advances in question.
7.4 Notice Irrevocable: Each notice of cancellation given
pursuant to this Clause 7 shall be irrevocable and shall specify
the date upon which such cancellation is to take effect.
7.5 Bank's Cessation: If at any time:
(i) the Commitments of any Bank are cancelled or reduced to
zero; and
(ii) all Indebtedness owed to such Bank by any Obligor hereunder
has been finally satisfied in full; and
(iii) such Bank is under no further actual or contingent
obligation hereunder,
then such Bank shall (without prejudice to its existing rights
hereunder) cease to be a party hereto and a Bank for the purposes
hereof.
7.6 Cancellation of Term Facility: At close of business on the
Term Facility Termination Date, the Tranche A Term Commitment of
each Bank and the Tranche B Term Commitment of each Bank shall,
in each case, be (if it has not already been) cancelled and
reduced to zero.
7.7 Cancellation of Revolving Facility: At close of business on
the Revolving Facility Termination Date, the Revolving Commitment
of each Bank shall be (if it has not already been) cancelled and
reduced to zero.
7.8 Cancellation on lapse of Offers: If the Offer lapses or is
withdrawn the Commitments shall be automatically cancelled and
reduced to zero. If the Preference Share Offer lapses or is
withdrawn, the Tranche B Term Commitments shall be automatically
cancelled and reduced to zero.
8. Prepayment
8.1 Voluntary Prepayment: The Borrowers may prepay without
premium or penalty any Advance or any party of any Advance which
is a minimum of 5,000,000 pounds sterling and an integral
multiple of 1,000,000 pounds sterling, without penalty but
subject to Clause 30.4 (Break Costs), by giving the Agent not
less than three business days' prior written notice specifying
the date and amount of the proposed prepayment.
8.2 Notice Irrevocable: Each notice of prepayment given
pursuant to this Clause 8 shall be irrevocable and shall oblige
the relevant Borrower to make the prepayment in question on the
date specified therein together with all accrued interest on the
amount prepaid and any other sums then due from it under this
Agreement in respect of the Advances in question.
8.3 Re-borrowing: No Borrower may re-borrow any Tranche A Term
Advance or, as the case may be, any Tranche B Term Advance repaid
or prepaid. The Borrowers may, subject to the provisions of this
Agreement, re-borrow any Revolving Advance repaid or prepaid.
PART 4
UTILISATION PROCEDURES
9. Utilisation Requests
9.1 Delivery of Requests: Subject to the provisions hereof, a
Borrower (or, in the case of the Term Facility, the Company) may
utilise:
(i) the Revolving Facility by delivering a duly completed
Revolving Utilisation Request, in the form set out in Part A or
Part B of the Fifth Schedule (Form of Revolving Utilisation
Request) (as appropriate); and
(ii) the Term Facility by delivering a duly completed Term
Utilisation Request, in each case, in the form set out in Part B
of the Fifth Schedule (Form of Term Utilisation Request),
in each case by telefax or letter to the Agent by no later than
the specified time.
9.2 Revolving Utilisation Requests: Each Revolving Utilisation
Request delivered pursuant to Clause 9.1 (Delivery of Requests)
shall be irrevocable and shall specify:
(i) the proposed Utilisation Date, which shall be a business day
prior to the Final Maturity Date;
(ii) the Requested Amount (to be determined in accordance with
Clause 10 (Amount of Utilisation));
(iii) subject to Clause 9.4 (Selection of Periods) the Term
in question (being a period of one, two, three or six months or
such other duration as the relevant Borrower and the Banks may
agree or, being less than one month, as ends on the Final
Maturity Date) which will begin on the proposed Utilisation Date
and end on a business day which is or precedes the Final Maturity
Date;
(iv) the Repayment Date; and
(v) the account to which the proceeds of the proposed
Utilisation are to be paid.
9.3 Term Utilisation Requests: Each Term Utilisation Request
delivered pursuant to Clause 9.1 (Delivery of Requests) shall be
irrevocable and shall specify:
(i) the proposed Utilisation Date, which shall be a business day
on or prior to the Term Facility Termination Date;
(ii) whether the requested Term Advance is to be a Tranche A Term
Advance or a Tranche B Term Advance;
(iii) the Requested Amount (to be determined in accordance
with Clause 10 (Amount of Utilisation));
(iv) subject to Clause 9.4 (Selection of Periods) the first
Interest Period relating to the Advance in question, (being a
period of one, two, three or six months or such other duration as
the Company and the Banks may agree or as may end on the last day
of an Interest Period in Respect of Another Advance or, being
less than one month, as ends on the Final Maturity Date), which
will begin on the proposed Utilisation Date and end on a business
day which is or precedes the Final Maturity Date; and
(v) the account to which the proceeds of the proposed
Utilisation are to be paid.
9.4 Selection of Periods: The Borrowers shall during the period
ending four months after the date hereof select one month
Interest Periods and Terms ending on the same day or such other
periods ending on the same day as the Agent and the Company agree
as being necessary to permit the transfer of participations to be
effected following underwriting and/or syndication and, in any
event, select Interest Periods in respect of Term Advances
pursuant to Clauses 9.3 (Term Utilisation Requests) and 13
(Interest Periods) so that at no time shall there be more than
ten Tranche A Term Advances and Tranche B Term Advances
outstanding with Interest Periods ending on a different dates.
9.5 Specified Time: There is set out in the Fourth Schedule
(Timetable) a timetable of certain of the procedures provided for
in this Agreement. For the purposes of construing Parts 4 and 5,
any reference to a specified time shall be construed as a
referenced to the relevant time set forth in such timetable.
10. Amount of Utilisation: The Requested Amount to be specified
in a Utilisation Request delivered pursuant to Clause 9.1 shall
be an amount which is equal to or less than the Available
Revolving Facility, the Available Tranche A Term Facility or, as
the case may be, the Available Tranche B Term Facility and (if
less) is a minimum of 10,000,000 pounds and an integral multiple of
1,000,000 pounds.
11. Allocation Amongst Banks
11.1 Allocation of Revolving Advances: If and whenever, on the
occasion of a Utilisation, the Banks are required to make
Revolving Advances, the aggregate principal amount of the
Revolving Advances to be so made shall be allocated to, and
apportioned among, the Banks rateably to their respective
Available Revolving Commitments at such time.
11.2 Allocation of Tranche A Term Advances: If and whenever, on
the occasion of a Utilisation, the Banks are required to make
Tranche A Term Advances, the aggregate principal amount of the
Tranche A Term Advances to be so made shall be allocated to, and
apportioned among, the Banks rateably to their respective Tranche
A Available Term Commitments at such time.
11.3 Allocation of Tranche B Term Advances: If and whenever, on
the occasion of a Utilisation, the Banks are required to make
Tranche B Term Advances, the aggregate principal amount of the
Tranche B Term Advances to be so made shall be allocated to, and
apportioned among, the Banks rateably to their respective Tranche
B Available Term Commitments at such time.
11.4 Obligation to Lend: Each Bank shall, subject to the terms
hereof, be obliged, through its Facility Office, to make an
Advance on the Proposed Utilisation Date in an aggregate
principal amount equal to the amount allocated to it pursuant to
this Clause 11.
11.5 Agent's Notification: The Agent shall not later than the
specified time notify each Bank of the aggregate principal amount
allocated to it pursuant to this Clause 11.
PART 5
THE ADVANCES
12. Making of Advances
12.1 Making of Advances: If the Agent notifies any Bank in
accordance with Clause 11.5 (Agent's Notification") that it is to
make any Advance, and, subject to Clauses 12.2 (Certain Funds)
and 24.4 (Clean-up Period), if on the proposed Utilisation Date
relating to such an Advance:
(i) the representations deemed repeated pursuant to Clause 21.5
(Repetition) are, except in the case of a Rollover Utilisation
and except to any extent waived in writing in accordance with
Clause 40 (Remedies, Waives and Amendments), true and correct in
all material respects; and
(ii) no Event of Default or, (except in the case of a Rollover
Utilisation) Potential Event of Default has occurred and is
continuing, other than any waived in writing in accordance with
Clause 40 (Remedies, Waives and Amendments),
then, on such Utilisation Date, such Bank shall make such Advance
through its Facility Office to the relevant Borrower.
12.2 Certain Funds: Subject to Clause 24.4 (Clean-up Period), to
ensure that Bidco has resources available to fulfil its
obligations under the Offer the Banks agree that in relation to
(a) any Tranche A Term Advance and any Tranche B Term Advance
requested during the Certain Funds Period for the purposes
specified in Clause 3.2 (Purpose of Tranche A Term Facility) or
3.3 (Purpose of Tranche B Term Facility) and (b) any Revolving
Advance requested during the Certain Funds Period for the purpose
specified in Clause 3.4(i) (Purpose of Revolving Facility):
(i) paragraph (i) of Clause 12.1 (Making of Advances) shall only
be applicable to the representations in Clause 21.1.1 (Status),
21.1.2 (Powers), 21.1.3 (Authorisations and Consents), 21.1.4
(Non-Violation etc.) and 21.1.5 (Obligations Binding); and
(ii) paragraph (ii) of Clause 12.1 (Making of Advances) shall
only be applicable to the extent that an Event of Default has
occurred which is continuing under Clauses 24.1.6 (Insolvency),
24.1.7 (Moratorium), 24.1.8 (Administrator) or 24.1.10 (Winding-
up), in respect of any Obligor.
13. Interest Periods
13.1 Periods: The period for which a Term Advance is outstanding
shall be divided into successive Interest Periods each of which
(other than the first) shall start on the last day of the
preceding such period.
13.2 Duration: The direction of each Interest Period shall, save
as otherwise provided herein, be one, two, three or six months
(or such other duration as the relevant Borrower, the Banks and
the Agent any agree or (subject to Clause 9.4 (Selection of
Periods)) as may end on the day of an Interest Period in respect
of another Advance or, being less than one month, as ends on the
Final Maturity Date) in each case as the relevant Borrower may by
notice to the Agent by no later than the specified time select
Provided that if the relevant Borrower fails to give such notice
of its selection in relation to an Interest Period, the duration
of that Interest Period shall be three months, and that if such
Interest Period would otherwise fall after the Final Maturity
Date it shall be of such direction as shall end on the Final
Maturity Date.
14. Interest
14.1 On Term Advances: On the last day of each Interest Period
(and if such Interest Period is of more than six months duration
on the expiry of each period of six months during such Interest
Period) the Company shall pay accrued interest on the Term
Advance to which such Interest Period relates.
14.2 On Revolving Advances: On the Repayment Date (and on the
expiry of each period of six months during the Term of any
Revolving Advance) relating to each Revolving Advance the
relevant Borrower shall pay accrued interest on the Revolving
Advance.
14.3 Rate: The rate of interest applicable to an Advance made by
a Bank from time to time during an Interest Period relating to
such Advance or, as the case may be, the Term of such Advance
shall, subject to Clause 20 (Market Disruption), be the rate per
annum determined by the Agent to be the sum of:
(i) LIBOR for such Interest Period or, as the case may be, Term;
(ii) the applicable Margin; and
(iii) the Associated Costs Rate applicable thereto.
14.4 Notification of Rates: The Agent shall promptly notify the
relevant Borrower and the Banks of each determination of LIBOR
and Associated Costs Rate made by it pursuant to Clause 14.3
(Rate) and of any change to the Margin from time to time.
15. Repayment
15.1 Repayment of Revolving Advances: The relevant Borrower
shall repay each Revolving Advance in full on the Repayment Date
relating thereto. Any amount so repaid shall remain available
for reborrowing on the terms and conditions of this Agreement.
15.2 Repayment of Term Advances: The Company shall repay each
Term Advance in full on the Final Maturity Date.
15.3 Repayment and Prepayment: No Borrower shall prepay or repay
all or any part of any Advance except at the times and in the
manner expressly provided herein.
PART 6
CHANGE IN CIRCUMSTANCES
16. Taxes
16.1 Gross-up: Each payment to be made by an Obligor to any
Person hereunder shall be made free and clear of and without
deduction for or on account of United Kingdom Tax unless such
Obligor is required by law to make such a payment subject to the
deduction or withholding of such Tax, in which case the sum
payable by such Obligor in respect of which such deduction or
withholding is required to be made shall (subject as provided in
this Clause) be increased to the extent necessary to ensure that,
after the making of such 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.
16.2 Tax Indemnity: Without prejudice to the provisions of
Clause 16.1 (Gross-up), if any Bank, or the Agent on such Bank's
behalf, is required by law to make any payment on account of
United Kingdom Tax (other than Tax on Overall Net Income) or
otherwise on or in relation to any sum received or receivable by
such Bank or the Agent on such Bank's behalf hereunder, or any
liability (other than Tax on Overall Net Income) in respect of
any such payment is imposed, levied or assessed against such Bank
or the Agent on such Bank's behalf, the Company will (subject as
provided in this Clause), on demand by the Agent, indemnify such
Bank against such payment or liability together with any
interest, penalties and expenses payable or incurred in
connection therewith.
16.3 Tax Credits: If any Obligor makes a payment pursuant to
Clause 16.1 (Gross-up) or 16.2 (Tax Indemnity) for the account of
any Person and such Person determines in its sole discretion 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 under Clause 16.1 (Gross-up) or the payment or
liability under Clause 16.2 (Tax Indemnity) 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 Obligor such amount
as such Person shall have determined in its absolute discretion
to be attributable to such deduction or withholding under Clause
16.1 (Gross-up) or the payment or liability under Clause 16.2
(Tax Indemnity) and which will leave such Person (after such
payment) in no better or worse position that it would have been
in if such Obligor had not been required to make such deduction
or withholding under Clause 16.1 (Gross-up) or there had been no
payment or liability under Clause 16.2 (Tax Indemnity) 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 thereof.
16.4 Tax Exceptions: If any Bank:
(i) is not or ceases to be a Qualifying Lender; and
(ii) as a result an Obligor is required to deduct or withhold
United Kingdom income tax in respect of payments of interest to
be made by such Obligor to that Bank under this Agreement or such
Bank is required to make any payment on account of Tax as
mentioned in Clause 16.2 (Tax Indemnity),
then such Obligor shall not be liable to pay to such Bank under
Clause 16.1 (Gross-up) or 16.2 (Tax Indemnity) any amount in
excess of the amount it would have been obliged to pay if such
Bank had not ceased to be a Qualifying Lender Provided that this
Clause 16.4 shall not apply and such Obligor shall be obliged to
company with its obligations under Clauses 16.1 (Gross-up) and
16.1 (Tax Indemnity) if after the date hereof;
(a) there shall have been any change in, or in the
interpretation or application of, any relevant law or the
practice of the United Kingdom Inland Revenue and as a result
thereof the Bank ceases to be a Qualifying Lender; or
(b) the Bank has transferred its Facility Office in respect of
the Facility outside the United Kingdom or has become a Bank
hereunder with a Facility Office in respect of the Facility, in
each case, with the consent of the Company pursuant to Clause 19
(Mitigation).
16.5 Tax Certificate: A Bank intending to make claim pursuant to
Clause 16.2 (Tax Indemnity) shall, promptly after such Bank
becomes ware of the circumstances giving rise to such claim,
deliver to the Company through the Agent a certificate to that
effect specifying the amount of such claim and setting out in
reasonable detail the basis of such claim, provided that nothing
shall require such Bank to disclose any confidential information
relating to the organisation of its affairs.
16.6 Tax Representations: Each Bank represents to the Company
and the Agent that on the date it becomes a party hereto it is a
Qualifying Lender. If at any time after such date any such Bank
is aware that it is, or will become, unable to make that
representation (for whatever reason), it shall promptly notify
the Company and the Agent.
17.1 Increased Costs: If by reason of the introduction after the
date hereof of any, or any change after the date hereof in any,
law, rule or regulation or in its interpretation or
administration and/or compliance with any future request from or
requirement of any central bank or other fiscal, monetary or
other authority (whether or not having the force of law but if
not having the force of law only if compliance is in accordance
with the general practice of Persons to whom it is intended to
apply);
(i) a Bank or any holding company of such Bank incurs a costs
(including the cost of complying with any reserve, special
deposit, liquidity, cash or other requirement) as a result of
such Bank having entered into and/or performing its obligations
under this Agreement and/or assuming or maintaining its
Commitments (if any) under this Agreement and/or its having
outstanding to it one or more Advances or unpaid sums hereunder;
or
(ii) a Bank or any holding company of such Bank is unable to
obtain the rate of return on its capital which it would have been
able to obtain but for such Bank entering into or assuming or
maintaining is Commitment or performing its obligations under
this Agreement; or
(iii) there is any increase in the cost to a Bank or any
holding company of such Bank of funding or maintaining all or any
of the advances comprised in a class of advances formed by or
including the Advances or to be made by such Bank hereunder,
then the Company shall fro time to time within five business days
of demand by the Agent, pay to the Agent for the account of that
Bank amounts equal to, as the case may be:
(a) such cost or
(b) such reduction in the rate of return of capital; or
(c) such increased cost (or such proportion of such increased
cost as is attributable to its funding or maintaining advances
hereunder).
17.2 Increased Costs Certificate: A Bank intending to make a
claim pursuant to Clause 17.1 (Increased Costs) shall, promptly
after such Bank becomes aware of the circumstances giving rise to
such claim, deliver to the Company through the Agent a
certificate to that effect specifying the event by reason of
which it is entitled to make such a claim and the amount of such
claim and setting out in reasonable detail the basis of such
claim, provided that nothing shall require such Bank to disclose
any confidential information in relation to the organisation of
its affairs.
17.3 Increased Costs Exceptions: Notwithstanding the foregoing
provisions of Clause 17, no Bank shall be entitled to make any
claim under this Clause 17, in respect of:
(i) any cost, reduction or increased cost as is referred to in
Clause 17.1 (Increased Costs) to the extent that the same is
intended to be compensated for by the Associated Costs Rate; or
(ii) any matter in respect of which the Bank is entitled to be
compensated under any other provision hereof (or would have been
so entitled but for the operation of Clause 16.4 (Tax
Exceptions)); or
(iii) any cost, reduction or increased cost which results
from the implementation, as contemplated on the date of this
Agreement, of the matters set out in the July 1988 report of the
Basle Committee on Banking Regulations and Supervisory Practices
entitled "International Convergence of Capital Measurement and
Capital Standards", the Directive of the Council of the European
Communities on a Solvency Ratio for Credit Institutions
(89/647/EEC of 18 December 1989) and/or the Directive of the
Council of the European Communities on Own Funds of Credit
Institutions (89/299/EEC of 17 April 1989) or any other Directive
in force at the date hereof, unless it results from any change
after the date of this Agreement in, or in the interpretation or
applicable of, such matters as contemplated on the signing of
this Agreement; or
(iv) any cost, reduction or increased cost attributable to such
Bank, or its holding company, having entered into a commitment to
a lend to a third party which is at the time of such commitment
in breach of the relevant law, rule, regulation, request or
requirement; or
(v) any cost which is, or is attributable to, any Tax on Overall
Net Income of a Bank or of any of its holding companies (or Tax
on Overall Net Income of a division or branch of the Bank or any
of its holding companies).
18. Illegality
If at any time it is unlawful, or contrary to any request from or
requirement of any fiscal, monetary or other authority 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 then that Bank shall,
promptly after becoming aware of the same, deliver to the Company
through the Agent a certificate to that effect and, unless such
illegality is avoided in accordance with Clause 19 (Mitigation):
(i) such Bank shall not thereafter be obliged to make Advances
and the amount of its Commitments shall be reduced to zero;
and/or
(ii) each Borrower may, and if the Agent, on behalf of such Bank,
so requires, shall on such date as such Bank shall have specified
(being the latest date by which the relevant law requires that
the same be repaid) repay the outstanding Advances made by such
Bank to it together with accrued interest thereon.
19. Mitigation
If, in respect of any Bank circumstances arise which would or
would upon the giving of notice result in:
(a) the reduction of its Commitment to zero pursuant to Clause
18 (Illegality) pr or
(b) an increase in the amount of any payment to be made to it
for its account pursuant to Clause 16.1 (Gross-up); or
(c) a claim for indemnification pursuant to Clause 16.2 (Tax
Indemnity) or Clause 17 (Increased Costs),
then, without in any way limiting, reducing or otherwise
qualifying the rights of such Bank or the obligation of any
Obligor under any of the Clauses referred to above:
(i) such Bank shall promptly upon becoming aware of the same
notify the Agent thereof and, in consultation with the Agent and
the Company and to the extent that it can do so without prejudice
to its own position, take reasonable steps to mitigate the
effects of such circumstances including the transfer (with the
prior approval of the Company) of its Facility Office or the
transfer of its rights and obligations hereunder to another
financial institution acceptable to the Company and willing to
participate in the Facilities Provided that such Bank shall be
under no obligation to take any such action if, in the opinion of
such Bank, to do so would or might have any adverse effect upon
its business, operations or financial condition; and
(ii) the Agent and the Banks shall, upon request of the Company,
enter into negotiations in good faith with the Company in order
to consider what action, if any, can be taken with a view to re-
arranging the Facilities on a basis which will mitigate the
effects of such circumstances,
Provided that in no event shall any Bank be required under this
Clause 19 to attempt to find a way to mitigate the effects of any
such circumstances for a period in excess of 30 days from the
date of its notice to the Agent pursuant to paragraph (i) above
and nor shall the Banks or the Agent be required to continue
negotiations under paragraph (ii) above for a period in excess of
30 days from the date of the Company's request under paragraph
(ii) above.
20. Market Disruption
20.1 Market Disruption: If, in relation to any Utilisation
Request or Interest Period, the Agent is unable (subject to
Clause 38.2 (No Quotations)) to make any determination of LIBOR
required to be made by it pursuant to this Agreement by reason of
the failure of the Reference Banks to supply the necessary
quotations, then the Agent shall prompt notify the Company and
the Banks of such event and any relevant Utilisation shall
proceed and the amount of interest payable in respect of any such
Advance during the relevant term of such Advance or the relevant
Interest Period shall be determined in accordance with the
following provisions of this Clause 20 (Market Disruption).
20.2 Negotiation: The Agent (on behalf of and after consultation
with the Banks) shall promptly after giving the notice referred
to in Clause 20.1 (Market Disruption), negotiate in good faith
with the Company with a view to agreeing an alternative basis for
calculating the interest payable on the relevant Advance for the
relevant period.
20.3 Alternative Basis: If such an alternative basis as is
mentioned in Clause 20.2 (Negotiation) is so agreed in writing by
the Agent (on behalf of and with the consent of an Instructing
Group) and the Company, it shall take effect in accordance with
its terms.
20.4 Cost of Funds: If such alternative basis is not agreed
pursuant to Clause 30.2 (Negotiation), any such Advance as is
mentioned in Clause 20.1 (Market Disruption) shall bear interest
from time to time at the rate per annum determined by the Agent
to be the sum of:
(i) the weighted average cost (including the Associated Costs
Rate) to the Banks in that Instructing Group (each such Bank's
cost being certified by it to the Company with a copy to the
Agent and expressed as a rate per annum), of funding such Advance
for the relevant period from whatever source each such Bank may
reasonably select; and
(ii) the applicable Margin.
20.5 Consultation: The agent (on behalf of all the Banks) agrees
to consult with the Company at least once every 30 days after the
occurrence and during the continuance of the circumstances
specified in the foregoing provisions of this Clause 20 with a
view to reverting to the normal provisions for the determination
of the rates of interest applicable to any Advance hereunder.
PART 7
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
21. Representations
21.1 Obligors: Each Obligor represents as follows:
21.1.1 Status: It is a company duly incorporated under the
Companies Act 1985 and has the power and authority to own its
Assets and to conduct the business which it conducts and/or
proposes to conduct;
21.1.2 Powers: It has the power to enter into, exercise its
rights and perform and comply with its obligations under the
Finance Documents to which it is a party;
21.1.3 Authorisation and Consents: All action, conditions and
things required by the laws of England or the terms of any
License or Licence Undertaking to be taken, fulfilled and done
(including the obtaining of any necessary Consents, the making of
registrations and the like) to which it is a party in order:
(i) to enable it lawfully to enter into, exercise its rights and
perform and comply with its obligations under the Finance
Documents to which it is a party;
(ii) to ensure that those obligations are valid, legally binding
and enforceable;
(iii) to ensure that those obligations rank and will at all
times rank in accordance with Clause 23.1 (Ranking of
Obligations); and
(iv) to make each Finance Document admissible in evidence in the
courts of England,
have been taken, fulfilled and done;
21.1.4 Non-Violation etc.: Its entry into, exercise of its
rights and/or performance of or compliance with its obligations
under the Finance Documents do not and will not violate, or
exceed any borrowing or other power or restriction granted or
imposed by:
(i) any law to which it is subject or any Licence of Licence
Undertaking; or
(ii) its Memorandum or Articles of Association or result in the
existence of, or oblige it to create, any Security over its
Assets other than under the Finance Documents themselves; or
(iv) (to an extent or in a manner which has or is likely to have
a Material Adverse Effect) any agreement to which that Obligor or
any of its subsidiaries is a party or by which any of its or
their assets is bound (other than a financing agreement to which
the Target or any subsidiary of the Target is a party and the
Indebtedness in respect of which is refinanced prior to the
Clean-Up Date.
21.1.5 Obligations Binding: Its obligations under the Finance
Documents are valid, legally binding and enforceable.
21.2 Company: The Company represents as follows:
21.2.1 No Default: No Event of Default or Potential Event of
Default has occurred and is continuing which has not been
remedies or waived;
21.2.2 Existing Security: No Security exists on or over any
member of the Group's Asses except as permitted by Clause 23.2
(Negative Pledge);
21.2.3 Litigation: So far as it is aware, no litigation,
arbitration or administrative proceeding is current:
(i) to restrain the entry into, exercise of any of its rights
under an/or performance or enforcement of or compliance with any
of its obligations under the Finance Documents; or
(ii) which has or is likely to have a Material Adverse Effect;
21.2.4 Winding-up: No meeting has been convened for the
winding-up or administration of the Company or Bidco, no such
step is intended by it and, so far as it is aware, no petition,
application or the like is outstanding for the winding-up or
administration of it or Bidco;
21.2.5 Full Disclosure: (Save for any information contained
in any Information Memorandum) the written material factual
information supplied by any member of the Group (whilst a member
of the Group) to the Arranger, the Agent or the Banks in
connection herewith whether before or after the date hereof is
true and accurate in all material respects at the time of being
supplied and it is not aware of any material facts or
circumstances that have not been disclosed to the Arranger, the
Agent and the Banks the failure to disclose which would result in
such information being misleading in any material respect;
21.2.6 Additional Financial Information: Any projections
delivered to the Agent prior to the date hereof and initialed by
the Company and the Agent for the purpose of identification were
arrived at after careful consideration and were based on
reasonable assumptions;
21.2.7 Information Memorandum: (This representation and
warranty is given only upon issue and approval by the Company of
an Information Memorandum.) All material factual information
contained in the Information Memorandum was true (or, in the case
of information provided by any Person other than the Company or
its advisors, was true to the best of its knowledge and belief)
in all material respects at the date (if any) ascribed thereto in
the Information Memorandum or (if none) at the date of the
relevant component of the Information Memorandum. Any and all
expressions of opinion or intention and any forecasts and
projections contained in the Information Memorandum were arrived
at after careful consideration and were based on reasonable
assumptions, and the Information Memorandum, taken as a whole, as
of its date was not misleading in any material respects and did
not omit to disclose any matter failure to disclose which would
result in any material information contained in the Information
Memorandum being misleading in any material respect in the
context of this Agreement;
21.2.8 Public Information: The Press Release and Offer
Document and any other public documents relating to the Offer and
the Preference Share Offer furnished to the Agent, contain all
the material terms of the Offer and the Preference Share Offer
and the Offer Document reflects the terms of the Press Release in
all material aspects; and
21.2.9 Ownership of Bidco: Bidco is a wholly-owned subsidiary
of the Company.
21.3 Clean-up Representations: On the Clean-up Date the Company
represents as follows:
21.3.1 Default: Neither the Company nor any Material
Subsidiary is in breach of or in default under any agreement to
which it is party or which is binding on it or any of its Assets
to an extent or in a manner which has or is likely to have a
Material Averse Effect;
21.3.2 Environmental Matters:
(i) It and the Material Subsidiaries have obtained any and all
material requisite Environmental Licences required for the
carrying on of its business as currently conducted and are in
compliance in all material respects with (A) the terms and
conditions of such Environmental Licences and (B) all other
applicable Environmental Law which in each case, if not obtained
or complied with, would have a Material Adverse Effect, and there
are to its knowledge no circumstances which may prevent or
interfere with such compliance in the future;
(ii) So far as it is aware (after due enquiry) no Dangerous
Substance has been used, disposed of, generated, stored,
transported, dumped, released, deposited, buried or emitted at,
on, from or under any site or premises (whether or not owned,
leased, occupied or controlled by it or any of its subsidiaries
and including any offsite waste management or disposal location
utilised by it or any such subsidiary) in circumstances where
this would be likely to result in the imposition of a liability
on it which would have a Material Adverse Effect; and
(iii) So far as it is aware (after due enquiry) there is no
Environmental Claim (whether in respect of any site previously or
currently owned or occupied by any member of the Group or
otherwise) pending or threatened, and there are no past or
present acts, omissions, events or circumstances that would be
likely to form the basis of any Environmental Claim (whether in
respect of any site previously or currently owned or occupied by
any member of the Group or otherwise), against it which in each
case is reasonably likely to be determined against it and which
if so decided would have a Material Adverse Effect;
21.4 No Commitment: The Company further represents at the first
Utilisation Date that save as arises under the Transaction
Documents and/or in consequence of or, in connection with, the
Offer or the Preference Share Offer and save also for Offer
Costs, neither the Company nor Bidco has material commitments or
Indebtedness;
21.5 Repetition: Subject to Clause 12.2 (Certain Funds), each of
the representations in Clauses 21.1 (Obligors), 21.2 (Company)
and 21.3 (Clean-up Representations) shall (after first being
made) be deemed to be repeated on the date on which each
Utilisation Request is delivered hereunder, on each Utilisation
Date and the first date of each Interest Period by reference to
the facts and circumstances then existing Provided that:
(a) the representation set out in Clause 21.2.7 (information
Memorandum) shall be made only on the date of issue and approval
by the Company of any Information Memorandum; and
(b) the representations and warranties set out in Clauses 21.2.1
(No Default), 21.2.3 (Litigation), 21.2.5 (Full Disclosure)
insofar as it applied to information supplied prior to the date
hereof and 21.2.8 (Public Information) shall not be repeated
after the first Utilisation Date.
21.6 Qualifications to Representations: The representations in
Clauses 21.1.3 (Authorisation and Consents) and 21.1.5
(Obligations Binding) shall (where applicable) be subject, as to
matters of law only, to the qualifications that enforcement may
be limited by laws of general application relating to or
affecting the rights of creditors and general principles of
equity that the undertakings and indemnities given by the Company
in Clause 32.3 (Stamp Taxes) may be void under Section 117 of the
Stamp Act 1891 and that interest provided for under Clause 30
(Default Interest and Indemnity) may not be recoverable if it
amounts to a penalty.
22. Information
The Company undertakes that, so long as any sum remains to be
lent or remains payable under this Agreement:
22.1 Preparation of Accounts: It will ensure that all accounts
to be delivered by it under this Agreement are prepared and
audited (in the case of its annual accounts) in accordance with
the Companies Act 1985 and with accounting principles, standard
and practices generally accepted in the United Kingdom at the
date hereof (and which are consistent with those applied in the
preparation of the Original Financial Statements) subject to any
variations thereto which are not material or, if material, have
been agreed tin writing by an Instructing Group.
22.2 Audited/Annual Accounts. To the extent permitted by law or
generally accepted accounting principles, as soon as available
and in any event within 120 days after the end of each of its
financial years (beginning with the current one), it will deliver
to the Agent enough copies for the Banks of its annual report and
audited accounts (both consolidated and unconsolidated) as at the
end of and for that financial year, together with copies of the
related directors' and auditors' reports.
22.3 Semi-Annual and Quarterly Information. As soon as available
and in any event within 60 days after the end of each half year
and within 45 days after the end of each quarter (other than a
quarter ending in December for which the period shall be extended
to 90 days after the end of that quarter) of each of its
financial years (beginning with the first such period to end
after the Unconditional Date), it will deliver to the Agent
enough copies for the Banks of its unaudited accounts (both
consolidated and unconsolidated) as at the end of and for the
relevant half year and quarter.
22.4 Regulated Accounts: At the same time as delivered to the
Director General pursuant to Condition 2 of Part II of the
Licence, it will deliver to the Agent enough copies for the Banks
of the accounting statements delivered to the Director General.
22.5 Information to Creditors: At the same time as sent to its
creditors generally, it will deliver to the Agent enough copies
for the Banks of Any circular, document or other written
information sent to its creditors as such.
22.6 Events of Default: It will notify the Agent of the
occurrence of any Event of Default or any Potential Event of
Default (and of any action taken or proposed to be taken to
remedy it) promptly after becoming aware of it.
22.7 Compliance with Financial Ratios: With each set of accounts
delivered by it under Clause 22.2 (Audited/Annual Accounts) and
22.3 (Semi-Annual and Quarterly Information), the Company will
deliver to the Agent a certificate signed by a director of the
Company.
22.7.1 confirming compliance with Clause 23.9 (Financial
Ratios) as at the end of the Relevant Period; and
22.7.2 setting out in reasonable detail and in a form
satisfactory to the Agent the computations necessary to
demonstrate such compliance.
22.8 Other Information: It will deliver to the Agent for
distribution to the Banks such other information relating to the
Group's business and financial condition as the Agent (or any
Bank through the Agent) may from time to time reasonably request.
22.9 Change in Basis: If, at any time after the date hereof, any
material changes are made to generally accepted accounting
principles (the "Existing Basis") then the Company shall notify
the Agent of such change and, in the absence of any agreement
between the Company and the Agent (acting on the instructions of
an Instructing Group) to the contrary, the Company shall ensure
that the auditors for the time being of the Company provide a
description of such change and the adjustments which would be
required to be made to the financial statements so that such
financial statements reflect the Existing Basis and any reference
in this Agreement to financial statements delivered hereunder
shall be construed as a reference to such financial statements as
adjusted to reflect the Existing Basis.
22.10 Auditors: Its annual financial statements will be
audited by an independent firm of public accounts of
international standing.
22.11 Accounting Reference Date: It will not change its
accounting reference date (or that of its subsidiaries) from 31
March without the prior written consent of the Agent (not to be
unreasonably withheld or delayed).
22.12 Documents: The Articles of Association of the Company
and the Shareholders' Agreement will together with any other
public documents furnished to the Agent contain all the material
terms of the agreements and arrangements between the Shareholders
and the Company (and between the Shareholders and any other
member of the Group) relating to the Company.
22.13 Other Notification: It will deliver to the Agent in
sufficient copies for each of the Banks:
(i) promptly after becoming aware of the same being instituted
or threatened, details of any litigation, arbitration or
administrative proceedings involving it or any of its
subsidiaries which, if adversely determined, would have a
Material Adverse Effect or which would involve liability or
potential liability or alleged liability in excess of 10,000,000
pounds sterling or its equivalent in other currencies or which
involves the Director General, the Secretary of State, any
Licence held by any member of the Group or any Licence
Undertaking;
(ii) during the period from the date of issue and approval of any
Information Memorandum by the Company to the earlier of (A) the
date three months thereafter, and (B) the close of underwriting
and syndication of the Facilities as determined and confirmed to
the Company by the Agent, the Company will notify the Facility
Agent in reasonable detail of any mattes of which it is aware
(whether occurring prior to or after the date of approval and
issue of any Information Memorandum) which cause any Information
Memorandum when read without knowledge of such matters to be
inaccurate or misleading in any materials respect; and
(iii) promptly upon being aware that any material
modifications to the Licence are being proposed by the Director
General or the Target and/or that any Licence Undertaking is
being requested by the Director General or the Secretary of
State, reasonable details thereof, to be updated from time to
time to reflect any changes.
23. Undertakings
The Company (and, in the case of Clause 23.21 (The Offer) Bidco)
undertakes that, so long as any sum remains to be lent or remains
payable under this Agreement:
23.1 Ranking of Obligations: The payment of obligations of each
Obligor under this Agreement rank and will at all times rank at
least equally and rateable in all respects with all its other
unsecured Indebtedness except for such unsecured Indebtedness as
would be mandatorily preferred by law.
23.2 Negative Pledge: It will not, and will ensure that no other
member of the Group will, create any Security on or over its
Assets except for:
23.2.1 any Security created under or in connection with or
arising out of any pooling and settlement agreements (including,
but without limitation, the Pooling and Settlement Agreement) or
pooling and settlement arrangements of the electricity supply
industry or any transactions or arrangements entered into in
connection with the management of risks relating thereto;
23.2.2 liens arising solely by operation of law or by order of
a court or tribunal (or by an agreement) of similar effect in the
ordinary course of business of any member of the Group;
23.2.3 pledges of goods, the related documents of title and/or
other related documents arising or created in the ordinary course
of its business as security only for Indebtedness to a bank or
financial institution directly relating to the goods or documents
on or over which that pledge exists;
23.2.4 Security arising out of title retention or conditional
sale provisions in a supplier's standard conditions of supply of
goods acquired by any member of the Group in the ordinary course
of its business;
23.2.5 any Security existing at the time of acquisition on or
over any Asset acquired by any member of the Group after the date
of this Agreement and not created in contemplation of or in
connection with that acquisition Provided that the principal
amount secured thereby is not subsequently increased and such
Security is discharged within 180 days after that time of
acquisition;
23.2.6 in the case of a Person which becomes a member of the
Group after the date of this Agreement any Security existing on
or over its Assets when it becomes a member of the Group and not
created in contemplation of or in connection with it becoming a
member of the Group Provided that the principal amount secured
thereby is not subsequently increased and such Security is
discharged within 180 days after the date the relevant Person
becomes a member of the Group;
23.2.7 any Security on credit balances of any member of the
Group with a bank or similar financial institution created in the
ordinary course of such member's banking arrangements in order to
facilitate the netting of debit and credit balance of such member
and/or any other member of the Group;
23.2.8 any Security created after the date of this Agreement
in respect of Indebtedness incurred for the sole purpose of
refinancing the Facilities in full;
23.2.9 any Security created by a Project Finance Subsidiary or
over the shares in a Project Finance Subsidiary securing Project
Finance Indebtedness;
23.2.10 any other Security created or outstanding with the prior
consent of an Instructing Group; and
23.2.11 any other Security created or outstanding on or over
Assets of any member of the Group provided that the aggregate
outstanding principal, capital or nominal amount secured by all
Security created or outstanding under this exception on or over
Assets of members of the Group must not at any time exceed
50,000,000 pounds or its equivalent.
23.3 Disposals:
23.3.1 The Company will procure that Bidco will not sell,
transfer or otherwise dispose of or cease to exercise control
over any of the Shares in Target acquired by it.
23.3.2 The Company will not and will ensure that no other
member of the Group will, sell, transfer, lease out or otherwise
dispose of (whether in a single transaction or in a series of
transactions) all or substantially all of its Assets or of any
part of its Assets.
23.3.3 The following disposals shall (if made on arm's length
terms) not be taken into account under Clause 23.3.2:
(i) disposals in the ordinary course of business;
(ii) disposals on normal commercial terms of obsolete Assets or
Assets which are no longer required for the carrying on of the
business for which they were used;
(iii) the payment of cash as consideration for the
acquisition of any Asset;
(iv) the temporary application of funds no immediately required
in the relevant Person's business in the purchase or making of
short-term investments, or the realisation of such investments;
(v) the disposal of Assets by any member of the Group to another
member of the Group in which the Company owns directly or
indirectly a corresponding percentage of the ownership interest;
(vi) other disposals of Assets which are integral to the
distribution and supply of electricity activities of the Group
("Core Assets") to the extent that the value of the Core Assets
disposed of during any financial year of the Company is less than
20,000,000 pounds and in this exception the value of any Core Assets
disposed of shall be the value thereof as included in the audited
consolidated balance sheet of the Company as at the end of the
relevant financial year or, in the case of a Core Asset which was
not taken into account for the purposes thereof, its book value
at the date of disposal;
(vii) other disposals of Assets not referred to in Clause
23.3(vi) ("non-core Assets") to the extent that the value of the
non-core Assets disposed of during any financial year of the
Company is less than 50,000,000 pounds sterling and in this
exception the value of any non-core Assets disposed of shall be
the value thereof as included in the audited consolidated balance
sheet of the Company as at the end of the relevant financial
year, or in the case of a non-core Asset which was not taken into
account for the purposes thereof, its book value at the date of
disposal;
(viii) disposals of receivables on arm's length terms up to a
maximum value of 100,000,000 pounds at any time and in excess of that
amount provided that the net proceeds of any such excess
disposals shall be applied in accordance with this Agreement in
or towards prepayment of Term Advances; and
(ix) any other disposal to which an Instructing Group shall have
agreed.
23.4 Business Activities: It will not, and will ensure that no
other member of the Group will carry on any business other than
those conducted on the date hereof or those which are usual for
electricity companies in the United Kingdom as at the date hereof
including, without limitation, electricity, distribution, supply
and generation, electrical goods retailing and business
activities related to the gas, telecommunications and water
industries
23.5 Restriction on Distributions: It will only declare,
recommend, make or pay any dividend, distribution or payment
(including by way of redemption, repurchase, defeasance,
retirement, return or repayment) to any of its Shareholders or
make any payment (including by way of redemption, repurchase,
defeasance, retirement, return or repayment) in respect of any
Subordinated Debt if there exists no Event of Default or material
Potential Event of Default and no such Event of Default or
material Potential Event of Default will result from the making
of such dividend, distribution or payment and either:
(i) the ratio of Net Debt to Capitalisation of the Group
(calculated on the basis set out in Clause 23.9 (Financial
Ratios) at that time is 60% or less and EBITDA of the Group is
not less than 2.4 times Net Interest Payable (calculated on the
basis set out in such Clause 23.9 (Financial Ratios)) and it will
continue to be in compliance with such financial ratios after
making or paying any such dividend, distribution or payment; or
(ii) (if it is not in compliance with the financial ratios
set out in Clause 23.5(i) above) at such time its long
term corporate debt rating is BBB with Standard & Poors
Rating Group and Baa2 with Moody's Investors Service,
Inc.,
Provided that nothing in this Clause 23.5 shall prohibit the
payment to Shareholders of amounts due for goods and/or
services received or provided in the ordinary course of
business.
23.6 Restriction on Borrowings: The Company will procure that
the aggregate Borrowings of the Target and its subsidiaries
taken together on a consolidated basis and giving effect to
the proviso to the definition of Borrowings plus (to the
extent not otherwise included in Borrowings of the Target
and/or its subsidiaries) the amount of any actual or
contingent liability of the Target and/or its subsidiaries
(1) for Borrowings at that time of any Person in which the
Target or any of its subsidiaries has an ownership interest,
or (2) to provide funds by loan, subscription for share
capital or otherwise to any person in which the Target or
any of its subsidiaries has an ownership interest, will not
exceed the sum of the following:
(A) the outstanding principal amount from time to time of
any Utilisation of the Revolving Facility and the
Overdraft Facility made by such companies;
(B) the principal amount of all Borrowings of such
companies outstanding at the Unconditional Date save to
the extent refinanced by Utilisation of the Revolving
Facility made by such companies;
(C) the outstanding principal amount from time to time of
all Borrowings of such companies for which the only
creditor is the Company and/or Bidco;
(D) Project Finance Indebtedness of the Target and/or its
subsidiaries outstanding from time to time; and
(E) 50,000,000 pounds sterling.
23.7 Compliance with law: It will, and will ensure that each
other member of the Group will, comply with the requirements
of all rules, regulations, orders and other requirements of
the Secretary of State and the Director General under the
Act or other law applicable to the conduct of the business
of the supply or distribution of electricity where failure
to comply therewith (whether immediately or in the course of
time) would have a Material Adverse Effect.
23.8 Licence: One the Target becomes a subsidiary of the Company
and under its control and in any event no later than 30 days
after the Target becomes a subsidiary of the Company, it
will ensure that the Target and any Licenceholder (or any
other relevant member of the Group) complies in all material
respects with the terms of the Licence where failure to
comply therewith (whether immediately or in the course of
time) would have a Material Adverse Effect.
23.9 Financial Ratios:
23.9.1 The ratio of Net Debt to Capitalisation of the
Group shall not exceed the following levels at the end
of each Relevant Period ending during the periods
indicated below:
70 per cent - until 31 March 2000;
65 per cent - thereafter
23.9.2 The ratio of EBITDA of the Group to Net Interest
Payable for any period referred to below shall not be
less than the following amounts for such period:
2.5:1 for the Relevant Period ending on the last day of
each the first two full quarterly accounting periods
following the Unconditional Date;
2:25:1 for the Relevant Period ending on the last day
of the third full quarterly accounting period following
the Unconditional Date;
2.15:1 for the Relevant Period ending on the last day
of the fourth full quarterly accounting period
following the Unconditional Date; and
2.15:1 for each subsequent Relevant Period.
23.10 Treasury Transactions: No Obligor will, and each
Obligor will ensure that none of its subsidiaries will
without the prior written consent of an Instructing Group,
enter into any interest rate swap, cap, ceiling, collar or
floor or any currency swap, futures, foreign exchange or
commodity contract or option (whether over the counter or
exchange traded) or any similar treasury transaction, other
than spot foreign exchange contracts entered into in the
ordinary course of business, and transactions for the
hedging of actual or project interest rate, currency and/or
commodity and/or energy price exposures arising in the
ordinary course of business activities of such member of the
Group.
23.11 Loans out: No Obligor will, and each Obligor will
procure that no member of the Group will, be the creditor in
respect of any Borrowings, save for:
(a) any Borrowing entered into with the prior written
consent of an Instructing Group;
(b) any Borrowing under paragraph (b) of the definition of
"Borrowing" where trade credit is extended by any
member of the Group on normal commercial terms and in
the ordinary course of its business on substantially
the same terms (or terms more favourable to it) and in
similar circumstances as for trade credit extended
prior to the date hereof by the Target or its
subsidiaries;
(c) loans made by one member of the Group to another member
of the Group;
(d) Borrowings not otherwise permitted pursuant to
paragraphs (a) - (c) above in an aggregate amount for
the Group as a whole at any time outstanding not
exceeding 5,000,000 pounds sterling.
23.12 Mergers: Neither the Company nor Bidco nor the Target
nor any Licenceholder nor any other Obligor will, and each
Obligor will procure that no other member of the Group will,
save with the prior written consent of an Instructing Group
enter into any merger or consolidation, provided that
members of the Group other than the Company, Bidco, the
Target, the Licenceholder and any Obligor may merge or
consolidate with other such members of the Group.
23.13 Holding Company: Save with the prior written consent of
an Instructing Group, neither the Company nor Bidco shall
carry on any business (other than the holding shares in and
the provision of administrative services to members of the
Group) or acquire any assets other than cash, or cash
equivalents or shares which (i) are shares in the Target or
Bidco, or (ii) are shares in companies which are already
members of the Group.
23.14 Arm's Length Terms: No Obligor will, and each Obligor
will procure that no other member of the Group will, enter
into any material transaction with any Person otherwise than
on arms length terms, save with the prior written consent of
an Instructing Group, and save for (i) loans made by one
member of the Group to another member of the Group which are
expressly permitted hereunder, (ii) disposals by one member
of the Group to another member of the Group expressly
permitted hereunder, (iii) transactions entered into on
terms more favourable to a member of the Group than would
have been the case had the transaction been entered into on
arms length terms, and (iv) other transactions (including
the issue of Subordinated Debt as and to the extent
permitted hereunder) expressly permitted by this Agreement.
23.15 Constitutional Documents: No Obligor will, and each
Obligor will procure that no other member of the Group will,
save with the prior written consent of an Instructing Group
or as required by law, amend or seek or agree to amend or
replace the memorandum or articles of association other
constitutional documents or by-laws of any member of the
Group or the Shareholders' Agreement in any way which would
likely materially and adversely to affect the interests of
the Banks under the Finance Documents.
23.16 Compliance with laws: Each Obligor will, and will
procure that each other member of the Group will, comply in
all material respects with all applicable laws, rules,
regulations and orders of any governmental authority,
whether domestic or foreign, having jurisdiction over it or
any of its assets, failure to comply with which would have a
Material Adverse Effect.
23.17 Consents: Each Obligor will, and will procure that each
other member of the Group will, obtain, promptly renew from
time to time and maintain in full force and effect, and if
so requested promptly furnish certified copies to the Agent
of all such material authorisations, approvals, consents,
licences and exemptions as may be required under any
applicable law or regulation or under the Licence or any
Licence Undertaking:
(i) to enable each Obligor to perform its respective
material obligations under the Finance Documents to
which it is a party or required for the validity or
enforceability of such Finance Documents or of any
security provided for thereby; and/or
(ii) to carry on its business as it is being conducted from
time to time where failure to obtain, renew or maintain
any such authorisation, approval, consent, licence or
exemption or non-compliance with the terms of the same
would have a Material Adverse Effect.
23.18 Syndication: The Company shall ensure that all members
of the Group will provide reasonable assistance to the Agent
and the Arranger in the sub-underwriting and syndication of
the Facilities (including, without limitation, by making
management available for the purpose of making presentations
to, or meeting with, potential lending institutions and in
the preparation of the Information Memorandum for
syndication of the Facilities and comply with all reasonable
requests for information from potential syndicate members
made through the Facility Agent or the Arranger.
23.19 Revocation or Modification of Licence: The Company will
procure that the Target, (once it has become a subsidiary of
the Company and under its control and in any event no later
than 30 days after the Target becomes a subsidiary of the
Company), and any and each other Licenceholder shall not
consent, without the prior written consent of an Instructing
Group, to any revocation of its Licence or to any material
modification to the terms thereof if such modification, in
the reasonable opinion of an Instructing Group, would have
(whether immediately or prior to the Final Maturity Date) a
Material Adverse Effect.
23.20 Licence Undertakings: The Company will consult with the
Original Banks with regard to the terms of any Licence
Undertaking which it or any holding company of it or the
Target may be required to give to the Director General or
the Secretary of State in connection with the Offer and will
not give and will procure that such holding company and
(once it has become a subsidiary of the Company and under
its control and in any event no later than 30 days after the
Target becomes a subsidiary of the Company) the Target will
not give any such Licence Undertaking without the prior
consent of an Instructing Group (such consent not to be
unreasonably withheld).
23.21 The Offer:
(a) Bidco undertakes that:
(i) without the prior agreement of an Instructing
Group, (the agreement of an Instructing Group
being conclusively evidenced by a written notice
from the Agent to Bidco with a copy to C.S. First
Boston Limited as financial advisers to Bidco)
Bidco will not:
(A) declare, decide or accept any percentage
below 50 percent plus one Share for the
purposes of any of the conditions set out in
paragraph (a) of Appendix 1 to the Press
Release;
(B) take or permit to be taken any step as a
result of which the offer price under the
Offer is, or may be required to be, increased
beyond the level agreed between Bidco and the
Banks from time to time;
(C) issue any press release or other publicity
which makes reference to the Facilities, the
Arranger, the Agent or to some or all of the
Banks unless the publicity is required by law
or by the Code (in which case Bidco shall
notify the Agent thereof as soon a
practicable upon becoming aware of the
requirement);
(ii) in all material respects relevant in the context
of the Offer and the Preference Share Offer, it
will comply with the Code (subject to any waivers
granted to the Panel), the Financial Services Act
1986, the Companies Act 1985 and all other
applicable statutes, laws and regulations;
(iii) it will keep the Agent informed as to the
status of an progress with respect to the Offer
and the Preference Share Offer and in particular
will from time to time and promptly upon request,
give to the Agent for the Banks reasonable details
as to the current level of acceptances of the
Offer and the Preference Share Offer, and such
other matters relevant to the Offer and the
Preference Share Offer as the Agent may reasonably
request. Bidco will also promptly deliver to the
Agent a copy of every material certificate
delivered by receiving agents to Bidco and/or its
advisers pursuant to the Code.
(b) If Bidco becomes aware (whether through notice
from the Agent or any Bank or otherwise) of a
circumstance or event which is or could reasonably
be construed to be covered by a condition of the
Offer which, if not waived, would entitle Bidco
(with the Panel's consent, if needed) to lapse the
Offer, Bidco shall notify the Agent and the
following shall apply:
(A) if Bidco wishes to waive, withdraw or agree
or decide not to enforce the condition and an
Instructing Group agrees, (or does not make
through the Agent the statement set out in
(B) below) Bidco may do so;
(B) if an Instructing Group does not so agree and
states that in its opinion such circumstance
or event would materially and adversely
affect the ability of Bidco to comply with
its material obligations under the Finance
Documents, Bidco will request the Panel to
agree that the Offer may lapse as a result of
non-satisfaction of that condition or of the
conditions as to acceptances (as set out in
paragraph (a) of Appendix 1 to the Press
Release) and that such lapsing will not give
rise to a breach of the Code. If the Panel
does not so agree, then Bidco may, without
the Banks' agreement, waive, withdraw or
agree to decide not to enforce such
condition.
(c) (i) In relation to each of the conditions
(c) and (d) (as set out Appendix 1 to the
Press Release), Bidco shall disclose to the
Agent any and all conditions attaching to
respectively, the announcement by the U.K.
Office of Fair Trading (in the case of
condition (c)) or the indication by the
Director General (in the case of condition
(d)).
(ii) In relation to condition (e) (as set out
in such Appendix) Bidco shall disclose
to the Agent the terms of all
undertakings and assurances sought by
the Director General as referred to
therein and proposed to be given.
23.22 Environmental Matters: The Company will and will
procure that each member of the Group will:
(a) obtain all material requisite Environmental Licences
and comply in all material respects with (i) the terms
and conditions of such Environmental Licences
applicable to it and (ii) all other applicable
Environmental Laws in each case where failure to do so
would have a Material Adverse Effect;
(b) promptly upon receipt of the same, notify the Agent of
any claim, notice or other communication served on it
in respect of any alleged breach of or corrective or
remedial obligation or liability under the
Environmental Law which would, if substantiated, have a
Material Adverse Effect.
23.23 Insurance: It will procure that each member of the
Group maintains insurance on and in relation to its business
and assets with reputable underwriters or insurance
companies against such risks and to such extent as it usual
for companies carrying on a business such as that carried on
by such member of the Group.
23.24 Target's Facilities: The Company will procure that one
Target has become a subsidiary of the Company and under its
control and in any event no later than 30 days after the
time it has become a subsidiary of the Company any undrawn
commitment under the existing revolving credit and working
capital facilities of the Target or any of its subsidiaries
will be canceled and any outstanding indebtedness thereunder
will be refinanced as promptly as possible in accordance
with the terms of the relevant agreement and in any event
prior to the Clean-up Date.
24. Default
24.1 Event of Default: The following are Events of Default:
24.1.1 Non-Payment: An Obligor does not pay in the manner
provided in this Agreement any sum payable under it
when due Provided that this clause shall not apply to
unpaid amounts which are paid in full within 5 days of
the due date.
24.1.2 Breach of Representation: Any representation or
warranty by an Obligor in this Agreement or in any
document delivered under it is or proves to have been
incorrect, in any material respect, when made or deemed
to be made or repeated by reference to the facts and
circumstances then subsisting and, if the circumstances
causing such misrepresentation are capable of remedy
within such period, such Obligor shall have failed to
remedy such circumstances within 28 days after receipt
by the relevant Obligor of written notice from the
Agent to such Obligor requiring the circumstances
causing such misrepresentation to be remedied;
24.1.3 Breach of Financial Ration Obligations: The
Company fails to comply with any provision of Clause
23.9 (Financial Ratios) and the appropriate ration is
not achieved within 28 days after notice of that
default has been given to it by the Agent.
24.1.4 Breach of Other Obligation: An Obligor does not
perform or comply with any one or more of its other
obligations under any Finance Document and, if that
default is capable of remedy, it is not remedied within
28 days after notice of that default has been given to
it by the Agent.
24.1.5 Cross Default/Acceleration: Any Borrowings of any
member of the Group become due and payable before their
normal maturity or are placed on demand or any
commitment for or underwriting in respect of a facility
for Borrowings granted to a member of the Group is
canceled or suspended (in each case by reason of the
occurrence of an event of default however
characterised) or any Borrowings of a member of the
Group are not paid when due (or, in the case of demand
facilities, within 5 business days of their due date)
(whether falling due by demand, at schedule maturity or
otherwise) or within any applicable grace period.
However, no Event of Default will occur under this
Clause 24.1.5 unless and until the aggregate amount of
Borrowings in respect of which one or more of the
events mentioned above in this Clause 24.1.5 has
occurred and exceeds 25,000,000 pounds sterling or its
equivalent.
24.1.6 Insolvency: An Obligor or a Material Subsidiary is
insolvent or unable to pay its debts, stops or suspends
payment of its Indebtedness or proposes or makes a
general assignment or an arrangement or composition
with or for the benefit of its creditors.
24.1.7 Moratorium: A moratorium in respect of all or any
debts of an Obligor or any Material Subsidiary or a
composition or an arrangement with creditors generally
of an Obligor or any Material Subsidiary or any other
arrangement whereby its affairs and/or assets are
submitted to the control of or are protected from its
creditors is applied for, ordered or declared.
24.1.8 Administrator: An application is made for the
appointment of an administrator (as such term is used
in the Insolvency Act 1986) or similar official in
relation to an Obligor or any Material Subsidiary (and
such application is not withdrawn, discharged or stayed
within 21 days of being made) or an effective
resolution is passed by the directors or shareholders
or an Obligor of any Material Subsidiary for such an
application to be made or an administrator, receiver or
administrative receiver is appointed in respect of an
Obligor or any Material Subsidiary.
24.1.9 Enforcement Proceedings: A distress, attachment,
execution or other legal process is levied, enforced or
sued out on or against the Assets of an Obligor or a
Material Subsidiary having an aggregate value of
25,000,000 pounds sterling save where (i) the relevant
member is, in good faith, contesting the distress,
execution, attachment, sequestration or other process
by appropriate proceedings diligently pursued and (ii)
an Instructing Group acting reasonably are satisfied
that the ability of an Obligor to comply with its
obligations under the Finance Documents will not be
materially and adversely affected whilst such distress,
execution, attachment, diligence or other process is
being so contested.
24.1.10 Winding-up: An order is made or an effective
resolution is passed or any legal proceedings are
initiated or are consented to by an Obligor or a
Material Subsidiary or any petition shall be presented
or legal proceedings commenced by any person (and not,
where that person is unconnected with that member of
the Group save for being a creditor of such member,
discharged or stayed within 21 days in the case of both
legal proceedings and such petition) for the winding-
up, termination of existence, dissolution or other like
process of an Obligor or a Material Subsidiary or any
of them ceases to carry on all or a substantial part of
its business except for the purpose of and followed by
a reconstruction, amalgamation, reorganisation, merger
or consolidation on terms approved by an Instructing
Group and save as may result from any disposal of
assets permitted by the terms of this Agreement or any
solvent liquidation, dissolution or winding-up of any
of the Group (not being an Obligor) which would have a
Material Adverse Effect.
24.1.11 Ownership of Target: At any time after the Clean-
up Date less than 75% of the Ordinary Shares in the
Target are owned by the Company.
24.1.12 Control: Without the prior written consent of an
Instructing Group, CalEnergy Company, Inc. shall cease
to own directly or indirectly at least 50.1% of all
classes of share capital in the Company.
24.1.13 Licence:
(i) The Licence is revoked or surrendered or ceases to
be held by the Target or a wholly-owned subsidiary
of the Target or Bidco other than in circumstances
which permit the Target or such wholly-owned
subsidiary to carry on the distribution business
of the Target substantially as envisaged at the
date of this Agreement either without the Licence
as a result of any change in the Act or with a new
public electricity supply licence issued to such
person under the Act whose terms are not
materially less favourable than those of the
Licence.
(ii) The License or any substitute licence contemplated
by a sub-paragraph (i) above is materially
modified in any manner which in the reasonable
opinion of an Instructing Group would have
(whether immediately or overtime) a Material
Adverse Effect.
24.1.14 Compliance with Act: The Licenceholder fails to
comply with a final order (within the meaning of
Section 25 of the Act) or with a provisional order
(within the meaning of that section) which has been
confirmed under that section and in either case which
has not been revoked under that section or the validity
of which has not been questioned under Section 27 of
the Act.
24.1.15 Pooling and Settlement Agreement: Any notice
requiring Target to cease to be a party to the Pooling
and Settlement Agreement is given to Target under
Clauses 60.1.3 or 60.2.2 of the Pooling and Settlement
Agreement.
24.1.16 Expropriation: The authority or ability of the
Company or Target or the Licenceholder to conduct its
business is wholly or substantially curtailed by any
expropriation to renationalisation by or on behalf of
any governmental authority.
24.2 Cancellation/Acceleration: If at any time and for any reason
(and whether within or beyond the control of any party to
this Agreement) any Event of Default has occurred then at
any time thereafter, subject to Clause 24.3 (Suspension of
Rights), if any such Event of Default is continuing, the
Agent, if so instructed by an Instructing Group, shall be
notice to the Company declare:
24.2.1 the Commitments to be cancelled, whereupon they
shall be cancelled; and/or
24.2.2 all Advances, all unpaid accrued interest and fees
and any other sum then payable under this Agreement to
be immediately due and payable or payable on demand,
whereupon they shall become to due and payable or
payable on demand (in which latter case the Agent may
at any subsequent time make a demand at which point all
such sums shall become due and payable),
Provided that until the Clean-up Date the Events of Default
set out in Clause 24.1.4 (Breach of other Obligations) shall
not apply to Target or any of its subsidiaries and the Event
of Default set out in Clauses 24.1.5 to 24.1.10 shall not
apply in respect of any subsidiary of Target.
24.3 Suspension of Rights: Prior to the end of the Certain Funds
Period, unless an Event of Default has occurred which is
continuing under Clauses 24.1.6 (Insolvency), 24.1.7
(Moratorium), 24.1.8 (Administrator), 24.1.10 (Winding-up)
in respect of an Obligor or a breach of any of the
representations set out in Clauses 21.1.1, (Status), 21.1.2
(Powers), 21.1.3 (Authorisations and Consents), 21.1.4 (Non-
Violation) and 21.1.5 (Obligations Binding) has occurred in
respect of an Obligor none of the Banks shall be entitled to
exercise any rights of rescission or other remedy or be
entitled to terminate or cancel the Facilities or require
repayment of any Advance or refuse to make any Advance in
consequence of any of the representations and warranties set
out herein being or being proved to have been incorrect in
any respect or the Company or Bidco having failed to
perform, observe or comply with any of its covenants or
other obligations or agreements herein or the occurrence of
any Event of Default or Potential Event of Default.
24.4 Clean-up Period: Subject to Clause 24.3, if during the
period from the Unconditional Date to the Clean-up Date any
Potential Event of Default shall exist which consists of, or
is a direct consequence of any event or circumstance which
occurred in relation to Target or any of its Subsidiaries
(or its or any of their business, assets or liabilities) on
or before the Unconditional Date, then the following shall
apply:
24.4.1 the Company or Target shall notify the Agent of
that fact by fax promptly after becoming aware thereof,
giving a reasonable description of:
(i) the Potential Event of Default and its causes; and
(ii) the remedial action in relation to that Potential
Event of Default which the Company and/or Target
propose to take;
24.4.2 that Potential Event of Default shall not
constitute an Event of Default, and the Agent shall not
with respect to that Potential Event of Default (but,
for the avoidance of doubt, no so as to restrict the
Agent's rights to take such action with respect to any
other Event of Default which is not a Potential Event
of Default) be entitled to take any of the actions set
out in Clause 24.2 (Cancellation/Acceleration), until
(assuming that the Potential Event of Default is then
continuing) the Clean-up Date.
Provided that (i) the foregoing shall not apply with respect
to any Potential Event of Default under any of the following
Clauses:
24.1.1 (Non-Payment);
24.1.6 (Insolvency);
24.1.7 (Moratorium);
24.1.8 (Administrator);
24.1.10 (Winding-up);
24.1.12 (Control);
24.1.13 (Licence);
24.1.14 (Compliance with Act);
24.1.15 (Pooling and Settlement Agreement); or
24.1.16 (Expropriation),
irrespective of whether or not that Potential Event of
Default occurred in consequence of any event or circumstance
which occurred before the Unconditional Date, and (ii) any
Potential Event of Default shall nevertheless constitute a
Potential Event of Default for the purposes of a drawing
under the Revolving Facility other than a drawing for the
purposes set out in Clause 3.2 after the Clean-up Date.
Part 8
Guarantee
25. Guarantee
25.1 Guarantee from the Company: The Company unconditionally and
irrevocably guarantees that, if for any reason any other
Borrower does not pay any sum payable by it under the
Revolving Facility by the time, on the date and otherwise in
the manner specified in this Agreement (whether on the
normal due date, on acceleration or otherwise), the Company
will pay that sum within 5 business days of demand by the
Agent (acting on instructions from an Instructing Group).
25.2 Guarantee from Bidco: Bidco unconditionally and irrevocably
guarantees that, if for any reason the Company does not pay
any sum payable by it under this Agreement by the time, on
the date and otherwise in the manner specified in this
Agreement (whether on the normal due date, on acceleration
or otherwise) Bidco will pay that sum within 5 business days
of demand by the Agent (acting on instructions of an
Instructing Group).
25.3 Guarantor as Principal Debtor: As between each Guarantor and
the other parties to this Agreement but without affecting
any other Borrower's or, as the case may be, the Company's
obligations, each Guarantor shall be liable under this
Clause 25 as if it were the sole principal debtor and not
merely a surety. Accordingly, neither Guarantor shall be
discharged, nor shall its liability be affected, by anything
which would not discharge it or affect its liability if it
were the sole principal debtor (including:
(i) any time, indulgence, concession, waiver or consent at
any time given to any other Borrower or, as the case
may be, the Company or any other Person;
(ii) any amendment or supplement to any other provision of
this Agreement or to any Security or other guarantee;
(iii) the making or absence of any demand on any other
Borrower or, as the case may be, the Company or any
other Person for payment;
(iv) the enforcement or absence of enforcement of this
Agreement or of any Security or other guarantee;
(v) the taking, existence or release of any Security or
other guarantee;
(vi) the winding-up of any other Borrower or, as the case
may be, the Company or any other Person, or any step
being taken for such winding-up; or
(vii) the illegality, invalidity or unenforceability of,
or any defect in, any provision of this Agreement or
any Security or other guarantee or any of the
obligations of any of the parties under or in
connection with this Agreement or any Security or other
guarantee.
25.4 Each Guarantor's Obligation Continuing: Each Guarantor's
obligations under this Part 8 are and will remain in full
force and effect by way of continuing security until no sum
remains to be lent under this Agreement and the Agent, the
Arranger and the Banks have irrevocably received or
recovered all sums payable under this Agreement.
Furthermore, those obligations of each Guarantor are
additional to, and not instead of, any Security or other
guarantee at any time existing in favour of any Person,
whether from a Guarantor or otherwise, and may be enforced
without first having recourse to any other Borrower or, as
they case may be, the Company, any other Person, any
Security or any other guarantee. Each Guarantor irrevocably
waives any requirement for any notices or (except as
required by Clauses 25.1 (Guarantee from the Company) and
25.2 (Guarantee from Bidco)) demands of any kind.
25.5 Exercise of each Guarantor's Rights: So long as any sum
remains to be lent or remains payable under this Agreement:
(i) any right of a Guarantor, by reason of the performance
of any of its obligations under this Clause 25, to be
indemnified, in the case of the Company, by any other
Borrower and, in the case of Bidco, by the Company, to
prove in respect of any liability in the winding-up of
any other Borrower or, as the case may be, the Company
or to take the benefit of or enforce any Security or
other guarantee shall (and shall only) be exercised and
enforced in such manner and on such terms as the Agent
(acting on instructions from an Instructing Group) may
require; and
(ii) any amount received or recovered by a Guarantor (a) as
a result of any exercise of any such right or (b) in
the winding-up of any other Borrower or, as the case
may be, the Company shall be held on trust for the
Agent, the Arranger and the Bank and immediately paid
to the Agent.
25.6 Avoidance of Payments: Each Guarantor shall on demand
indemnify the Agent, the Arranger and each Bank against any
funding or other cost, loss, expense or liability (including
loss of Margin) sustained or incurred by the Agent or, as
the case may be, the Arranger or that Bank as a result of it
being required for any reason (including any bankruptcy,
insolvency, winding-up or similar law of any jurisdiction)
to refund all or part of any amount received or recovered by
it in respect of any sum payable by any other Borrower or,
as the case may be, the Company under this Agreement and
shall in any event pay to the Agent or, as the case may be,
the relevant Arranger or Bank on demand the amount so
refunded by it.
25.7 Suspense Accounts: For the purpose of enabling the Agent,
the Arranger or any Bank to maximise its recoveries in any
actual or potential winding-up, any amount received or
recovered by the Agent, the Arranger or any Bank in respect
of any sum payable by any other Borrower or, as the case may
be, the Company under this Agreement may be placed by the
recipient in an interest bearing suspense account. That
amount may be kept there (with any interest earned being
credited to that account) unless and until the recipient is
reasonably satisfied that it is not obliged to pay any
further sum under this Agreement and that it has irrevocably
received or recovered its share of the Advances, all
interest accrued thereon and any other sums payable to it
under this Agreement.
25.8 Indemnity: As separate, independent and alternative
stipulations, each Guarantor unconditionally and irrevocably
agrees:
(i) that any sum which, although expressed to be payable by
any other Borrower or, as the case may be, the Company
under this Agreement, is for any reason (whether or not
now existing and whether or not now known or becoming
known to any party to this Agreement) not recoverable
from the relevant Guarantor on the basis of a guarantee
shall nevertheless be recoverable from it as if it were
the sole principal debtor and shall be paid by it to
the Agent on demand; and
(ii) as a primary obligation to indemnify the Agent, the
Arranger and each Bank against any loss suffered by it
as a result of any sum expressed to be payable by any
other Borrower or, as the case may be, the Company
under this Agreement not being paid by the time, on the
date and otherwise in the manner specified in this
Agreement or any payment obligation of any other
Borrower or, as the case may be, the Company under this
Agreement being or becoming void, voidable or
unenforceable for any reason (whether or not now
existing and whether or not now known or becoming known
to any party to this Agreement), the amount of that
loss being the amount expressed to be payable by any
other Borrower or, as the case may be, the Company in
respect of the relevant sum.
25.9 As used in this Clause 25 "Guarantor" means with respect to
the obligations of any other Borrower which are guaranteed
pursuant to Clause 25.1, the Company and with respect to the
obligations of the Company which are guaranteed pursuant to
Clause 25.2, Bidco.
PART 9
PAYMENTS
26. Currency of Account
Sterling is the currency of the account and payment for each
and every sum due from each Obligor under this Agreement.
27. Payments
27.1 Payments to the Agent: Except as otherwise specifically
stated herein, on each date upon which this Agreement
requires an amount to be paid by an Obligor or any Bank,
such Obligor or such Bank shall make the same available to
the Agent by payment in sterling in cleared funds direct to
such account as the Agent may from time to time have
specified for this purpose.
27.2 Payments by the Agent: Subject to Clause 27.4 (Clawback)
each payment received by the Agent pursuant to Clause 27.1
(Payments to the Agent) for the account of another Person
shall be made available by the Agent to such account of such
Person with a bank in London as such Person shall have
previously notified the Agent.
27.3 No Set-Off: All payments made by an Obligor under this
Agreement shall be made free and clear of and without any
deduction for or on account of any set-off or counterclaim
except only Taxes to which the provisions of Clause 16.1
(Gross-up) apply.
27.4 Clawback: Where a sum is to be paid hereunder to the Agent
for the account of another Person, the Agent shall not be
obliged to make the same available to that other Person
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 the
sum it paid out, then the Person to whom such sum was so
made available shall on request refund the same to the
Agent, together with an amount sufficient to indemnify the
Agent against any cost or loss it may have suffered or
incurred by reason of its having paid out the sum in
question prior to its having received the same.
27.5 Repayment on a business day: If any payment falls to be made
hereunder on a day which is not a business day such payment
shall be made on the next business day.
28. Redistribution of Payments
28.1 Sharing: If (a) immediately following the Final Maturity
Date or (b) on any earlier date after the Commitments of all
the Banks have been reduced to zero, the principal amount
outstanding to a Bank hereunder and under any Overdraft
Facility which had a Commitment immediately prior to the
reduction of its or all Commitments to zero (a "Sharing
Bank") does not bear the same proportion to the aggregate
principal amount outstanding to all the Sharing Banks
hereunder and under any Overdraft Facility as such Sharing
Bank's Commitment bore (immediately prior to the reduction
of its or all the Commitments to zero) to the Total
Commitments at such time then each Sharing Bank shall, upon
being so notified by the Agent, promptly pay the Agent (for
distribution to the other Sharing Banks) such amount as is
necessary to ensure that, after taking account of all
distributions amongst the Sharing Banks pursuant to this
Clause 26.1, the aforesaid ratios are the same. Provided
that for these purposes any reduction in Commitment pursuant
to Clause 4.2 (Overdraft Facility) shall be ignored in
making any distribution referred to above.
28.2 Memorandum Account: Each Sharing Bank shall open a
memorandum account in respect of each currency for the
purposes of Clause 28.1 (Sharing) and each Sharing Bank
shall credit or, as the case may be, debit amounts to or
form such memorandum account in respect of the receipt or,
as the case may be, payment of amounts paid pursuant to
Clause 28.1 (Sharing).
28.3 Adjustments: All amounts received or recovered by each of
the Sharing Banks in respect of interest on the principal
amount outstanding hereunder or under any Overdraft Facility
shall be shared amongst each Sharing Bank by reference to
such Sharing Bank's principal amount outstanding but
adjusted to take account of all credits and debits made to
its memorandum account pursuant to Clause 28.2 (Memorandum
Account).
28.4 Minimisation: Each of the Sharing Banks hereby agrees that:
(i) it will take all reasonable steps (in consultation with
the Agent and the other Sharing Banks) to minimise all
amounts owing to it hereunder; and
(ii) it will inform the Agent from time to time of all
amounts owing to it hereunder.
28.5 Rights Contractual: It is hereby agreed that any rights and
obligations of the Sharing Banks arising in respect of any
payments to be made or received by any of them under this
Clause 28 are their contractual rights and obligations
against, or to, each other and nothing herein is intended
to, nor shall it be construed so as to, constitute an
assignment or other transfer of any proprietary right or
interest (whether legal or beneficial) to or in any debt or
other obligation of any Obligor.
28.6 Partial Payments: Without prejudice to the other provisions
of this Clause 28, if the Agent shall receive from an
Obligor funds which are insufficient to satisfy in full the
obligations of such Obligor under this Agreement then due to
be discharged, the Agent shall allocate the funds so
received in or towards discharging the amounts then so due
from such Obligor under this Agreement pro rata to the
amounts of such obligations and each party hereto
irrevocably authorises and directs the Agent so to act.
28.7 Appropriation: No Obligor shall be entitled to make any
designation or appropriation of the application of funds in
the circumstances referred to in Clause 28.6 (Partial
Payments).
29. Netting of Payments and Set-Off
29.1 Netting: If on any Utilisation Date:
(i) a Bank is required to make an Advance to a Borrower
hereunder; and
(ii) such Borrower is due to prepay or repay an Advance (or
part thereof) that that Bank, then the Agent may
(without prejudice to the relevant Borrower's
obligation to make the payment in question pursuant to
this Agreement prior to any application pursuant to
this Clause) apply any amount payable by such Bank to
such Borrower on that Utilisation Date in respect of
Advances to be made to such Borrower, in or towards
satisfaction of the amounts payable by such Borrower to
such Bank on such Utilisation Date.
29.2 Set-Off: Each Obligor authorises each Bank to apply any
credit balance to which such Obligor is entitled on any
account with such Bank in satisfaction of any sum due and
payable by such Obligor to such Bank hereunder but unpaid;
for this purpose each Bank is authorised to purchase with
the monies standing to the credit of any such account other
currencies as may be necessary to effect such application
(but so that noting in this Clause 29.2 shall be effective
to create a charge). No Bank shall be obliged to exercise
any right given to it by this Clause 29.2.
PART 10
DEFAULT INTEREST AND INDEMNITY
30. Default Interest and Indemnity
30.1 Default Interest Periods: If any sum due and payable by an
Obligor under this Agreement is not paid on the due date,
the period beginning on such due date 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 be selected
by the Agent but shall not exceed three months.
30.2 Default Interest: During each such period relating thereto
as is mentioned in Clause 30.1 (Default Interest Periods)
(as well after as before judgment) an unpaid sum shall bear
interest at the rate per annum which is the sum of the
applicable Margin at such time, 1% and LIBOR (plus the
Associated Costs Rate) on the Quotation Date for such period
Provided that;
30.2.1 if for any such period LIBOR cannot be determined,
then the rate of interest applicable to such unpaid sum
shall be the sum of the applicable Margin at such time,
1% per annum, the Associated Costs Rate and the rate
per annum determined by the Agent to be equal to the
arithmetic mean of the costs to each of the Reference
Banks of obtaining deposits from such sources as it may
reasonably select; and
30.2.2 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, or, as the case may be,
an Interest Period relating thereto, the first such
period applicable thereto shall be of a duration equal
to the unexpired portion of the Term thereof, as the
case may be, Interest Period relating thereto and the
rate of interest applicable thereto during such period
shall be that which exceeds by 1% per annum the rate
applicable to it immediately before it fell due.
30.3 Payment of Default Interest: Any interest payable which
shall have accrued on any unpaid sum due from an Obligor
shall be due and payable and shall be paid by such Borrower
to the Agent for the account of the party entitled thereto
at the end of the period by reference to which it is
calculated.
30.4 Break Costs: Notwithstanding any other provision of this
Agreement, if any Bank or the Agent on its behalf receives
or recovers all or part of any Advance made by such Bank
otherwise than on the last day of the Term thereof or, as
the case may be, an Interest Period relating thereto, the
Company shall pay to the Agent on demand for the account of
such Bank an amount equal to the amount (if any) by which
(i) the additional interest (excluding any part of that
interest which would represent Margin) 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
or, as the case may be, the current Interest Period relating
thereto exceeds (ii) the amount of interest which in the
opinion of the Agent would have been payable to the Agent on
the last day of the term thereof or, as the case may be, the
current Interest Period relating thereto in respect of a
deposit 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 following the date of such receipt or
recovery and ending on the last day of the Term thereof or,
as the case may be, the current Interest Period relating
thereto.
30.5 Default Indemnity: The Company undertakes to indemnify:
30.5.1 each of the Banks, the Arranger and the Agent
against any cost, loss or expense, including legal
fees, which any of them may sustain or incur as a
consequence of any default by an Obligor in the
performance of any of the obligations expressed to be
assumed by it in any Finance Document; and
30.5.2 each Bank against any loss it may sustain or incur
as a result of its funding an Advance requested by a
Borrower hereunder but not made by reason of the non-
fulfilment of one of the conditions to the making of
that Advance as set out in Clause 12.1 (Making of
Advances).
Any Person intending to make a claim pursuant to this Clause
30.5, shall promptly after such Person becomes aware of the
circumstances giving rise to such claim, deliver to the
Company through the Agent a certificate to that effect
specifying the event by reason of which it is entitled to
make such claim and the amount of such claim provided that
noting shall require such Person to disclose any
confidential information relating to the organisation of its
affairs and the Company shall pay such amount to the Agent
for the account of such Person within 3 business days of
receipt of such certificate.
30.6 Unpaid Sums as Advances: Any unpaid sum shall (for the
purposes of this Clause 30 and Clause 17.1 (Increased
Costs)) be treated as an advance and accordingly in this
Clause 30 and Clause 17.1 (Increased Costs), "Advance"
includes any unpaid sum and "Interest Period" in relation to
an unpaid sum includes each such period mentioned in Clause
30.1 (Default Interest Periods).
30.7 Acquisition Indemnity:
30.7.1 Indemnity: The Company shall indemnify the
Arranger, the Agent and each Bank (each an "Indemnified
Party") from time to time within 5 business days of
demand of the Indemnified Party, from and against all
losses, liabilities, claims, costs or expenses
(including legal fees) which the relevant Indemnified
Party may suffer or incur( except to the extent that
the same result from the negligence or willful
misconduct of that Indemnified Party) arising out of
the Offer or the Preference Share Offer (whether or not
made) or any acquisition by Bidco or any Person acting
in concert with Bidco of any Shares or Preference
Shares or arising out of any use of the proceeds of any
Advance. It is agreed that:
(a) each Indemnified Party shall notify the Company in
reasonable detail of any potential claim by it or
its directors, officers or employees on the
Company under this Clause 20.7.1 promptly upon its
becoming aware of that potential claim; and
(b) if the Company wishes any Indemnified Party to
enter into any negotiations with a view to
settlement of any dispute with any third party
likely to give rise to any claims, damages,
liability, costs and expenses for which a claim
may be made under this Agreement, it shall notify
that Indemnified Party accordingly, which
Indemnified Party will then enter into such
negotiations in good faith on a without prejudice
basis but shall not be bound so to settle; and
(c) any payments required to be made by reason of this
indemnity shall be in addition to any other
amounts provided for in the finance Documents or
agreement to be paid in respect of the Facilities.
30.7.2 Provisions of Opinions and Process: The Arranger,
the Agent and each Bank shall give promptly to the
Company such details and copies of all opinions and
process served concerning (or concerning the
circumstances giving rise to) any claims, damages,
liabilities, costs and expenses which may form the
basis of any claim by it on the Company hereunder, as
the Company may reasonably request.
30.7.3 Appointment of Professional Advisers: At the
request of the Company, from time to time, the
Arranger, the Agent and each Bank will discuss with the
Company and will give careful consideration in good
faith to the views of the Company concerning the
appointment of professional advisers in connection with
any such claims, damages, liabilities, costs and
expenses (and in connection with the circumstances
giving rise thereto and any proceedings current,
pending or threatened relating thereto) and the conduct
of any proceedings, and will use reasonable endeavours
to procure that (once appointed) all professional
advisers acting for it in relation thereto shall do
likewise and that where possible and where such party
does not reasonably consider that it is against its
best interest, one firm of professional advisers only
is appointed to represent each of the Arranger, the
Agent and the Banks.
30.7.4 Non-Disclosure: Notwithstanding the foregoing
provisions of this Clause 30.7, none of the Arranger,
the Agent and the Banks shall be required to disclose
to the Company or any other Obligor any matter with
regard to which it is under a duty of non-disclosure.
All information which may be disclosed by any of the
Arranger, the Agent and the Banks pursuant to this
Clause 30.7 shall be disclosed on the same conditions
as to confidentiality, as are set out in Clause 37.
PART 11
FEES, COSTS AND EXPENSES
31. Fees
31.1 Commitment Fee: The Company shall pay to the Agent for the
account of each Bank a commitment fee on the amount of such
Bank's Available Revolving Commitment and Available Term
Commitment form day to day during the period beginning on
the date hereof and ending on the Revolving Facility
Termination Date (in the case of a Bank's Available
Revolving Commitment) and ending on the Term Facility
Termination Date (in the case of a Bank's Available Term
Commitment) (or any earlier date on which the relevant
Commitment of such Bank is cancelled and permanently reduced
to zero). Commitment fees shall be calculated at the rate
of 0.25% per annum on each of the Available Term Commitment
and the Available Revolving Commitment until the date of
making the first Advance and thereafter at a rate equal to
50% of the applicable Margin at such time and shall be
payable in arrear at quarterly intervals during such period
and on the last day of such period (or, if any such date for
payment does not fall on a business day, the next succeeding
day which is a business day).
31.2 Agency Fee: The Company shall pay or procure the payment to
the Agent for the account of the Agent agency fees in the
amounts and at the times stated in the letter from the Agent
to, among others, the Company dated the date hereof.
31.3 Arrangement Fee: The Company shall pay or procure the
payment to the Agent for the account of the Arranger
arrangement fees in the amounts and at the times stated in
the letter from the Agent to, among other, the Company dated
the date hereof.
32. Costs and Expenses
32.1 Transaction Expenses: The Company shall pay to the Agent for
the account of the Agent and the Arranger all reasonable
costs and expenses (including value added tax or any similar
tax and legal fees) incurred by them in the negotiation,
preparation and execution of the Finance Documents and the
completion of the transactions therein contemplated.
32.2 Preservation of Rights: The Company shall from time to time
on demand reimburse the Agent, the Arranger and each Bank
for all reasonable costs and expenses (including value added
tax or any similar tax and including legal fees incurred in
or in connection with the preservation and/or enforcement of
any of the rights of any of them against any Obligor under
any Finance Document.
32.3 Stamp Taxes: The Company shall pay all United Kingdom stamp
and registration Taxes to which this Agreement is or at any
time may be subject and shall indemnify the Agent, the
Arranger and each Bank against any liabilities, costs,
claims and expenses resulting from any failure to pay or any
delay in paying any such Tax.
32.4 Banks' Liability: If any time the Company fails to perform
its obligations under this Clause 32 each Bank shall in the
proportion borne by the sum of its Outstandings to the sum
of the Outstandings of all Banks at the time of demand (or,
where there are not Outstandings, in the proportion borne by
the sum of its Commitments of all the Banks have been
reduced to zero, at the time when the same last exceeded
zero) indemnify the Agent on demand against any loss
incurred by it as a result of such failure and the Company
undertakes to reimburse each Bank forthwith for any payment
made by it pursuant to this Clause 32.4. Provided that for
the purposes of making any calculation under this Clause
32.4 the provision of 4.2 (Overdraft Facility) shall be
ignored.
PART 12
AGENCY PROVISIONS
33. The Agent and Arranger
33.1 Appointment of the Agent: Each Bank hereby appoints the
Agent to act as its agent in connection with the Finance
Documents and authorises the Agent to exercise such rights,
power and discretions as are specifically delegated to it by
the terms of this Agreement together with all such rights,
powers and discretions as are reasonably incidental thereto.
33.2 Agent's Discretions: The Agent may:
(i) assume that:
(a) any representation made by an Obligor in or in
connection with any Finance Document is true;
(b) no Event of Default or Potential Event of Default
has occurred; and
(c) no Obligor is in breach of or in default of its
obligations under any Finance Document
unless the Agent in its capacity as agent for the Banks
has received written notice to the contrary from a
party to this Agreement;
(ii) assume that each Bank's Facility Office is that
identified with its signature below (or, as the case
may be, in the Transfer Certificate or Global Transfer
Certificate pursuant to which it became a party hereto)
until it has received from such Bank a notice
designating some other office of such Bank as its
Facility Office for the purpose of the Facilities and
act upon any such notice until the same is superseded
by a further notice;
(iii) engage and pay for the advice or services of any
lawyers, accountants 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 matters of fact which might reasonably be
expected to be within the knowledge of an Obligor upon
a certificate signed by or on behalf of such Obligor;
(v) rely upon any communication or document believed by it
to be genuine;
(vi) refrain from exercising any right, power or discretion
vested in it under any Finance Document 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 Finance Document until it shall have received
such security as it may require (whether by way of
payment in advance or otherwise) against all costs,
claims, expenses (including legal fees) and liabilities
which it will or may expend or incur in complying with
such instructions.
33.3 Agent's Obligations: The Agent shall:
(i) promptly upon receipt thereof, inform each Bank of the
contents of any notice or document or other information
received by it in its capacity as Agent hereunder from
an Obligor;
(ii) promptly notify each Bank of the occurrence of any
Event of Default or any default by an Obligor in the
due performance of its obligations under this Agreement
of which the Agent has, in its capacity as agent for
the Banks, received written notice from a party to this
Agreement;
(iii) save as otherwise provided herein, act in
accordance with any instructions given to it by an
Instructing Group; and
(iv) if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it
as agent under any Finance Document.
33.4 Excluded Obligations: Notwithstanding anything to the
contrary expressed or implied herein, neither the Agent
nor the Arranger shall:
(i) be bound to enquire as to:
(a) whether or not any representation made by any
Obligor in or in connection with any Finance
Document is true;
(b) the occurrence or otherwise of any Event of
Default or Potential Event of Default;
(c) the performance by an Obligor of its obligations
under any Finance Document; or
(d) any breach of or default by an Obligor of or under
its obligations under any Finance Document;
(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;
(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 fiduciary duty towards any Bank or under any
obligations other than those for which express provision is
made in any Finance Document.
33.5 Indemnification: Each Bank shall, on demand by the Agent,
indemnity the Agent in the proportion borne by the sum of
Commitments (if any) to the Commitments of all the Banks
have been reduced to zero, at the time when the same last
exceed zero) against any and all costs, claims, expenses
(including legal fees) and liabilities which the Agent may
incur, otherwise than by reason of its own gross negligence
or wilful misconduct, in acting in its capacity as agent for
the Banks under this Agreement Provided that for the purpose
of any calculation under this Clause 33.5 the provisions of
Clause 4.2 (Overdraft Facility) shall be ignored.
33.6 Exclusion of Liability: Neither the Agent nor the Arranger
accepts any responsibility to any Bank for the accuracy
and/or completeness of the Information Memorandum or any
other information supplied in connection herewith (whether
before or after the date hereof) or for the legality,
validity, effectiveness, adequacy or enforceability of this
Agreement and neither the Agent nor the Arrangers shall be
under any liability to any Bank as a result of taking or
omitting to take any action (whether before or after the
date hereof) in relation to this Agreement save in the case
of gross negligence or wilful misconduct.
33.7 No Action: Each of the Banks agree that it will not assert
or seek to assert against any director, officer or employee
of the Agent or any Arranger any claim it might have against
any of them in respect of the matters referred to in Clause
33.6 (Exclusion of Liability).
33.8 Business with the Group: The Agent and 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.
33.9 Resignation: The Agent may (after consultation with the
Company) resign its appointment under the Finance Documents
at any time without assigning any reason therefor by giving
either not less than 30 days' prior written notice to that
effect to each of the other parties hereto or by appointing
any affiliate of the Agent in its stead, provided that no
such resignation shall be effective until a successor for
the Agent is appointed in accordance with the succeeding
provisions of Clause 33.10 (Successor).
33.10 Successor: If the Agent gives notice of its
resignation pursuant to Clause 33.9 (Resignation), then
following consultation with the Banks and with the agreement
of the Company, any reputable and experienced bank or other
financial institution may be appointed as a successor to the
Agent by an Instructing Group and the Company during the
period of such notice but, if no such successor is so
appointed (including by reason of the failure of the Company
to agree), the Agent may appoint such a successor itself.
33.11 Rights and Obligations: If a successor to the Agent is
appointed under the provisions of Clause 33.10 (Successor),
then (i) the retiring Agent shall be discharged from any
further obligation under the Finance Documents but shall
remain entitled to the benefit of the provisions of this
Clause 33 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.
33.12 Own Responsibility: It is understood and agreed by
each Bank that it has itself been, and will continue to be,
solely responsible for making its own independent appraisal
of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of
each Obligor, and, accordingly, each Bank confirms to the
Agent, the Arranger and the other Banks that it has not
relied and will not hereafter rely on the Agent, the
Arranger or any other Bank:
(i) to check or enquire on its behalf into the adequacy,
accuracy or completeness of any information provided by
an Obligor in connection with this Agreement or the
transactions herein contemplated (whether or not such
information has been or is hereafter circulated to such
Bank by the Agent or the Arranger); or
(ii) to assess or keep under review on its behalf the
financial condition, creditworthiness, condition,
affairs, status or nature of an Obligor.
33.13 Agency Division Separate: In acting as agent hereunder
for the Banks, the Agent shall be regarded as acting through
its agency division which shall be treated as a separate
entity from any other of its divisions or departments and,
notwithstanding the foregoing provisions of this Clause 33,
any information received by some other division or
department of the Agent may be treated as confidential and
shall not be regarded as having been given to the Agent's
agency division.
PART 13
ASSIGNMENTS AND TRANSFERS
34. Benefit of Agreement
This Agreement shall be binding upon and enure to the benefit of
each party hereto and its successors and permitted assigns and
transferees.
35. Assignments and Transfers by the Obligors
No Obligor shall be entitled to assign or transfer all or any of
its rights, benefits and obligations hereunder.
36. Assignments and Transfers by Banks
36.1 Assignment and Transfers by Banks: Any Bank may at any
time assign or transfer in accordance with Clause 36.3 all or
part of such Bank's rights, benefits and obligations under this
Agreement to any bank or financial institution which is a
Qualifying Lender with the consent of the Company (such consent
not to be unreasonably withheld or delayed and not to be required
for assignments or transfers from a Bank to another Bank or to an
Affiliate of that Bank) Provided that no such transfer or
assignment shall be made if the result thereof, at the time of
such transfer or assignment or immediately thereafter, would be
that the Borrower would be liable to pay an additional amount or
amounts pursuant to Clauses 16.1 (Gross-up), 16.2 (Tax Indemnity)
or 17 (Increased Costs) which additional amount or amounts would
not have been payable had no such transfer or assignment
occurred.
36.2 Assignments by Banks: If any Bank assigns all of its
rights, benefits and obligations hereunder in accordance with
Clause 36.1 (Assignments and Transfers by Banks), then, unless
and until the assignee has undertaken to all the other parties
hereto that it shall be under the same obligations towards each
of them as it would have been under if it had been a party
hereto, the other parties hereto 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 a party hereto.
36.3 Transfers by Banks: Subject to the provisions of Clause
36.5 (Transfer Fee), if any Bank wishes to transfer all of its
rights, benefits and/or obligations hereunder as contemplated in
Clause 36.1 (Assignments and Transfers by Banks), then such
transfer may be effected by the delivery to the Agent of a duly
completed and executed Transfer Certificate or Global Transfer
Certificate whereupon:
(i) to the extent that in such Transfer Certificate or such
Global Transfer Certificate the Bank party thereto seeks to
transfer its rights and obligations hereunder, each Obligor and
such Bank shall be released from further obligations towards one
another hereunder and their respective rights against one another
shall be cancelled (such rights and obligations being referred to
in this Clause 36.3 as "discharged rights and obligations");
(ii) each Obligor and the Transferee or, as the case may be,
Transferees party thereto shall assume obligations towards one
another and/or acquire the relevant rights against one another
which defer from such discharged rights and obligations only
insofar as such Obligor and such Transferee or Transferees have
assumed and/or acquired the same in place of such Obligor and
such Bank; and
(iii) the Agent, the Arranger, such Transferee or, as the
case may be, Transferees and the other Banks shall acquire the
same rights and assume the same obligations between themselves as
they would have acquired and assumed had such Transferee or
Transferees been original parties hereto as (a) Bank(s) in
respect of the rights and/or obligations acquired or assumed by
it/them as a result of such transfer.
36.4 Irrevocable Offer: Each of the parties hereto confirms that
(i) the delivery to a Transferee of a Transfer Certificate and
the delivery to a number of Transferees of a Global Transfer
Certificate, in each case signed by a Bank constitutes an
irrevocable offer by each of the parties hereto to accept such
Transferee or, as the case may be, Transferees (subject to the
conditions set out herein) as a Bank or Banks party hereto in
respect of the rights and obligations so expressed to be
transferred, (ii) such offer may be accepted by such Transferee
or, as the case may be, Transferees by the execution of such
Transfer Certificate by such Transferee and by such Transferees
by the Execution of such Global Transfer Certificate by such
Transferees and (iii) the provisions of this Agreement shall
apply to the contract between the parties thereto arising as a
result of the acceptance of such offer.
36.5 Transfer Fee: On the date on which a transfer takes effect
pursuant to Clause 36.3 (Transfer by Banks), the Transferee in
respect of such transfer shall pay to the Agent for its own
account a fee of 500 pounds per Transferee.
36.6 Notice of Transfer: The Agent shall promptly notify the
Company of the receipt by it of any Transfer Certificate or
Global Transfer Certificate, identifying in such notice the
parties thereto and the portion of the relevant Commitment(s)
transferred (as specified in such Transfer Certificate or Global
Transfer Certificate).
36.7 Minimum Transfers: Any transfer effected by a Bank to a
Transferee pursuant to Clause 36.3 (Transfer by Banks) comprising
part only and not all of such Bank's rights, benefits and
obligations shall be in a minimum amount of 5,000,000 pounds.
36.8 Reliance: The Agent shall be entitled to rely on any
Transfer Certificate of Global Transfer Certificate delivered to
it in accordance with the foregoing provisions which is complete
and regular on its face as regards its contents and purportedly
signed on behalf of the Bank and a Transferee or, as the case may
be, Transferees and shall have no liability or responsibility to
any party as a consequence of placing reliance upon and acting in
accordance with any such Transfer Certificate or Global Transfer
Certificate.
37. Disclosure of Information
Any Bank may disclose such information about the Company and the
Group as such Bank shall consider appropriate to any actual or
potential assignee or Transfer or to any Person who may otherwise
enter into contractual relations with such Bank in relation to
this Agreement and who, in any such case, has signed a letter in
the form set out in the Seventh Schedule (Form of Confidentiality
Letter) Provided that no such letter shall be required if the
only information so disclosed is already a matter of public
record and has not become so as a result of the breach by such
Bank of any obligation of confidentiality owed by such Bank of
any obligation of confidentiality owed by such Bank to an
Obligor.
PART 14
MISCELLANEOUS
38. Calculations and Evidence of Net Debt
38.1 365 Day Basis: Interest and fees shall accrue from day to
day and shall be calculated on the basis of a year of 365 days
and the actual number of days elapsed.
38.2 No Quotations: If on any occasion one or more Reference
Banks fails to supply the 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 supplied by the other Reference Banks provided there
are no less than two.
38.3 Evidence of Debt: 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.
38.4 Control Accounts: The Agent shall maintain on its books a
control account or accounts in which shall be recorded:
(i) the amount of any Advances made hereunder and each Bank's
share therein;
(ii) the amount of any principal, interest or other sums due or
to become due from a Borrower to any of the Banks hereunder and
each Bank's share therein; and
(iii) the amount of any sum received or recovered by the
Agent hereunder and the share of each Bank therein.
38.5 Prima Facie Evidence: In any legal action or proceeding
arising out of or in connection with this Agreement, the entries
made in the accounts and records maintained pursuant to this
Clause 38 shall be prima facie evidence of the existence and
amounts of the obligations of a Borrower therein recorded.
38.6 Bank Certification: A certificate of a Bank as to:
(i) the amount by which a sum payable to it hereunder is to be
increased under Clause 16.1 (Gross-up); or
(ii) the amount for the time being required to indemnify it in
respect of any of the circumstances mentioned in Clause 16.2 (Tax
Indemnity) and Clause 17 (Increased Costs),
shall be prima facie evidence in any legal action or proceeding
arising out of or in connection with this Agreement.
39. Partial Invalidity
If at any time any provision of this Agreement 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 this Agreement nor
the legality, validity or enforceability or such provision under
the law of any other jurisdiction shall in any way be affected or
impaired thereby.
40. Remedies, Amendments and Waivers
40.1 Amendment Procedures: The Agent, if it has the prior
written consent of an Instructing Group, and the Company may from
time to time agree in writing to amend the Finance Documents or
to waive, prospectively or retrospectively, any of the
requirements of any of the Finance Documents and any amendments
or waivers so agreed shall be binding on all the Banks and the
Obligors Provided that:
(i) no such waiver or amendment shall subject any party hereto
to any new or additional obligations without the consent of such
party;
(ii) without the prior written consent of all the Banks, no such
amendment or waiver shall:
(a) change the principal amount of or currency of any Advance,
or extend the term of the Facilities or the Term, or, as the case
may be, the Interest Period of, any Advance;
(b) change the Margin, change the amount or currency or extend
the date for any payment of interest, fees or any other amount
payable hereunder to all or any of the Agent and the Banks under
any of the Finance Documents;
(c) amend or modify the definition of Instructing Group; or
(d) amend any provision which contemplates the need for the
consent or approval of all the Banks; and
(iii) notwithstanding any other provisions hereof, neither
the Agent nor the Arranger shall be obliged to agree to any such
amendment or waiver if the same would:
(a) amend or waive any provision of this Clause 40; or
(b) otherwise amend or waive any of the Agent's or Arranger's
rights under any of the Finance Documents or subject the Agent or
the Arranger to any additional obligations thereunder.
40.2 Amendment Costs: If the Company requests any amendment,
supplement, modification or waiver in accordance with Clause 40.1
(Amendment Procedures) then the Company shall, within five
business days of demand of the Agent, reimburse the Agent for all
reasonable costs and expenses (including legal fees) together
with any VAT thereon incurred by the Agent in the negotiation,
preparation and execution of any written instrument contemplated
by Clause 40.1 (Amendment Procedures).
41. Notices
41.1 Written Communication: Each communication to be made
hereunder shall, unless otherwise stated, be made by telex,
telefax or letter.
41.2 Letter or Telex: Any communication or document (unless made
by telefax) to be made or delivered by one Person or another
pursuant to this Agreement shall (unless that other Person has by
fifteen days' written notice to the Agent specified anther
address and/or telex number) be made or delivered to that other
Person for the attention of the Person and at the address or
telex number identified with its signature below (or, as the case
may be, in the transfer Certificate pursuant to which it became a
party hereto) and shall be deemed to have been made or delivered
when such communication or document has been despatched and the
appropriate answerback received (in the case of any communication
made by telex) or (in the case of any communication made by
letter) when left at that address or, as the case may be, seven
days after being deposited in the post first class postage
prepaid in an envelope addressed to it as aforesaid Provided
that any communication or document to be made or delivered to the
Agent shall be effective only when received by the Agent and
provided further than any communication or document which is made
or delivered by the Agent and provided further than any
communication or document which is made or delivered or deemed to
have been made or delivered on a day which is not a business day
in the place of receipt or which is made or delivered or deemed
to have been made or delivered after normal business hours in
such place shall deemed to have been made or delivered at the
opening of business on the immediately succeeding business day in
that place.
41.3 Telefax: Where any provision of this Agreement specifically
contemplates telefax communication made by one Person or another,
such communication shall be made to that other Person at the
relevant telefax number specified by it from time to time for the
purpose and shall be deemed to have been received when
transmission of such telefax communication has been completed.
Each such telefax communication, if made to the Agent by an
Obligor shall be made, or as the case may be, signed by an
Authorised Signatory of such Obligor and shall be expressed to be
for the attention of the account officer or department whose name
has been notified for the time being for that purpose by the
Agent or such Obligor.
42. Law
This Agreement shall be governed by, and construed in accordance
with, English law.
AS WITNESS the hands of the duly authorised representatives of
the parties hereto the day and year first before written.
THE FIRST SCHEDULE
The Original Lender
Name Column A Column B Total
Commitment
Revolving Term
Commitment Commitment
Pounds Pounds Pounds
Credit Suisse 100,000,000 460,000,000 560,000,000