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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(d)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
STATEMENT ON
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)
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COACH USA, INC.
(NAME OF SUBJECT COMPANY)
STAGECOACH HOLDINGS PLC
AND
SCH HOLDINGS CORP.
(BIDDER)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(TITLE OF CLASS OF SECURITIES)
18975L106
(CUSIP NUMBER OF CLASS OF SECURITIES)
KEITH COCHRANE
CHARLOTTE HOUSE
20 CHARLOTTE STREET
PERTH PH15LL
SCOTLAND
TELEPHONE: +44-1738-442-111
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER)
COPIES TO:
MICHAEL O. WOLFSON, ESQ.
99 BISHOPSGATE, 21ST FLOOR
LONDON EC2M 3YH
TELEPHONE: +44-207-422-4000
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This Amendment No. 2 amends and supplements the Tender Offer Statement on
Schedule 14D-1 and Statement on Schedule 13D filed on June 18, 1999 (as
previously amended and supplemented, the "Schedule 14D-1/13D") relating to the
offer by SCH Holdings Corp., a Delaware corporation ("Purchaser"), to purchase
all of the outstanding shares of Common Stock, par value $0.01 per share (the
"Shares"), of Coach USA, Inc., a Delaware corporation (the "Company"), at a
purchase price of $42.00 per Share, net to the seller in cash, without interest
thereon, upon the terms and subject to the conditions set forth in the Offer to
Purchase dated June 18, 1999 (the "Offer to Purchase"), and in the related
Letter of Transmittal (which, together with the Offer to Purchase, constitute
the "Offer"). Purchaser is a subsidiary of Stagecoach Holdings plc, a public
limited company organized under the laws of Scotland ("Parent").
Unless otherwise indicated, all capitalized terms used but not defined
herein have the meanings assigned to them in the Schedule 14D-1/13D.
The Schedule 14D-1/13D is hereby amended and supplemented as follows:
On June 23, 1999, Parent entered into a loan agreement (the "Loan
Agreement") with the lenders listed therein, Credit Suisse First Boston, J.P.
Morgan Securities Ltd., The Royal Bank of Scotland plc and The Governor and
Company of The Bank of Scotland, as arrangers, and Morgan Guaranty Trust Company
of New York, as agent. The proceeds from the Loan Agreement will be used to
finance the acquisition of the Company by Purchaser. The terms of the Loan
Agreement are in all material respects consistent with the terms of the
Commitment Letter described in the Schedule 14D-1/13D. The Loan Agreement is
attached as Exhibit 11(b)(2) and is incorporated herein by reference.
On June 25, 1999, Parent mailed its Class 1 Shareholder Circular to its
shareholders notifying them of an extraordinary general meeting to be held on
July 19, 1999. At the extraordinary general meeting, Parent's shareholders will
be asked to approve among other matters the acquisition by Parent of the Company
pursuant to the Offer and the Merger. The Offer is conditioned on a majority of
the ordinary shares of Parent present and voting at an extraordinary general
meeting of shareholders having duly adopted resolutions approving the
acquisition by Parent of the Company.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(b)(2) Loan Agreement dated June 23, 1999 among Stagecoach Holdings plc,
the guarantors listed therein, the lenders listed therein, Credit Suisse First
Boston, J.P. Morgan Securities Ltd., The Royal Bank of Scotland plc and The
Governor and Company of The Bank of Scotland, as arrangers, and Morgan Guaranty
Trust Company of New York, as agent.
2
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify the
information set forth in this Statement is true, complete and correct.
STAGECOACH HOLDINGS PLC
By: /s/ KEITH COCHRANE
------------------------------------
Name: Keith Cochrane
Title: Group Finance Director
SCH HOLDINGS CORP.
By: /s/ KEITH COCHRANE
------------------------------------
Name: Keith Cochrane
Title: President
Date: June 25, 1999
3
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NO. DESCRIPTION NO.
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<S> <C> <C>
11(b)(2) Loan Agreement dated June 23, 1999 among Stagecoach Holdings
plc, the guarantors listed therein, the lenders listed
therein, Credit Suisse First Boston, J.P. Morgan Securities
Ltd., The Royal Bank of Scotland plc and The Governor and
Company of The Bank of Scotland, as arrangers, and Morgan
Guaranty Trust Company of New York, as agent................
</TABLE>
4
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EXHIBIT 11(b)(2)
DATE: 23 JUNE, 1999
STAGECOACH HOLDINGS PLC
as the initial Borrower
THE GUARANTORS LISTED IN SCHEDULE 2
as Guarantors
THE LENDERS LISTED IN SCHEDULE 1
CREDIT SUISSE FIRST BOSTON, J.P. MORGAN SECURITIES LTD.,
THE ROYAL BANK OF SCOTLAND PLC AND THE GOVERNOR AND
COMPANY OF THE BANK OF SCOTLAND
as Arrangers
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
as Agent
US$2,250,000,000 MULTICURRENCY TERM AND REVOLVING LOAN FACILITIES
SLAUGHTER AND MAY
35 BASINGHALL STREET
LONDON EC2V 5DB
RS/JYXW
CC991650.142
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CONTENTS
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CLAUSE PAGE
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PART I : INTERPRETATION 2
1. Interpretation and calculations 2
2. The Facilities 15
3. The Lenders and the Obligors 16
4. Fees and Expenses 17
5. Cancellation 18
PART III : DRAWING, INTEREST AND REPAYMENT 20
6. Advance of Funds 20
7. Currency Option 23
8. Interest 26
9. Repayment 28
10. Prepayment 28
PART IV : CHANGES OF CIRCUMSTANCES AND PAYMENTS 32
11. Changes of Circumstances 32
12. Payments 36
13. Late Payment 38
14. Sharing among Lenders 39
PART V : THE GUARANTEE 41
15. Guarantee 41
16. Guarantor's Indemnity 43
17. Representations 44
18. Delivery of Information 48
19. Financial Covenants 49
</TABLE>
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<TABLE>
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<S> <C>
20. General Covenants 53
21. Termination Events 56
PART VII : MISCELLANEOUS 60
22. The Agent and the Arrangers 60
23. Evidence, certificates and determinations 63
24. Notices 64
25. Assignment and Novation 64
26. Waivers and Amendments 65
27. Miscellaneous 66
28. Law 66
SCHEDULE 1 : LENDERS AND COMMITMENTS 67
SCHEDULE 2 : GUARANTORS 68
SCHEDULE 3 : CONDITIONS PRECEDENT 70
SCHEDULE 4 : FORM OF NOTICE FOR AN ADVANCE 72
SCHEDULE 5 : COSTS RATE 73
SCHEDULE 6 : FORM OF SUBSTITUTION CERTIFICATE 75
SCHEDULE 7 : MARGIN 77
SCHEDULE 7 : MARGIN 78
</TABLE>
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LOAN AGREEMENT
DATE: 23rd June, 1999
PARTIES
1. STAGECOACH HOLDINGS PLC, a company (registered number SC100764), of 20
Charlotte Street, Perth PH1 5LL, as the initial Borrower
2. THE GUARANTORS listed in Schedule 2, as Guarantors
3. THE LENDERS listed in Schedule 1, as Lenders
4. CREDIT SUISSE FIRST BOSTON, J.P. MORGAN SECURITIES LTD., THE ROYAL BANK
OF SCOTLAND PLC and THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND,
as Arrangers
5. MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Agent
BACKGROUND
At the request of the initial Borrower, the Lenders are willing to provide a
US$1,000,000,000 multicurrency term loan facility, a US$750,000,000
multicurrency term loan facility and a US$500,000,000 multicurrency revolving
loan facility to the Borrowers on the terms of this Agreement. The facilities
are to be guaranteed by the Guarantors and secured by a charge over certain
voting trust certificates.
The parties agree as follows:
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2
PART I : INTERPRETATION
1. INTERPRETATION AND CALCULATIONS
1.1 DEFINITIONS
In this Agreement:
"ACQUISITION" means the proposed acquisition by the Parent of all the
outstanding shares of common stock of Coach by means of the Offer and
the Merger.
"ADVANCE" means a Facility A Advance, a Facility B Advance or a
Facility C Advance, as the case may be.
"ADVANCE DATE" means the date, or proposed date, of an Advance.
"AFFILIATE" in relation to a person means a Subsidiary of that person,
a Holding Company of that person or another Subsidiary of that Holding
Company.
"AGENT" means Morgan Guaranty Trust Company of New York, in its
capacity as Agent for the Lenders, acting through its office at 60
Victoria Embankment, London EC4Y 0JP or any other office in the United
Kingdom which it may notify to the Borrowers' Agent and the Lenders. If
there is a change of Agent in accordance with Clause 22.12, "AGENT"
will instead mean the new Agent appointed under that Clause.
"ARRANGERS" means each of Credit Suisse First Boston, J.P. Morgan
Securities Ltd., The Royal Bank of Scotland plc and The Governor and
Company of the Bank of Scotland, in its capacity as an Arranger of the
Facilities.
"AUTHORISED PERSON" means a person authorised to sign documents on
behalf of an Obligor under this Agreement. This authority must be given
by a resolution of the directors of the Obligor and a certified copy
must be delivered to the Agent. A person will cease to be an
"AUTHORISED PERSON" upon notice by the Obligor to the Agent.
"AVAILABLE COMMITMENT" means Available Facility A Commitment or
Available Facility B Commitment or Available Facility C Commitment or,
as the context requires, any one of them.
"AVAILABLE FACILITY A COMMITMENT" means the amount of a Lender's
Facility A Commitment which is available for the Borrowers. On any day,
it is the Facility A Commitment of that Lender on that day less that
Lender's participation in all outstanding Facility A Advances on that
day. Participations in Facility A Advances in an Optional Currency will
be taken at their Original Dollar Amount.
"AVAILABLE FACILITY B COMMITMENT" means the amount of a Lender's
Facility B Commitment which is available for the Borrowers. On any day,
it is the Facility B Commitment of that Lender on that day less that
Lender's participation in all outstanding Facility B Advances on that
day. Participations in Facility B Advances in an Optional Currency will
be taken at their Original Dollar Amount.
"AVAILABLE FACILITY C COMMITMENT" means the amount of a Lender's
Facility C Commitment which is available for the Borrowers. On any day,
it is the Facility
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3
C Commitment of that Lender on that day less that Lender's
participation in all outstanding Facility C Advances on that day.
Participations in Facility C Advances in an Optional Currency will be
taken at their Original Dollar Amount.
"BOARD OF GOVERNORS" shall mean the Board of Governors of the Federal
Reserve System of the United States of America.
"BORROWED MONIES INDEBTEDNESS" of any person means:
(A) all indebtedness of that person for borrowed money,
(B) all indebtedness under any acceptance credit opened on behalf
of that person, or in relation to any letter of credit issued
for the account of that person,
(C) all indebtedness of that person under any debenture, note,
bond, bill of exchange or commercial paper or similar
instrument,
(D) all indebtedness of that person in respect of any interest
rate or currency swap or forward currency sale or purchase or
contract for differences or other form of interest or currency
hedging transaction or option as to any of these (including
without limit caps, collars and floors),
(E) all indebtedness of that person under any finance lease,
(F) all liabilities of that person (actual or contingent) under
any guarantee, bond, security, indemnity or other agreement in
respect of any Borrowed Monies Indebtedness of any other
person, and
(G) any other liability (actual or contingent) undertaken by that
person for the purpose of raising finance.
"BORROWER" means each of Stagecoach Holdings plc, the first party to
this Agreement and any new borrower incorporated into the Facilities by
Clause 3.6. In Clauses 15 and 16, however, "Borrower" does not include
any company as borrower in relation to the Guarantee by that company.
"BORROWERS' AGENT" means the Parent as agent for each Borrower in
accordance with Clause 3.5.
"BUSINESS DAY" means a day on which banks are open for international
inter-bank payments in both London and New York. Where "BUSINESS DAY"
is used in the context of a non-dollar payment, banks must also be open
for international inter-bank payments in the principal financial centre
of the currency of that payment. For the purpose of this Agreement, the
principal financial centre for sterling and euro is Paris.
"CHARGE" means the first ranking pledge and security agreement over SCH
Holdings' and the Parent's right, title and interest in, to and under
the voting certificates of the Voting Trusts and related property, to
be entered into by the Parent, SCH Holdings and the Agent in a form
acceptable to the Lenders.
"CIRCULAR" means the circular to be distributed by the Parent to its
shareholders notifying them of the proposed Acquisition and convening
an extraordinary general meeting at which resolutions will be proposed
which approve, amongst other things, the Acquisition, an amendment to
the present limit on the
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4
borrowing powers of the Parent and its subsidiary undertakings and an
increase in the authorised share capital of the Parent.
"COACH" means Coach USA, Inc., a Delaware corporation.
"COMMITMENTS" means the Facility A Commitments, the Facility B
Commitments and the Facility C Commitments.
"COSTS RATE" means a rate per annum determined by the Agent in respect
of each Lender and notified to the Borrowers' Agent. This rate will be
applied to an outstanding amount for a particular period. It will be
the aggregate of each of the following:
(A) the amount calculated in accordance with Schedule 5; and
(B) the rate determined by the Agent (based on information
supplied by that Lender) to cover:
(i) all costs, losses and liabilities suffered by that
Lender; and
(ii) all reductions in the return on capital of that
Lender which it would have been able to obtain but
for entering into or performing its obligations under
this Agreement,
in each case as a result of any minimum reserve requirements
imposed by the European Central Bank in relation to the Loan
or funding arrangements in relation to any Advance.
"DESIGNATION AGREEMENT" means an agreement substantially in the form
set out in Schedule 9.
"DOUBLE TAXATION TREATY" means any convention between the government of
the United Kingdom and any other government for the avoidance of double
taxation and the prevention of fiscal evasion with respect to taxes on
income and capital gains, and any convention between the government of
the United States and any other government for the avoidance of double
taxation and the prevention of fiscal evasion with respect to taxes on
income and capital gains.
"DOUBLE TAXATION TREATY BANK" means:
(i) where an Obligor is resident in the United Kingdom, a person
carrying on a bona fide banking business who is resident (as
such term is defined in the appropriate Double Taxation
Treaty) in a country with which the United Kingdom has an
appropriate Double Taxation Treaty giving residents of that
country full exemption from United Kingdom taxation on
interest and who does not carry on business in the United
Kingdom through a permanent establishment with which the
indebtedness under this Agreement in respect of which the
interest is paid is effectively connected; and/or
(ii) where an Obligor is resident in the United States, a person
carrying on a bona fide banking business who is resident (as
such term is defined in the appropriate Double Taxation
Treaty) in another country with which the United States has an
appropriate Double Taxation Treaty giving residents of that
country full exemption from United States taxation on
interest, and who does not carry on business in the United
States through a permanent establishment with which the
indebtedness under
<PAGE> 8
5
this Agreement in respect of which the interest is paid is
effectively connected,
provided, in all cases, that such person has made all filings and has
complied with all other applicable legislation in order to enable
payments of interest by Obligors to be made to him without any
deduction or withholding. For the avoidance of doubt, an Obligor may be
resident in both the United States and the United Kingdom.
"EMU LEGISLATION" means the legislative measures of the Council of the
European Union providing for the introduction of, changeover to, or
operation of, the euro.
"EQUIVALENT AMOUNT" means the amount in an Optional Currency equivalent
to a specified amount in dollars. The "EQUIVALENT AMOUNT" will be
calculated using the Exchange Rate applicable on the date on which the
amount in the Optional Currency is to be or was advanced.
"EURIBOR" means a rate per annum determined by the Agent and notified
to the Borrowers' Agent and the Lenders. This rate will be applied to
an outstanding amount in euros for a particular period. It will be
determined as follows:
(A) "EURIBOR" will be the Screen Rate for deposits in euro for
that period. This rate will be determined at or about 11.00
a.m. (Brussels time) on the Rate Fixing Date relating to the
first day of that period.
(B) If there is no Screen Rate for euro for the particular period,
"EURIBOR" will be based on the rate at which deposits in euro
are offered by the Reference Banks for that period to prime
banks in the European interbank market. Each Reference Bank
will notify the Agent of this rate when requested by the
Agent. The rate notified will be the rate as at 11.00 a.m.
(Brussels time) on the Rate Fixing Date relating to the first
day of that period. The Agent will calculate the arithmetic
means of these rates, rounded upwards to five decimal places.
This will be "EURIBOR" for the period. If fewer than three
Reference Banks provide the Agent with notifications for a
particular period, this method of determining "EURIBOR" will
not be used for that period and Clause 11.3 will apply
instead.
"EURO" or "E" means the single currency of the participating member
states in the Third Stage.
"EURO UNIT" means a unit of the euro as defined in the EMU legislation.
"EXCHANGE RATE" means a rate of exchange for converting an amount in
dollars into an amount in an Optional Currency or vice versa. The
"EXCHANGE RATE" applicable on any date will be the mean of the Agent's
spot buying and selling rates for the exchange of these currencies at
or around 11.00 a.m. on:
(A) except where paragraph (B) applies, the third Business Day
before that date; or
(B) for the purposes of computing the Original Dollar Amount of an
Advance in an Optional Currency other than euro, the fourth
Business Day before that date.
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6
"FACILITIES" means the loan facilities provided by this Agreement.
"FACILITY A" means the multicurrency term loan facility of up to
$1,000,000,000 described in Clause 2.1(A).
"FACILITY A ADVANCE" means an Advance made or outstanding, or to be
made, under Facility A.
"FACILITY A COMMITMENT" means the amount which each Lender has
committed to Facility A. Each Lender's initial "FACILITY A COMMITMENT"
is the amount set out next to its name in the column numbered (1) of
Schedule 1. This may be reduced or revised in accordance with this
Agreement. In addition the amount of a Lender's "FACILITY A COMMITMENT"
may be adjusted by assignments and assumptions in accordance with
Clause 25.2 and novations in accordance with Clause 25.3.
"FACILITY A COMMITMENT EXPIRY DATE" means 31st January 2000 or, if
earlier, the date Facility A is cancelled in full in accordance with
the terms of this Agreement.
"FACILITY A LOAN" means the principal amount borrowed and not repaid
under Facility A.
"FACILITY A REPAYMENT DATE" means 31st December 2000. If that date is
not a Business Day the "FACILITY A REPAYMENT DATE" will instead be the
next Business Day, unless that day is in another calendar month. Where
it is in another calendar month the "FACILITY A REPAYMENT DATE" will
instead be the preceding Business Day.
"FACILITY B" means the multicurrency term loan facility of up to
$750,000,000 described in Clause 2.1(B).
"FACILITY B ADVANCE" means an Advance made or outstanding, or to be
made, under Facility B.
"FACILITY B COMMITMENT" means the amount which each Lender has
committed to Facility B. Each Lender's initial "FACILITY B COMMITMENT"
is the amount set out next to its name in the column numbered (2) of
Schedule 1. This may be reduced or revised in accordance with this
Agreement. In addition the amount of a Lender's "FACILITY B COMMITMENT"
may be adjusted by assignments and assumptions in accordance with
Clause 25.2 and novations in accordance with Clause 25.3.
"FACILITY B COMMITMENT EXPIRY DATE" means 31st January 2000 or, if
earlier, the date Facility B is cancelled in full in accordance with
the terms of this Agreement.
"FACILITY B LOAN" means the principal amount borrowed and not repaid
under Facility B.
"FACILITY B REPAYMENT DATE" means each of the nine dates falling at
six-monthly intervals from the date of the first Facility B Advance and
the date of the fifth anniversary of the date of this Agreement. The
first Facility B Repayment Date will in any event be no later than 31st
March, 2000. If any of those dates is not a Business Day that "FACILITY
B REPAYMENT DATE" will instead be the next Business Day, unless that
day is in another calendar month. Where it is in another calendar month
that "FACILITY B REPAYMENT DATE" will instead be the preceding Business
Day.
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"FACILITY C" means the multicurrency revolving loan facility of up to
$500,000,000 described in Clause 2.1(C).
"FACILITY C ADVANCE" means an Advance made, or to be made, under
Facility C.
"FACILITY C COMMITMENT" means the amount which a Lender has committed
to Facility C. Each Lender's initial "FACILITY C COMMITMENT" is the
amount set out next to its name in the column numbered (3) of Schedule
1. This may be reduced or revised in accordance with this Agreement. In
addition the amount of a Lender's "FACILITY C COMMITMENT" may be
adjusted by assignments and assumptions in accordance with Clause 25.2
and novations in accordance with Clause 25.3.
"FACILITY C LOAN" means the principal amount borrowed and not repaid
under Facility C.
"FACILITY C TERMINATION DATE" means the fifth anniversary of the date
of this Agreement or, if earlier, the date on which Facility C is
cancelled in full in accordance with the terms of this Agreement.
"FINANCE DOCUMENT" means each of this Agreement, the Charge and the
letters referred to in Clause 4.1, 4.2 and 4.3.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means accounting principles
generally accepted and adopted in the United Kingdom.
"GROUP" means the Parent and all its Subsidiaries (including Coach and
its Subsidiaries after the Acquisition is completed).
"GUARANTEE" means the guarantee of amounts due under this Agreement
contained in Clause 15 and the indemnity in Clause 16.
"GUARANTOR" means each of the Guarantors listed in Schedule 2 to this
Agreement and, from the date on which the Parent gives notice to the
Agent under Clause 20.1(J), Coach. However, Coach will not be a
Guarantor if Clause 15.12(B) is implemented before that date.
"HOLDING COMPANY" has the meaning described in section 736 of the
Companies Act 1985.
"INFORMATION MEMORANDUM" means the information memorandum prepared for
the purpose of syndication of the Facilities and approved by the
Parent.
"INSTRUCTING GROUP" means Lenders whose Commitments exceed 66.66% in
aggregate of the Total Commitments. If, however, an Advance has been
made and not repaid, "INSTRUCTING GROUP" means Lenders whose
participations in the Loan exceed 66.66% in aggregate of the Loan. The
amount of participations in Advances in an Optional Currency will be
taken at their Original Dollar Amount.
"LENDER" means a Lender listed in Schedule 1 acting through the office
appearing under its name on the signature pages or any other office
which it may notify to the Agent. A lender which acquires an interest
in these Facilities by way of assignment or novation will become a
"LENDER" and will act through its office notified to the Agent. The
expression also includes a successor in title to a Lender. A Lender
will cease to be a "LENDER" if it novates its entire interest in the
Facilities.
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"LENDER GROUP COMPANY" means a Lender or any Holding Company of a
Lender.
"LIBOR" means a rate per annum determined by the Agent and notified to
the Borrowers' Agent and the Lenders. This rate will be applied to an
outstanding amount for a particular period. It will be determined as
follows:
(A) "LIBOR" will be the Screen Rate for deposits in the currency
of that amount for that period. This rate will be determined
at or about 11.00 a.m. (London time) on the Rate Fixing Date
relating to the first day of the period.
(B) If there is no Screen Rate for the necessary period for the
deposits in that currency "LIBOR" will be based on the rate at
which deposits in that currency are offered by the Reference
Banks for that period to prime banks in the London inter-bank
market. Each Reference Bank will notify the Agent of this rate
when requested by the Agent. The rate notified will be the
rate as at 11.00 a.m. (London time) on the Rate Fixing Date
relating to the first day of the period. The Agent will
calculate the arithmetic mean of these rates rounded upwards
to five decimal places. This will be "LIBOR" for the period.
If fewer than three Reference Banks provide the Agent with
notifications for a particular period, this method of
determining "LIBOR" will not be used for that period and
Clause 11.3 will apply.
"LOAN" means the principal amount borrowed and not repaid under the
Facilities.
"MARGIN" means the margin calculated in accordance with Schedule 7.
"MARGIN STOCK" shall have the meaning assigned to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
ability of any Obligor to perform or comply with its obligations under
the Finance Documents.
"MATERIAL SUBSIDIARY" means any Subsidiary of the Parent (other than
Porterbrook and any Subsidiary of Porterbrook) the consolidated total
assets or consolidated total revenues of which equal or exceed 10 per
cent. of the consolidated total assets or consolidated total revenues
of the Parent. These figures will all be calculated on the basis of the
consolidated accounts of the Parent (whether audited or unaudited) then
most recently delivered to the Agent under Clause 18.1 and the then
most recent audited financial statements of the relevant Subsidiary
(whether or not it was a Subsidiary at the time of their preparation).
If a Subsidiary prepares consolidated accounts those accounts will be
used. If there is any dispute as to whether a particular Subsidiary is
or is not a Material Subsidiary, a report by the auditors shall, in the
absence of manifest error, be conclusive and binding.
"MERGER" means the proposed merger, pursuant to the Merger Agreement,
of Coach and a wholly owned Subsidiary of the Parent.
"MERGER AGREEMENT" means the agreement and plan of merger dated as of
12th June 1999 between the Parent, SCH Holdings, SCH Acquisition and
Coach.
"NATIONAL CURRENCY UNIT" or "NCU" means a unit of the euro (other than
the euro unit) as defined in the EMU legislation.
<PAGE> 12
9
"NET DISPOSAL PROCEEDS" means, in respect of a disposal, the gross
proceeds of that disposal minus the amount confirmed by a director of
the relevant company before, on or within five Business Days after, the
effective date of the disposal to be the aggregate of:
(A) the reasonable costs of the disposal;
(B) the liabilities which are required to be discharged as a
result of the disposal (other than liabilities incurred in
contemplation of it);
(C) the provisions which the directors reasonably determine need
to be made for taxes arising as a result of the disposal; and
(D) where the asset which is the subject of the disposal is being
replaced, the cost of the replacement asset and the reasonable
costs incurred in connection with the acquisition.
If the "NET DISPOSAL PROCEEDS" would be a negative number it will be
taken to be zero. Where a disposal is made for non-cash consideration,
the gross proceeds of that disposal will be calculated as the market
value of the assets disposed of, as certified to the Agent by the
company making the disposal and, if the Agent requests, such company's
auditors. After the amounts referred to in paragraph (A) to (D) above
have been deducted from such gross proceeds so as to produce the "net
proceeds", the "NET DISPOSAL PROCEEDS" will be the amount by which the
net proceeds, when aggregated with other net proceeds under this
definition, exceed the then permissible amount for the purchase prices
of acquisitions under Clause 20.1(F)(ii).
"NET LOAN PROCEEDS" means, in respect of any raising of funds by way of
loan, the principal amount of the loan facility minus the amount
confirmed by a director of the relevant company before, on or within
five Business Days after, the relevant loan agreement is signed to be
the aggregate of:
(A) the reasonable costs of the loan; and
(B) the upfront fees payable in relation to the Loan.
"NET NEW ISSUE PROCEEDS" means, in respect of any issue of equity or
debt, the aggregate proceeds of such issue received by the relevant
members of the Group minus the amount confirmed by a director of the
relevant company before, on or within five Business Days after, the
closing date of the issue to be the aggregate of:
(A) the reasonable costs of the issue; and
(B) the upfront fees payable in relation to the issue.
"NEW EQUITY" means the issue of new shares in the Parent which raises
(before commissions and expenses) at least the sterling equivalent of
US$500,000,000.
"OBLIGORS" means the Borrowers and the Guarantors.
"OFFER" means the tender offer by SCH Holdings for all the outstanding
shares of common stock of Coach.
"OFFER DOCUMENTS" means the Press Release and any subsequent press
release by the Parent relating to the Acquisition, the "Offer
Documents" as defined in the Merger Agreement, all documentation filed
with the Securities and Exchange Commission in connection with the
Offer, the Proxy Statement
<PAGE> 13
10
relating to the Offer, the Merger Agreement, the Voting Trust Agreement
and the Circular.
"OPTIONAL CURRENCY" means any euro-currency:
(a) which is freely transferable,
(b) which is freely convertible into dollars,
(c) deposits of which are readily available and freely dealt in on
the London or, the case of sterling, the Paris inter-bank
market,
(d) which is not dollars.
"ORIGINAL DOLLAR AMOUNT" means the dollar equivalent of an amount in an
Optional Currency. The "ORIGINAL DOLLAR AMOUNT" will be calculated
using the Exchange Rate applicable on the date on which the amount in
the Optional Currency was advanced or last advanced.
"PARENT" means Stagecoach Holdings plc, a company (registered number
SC200764), of 20 Charlotte Street, Perth PH1 5LL, Scotland.
"PARTICIPATING MEMBER STATES" means those member states of the European
Union from time to time which adopt a single, shared currency in the
Third Stage, as defined and identified in EMU legislation.
"PIBOR" means a rate per annum determined by the Agent and notified to
the Borrowers' Agent and the Lenders. This rate will be applied to an
outstanding amount in sterling for a particular period. "PIBOR" will be
based on the rate at which deposits in sterling are offered by the
Reference Banks for that period to prime banks in the Paris inter-bank
market. Each Reference Bank will notify the Agent of this rate when
requested by the Agent. The rate notified will be the rate as at 11.00
a.m. (Paris time) on the Rate Fixing Date relating to the first day of
the period. The Agent will calculate the arithmetic mean of these rates
rounded upwards to five decimal places. This will be "PIBOR" for the
period. If fewer than three Reference Banks provide the Agent with
notifications for a particular period, this method of determining
"PIBOR" will not be used for that period and Clause 11.3 will apply.
"PORTERBROOK" means Stagecoach Porterbrook Limited, Company Number
3211363.
"POTENTIAL TERMINATION EVENT" means an event or state of affairs which
is mentioned in Clause 21.1 but which has not become a Termination
Event because a period has not elapsed, a notice has not been given or
a determination has not been made in each case as specified in Clause
21.1.
"PRESS RELEASE" means the first public announcement, dated 14th June
1999, by the Parent in connection with the Acquisition.
"QUALIFYING BANK" means:
(A) a bank for the purposes of section 349 of the Income and
Corporation Taxes Act 1988 which is beneficially entitled to
and within the charge to corporation tax as respects payments
of interest payable to it under this Agreement; or
(B) a Double Taxation Treaty Bank.
<PAGE> 14
11
"RATE FIXING DATE" means the day on which quotes are customarily taken:
(A) in the case of LIBOR, for deposits in the currency of the
amount concerned in the London inter-bank market;
(B) in the case of EURIBOR, for deposits in euro in the European
inter-bank market; or
(C) in the case of PIBOR, for deposits in sterling in the Paris
inter-bank market,
for delivery on the first day of the period to which that rate of
interest is to apply.
"REFERENCE BANKS" means, initially, the principal London offices of
Credit Suisse First Boston, Morgan Guaranty Trust Company of New York,
The Royal Bank of Scotland plc and The Governor and Company of the Bank
of Scotland. For the purposes of determining EURIBOR and PIBOR,
"REFERENCE BANKS" shall be the principal Paris offices of Credit Suisse
First Boston, J.P. Morgan Securities Ltd., The Royal Bank of Scotland
plc and a fourth bank to be appointed by the Agent following
consultation with the Borrowers' Agent and the Lenders. The Agent,
following consultation with the Borrowers' Agent and the Lenders, may
replace a "REFERENCE BANK" with another Lender or an Affiliate of a
Lender. This replacement will take effect when notice is delivered to
the Borrower and the Lenders.
"REGULATION U" shall mean Regulation U of the Board of Governors as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"REGULATION X" shall mean Regulation X of the Board of Governors as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"SCH ACQUISITION" means SCH Acquisition Corp., a Delaware corporation
and wholly-owned subsidiary of SCH Holdings.
"SCH HOLDINGS" means SCH Holdings Corp., a Delaware corporation and
wholly-owned Subsidiary of the Parent.
"SCREEN RATE" means the rate shown on:
(A) in the case of LIBOR, Telerate page 3750 or, as the case may
be, 3740; or
(B) in the case of EURIBOR, Telerate page 248.
The Agent may nominate a reasonable alternative page or source of
screen rate if these pages cease to display averages of rates for
inter-bank deposits offered by leading banks in London (in the case of
LIBOR) or Europe (in the case of EURIBOR).
"SECURITY" means security of any type created or existing over any
asset. "SECURITY" will also include retention of title arrangements,
rights to retain possession and any arrangement providing a creditor
with a prior right to an asset, or its proceeds of sale, over other
creditors in a liquidation.
"SPECIAL MAJORITY BANKS" means Lenders whose Commitments exceed 75% in
aggregate of the Total Commitments. If, however, an Advance has been
made and not repaid, "SPECIAL MAJORITY BANKS" means Lenders whose
participations
<PAGE> 15
12
in the Loan exceed 75% in aggregate of the Loan. The amount of
participations in Advances in an Optional Currency will be taken at
their Original Dollar Amount.
"STB" means the Surface Transportation Board.
"STB CONSENT" means the issuance by the STB of a decision, which
decision shall have become effective and shall not have been stayed or
enjoined, that (A) constitutes a final agency action approving,
exempting or otherwise authorising the acquisition of control over
Coach's motor passenger carrier subsidiaries by the Parent and its
affiliates, without the imposition of conditions that the Parent, by
written notice to the Trustees, has deemed to be unacceptable, and (B)
does not require any change in the consideration paid or to be paid
pursuant to the Merger Agreement or other material provisions thereof,
unless the Parent, by written notice to the Trustees, has determined
any such change to be acceptable to the Parent.
"SUBSIDIARY" means a subsidiary as described in section 736, and a
subsidiary undertaking as described in section 258, of the Companies
Act 1985.
"SUBSTITUTION CERTIFICATE" means a document substantially in the form
set out in Schedule 6.
"TERM" means the period for which a Facility C Advance is to be
outstanding. If the last day of this period is not a Business Day that
"TERM" will instead end on the next Business Day, unless that day is in
another calendar month. Where it is in another calendar month the last
day of that "TERM" will be the previous Business Day.
"TERMINATION EVENT" has the meaning described in Clause 21.1.
"THIRD STAGE" means the third stage of European economic and monetary
union pursuant to the Treaty establishing the European Community (as
amended from time to time).
"TOTAL COMMITMENTS" means the aggregate of the Commitments of all the
Lenders.
"TRUSTEES" means each of the Trustees of the Voting Trusts under the
Voting Trust Agreement in their capacity as such.
"VOTING TRUSTS" means the voting trusts constituted by the Voting Trust
Agreement.
"VOTING TRUST AGREEMENT" means each of the voting trust agreements
dated on or about the date of this Agreement between the Parent, SCH
Holdings and the Trustees.
"YEAR 2000 PROBLEM" means the risk that computer applications used by
any person (or its suppliers or vendors) may be unable to recognise and
perform properly date-sensitive functions involving certain dates prior
to and any date after 31st December 1999.
1.2 INTERPRETATION OF CERTAIN REFERENCES
Unless a contrary intention is indicated:
(A) References to Clauses and Schedules are to Clauses of, and the
Schedules to, this Agreement. References to paragraphs are to
<PAGE> 16
13
paragraphs in the same sub-Clause. References to
sub-paragraphs are to sub-paragraphs in the same paragraph.
(B) References to other documents include those documents as they
may be amended.
(C) References to times are to London time.
(D) References to assets are to present and future assets and
include revenues.
(E) References to "US$", "$" and "dollars" are to U.S. dollars.
(F) References to fees or expenses include any value added tax on
those fees or expenses.
1.3 HEADINGS
All headings and titles are inserted for convenience only. They are to
be ignored in the interpretation of this Agreement.
1.4 CALCULATIONS
Interest and commitment fee will be calculated using the following
formula:
I = D x R x A
---
Y
Where:
I = interest or commitment fee accrued
D = the number of days in the period for which the interest or
commitment fee is to be calculated, including the first day but
excluding the last day
R = the rate of interest or commitment fee, expressed as a fraction
A = the amount on which interest or commitment fee is being calculated
Y = 360. For some Optional Currencies the market practice in the London
inter-bank market is to calculate interest in that currency on a
365-day year basis. In the case of an amount in these currencies, Y
will instead equal 365. In the case of an amount in sterling, Y will
also equal 365.
Interest and commitment fee will be treated as accruing uniformly over
each period on a daily basis. In some cases "R" or "A" may change
during a period for which interest or commitment fee is to be
calculated. In this case the interest or commitment fee will be
calculated for successive periods and then aggregated. These successive
periods will be the periods during which "R" and "A" were constant.
1.5 REIMBURSEMENTS
If a party wishes to claim reimbursement of any amount to which it is
entitled it will deliver a demand to the reimbursing party. This will
set out the losses, expenses or other amounts to be reimbursed. It must
also specify the currency of reimbursement. Save in the case of
manifest error, the reimbursing party agrees to pay those amounts to
the party entitled to them no later than two Business Days after the
delivery of the certificate to the reimbursing party.
<PAGE> 17
14
Where there is an outstanding Termination Event which has not been
waived, payment will instead be due on delivery of this certificate.
1.6 IMPACT OF THE INTRODUCTION AND OPERATION OF THE EURO
Market practice relating to the inter-bank deposit market, the method
and timing of rate fixing and the calculation of interest may change
during the Third Stage. As a result, it may differ from the method of
rate fixing and the calculation of interest prescribed under the terms
of this Agreement and may also change in relation to drawings in any
currency substituted by the euro after the date of this Agreement. In
this event, the Agent may notify the Borrowers' Agent and the Lenders
of the amendments to this Agreement which are required or reasonably
desirable to reflect and conform to these changes. The amendments may
provide for the use of London or Paris inter-bank market offered rates
or inter-bank market offered rates from a wider European market (or, in
either case, screen rates reflecting these offered rates). They may
also change, among other things, the rate fixing time or date, the
definition of "Business Day" and "Rate Fixing Date" and any elements of
the formula set out in Clause 1.4. The amendments set out in the
Agent's notice will take effect on the later of the date specified in
the notice, the date not less than 10 Business Days after the date of
that notice and (in the case of such changes being made due to a
country becoming a participating member state after the date of this
Agreement) the date on which that participation commences. The
amendments will not apply to interest which is computed by reference to
any period starting before the date the amendments take effect. This
clause may, in appropriate circumstances, be invoked more than once.
<PAGE> 18
15
PART II : THE FACILITIES
2. THE FACILITIES
2.1 AMOUNT AND NATURE
The Facilities comprise:
(A) Facility A: An eighteen month US$1,000,000,000 multi-currency
term loan facility under which Facility A Advances may be made
by the Lenders to the Borrowers.
(B) Facility B: A five year US$750,000,000 multi-currency term
loan facility under which Facility B Advances may be made by
the Lenders to the Borrowers.
(C) Facility C: A five-year $500,000,000 multi-currency revolving
loan facility under which Facility C Advances may be made by
the Lenders to the Borrowers.
2.2 PURPOSE
The Borrowers agree to use the proceeds of the Facilities as follows:
(A) Facility A: to finance the Acquisition (including all costs
and expenses of the Acquisition) and to refinance existing
debt of the Group and Coach and its Subsidiaries.
(B) Facility B: to finance the Acquisition (including all costs
and expenses of the Acquisition) and to refinance existing
debt of the Group and Coach and its Subsidiaries.
(C) Facility C: to finance the Acquisition (including all costs
and expenses of the Acquisition), to refinance existing debt
of the Group and Coach and its Subsidiaries and for general
corporate purposes, including acquisitions.
2.3 AVAILABILITY
(A) Facility A: The Borrowers may borrow under Facility A after
the Agent has received all the items listed in Schedule 3 in a
form satisfactory to it.
(B) Facility B: The Borrowers may borrow under Facility B after
the Agent has received all the items listed in Schedule 3 in a
form satisfactory to it.
(C) Facility C: The Borrowers may borrow up to US$250,000,000
under Facility C after the Agent has received all of the items
listed in Schedule 3 in a form satisfactory to it. The
Borrowers may borrow a further amount up to US$250,000,000
under Facility C after the Parent has issued the New Equity.
(D) None of the Facilities will be available to the Borrowers
unless sufficient common stock of Coach has been tendered to
the Parent, SCH Holdings or such other wholly owned Subsidiary
of the Parent to enable it to effect the Merger, without the
requirement of any action by any other Coach security holder.
<PAGE> 19
16
2.4 EXPIRY OF AVAILABILITY
(A) The Borrowers may not borrow under Facility A after the
Facility A Commitment Expiry Date. Any part of Facility A not
drawn by the Facility A Commitment Expiry Date will be
automatically cancelled.
(B) The Borrowers may not borrow under Facility B after the
Facility B Commitment Expiry Date. Any part of Facility B not
drawn by the Facility B Commitment Expiry Date will be
automatically cancelled.
(C) The Borrowers may not borrow under Facility C after the date
falling one month before the Facility C Termination Date.
2.5 SECURITY
All amounts owing under the Finance Documents will be secured by the
Charge. The Charge will be released when the common stock of Coach is
released to the Parent or a wholly owned Subsidiary of the Parent from
the Voting Trust or the Voting Trusts are dissolved. If the Borrowers'
Agent asks it to do this, the Agent will execute documentation to
evidence this release.
3. THE LENDERS AND THE OBLIGORS
3.1 RIGHTS AND OBLIGATIONS
The rights and obligations of each Lender under the Finance Documents
are separate and independent from the rights and obligations of each
other Lender. A Lender may take proceedings against any Obligor on its
own without joining any other Lender to those proceedings.
3.2 FAILURE TO PERFORM
If a Lender fails to perform its obligations, the Borrowers will have
rights solely against that Lender. The obligations of the Obligors to
the Agent, the Arrangers and the other Lenders will not be affected by
this failure.
3.3 PARTICIPATIONS
The participation of a Lender in an Advance will be calculated using
the following formula:
C
P = --- x A
F
where:
P = the participation of that Lender in the Advance
C = the Available Commitment of that Lender on the Advance Date
F = the aggregate Available Commitments of all the Lenders on the
Advance Date
A = the amount of the Advance
References to the Available Commitments are to:
(i) Available Facility A Commitments in the case of a Facility A
Advance.
<PAGE> 20
17
(ii) Available Facility B Commitments in the case of a Facility B
Advance.
(iii) Available Facility C Commitments in the case of a Facility C
Advance.
For this purpose any amount of the Facility C Loan due to be repaid on
the Advance Date will be treated as having been repaid. The Agent may
round participations upwards or downwards to the nearest unit of
currency.
3.4 BORROWERS' OBLIGATIONS
The obligations of each Borrower under this Agreement are separate and
independent from the obligations of each other Borrower. This Clause
does not affect the obligations of any Borrower as Guarantor under the
Guarantee.
3.5 BORROWERS' AGENT
Each Borrower irrevocably authorises and instructs the Borrowers' Agent
on its behalf as agent to give and receive all notices and to take all
other action (including the giving of consents, the signing of
certificates, the signing of any Designation Agreement which requires
to be executed for the purpose of this Agreement and the acceptance of
any proposal) as may be necessary or desirable in connection with the
Facilities or this Agreement. Each Borrower confirms that it will be
bound by any such Designation Agreement and by any other action taken
by the Borrowers' Agent under or in connection with the Facilities or
this Agreement. Each Guarantor irrevocably authorises and instructs the
Borrowers' Agent on its behalf to sign and deliver any Designation
Agreement which requires to be executed for the purpose of this
Agreement. Each Guarantor confirms that it will be bound by any such
Designation Agreement.
3.6 ADDITIONAL BORROWERS
The Parent may request the incorporation of additional borrowers into
this Agreement. It will make this request by notice to the Agent. This
notice must identify the proposed additional borrower, state its
country of incorporation or constitution and confirm that it is a
Subsidiary of the Parent. The notice must be accompanied by a
Designation Agreement. The following procedure applies when the Agent
receives a notice under this sub-clause.
(A) Each Lender agrees to notify the Agent of its agreement or
disagreement with the incorporation of the proposed additional
borrower and the proposed Designation Agreement.
(B) If all the Lenders agree to the incorporation of the proposed
additional borrower and to the proposed Designation Agreement
the Agent may sign and deliver the Designation Agreement on
behalf of all the Lenders.
4. FEES AND EXPENSES
4.1 PARTICIPATION FEE
The Parent agrees to pay a participation fee to the Lenders. The amount
of this fee and the timing of payment are described in a letter from
the Arrangers to the Parent dated 11th June, 1999. This fee will be
shared amongst the Lenders in accordance with the agreement between the
Arrangers and each Lender.
<PAGE> 21
18
4.2 ARRANGEMENT FEE
The Parent agrees to pay an arrangement fee to the Arrangers. The
amount of this fee and the timing of payment are described in a letter
from the Arrangers to the Parent dated 11th June, 1999.
4.3 AGENCY FEE
The Parent agrees to pay an agency fee to the Agent. The amount of this
fee and the timing of payment are described in a letter from the Agent
to the Parent dated the same date as this Agreement.
4.4 REIMBURSEMENT OF INITIAL EXPENSES
The Arrangers and the Agent have incurred and will incur expenses in
connection with the arrangement of the Facility. The Parent agrees to
reimburse each of the Arrangers and the Agent for the amount of these
expenses which are reasonably incurred. They include the legal fees
incurred in the negotiation, preparation and signature of the Finance
Documents.
4.5 COMMITMENT FEE
A commitment fee will accrue on the undrawn and uncancelled amount of
the Commitment of each Lender. This fee will accrue on a daily basis
from the date of this Agreement until the latest of the Facility C
Termination Date, the Facility A Commitment Expiry Date and the
Facility B Commitment Expiry Date (the "Final Date"). The rate of the
fee on any day will be the lower of 50% of the Margin on that day and
0.40% per annum. The Parent agrees to pay the fee to the Agent for each
Lender in arrear at quarterly intervals and on the Final Date.
4.6 DOCUMENTARY TAXES
This sub-Clause applies if any registration fee, stamp duty or other
documentary tax is required to be paid on or in connection with a
Finance Document, any document referred to in or contemplated by a
Finance Document or any judgment obtained in connection with a Finance
Document. It also applies if a fee, duty or tax is payable in order for
any of these documents to be valid, binding and enforceable or for any
of them to be admitted as evidence in Court. In these circumstances the
Parent agrees to pay the fee, duty or tax together with any interest or
penalty for late payment where the late payment is not caused by the
Agent or any Arranger or Lender. Alternatively, the Agent or a Lender
may make the payment. If it does so, the Parent agrees to reimburse the
Agent or that Lender for the amount paid and the losses and expenses
incurred as a result of the payment.
4.7 PROTECTION OF RIGHTS
An Arranger, the Agent or a Lender may incur expenses in protecting,
preserving or enforcing its rights under a Finance Document. The Parent
agrees to reimburse that Arranger, or as the case may be, the Agent or
that Lender for the amount of these expenses.
5. CANCELLATION
5.1 VOLUNTARY CANCELLATION
The Borrowers' Agent may cancel the whole, or part only, of the Total
Commitments by giving notice to the Agent. This notice will take effect
10 days
<PAGE> 22
19
after it is received by the Agent unless a later date is specified in
the notice. In that case the notice will take effect on the specified
date.
5.2 EFFECT OF CANCELLATION
The Borrowers may not borrow any part of the Total Commitments which
has been cancelled or which is the subject of a notice of voluntary
cancellation. The Commitments of the Lenders will be reduced by an
aggregate amount equal to the reduction of the Total Commitments. Each
Lender's Commitments will be reduced in the same proportion.
<PAGE> 23
20
PART III: DRAWING, INTEREST AND REPAYMENT
6. ADVANCE OF FUNDS
6.1 NOTICE TO THE AGENT
Whenever a Borrower wishes to borrow under the Facilities, the
Borrowers' Agent will deliver a notice to the Agent. This notice must
be substantially in the form set out in Schedule 4. The notice must
specify the following:
(A) The Facility under which the borrowing is to be made.
(B) The amount to be borrowed.
(C) The Borrower which is to make the borrowing.
(D) The length of the first Interest Period (in the case of a
Facility A Advance or a Facility B Advance) or the length of
the Term (in the case of a Facility C Advance).
(E) The currency of the borrowing.
(F) The date of the borrowing. In the case of an Advance
denominated in dollars the date must be no sooner than three
Business Days after the date the Agent receives the notice and
in the case of an Advance denominated in any Optional
Currency, the date must be no sooner than five Business Days
after the date the Agent receives the notice. For this purpose
if the Agent receives the notice on a day which is not a
Business Day or after 10.00 a.m. on a Business Day, it will be
treated as having received the notice on the following
Business Day.
6.2 LIMITATIONS ON ADVANCES
(A) FACILITY A ADVANCES:
The following limitations apply to Facility A Advances:
(i) No Facility A Advance may exceed the uncancelled and
undrawn amount of Facility A. This limitation will be
applied as at the Advance Date. For this purpose, any
part of Facility A which is subject to a notice of
voluntary cancellation will be treated as cancelled
and any Advance in an Optional Currency will be taken
at its Original Dollar Amount. In addition, if any
other requests are outstanding for Facility A
Advances to be made on or before the proposed date of
the newly-requested Facility A Advance, all Facility
A Advances to which those requests relate will be
deemed to be outstanding.
(ii) A Facility A Advance in dollars must be a minimum of
$50,000,000 and an integral multiple of $5,000,000 or
be the uncancelled and undrawn amount of Facility A.
A Facility A Advance in an Optional Currency must be
either:
(a) the equivalent of $50,000,000 (converted at
the Exchange Rate) or a greater amount and,
in any case, a round amount in that currency
agreed with the Agent; or
<PAGE> 24
21
(b) the uncancelled and undrawn amount of Facility A.
(iii) The Advance Date must be a Business Day before the Facility A
Commitment Expiry Date and at least three Business Days (or,
if the first Facility A Advance is to be denominated in an
Optional Currency, five Business Days) after Facility A has
become available under Clause 2.3.
(iv) The first Interest Period of the Facility A Advance must
comply with Clause 8.
(v) Clause 6.2(D) applies.
(vi) If the Facility A Advance is not to be in dollars, Clause 7
applies.
(B) FACILITY B ADVANCES:
The following limitations apply to Facility B Advances:
(i) No Facility B Advance may exceed the uncancelled and undrawn
amount of Facility B. This limitation will be applied as at
the Advance Date. For this purpose, any part of Facility B
which is subject to a notice of voluntary cancellation will be
treated as cancelled and any Advance in an Optional Currency
will be taken at its Original Dollar Amount. In addition, if
any other requests are outstanding for Facility B Advances to
be made on or before the proposed date of the newly-requested
Facility B Advance, all Facility B Advances to which those
requests relate will be deemed to be outstanding.
(ii) A Facility B Advance in dollars must be a minimum of
$50,000,000 and an integral multiple of $5,000,000 or be the
uncancelled and undrawn amount of Facility B. A Facility B
Advance in an Optional Currency must be either:
(a) the equivalent of $50,000,000 (converted at the
Exchange Rate) or a greater amount and, in any case,
a round amount in that currency agreed with the
Agent; or
(b) the uncancelled and undrawn amount of Facility B.
(iii) The Advance Date must be a Business Day before the Facility B
Commitment Expiry Date and at least three Business Days (or,
if the first Facility B Advance is to be denominated in an
Optional Currency, five Business Days) after Facility B has
become available under Clause 2.3.
(iv) The first Interest Period of the Facility B Advance must
comply with Clause 8.
(v) Clause 6.2(D) applies.
(vi) If the Facility B Advance is not to be dollars Clause 7
applies.
(C) FACILITY C ADVANCES:
The following limitations apply to Facility C Advances:
<PAGE> 25
22
(i) No Facility C Advance may exceed the uncancelled and undrawn
amount of Facility C. This limitation will be applied as at
the Advance Date. For this purpose, any part of Facility C
which is subject to a notice of voluntary cancellation will be
treated as cancelled and any Advance in an Optional Currency
will be taken at its Original Dollar Amount. In addition, if
any other requests are outstanding for Facility C Advances to
be made on or before the proposed date of the newly-requested
Facility C Advance, all Facility C Advances to which those
requests relate will be deemed to be outstanding. The amount
of any Facility C Advance due to be repaid on the Advance Date
will be treated as having been repaid.
(ii) A Facility C Advance in dollars must be a minimum of
$50,000,000 and an integral multiple of $5,000,000 or be the
uncancelled and undrawn amount of Facility C. A Facility C
Advance in an Optional Currency must be either:
(a) the equivalent of $50,000,000 (converted at the
Exchange Rate) or a greater amount and, in any case,
a round amount in that currency agreed with the
Agent; or
(b) the uncancelled and undrawn amount of Facility C.
(iii) The Advance Date must be a Business Day before the date
falling one month before the Facility C Termination Date and
at least three Business Days (or, if the first Facility C
Advance is to be denominated in an Optional Currency, five
Business Days) after Facility C has become available under
Clause 2.3.
(iv) The Term of the Facility C Advance must comply with Clause 8.
(v) Clause 6.2(D) applies.
(vi) If the Facility C Advance is not to be in dollars, Clause 7
applies.
(D) NUMBER OF ADVANCES: The maximum number of Advances that may be
outstanding at any one time in respect of a Facility is:
(i) five Facility A Advances;
(ii) five Facility B Advances; and
(iii) ten Facility C Advances.
For this purpose, as at any Advance Date:
(a) any Advance due to be repaid on any Advance Date will be
treated as having been repaid on that Advance Date;
(b) any other Advance due to be made on the Advance Date will be
treated as having been made; and
(c) any additional Advance resulting from the division of an
Advance in accordance with Clause 8.4(B) will not be taken
into account.
(E) EURO UNITS: Each Advance in euro will be recorded as denominated in
euro units. This does not affect the denomination of any payment
relating to that Advance (subject to Clause 12.3).
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6.3 NOTICE TO THE LENDERS
The Agent agrees to provide details of the notice of borrowing to each
Lender by no later than 10.00 a.m. on the second Business Day before
the relevant Advance Date. These details will also include the amount
of the Lender's participation in the relevant Advance.
6.4 CONDITIONS TO BORROWING
The Lenders will be obliged to make an Advance to a Borrower only if:
(A) the relevant Facility is available in accordance with Clause
2;
(B) a properly completed and signed notice of borrowing has been
received by the Agent;
(C) the representations deemed repeated in Clause 17.2 (including,
but only in the case of a Facility C Advance which is to be
used to fund an acquisition of a company or business, that in
Clause 17.1(S)) are true on the Advance Date; and
(D) there is no outstanding Termination Event or Potential
Termination Event on the Advance Date which has not been
waived.
6.5 OBLIGATION TO ADVANCE FUNDS
If the requirements of this Clause are satisfied each Lender agrees to
advance its participation in the relevant Advance to the relevant
Borrower. The Advance will be made on the date specified in the
relevant notice of borrowing.
6.6 CONSEQUENCES OF AN ADVANCE NOT BEING MADE
If a notice of borrowing is delivered but no Advance is made the
Lenders may incur losses and expenses as a result. The losses and
expenses may include those incurred in liquidating or otherwise
utilising amounts borrowed by the Lenders to fund the Advance. They may
also include losses and expenses incurred in terminating commitments
relating to the funding or incurred in hedging open positions resulting
from the Advance not being made. The Parent agrees to reimburse each
Lender for the amount of these losses and expenses, excluding loss of
margin. This sub-Clause does not apply if the Advance is not made by
reason of a default of a Lender.
7. CURRENCY OPTION
7.1 REQUEST FOR OPTIONAL CURRENCY
This Clause applies if a notice of borrowing specifies a currency other
than dollars. In this case the Advance requested will be made in the
currency specified if all the following are true:
(A) The currency specified is an Optional Currency.
(B) The Advance is required to be made under the terms of this
Agreement.
7.2 REQUEST FOR RE-ADVANCE IN AN OPTIONAL CURRENCY
This Clause also applies if the Borrowers' Agent, on behalf of any
Borrower, delivers or is deemed to deliver a request to the Agent that
the whole or part of an existing Facility A Advance or Facility B
Advance:
<PAGE> 27
24
(A) is re-advanced on the first day of the next Interest Period
relating to that Advance in an Optional Currency (being
currently denominated in dollars) or in a different Optional
Currency from that in which it is currently denominated; or
(B) is maintained in the same Optional Currency as that in which
it is currently denominated on the first day of the next
Interest Period relating to that Advance.
A request under this sub-clause must be set out in a notice of
re-advance delivered to the Agent by 10.00 a.m. on the fifth Business
Day before the first day of the next Interest Period relating to the
Advance in question. For this purpose, if the Agent receives the notice
on a day which is not a Business Day or after 10.00 a.m. on a Business
Day, it will be treated as having received the notice on the following
Business Day. If the Agent does not receive a notice of re-advance by
10.00 a.m. on the fifth Business Day before the first day of the next
Interest Period relating to an Advance, the Borrowers' Agent will be
deemed to have delivered to the Agent a notice of re-advance specifying
that that Advance is to be maintained in the same currency as in the
current Interest Period. Any reference in this Clause to a notice of
re-advance includes any notice which has been deemed delivered under
this sub-clause. The Agent agrees to provide details of each notice of
re-advance received or deemed received by the Agent to each Lender by
no later than 10.00 a.m. on the second Business Day before the date of
the relevant re-advance. These details will also include the amount of
the Lender's participation in each re-advance. The Borrowers may make
no more than two requests in any twelve month period pursuant to this
Clause 7.2 in respect of Facility B Advances.
7.3 NON-AVAILABILITY OF OPTIONAL CURRENCY
A Lender (an "AFFECTED LENDER") may notify the Agent that:
(i) it is unable to make its participation in an Advance
requested in a notice of borrowing available in the
specified Optional Currency for the requested
Interest Period or Term; or
(ii) it is unable to make its participation in a
re-advance requested in a notice of re-advance
available in the specified Optional Currency for the
requested Interest Period.
Each of the following applies if this notice is received by the Agent
by 5.00 p.m. on the third Business Day before the day the Advance is
due to be made:
(A) The Affected Lender will not be obliged to make its
participation in the Advance or re-advance available in the
specified Optional Currency. Instead the Affected Lender
agrees to make the participation available in dollars.
(B) The amount the Affected Lender is required to advance will be
the Original Dollar Amount of the participation it would
otherwise have been required to make available in the Optional
Currency.
(C) The Agent agrees to notify the Borrowers' Agent and the other
Lenders of the receipt of the notice from the Affected Lender.
This notification will be made by 10.00 a.m. on the second
Business Day before the day the Advance or re-advance is due
to be made.
<PAGE> 28
25
7.4 IMPRACTICALITY OF DRAWING IN OPTIONAL CURRENCY
An Advance which was to have been made in an Optional Currency
requested in a notice of borrowing, or a re-advance which was to have
been made in an Optional Currency requested in a notice of re-advance,
will not be required to be made if all the following are true:
(A) An event described in Clause 7.5 occurs.
(B) The Agent notifies the Borrowers' Agent of this event and
states that, as a result, the Advance or re-advance (as
applicable) cannot be made in the Optional Currency.
(C) The notice from the Agent is received by the Borrowers' Agent
by 9.00 a.m. on the date the Advance or re-advance is due to
be made.
The Agent agrees to deliver a notice under this sub-clause if it is
instructed by an Instructing Group to do so. For the purposes of this
sub-clause an Advance or re-advance will be treated as being made in an
Optional Currency even if part of it was due to be made in dollars by
virtue of Clause 7.2.
7.5 EVENTS MAKING DRAWING IN OPTIONAL CURRENCY IMPRACTICAL
An event referred to in Clause 7.4 occurs if both:
(A) there are changes in national or international financial,
political or economic conditions or in currency exchange rates
or exchange controls; and
(B) these changes would, in the opinion of the Agent, make it
impracticable for the Advance or re-advance (as applicable) to
be denominated in the Optional Currency in question.
7.6 REPAYMENT AND RE-ADVANCES
This sub-clause applies if the whole or part of an existing Advance is
the subject of a notice of re-advance described in clause 7.2. If this
sub-clause applies, the Borrower to which the Advance relates will
repay the whole of the existing Advance in the currency in which it has
been denominated during the current Interest Period. Provided that this
repayment is received, the Lenders will (subject to the other
provisions of this Agreement) advance the Equivalent Amount of the
Original Dollar Amount of each part of the existing Advance which is
being maintained or re-advanced. This sub-clause will not apply if:
(A) the whole of an existing Advance is to be maintained in the
same Optional Currency; and
(B) the mean of the Agent's spot buying and selling rates for the
exchange of dollars and that Optional Currency at or about 10
a.m. on the third Business Day in the case of an Advance
denominated in dollars and on the fifth Business Day in the
case of an Advance denominated in an Optional Currency before
the first day of the next Interest Period has changed by less
than five per cent. from the rate calculated by the Agent when
that Advance was last advanced or re-advanced. The Agent will
notify the Borrowers' Agent if this is the case by no later
than noon on the day on which it makes the exchange rate
calculation.
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26
7.7 USE OF ADVANCES
If the Agent and a Borrower agree, the Agent may apply any sum advanced
or re-advanced by the Lenders to that Borrower under Clause 7.6 to
purchase, on that Borrower's account, some or all of the amount due to
be repaid by that Borrower to the Lenders under Clause 7.6. The amount
purchased will then be applied in or towards that repayment. The Agent
will not be liable to any party for the terms on which a purchase is
made under this sub-clause.
7.8 INTERIM PERIODS
(A) If:
(i) the whole or any part of an Advance is to be
denominated from the first day of an Interest Period
(the "SECOND INTEREST PERIOD") in a different
currency from the currency in which it has been
denominated during the preceding Interest Period (the
"FIRST INTEREST PERIOD"); and
(ii) the last day of the First Interest Period is not a
day which is a Business Day for payments in each of
the two currencies concerned,
then that Advance will continue to be denominated in the
currency in which it has been denominated during the First
Interest Period (the "FORMER CURRENCY") for a further five
Business Days from the last day of the First Interest Period
or such later day which is a Business Day for payments in both
those currencies (that period being the "INTERIM PERIOD").
The Second Interest Period will start on that day.
(B) Each Interim Period will be treated as an Interest Period and
the rate of interest in respect of it will be calculated in
accordance with Clause 8.5.
(C) Interest under this sub-clause will:
(i) accrue from (and including) the first day of the
Interim Period to (but excluding) the last day of
that Interim Period;
(ii) be due and payable by the Borrower to which the
Advance relates on the last day of each Interim
Period; and
(iii) be paid in the former currency.
8. INTEREST
8.1 INTEREST PERIODS
(A) FACILITY A ADVANCES AND FACILITY B ADVANCES: Each Facility A
Advance or Facility B Advance will have a first Interest
Period commencing on its Advance Date. Subsequent Interest
Periods in respect of a Facility A Advance or Facility B
Advance will commence on the last day of the preceding
Interest Period of that Facility A Advance or Facility B
Advance, as the case may be.
(B) FACILITY C ADVANCES: Each Facility C Advance will have one
Interest Period only, which, subject as provided in this
Agreement, will be its Term.
<PAGE> 30
27
8.2 DURATION OF INTEREST PERIODS
Each Interest Period must be a period of 1, 3 or 6 months or any other
period which the Agent (acting on the instructions of all the Lenders)
may agree in writing.
8.3 SELECTION OF INTEREST PERIODS
(A) FACILITY A ADVANCES AND FACILITY B ADVANCES: The Borrowers'
Agent may select the first Interest Period for a Facility A
Advance or a Facility B Advance in its notice of borrowing. By
no later than 10.00 a.m. on the third Business Day in the case
of an Advance denominated in dollars and on the fifth Business
Day in the case of an Advance denominated in an Optional
Currency before the first day of each subsequent Interest
Period the Borrowers' Agent must notify the Agent of the
duration of that Interest Period.
(B) FACILITY C ADVANCES: The Borrowers' Agent may select an
Interest Period for each Facility C Advance in its notice of
borrowing.
(C) FAILURE TO SELECT: When the Borrowers' Agent does not select
an Interest Period in accordance with paragraph (A) or
paragraph (B), the Interest Period will be three months or
such other period as will comply with this Clause 8.
(D) SYNDICATION: Notwithstanding the provisions of paragraph (A),
(B) and (C) above, all Interest Periods commencing prior to
28th July 1999 (or such earlier date as the Arrangers shall
notify the Borrowers' Agent that syndication of the Facilities
has been completed) shall be for a period of one month or such
other period as may be agreed between the Borrowers' Agent and
the Lenders listed in Schedule 1 (the "ORIGINAL LENDERS").
8.4 ADJUSTMENT OF INTEREST PERIOD
(A) An Interest Period will end on the last Business Day of a
calendar month if it is for a number of complete months and
either:
(i) it commenced on the last Business Day of a calendar
month; or
(ii) it commenced on a day for which there is no
corresponding day in the month in which it is due to
end.
(B) This paragraph applies when an Interest Period for an Advance
under Facility A or Facility B would otherwise include the
Facility A Repayment Date or a Facility B Repayment Date
respectively. In this case that Interest Period for a Facility
A Advance will end on that Facility A Repayment Date and that
Interest Period for a Facility B Advance will end on that
Facility B Repayment Date to the extent necessary to ensure
that the aggregate principal amount of the Facility B
Advance(s) which has (have) an Interest Period ending on that
Facility B Repayment Date is (are) at least equal to the
repayment instalment due on that Facility B Repayment Date. To
the extent that any Facility B Advance shall be divided so as
to achieve this, it shall then be treated as two separate
Facility B Advances.
<PAGE> 31
28
(C) Any Interest Period which would otherwise begin before but end
after the Facility C Termination Date will, subject to
paragraph (D), end on the Facility C Termination Date.
(D) Any Interest Period which would otherwise end on a day which
is not a Business Day will be extended to the next Business
Day, unless that day falls in another calendar month. Where it
is in another calendar month the Interest Period will end on
the preceding Business Day.
8.5 RATE OF INTEREST
The rate of interest applicable during any Interest Period applying to
an Advance will be:
(A) in respect of an Advance in a currency other than euro and
sterling, a rate per annum equal to LIBOR for the currency of
that Advance for that Interest Period plus the Margin plus the
Costs Rate;
(B) in respect of an Advance in euro, a rate per annum equal to
EURIBOR for that Interest Period plus the Margin plus the
Costs Rate; and
(C) in respect of an Advance in sterling, a rate per annum equal
to PIBOR for that Interest Period plus the Margin plus the
Costs Rate.
8.6 PAYMENT OF INTEREST
Each Borrower agrees to pay interest accrued on each Advance made to it
in arrear on the last day of each Interest Period applying to that
Advance. Where the Interest Period is longer than 6 months, the
relevant Borrower also agrees to pay interest accrued on the day 6
months after the first date of that Interest Period.
9. REPAYMENT
9.1 REPAYMENT OF FACILITY A LOAN
Each Borrower agrees to repay all amounts of the Facility A Loan
outstanding from it on the Facility A Repayment Date.
9.2 REPAYMENT OF FACILITY B LOAN
Each Borrower agrees to repay all amounts of the Facility B Loan
outstanding from it by ten equal, instalments on the Facility B
Repayment Dates. On the last Facility B Repayment Date each Borrower
agrees to repay all amounts of the Facility B Loan outstanding from it.
9.3 REPAYMENT OF FACILITY C ADVANCES
Each Borrower agrees to repay each Facility C Advance on the last day
of its Interest Period.
10. PREPAYMENT
10.1 OPTIONAL PREPAYMENT
The Borrowers' Agent may give notice that a Borrower will repay the
whole or part of the Facility A Loan on any day prior to the Facility A
Repayment Date, the Facility B Loan on any day prior to the final
Facility B Repayment Date or
<PAGE> 32
29
any Facility C Advance on any day prior to the last day of its Interest
Period. This notice must state:
(A) the date of repayment, which will be at least 10 Business Days
after the notice is received by the Agent; and
(B) the amount to be repaid, which will be a minimum of
$50,000,000 and an integral multiple of $5,000,000 or the
whole of the Facility A Loan or the Facility B Loan or, as the
case may be, the relevant Facility C Advance.
The relevant Borrower agrees to repay the Loan in accordance with the
notice. Clause 11.8 applies to any repayment under this sub-Clause.
10.2 MANDATORY PREPAYMENT
(A) OBLIGATION TO PREPAY: Each Borrower agrees to prepay the
Facility A Loan and the Facility B Loan in accordance with
this sub-clause.
(B) LIMITATION ON OBLIGATIONS: The obligations under this Clause
10.2 will apply only for so long as any part of the Facility A
Loan is outstanding or, in the case of a Disposal Prepayment
or a New Issue Prepayment, the outstanding amount of the
Facility B Loan is greater than $500,000,000, taking any
Facility B Advance denominated in an Optional Currency at its
Original Dollar Amount.
(C) CIRCUMSTANCES IN WHICH OBLIGATION TO PREPAY ARISES: The
Borrowers will be obliged to prepay under this sub-clause in
each of the following circumstances:
(i) Following the disposal of any of the assets of the
Parent or any of its Subsidiaries (other than any
assets of Porterbrook or of any of Porterbrook's
Subsidiaries) (a "DISPOSAL Prepayment"). This does
not apply to the following disposals:
(a) A disposal of obsolete or waste assets.
(b) A disposal of cash equivalent investments
for cash.
(c) A disposal of the stock in trade in the
ordinary course of business.
(d) A disposal between one Obligor and another
Obligor.
(e) In addition to those described in (a) to (d)
above, any disposal or series of related
disposals realising Net Disposal Proceeds of
$25,000,000 or less or its equivalent in any
other currency.
(ii) Following the issue of the New Equity or any other
issue of equity or debt in the capital markets by the
Parent or any of its Subsidiaries (other than by
Porterbrook or by any of Porterbrook's Subsidiaries)
(a "NEW ISSUE PREPAYMENT"). This does not apply to
any issue of equity or debt to another member of the
Group or to any issue of commercial paper.
(iii) Following the raising of funds by way of loan by the
Parent or any of its Subsidiaries (other than by
Porterbrook or by any of
<PAGE> 33
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Porterbrook's Subsidiaries) (a "LOAN PREPAYMENT").
This does not apply to:
(a) The raising of funds from another member of
the Group.
(b) The raising of funds to refinance any loan
facilities existing at the date of this
Agreement of the Parent or any of its
Subsidiaries. This exception will be limited
to the amount of those existing loan
facilities.
(c) Any drawings under any loan facilities
existing at the date of this Agreement of
the Parent or any of its Subsidiaries or
falling within paragraphs (a), (b) or (d).
(d) In addition to those described in (a), (b)
or (c), a loan of $25,000,000 or less or its
equivalent in any other currency for working
capital purposes.
(D) AMOUNT OF MANDATORY PREPAYMENT: The amount the Borrowers are
obliged to prepay under this sub-clause will be as follows:
(i) In the case of a Disposal Prepayment, an amount equal
to the Net Disposal Proceeds. Where any sum is
deducted from Net Disposal Proceeds pursuant to the
definition of that expression in Clause 1.1 and has
not been applied or contractually committed to be
applied or carried to a tax reserve (properly
provided for in accordance with Generally Accepted
Accounting Principles) to be applied, in each case in
meeting the cost, liability or tax referred to in
paragraphs (A) to (D) of that definition (a "RELEVANT
COST") within the period of six months after the
disposal, it shall on the expiry of that six month
period, be applied in prepaying the Loan as if it
were a Disposal Prepayment due to be made on that
date.
(ii) In the case of a New Issue Prepayment, an amount
equal to the Net New Issue Proceeds.
(iii) In the case of a Loan Prepayment, an amount equal to
the Net Loan Proceeds.
(E) TIMING OF MANDATORY PREPAYMENT: Amounts prepayable under this
sub-clause will become due for prepayment on the following
dates:
(i) In the case of a Disposal Prepayment, within ten
Business Days after the Net Disposal Proceeds are
paid to the relevant company in the Group or where
sums are retained to meet a relevant cost and not so
applied or contractually committed to be so applied
or carried to a tax reserve (properly provided for in
accordance with Generally Accepted Accounting
Principles) to be applied, in each case in six
months, on the date on which the Disposal Prepayment
is due to be made in accordance with this Clause
10.2.
(ii) In the case of a New Issue Prepayment, on the date
five Business Days after the receipt of the proceeds
of the relevant new issue.
(iii) In the case of a Loan Prepayment, on the first
drawdown under the relevant loan facility.
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Clause 11.8 applies to any Prepayment under this sub-clause.
10.3 PREPAYMENTS: ORDER OF APPLICATION
(A) Prepayments made pursuant to Clause 10.1 shall be applied in
or towards repayment of any amounts outstanding under Facility
A or Facility B as the Borrowers' Agent may select.
(B) Prepayments made pursuant to Clause 10.2 will be applied first
in repayment of any amounts outstanding of the Facility A Loan
and secondly in repayment of any amounts outstanding of the
Facility B Loan.
(C) Amounts applied towards repaying the Facility B Loan will be
applied in reducing the then remaining repayment instalments
by equal amounts.
10.4 NO REBORROWING
Except as provided in Clause 7, no Facility A Advance or Facility B
Advance which is repaid may be reborrowed.
10.5 NO OTHER PREPAYMENT
The Borrowers may not repay the Loan early except in the manner
permitted or required by this Agreement.
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PART IV : CHANGES OF CIRCUMSTANCES AND PAYMENTS
11. CHANGES OF CIRCUMSTANCES
11.1 ILLEGALITY
(A) NOTICE: Each Lender agrees to notify the Borrowers' Agent if
it believes it is or will be acting illegally in relation to
the Facility. The illegality may relate to the performance of
the Lender's obligations, the maintenance of the Facility or
the Lender's funding arrangements.
(B) CANCELLATION AND PREPAYMENT: If a Lender delivers a notice of
illegality, the Commitments of that Lender will be cancelled
on the date of that notice. Each Borrower agrees to repay the
participation of that Lender in each Advance on the last day
of the Interest Period of that Advance during which the notice
is received, unless that Lender certifies that, because of a
legal requirement applicable to that Lender, it must be repaid
earlier. In this event the Borrowers agree to repay the
participation on the earlier date (or dates) specified by the
Lender. Clause 11.8 applies to any cancellation or repayment
under this sub-Clause.
11.2 INCREASED COSTS
(A) TYPES OF INCREASED COSTS: This sub-Clause applies where all of
(i), (ii) and (iii) are true:
(i) Either:
(a) there is a change in a legal or other
requirement applicable to a Lender Group
Company or a change in its interpretation or
application; or
(b) a Lender Group Company complies with a
direction or request of an authority which
has power or influence over the activities
of that Lender Group Company.
(ii) As a result, any of the following occurs:
(a) a Lender Group Company incurs an expense;
(b) a Lender Group Company's effective return
from the Facilities or on its overall
capital is reduced;
(c) any amount payable to a Lender Group Company
is reduced; or
(d) a Lender Group Company does not recover an
amount which would otherwise have been paid
to it.
No account will be taken of tax on the overall net
income of a Lender, or a Lender Group Company, in the
country in which it has its principal office or the
office through which it is acting for the purposes of
this Agreement.
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33
(iii) The losses, reductions and expenses arising as a
result are wholly or partly attributable to the
Facilities or the arrangements made by a Lender in
connection with the Facilities.
(B) NOTICE: Each Lender agrees to notify the Borrowers' Agent
through the Agent if it becomes aware that this sub-Clause
applies.
(C) PAYMENT OF ADDITIONAL AMOUNTS: The Parent agrees to reimburse
each Lender for the losses, reductions and expenses described
in paragraph (A)(ii) which are attributable to the Facilities.
(D) PREPAYMENT: If a Lender delivers a notice of increased costs
the Borrowers' Agent may deliver to that Lender a notice of
repayment. The Borrowers agree to prepay the participation of
that Lender in each Advance three Business Days after the
Lender receives this notice. Clause 11.8 applies to this
repayment.
11.3 MARKET DISRUPTION
(A) NATURE OF MARKET DISRUPTION: This sub-Clause applies if any of
(i), (ii), (iii) or (iv) is true:
(i) The Agent believes that there are no reasonable means
to ascertain LIBOR, EURIBOR or, as the case may be,
PIBOR because of circumstances in the London,
European or Paris inter-bank markets respectively.
This determination may only be made after
consultation with the Reference Banks.
(ii) Lenders with Commitments exceeding 50% of the Total
Commitments, or with participations exceeding 50% of
the Loan, notify the Agent that they believe that
LIBOR, EURIBOR or, as the case may be, PIBOR would
not reflect fairly the cost to them of funding an
amount outstanding under this Agreement.
(iii) LIBOR, EURIBOR or, as the case may be, PIBOR cannot
be determined because fewer than three Reference
Banks provide quotations.
(iv) Lenders with Commitments exceeding 50% of the Total
Commitments, or with participations exceeding 50% of
the Loan, notify the Agent that they are unable to
fund their participation in the Loan in London (in
the case of amounts in currencies other than euro and
sterling), European (in the case of amounts in euros)
or Paris (in the case of amounts in sterling)
interbank market.
(B) NOTICE: The Agent agrees to notify the Borrowers' Agent and
the Lenders if this sub-Clause applies.
(C) ALTERNATIVE INTEREST RATE ARRANGEMENTS: If the Agent delivers
a notice of market disruption each of the following applies:
(i) The Borrowers' Agent may notify the Agent that a
proposed Advance should not be made. This notice must
be received by the Agent not later than 5.00 p.m. on
the Rate Fixing Day applicable to the first day of
the first Interest Period of that Advance. In this
case:
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34
(a) that Advance will not be made; and
(b) the Parent agrees to reimburse those Lenders
which have arranged funding for that
proposed Advance in accordance with Clause
6.6.
(ii) The means of determining the rates of interest
applicable to the Facilities will be suspended.
Instead the Borrowers agree to pay interest to the
Lenders in the manner requested by the Agent. A
request by the Agent may specify periods to be used
for the computation of interest. It must also specify
the rate of interest to apply for a period. This rate
will be the rate determined by the Agent to reflect
the cost to each Lender of funding for the period
plus the Margin plus the Costs Rate. In order to
assist the Agent in this determination each Lender
agrees to provide to the Agent any information which
the Agent may request. If this information is
received by the Agent within any time period
specified by the Agent it will be taken into account
by the Agent in making its determination.
(iii) The Borrowers and the Agent will negotiate the terms
of an alternative arrangement for determining a rate
of interest for the Facility. The negotiations will
be carried on in good faith. Neither party is bound
to continue the negotiations after the date 30 days
after the Borrowers' Agent receives the Agent's
notice. If Agreement is reached and if it is approved
by all the Lenders the rate of interest will be
determined in accordance with the Agreement.
Sub-paragraph (i) will not apply to the extent that
it is expressly excluded by this Agreement.
(iv) If the circumstances described in paragraph (A) cease
to apply the Agent will notify the Borrowers' Agent
and the Lenders. The notice will specify the
transitional arrangements proposed by the Agent. The
Borrowers agree to pay interest to the Lenders in the
manner described in this notice unless a different
arrangement is agreed by the Agent and the Borrowers'
Agent and approved by all the Lenders. In this case
the Borrowers agree to pay interest to the Lenders in
the manner agreed.
(D) PREPAYMENT: If this sub-Clause applies, the Borrowers' Agent
may deliver a notice of repayment to the Agent. The Borrowers
agree to prepay the Loan three Business Days after the Agent
receives this notice. Clause 11.8 applies to this repayment.
11.4 WITHHOLDINGS
(A) WITHHOLDINGS AND DEDUCTIONS: This sub-Clause applies if an
Obligor is required by law to make a payment under a Finance
Document net of a withholding or deduction. It also applies if
the Agent is required by law to make a payment to a Lender
under a Finance Document net of a withholding or deduction.
(B) NOTICE: Each Obligor agrees to notify the Agent if it becomes
aware that this sub-Clause applies. The Agent agrees to notify
the Obligors and the Lenders if it becomes aware that this
sub-Clause applies to any payments to be made by it.
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(C) GROSSING UP: Each Obligor agrees to increase the amount of any
payment which is subject to a withholding or deduction. This
applies both where the withholding or deduction is required on
the payment by the Obligor itself and where it is required on
the payment by the Agent. As a result of this increase the
person entitled to the payment will be entitled to receive the
same amount it would have received if there had been no
withholding or deduction.
(D) PAYMENT OF TAX: Each Obligor agrees to pay to the appropriate
authority all amounts withheld or deducted by it. If a receipt
or other evidence of payment can be issued, Obligors agree to
deliver this to the Agent as soon as practicable.
(E) PREPAYMENT: If an Obligor or the Agent delivers a notice of
withholding or deduction the Borrowers' Agent may deliver to
the Agent a notice of repayment. This notice may relate to any
part of the Loan which is subject (or the interest on which is
subject) to the withholding or deduction. The Borrowers agree
to prepay the Loan (or the part of it which is affected) three
Business Days after the Agent receives this notice. Clause
11.8 applies to this repayment.
(F) TAX CREDITS: This paragraph applies if:
(i) any Obligor pays an additional amount under this
sub-clause (a "TAX PAYMENT");
(ii) a Lender effectively obtains a refund of tax, or
obtains and uses a credit against tax, by reason of
the Tax Payment or the withholding or deduction that
gave rise to the Tax Payment (a "TAX CREDIT"); and
(iii) that Lender is able to identify the Tax Credit as
being attributable to the Tax Payment or such
withholding or deduction.
In this case the Lender agrees to reimburse to the Obligor the
amount that the Lender reasonably determines in good faith to
be the proportion of the Tax Credit which will leave the
Lender (after that reimbursement) in no better or worse
position than it would have been in if the Tax Payment had not
been required. Each Lender will be entitled to arrange its tax
affairs in whatever manner it thinks fit. No Lender is obliged
to disclose any information regarding its tax affairs or
computations to any Obligor.
11.5 TAXES ETC ON A LENDER
This sub-Clause applies if any Lender or the Agent on its behalf is
liable to pay any tax or other amount on or by reference to any sum
payable to it under a Finance Document. The Obligors agree to reimburse
that Lender or the Agent for that liability. This sub-Clause does not
however apply where the liability is for tax on the net income of a
Lender or the Agent which is imposed by the jurisdiction in which its
principal office or the office through which it is acting for the
purpose of this Agreement is situated.
11.6 INLAND REVENUE TREATMENT OF THE LENDERS
The Obligors will not be required to pay increased amounts under Clause
11.4 in respect of a payment of interest to a Lender if at the time
that payment is made the Lender is not a Qualifying Bank.
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This sub-Clause does not apply where the Lender is not or ceases to be
a Qualifying Bank as a result of a change in law or concession or a
change in the interpretation or application of law or concession. Each
Lender agrees to notify the Agent if it ceases to be a Qualifying Bank.
11.7 CONFIRMATION FROM LENDERS
The Borrowers or the Agent may request a Lender to confirm whether or
not the Lender is a Qualifying Bank. Each Lender agrees to provide, as
soon as reasonably practicable, such confirmation requested.
11.8 PREPAYMENT
This sub-Clause applies if any Borrower is obliged to repay the Loan or
any part of it under this Clause or Clause 10 or Clause 21.2. In this
event the Borrower agrees to pay on the date repayment is due interest
accrued on the Loan (or the amount to be repaid) up to that date. If
the date repayment of an Advance is due is not the last day of its
Interest Period, the Borrower will reimburse each affected Lender for
the losses and expenses that Lender has incurred, or will incur, as a
result, excluding loss of margin. These losses and expenses may include
those incurred in liquidating or otherwise utilising amounts borrowed
by that Lender to fund any Advance. They may also include losses and
expenses incurred in hedging open positions resulting from the
repayment.
11.9 MITIGATION
This sub-clause does not affect the obligations of the Borrowers under
Clauses 11.1(B), 11.2(C), 11.4 or 11.5. If any of Clauses 11.1, 11.2,
11.4 or 11.5 applies to a Lender that Lender and, if relevant, the
Agent will take reasonable steps (in the case of Clause 11.1) to try to
mitigate the effect of the circumstances giving rise to the illegality
or (in the case of the other sub-clauses) to try to reduce the amounts
payable by the Borrowers under the relevant sub-clause. Neither the
Lender nor the Agent will, however, be obliged to do anything which in
its reasonable opinion would or might have an adverse economic effect
on it or which would or might be contrary to general banking practice.
12. PAYMENTS
12.1 METHOD AND TIMING OF PAYMENTS
All payments under the Finance Documents must be made in immediately
available and freely transferable funds. Each payment must be for value
on the due date.
12.2 CURRENCY OF PAYMENT
Each Advance is to be advanced and repaid in the currency in which it
is denominated. Interest on an Advance is to be paid in the same
currency as the Advance. All other payments are to be made in dollars,
unless this Agreement specifies a different currency.
12.3 PAYMENTS IN EURO
Each payment by the Agent in euro will be made in euro rather than
national currency units, unless the Agent notifies the recipient
otherwise. This does not affect the rights of any party under any
applicable law to make euro payments in national currency units or
receive euro payments credited to its account in
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national currency units. The Agent will not be liable for any failure
to make payments on their due date arising from any failure in any
cross-border euro payment system. In addition, Clause 22.8 will apply.
12.4 PAYMENTS THROUGH THE AGENT
(A) NORMAL ARRANGEMENTS: All payments by any Obligor or by a
Lender under this Agreement will be made through the Agent.
Each dollar payment will be made to the account of the Agent
with Morgan Guaranty Trust Company of New York, New York,
Account Name "MGT NY-IBF" (SWIFT MGTUS33EOD), account number
670 00 289, Attention: European Operations Group. Each
non-dollar payment will be made to an account of the Agent.
The details of this account will be notified to the payer by
the Agent. The Agent will pay on an amount received as soon as
the Agent has ascertained that it has been received.
(B) ALTERNATIVE ARRANGEMENTS: If the Agent believes that it is, or
will be, illegal or impossible for it to pay on to a Lender in
accordance with paragraph (A), it agrees to notify the
Borrowers' Agent and that Lender. In this case the Borrowers'
Agent and that Lender may agree alternative arrangements for
payments to be made to that Lender. Paragraph (A) will not
apply to the extent excluded by those alternative
arrangements. That Lender agrees to provide notice of the
arrangements to the Agent and will notify the Agent of
payments in accordance with Clause 14.1.
12.5 DOLLAR PAYMENTS TO THE BORROWER
Each dollar payment by the Agent to a Borrower will be made to the
account specified by the Borrowers' Agent in writing to the Agent.
12.6 DOLLAR PAYMENTS TO THE LENDERS
Each dollar payment by the Agent to a Lender will be made to the
account of that Lender notified to the Agent for this purpose.
12.7 OTHER PAYMENTS
Each non-dollar payment to be made by the Agent will be made to an
account of the payee. The details of this account will be notified to
the Agent by the payee.
12.8 CHANGE OF ACCOUNT
A Borrower or a Lender may change any of its receiving accounts by not
less than five Business Days' notice to the Agent (in the case of a
Borrower, by the Borrowers' Agent). The Agent may change any of its
receiving accounts by not less than five Business Days' notice to the
Borrowers' Agent and the Lenders.
12.9 REFUNDING OF PAYMENTS BY THE AGENT
This sub-Clause applies if the Agent makes a payment out in the
mistaken belief that it has received or will receive an incoming
payment on a particular day. In this case the person which received the
payment from the Agent agrees to return it. It will also reimburse the
Agent for all losses and expenses incurred by the Agent as a result of
the payment. This sub-Clause does not affect the rights of the person
which received the payment against the person which failed to make the
payment to the Agent.
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12.10 NON-BUSINESS DAYS
If a payment would be due on a non-Business Day the payment obligation
will be deferred to the next Business Day, unless that day is in
another calendar month. Where it is in another calendar month that
payment obligation will be brought forward to the previous Business
Day.
Interest and commitment fee will be adjusted accordingly.
12.11 PAYMENT IN FULL
All payments by any Obligor will be made in full and without set off or
counterclaim. No payment will be made net of a withholding or
deduction, unless this is required by law. In this event Clause 11.4
applies.
12.12 SET-OFF
If an Obligor owes money under a Finance Document the person to whom it
is owed may set off this obligation against any moneys owed by that
party to that Obligor. The moneys owed by that party may be in a
different currency, arise on a separate transaction or involve another
branch. This sub-Clause applies only if there is an outstanding
Termination Event. Where amounts are in different currencies the person
to whom money is owed under a Finance Document may convert amounts into
the same currency using the then current exchange rate. If a Lender
sets off an obligation under a Finance Document, that Lender agrees to
notify the Agent promptly. The notice will provide details of the
amount set off.
13. LATE PAYMENT
13.1 DEFAULT INTEREST
The Obligors agree to pay interest on all amounts unpaid under a
Finance Document after their due date for payment. This interest will
be computed by reference to successive periods selected by the Agent.
The first of these periods will start on the due date for payment of
the unpaid amount. The rate of interest applicable during each of these
periods will be a rate per annum equal to 1% plus:
(A) in the case of an amount in a currency other than euro and
sterling, LIBOR;
(B) in the case of an amount in euro, EURIBOR; and
(C) in the case of an amount in sterling, PIBOR,
for that period plus the Margin plus the Costs Rate. This interest will
be paid in arrear on the last day of each of these periods and on the
date of payment of the unpaid amount. Interest will be due under this
sub-clause both before and after judgment.
13.2 INDEMNITY
If any Obligor fails to make a payment on the due date the Obligors
agree to reimburse the person entitled to the payment for the losses
and expenses (including loss of profit) that person incurs, or will
incur, as a result. The computation of these losses and expenses will
take into account any amount received under Clause 13.1. The person
claiming reimbursement will take reasonable steps to minimise the
losses or expenses it so incurs.
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14. SHARING AMONG LENDERS
14.1 NOTICE
If an amount due to a Lender (the "RECIPIENT") under a Finance Document
is discharged other than by payment through the Agent, the Recipient
agrees to notify the Agent. This may occur because of the exercise of a
right of set-off, by virtue of a combination of accounts or because of
a voluntary or involuntary payment by the Obligors direct to that
Recipient. The notification will provide details of the amount
discharged and will be delivered no later than 10 Business Days after
the discharge.
14.2 DETERMINATION BY THE AGENT
Where a Lender has issued a notice under Clause 14.1 the Agent will
determine what payments, if any, are due under Clause 14.4. This
determination will be made on the basis of the information contained in
all the notices delivered to the Agent under Clause 14.1. The
determination will be notified to the Obligors.
14.3 LITIGATION
In determining the amount due under Clause 14.4 no account will be
taken of an amount due to a Lender which has declined to participate in
legal proceedings which resulted in the payment described in Clause
14.1. This only applies if that Lender could have joined in the
proceedings or could have instituted its own proceedings, but failed to
do so.
14.4 PAYMENT TO THE AGENT
The Recipient agrees to pay to the Agent an amount calculated as
follows:
P = D (X - Y)
where
P = the amount payable to the Agent
D = the aggregate amount due to the Recipient out of which an
amount has been discharged
X = the fraction of D which has been discharged
Y = the fraction which has been discharged, if any, of the
aggregate amount due to the Lender which has the greatest
proportion of that amount still outstanding.
This amount will be paid no later than five Business Days after receipt
of a notice from the Agent under Clause 14.2.
14.5 OBLIGATIONS OF THE BORROWERS AND THE GUARANTORS
Any amount due to the Recipient which would otherwise have been
discharged as described in Clause 14.1 will be treated as not having
been discharged to the extent of an amount which is or will be payable
under Clause 14.4 as a result. Accordingly the Obligors agree to pay
this amount to the Recipient as if it had not been discharged. This
payment is required to be made whether or not the Agent has issued a
determination under Clause 14.2.
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14.6 DISTRIBUTION
The Agent agrees to distribute to the Lenders the amount received by it
under Clause 14.4 as if that amount had been received from the
Borrowers in discharge of an amount due under the Agreement. The
Borrowers will then be treated as having paid that amount.
14.7 RECOVERY
This sub-Clause applies if an amount discharged as described in Clause
14.1 is recovered from, or is required to be repaid by, the Recipient.
In this case each Lender which received the benefit of a payment made
under Clause 14.4 agrees to repay to the Recipient the amount it
received. Each of these Lenders will also reimburse the Recipient for
any interest or other losses or expenses which the Recipient has
incurred in connection with the discharged amount or its recovery or
repayment. The rights and obligations of the parties shall be restored
to the position before any payment became due under Clause 14.4.
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PART V : THE GUARANTEE
15. GUARANTEE
15.1 GUARANTEE
Each Guarantor, jointly and severally, guarantees, the due and punctual
performance of all obligations of each Borrower under this Agreement.
This Guarantee is unconditional and irrevocable.
15.2 AGREEMENT TO PAY
Each Guarantor agrees to pay on demand each amount due and payable by
each Borrower which is unpaid. The demand may be made at any time on or
after the due date for payment. Payment will be made in the same
currency as the amount due by the Borrower.
15.3 CONTINUING GUARANTEE
This Guarantee is a continuing guarantee. No payment or other
settlement will discharge any Guarantor's obligations until the
Borrowers' obligations have been discharged in full.
15.4 OTHER GUARANTEES AND SECURITY
This Guarantee is in addition to, and independent of, any other
guarantee or Security.
15.5 ENFORCEMENT
This Guarantee may be enforced before any steps are taken against the
Borrowers or under any other guarantee or Security.
15.6 PRESERVATION OF RIGHTS
This Guarantee will be discharged only by the receipt of payment in
full. It will not be discharged by any other action, omission or fact.
The Guarantors' obligations will, therefore, not be affected by any of
the following happening.
(A) The obligations of any Borrower are or become void, invalid,
illegal or unenforceable.
(B) There is any change, waiver or release of any Borrower's
obligations.
(C) Any concession or time is given to any Borrower.
(D) Any Borrower is wound up or reorganised.
(E) There is any change in the condition, nature or status of any
Borrower.
(F) Any of the above events occur in relation to another Guarantor
or provider of Security or the obligations of that Guarantor
or provider.
(G) There is any failure to take, retain or enforce any other
guarantee or Security.
(H) Any circumstances affect or prevent recovery of amounts due by
any Borrower.
(I) Any other matter exists which might discharge any Guarantor.
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Any receipt from any person other than the Guarantor will reduce the
outstanding balance only to the extent of the amount received.
15.7 REPRESENTATIONS OF THE GUARANTORS
Each Guarantor confirms that it does not have the benefit of any
Security in respect of this Guarantee.
15.8 COVENANTS OF THE GUARANTOR
Each Guarantor agrees as follows:
(A) SECURITY: It will not have the benefit of any Security in
respect of this Guarantee. If, in breach of this paragraph, a
Guarantor at any time has the benefit of any Security, it will
hold that Security on trust for the Agent and the Lenders.
(B) EXERCISE OF RIGHTS: It will not:
(i) take the benefit of any right against any Borrower or
any other person in respect of amounts paid under this
Guarantee; or
(ii) claim or exercise against any Borrower any right to
any payment (whether or not in connection with this
Agreement).
(C) COMPETING PROOF: An Instructing Group may request it to submit
a proof for amounts due to it by any Borrower or any other
Guarantor. It agrees to submit a proof promptly in accordance
with this request. All amounts received in respect of this
proof will be held by it on trust for the Agent and the
Lenders.
The obligations in this sub-Clause will cease to have effect when the
Facilities have ceased to be available and there are no amounts of the
Loan outstanding.
15.9 SUSPENSE ACCOUNT
Any amount received under this Guarantee or in connection with amounts
due by any Borrower may be placed on suspense account. Suspense
accounts may be held by the Agent or by a Lender. While the amounts are
in the suspense account the Agent or any Lender may claim and recover
amounts from any Borrower and any other Guarantor as if the amount in
the suspense account had not been received. Amounts may be taken out of
a suspense account by the person holding that account at any time. The
Agent or a Lender must use amounts in the suspense account to repay the
Loan if there is enough to repay all the Loan.
15.10 DISCHARGE CONDITIONAL
Any settlement with, or discharge of, each Guarantor will be subject to
a condition. This condition is that the settlement or discharge will be
set aside if any prior payment, or any other guarantee or Security, is
set aside, invalidated or reduced. In this event each Guarantor agrees
to reimburse each Lender and the Agent for the value of the payment,
guarantee or Security which is set aside, invalidated or reduced.
15.11 PRINCIPAL DEBTOR
In addition to the Guarantor's obligations as Guarantor, each Guarantor
agrees to pay any amount which is not recoverable from that Guarantor
as a
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Guarantor. Any amount due under this sub-Clause will be recoverable
from any Guarantor as though the obligation had been incurred by that
Guarantor as sole or principal debtor.
15.12 WHEN GUARANTORS LIABLE
(A) Each of the Guarantors listed in Schedule 2 (other than the
Parent) for whom the board resolutions referred to in
paragraph 4 of Schedule 3 have not been supplied to the Agent
on or before the date of this Agreement shall assume liability
under Clauses 15 and 16 only when those board resolutions are
supplied.
(B) All the Guarantors other than the Parent will be released from
liability under Clauses 15 and 16 with effect from the date
when the Facility A Loan is repaid in full. No release will be
granted if a Termination Event or Potential Termination Event
has occurred and is unremedied or unwaived. This release shall
be without prejudice to any obligations of those Guarantors
which have fallen due for performance before that date but
which have not been fully performed. If the Borrowers' Agent
asks it to do this, the Agent will execute documentation to
evidence this release.
16. GUARANTOR'S INDEMNITY
16.1 INDEMNITY
Each Guarantor agrees that if any Borrower fails to make a payment
expressed to be due under the terms of this Agreement on its due date
it will reimburse the person entitled to the payment for the losses and
expenses (including loss of profit) that person incurs, or will incur,
as a result. It also agrees to reimburse each Lender and the Agent for
all losses and expenses arising from any obligations of any Borrower
being or becoming void, invalid, illegal or unenforceable.
16.2 AMOUNT OF LOSS
For the purposes of this Clause a Lender and the Agent will be treated
as having suffered a loss equal to the amount which is expressed as
being due to it by any Borrower and unpaid. If this treatment is
incorrect the Lender or the Agent will produce evidence of its loss.
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PART VI : REPRESENTATIONS, COVENANTS AND TERMINATION EVENTS
17. REPRESENTATIONS
17.1 INITIAL REPRESENTATIONS
Each Obligor confirms that each of the following is true:
(A) LEGAL STATUS: It is a company duly incorporated and validly
existing under the laws of the place of its incorporation as
specified in this Agreement.
(B) CORPORATE POWERS: It has power to own its assets and conduct
its business as it is now being conducted. It also has power
to sign and deliver those of the Finance Documents to which it
is party and those of the Offer Documents to which it is party
and to exercise its rights and perform its obligations under
those Finance Documents and Offer Documents.
(C) AUTHORISATIONS: The signature and delivery of those of the
Finance Documents to which it is party and those of the Offer
Documents to which it is party on its behalf and the exercise
of its rights and the performance of its obligations under
those Finance Documents and Offer Documents have been or, in
the case of the Guarantors under this Agreement, will be duly
authorised.
(D) BINDING OBLIGATIONS: Those of the Finance Documents and Offer
Documents to which it is party have been duly signed and
delivered by it. Its obligations described in those Finance
Documents to which it party are its valid and binding
obligations in accordance with their terms.
(E) LEGALITY AND CONTRAVENTIONS: The signature and delivery of
those of the Finance Documents and the Offer Documents to
which it is party on its behalf and its exercise of rights and
performance of obligations under those Finance Documents and
the Offer Documents:
(i) are not prohibited by law, regulation or order or by
its constitutional documents;
(ii) do not require any approval, filing, registration or
exemption or if any approval, filing, registration or
exemption is required, it has been obtained and
remains in full force and effect; the approval of the
STB, the shareholders of the Parent and the Canadian
authorities under the Investment Canada Act have not
been obtained at the date of this Agreement but,
except in the case of the Canadian authorities, are
being or will be sought. The Charge has not been
filed or registered at the date of this Agreement. A
notification and report has been filed under the US
Hart-Scott-Rodino Anti-Trust Improvements Act of 1976
but the applicable waiting period has not yet expired
as at the date of this Agreement. No attempt has been
made to comply with any state takeover statutes in
connection with the Offer. Certain local and
municipal consents which may be required by Coach and
its Subsidiaries, which are not material, have not
yet been sought but will be sought; and
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(iii) are not prohibited by, and do not constitute an event
of default under, and do not result in an obligation
to create Security (other than the Charge) under, any
document or arrangement to which it is a party.
(F) RANKING OF OBLIGATIONS:
(i) Its obligations under the Finance Documents are, or
will by the first Advance Date be, secured by the
Charge. The Charge constitutes or will constitute a
first priority Security interest over the voting
trust certificates in the Voting Trust; and
(ii) save for the Charge, its obligations under this
Agreement will rank at least pari passu in right and
priority of payment with all its other present and
future unsecured and unsubordinated indebtedness
(actual or contingent).
(G) BORROWING LIMIT: The borrowing of the full amount available under this
Agreement will not, following the passing of the resolution referred to
in paragraph 10 of Schedule 3, cause any limitation on the powers to
borrow of any Borrower or on the powers to give guarantees of any
Guarantor or their respective directors to be exceeded.
(H) NO TERMINATION EVENT: No Termination Event has occurred and remains
unremedied or unwaived.
(I) ACCOUNTS: The audited consolidated profit and loss accounts of the
Group for the year ended 30th April 1999 and the audited consolidated
balance sheet of the Group as at that date will, when published give a
true and fair view of the Group's financial condition at the date at
which they were drawn up. These were prepared in accordance with
Generally Accepted Accounting Principles consistently applied except to
the extent that the accompanying notes provide a description of a
different treatment.
(J) STAMP DUTY: No stamp, registration or similar tax is payable, and no
filing or registration is required, in connection with the execution,
performance or enforcement of any Finance Document.
(K) LITIGATION: Neither the Parent nor any Material Subsidiary is involved
in any court or arbitration proceedings nor is it aware that any
proceedings of this kind are being considered or threatened by any
other person which if adversely determined would have a Material
Adverse Effect.
(L) NO DEFAULT: Neither the Parent nor any Material Subsidiary is in breach
of any law (including environmental law), order, regulation, agreement
or arrangement applicable to it or any of its assets which in any such
case could have a Material Adverse Effect.
(M) CHANGE IN FINANCIAL CONDITION: There has been no change in the
financial condition, businesses or operations of the Parent or the
Group since 30th April 1999 which would have a Material Adverse Effect.
(N) SECURITY: The Security which exists at the date of this Agreement, not
falling within the exceptions in Clauses 20.1(C)(i) or (ii), over any
of the assets of the Obligors and the Material Subsidiaries secured
Borrowed Monies Indebtedness which aggregates an amount less than
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5% of the share capital and reserves of the Parent, as provided in its
audited accounts as at 30th April, 1999.
(O) YEAR 2000: The Borrower and each Material Subsidiary has:
(i) initiated a review and assessment of all areas within its
business and operations and that of each of its Material
Subsidiaries (including those areas affected by suppliers and
vendors) that could be adversely affected by the Year 2000
Problem;
(ii) developed a plan and timeline for addressing the Year 2000
Problem on a timely basis; and
(iii) to date, implemented such plan in accordance with such
timetable.
The Parent reasonably believes that all computer applications
(including those of suppliers and vendors) that are material to the
business or operations of it or any of its Material Subsidiaries will,
on a timely basis, be able to perform properly date-sensitive functions
for all dates before and from and after 1st January 2000 (that is, be
Year 2000 compliant), except to the extent that a failure to do so
could not reasonably be expected to have a Material Adverse Effect.
(P) WINDING UP: It is not aware of any proceedings that are current,
pending or threatened for the winding up of the Parent or any Material
Subsidiary.
(Q) LICENCES AND CONSENTS ETC.: All material licences, consents and
authorisations (other than the STB Consent, the approval of the
shareholders of the Parent, the approval of the Canadian authorities
under the Investment Canada Act and the consents disclosed in Clause
17.1(E)(ii) above) necessary for each of them to conduct its business
carried on by it and for the Acquisition to be completed have been
obtained and are in full force and effect other than as notified to the
Agent in writing.
(R) INFORMATION:
(i) The projections for the Group following the completion of the
Acquisition supplied to the Lenders on or before the date of
this Agreement and initialled for the purpose of
identification by the Agent and the Borrower's Agent have been
prepared after taking due care and are based on reasonable
assumptions.
(ii) All information contained in the Information Memorandum, the
Circular or supplied by the Parent to the Lenders was, at the
date it was supplied, true and accurate in all material
respects and all forecasts and projections have been prepared
after taking due care and are based on reasonable assumptions.
All that information does not omit to disclose any matter
failure to disclose which would result in the information
being misleading in any material respect as at the date it was
supplied.
(iii) All other information supplied and to be supplied on its
behalf to any of the Arrangers, the Agent or any Lender in
connection with the Finance Documents is true and accurate in
all material respects. It is not aware of any material facts
or circumstances
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which have not been disclosed to any of them which might, if
disclosed, adversely affect the decision of a person
considering whether or not to lend to the Borrowers.
(S) PERFORMANCE OF GROUP FOLLOWING ACQUISITION: The actual performance of
the Group is materially in accordance with, or superior to, the
projections referred to in paragraph (R)(i) above.
(T) FEDERAL RESERVE REGULATIONS:
(i) Neither the Parent nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the
business of extending credit for the purpose of buying or
carrying Margin Stock.
(ii) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally
or ultimately, for any purpose that entails a violation of, or
that is inconsistent with, the provisions of the Regulations
of the Board of Governors, including Regulation U or X. The
Parent and its Subsidiaries will at no time acquire or hold
any Margin Stock unless the Parent shall have delivered to the
Agent evidence (including, if the Agent shall so request, a
duly completed and executed Form U-1) demonstrating to the
satisfaction of the Agent that the credit extended hereunder
will not violate Regulation U.
(U) USE OF PROCEEDS: The proceeds of the Loan will be used only for the
purposes described in Clause 2.2.
17.2 REPETITION
(A) REPETITION: All of the representations in Clause 17.1, except
those in sub-Clauses (H), (J), (K), (L), (M), (N), (P) and
(R), will be deemed repeated by each Obligor on the first day
of each Interest Period and on the date of each Advance. This
repetition will be with reference to the facts on that day. If
on that day audited accounts for a period subsequent to the
date referred to in Clause 17.1(I) have been published, that
sub-Clause will be treated as referring to the audited profit
and loss accounts and audited balance sheets contained in the
then latest audited financial statements of the parties
referred to in that sub-Clause.
(B) REPETITION OF CLAUSE 17.1(S): The representation in Clause
17.1(S) shall only be given following the completion of the
Acquisition and then on each date on which the other
representations in Clause 17.1 are repeated in accordance with
Clause 17.2(A). Upon repayment in full of all amounts
outstanding of the Facility A Loan this representation shall
cease to be repeated.
17.3 SURVIVAL OF REPRESENTATIONS
Each of the representations made under this Agreement will survive the
making of each Advance.
<PAGE> 51
48
18. DELIVERY OF INFORMATION
18.1 PERIODIC REPORTS
The Parent agrees to deliver each of the following to the Agent as soon
as they become available and, in any event, by the latest date
indicated:
<TABLE>
<CAPTION>
Document/Information Latest Date
-------------------- -----------
<S> <C>
(i) Annual audited consolidated accounts of the Group 120 days after the end of each financial year
(ii) Half year unaudited consolidated accounts of the Group 90 days after the end of the first half of
each financial year
(iii) A certificate with detailed computations confirming compliance At the time of delivery of the annual audited
with the financial covenants in Clause 19. When this is consolidated accounts of the Group and the
delivered with the annual audited accounts, it will be signed delivery of the half year unaudited
by the auditors of the Parent and when it is delivered with consolidated accounts of the Group.
the unaudited half year accounts, it will be signed by a
director of the Parent.
(iv) An opinion, signed by the auditors of the Group confirming At the time of delivery of the annual audited
that the consolidated Group accounts comply with Generally consolidated accounts of the Group.
Accepted Accounting Principles.
</TABLE>
In each case the Parent agrees to deliver sufficient copies for the
Agent and each Lender. The certificates referred to in paragraph (iii)
above delivered with the annual accounts at 30th April, 2000 will
include the relevant figures for Coach and its Subsidiaries as at, and
for the period ended on, that date.
18.2 GAAP
The Parent confirms and agrees that all accounts and financial
statements to which Clauses 17.1(I) and 18.1 apply have been or will be
prepared in accordance with Scottish law and Generally Accepted
Accounting Principles consistently applied except to the extent that
the accompanying notes provide a description of a different treatment.
18.3 REQUESTS
The Agent, acting reasonably, may request that any Obligor deliver to
the Agent information about any Borrower or Guarantor or the Group or
their assets or business. Each Obligor agrees to deliver promptly to
the Agent the information requested.
18.4 TERMINATION EVENT
Each Obligor agrees to notify the Agent immediately of the occurrence
of a Termination Event or Potential Termination Event.
<PAGE> 52
49
18.5 LITIGATION
Each Obligor agrees to notify the Agent as soon as it becomes aware
that any proceedings of the kind described in Clause 17.1(K) are being
considered by any other person.
18.6 CHANGE OF ACCOUNTING TREATMENT
(A) This sub-Clause applies if there is a change in the manner in
which the financial statements of the Group are prepared or in
the accounting principles or standards applied in the
preparation of those accounts.
(B) If this sub-Clause applies or will apply the Borrowers' Agent
agrees to notify the Agent. The Borrowers' Agent and the Agent
will then negotiate in good faith with a view to making any
necessary changes to this Agreement to reflect the change
described in paragraph (A). Neither party is bound to continue
the negotiations after the date 30 days after the Agent
receives the Borrowers' Agent's notice.
(C) If this sub-Clause applies, and Agreement is not reached under
paragraph (B) above, the Parent agrees to deliver, with each
certificate referred to in Clause 18.1(iii), a reconciliation
(audited in the case of a certificate by the auditors). This
reconciliation will show the amounts utilised for the
computations required for the purposes of this Agreement as
they would have been if no change had occurred. The amounts in
this reconciliation will then be used for computations
required for the purposes of this Agreement instead of the
corresponding amounts in the certificates which would
otherwise have been delivered under Clause 18.1(iii) based on
the accounts then being prepared.
19. FINANCIAL COVENANTS
19.1 DEFINITIONS
(A) In this Agreement:
"RESTRICTED GROUP" means the Group taken as a whole, excluding
Porterbrook and Porterbrook's Subsidiaries.
"EBITDA" for any period means the profit of the Restricted Group for
that period:
(i) before taking into account all Extraordinary Items (whether
positive or negative) but after taking into account all
Exceptional Items (whether positive or negative);
(ii) before deducting tax, including advance corporation tax,
mainstream corporation tax and their equivalents in any
relevant jurisdiction;
(iii) before deducting amortisation of any goodwill and any costs
incurred in relation to the Acquisition or any other
acquisitions (to the extent that these are expensed);
(iv) before taking into account Interest accrued during that
period, whether or not paid, deferred or capitalised (before
taking into account financing costs in relation to Financial
Reporting Standard 4 (Capital Instruments))during that period;
<PAGE> 53
50
(v) before taking into account amortisation of financing costs
calculated in accordance with Financial Reporting Standard 4
(Capital Instruments) during that period;
(vi) after deducting any gain, and adding back any loss, relative
to book value arising on the sale, lease or other disposal of
any real estate during that period and after deducting any
gain, and adding back any loss, arising on revaluation of any
real estate during that period, in each case to the extent
that it would otherwise be taken into account;
(vii) before deducting depreciation; and
(viii) after taking into account any dividends or capital
distributions received from Porterbrook or from any associate
interests or joint venture interests of any member of the
Restricted Group.
"EXCEPTIONAL ITEMS" has the meaning given to it in FRS 3 issued by the
Accounting Standards Board, but excluding any Extraordinary Items.
"EXTRAORDINARY ITEMS" has the meaning given to it in FRS 3 issued by
the Accounting Standards Board, and includes those items listed in
paragraph 20 thereof.
"INTEREST" means interest and amounts in the nature of interest.
"NET INTEREST EXPENSE" for any period means the Interest due and
payable during that period as an obligation of any member of the
Restricted Group (whether or not paid or capitalised during or deferred
for payment after such period), but adjusted to take account of:
(i) any amount receivable or payable during that period by any
member of the Restricted Group (after deducting all taxes
applicable to that Interest receivable) under interest rate or
currency hedging Agreements or instruments; and
(ii) any amount constituting Interest receivable during that period
by any member of the Restricted Group (after deducting all
taxes applicable thereto) in respect of any investment,
deposit or loan.
"TANGIBLE NET WORTH" means, at any time, the aggregate of:
(i) the issued and paid up share capital of the Parent;
(ii) plus the aggregate amount standing to the credit of the
capital and revenue reserves of the Restricted Group
(including any share premium account and capital redemption
reserve);
(iii) plus any balance standing to the credit or minus any amount
standing to the debit, of the consolidated profit and loss
account of the Restricted Group;
(iv) plus the goodwill arising on the Acquisition prior to any
amounts debited to the profit and loss account of the Parent;
(v) minus any amount attributable to goodwill on future
acquisitions other than the Acquisition (to the extent only
that any such amount has not already been debited to the
profit and loss account of the Parent) or any other intangible
asset;
<PAGE> 54
51
(vi) minus any amount attributable to a revaluation of assets after
the date of this Agreement;
(vii) minus, to the extent included in reserves, deferred taxation;
(viii) minus any amounts attributable to minority interests to the
extent this has been included in issued share capital.
as derived from the then most recently delivered financial statements
in accordance with Clause 18 adjusted so as to exclude Porterbrook and
Porterbrook's Subsidiaries, but after:
(a) excluding an amount equal to any distribution by any member of
the Restricted Group to any persons outside the Group out of
profits on or before the date of the relevant financial
statements and which has been declared, recommended or made
since that date (except to the extent that that was already
provided for in the consolidated balance sheet in those
financial statements); and
(b) deducting any distribution, injection of capital or
intercompany loan, made after the date of this Agreement by
any member of the Restricted Group in or to Porterbrook or any
of Porterbrook's Subsidiaries in excess of the amount budgeted
at the date of this Agreement for the current financial year,
as disclosed in a letter from the Parent to the Agent dated
the same date as this Agreement.
"TOTAL DEBT" on any date means the amount of Borrowed Monies
Indebtedness of the Restricted Group on that date. For this purpose:
(i) any amounts under paragraph (D) of the definition of "Borrowed
Monies Indebtedness" in Clause 1.1 will be taken at its net
amount;
(ii) any liabilities that are fully cash collateralised will not be
taken into account;
(iii) only the principal element of obligations (accounted for as
such in accordance with Generally Accepted Accounting
Principles) in respect of any finance lease to which a member
of the Restricted Group is a party as lessee will be taken
into account under paragraph (E) of that definition; and
(iv) no amount of Interest will be included.
(B) (i) All the terms defined in paragraph (A) are to be determined in
accordance with the Generally Accepted Accounting Principles
and are to be computed from the adjusted consolidated
financial statements of the Restricted Group, delivered
pursuant to Clause 18.
(ii) For the purposes of Clause 19.1 no item shall be deducted or
credited more than once in any calculation.
<PAGE> 55
52
19.2 FINANCIAL COVENANTS
Each Obligor agrees to ensure that the following financial covenants
are complied with:
(A) The ratio of Total Debt at any balance sheet date shown below
to EBITDA for the period ending on that balance sheet date
will not exceed the amount specified in column B below:
<TABLE>
<CAPTION>
COLUMN A COLUMN B
BALANCE SHEET DATE RATIO
<S> <C> <C>
30th April 2000 and 31st October 2000 4.50
30th April 2001 and 31st October 2001 3.50
30th April 2002 and 31st October 2002 3.50
30th April 2003 and 31st October 2003 3.00
</TABLE>
(B) The ratio of EBITDA to Net Interest Expense, in each case for
the period ending on each balance sheet date shown below will
not be less than the amount specified in column B below:
<TABLE>
<CAPTION>
COLUMN A COLUMN B
BALANCE SHEET DATE RATIO
<S> <C> <C>
30th April 2000 and 31st October 2000 3.50
30th April 2001 and 31st October 2001 3.50
30th April 2002 and 31st October 2002 4.00
30th April 2003 and 31st October 2003 4.00
</TABLE>
(C) Tangible Net Worth at each of the balance sheet dates listed
in paragraphs (A) and (B) above will not be less than pound
sterling 350,000,000 plus the Net New Issue Proceeds of the
New Equity issued.
For this purpose "period" means the 12-month period ending on each of
the balance sheet dates listed in paragraphs (A) and (B) above and
EBITDA and Net Interest Expense for any period ending on any 31st
October from 2000 onwards will be the aggregate of the amount extracted
from the financial statements for the half year then ended and the
amount extracted from the financial statements for the previous full
financial year minus the amount extracted from the financial statements
for the half year which ended on the previous 31st October. The figures
for EBITDA and Net Interest Expense in the certificates delivered as at
30th April, 2000 will be extracted from the audited and internal
management accounts of the Group and Coach and its Subsidiaries
covering that period.
<PAGE> 56
53
20. GENERAL COVENANTS
20.1 COVENANTS
Each Obligor or, where specified below, the Parent agrees as follows:
(A) RANKING OF OBLIGATIONS:
(i) It will ensure that its obligations under the Finance
Documents are secured by the Charge and that the
Charge constitutes a first priority Security interest
over the assets referred to in it.
(ii) Save for the Charge, it will ensure that its
obligations under each Finance Document rank and will
at all times rank at least pari passu in right and
priority of payment with all its other present and
future unsecured and unsubordinated indebtedness,
other than obligations applicable generally to
companies incorporated in its jurisdiction of
incorporation which have priority by operation of
law.
(B) LEGALITY OF PERFORMANCE: It will exercise its rights and
perform its obligations under the Finance Documents without
contravention of applicable laws. If approvals are required,
it will obtain and maintain them and will comply with their
terms. It will also make any necessary filings.
(C) NEGATIVE PLEDGE: It will not create or allow to exist (and
will procure that no Material Subsidiary creates or allows to
exist) any Security over any of its assets. This prohibition
does not, however, apply to the following:
(i) Security created by the Charge.
(ii) Security arising in the ordinary course of business
or by operation of law.
(iii) Security existing at the date of this Agreement
disclosed in writing to the Agent.
(iv) Security created or outstanding with the prior
consent of an Instructing Group.
(v) Security existing on the assets of a company which
becomes a Material Subsidiary by virtue of
acquisition after the date of this Agreement. This
sub-paragraph does not apply to Security created in
contemplation of, or which subsists for longer than
six months after the acquisition or in connection
with, the company becoming a Material Subsidiary.
(vi) Security over an asset existing before that asset is
acquired by a Borrower or a Material Subsidiary. This
sub-paragraph only applies if:
(a) the acquisition is at fair market value and
on an arms' length basis; and
(b) the amount secured does not increase
following the acquisition.
<PAGE> 57
54
(vii) In addition to (i) to (vi) above, Security for
Borrowed Monies Indebtedness of an amount not
exceeding at any time in aggregate an amount equal to
5% of the share capital and reserves of the Parent,
as provided in its most recently supplied audited
consolidated accounts (excluding Porterbrook and
Porterbrook's Subsidiaries).
(D) GUARANTEES: It will ensure that no Material Subsidiary will
provide any guarantee of any Borrowed Monies Indebtedness of
Obligors to third parties (including Porterbrook or any of
Porterbrook's Subsidiaries). After the Parent has completed
the issue of the New Equity and no part of the Facility A Loan
remains outstanding, guarantees will be permitted under this
paragraph (G) provided they do not exceed $25,000,000 in
aggregate outstanding at any time.
(E) DISPOSAL OF ASSETS: It will not dispose of any of its assets.
It will also procure that no Material Subsidiary will dispose
of that Material Subsidiary's assets. This does not apply to:
(i) disposals in the ordinary course of trading, or (ii)
disposals of assets on an arm's length basis and on normal
commercial terms; or (iii) disposals to which an Instructing
Group has agreed, in writing. For these purposes, any lease
which is not an operating lease is treated as a disposal.
(F) ACQUISITIONS: It will not (and will procure that no member of
the Group, excluding Porterbrook and Porterbrook's
Subsidiaries, will) after the date of this Agreement acquire
or (except conditional on the approval of an Instructing
Group) agree to acquire any business or parts of any business
or any company or shares in any company, in each case outside
the Group, (other than short term minority investments) unless
each of the conditions set out in sub-paragraphs (i) and (ii)
are satisfied.
(i) The acquisition must involve a business or company in
the passenger transportation sector (other than
airlines or cruises) or the airport sector.
(ii) Before the Parent has issued the New Equity, the
aggregate of the purchase prices of such acquisitions
shall not exceed US$125,000,000 in money or money's
worth. Once the Parent has issued the New Equity, but
before all amounts of the Facility A Loan outstanding
have been repaid and the STB Consent has been
granted, the aggregate of the purchase prices of
those acquisitions permitted after the date of this
Agreement shall not exceed US$250,000,000 in money or
money's worth. Thereafter there shall be no limit on
acquisitions.
This paragraph (F) does not apply to the Acquisition.
(G) CARRY ON BUSINESS: Each Borrower and each Material Subsidiary
will carry on its business as substantially conducted at the
date of this Agreement.
(H) COMPLIANCE WITH LAWS: It will comply and ensure that all
Material Subsidiaries comply, in all material respects, with
all applicable laws and regulations, and the terms of all
permits, authorisations and licences. This requirement
includes, amongst all other things, all laws, regulations,
permits, authorisations and licences relating to environmental
and health and safety matters.
<PAGE> 58
55
(I) INSURANCE: It will maintain and will ensure that each Material
Subsidiary maintains insurance relating to its assets and
activities against those risks and at those levels which are
commercially prudent.
(J) COACH ADDED AS A GUARANTOR: The Parent will, within five
Business Days of the STB Consent being obtained give notice to
the Agent of that fact. On receipt by the Agent of that
notice, Coach will automatically become a Guarantor with
effect from that date.
This paragraph (J) will cease to apply when Clause 15.12(B) is
implemented.
(K) INVESTMENT IN OR LOANS TO PORTERBROOK AND ITS SUBSIDIARIES:
While any amount of the Facility A Loan is outstanding it will
not and will ensure that none of its Subsidiaries, other than
Porterbrook and Porterbrook's Subsidiaries, will invest any
funds in Porterbrook or any of Porterbrook's Subsidiaries
(whether by way of debt or equity investment) without the
consent in writing of an Instructing Group. This paragraph (K)
will not apply to the amount budgeted at the date of this
Agreement to be invested in Porterbrook during the current
financial year as referred to in paragraph (b) of the
definition of "Tangible Net Worth" in Clause 19.1(A).
(L) CONSENT TO DOCUMENTS: The Parent will obtain the prior consent
of the Arrangers, or following syndication, the Special
Majority Banks, with respect to the contents of the Offer
Documents before they are sent to the shareholders of Parent
or the stockholders of Coach or filed or otherwise made public
and with respect to any submission in respect of the STB
Consent before it is made provided, in each case, this happens
after the date of this Agreement. Where the final drafts of
each relevant document have been sent to the Agent prior to
being sent, filed or otherwise made public or submitted and
(1) no comments or objections have received within the
reasonable review period stated when the documents are
delivered to the Agent which review period must be at least
two Business Days, or any shorter period agreed with the Agent
or necessary to comply with any law or regulation, (2)
comments have been received and incorporated or (3) it has
been agreed by the relevant Lenders that no amendment need be
made, consent shall be deemed to have been given.
(M) VARIATION OR WAIVER: The Parent will not, without the consent
of the Arrangers, or following syndication, the Special
Majority Banks:
(i) waive or vary any term or condition of the Offer;
(ii) treat any condition of the Offer as having been
waived;
(iii) increase the cash consideration payable in relation
to the Offer and the Merger above US$42 per share;
<PAGE> 59
56
(iv) alter the way in which the cash consideration payable
in relation to the Offer and the Merger is to be
funded; or
(v) waive or vary any of the provisions of the Merger
Agreement or the Voting Trust Agreement.
(N) OFFER:
(i) The Parent will use all reasonable endeavours to
cause, at the earliest practicable time:
(a) the Offer and Merger to be consummated
subject to and in accordance with the terms
of the Merger Agreement; and
(b) the STB Consent to be obtained subject to
and in accordance with the terms of the
Merger Agreement.
(ii) The Parent will keep the Agent promptly informed of
all material developments in relation to the Offer and
Merger.
(O) SYNDICATION: The Parent will provide assistance to the
Arrangers in connection with the syndication of the
Facilities, and in particular:
(i) will comply with all reasonable requests for
information from potential syndicate members made
through the Arrangers;
(ii) if necessary, will make senior management available
for meetings with and presentations to potential
syndicate members; and
(iii) will assist in the preparation of an Information
Memorandum, to be used in the syndication process.
(P) USE OF PROCEEDS: Use the proceeds of the Loans only for the
purposes set forth in Clause 2.2.
20.2 DURATION OF COVENANTS
The obligations of the Obligors under Clauses 18, 19 and 20 will cease
to have effect when the Facilities have ceased to be available and
there are no amounts of the Loan outstanding.
21. TERMINATION EVENTS
21.1 TERMINATION EVENTS
Each of the following is a Termination Event:
(A) NON-PAYMENT: Any Obligor fails to pay an amount due under any
Finance Document. In respect of the payment of any amount
other than principal due under this Agreement, there will only
be a Termination Event if that amount is not paid within 3
Business Days of its due date.
(B) OTHER DEFAULTS: Any Obligor fails to perform any of its other
obligations under any Finance Document. There will not,
however, be a Termination Event under this paragraph if the
failure is capable of remedy and is remedied within 10 days of
a Borrower becoming aware of the failure. This grace period
shall not apply to any of the obligations in Clauses 20.1 (L),
(M) or (N).
<PAGE> 60
57
(C) UNTRUE REPRESENTATIONS: Any statement made, or deemed
repeated, in Clause 17 (other than that in Clause 17.1(S)) or
the Charge, or in any document delivered by a Borrower or a
Guarantor in connection with this Agreement or the Charge, is
untrue or misleading when that statement is made or deemed
repeated.
(D) CROSS DEFAULT: Any Borrowed Monies Indebtedness of any Obligor
or its Subsidiaries, excluding Porterbrook and Porterbrook's
Subsidiaries,:
(i) is not paid or repaid when due or within any
applicable grace period; or
(ii) becomes capable of being declared due and payable
before its stated date of payment.
This paragraph does not apply unless the total amount of such
Borrowed Monies Indebtedness equals or exceeds US$25,000,000
(or its equivalent in any other currency).
(E) INSOLVENCY AND REORGANISATION: Any procedure is commenced with
a view to the winding-up or re-organisation of the Parent or
any Material Subsidiary, or with a view to the appointment of
an administrator, receiver, administrative receiver, trustee
in bankruptcy or similar officer in relation to the Parent or
any Material Subsidiary or any of their assets. This procedure
may be a Court procedure or any other step which under
applicable law is a possible means of achieving any of those
results. It will not be a Termination Event, however, if any
procedure is commenced with a view to the insolvent winding up
of a member of the Group and such procedure is discharged
within 30 days after being levied or enforced.
(F) ENFORCEMENT OF SECURITY: The holder of any Security over any
of the assets of Parent or any Material Subsidiary in respect
of Borrowed Monies Indebtedness which equals or exceeds
$25,000,000 (or its equivalent in any other currency) takes
any step to enforce that Security. It will not be a
Termination Event, however, if any procedure is commenced and
such procedure is discharged within 30 days after being levied
or enforced.
(G) ATTACHMENT OR DISTRESS: Any asset of the Parent or any
Material Subsidiary is subject to attachment, sequestration,
execution or any similar process in respect of Borrowed Monies
Indebtedness which equals or exceeds $25,000,000 (or its
equivalent in any other currency).
(H) INABILITY TO PAY DEBTS: Any of the following is true:
(i) The Parent or any Material Subsidiary is unable to
pay its debts as they fall due.
(ii) The value of its assets is less than the amount of
its liabilities (taking into account its contingent
and prospective liabilities).
(iii) The Parent or any Material Subsidiary admits its
inability to pay its debts as and when they fall due
or seeks a composition or arrangement with its
creditors generally or any class of them.
(I) INSOLVENCY EQUIVALENCE: Anything analogous to any of the
events described in paragraphs (E) to (H) occurs in any
jurisdiction.
<PAGE> 61
58
(J) UNLAWFULNESS OR REPUDIATION: It is unlawful for any Obligor to
comply with its payment or other material obligations under
any Finance Document, or any Obligor repudiates any of those
obligations.
(K) CHARGE: The Charge ceases to be in full force and effect
unless released in accordance with this Agreement.
(L) MERGER OR CHANGE OF CONTROL: The Parent merges with any other
person, or one or more persons, acting either individually or
in concert, obtain control (as defined in section 840 of the
Income and Corporation Taxes Act 1988) of it or SCH Holdings
or such other wholly owned Subsidiary of the Parent through
which the Merger is to be effected ceases to be, directly or
indirectly, a wholly owned Subsidiary of the Parent following
the completion of the Offer and Merger.
(M) MATERIAL ADVERSE CHANGE: There is a change in the financial
condition or operations or prospects of the Group as a whole
since 30th April, 1999 which has or will have a Material
Adverse Effect.
(N) LITIGATION: Any Obligor or any Material Subsidiary is involved
in any court or arbitration proceedings or such proceedings
are pending or threatened which in each case, if adversely
determined, would have a Material Adverse Effect.
(O) DIVESTMENT: The STB Consent is not obtained and neither the
Parent nor the Trustees dispose of the common stock of Coach
in accordance with the Voting Trust Agreement and the
regulations of the STB.
However, Coach (or, following completion of the subsequent merger
referred to in the definition of "Merger" in Clause 1.1, SCH Holdings)
and its Subsidiaries will be excluded from Clauses 21.1(B), (C), (D)
and (N) for the period from the date of this Agreement until the date
falling 90 days after the completion of the Acquisition.
21.2 CONSEQUENCES OF A TERMINATION EVENT
If a Termination Event occurs, the Agent may by notice to the
Borrowers' Agent:
(A) cancel the Facilities; or
(B) demand immediate repayment of the Loan,
or both. The Agent agrees to deliver a notice under this sub-Clause if
an Instructing Group instructs the Agent to do so. In the case of
cancellation the Lenders will be under no further obligation to make an
Advance. In the case of a demand for repayment the Borrowers agree to
pay the Lenders in accordance with the notice.
21.3 INDEMNITY
If there is a Termination Event each Borrower agrees to reimburse each
of the Agent and the Lenders for the losses and expenses it incurs, or
will incur, as a result. Clause 11.8 also applies.
21.4 CURRENCY INDEMNITY
This sub-Clause applies where a payment due by an Obligor under or in
connection with a Finance Document is made or is required to be made in
a currency other than the specified currency. To the extent that the
amount
<PAGE> 62
59
received, when converted into the specified currency, is less than the
amount due each Obligor agrees to reimburse the person entitled to the
payment for the difference. For the purposes of the computation of this
amount that person will apply to the amount received a rate of exchange
prevailing on the date of receipt. If, however, that person is unable
to use the amount received to buy the specified currency on the date of
receipt, the rate of exchange prevailing on the first date on which
that person could buy the specified currency will be used instead. The
obligation in this sub-Clause is a separate and independent obligation.
<PAGE> 63
60
PART VII : MISCELLANEOUS
22. THE AGENT AND THE ARRANGERS
22.1 APPOINTMENT
(A) AGENT AND TRUSTEE: Each Lender irrevocably appoints the Agent
to act as its Agent for the purpose of the Finance Documents
and as its Agent and trustee for the purpose of the Charge.
The Agent is not acting as Agent or trustee of any Borrower or
Guarantor under the Finance Documents except for the limited
purpose of signing Substitution Certificates in accordance
with Clause 25.3.
(B) BENEFIT OF SECURITY: The Agent will hold the benefit of the
Charge as trustee for the Lenders in respect of amounts
payable under the Finance Documents.
22.2 AUTHORITY
The Agent is authorised to exercise the rights, powers, discretions and
duties which are specified by the Finance Documents. The Agent may also
act in a manner reasonably incidental to these matters.
22.3 DUTIES
In addition to the obligations of the Agent set out elsewhere in the
Finance Documents the Agent agrees as follows:
(A) NOTICES: The Agent will as soon as reasonably practicable
notify each Lender of the contents of each notice received
from any Obligor under a Finance Document. If the notice
affects only particular Lenders the Agent may elect to notify
only those Lenders, in which case it will do so as soon as
reasonably practicable.
(B) OTHER DOCUMENTS: When any Obligor delivers to the Agent any
other document required to be delivered under a Finance
Document it will supply at least one copy for each Lender, the
Agent will as soon as reasonably practicable provide a copy to
each Lender. Each Borrower agrees to reimburse the Agent for
the costs of preparing any copies required for this purpose.
(C) TERMINATION EVENTS: The Agent will notify each Lender of any
Termination Event or Potential Termination Event. This
obligation will not arise, however, until the Agent receives
express notice with reasonable supporting evidence of the
Termination Event or Potential Termination Event. Until this
time the Agent is entitled to assume that there is no
Termination Event or Potential Termination Event. The Agent is
not required to make inquiries. Information referred to in
Clause 22.11 does not have to be disclosed under this
sub-Clause.
(D) INFORMATION: The Agent will ask any Obligor to deliver to the
Agent any information reasonably requested by a Lender which
the Agent is entitled to request under Clause 18.
<PAGE> 64
61
22.4 POWERS
In addition to the powers of the Agent set out elsewhere in the Finance
Documents the Agent has the following powers:
(A) PROFESSIONAL ADVISERS: The Agent may instruct professional
advisers to provide advice in connection with the Facility.
(B) AUTHORITY FROM INSTRUCTING GROUP: The Agent may take any
action which is not inconsistent with the Finance Documents
and which is authorised by an Instructing Group.
(C) VIEWS OF INSTRUCTING GROUP: In exercising any of its rights,
powers or discretions, the Agent may seek the views of an
Instructing Group. If it exercises those rights, powers or
discretions in accordance with those views the Agent will
incur no liability.
(D) PROCEEDINGS: The Agent may institute legal proceedings against
any Obligor in the name of those Lenders which authorise it to
take those proceedings.
(E) COMPLIANCE WITH LAW: The Agent may take any action necessary
for it to comply with applicable laws.
The Agent is not required to exercise any of these powers and will
incur no liability if it fails to do so. In the context of legal
proceedings the Agent may decline to take any step until it has
received indemnities or Security satisfactory to it.
22.5 RELIANCE
The Agent is entitled to rely upon each of the following:
(A) Advice received from professional advisers.
(B) A certificate of fact received from any Obligor and signed by
an Authorised Person.
(C) Any communication or document believed by the Agent to be
genuine.
The Agent will not be liable for the consequences of relying on any of
these items.
22.6 EXTENT OF AGENT'S DUTIES
(A) NO OTHER DUTIES: The Agent has no obligations or duties other
than those expressly set out in the Finance Documents.
(B) ILLEGALITY AND LIABILITY: The Agent is not obliged to do
anything which is illegal or which may expose it to liability
to any person.
22.7 RESPONSIBILITY OF THE LENDERS
Each Lender is responsible for its own decision to become involved in
the Facility and its decision to take or not take action under the
Facility. It should make its own credit appraisal of the Obligors and
the terms of the Facility. Neither the Agent nor any Arranger makes any
representation that any information provided to a Lender before or
after the date of this Agreement is true. Accordingly each Lender
should take whatever action it believes is
<PAGE> 65
62
necessary to verify that information. In addition neither the Agent nor
any Arranger is responsible for the legality, validity or adequacy of
any Finance Document. Each Lender will satisfy itself on these issues.
22.8 LIMITATION OF LIABILITY
(A) AGENT: The Agent will not be liable for any action or
non-action under or in connection with the Facilities unless
caused by its gross negligence or willful misconduct.
(B) DIRECTORS, EMPLOYEES AND AGENTS: No director, employee or
Agent of the Agent will be liable to a Lender or any Borrower
or Guarantor in relation to the Facility. Each Lender and
Obligor agree not to seek to impose this liability upon them.
22.9 BUSINESS OF THE AGENT
Despite its role as Agent of the Lenders the Agent may:
(A) participate as a Lender in the Facility,
(B) carry on all types of business with any Obligor, and
(C) act as Agent for other groups of Lenders to any Obligor and
other Borrowers.
22.10 INDEMNITY
Each Lender agrees to reimburse the Agent for all losses and expenses
incurred by the Agent as a result of its appointment as Agent or
arising from its activities as Agent. These losses and expenses will
take into account amounts reimbursed to the Agent by any Obligor. The
liability of each Lender under this sub-Clause will be limited to the
share of the total losses and expenses which corresponds to that
Lender's share of the Total Commitments or, if an Advance has been made
and is outstanding, the Loan. If the losses or expenses are
attributable to an activity of the Agent which relates to only some of
the Lenders the Agent may instead notify the Lenders of a different
sharing arrangement. In this case the limit of liability of a Lender
under this sub-Clause will be determined by the Agent. The Lenders are
not liable for losses and expenses arising from the gross negligence or
wilful misconduct of the Agent.
22.11 CONFIDENTIAL INFORMATION
The Agent is not required to disclose to the Lenders any information:
(A) which is not received by it in its capacity as Agent or
trustee or
(B) which it receives, with its consent, on a confidential basis.
22.12 RESIGNATION AND REMOVAL
The Agent may resign by giving notice to the Borrowers' Agent and the
Lenders. The Agent may be removed by notice given by an Instructing
Group to the Agent and the Borrowers' Agent. In either event the
following apply:
(A) APPOINTMENT BY INSTRUCTING GROUP: An Instructing Group may,
after consultation with the Borrowers' Agent, appoint a new
Agent which is a Lender.
<PAGE> 66
63
(B) APPOINTMENT BY THE RESIGNING AGENT: If the Agent has resigned
and an Instructing Group has not appointed a new Agent within
30 days after the resigning Agent's notice, the resigning
Agent may, after consultation with the Borrowers' Agent
appoint a new Agent which is a Lender.
(C) MODE OF APPOINTMENT: A new Agent will be appointed by notice
to the Borrowers' Agent and the Lenders. A new Agent cannot be
appointed without its consent.
(D) TIMING OF APPOINTMENT: If the Agent has resigned, the new
Agent will become Agent at a time agreed between the new Agent
and the resigning Agent. If no time is agreed the new Agent
will become Agent 10 Business Days after the notice referred
to in paragraph (C). Any removal or resignation of the Agent
will not be effective until a new Agent has been appointed and
accepted its appointment.
(E) EFFECT OF APPOINTMENT: Upon a new Agent becoming Agent the
resigning/removed Agent will cease to be Agent. Accordingly it
will be discharged from its obligations and duties as Agent.
It will, however, continue to be able to rely on the terms of
this Clause in respect of all matters relating to the period
of its appointment. The new Agent will assume the role of
Agent. It will have all the rights, powers, discretions and
duties of the Agent provided for in the Finance Documents.
(F) TRANSITION: The resigning/removed Agent and the new Agent
agree to co-operate to ensure an orderly transition. The
resigning/removed Agent agrees to deliver or make available to
the new Agent all records, files and information held by it as
Agent. This obligation will not require the resigning/removed
Agent to disclose any confidential information.
22.13 THE ARRANGERS
The Arrangers have no continuing role in connection with the Facilities
and are not liable in respect of any matter concerning the Facilities.
They are not the agents for any Lender.
23. EVIDENCE, CERTIFICATES AND DETERMINATIONS
23.1 EVIDENCE OF DEBT
The Agent will maintain in its books an account showing all liabilities
accrued and payments made in relation to the Facilities. Details of
amounts outstanding recorded in this account will be evidence of each
Borrower's obligations unless there is shown to be an error.
23.2 CERTIFICATES AND DETERMINATIONS
Any certificate or determination relating to a Finance Document must
contain reasonable detail of the matter being certified or determined.
Certificates and determinations produced by a Lender or the Agent will
be conclusive unless there is an obvious error.
<PAGE> 67
64
24. NOTICES
24.1 NATURE OF NOTICES
No notice delivered under a Finance Document may be withdrawn or
revoked. Each notice delivered by an Obligor must be unconditional. It
must also be signed by an Authorised Person.
24.2 DELIVERY OF NOTICES
A notice under a Finance Document will be effective only if it is in
writing and is received. Faxes are permitted.
24.3 NOTICES THROUGH THE AGENT
Each notice from an Obligor or a Lender will be delivered to the Agent.
The Agent agrees to pass on the details of notices received by it to
the appropriate recipient as soon as reasonably practicable.
24.4 ADDRESS DETAILS
Notices will be delivered to the address of the intended recipient as
set out on the signature page. An Obligor or a Lender may change its
address details by notice to the Agent. The Agent may change its
address details by notice to the Borrowers' Agent and the Lenders.
25. ASSIGNMENT AND NOVATION
25.1 THE BORROWERS
The rights of each Borrower under this Agreement are personal to it.
Accordingly they are not capable of assignment.
25.2 ASSIGNMENT BY A LENDER
A Lender may assign its rights under this Agreement in whole or part.
Neither the Agent nor any Lender will be obliged to treat any person to
whom a Lender makes an assignment as an assignee until that person:
(A) agrees that it will be under the same obligations as it would
have been if it had been a party to the Agreement; and
(B) agrees to pay to the Agent the fee mentioned in Clause
25.3(B).
25.3 NOVATION BY A LENDER
A Lender (the "EXISTING LENDER") may be released from its obligations
and surrender its rights under this Agreement to the extent that
exactly corresponding obligations and rights are assumed by another
Lender (the "NEW LENDER") in accordance with the following:
(A) The Existing Lender will deliver to the Agent a Substitution
Certificate. This must be signed by both the Existing Lender
and the New Lender and be properly completed.
(B) The Existing Lender will also arrange for the payment of a
processing fee to the Agent. The amount of this fee is $1,500
(plus any reasonable expenses) unless the Agent has notified
the Lenders of a different amount which has been agreed with
an Instructing Group.
<PAGE> 68
65
(C) The Agent will sign the Substitution Certificate no later than
5 Business Days after its receipt and the payment of the
processing fee. This signature will be made on behalf of the
other Lenders and the Obligors as well as itself. Each Lender
and each Obligor irrevocably authorise the Agent to sign in
this manner.
(D) The Substitution Certificate will take effect on the date it
specifies. On this date:
(i) The Existing Lender is released from its obligations
and surrenders its rights to the extent described in
the Certificate.
(ii) The New Lender assumes obligations and rights exactly
corresponding to those released and surrendered by
the Existing Lender.
The Commitment of the Existing Lender will be reduced
accordingly and the New Lender will assume a Commitment of the
amount of the corresponding reduction.
(E) Each New Lender will confirm to the Agent and the Borrowers'
Agent that it is a Qualifying Bank.
25.4 DISCLOSURE OF INFORMATION
A Lender may disclose to an assignee, sub-participant, or New Lender,
or to a proposed assignee, sub-participant or New Lender, any
information received by the Lender under or in connection with this
Agreement, including a copy of this Agreement. The Lender may only make
a disclosure under this sub-clause to a person who has entered into a
confidentiality letter in the form set out in at Schedule 8.
26. WAIVERS AND AMENDMENTS
26.1 WRITING REQUIRED
A waiver or amendment of a term of a Finance Document will be effective
only if it is in writing.
26.2 AUTHORITY OF THE AGENT
If authorised by an Instructing Group, the Agent may grant waivers and
agree amendments with the Borrowers. These waivers and amendments will
be granted on behalf of the Lenders and be binding on all of them,
including those which were not part of the Instructing Group, and the
Guarantors. This sub-Clause does not authorise the Agent to grant any
waiver or agree any amendment affecting any of the following:
(A) The amount of the Facility.
(B) The amount or method of calculation of interest, margin or
commitment fee
(C) The manner, currency or timing of repayment of the Loan or of
the payment of any other amount.
(D) The length of any period during which any of the Facilities is
available.
<PAGE> 69
66
(E) The definitions of "Borrowed Monies Indebtedness",
"Instructing Group" and "Special Majority Banks".
(F) The obligations of the Lenders.
(G) Any requirement (including the one in this sub-Clause) that
all the Lenders or a certain proportion of them consent to a
matter or deliver a notice.
(H) Clauses 3, 14 or 26.1.
(I) The Charge.
Waivers or amendments affecting these matters require the consent of
all Lenders.
26.3 EXPENSES
The Parent agrees to reimburse the Agent and each Lender for the
expenses they incur as a result of any proposal made by any Obligor to
waive or amend a term of a Finance Document.
27. MISCELLANEOUS
27.1 EXERCISE OF RIGHTS
If the Agent or a Lender does not exercise a right or power when it is
able to do so this will not prevent it exercising that right or power.
When it does exercise a right or power it may do so again in the same
or a different manner. The Agent's and the Lenders' rights and remedies
under this Agreement are in addition to any other rights and remedies
they may have. Those other rights and remedies are not affected by this
Agreement.
27.2 COUNTERPARTS
There may be several signed copies of this Agreement. There is intended
to be a single Agreement and each signed copy is a counterpart of that
Agreement.
28. LAW
This Agreement is to be governed by and construed in accordance with
English law.
<PAGE> 70
67
SCHEDULE 1 : LENDERS AND COMMITMENTS
<TABLE>
<CAPTION>
Lender (1) (2) (3) (4)
Facility A Facility B Facility C Total of
Commitment Commitment Commitment Commitments
US$ US$ US$ US$
<S> <C> <C> <C> <C>
Credit Suisse 271,111,111.11 203,333,333.33 135,555,555.56 $610,000,000
First Boston
Morgan Guaranty 271,111,111.11 203,333,333.33 135,555,555.56 $610,000,000
Trust Company of
New York
The Royal Bank of 271,111,111.11 203,333,333.33 135,555,555.56 $610,000,000
Scotland plc
The Governor and 186,666,666.67 140,000,000.01 93,333,333.32 $420,000,000
Company of the
Bank of Scotland
---------------- -------------- -------------- ----------------
TOTAL 1,000,000,000.00 750,000,000.00 500,000,000.00 2,250,000,000.00
---------------- -------------- -------------- ----------------
</TABLE>
<PAGE> 71
68
SCHEDULE 2 : GUARANTORS
<TABLE>
<CAPTION>
GUARANTOR COMPANY NUMBER REGISTERED ADDRESS & PLACE OF INCORPORATION
- --------- -------------- -------------------------------------------
<S> <C> <C>
Stagecoach Holdings Plc SC100764 Charlotte House, 20 Charlotte Street,
Perth PH1 5LL, Scotland
East London Bus & Coach Company 2328402 2-4 Clements Road, Ilford, Essex IG1 1BA,
Limited England
Docklands Transit Limited 2212346 2-4 Clements Road, Ilford, Essex IG1 1BA,
England
South East London & Kent Bus 2328595 180 Bromley Road, Catford, London SE6 2XA,
Company Limited England
Stagecoach (South) Limited 1673542 Bus Station, Southgate, Chichester, West
Sussex PO19 2DQ, England
Stagecoach (North West) Limited 123665 Daw Bank, Stockport, Cheshire SK3 0DU,
England
East Midland Motor Services Limited 2199821 New Street, Chesterfield S40 2LQ, England
PSV Claims Bureau Limited 2280592 Frenchwood Avenue, Preston, Lancashire PR1
4LU, England
National Transport Tokens Limited 1076484 Glenfield Park, Blakewater Road,
Blackburn, Lancashire BB1 5QH, England
East Kent Road Car Company Limited 144585 2-4 Clements Road, Ilford, Essex IG1 1BA,
England
Stagecoach East Kent Limited 2087637 2-4 Clements Road, Ilford, Essex IG1 1BA,
England
Grimsby Cleethorpes Transport 1985860 New Street, Chesterfield, Derbyshire S40
Company Limited 2LQ, England
Stagecoach West Limited 2041677 3/4 Bath Street, Cheltenham, Gloucester
GL50 1YE, England
Cambus Holdings Limited 3051451 100 Cowley Road, Cambridge CB4 4DN,
England
Cambus Limited 01822941 100 Cowley Road, Cambridge CB4 4DN,
England
Premier Travel Services Limited 02221348 100 Cowley Road, Cambridge CB4 4DN,
England
The Viscount Bus & Coach Company 02381505 100 Cowley Road, Cambridge CB4 4DN,
Limited England
</TABLE>
<PAGE> 72
69
<TABLE>
<S> <C> <C>
Stagecoach (Scotland) Limited SC97212 Guild Street, Aberdeen AB9 2DR, Scotland
Hyndburn Transport Limited 2000057 Daw Bank, Stockport, Cheshire SK3 0DU,
England
Transit Holdings International 2130392 3/4 Bath Street, Cheltenham, Gloucester
Limited GL50 1YE, England
Stagecoach International Services SC112360 Charlotte House, 20 Charlotte Street,
Limited Perth PH1 5LL, Scotland
Stagecoach Devon Limited 3142135 Belgrave Road, Exeter, Devon EX1 2LB,
England
GM Buses South Holdings Limited 2870260 Daw Bank, Stockport, Cheshire SK3 0DU,
England
Greater Manchester Buses South 2818654 Daw Bank, Stockport, Cheshire SK3 0DU,
Limited England
Burnley & Pendle Transport Company 02004965 Queensgate, Colne Road, Burnley,
Limited Lancashire BB10 1HH, England
Thames Transit Limited 2272113 3/4 Bath Street, Cheltenham, Gloucester
GL50 1YE, England
Transit Advertising Limited 2787490 Church Road, Stockton on Tees, Cleveland
TS18 2HW, England
Tees Valley Limited 2004002 Church Road, Stockton on Tees, Cleveland
TS18 2HW, England
Hartlepool Transport (1993) Limited 2811530 Church Road, Stockton on Tees, Cleveland
TS18 2HW, England
Busways Travel Services Limited 2295227 North Bridge Street, Wheatsheaf,
Sunderland SR5 1AQ, England
Cleveland Transit Limited 2546698 Church Road, Stockton on Tees, Cleveland
TS18 2HW, England
Kingston upon Hull City Transport 1979370 Church Road, Stockton on Tees, Cleveland
Limited TS18 2HW, England
Hartlepool Transport Limited 2004968 Church Road, Stockton on Tees, Cleveland
TS18 2HW, England
</TABLE>
<PAGE> 73
70
SCHEDULE 3 : CONDITIONS PRECEDENT
1. A copy of the Memorandum and Articles of Association of each Borrower.
This copy must be certified by a director or the secretary of that
Borrower to be complete, up-to-date and in full force and effect.
2. A copy of the Memorandum and Articles of Association of each
Guarantor. This copy must be certified by a director or the secretary
of that Guarantor to be complete, up-to-date and in full force and
effect.
3. A copy of a resolution of the board of directors of the Parent
approving the Facilities, authorising the signature and delivery of the
Finance Documents and approving the borrowing of the Total
Commitments. The resolution must also appoint persons to sign notices
on behalf of the Parent under the Finance Documents. The copy must be
certified by a director or the secretary of the Parent to be a true
copy of a duly passed resolution which is in full force and effect.
4. A copy of a resolution of the board of directors of each Guarantor
approving the giving of the Guarantee, and authorising or, as the case
may be, ratifying the signature and delivery of this Agreement. The
resolution must be accompanied by an extract from the minutes of the
meeting at which it was passed. These minutes must show that the
directors considered the giving of the Guarantee to be for the
commercial benefit of the Guarantor. The resolution must also appoint
persons to sign notices on behalf of the Guarantor under this
Agreement. The copy must be certified by a director or the secretary
of the Guarantor to be a true copy of a duly passed resolution which is
in full force and effect.
5. A certificate of a director of each Obligor to the effect that
utilisation of the Facilities in full will not cause that Obligor or
its directors to be in default of any limit on borrowing or giving of
guarantees.
6. Specimen signatures of all persons authorised by the resolutions
referred to above. These signatures must be certified by a director or
the secretary of the appointing body to be genuine.
7. Copies of any government or other public authority clearances,
consents, licences, registrations or authorisations required under
local law for completion of the Acquisition or for the Finance
Documents, certified to be in full force and effect. This does not
include the STB Consent.
8. The Charge, duly executed.
9. Legal opinions from:-
(a) Shepherd & Wedderburn, Scottish legal advisers to certain of the
Borrowers and Guarantors.
(b) Simpson Thacher & Bartlett, United States legal advisers to certain
of the Borrowers and Guarantors.
(c) Oppenheimer Wolff & Donnelly United States regulatory legal advisers
to certain of the Borrowers and Guarantors.
(d) Delaware legal advisers to certain of the Borrowers and Guarantors,
reasonably satisfactory to the Agent.
<PAGE> 74
71
(e) United States legal advisers to the Trustees, or a certificate of an
officer of the Trustees reasonably satisfactory to the Agent.
(f) Slaughter and May, English legal advisers to the Arrangers.
(g) Cravath, Swaine & Moore, United States legal advisers to the
Arrangers.
10. Copies, certified by a director or the secretary of the Parent to be
true copies, of resolutions passed at an extraordinary general meeting
of the Parent approving, amongst other things, the Acquisition, an
amendment to the present limit on the borrowing powers of the Parent
and an increase in the authorised share capital of the Parent.
11. Evidence that there has been validly tendered to SCH Holdings or such
other wholly owned Subsidiary of the Parent through which the Merger is
to be effected sufficient common stock of Coach to enable the Merger to
be completed without the requirement of any action by any other Coach
security holder, that all conditions to the purchase set forth in the
Offer Documents have been satisfied without waiver or amendment (except
with the prior written consent of the Arrangers or following
syndication the Special Majority Banks) and that SCH Holdings has
accepted for purchase all tendered common stock of Coach.
12. An extract from the minutes of a meeting of the Board of Directors the
Parent approving the Press Release.
13. Evidence that the STB has approved the terms of the Voting Trusts.
14. The Voting Trust Agreement duly executed in a form acceptable to an
Instructing Group.
15. A copy of all Offer Documents which, in the case of those sent after
the date of this Agreement, will be in a form acceptable to an
Instructing Group together with a certificate from a director of the
Parent confirming that there have been no amendments or waivers in
relation to the Offer Documents.
16. A letter from Oppenheimer Wolff & Donnelly to the Parent, in a form
acceptable to an Instructing Group, assessing the likelihood of
obtaining unconditional STB Consent to the Merger.
17. Evidence that the Borrowers are in compliance with the margin
requirements prescribed by the Board of Governors of the Federal
Reserve System pursuant to Regulations T, U and X under Section 7 of
the Securities and Exchange Act of 1934, including execution of a Form
U1.
<PAGE> 75
72
SCHEDULE 4 : FORM OF NOTICE FOR AN ADVANCE
To: [name of Agent]
Attention: [ ]
From: [Borrower]
Date: [ ]
Dear Sirs,
$2,250,000,000 CREDIT FACILITIES UNDER LOAN AGREEMENT DATED [ 1999]
1. We refer to the above Agreement between yourselves as Agent, us as
Borrower and various other parties (the "Agreement"). Terms defined in
the Agreement have the same meaning in this notice.
2. We would like to draw an Advance under the Agreement as follows:
(a) Facility .........................
(b) Currency .......................
(c) Amount .........................
(d) Advance Date ...................
(e) Term/Interest Period ...........................
3. Please pay the above Advance to account number [ ] with [ ]
in favour of ourselves.
4. We confirm that, today and on the Advance Date:
(a) the representations deemed repeated in Clause 17.2 of the
Agreement are and will be true, and
(b) there is and will be no outstanding Termination Event or
Potential Termination Event.
Yours faithfully,
for and on behalf of
[ ]
<PAGE> 76
73
SCHEDULE 5 : COSTS RATE
The Mandatory Costs Rate is an addition to the interest rate on the Advance
to compensate the Lenders for the cost attributable to the Advance resulting
from the imposition from time to time under or pursuant to the Bank of
England Act 1998 (the "ACT") and/or by the Bank of England and/or the
Financial Services Authority (the "FSA") (or other United Kingdom
governmental authorities or agencies) of a requirement to place
non-interest-bearing cash ratio deposits or Special Deposits (whether
interest bearing or not) with the Bank of England and/or pay fees to the FSA
calculated by reference to liabilities used to fund the Advance.
The Mandatory Costs Rate will be the rate determined by the Agent to be equal
to the arithmetic mean (and rounded upward, if necessary, to four decimal
places) of the respective rates notified by each of the Lenders to the Agent
as the rate resulting from the application (as appropriate) of the following
formulae:
in relation to sterling Advances giving rise to a requirement to make
the deposits referred to above: XL + S(L - D) + F x 0.01
------------------------
100 - (X + S)
in relation to other Advances: F x 0.01
--------
300
where, in each case, on the day of application of a formula:
X is the percentage of Eligible Liabilities (in excess of any stated
minimum) by reference to which the Agent is required under or
pursuant to the Act to maintain cash ratio deposits with the Bank
of England;
L is the BBA sterling LIBOR rate quoted at or about 11.00 a.m.
(London time) on Telerate (now at page 3750) on that day;
F the rate of charge equal to the average of the respective rates of
charge notified to the Agent by each Lender as being payable by
that Lender to the FSA pursuant to paragraph 2.02 or 2.03, as the
case may be, of the Fees Regulations (but where for this purpose,
the figure at paragraph 2.02b or 2.03b, as the case may be, shall
be deemed to be zero) and expressed in pounds per pound sterling 1,000,000
of the Fee Base of such Lender.
S is the level of interest-bearing Special Deposits, expressed as a
percentage of Eligible Liabilities, which the Agent is required to
maintain by the Bank of England (or other United Kingdom
governmental authorities or agencies); and
D is the percentage rate per annum payable by the Bank of England to
the Agent on Special Deposits.
(X, L, S and D are to be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from L shall be
counted as zero.)
If any Lender fails to notify any such rate to the Agent, the Mandatory Costs
Rate shall be determined on the basis of the rate(s) notified to the Agent by
the remaining Lender(s).
<PAGE> 77
74
The Mandatory Costs Rate attributable to an Advance or other sum for any
period shall be calculated at or about 11.00 a.m. (London time) on the first
day of such period for the duration of such period.
The determination of the Mandatory Costs Rate in relation to any period
shall, in the absence of manifest error, be conclusive and binding on the
parties hereto.
If there is any change in circumstance (including the imposition of
alternative or additional requirements) which in the reasonable opinion of
the Agent renders or will render the above formulae (or any element thereof,
or any defined term used therein) inappropriate or inapplicable, the Agent,
following consultation with the Borrowers' Agent shall be entitled to very
the same. Any such variation shall, in the absence of error, be conclusive
and binding on all parties and shall apply from the date specified in such
notice.
For the purposes of this Schedule:
The terms ELIGIBLE LIABILITIES and SPECIAL DEPOSITS shall bear the
meanings ascribed to them under or pursuant to the Act or by the Bank
of England (as may be appropriate), on the day of the application of
the formula.
FEE BASE has the meaning ascribed to it for the purposes of, and shall
be calculated in accordance with, the Fees Regulations.
FEES REGULATIONS means, as appropriate, either:
(a) the Banking Supervision (Fees) Regulations 1999; or
(b) such regulations as from time to time may be in force, relating
to the payment of fees for banking supervision in respect of
periods subsequent to 31 March 2000.
Any reference to a provision of any statute, directive, order or
regulation herein is a reference to that provision as amended or
re-enacted from time to time.
To the extent possible each Lender will use all reasonable efforts to fund
its participation in any sterling Advance in such a way as to ensure that the
sterling Advance will not constitute Eligible Liabilities for the purposes of
the Act. No Lender will, however, be obliged to do anything which in its
reasonable opinion would or might have an adverse economic effect on it or
which would be or might be contrary to general banking practice.
<PAGE> 78
75
SCHEDULE 6 : FORM OF SUBSTITUTION CERTIFICATE
STAGECOACH HOLDINGS PLC
$2,250,000,000 FACILITIES UNDER LOAN AGREEMENT DATED [ 1999]
SUBSTITUTION CERTIFICATE
To: [Name and address of the Agent]
This certificate is delivered to you for the purposes of Clause 25.3 of the
above Agreement (the "Agreement") under which you are currently Agent. Terms
defined in the Agreement have the same meaning in this Certificate.
Name of Existing Lender: ____________________________
Name of New Lender: ____________________________
Details of substitution:
[Insert details distinguishing between undrawn Commitments and
participation in the Loan and other amounts due under the Facilities
and Facility to be transferred]
Date of effect of substitution: ____________________
The substitution described above will take effect in accordance with Clause
25.3 of the Agreement.
The Existing Lender and the New Lender agree as follows:
1. The New Lender is responsible for its own decision to become involved
in the Facilities. It should make its own credit appraisal of the
Obligors and the terms of the Facilities. Neither the Existing Lender
nor the Agent makes any representation that any information provided to
the New Lender before or after the date of this Certificate is true.
Accordingly the New Lender should take whatever action it believes is
necessary to verify that information. In addition neither the Existing
Lender nor the Agent is responsible for the legality, validity or
adequacy of the Finance Documents. The New Lender will satisfy itself
on these issues.
2. There is no obligation on the Existing Lender to accept any novation or
assignment back of the rights and obligations referred to in this
certificate. The Existing Lender accepts no obligation to indemnify
the New Lender for any losses incurred as a result of a failure by
Obligors to perform its obligations or for any other losses. The New
Lender acknowledges this is the case.
<PAGE> 79
76
This certificate is to be governed by and construed in accordance with
English law.
<TABLE>
<CAPTION>
Existing Lender New Lender
- --------------- ----------
<S> <C>
[Name of Existing Lender] [Name of New Lender]
By: By:
</TABLE>
Agent (on behalf of the other Lenders, the Borrowers, the Guarantors and
itself)
[Name of Agent]
By:
Date:
Notice details for New Lender
(if it is not already a
Lender):
Address:
Fax Number:
Telephone Number:
Attention:
Payment Instructions:
<PAGE> 80
77
SCHEDULE 7 : MARGIN
The Margin shall be as follows.
(A) On any day when any part of the Facility A Loan is outstanding:
(1) and both (a) and (b) are true : 1.25 per cent.
(2) and (a) is true but not (b) : 1.125 per cent.
(3) and (b) is true but not (a) : 1.25 per cent.
(4) and neither (a) nor (b) is true : 1.00 per cent.
(a) The outstanding amount of the Facility C Loan is greater than
$250,000,000, taking any Facility C Advance denominated in an
Optional Currency at its Original Dollar Amount.
(b) The day in question is later than 31st December 1999 and the
Parent has not issued the New Equity.
(B) On any day when no part of the Facility A Loan is outstanding:
The rate appearing in the following table next to the ratio of Total
Debt to EBITDA (as stated in the Applicable Certificate) or until
delivery of an Applicable Certificate the rate calculated in accordance
with (A) above:
<TABLE>
<CAPTION>
Total Debt to EBITDA Margin
-------------------- ------
<S> <C>
Greater than 4.00 1.125% p.a.
Greater than 3.50 to 4.00 1.000% p.a.
Greater than 3.00 to 3.50 0.875% p.a.
3.00 or less 0.750% p.a.
</TABLE>
"APPLICABLE CERTIFICATE" means the certificate most recently delivered
to the Agent under Clause 18.1(iii).
"TOTAL DEBT" and "EBITDA" have the meaning given to them in Clause 19.
Total Debt will be at the date to which the Applicable Certificate
applies. EBITDA will be the figure for the 12 month period ending on
the date to which the Applicable Certificate applies and will be
determined in accordance with Clause 19.
(C) If, however, the Margin would change after the first day of an Interest
Period for an Advance under (A) or (B), the Margin for that Advance for
that Interest Period will remain the same as the Margin on the first
day of that Interest Period.
<PAGE> 81
78
SCHEDULE 8 : FORM OF CONFIDENTIALITY LETTER
CONFIDENTIALITY AGREEMENT
[Letterheading of bank]
To: Stagecoach Holdings PLC
[Name of bank] [Date]
Dear Sirs,
US$2,250,000,000 FACILITIES DATED [ ] JUNE, 1999
(THE "FACILITY") ARRANGED BY CREDIT SUISSE FIRST BOSTON,
J.P. MORGAN SECURITIES LTD., THE ROYAL BANK OF SCOTLAND PLC AND THE GOVERNOR
AND COMPANY OF THE BANK OF SCOTLAND (TOGETHER "THE ARRANGERS")
We,_______________, (the "BANK"), refer to the Facility, whereby, upon our
signature of this letter you and/or the Arrangers may give us certain
information and documents relating to the Facility (together, the
"INFORMATION"). In this letter the "ARRANGER GROUP" means the Arrangers and
their respective Subsidiaries and Holding Companies (each as defined in the
Companies Act 1985) together with each such person's affiliates.
In consideration of the disclosure of Information by you or any
representative of the Arranger Group as follows:
(a) We undertake to hold in strict confidence all Information disclosed to
us by you or the Arranger Group and to use the Information for the sole
purpose of evaluating and participating in the Facility. Despite this
obligation, we may disclose Information:
(i) to our advisors;
(ii) which, except through a failure by us or any of our advisers to
comply with an undertaking as to confidentiality, is in the public
domain at the time the Information is disclosed to us or becomes
thereafter in the public domain; or
(iii) to bank supervisory authorities, statutory auditors or examining
authorities, if we are obliged by law or regulation to disclose the
Information to them; or
(iv) which is already in our possession as at the date of this
undertaking, except as a breach of confidentiality undertaking; or
(v) which is independently developed or generated by us from other
sources; or
(vi) which is provided to us by any third party who, to the best of our
knowledge, was free of any restriction as to its use or disclosure
at the time of such provision; or
(vii) where required by law.
<PAGE> 82
79
(b) We shall ensure that (i) our advisors are informed of the confidential
nature of the Information and of the contents of this Confidentiality
Agreement, and (ii) such persons are bound, contractually, statutorily
or otherwise, by obligations similar or analogous to those contained in
this Confidentiality Agreement.
(c) At your request, we shall provide you with details of all advisors to
whom any Information is, or is to be, disclosed.
(d) If we choose not to participate in the Facility we will remain bound by
the terms of this letter for a period of twenty four months from the
date of receipt of the relevant Information.
This letter is governed by, and is construed in accordance with, English law.
_______________________________________________
For and on behalf of
Date:_________________________________
By:___________________________________
Title:________________________________
<PAGE> 83
80
SCHEDULE 9 : FORM OF DESIGNATION AGREEMENT
DESIGNATION AGREEMENT
DATE :
PARTIES
1. [ ], a company incorporated in [ ], of [address]
(the "New Borrower")
2. STAGECOACH HOLDINGS PLC, a company (registered number SC100764), of 20
Charlotte Street, Perth PH1 5LL (the "PARENT"), on its own behalf and
on behalf of each of the existing Borrowers and each of the Guarantors
(both as defined in the Loan Agreement referred to below)
3. MORGAN GUARANTY TRUST COMPANY OF NEW YORK (the "AGENT"), on its own
behalf and on behalf of each of the Lenders (each as defined in the
Loan Agreement)
BACKGROUND
A Loan Agreement (the "LOAN AGREEMENT") was made on [22nd] June 1999 between
(1) the Parent, (2) the Guarantors named in the Loan Agreement, (3) the
lenders named in the Loan Agreement, (4) Credit Suisse First Boston, J.P.
Morgan Securities Ltd., The Royal Bank of Scotland PLC and The Governor and
Company of the Bank of Scotland as Arrangers and (5) the Agent. Under the
terms of the Loan Agreement the Lenders agreed to provide to the Borrowers a
$2,250,000,000 multi-currency term and revolving credit facilities.
Under Clause 3.6 of the Loan Agreement the Parent has requested that the New
Borrower be admitted as a Borrower. All the Lenders have agreed to this
request.
The parties agree as follows:
1. INTERPRETATION
Unless a contrary intention is indicated, words and expressions defined
in the Loan Agreement will have the same meanings respectively when
used in this Agreement. References to the Loan Agreement are to that
agreement as amended or supplemented.
2. CONDITIONS PRECEDENT
Clause 3 will take effect when the Agent has received all the items
listed in the Schedule in a form satisfactory to the Agent.
3. INCORPORATION OF ADDITIONAL BORROWER
When this Clause takes effect the New Borrower will:
(h) become a party to the Loan Agreement as if it had been an original
signatory as a borrower; and
(i) become a "Borrower" within the definition in Clause 1.1 of the Loan
Agreement.
<PAGE> 84
81
The New Borrower, and each of the Parent, the existing Borrowers, the
Guarantors, the Lenders and the Agent agrees to be bound by the Loan
Agreement on this basis. The Parent also confirms, on behalf of the
Guarantors, that, as a result, the Guarantee applies to all obligations
of the New Borrower under the Loan Agreement.
4. REPRESENTATIONS BY THE NEW BORROWER
The New Borrower confirms in respect of itself that each of the
following is true:
(A) It is a Subsidiary of the Parent.
(B) The representations in Clause 17.1(A), (B), (C), (D), (E), (G),
(T) and (U) of the Loan Agreement, if stated at the date of this
Agreement with reference to the New Borrower and the facts
subsisting on the date of this Agreement, are true.
5. CONSTRUCTION
This Agreement and the Loan Agreement will be read and construed as one
document. References in the Loan Agreement to the Loan Agreement
(however expressed) will be read and construed as references to the
Loan Agreement and this Agreement.
6. NOTICES
The address details of the New Borrower for the purpose of Clause 24.4
are as follows:
[ ]
Fax number: [ ]
Attention: [ ]
7. LAW
This Agreement shall be governed by and construed in accordance with
English law.
<PAGE> 85
82
THE SCHEDULE
1. A copy of the Memorandum and Articles of Association or other
constitutional documents of the New Borrower. This copy must be
certified by a director, secretary or appropriate officer of the New
Borrower to be complete, up-to-date and in full force and effect.
2. A copy of a resolution of the board of directors or partners of the New
Borrower approving the Designation Agreement and authorising the
signature and delivery of the Designation Agreement. The resolution
must also appoint persons to sign notices on behalf of the New Borrower
under the Finance Documents. The copy must be certified by a director
or the secretary or appropriate officer of the New Borrower to be a
true copy of a duly passed resolution which is in full force and
effect.
3. A certificate of a director or equivalent of the New Borrower to the
effect that utilisation of the Facilities in full will not cause the
New Borrower or, if applicable, its directors to be in default of any
limit on borrowing or giving of guarantees.
4. Specimen signatures of all persons authorised by the resolutions
referred to above. These signatures must be certified by a director or
the secretary or appropriate officer of the appointing body to be
genuine.
5. Copies of any government or other public authority clearances,
consents, licenses, registrations or authorisations required under
local law for the Designation Agreement or for the Finance Documents,
certified to be in full force and effect.
6. Legal opinion(s) in a form satisfactory to the Agent.
7. Such other items as the Agent may reasonably require.
<PAGE> 86
83
[New Borrower]
By:
STAGECOACH HOLDINGS PLC
By:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By:
<PAGE> 87
84
SIGNATURES
BORROWERS
STAGECOACH HOLDINGS PLC
Address: Charlotte House, 20 Charlotte Street, Perth PH1 5LL, Scotland
Fax Number: 01738 643 648
Attention: Finance Director
By: /s/
--------------------------------
GUARANTORS
Signed for and on behalf of
all the Guarantors listed below
By: /s/
--------------------------------
STAGECOACH HOLDINGS PLC
Address: Charlotte House, 20 Charlotte Street, Perth PH1 5LL, Scotland
EAST LONDON BUS & COACH COMPANY LIMITED
Address: 2-4 Clements Road, Ilford, Essex IG1 1BA, England
DOCKLANDS TRANSIT LIMITED
Address: 2-4 Clements Road, Ilford, Essex IG1 1BA, England
SOUTH EAST LONDON & KENT BUS COMPANY LIMITED
Address: 180 Bromley Road, Catford, London SE6 2XA, England
STAGECOACH (SOUTH) LIMITED
Address: Bus Station, Southgate, Chichester, West Sussex PO19 2DQ,
England
STAGECOACH (NORTH WEST) LIMITED
Address: Daw Bank, Stockport, Cheshire SK3 0DU, England
EAST MIDLAND MOTOR SERVICES LIMITED
Address: New Street, Chesterfield S40 2LQ, England
PSV CLAIMS BUREAU LIMITED
Address: Frenchwood Avenue, Preston, Lancashire PR1 4LU, England
<PAGE> 88
85
NATIONAL TRANSPORT TOKENS LIMITED
Address: Glenfield Park, Blakewater Road, Blackburn, Lancashire BB1
5QH, England
EAST KENT ROAD CAR COMPANY LIMITED
Address: 2-4 Clements Road, Ilford, Essex IG1 1BA, England
STAGECOACH EAST KENT LIMITED
Address: 2-4 Clements Road, Ilford, Essex IG1 1BA, England
GRIMSBY CLEETHORPES TRANSPORT COMPANY LIMITED
Address: New Street, Chesterfield, Derbyshire SQ4 2LQ, England
STAGECOACH WEST LIMITED
Address: 3-4 Bath Street, Cheltenham, Gloucester GL50 1YE, England
CAMBUS HOLDINGS LIMITED
Address: 100 Cowley Road, Cambridge CB4 4DN, England
CAMBUS LIMITED
Address: 100 Cowley Road, Cambridge CB4 4DN, England
PREMIER TRAVEL SERVICES LIMITED
Address: 100 Cowley Road, Cambridge CB4 4DN, England
THE VISCOUNT BUS & COACH COMPANY LIMITED
Address: 100 Cowley Road, Cambridge CB4 4DN, England
STAGECOACH (SCOTLAND) LIMITED
Address: Guild Street, Aberdeen AB9 2DR, Scotland
HYNDBURN TRANSPORT LIMITED
Address: Daw Bank, Stockport, Cheshire SK3 0DU, England
TRANSIT HOLDINGS INTERNATIONAL LIMITED
Address: 3-4 Bath Street, Cheltenham, Gloucester GL50 1YE, England
STAGECOACH INTERNATIONAL SERVICES LIMITED
Address: Charlotte House, 20 Charlotte Street, Perth PH1 5LL,
Scotland
<PAGE> 89
86
STAGECOACH DEVON LIMITED
Address: Belgrave Road, Exeter, Devon EX1 2LB, England
GM BUSES SOUTH HOLDINGS LIMITED
Address: Daw Bank, Stockport, Cheshire SK3 0DU, England
GREATER MANCHESTER BUSES SOUTH LIMITED
Address: Daw Bank, Stockport, Cheshire SK3 0DU, England
BURNLEY & PENDLE TRANSPORT COMPANY LIMITED
Address: Queensgate, Colne Road, Burnley, Lancashire BB10 1HH,
England
THAMES TRANSIT LIMITED
Address: 3-4 Bath Street, Cheltenham, Gloucestershire GL50 1YE,
England
TRANSIT ADVERTISING LIMITED
Address: Church Road, Stockton on Tees, Cleveland TS18 2HW, England
TEES VALLEY LIMITED
Address: Church Road, Stockton on Tees, Cleveland TS18 2HW, England
HARTLEPOOL TRANSPORT (1993) LIMITED
Address: Church Road, Stockton on Tees, Cleveland TS18 2HW, England
BUSWAYS TRAVEL SERVICES LIMITED
Address: North Bridge Street, Wheatsheaf, Sunderland SR5 1AQ, England
CLEVELAND TRANSIT LIMITED
Address: Church Road, Stockton on Tees, Cleveland TS18 2HW, England
KINGSTON UPON HULL CITY TRANSPORT LIMITED
Address: Church Road, Stockton on Tees, Cleveland TS18 2HW, England
HARTLEPOOL TRANSPORT LIMITED
Address: Church Road, Stockton on Tees, Cleveland TS18 2HW, England
<PAGE> 90
87
ARRANGERS
CREDIT SUISSE FIRST BOSTON
By: /s/
J.P. MORGAN SECURITIES LTD.
By: /s/
THE ROYAL BANK OF SCOTLAND PLC
By: /s/
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: /s/
<PAGE> 91
88
LENDERS
CREDIT SUISSE FIRST BOSTON
Address: One Cabot Square, London E14 42J, England
Fax Number: 0171 888 8398
Attention: Client Services Agent Unit
By: /s/
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
Address: 60 Victoria Embankment, London EC4 0JP, England
Fax Number: 0171 325 8190
Attention: London Loans Middle Office
By: /s/
THE ROYAL BANK OF SCOTLAND PLC
Address: Drummond House, PO Box 1727, 1 Redheughs Avenue, Edinburgh EH12
9JN, Scotland
Fax Number: 0131 317 1003
Attention: Sandy MacKenzie
By: /s/
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
Address: Uberior House, 61 Grassmarket, Edinburgh EH1 2JF, Scotland
Fax Number: 0131 243 5615
Attention: Director of Syndications
By: /s/
AGENT
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
Address: 60 Victoria Embankment, London EC4 0JP, England
Fax Number: 0171 325 8190
Attention: London Loans Middle Office
By: /s/
