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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-1
(AMENDMENT NO. 2)
TENDER OFFER STATEMENT PURSUANT TO
SECTION 14()(1) OF THE SECURITIES EXCHANGE ACT OF 1934
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MARK VII, INC.
(Name of Subject Company)
MSAS ACQUISITION CORPORATION
MSAS GLOBAL LOGISTICS INC.
OCEAN GROUP PLC
(Bidders)
Common Stock, $0.05 par value per share
(Title of Class of Securities)
570414102
(CUSIP Number of Class of Securities)
John M. Allan
Chief Executive
Ocean Group plc
Ocean House, The Ring
Bracknell, Berkshire RG12 1AW
United Kingdom
44-1344-302-000
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Bidder)
Copies To:
Steven R. Finley
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
(212) 351-4000
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<PAGE>
This Amendment No. 2 amends the Tender Offer Statement on Schedule 14D-1
initially filed on July 29, 1999 (as amended, this "Statement") by MSAS
Acquisition Corporation, a Delaware corporation ("Purchaser") and a wholly owned
subsidiary of MSAS Global Logistics Inc., a New York corporation ("Parent"),
which is an indirect wholly owned subsidiary of Ocean Group plc, a public
limited company organized under the laws of England and Wales ("Ocean Group"),
relating to Purchaser's offer to purchase all outstanding shares of common
stock, $0.05 par value per share (the "Shares"), of Mark VII, Inc., a Delaware
corporation (the "Company"), at a price of $23.00 per Share, net to the
tendering stockholder in cash without interest thereon, upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated July 29,
1999 (the "Offer to Purchase"), and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively together
constitute the "Offer").
Item 11. Material to be Filed as Exhibits
Item 11 is hereby amended by adding the following exhibit:
(b)(2) Credit Agreement, dated as of August 20, 1999, by and among Ocean
Group plc as Guarantor, Deutsche Bank AG London as Bank, Deutsche
Bank AG London as Agent, and Deutsche Bank AG London as Arranger,
relating to a multicurrency revolving loan facility of
(pound)175,000,000
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: August 25, 1999
MSAS ACQUISITION CORPORATION
By: /s/ STUART A. YOUNG
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Name: Stuart A. Young
Title: Secretary and Treasurer
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: August 25, 1999
MSAS GLOBAL LOGISTICS INC.
By: /s/ MICK P. FOUNTAIN
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Name: Mick P. Fountain
Title: Regional Chief Executive
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: August 25, 1999
OCEAN GROUP PLC
By: /s/ JOHN M. ALLAN
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Name: John M. Allan
Title: Chief Executive
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EXHIBIT INDEX
Exhibit Sequentially
Number Exhibit Index Numbered Page
- ------ ------------- -------------
(b)(2) Credit Agreement, dated as of August 20, 1999, by and
among Ocean Group plc as Guarantor, Deutsche Bank AG
London as Bank, Deutsche Bank AG London as Agent, and
Deutsche Bank AG London as Arranger, relating to a
multicurrency revolving loan facility of
(pound)175,000,000....................................
<PAGE>
DATED AS OF 20 AUGUST 1999
OCEAN GROUP PLC
and
THE BANKS
and
DEUTSCHE BANK AG LONDON
as Agent
and
DEUTSCHE BANK AG LONDON
as Arranger
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CREDIT AGREEMENT
relating to a
multicurrency revolving loan facility
of (pound)175,000,000
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WILDE SAPTE
1 Fleet Place
London EC4M 7WS
Tel. 0171 246 7000
Fax. 0171 246 7777
Ref. ECF/JXJ/161688/BF0389086.08
<PAGE>
TABLE OF CONTENTS
Clause Heading Page Number
1. DEFINITIONS AND INTERPRETATION........................................1
1.1 Definitions...........................................................1
1.2 Headings.............................................................11
1.3 Interpretation.......................................................12
2. FACILITY.............................................................13
2.1 Facility.............................................................13
2.2 Obligations several..................................................13
2.3 Rights several.......................................................13
2.4 Additional Borrowers.................................................13
3. PURPOSE..............................................................14
3.1 Purpose..............................................................14
3.2 No monitoring........................................................14
4. CONDITIONS PRECEDENT.................................................14
5. DRAWDOWN.............................................................14
5.1 Commitment Period....................................................14
5.2 Conditions to each Advance...........................................14
5.3 Drawdown Notice......................................................15
5.4 Limitations on Advances..............................................15
5.5 Notification to Banks................................................16
5.6 Participations.......................................................16
6. ALTERNATIVE CURRENCIES...............................................16
6.1 Requests for Alternative Currency....................................16
6.2 Availability.........................................................16
6.3 Notification to Banks................................................16
6.4 No Alternative Currency..............................................16
7. INTEREST.............................................................17
7.1 Interest rate........................................................17
7.2 Interest Periods.....................................................17
7.3 Default interest.....................................................17
7.4 Calculation and payment of interest..................................18
7.5 Agent's determination................................................18
8. REPAYMENT, PREPAYMENT AND CANCELLATION...............................18
8.1 Repayment............................................................18
8.2 Mandatory prepayment/cancellation on change of control...............18
8.3 Cancellation on disposals............................................19
8.4 Prepayment...........................................................20
8.5 Cancellation.........................................................20
9. CHANGES IN CIRCUMSTANCES.............................................21
9.1 Illegality...........................................................21
9.2 Increased Costs......................................................21
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9.3 Market disruption....................................................22
9.4 Mitigation...........................................................23
9.5 Certificates.........................................................23
10. PAYMENTS.............................................................24
10.1 Place and time.......................................................24
10.2 Funds ..............................................................24
10.3 Distribution.........................................................24
10.4 Business Days........................................................24
10.5 Currency.............................................................24
10.6 Accounts as evidence.................................................25
10.7 Partial payments.....................................................25
10.8 Set-off and counterclaim.............................................25
10.9 Grossing-up..........................................................25
11. GUARANTEE............................................................28
11.1 Guarantee............................................................28
11.2. Guarantee Provisions.................................................28
12. REPRESENTATIONS AND WARRANTIES.......................................30
12.1 Representations and warranties.......................................30
12.2 Repetition...........................................................33
13. UNDERTAKINGS.........................................................33
13.1 Information undertakings.............................................33
13.2 Positive undertakings................................................34
13.3 Negative undertakings................................................36
13.4 Financial undertakings...............................................37
14. DEFAULT..............................................................38
14.1 Default..............................................................38
14.2 Acceleration.........................................................40
15. SET-OFF..............................................................40
16. PRO RATA SHARING.....................................................40
16.1 Redistribution.......................................................40
16.2 Legal proceedings....................................................41
16.3 Reversal of redistribution...........................................41
16.4 Information..........................................................41
17. THE AGENT AND THE BANKS..............................................41
17.1 Appointment and duties...............................................41
17.2 Payments.............................................................42
17.3 Default..............................................................43
17.4 Reliance.............................................................43
17.5 Legal proceedings....................................................43
17.6 No liability.........................................................43
17.7 Credit decisions.....................................................44
17.8 Information..........................................................44
17.9 Relationship with Banks..............................................44
17.10 Agent's position.....................................................44
17.11 Indemnity............................................................45
17.12 Resignation..........................................................45
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17.13 Change of office.....................................................46
18. FEES AND EXPENSES....................................................46
18.1 Expenses.............................................................46
18.2 Arrangement and agency fees..........................................46
18.3 Commitment fee.......................................................46
18.4 Utilisation Fee......................................................47
18.5 Documentary Taxes indemnity..........................................47
18.6 VAT ..............................................................47
18.7 Indemnity payments...................................................47
19. AMENDMENTS AND WAIVERS...............................................48
19.1 Majority Banks.......................................................48
19.2 All Banks............................................................48
19.3 No implied waivers; remedies cumulative..............................48
19.4 Euro conventions.....................................................48
19.5 Round amounts........................................................49
20. MISCELLANEOUS........................................................49
20.1 Severance............................................................49
20.2 Counterparts.........................................................49
21. NOTICES..............................................................49
21.1 Method...............................................................49
21.2 Delivery.............................................................49
21.3 Addresses............................................................49
21.4 Deemed receipt.......................................................50
21.5 Notices through Agent................................................50
22. ASSIGNMENTS AND TRANSFERS............................................50
22.1 Benefit of Agreement.................................................50
22.2 Assignments and transfers by Borrowers...............................51
22.3 Assignments by Banks.................................................51
22.4 Transfers by Banks...................................................51
22.5 Conditions to assignments and transfers..............................52
22.6 Consequences of transfer.............................................52
22.7 Disclosure of information............................................52
23. INDEMNITIES..........................................................52
23.1 Breakage costs indemnity.............................................52
23.2 Currency indemnity...................................................53
23.3 General..............................................................53
24. LAW AND JURISDICTION.................................................53
24.1 Law ..............................................................53
24.2 Jurisdiction.........................................................53
24.3 Agent for service....................................................54
SCHEDULE 1 THE BANKS........................................................55
SCHEDULE 2 CONDITIONS PRECEDENT.............................................56
SCHEDULE 3 DRAWDOWN NOTICE..................................................57
SCHEDULE 4 MANDATORY COST RATE..............................................58
SCHEDULE 5 FORM OF TRANSFER CERTIFICATE.....................................60
SCHEDULE 6 FORM OF DEED OF ACCESSION........................................64
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SCHEDULE 7 PERMITTED INDEBTEDNESS...........................................66
SCHEDULE 8 FORM OF GUARANTEE................................................68
<PAGE>
THIS AGREEMENT is made on 20 August 1999
BY:
(1) OCEAN GROUP PLC, a company incorporated in England and Wales with
registered number 73975 (the "Guarantor");
(2) THE BANKS listed in Schedule 1;
(3) DEUTSCHE BANK AG LONDON of 6 Bishopsgate, London EC2N 4DA as the Agent
(as that term is defined below); and
(4) DEUTSCHE BANK AG LONDON of 6 Bishopsgate, London EC2N 4DA as arranger
of the facility referred to below (in such capacity the "Arranger").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Accounts" means the audited consolidated accounts (including all
additional information and notes to the accounts) of each Obligor
together with the relevant directors' report and auditors' report.
"Advance" means an advance made or to be made to a Borrower under the
Facility or, as the case may be, the outstanding principal amount of
any such advance.
"Agent" means Deutsche Bank AG London in its capacity as agent for the
Banks and each successor agent appointed in accordance with Clause
17.12.
"Alternative Currency" means US Dollars and any currency (other than
Sterling) which is freely convertible into Sterling, freely
transferable and readily available in the London interbank market.
"Auditors" means PricewaterhouseCoopers or any other firm of chartered
accountants of internationally recognised standing appointed as
auditors of the Guarantor.
"Available Commitment" means, in relation to a Bank, its Commitment
less the Original Sterling Amount of its Participations in all
outstanding Advances.
"Available Facility" means the aggregate of the Available Commitments
of the Banks.
"Banks" means the banks and other financial institutions listed in
Schedule 1 and any Bank Transferee, together with their respective
successors in title, provided that any bank or
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financial institution which transfers all of its Commitment in
accordance with Clause 22.4 shall cease to be a "Bank".
"Bank Transferee" has the meaning given to that term in Clause 22.4.2.
"Borrowers" means the Guarantor and any other Group Company that
becomes a party to this Agreement pursuant to Clause 2.4; and
"Borrower" shall be construed accordingly.
"Business Day" means a day (other than Saturday or Sunday) on which
banks are open for general interbank business in London and:
(a) in relation to a transaction involving an Alternative Currency
other than euros, in the principal financial centre of the
country of that Alternative Currency; and
(b) in relation to a transaction involving euros, in such other
principal financial centre, if any, specified by the Agent
pursuant to Clause 10.3.1.
"Certified Copy" means, in relation to a document, a copy of that
document bearing the endorsement "Certified a true, complete and
accurate copy of the original, which has not been amended otherwise
than by a document, a Certified Copy of which is attached hereto",
which has been signed and dated by a duly authorised officer of the
relevant company and which complies with that endorsement.
"Change" means, in relation to a Bank (or any company of which that
Bank is a Subsidiary), the introduction, implementation, repeal,
withdrawal or change in, or in the interpretation or application of,
(a) any law, regulation, practice or concession, or (b) any directive,
requirement, request or guidance (whether or not having the force of
law but if not having the force of law, one which applies generally to
a class or category of financial institutions of which that Bank (or
that company) forms part and compliance with which is in accordance
with the general practice of those financial institutions) of the
European Community, any central bank including the European Central
Bank, the Financial Services Authority, or any other fiscal, monetary,
regulatory or other authority.
"Commitment" means, in relation to a Bank, the amount set out opposite
its name in Schedule 1 or under the heading "Amount of Commitment
Transferred" in the schedule to its relevant Transfer Certificate, in
each case as reduced or cancelled in accordance with this Agreement.
"Commitment Period" means the period starting on the date of this
Agreement and ending on the date falling 1 month before the Final
Repayment Date.
"Covenant Period" means the period starting on the date of this
Agreement and ending on the date on which all the obligations and
liabilities of the Obligors under the Financing Documents are
discharged in full and none of the Finance Parties has any continuing
obligation in relation to the Facility.
"Dangerous Materials" means any element or substance, whether
consisting of gas, liquid, solid or vapour, identified by any
Environmental Law to be, to have been, or to be capable of
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being or becoming, harmful to mankind or any living organism or
damaging to the Environment.
"Deed of Accession" means a deed substantially in the form set out in
Schedule 6.
"Default" means any event specified as such in Clause 14.1.
"Depreciation" has the meaning given to that term by GAAP.
"Disposal" means a sale, transfer or other disposal (including by way
of lease or loan) by a person of all or part of its assets, whether by
one transaction or a series of transactions and whether at the same
time or over a period of time.
"Double Taxation Treaty" means, in relation to a Participation made
available to a Borrower, any convention between the government of the
Relevant Tax Jurisdiction of that Borrower 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 which makes
provision in relation to interest.
"Drawdown Date" means the date on which an Advance is made, or is
proposed to be made.
"Drawdown Notice" means a notice substantially in the form set out in
Schedule 3.
"EBIT" means, in relation to the Group for any period, its
consolidated profit on ordinary activities before Taxation for that
period, but adjusted by adding back Total Net Interest Costs.
"EBITDA" means, in relation to any period, the aggregate of:
(i) EBIT;
(ii) Depreciation charged to the consolidated profit and loss account
of the Group during such period; and
(iii) amounts amortised to the consolidated profit and loss account of
the Group in that period,
provided that (1) in relation to any period of 12 months ending on a
Half Year Date during which a Group Company becomes the beneficial
owner of shares in the issued share capital of another company (the
"Acquired Company") carrying the right to exercise more than 50 per
cent. of the votes exercisable at a general meeting of the Acquired
Company, EBITDA for such 12 month period shall be deemed to be the
aggregate of (i) EBITDA, mutatis mutandis, of the Group (excluding the
Acquired Company and its Subsidiaries) for such 12 month period and
(ii) the share of EBITDA, mutatis mutandis, of the Acquired Company
and its Subsidiaries for such 12 month period which is proportionate
to the relevant Group Company's interest in the issued share capital
of the Acquired Company and (2) in relation to any period of 12 months
ending on a Half Year Date during which a Group Company makes a
Disposal of a company, there shall be excluded from EBITDA the EBITDA,
mutatis mutandis, of the company which is the subject of such
Disposal.
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"EMU Legislation" means legislative measures of the Council of the
European Union for the introduction of, changeover to, or operation
of, the euro.
"Encumbrance" means any mortgage, charge, assignment by way of
security, pledge, hypothecation, lien or any other security interest
of any kind whatsoever, or any agreement, whether conditional or
otherwise, to create any of the same, or any agreement to sell or
otherwise dispose of any asset on terms whereby such asset is or may
be leased to or re-acquired or acquired by any Group Company.
"Environment" means all or any of the following media: air (including
air within buildings or other structures and whether above or below
ground); land (including buildings and any other structures or
erections in, on or under it and any soil and anything below the
surface of land); land covered with water; and water (including sea,
ground and surface water).
"Environmental Law" means any statutory or common law, treaty,
convention, directive or regulation having legal or judicial effect
whether of a criminal or civil nature, concerning:
(a) pollution or contamination of the Environment;
(b) harm, whether actual or potential, to mankind and human senses,
living organisms and ecological systems;
(c) the generation, manufacture, processing, distribution, use
(including abuse), treatment, storage, disposal, transport or
handling of Dangerous Materials; or
(d) the emission, leak, release or discharge into the Environment of
noise, vibration, dust, fumes, gas, odours, smoke, steam,
effluvia, heat, light, radiation (of any kind), infection,
electricity or any Dangerous Material and any matter or thing
capable of constituting a nuisance or an actionable tort of any
kind in respect of such matters.
"ERISA" means the US Employee Retirement Income Security Act of 1974.
"euro" or "(euro)" means the single currency of the Participating
Member States.
"Facility" means the multicurrency revolving loan facility granted to
the Borrowers under this Agreement.
"Fees Letter" means the letter dated 26th July 1999 from the Arranger
to the Guarantor relating to certain fees payable to the Arranger by
the Guarantor in relation to the Facility.
"Final Repayment Date" means the fifth anniversary of the date of this
Agreement.
"Finance Lease" means any lease, hire agreement, credit sale
agreement, purchase agreement, conditional sale agreement or
instalment sale and purchase agreement which should be treated in
accordance with GAAP as a finance lease or in the same way as a
finance lease.
"Finance Parties" means the Banks, the Agent and the Arranger.
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"Financial Year", in relation to a company, has the meaning given to
that term in section 223 of the Companies Act 1985.
"Financing Documents" means this Agreement and the Fees Letter.
"GAAP" means, in relation to a company, accounting principles,
concepts, bases and policies generally adopted and accepted in the
jurisdiction of its incorporation.
"Gross Tangible Assets" means at any time the aggregate of:
(a) the fixed assets (other than goodwill and intangible assets) of
the Group; and
(b) the current assets of the Group.
"Group" means the Guarantor and its Subsidiaries; and "Group Company"
means any of them.
"Half Year Date" means each of 30th June or 31st December in any year.
"Indebtedness" means, without double counting, in relation to a
person, its obligation (whether present or future, actual or
contingent, as principal or surety) for the payment or repayment of
money (whether in respect of interest, principal or otherwise)
incurred in respect of:
(a) moneys borrowed or raised;
(b) any bond, note, loan stock, debenture or similar instrument;
(c) any acceptance credit, bill discounting, note purchase,
factoring or documentary credit facility;
(d) any Finance Lease;
(e) any guarantee, bond, stand-by letter of credit or other similar
instrument issued in connection with the performance of payment
obligations under contracts;
(f) any interest rate or currency swap agreement or any other
hedging or derivatives instrument or agreement (computed on a
net basis);
(g) any arrangement pursuant to which any asset sold or otherwise
disposed of by that person is or may be leased to or re-acquired
by a Group Company (whether following the exercise of an option
or otherwise); or
(h) any guarantee, indemnity or similar insurance against financial
loss given in respect of the obligation of any person falling
within any of paragraphs (a) to (g) above.
"Information Memorandum" means the information memorandum dated on or
about the date of this Agreement and prepared by the Guarantor in
connection with this Agreement.
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"Initial Advance" means the first Advance under the Facility.
"Interest Period" means each period determined in accordance with
Clause 7 for the purpose of calculating interest on Advances or
overdue amounts.
"Lending Office" means, in relation to a Bank, the office set out
under its name in Schedule 1 or in the schedule to its relevant
Transfer Certificate, or such other office through which that Bank's
Commitment is maintained and through which its Participation is made
and maintained under this Agreement.
"LIBOR" means, in relation to an Advance or overdue amount in a
particular currency and in relation to a particular Interest Period:
(a) the interest rate for deposits in that currency for a period
equal to that Interest Period which appears on the screen
display designated as "Page 3750" or "Page 3740", as
appropriate, on the Telerate Service (or such other screen
display or service as may replace it for the purpose of
displaying British Bankers' Association LIBOR Rates for deposits
in that currency in the London interbank market) at or about
11.00 a.m. on the applicable Rate Fixing Day for that currency;
and
(b) if no such interest rate appears on the Telerate Service (or
such replacement), the arithmetic mean (rounded to 5 decimal
places) of the rates per annum (as quoted to the Agent at its
request) at which each Reference Bank was offering deposits in
that currency in an amount comparable with that Advance or
overdue amount, as the case may be, to leading banks in the
London interbank market for a period equal to that Interest
Period at or about 11.00 a.m. on the applicable Rate Fixing Day
for that currency.
"Majority Banks" means a group of Banks the Original Sterling Amount
of whose Participations in the Advances together exceed 66 2/3 per
cent. of the Original Sterling Amount of all Advances or, at any time
when no Advance is outstanding, a group of Banks whose Commitments
together exceed 66 2/3 per cent. of the Total Commitments (taking no
account, for the purposes of this definition, of the last sentence in
Clause 14.2).
"Mandatory Cost Rate" means the rate determined in accordance with
Schedule 4.
"Margin" means 0.60 per cent. per annum.
"Material Adverse Effect" means a material adverse effect on (a) the
ability of any Group Company to comply with its payment obligations
under this Agreement or, (b) the business, financial condition or
assets of the Group taken as a whole.
"Material Subsidiary" means a Subsidiary of the Guarantor:
(a) whose operating profits are equal to or greater than 3 per cent.
of the aggregate operating profits of the Group; or
(b) whose gross tangible assets (computed on the same basis as Gross
Tangible Assets but excluding assets which constitute loans made
by one Group Company to
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another Group Company) have a value equal to or greater than 3
per cent. of the aggregate value of all Gross Tangible Assets
(as shown by the latest Accounts of the Guarantor) owned by the
Group,
and any other Subsidiary of the Guarantor nominated by the Guarantor
pursuant to Clause 13.2(e).
"Merger Agreement" means the agreement and plan of merger dated 27th
July 1999 between Mark VII, Inc., MSAS Global Logistics Inc. and MSAS
Acquisition Corporation.
"Obligors" means the Guarantor and the Borrowers; and "Obligor" means
any of them.
"Offer" means the offer for the Target Shares to be made by MSAS
Acquisition Corporation.
"Original Sterling Amount" means:
(a) in relation to an Advance, or a Participation in an Advance,
denominated in Sterling, the amount of that Advance or that
Participation, as the case may be; and
(b) in relation to an Advance, or a Participation in an Advance,
denominated in an Alternative Currency, the Sterling Equivalent
of the amount of that Advance or that Participation, as the case
may be, calculated as at the Drawdown Date of that Advance,
provided that if all or part of that Advance is not made or is repaid
or prepaid, the "Original Sterling Amount" of that Advance and of the
Participations of the Banks in that Advance shall be correspondingly
reduced.
"Participating Member State" means a member state of the European
Union which has adopted or adopts the single currency in accordance
with the Treaty establishing the European Community (as that Treaty is
amended from time to time).
"Participation" means, in relation to a Bank and an Advance, the part
of that Advance made available or to be made available by that Bank
and thereafter the part of that Advance owing to that Bank from time
to time.
"Party" means a party to this Agreement.
"Permitted Encumbrance" means:
(a) any Encumbrance created under this Agreement;
(b) any lien arising by operation of law;
(c) pledges of goods, the related documents of title and/or related
documents arising or created in the ordinary course of trade as
security for Indebtedness to a bank or financial institution in
respect of a letter of credit or documentary credit relating to
the goods or documents on or over which that pledge exists;
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(d) any agreement entered into by a Group Company other than
primarily as a method of raising finance to sell or otherwise
dispose of any asset on terms whereby that asset is or may be
leased to or re-acquired or acquired by a Group Company;
(e) any Encumbrance over an asset of a company which becomes a
Subsidiary of the Guarantor (other than by reason of its
incorporation) after the date of this Agreement, being an
Encumbrance which is in existence at the time at which that
company becomes such a Subsidiary but only if (i) that
Encumbrance was not created in contemplation of that company
becoming such a Subsidiary and (ii) the principal amount secured
by that Encumbrance has not been and shall not be increased;
(f) any Encumbrance over the assets of a Project Company or the
shares in a Project Company where such Encumbrance was created
for the purpose of securing Indebtedness incurred to acquire
and/or develop the assets of such Project Company and where such
Indebtedness constitutes Project Finance Indebtedness of such
Project Company;
(g) any Encumbrance over an asset acquired by a Group Company after
the date of this Agreement and subject to which that asset is
acquired but only if (i) that Encumbrance was not created in
contemplation of its acquisition by that company and (ii) the
amount secured by that Encumbrance has not been increased in
contemplation of, or since the date of, its acquisition by that
company;
(h) any Encumbrance existing at the date of this Agreement which
secures a facility listed in Schedule 7 where that schedule
states that such facility is secured;
(i) any Encumbrance ("Replacement Encumbrance") created to replace
or renew or in substitution for any Encumbrance ("Old
Encumbrance") where the Replacement Encumbrance is granted in
respect of the same asset as the Old Encumbrance and does not
secure an amount in excess of the amount secured by the Old
Encumbrance;
(j) any Encumbrance granted by Multi-User/Service Vastgoed CV which
secures future Indebtedness incurred by Multi-User/Service
Vastgoed CV not exceeding, in aggregate, 16,000,000 euro;
(k) any Encumbrance arising pursuant to an order of attachment,
distraint, garnishee or injunction restraining disposal of
assets or similar legal process arising in connection with court
proceedings being contested by the relevant member of the Group
in good faith; and
(l) any Encumbrance not otherwise permitted pursuant to paragraphs
(a) to (j) above (inclusive) in respect of any assets not
exceeding, in aggregate, (pound)20,000,000.
"Potential Default" means an event or omission which, with the giving
of any notice, the lapse of time, the determination of materiality or
the satisfaction of any other condition under Clause 14.1, would be a
Default.
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"Press Release" means the press release in respect of the Offer in the
agreed form.
"Project Company" means any Subsidiary of the Guarantor:
(a) which is a single purpose company whose assets and business are
constituted by a project; and
(b) none of whose liabilities to repay Project Finance Indebtedness
are directly or indirectly the subject of security or a
guarantee, indemnity or any other form of assurance, undertaking
or support by any Group Company save to the extent described in
the definition of Project Finance Indebtedness.
"Project Finance Indebtedness" means:
(a) any Indebtedness of a Project Company incurred to finance the
project constituted by the assets and business of such Project
Company; and
(b) where neither the persons to whom such Indebtedness is owed
(whether or not a Group Company) nor any other person shall have
any recourse whatsoever to any Group Company for the repayment
or payment of any sum relating to such Indebtedness other than:
(i) recourse to such Project Company for amounts not exceeding
the aggregate cash flow or net cash flow (other than
historic cash flow or historic net cash flow) from the
relevant project; and/or
(ii) recourse to such Project Company for the purpose only of
enabling amounts to be claimed in respect of such
Indebtedness in an enforcement of any Encumbrance given by
such Project Company over the assets comprised in such
project (or given by any shareholder or the like in the
Project Company over its shares or the like in the capital
of the Project Company) to secure such Indebtedness
provided that the extent of such recourse to such Project
Company is limited solely to the amount of any recoveries
made on any such enforcement; and/or
(iii) recourse directly or indirectly to a Group Company under
any form of assurance or undertaking, which recourse is
limited to a claim for damages for breach of an obligation
(not being a payment obligation or an obligation to comply
with any financial ratio or other test of financial
condition) of the person against whom that recourse is
available; or
(c) which the Majority Banks shall have agreed to treat as Project
Finance Indebtedness for the purposes of this Agreement.
"Qualifying Bank" means, in relation to a Bank:
(a) a "bank" for the purposes of Section 840A of the Income and
Corporation Taxes Act 1988; or
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(b) a person who is entitled to relief from liability to taxation
otherwise imposed by the Relevant Tax Jurisdiction on interest
under a Double Taxation Treaty and does not carry on business in
that Relevant Tax Jurisdiction through a permanent establishment
with which that Bank's Participation is effectively connected
(and assuming for this purpose only that any applicable filing
or administrative requirements imposed on a Borrower in relation
thereto are duly complied with); or
(c) any person to whom the Borrower can lawfully make a payment of
interest (in relation to a Participation) under this Agreement
without any person being required to make any withholding or
deduction for or on account of any Taxes (assuming for this
purpose only that any applicable filing or administrative
requirements imposed on a Borrower in relation thereto are duly
complied with).
"Rate Fixing Day" means, in relation to any currency and any Interest
Period, the day on which quotes are customarily given in the London
interbank market for deposits in that currency for delivery on the
first day of that Interest Period.
"Reference Banks" means the principal London offices of Deutsche Bank
AG London and such other bank or banks as may be agreed between the
Agent and the Guarantor.
"Relevant Tax Jurisdiction" means, in relation to a Borrower, the
jurisdiction in which that Borrower is liable to Tax by reason of its
domicile, residence, place of management or other similar criteria
(but not any jurisdiction in respect of which that Borrower is liable
to Tax by reason only of a source of income in that jurisdiction).
"Reservations" means (i) the principle that equitable remedies are
remedies which may be granted or refused at the discretion of the
court, (ii) the limitation of validity and/or enforcement by laws
relating to bankruptcy, insolvency, liquidation, reorganisation, court
schemes, moratoria, administration and other laws generally affecting
the rights of creditors, (iii) the time barring of claims under the
Limitation Acts, (iv) defences of set-off or counterclaim and similar
principles, (v) where a party to this Agreement is vested with a
discretion or may determine a matter in its opinion, that party may be
required to exercise its discretion reasonably or be required to hold
that opinion on reasonable grounds, (vi) any determination or
certificate made or given pursuant to any provision of this Agreement
which provides for such determination or certificate to be conclusive
to be shown to have been incorrect, unreasonable, or arbitrary or not
to have been given or made in good faith, (vii) if an English court
were to construe any provision of this Agreement as being in the
nature of a penalty, such provision would not be held to be valid and
binding, (viii) the award of enforcement costs is a discretionary
remedy and (ix) undertakings to pay stamp duty may be void under the
Stamp Act 1891.
"Sterling" and "(pound)" means the lawful currency for the time being
of the United Kingdom.
"Sterling Equivalent" means, in relation to an amount in an
Alternative Currency on the day on which the calculation falls to be
made, the amount of Sterling which could be purchased with that amount
of the Alternative Currency using the Agent's spot rate of exchange
for the purchase in the London foreign exchange market of Sterling
with the Alternative Currency at or about 11.00 a.m. on the second
Business Day before that date.
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"Subsidiary" means a subsidiary within the meaning of section 736 of
the Companies Act 1985.
"Target" means Mark VII Inc., a company registered in the state of
Delaware, USA.
"Target Shares" means all of the issued share capital of the Target.
"Taxes" includes all present and future taxes, charges, imposts,
duties, levies, deductions, withholdings or fees of any kind
whatsoever, or any amount payable on account of or as security for any
of the foregoing, by whomsoever on whomsoever and wherever imposed,
levied, collected, withheld or assessed, together with any penalties,
additions, fines, surcharges or interest relating thereto; and "Tax"
and "Taxation" shall be construed accordingly.
"Total Commitments" means the aggregate of the Commitments of the
Banks.
"Total Net Debt" means the aggregate (without double counting but
taking into account all currency balance sheet hedging) of:
(a) that part of the Indebtedness of Group Companies which relates
to obligations for the payment or repayment of money in respect
of principal incurred in respect of (i) moneys borrowed or
raised, (ii) any bond, note, loan stock, debenture or similar
instrument, or (iii) any acceptance credit, bill discounting,
note purchase, factoring or documentary credit facility
(including, for the avoidance of doubt, any Indebtedness under
this Agreement); and
(b) the capital element of all rentals or, as the case may be, other
payments payable under any Finance Lease entered into by any
Group Company,
less:
(i) cash at hand and at bank; and
(ii) bonds, notes and commercial paper beneficially owned by Group
Companies with a maturity of not more than 6 months and rated at
least A-1 by S&P or at least P-1 by Moody's (or an equivalent
rating of another agency which the Agent reasonably determines
to be comparable).
"Total Net Interest Costs" means, in relation to any period, the
aggregate of:
(a) all interest (excluding capitalised interest), commissions and
other financing charges payable by any Group Company in respect
of that period (less all interest and other similar income
received by any Group Company during that period);
(b) to the extent not included in paragraph (a) above, all finance
costs (as defined in FRS4) charged to the profit and loss
account of the Group in respect of that period;
(c) all amounts payable by any Group Company in respect of that
period under any interest rate protection agreement (less any
amounts receivable by any Group
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Company in respect of that period under any interest rate
protection agreement); and
(d) the interest element of all rentals or, as the case may be,
other amounts payable in respect of that period under any
Finance Lease entered into by any Group Company.
"Transfer Certificate" means a document substantially in the form set
out in Schedule 5.
"US Dollars" and "$" means the lawful currency for the time being of
the United States of America.
"VAT" means value added tax as provided for in the Value Added Tax Act
1994 and legislation (or purported legislation and whether delegated
or otherwise) supplemental to that Act or in any primary or secondary
legislation promulgated by the European Community or any official body
or agency of the European Community, and any tax similar or equivalent
to value added tax imposed by any country other than the United
Kingdom and any similar or turnover Tax replacing or introduced in
addition to any of the same.
1.2 Headings
The headings in this Agreement are for convenience only and shall be
ignored in construing this Agreement.
1.3 Interpretation
In this Agreement (unless otherwise provided):
(a) words importing the singular shall include the plural and vice
versa;
(b) references to Clauses and Schedules are to be construed as
references to the clauses of, and schedules to, this Agreement;
(c) references to this Agreement or any Financing Document or any
other document shall be construed as references to this
Agreement, that Financing Document or that other document, as
amended, varied, novated or supplemented, as the case may be;
(d) references to any statute or statutory provision include any
statute or statutory provision which amends, extends,
consolidates or replaces the same, or which has been amended,
extended, consolidated or replaced by the same, and shall
include any orders, regulations, instruments or other
subordinate legislation made under the relevant statute;
(e) references to a document being "in the agreed form" means that
document the form and content of which has been approved by the
Agent and which has endorsed on it the words "in the agreed
form" and which is initialled by or on behalf of the Agent and
the Borrowers;
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(f) references to "assets" shall include revenues and property and
the right to revenues and property and rights of every kind,
present, future and contingent and whether tangible or
intangible (including uncalled share capital);
(g) the words "including" and "in particular" shall be construed as
being by way of illustration or emphasis only and shall not be
construed as, nor shall they take effect as, limiting the
generality of any preceding words;
(h) the words "other" and "otherwise" shall not be construed ejusdem
generis with any foregoing words where a wider construction is
possible;
(i) references to a "person" shall be construed so as to include
that person's assigns, transferees or successors in title and
shall be construed as including references to an individual,
firm, partnership, joint venture, company, corporation, body
corporate, unincorporated body of persons or any state or any
agency of a state;
(j) where there is a reference in this Agreement to any amount,
limit or threshold specified in Sterling, in ascertaining
whether or not that amount, limit or threshold has been
attained, broken or achieved, as the case may be, a non-Sterling
amount shall be counted on the basis of the equivalent in
Sterling of that amount using the Agent's relevant spot rate of
exchange;
(k) accounting terms shall be construed so as to be consistent with
GAAP; and
(l) references to time are to London time.
2. FACILITY
2.1 Facility
2.1.1 Subject to the terms of this Agreement, the Banks agree to make
available to the Borrowers a multicurrency revolving loan facility in
the maximum principal amount of (pound)175,000,000.
2.1.2 Notwithstanding any other term of this Agreement, no Bank shall be
obliged to lend more than its Commitment.
2.2 Obligations several
2.2.1 The obligations of each Finance Party under this Agreement are
several.
2.2.2 The failure of a Finance Party to carry out its obligations under this
Agreement shall not relieve any other Party of any of its obligations
under this Agreement.
2.2.3 No Finance Party shall be responsible for the obligations of any other
Party under this Agreement.
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2.3 Rights several
2.3.1 The rights of each Finance Party under this Agreement are several. All
amounts due, and obligations owed, to each of them are separate and
independent debts or, as the case may be, obligations.
2.3.2 Each Finance Party may, except as otherwise stated in this Agreement,
separately enforce its rights under this Agreement.
2.4 Additional Borrowers
2.4.1 The Guarantor may, after completion of the primary syndication of the
Facility, on giving notice to the Agent, nominate a wholly-owned
Subsidiary of the Guarantor incorporated in an Approved Jurisdiction
as an additional Borrower. For these purposes an "Approved
Jurisdiction" is any country within the European Union, any state of
the USA, Canada, Hong Kong, Japan, Malaysia, Singapore and Australia.
2.4.2 Such a Subsidiary wishing to become an additional Borrower shall
execute and deliver a Deed of Accession to the Agent together with all
the documents referred to in the schedule to that Deed of Accession,
each in form and substance satisfactory to the Agent and shall notify
the Agent of its Relevant Tax Jurisdiction.
2.4.3 The subsidiary shall accede to this Agreement as a Borrower on the
Agent counter-signing the relevant Deed of Accession.
2.4.4 Each Party authorises the Agent to execute on its behalf a Deed of
Accession delivered to the Agent in accordance with the terms of this
Clause 2.4.
3. PURPOSE
3.1 Purpose
3.1.1 The Initial Advance shall only be used:
(a) to fund the acquisition of the Target Shares pursuant to the
Offer;
(b) to refinance existing Indebtedness of the Target and its
Subsidiaries; and
(c) any fees, commissions, costs and expenses properly incurred in
relation to the acquisition of the Target Shares.
3.1.2 The proceeds of all subsequent Advances shall only be used:
(a) for the Group's general corporate and working capital purposes
(including, for the avoidance of doubt, the making of
acquisitions);
(b) to repay Advances.
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3.2 No monitoring
No Finance Party shall be obliged to investigate or monitor the use or
application of the proceeds of the Advances.
4. CONDITIONS PRECEDENT
Notwithstanding any other term of this Agreement, none of the Agent
and the Banks shall be under any obligation to make the Facility
available to the Borrowers unless the Agent has notified the Guarantor
and the Banks that it has received all the documents listed in
Schedule 2 (in form and content satisfactory to the Agent) on or prior
to 30th September 1999.
5. DRAWDOWN
5.1 Commitment Period
Subject to the terms of this Agreement, Advances shall be made to any
Borrower at any time during the Commitment Period when requested by
means of a Drawdown Notice in accordance with this Clause 5. At the
close of business on the last day of the Commitment Period, the
Available Commitment of each Bank shall be automatically cancelled.
5.2 Conditions to each Advance
5.2.1 The obligation of each Bank to make available its Participation in an
Advance is subject to the conditions that on the date on which the
relevant Drawdown Notice is given and on the Drawdown Date:
(a) the representations and warranties in Clause 12 to be repeated
on those dates are correct and will be correct immediately after
the Advance is made; and
(b) no Default or Potential Default has occurred and is continuing
or would occur on the making of the Advance.
5.2.2 In respect of an Advance to be made for the sole purpose of repaying
an outstanding Advance in a matching amount and currency the Advance
shall be made, notwithstanding the occurrence and continuation of a
Default or Potential Default or any of the representations and
warranties to be repeated not being correct, unless the Agent shall
have served a notice under Clause 14.2.
5.3 Drawdown Notice
5.3.1 Whenever a Borrower wishes to draw down under the Facility, it shall
give a duly completed Drawdown Notice to the Agent to be received not
later than 11.00 a.m. on the third Business Day before the Drawdown
Date or, in the case of an Advance to be denominated in Sterling, not
later than 11.00 a.m. on the first Business Day before the Drawdown
Date (or, in either case, such later time and/or date as the Agent may
agree).
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5.3.2 A Drawdown Notice shall be irrevocable and the relevant Borrower shall
be obliged to borrow in accordance with its terms.
5.4 Limitations on Advances
The following limitations apply to Advances:
(a) the Drawdown Date of an Advance shall be a Business Day falling
before the end of the Commitment Period;
(b) the principal amount of an Advance denominated in Sterling shall
be:
(i) a minimum amount of(pound)2,000,000 and an integral
multiple of(pound)1,000,000; or
(ii) the amount of the Available Facility;
(c) the principal amount of an Advance denominated in an Alternative
Currency shall be:
(i) in an Original Sterling Amount of at least
(pound)5,000,000 and a round amount in that currency as
the Agent and the relevant Borrower may agree; or
(ii) in an Original Sterling Amount equal to the Available
Facility;
(d) no Advance shall be made if the making of that Advance would
result in the Original Sterling Amount of all Advances exceeding
the Total Commitments;
(e) no more than 12 Advances may be outstanding at any one time; and
(f) in the case of an Advance denominated in an Alternative
Currency, the requirements of Clause 6 are met.
5.5 Notification to Banks
The Agent shall promptly notify each Bank of the details of each
Drawdown Notice received by it.
5.6 Participations
Subject to the terms of this Agreement, each Bank acting through its
Lending Office shall make available to the Agent on the Drawdown Date
for an Advance an amount equal to its Participation in the amount and
currency specified in the Drawdown Notice for that Advance. A Bank
shall participate in an Advance in the proportion borne by its
Available Commitment to the Available Facility on the Drawdown Date of
that Advance.
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6. ALTERNATIVE CURRENCIES
6.1 Requests for Alternative Currency
Subject to Clause 6.2, any Borrower may request in a Drawdown Notice
that an Advance be denominated in an Alternative Currency.
6.2 Availability
A Borrower may not request that an Advance be denominated in an
Alternative Currency (other than US Dollars) unless the Agent has
confirmed to that Borrower that the Alternative Currency is available
for drawing under the Facility.
6.3 Notification to Banks
The Agent shall promptly notify each Bank of the currency and the
Original Sterling Amount of each Advance.
6.4 No Alternative Currency
If, no later than 10.00 a.m. on the second Business Day before the
first day of an Interest Period in relation to an Advance which is
proposed to be denominated in an Alternative Currency (other than US
Dollars), a Bank notifies the Agent that:
(a) for whatever reason it is impracticable for that Bank to fund
its Participation in that Advance in the proposed Alternative
Currency in the ordinary course of business in the London
interbank market; or
(b) central bank or other governmental authorisation in the country
of the proposed Alternative Currency is required to permit its
use by that Bank for the making of that Advance and the
authorisation has not been obtained or is not in full force and
effect or is subject to unacceptable conditions; or
(c) the use of the proposed Alternative Currency is restricted or
prohibited by any request, directive, regulation or guideline of
any governmental body, agency, department or regulatory or other
authority (whether or not having the force of law) in accordance
with which that Bank is accustomed to act,
the Agent shall notify the relevant Borrower and the Banks by 11.00
a.m. on the same day. In this event, the relevant Borrower and the
Banks may agree that the Advance shall not be made, provided that, in
the absence of such agreement by 12.00 noon on the same day, the
Advance shall be denominated in Sterling during that Interest Period.
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7. INTEREST
7.1 Interest rate
Interest shall accrue on each Advance from and including the relevant
Drawdown Date to but excluding the date the Advance is repaid at the
rate determined by the Agent to be the aggregate of:
(a) the Margin;
(b) LIBOR; and
(c) the Mandatory Cost Rate.
7.2 Interest Periods
7.2.1 Each Borrower shall select an Interest Period for an Advance in the
relevant Drawdown Notice of 1, 2, 3 or 6 months' duration (or such
other Interest Period as the Agent, acting on the instructions of all
the Banks, may allow) provided that prior to completion of the primary
syndication of the Facility each Interest Period shall be of 1 month's
duration (or such other Interest Period as the Guarantor and the
Arranger may agree).
7.2.2 If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall instead end on the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
7.2.3 If an Interest Period begins on the last Business Day in a calendar
month or on a Business Day for which there is no numerically
corresponding day in the calendar month in which that Interest Period
is to end, it shall end on the last Business Day in that later
calendar month.
7.2.4 If an Interest Period would otherwise extend beyond the Final
Repayment Date, it shall be shortened so that it ends on the Final
Repayment Date.
7.3 Default interest
7.3.1 If any Borrower fails to pay any amount payable under any Financing
Document on the due date, it shall pay default interest on the overdue
amount from the due date to the date of actual payment calculated by
reference to successive Interest Periods (each of such duration as the
Agent may select and the first beginning on the relevant due date) at
the rate per annum being the aggregate of (a) 1 per cent. per annum,
(b) the Margin, (c) LIBOR and (d) the Mandatory Cost Rate.
7.3.2 So long as the overdue amount remains unpaid, the default interest
rate shall be recalculated in accordance with the provisions of this
Clause 7.3 on the last day of each such Interest Period and any unpaid
interest shall be compounded at the end of each Interest Period.
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7.4 Calculation and payment of interest
7.4.1 At the beginning of each Interest Period, the Agent shall notify the
Banks and the relevant Borrower of the duration of the Interest Period
and the rate and amount of interest payable for the Interest Period
(but in the case of any default interest calculated under Clause 7.3,
any such notification need not be made more frequently than weekly).
Each notification shall set out in reasonable detail the basis of
computation of the amount of interest payable.
7.4.2 Interest due from a Borrower under this Agreement shall:
(a) accrue from day to day at the rate calculated under this Clause
7;
(b) except as otherwise provided in this Agreement, be paid by the
relevant Borrower to the Agent (for the account of the Banks or
the Agent, as the case may be) in arrear on the last day of each
Interest Period, provided that for any Interest Period which is
for longer than 6 months, the relevant Borrower shall also pay
interest 6 monthly in arrear during that Interest Period;
(c) be calculated on the basis of the actual number of days elapsed
and a 365 day year (or a 360 day year in the case of interest on
an Advance denominated in an Alternative Currency) or, if
different, such number of days as is market practice for the
relevant currency; and
(d) be payable both before and after judgment.
7.5 Agent's determination
The determination by the Agent of any interest payable under this
Clause 7 shall be conclusive and binding on the Borrowers in the
absence of proven error.
8. REPAYMENT, PREPAYMENT AND CANCELLATION
8.1 Repayment
8.1.1 Subject to Clause 8.1.3, each Advance shall be repaid in full on the
last day of the Interest Period relating to that Advance.
8.1.2 Subject to the terms of this Agreement, any amounts repaid under this
Agreement may be re-borrowed.
8.1.3 If all or part of an existing Advance is to be repaid from the
proceeds of all or part of a new Advance denominated in the same
currency as that existing Advance, then as between each Bank and the
relevant Borrower, the amount to be repaid by that Borrower shall be
set off against the amount to be advanced by that Bank in relation to
the new Advance and the party to whom the smaller amount is to be paid
shall pay to the other party a sum equal to the difference between the
two amounts.
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8.2 Mandatory prepayment/cancellation on change of control
Notwithstanding Clause 8.1, if on any date, a person (whether alone or
together with any associated person or persons) becomes the beneficial
owner of shares in the issued share capital of the Guarantor carrying
the right to exercise more than 50 per cent. of the votes exercisable
at a general meeting of the Guarantor (for these purposes "associated
person" means, in relation to any person, a person who is (i) "acting
in concert" (as defined in the City Code on Takeovers and Mergers)
with that person or (ii) a "connected person" (as defined in section
839 of the Income and Corporation Taxes Act 1988) of that person):
(i) within 30 days of such date, the Guarantor shall give notice of
such change of control to the Agent;
(ii) the Banks and the Guarantor shall immediately enter into
negotiations for a period of not more than 60 days with a view
to agreeing whether the Facility shall continue to be made
available; and
(iii) if no such agreement is reached within the said period of 60
days then:
(a) any Bank by notice to the Agent and to the Guarantor may
be entitled to cancel its Commitment and on receipt by the
Guarantor of such a notice, the Borrowers shall subject to
Clause 23.1 immediately repay the Participation of the
relevant Bank in the Facility; and
(b) the Majority Banks by notice sent through the Agent to the
Guarantor shall be entitled to require immediate repayment
of all Advances in full, together with accrued interest on
the amount prepaid and any amounts payable under Clause
23.1, whereupon the same shall become immediately due and
payable and the Banks obligations under this Agreement
shall be terminated and each Bank's Commitment shall be
cancelled.
8.3 Cancellation on disposals
8.3.1 If a Group Company makes a Disposal (not falling within paragraphs (i)
to (v) inclusive or (vii) of Clause 13.3(b)), the proceeds ("Net
Proceeds") of such Disposal (net of all costs and expenses incurred by
Group Companies in respect thereof) shall be promptly paid to the
credit of such interest bearing account (a "Disposal Proceeds
Account") held by the Guarantor with such Bank as the Agent shall have
specified for this purpose on terms that they may only be withdrawn in
accordance with this Clause 8.3.
8.3.2 The Guarantor shall notify the Agent of the same promptly upon any
announcement of any Disposal to which this Clause 8.3 applies.
8.3.3 In respect of a Disposal to which this Clause 8.3 applies:
(i) if within the period of 30 days of the relevant notice of such
Disposal being served under Clause 8.3.2 (or, if longer the
period commencing on the date such notice is served and ending
on the date such Disposal is completed), the Majority Banks
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through the Agent do not inform the Guarantor that the Facility
is to be permanently reduced by the amount of the Net Proceeds
of such Disposal, the said Net Proceeds shall be released from
the relevant Disposal Proceeds Account to the Guarantor promptly
upon the expiry of such period of 30 days; and
(ii) if within the said period, the Majority Banks though the Agent
inform the Guarantor that the Facility is to be permanently
reduced by the amount of such Net Proceeds then:
(a) on the expiry of such period the Total Commitments shall
be cancelled by the amount of such Net Proceeds;
(b) if as a result of such cancellation the Original Sterling
Amount of all Advances exceeds the Total Commitments, all
(or, if less, an amount equal to such excess) of such Net
Proceeds shall be applied in prepayment of the Advances on
the next Interest Date(s) or, subject to Clause 23.1,
earlier at the Guarantor's request; and
(c) to the extent not applied in prepayment of Advances
pursuant to paragraph (b) above, such Net Proceeds shall
be released to the Guarantor.
8.4 Prepayment
8.4.1 Any Borrower may, by giving the Agent not less than 14 days prior
notice, prepay all or part of the Available Facility (but if in part,
in a minimum amount of (pound)5,000,000 and an integral multiple of
(pound)1,000,000).
8.4.2 Any notice of prepayment shall be irrevocable, shall specify the date
on which the prepayment is to be made and the amount of the
prepayment, and shall oblige the relevant Borrower to make that
prepayment. The Agent shall promptly notify the Banks of receipt of
any such notice.
8.4.3 Any prepayment shall be made together with accrued interest on the
amount prepaid and any amounts payable under Clause 23.1.
8.5 Cancellation
8.5.1 The Guarantor may, by giving the Agent not less than 14 days' prior
notice, cancel all or part of the Available Facility (but if in part,
in a minimum amount of (pound)5,000,000 and an integral multiple of
(pound)1,000,000).
8.5.2 Any notice of cancellation shall be irrevocable and shall specify the
date on which the cancellation shall take effect and the amount of the
cancellation. The Agent shall promptly notify the Banks of receipt of
any such notice.
8.5.3 The Borrowers may not borrow any part of the Facility which has been
cancelled. Any cancellation shall reduce each Bank's Commitment
rateably.
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8.5.4 The Guarantor may not cancel all or part of the Facility except as
expressly provided in this Agreement.
9. CHANGES IN CIRCUMSTANCES
9.1 Illegality
If it is or becomes illegal for a Bank to maintain its Commitment or
to continue to make available or fund its Participation in any
Advance, then:
(a) that Bank shall notify the Agent and the Guarantor; and
(b) (i) the Commitment of that Bank shall be cancelled
immediately; and
(ii) the Borrowers shall prepay to the Agent (for the account
of that Bank) that Bank's Participation in all Advances
(together with accrued interest on the amount prepaid and
all other amounts owing to that Bank under this Agreement)
within 5 Business Days of demand by that Bank (or, if
permitted by the relevant law, on the last day of the
Interest Period of the relevant Advances).
Any such prepayment under paragraph (b)(ii) above shall be subject to
Clause 23.1.
9.2 Increased Costs
9.2.1 If, after the date of this Agreement, a Change occurs which causes an
Increased Cost (as defined in Clause 9.2.3) to a Bank (or any company
of which that Bank is a Subsidiary) then each Borrower shall pay (as
additional interest) to the Agent (for the account of that Bank)
within 10 Business Days of demand all amounts which that Bank
certifies to be necessary to compensate that Bank (or any company of
which that Bank is a Subsidiary) for the Increased Cost.
9.2.2 Any demand made under Clause 9.2.1 shall be made by the relevant Bank
through the Agent and shall set out in reasonable detail so far as is
practicable the basis of computation of the Increased Cost.
9.2.3 In this Clause 9.2:
"Increased Cost" means any cost to, or reduction in the amount payable
to, or reduction in the return on capital or regulatory capital
achieved by, a Bank (or any company of which that Bank is a
Subsidiary) to the extent that it arises, directly or indirectly, as a
result of the Change and is attributable to the Commitment or
Participation in any Advance of that Bank or the funding of that
Bank's Participation in any Advance including:
(a) any Tax Liability (other than Tax on Overall Net Income)
incurred by that Bank;
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(b) any changes in the basis or timing of Taxation of that Bank in
relation to its Commitment or Participation in any Advance or to
the funding of that Bank's Participation in any Advance;
(c) the cost to that Bank (or any company of which that Bank is a
Subsidiary) of complying with, or the reduction in the amount
payable to or reduction in the return on capital or regulatory
capital achieved by that Bank (or any company of which that Bank
is a Subsidiary) as a result of complying with, any capital
adequacy or similar requirements howsoever arising, including as
a result of an increase in the amount of capital to be allocated
to the Facility or of a change to the weighting of that Bank's
Commitment or Participation in any Advance;
(d) the cost to that Bank of complying with any reserve, cash ratio,
special deposit or liquidity requirements (or any other similar
requirements); and
(e) the amount of any fees payable by that Bank to any supervisory
or regulatory authority.
"Tax Liability" means, in respect of any person:
(a) any liability or any increase in the liability of that person to
make any payment of or in respect of Tax;
(b) the loss of any relief, allowance, deduction or credit in
respect of Tax which would otherwise have been available to that
person;
(c) the setting off against income, profits or gains or against any
Tax liability of any relief, allowance, deduction or credit in
respect of Tax which would otherwise have been available to that
person; and
(d) the loss or setting off against any Tax liability of a right to
repayment of Tax which would otherwise have been available to
that person.
For the purposes of this definition of "Tax Liability", any question
of whether or not any relief, allowance, deduction, credit or right to
repayment of Tax has been lost or set off, and if so, the date on
which that loss or set-off took place, shall be conclusively
determined by the relevant person.
"Tax on Overall Net Income" means, in relation to a Bank, Tax (other
than Tax deducted or withheld from any payment) imposed on the net
profits of that Bank by the jurisdiction in which it is incorporated
or in which its Lending Office or its head office is situated.
9.2.4 The Borrowers shall not be obliged to make a payment in respect of an
Increased Cost under this Clause 9.2 if and to the extent that the
Increased Cost has been compensated for by the payment of the
Mandatory Cost Rate or the operation of Clause 10.9 or would have been
so compensated for but for the operation of Clause 10.9.4.
9.2.5 If the Borrowers are required to pay any amount to a Bank under this
Clause 9.2, then, without prejudice to that obligation and so long as
the circumstances giving rise to the relevant
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Increased Cost are continuing and subject to the Guarantor giving the
Agent and that Bank not less than 10 days' prior notice (which shall
be irrevocable), the Borrowers may prepay all, but not part, of that
Bank's Participation in the Advances together with accrued interest on
the amount prepaid. Any such prepayment shall be subject to Clause
23.1. On any such prepayment the Commitment of the relevant Bank shall
be automatically cancelled.
9.3 Market disruption
If, in relation to a proposed Advance:
(a) the Agent determines that, because of circumstances affecting
the London interbank market generally, reasonable and adequate
means do not exist for ascertaining LIBOR for that Advance for
the relevant Interest Period; or
(b) the Agent has been notified by a group of Banks whose
Commitments together exceed 35 per cent. of the Total
Commitments that in their opinion by reason of circumstances
affecting the London interbank market generally:
(i) matching deposits may not be available to them in the
London interbank market in the ordinary course of business
to fund their Participations in that Advance for the
relevant Interest Period; or
(ii) the cost to them of obtaining matching deposits in the
London interbank market would be in excess of LIBOR for
the relevant Interest Period,
the Agent shall promptly notify the relevant Borrower and the Banks of
that event and that Advance shall not be made. Instead, the Agent and
the Borrower shall immediately enter into negotiations for a period of
not more than 30 days with a view to agreeing a substitute basis for
calculating the interest rate for the Advance or for funding the
Advance (whether in Sterling or another currency). Any substitute
basis agreed by the Agent (with the consent of all the Banks) and the
Borrower shall take effect in accordance with its terms and be binding
on all the Parties.
9.4 Mitigation
9.4.1 If any circumstances arise in respect of any Bank which would, or upon
the giving of notice would, result in the operation of Clause 9.1,
9.2, 9.3 or 10.9 to the detriment of any Borrower, then that Bank
shall:
(a) promptly upon becoming aware of those circumstances and their
results, notify the Agent and the Guarantor; and
(b) in consultation with the Agent and the Guarantor, take all such
steps as are reasonably open to it to mitigate the effects of
those circumstances (including changing its Lending Office or
consulting with the Guarantor with a view to transferring some
or all of its rights and obligations under this Agreement to
another bank or other financial institution acceptable to the
Guarantor) in a manner which will avoid the circumstances in
question and on terms acceptable to the Agent, the Guarantor and
that Bank,
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provided that no Bank shall be obliged to take any steps which
in its opinion would or might have an adverse effect on its
business or financial condition or the management of its Tax
affairs or cause it to incur any material costs or expenses.
9.4.2 Nothing in this Clause 9.4 shall limit, reduce, affect or otherwise
qualify the rights of any Bank or the obligations of the Borrowers
under Clauses 9.1, 9.2, 9.3 and 10.9.
9.5 Certificates
The certificate or notification of the Agent or, as the case may be,
the relevant Bank as to any of the matters referred to in this Clause
9 shall be in reasonable detail and shall be conclusive and binding on
the Borrowers except for any proven error.
10. PAYMENTS
10.1 Place and time
All payments by a Borrower or a Bank under this Agreement shall be
made to the Agent to its account at such office or bank at such time
as the Agent may notify to the Borrowers or the Banks for this
purpose.
10.2 Funds
All payments to the Agent under this Agreement shall be made for value
on the due date in freely transferable and readily available funds.
10.3 Distribution
10.3.1 Each payment received by the Agent under this Agreement for another
Party shall, subject to Clauses 10.3.2 and 10.3.3, be made available
by the Agent to that Party by payment (on the date and in the currency
and funds of receipt) to its account with such office or bank in the
principal financial centre of the country of the relevant currency
(or, in the case of euros, in the principal financial centre of such
of the Participating Member States or London as the Agent may specify)
as it may notify to the Agent for this purpose by not less than 5
Business Days' prior notice.
10.3.2 The Agent may apply any amount received by it for a Borrower in or
towards payment (on the date and in the currency and funds of receipt)
of any amount due from that Borrower under this Agreement or in or
towards the purchase of any amount of any currency to be so applied.
10.3.3 Where a sum is to be paid to the Agent under this Agreement for
another Party, the Agent is not obliged to pay that sum to that Party
until it has established that it has actually received that sum. The
Agent may, however, assume that the sum has been paid to it in
accordance with this Agreement, and, in reliance on that assumption,
make available to that Party a corresponding amount. If the sum has
not been made available but the Agent has paid a corresponding amount
to another Party, that Party shall immediately on demand by the Agent
refund the
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corresponding amount together with interest on that amount from the
date of payment to the date of receipt, calculated at a rate
determined by the Agent to reflect its cost of funds.
10.3.4 Notwithstanding the provisions of this Clause 10.3, the Agent shall
not be liable to any Borrower or any Bank for the failure, or the
consequences of any failure, of any euro cross-border payment system
to effect same-day settlement to an account of any Borrower or any
Bank.
10.4 Business Days
If a payment under this Agreement is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
10.5 Currency
In this Agreement, subject to any EMU Legislation:
(a) all payments by any Borrower in respect of an Advance, whether
of interest or principal, shall be made in the currency (or the
denomination of the currency) in which that Advance is
denominated;
(b) all payments relating to costs, losses, expenses or Taxes shall
be made in the currency in which the relevant costs, losses,
expenses or Taxes were incurred; and
(c) any other amount payable under this Agreement shall, except as
otherwise provided, be made in Sterling.
10.6 Accounts as evidence
Each Bank shall maintain in accordance with its usual practice an
account which shall, as between the Borrowers and that Bank, be prima
facie evidence of the amounts from time to time advanced by, owing to,
paid and repaid to that Bank under this Agreement.
10.7 Partial payments
10.7.1 If the Agent receives a payment insufficient to discharge all the
amounts then due and payable by a Borrower under this Agreement, the
Agent shall apply that payment towards the obligations of that
Borrower under this Agreement in the following order:
(a) first, in or towards payment of any unpaid costs and expenses of
the Agent under this Agreement;
(b) second, in or towards payment pro rata of any accrued interest
due but unpaid under this Agreement;
(c) third, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
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(d) fourth, in or towards payment pro rata of any other sum due but
unpaid under this Agreement.
10.7.2 The Agent shall, if so directed by all the Banks, vary the order set
out in Clauses 10.7.1(b) to (d).
10.7.3 Clauses 10.7.1 and 10.7.2 shall override any appropriation made by any
Borrower.
10.8 Set-off and counterclaim
All payments by any Borrower under this Agreement shall be made
without set-off or counterclaim.
10.9 Grossing-up
10.9.1 Subject to Clause 10.9.2, all sums payable to any Finance Party
pursuant to or in connection with any Financing Document shall be paid
in full free and clear of all deductions or withholdings whatsoever
except only as may be required by law.
10.9.2 If any deduction or withholding is required by law in respect of any
payment due from a Borrower to any Finance Party pursuant to or in
connection with any Financing Document the Borrower shall:
(a) ensure or procure that the deduction or withholding is made and
that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or
withheld to the relevant Taxation or other authority in
accordance with the applicable law;
(c) increase the payment in respect of which the deduction or
withholding is required so that the net amount received by the
payee (which expression when used in this Clause 10.9.2 shall
mean any Finance Party) after the deduction or withholding (and
after taking account of any further deduction or withholding
which is required to be made as a consequence of the increase)
shall be equal to the amount which the payee would have been
entitled to receive in the absence of any requirement to make
any deduction or withholding; and
(d) promptly deliver or procure the delivery to the relative payee
of receipts evidencing each deduction or withholding which has
been made.
10.9.3 If the Agent is obliged to make any deduction or withholding from any
payment to any Bank (an "Agency Payment") which represents an amount
or amounts received by the Agent from a Borrower under any Financing
Document, that Borrower shall pay directly to that Bank such sum (an
"Agency Compensating Sum") as shall, after taking into account any
deduction or withholding which that Borrower is obliged to make from
the Agency Compensating Sum, enable that Bank to receive, on the due
date for payment of the Agency Payment, an amount equal to the Agency
Payment which that Bank would have received in the absence of any
obligation to make any deduction or withholding.
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10.9.4 No Borrower or Guarantor resident in the United Kingdom only for
United Kingdom tax purposes shall be required to pay an additional
amount under this Clause 10.9 if the payment in respect of which the
deduction or withholding is required is a payment of interest on a
Participation in an Advance and:
(a) (i) at the time that that Participation was made, the Bank
making that Participation was not within paragraph (a) of
the definition of Qualifying Bank otherwise than as a
consequence of a Change occurring after the date of this
Agreement (and the obligation to deduct or withhold would
not have arisen if it had come within that paragraph of
that defined term); or
(ii) at the time when the interest is paid, the Bank for whose
account it is paid is not beneficially entitled to that
interest and a person within the charge to United Kingdom
corporation tax as respects that interest, otherwise than
as a consequence of a Change occurring after the date of
this Agreement (and the obligation to deduct or withhold
would not have arisen if the Bank had been beneficially
entitled to the interest and had been within the charge to
United Kingdom corporation tax as respects it); and
(b) at the time when the interest is paid, the Bank for whose
account it is paid is not within paragraph (b) of the definition
of Qualifying Bank otherwise than as a consequence of a Change
occurring after the date of this Agreement (and the obligation
to deduct or withhold would not have arisen if it had come
within that paragraph of that defined term); and
(c) the Bank is not within paragraph (c) of the definition of
Qualifying Bank, otherwise than as a consequence of a Change
occurring after the date of this Agreement.
10.9.5 If any Finance Party determines, in its absolute discretion, that it
has received, realised, utilised and retained a Tax benefit by reason
of any deduction or withholding in respect of which a Borrower has
made an increased payment or paid an Agency Compensating Sum under
this Clause 10.9, that Finance Party shall, provided that the Finance
Parties have received all amounts which are then due and payable by
the Borrowers under any Financing Document, pay to that Borrower (to
the extent that that Finance Party can do so without prejudicing the
amount of the benefit or repayment and the right of that Finance Party
to obtain any other benefit, relief or allowance which may be
available to it) such amount, if any, as that Finance Party, in its
absolute discretion shall determine, will leave that Finance Party in
no worse position than it would have been in if the deduction or
withholding had not been required, provided that:
(a) each Finance Party shall have an absolute discretion as to the
time at which and the order and manner in which it realises or
utilises any Tax benefit and shall not be obliged to arrange its
business or its Tax affairs in any particular way in order to be
eligible for any credit or refund or similar benefit;
(b) no Finance Party shall be obliged to disclose any information
regarding its business, Tax affairs or Tax computations;
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(c) if a Finance Party has made a payment to a Borrower pursuant to
this Clause 10.9.5 on account of any Tax benefit and it
subsequently transpires that that Finance Party did not receive
that Tax benefit, or received a lesser Tax benefit, that
Borrower shall, on demand, pay to that Finance Party such sum as
that Finance Party may determine as being necessary to restore
its after-tax position to that which it would have been had no
adjustment under this Clause 10.9.5 been made. Any sums payable
by a Borrower to a Finance Party under this Clause 10.9.5 shall
be subject to Clause 18.6.
10.9.6 No Finance Party shall be obliged to make any payment under Clause
10.9.5 if, by doing so, it would contravene the terms of any
applicable law or any notice, direction or requirement of any
governmental or regulatory authority (whether or not having the force
of law).
10.9.7 If a Borrower is required to make an increased payment for the account
of a Bank under Clause 10.9.2, then, without prejudice to that
obligation and so long as such requirement exists and subject to the
Guarantor giving the Agent and that Bank not less than 10 days' prior
notice (which shall be irrevocable), the Borrowers may prepay all, but
not part, of that Bank's Participation in the Advances together with
accrued interest on the amount prepaid. Any such prepayment shall be
subject to Clause 23.1. On any such prepayment the Commitment of the
relevant Bank shall be automatically cancelled.
10.9.8 Each Bank which is party to this Agreement represents as at the date
of this Agreement that it is a Qualifying Bank.
11. GUARANTEE
11.1 Guarantee
Subject to and with the benefit of the provisions in Clause 11.2, the
Guarantor hereby unconditionally and irrevocably guarantees to the
Finance Parties that it shall on demand pay in the currency in which
the same falls due for payment under the terms of this Agreement, all
moneys which are now or at any time hereafter shall have become due or
owing by any Borrower (other than itself) to any or all of the Finance
Parties pursuant to this Agreement.
11.2. Guarantee Provisions
11.2.1 The guarantee (the "Guarantee") given pursuant to this Clause 11 is a
continuing security and shall remain in full force and effect until
all moneys, obligations and liabilities referred to in Clause 11.1
have been paid, discharged or satisfied in full notwithstanding the
liquidation or other incapacity or any change in the constitution of
any of the Borrowers or in the name and style of any of them or any
settlement of account or other matter whatsoever.
11.2.2 This Guarantee is in addition to and shall not merge with or otherwise
prejudice or affect or be prejudiced by any other right, remedy,
guarantee, indemnity or security and may be enforced without first
having recourse to the same or any other bill, note, mortgage, charge,
pledge or lien now or hereafter held by or available to any Finance
Party.
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11.2.3 Notwithstanding that this Guarantee ceases to be continuing for any
reason whatever any of the Finance Parties may continue any accounts
of any Borrower or open one or more new accounts and the liability of
the Guarantor hereunder shall not be reduced or affected by any
subsequent transactions or receipts or payments into or out of any
such accounts.
11.2.4 If any purported obligation or liability of any Borrower under this
Agreement is not or ceases to be valid or enforceable on any ground
whatsoever whether or not known to any Finance Party including but not
limited to any defect in or want of powers of any Borrower or
irregular exercise thereof or lack of authority by any person
purporting to act on behalf of any Borrower or any legal or other
limitation (whether under the Limitation Act 1980 or otherwise),
disability, incapacity or any change in the constitution of or any
amalgamation, reconstruction or liquidation of any Borrower, the
Guarantor shall nevertheless be liable to the Finance Parties in
respect of that purported obligation or liability as if the same were
fully valid and enforceable and the Guarantor were the principal
debtor in respect thereof. The Guarantor hereby agrees to keep the
Finance Parties fully indemnified in the currency in which such
purported obligation or liability arose against all damages, losses,
costs and expenses arising from any failure of any Borrower to carry
out any such purported obligation or liability.
11.2.5 The liability of the Guarantor shall not be affected nor shall this
Guarantee be discharged or diminished by reason of:
(a) any present or future bill, note, guarantee, indemnity,
mortgage, charge, pledge, lien or other security or right or
remedy held by or available to all or any of the Finance Parties
being or becoming wholly or in part void, voidable or
unenforceable on any ground whatsoever or by all or any of the
Finance Parties from time to time dealing with exchanging,
varying, realising, releasing or failing to perfect or enforce
any of the same; or
(b) all or any of the Finance Parties compounding with, discharging,
releasing or varying the liability of or granting any time,
indulgence or concession to any Borrower or any other person or
renewing, determining, varying or increasing any bill,
promissory note or other negotiable instrument, accommodation,
facility or transaction in any manner whatsoever or concurring
in, accepting or varying any compromise, arrangement or
settlement or omitting to claim or enforce payment from a
principal debtor or any other person; or
(c) any act or omission which would not have discharged or affected
the liability of the Guarantor had it been a principal debtor
instead of guarantor or by anything done or omitted which but
for this provision might operate to exonerate the Guarantor.
11.2.6 The Guarantor warrants to the Finance Parties that it has not taken or
received and undertakes not to take or receive the benefit of any
security from any Borrower in connection with this Guarantee. If any
such security is taken or the Guarantor receives the benefit of the
same the Guarantor declares that such security and all moneys at any
time received in respect thereof shall be held on trust for the
Finance Parties to be applied in discharge of the liabilities of the
Guarantor to the Finance Parties under this Agreement.
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11.2.7 Until all amounts owing under this Agreement have been paid,
discharged or satisfied in full, the Guarantor waives all rights of
subrogation and indemnity against any Borrower and agrees not to share
in any security held or moneys received by any Finance Party on
account of such liabilities or, unless so instructed by the Agent,
(acting on the instructions of the Majority Banks) to claim or prove
in competition with any Finance Party in the liquidation of any
Borrower in respect of any moneys paid by the Guarantor to any Finance
Party hereunder. If the Guarantor receives any payment or other
benefit or exercises any set-off or counterclaim or otherwise acts in
breach of this Clause anything so received and any benefit derived
directly or indirectly by the Guarantor therefrom shall be held in
trust for the Finance Parties to be applied in discharge of the
liability of the Guarantor to the Finance Parties hereunder.
11.2.8 Any money received in connection with this Guarantee may be placed to
the credit of a suspense account with a view to preserving the rights
of the Finance Parties to prove for the whole of their claims against
any Borrower or any other person liable or may be applied by the
Finance Parties in or towards satisfaction of such of the moneys,
obligations or liabilities of any Borrower hereby guaranteed as the
relevant Finance Party in its absolute discretion may from time to
time conclusively determine.
11.2.9 If this Guarantee is determined or called in by demand made by the
Agent, then the Finance Parties may open a new account or accounts
with each Borrower. If the Finance Parties do not open a new account
or accounts they shall nevertheless be treated as if they had done so
at the time of determination or calling in and as from that time all
payments made to the Finance Parties shall be credited or be treated
as having been credited to the new account or accounts and shall not
operate to reduce the amount for which this guarantee is available as
security at that time.
11.2.10 Any release, discharge or settlement between the Guarantor and the
Finance Parties shall be conditional upon no security disposition or
payment to any of the Finance Parties by any Borrower or any other
person being void, set aside or ordered to be refunded pursuant to any
enactment or law relating to bankruptcy, liquidation or insolvency or
for any reason whatever and if such condition shall not be fulfilled
the Finance Parties shall be entitled to enforce this Guarantee
subsequently as if such release, discharge or settlement had not
occurred and any such payment had not been made.
11.2.11 The Finance Parties shall not be obliged before taking steps to
enforce this Guarantee:
(a) to take action or obtain judgment in any court against any
Borrower or any other person;
(b) to make or file any claim in a bankruptcy or liquidation of any
Borrower or any other person; or
(c) to make, enforce or seek to enforce any claim against any
Borrower or any other person under any security or other
document, agreement or arrangement.
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12. REPRESENTATIONS AND WARRANTIES
12.1 Representations and warranties
The Guarantor represents and warrants to each of the Finance Parties
that:
(a) Status: each Obligor is a limited company duly incorporated
under the laws of the jurisdiction of its incorporation, and it
possesses the capacity to sue and be sued in its own name and
has the power to carry on its business and to own its property
and other assets;
(b) Powers and authority: each Obligor has power to execute, deliver
and perform its obligations under this Agreement and to carry
out the transactions contemplated by those documents and all
necessary corporate, shareholder and other action has been or
will be taken to authorise the execution, delivery and
performance of the same;
(c) Binding obligations: subject to the Reservations, the
obligations of each Obligor under this Agreement constitute its
legal, valid and binding obligations;
(d) Contraventions: the execution, delivery and performance by each
Obligor of this Agreement does not:
(i) contravene any applicable law or regulation or any
relevant order of any governmental or other official
authority, body or agency or any judgment, order or decree
of any court having jurisdiction over it;
(ii) conflict with, or result in any material breach of any of
the terms of, or constitute a material default under, any
agreement or other instrument to which any Group Company
(other than, for the period of 6 months after the date the
Offer becomes unconditional in all respects, the Target
and its Subsidiaries) is a party (including, for the
avoidance of doubt, any existing financing documents) or
any licence or other authorisation to which it is subject
or by which it or any of its property is bound; or
(iii) contravene or conflict with the provisions of its
constitutional documents;
(e) Insolvency: no Group Company (other than the Target and its
Subsidiaries) has taken any action nor have any steps been taken
or legal proceedings been started nor, to the best of its
knowledge, information and belief, threatened against it for
winding-up, dissolution or re-organisation (other than a solvent
reorganisation), the enforcement of any Encumbrance over its
assets or for the appointment of a receiver, administrative
receiver, or administrator, trustee or similar officer of it or
of any of its assets;
(f) No default: no Group Company (other than the Target and its
Subsidiaries) is (nor would be with any of the giving of notice,
the lapse of time, the determination of materiality, or the
satisfaction of any other outstanding condition) in breach of or
in default under any agreement to which it is a party or which
is binding on it or any
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of its assets in a manner or to an extent which could reasonably
be expected to have a Material Adverse Effect;
(g) Litigation: no action, litigation, arbitration or administrative
proceeding has been commenced, or is pending or, to the best of
its information, knowledge and belief, threatened, against any
Group Company (other than the Target and its Subsidiaries)
which, if decided adversely, could reasonably be expected to
have a Material Adverse Effect nor is there subsisting any
unsatisfied judgment or award in an amount of at least
(pound)5,000,000 given against any of them by any court,
arbitrator or other body;
(h) Accounts:
(i) the latest Accounts of the Guarantor required to be
delivered under Clause 13.1(a) are prepared in accordance
with GAAP and give a true and fair view of the
consolidated financial position of the Group as at the
date to which they were prepared and for the Financial
Year of the Guarantor then ended; and
(ii) the latest interim accounts required to be delivered under
Clause 13.1(b) shows with reasonable accuracy the
financial condition of the Group during the period to
which they relate;
(i) Authorisations: all authorisations, approvals, licences,
consents, filings, registrations, payment of duties or taxes and
notarisations required:
(i) for the performance and discharge of the obligations of
each Obligor under this Agreement; and
(ii) for the execution, delivery, validity, enforceability or
admissibility in evidence of this Agreement,
are in full force and effect;
(j) Information Memorandum and financial projections:
(i) the factual information contained in the Information
Memorandum is true and accurate in all material respects
and not misleading in any material respect, there are no
other facts the omission of which would make any fact or
statement in the Information Memorandum misleading in any
material respect and nothing has occurred which would
render any fact or statement in the Information Memorandum
untrue or misleading in any material respect; and
(ii) all estimates, forecasts and projections contained or
referred to in the financial projections provided to the
Arranger in connection with the Facility prior to the date
of this Agreement, and all assumptions and presumptions
upon the basis of which the same were made, have been
provided in good faith and were, to the best of the
Guarantor's
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information, knowledge and belief, having made due and
careful enquiry, fair and reasonable at the time they were
made, and nothing has occurred since the date the same
were made which would necessitate a revision to any of
those estimates, forecasts or projections in order for
them to be fair and reasonable;
(k) Environmental: each Group Company (other than the Target and its
Subsidiaries) has and has at all times complied with all
applicable Environmental Law to the extent that non-compliance
would not have a Material Adverse Effect, and (except as
aforesaid) every consent, authorisation, licence or approval
required under or pursuant to any Environmental Law by each
Group Company (other than the Target and its Subsidiaries) in
connection with the conduct of its business and the ownership,
use, exploitation or occupation of its assets has been obtained
and is in full force to the extent consistent with generally
accepted industry good practice, and no circumstances have
arisen, are pending or, to the best of the Guarantor's
information, knowledge and belief, are threatened which might
give rise to a claim against any Group Company (other than the
Target and its Subsidiaries) which could reasonably be expected
to have a Material Adverse Effect having regard to the cost to
that Group Company of meeting such a claim;
(l) No material adverse change: since 31st December 1998 no event
has occurred which has had or could be reasonably expected to
have a Material Adverse Effect;
(m) Year 2000: the computer systems of each Group Company will be
compliant, in all respects material to the business of the
Group, with Year 2000 Conformity (as defined by British Standard
Institute document PD2000-1; 1998 entitled "A Definition of Year
2000 Conformity Requirements", by no later than 31st December
1999; and
(n) Ranking of Obligations: the obligations of each Obligor under
this Agreement shall at all times rank at least pari passu with
all other present and future unsecured Indebtedness of the
Obligors except for obligations which are mandatorily preferred
by law.
12.2 Repetition
The representations and warranties set out in Clause 12.1 shall
survive the execution of this Agreement and shall be deemed to be
repeated as follows:
(a) each of the said representations and warranties shall be deemed
to be repeated on the first Drawdown Date; and
(b) each of the said representations and warranties (other than
those made under Clauses 12.1(e), (g) and (j) to (n) inclusive)
shall be repeated on each Drawdown Date (other than the first
Drawdown Date),
in each case, as if made with reference to the facts existing at the
time of repetition.
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13. UNDERTAKINGS
13.1 Information undertakings
The Guarantor undertakes that during the Covenant Period it shall,
unless the Agent (acting on the instructions of the Majority Banks)
otherwise agrees:
(a) Accounts: as soon as the same become available (and in any event
within 120 days after the end of each of its Financial Years),
deliver to the Agent in sufficient copies for all the Banks the
Accounts for each such Financial Year;
(b) Interim Accounts: as soon as the same become available (and in
any event within 90 days after the end of the first half year of
each of its Financial Years), deliver to the Agent in sufficient
copies for all the Banks unaudited interim consolidated accounts
for the Guarantor for each such half year;
(c) Shareholders' Documents: deliver to the Agent in sufficient
copies for all the Banks all documents despatched by it to its
shareholders or its creditors generally at the same time as they
are despatched;
(d) Information on request: supply to the Agent such information,
documents and records about the business, financial condition
and operations of any Group Company as the Agent may from time
to time reasonably require;
(e) Compliance certificates: provide to the Agent, together with the
Accounts and interim accounts specified in Clauses 13.1(a) and
(b), a certificate signed by two of its directors certifying (i)
that the Guarantor is in compliance with all the undertakings
set out in Clause 13.4.1 (including calculations in respect
thereof) and (ii) the identity of each Material Subsidiary;
(f) GAAP: ensure that all Accounts submitted to the Agent have been
prepared in accordance with GAAP and that all other financial
information submitted to the Agent has been prepared in a manner
which is consistent with GAAP; and
(g) Default and litigation: promptly, upon becoming aware of the
same, notify the Agent of:
(i) any Default or Potential Default; and
(ii) any litigation, arbitration or administration proceedings
commenced against any Group Company involving a potential
liability of any Group Company exceeding (pound)5,000,000.
13.2 Positive undertakings
The Guarantor undertakes that during the Covenant Period it shall, and
it shall procure that each Group Company shall, unless the Agent
(acting on the instructions of the Majority Banks) otherwise agrees:
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(a) Ranking of obligations: ensure that its obligations under the
Financing Documents to which it is a party shall at all times
rank at least pari passu with all its other present and future
unsecured and unsubordinated Indebtedness except for any
obligations which are mandatorily preferred by law and not by
contract;
(b) Compliance with law and authorisations: comply in all material
respects with all laws (including Environmental Law and ERISA)
and obtain, maintain and comply with the terms of any
authorisation, approval, licence, consent, exemption, clearance,
filing or registration required:
(i) for the conduct of its business, trade and ordinary
activities, save to the extent that failure to obtain,
maintain or comply with the same could reasonably be
expected not to have a Material Adverse Effect; and
(ii) to enable it to perform its obligations under, or for the
validity, enforceability or admissibility in evidence of,
any Financing Document;
(c) Insurance: maintain insurance cover (including, if appropriate,
through self-insurance schemes) in relation to its business and
assets of a type and in an amount as is usual for prudent
companies carrying on a business such as that carried on by it
to the extent that such cover is available on reasonably
commercial terms;
(d) Indebtedness: ensure that the aggregate of:
(i) all Indebtedness of Group Companies which is secured by
Encumbrances; and
(ii) all Indebtedness of Group Companies (other than the
Guarantor) which is secured or unsecured,
does not exceed, without double counting, the aggregate of:
(1) the aggregate principal amount of all Indebtedness of
Group Companies in relation to the facilities set out in
Schedule 7;
(2) any Indebtedness incurred by Group Companies (other than
the Guarantor) to refinance a facility set out in Schedule
7 where the principal amount of such Indebtedness does not
exceed the principal amount of Indebtedness outstanding
under such facility;
(3) any Indebtedness incurred by Group Companies under any
interest rate or currency hedging contract;
(4) any Indebtedness incurred by a Group Company (other than
the Guarantor) where such Group Company has executed a
guarantee (in substantially the form set out in Schedule 8
to this Agreement) of the Facility and delivered the same
to the Agent together with such
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supporting documentation as to due execution and capacity
(including legal opinions) as the Agent may reasonably
require; and
(5) (pound)30,000,000; and
(e) Material Subsidiaries: ensure that the Material Subsidiaries
have, in aggregate:
(i) operating profits equal to or greater than 60 per cent. of
the aggregate operating profits of the Group (the
"Operating Profits Test"); and
(ii) gross tangible assets (computed on the same basis as Gross
Tangible Assets but excluding assets which constitute
loans made by one Group Company to another Group Company)
which have a value equal to or greater than 60 per cent.
of the aggregate value of all Gross Tangible Assets (as
shown by the latest Accounts of the Guarantor) owned by
the Group (the "Gross Tangible Assets Test"),
provided that:
(1) where the Material Subsidiaries do not meet the Operating
Profits Test, the Guarantor shall nominate such additional
Subsidiaries of the Guarantor as are required to ensure
that the Operating Profits Test is met. The Guarantor
shall nominate in descending order those Subsidiaries
which have the nearest percentage contribution to the
operating profits of the Group to the 3 per cent.
threshold referred to in paragraph (a) of the definition
of Material Subsidiary; and
(2) after taking into account the Subsidiaries nominated in
paragraph (1) above, where the Material Subsidiaries do
not meet the Gross Tangible Assets Test, the Guarantor
shall nominate such additional Subsidiaries of the
Guarantor as are required to ensure that the Gross
Tangible Assets Test is met. The Guarantor shall nominate
in descending order those Subsidiaries whose gross
tangible assets (computed in accordance with paragraph (b)
of the definition of Material Subsidiary) have a value
which gives the nearest percentage of the aggregate value
of all Gross Tangible Assets (as shown by the latest
Accounts of the Guarantor) of the Group to the 3 per cent.
threshold referred to in paragraph (b) of the definition
of Material Subsidiary.
13.3 Negative undertakings
The Guarantor undertakes that during the Covenant Period it shall not,
and it shall procure that none of the Group Companies shall, unless
the Agent (acting on the instructions of the Majority Banks) otherwise
agrees:
(a) Negative Pledge: create or permit to subsist any Encumbrance
over any of its assets other than Permitted Encumbrances;
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(b) Disposal of assets: make a Disposal other than:
(i) in the ordinary course of its trading activities; or
(ii) a Disposal of a fixed asset in exchange for other fixed
assets comparable or superior as to type, value or quality
or where the proceeds of the Disposal are used within 6
months of that Disposal for the purchase of an asset to
replace directly the asset the subject of that Disposal;
or
(iii) a Disposal of an asset which is obsolete for the purpose
for which such an asset is normally utilised; or
(iv) a Disposal of cash on terms not otherwise prohibited by
this Agreement; or
(v) a Disposal by a Group Company to another Group Company; or
(vi) a Disposal which is subject to Clause 8.3; or
(vii) a Disposal on arm's length terms where the aggregate value
of the assets the subject of a Disposal by Group Companies
other than in accordance with paragraphs (i) to (vi) above
(1) in any Financial Year of the Guarantor does not exceed
an amount equal to 15 per cent. of Gross Tangible Assets
or (2) since the date of this Agreement does not exceed an
amount equal to 30 per cent. of Gross Tangible Assets
(where, in each case, Gross Tangible Assets are as shown
in the most recent Accounts);
(c) Change of business: make any substantial change to the general
nature or scope of the business of the Group as a whole from
that carried on at the date of this Agreement; nor
(d) Mergers: in respect of:
(i) the Guarantor only, enter into any amalgamation, demerger
or merger; or
(ii) a Borrower (other than the Guarantor) enter into any
amalgamation, demerger or merger, unless where the
Majority Banks are satisfied that the obligations of the
Borrower have been transferred to the surviving entity.
13.4 Financial undertakings
13.4.1 The Guarantor undertakes to ensure that during the Covenant Period,
unless the Agent (acting on the instructions of the Majority Banks)
otherwise agrees:
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(a) EBIT to Total Net Interest Costs
the ratio of EBIT to Total Net Interest Costs for each period of
12 months ending on a Half Year Date shall not be less than
3.00:1; and
(b) Total Net Debt to EBITDA
in respect of each Half Year Date, the ratio of Total Net Debt
as at such Half Year Date to EBITDA for the period of 12 months
ending on such Half Year Date shall not exceed 2.50:1.
13.4.2 (a) If the directors of any Group Company determine at any time
during the Covenant Period that the accounting reference date of
that Group Company has or should be changed or any of the
accounting principles applied in the preparation of any of the
Accounts and interim accounts shall be different from those
applied in the preparation of the Accounts of the Guarantor for
its Financial Year ending 31st December 1998, or if as a result
of the introduction or implementation of any accounting standard
or any change in any of them or in any applicable law such
accounting principles are required to be changed, the Guarantor
shall promptly give notice to the Agent of that change,
determination or requirement.
(b) If the Agent believes that the financial undertakings set out in
this Clause 13.4 need to be amended as a result of any such
change, determination or requirement, the Guarantor shall
negotiate with the Agent in good faith to amend the existing
financial undertakings so as to provide the Banks with
substantially the same protections as the financial undertakings
set out in this Clause 13.4 (but which are not more onerous).
(c) If the Guarantor and the Agent cannot agree such amended
financial undertakings within 30 days of that notice, the
Guarantor and the Agent shall jointly nominate a firm of
chartered accountants to settle the amended financial
undertakings, or in default of such nomination the Agent shall
request the President for the time being of the Institute of
Chartered Accountants in England and Wales to nominate a firm of
chartered accountants for that purpose. Such accountants shall
act as experts and not arbitrators and their decision shall be
final and binding on the Parties. The costs of such accountants
shall be paid by the Guarantor.
13.4.3 The calculation of ratios and other amounts under this Clause 13.4
shall be made by the Agent by reference to the latest Accounts,
interim accounts and other financial information of the Group
Companies for the Financial Year of the Guarantor, or other period in
relation to which the calculation falls to be made.
13.5 Offer Related Undertakings
The Guarantor undertakes that it shall, unless the Agent (acting on
the instructions of the Majority Banks) otherwise agrees:
(a) Press release, etc: forward to the Agent prior to publication or
announcement, all publicity material, press releases and
announcements intended to be published or
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announced by or on behalf of the Guarantor in connection with
the Offer which refers to the Facility, the Arranger or the
Banks; and
(b) No price increase: the price per Target Share at which the Offer
is made is not increased above that set out in the Press
Release.
14. DEFAULT
14.1 Default
Each of the following shall be a Default:
(a) Non-payment: any Obligor does not pay on the due date any amount
payable by it under this Agreement at the place and in the
currency and funds in which it is expressed to be payable unless
the failure to pay such amount is due solely to administrative
or technical delays in the transmission of funds which are not
the fault of the relevant Obligor and such amount is not paid
within 3 Business Days of its due date for payment; or
(b) Other defaults: any Obligor breaches any of its obligations
under any Financing Document (other than the obligations
referred to in Clause 14.1(a)) and, if that breach is capable of
remedy, it is not remedied within 10 Business Days after the
first to occur of:
(i) the relevant Obligor becoming aware of such breach; and
(ii) notice of that breach requiring the relevant Obligor to
remedy the same has been given by the Agent to the
relevant Obligor; or
(c) Breach of representation or warranty: any representation,
warranty or statement made or deemed to be repeated by any Group
Company under any Financing Document or in any document
delivered by or on behalf of any Obligor under or in connection
with any Financing Document is incorrect when made or deemed to
have been repeated; or
(d) Unlawfulness or repudiation: it is unlawful for any Obligor to
perform or comply with, or any Obligor repudiates, any of its
obligations under this Agreement; or
(e) Cross-default: other than during the period of 6 months from the
date the Offer becomes unconditional to all respects, in respect
of Indebtedness of the Target and its Subsidiaries that exists
at the date of this Agreement, any Indebtedness of all or any
Group Companies in excess of, in aggregate, (pound)10,000,000:
(i) is not paid when due; or
(ii) is declared to be or otherwise becomes due and payable
prior to its specified maturity,
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or any creditor of all or any Group Companies becomes
entitled to declare any such Indebtedness due and payable
prior to its specified maturity; or
(f) Attachment or distress: a creditor or encumbrancer attaches or
takes possession of, or a distress, execution, sequestration or
other process is levied or enforced upon or sued out against,
any of the assets of any Group Company (having a value of at
least (pound)5,000,000) and such process is not discharged
within 30 days; or
(g) Insolvency proceedings: any person takes any action or any legal
proceedings are started or other steps taken (including the
presentation of a petition) for:
(i) any Obligor or any Material Subsidiary to be adjudicated
or found insolvent; or
(ii) the winding-up or dissolution of any Obligor or any
Material Subsidiary (other than (1) as part of a solvent
reconstruction which, in the case of any Obligor, has been
approved by the Majority Banks), (2) a winding-up petition
which is frivolous or vexatious and which is, in any
event, discharged within 28 days of its presentation and
before it is advertised or (3) a winding-up petition which
is in respect of an amount not exceeding(pound)2,500,000
which is being contested in good faith by the relevant
company with a reasonable prospect of success (as
evidenced by counsel's opinion addressed to the Agent); or
(iii) the appointment of a trustee, receiver, administrative
receiver or similar officer in respect of any Obligor or
any Material Subsidiary or any of its assets;
(h) Adjudication or appointment: any adjudication, order or
appointment is made under or in relation to any of the
proceedings referred to in Clause 14.1(g); or
(i) Administration order: an application is made to the court for an
administration order under the Insolvency Act 1986 with respect
to any Obligor or any Material Subsidiary; or
(j) Analogous proceedings: any event occurs or proceeding is taken
with respect to any Obligor or any Material Subsidiary in any
jurisdiction to which it is subject which has an effect
equivalent or similar to any of the events mentioned in Clause
14.1(f), (g), (h) or (i); or
(k) Change of control: any Obligor (other than the Guarantor) ceases
to be a Subsidiary of the Guarantor; or
(l) Material adverse change: any event or series of events occur
which has or could reasonably be expected to have a Material
Adverse Effect.
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14.2 Acceleration
If a Default occurs and remains unremedied the Agent may, and shall if
so instructed by the Majority Banks, by notice to the Guarantor:
(a) cancel the Facility and require the Borrowers immediately to
repay all Advances together with accrued interest and all other
sums payable under this Agreement, whereupon they shall become
immediately due and payable; or
(b) place the Facility on demand, whereupon all Advances together
with accrued interest and all other sums payable under this
Agreement shall become repayable on demand made by the Agent on
the instructions of the Majority Banks.
Upon the service of any such notice by the Agent the Banks'
obligations to the Borrowers under this Agreement shall be terminated
and the Commitment of each Bank shall be cancelled.
15. SET-OFF
The Agent and each Bank may set off any matured obligation owed by a
Borrower under any Financing Document against any obligation (whether
or not matured) owed by the Agent or the relevant Bank to that
Borrower, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Agent or the relevant Bank may convert either
obligation at the spot rate of exchange of the Agent or the relevant
Bank, as the case may be, for the purpose of the set-off.
16. PRO RATA SHARING
16.1 Redistribution
If any amount owing by a Borrower under this Agreement to a Bank (the
"Sharing Bank") is discharged by voluntary or involuntary payment,
set-off or any other manner other than through the Agent in accordance
with Clause 10, then:
(a) the Sharing Bank shall immediately notify the Agent of the
amount discharged and the manner of its receipt or recovery;
(b) the Agent shall determine whether the amount discharged is in
excess of the amount which the Sharing Bank would have received
had the amount discharged been received by the Agent and
distributed in accordance with Clause 10;
(c) the Sharing Bank shall pay the Agent an amount equal to that
excess (the "Excess Amount") within 5 Business Days of demand by
the Agent;
(d) the Agent shall treat the Excess Amount as if it were a payment
by a Borrower under Clause 10 and shall pay the Excess Amount to
the Banks (other than the Sharing Bank) in accordance with
Clause 10.7; and
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(e) as between the relevant Borrower and the Sharing Bank the Excess
Amount shall be treated as not having been received or
recovered, and accordingly that Borrower shall owe the Sharing
Bank an immediately payable debt equal to the Excess Amount.
16.2 Legal proceedings
Notwithstanding Clause 16.1, no Sharing Bank shall be obliged to share
any Excess Amount which it receives or recovers pursuant to legal
proceedings taken by it to recover any sums owing to it under this
Agreement with any other Bank which has a legal right to, but does
not, either join in such proceedings or commence and diligently pursue
separate proceedings to enforce its rights, unless the proceedings
instituted by the Sharing Bank are instituted by it without prior
notice having been given to such Bank through the Agent and an
opportunity to such Bank to join in such proceedings.
16.3 Reversal of redistribution
If any Excess Amount subsequently has to be wholly or partly refunded
to a Borrower by a Sharing Bank which has paid an amount equal to that
Excess Amount to the Agent under Clause 16.1, each Bank to which any
part of that amount was distributed shall on request from the Sharing
Bank repay to the Sharing Bank that Bank's proportionate share of the
amount which has to be so refunded by the Sharing Bank.
16.4 Information
Each Bank shall on request supply to the Agent such information as the
Agent may from time to time request for the purpose of this Clause 16.
17. THE AGENT AND THE BANKS
17.1 Appointment and duties
17.1.1 Each Bank irrevocably appoints the Agent to act as its agent in
connection with this Agreement and irrevocably authorises the Agent on
its behalf to perform the duties and to exercise the rights, powers
and discretions that are specifically delegated to it under or in
connection with this Agreement together with any other incidental
rights, powers and discretions.
17.1.2 The Agent shall have no duties or responsibilities except those
expressly set out in this Agreement. As to any matters not expressly
provided for, the Agent shall act in accordance with the instructions
of the Majority Banks (but in the absence of any such instructions
shall not be obliged to act). Any such instructions, and any action
taken by the Agent in accordance with those instructions, shall be
binding upon all the Banks.
17.1.3 The Agent may:
(a) act in an agency, trustee, fiduciary or other capacity on behalf
of any other banks or financial institutions providing
facilities to any Group Company or any associated
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company of a Group Company, as freely in all respects as if it
had not been appointed to act as agent for the Banks under this
Agreement and without regard to the effect on the Banks of
acting in such capacity; and
(b) subscribe for, hold, be beneficially entitled to or dispose of
shares or securities, or options or other rights to and
interests in shares or securities in any Group Company or any
associated company of a Group Company (in each case, without
liability to account).
17.1.4 Each division or department of the Agent (including, for so long as
Deutsche Bank AG London is the Agent, the Loan Administration Unit of
Deutsche Bank AG London) shall be treated as a separate entity from
any other division or department of the Agent. If any of the Agent's
divisions or departments (including, in the case of Deutsche Bank AG
London, its Loan Administration Unit) should act for any Group Company
in any capacity (whether as bankers or otherwise) in relation to any
other matter, any information given by any Group Company to any such
division or department may be treated as confidential and the Agent
shall, as between itself and the Banks, not be obliged to disclose the
same to any Bank or any other person.
17.2 Payments
17.2.1 The Agent shall promptly account to the Lending Office of each Bank
for such Bank's due proportion of all sums received by the Agent for
such Bank's account, whether by way of repayment or prepayment of
principal or payment of interest, fees or otherwise.
17.2.2 The Agent shall maintain a memorandum account showing the principal
amount of each Advance outstanding under this Agreement and the amount
of each Bank's Participation in the Advances.
17.2.3 Each Bank confirms in favour of the Agent and the Borrowers that,
unless it notifies the Agent to the contrary which it undertakes to do
if such should be the case, it is and will continue to be:
(a) the beneficial owner of:
(i) any Participation made available by it; and
(ii) any interest paid to it in respect of that Participation;
and
(b) either or both of:
(i) a "bank" for the purposes of Section 840A of the Income
and Corporation Taxes Act 1988; or
(ii) a person who is not "resident" in the United Kingdom (for
the purposes of the Income and Corporation Taxes Act
1988); and
(c) in relation to any Participation in an Advance made by it, it is
a Qualifying Bank; and
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(d) in relation to any interest paid to it otherwise than on a
Participation in an Advance made by it, it is within:
(i) the charge to United Kingdom corporation tax as respects
that interest; or
(ii) paragraph (b) of the defined term Qualifying Bank; or
(iii) paragraph (c) of the defined term Qualifying Bank.
The Agent will pass on to the Borrowers any notification received
pursuant to this Clause.
17.3 Default
The Agent shall not be obliged to monitor or enquire as to whether or
not a Default or Potential Default has occurred. The Agent shall be
entitled to assume that no Default or Potential Default has occurred
unless it receives notice to the contrary from a Borrower or any Bank
describing the Default or Potential Default and stating that such
notice is a "Default Notice" or unless it is aware of a payment
default under this Agreement, in which case it shall promptly notify
each Bank.
17.4 Reliance
The Agent may:
(a) rely on any communication or document believed by it to be
genuine and correct and to have been communicated or signed by
the person by whom it purports to be communicated or signed; and
(b) engage, pay for and rely on the advice of any professional
advisers selected by it given in connection with this Agreement
or any of the matters contemplated by this Agreement,
and shall not be liable to any Party for any of the consequences of
such reliance.
17.5 Legal proceedings
17.5.1 The Agent shall not be obliged to take or commence any legal action or
proceeding against a Borrower or any other person arising out of or in
connection with this Agreement until it shall have been indemnified or
secured to its satisfaction against all costs, claims and expenses
(including any costs award which may be made against it as a result of
any such legal action or proceeding not being successful) which it may
expend or incur in such legal action or proceeding.
17.5.2 The Agent may refrain from doing anything which might in its opinion
constitute a breach of any law or any duty of secrecy or
confidentiality or be otherwise actionable at the suit of any person.
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17.6 No liability
17.6.1 Neither the Agent nor any of its officers, employees or agents shall
be liable for any action taken or not taken by it or any of them under
or in connection with this Agreement unless directly caused by its or
their negligence or wilful misconduct.
17.6.2 The Agent shall not be responsible for any statements, representations
or warranties in this Agreement or for any information supplied or
provided to any Bank by the Agent in respect of a Borrower or any
other person or for any other matter relating to this Agreement or for
the execution, genuineness, validity, legality, enforceability or
sufficiency of this Agreement or any other document referred to in
this Agreement or for the recoverability of any Advance or any other
sum to become due and payable under this Agreement.
17.7 Credit decisions
17.7.1 Each Bank:
(a) acknowledges that it has, independently and without reliance on
the Agent, made its own analysis of the transaction contemplated
by, and reached its own decision to enter into, this Agreement
and made its own investigation of the financial condition and
affairs and its own appraisal of the creditworthiness of the
Borrowers and any surety for the Borrowers' obligations; and
(b) agrees that it shall continue to make its own independent
appraisal of the creditworthiness of the Borrowers and any
surety for the Borrowers' obligations.
17.7.2 Each Bank agrees that it shall, independently and without reliance on
the Agent, make its own decision to take or not take action under this
Agreement.
17.8 Information
17.8.1 The Agent shall provide the Banks with all information and copies of
all notices which are given to it and which by the terms of this
Agreement are to be provided or given to the Banks.
17.8.2 Except as specifically provided in this Agreement, the Agent shall not
be under any duty or obligation:
(a) either initially or on a continuing basis, to provide any Bank
with any credit information or other information with respect to
the financial condition of a Borrower or which is otherwise
relevant to the Facility; or
(b) to request or obtain any certificate, document or information
from a Borrower unless specifically requested to do so by a Bank
in accordance with this Agreement.
17.9 Relationship with Banks
17.9.1 In performing its functions and duties under this Agreement, the Agent
shall act solely as the agent for the Banks and except as expressly
provided in this Agreement shall not be deemed to
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be acting as trustee for any Bank and shall not assume or be deemed to
have assumed any obligation as agent or trustee for, or any
relationship of agency or trust with, any Borrower.
17.9.2 Neither the Agent nor any Bank shall be under any liability or
responsibility of any kind to a Borrower or any other Bank arising out
of or in relation to any failure or delay in performance or breach by
a Borrower or any other Bank of any of its or their respective
obligations under this Agreement.
17.10 Agent's position
17.10.1 With respect to its own Participation in an Advance, the Agent shall
have the same rights and powers under and in respect of this Agreement
as any other Bank and may exercise those rights and powers as though
it were not also acting as agent for the Banks. The Agent may, without
liability to account, accept deposits from, lend money to and
generally engage in any kind of banking, finance, advisory, trust or
other business with or for a Borrower as if it were not the agent for
the Banks under this Agreement.
17.10.2 The Agent may retain for its own use and benefit (and shall not be
liable to account to any Bank for all or any part of) any sums
received by it by way of agency or management or arrangement fees or
by way of reimbursement of expenses incurred by it.
17.11 Indemnity
Each Bank shall immediately on demand indemnify the Agent (to the
extent not reimbursed by the Borrowers) rateably according to the
proportion which the Original Sterling Amount of that Bank's
Participation in the Advances bears to the Original Sterling Amount of
all Advances (or, if no Advance shall then be outstanding, its
Commitment) from and against all liabilities, losses and expenses of
any kind or nature whatsoever (except in respect of any agency,
management or other fee due to the Agent) which may be incurred by the
Agent in its capacity as agent or trustee for the Banks or in any way
relating to or arising out of this Agreement or any action taken or
omitted by the Agent in enforcing or preserving the rights of the
Banks or the Agent under this Agreement, provided that no Bank shall
be liable for any portion of such liabilities, losses or expenses
resulting from the Agent's gross negligence or wilful misconduct.
17.12 Resignation
17.12.1 The Agent may resign by giving at least 60 days' notice to the
Guarantor and each Bank. Upon receipt of a notice of resignation the
Guarantor and the Majority Banks may select any bank or other
financial institution as successor Agent.
17.12.2 If no bank or other financial institution selected by the Guarantor
and the Majority Banks shall have accepted such appointment within 20
days after the Agent has given a notice of resignation then the
Majority Banks may, after consultation with the Guarantor, appoint any
bank or other financial institution as successor Agent.
17.12.3 If no bank or other financial institution selected by the Majority
Banks shall have accepted such appointment within 40 days after the
Agent has given a notice of resignation then the resigning Agent may,
after consultation with the Guarantor, appoint any bank or other
financial institution with an office in London as successor Agent.
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17.12.4 The resignation of the Agent and the appointment of any successor
Agent shall both become effective only upon the successor Agent
notifying the resigning Agent, the Guarantor and each Bank that it
accepts its appointment. On such notification:
(a) the resigning Agent shall be discharged from its obligations and
duties as Agent under this Agreement but it shall continue to be
able to rely on the provisions of this Clause 17 in respect of
all matters relating to the period of its appointment; and
(b) the successor Agent shall assume the role of Agent and shall
have all the rights, powers, discretions and duties which the
Agent has under this Agreement.
17.12.5 The resigning Agent shall make available to the successor Agent all
records and documents held by it as Agent, and shall co-operate with
the successor Agent to ensure an orderly transition.
17.13 Change of office
The Agent may at any time in its sole discretion by notice to the
Guarantor and each Bank designate a different office in the United
Kingdom from which its duties as the Agent will be performed.
18. FEES AND EXPENSES
18.1 Expenses
The Guarantor shall on demand pay all expenses incurred (including
legal, valuation and accounting fees), and any amount in respect of
VAT on those expenses (in so far as it is irrecoverable from HM
Customs and Excise (or any other relevant VAT authority):
(a) by the Agent in connection with the negotiation, preparation and
execution of the Financing Documents and the other documents
contemplated by the Financing Documents;
(b) by the Arranger in connection with the syndication of the
Facility;
(c) by the Agent or the Banks in connection with the granting of any
release, waiver or consent or in connection with any amendment
or variation of this Agreement; and
(d) by the Agent or the Banks in enforcing, perfecting, protecting
or preserving (or attempting so to do) any of their rights, or
in suing for or recovering any sum due from a Borrower or any
other person under any Financing Document, or in investigating
any possible Default or Potential Default.
Such payment shall be made within 30 days of the presentation of any
invoice to the Guarantor in respect thereof.
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18.2 Arrangement and agency fees
The Guarantor shall pay to the Agent arrangement and agency fees in
accordance with the terms of the Fees Letter. For the avoidance of
doubt, all liabilities and obligations of the Guarantor under the Fees
Letter shall be deemed to be incurred under this Agreement.
18.3 Commitment fee
The Guarantor shall pay a commitment fee in Sterling to the Agent for
the account of the Banks at the rate of, prior to the date the Agent
notifies the Guarantor that it has received all the documents listed
in Schedule 2 in accordance with Clause 4, 0.15 per cent. per annum
and thereafter, one half of the Margin on the Available Facility. The
commitment fee shall be calculated on a day to day basis and a 365 day
year in respect of the period commencing on 26th July 1999 and ending
on the last day of the Commitment Period and shall be payable in
arrear at the end of each successive period of 3 months commencing on
the date of this Agreement and also on the last day of the Commitment
Period or on any earlier date on which the Total Commitments equal
zero.
18.4 Utilisation fee
In relation to each successive period of 3 months after the date of
this Agreement, the Guarantor shall on the last day of such period pay
in arrear a utilisation fee of:
(a) where, in respect of such period, the daily average of the
Original Sterling Amount of all Advances during such period
exceeded 33 per cent. of the Total Commitments as at the
commencement of such period, 0.05 per cent. per annum of such
daily average; or
(b) where, in respect of such period, the daily average of the
Original Sterling Amount of all Advances during such period
exceeded 66 per cent. of the Total Commitments as at the
commencement of such period, 0.10 per cent. per annum of such
daily average.
18.5 Documentary Taxes indemnity
All stamp, documentary, registration or other like duties or Taxes,
including any penalties, additions, fines, surcharges or interest
relating to those duties and Taxes, which are imposed or chargeable on
or in connection with this Agreement shall be paid by the Guarantor.
The Agent shall be entitled but not obliged to pay any such duties or
Taxes (whether or not they are its primary responsibility). If the
Agent does so the Guarantor shall on demand indemnify the Agent
against those duties and Taxes and against any costs and expenses
incurred by the Agent in discharging them.
18.6 VAT
All payments made by a Borrower under this Agreement are calculated
without regard to VAT. If any such payment constitutes the whole or
any part of the consideration for a taxable or deemed taxable supply
(whether that supply is taxable pursuant to the exercise of an option
or otherwise) by the Agent or a Bank, the amount of that payment shall
be increased by an
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amount equal to the amount of VAT which is chargeable in respect of
the taxable supply in question.
18.7 Indemnity payments
Where in this Agreement a Borrower has an obligation to indemnify or
reimburse the Agent or a Bank in respect of any loss or payment, the
calculation of the amount payable by way of indemnity or reimbursement
shall be made on the basis of the likely Tax treatment in the hands of
the Agent or the relevant Bank, as the case may be (as conclusively
determined by the relevant party) of the amount payable by way of
indemnity or reimbursement and of the loss or payment in respect of
which that amount is payable.
19. AMENDMENTS AND WAIVERS
19.1 Majority Banks
19.1.1 Subject to Clause 19.2, any term of this Agreement may be amended or
waived with the written agreement of the Guarantor, the Majority Banks
and the Agent. The Agent may effect, on behalf of the Majority Banks,
an amendment or waiver to which the Majority Banks have agreed.
19.1.2 The Agent shall promptly notify the Guarantor and each Bank of any
amendment or waiver effected under Clause 19.1.1 and any such
amendment or waiver shall be binding on the Borrowers and each Bank.
19.2 All Banks
An amendment or waiver which relates to:
(a) the definition of "Majority Banks" in Clause 1.1;
(b) an extension of the date for, or a decrease in an amount or a
change in the currency of, any payment under this Agreement;
(c) an increase in a Bank's Commitment;
(d) a term of this Agreement which expressly requires the consent of
each Bank; or
(e) Clause 7, 8, 16 or 18.3 or this Clause 19,
may not be effected without the prior written consent of each Bank.
19.3 No implied waivers; remedies cumulative
The rights of the Agent and each Bank under this Agreement:
(a) may be exercised as often as necessary;
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(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
19.4 Euro conventions
The Agent may (after consultation with the Banks) notify the Guarantor
that any references in this Agreement to a Business Day, day-count
fraction or other convention (whether for the calculation of interest,
determination of payment dates or otherwise) shall, if different, be
amended to comply with any generally accepted conventions and market
practice from time to time applicable to euro denominated obligations
in the London interbank market. Upon such notification and
notwithstanding Clause 19.1 or 19.2, this Agreement shall be deemed to
be amended accordingly.
19.5 Round amounts
If Sterling is, or is to be, replaced by the euro, the Agent shall
determine suitable round amounts in euro to be substituted for the
minimum and multiple amounts of Sterling specified in Clauses
5.4(b)(i), 5.4(c)(i), 8.3.1 and 8.4.1. The Agent shall notify the
Guarantor and each Bank of the substituted amounts and,
notwithstanding Clause 19.1 or 19.2, this Agreement shall be deemed to
be amended accordingly. The substituted amounts shall apply to any
Advance made on or after the effective date specified in the Agent's
notice.
20. MISCELLANEOUS
20.1 Severance
If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction of
any other provision of this Agreement; or
(b) the legality, validity or enforceability in any other
jurisdiction of that or any other provision of this Agreement.
20.2 Counterparts
This Agreement may be executed in any number of counterparts and this
shall have the same effect as if the signatures on the counterparts
were on a single copy of this Agreement.
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21. NOTICES
21.1 Method
Each notice or other communication to be given under this Agreement
shall be given in writing in English and, unless otherwise provided,
shall be made by fax or letter.
21.2 Delivery
Any notice or other communication to be given by one Party to another
under this Agreement shall (unless one Party has by 15 days' notice to
the other Party specified another address) be given to that other
Party, in the case of the Guarantor and the Agent, at the respective
addresses given in Clause 21.3, and in the case of the Banks, at the
respective addresses given in Schedule 1 or, as the case may be, the
schedule to its relevant Transfer Certificate and in the case of any
new Borrower as set out in its Deed of Accession.
21.3 Addresses
The address, telex number, answerback and fax number of the Guarantor,
the Borrowers and the Agent are:
(A) the Guarantor and the Borrowers:
Ocean House
The Ring
Bracknell
Berkshire RG12 1AN
Attention: Group Treasurer
Fax: 01344 710035
(B) the Agent:
6 Bishopsgate
London EC2N 4DA
Attention: Roger Penn
Fax: 0171 545 4638
21.4 Deemed receipt
21.4.1 Subject to Clause 21.4.2, any notice or other communication given by
or to a Party shall be deemed to have been received:
(a) if sent by fax, with a confirmed receipt of transmission from
the receiving machine, on the day on which transmitted;
(b) in the case of a notice given by hand, on the day of actual
delivery; and
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(c) if posted, on the second Business Day following the day on which
it was despatched by first class mail postage prepaid,
provided that a notice given in accordance with the above but received
on a day which is not a Business Day or after normal business hours in
the place of receipt shall be deemed to have been received on the next
Business Day.
21.4.2 Any Drawdown Notice given to the Agent shall be deemed to have been
given only on actual receipt.
21.5 Notices through Agent
Any notice or other communication from or to a Borrower under this
Agreement shall be sent through the Agent.
22. ASSIGNMENTS AND TRANSFERS
22.1 Benefit of Agreement
This Agreement shall be binding upon and enure to the benefit of each
Party and its successors and assigns.
22.2 Assignments and transfers by Borrowers
No Borrower shall be entitled to assign or transfer any of its rights
or obligations under this Agreement.
22.3 Assignments by Banks
Any Bank may, subject to Clause 22.5, assign any of its rights and
benefits under this Agreement to another bank or other financial
institution provided that until the assignee has confirmed to the
Agent and the other Banks that it shall be under the same obligations
towards each of them as it would have been under if it had been a
party to this Agreement as a Bank, the Agent and the other Banks shall
not be obliged to recognise the assignee as having the rights against
each of them which it would have had if it had been such a party to
this Agreement.
22.4 Transfers by Banks
22.4.1 Any Bank may, subject to Clause 22.5, transfer, in accordance with
this Clause 22.4, any of its rights and obligations under this
Agreement.
22.4.2 If any Bank (the "Existing Bank") wishes to transfer all or any part
of its Commitment or Participation in Advances to another bank or
other financial institution (the "Bank Transferee"), such transfer may
be effected by way of a novation by the delivery to, and the execution
by, the Agent of a duly completed Transfer Certificate.
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22.4.3 On the date specified in the Transfer Certificate:
(a) to the extent that in the Transfer Certificate the Existing Bank
seeks to transfer its Commitment or Participation in Advances,
the Borrowers and the Existing Bank shall each be released from
further obligations to each other under this Agreement and their
respective rights against each other be cancelled (such rights
and obligations being referred to in this Clause 22.4.3 as
"Discharged Rights and Obligations");
(b) the Borrowers and the Bank Transferee shall each assume
obligations towards each other and/or acquire rights against
each other which differ from the Discharged Rights and
Obligations only insofar as the Borrowers and the Bank
Transferee have assumed and/or acquired the same in place of the
Borrowers and the Existing Bank; and
(c) each of the Parties and the Bank Transferee shall acquire the
same rights and assume the same obligations among themselves as
they would have acquired and assumed had the Bank Transferee
been a party under this Agreement as a Bank with the rights
and/or the obligations acquired or assumed by it as a result of
the transfer.
22.4.4 The Agent shall promptly complete a Transfer Certificate on request by
an Existing Bank and upon payment by the Bank Transferee of a fee of
(pound)750 to the Agent. Each party irrevocably authorises the Agent
to execute any duly completed Transfer Certificate on its behalf
provided that such authorisation does not extend to the execution of a
Transfer Certificate on behalf of either the Existing Bank or the Bank
Transferee named in the Transfer Certificate.
22.4.5 The Agent shall promptly notify the Guarantor of the receipt and
execution on its behalf by the Agent of any Transfer Certificate.
22.5 Conditions to assignments and transfers
22.5.1 An assignment or transfer by a Bank shall be in respect of a
Commitment of at least (pound)5,000,000 or, if less, the whole
Commitment of such Bank.
22.5.2 An assignment or transfer of any Commitment shall be subject to the
prior approval of the Guarantor (such approval not to be unreasonably
withheld or delayed) provided that such approval shall be deemed to
have been given if it has not been denied within 5 Business Days of
the request for it being made.
22.6 Consequences of transfer
The Borrowers shall be under no obligation to pay any greater amount
under this Agreement following an assignment or transfer by a Bank of
any of its rights or obligations pursuant to this Clause 22 if, in the
circumstances existing at the time of such assignment or transfer,
such greater amount would not have been payable but for the assignment
or transfer.
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22.7 Disclosure of information
The Agent and each Bank may disclose to each other, to their
professional advisers and (subject to obtaining a confidentiality
undertaking addressed to the Guarantor) to any person with whom they
are proposing to enter, or have entered into, any kind of assignment,
transfer, novation, participation or other agreement in relation to
this Agreement, any information which the Agent or that Bank has
acquired under or in connection with this Agreement.
23. INDEMNITIES
23.1 Breakage costs indemnity
The Borrowers shall indemnify each Bank on demand against any loss or
expense (including any loss or expense on account of funds borrowed,
contracted for or utilised to fund any amount payable under this
Agreement, any amount repaid or prepaid under this Agreement or any
Advance) which that Bank has sustained or incurred as a consequence
of:
(a) an Advance not being made following the service of a Drawdown
Notice (except as a result of the failure of that Bank to comply
with its obligations under this Agreement);
(b) the operation of Clause 6.4;
(c) the failure of a Borrower to make payment on the due date of any
sum due under this Agreement;
(d) the occurrence of any Default or the operation of Clause 14.2;
or
(e) any repayment or prepayment of an Advance otherwise than on the
last day of the Interest Period in relation to that Advance.
23.2 Currency indemnity
23.2.1 Any payment made to or for the account of or received by the Agent or
any Bank in respect of any moneys or liabilities due, arising or
incurred by a Borrower to the Agent or any Bank in a currency (the
"Currency of Payment") other than the currency in which the payment
should have been made under this Agreement (the "Currency of
Obligation") in whatever circumstances (including as a result of a
judgment against a Borrower) and for whatever reason shall constitute
a discharge to that Borrower only to the extent of the Currency of
Obligation amount which the Agent or that Bank, as the case may be, is
able on the date of receipt of such payment (or if such date of
receipt is not a Business Day, on the next succeeding Business Day) to
purchase with the Currency of Payment amount at its spot rate of
exchange (as conclusively determined by the Agent or that Bank) in the
London foreign exchange market.
23.2.2 If the amount of the Currency of Obligation which the Agent or that
Bank is so able to purchase falls short of the amount originally due
to the Agent or that Bank, as the case may be, under this Agreement,
then the relevant Borrower shall immediately on demand indemnify the
Agent or that Bank, as the case may be, against any loss or damage
arising as a result of that
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shortfall by paying to the Agent or that Bank, as the case may be,
that amount in the Currency of Obligation certified by the Agent or
that Bank, as the case may be, as necessary so to indemnify it.
23.3 General
23.3.1 Each indemnity in this Clause 23 shall constitute a separate and
independent obligation from the other obligations contained in this
Agreement, shall give rise to a separate and independent cause of
action, shall apply irrespective of any indulgence granted from time
to time and shall continue in full force and effect notwithstanding
any judgment or order for a liquidated sum or sums in respect of
amounts due under this Agreement or under any such judgment or order.
23.3.2 The certificate of the Agent or the relevant Bank as to the amount of
any loss or damage sustained or incurred by it shall be conclusive and
binding on the Borrowers except for any manifest error.
24. LAW AND JURISDICTION
24.1 Law
This Agreement is governed by and shall be construed in accordance
with English law.
24.2 Jurisdiction
24.2.1 The Parties agree that the courts of England shall have jurisdiction
to settle any disputes which may arise in connection with this
Agreement and that any judgment or order of an English court in
connection with this Agreement is conclusive and binding on them and
may be enforced against them in the courts of any other jurisdiction.
This Clause 24.2.1 is for the benefit of the Agent and each Bank only
and shall not limit the right of the Agent and each Bank to bring
proceedings against the Borrowers in connection with this Agreement in
any other court of competent jurisdiction or concurrently in more than
one jurisdiction.
24.2.2 Each Borrower:
(a) waives any objections which it may have to the English courts on
the grounds of venue or forum non conveniens or any similar
grounds as regards proceedings in connection with this
Agreement; and
(b) consents to service of process by mail or in any other manner
permitted by the relevant law.
24.3 Agent for service
The Borrowers shall at all times maintain an agent for service of
process in England. That agent shall be the Guarantor. Any claim form,
writ, summons, judgment or other notice of legal process shall be
sufficiently served on a Borrower if delivered to that agent at its
address for the time being. No Borrower shall revoke the authority of
that agent. If for any reason any such agent no longer serves as agent
of any Borrower to receive service of process, that
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Borrower shall promptly appoint another such agent and immediately
advise the Agent of that appointment. The Guarantor hereby accepts its
appointment as agent for service under this Agreement.
IN WITNESS whereof the Parties have caused this Agreement to be duly executed on
the date set out above.
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SCHEDULE 1
THE BANKS
Bank and Lending Office Address for Notices Commitment
Deutsche Bank AG London 6 Bishopsgate (pound)175,000,000
6 Bishopsgate London EC2N 4DA
London EC2N 4DA
Attn: Roger Penn
Fax: 0171 545 4638
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SCHEDULE 2
CONDITIONS PRECEDENT
1. A Certified Copy of the certificate of incorporation (and any relevant
certificate of incorporation on change of name) and the memorandum and
articles of association of each Obligor.
2. A Certified Copy of the board minutes and shareholder resolutions of each
Obligor approving and authorising the execution, delivery and performance
of each Financing Document to which it is a party on the terms and
conditions of those documents and authorising a person or persons to sign
or otherwise attest the due execution of those documents and any other
documents to be executed or delivered by it pursuant to those documents
together with a certificate of a duly authorised officer of each such
Obligor setting out the names and signatures of the persons authorised to
sign such documents on its behalf.
3. The most recent Accounts for each Borrower.
4. Certified Copies of all consents, licences, approvals or authorisations of
any governmental or other authority, bureau or agency required by each
Obligor in connection with the execution, delivery, performance, validity
or enforceability of this Agreement or any document to be delivered under
this Agreement.
5. The Fees Letter duly executed by the Guarantor together with the fees
payable under it on the execution of this Agreement.
6. A legal opinion from Wilde Sapte.
7. A Certified Copy of the Press Release.
8. A Certified Copy of the Merger Agreement.
9. A certificate from a director of the Guarantor certifying that the Offer
is unconditional in all respects (including that shareholder acceptances
in respect of not less than 50 per cent. of the Target Shares have been
obtained) and that all requisite regulatory approvals in relation to the
Offer have been obtained.
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SCHEDULE 3
DRAWDOWN NOTICE
To: The Agent
From: *[BORROWER]
*[date]
Dear Sirs,
(pound)175,000,000 Credit Agreement dated * August 1999 (the "Credit Agreement")
Terms defined in the Credit Agreement have the same meaning in this notice.
We request an Advance to be drawn down under the Credit Agreement as follows:
1. Amount and currency of Advance:
2. Drawdown Date:
3. Duration of Interest Period:
4. Payment instructions:
(if applicable)
We confirm that today and on the Drawdown Date:
(a) the representations and warranties in Clause 12 to be repeated are and
will be correct; and
(b) no Default or Potential Default has occurred and is continuing or will
occur on the making of the Advance.
SIGNED
For and on behalf of
*[BORROWER]
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SCHEDULE 4
MANDATORY COST RATE
The Mandatory Cost Rate is an addition to the interest rate on an Advance to
compensate the Banks for the cost attributable to an Advance resulting from the
imposition from time to time under or pursuant to the Bank of England Act 1998
(the "Bank of England 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 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 Cost Rate shall be the rate determined by the Agent to be equal to
the arithmetic mean (rounded, if necessary, to 5 decimal places) of the
respective rates notified by each Reference Bank to the Agent as the rate
resulting from the application (as appropriate) of the following formulae:
in relation to an Advance denominated in Sterling:
(XL + S(L - D) + F x 0.01)/100 - (X + S)
in relation to an Advance denominated in
a currency other than Sterling: (F x 0.01)/300
where 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 that Reference Bank is required under or
pursuant to the Bank of England Act to maintain cash ratio deposits with
the Bank of England;
L is LIBOR for the relevant Advance for the relevant period;
F is the rate of charge payable by that Reference Bank 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 figures at paragraphs 2.02b and 2.03b of
the Fees Regulations shall be deemed to be zero) and expressed in pounds
per (pound)1 million of the Fee Base of that Reference Bank;
S is the level of interest bearing Special Deposits, expressed as a
percentage of Eligible Liabilities, which that Reference Bank 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 that
Reference Bank on Special Deposits.
(X, L, S and D shall be expressed in the formula as numbers and not as
percentages, e.g. if X = 0.15% and L = 7%, XL will be calculated as 0.15 x 7 and
not as 0.15% x 7%. A negative result obtained from subtracting D from L shall be
counted as zero.)
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If any Reference Bank fails to notify any such rate to the Agent, the Mandatory
Cost Rate shall be determined on the basis of the rate(s) notified to the Agent
by the remaining Reference Bank(s).
The Mandatory Cost Rate attributable to an Advance or other sum for any period
shall be calculated at or about 11.00 a.m. on the first day of that period for
the duration of that period.
The determination of the Mandatory Cost Rate in relation to any period shall, in
the absence of proven error, be conclusive and binding on the Parties.
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 either of the above formulae (or any element of the formulae, or
any defined term used in the formulae) inappropriate or inapplicable, the Agent
(following consultation with the Borrowers and the Majority Banks) shall be
entitled to vary the same by giving notice to the Parties. Any such variation
shall, in the absence of proven error, be conclusive and binding on the Parties
and shall apply from the date specified in such notice.
For the purposes of this Schedule:
"Eligible Liabilities" and "Special Deposits" have the meanings given to
those terms under or pursuant to the Bank of England 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 given to that term 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.
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SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
TRANSFER CERTIFICATE
To: The Agent
and the other parties to the Credit Agreement (as defined below)
This transfer certificate ("Transfer Certificate") relates to a credit agreement
dated [ ] August 1999 and made between (1) Ocean Group PLC, (2) certain
subsidiaries of Ocean Group PLC, (3) certain banks, (4) Deutsche Bank AG London
as Agent and (5) Deutsche Bank AG London as Arranger in respect of a
multicurrency revolving loan facility (the "Credit Agreement", which term shall
include any amendments or supplements to it).
Terms defined and references construed in the Credit Agreement shall have the
same meanings and construction in this Transfer Certificate.
1. *[insert full name of Existing Bank] (the "Existing Bank"):
(a) confirms that to the extent that details appear in the schedule to
this Transfer Certificate under the headings "Existing Bank's
Commitment" and "Existing Bank's Participation in Advances", those
details accurately summarise its Commitment and its Participation in
Advances all or part of which is to be transferred; and
(b) requests *[insert full name of Bank Transferee] (the "Bank
Transferee") to accept and procure, in accordance with Clause 22 of
the Credit Agreement, the substitution of the Existing Bank by the
Bank Transferee in respect of the amount of its Commitment and its
Participation in Advances to be transferred as specified in the
schedule to this Transfer Certificate by signing this Transfer
Certificate.
2. The Bank Transferee requests each Borrower, each Bank and the Agent to
accept this executed Transfer Certificate as being delivered under and for
the purposes of Clause 22 of the Credit Agreement so as to take effect in
accordance with the provisions of that Clause on *[insert date of
transfer].
3. The Bank Transferee:
(a) represents and warrants that as at the date of this Transfer
Certificate it is a Qualifying Bank;
(b) confirms that it has received a copy of the Credit Agreement
together with such other documents and information as it has
requested in connection with this transaction;
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<PAGE>
(c) confirms that it has not relied and will not rely on the Existing
Bank to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such
documents or information;
(d) agrees that it has not relied and will not rely on the Agent, the
Existing Bank or any other Bank to assess or keep under review on
its behalf the financial condition, creditworthiness, condition,
affairs, status or nature of the Borrowers; and
(e) confirms to the Agent in the terms of Clause 17.2.3.
4. The Bank Transferee undertakes with the Existing Bank and each of the
other parties to the Credit Agreement that it will perform, in accordance
with its terms, all those obligations which, by the terms of the Credit
Agreement, will be assumed by it upon delivery of the executed copy of
this Transfer Certificate to the Agent.
5. On execution of this Transfer Certificate by the Agent on their behalf,
the Borrowers and the Banks accept the Bank Transferee as a party to the
Credit Agreement in substitution for the Existing Bank with respect to all
those rights and/or obligations which, by the terms of the Credit
Agreement, will be assumed by the Bank Transferee after delivery of the
executed copy of this Transfer Certificate to the Agent.
6. None of the Existing Bank, the other Banks and the Agent:
(a) makes any representation or warranty or assumes any responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Credit Agreement; or
(b) assumes any responsibility for the financial condition of the
Borrowers or any other party to the Credit Agreement or any other
document or for the performance and observance by the Borrowers or
any other party to the Credit Agreement or any other document of its
or their obligations and any and all conditions and warranties,
whether express or implied by law or otherwise, are excluded.
7. The Bank Transferee confirms that its Lending Office and address for
notices for the purposes of the Credit Agreement are as set out in the
schedule to this Transfer Certificate.
8. The Existing Bank gives notice to the Bank Transferee (and the Bank
Transferee acknowledges and agrees with the Existing Bank) that the
Existing Bank is under no obligation to re-purchase (or in any other
manner to assume, undertake or discharge any obligation or liability in
relation to) the transferred Commitment and Participation at any time
after this Transfer Certificate shall have taken effect.
9. Following the date upon which this Transfer Certificate shall have taken
effect, without limiting the terms of this Transfer Certificate, each of
the Bank Transferee and the Existing Bank acknowledges and confirms to the
other that, in relation to the transferred Commitment and Participation,
variations, amendments or alterations to any term of the Credit Agreement
arising in connection with any renegotiation or rescheduling of the
obligations under the Credit Agreement shall apply to and be binding on
the Bank Transferee alone.
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10. This Transfer Certificate is governed by and shall be construed in
accordance with English law.
-65-
<PAGE>
THE SCHEDULE
Existing Bank's Commitment Amount of Commitment Transferred
Existing Bank's Participation in Amount of Participation Transferred
Advances
*[insert full name of Bank Transferee]
Lending Office Address for notices
* *[address]
Attention:
Telex:
Answerback:
Fax:
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<PAGE>
*[Bank Transferee]
By: ...........................................................
(Duly authorised)
*[Existing Bank]
By: ...........................................................
(Duly authorised)
The Agent on behalf of itself and all other parties to the Credit Agreement
By: ...........................................................
(Duly authorised)
Dated:
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SCHEDULE 6
FORM OF DEED OF ACCESSION
THIS DEED is made this [ ] day of [ ] 19[ ] by [ ] of [ ] (the "New Party") in
favour of the other parties to the Credit Agreement (as defined below).
RECITALS:
(A) This Deed is supplemental to a credit agreement (the "Credit Agreement")
dated [ ] August 1999 made between (1) Ocean Group PLC, (2) certain
subsidiaries of Ocean Group PLC, (3) certain banks, (4) Deutsche Bank AG
London as agent and (5) Deutsche Bank AG London as arranger.
(B) The New Party wishes to accede to the Credit Agreement as a Borrower.
(C) It is a term of the Credit Agreement that, in order to accede as a
Borrower, the New Party must enter into this Deed.
NOW THIS DEED WITNESSES AS FOLLOWS
1. Terms defined and references construed in the Credit Agreement shall have
the same meanings and construction in this Deed.
2. The New Party:
(a) agrees to be bound by all the terms and conditions of the Credit
Agreement insofar as they relate to a Borrower as if the New Party
was a party to the Credit Agreement in such capacity; and
(b) represents and warrants to the Agents, the Arranger and the Banks in
the terms of Clause 12.1(a) to (g) but such representations and
warranties shall be given so as to apply, mutatis mutandis, to the
New Party only.
3. The New Party confirms that it has delivered to the Agent the documents
specified in the Schedule to this Deed.
4. The New Party agrees that it shall accede to the Credit Agreement
immediately upon the Agent countersigning this Deed.
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IN WITNESS whereof the New Party has caused this Deed to be executed on the day
set out above.
THE COMMON SEAL of )
[ ] )
was hereunto affixed in )
the presence of: )
Director
Director/Secretary
We agree, on behalf of all the parties to the Credit Agreement, that the New
Party shall, from the date of our signature, accede to the Credit Agreement as
if it were a Borrower named therein and a party to the Credit Agreement.
SIGNED
.....................................
for and on behalf of
[ ]
as Agent Date: [ ]
SCHEDULE
(a) A Certified Copy of our memorandum and articles of association or
equivalent constitutional documents.
(b) A Certified Copy of the resolution of our Board of Directors approving the
transactions contemplated by this Deed and authorising the execution of
this Deed and any other documents contemplated by the Credit Agreement.
(c) Certified Copies of all other resolutions, authorisations, approvals,
consents and licences, corporate, official or otherwise, necessary or
desirable, to enable us to give effect to the transactions contemplated by
this Deed and for the validity and enforceability of this Deed.
(d) A legal opinion from counsel approved by the Agent*.
- ----------
*Not required for a New Party incorporated in England and Wales.
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SCHEDULE 7
PERMITTED INDEBTEDNESS
<TABLE>
<CAPTION>
Principal
Amount
Facility Security Maturity Currency Currency
<S> <C> <C> <C> <C> <C>
Intexo Hldg Fixed Loan Yes 2005 NLG 4,900
Intexo ILM Lease Yes 2017 BEF 390,217
Intexo Veghel Multi User
Intexo Amersfoort Service Yes 2013 NLG 55,024
Intexo Nijmegen Vastgoed CV
Intexo Botlek - Lease Yes 2002 NLG 14,744
Intexo Schipol - Lease Yes 2001 NLG 17,884
MSAS Norway Yes 2016 NOK 20,629
MSAS Belgium Yes 2006 BEF 25,137
MSAS S. Ireland Yes 2001 IEP 967
MSAS Leases:
Hong Kong Yes various HKD 1,280
Denmark Yes 2001 DKK 534
Japan Yes various JPY 9,404
Malaysia Yes various MYR 1,952
Singapore Yes 2002 SGD 664
S. Ireland No 2000 IEP 116
USA No 2001 USD 947
MSAS Overdrafts:
USA No USD 6,086
Skyking No USD 603
Japan No JPY 42,228
Singapore No SGD 737
Thailand No THB 4,206
France No FRF 27,600
Intexo - S/T borrowing No NLG 10,000
Mercury Loan Notes 2008 GBP 2,846
Marken Loan Notes 2008 GBP 2,461
Ellicot Loan Notes 2008 GBP 2,627
SAC Loan Notes 1999 GBP 43
Cory Environmental - Yes 2000 GBP 564
Bishopsgate Lease
</TABLE>
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<PAGE>
SCHEDULE 8
FORM OF GUARANTEE
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<PAGE>
DATED
[GUARANTOR]
and
DEUTSCHE BANK AG LONDON
as Agent
-----------------------
GUARANTEE
-----------------------
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<PAGE>
TABLE OF CONTENTS
Clause Heading Page Number
1. INTERPRETATION.......................................................1
2. GUARANTEE............................................................2
3. CONTINUING AND ADDITIONAL SECURITY...................................2
4. MATTERS NOT TO REDUCE THE GUARANTOR'S LIABILITY......................3
5. GUARANTOR NOT TO TAKE SECURITY.......................................3
6. PAYMENT OF INTEREST..................................................4
7. NO COMPETITION.......................................................4
8. SUSPENSE ACCOUNT.....................................................4
9. NEW ACCOUNTS.........................................................4
10. DISCHARGE TO BE CONDITIONAL..........................................5
11. ENFORCEMENT..........................................................5
12. PAYMENT AND WITHHOLDINGS.............................................5
13. SET-OFF..............................................................6
14. CURRENCY.............................................................6
15. NOTICES..............................................................6
16. WAIVER...............................................................7
17. INDEMNITY............................................................7
18. PROVISIONS SEVERABLE.................................................7
19. CONTINUATION OF GUARANTEE............................................7
20. THE AGENT'S DISCRETION...............................................7
21. GOVERNING LAW........................................................8
[22. JURISDICTION]........................................................8
23. AMENDMENTS...........................................................8
24. TRUST................................................................8
25. ASSIGNMENT...........................................................9
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<PAGE>
THIS GUARANTEE is made on
BY:
(1) [GUARANTOR], a company incorporated under the laws of * with
registered number * having its registered office at * (the
"Guarantor")
IN FAVOUR OF
(2) DEUTSCHE BANK AG LONDON of 6 Bishopsgate, London EC2N 4DA as agent and
trustee for the Finance Parties (the "Agent").
WHEREAS:
(A) By a credit agreement (the "Credit Agreement") dated * made between
Ocean Group PLC, certain banks, the Agent and the Arranger, the Banks
have agreed to make available certain facilities to the Borrowers on
the terms and conditions contained in the Credit Agreement.
(B) It is a term of the Credit Agreement that the Guarantor enter into
this Guarantee.
NOW THIS DEED WITNESSES as follows:
1. INTERPRETATION
1.1 In this Guarantee, unless the context otherwise requires or unless
otherwise defined or provided for in this Guarantee, words and
expressions shall have the same meaning as is attributed to them under
the Credit Agreement. In addition, the following words and expressions
shall have the respective meanings ascribed to them:
"Agent's Rate" means the rate set out in Clause 7.3.1 of the Credit
Agreement.
"Borrowers" means Ocean Group PLC, a company incorporated in England
and Wales with registered number 73975 and any other Group Company
that becomes a party to the Credit Agreement pursuant to Clause 2.4 of
the Credit Agreement; and "Borrower" shall be construed accordingly.
1.2 Clause headings are for convenience of reference only and shall not
affect the construction of this Guarantee.
1.3 In this Guarantee (unless otherwise provided):
(a) references to Clauses are to be construed as references to the
clauses of this Guarantee as amended or varied from time to time
and references to sub-Clauses shall unless otherwise
specifically stated be construed as references to the
sub-clauses of the clause in which the reference appears;
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<PAGE>
(b) references to this Guarantee and any provisions of this
Guarantee or to any other document or agreement are to be
construed as references to this Guarantee, those provisions or
that document or agreement as is in force for the time being and
as amended, varied, supplemented, substituted or novated from
time to time;
(c) words importing the singular shall include the plural and vice
versa;
(d) references to a "person" shall be construed so as to include
that person's assigns or transferees or successors in title and
shall be construed as including references to an individual,
firm, partnership, joint venture, company, corporation,
unincorporated body of persons or any state or any agency
thereof;
(e) references to any statute or statutory provision include any
statute or statutory provision which amends, extends,
consolidates or replaces the same, or which has been amended,
extended, consolidated or replaced by the same, and shall
include any orders, regulations, instruments or other
subordinate legislation made under the relevant statute;
(f) references to liability or liabilities are to be construed to
include all liabilities and obligations whether actual,
contingent, present or future and whether incurred solely or
jointly;
(g) the words "other" and "otherwise" shall not be construed ejusdem
generis with any foregoing words where a wider construction is
possible; and
(h) the words "including" and "in particular" shall be construed as
being by way of illustration or emphasis only and shall not be
construed as, nor shall they take effect as, limiting the
generality of any foregoing words.
2. GUARANTEE
2.1 The Guarantor hereby unconditionally and irrevocably guarantees to the
Agent as agent and trustee for the Finance Parties that it shall on
demand pay to the Agent in the currency in which the same falls due
for payment under the terms of the Credit Agreement, all moneys which
are now or at any time hereafter shall have become due or owing by any
Borrower to any or all of the Finance Parties pursuant to the Credit
Agreement.
2.2 The Guarantor hereby covenants with the Agent as agent and trustee for
the Finance Parties that it shall, to the extent that the same have
fallen due and have not been paid to the Agent pursuant to the terms
of the Credit Agreement, on demand pay to the Agent all costs and
expenses incurred by the Agent in relation to this Guarantee and the
protection or enforcement of the Agent's rights hereunder.
3. CONTINUING AND ADDITIONAL SECURITY
3.1 This Guarantee is a continuing security and shall remain in full force
and effect until all moneys, obligations and liabilities referred to
in Clause 2 have been paid, discharged or
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<PAGE>
satisfied in full notwithstanding the liquidation or other incapacity
or any change in the constitution of any Borrower or of the Guarantor
or in the name and style of either of them or any settlement of
account or other matter whatsoever.
3.2 This Guarantee is in addition to and shall not merge with or otherwise
prejudice or affect or be prejudiced by any other right, remedy,
guarantee, indemnity or security and may be enforced without first
having recourse to the same or any other bill, note, mortgage, charge,
pledge or lien now or hereafter held by or available to the Agent or
any other Secured Party.
3.3 Notwithstanding that this Guarantee ceases to be continuing for any
reason whatever the Finance Parties may continue any accounts of any
Borrower or open one or more new accounts and the liability of the
Guarantor hereunder shall not be reduced or affected by any subsequent
transactions or receipts or payments into or out of any such accounts.
4. MATTERS NOT TO REDUCE THE GUARANTOR'S LIABILITY
4.1 If any purported obligation or liability of any Borrower which is the
subject of this Guarantee is not or ceases to be valid or enforceable
on any ground whatsoever whether or not known to the Agent or any
other Secured Party including but not limited to any defect in or want
of powers of any Borrower or irregular exercise thereof or lack of
authority by any person purporting to act on behalf of any Borrower or
any legal or other limitation (whether under the Limitation Act 1980
or otherwise), disability, incapacity or any change in the
constitution of or any amalgamation, reconstruction or liquidation of
any Borrower, the Guarantor shall nevertheless be liable to the
Finance Parties in respect of that purported obligation or liability
as if the same were fully valid and enforceable and the Guarantor were
the principal debtor in respect thereof. The Guarantor hereby agrees
to keep the Finance Parties fully indemnified in the currency in which
such purported obligation or liability arose against all damages,
losses, costs and expenses arising from any failure of any Borrower to
carry out any such purported obligation or liability.
4.2 The liability of the Guarantor shall not be affected nor shall this
Guarantee be discharged or diminished by reason of:
(a) any present or future bill, note, guarantee, indemnity,
mortgage, charge, pledge, lien or other security or right or
remedy held by or available to all or any of the Finance Parties
being or becoming wholly or in part void, voidable or
unenforceable on any ground whatsoever or by all or any of the
Finance Parties from time to time dealing with exchanging,
varying, realising, releasing or failing to perfect or enforce
any of the same; or
(b) all or any of the Finance Parties compounding with, discharging,
releasing or varying the liability of or granting any time,
indulgence or concession to any Borrower or any other person or
renewing, determining, varying or increasing any bill,
promissory note or other negotiable instrument, accommodation,
facility or transaction in any manner whatsoever or concurring
in, accepting or varying any compromise, arrangement or
settlement or omitting to claim or enforce payment from a
principal debtor or any other person; or
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<PAGE>
(c) any act or omission which would not have discharged or affected
the liability of the Guarantor had it been a principal debtor
instead of guarantor or by anything done or omitted which but
for this provision might operate to exonerate the Guarantor.
5. GUARANTOR NOT TO TAKE SECURITY
The Guarantor warrants to the Agent as trustee for the Finance Parties
that it has not taken or received and undertakes not to take or
receive the benefit of any security from any Borrower in connection
with this Guarantee. If any such security is taken or the Guarantor
receives the benefit of the same the Guarantor declares that such
security and all moneys at any time received in respect thereof shall
be held on trust for the Agent to be applied in discharge of the
liabilities of the Guarantor to the Agent hereunder.
6. PAYMENT OF INTEREST
The Guarantor hereby agrees to pay interest on all sums demanded under
this Guarantee from the date of demand until actual payment (as well
after as before any judgment) at the Agent's Rate calculated on a day
to day basis. Such interest shall be compounded in accordance with the
usual practice of the Agent but without prejudice to the right of the
Agent to require payment of such interest.
7. NO COMPETITION
Until all moneys, obligations and liabilities referred to in Clause 2
have been paid, discharged or satisfied in full, the Guarantor waives
all rights of subrogation and indemnity against any Borrower and
agrees not to share in any security held or moneys received by the
Agent or any other Secured Party on account of such liabilities or,
unless so instructed by the Agent, to claim or prove in competition
with the Agent or any other Secured Party in the liquidation of any
Borrower in respect of any moneys paid by the Guarantor to the Agent
or any other Secured Party under this Guarantee. If the Guarantor
receives any payment or other benefit or exercises any set-off or
counterclaim or otherwise acts in breach of this Clause anything so
received and any benefit derived directly or indirectly by the
Guarantor therefrom shall be held in trust for the Agent to be applied
in discharge of the liability of the Guarantor to the Agent hereunder.
8. SUSPENSE ACCOUNT
8.1 Any money received in connection with this Guarantee may be placed to
the credit of a suspense account with a view to preserving the rights
of the Finance Parties to prove for the whole of their claims against
any Borrower or any other person liable or may be applied by the Agent
in or towards satisfaction of such of the moneys, obligations or
liabilities of any Borrower hereby guaranteed as the Agent in its
absolute discretion may from time to time conclusively determine.
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<PAGE>
8.2 The Guarantor shall have no right in respect of the application by the
Finance Parties of any sums received by the Agent from the Guarantor
under, or pursuant to, the terms of this Guarantee.
9. NEW ACCOUNTS
If this Guarantee is determined or called in by demand made by the
Agent, then the Finance Parties may open a new account or accounts
with each Borrower. If the Finance Parties do not open a new account
or accounts they shall nevertheless be treated as if they had done so
at the time of determination or calling in and as from that time all
payments made to the Finance Parties shall be credited or be treated
as having been credited to the new account or accounts and shall not
operate to reduce the amount for which this Guarantee is available as
security at that time.
10. DISCHARGE TO BE CONDITIONAL
Any release, discharge or settlement between the Guarantor and the
Agent shall be conditional upon no security disposition or payment to
any of the Finance Parties by any Borrower or any other person being
void, set aside or ordered to be refunded pursuant to any enactment or
law relating to bankruptcy, liquidation or insolvency or for any
reason whatever and if such condition shall not be fulfilled the Agent
shall be entitled to enforce this Guarantee subsequently as if such
release, discharge or settlement had not occurred and any such payment
had not been made.
11. ENFORCEMENT
The Agent and the other Finance Parties shall not be obliged before
taking steps to enforce this Guarantee:
(a) to take action or obtain judgment in any court against any
Borrower or any other person;
(b) to make or file any claim in a bankruptcy or liquidation of any
Borrower or any other person; or
(c) to make, enforce or seek to enforce any claim against any
Borrower or any other person under any security or other
document, agreement or arrangement.
12. PAYMENT AND WITHHOLDINGS
All sums due and payable by the Guarantor under this Guarantee shall
be made in full without set-off or counterclaim and free and clear of
and (subject as provided in the next sentence) without deduction for
or on account of any future or present Taxes. If:
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<PAGE>
(a) the Guarantor is required by any law to make any deduction or
withholding from any sum payable by the Guarantor to the Agent
hereunder; or
(b) the Agent or any other Secured Party is required by law to make
any payment, on account of tax (other than tax on its overall
net income) or otherwise, on or in relation to any amount
received or receivable by the Agent hereunder;
then the sum payable by the Guarantor in respect of which such
deduction, withholding or payment is required to be made shall be
increased to the extent necessary to ensure that, after the making of
such deduction, withholding or payment, (and after taking account of
any deduction, withholding or payment which is required to be made as
a result of the increase) the Agent receives and retains a net sum
equal to the sum which it and the other Finance Parties would have
received and so retained had no such deduction, withholding or payment
been made.
13. SET-OFF
In addition to any general lien or similar right to which it may be
entitled by operation of law, each Secured Party shall have the right
at any time and without notice to the Guarantor (as well before as
after making any demand hereunder) to set off or transfer any sum or
sums standing to the credit of any account of the Guarantor with such
Secured Party (whether current or otherwise or subject to notice) in
or towards satisfaction of the liability of the Guarantor to the Agent
and/or such Secured Party hereunder.
14. CURRENCY
The Agent may, in order to cover the obligations of any Borrower in
another currency in its sole discretion, convert any moneys received,
recovered or realised in any currency under this Guarantee (including
the proceeds of any previous conversion under this Clause) from their
existing currency of denomination into any other currency at the
Agent's spot rate of exchange at such time as the Agent thinks fit.
15. NOTICES
15.1 Method
All notices and demands to be made under this Guarantee shall be made
in writing in English but, unless otherwise provided, may be made by
facsimile transmission or letter.
15.2 Delivery
Any notice or demand to be made or delivered by the Agent pursuant to
this Guarantee shall (unless the Guarantor has by 15 days' written
notice to the Agent specified another address) be made or delivered at
the following address:
[name of Guarantor]:
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*[address]
Attention: *
Fax: *
15.3 Deemed Receipt
15.3.1 Any notice given by the Agent shall be deemed to have been received:
(a) if sent by fax, with a confirmed receipt of transmission from
the receiving machine, on the day on which transmitted;
(b) in the case of a notice given by hand, on the day of actual
delivery; and
(c) if posted, on the second Business Day [or, in the case of
airmail, the fifth Business Day] following the day on which it
was properly despatched by first class mail postage prepaid [or,
as the case may be, airmail postage prepaid].
15.3.2 Any notice given to the Agent shall be deemed to have been given only
on actual receipt.
16. WAIVER
No failure on the part of the Agent to exercise, or delay on its part
in exercising, any of its rights, powers and remedies provided by this
Guarantee or by law (collectively the "Rights") shall operate as a
waiver thereof, nor shall any single or partial exercise of any of the
Rights preclude any further or other exercise of that one of the
Rights concerned or the exercise of any other of the Rights.
17. INDEMNITY
The Guarantor hereby agrees to indemnify (save as so far otherwise
indemnified hereunder) the Agent against all losses, actions, claims,
costs, charges, expenses and liabilities incurred or sustained by the
Agent in relation to this Guarantee (including, without limitation,
the costs, charges and expenses incurred in the enforcement of this
Guarantee or occasioned by any breach by the Guarantor of any of its
covenants or obligations to the Agent under this Guarantee). The
Guarantor shall so indemnify the Agent on demand and shall pay
interest on the sum demanded at the Agent's Rate calculated on a day
to day basis (as well after as before judgment) from the date of the
same being incurred by the Agent to the date of payment thereof.
18. PROVISIONS SEVERABLE
Every provision contained in this Guarantee shall be severable and
distinct from every other such provision and if at any time any one or
more of such provisions is or becomes invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining such provisions shall not in any way be affected thereby.
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<PAGE>
19 CONTINUATION OF GUARANTEE
19.1 This Guarantee shall remain in full force and effect notwithstanding
the termination of the Credit Agreement or any amendments or
variations from time to time of the Credit Agreement and all
references herein to the Credit Agreement shall be taken as referring
to the Credit Agreement as amended or varied from time to time.
19.2 This Guarantee is and will remain the property of the Agent.
20. THE AGENT'S DISCRETION
20.1 Any liberty or power which may be exercised or any determination which
may be made hereunder by the Agent may be exercised or made in the
absolute and unfettered discretion of the Agent which shall not be
under any obligation to give reasons therefor.
20.2 A certificate by an officer of the Agent (i) as to the amount for the
time being due to the Agent or any other Secured Party from any
Borrower, and (ii) as to any sums payable to the Agent hereunder,
shall, save in the case of proven error, be conclusive and binding
upon the Guarantor for all purposes.
21. GOVERNING LAW
This Guarantee is governed by and shall be construed in accordance
with English law.
[22. JURISDICTION
[22.1 The courts of England shall have jurisdiction to settle any disputes
which may arise out of or in connection with this Guarantee.
22.2 Clause 22.1 is for the benefit of the Finance Parties only and is
without prejudice to the right of the Agent or any other Secured Party
to bring any proceedings relating to this Guarantee in any other court
which has jurisdiction.] [**Brussels Convention Country]
[OR]
[22.1 The Guarantor agrees that the English courts shall have exclusive
jurisdiction in relation to any dispute or controversy arising out of
or in respect of this Guarantee and that any judgment or order of an
English court made in this respect is conclusive and binding on the
Guarantor and may be enforced against the Guarantor in the courts of
any other jurisdiction.] [**exclusive jurisdiction - non-Brussels
Convention Country]
22.[2][3] For the purposes of this Guarantee the Guarantor hereby:
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(a) waives any objections on the grounds of venue or forum non
conveniens or any similar grounds; and
(b) consents to service of process by mail or in any other manner
permitted by the relevant law.
22.[3][4] The Guarantor hereby undertakes that it will at all times maintain an
agent for service of process in England. Such agent shall be * of *
and any writ, summons, judgment or other notice of legal process shall
be sufficiently served on the Guarantor if delivered to such agent at
its address for the time being, and the Guarantor hereby undertakes
that it will not revoke the authority of the above agent, and if for
any reason any such agent no longer serves as agent of the Guarantor
to receive service of process, the Guarantor shall promptly appoint
another such agent and advise the Agent thereof.]
23. AMENDMENTS
No amendment or waiver of any provision of this Guarantee and no
consent to any departure by the Guarantor therefrom shall be effective
unless the same shall be in writing and signed or approved in writing
by the Agent, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
24. TRUST
The Agent shall hold the benefit of this Guarantee upon trust for the
Finance Parties.
25. ASSIGNMENT
The Finance Parties shall have a full and unfettered right to assign
or otherwise transfer the whole or any part of the benefit of this
Guarantee to any person to whom all or any part of its rights,
benefits and obligations under the Credit Agreement are assigned or
transferred in accordance with the provisions of the Credit Agreement
and the expression the "Agent" wherever used herein shall be deemed to
include the assignees and other successors, whether immediate or
derivative, of the Agent, who shall be entitled to enforce and proceed
upon this Guarantee in the same manner as if named herein. The Agent
shall be entitled to impart any information concerning the Guarantor
to any such assignee or other successor or any participant or proposed
assignee, successor or participant.
IN WITNESS whereof the Guarantor has executed this Guarantee as a deed and the
Agent has executed this Guarantee under hand the day and year first before
written.
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<PAGE>
THE COMMON SEAL of )
*[GUARANTOR] )
was hereunto affixed in the )
presence of: )
John Coghlan Director
Andrew McMichael Director/Secretary
SIGNED for and on behalf of )
DEUTSCHE BANK AG LONDON )
Sean Malone
-83-
<PAGE>
The Guarantor
SIGNED by John Coghlan )
)
for and on behalf of )
OCEAN GROUP PLC )
The Banks
SIGNED by Sean Malone )
)
for and on behalf of )
DEUTSCHE BANK AG LONDON )
The Agent
SIGNED by Sean Malone )
)
for and on behalf of )
DEUTSCHE BANK AG LONDON )
-84-
<PAGE>
The Arranger
SIGNED by Sean Malone )
)
for and on behalf of )
DEUTSCHE BANK AG LONDON )
-85-
