CLIFFORD Limited Liability Partnership
CHANCE CONFORMED COPY
DATED 4 SEPTEMBER 2001
WPP GROUP PLC
WPP FINANCE CO. LIMITED
And
WPP GROUP U.S. FINANCE CORP.
(AS BORROWERS)
WPP GROUP PLC
(AS GUARANTOR)
CITIBANK INTERNATIONAL PLC
(AS FACILITY AGENT)
And
THE LENDERS HEREIN REFERRED TO
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$750,000,000 REVOLVING CREDIT FACILITY AGREEMENT
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CONTENTS
Clause Page
1. Interpretation ..................................................... 1
2. Amount And Purpose Of The Facility ................................. 12
3. Syndicate And Borrowers And Guarantors ............................. 12
4. Conditions Precedent ............................................... 14
5. Utilisation Of Facility ............................................ 15
6. Alternative Currencies For Facility ................................ 16
7. Interest And Fees .................................................. 17
8. Reduction Of Facility And Repayment ................................ 19
9. Prepayment And Cancellation ........................................ 19
10. Representations And Warranties ..................................... 21
11. Undertakings ....................................................... 23
12. Changes In Circumstances ........................................... 30
13. Payments ........................................................... 32
14. Default ............................................................ 38
15. Indemnity .......................................................... 41
16. Guarantee .......................................................... 42
17. The Facility Agent ................................................. 45
18. Fees And Expenses .................................................. 49
19. Set-Off And Pro Rata Sharing ....................................... 50
20. Benefit Of Agreement ............................................... 53
21. Further Provisions ................................................. 56
SCHEDULE 1 Lenders And Commitments ................................... 61
SCHEDULE 2 Calculation Of The Mandatory Cost ......................... 62
SCHEDULE 3 Request In Respect Of Advances ............................ 64
SCHEDULE 4 Certificate ............................................... 65
SCHEDULE 5 Form Of Accession Notice .................................. 66
SCHEDULE 6 Notice Of Proposed Substitution ........................... 67
SCHEDULE 7 Form Of Novation Agreement ................................ 68
SCHEDULE 8 Form Of Transfer Certificate .............................. 71
THIS AGREEMENT is made the 4/th/ day of September, 2001.
BETWEEN:
(1) WPP GROUP plc of 27 Farm Street, London W1X 6RD as guarantor and borrower
(the "Company");
(2) WPP FINANCE CO. LIMITED of 27 Farm Street, London W1X 6RD as borrower
("WPP Finance");
(3) WPP GROUP U.S. FINANCE CORP. of 14th Floor, Worldwide Plaza, 309 West
49th Street, New York, NY 10019-7399, USA as borrower ("WPP Group U.S.
Finance");
(4) CITIBANK INTERNATIONAL plc of PO Box 78, 335 Strand, London WC2R 1LS (the
"Facility Agent"); and
(5) THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 (Lenders and
Commitments) (the "Lenders").
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 Definitions
In this Agreement each of the following expressions has, except where the
context otherwise requires, the meaning shown opposite it:
"Accession Notice" means in respect of a proposed additional Borrower, a
notice substantially in the form set out in Schedule 5 (Form of Accession
Notice) duly completed and signed on behalf of the proposed additional
Borrower and the Obligors' Agent;
"Accounts Receivable Facilities" means the receivables purchase facility
in an amount, on 3rd July, 1998, of up to $350,000,000 under the pooling
and servicing agreement dated 3rd December, 1993 between Capital III
Corp. as the seller, WPP Group USA Inc., as the servicer and Mellon Bank
N.A., as the Trustee (together with all related transaction documents as
amended) increased, restated, extended, refinanced or replaced from time
to time;
"Advance" means the principal amount of each amount made available to a
Borrower hereunder in respect of the Facility by way of advance or
roll-over or (as the context requires) the principal amount thereof for
the time being outstanding;
"Affiliate" means, in relation to any person, a Subsidiary of that person
or a Holding Company of that person or any other Subsidiary of that
Holding Company;
"Agent's Spot Rate of Exchange" means the spot rate of exchange
determined by the Facility Agent for the purchase with one currency of
any other relevant currency in the London foreign exchange market at or
about 11.00 a.m. on the date of the relevant Request for delivery two
Business Days later, the Facility Agent's certificate of such rate being
conclusive in the absence of manifest error;
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"Alternative Currency" means euro, sterling and any other currency
(other than dollars) which is freely transferable and immediately
convertible into dollars and available in the London Interbank Market;
"Applicable Accounting Principles" means accounting principles and
practices which at the Signing Date are generally accepted in the United
Kingdom;
"Availability Period" means the period commencing on the Signing Date
and ending at the close of business in New York on the Final Drawing
Date;
"Back to Back Loan" means any loan or other financial accommodation made
available to a member of the Group to the extent that the creditor has
recourse directly or indirectly to a deposit of cash or cash equivalent
investments beneficially owned by any member of the Group placed, as
part of a related transaction, with that creditor (or an affiliate of
that creditor) or a financial institution approved by that creditor on
the basis that the deposit be available, directly or indirectly, so as
to reduce the economic exposure of the creditor to the Group, when
looking at the related transactions together, to a net amount;
"Borrower" means the Company, WPP Finance, WPP Group U.S. Finance and
any additional Borrower as shall accede to this Agreement as a Borrower
pursuant to Clause 3.7 (Accession of Additional Borrowers) or be
substituted under Clause 3.9 (Substitution of Borrowers), in each case
so long as they remain or are required to remain Borrowers and, as the
context requires, together the "Borrowers";
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open in London for the transaction of business of the nature
required by this Agreement and:
(a) in relation to a day on which a payment is to be made in a currency
other than euros in the place of the principal domestic market of
the currency of such payment; and
(b) which is (in relation to any fixing date for euros), a TARGET day;
"Commitment" means in relation to a Lender, the principal amount set
opposite its name in Column 2 of Schedule 1 (Lenders and Commitments) as
reduced or cancelled from time to time in accordance with this Agreement
(subject to any transfer effected in accordance with Clause 20.2
(Assignments and transfers by Lenders));
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in the form recommended by the LMA from time to time or in
any other form agreed between the Company and the Agent.
"Consolidated Revolving Facility Agreement" means the consolidated
revolving facility agreement dated 3rd July, 1998 (as amended or
restated from time to time) between the Company and the other borrowers,
the guarantors, the facility agent, the lenders and the arrangers (in
each case as named therein);
"dollars" and "$" mean the lawful currency of the United States of
America;
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"Dollar Amount" means:
(a) in relation to any Advance or other amount denominated in dollars,
its principal amount; or
(b) in relation to any Advance in an Alternative Currency, the Dollar
Equivalent of the principal amount of such Advance determined on
the date on which a Request is received by the Facility Agent;
"Dollar Equivalent" means in relation to any amount denominated in any
currency other than dollars, the equivalent thereof in dollars as
determined by the Facility Agent on the basis of the Agent's Spot Rate
of Exchange on the date of determination;
"Drawing Date" means a Business Day upon which any Advance is to be made
available;
"Earn-out Payment" means any payment made or to be made to a former
shareholder in a Subsidiary pursuant to arrangements made in connection
with the acquisition of such Subsidiary by any member of the Group and
related to the performance of that Subsidiary, including any payment in
respect of loan notes issued to such former shareholder in connection
with the said acquisition but excluding payments under Employee
Incentive Plans;
"Eligible Company" means any of the Borrowers and any other Subsidiary;
"Employee Incentive Plan" means any arrangement entered into by any
member of the Group (other than Earn-out Payments) for the payment for
services, acquisition or purchase of shares, warrants or other equity
linked instruments of any kind (or options for any of the foregoing) or
similar arrangements with any person (or any entity on behalf of or
ultimately for the benefit of that person) primarily for the purpose of
incentivising or compensating that person for services to any member of
the Group in the nature of services of employment;
"EURIBOR" means in relation to any Advance in euros:
(a) the applicable Screen Rate; or
(b) if the Screen Rate is not available for the relevant period, the
arithmetic mean of the rates (rounded upwards to five decimal
places) as supplied to the Facility Agent at its request quoted by
the Reference Banks to leading banks in the European Interbank
Market,
at or about 11.00 a.m. Brussels time on the Rate Fixing Day for the
offering deposits in euros for a period comparable to the relevant
Interest Period.
"euro" and "EUR" mean the single currency of the Participating Member
States;
"Event of Default" means any of the events mentioned in Clause 14.1
(Events);
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"Exceptional Items" has the meaning given to it in the Applicable
Accounting Principles but shall exclude any items falling within the
definition of Extraordinary Items;
"Existing Facility" means the facility made available pursuant to the
Consolidated Revolving Facility Agreement.
"Existing Facility Outstandings" means the aggregate amount of all
advances (calculated in US$ in accordance with the terms of the
Consolidated Revolving Facility Agreement) for the time being
outstanding under the Existing Facility.
"Extraordinary Items" has the meaning given to it in the Applicable
Accounting Principles;
"Facility" means the multicurrency facility, the terms and conditions of
which are set out in this Agreement;
"Facility Agent" means Citibank International plc or any successor as
facility agent of the Lenders under the Financing Documents;
"Facility Office" means the office or offices notified by a Lender to
the Facility Agent in writing on or before the date it becomes a Lender
(or, following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
"Final Drawing Date" means the date falling seven days prior to the
Final Maturity Date;
"Final Maturity Date" means the date falling 5 years from the date of
this Agreement;
"Financing Documents" means this Agreement, the Accession Notices, and
any other document designated as such by the Facility Agent and the
Obligors' Agent in writing;
"Group" means the Company and the Subsidiaries;
"Guaranteed Amounts" means any and all amounts whatsoever (including,
without limitation, interest after the filing of a petition initiating a
proceeding referred to in sub-clause 14.1.6 of Clause 14.1 (Events),
whether or not such interest constitutes an allowed claim for the
purposes of such proceeding) which are to be paid by the Obligors (or
any of them) other than the Company to the Facility Agent or the Lenders
(or any of them) under the Financing Documents;
"Guarantor" means the Company and any other member of the Group which
becomes a Guarantor in accordance with Clause 11.16 (Guarantees);
"Holding Company" means in relation to a person, an entity of which that
person is a Subsidiary;
"Interest Payment Date" means for any Advance, the last day of an
Interest Period and for any Interest Period longer than six months the
date falling six months after the first day of such Interest Period and
the last day of such Interest Period;
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"Interest Period" means for any Advance, the period determined in
accordance with sub-clause 5.1.5 of Clause 5.1 (Advances);
"Lenders" means the banks and financial institutions listed in Schedule
1 (Lenders and Commitments) and their respective successors, transferees
and assigns as such;
"LIBOR" means:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the relevant currency and
period, the arithmetic mean (rounded upwards to five decimal
places) of the rates, as supplied to the Facility Agent at its
request, quoted by the Reference Banks to leading banks in the
London Interbank Market,
at or about 11.00 a.m. on the applicable Rate Fixing Day for the
offering of deposits in the currency of the relevant Advance for a
period comparable to the relevant Interest Period.
"Loan" means the aggregate of Advances outstanding under this Agreement;
"(pound)", "pounds" and "sterling" mean the lawful currency of the
United Kingdom of Great Britain and Northern Ireland;
"Majority Lenders" means at any time, Lenders whose Commitments
represent more than 66-2/3% in aggregate of the Total Commitments;
"Mandatory Cost" means:
(a) the cash ratio and special deposit requirements of the Bank of
England and/or the banking supervision or other costs imposed by
the Financial Services Authority, as determined in accordance with
Schedule 2 (Calculation of the Mandatory Cost);
(b) in relation to an Advance denominated in dollars to a US
Subsidiary made available by a US incorporated bank or a US branch
of a non-US incorporated bank, the cost (if any) certified by that
Lender as being the cost to it of complying with Regulation D of
the Board of Governors of the Federal Reserve System of the United
States of America attributable to such Advance; and
(c) in relation to any Advance, the cost (if any) certified by any
relevant Lender as being the cost to it of complying with any
applicable regulatory or central bank requirement relating to
Advances in that currency made through a branch in the
jurisdiction of the relevant currency (including, for the
avoidance of doubt, any reserve asset requirements of the European
Central Bank);
"Margin" has the meaning given thereto in Clause 7.1 (Margin,
Commitment and Utilisation Fees);
"Material Subsidiary" means at any time, a Subsidiary whose revenues or
operating profits are at least 5% of the aggregate of the total
consolidated revenues or, as the case
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may be, total consolidated operating profits of all members of the Group.
For this purpose:
(a) in the case of a company which itself has subsidiaries, the
calculation shall be made by using the consolidated revenues or, as
the case may be, consolidated operating profits of it and its
subsidiaries;
(b) the calculation of consolidated revenues or, as the case may be,
consolidated operating profits shall be made by reference to:
(i) the accounts of the relevant Subsidiary (consolidated where
necessary) used for the purpose of the most recent audited
consolidated accounts of the Company; and
(ii) the accounts of each member of the Group used for the purpose of
those audited consolidated accounts of the Company;
"Media Guarantee" means a guarantee issued or to be issued in favour of the
Independent Television Association and/or Channel Four Television
Corporation;
"Notice of Proposed Substitution" means in respect of a proposed substitute
Borrower, the notice delivered by the Obligors' Agent to the Facility Agent
in the form set out in Schedule 6 (Notice of Proposed Substitution);
"Novation Agreement" means in respect of a proposed substitute Borrower, a
novation agreement substantially in the form set out in Schedule 7 (Form of
Novation Agreement) duly executed or to be executed by the parties thereto;
"Obligors" means the Guarantors and the Borrowers.
"Obligors' Agent" means the Company as agent for the Borrowers and the
Guarantor and each of them in accordance with Clause 3.5 (Obligors' Agent);
"Outstandings" means the aggregate of the Dollar Amounts of all Advances
for the time being outstanding under the Facility;
"Participating Member State" means a member state of the European
Communities that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Union relating to European
Economic and Monetary Union;
"Party" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees;
"Potential Event of Default" means any event which with the giving of
notice, expiry of any grace period or satisfaction of any other condition
specified in Clause 14.1 (Events) would constitute an Event of Default;
"Qualifying Lender" means a Lender which is beneficially entitled to
interest payable to that Lender in respect of an Advance and which is:
(a) a bank for the purposes of Section 349(3) of the Taxes Act at the
date of any Advance which (with respect to interest payable under
this Agreement) is
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within the charge to United Kingdom corporation tax as respects such
interest at the time such interest paid; or
(b) a Treaty Lender;
"Rate Fixing Day" means:
(a) the second Business Day before the first day of an Interest Period
for an Advance; or
(b) in the case of an Advance in euros only, the second TARGET day
before the first day of an Interest Period for that Advance; or
(c) in the case of an Advance in Sterling only, the first day of the
Interest Period for that Advance; or
such other day on which it is market practice in the relevant interbank
market for leading banks to give quotations for deposits in the relevant
currency for delivery on the first day of the Interest Period of an
Advance, as determined by the Facility Agent.
"Ratio Certificate" means the certificate referred to in sub-clause 11.5.2
of Clause 11.5 (Compliance certificates);
"Reference Banks" means, the principal London office of each of Barclays
Bank PLC, BNP Paribas and Citibank N.A. and any replacement Lender
nominated under Clause 7.6 (New Reference Bank);
"Relevant Interbank Market" means, in relation to euro, the European
interbank market and, in relation to any other currency, the London
interbank market;
"Request" means a notice of drawing substantially in the form set out in
Schedule 3 (Request in respect of Advances) duly completed and signed by
the Obligors' Agent;
"Security Interest" means any mortgage, charge, pledge, lien or other
security interest;
"Screen Rate" means:
(a) in relation to LIBOR, the average British Bankers Association
Interest Settlement Rate for the relevant currency and period; and
(b) in relation to EURIBOR, the percentage rate per annum determined by
the Banking Federation of the European Union for the relevant
period,
displayed on the appropriate page of the Telerate screen. If the agreed
page is replaced or the services ceases to be available, the Facility Agent
may specify another page or service displaying the appropriate rate after
consultation with the Obligors' Agent and the Lenders;
"Sharing Lender" has the meaning given thereto in sub-clause 19.2.7 of
Clause 19.2 (Pro Rata Sharing);
"Signing Date" means the date of this Agreement;
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"Subsidiary" means a subsidiary for the time being of the Company and
"Subsidiaries" shall refer to all such subsidiaries;
"TARGET Day" means a day on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer (TARGET) System is open for settlement
of payments in euro;
"Tax" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same);
"Taxes Act" means the Income and Corporation Taxes Act 1988;
"Total Commitments" means the aggregate amount for the time being of all
the Commitments in respect of all the Lenders;
"Total Outstandings" means the aggregate amount from time to time of all
Outstandings in respect of all the Lenders;
"Transfer Certificate" means a certificate substantially in the form of
Schedule 8 (Form of Transfer Certificate) delivered by a Lender to the
Facility Agent pursuant to Clause 20.6 (Procedure for Transfer);
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate;
and
(b) the date on which the Facility Agent executes the Transfer
Certificate.
"Treaty Lender" means a Lender which is:
(a) treated as a resident of a Treaty State for the purposes of the
Treaty; and
(b) does not carry on a business in the United Kingdom through a
permanent establishment with which that Lender's participation in
the Advance is effectively connected.
"Treaty State" means a jurisdiction having a double taxation agreement
(a "Treaty") with the United Kingdom which makes provision for full
exemption from tax imposed by the United Kingdom on interest.
"U.S. Borrower" and "U.S. Subsidiary" mean a Borrower or Subsidiary, as
the case may be, incorporated under the laws of any State in the United
States of America; and
"VAT" means value added tax as provided for in the Value Added Tax Act
1994 and any other tax of a similar nature.
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1.2 Financial Definitions
In this Agreement the following expressions have the following meanings:
"Borrowings" means:
(a) moneys borrowed or raised (including, without limitation, amounts
advanced under the Accounts Receivable Facility and any accounts
receivable facility entered into on or after the 3rd July, 1998);
(b) any liability under any bond, bill discounting facility,
debenture, note or other similar debt security or under acceptance
credit or note purchase facilities, letter of credit, subordinated
debt or any amount raised pursuant to an issue of shares which are
expressed to be redeemable (in cash or in instruments which would
themselves constitute Borrowings) on or prior to the Final
Maturity Date;
(c) any liability in respect of the acquisition cost of assets or
services to the extent payable more than 120 days before or after
the time of acquisition or possession thereof by the party liable
but excluding any bona fide performance related cash consideration
payable under Employee Incentive Plans or for an acquisition
calculated by reference to future profits in accordance with the
current practice of the Group as at the 3rd July, 1998;
(d) the capital element of rentals payable under finance leases
(required to be disclosed in accordance with S.S.A.P. 21) entered
into primarily as a method of raising finance or financing the
acquisition cost of the asset in question; and
(e) any guarantee or other assurance against financial loss in respect
of any indebtedness of the type specified in Clauses 1.2(a) to (d)
of this Clause 1.2 (including any obligation to counter-indemnify
any person in respect of the provision of any such guarantee (but
only to the extent that Borrowings supported thereby are
outstanding) or of any Media Guarantee);
but:
(i) indebtedness owing or shares issued by one member of the
Group to another member of the Group shall not be taken
into account as Borrowings;
(ii) interest (other than interest which is capitalised and
which itself bears interest), acceptance commission and
finance charges shall be excluded;
(iii) Trade Debt and Back to Back Loans shall be excluded;
(iv) no indebtedness shall be taken into account more than once
(so that, for example, a guarantee shall be excluded to
the extent that the indebtedness guaranteed thereby is
taken into account); and
(v) the obligations of any member of the Group in respect of
any Media Guarantee shall not be taken into account unless
such Media Guarantee has been called upon in any way;
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"Consolidated EBITDA" means in respect of any financial period the
Relevant Operating Profit of the Group for such financial period:
(a) before deducting all depreciation and other amortisation and
write-downs, including but not limited to, goodwill amortisation
and brand write-downs;
(b) before taking into account all Extraordinary Items and Exceptional
Items (in each case whether positive or negative);
(c) after deducting any gain over, and adding back any losses under,
book value (including related goodwill) arising on the sale, lease
or other disposal of any asset (other than on the sale of trading
stock) during such period and any gain or loss arising on
revaluation of any asset during such period, in each case to the
extent that it would otherwise be taken into account, whether as
an Exceptional Item or otherwise;
and for the purposes of the foregoing no item shall be effectively
deducted or credited more than once in this calculation, all as
determined on a consolidated basis by reference to the most recent
financial statements and certificates delivered pursuant to Clause 11.5
(Compliance Certificates);
"financial period" shall refer to each period of 12 months ending on
30th June and 31st December in each year;
"Interest Cover Ratio" for any financial period in respect of the Group
means the ratio of (a) Consolidated EBITDA to (b) Interest Expense less
Interest Receivable;
"Interest Expense" means, in respect of any financial period, (a) the
amount of interest (or equivalent consideration) accrued (on a
consolidated basis) for or by way of interest or equivalent
consideration on the Advances and other Borrowings of the Group as a
whole including any interest or similar consideration paid or accrued or
discounts given in respect of the sale or financing of Group accounts
receivables and the amount of payments made under interest rate swap and
cap agreements and similar interest rate hedging arrangements made by
the Group as a whole and commissions payable in respect of Media
Guarantees (but excluding commitment fees, management fees, banking
arrangement fees, agent's administration and participation fees
(including those payable hereunder)) determined in accordance with
accounting principles generally accepted under United Kingdom accounting
standards, consistently applied less (b) the amount of payments from
counterparties under interest rate swap and cap agreements and similar
interest rate hedging arrangements receivable or received by the Group
in respect of that period;
"Interest Receivable" means, in respect of any financial period,
interest income accrued during that period on financial deposits and
similar assets of the Group on a consolidated basis;
"Relevant Operating Profit" means, in respect of any financial period,
the consolidated operating profits of the Group, as disclosed in or
derived from the published or announced financial results of the Group;
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"Trade Debt" means:
(a) obligations of any member of the Group to pay the purchase price
of assets or services purchased by any member of the Group in the
ordinary course of business including, without limitation,
indebtedness incurred by any member of the Group in respect of
any documentary letter of credit, bill of exchange or promissory
note issued in respect of any such purchase;
(b) indebtedness incurred by any member of the Group in respect of
any bill of exchange or promissory note drawn on or by, or
accepted, issued or endorsed by, any member of the Group in the
ordinary course of business, including, without limitation,
indebtedness in respect of any moneys raised by way of sale,
discounting or otherwise in respect of any such bill or note; and
(c) indebtedness incurred by any member of the Group in respect of
any guarantee, indemnity, counter-indemnity or other assurance
against financial loss or indebtedness of the type specified in
paragraph (a) or (b) above,
except to the extent that any indebtedness falling within paragraphs (a)
to (c) above is treated as borrowings under accounting principles
generally accepted under United Kingdom accounting standards,
consistently applied.
1.3 Construction
1.3.1 Except where the context otherwise requires, any reference in
this Agreement to:
any of the Financing Documents (including this Agreement) is to
such Financing Document as it may be altered, amended,
supplemented or novated from time to time;
an "agreement" also includes a concession, contract, deed,
franchise, licence, treaty or undertaking (in each case, whether
oral or written);
the "assets" of any person shall be construed as a reference to
the whole or any part of its business, undertaking, property,
assets and revenues (including any right to receive revenues);
a "month" is to a calendar month;
"subsidiary" has the meaning ascribed thereto by section 736
Companies Act 1985 as amended, modified, replaced or re-enacted
from time to time;
words and expressions (including defined words and expressions)
importing the singular include the plural and vice versa, those
importing the masculine gender include the feminine and vice
versa, and references to persons include references to companies
and corporations and vice versa; and
a "time" is to London time.
1.3.2 Headings, sub-headings and the table of contents are for ease of
reference only.
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1.3.3 Nothing in the Contracts (Rights of Third Parties) Act 1999 and
this Agreement confers or purports to confer on any third party
any benefit or any right to enforce any term of this Agreement.
2. AMOUNT AND PURPOSE OF THE FACILITY
2.1 Amount
The maximum aggregate amount for which the Facility is available is
$750,000,000.
2.2 Purpose
The Facility shall be used:
2.2.1 to repay the Existing Facility; and
2.2.2 for general corporate purposes.
3. SYNDICATE AND BORROWERS AND GUARANTORS
3.1 Participation
Subject to the provisions of this Agreement, each Lender shall
participate in any utilisation of the Facility in the proportion which
its Commitment bears to the Total Commitments up to an aggregate
principal Dollar Amount outstanding at any time not exceeding its
Commitment.
3.2 Obligations Several
3.2.1 The rights and obligations of each of the Lenders under the
Financing Documents are several. Failure of a Lender to perform
its obligations under the Financing Documents shall neither:
(a) result in the Facility Agent or any other Lender incurring
any liability whatsoever; nor
(b) relieve the Facility Agent, any Borrower, any Guarantor
or any other Lender from their respective obligations
under the Financing Documents.
3.2.2 The aggregate of the amounts due to each Lender under the
Financing Documents at any time is a separate and independent
debt and, save as otherwise provided in this Agreement and in
particular subject to the provisions of Clause 14 (Default),
each Lender shall have the right to protect and enforce its
rights under the Financing Documents and it shall not be
necessary (except as otherwise provided in the Financing
Documents) for any other Lender or the Facility Agent to be
joined as an additional party in any proceedings to this end.
3.3 Rights of Borrowers
No part of the Facility is reserved for any individual Borrower.
3.4 Liability of Borrowers
The obligations of each Borrower hereunder are separate and distinct and
notwithstanding anything hereinafter contained no Borrower shall be
liable for the obligations of any other Borrower hereunder or for the
obligations of the Obligors' Agent hereunder save that (a) this Clause
3.4 shall not affect the obligations of any Guarantor
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and (b) the obligations of the Borrowers pursuant to Clauses 15
(Indemnity) and 18 (Fees and Expenses) shall be joint and several.
3.5 Obligors' Agent
Each Obligor irrevocably authorises and instructs the Obligors' Agent
separately to give and receive as agent on its behalf all notices and to
take such other action (including, without limitation, the giving of
consents, the signing of certificates or the acceptance of any proposal)
as may be necessary or desirable under or in connection with the
Financing Documents and confirms that it will be bound by any action
taken by the Obligors' Agent under or in connection with the Financing
Documents.
3.6 Actions of Obligors' Agent
The respective liabilities of each of the Obligors under the Financing
Documents shall not be in any way affected by (a) any irregularity in
any act done by or any failure to act by the Obligors' Agent or (b) the
Obligors' Agent acting in any respect outside any authority conferred
upon it by any Borrower or the Guarantor or (c) the failure by or
inability of the Obligors' Agent to inform any Obligor of receipt by it
of any notification hereunder or under any of the other Financing
Documents.
3.7 Accession of Additional Borrowers
The Obligors' Agent may from time to time deliver to the Facility Agent
an Accession Notice in the form of Schedule 5 (Form of Accession Notice)
duly completed and executed by the Obligors' Agent and a proposed
additional Borrower (which must be a Subsidiary). Upon, but not before,
the Facility Agent notifying the Lenders of receipt of the Accession
Notice and the documents specified in Clause 4.2 (Conditions for
Additional and Substitute Borrowers) in form and substance satisfactory
to the Facility Agent (acting reasonably), the proposed additional
Borrower shall become an additional Borrower.
3.8 Removal of Borrowers
Any Borrower (other than the Company), in respect of which no Advance is
outstanding hereunder (including any other amounts outstanding in
relation thereto) in respect of the Facility may at the request of the
Obligors' Agent cease to be a Borrower hereunder in respect of the
Facility by entry into a supplemental agreement to this Agreement in
such form as the Facility Agent and the Obligors' Agent shall reasonably
require which shall discharge the Borrower's obligations hereunder.
3.9 Substitution of Borrowers
Any Borrower (the "Existing Borrower") may be released from its
obligations under this Agreement in relation to the Facility provided
that another Eligible Company (the "Substitute Borrower") assumes the
obligations in respect thereof of the Existing Borrower and provided
further that:
3.9.1 any such substitution shall take effect on and from the later
of the day upon which the Facility Agent notifies the
Obligors' Agent in writing that it is satisfied with the
compliance with the matters set out in sub-clauses 3.9.3 and
3.9.4 of this Clause 3.9 and the date for substitution
specified in the relevant Notice of Proposed Substitution;
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3.9.2 a Notice of Proposed Substitution, substantially in the form
of Schedule 6 (Notice of Proposed Substitution) has been
delivered by the Obligors' Agent to the Facility Agent not
less than 14 days prior to the proposed substitution;
3.9.3 the Substitute Borrower enters into a Novation Agreement with
the Existing Borrower, the Obligors' Agent and the Facility
Agent on behalf of the Lenders in the form of Schedule 7 (Form
of Novation Agreement) together with such amendments as the
Facility Agent may reasonably require; and
3.9.4 the documents referred to in Clause 4.2 (Conditions for
Additional and Substitute Borrowers) shall have been provided
to the Facility Agent.
4. CONDITIONS PRECEDENT
4.1 Conditions to the Facility
The obligations of each Lender under this Agreement are subject to the
Facility Agent having received the following in each case in form and
content satisfactory to it (acting reasonably), that is to say:
4.1.1 a certificate in respect of each Borrower signed by an officer
of the Borrower substantially in the form set out in Schedule
4 (Certificate) and the documents therein referred to;
4.1.2 a certificate of a director of the Company confirming that
utilisation in full of the Facility in accordance with its
terms would not cause any borrowing and/or guarantee limit on
any Obligor to be exceeded;
4.1.3 evidence that the undrawn amount under the Existing Facility
as at the date of this Agreement has been or will be cancelled
in full on or before the date on which the first Advance is
made under this Agreement.
4.1.4 a copy of the latest audited consolidated financial statements
of the Company and, if required to be produced by the relevant
statutory authority, the latest audited financial statements
for each Borrower;
4.1.5 an opinion of Davis & Gilbert LLP lawyers in the USA; and
4.1.6 an opinion of Clifford Chance, English Counsel to the Lenders.
4.2 Conditions for Additional and Substitute Borrowers
A proposed additional or substitute Borrower shall deliver to the
Facility Agent the following documents in each case in form and content
satisfactory to the Facility Agent (acting reasonably), that is to say:
4.2.1 a certificate signed by the secretary of the Borrower
substantially in the form set out in Schedule 4 (Certificate)
and the documents therein referred to;
4.2.2 a certificate of a director of the Company confirming that
utilisation in full of the Facility in accordance with its
terms would not cause any borrowing limit on any Borrower to
be exceeded; and
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4.2.3 an opinion of an independent firm of lawyers in the country of
incorporation of the Borrower.
4.3 Conditions to Each Utilisation
Each utilisation, in whatever form, of the Facility (other than any
utilisation which, taken together with any repayment on the date of
such utilisation of amounts outstanding under the Facility in the same
currency, will not result in any increase in the amount outstanding
thereunder (a "roll-over utilisation")) is subject to the further
conditions precedent that both on the date of the relevant Request and
on the relevant Drawing Date or date of utilisation:
4.3.1 no Event of Default or Potential Event of Default has occurred
and is continuing or would occur as a result of making the
Advance available or permitting the utilisation; and
4.3.2 each of the warranties deemed to be repeated in Clause 10
(Representations and Warranties) remains accurate in all
material respects at the Drawing Date or the date of the
relevant utilisation as if given on that date by reference to
the facts and circumstances then existing.
Each roll-over utilisation is subject to the further condition
precedent that both on the date of the relevant Request and on the date
of such roll-over utilisation no Event of Default has occurred or is
continuing or would occur as a result of making the Advance available
or permitting the utilisation.
5. UTILISATION OF FACILITY
5.1 Advances
Subject to the terms of this Agreement, any Borrower may on Business
Days during the Availability Period draw an Advance under the Facility
by the Obligors' Agent delivering to the Facility Agent no later than 3
pm on the third Business Day prior to the proposed Drawing Date for an
Advance in dollars or in an Alternative Currency (other than sterling),
and no later than 3 pm on the Business Day prior to the proposed
Drawing Date for an Advance to be in sterling a duly completed Request
in the form set out in Schedule 3 (Request in Respect of Advances),
specifying in respect of the proposed Advance:
5.1.1 the Borrower;
5.1.2 the proposed Drawing Date, which shall be a Business Day
falling on or prior to the Final Drawing Date;
5.1.3 the currency of the Advance (each Request request one currency
only);
5.1.4 the amount of the Advance which shall be a Dollar Amount of
not less than $5,000,000 (or, if in sterling,
(pound)2,000,000) or such other multiple in the currency
concerned as the Facility Agent and the Obligors' Agent may
agree and which shall not in any event at the time immediately
preceding the Advance exceed (a) the Total Commitments less
(b) the aggregate of the Total Outstandings and the Existing
Facility Outstandings; and
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5.1.5 the Interest Period which in respect of Advances under the
Facility from time to time having an aggregate principal
amount which does not for the time being exceed $250,000,000,
may be for a period of between seven and thirty days and
otherwise for a period of one, two, three or six months or
such other period as has been agreed by the Obligors' Agent
with, in respect of periods not exceeding twelve months, the
Facility Agent (acting on the instructions of the Majority
Lenders) and in respect of periods of twelve months or more,
the Facility Agent (acting on the instructions of all the
Lenders).
5.2 Irrevocability
A Request shall be irrevocable and, subject to the terms of this
Agreement, the Borrower named therein shall draw the Advance on the
Drawing Date specified in the Request.
5.3 Notice to Lenders
When the Facility Agent actually receives a Request pursuant to Clause
5.1 (Advances) it shall promptly (and in any event by no later than
9.30am on the Business Day following the date of such Request) notify
each of the Lenders of the amount of the proposed Advance and the
proposed Drawing Date and that Lender shall, subject to the provisions
of this Agreement, make available to the Facility Agent on the Drawing
Date its participation in that Advance.
5.4 Number of Advances
No more than 15 Advances may be outstanding at any one time.
6. ALTERNATIVE CURRENCIES FOR FACILITY
6.1 Alternative Currencies
6.1.1 If, before 10.30am two Business Days prior to the Drawing Date
relative to an Advance which it is proposed be denominated in
an Alternative Currency (other than sterling), the Facility
Agent receives notice from a Lender that:
(a) it is impracticable for the Lender to fund its
participation in the Advance in the proposed Alternative
Currency in the ordinary course of business in the
London Interbank Market (or the European Interbank
Market in relation to Advances in euro); or
(b) the central bank or other governmental authorisation in
the country of the proposed Alternative Currency is
required to permit its use by the Lender (through the
office through which it participates in the Facility)
for lending under this Agreement and the authorisation
has not been obtained or is not in full force and
effect; or
(c) the use of the proposed Alternative Currency is
restricted or prohibited by any request, directive,
regulation or guideline of any governmental body,
agency, department or regulatory or other authority
(whether or not having the force of law) in accordance
with which the Lender is accustomed to act,
the Facility Agent shall give notice to the Obligors' Agent to
that effect before 11.30am on that day.
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6.1.2 If the Facility Agent delivers notice under sub-clause 6.1.1
of this Clause 6.1:
(a) the Lender's participation in the Advance shall be
denominated in dollars; and
(b) the relevant Borrower shall indemnify each Lender against
any loss and expense which such Lender may have
reasonably incurred as a consequence of the operation of
this Clause.
6.2 Notification
The Facility Agent shall promptly notify the Obligors' Agent and the
Lenders of the Agent's Spot Rate of Exchange and relevant Dollar Amount
at the same time as it notifies the Lenders of the details of any
Request.
6.3 Availability of Alternative Currencies
If the Obligors' Agent delivers to the Facility Agent a Request
specifying that a Borrower wishes an Advance to be denominated in an
Alternative Currency and to give effect to such request would cause the
Loan to be denominated in more than four Alternative Currencies, then
the Facility Agent will promptly notify the Obligors' Agent and the
Lenders shall not be obliged to make any such Advance.
7. INTEREST AND FEES
7.1 Margin, Commitment and Utilisation Fees
7.1.1 The Margin for any Interest Period shall be 0.40% per annum.
7.1.2 The Company shall pay a utilisation fee (the "Utilisation
Fee") of: i) 0.05% per annum on the Dollar Amount of the Total
Outstandings for any day on which the Dollar Amount of the
Total Outstandings exceeds 33-1/3% of the Total Commitments but
is less than or equal to 66-2/3% of the Total Commitments and
ii) 0.075% per annum on the Dollar Amount of the Total
Outstandings for any day on which the Dollar Amount of the
Total Outstandings exceeds 66-2/3% of the Total Commitments.
Such fee shall be payable on the day which is 3 months after
the date of this Agreement and on each day falling at 3
monthly intervals thereafter (the "Payment Dates") and shall
be payable in respect of each day on which such an excess
occurs during the 3 month period preceding each payment date.
7.1.3 The amount of the relevant Utilisation Fee shall be notified
to the Borrowers by the Facility Agent and following such
notification shall be paid to the Facility Agent for the
account of the Lenders pro rata to the proportion which their
respective Commitments bear to the Total Commitments.
7.1.4 The Borrowers shall pay a commitment fee in dollars calculated
from day to day on the daily amount by which the Total
Commitments exceed the aggregate of the Total Outstandings and
the Existing Facility Outstandings (such fee to be calculated
on the basis of actual days elapsed from the Signing Date and
a 360 day year at the rate of 0.175% per annum).
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7.1.5 The commitment fee shall be paid to the Facility Agent for the
account of the Lenders pro rata to the proportion which their
respective Commitments bear to the Total Commitments under the
Facility.
7.1.6 The commitment fee shall be paid on the day which falls three
months after the date of this Agreement and on each date
falling at three monthly intervals thereafter and on the Final
Drawing Date (or any earlier date on which the relevant
Commitments of the Lenders are permanently reduced to zero).
7.2 Interest Periods
7.2.1 The Interest Period for each Advance shall commence on the
date of that Advance.
7.2.2 An Interest Period which would otherwise end on a day which is
not a Business Day shall end on the next succeeding Business
Day save that an Interest Period which commences on the last
Business Day in a calendar month, or if there is no
corresponding day in the calendar month in which it is to end,
shall end on the last Business Day in a calendar month.
7.2.3 No Advance shall have an Interest Period ending after the
Final Maturity Date.
7.2.4 The Obligors' Agent and the Facility Agent may enter into such
other arrangements as they may agree for the consolidation or
splitting of Advances and Interest Periods.
7.3 Rate of Interest for Facility
The rate of interest payable on an Advance under the Facility for each
Interest Period shall be the rate per annum determined by the Facility
Agent to be the aggregate of:
7.3.1 the Margin;
7.3.2 LIBOR or, in the case of an Advance in euros, EURIBOR; and
7.3.3 the Mandatory Cost (if any).
7.4 Payment of Interest on Advances
Interest shall be calculated on the basis of actual days elapsed (not
counting within an Interest Period the last day of that Interest
Period) and a year of 360 days (or in the case of sterling, Hong Kong
Dollars, Belgian Francs and Singapore Dollars, 365 days or such other
period applied generally in the relevant market to such calculations
for the relevant currency) and shall be paid on each Advance by the
relevant Borrower to the Facility Agent for the account of the Lenders
in arrears on the Interest Payment Date in the currency applicable to
that Advance.
7.5 Facility Agent's Certificate
In respect of any Advance the Facility Agent shall notify the Obligors'
Agent and the Lenders of the rate of interest as soon as it is
determined under this Agreement. The certificate of the Facility Agent
as to a rate of interest shall, in the absence of manifest error, be
conclusive.
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7.6 New Reference Bank
In respect of any Advance if any Reference Bank ceases to be a Lender:
7.6.1 it shall cease to be a Reference Bank; and
7.6.2 the Facility Agent shall, with the approval (which shall not
be unreasonably withheld) of the Obligors' Agent, nominate as
soon as reasonably practicable another Lender to be a
Reference Bank in place of such Reference Bank.
8. REDUCTION OF FACILITY AND REPAYMENT
8.1 Reduction
Subject to the provisions of this Agreement, the amount of each Advance
shall be reduced to zero on the Final Maturity Date. The undrawn
portion of the Total Commitments shall be cancelled on the Final
Drawing Date.
8.2 Repayment
The relevant Borrower shall on the last day of the Interest Period
relating to each Advance made to it repay that Advance to the Facility
Agent for the account of the Lenders in accordance with Clause 13.1 (By
Borrowers and the Guarantor). All Advances outstanding on the Final
Maturity Date shall be repaid on that date and the Facility shall be
cancelled on that date.
9. PREPAYMENT AND CANCELLATION
9.1 Voluntary Prepayment
9.1.1 Any Borrower may, without premium, prepay an Advance made to
it in whole or in part (but, if in part, in an aggregate
minimum amount of $5,000,000 and an integral multiple of
$1,000,000 or such other minimums and multiples in the
currency concerned as the Facility Agent and Obligors' Agent
may agree), provided that the Obligors' Agent has given the
Facility Agent not less than ten days' prior notice stating
the principal amount of the Advance to be prepaid.
9.1.2 Any prepayment under this Clause 9.1 shall be made together
with accrued interest and all other amounts due under this
Agreement (including, without limitation, such amounts as may
be due under Clauses 12.2 (Increased Costs), 13.3
(Withholdings) and/or 15.1 (General Indemnity)) in respect of
the prepayment.
9.2 Mandatory Prepayment
If any person or group of persons acting in concert (as defined in the
City Code on Takeovers and Mergers) acquires control (as defined in
Section 416 of the Income and Corporation Taxes Act 1988) of the
Company:
(i) the Company shall promptly notify the Facility Agent upon
becoming aware of that event; and
(ii) if the Majority Lenders so require, the Facility Agent shall
(and in circumstances where such acquisition of control takes
place with the consent, and on the recommendation, of the
Board of Directors of the Company, by not less than 90 days'
notice to the Company) cancel the Facility and declare all
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outstanding Advances together with accrued interest, and all
other amounts accrued under the Financing Documents
immediately due and payable whereupon the Facility will be
cancelled and all such outstanding amounts will become
immediately due and payable.
9.3 Cancellation of Facility
The Obligors' Agent may, without premium, cancel the undrawn part of
the Facility (in respect of which no Request has been served), in whole
or in part (being in a minimum amount of $5,000,000 and an integral
multiple of $1,000,000) at any time provided that it has given the
Facility Agent not less than ten days prior written notice stating the
principal amount to be cancelled. During such ten day period the
Obligors' Agent may not draw or utilise all or any part of the amount
the subject of such notice of cancellation. Any cancellation in part
shall be applied against the relevant Commitment of each relevant
Lender pro rata.
9.4 Prepayment of Certain Lenders
9.4.1 Without prejudice to the rights of the Borrowers under Clause
12.6 (Mitigation), if
(a) any Borrower becomes or will on or before the last day
of the Interest Period relating to an Advance made to it
become obliged to pay to any Lender additional amounts
pursuant to Clause 12.2 (Increased Costs) or any amounts
pursuant to Clause 12.5 (Market Disruption); and
(b) the Obligors' Agent gives to the Facility Agent and the
relevant Lender not less than 10 days' notice of the
date of prepayment,
the Borrowers may on the date of prepayment specified in that
notice prepay all (but not part only) of that Lender's
participation in all Advances outstanding.
9.4.2 Any prepayment under this Clause 9.4 (Prepayment of Certain
Lenders) shall be made together with accrued interest and all
other amounts due to the relevant Lender under this Agreement
(including, without limitation, such amounts as may be due
under Clauses 12.2 (Increased Costs), Clause 13.3
(Withholdings) and/or 15.1 (General Indemnity)).
9.4.3 If a Lender's participation in all Advances is prepaid under
this Clause 9.4, that Lender's Commitment shall thereupon be
cancelled.
9.5 Irrevocability
Any notice under Clause 9.1 (Voluntary Prepayment), 9.3 (Cancellation
of Facility) or 9.4 (Prepayment of Certain Lenders) shall be
irrevocable. The amount of any prepayment shall become due and payable
on the applicable date. No amount cancelled under Clause 9.3
(Cancellation of Facility) or 9.4 (Prepayment of Certain Lenders) may
subsequently be reinstated.
9.6 Currency
Repayment and prepayment shall each be made in the currency or
currencies in which the amounts repaid or prepaid (as appropriate) are
denominated on the day the repayment or prepayment (as appropriate) is
due to be made.
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9.7 Redrawing
Any Advance prepaid under sub-clause 9.1.1 of Clause 9.1 (Voluntary
Prepayment) shall be available to be redrawn during the Availability
Period.
10. REPRESENTATIONS AND WARRANTIES
10.1 On signing
Each Obligor acknowledges that each of the Lenders and the Facility
Agent has entered into the Financing Documents in full reliance on
representations by each Obligor in the following terms and each Obligor
warrants to each of them in respect of itself, and the Company warrants
to each of them in respect of itself and of each other Obligor that as
of the Signing Date:
10.1.1 Status: it is duly incorporated with limited liability and
validly existing and, in the case of a U.S. Borrower in good
standing, under the laws of its place of incorporation;
10.1.2 Powers and authorisations: the documents which contain or
establish its constitution include provisions which give
power, and all necessary corporate authority has been obtained
and action taken, for it to own its assets, carry on its
business and operations as they are now being conducted, and
sign and deliver, and perform the transactions contemplated
in, the Financing Documents to which it is a party and the
Financing Documents to which it is a party constitute valid
and binding obligations of it enforceable in accordance with
their terms subject to general equitable principles,
insolvency, liquidation and other laws affecting creditors'
rights generally;
10.1.3 Non-Violation: neither the signing and delivery of the
Financing Documents to which it is a party nor the performance
of any of the transactions contemplated in any of them does or
will contravene or constitute a default under, or cause to be
exceeded any limitation on it or the powers of its directors
imposed by or contained in, (a) any law by which it or any of
its assets is bound or affected, (b) any document which
contains or establishes its constitution, or (c) any agreement
to which it is a party or by which any of its assets is bound
which has had or would be reasonably likely to have, in any
such case, a material adverse effect on its ability to observe
and perform its obligations under the Financing Documents;
10.1.4 Consents: no authorisation, approval, consent, licence,
exemption, registration, recording, filing or notarisation and
no payment of any duty or Tax and no other action whatsoever
which has not been duly and unconditionally obtained, made or
taken is necessary or desirable to ensure the validity or
enforceability of the liabilities and obligations of it or the
rights of the Facility Agent and the Lenders (or any of them)
under the Financing Documents;
10.1.5 Deduction of Tax: it is not required under the law of its
jurisdiction of incorporation (or, if different, the law of
the jurisdiction in which that Obligor is resident for tax
purposes) to make any deduction for or on account of Tax from
any payment it may make under any Financing Document.
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10.1.6 No filing or stamp taxes: under the law of its jurisdiction of
incorporation it is not necessary that the Financing Documents
be filed, recorded or enrolled with any court or other
authority in that jurisdiction or that any stamp, registration
or similar tax be paid on or in relation to the Financing
Documents or the transactions contemplated by the Financing
Documents.
10.1.7 No misleading information:
(a) Any factual information generated and provided by any
Obligor to the Lenders in relation to this Agreement on
or prior to the date of this Agreement was true and
accurate in all material respects as at the date it was
provided or as at the date (if any) at which it is
stated.
(b) No information has been withheld that results in any
information provided to the Lenders in relation to this
Agreement on or prior to the date of this Agreement
being untrue or misleading in any material respect.
10.1.8 No Default:
(a) no Event of Default has occurred which is continuing
under this Agreement; and
(b) no event has occurred which constitutes a contravention
of, or default in any material respect under, any
agreement or instrument (other than the Financing
Documents) by which it or any of its assets is bound or
affected, being a contravention or default which has had
or would be reasonably likely either to have a material
adverse effect on the business, assets or consolidated
financial condition of the Group as a whole or
materially and adversely affects the ability of the
Obligors as a whole to observe or perform their
obligations under the Financing Documents;
10.1.9 Litigation: no litigation, arbitration or administrative
proceeding or claim in which there is a reasonable possibility
of an adverse decision which has had or would be reasonably
likely by itself or together with any other such proceedings
or claims either (a) to have a material adverse effect on the
business, assets or consolidated financial condition of the
Group as a whole or (b) materially and adversely to affect the
ability of the Obligors as a whole to observe or perform their
obligations under any Financing Documents or (c) to impair the
validity or enforceability of this Agreement or any other
Financing Document, is presently in progress or pending or, to
the knowledge of any Obligor, threatened against any member of
the Group or any of their assets;
10.1.10 Accounts: the audited consolidated financial statements
(including the profit and loss, cash flow statement and
balance sheet) of the Group for the year ended 31 December
2000 have been prepared on a basis consistently applied in
accordance with generally accepted accounting principles and
practices in England and Wales and give a true and fair view
of the results of the operations of the Group for that year
and the state of the affairs of the Group at that date:
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since that date there has been no material adverse change in
the consolidated financial condition of the Group as shown in
such statements;
10.1.11 Investment Company Act: none of the Obligors or their
respective subsidiaries is an "investment company" or an
"affiliated person" or, "promoter" or "principal underwriter"
for an "investment company" within the meaning of the United
States Investment Company Act of 1940, as amended; and
10.1.12 Public Utility Holding Company Act: none of the Obligors is a
holding company or a subsidiary company of a holding company
or an affiliate of a holding company or of a subsidiary
company of a holding company within the meaning of the United
States Public Utility Holding Company Act of 1935, as amended.
10.2 After Signing
Each Obligor shall be deemed to represent and warrant in respect of
itself, and the Company shall be deemed to warrant in respect of itself
and each other Obligor, to the Facility Agent and the Lenders (and each
of them) on the date of each Request every Drawing Date and on every
other date upon which any utilisation of the Facility is made
available, with reference to the facts and circumstances then
subsisting, that each of the representations and warranties contained
in sub-clauses 10.1.1, 10.1.2, 10.1.3, 10.1.8, 10.1.11 and 10.1.12 of
Clause 10.1 (On Signing) remains correct.
11. UNDERTAKINGS
11.1 Duration
The undertakings in this Clause shall remain in force for so long as
any amount is or may be outstanding under the Facility or any
Commitment is in force.
11.2 Information
The Obligors will furnish or procure to be furnished to the Facility
Agent, in sufficient copies for each of the Lenders:
11.2.1 as soon as practicable (and in any event within 180 days after
the close of each of the Company's financial years) the
audited consolidated accounts of the Group for that year;
11.2.2 as soon as practicable (and in any event within 90 days of the
end of each half year of the Company's financial year) the
published unaudited interim consolidated accounts of the
Group;
11.2.3 promptly, all notices, other documents or information
despatched by the Company to its shareholders generally (or
any class thereof) or its creditors generally (or any class
thereof);
11.2.4 promptly, such further information in the possession or
control of any of the Obligors or of any of their respective
Material Subsidiaries regarding the financial condition or
operations of any of the Obligors or any of their respective
Material Subsidiaries, as the Facility Agent may reasonably
request; and
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11.2.5 details of any litigation, arbitration or administrative
proceedings, which, if adversely determined, would be
reasonably likely to have a material adverse effect on
the business, assets or consolidated financial condition
of the Group as a whole or materially and adversely to
affect the ability of any Obligor to observe or perform
its obligations under the Financing Documents and which
affect any Obligor or the Group as a whole, as soon as
the same are instituted, or, to the knowledge of any
Obligor, are threatened.
All accounts and statements required under this Clause shall be
prepared in accordance with Applicable Accounting Principles
consistently applied and shall give a true and fair view of the
state of affairs of the Group and of the profit and cash flows of
the Group and in the case of unaudited accounts and statements
shall be prepared in a manner which is consistent with the audited
consolidated accounts of the Group except to comply with changes
in accounting practice or as noted therein.
11.3 Financial Ratios
11.3.1 The Company undertakes that it will procure that the
Interest Cover Ratio for each financial period will equal
or exceed 5.0 to 1.
11.3.2 The Company undertakes that it will procure that, as at
30th June and 31st December in each year, the financial
condition of the Group shall be such that the ratio of
the Borrowings of the Group on a consolidated basis to
Consolidated EBITDA shall not exceed 3.5 to 1.
11.4 Notification of default
The Obligors' Agent, and each Obligor will notify the Facility
Agent in writing of any Event of Default or Potential Event of
Default forthwith upon becoming aware thereof.
11.5 Compliance certificates
The Company will no later than the time of the delivery of the
accounts specified in sub-clauses 11.2.1 and 11.2.2 of Clause 11.2
(Information) (and, in relation to a certificate dealing with the
matters referred to in sub-clause 11.5.1 of this Clause 11.5, also
promptly at the request of the Facility Agent from time to time)
furnish the Facility Agent with:
11.5.1 a certificate signed by any two of the Company Secretary,
the Director of Group Treasury (or equivalent from time
to time) and the executive directors of the Company
certifying on behalf of the Company without personal
liability that no Event of Default or Potential Event of
Default has occurred and is continuing or, if the same
has occurred, specifying the Event of Default or
Potential Event of Default and the steps being taken to
remedy the same; and
11.5.2 a certificate (a "Ratio Certificate") signed by either of
the Group Finance Director and the Chief Executive of the
Company certifying without personal liability, as at the
end of the period to which the relevant accounts relate,
compliance with the covenants in Clause 11.3 (Financial
Ratios) or, if such covenants have not been met,
specifying the same and, in each case, setting out in
reasonable detail the relevant computations.
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11.6 Consents
Each Obligor will use its best endeavours to obtain and promptly
renew from time to time, and will promptly furnish certified
copies to the Facility Agent of, all such authorisations,
approvals, consents, licences and exemptions as may be required
under any applicable law or regulation to enable it to perform its
obligations under the Financing Documents or required for the
validity or enforceability of the Financing Documents and each
Obligor shall comply with the terms of the same.
11.7 Compliance with laws
Each Obligor shall comply in all respects with all laws to which
it may be subject, if failure so to comply would materially impair
its ability to perform its obligations under the Financing
Documents.
11.8 Pari passu ranking
Each Obligor undertakes that, subject as set out herein, its
obligations under the Financing Documents do and will rank at
least pari passu with all its other present and future unsecured
and unsubordinated obligations other than obligations in respect
of national, provincial and local taxes and employees'
remuneration and taxes and for certain other statutory exceptions.
11.9 Negative pledge
The Company undertakes that with effect from drawdown of the
Facility each Obligor will not create, suffer or permit to subsist
(and will procure that none of its Subsidiaries will create,
suffer or permit to subsist) any Security Interest on the whole or
any part of its respective present or future assets except for the
following:
11.9.1 Security Interests created with the prior written consent
of the Majority Lenders;
11.9.2 Security Interests arising by operation of law in the
ordinary course of business including, without
limitation, statutory liens and encumbrances;
11.9.3 any Security Interest over the assets and/or revenues of
a company which became or becomes a Subsidiary of any
Obligor after the Signing Date and which Security
Interest is in existence or contracted to be given as at
the date it becomes a Subsidiary (and which was not
created in contemplation of it becoming a Subsidiary)
provided that the principal amount of any borrowing which
may be so secured shall not be increased beyond the
amount outstanding or committed at the date it becomes a
Subsidiary but shall be reduced in accordance with its
terms and provided further that in the case of a
fluctuating amount for banking type accommodation the
foregoing shall not prevent fluctuation within the
overall limit that existed at that date and provided that
the amount secured under any such Security Interest shall
not be increased beyond the amount secured at the date
the company becomes a Subsidiary;
11.9.4 those Security Interests existing at the Signing Date
over the assets and/or revenues of a Subsidiary (whether
or not it an Obligor), provided that the principal amount
of any borrowing which may be so secured shall not be
increased beyond the amount outstanding or committed at
the Signing Date but
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shall be reduced in accordance with its terms and provided
further that in the case of a fluctuating amount for
banking type accommodation the foregoing shall not prevent
fluctuation within the overall limit that existed at the
Signing Date;
11.9.5 Security Interests securing the performance of bids,
tenders, bonds, leases, contracts (other than in respect of
Borrowings), statutory obligations, surety, customs and
appeal bonds and other obligations of like nature (but not
including obligations in respect of Borrowings) incurred in
the ordinary course of business provided that the aggregate
amount secured under such Security Interests shall not, at
any time, exceed $30,000,000 save that such aggregate
amount may be exceeded with the prior written consent of
the Majority Lenders;
11.9.6 Security Interests arising out of judgments or awards which
are being contested in good faith and with respect to which
an appeal or proceeding for review has been instituted or
the time for doing so has not yet expired;
11.9.7 Security Interests upon any property which are created or
incurred contemporaneously with the acquisition of such
property to secure or provide for the payment of any part
of the purchase price of such property (but no other
amounts), provided that any such Security Interest shall
not apply to any other property of the purchaser thereof
and provided further that the aggregate amount of all
liabilities secured by Security Interests permitted by this
sub-clause 11.9.7 shall not, at any time, exceed
$40,000,000;
11.9.8 any Security Interest arising out of title retention
provisions in a supplier's conditions of supply of goods or
services acquired by a member of the Group in the ordinary
course of its business;
11.9.9 any right of any bank or financial institution of
combination or consolidation of accounts or right to
set-off or transfer any sum or sums standing to the credit
of any account (or appropriate any securities held by such
bank or financial institution) in or towards satisfaction
of any present or future liabilities to that bank or
financial institution;
11.9.10 any Security Interest securing indebtedness re-financing
indebtedness secured by Security Interests permitted by
sub-clauses 11.9.3, 11.9.4 or 11.9.7 of this Clause 11.9 or
this sub-clause 11.9.10 provided that (except to the extent
otherwise permitted by sub-clause 11.9.1 of this Clause
11.9) the maximum principal amount of the indebtedness
secured by such Security Interests is not increased and
such Security Interests do not extend to any assets which
were not subject to the Security Interests securing the
re-financed indebtedness;
11.9.11 any Security Interest created by a member of the Group
which is not an Obligor securing banking facilities over
accounts receivable (or book debts) outside the U.K. or the
U.S.A.;
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11.9.12 any other Security Interest created or outstanding on or over
any assets of any member of the Group provided that the
aggregate outstanding amount secured by all Security Interests
created or outstanding under this exception in this sub-clause
11.9.12 shall not at any time exceed $60,000,000 or its
equivalent and further provided that no single such Security
Interest under this sub-clause 11.9.12 shall secure an
aggregate principal amount exceeding $15,000,000 or its
equivalent; and
11.9.13 any Security Interest arising out of any of the Accounts
Receivable Facilities or Back to Back Loans.
11.10 Disposals
No Obligor will, without the prior written consent of the Majority
Lenders (which may be given subject to conditions), and each Obligor
will procure that none of its Subsidiaries will sell, transfer, lease or
otherwise dispose of all or any substantial part of their respective
assets except on an arm's length basis and for a fair market value or to
another member of the Group.
11.11 Change of business
Except with the prior written consent of the Majority Lenders, no
Obligor will, and each Obligor will procure that none of its Material
Subsidiaries will, make any change in its business as presently
conducted, or carry on any other business other than its business as
presently conducted or business consisting of allied or related
activities, provided that this prohibition shall not apply unless such
change of business or other business alters the nature of the business
of the Group as a whole.
11.12 Mergers
No Obligor will without the prior written consent of the Majority
Lenders enter into any merger or consolidation if the effect thereof
would be to alter the legal personality or identity of such Obligor
except that any Borrower or any Guarantor may merge or consolidate with
or into any other Subsidiary which is in the same jurisdiction as the
relevant Borrower or the relevant Guarantor (as the case may be)
provided that from the date on which the merger or consolidation takes
effect a Borrower or a Guarantor is the legal entity surviving the
merger or the legal entity into which it shall be merged or the legal
entity which is formed by such consolidation shall assume its
obligations hereunder in an agreement or instrument satisfactory in form
and substance to the Majority Lenders.
11.13 Insurance
Each Obligor will, and will procure that each of its Material
Subsidiaries will, effect and maintain such insurance over and in
respect of its respective assets and business and in such manner and to
such extent as is reasonable and customary for a business enterprise
engaged in the same or a similar business and in the same or similar
localities.
11.14 Limitation on Borrowings of Subsidiaries
The Company will not permit any of its Subsidiaries to create, permit to
subsist, incur, assume or in any other manner be or become directly or
indirectly liable for the payment of any Borrowings (including, without
limitation, by way of indemnity, counter-indemnity or guarantee) other
than:
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11.14.1 Borrowings under this Agreement and Borrowings of the Company
under the Existing Facility;
11.14.2 3% Young & Rubicam Inc. convertible subordinated notes due
January, 2005;
11.14.3
(a) EUR350,000,000 WPP Group plc 5.125% notes due 2004; and
(b) EUR650,000,000 WPP Group plc 6.000% notes due 2008;
11.14.4 guarantee obligations of the Company in respect of the:
(a) US$200,000,000 WPP Finance (USA) Corporation 6.625% notes
due 2005; and
(b) US$100,000,000 WPP Finance (USA) Corporation 6.875% notes
due 2008;
11.14.5 any Borrowings of any Subsidiary owing to another member of
the Group;
11.14.6 Borrowings by a Subsidiary whose main business is to operate
as a finance company for the Group; and
11.14.7 additional Borrowings of Subsidiaries to the extent that:
(a) no individual Material Subsidiary has or will create,
permit to subsist, incur, assume or in any other manner be
or become directly or indirectly liable for the payment of
any Borrowings (including, without limitation, by way of
indemnity, counter-indemnity or guarantee) with an
aggregate principal amount exceeding an amount equal to 15
per cent. of Consolidated EBITDA; and
(b) the aggregate principal amount of Borrowings of all
Subsidiaries permitted under this sub-clause 11.14.7 does
not exceed an amount equal to 25 per cent. of Consolidated
EBITDA,
in each case for the financial period most recently ended from time to
time in respect of which financial results of the Group have been
published or announced provided that no Borrowings of a Subsidiary shall
be included in the percentage limits set out in paragraphs (a) and (b)
of this Clause 11.14.7 if such Subsidiary has provided a full and
unconditional guarantee of all sums outstanding under this Facility
(without limit).
11.15 Compliance with ERISA
Each Obligor undertakes that, where relevant it (a) has fulfilled all
its obligations under the minimum funding standards of the U.S.A.
Employment Retirement Income Security Act of 1974, as amended ("ERISA"),
and the U.S.A. Internal Revenue Code of 1986, as amended (the "Code"),
with respect to any employee pension benefit plan (a "Plan") covered by
Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code maintained by such Obligor or to which such
Obligor makes contributions, has within the previous five years made
contributions or has an obligation to make contributions and (b) is in
compliance in all material respects with the presently
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applicable provisions of ERISA and the Code, and has not incurred any
liability to the Pension Benefit Guaranty Corporation (or any entity
succeeding to any or all of its functions under ERISA) or a Plan under
Title IV of ERISA.
11.16 Guarantees
11.16.1 If any Subsidiary (the "Relevant Subsidiary") gives a
guarantee, indemnity or other assurance against financial loss
to any creditor (a "Guaranteed Creditor") who is a creditor in
respect of all or any part of the Borrowings raised by the
Company, WPP Finance or any Subsidiary, or by a member of the
Group (whether under a loan or other credit facility, bond or
note or otherwise) where the Borrowings so raised equal or
exceed $35,000,000 or its equivalent, the Relevant Subsidiary
will simultaneously provide an equivalent guarantee, indemnity
or other assurance in favour of the Lenders of all obligations
of the Obligors under this Facility.
11.16.2 If sub-clause 11.16.1 above applies, the Relevant Subsidiary
may provide its guarantee by way of deed poll governed by
English law or other instrument in a form satisfactory to the
Facility Agent (acting reasonably and such approval to be given
if the guarantee is equivalent to the guarantee given to the
relevant Guaranteed Creditor) and the Relevant Subsidiary shall
supply to the Facility Agent such certificates, documents and
legal opinions (if any) equivalent to those it is supplying to
the relevant Guaranteed Creditor (or a trustee or agent on its
behalf).
11.17 Existing Facility
11.17.1 The Obligors' Agent shall:
(a) on the date of this Agreement confirm the amount of the
Existing Facility Outstandings to the Facility Agent; and
(b) by no later than the second Business Day following any
increase or decrease in the amount of the Existing
Facility Outstandings confirm to the Facility Agent the
amount of such increased Existing Facility Outstandings
or, as the case may be, decreased Existing Facility
Outstandings.
11.17.2 The Obligors' Agent shall procure that:
(a) all amounts outstanding under the Existing Facility as at
the date of this Agreement are repaid in full on their
due date; and
(b) the Existing Facility is cancelled in full by no later
than 8th November 2001.
11.17.3 The Obligors' Agent shall not and shall ensure that no member
of the Group shall request any further advances be made under
the Existing Facility.
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12. CHANGES IN CIRCUMSTANCES
12.1 Illegality
If it becomes unlawful in any jurisdiction for a Lender to perform any
of its obligations as contemplated by this Agreement or to fund its
participation in any Advance:
12.1.1 that Lender shall promptly notify the Facility Agent upon
becoming aware of that event;
12.1.2 upon the Facility Agent notifying the Borrower's Agent, the
Commitment of that Lender will be immediately cancelled; and
12.1.3 each Borrower shall, to the extent necessary to cure such
illegality, repay that Lender's participation in the Advances
made to that Borrower on the last day of the Interest Period for
each Loan occurring after the Facility Agent has notified the
Borrower's Agent or, if earlier, the date specified by the
Lender in the notice delivered to the Facility Agent (being no
earlier than the last day of any applicable grace period
permitted by law).
12.2 Increased Costs
12.2.1 Subject to Clause 12.4 (Exceptions) the Company shall, within
three Business Days of a demand by the Facility Agent, pay for
the account of a Lender the amount of any Increased Costs
incurred by that Lender or any of its Affiliates as a result of
(i) the introduction of or any change in (or in the
interpretation or application of) any law or regulation or (ii)
compliance with any law or regulation or request (whether or not
having the force of law) from any central bank or other fiscal,
monetary or other authority made after the date of this
Agreement.
12.2.2 In this Agreement "Increased Costs" means:
(a) a reduction in the rate of return from the Facility or on a
Lender's (or its Affiliate's) overall capital;
(b) an additional or increased cost; or
(c) a reduction of any amount due and payable under any
Financing Document,
which is incurred or suffered by a Lender or any of its Affiliates to the
extent that it is attributable to that Lender having entered into its
Commitment or funding or performing its obligations under any Financing
Document.
12.3 Increased cost claims
12.3.1 A Lender intending to make a claim pursuant to Clause 12.2
(Increased costs) shall notify the Facility Agent of the event
giving rise to the claim, following which the Facility Agent
shall promptly notify the Company.
12.3.2 Each Lender shall, as soon as practicable after a demand by
the Facility Agent, provide a certificate confirming the amount
of its Increased Costs and showing, in reasonable detail, the
calculation thereof.
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12.4 Exceptions
12.4.1 Clause 12.2 (Increased costs) does not apply to the extent any
Increased Cost is:
(a) compensated for by Clause 13.3 (Withholdings) (or would have
been compensated for under Clause 13.3 (Withholdings) but
was not so compensated solely because one of the exclusions
in sub-clauses 13.3.5 to 13.3.6, Clause 13.4 (US Taxes) or
Clause 13.5 (UK Taxes) applied;
(b) compensated for by the payment of the Mandatory Cost; or
(c) attributable to the breach by the relevant Lender or its
Affiliates of any law or regulation.
12.5 Market Disruption
12.5.1 If a Market Disruption Event occurs in relation to an Advance for
any Interest Period, then the rate of interest on each Lender's
share of that Advance for the Interest Period shall be the rate
per annum which is the sum of:
(a) the Margin;
(b) the rate notified to the Facility Agent by that Lender as
soon as practicable and in any event before interest is due
to be paid in respect of that Interest Period, to be that
which expresses as a percentage rate per annum the cost to
that Lender of funding its participation in that Advance
from whatever source it may reasonably select; and
(c) the Mandatory Cost, if any, applicable to that Lender's
participation in the Advance.
12.5.2 In this Agreement "Market Disruption Event" means:
(a) at or about noon on the Rate Fixing Day for the relevant
Interest Period the Screen Rate is not available and none or
only one of the Reference Banks supplies a rate to the Agent
to determine LIBOR or, if applicable, EURIBOR for the
relevant currency and period; or
(b) before close of business in London on the Rate Fixing Day
for the relevant Interest Period, the Facility Agent
receives notifications from a Lender or Lenders (whose
participations in a Advance exceed 50 per cent. of that
Advance) that the cost to it of obtaining matching deposits
in the Relevant Interbank Market would be in excess of LIBOR
or, if applicable, EURIBOR.
12.6 Mitigation
12.6.1 Each Lender shall, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and
which would result in any amount becoming payable under, or
cancelled pursuant to, any of Clause 12.1 (Illegality), Clause
13.3 (Withholdings) or Clause 12.2 (Increased costs) including
(but not limited to) transferring its rights and obligations
under the Financing Documents to another Affiliate or Facility
Office.
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12.6.2 Sub-clause 12.6.1 does not in any way limit the obligations of
any Obligor under the Financing Documents.
12.7 Limitation of liability
12.7.1 The Company shall indemnify each Lender for all costs and
expenses reasonably by that Lender as a result of steps taken
by it under Clause 12.6 (Mitigation).
12.7.2 A Lender is not obliged to take any steps under Clause 12.6
(Mitigation) if, in the opinion of that Lender (acting
reasonably), to do so might be prejudicial to it.
12.8 Certificates
Any certification or determination by the Facility Agent or any Lender
of a rate or amount under any Financing Document is, in the absence of
manifest error, conclusive evidence of the matter to which it relates.
13. PAYMENTS
13.1 By Obligors
All payments to be made by an Obligor under this Agreement:
13.1.1 for the account of any of the Lenders shall be made in
immediately available funds not later than twelve noon on the
relevant day to such account as the Facility Agent may have
notified to the Obligors' Agent for the account of the
Facility Agent who shall, before the close of business on the
date of receipt, remit to each Lender its portion of the
payment so made by remitting it to such account of that Lender
which that Lender may have previously notified to the Facility
Agent; and
13.1.2 to the Facility Agent shall be made to such account as it may
specify by notice to the Obligors' Agent.
13.2 By the Lenders
All amounts to be advanced by the Lenders to a Borrower under this
Agreement shall be remitted in immediately available funds not later
than 12 noon on the relevant day to such account as the Facility Agent
may have notified to the Lenders for the account of the Facility Agent
who shall make available to the Borrower the amounts so remitted on the
same day by payment to the account and bank which are specified in the
relevant Request. If the Facility Agent makes available to a Borrower
any amount which has not been made unconditionally available to the
Facility Agent the Borrower shall forthwith on notice from the Facility
Agent repay such amount to the Facility Agent together with interest on
such amount until its repayment at a rate determined by the Facility
Agent to reflect its cost of funds.
13.3 Withholdings
Subject to Clause 13.4 (U.S. taxes) and Clause 13.5 (U.K. taxes), all
payments by any Obligor under this Agreement whether in respect of
principal, interest, fees or any other item, shall be made in full
without any deduction or withholding (whether in respect of set off,
counterclaim, duties, Taxes, charges or otherwise whatsoever) unless the
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deduction or withholding is for or on account of Taxes imposed or
levied by any jurisdiction in which any such Obligor is incorporated or
through which any payment is made and is required by law, in which
event such Obligor shall:
13.3.1 ensure that the deduction or withholding does not exceed the
minimum amount legally required (having regard to the details
of the Lender concerned provided to that Obligor by such
Lender through the Facility Agent);
13.3.2 forthwith pay to the Facility Agent for the account of each
Lender such additional amount so that the net amount received
by that Lender will equal the full amount which would have
been received by it (or would have been deemed for the
purposes of Tax to have been received or receivable by that
Lender) had no such deduction or withholding been made;
13.3.3 pay to the relevant taxation or other authorities within the
period for payment permitted by applicable law the full amount
of the deduction or withholding (including, but without
prejudice to the generality of the foregoing, the full amount
of any deduction or withholding from any additional amount
paid pursuant to this Clause 13.3 (Withholdings)); and
13.3.4 furnish to the Facility Agent on behalf of the Lender
concerned, within the period for payment permitted by the
relevant law, either an official receipt of the relevant
taxation authorities involved in respect of all amounts so
deducted or withheld or if such receipts are not issued by the
taxation authorities concerned on payment to them of amounts
so deducted or withheld, a certificate of deduction or
equivalent evidence of the relevant deduction or withholding.
The obligation on each Obligor to pay an additional amount under this
Clause 13.3 (Withholdings) shall not apply to the extent that the Tax
deducted is:
13.3.5 Tax on the overall net income of a Lender or the Facility
Agent save to the extent that such Tax is collected by way of
withholding from the relevant payment from which the deduction
must be made;
13.3.6 Tax that would not be imposed but for the connection between
such Lender or the Facility Agent (as the case may be) and the
jurisdiction (other than the jurisdiction in which the Obligor
in question (as appropriate) is tax resident) imposing such
Tax other than a connection arising solely as a result of the
relevant Lender entering into this Agreement; or
13.3.7 deducted solely as a result of a participation under Clause
20.9 (Sub-Participations).
13.4 U.S. Taxes
13.4.1 Notwithstanding anything to the contrary in this Clause 13
(Payments), with respect to Taxes which are imposed or levied
by or on behalf of the United States of America or any
authority thereof or therein having power to tax, any Obligor
which is a U.S. Subsidiary shall only be under an obligation
to gross up any amounts payable or paid by that Obligor
hereunder to a Lender that is not organised under the laws of
the United States of America or any state or
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political sub-division thereof (or payable or paid by the Facility
Agent to such Lender) if:
(a) such Lender as soon as practicable, but in any event prior to
any payment by the Obligor concerned, delivers to that
Obligor:
(i) two accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI or any successor
thereto (including, without limitation, any substitute
form which constitutes, or which includes as part or
all thereof, any revised such form) ("Form W-8ECI")
certifying that the payments made pursuant to the
Financing Documents are effectively connected with the
conduct by such Lender of a trade or business in the
United States of America; or
(ii) two accurate and complete original signed copies of
Internal Revenue Service Form W-8BEN or any successor
thereto (including, without limitation, any substitute
form which constitutes, or which includes as part or
all thereof, any revised such form) ("Form W-8BEN")
claiming exemption from withholding with respect to
all payments to be made to such Lender under the
Financing Documents under an applicable double tax
treaty concluded by the United States of America (such
Forms W-8BEN to be provided by the Facility Agent to
the Lenders on signature of this Agreement); or
(iii) such other applicable form prescribed by the Internal
Revenue Service certifying as to such Lender's
entitlement to exemption from U.S. withholding tax
with respect to all payments to be made by such Lender
under the Financing Documents,
in each case, indicating that such Lender is on the Signing
Date or, in the case of any Lender becoming a party to this
Agreement after the Signing Date, on the date it becomes a
party entitled to receive payments of principal, interest and
fees under this Agreement free from any deduction and
withholding of US income tax;
(b) before or promptly after any occurrence of any event
(including the passing of time) requiring a change or
re-issuance in the most recent Form W-8ECI or Form W-8BEN or
other applicable form previously delivered by such persons
and if the delivery of the same be lawful, such Lender
delivers to the Obligor concerned two accurate and complete
original signed copies of Form W-8ECI or Form W-8BEN or other
applicable form in replacement for the forms previously
delivered by such Lender;
(c) if any forms or documents other than or in addition to the
forms referred to above are required or such forms referred
to above shall cease to be required in order for any Obligor
which is a U.S. Subsidiary to make payments of interest under
this Agreement without any deduction or withholding on
account of U.S. income tax, such Lender as soon as
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practicable, delivers to the Obligor concerned or the
relevant tax authority such forms or other similar
document notified by any Obligor which is a U.S.
Subsidiary to such Lender which such Lender can
reasonably submit to any relevant tax authority so as to
avoid such deduction or withholding to the extent that it
is lawful for such Lender to do so.
This sub-clause 13.4.1 shall not apply where such obligation
to gross up arises as a result of the introduction of or any
change in law or regulation or in the official interpretation,
administration or application thereof of any relevant tax
authority or the amendment, withdrawal, suspension,
cancellation or termination of any applicable tax treaty with
respect to any Lender, in any such case, after the Signing
Date.
13.4.2 Each Lender which is organised under the laws of the United
States of America or any state or political sub-division
thereof shall deliver (through the Facility Agent) to each
Obligor which is a U.S. Subsidiary as soon as practicable, but
in any event prior to any payment by the Obligor concerned, a
statement signed by an authorised signatory of such Lender to
the effect that it is so organised and, if necessary in order
to avoid United States backup withholding, a duly completed
copy of Internal Revenue Service Form W-9 (or any successor
thereto) establishing that such Lender is not subject to
United States backup withholding.
13.4.3 The Facility Agent shall have no responsibility or liability
for and no obligation to check the accuracy or appropriateness
of any form or statement delivered by any Lender pursuant to
this Clause 13.4.
13.5 U.K. taxes
13.5.1 If a Lender is not or has ceased to be a Qualifying Lender
otherwise than as a result of any introduction of or change in
or in the interpretation, administration or application by the
English courts or the Inland Revenue of any relevant law or
any published practice or concession of the Inland Revenue
after the Signing Date, then an Obligor shall not be liable to
pay to the Lender any additional amount under this Clause 13.3
(Withholdings) in excess of the amount that Obligor would have
been obliged to pay if that Lender had been a Qualifying
Lender.
13.5.2 Each Lender confirms to the Obligors' Agent on the date of
this Agreement that if an Advance was made as at the date of
this Agreement it would be a Qualifying Lender.
13.5.3 An Obligor will not, on withholding or deducting an amount for
or on account of United Kingdom tax, be required to pay any
additional amount to a Lender under this Clause 13 where the
Lender is a Treaty Lender and the Obligor making the payment
is able to demonstrate that no deduction or withholding for or
on account of United Kingdom tax would have been required to
have been made if the Lender had complied with its obligations
under sub-clause 13.5.4. below.
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13.5.4 A Treaty Lender and each Obligor which makes a payment to
which that Treaty Lender is entitled shall co-operate in
completing any procedural formalities necessary for that
Obligor to obtain authorisation to make that payment
without a deduction or withholding for or on account of
United Kingdom tax.
13.6 Tax Credits
If any Obligor pays any additional amount (a "Tax Payment") under
Clause 13.3 (Withholdings) and any Lender determines in its absolute
discretion that it has effectively obtained and retained a refund of
Tax or credit against Tax on its overall net income by reason of
that Tax Payment (a "Tax Credit") and that Lender determines in its
absolute discretion that it can identify such Tax Credit as being
attributable to such Tax Payment, then that Lender shall reimburse
to the relevant Obligor such amount as it shall determine to be the
proportion of such Tax Credit as will leave that Lender, after that
reimbursement, in the same after tax position as it would have been
in if that Tax Payment had not been made. Each Lender shall have
absolute discretion as to whether to claim any Tax Credit and, if it
does so claim, the extent, order and manner in which it does so. No
Lender shall be obliged to disclose any information regarding its
tax affairs or computations to any Obligor.
13.7 Date
If any payment under this Agreement would otherwise be due on a day
which is not a Business Day, it shall be due on the next succeeding
Business Day or, if that Business Day falls in the following month
of the year, on the preceding Business Day.
13.8 Default Interest
13.8.1 Subject to sub-clause 13.8.2 of this Clause 13.8, if an
Obligor fails to pay any amount in accordance with any
Financing Document, the relevant Obligor shall pay interest
on that amount from the time of default up to the time of
actual payment (as well after as before judgment) at the
rate per annum which is the sum of (a) the Margin plus 1%
and (b) LIBOR for a deposit of an amount comparable to the
defaulted amount, for such period as the Facility Agent may
from time to time reasonably select, at or about 11.00 a.m.
(London time) on the Business Day succeeding that on which
the Facility Agent becomes aware of the default for value
on that day in the case of sterling or two Business Days
later in the case of any other currency and (c) the
Mandatory Cost.
13.8.2 If an amount unpaid in accordance with any Financing
Document in respect of the Facility, is of principal due on
a day during, but not the last day of, an Interest Period
relating thereto, the period selected by the Facility Agent
under sub-clause 13.8.1 of this Clause 13.8 shall equal the
unexpired portion of the Interest Period and there shall be
substituted for the rate specified in sub-clause 13.8.1 of
this Clause 13.8 the rate of 1% above the rate calculated
in accordance with Clause 7.3 (Rate of Interest for
Facility) and applicable to the unpaid amount immediately
before it fell due.
13.8.3 Interest under this Clause shall accrue daily on the basis
of a year of 360 days (or 365 days in the case of sterling,
Hong Kong Dollars, Belgian Francs, Canadian Dollars and
Singapore Dollars or such other period applied generally
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in the relevant market in relation to such calculations for the
relevant currency) from and including the first day to the last
day of each period for which a rate of interest is determined
as aforesaid and shall be due and payable by the relevant
Borrower at the end of each such period. So long as the default
continues, the rate referred to in sub-clause 13.8.1 of this
Clause 13.8 shall be calculated on a similar basis at the end
of each period selected by the Facility Agent and notified to
the Lenders and interest payable under this sub-clause which is
unpaid at the end of each such period shall thereafter itself
bear interest at the rates provided in this sub-clause.
13.9 Currency indemnity
13.9.1 If any sum due from an Obligor under the Financing Documents
(a "Sum"), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency (the
"First Currency") in which that Sum is payable into another
currency (the "Second Currency") for the purpose of:
(a) making or filing a claim or proof against that Obligor;
(b) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three
Business Days of demand, indemnify each Lender to whom that Sum
is due against any cost, loss or liability arising out of or as
a result of the conversion including any discrepancy between
(A) the rate of exchange used to convert that Sum from the
First Currency into the Second Currency and (B) the rate or
rates of exchange available to that person at the time of its
receipt of that Sum.
13.9.2 Each Obligor waives any right it may have in any jurisdiction
to pay any amount under the Financing Documents in a currency
or currency unit other than that in which it is expressed to
be payable.
13.10 Change of currency
13.10.1 Unless otherwise prohibited by law, if more than once currency
or currency unit are at the same time recognised by the central
bank of any country as the lawful currency of that country,
then:
(a) any reference in the Financing Documents to, and any
obligations arising under the Financing Documents in,
the currency of that country shall be translated into,
or paid in, the currency or currency unit of that
country designated by the Facility Agent (with the
consent of the Company, not to be unreasonably withheld
or delayed); and
(b) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of
that currency or currency unit into the other, rounded
up or down by the Facility Agent (acting reasonably).
13.10.2 If a change in any currency of a country occurs, this
Agreement will, to the extent the Facility Agent (acting
reasonably and after consultation with the
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Company) specifies to be necessary, be amended to comply with
the generally accepted conventions and market practice in the
Relevant Interbank Market and otherwise to reflect the change
in currency.
14. DEFAULT
14.1 Events of Default
If (whether or not caused by any reason outside the control of the
Obligors):
14.1.1 any Obligor does not pay on the due date (or, in the case of
amounts other than principal, within three Business Days
thereafter) any amount payable by it under any of the
Financing Documents at the place and in the currency expressed
to be payable (unless such failure results solely from a
technical problem in relation to the transfer of funds for
which such Obligor is not responsible and is remedied within
five days of the due date); or
14.1.2 any Obligor fails to comply in any material respect with any
other provision of any of the Financing Documents and, other
than in the case of Clauses 11.3 (Financial Ratios) and 11.5
(Compliance Certificates), if such default is capable of
prompt remedy within 30 days after any Borrower or the
Guarantor shall have given notice of such default pursuant to
Clause 11.4 (Notification of Default) (or, if earlier, the
date on which the Facility Agent shall have given notice to
the Obligors' Agent of such default) such Obligor shall have
failed to cure such default; or
14.1.3 any representation, warranty or written statement made or
deemed to be repeated in, or in connection with, this
Agreement or in any other Financing Document or in any
certificate delivered by or on behalf of any Borrower or the
Guarantor in writing under any of the Financing Documents is
incorrect in any material respect when made or deemed to be
repeated, or, in respect of those specified in Clause 10.2
(After Signing), would be if repeated at any time; or
14.1.4 any other present or future Borrowings of a principal amount
exceeding in the aggregate $30,000,000 or the equivalent sum
in any other currency of any member of the Group shall become
due and payable or capable of being declared due and payable
prior to the due date thereof as a result of a default or any
such Borrowings shall not be paid on the due date thereof (or,
if a grace period was originally provided for in the document
evidencing or constituting such Borrowings, within any
applicable grace period therefor) or any Security Interest
over any assets of any member of the Group and securing a
principal amount exceeding $30,000,000 shall be or become
enforceable; or
14.1.5 any Obligor or any Material Subsidiary is unable or admits
inability to pay its debts as they fall due, or any Obligor or
any Material Subsidiary suspends making payments (whether of
principal or interest) with respect to all or a material part
or a particular class of its debts or announces an intention
to do so; or
14.1.6 an application for an administration order in relation to any
Obligor or any Material Subsidiary is presented to the court
by any such company or its
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directors or the supervisor of a voluntary arrangement relating
to any Obligor or any Material Subsidiary or such an order is
made on the application of a creditor of any Obligor or any
Material Subsidiary or any meeting of any Obligor or any
Material Subsidiary is convened by the relevant company's
directors for the purpose of considering any resolution to
present an application for such an order or any such resolution
is passed at any meeting of any Obligor or any Material
Subsidiary; or
14.1.7 any kind of composition, scheme of arrangement, compromise or
arrangement involving any Obligor or any Material Subsidiary
and its creditors generally (or any class of them) is proposed
by the company concerned as a result of financial difficulties;
or
14.1.8 any administrative or other receiver or any manager is
appointed in respect of any Obligor or any Material Subsidiary
or all or a substantial part of any Obligor's of any Material
Subsidiary's property, or the directors of any Obligor or any
Material Subsidiary request any person to appoint such a
receiver or manager, or any kind of attachment (except
prejudgment attachment), sequestration, distress or execution
against any Obligor or any Material Subsidiary or all or a
substantial part of any Obligor's or Material Subsidiary's
property is levied or sued out and not discharged within 30
days; or
14.1.9 any meeting of any Obligor or any Material Subsidiary is
convened by the relevant Company's directors for the purpose of
considering any resolution for (or to petition for) its winding
up, or any Obligor or any Material Subsidiary passes such a
resolution, or any Obligor or any Material Subsidiary or any
other person (except its creditor) presents any petition for
the winding up of any Obligor or any Material Subsidiary, (save
for a petition which is vexatious or frivolous and which is
discharged or stayed within 14 days) or an order for the
winding up of any Obligor or any Material Subsidiary is made on
the petition of any of its creditors unless, in each case, it
is a voluntary solvent winding-up, amalgamation, reconstruction
or reorganisation or part of a voluntary scheme of arrangement;
or
14.1.10 there occurs in relation to any Obligor or any Material
Subsidiary in any country or territory in which it carries on
business or to the jurisdiction of whose courts it or any of
its property is subject any event which reasonably appears to
the Majority Lenders to correspond in that country or territory
with any of those mentioned in sub-clauses 14.1.5 to 14.1.9 of
this Clause 14.1 or any Obligor or any Material Subsidiary
otherwise becomes subject, in any such country or territory, to
any law relating to insolvency, bankruptcy or liquidation; or
14.1.11 any Obligor or any Material Subsidiary ceases, or threatens to
cease, to carry on all or a substantial part of its business
except consequent upon a disposal, merger or acquisition not
otherwise prohibited under this Agreement; or
14.1.12 any authorisation, approval, consent, licence, exemption,
filing, registration or notarisation or other requirement
necessary to enable any Obligor to comply
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with its obligations under any of the Financing Documents to
which it is a party in any material respect is revoked or
withheld or does not remain in full force and effect or is
materially and adversely modified; or
14.1.13 at any time it is unlawful for any Obligor to perform any of
its material obligations under any Financing Document to which
it is a party; or
14.1.14 any litigation, arbitration or administrative proceeding or
claim in which there is a reasonable possibility of an adverse
decision which has had or would be reasonably likely by itself
or together with any other such proceedings or claims either to
have a material adverse effect on the business, assets or
consolidated financial condition of the Group as a whole or
which would be reasonably likely materially and adversely to
affect the ability of the Obligors taken as a whole to observe
or perform their obligations under any Financing Documents and
which affect any Obligor or the Group as a whole is in progress
or pending or threatened; or
14.1.15 (a) any U.S. Subsidiary (a "Qualifying U.S. Subsidiary") which
is an Obligor or Material Subsidiary shall commence any case,
proceeding or other action (i) under any existing or future law
of any jurisdiction, domestic or foreign, relating to
winding-up, dissolution, bankruptcy, insolvency, reorganisation
or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganisation, arrangement,
adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (ii)
seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of
its assets, or any Qualifying U.S. Subsidiary shall make a
general assignment for the benefit of its creditors; or (b)
there shall be commenced against any Qualifying U.S. Subsidiary
any case, proceeding or other action of a nature referred to in
sub-clause 14.1.15(a) which (i) results in the entry of an
order for relief or any such adjudication or appointment or
(ii) remains undismissed, undischarged or unbonded for a period
of sixty days; or (c) there shall be commenced against any
Qualifying U.S. Subsidiary any case, proceeding or other action
seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged,
or stayed or bonded pending appeal within sixty days from the
entry thereof; or (d) any Qualifying U.S. Subsidiary shall take
any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in
sub-clauses 14.1.15(a), 14.1.15(b) or 14.1.15(c) of this Clause
14.1; or (e) any Qualifying U.S. Subsidiary shall generally
not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
14.1.16 any other event or series of events whether related or not
which has a material adverse effect on the business, assets or
consolidated financial condition of the Group as a whole or
which would be reasonably likely materially and adversely
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to affect the ability of the Group as a whole to comply with
any or all of its obligations under the Financing Documents
occurs; or
14.1.17 any Obligor repudiates a Financing Document or evidences an
intention to repudiate a Financing Document,
then, at once or at any time thereafter, the Facility Agent may, and upon
the request of the Majority Lenders shall, by notice to the Obligors'
Agent, declare the Total Outstandings to be immediately due and payable
whereupon:
(a) all Advances and all other sums outstanding under the
Facility shall become so due and payable together with
accrued interest thereon and any other amounts then
payable under this Agreement or the Facility; and
(b) no further utilisations of the Facility shall be
permitted.
Notwithstanding the foregoing, if an Event of Default specified in
sub-clause 14.1.15(a) to (c) of this Clause 14.1 occurs with respect to a
U.S. Subsidiary which is a Borrower, the Commitments of the Lenders in
respect of such Borrower shall immediately terminate and the Outstandings
owed by such Borrower shall become immediately due and payable, without any
action by the Facility Agent or the Lenders and without any presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived, anything contained herein or in any Financing Documents
to the contrary notwithstanding.
14.2 Notice
If the Facility Agent is notified under this Agreement of the occurrence of
an Event of Default it shall promptly inform each of the Lenders. If any
Lender becomes aware of the occurrence of an Event of Default it shall
promptly inform the Facility Agent.
15. INDEMNITY
15.1 General Indemnity
Each Obligor shall fully indemnify the Facility Agent and each of the
Lenders from and against any expense, loss, damage or liability (as to the
amount of which the certificate of the Facility Agent shall, in the absence
of manifest error, be conclusive) which any of them may incur as a
consequence of the occurrence of any Event of Default, of any failure to
draw down in accordance with a Request (other than by reason of a Lender's
gross negligence or wilful default) or other notification of any intention
to utilise the Facility or of any repayment or prepayment under this
Agreement or otherwise in connection with this Agreement (including without
limitation any repayment or prepayment pursuant to Clause 9.1 (Voluntary
Prepayment) or 9.4 (Prepayment of Certain Lenders)). Without prejudice to
its generality, the foregoing indemnity shall extend to any interest, fees
or other sums whatsoever paid or payable on account of any funds borrowed
in order to carry any unpaid amount and to any loss, premium, penalty or
expense which may be reasonably incurred in liquidating or employing
deposits from third parties acquired to make, maintain or fund the Total
Outstandings (or any part of them) or any other amount due or to become due
under this Agreement.
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15.2 Waiver of Defences
Each Obligor agrees that no delay, extension of time, renewal,
compromise, waiver, indulgence, release of security or rights or any
other matter or thing shall in any way prejudice the Lenders' or the
Facility Agent's rights or powers hereunder. No Obligor shall by virtue
of any payment made by it pursuant to this Clause 15 claim in competition
with the Facility Agent or any Lender any right of subrogation,
contribution or indemnity against any member of the Group so long as any
amount is or is capable of becoming outstanding hereunder.
16. GUARANTEE
16.1 Guarantee
Each Guarantor unconditionally and irrevocably guarantees, as a
continuing obligation, the proper and punctual payment by each of the
Obligors of the Guaranteed Amounts and unconditionally and irrevocably
undertakes, as a continuing obligation, with the Facility Agent and the
Lenders (and each of them) that, if for any reason any Obligor does not
make such payment, each Guarantor shall pay the Guaranteed Amounts upon
first written demand by the Facility Agent.
16.2 Principal Debtor
Each Guarantor shall be deemed to be liable for the Guaranteed Amounts as
a sole or principal debtor.
16.3 Discharge
The liabilities and obligations of each of the Guarantors under this
Agreement shall remain in force notwithstanding any act, omission,
neglect, event or matter whatsoever, except the proper and valid payment
of all the Guaranteed Amounts and, subject to Clause 16.4 (Preference),
an absolute discharge or release of any of the Guarantors signed by the
Facility Agent on behalf of the Lenders; and without prejudice to its
generality, the foregoing shall apply in relation to anything which would
have discharged any Guarantor (wholly or in part) or which would have
afforded such Guarantor any legal or equitable defence, and in relation
to any winding up or dissolution of, or any change in constitution or
corporate identity or loss of corporate identity by, any of the Obligors
or any other person.
16.4 Preference
Any such discharge or release as is referred to in Clause 16.3
(Discharge), and any composition or arrangement which any of the
Guarantors may effect with the Facility Agent and the Lenders, shall be
deemed to be made subject to the condition that it will be void if any
payment or security which the Facility Agent and the Lenders (or any of
them) may previously have received or may thereafter receive from any
person in respect of the Guaranteed Amounts is set aside under any
applicable law or proves to have been for any reason invalid.
16.5 No Impairment
Without prejudice to the generality of Clauses 16.2 (Principal Debtor)
and 16.3 (Discharge) none of the liabilities or obligations of any of the
Guarantors under this Agreement shall be impaired by, and each Guarantor
hereby irrevocably waives any
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defences it may now or hereafter have in any way relating to, the
Facility Agent and the Lenders (or any of them):
16.5.1 agreeing with any Obligor any variation or departure (however
substantial) of or from this Agreement (other than this Clause
16.5) or any of the Financing Documents and any such variation
or departure shall, whatever its nature, be binding upon such
Guarantor in all circumstances, notwithstanding that it may
increase or otherwise affect the liability of such Guarantor
provided however that if any such variation is made, without
such Guarantor's prior written consent, which has the effect of
increasing the amount of the Facility or the Margin, the amount
of such Guarantor's liability under this Clause 16.5 shall be
limited to the amount for which they would have been liable had
such variation not been made;
16.5.2 releasing or granting any time or any indulgence whatsoever to
any Obligor or such Guarantor and, in particular, waiving any
of the pre-conditions for Advances under this Agreement or any
contravention by any Obligor of this Agreement, or entering
into any transaction or arrangements whatsoever with or in
relation to any Obligor, and/or any third party;
16.5.3 taking, perfecting, accepting, varying, dealing with,
enforcing, abstaining from enforcing, surrendering or releasing
any security for the Guaranteed Amounts in such manner as it or
they think fit, or claiming, proving for, accepting or
transferring any payment in respect of the Guaranteed Amounts
in any composition by, or winding up of, any Obligor and/or any
third party or abstaining from so claiming, proving, accepting
or transferring.
16.6 Demands
Demands under this Clause 16.6 may be made from time to time, and the
liabilities and obligations of each Guarantor under this Agreement may be
enforced, irrespective of:
16.6.1 whether any demands, steps or proceedings are being or have
been made or taken against any of the Obligors and/or any third
party; or
16.6.2 whether or in what order any security to which the Facility
Agent or the Lenders may be entitled in respect of the
Guaranteed Amounts is enforced.
Each Guarantor waives diligence, presentment, protest, demand for payment
and notice of default to or upon any Obligor.
16.7 Suspense Account
Until all amounts which may be or become payable by the Obligors
hereunder or under any of the Financing Documents or in connection
herewith or therewith have been irrevocably paid and discharged in full,
the Facility Agent and each Lender may:
16.7.1 refrain from applying or enforcing any other security, moneys
or rights held or received by the Facility Agent or such Lender
in respect of such amounts or apply and enforce the same in
such manner and order as the Facility Agent or such Lender sees
fit (whether against such amounts or otherwise) and none of the
Guarantors shall be entitled to the benefit of the same; and
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16.7.2 hold in suspense account (subject to the accrual of interest
thereon at market rates for the account of any Guarantor) any
moneys received from any Guarantor or on account of that
Guarantor's liability hereunder.
16.8 Subordination
So long as any of the Guarantors has any liability under this Agreement
and except as provided in Clause 16.9 (Deferral of Subrogation,
Contribution, Reimbursement, Exoneration and Indemnity):
16.8.1 no Guarantor shall take or accept any Security Interest from
any Obligor or, in relation to the Guaranteed Amounts, from any
third party, without first obtaining the Facility Agent's
written consent;
16.8.2 after the occurrence of an Event of Default, each such
Guarantor shall not, without first obtaining the Facility
Agent's written consent, seek to recover, whether directly or
by set off, lien, counterclaim or otherwise, nor accept any
moneys or other property, nor exercise any rights in respect
of, any sum which may be or become due to any such Guarantor on
any account by any Obligor or, in relation to the Guaranteed
Amounts, from any third party, nor claim, prove for or accept
any payment in any composition by, or any winding up of, any
Obligor or, in relation to the Guaranteed Amounts, any third
party;
16.8.3 if, notwithstanding the foregoing, any such Guarantor holds or
receives any such security, moneys or property, it shall
forthwith pay or transfer the same to the Facility Agent.
16.9 Deferral of Subrogation, Contribution, Reimbursement, Exoneration and
Indemnity
Each Guarantor agrees that it will not exercise any rights that it may
now have or hereafter acquire against any Obligor or any other person
that arise from the existence, payment, performance or enforcement of the
Guaranteed Amounts, including without limitation any right of
subrogation, contribution, reimbursement, exoneration or indemnity (or
any similar right) prior to the later of the cash payment in full of the
Guaranteed Amounts and all other amounts payable under this Clause 16
(Guarantee) and the Final Maturity Date. If any amount shall be paid to
any such Guarantor in violation of the preceding sentence, such amount
shall be held in trust for the benefit of the Facility Agent and the
Lenders and shall forthwith be paid to the Facility Agent to be credited
and applied to the Guaranteed Amounts and all other amounts payable under
this Clause 16 (Guarantee), whether or not due, in accordance with the
terms of the Financing Documents, or be held as collateral security for
any Guaranteed Amounts or other amounts payable under this Clause 16
(Guarantee) and thereafter arising. If (a) any such Guarantor shall make
payment of all or any part of the Guaranteed Amounts, (b) all of the
Guaranteed Amounts and all other amounts payable under this Clause 16
(Guarantee) shall be paid in full in cash and (c) the Final Maturity Date
shall have occurred, the Facility Agent will, at such Guarantor's request
and expense, execute and deliver to such Guarantor appropriate documents,
without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to that Guarantor of an interest in
the Guaranteed Amounts resulting from such payment by such Guarantor.
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16.10 Indemnity
As a separate, additional and continuing obligation, each Guarantor
unconditionally and irrevocably undertakes with the Facility Agent and
the Lenders (and each of them) that, should the Guaranteed Amounts not be
recoverable from any Guarantor under this Clause 16 (Guarantee) for any
reason whatsoever (including, but without prejudice to the generality of
the foregoing, by reason of any other provision of this Agreement being
or becoming void, unenforceable or otherwise invalid under any applicable
law) then, notwithstanding that it may have been known to the Facility
Agent or any of the Lenders, each Guarantor shall, as a sole, original
and independent obligor, upon first written demand by the Facility Agent
under Clause 16.1 (Guarantee), make payment of the Guaranteed Amounts by
way of a full indemnity in such currency and otherwise in such manner as
is provided for in this Agreement and shall indemnify the Facility Agent
and the Lenders (and each of them) against all losses, claims, costs,
charges and expenses to which they may be subject or which they may incur
under or in connection with this Agreement.
17. THE FACILITY AGENT
17.1 Appointment of the Facility Agent
17.1.1 Each of the Lenders appoints the Facility Agent to act as its
Facility Agent under and in connection with the Financing
Documents.
17.1.2 Each of the Lenders authorises the Facility Agent to exercise
the rights, powers, authorities and discretions specifically
given to the Facility Agent under or in connection with the
Financing Documents together with any other incidental rights,
powers, authorities and discretions.
17.2 Duties of the Facility Agent
17.2.1 The Facility Agent shall promptly forward to a party the
original or a copy of any document which is delivered to the
Facility Agent for that party by any other party.
17.2.2 If the Facility Agent receives notice from a party referring to
this Agreement, describing an Event of Default or Potential
Event of Default and stating that the circumstance described is
an Event of Default or Potential Event of Default, it shall
promptly notify the Lenders.
17.2.3 The Facility Agent shall promptly notify the Lenders of any
Event of Default arising under sub-clause 14.1.1 of Clause 14.1
(Events of Default).
17.2.4 The Facility Agent's duties under the Financing Documents are
solely mechanical and administrative in nature.
17.3 No fiduciary duties
17.3.1 Nothing in this Agreement constitutes the Facility Agent as a
trustee or fiduciary of any other person.
17.3.2 The Facility Agent shall not be bound to account to any Lender
for any sum or the profit element of any sum received by it for
its own account.
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17.4 Business with the Group
The Facility Agent may accept deposits from, lend money to and generally
engage in any kind of banking or other business with any member of the
Group.
17.5 Rights and discretions of the Facility Agent
17.5.1 The Facility Agent may rely on:
(a) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(b) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within
his power to verify.
17.5.2 The Facility Agent may assume (unless it has received notice
to the contrary in its capacity as Facility Agent for the
Lenders) that:
(a) no Event of Default has occurred (unless it has actual
knowledge of a Event of Default arising under sub-clause
14.1.1 of Clause 14.1 (Events of Default));
(b) any right, power, authority or discretion vested in any
party or the Majority Lenders has not been exercised; and
(c) any notice or request made by the Company (other than a
Request) is made on behalf of and with the consent and
knowledge of all the Borrowers.
17.5.3 The Facility Agent may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other
experts.
17.5.4 The Facility Agent may act in relation to the Financing
Documents through its personnel and Facility Agents.
17.6 Majority Lenders' instructions
17.6.1 Unless a contrary indication appears in a Financing Document,
the Facility Agent shall (a) act in accordance with any
instructions given to it by the Majority Lenders (or, if so
instructed by the Majority Lenders, refrain from acting or
exercising any right, power, authority or discretion vested in
it as Facility Agent) and (b) not be liable for any act (or
omission) if it acts (or refrains from taking any action) in
accordance with such an instruction of the Majority Lenders.
17.6.2 Unless a contrary indication appears in a Financing Document,
any instructions given by the Majority Lenders will be binding
on all the Lenders.
17.6.3 The Facility Agent may refrain from acting in accordance with
the instructions of the Majority Lenders (or, if appropriate,
the Lenders) until it has received such security as it may
require for any cost, loss or liability (together with any
associated VAT) which it may incur in complying with the
instructions.
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17.6.4 In the absence of instructions from the Majority Lenders, (or,
if appropriate, the Lenders) the Facility Agent may act (or
refrain from taking action) as it considers to be in the best
interest of the Lenders.
17.6.5 The Facility Agent is not authorised to act on behalf of a
Lender (without first obtaining that Lender's consent) in any
legal or arbitration proceedings relating to any Financing
Document.
17.7 Responsibility for documentation
The Facility Agent:
17.7.1 is not responsible for the adequacy, accuracy and/or
completeness of any information (whether oral or written)
supplied by the Facility Agent, any Obligor or any other person
given in or in connection with any Financing Document; or
17.7.2 is not responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Financing Document or any
other agreement, arrangement or document entered into, made or
executed in anticipation of or in connection with any Financing
Document.
17.8 Exclusion of liability
17.8.1 Without limiting sub-clause 17.8.2 of this Clause 17.8, the
Facility Agent will not be liable for any action taken by it
under or in connection with any Financing Document, unless
directly caused by its gross negligence or wilful misconduct.
17.8.2 No party may take any proceedings against any officer, employee
or agent of the Facility Agent in respect of any claim it might
have against the Facility Agent or in respect of any act or
omission of any kind by that officer, employee or agent in
relation to any Financing Document and any officer, employee or
agent of the Facility Agent may rely on this Clause 17.8.
17.8.3 The Facility Agent will not be liable for any delay (or any
related consequences) in crediting an account with an amount
required under the Financing Documents to be paid by the
Facility Agent if the Facility Agent has taken all necessary
steps as soon as reasonably practicable to comply with the
regulations or operating procedures of any recognised clearing
or settlement system used by the Facility Agent for that
purpose.
17.9 Lenders' indemnity to the Facility Agent
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Facility Agent, within three Business Days of demand, against any cost,
loss or liability incurred by the Facility Agent (otherwise than by
reason of the Facility Agent's gross negligence or wilful misconduct) in
acting as Facility Agent under the Financing Documents (unless the
Facility Agent has been reimbursed by a Borrower pursuant to a Financing
Document).
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17.10 Resignation of the Facility Agent
17.10.1 The Facility Agent may resign and appoint one of its Affiliates
acting through an office in the United Kingdom as successor by
giving notice to the Lenders and the Company.
17.10.2 Alternatively the Facility Agent may resign by giving notice to
the Lenders and the Company, in which case the Majority Lenders
may, with the consent of the Obligors' Agent (not to be
unreasonably withheld or delayed) appoint a successor Facility
Agent.
17.10.3 If the Majority Lenders have not appointed a successor Facility
Agent in accordance with sub-clause 17.10.2 of this Clause 17.10
within 30 days after notice of resignation was given, the
Facility Agent may, with the consent of the Obligor's Agent (not
to be unreasonably withheld or delayed) appoint a successor
Facility Agent (acting through an office in the United Kingdom).
17.10.4 The resigning Facility Agent shall, at its own cost, make
available to the successor Facility Agent such documents and
records and provide such assistance as the successor Facility
Agent may reasonably request for the purposes of performing its
functions as Facility Agent under the Financing Documents.
17.10.5 The Facility Agent's resignation notice shall only take effect
upon the appointment of a successor.
17.10.6 Upon the appointment of a successor, the resigning Facility
Agent shall be discharged from any further obligation arising
from its role as Facility Agent in respect of the Financing
Documents but shall remain entitled to the benefit of this
Clause 17.10. Its successor and each of the other Parties shall
have the same rights and obligations amongst themselves as they
would have had if such successor had been an original party.
17.10.7 After consultation with the Company, the Majority Lenders may,
by notice to the Facility Agent, require it to resign in
accordance with sub-clause 17.10.2 of this Clause 17.10. In this
event, the Facility Agent shall resign in accordance with
sub-clause 17.10.2 of this Clause 17.10.
17.11 Confidentiality
17.11.1 In acting as Facility Agent for the Finance Parties, the
Facility 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.
17.11.2 If information is received by another division or department of
the Facility Agent, it may be treated as confidential to that
division or department and the Facility Agent shall not be
deemed to have notice of it.
17.11.3 Notwithstanding any other provision of any Financing Document to
the contrary, the Facility Agent is not obliged to disclose to
any other person (i) any confidential information or (ii) any
other information if the disclosure would or
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might in its reasonable opinion constitute a breach of any law
or a breach of a fiduciary duty.
17.12 Relationship with the Lenders
17.12.1 The Facility Agent may treat each Lender as a Lender, entitled
to payments under this Agreement and acting through its Facility
Office unless it has received not less than five Business Days
prior notice from that Lender to the contrary in accordance with
the terms of this Agreement.
17.12.2 Each Lender shall supply the Facility Agent with any information
required by the Facility Agent in order to calculate the
Mandatory Cost in accordance with Schedule 2 (Calculation of the
Mandatory Cost).
17.13 Credit appraisal by the Lenders
Without affecting the responsibility of any Borrower for information
supplied by it or on its behalf in connection with any Financing
Document, each Lender confirms to the Facility Agent that it has been,
and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with any Financing Document including but not limited to:
17.13.1 the financial condition, status and nature of each member of the
Group;
17.13.2 the legality, validity, effectiveness, adequacy or
enforceability of any Financing Document and any other
agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Financing Document;
17.13.3 whether that Lender has recourse, and the nature and extent of
that recourse, against any party or any of its respective assets
under or in connection with any Financing Document, the
transactions contemplated by the Financing Documents or any
other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Financing Document; and
17.13.4 the adequacy, accuracy and/or completeness of any information
provided by the Facility Agent, any party or by any other person
under or in connection with any Financing Document, the
transactions contemplated by the Financing Documents or any
other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Financing Document.
18. FEES AND EXPENSES
18.1 Fees
The Company shall pay the fees in accordance with the terms of the
letters dated on or about the Signing Date between, amongst others, the
Company and the Facility Agent.
18.2 Transaction expenses
The Company shall promptly on demand, and having been provided with
reasonable evidence of such, pay the Facility Agent the amount of all
costs and expenses (including
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legal fees) reasonably and properly incurred by any of them in connection
with the negotiation, preparation, printing, execution and syndication
of:
18.2.1 this Agreement and any other documents referred to in this
Agreement; and
18.2.2 any other Financing Documents executed after the date of this
Agreement.
18.3 Amendment costs
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 13.10 (Change of currency), the
Company shall, within three Business Days of demand, and having been
provided with reasonable evidence of such, reimburse the Facility Agent
for the amount of all costs and expenses (including legal fees)
reasonably and properly incurred by the Facility Agent in responding to,
evaluating, negotiating or complying with that request or requirement.
18.4 Enforcement costs
The Company shall, within three Business Days of demand, and having been
provided with reasonable evidence of such, pay to each Lender the amount
of all costs and expenses (including legal fees) incurred by that Lender
in connection with the enforcement of, or the preservation of any rights
under, any Financing Document.
18.5 Stamp Duty
The Obligors shall pay any stamp, documentary and other similar duties
and Taxes to which the Financing Documents or any related documents
(other than an assignment or transfer of a Lender's rights or obligations
hereunder) may be subject or give rise in any relevant jurisdiction and
shall fully indemnify the Facility Agent and each of the Lenders from and
against any losses, liabilities or costs which any of them may incur as a
result of any delay or omission by the Borrowers to pay any such duties
or Taxes.
18.6 Value Added Tax
The consideration stated in a Financing Document to be payable by any
Party to a Lender or the Facility Agent is deemed to be exclusive of any
VAT and accordingly:
18.6.1 any Party shall in addition to and at the same time as paying
any consideration pay an amount equal to any VAT properly
chargeable in respect of supplies made by a Lender or the
Facility Agent as contemplated by this Agreement; and
18.6.2 where a Financing Document requires any Party to reimburse a
Lender or the Facility Agent for any costs or expenses, that
Party shall also at the same time pay and indemnify the Facility
Agent or the Lender against all VAT incurred by the Facility
Agent or the Lender in respect of the costs or expenses to the
extent that the Facility Agent or Lender reasonably determines
that it is not entitled to credit for or repayment of the VAT.
19. SET-OFF AND PRO RATA SHARING
19.1 Set-off
Following an Event of Default which is continuing and has not been
waived, any Lender may at the same time as providing notice to the
relevant Obligor combine, consolidate or merge all or any of a Borrower's
or a Guarantor's accounts with, and liabilities to, that
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Lender and may set off or transfer any sum standing to the credit of any
such accounts in or towards satisfaction of any of the Borrower's or any
of the Guarantor's, as the case may be, liabilities to that Lender under
the Financing Documents, and may do so notwithstanding that the balances
on such accounts and the liabilities may not be expressed in the same
currency and each Lender is hereby authorised to effect any necessary
conversions at the Lender's own rate of exchange then prevailing.
19.2 Pro Rata Sharing
19.2.1 If, following an Event of Default, a Lender receives or recovers
any amount (other than from the Facility Agent) in respect of
sums due from a Borrower or a Guarantor under the Financing
Documents (whether by set-off or otherwise) it shall promptly
notify the Facility Agent of such amount and the manner of its
receipt or recovery.
19.2.2 Following receipt of notice under sub-clause 19.2.1 of this
Clause 19.2 the Facility Agent shall, as soon as practicable,
having regard to the circumstances, consult with the Lenders to
establish the aggregate amount of sums received or recovered by
the Lenders and what payments are necessary amongst the Lenders
for such aggregate amount to be divided amongst each Lender in
the proportion to which each Lender's Outstandings bear to the
Total Outstandings.
19.2.3 The Lenders shall promptly make such payments to each other,
through the Facility Agent, as the Facility Agent shall direct
to effect the divisions referred to in sub-clause 19.2.2 of this
Clause 19.2.
19.2.4 If a Lender makes a payment or payments pursuant to sub-clause
19.2.3 of this Clause 19.2, any payment previously received by
that Lender as described in sub-clause 19.2.1 of this Clause
19.2 shall, subject to sub-clause 19.2.5, of this Clause 19.2 be
deemed to have been made by the relevant Borrower or the
relevant Guarantor, as the case may be, on the understanding
that it was received by that Lender as agent for the Lenders and
that the payments described in sub-clause 19.2.3 of this Clause
19.2 would be made and the liabilities of the relevant Borrower
or the relevant Guarantor, as the case may be, to each of the
Lenders shall accordingly be determined on the basis that such
payment or payments pursuant to sub-clause 19.2.3 of this Clause
19.2 would be made.
19.2.5 If a Lender makes a payment or payments pursuant to sub-clause
19.2.3 of this Clause 19.2, sub-clause 19.2.4 of this Clause
19.2 shall not apply if, as a result, the indebtedness of the
relevant Borrower or the relevant Guarantor to the Lender has
been extinguished, discharged or satisfied by the amount
received or recovered (for example, because of set-off). In this
event, for the purpose only of determining the liabilities of
the relevant Borrower or the relevant Guarantor, as the case may
be, to the Lenders (other than the Lender making the said
payment or payments) and the liabilities of the Lenders to each
other, the said payment or payments by the Lender shall be
deemed to have been made on behalf of the relevant Borrower or
the relevant Guarantor, as the case may be, in respect of its
obligations under the Financing Documents and to the extent the
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Facility is thereby discharged the relevant Borrower or the
relevant Guarantor, as the case may be, shall fully indemnify
the Lender for such payment or payments.
19.2.6 Any moneys payable by the relevant Borrower or the relevant
Guarantor under sub-clause 19.2.5 of this Clause 19.2 by way of
indemnity shall be payable from the date the Lender makes the
payment or payments under sub-clause 19.2.3 of this Clause 19.2,
shall carry interest from such date and for such purpose and all
other purposes of this Agreement be treated in the same way as
other amounts payable under this Agreement as though such moneys
were payable in respect of the Outstandings of the Lender which
has the benefit of the indemnity contained in sub-clause 19.2.5
of this Clause 19.2 (whether or not the indebtedness
attributable to such participation has been extinguished,
discharged or satisfied in whole or in part).
For the purpose of disclosure pursuant to the Interest Act
(Canada), the yearly rate of interest to which any rate of
interest payable under this Agreement which is to be calculated
on any basis other than a full calendar year is equivalent may
be determined by multiplying such rate by a fraction, the
numerator of which is the number of days in the calendar year in
which the period for which interest at such rate is payable ends
and the denominator of which is the number of days comprising
such basis.
19.2.7 Every payment and adjustment made pursuant to this Clause 19.2
shall be subject to the condition that if any receipt or
recovery as referred to in sub-clause 19.2.1 of this Clause 19.2
made by a Lender (or any part thereof) subsequently has to be
repaid by the relevant Lender (the "Sharing Lender") to the
relevant Borrower or the relevant Guarantor, the Facility Agent
(if it shall then hold the same) and each of the Lenders which
has received any part thereof shall repay the relevant amount
received (or the relevant part, as the case may be) to the
Sharing Lender together with such amount (if any) as is
necessary to reimburse to the Sharing Lender the appropriate
proportion of any interest (in respect of the period during
which the Facility Agent or (as the case may be) such Lender
held such amount (or part thereof)) it shall have been obliged
to pay when repaying such amount as aforesaid and the relevant
adjustments pursuant to the preceding sub-clauses of this Clause
19.2 shall be to that extent cancelled.
19.3 Litigation
If any Lender shall commence an action or proceeding in any court to
enforce its rights and, as a result thereof or in connection therewith,
shall receive any amount which would otherwise require such Lender to
make a payment to another Lender pursuant to this Clause 19.3 the
relevant Lender shall not be required to make any such payment to (a) a
Lender that has the legal right to, but does not (after notification to
that Lender by the Lender instituting legal proceedings), join such
action or proceeding or commence and diligently prosecute a separate
action or proceeding to enforce its rights in the same or another court
or (b) the Lenders(s) which shall have joined the same action or
proceeding or shall have commenced and prosecuted a separate action or
proceeding to enforce their
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rights in the same or in another court if, by reason of the negligence or
wilful default of such Lender(s), such Lender(s) shall obtain a sum which
is proportionately smaller (including a nil receipt) than that received
by the Lender otherwise required to make a payment pursuant to this
Clause 19.3.
19.4 Notification
Each Lender shall promptly give notice to the Facility Agent of:
19.4.1 the institution by such Lender of any legal action or
proceedings hereunder or in connection herewith prior to such
institution; and
19.4.2 the receipt or recovery by such Lender of any amount due and
payable to such Lender hereunder and received or recovered by it
otherwise than through the Facility Agent.
Upon receipt of any such notice the Facility Agent will as soon as
practicable thereafter notify all the other Lenders.
20. BENEFIT OF AGREEMENT
20.1 Assignments and transfers by Obligors
Except as otherwise provided in Clause 3.9 (Substitution of Borrowers),
no Obligor may assign or transfer all or any part of its rights or
obligations under this Agreement without the prior written consent of all
the Lenders.
20.2 Assignments and transfers by the Lenders
Subject to this Clause 20, a Lender (the "Existing Lender") may:
20.2.1 assign any of its rights; or
20.2.2 transfer by novation any of its rights and obligations,
to another bank or financial institution (the "New Lender").
20.3 Conditions of assignment or transfer
20.3.1 The consent of the Company is required for an assignment or
transfer by a Lender, unless the assignment or transfer is to
another Lender or an Affiliate of a Lender.
20.3.2 The consent of the Company to an assignment or transfer must not
be unreasonably withheld or delayed. The Company will be deemed
to have given its consent five Business Days after the Lender
has requested it unless consent is expressly refused by the
Company within that time.
20.3.3 The consent of the Company to an assignment or transfer must not
be withheld solely because the assignment or transfer may result
in an increase to the Mandatory Cost.
20.3.4 The consent of the Company to an assignment or transfer is not
required when an Event of Default has occurred and is
continuing.
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20.3.5 Any such transfer may be in whole or in part of the Existing
Lender's relevant Commitment but, if in part, in a minimum
amount of $5,000,000 (unless the Borrower's Agent otherwise
agrees at its absolute discretion) and provided that after
such transfer such Existing Lender's Commitment shall not be
less than $5,000,000 (or zero if the whole of such Existing
Lender's Commitment is transferred).
20.3.6 An assignment will only be effective on receipt by the
Facility Agent of written confirmation from the New Lender (in
form and substance satisfactory to the Facility Agent) that
the New Lender will assume the same obligations to the other
Lenders as it would have been under if it was an Original
Lender.
20.3.7 A transfer will only be effective if the procedure set out in
Clause 20.6 (Procedure for Transfer) is complied with.
20.3.8 If:
(a) a Lender assigns or transfers any of its rights or
obligations under the Financing Documents or changes its
Facility Office; and
(b) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor would
be obliged to make a payment to the New Lender or Lender
acting through its new Facility Office under Clause 13.3
(Withholdings) or Clause 12.2 (Increased Costs),
then the New Lender or Lender acting through its new Facility
Office is only entitled to receive payment under those Clauses
to the same extent as the Existing Lender or Lender acting
through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
20.4 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Facility Agent (for its own account) a fee of
$1,500.
20.5 Limitation of responsibility of Existing Lenders
20.5.1 Unless expressly agreed to the contrary, an Existing Lender
makes no representation or warranty and assumes no
responsibility to a New Lender for:
(a) the legality, validity, effectiveness, adequacy or
enforceability of the Financing Documents or any other
documents;
(b) the financial condition of any Obligor;
(c) the performance and observance by any Obligor of its
obligations under the Financing Documents or any other
documents; or
(d) the accuracy of any statements (whether written or oral)
made in or in connection with any Financing Documents or
any other document,
and any representations or warranties implied by law are
excluded.
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20.5.2 Each New Lender confirms to the Existing Lender and the other
Lenders that it:
(a) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition
and affairs of each Obligor and its related entities in
connection with its participation in this Agreement and
has not relied exclusively on any information provided to
it by the Existing Lender in connection with any
Financing Documents; and
(b) will continue to make its own independent appraisal of
the creditworthiness of each Obligor and its related
entities whilst any amount is or may be outstanding under
the Financing Documents or any Commitment is in force.
20.5.3 Nothing in any Financing Documents obliges an Existing Lender
to:
(a) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under this
Clause 20; or
(b) support any losses directly or indirectly incurred by the
New Lender by reason of the non-performance by any
Obligor of its obligations under the Financing Documents
or otherwise.
20.6 Procedure for transfer
20.6.1 Subject to the conditions set out in Clause 20.3 (Conditions
of assignment or transfer) a transfer is effected in
accordance with sub-clause 20.6.2 of this Clause 20.6 when the
Facility Agent executes an otherwise duly completed Transfer
Certificate delivered to it by the Existing Lender and the New
Lender. The Facility Agent shall, as soon as reasonably
practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of
this Agreement and delivered in accordance with the terms of
this Agreement, execute that Transfer Certificate.
20.6.2 On the Transfer Date:
(a) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer by novation its rights
and obligations under the Financing Documents each of the
Obligors and the Existing Lender shall be released from
further obligations towards one another under the
Financing Documents and their respective rights against
one another shall be cancelled (being the "Discharged
Rights and Obligations");
(b) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor and
the New Lender have assumed and/or acquired the same in
place of that Borrower and the Existing Lender;
(c) the Facility Agent, the New Lender and other Lenders
shall acquire the same rights and assume the same
obligations between themselves as they would have
acquired and assumed had the New Lender been on the date
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of this Agreement with the rights and/or obligations
acquired or assumed by it as a result of the transfer and
to that extent the Facility Agent and the Existing Lender
shall each be released from further obligations to each
other under this Agreement; and
(d) the New Lender shall become a Party as a "Lender".
20.7 Disclosure of information
Any Lender may disclose to any of its Affiliates and any other person:
20.7.1 to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
20.7.2 with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation to,
or any other transaction under which payments are to be made
by reference to, this Agreement or any Obligor; or
20.7.3 to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Financing Documents
as that Lender shall consider reasonably appropriate if, in relation to
sub-clauses 20.7.1 and 20.7.2 of this Clause 20.7, the person to whom
the information is to be given has entered into a Confidentiality
Undertaking.
20.8 Limitation of Increased Costs
Where any Lender assigns or transfers all or any part of its
rights or obligations hereunder or changes its lending office
for the purpose of this Agreement, the Borrower shall not be
liable (other than where such change in its lending office was
requested by the Borrowers' Facility Agent on behalf of any
Borrower) to pay any additional amounts under Clauses 12.2
(Increased Costs) or 13.3 (Withholdings) due to circumstances
existing on the effective date of such assignment or transfer
and which would not have been payable had no such change,
assignment or transfer taken place.
20.9 Sub-Participations
No Lender shall be required to notify any other party to this
Agreement of a sub-participation of its rights and interests
hereunder provided that nothing in this Clause 20.9
(Sub-Participations) gives any sub-participant any rights
against any Borrower or the Guarantor. No Borrower shall be
liable to pay any additional amounts under Clause 12.2
(Increased Costs) or Clause 13.3 (Withholdings) arising as a
direct consequence of any such sub-participation.
21. FURTHER PROVISIONS
21.1 Evidence of Indebtedness
In any proceedings relating to this Agreement:
21.1.1 a statement as to any amount due to the Lenders under
this Agreement which is certified as being correct by
an officer of the Facility Agent; and
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21.1.2 a statement as to any amount due to a Lender under this
Agreement which is certified as being correct by an officer of
the Lender,
shall, unless otherwise provided in this Agreement, be prima facie
evidence that such amount is in fact due and payable.
21.2 Application of Moneys
If any sum paid or recovered in respect of the liabilities of a Borrower
under this Agreement is less than the amount then due, the Facility
Agent may apply that sum to principal, interest, fees or any other
amount due under this Agreement in such proportions and order and
generally in such manner as the Majority Lenders shall determine.
21.3 Rights Cumulative: Waivers
The rights and remedies provided in this Agreement are cumulative, may
be exercised as often as is considered appropriate by the relevant Party
and are not exclusive of any rights or remedies provided by law. The
respective rights of the Facility Agent and the Lenders in relation to
the Facility (whether arising under this Agreement or under the general
law) shall not be capable of being waived or varied otherwise than by an
express waiver or variation in writing; and in particular any failure to
exercise or any delay in exercising any of such rights shall not operate
as a waiver or variation of that or any other such right; any defective
or partial exercise of any of such rights shall not preclude any other
or further exercise of that or any other such right; and no act or
course of conduct or negotiation on their part or on their behalf shall
in any way preclude them from exercising any such right or constitute a
suspension or any variation of any such right.
21.4 Amendments
The Facility Agent may (except where any other authority is required for
the same by the express provisions of the Financing Documents) grant
waivers or consents or vary the terms of the Financing Documents if
authorised by the Majority Lenders and the Obligors' Agent. Any such
waiver, consent or variation so authorised and effected by the Facility
Agent shall be binding on all the Lenders and the Facility Agent shall
be under no liability whatsoever in respect of any such waiver, consent
or variation. This Clause 21.4 (Amendments) shall not authorise:
21.4.1 any change in the rate at which interest is payable or the
method by which interest is calculated under this Agreement;
21.4.2 any extension of the date for, or alteration in the amount or
currency of, any payment of principal, interest, fee,
commission or any other amount payable under the Financing
Documents;
21.4.3 any extension of the Final Drawing Date or the Final Maturity
Date;
21.4.4 any increase in any Lender's Commitment;
21.4.5 any variation of (a) the definitions of Majority Lenders; (b)
Clauses 19.2 (Pro Rata Sharing) and 20.1 (Assignments and
Transfers by Obligors') or this Clause 21.4 (Amendments); or
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21.4.6 any release of any Guarantor except where specifically
permitted elsewhere in this Agreement or any variation or
amendment to Clause 11.14 (Limitation on Borrowings of
Subsidiaries),
except with the prior consent of all the Lenders.
21.5 Notices
Except as otherwise stated herein, any communication to be made
hereunder shall be made in writing and may be made by fax, letter or
telex or, to the extent that the relevant Party has specified such
address pursuant to sub-clauses 21.6.1, 21.6.2 or 21.6.3 below, by
e-mail, and in the case of the notification of rates of interest by the
Facility Agent pursuant to Clause 7.5 (Facility Agent's Certificate) and
the distribution of any information by the Facility Agent pursuant to
Clause 17.2 (Duties of the Facility Agent), the Facility Agent may refer
any Obligor or the Lenders (whichever is appropriate) by fax, letter or
telex, or if so specified, e-mail to a web site and to the location of
the relevant information on such web site in discharge of such
notification or delivery obligation provided that:
21.5.1 such notification or delivery obligation shall not be
discharged by the Facility Agent referring a Lender or Obligor
to a web site if such Lender or Obligor has previously
provided written notice to the Facility Agent that it does not
wish to receive notices via a web site; and
21.5.2 in relation to the notification of rates of interest pursuant
to Clause 7.5 (Facility Agent's Certificate), if any Party
notifies the Facility Agent that it is unable to access such
website the Facility Agent will promptly notify that Party of
the relevant interest rate using an alternative method of
communication permitted under this Clause 21.5.
21.6 Any such notice or other communications shall be deemed to be duly given
or made when delivered (in the case of personal delivery or letter) and
when despatched (in the case of telex, fax or, if so specified, e-mail
to such party addressed to it at its address, telex number, facsimile
number or, if so specified, its e-mail address or where reference in
such communication is to a web site, when the delivery of such letter,
fax, telex or as the case may be, e-mail referring the addressee to such
web site is effective:
21.6.1 in the case of a Lender, as specified in Schedule 1 (Lenders
and Commitments) or at such other address, telex number,
facsimile number and/or e-mail address as such Lender may
notify to the Facility Agent in writing from time to time.
21.6.2 in the case of an Obligor, as such Obligor may specify in
writing to the Obligors' Agent and the Facility Agent from
time to time;
21.6.3 in the case of the Obligors' Agent or the Facility Agent as
follows, or as such a party may specify to all the other
parties hereto in writing from time to time:
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The Obligors' Agent WPP Group plc
27 Farm Street
London W1X 6RD
Facsimile No: 020 7491 8417
Attention: Company Secretary
The Facility Agent Citibank International plc
PO Box 78
335 Strand
London WC2P 1LS
Telephone No: 020 7500 4194
Facsimile No: 020 7500 4482/4484
Attention: Loans Agency
21.7 English Language
All notices or communications under or in connection with this Agreement
shall be in the English language or, if in any other language,
accompanied by a translation into English. In the event of any conflict
between the English text and the text in any other language, the English
text shall prevail.
21.8 Invalidity of any Provision
If any of the provisions of this Agreement becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
21.9 Counterparts
This Agreement may be executed in any number of counterparts, and such
execution shall have the same effect as if the signatures on the
counterparts were on a single copy of this Agreement.
21.10 Choice of Law
This Agreement is governed by, and shall be construed in accordance
with, the laws of England.
21.11 Submission to Jurisdiction
21.11.1
(a) For the benefit of the Facility Agent and each of the
Lenders, all the parties agree that the courts of England
are to have jurisdiction to settle any disputes which may
arise in connection with the legal relationships
established by this Agreement (including, without
limitation, claims for set-off or counterclaim) or
otherwise arising in connection with this Agreement.
(b) Without prejudice to sub-clause 21.11.1(a) of this Clause
21.11, each of the Obligors irrevocably submits to the
jurisdiction of any state or federal court of the State
of New York.
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(c) The Obligors irrevocably waive any objections on the
ground of venue or forum non conveniens or any similar
grounds.
(d) The Obligors irrevocably consent to service of process by
mail or in any other manner permitted by the relevant
law.
21.11.2 The Obligors shall at all times maintain an agent for service
of process in England and in New York. Such agent shall be, in
the case of England, the Company at its address at 27 Farm
Street, London W1X 6RD, and, in the case of New York, WPP
Group USA, Inc. of 14th Floor, Worldwide Plaza, 309 West 49th
Street, New York, NY 10019 - 7399, U.S.A. and any writ,
judgment or other notice of legal process shall be
sufficiently served on the Obligors if delivered to such agent
at its address for the time being. The Obligors undertake not
to revoke the authority of the above agents and if, for any
reason, any such agent no longer serves as agent of the
Obligors to receive service of process, the Obligors shall
promptly appoint another such agent and advise the Facility
Agent thereof. The Company and WPP Group USA, Inc. hereby
accept the foregoing appointments and agree to accept service
of any writ, judgment or other notice of legal process on
behalf of the Obligors in the relevant jurisdiction for which
they are appointed as agent for service of process.
21.12 Waiver of Jury Trial
Each of the parties hereto waives trial by jury in any judicial
proceeding involving, directly or indirectly, any matter (whether
sounding in tort, contract or otherwise) in any way arising out of,
related, or connected with any of the finance documents or the
relationship established hereunder and whether arising or asserted
before or after the date hereof or before or after the payment,
observance and performance in full of such party's obligations
hereunder.
Signed by the authorised representatives of the parties.
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SCHEDULE 1
Lenders and Commitments
Lender Commitment
(in dollars)
Bank of America, N.A. 73,170,000
Barclays Bank PLC 73,170,000
BNP Paribas London Branch 73,170,000
Citibank, N.A. 73,170,000
HSBC Bank plc 73,170,000
Sumitomo Mitsui Banking Corporation (SMBC) 73,170,000
The Royal Bank of Scotland Plc acting as agent for NatWest Plc 73,170,000
Westdeutsche Landesbank Girozentrale, London Bank 54,875,000
Fleet National Bank 54,875,000
Credit Agricole Indosuez 36,590,000
First Union National Bank 36,585,000
Wachovia Bank N.A. 36,585,000
ABN AMRO Bank N.V. 18,300,000
------------
$750,000,000
------------
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SCHEDULE 2
Calculation of the Mandatory Cost
(a) For the purpose of paragraph (a) of the definition of Mandatory Cost, the
Mandatory Cost for an Advance for each of its Interest Periods is the rate
determined by the Facility Agent to be equal to the arithmetic mean
(rounded upward, if necessary, to four decimal places) of the respective
rates notified by each of the Reference Banks to the Facility Agent as the
rate resulting from the application of the following formula:
in relation to an Advance denominated in sterling:
BY + S(Y-Z) + F x 0.01% per annum
----------------------
100-(B + S)
in relation to any other Advance:
F x 0.01% per annum
--------
300
where on the day of application of the formula:
B is the percentage of the Reference Bank's eligible liabilities (in
excess of any stated minimum) by reference to which the Bank of
England and/or the Financial Services Authority ("FSA") requires the
Reference Bank to hold on a non-interest-bearing deposit account in
accordance with its cash ratio requirements;
Y is the percentage rate per annum at which sterling deposits are
offered by the Reference Bank to leading banks in the London Interbank
Market at or about 11.00 a.m. (London time) on that day for the
relevant Interest Period;
S is the percentage of the Reference Bank's eligible liabilities which
the Bank of England (or other relevant United Kingdom governmental
authority or agency) requires the Reference Bank to place as a special
deposit;
Z is the interest rate per annum payable by the Bank of England to such
Reference Bank on special deposits; and
F is the rate of charge payable by the Reference Bank to the FSA under
paragraph 2.02 or 2.03 (as appropriate) of the Fees Regulations (but
where for this purpose, the figure in paragraph 2.02b or 2.03b (as
appropriate) will be deemed to be zero) expressed in pounds per
(pound)1 million of the fee base of the Reference Bank.
(b) For the purposes of this Schedule 2:
(i) "eligible liabilities" and "special deposits" have the meanings given
to them at the time of application of the formula by the Bank of
England;
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(ii) "fee base" has the meaning given to it in the Fees Regulations;
(iii) "Fees Regulations" means any regulations governing the payment of
fees for banking supervision currently in force in England.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%, BY
is calculated as 0.5 x 15. A negative result from subtracting Z from Y is
to be treated as zero.
(d) If a Reference Bank does not supply a rate to the Facility Agent, the
applicable Mandatory Cost will be determined on the basis of the rate(s)
supplied by the remaining Reference Banks to the Facility Agent.
(e)
(i) Each formula is applied on the first day of each Interest Period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(f) The Facility Agent may, from time to time, after consultation with the
Majority Lenders, determine and notify to the Obligor's Agent and the
Majority Lenders any amendments or variations which are required to be made
to the formula set out above in order to comply with any requirements from
time to time imposed by any applicable regulatory authority in relation to
Advances denominated in sterling (including, without limitation, any
requirements relating to sterling primary liquidity) and any such
determination shall, in the absence of manifest error, be conclusive and
binding on all the parties hereto.
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SCHEDULE 3
Request in Respect of Advances
To: [*the Facility Agent] Date: [* ],20 [* ]
Dear Sirs,
Revolving Facility Agreement dated [ ], 2001
Drawing Number: [* ]
1. We refer to Clause 5 (Utilisation of Facility) of the Revolving Facility
Agreement. Terms defined in the Revolving Facility Agreement have the same
meanings in this Request.
2. We wish to borrow Advances with the following specifications:
(a) Borrower: [* ]
(b) Drawing Date: [* ] 20[* ]
(c) Currency: [* ]
(d) Amount: [* ]
(e) Interest Period: [* ]
(f) Payment Instructions: [* ]
3. We confirm that the matters represented and warranted by each Borrower and
each Guarantor set out in Clause 10.2 (After Signing) of the Revolving
Facility Agreement are true and accurate on the date of this Request as if
made with reference to the facts and circumstances now prevailing and that
no Event or Default or Potential Event or Default has occurred and is
continuing or would result from the Advance.**
4. We confirm that on the date hereof the Existing Facility Outstandings are:
[ ].
Yours faithfully,
[Authorised Signatory]
for and on behalf of
[Obligors' Agent]
** Note: This paragraph is not required for a rollover utilisation (as defined
in Clause 4.3 (Conditions to Each Utilisation)
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SCHEDULE 4
CERTIFICATE
[Letterhead of Borrower]
To: [*the Facility Agent]
I [*name], the [Secretary] of [*name of Borrower] of [*address] (the "Company")
HEREBY CERTIFY that:
(i) attached hereto marked "A" are true and correct copies of all documents
which contain or establish or relate to the constitution of the Company;
(ii) attached hereto marked "B" is a true and correct copy of [resolutions
duly passed] at [a meeting of the Board of Directors] of the Company
duly convened and held on [ ] 20[* ] approving the Revolving
Facility Agreement to be entered into between (1) WPP Group plc, (2) WPP
Finance Co. Limited, (3) WPP Group U.S. Finance Corp., (4) the Facility
Agent and (5) the Lenders named therein and authorising its signature,
delivery and performance and such resolutions have not been amended,
modified or revoked and are in full force and effect; and
(iii) [attached hereto marked ["C1" and "C2"] are true and correct copies of
the acceptance by [each of] the agent in [England and New York] of their
[respective] appointments as agent of the Company for the purpose of
accepting service of process.]
The following signatures are the true signatures of the persons who have been
authorised to sign the Revolving Facility Agreement and to give notices and
communications, including notices of drawing, under or in connection with the
Revolving Facility Agreement.
Name Position Signature
* *
* *
* *
Signed: _____________________
[Secretary]
""""""""""""""
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SCHEDULE 5
FORM OF ACCESSION NOTICE
To: [the Facility Agent]
1. We refer to an agreement (the "Revolving Facility Agreement") dated
[ ], 2001 and made between (1) WPP Group plc, (2) WPP Finance Co.
Limited, (3) WPP Group U.S. Finance Corp., (4) the Facility Agent and (5)
the Lenders named therein. Terms defined in the Revolving Facility
Agreement shall bear the same meaning herein.
2. We hereby give you notice that we wish [proposed additional Borrower] of
[address, telex number], a company incorporated in [* ] to become a
Borrower under the terms of the Revolving Facility Agreement.
3. We hereby confirm that [proposed additional Borrower] is a Subsidiary.
4. As contemplated by the provisions of the Revolving Facility Agreement we,
[proposed additional Borrower], shall accordingly become entitled to make
Requests under the Revolving Facility Agreement in accordance with the
terms and conditions thereof and undertake with the Facility Agent and the
Lenders and the Company to be bound by the terms and conditions of the
Revolving Facility Agreement insofar as such terms and conditions apply to
an additional Borrower.
5. We, [proposed additional Borrower], confirm that at [ ] the
representations set out in paragraphs [* ] of Clause 10.2 (After
Signing) of the Revolving Facility Agreement would be true (to the extent
that such representations can relate to any additional Borrower) if
repeated by reference to ourselves instead of the Company and each Borrower
and we, as the Company, confirm that, at [ ] the representations set
out in Clause 10.2 (After Signing) of the Revolving Facility Agreement are
true and no Event of Default or Potential Event of Default has occurred and
is continuing.
6. The Obligors' Agent (as agent for itself and for each of the Borrowers and
the Guarantors) confirms that Clause 16 (Guarantee) of the Revolving
Facility Agreement shall apply to the obligations of the additional
Borrower under the Revolving Facility Agreement.
7. We enclose in respect of [proposed additional Borrower] the Certificate set
out in Schedule 4 (Certificate) of the Revolving Facility Agreement.
Yours faithfully
for and on behalf of for and on behalf of
[additional Borrower] [Obligors' Agent]
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SCHEDULE 6
NOTICE OF PROPOSED SUBSTITUTION
To: [the Facility Agent]
Attention:
[Date]
Pursuant to Clause 3.9 (Substitution of Borrowers) of the Revolving Facility
Agreement dated [ ], 2001 between WPP Group plc, WPP Finance Co.
Limited, WPP Group U.S. Finance Corp., the Facility Agent and the Lenders (each
as defined therein) we hereby give you notice of the following proposed
substitution of a Borrower in relation to the Advances mentioned below:
(a) Existing Borrower: [* ]
(b) Proposed Substitute Borrower: [* ]
(c) Proposed date for substitution: [* ]
(d) Drawing Date or Date of Issue of relevant Advance: [* ]
(e) Drawing of Advances: [* ]
(f) Currency of Advance: [ ]
Yours faithfully,
[Authorised Signatory]
For and on behalf of
[Obligors' Agent]
* must be at least fourteen days after the date upon which the Facility Agent
will receive this Notice.
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SCHEDULE 7
FORM OF NOVATION AGREEMENT
A NOVATION AGREEMENT dated [ ]
BETWEEN:
(1) [ ] (the "Original Borrower");
(2) [ ] (the "Substitute Borrower");
(3) WPP GROUP plc on behalf of itself and each other Borrower (as such
capitalised terms are defined in the Revolving Facility Agreement referred
to below) (the "Obligors' Agent");
(4) [ ] as facility agent (the "Facility Agent") on behalf of itself
and the Lenders (as defined in the Revolving Facility Agreement referred to
below);
is supplemental to the Revolving Facility Agreement dated [ ], 2001
and made between WPP Group plc, WPP Finance Co. Limited, WPP Group U.S. Finance
Corp., the Facility Agent and the Lenders (all as named therein) (the "Revolving
Facility Agreement"). IT IS AGREED:
1. NOVATION
In consideration of a payment made by the Original Borrower to the
Substitute Borrower and the release of the Original Borrower from its
obligations and liabilities (actual or contingent) specified in the
Schedule hereto under the Revolving Facility Agreement and with effect on
and from [ ] (the "Effective Date") the Substitute Borrower hereby
undertakes to observe and perform all the obligations and liabilities
(actual or contingent) of the Original Borrower under the Revolving
Facility Agreement in respect of the Advances specified in the Schedule
(including any such obligations or liabilities as may have accrued or
become due in respect thereof prior to the Effective Date).
2. INTEGRATION
This Novation Agreement shall be read as one with the Revolving Facility
Agreement so that any reference therein to "this Agreement", "hereunder"
and similar shall include and be deemed to include this Novation Agreement.
3. REPRESENTATIONS AND WARRANTIES
The Substitute Borrower represents and warrants to the Facility Agent and
the Lenders on [ ] in the terms of the representations and
warranties contained in Clause 10.2 (After Signing) of the Revolving
Facility Agreement (with reference to the facts and circumstances
subsisting as at such date).
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4. CONTINUING LIABILITY
The Obligors' Agent on behalf of itself acknowledges and confirms that its
obligations under Clause 16 (Guarantee) of the Revolving Facility Agreement
apply to the obligations and liabilities assumed by the Substitute Borrower
hereunder.
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SCHEDULE
[ ]
IN WITNESS whereof the parties hereto have caused this Novation Agreement to be
duly executed on the date first written above.
For and on behalf of
[The Original Borrower] ---------------------------
For and on behalf of
[The Substitute Borrower] ---------------------------
For and on behalf of each Guarantor,
each Borrower and the Obligors'
Agent ---------------------------
For and on behalf of each
Lender and the Facility Agent ---------------------------
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SCHEDULE 8
FORM OF TRANSFER CERTIFICATE
To: [*the Facility Agent]
Transfer Certificate
relating to a Revolving Facility Agreement (the "Revolving Facility Agreement")
dated [ ], 2001 and made between (1) WPP Group plc (as Guarantor and
Borrower), (2) WPP Finance Co. Limited (as Borrower), (e) WPP Group U.S. Finance
Corp. (as Borrower), (4) the Facility Agent and (5) the Lenders named therein.
Terms defined in the Revolving Facility Agreement have the same meanings herein.
1. [Existing Lender] (the "Existing Lender") (a) confirms that to the
extent that details appear in the Schedule hereto against, as the case
may be, the heading "Existing Lender's Commitment" and/or "Existing
Lender's Participation", such details accurately summarise, as the case
may be, its participation in the Facility and (b) requests [New Lender]
(the "New Lender") to accept and procure the transfer to the New Lender
of the portion specified in the Schedule of, as the case may be, its
participation in the Facility by counter-signing and delivering this
Transfer Certificate to the Facility Agent at its address for the
service of notices specified in the Revolving Facility Agreement.
2. The New Lender hereby requests the Facility Agent to accept this
Transfer Certificate as being delivered to the Agent pursuant to and for
the purposes of Clause 20.6 (Procedure for Transfer) of the Revolving
Facility Agreement so as to take effect in accordance with the terms
thereof on [date of transfer].
3. The New Lender confirms that it has received a copy of the Revolving
Facility Agreement together with such other documents and information as
it has required in connection with this transaction and that it has not
relied and will not hereafter rely on the Existing Lender to check or
enquire on its behalf into the execution, validity, enforceability,
effectiveness, adequacy, accuracy or completeness of any such documents
or information and further agrees that it has not relied and will not
rely on the Existing Lender to assess or keep under review on its behalf
the financial condition, credit worthiness, affairs, status or nature of
the Borrower or of any other party to the Revolving Facility Agreement.
4. The New Lender hereby undertakes with the Existing Lender and each of
the other parties to the Revolving Facility Agreement that it will
perform in accordance with their terms all those obligations which by
the terms of the Revolving Facility Agreement will be assumed by it
after delivery of this Transfer Certificate to the Facility Agent and
satisfaction of the conditions (if any) subject to which this Transfer
Certificate is expressed to take effect.
5. The Existing Lender makes no representation or warranty and assumes no
responsibility with respect to the execution, validity, enforceability,
effectiveness or adequacy of the
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Revolving Facility Agreement or any document relating thereto and
assumes no responsibility for the financial condition of any Obligor or
any other party to the Revolving Facility Agreement or for the
performance and observance by any Obligor or any other such party of any
of its obligations under the Revolving Facility Agreement or any
document relating thereto and any and all such conditions and
warranties, whether express or implied by law or otherwise, are hereby
excluded.
6. The Existing Lender hereby gives notice to the New Lender (and the New
Lender hereby acknowledges and agrees with the Existing Lender) that the
Existing Lender is under no obligation to purchase (or in any other
manner to assume, undertake or discharge any obligation or liability in
relation to) the portion transferred and referred to in the Schedule at
any time after this Transfer Certificate shall have taken effect.
7. Following the date upon which this Transfer Certificate shall have taken
effect, without limiting the provisions hereof, each of the New Lender
and the Existing Lender hereby acknowledges and confirms to the other
that in relation to the portion transferred and referred to in the
Schedule variations, amendments or alterations to any of the terms of
any of the Revolving Facility Agreement and the Financing Documents
arising in connection with any renegotiation or rescheduling of the
obligations hereunder shall apply to and be binding on the New Lender
alone.
8. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law.
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THE SCHEDULE
Existing Lender's Commitment Portion Transferred
Facility Commitment
Existing Lender's Participation
Amount Term Portion Transferred
[Existing Lender] [New Lender]
Address:
Telex:
By: By:
Date: Date:
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SIGNATORIES
The Borrowers
WPP GROUP PLC
By: PAUL RICHARDSON
WPP FINANCE CO. LIMITED
By: PAUL RICHARDSON
WPP GROUP U.S. FINANCE CORP.
By: PAUL RICHARDSON
The Guarantor
WPP GROUP PLC
By: PAUL RICHARDSON
The Obligors' Agent
WPP GROUP PLC
By: PAUL RICHARDSON
The Facility Agent
CITIBANK INTERNATIONAL PLC
By: PAUL GIBBS
The Lenders
BANK OF AMERICA, N.A.
By: ANDREW MOORFIELD
BARCLAYS BANK PLC
By: NAOMI LAWRENCE
BNP PARIBAS LONDON BRANCH
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By: MARK PEGRUM
CITIBANK, N.A.
By: SEAN HANAFIN
HSBC BANK PLC
By: NIGEL SHAW
SUMITOMO MITSUI BANKING CORPORATION (SMBC)
By: MARK PEGRUM
THE ROYAL BANK OF SCOTLAND PLC acting as agent for NATWEST PLC
By: JOHN KASPEREK
WESTDEUTSCHE LANDESBANK GIROZENTRALE, LONDON BRANCH
By: KATRINA WESTON
CHRIS GREAVES
FLEET NATIONAL BANK
By: MARK PEGRUM
CREDIT AGRICOLE INDOSUEZ
By: RUPERT DOUGALL
FIRST UNION NATIONAL BANK
By: KIRK VOGEL
WACHOVIA BANK N.A.
By: MARK PEGRUM
ABN AMRO BANK N.V.
By: JASON DOUGLAS
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