<PAGE>
DATED 15TH OCTOBER, 1999
MOVEABILITY LIMITED
(as Borrower)
WPP GROUP PLC
(as Guarantor)
BARCLAYS BANK PLC
(as Facility Agent and Arranger)
and
THE LENDERS HEREIN REFERRED TO
---------------------------------------
REVOLVING FACILITY AGREEMENT
---------------------------------------
ALLEN & OVERY
London
BK:682400.4
<PAGE>
CONTENTS
<TABLE>
<CAPTION>
CLAUSES PAGE
<S> <C>
1. Interpretation.......................................................1
2. Amount and Purpose of the Facility..................................10
3. Syndicate and Borrowers and Guarantors..............................10
4. Conditions Precedent................................................12
5. Utilisation of Facility.............................................13
6. Alternative currencies for Facility.................................14
7. Interest and Commissions............................................15
8. Reduction of Facility and Repayment.................................17
9. Prepayment and Cancellation.........................................17
10. Representations and Warranties......................................18
11. Undertakings........................................................20
12. Changes in Circumstances............................................26
13. Payments............................................................28
14. Default.............................................................31
15. Indemnity...........................................................34
16. Guarantee...........................................................35
17. The Facility Agent and the Arranger.................................38
18 Fees and Expenses...................................................42
19. Set Off and Pro Rata Sharing........................................43
20. Benefit of Agreement................................................45
21. Further Provisions..................................................47
SCHEDULES
1. Lenders and Commitments.............................................51
2. Sterling Reserve Asset Costs........................................52
3. Credit Request in respect of Advances...............................54
4. Certificate.........................................................55
5. Form of Accession Notice............................................56
6. Form of Guarantor Accession Agreement...............................57
7. Notice of Proposed Substitution.....................................62
8. Form of Novation Agreement..........................................63
9. Form of Transfer Certificate........................................66
SIGNATORIES..................................................................69
</TABLE>
<PAGE>
THIS AGREEMENT is made the 15th day of October, 1999.
BETWEEN:
1. MOVEABILITY LIMITED of 27 Farm Street, London, W1X 6RD as borrower (the
"COMPANY");
2. WPP GROUP plc of 27 Farm Street, London W1X 6RD as guarantor (the
"PARENT");
3. THE GUARANTORS from time to time;
4. BARCLAYS BANK PLC of 54 Lombard Street, London EC3P 3AH (the "FACILITY
AGENT");
5. THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 (the
"LENDERS"); and
6. BARCLAYS BANK PLC (the "ARRANGER").
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement each of the following expressions has, except where
the context otherwise requires, the meaning shown opposite it:
"ACCESSION NOTICE" means in respect of a proposed additional Borrower,
a notice substantially in the form set out in Schedule 5 duly completed
and signed on behalf of the proposed additional Borrower and the
Borrowers' Agent;
"ACCOUNTS RECEIVABLE FACILITIES" means:
(i) the receivables purchase facility in an amount, on 3rd July,
1998, of up to $300,000,000 under the pooling and servicing
agreement dated 3 December, 1993 between Capital III Corp. as
the seller, WPP Group USA Inc., as the servicer and Mellon
Bank N.A., as the Trustee; and
(ii) the receivables purchase facility in an amount, on 3rd July,
1998, of up to Y2,000,000,000 between JWT Japan Limited as
seller and Strait Capital Corporation, Tokyo Branch as
purchaser under a purchase agreement dated 29th October, 1996,
together with, in each case, all related transaction documents as
amended, increased, restated, extended, refinanced or replaced from
time to time;
"ACQUISITION" means the acquisition directly or indirectly (whether by
one transaction or by a series of related transactions) of any interest
whatsoever in the share capital (or equivalent) or the business or
undertaking, or assets constituting a substantial part of the business
or undertaking, of any company or other person other than a member of
the Group;
"ACQUISITION CASH LIMIT" means in relation to any financial year, an
amount equal to the aggregate of:
(i) $500,000,000; and
<PAGE>
(ii) the amount by which Acquisition Cash Payments made in the
preceding financial year fall short of the Acquisition Cash
Limit for the preceding financial year but subject to a
maximum amount equal to 20% of the Acquisition Cash Limited
for that preceding financial year;
"ACQUISITION CASH PAYMENT" means in relation to any financial year, any
cash consideration in respect of an Acquisition (other than by way of
assumption of debt not issued in contemplation of that Acquisition)
paid by a member of the Group in that year, whether at the time of
Acquisition or on a deferred basis pursuant to an Acquisition made
prior to that financial year and including (i) cash payable upon
redemption of preferred stock issued by way of consideration for any
Acquisition and (ii) cash Earn-out Payments (but does not include cash
raised by way of issuance of shares by a member of the Group for the
purpose of or in connection with the Acquisition);
"ADVANCE" means the principal amount of each amount made available to a
Borrower hereunder in respect of the Facility by way of advance or
roll-over or (as the context requires) the principal amount thereof for
the time being outstanding;
"AFFILIATE" means in relation to a Lender, any Subsidiary or Holding
Company of that Lender and any other Subsidiary of that Holding
Company, in any case which is a bank carrying on a bona fide banking
business in the United Kingdom.
"AGENT'S SPOT RATE OF EXCHANGE" means the spot rate of exchange
determined by the Facility Agent for the purchase with one currency of
any other relevant currency in the London foreign exchange market at or
about 11.00 a.m. on the day in question for delivery two Business Days
later, the Facility Agent's certificate of such rate being conclusive
in the absence of manifest error;
"ALTERNATIVE CURRENCY" means any currency (other than dollars) which is
freely transferable and immediately convertible into dollars and
available in the London Interbank Market;
"APPLICABLE ACCOUNTING PRINCIPLES" means accounting principles and
practices which at the Signing Date are generally accepted in the
United Kingdom;
"AVAILABILITY PERIOD" means the period commencing on the Signing Date
and ending at the close of business in New York on the Final Drawing
Date;
"BACK TO BACK LOAN" means any loan or other financial accommodation
made available to a member of the Group to the extent that the
creditor:
(a) has recourse directly or indirectly to a deposit of cash or
cash equivalent investments beneficially owned by any member
of the Group placed, as part of a related transaction, with
that creditor (or an affiliate of that creditor) or a
financial institution approved by that creditor on the basis
that the deposit be available, directly or indirectly or
(b) has granted a sub-participation, risk participation or similar
arrangement,
so as to reduce the economic exposure of the creditor to the Group,
when looking at the related transactions together, to a net amount;
<PAGE>
"BORROWER" means any of the Company and any additional Borrower as
shall accede to this Agreement pursuant to clause 3.7 or be substituted
under clause 3.10, in each case so long as they remain or are required
to remain Borrowers and, as the context requires, together the
"BORROWERS";
"BORROWERS' AGENT" means the Parent as agent for the Borrowers and the
Guarantors and each of them in accordance with clause 3.5;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open in London for the transaction of business of the nature
required by this Agreement and:
(a) in relation to a day on which a payment is to be made in a
currency other than euros in the place of the principal
domestic market of the currency of such payment; and
(b) in relation to any rate fixing date for euros, a TARGET Day;
"COMMITMENT" means in relation to a Lender, the principal amount set
opposite its name in Column 2 of Schedule 1 as reduced or cancelled
from time to time in accordance with this Agreement;
"CREDIT" means an Advance issued under the Facility;
"CREDIT REQUEST" means a notice of drawing substantially in the form
set out in Schedule 3 in the case of Advances duly completed and signed
in each case by the Borrowers' Agent;
"DOLLARS AND $" means the lawful currency of the United States of
America;
"DOLLAR AMOUNT" means:
(a) in relation to any Advance or other amount denominated in
dollars, its principal amount; or
(b) in relation to any Advance in an Alternative Currency, the
Dollar Equivalent of the principal amount of such Advance
determined on the latest date on which a Credit Request is
received by the Facility Agent; or
(c) in relation to any other amount denominated in a currency
other than dollars, the Dollar Equivalent of such amount
determined on the date on which such amount was last advanced
to the relevant Borrower;
"DOLLAR EQUIVALENT" means in relation to any amount denominated in any
currency other than dollars, the equivalent thereof in dollars as
determined by the Facility Agent on the basis of the Agent's Spot Rate
of Exchange on the date of determination;
"DRAWING DATE" means a Business Day upon which any Credit is to be made
available;
"EARN-OUT PAYMENT" means any payment made or to be made to a former
shareholder in a Subsidiary pursuant to arrangements made in connection
with the acquisition of such Subsidiary by any member of the Group and
related to the performance of that Subsidiary , including any payment
in respect of loan notes issued to such former shareholder in
connection with the said acquisition but excluding payments under
Employee Incentive Plans;
"ELIGIBLE COMPANY" means any of the Borrowers and any other Subsidiary;
<PAGE>
"EMPLOYEE INCENTIVE PLAN" means any arrangement entered into by any
member of the Group (other than Earn-out Payments) for the payment for
services, acquisition or purchase of shares, warrants or other equity
linked instruments of any kind (or options for any of the foregoing) or
similar arrangements from any person (or any entity on behalf of or
ultimately for the benefit of that person) primarily for the purpose of
incentivising or compensating that person for services to any member of
the Group in the nature of services of employment;
"EURO" and "[Euro]" means the single currency of the Participating
Member States;
"EVENT OF DEFAULT" means any of the events mentioned in clause 14.1;
"EXCEPTIONAL ITEMS" has the meaning given to it in the Applicable
Accounting Principles but shall exclude any items falling within the
definition of Extraordinary Items;
"EXTRAORDINARY ITEMS" has the meaning given to it in the Applicable
Accounting Principles;
"FACILITY" means the facility, the terms and conditions of which are
set out in this Agreement;
"FACILITY AGENT" means Barclays Bank PLC or any successor as facility
agent of the Lenders under the Financing Documents;
"FINAL MATURITY" means one year less one day from the Signing Date;
"FINAL DRAWING DATE" the date falling seven days prior to Final
Maturity;
"FINANCING DOCUMENTS" means this Agreement, the Accession Notices, the
Guarantor Accession Agreements, and any other document designated as
such by the Facility Agent and the Borrowers' Agent in writing;
"FIRST SYNDICATION DATE" means the date on which syndication of the
Facility to one or more banks takes place.
"GROUP" means the Parent, the Company and the Subsidiaries;
"GUARANTEED AMOUNTS" means any and all amounts whatsoever (including,
without limitation, interest after the filing of a petition initiating
a proceeding referred to in clause 14.1(F), whether or not such
interest constitutes an allowed claim for the purposes of such
proceeding) which are to be paid by the Borrowers (or any of them) to
the Facility Agent or the Lenders (or any of them) under the Financing
Documents;
"GUARANTORS" means the Parent and each Subsidiary which becomes a
Guarantor pursuant to clause 3.8, in each case so long as they remain
or are required to remain Guarantors, and Guarantor means any of them;
"GUARANTOR ACCESSION AGREEMENT" means in respect of a proposed
additional Guarantor, an agreement substantially in the form set out in
Schedule 6 duly completed and signed on behalf of the proposed
additional Guarantor, the Parent and the Facility Agent;
"HOLDING COMPANY" has the meaning ascribed to it in Section 736 of the
Companies Act 1985;
<PAGE>
"INTEREST PAYMENT DATE" means for any Advance, the last day of an
Interest Period and for any Interest Period longer than six months the
date falling six months after the first day of such Interest Period and
the last day of such Interest Period;
"INTEREST PERIOD" means for any Advance, the period determined in
accordance with clause 7.2;
"LENDERS" means the banks and financial institutions listed in Schedule
1 and their respective successors, transferees and assigns as such;
"LOAN" means the aggregate of Advances outstanding under this
Agreement;
"L", "POUNDS" and "STERLING" means the lawful currency of the United
Kingdom of Great Britain and Northern Ireland;
"MAJORITY LENDERS" means at any time, Lenders whose Commitments
represent more than 662/3% in aggregate of the Total Commitments;
"MARGIN" has the meaning given thereto in clause 7.1;
"MATERIAL SUBSIDIARY" means at any time, a Subsidiary whose
consolidated revenues are at least 5% of the aggregate of the total
consolidated revenues of all members of the Group. For this purpose:
(i) in the case of a company which itself has subsidiaries, the
calculation shall be made by using the consolidated revenues
of it and its subsidiaries;
(ii) the calculation of consolidated revenues shall be made by
reference to:
(a) the accounts of the relevant Subsidiary (consolidated
where necessary) used for the purpose of the most
recent audited consolidated accounts of the Company;
and
(b) the accounts of each member of the Group used for the
purpose of those audited consolidated accounts of the
Company;
"NOTICE OF PROPOSED SUBSTITUTION" means in respect of a proposed
substitute Borrower, the notice delivered by the Borrowers' Agent to
the Facility Agent in the form set out in Schedule 7;
"NOVATION AGREEMENT" means in respect of a proposed substitute
Borrower, a novation agreement substantially in the form set out in
Schedule 8 duly executed or to be executed by the parties thereto;
"OUTSTANDINGS" means the aggregate of all amounts for the time being
outstanding under the Facility
"POTENTIAL EVENT OF DEFAULT" means any event which with the giving of
notice, expiry of any grace period or satisfaction of any other
condition specified in clause 14.1 would constitute an Event of
Default;
<PAGE>
"QUALIFYING BANK" means a bank as defined in section 840A of the Income
and Corporation Taxes Act 1988 (as in force at the date of this
Agreement), which is within the charge to U.K. corporation tax as
regards any interest received by it under this Agreement.
"RATIO CERTIFICATE" means the certificate referred to in clause
11.5(B);
"REFERENCE BANKS" means subject to clause 7.7:
(a) from the Signing Date up to but not including the First
Syndication Date, Barclays Bank PLC; and
(b) on and from the First Syndication Date, the principal London
office of such other Lenders as the Parent and the Faclity
Agent may agree and any replacement Lender nominated under
clause 7.8;
"RESERVE ASSET COSTS" means:
(i) in relation to an Advance in sterling for any period, a rate
per annum calculated in accordance with Schedule 2;
(ii) in relation to an Advance denominated in dollars to a US
Subsidiary made available by a US incorporated bank or a US
branch of a non-US incorporated bank, the cost (if any)
certified by that Lender as being the cost to it of complying
with Regulation D of the Board of Governors of the Federal
Reserve System of the United States of America attributable to
such Advance;
(iii) in relation to an Advance denominated in euro, the cost (if
any) certified by that Lender as being the cost to it of
complying with any reserve asset requirements of the European
Central Bank; and
(iv) in relation to an Advance denominated in any other currency,
the cost (if any) certified by any relevant Lender as being
the cost to it of complying with any applicable regulatory or
central bank requirement relating to Advances in that currency
made through a branch in the jurisdiction of the relevant
currency;
"SECURITY INTEREST" means any mortgage, charge, pledge, lien or other
security interest;
"SHARING LENDER" has the meaning given thereto in clause 19.2(G);
"SIGNING DATE" means the date of signature of this Agreement;
"SUBSIDIARY" means a subsidiary for the time being of the Parent and
"SUBSIDIARIES" shall refer to all such subsidiaries;
"TARGET DAY" means a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer (TARGET) System is open;
"TOTAL COMMITMENTS" means the aggregate amount for the time being of
all the Commitments in respect of all the Lenders;
"TOTAL OUTSTANDINGS" means the aggregate amount from time to time of
all Outstandings in respect of all the Lenders;
<PAGE>
"TRANSFER CERTIFICATE" means a certificate substantially in the form of
Schedule 9 delivered by a Lender to the Facility Agent pursuant to
clause 20.3; and
"U.S. BORROWER", "U.S. GUARANTOR", "U.S. SUBSIDIARY" means a Borrower,
Guarantor or Subsidiary, as the case may be, incorporated under the
laws of any State in the United States of America.
1.2 FINANCIAL DEFINITIONS
In this Agreement the following expressions have the following
meanings:
"BORROWINGS" means:
(A) moneys borrowed or raised (including, without limitation,
amounts advanced under the Accounts Receivable Facilities and
any accounts receivable facility entered into on or after 3rd
July 1998);
(B) any liability under any bond, bill discounting facility,
debenture, note or other similar debt security or under
acceptance credit or note purchase facilities, letter of
credit, subordinated debt or any amount raised pursuant to an
issue of shares which are expressed to be redeemable (in cash
or in instruments which would themselves constitute
Borrowings) on or prior to Final Maturity;
(C) any liability in respect of the acquisition cost of assets or
services to the extent payable more than 120 days before or
after the time of acquisition or possession thereof by the
party liable but excluding any bona fide performance related
cash consideration payable under Employee Incentive Plans or
for an Acquisition calculated by reference to future profits
in accordance with the current practice of the Group as at 3rd
July, 1998;
(D) the capital element of rentals payable under finance leases
(required to be disclosed in accordance with S.S.A.P. 21)
entered into primarily as a method of raising finance or
financing the acquisition cost of the asset in question; and
(E) any guarantee or other assurance against financial loss in
respect of any indebtedness of the type specified in
paragraphs (A) to (D) above (including any obligation to
counter-indemnify any person in respect of the provision of
any such guarantee (but only to the extent that Borrowings
supported thereby are outstanding);
but:
(i) indebtedness owing or shares issued by one member of
the Group to another member of the Group shall not be
taken into account as Borrowings;
(ii) interest (other than interest which is capitalised
and which itself bears interest), acceptance
commission and finance charges shall be excluded;
(iii) Trade Debt and Back to Back Loans shall be excluded;
(iv) no indebtedness shall be taken into account more than
once (so that, for example, a guarantee shall be
excluded to the extent that the indebtedness
guaranteed thereby is taken into account); and
<PAGE>
(v) the obligations of any member of the Group in respect
of any media guarantee issued otherwise than pursuant
to this Agreement shall not be taken into account
unless such media guarantee has been called upon in
any way;
"CONSOLIDATED EBITDA" means in respect of any financial period the
Relevant Operating Profit of the Group for such financial period:
(i) before deducting all depreciation and other amortisation and
write-downs, including but not limited to, goodwill
amortisation and brand write-downs;
(ii) before taking into account all Extraordinary Items and
Exceptional Items (in each case whether positive or negative);
(iii) after deducting any gain over, and adding back any losses
under, book value (including related goodwill) arising on the
sale, lease or other disposal of any asset (other than on the
sale of trading stock) during such period and any gain or loss
arising on revaluation of any asset during such period, in
each case to the extent that it would otherwise be taken into
account, whether as an Exceptional Item or otherwise;
and for the purposes of the foregoing no item shall be effectively
deducted or credited more than once in this calculation, all as
determined on a consolidated basis by reference to the most recent
financial statements and certificates delivered pursuant to clause
11.2(A) and (B);
"FINANCIAL PERIOD" shall refer to each period of 12 months ending on
30th June and 31st December in each year;
"INTEREST COVER RATIO" for any financial period in respect of the Group
means (A) the aggregate of (1) Consolidated EBITDA and (2) Interest
Receivable in relation to (B) Interest Expense;
"INTEREST EXPENSE" means, in respect of any financial period, (A) the
amount of interest (or equivalent consideration) accrued (on a
consolidated basis) for or by way of interest or equivalent
consideration on the Advances and other Borrowings of the Group as a
whole including any interest or similar consideration paid or accrued
or discounts given in respect of the sale or financing of Group
accounts receivables and the amount of payments made under interest
rate swap and cap agreements and similar interest rate hedging
arrangements made by the Group as a whole (but excluding commitment
fees, management fees, banking arrangement fees, agent's administration
and participation fees (including those payable hereunder)) determined
in accordance with accounting principles generally accepted under
United Kingdom accounting standards, consistently applied less (B) the
amount of payments from counterparties under interest rate swap and cap
agreements and similar interest rate hedging arrangements receivable or
received by the Group in respect of that period;
"INTEREST RECEIVABLE" means, in respect of any financial period,
interest income accrued during that period on financial deposits and
similar assets of the Group on a consolidated basis;
"RELEVANT OPERATING PROFIT" means, in respect of any financial period,
the consolidated operating profits of the Group, as disclosed in or
derived from the published or announced financial results of the Group;
<PAGE>
"TRADE DEBT" means:
(a) obligations of any member of the Group to pay the purchase
price of assets or services purchased by any member of the
Group in the ordinary course of business including, without
limitation, indebtedness incurred by any member of the Group
in respect of any documentary letter of credit, bill of
exchange or promissory note issued in respect of any such
purchase;
(b) indebtedness incurred by any member of the Group in respect of
any bill of exchange or promissory note drawn on or by, or
accepted, issued or endorsed by, any member of the Group in
the ordinary course of business, including, without
limitation, indebtedness in respect of any moneys raised by
way of sale, discounting or otherwise in respect of any such
bill or note; and
(c) indebtedness incurred by any member of the Group in respect of
any guarantee, indemnity, counter-indemnity or other assurance
against financial loss or indebtedness of the type specified
in paragraph (a) or (b) above,
except to the extent that any indebtedness falling within paragraphs
(a) to (c) above is treated as borrowings under accounting principles
generally accepted under United Kingdom accounting standards,
consistently applied.
1.3 CONSTRUCTION
(A) Except where the context otherwise requires, any reference in this
Agreement to:
any of the Financing Documents (including this Agreement) is to such
Financing Document as it may be altered, amended, supplemented or
novated from time to time;
an "AGREEMENT" also includes a concession, contract, deed, franchise,
licence, treaty or undertaking (in each case, whether oral or written);
the "ASSETS" of any person shall be construed as a reference to the
whole or any part of its business, undertaking, property, assets and
revenues (including any right to receive revenues);
a "MONTH" is to a calendar month;
"SUBSIDIARY" has the meaning ascribed thereto by section 736 Companies
Act 1985 as amended, modified, replaced or re-enacted from time to
time;
words and expressions (including defined words and expressions)
importing the singular include the plural and vice versa, those
importing the masculine gender include the feminine and vice versa, and
references to persons include references to companies and corporations
and vice versa; and
a "TIME" is to London time.
(B) Headings, sub-headings and the table of contents are for ease of
reference only.
<PAGE>
2. AMOUNT AND PURPOSE OF THE FACILITY
2.1 AMOUNT
The maximum aggregate amount for which the Facility is available is
$150,000,000 (which can be drawn by way of multicurrency Advances.
2.2 PURPOSE
(a) The Facility shall be used for general corporate purposes.
(b) Without prejudice to paragraph (a) above and the remaining
provisions of this Agreement, none of the Facility Agent, the
Arranger and the Lenders shall be bound to enquire as to, nor
shall any of them be responsible for, the application by the
Borrowers of the proceeds of any Advance.
3. SYNDICATE AND BORROWERS AND GUARANTORS
3.1 PARTICIPATION
Subject to the provisions of this Agreement, each Lender shall
participate in any utilisation under the Facility in the proportion
which its Commitment bears to the Total Commitments up to an aggregate
principal Dollar Amount outstanding at any time not exceeding its
Commitment.
3.2 OBLIGATIONS SEVERAL
(A) The rights and obligations of each of the Lenders under the Financing
Documents are several. Failure of a Lender to perform its obligations
under the Financing Documents shall neither:
(i) result in the Facility Agent or any other Lender incurring any
liability whatsoever; nor
(ii) relieve the Facility Agent, any Borrower, any Guarantor or any
other Lender from their respective obligations under the
Financing Documents.
(B) The aggregate of the amounts due to each Lender under the Financing
Documents at any time is a separate and independent debt and, save as
otherwise provided in this Agreement and in particular subject to the
provisions of clause 14, each Lender shall have the right to protect
and enforce its rights under the Financing Documents and it shall not
be necessary (except as otherwise provided in the Financing Documents)
for any other Lender or the Facility Agent to be joined as an
additional party in any proceedings to this end.
3.3 RIGHTS OF BORROWERS
No part of the Facility is reserved for any individual Borrower.
3.4 LIABILITY OF BORROWERS
The obligations of each Borrower hereunder are separate and distinct
and notwithstanding anything hereinafter contained no Borrower shall be
liable for the obligations of any other Borrower hereunder or for the
obligations of the Borrowers' Agent hereunder save that (1) this
<PAGE>
clause shall not affect the obligations of any Borrower in its capacity
as a Guarantor and (2) the obligations of the Borrowers pursuant to
clauses 15 and 18 shall be joint and several.
3.5 BORROWERS' AGENT
Each Borrower and each Guarantor irrevocably authorises and instructs
the Borrowers' Agent to give and receive as agent on its behalf all
notices and to take such other action (including, without limitation,
the giving of consents, the signing of certificates or the acceptance
of any proposal) as may be necessary or desirable under or in
connection with the Financing Documents and confirms that it will be
bound by any action taken by the Borrowers' Agent under or in
connection with the Financing Documents.
3.6 ACTIONS OF BORROWERS' AGENT
The respective liabilities of each of the Borrowers and of each of the
Guarantors under the Financing Documents shall not be in any way
affected by (i) any irregularity in any act done by or any failure to
act by the Borrowers' Agent or (ii) the Borrowers' Agent acting in any
respect outside any authority conferred upon it by any Borrower or
Guarantor or (iii) the failure by or inability of the Borrowers' Agent
to inform any Borrower or Guarantor of receipt by it of any
notification hereunder or under any of the other Financing Documents.
3.7 ACCESSION OF ADDITIONAL BORROWERS
The Borrowers' Agent may from time to time deliver to the Facility
Agent an Accession Notice in the form of Schedule 5 duly completed and
executed by the Borrowers' Agent and a proposed additional Borrower
(which must be a Subsidiary). Upon, but not before, the Facility Agent
notifying the Lenders of receipt of the Accession Notice and the
documents specified in clause 4.2 in form and substance satisfactory to
the Facility Agent, the proposed additional Borrower shall become an
additional Borrower.
3.8 ADDITION OF FURTHER GUARANTORS
The Parent may procure the addition of further Guarantors by procuring
that a Subsidiary shall (i) execute a Guarantor Accession Agreement in
the form of Schedule 6 duly completed and executed by the Subsidiary,
the Parent and the Facility Agent and (ii) deliver to the Facility
Agent the documents referred to in clause 4.2 applicable to such
Subsidiary.
3.9 REMOVAL OF BORROWERS
Any Borrower (other than the Company), in respect of which no Credit is
outstanding hereunder (including any other amounts outstanding in
relation thereto) in respect of the Facility may at the request of the
Borrowers' Agent cease to be a Borrower hereunder in respect of the
Facility by entry into a supplemental agreement to this Agreement in
such form as the Facility Agent and the Borrowers' Agent shall
reasonably require which shall discharge the Borrower's obligations
hereunder.
3.10 SUBSTITUTION OF BORROWERS
Any Borrower (the "EXISTING BORROWER") may be released from its
obligations under this Agreement in relation to the Facility provided
that another Eligible Company (the "SUBSTITUTE BORROWER") assumes the
obligations in respect thereof of the Existing Borrower and provided
further that:
<PAGE>
(i) any such substitution shall take effect on and from the later
of the day upon which the Facility Agent notifies the
Borrowers' Agent in writing that it is satisfied with the
compliance with the matters set out in paragraphs (iii) and
(iv) below and the date for substitution specified in the
relevant Notice of Proposed Substitution;
(ii) a Notice of Proposed Substitution, substantially in the form
of Schedule 7 has been delivered by the Borrowers' Agent to
the Facility Agent not less than 14 days prior to the proposed
substitution;
(iii) the Substitute Borrower enters into a Novation Agreement with
the Existing Borrower, the Borrowers' Agent and the Facility
Agent on behalf of the Lenders in the form of Schedule 8
together with such amendments as the Facility Agent may
reasonably require; and
(iv) the documents referred to in clause 4.2 shall have been
provided to the Facility Agent.
4. CONDITIONS PRECEDENT
4.1 CONDITIONS TO THE FACILITY
The obligations of each Lender under this Agreement are subject to the
Facility Agent having received the following in each case in form and
content satisfactory to it, that is to say:
(A) a certificate in respect of the Company and the Parent signed
by an officer of the Company and the Parent respectively
substantially in the form set out in Schedule 4 and the
documents therein referred to; and
(B) a certificate of a director of the Parent confirming that
utilisation in full of the Facility in accordance with its
terms would not cause any borrowing limit on any Borrower or
Guarantor to be exceeded.
4.2 CONDITIONS FOR ADDITIONAL AND SUBSTITUTE BORROWERS AND ADDITIONAL
GUARANTORS
A proposed additional or substitute Borrower and a proposed additional
Guarantor shall deliver to the Facility Agent the following documents
in each case in form and content satisfactory to the Facility Agent,
that is to say:
(A) a certificate signed by the secretary of the Borrower or the
Guarantor substantially in the form set out in Schedule 4 or
the schedule to Schedule 6 (as the case may be) and the
documents therein referred to; and
(B) a certificate of a director of the Parent confirming that
utilisation in full of the Facility in accordance with their
terms would not cause any borrowing limit on any Borrower or
Guarantor to be exceeded.
4.3 CONDITIONS TO EACH UTILISATION
Each utilisation, in whatever form, of the Facility (other than any
utilisation which, taken together with any repayment on the date of
such utilisation of amounts outstanding under the Facility, will not
result in any increase in the amount outstanding thereunder (a
"ROLL-OVER UTILISATION")) is subject to the further conditions
precedent that both on the date of the relevant Credit Request and on
the relevant Drawing Date or date of utilisation:
<PAGE>
(A) no Event of Default or Potential Event of Default has occurred
and is continuing or would occur as a result of making the
Credit available or permitting the utilisation; and
(B) each of the warranties deemed to be repeated in clause 10
remains accurate in all material respects at the Drawing Date
or the date of the relevant utilisation as if given on that
date by reference to the facts and circumstances then
existing.
Each roll-over utilisation is subject to the further condition
precedent that both on the date of the relevant Credit Request and on
the date of such roll-over utilisation the Facility Agent shall not
have received notice from the Majority Lenders that either of the
conditions contained in paragraph (A) or (B) above is not met.
5. UTILISATION OF FACILITY
5.1 ADVANCES
Subject to the terms of this Agreement, any Borrower may on Business
Days during the Availability Period draw an Advance under the Facility
by the Borrowers' Agent delivering to the Facility Agent no later than
12 noon on the third Business Day prior to the proposed Drawing Date
for an Advance to be in an Alternative Currency (other than sterling),
no later than 3.00 p.m. on the third Business Day prior to the proposed
Drawing Date for an Advance to be in dollars and no later than 12 noon
on the Business Day prior to the proposed Drawing Date for an Advance
to be in sterling a duly completed Credit Request in the form set out
in Schedule 3, specifying in respect of the proposed Advance:
(A) the Borrower;
(B) the proposed Drawing Date, which shall be a Business Day
falling on or prior to the Final Drawing Date;
(C) the currency of the Advance (each Credit Request shall request
one currency only); and
(D) the amount of the Advance which shall be a Dollar Amount of
not less than $5,000,000 (or, if in sterling, L2,000,000) and
an integral multiple of 1,000,000 units thereafter or such
other multiple in the currency concerned as the Facility Agent
and the Borrowers' Agent may agree and which shall not in any
event at the time immediately preceding the Advance exceed the
Total Commitments less the Total Outstandings.
5.2 IRREVOCABILITY
A Credit Request shall be irrevocable and, subject to the terms of this
Agreement, the Borrower named therein shall draw the Advance on the
Drawing Date specified in the Credit Request.
5.3 NOTICE TO LENDERS
When the Facility Agent actually receives a Credit Request pursuant to
clause 5.1 it shall promptly notify each of the Lenders of the amount
of the proposed Advance and the proposed
<PAGE>
Drawing Date and that Lender shall, subject to the provisions of
this Agreement, make available to the Facility Agent on the Drawing
Date its participation in that Advance.
6. ALTERNATIVE CURRENCIES FOR FACILITY
6.1 ALTERNATIVE CURRENCIES
(A) If, before 12 noon two Business Days prior to the Drawing Date relative
to an Advance which it is proposed be denominated in an Alternative
Currency (other than sterling), the Facility Agent receives notice from
a Lender that:
(i) it is impracticable for the Lender to fund its participation
in the Advance in the proposed Alternative Currency in the
ordinary course of business in the London Interbank Market; or
(ii) central bank or other governmental authorisation in the
country of the proposed Alternative Currency is required to
permit its use by the Lender (through the office through which
it participates in the Facility) for lending under this
Agreement and the authorisation has not been obtained or is
not in full force and effect; or
(iii) the use of the proposed Alternative Currency is restricted or
prohibited by any request, directive, regulation or guideline
of any governmental body, agency, department or regulatory or
other authority (whether or not having the force of law) in
accordance with which the Lender is accustomed to act,
the Facility Agent shall give notice to the Borrowers' Agent to that
effect before 12.30 p.m. on that day.
(B) If the Facility Agent delivers a notice under paragraph (A) above:
(i) the Lender's participation in the Advance shall be denominated
in dollars and there shall be substituted in clause 7.4 for
the time "11.00 a.m." the time "1.00 p.m."; and
(ii) the relevant Borrower shall indemnify each Lender against any
loss and expense which such Lender may have incurred as a
consequence of the operation of this clause.
6.2 NOTIFICATION
The Facility Agent shall promptly notify the Borrowers' Agent and the
Lenders of the Agent's Spot Rate of Exchange and relevant Dollar Amount
at the same time as it notifies the Lenders of the details of any
Credit Request.
6.3 AVAILABILITY OF ALTERNATIVE CURRENCIES
If the Borrowers' Agent delivers to the Facility Agent a Credit Request
specifying that a Borrower wishes an Advance to be denominated in an
Alternative Currency and to give effect to such request would cause the
Loan to be denominated in more than five Alternative Currencies, then
the Facility Agent will promptly notify the Borrowers' Agent and the
Lenders shall not be obliged to make any such Advance.
<PAGE>
7. INTEREST AND COMMISSIONS
7.1 MARGIN AND COMMITMENT FEE
(A) The Margin for any Interest Period shall be 0.40 per cent. per annum.
(B) The Borrowers shall pay a commitment fee in dollars calculated from day
to day on the daily undrawn amount of the Commitment on the basis of
actual days elapsed from the Signing Date and a 360 day year at the
rate of 0.1375 per cent. per annum.
(C) The commitment fee shall be paid to the Facility Agent for the account
of the Lenders pro rata to the proportion which their respective
Commitments bear to the Total Commitments under the Facility.
(D) Subject to paragraph (E) below, unless notice has been given to the
Facility Agent in accordance with the provisions of Clause 9.2 that the
Facility is to be cancelled in full on the date which is three months
after the Signing Date, the commitment fee shall be paid on the date
which is three months after the Signing Date and on each date falling
at three monthly intervals thereafter and on the Final Drawing Date (or
any earlier date on which the relevant Commitments of the Lenders are
permanently reduced to zero).
(E) No commitment fee will be payable if the Facility is or has been
cancelled in full on the date which is three months after the Signing
Date.
7.2 DURATION OF INTEREST PERIODS
(A) The Interest Period in respect of each Advance shall be one month
unless not later than 12 noon on the third Business Day before the
first day of an Interest Period (in the case of Advances to be in an
Alternative Currency (other than sterling), not later than 3.00 p.m. on
the third Business Day before the first day of an Interest Period (in
the case of Advances to be in dollars) and not later than 12 noon on
the Business Day before the first day of an Interest Period (in the
case of Advances to be in sterling)) the Facility Agent has received
from the Borrowers' Agent a notice selecting one, two, three, four,
five or six months or such other period as has been agreed with the
Lenders.
(B) The Interest Period for each Advance shall commence on the date of that
Advance.
(C) An Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day save that an
Interest Period which commences on the last Business Day in a calendar
month, or if there is no corresponding day in the calendar month in
which it is to end, shall end on the last Business Day in a calendar
month.
(D) No Advance shall have an Interest Period ending after the Final
Maturity.
(E) The Borrowers' Agent and the Facility Agent may enter into such other
arrangements as they may agree for the consolidation or splitting of
Advances and Interest Periods.
7.3 NUMBER OF INTEREST PERIODS FOR FACILITY
Subject to clause 7.2(E), the Borrowers' Agent may, in the notice
referred to in clause 7.2(A), elect to split an Advance into two or
more Advances having different Interest Periods.
<PAGE>
7.4 RATE OF INTEREST FOR FACILITY
The rate of interest payable on an Advance under the Facility for each
Interest Period shall be the rate per annum determined by the Facility
Agent to be the aggregate of:
(A) the Margin; and
(B) (i) the arithmetic mean (rounded to five decimal places
with the mid-point rounded up) of the offered
quotations in the required currency for the required
period which appear on the display for the required
currency on page 3740 or page 3750 of Telerate (or
such other page as may replace such pages on such
system for the purpose of displaying London Interbank
Offered Rates of leading banks) as at 11.00 a.m., in
the case of a currency other than sterling or euros,
on the second Business Day before the commencement of
that Interest Period or, in the case of sterling, on
the first day of that Interest Period or, in the case
of euros, the second TARGET Day before the first day
of that Interest Period; or
(ii) if no such display rate is then available for the
relevant currency, the arithmetic mean (rounded to
five decimal places with the mid-point rounded up) of
the rates notified to the Facility Agent at its
request by each of the Reference Banks as the rate at
which deposits in the required currency are offered
for the same period as that Interest Period by that
Reference Bank to prime banks in the London Interbank
market at or about 11.00 a.m. on the second Business
Day before the commencement of that Interest Period
or, in the case of sterling, on the first day of that
Interest Period; and
(C) the Reserve Asset Costs (if any).
7.5 PAYMENT OF INTEREST ON ADVANCES
Interest shall be calculated on the basis of actual days elapsed (not
counting within an Interest Period the last day of that Interest
Period) and a year of 360 days (or in the case of sterling, Hong Kong
Dollars, Belgian Francs, Canadian Dollars and Singapore Dollars, 365
days or such other period applied generally in the relevant market to
such calculations for the relevant currency) and shall be paid on each
Advance by the Borrower to the Facility Agent for the account of the
Lenders in arrears on the Interest Payment Date in the currency
applicable to that Advance.
7.6 FACILITY AGENT'S CERTIFICATE
In respect of any Advance the Facility Agent shall notify the
Borrowers' Agent and the Lenders of the rate of interest as soon as it
is determined under this Agreement. The certificate of the Facility
Agent as to a rate of interest shall, in the absence of manifest error,
be conclusive.
7.7 FAILURE OF REFERENCE BANK
In respect of any Advance under the Facility if, in circumstances where
clause 7.4(B)(ii) applies, any Reference Bank for any reason fails to
notify to the Facility Agent the rate referred to in clause 7.4(B)(ii),
the rate of interest shall be determined on the basis of the rates
notified to the Facility Agent by the remaining Reference Banks or
Reference Bank.
<PAGE>
7.8 NEW REFERENCE BANK
In respect of any Advance if any Reference Bank ceases to be a Lender:
(A) it shall cease to be a Reference Bank; and
(B) the Facility Agent shall, with the approval (which shall not
be unreasonably withheld) of the Borrowers' Agent, nominate as
soon as reasonably practicable another Lender to be a
Reference Bank in place of such Reference Bank.
8. REDUCTION OF FACILITY AND REPAYMENT
8.1 Subject to the provisions of this Agreement, the amount of the Facility
shall be reduced to zero on Final Maturity.
8.2 The Borrower shall on the last day of the Interest Period relating to
each Advance repay that Advance to the Agent for the account of the
Lenders in accordance with clause 13.1. All Advances outstanding on
Final Maturity shall be repaid on that date and the Facility shall be
cancelled on that date.
9. PREPAYMENT AND CANCELLATION
9.1 VOLUNTARY PREPAYMENT
(A) Any Borrower may, without premium, prepay an Advance made to it in
whole or in part (but, if in part, in an aggregate minimum amount of
$5,000,000 and an integral multiple of $1,000,000 or such other
minimums and multiples in the currency concerned as the Facility Agent
and Borrowers' Agent may agree), provided that the Borrowers' Agent has
given the Facility Agent not less than ten days' prior notice stating
the principal amount of the Advance to be prepaid.
(B) Any prepayment under this clause 9.1 shall be made together with
accrued interest and all other amounts due under this Agreement in
respect of the prepayment.
9.2 CANCELLATION OF FACILITY
The Borrowers' Agent may, without premium, cancel the undrawn part of
the Facility (in respect of which no Credit Request has been served),
in whole or in part (being in a minimum amount of $5,000,000 and an
integral multiple of $1,000,000) provided that it has given the
Facility Agent not less than ten days' prior written notice stating the
principal amount to be cancelled. During such ten day period the
Borrowers' Agent may not purport to draw or utilise all or any part of
the amount the subject of such notice of cancellation. Any cancellation
in part shall be applied in the same order against the relevant
Commitment of each relevant Lender pro rata.
9.3 PREPAYMENT OF CERTAIN LENDERS
(A) Without prejudice to the rights of the Borrowers under clause 12.4, if
(i) any Borrower becomes or will on or before the last day of the
Interest Period relating to an Advance made to it become
obliged to pay to any Lender additional amounts pursuant to
clause 12.2 or any amounts pursuant to clause 13.3, and
<PAGE>
(ii) the Borrowers' Agent gives to the Facility Agent and the
relevant Lender not less than 10 days' notice of the date of
prepayment,
the Borrowers may on the date of prepayment specified in that notice
prepay all (but not part only) of that Lender's participation in all
Advances outstanding.
(B) Any prepayment under this clause 9.3 shall be made together with
accrued interest and all other amounts due to the relevant Lender under
this Agreement (including, without limitation, such amounts as may be
due under clauses 12.2, 13.3 and/or 15.1).
(C) If a Lender's participation in all Advances is prepaid the relevant
Lender's Commitment shall thereupon be cancelled.
9.4 IRREVOCABILITY
Any notice under clause 9.1, 9.2 or 9.3 shall be irrevocable. The
amount of any prepayment shall become due and payable on the applicable
date. No amount cancelled under clause 9.2 or 9.3 may subsequently be
reinstated.
9.5 CURRENCY
Prepayment shall be made in the currency or currencies in which the
amounts prepaid are denominated on the day the prepayment is due to be
made.
9.6 REDRAWING
Any Advance prepaid under clause 9.1(A) shall be available to be
redrawn during the Availability Period.
10. REPRESENTATIONS AND WARRANTIES
10.1 ON SIGNING
The Company and each Guarantor acknowledges that each of the Lenders
and the Facility Agent has entered into the Financing Documents in full
reliance on representations by the Company and each Guarantor in the
following terms; and the Company and each Guarantor warrants to each of
them in respect of itself, and the Parent warrants to each of them in
respect of itself and of each other Guarantor and of the Company that
as of the Signing Date:
(A) STATUS: it is duly incorporated with limited liability and
validly existing and, in the case of a U.S. Borrower and a
U.S. Guarantor in good standing, under the laws of its place
of incorporation;
(B) POWERS AND AUTHORISATIONS: the documents which contain or
establish its constitution include provisions which give
power, and all necessary corporate authority has been obtained
and action taken, for it to own its assets, carry on its
business and operations as they are now being conducted, and
sign and deliver, and perform the transactions contemplated
in, the Financing Documents to which it is a party and the
Financing Documents to which it is a party constitute valid
and binding obligations of it enforceable in accordance with
their terms subject to general equitable principles,
insolvency, liquidation and other laws affecting creditors'
rights generally;
<PAGE>
(C) NON-VIOLATION: neither the signing and delivery of the
Financing Documents to which it is a party nor the performance
of any of the transactions contemplated in any of them does or
will contravene or constitute a default under, or cause to be
exceeded any limitation on it or the powers of its directors
imposed by or contained in, (i) any law by which it or any of
its assets is bound or affected, (ii) any document which
contains or establishes its constitution, or (iii) any
agreement to which it is a party or by which any of its assets
is bound which has had or would be reasonably likely in any
such case materially and adversely to affect its ability to
observe and perform its obligations under the Financing
Documents;
(D) CONSENTS: no authorisation, approval, consent, licence,
exemption, registration, recording, filing or notarisation and
no payment of any duty or tax and no other action whatsoever
which has not been duly and unconditionally obtained, made or
taken is necessary or desirable to ensure the validity or
enforceability of the liabilities and obligations of it or the
rights of the Facility Agent and the Lenders (or any of them)
under the Financing Documents;
(E) NO DEFAULT:
(i) no Event of Default has occurred which is continuing
under this Agreement; and
(ii) no event has occurred which constitutes a
contravention of, or default in any material respect
under, any agreement or instrument (other than the
Financing Documents) by which it or any of its assets
is bound or affected, being a contravention or
default which has had or would be reasonably likely
either to have a material adverse effect on the
business, assets or consolidated financial condition
of the Group as a whole or materially and adversely
affects the ability of the Borrowers and the
Guarantors as a whole to observe or perform their
obligations under the Financing Documents;
(F) LITIGATION: no litigation, arbitration or administrative
proceeding or claim in which there is a reasonable possibility
of an adverse decision which has had or would be reasonably
likely by itself or together with any other such proceedings
or claims either (i) to have a material adverse effect on the
business, assets or consolidated financial condition of the
Group as a whole or (ii) materially and adversely to affect
the ability of the Borrowers and the Guarantors as a whole to
observe or perform their obligations under any Financing
Documents or (iii) to impair the validity or enforceability of
this Agreement or any other Financing Document, is presently
in progress or pending or, to the knowledge of any Borrower or
Guarantor, threatened against any member of the Group or any
of their assets;
(G) ACCOUNTS: the audited consolidated financial statements
(including the profit and loss, cash flow statement and
balance sheet) of the Group for the year ended 31st December,
1998 have been prepared on a basis consistently applied in
accordance with generally accepted accounting principles and
practices in England and Wales and give a true and fair view
of the results of the operations of the Group for that year
and the state of the affairs of the Group at that date: since
that date there has been no material adverse change in the
consolidated financial condition of the Group as shown in such
statements;
(H) INVESTMENT COMPANY ACT: none of the Borrowers, the Guarantors
or their respective subsidiaries is an "investment company" or
an "affiliated person" or,
<PAGE>
"promoter" or "principal underwriter" for an "investment
company" within the meaning of the United States Investment
Company Act of 1940, as amended; and
(I) PUBLIC UTILITY HOLDING COMPANY ACT: none of the Borrowers or
the Guarantors is a holding company or a subsidiary company of
a holding company or an affiliate of a holding company or of a
subsidiary company of a holding company within the meaning of
the United States Public Utility Holding Company Act of 1935,
as amended.
10.2 AFTER SIGNING
Each Borrower and each Guarantor shall be deemed to represent and
warrant in respect of itself, and the Parent shall be deemed to warrant
in respect of itself and each Borrower and each other Guarantor, to the
Facility Agent and the Lenders (and each of them) on every Drawing Date
and on every other date upon which any utilisation of the Facility is
made available, with reference to the facts and circumstances then
subsisting, that each of the representations and warranties contained
in paragraphs (A), (B), (C), (E), (H) and (I) remains correct.
11. UNDERTAKINGS
11.1 DURATION
The undertakings in this clause shall remain in force from so long as
any amount is or may be outstanding under the Facility or any
Commitment is in force.
11.2 INFORMATION
The Borrowers and the Guarantors will furnish or procure to be
furnished to the Facility Agent in sufficient copies for each of the
Lenders:
(A) as soon as practicable (and in any event within 180 days after
the close of each of the Parent's financial years) the audited
consolidated accounts of the Group for that year;
(B) as soon as practicable (and in any event within 90 days of the
end of each half year of the Parent's financial year) the
published unaudited interim consolidated accounts of the
Group;
(C) together with the statements specified in paragraph (A) above,
a certificate signed by any one of the Group Finance Director
and the Chief Executive of the Parent (or the equivalent from
time to time) without personal liability as to whether the
consolidated revenues for that financial year of any operating
Subsidiary shall have exceeded 5% of the consolidated revenues
of the Group for that financial year (and, if so, identifying
the Subsidiary or Subsidiaries concerned);
(D) promptly, all notices, other documents or information
despatched by the Parent to its shareholders generally (or any
class thereof) or its creditors generally (or any class
thereof);
(E) promptly, such further information in the possession or
control of any Borrower, any Guarantor or of any of their
respective Material Subsidiaries regarding the financial
condition or operations of any Borrower, any Guarantor or any
of their respective Material Subsidiaries, as the Facility
Agent may reasonably request; and
<PAGE>
(F) details of any litigation, arbitration or administrative
proceedings, which, if adversely determined, would be
reasonably likely to have a material adverse effect on the
business, assets or consolidated financial condition of the
Group as a whole or materially and adversely to affect the
ability of any Borrower or any Guarantor to observe or perform
its obligations under the Financing Documents and which affect
any Borrower or any Guarantor or the Group as a whole, as soon
as the same are instituted, or, to the knowledge of any
Borrower or any Guarantor, are threatened.
All accounts and statements required under this clause shall be
prepared in accordance with Applicable Accounting Principles
consistently applied and shall give a true and fair view of the state
of affairs of the Group and of the profit and cash flows of the Group
and in the case of unaudited accounts and statements shall be prepared
in a manner which is consistent with the audited consolidated accounts
of the Group except to comply with changes in accounting practice or as
noted therein.
Any audited consolidated accounts of the Group delivered or to be
delivered to the Facility Agent under this Agreement shall be prepared
in all material respects in accordance with the Applicable Accounting
Principles and applicable accounting policies which were applied in the
audited consolidated accounts for the year ended 31 December, 1996 save
for any changes to comply with changes in the law or in such Applicable
Accounting Principles consistently applied. If there are any changes in
law or in United Kingdom accounting standards as described above:
(i) if material to the calculation of the financial ratios and
covenants in this Agreement, the Borrowers' Agent shall
promptly so advise the Facility Agent and provide details of
the difference and the reasons therefor;
(ii) on request of the Facility Agent, the Borrowers' Agent and the
Facility Agent (in consultation with and on behalf of the
Lenders) shall negotiate in good faith with a view to agreeing
such amendments to clause 11.3 and/or the definitions of any
of or all of the terms used therein as are necessary, in the
opinion of the Facility Agent, to give the Lenders comparable
protection to that contemplated on the Signing Date.
11.3 FINANCIAL RATIOS
(A) The Parent undertakes that it will procure that the Interest Cover
Ratio for each period of twelve consecutive months ending on 30th June
and 31st December in each year will equal or exceed 4.0.
(B) The Parent undertakes that it will procure that, as at 30th June and
31st December in each year, the financial condition of the Group shall
be such that the ratio of the Borrowings of the Group on a consolidated
basis to Consolidated EBITDA shall not exceed 3.5 to 1.
11.4 NOTIFICATION OF DEFAULT
The Borrowers' Agent, each Borrower and each Guarantor will notify the
Facility Agent in writing of any Event of Default or Potential Event of
Default forthwith upon becoming aware thereof.
<PAGE>
11.5 COMPLIANCE CERTIFICATES
The Parent will no later than the time of the delivery of the accounts
specified in paragraphs (A) and (B) of clause 11.2 (and, in relation to
a certificate dealing with the matters referred to in paragraph (A)
below, also promptly at the request of the Facility Agent from time to
time) furnish the Facility Agent with:
(A) a certificate signed by any two of the Company Secretary, the
Director of Group Treasury (or equivalent from time to time)
and the executive directors of the Parent certifying on behalf
of the Parent without personal liability that no Event of
Default or Potential Event of Default has occurred and is
continuing or, if the same has occurred, specifying the Event
of Default or Potential Event of Default and the steps being
taken to remedy the same; and
(B) a certificate (a "RATIO CERTIFICATE") signed by either of the
Group Finance Director and the Chief Executive of the Parent
certifying without personal liability, as at the end of the
period to which the relevant accounts relate, compliance with
the covenants in clause 11.3 and 11.14 or, if such covenants
have not been met, specifying the same and, in each case,
setting out in reasonable detail the relevant computations.
11.6 CONSENTS
Each Borrower and each Guarantor will use its best endeavours to obtain
and promptly renew from time to time, and will promptly furnish
certified copies to the Facility Agent of, all such authorisations,
approvals, consents, licences and exemptions as may be required under
any applicable law or regulation to enable it to perform its
obligations under the Financing Documents or required for the validity
or enforceability of the Financing Documents and each Borrower and each
Guarantor shall comply with the terms of the same.
11.7 PARI PASSU RANKING
Each Borrower and each Guarantor undertakes that, subject as set out
herein, its obligations under the Financing Documents do and will rank
at least pari passu with all its other present and future unsecured
obligations other than obligations in respect of national, provincial
and local taxes and employees' remuneration and taxes and for certain
other statutory exceptions.
11.8 NEGATIVE PLEDGE
The Company undertakes that with effect from drawdown of the Facility
each Borrower and each Guarantor will not create, suffer or permit to
subsist (and will procure that none of the Subsidiaries will create,
suffer or permit to subsist) any Security Interest on the whole or any
part of its respective present or future assets except for the
following:
(A) Security Interests created with the prior written consent of
the Majority Lenders;
(B) Security Interests arising by operation of law in the ordinary
course of business including, without limitation, statutory
liens and encumbrances;
(C) any Security Interest over the assets and/or revenues of a
company which became or becomes a Subsidiary of any Borrower
or any Guarantor after the Signing Date and which Security
Interest is in existence or contracted to be given as at the
date it becomes a Subsidiary (and which was not created in
contemplation of it becoming a
<PAGE>
Subsidiary) provided that the principal amount of any
borrowing which may be so secured shall not be increased
beyond the amount outstanding or committed at the date it
becomes a Subsidiary but shall be reduced in accordance with
its terms and provided further that in the case of a
fluctuating amount for banking type accommodation the
foregoing shall not prevent fluctuation within the overall
limit that existed at that date and provided that the amount
secured under any such Security Interest shall not be
increased beyond the amount secured at the date the company
becomes a Subsidiary;
(D) those Security Interests existing at the Signing Date over the
assets and/or revenues of a Subsidiary (whether or not it is a
Borrower or a Guarantor), provided that the principal amount
of any borrowing which may be so secured shall not be
increased beyond the amount outstanding or committed at the
Signing Date but shall be reduced in accordance with its terms
and provided further that in the case of a fluctuating amount
for banking type accommodation the foregoing shall not prevent
fluctuation within the overall limit that existed at the
Signing Date;
(E) Security Interests securing the performance of bids, tenders,
bonds, leases, contracts (other than in respect of
Borrowings), statutory obligations, surety, customs and appeal
bonds and other obligations of like nature (but not including
obligations in respect of Borrowings) incurred in the ordinary
course of business provided that the aggregate amount secured
under such Security Interests shall not, at any time, exceed
$20,000,000 save that such aggregate amount may be exceeded
with the prior written consent of the Majority Lenders;
(F) Security Interests arising out of judgments or awards which
are being contested in good faith and with respect to which an
appeal or proceeding for review has been instituted or the
time for doing so has not yet expired;
(G) Security Interests upon any property which are created or
incurred contemporaneously with the acquisition of such
property to secure or provide for the payment of any part of
the purchase price of such property (but no other amounts),
provided that any such Security Interest shall not apply to
any other property of the purchaser thereof and provided
further that the aggregate amount of all liabilities secured
by this paragraph (G) shall not, at any time, exceed
$25,000,000;
(H) any Security Interest arising out of title retention
provisions in a supplier's conditions of supply of goods or
services acquired by a member of the Group in the ordinary
course of its business;
(I) any right of any bank or financial institution of combination
or consolidation of accounts or right to set-off or transfer
any sum or sums standing to the credit of any account (or
appropriate any securities held by such bank or financial
institution) in or towards satisfaction of any present or
future liabilities to that bank or financial institution;
(J) any Security Interest securing indebtedness re-financing
indebtedness secured by Security Interests permitted by
paragraphs (C), (D) or (G) above or this paragraph (J)
provided that (except to the extent otherwise permitted by
paragraph (A)) the maximum principal amount of the
indebtedness secured by such Security Interests is not
increased and such Security Interests do not extend to any
assets which were not subject to the Security Interests
securing the re-financed indebtedness;
<PAGE>
(K) any Security Interest created by a member of the Group which
is neither a Borrower nor a Guarantor securing banking
facilities over accounts receivable (or book debts) outside
the U.K. or the U.S.A.;
(L) any other Security Interest created or outstanding on or over
any assets of any member of the Group provided that the
aggregate outstanding amount secured by all Security Interests
created or outstanding under this exception in this paragraph
(L) shall not at any time exceed $40,000,000 or its equivalent
and further provided that no single such Security Interest
under this paragraph (L) shall secure an aggregate principal
amount exceeding $10,000,000 or its equivalent; and
(M) any Security Interest arising out of any of the Accounts
Receivable Facilities or Back to Back Loans.
11.9 DISPOSALS
No Borrower and no Guarantor will, without the prior written consent of
the Majority Lenders (which may be given subject to conditions), and
each of them will procure that none of its Subsidiaries will sell,
transfer, lease or otherwise dispose of all or any substantial part of
their respective assets except on an arm's length basis and for a fair
market value or to another member of the Group.
11.10 CHANGE OF BUSINESS
Except with the prior written consent of the Majority Lenders, no
Borrower and no Guarantor will, and each will procure that none of its
respective Material Subsidiaries will, make any change in its business
as presently conducted, or carry on any other business other than its
business as presently conducted or business consisting of allied or
related activities, provided that this prohibition shall not apply
unless such change of business or other business alters the nature of
the business of the Group as a whole.
11.11 MERGERS
No Borrower or Guarantor will without the prior written consent of the
Majority Lenders enter into any merger or consolidation if the effect
thereof would be to alter the legal personality or identity of such
Borrower or Guarantor except that any Borrower or any Guarantor may
merge or consolidate with or into any other Subsidiary which is in the
same jurisdiction as the Borrower or Guarantor (as the case may be)
provided that from the date on which the merger or consolidation takes
effect a Borrower or Guarantor is the legal entity surviving the merger
or the legal entity into which it shall be merged or the legal entity
which is formed by such consolidation shall assume its obligations
hereunder in an agreement or instrument satisfactory in form and
substance to the Majority Lenders.
11.12 INSURANCE
Each Borrower and each Guarantor will, and will procure that each of
its respective Material Subsidiaries will, effect and maintain such
insurance over and in respect of its respective assets and business and
in such manner and to such extent as is reasonable and customary for a
business enterprise engaged in the same or a similar business and in
the same or similar localities.
<PAGE>
11.13 LIMITATION ON BORROWINGS OF SUBSIDIARIES
The Parent and the Company will not permit any of their Subsidiaries to
create, permit to subsist, incur, assume or in any other manner be or
become directly or indirectly liable for the payment of any Borrowings
(including, without limitation, by way of indemnity, counter-indemnity
or guarantee) other than:
(A) Borrowings under this Agreement;
(B) any Borrowings of any Subsidiary owing to another member of
the Group;
(C) Borrowings by a Subsidiary which is or becomes a Guarantor as
defined in this Agreement;
(D) Borrowings under the Consolidated Revolving Facility Agreement
dated 3rd July, 1998 and made between WPP Group plc and the
other Borrowers named therein, the Guarantors, the Facility
Agent, the Lenders and the Arrangers (all as named therein);
(E) Borrowings by a Subsidiary whose main business is to operate
as a finance company for the Group; and
(F) additional Borrowings of Subsidiaries to the extent that:
(i) no individual Material Subsidiary has or will create,
permit to subsist, incur, assume or in any other
manner be or become directly or indirectly liable for
the payment of any Borrowings (including, without
limitation, by way of indemnity, counter-indemnity or
guarantee) with an aggregate principal amount
exceeding an amount equal to 15 per cent. of
Consolidated EBITDA; and
(ii) the aggregate principal amount of Borrowings of all
Subsidiaries permitted under this sub-clause (E) does
not exceed an amount equal to 25 per cent. of
Consolidated EBITDA,
in each case for the financial period most recently ended from
time to time in respect of which financial results of the
Group have been published or announced.
11.14 GROUP ACQUISITIONS
The Parent will procure that the aggregate maximum value of all
Acquisition Cash Payments paid in any financial year (as reduced by the
aggregate amount of (i) any cash recorded in the balance sheet or
financial records of the company, business, undertaking or other person
the subject of the Acquisition as at the last day of the financial year
of that company or business most recently ended or, at the option of
the Parent, upon completion of the Acquisition and (ii) cash proceeds
of any disposals of any business or undertaking by any member of the
Group received during that financial year) shall not, without the
consent of the Majority Lenders, exceed the Acquisition Cash Limit.
<PAGE>
12. CHANGES IN CIRCUMSTANCES
12.1 ILLEGALITY
Where the introduction, imposition or variation of any law, regulation
or treaty or any change in the interpretation or application of any
law, regulation or treaty makes it unlawful for any Lender to make
available or fund or maintain its participation in the Facility or to
allow all or part of its participation in the Facility to remain
outstanding or to carry out all or any of its other obligations under
this Agreement or to charge or receive interest or fees or commissions
at the rate applicable under this Agreement, upon that Lender so
notifying the Facility Agent:
(A) the Facility Agent shall notify the Borrowers' Agent and that
Lender's obligation to participate in or to provide any future
utilisation of the relevant Facility shall forthwith be
suspended and the Facility shall be suspended to such extent;
and
(B) the Borrower shall, within thirty Business Days of being so
notified (and only to the extent necessary to cure such
illegality):
(i) in the case of an Advance, prepay to the Facility
Agent for the account of that Lender all of that
Lender's participation in the Advance or relevant
amount; and
12.2 INCREASED COSTS
Where any Lender determines that the introduction or variation of any
law or any change in the interpretation or application thereof, or
compliance with any request (whether or not having the force of law)
from any central bank or other fiscal, monetary or other authority
would increase the cost to that Lender of making or maintaining or
funding its Commitment or reduce the amount of any sum received or
receivable by it in respect of its Commitment or oblige it to make any
payment or forgo any interest or other return on, or calculated by
reference to, the amount of any sum received or receivable by it from a
Borrower in respect of its Commitment or reduce the effective return to
it under its Commitment, then:
(A) that Lender shall notify the Borrowers' Agent through the
Facility Agent of such event promptly upon its becoming aware
of such event; and
(B) the Borrower shall on demand pay to the Facility Agent for the
account of that Lender such amounts as that Lender from time
to time and at any time (including after a prepayment of that
Lender's participation) notifies the Facility Agent to be
necessary to compensate it for such increased cost, reduction,
payment or forgone interest or return,
Provided that this clause 12.2 shall not apply to or in respect of:
(i) any change in, or in the rate of, tax on overall net income of
a Lender;
(ii) any circumstances referred to in clause 13.3;
(iii) any increased costs, reduction in return payment or forgone
interest arising as a result of breach by a Lender of any
request or requirement of any fiscal, monetary or other
regulatory authority.
<PAGE>
12.3 MARKET DISRUPTION
If:
(A) the Facility Agent (after consultation with the Reference
Banks) determines that, by reason of circumstances affecting
the London Interbank market generally, reasonable and adequate
means do not or will not exist for ascertaining under clause
7.4 a rate of interest applicable to an Advance; or
(B) the Facility Agent is notified by the Majority Lenders that
deposits in the currency of the Advance are not in the
ordinary course of business available in the London Interbank
market for a period equal to the forthcoming Interest Period
in amounts sufficient to fund their participations in an
Advance,
the Facility Agent shall give written notice (a "SUSPENSION NOTICE") of
such determination or notification to the Borrowers' Agent and each
Lender, and the following provisions shall apply:
(i) If a Suspension Notice relates to Advances which have not yet
been made hereunder, then the Lenders shall not be obliged to
make such Advances hereunder until written notice to the
contrary is given by the Lenders to the Borrowers' Agent
through the Facility Agent. Notwithstanding the service of
such Suspension Notice, each Lender's Commitment shall remain
in force and during the period of thirty days from such
Suspension Notice, each Lender and the Facility Agent shall
consult regularly in good faith with the Borrowers' Agent with
a view to agreeing to an alternative basis for the making of
such Advances. If such alternative basis is agreed between the
Borrowers' Agent and the Lenders, it shall apply in accordance
with its terms.
(ii) If a Suspension Notice relates to Advances outstanding at the
time of a Suspension Notice, during the period of thirty days
from such Suspension Notice, each Lender shall, in
consultation with the Facility Agent and the Borrowers' Agent,
certify to the Facility Agent and the Borrowers' Agent an
alternative basis (in this Agreement referred to as the
"SUBSTITUTE BASIS") for maintaining the participation of such
Lender in such Advances. Without limitation, such Substitute
Basis may be retroactive to the beginning of the Interest
Period to which the Suspension Notice relates, and may include
an alternative method of fixing the interest rate (which shall
reflect the cost to such Lender of funding its participation
in such Advances from other sources plus the Margin),
alternative Interest Periods or alternative currencies for its
participation in such Advance. Each Substitute Basis so
certified shall be binding upon the relevant Borrower and the
certifying Lender and shall be treated as part of this
Agreement.
(iii) So long as any Substitute Basis is in force, the Facility
Agent, in consultation with the Borrowers' Agent and each
Lender certifying a Substitute Basis, shall from time to time,
but not less often than monthly and at the Borrowers' Agent's
request, review whether or not the circumstances referred to
in clause 12.3(i) or (ii) above (as the case may be) still
prevail with a view to returning to the normal provisions of
this Agreement.
12.4 MITIGATION
If circumstances arise in respect of any Lender which would, or would
upon the giving of notice, result in:
<PAGE>
(A) any Borrower being obliged to pay to that Lender additional
amounts pursuant to clause 12.2 or any amounts pursuant to
clause 13.3 (otherwise, in the case of any Borrower which is
incorporated in Canada, than by virtue of requirements of
Canadian law which are in force at the date of this
Agreement); or
(B) an alternative basis applying for the purposes of clause
12.3; or
(C) any Borrower being obliged to repay that Lender's
participation in all or any Advances or other utilisations of
the Facility pursuant to clause 12.1,
then, without in any way limiting, reducing or otherwise qualifying
such Borrower's obligations under clauses 12 and 13, the Lender shall,
in consultation with the Facility Agent and the Borrowers' Agent,
endeavour to take such reasonable steps as may be open to it to
mitigate or remove such circumstances, including without limitation the
transfer of its rights and obligations under this Agreement to another
bank or financial institution acceptable to the Borrowers' Agent,
unless to do so might (in the opinion of the Lender) be prejudicial to
the Lender or would conflict with the Lender's general banking
policies.
12.5 CERTIFICATES
Any determination or notification by the Facility Agent or any Lender
concerning any matter referred to in this clause shall, in the absence
of manifest error, be conclusive evidence as to that matter and shall
be binding on the Borrower, the Lenders and the Facility Agent.
13. PAYMENTS
13.1 BY BORROWERS AND GUARANTORS
All payments to be made by a Borrower or a Guarantor under this
Agreement:
(A) for the account of any of the Lenders shall be made in
immediately available funds not later than twelve noon on the
relevant day to such account as the Facility Agent may have
notified to the Borrowers' Agent for the account of the
Facility Agent who shall, before the close of business on the
date of receipt, remit to each Lender its portion of the
payment so made by remitting it to such account of that Lender
which that Lender may have previously notified to the Facility
Agent; and
(B) to the Facility Agent shall be made to such account as it may
specify by notice to the Borrowers' Agent.
13.2 BY THE LENDERS
All amounts to be advanced by the Lenders to a Borrower under this
Agreement shall be remitted in immediately available funds not later
than 12 noon on the relevant day to such account as the Facility Agent
may have notified to the Lenders for the account of the Facility Agent
who shall make available to the Borrower the amounts so remitted on the
same day by payment to the account and bank which are specified in the
relevant Credit Request. If the Facility Agent makes available to a
Borrower any amount which has not been made unconditionally available
to the Facility Agent the Borrower shall forthwith on notice from the
Facility Agent repay such amount to the Facility Agent together with
interest on such amount until its repayment at a rate determined by the
Facility Agent to reflect its cost of funds.
<PAGE>
13.3 WITHHOLDINGS
All payments by any Borrower or Guarantor under this Agreement whether
in respect of principal, interest, fees or any other item, shall be
made in full without any deduction or withholding (whether in respect
of set off, counterclaim, duties, taxes, charges or otherwise
whatsoever) unless the deduction or withholding is on account of taxes
imposed or levied by any jurisdiction in which any Borrower or
Guarantor is incorporated or through which any payment is made and is
required by law, in which event (unless the Lender concerned otherwise
agrees with the Borrowers' Agent) the Borrower or the Guarantor shall:
(A) ensure that the deduction or withholding does not exceed the
minimum amount legally required (based on the details of the
Lender concerned provided to the Borrower or Guarantor by such
Lender through the Facility Agent);
(B) forthwith pay to the Facility Agent for the account of each
Lender such additional amount so that the net amount received
by that Lender will equal the full amount which would have
been received by it had no such deduction or withholding been
made;
(C) pay to the relevant taxation or other authorities within the
period for payment permitted by applicable law the full amount
of the deduction or withholding (including, but without
prejudice to the generality of the foregoing the full amount
of any deduction or withholding from any additional amount
paid pursuant to this sub-clause); and
(D) furnish to the Facility Agent on behalf of the Lender
concerned, within the period for payment permitted by the
relevant law, either an official receipt of the relevant
taxation authorities involved in respect of all amounts so
deducted or withheld or if such receipts are not issued by the
taxation authorities concerned on payment to them of amounts
so deducted or withheld, a certificate of deduction or
equivalent evidence of the relevant deduction or withholding.
The obligation on the Borrower or Guarantor to pay an additional amount
under this clause 13.3 shall not apply to the extent that the tax
deducted is:
(i) tax on the overall income of a Lender or the Agent save to the
extent that such tax is collected by way of withholding from
the relevant payment from which the deduction must be made; or
(ii) tax that would not be imposed but for the connection between
such Lender or the Agent (as the case may be) and the
jurisdiction (other than the United Kingdom) imposing such tax
other than a connection arising as a result of the relevant
Lender or the Agent entering into this Agreement.
13.4 U.K. TAXES
(A) If a Lender:
(i) at the Signing Date is not a Qualifying Bank; or
(ii) ceases to be a Qualifying Bank after the Signing Date,
<PAGE>
otherwise than as a result of any introduction of or change in or in
the interpretation, administration or application by the English courts
or the Inland Revenue of any relevant law or any relevant practice or
concession of the Inland Revenue after the Signing Date, then the
Borrowers shall not be liable to pay to the Lender any amount under
this clause 13 in excess of the amount they would have been obliged to
pay if the Lender had been (i) a bank, as so defined at the date of the
relevant Advance, and (ii) beneficially entitled to such interest and
within the charge to United Kingdom corporation tax as respects such
interest at the time such interest is paid.
(B) Each Lender confirms to the Facility Agent as follows:
(i) it is beneficially entitled to its rights to principal and
interest under this Agreement; and
(ii) it is a Qualifying Bank.
This confirmation is given as at the date of this Agreement. In the
case of a Lender becoming a Lender by virtue of an assignment or
transfer it is instead given on the date of that assignment or
transfer. Each Lender agrees that it will notify the Facility Agent
promptly of any change in any of these matters.
13.5 TAX CREDITS
If any Borrower or any Guarantor pays any additional amount (a "TAX
PAYMENT") under clause 13.3 and any Lender effectively obtains a refund
of tax or credit against tax on its overall net income by reason of
that Tax Payment (a "TAX CREDIT") and that Lender is able to identify
such Tax Credit as being attributable to such Tax Payment, then that
Lender shall reimburse to the Borrower or, as the case may be, the
Guarantor such amount as it shall determine to be the proportion of
such Tax Credit as will leave that Lender, after that reimbursement, in
no better or worse position than it would have been in if that Tax
Payment had not been required. Each Lender shall have absolute
discretion as to whether to claim any Tax Credit and, if it does so
claim, the extent, order and manner in which it does so. No Lender
shall be obliged to disclose any information regarding its tax affairs
or computations to any Borrower or Guarantor.
13.6 DATE
If any payment under this Agreement would otherwise be due on a day
which is not a Business Day, it shall be due on the next succeeding
Business Day or, if that Business Day falls in the following month of
the year, on the preceding Business Day.
13.7 DEFAULT INTEREST
(A) If a Borrower fails to pay any amount in accordance with this
Agreement, the Borrower shall pay interest on that amount from the time
of default up to the time of actual payment (as well after as before
judgment) at the rate per annum which is the sum of (a) the Margin plus
1% and (b) the rate, (as determined by the Facility Agent), for a
deposit of an amount comparable to the defaulted amount, offered to the
Facility Agent in the London Interbank market, for such period as the
Facility Agent may from time to time select, at or about 11.00 a.m.
(London time) on the Business Day succeeding that on which the Facility
Agent becomes aware of the default for value on that day in the case of
sterling or two Business Days later in the case of any other currency
and (c) the Reserve Asset Costs.
<PAGE>
(B) If an amount unpaid in accordance with this Agreement in respect of the
Facility, is of principal due on a day during, but not the last day of,
an Interest Period relating thereto, the period selected by the
Facility Agent under clause 13.7(A) shall equal the unexpired portion
of the Interest Period and there shall be substituted for the rate
specified in clause 13.7(A) the rate of 1% above the rate calculated in
accordance with clause 7.4 and applicable to the unpaid amount
immediately before it fell due.
(C) Interest under this clause shall accrue daily on the basis of a year of
360 days (or 365 days in the case of sterling, Hong Kong Dollars,
Belgian Francs, Canadian Dollars and Singapore Dollars or such other
period applied generally in the relevant market in relation to such
calculations for the relevant currency) from and including the first
day to the last day of each period for which a rate of interest is
determined as aforesaid and shall be due and payable by the Borrower at
the end of each such period. So long as the default continues, the rate
referred to in clause 13.7(A) shall be calculated on a similar basis at
the end of each period selected by the Facility Agent and notified to
the Lenders and interest payable under this sub-clause which is unpaid
at the end of each such period shall thereafter itself bear interest at
the rates provided in this sub-clause.
13.8 JUDGMENT CURRENCY
If, under any applicable law, whether as a result of a judgment against
a Borrower or a Guarantor or the liquidation of a Borrower or a
Guarantor or for any other reason, any payment under or in connection
with the Facility is made or is recovered in a currency (the "OTHER
CURRENCY") other than that in which it is required to be paid hereunder
(the "ORIGINAL CURRENCY") then, to the extent that the payment to any
Lender (when converted at the rate of exchange on the date of payment
or, in the case of a liquidation, the latest date for the determination
of liabilities permitted by the applicable law) falls short of the
amount unpaid under this Agreement, the Borrower or the Guarantor shall
as a separate and independent obligation, fully indemnify that Lender
against the amount of the shortfall; and for the purposes of this
sub-clause "RATE OF EXCHANGE" means the rate at which the Lender
concerned is able on the relevant date to purchase the original
currency in London with the other currency.
14. DEFAULT
14.1 EVENTS
If (whether or not caused by any reason outside the control of the
Borrowers or the Guarantors):
(A) any Borrower or any Guarantor does not pay on the due date
(or, in the case of amounts other than principal, within three
Business Days thereafter) any amount payable by it under any
of the Financing Documents at the place and in the currency
expressed to be payable (unless such failure results solely
from a technical problem in relation to the transfer of funds
for which such Borrower or Guarantor is not responsible and is
remedied within five days of the due date); or
(B) any Borrower or any Guarantor fails to comply in any material
respect with any other provision of any of the Financing
Documents and, other than in the case of clauses 11.3 and
11.15, if such default is capable of prompt remedy within 30
days after any Borrower or Guarantor shall have given notice
of such default pursuant to clause 11.4 (or, if earlier, the
date on which the Facility Agent shall have given notice to
the
<PAGE>
Borrowers' Agent of such default) such Borrower or Guarantor
shall have failed to cure such default; or
(C) any representation, warranty or written statement made or
deemed to be repeated in, or in connection with, this
Agreement or in any other Financing Document or in any
certificate delivered by or on behalf of any Borrower or any
Guarantor in writing under any of the Financing Documents is
incorrect in any material respect when made or deemed to be
repeated, or, in respect of those specified in clause 10.2,
would be if repeated at any time; or
(D) any other present or future Borrowings of a principal amount
exceeding in the aggregate $20,000,000 or the equivalent sum
in any other currency of any member of the Group shall become
due and payable or capable of being declared due and payable
prior to the due date thereof as a result of a default or any
such Borrowings shall not be paid on the due date thereof (or,
if a grace period was originally provided for in the document
evidencing or constituting such Borrowing, within any
applicable grace period therefor) or any Security Interest
over any assets of any member of the Group and securing a
principal amount exceeding $20,000,000 shall be or become
enforceable; or
(E) any Borrower, Guarantor or Material Subsidiary is deemed
unable to pay its debts within the meaning of section
123(1)(a), (b), (c) or (d) of the Insolvency Act 1986 (as that
section may be amended by order under section 416 or
otherwise), or any Borrower, Guarantor or Material Subsidiary
becomes unable to pay its debts as they fall due, or any
Borrower, Guarantor or Material Subsidiary suspends making
payments (whether of principal or interest) with respect to
all or any class of its debts or announces an intention to do
so; or
(F) an application for an administration order in relation to any
Borrower, Guarantor or Material Subsidiary is presented to the
court by any such company or its directors or the supervisor
of a voluntary arrangement relating to any Borrower, Guarantor
or Material Subsidiary or such an order is made on the
application of a creditor of any Borrower, Guarantor or
Material Subsidiary or any meeting of any Borrower, Guarantor
or Material Subsidiary is convened for the purpose of
considering any resolution to present an application for such
an order; or
(G) any kind of composition, scheme of arrangement, compromise or
arrangement involving any Borrower, Guarantor or Material
Subsidiary and its creditors generally (or any class of them)
is proposed by the company concerned; or
(H) any administrative or other receiver or any manager of any
Borrower, Guarantor or Material Subsidiary or all or a
substantial part of any of its property is appointed, or the
directors of any Borrower, Guarantor or Material Subsidiary
request any person to appoint such a receiver or manager, or
any kind of attachment (except prejudgment attachment),
sequestration, distress or execution against any Borrower,
Guarantor or Material Subsidiary or all or a substantial part
of its property is levied or sued out and not discharged
within 30 days; or
(I) any meeting of any Borrower, Guarantor or Material Subsidiary
is convened for the purpose of considering any resolution for
(or to petition for) its winding up, or any Borrower,
Guarantor or Material Subsidiary passes such a resolution, or
any Borrower, Guarantor or Material Subsidiary or any other
person (except its creditor) presents any petition for the
winding up of any Borrower, Guarantor or Material
<PAGE>
Subsidiary, or an order for the winding up of any Borrower,
Guarantor or Material Subsidiary is made on the petition of
any of its creditors; or
(J) there occurs in relation to any Borrower, Guarantor or
Material Subsidiary in any country or territory in which it
carries on business or to the jurisdiction of whose courts it
or any of its property is subject any event which reasonably
appears to the Majority Lenders to correspond in that country
or territory with any of those mentioned in paragraphs (E) to
(I) inclusive above or any Borrower, Guarantor or Material
Subsidiary otherwise becomes subject, in any such country or
territory, to any law relating to insolvency, bankruptcy or
liquidation; or
(K) any Borrower, Guarantor or Material Subsidiary ceases, or
threatens to cease, to carry on all or a substantial part of
its business except consequent upon a disposal, merger or
acquisition not otherwise prohibited under this Agreement; or
(L) any authorisation, approval, consent, licence, exemption,
filing, registration or notarisation or other requirement
necessary to enable any Borrower or Guarantor to comply with
its obligations under any of the Financing Documents to which
it is a party in any material respect is revoked or withheld
or does not remain in full force and effect or is materially
and adversely modified; or
(M) any single person, or group of persons acting in concert (as
defined in the City Code on Takeovers and Mergers), acquires
control (as defined in Section 416 of the Income and
Corporation Taxes Act 1988) of the Parent and, in a situation
where the acquisition of such control of the Parent takes
place with the consent, and on the recommendation, of the
Board of Directors of the Company only, ninety days shall have
elapsed following such acquisition of control; or
(N) at any time it is unlawful for any Borrower or any Guarantor
to perform any of its material obligations under any Financing
Document to which it is a party; or
(O) any litigation, arbitration or administrative proceeding or
claim in which there is a reasonable possibility of an adverse
decision which has had or would be reasonably likely by itself
or together with any other such proceedings or claims either
to have a material adverse effect on the business, assets or
consolidated financial condition of the Group as a whole or
which would be reasonably likely materially and adversely to
affect the ability of the Borrowers and Guarantors taken as a
whole to observe or perform their obligations under any
Financing Documents and which affect any Borrower, any
Guarantor or the Group as a whole is in progress or pending or
threatened; or
(P) (i) any U.S. Subsidiary (a "QUALIFYING U.S. SUBSIDIARY") which
is a Borrower, Guarantor or Material Subsidiary shall commence
any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating
to winding-up, dissolution, bankruptcy, insolvency,
reorganisation or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking
reorganisation, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its assets, or any
Qualifying U.S. Subsidiary shall make a general assignment for
the benefit of its creditors; or (ii) there shall be commenced
against any Qualifying U.S. Subsidiary any case, proceeding or
other action of a nature referred to in clause (i) above which
<PAGE>
(A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of sixty days; or (iii)
there shall be commenced against any Qualifying U.S.
Subsidiary any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its
assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within sixty days from the
entry thereof; or (iv) any Qualifying U.S. Subsidiary shall
take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii) or (iii) above: or (v) any Qualifying U.S.
Subsidiary shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they
become due; or
(Q) any other event or series of events whether related or not
which has a material adverse effect on the business, assets or
consolidated financial condition of the Group as a whole or
which would be reasonably likely materially and adversely to
affect the ability of the Group as a whole to comply with any
or all of its obligations under the Financing Documents
occurs,
then, at once or at any time thereafter, the Facility Agent may, and
upon the request of the Majority Lenders shall, by notice to the
Borrowers' Agent, declare the Total Outstandings to be immediately due
and payable whereupon:
(a) all Advances and all other sums outstanding under the Facility
shall become so due and payable together with accrued interest
thereon and any other amounts then payable under this
Agreement or the Facility; and
(b) no further utilisations of the Facility shall be permitted.
Notwithstanding the foregoing, if an Event of Default specified in
paragraph (P)(i) to (iii) above occurs with respect to a U.S.
Subsidiary which is a Borrower, the Commitments of the Lenders in
respect of such Borrower shall immediately terminate and the
Outstandings owed by such Borrower shall become immediately due and
payable, without any action by the Facility Agent or the Lenders and
without any presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived, anything contained
herein or in any Financing Documents to the contrary notwithstanding.
14.2 NOTICE
If the Facility Agent is notified under this Agreement of the
occurrence of an Event of Default it shall promptly inform each of the
Lenders. If any Lender becomes aware of the occurrence of an Event of
Default it shall promptly inform the Facility Agent.
15. INDEMNITY
15.1 GENERAL INDEMNITY
Each Borrower and each Guarantor shall fully indemnify each of the
Facility Agent and the Lenders from and against any expense, loss,
damage or liability (as to the amount of which the certificate of the
Facility Agent shall, in the absence of manifest error, be conclusive)
which any of them may incur as a consequence of the occurrence of any
Event of Default, of any failure to draw down in accordance with a
Credit Request or other notification of any intention to utilise the
Facility or of any repayment or prepayment under this Agreement or
<PAGE>
otherwise in connection with this Agreement (including without
limitation any repayment or prepayment pursuant to clause 2.3, 9.1 or
9.3). Without prejudice to its generality, the foregoing indemnity
shall extend to any interest, fees or other sums whatsoever paid or
payable on account of any funds borrowed in order to carry any unpaid
amount and to any loss, premium, penalty or expense which may be
incurred in liquidating or employing deposits from third parties
acquired to make, maintain or fund the Total Outstandings (or any part
of them) or any other amount due or to become due under this Agreement.
15.2 WAIVER OF DEFENCES
The Borrowers and the Guarantors agree that no delay, extension of
time, renewal, compromise, waiver, indulgence, release of security or
rights or any other matter or thing shall in any way prejudice the
Lenders' or the Facility Agent's rights or powers hereunder. No
Borrower shall by virtue of any payment made by it pursuant to this
clause 15 claim in competition with the Facility Agent or any Lender
any right of subrogation, contribution or indemnity against any member
of the Group so long as any amount is or is capable of becoming
outstanding hereunder.
16. GUARANTEE
16.1 GUARANTEE
(A) Each Guarantor unconditionally and irrevocably and jointly and
severally guarantees, as a continuing obligation, the proper and
punctual payment by each of the Borrowers of the Guaranteed Amounts and
unconditionally and irrevocably undertakes, as a continuing obligation,
with the Facility Agent and the Lenders (and each of them) that, if for
any reason any Borrower does not make such payment, the Guarantor shall
pay the Guaranteed Amounts upon first written demand by the Facility
Agent.
(B) The liability of each U.S. Guarantor in respect of the Guaranteed
Amounts shall not exceed the greater of 95% of the Adjusted Net Assets
of such U.S. Guarantor on the Signing Date and 95% of the Adjusted Net
Assets of such U.S. Guarantor on the date on which such U.S. Guarantor
becomes liable to make any payment in respect of the Guaranteed
Amounts. "ADJUSTED NET ASSETS" of a U.S. Guarantor at any date means
the lesser of (i) the amount by which the fair value of the property of
such U.S. Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities, but excluding liabilities
in respect of the Guaranteed Amounts, of such U.S. Guarantor at such
date and (ii) the amount by which the present fair saleable value of
the assets of such U.S. Guarantor at such date exceeds the amount of
the probable liabilities of such U.S. Guarantor on its debts, excluding
debt in respect of the Guaranteed Amounts, as they become absolute and
matured; provided, however, that for the purposes of this clause
16.1(B), the term "GUARANTEED AMOUNTS" shall not include liabilities
(if any) of the U.S. Guarantor in respect of amounts borrowed by it as
a Borrower hereunder.
16.2 PRINCIPAL DEBTOR
Each Guarantor shall be deemed to be liable for the Guaranteed Amounts
as sole or principal debtor.
16.3 DISCHARGE
The liabilities and obligations of each of the Guarantors under this
Agreement shall remain in force notwithstanding any act, omission,
neglect, event or matter whatsoever, except the
<PAGE>
proper and valid payment of all the Guaranteed Amounts and, subject to
clause 16.4, an absolute discharge or release of each of the Guarantors
signed by the Facility Agent on behalf of the Lenders; and without
prejudice to its generality, the foregoing shall apply in relation to
anything which would have discharged the Guarantors (wholly or in part)
or which would have afforded the Guarantors any legal or equitable
defence, and in relation to any winding up or dissolution of, or any
change in constitution or corporate identity or loss of corporate
identity by, any of the Borrowers, any other Guarantor or any other
person.
16.4 PREFERENCE
Any such discharge or release as is referred to in clause 16.3, and any
composition or arrangement which any of the Guarantors may effect with
the Facility Agent and the Lenders, shall be deemed to be made subject
to the condition that it will be void if any payment or security which
the Facility Agent and the Lenders (or any of them) may previously have
received or may thereafter receive from any person in respect of the
Guaranteed Amounts is set aside under any applicable law or proves to
have been for any reason invalid.
16.5 NO IMPAIRMENT
Without prejudice to the generality of clauses 16.2 and 16.3 none of
the liabilities or obligations of the Guarantors under this Agreement
shall be impaired by, and each of the Guarantors hereby irrevocably
waives any defences it may now or hereafter have in any way relating
to, the Facility Agent and the Lenders (or any of them):
(A) agreeing with any Borrower any variation or departure (however
substantial) of or from this Agreement (other than this
clause) or any of the Financing Documents and any such
variation or departure shall, whatever its nature, be binding
upon each Guarantor in all circumstances, notwithstanding that
it may increase or otherwise affect the liability of the
Guarantors provided however that if any such variation is
made, without each Guarantor's prior written consent, which
has the effect of increasing the amount of the Facility or the
Margin, the amount of the Guarantors' liability under this
clause shall be limited to the amount for which they would
have been liable had such variation not been made;
(B) releasing or granting any time or any indulgence whatsoever to
any Borrower or Guarantor and, in particular, waiving any of
the pre-conditions for Credits under this Agreement or any
contravention by any Borrower of this Agreement, or entering
into any transaction or arrangements whatsoever with or in
relation to any Borrower, other Guarantor and/or any third
party; and
(C) taking, perfecting, accepting, varying, dealing with,
enforcing, abstaining from enforcing, surrendering or
releasing any security for the Guaranteed Amounts in such
manner as it or they think fit, or claiming, proving for,
accepting or transferring any payment in respect of the
Guaranteed Amounts in any composition by, or winding up of,
any Borrower and/or any third party and/or any other Guarantor
or abstaining from so claiming, proving, accepting or
transferring.
16.6 DEMANDS
Demands under this clause may be made from time to time, and the
liabilities and obligations of the Guarantors under this Agreement may
be enforced, irrespective of:
<PAGE>
(A) whether any demands, steps or proceedings are being or have
been made or taken against any of the Borrowers and/or any
third party and/or any other Guarantor; or
(B) whether or in what order any security to which the Facility
Agent or the Lenders may be entitled in respect of the
Guaranteed Amounts is enforced.
Each Guarantor waives diligence, presentment, protest, demand for
payment and notice of default to or upon any Borrower or Guarantor.
16.7 SUSPENSE ACCOUNT
Until all amounts which may be or become payable by the Borrowers
hereunder or under any of the Finance Documents or in connection
herewith or therewith have been irrevocably paid and discharged in
full, the Facility Agent and each Lender may:
(A) refrain from applying or enforcing any other security, moneys
or rights held or received by the Facility Agent or such
Lender in respect of such amounts or apply and enforce the
same in such manner and order as the Facility Agent or such
Lender sees fit (whether against such amounts or otherwise)
and none of the Guarantors shall be entitled to the benefit of
the same; and
(B) hold in suspense account (subject to the accrual of interest
thereon at market rates for the account of the relevant
Guarantor(s)) any moneys received from any Guarantor or on
account of that Guarantor's liability hereunder.
16.8 SUBORDINATION
So long as any Guarantor has any liability under this Agreement and
except as provided in clause 16.9 below:
(A) no Guarantor shall take or accept any Security Interest from
any Borrower or, in relation to the Guaranteed Amounts, from
any third party, without first obtaining the Facility Agent's
written consent;
(B) after the occurrence of an Event of Default, no Guarantor
shall, without first obtaining the Facility Agent's written
consent, seek to recover, whether directly or by set off,
lien, counterclaim or otherwise, nor accept any moneys or
other property, nor exercise any rights in respect of, any sum
which may be or become due to the Guarantor on any account by
any Borrower or, in relation to the Guaranteed Amounts, from
any third party, nor claim, prove for or accept any payment in
any composition by, or any winding up of, any Borrower or, in
relation to the Guaranteed Amounts, any third party;
(C) if, notwithstanding the foregoing, any Guarantor holds or
receives any such security, moneys or property, it shall
forthwith pay or transfer the same to the Facility Agent.
16.9 DEFERRAL OF SUBROGATION, CONTRIBUTION, REIMBURSEMENT, EXONERATION AND
INDEMNITY
Each Guarantor agrees that it will not exercise any rights that it may
now have or hereafter acquire against the Borrowers or any other
Guarantor or any other person that arise from the existence, payment,
performance or enforcement of the Guaranteed Amounts, including without
limitation any right of subrogation, contribution, reimbursement,
exoneration or indemnity (or any similar right) prior to the later of
the cash payment in full of the Guaranteed
<PAGE>
Amounts and all other amounts payable under this clause 16 and the
Final Maturity. If any amount shall be paid to a Guarantor in violation
of the preceding sentence, such amount shall be held in trust for the
benefit of the Facility Agent and the Lenders and shall forthwith be
paid to the Facility Agent to be credited and applied to the Guaranteed
Amounts and all other amounts payable under this clause 16, whether or
not due, in accordance with the terms of the Financing Documents, or be
held as collateral security for any Guaranteed Amounts or other amounts
payable under this clause 16 and thereafter arising. If (i) a Guarantor
shall make payment of all or any part of the Guaranteed Amounts, (ii)
all of the Guaranteed Amounts and all other amounts payable under this
clause 16 shall be paid in full in cash and (iii) the Final Maturity
shall have occurred, the Facility Agent will, at such Guarantor's
request and expense, execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to such Guarantor of
an interest in the Guaranteed Amounts resulting from such payment by
such Guarantor.
16.10 INDEMNITY
As a separate, additional and continuing obligation, each Guarantor
unconditionally and irrevocably and jointly and severally undertakes
with the Facility Agent and the Lenders (and each of them) that, should
the Guaranteed Amounts not be recoverable from the Guarantor under
clause 16.1 for any reason whatsoever (including, but without prejudice
to the generality of the foregoing, by reason of any other provision of
this Agreement being or becoming void, unenforceable or otherwise
invalid under any applicable law) then, notwithstanding that it may
have been known to the Facility Agent or any of the Lenders, the
Guarantor shall, as a sole, original and independent obligor, upon
first written demand by the Facility Agent under clause 16.1, make
payment of the Guaranteed Amounts by way of a full indemnity in such
currency and otherwise in such manner as is provided for in this
Agreement and shall indemnify the Facility Agent and the Lenders (and
each of them) against all losses, claims, costs, charges and expenses
to which they may be subject or which they may incur under or in
connection with this Agreement.
17. THE FACILITY AGENT AND THE ARRANGER
17.1 APPOINTMENT OF THE FACILITY AGENT
Each Lender hereby appoints the Facility Agent to act as its agent in
connection with the Financing Documents and authorises the Facility
Agent to exercise such rights, powers, authorities and discretions as
are specifically delegated to the Facility Agent by the terms of any of
the Financing Documents together with all such rights, powers,
authorities and discretions as are reasonably incidental thereto.
17.2 FACILITY AGENT'S DISCRETIONS
The Facility Agent may:
(a) assume, unless it has, in its capacity as agent for the
Lenders, received notice to the contrary from any other party
to any of the Financing Documents, that (i) any representation
made by any Borrower or Guarantor in connection with any of
the Financing Documents is true, (ii) no Default has occurred,
(iii) no Borrower or Guarantor is in breach of or default
under its obligations under any of the Financing Documents and
(iv) any right, power, authority or discretion vested in any
of the Financing Documents upon the Majority Lenders, the
Lenders or any other person or group of persons has not been
exercised;
<PAGE>
(b) assume that the Facility Office of each Lender is that
identified with its signature below (or, in the case of a
Transferee, at the end of the Novation Certificate to which it
is a party as Transferee) until it has received from such
Lender a notice designating some other office of such Lender
to replace its Facility Office and act upon any such notice
until the same is superseded by a further such notice;
(c) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or
services may to it seem necessary, expedient or desirable and
rely upon any advice so obtained;
(d) rely as to any matters of fact which might reasonably be
expected to be within the knowledge of a Borrower or a
Guarantor upon a certificate signed by or on behalf of a
Borrower or Guarantor;
(e) rely upon any communication or document believed by it to be
genuine;
(f) refrain from exercising any right, power or discretion vested
in it as agent under any of the Financing Documents unless and
until instructed by the Majority Lenders as to whether or not
such right, power or discretion is to be exercised and, if it
is to be exercised, as to the manner in which it should be
exercised; and
(g) refrain from acting in accordance with any instructions of the
Majority Lenders to begin any legal action or proceeding
arising out of or in connection with any of the Financing
Documents until it shall have received such security as it may
require (whether by way of payment in advance or otherwise)
for all costs, claims, losses, expenses (including legal fees)
and liabilities together with any VAT thereon which it will or
may expend or incur in complying with such instructions.
17.3 FACILITY AGENT'S OBLIGATIONS
The Facility Agent shall:
(a) promptly inform each Lender of the contents of any notice or
document received by it in its capacity as Facility Agent from
the Borrower under this Agreement;
(b) promptly notify each Lender of the occurrence of any Event of
Default or any default by the Borrower in the due performance
of or compliance with its obligations under any of the
Financing Documents of which the Facility Agent has notice
from any other party hereto;
(c) save as otherwise provided herein, act in accordance with any
instructions given to it by the Majority Lenders, which
instructions shall be binding on all of the Lenders; and
(d) if so instructed by the Majority Lenders, refrain from
exercising any right, power or discretion vested in it as
agent under any of the Financing Documents.
17.4 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied herein,
the Facility Agent shall not:
<PAGE>
(a) be bound to enquire as to (i) whether or not any
representation made by a Borrower or a Guarantor in connection
with any of the Financing Documents is true, (ii) the
occurrence or otherwise of any Default, (iii) the performance
by a Borrower or a Guarantor of its obligations under any of
the Financing Documents or (iv) any breach of or default by
any Borrower or Guarantor of or under its obligations under
any Financing Document;
(b) be bound to account to any Lender for any sum or the profit
element of any sum received by it for its own account;
(c) be bound to disclose to any other person any information
relating to any member of the Group if such disclosure would
or might in its opinion constitute a breach of any law or
regulation or be otherwise actionable at the suit of any
person; or
(d) be under any obligations other than those for which express
provision is made in any of the Financing Documents.
17.5 INDEMNIFICATION
Each Lender shall, pro rata to its Commitments, from time to time on
demand by the Facility Agent, indemnify the Facility Agent, against any
and all costs, claims, losses, expenses (including legal fees) and
liabilities together with any VAT (as defined in Clause 18.6) thereon
which the Facility Agent may incur, otherwise than by reason of its own
negligence or wilful misconduct, in acting in its capacity as agent
under the Financing Documents.
17.6 EXCLUSION OF LIABILITIES
Neither the Facility Agent nor the Arranger accepts any responsibility
for the accuracy and/or completeness of the information supplied by a
Borrower or a Guarantor in connection herewith or for the legality,
validity, effectiveness, adequacy or enforceability of any of the
Financing Documents and neither the Facility Agent nor the Arranger
shall be under any liability as a result of taking or omitting to take
any action in relation to any of the Financing Documents, save in the
case of negligence or wilful misconduct.
17.7 NO ACTIONS
Each of the Lenders agrees that it will not assert or seek to assert
against any director, officer or employee of the Facility Agent or
Arranger or any affiliate thereof any claim it might have against any
of them in respect of the matters referred to in clause 17.6 Exclusion
of Liabilities.
17.8 BUSINESS WITH THE GROUP
The Facility Agent and the Arranger may accept deposits from, lend
money to and generally engage in any kind of banking or other business
with any member of the Group.
17.9 RESIGNATION
The Facility Agent may resign its appointment under this Agreement at
any time without assigning any reason therefor by giving not less than
thirty days' prior written notice to that effect to each of the other
parties hereto and by appointing any Affiliate of the Facility Agent in
its stead, such appointment to take effect from the date of resignation
of the resigning facility agent.
<PAGE>
17.10 SUCCESSOR FACILITY AGENT
If a successor to the Facility Agent is appointed under the provisions
of clause 17.9 (Resignation), then (i) the retiring Facility Agent
shall be discharged from any further obligation under this Agreement
but shall remain entitled to the benefit of the provisions of this
clause 17 and, (ii) its successor and each of the other parties hereto
shall have the same rights and obligations amongst themselves as they
would have had if such successor had been a party hereto.
17.11 OWN RESPONSIBILITY
It is understood and agreed by each Lender that it has itself been, and
will continue to be, solely responsible for making its own independent
appraisal of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of each member
of the Group and, accordingly, each Lender warrants to the Facility
Agent and the Arranger that it has not relied on and will not hereafter
rely on the Facility Agent or the Arranger:
(a) to check or enquire on its behalf into the adequacy, accuracy
or completeness of any information provided by a Borrower or a
Guarantor in connection with this Agreement or the
transactions herein contemplated (whether or not such
information has been or is hereafter circulated to such Lender
by the Facility Agent or the Arranger); or
(b) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or
nature of any member of the Group.
17.12 AGENCY DIVISION SEPARATE
In acting as agent under this Agreement for the Lenders, the Facility
Agent shall be regarded as acting through its agency division which
shall be treated as a separate entity from any other of its divisions
or departments and, notwithstanding the foregoing provisions of this
clause 17, any information received by some other division or
department of the Facility Agent may be treated as confidential and
shall not be regarded as having been given to the Facility Agent's
agency division.
17.13 PROCEEDINGS
Nothing in this clause 17 shall permit the Facility Agent to institute,
defend or conduct legal proceedings in the name of a Lender without the
prior written consent of such Lender.
17.14 LENDERS
(a) The Facility Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and as acting through its Facility
Office(s) until it has received not less than five Business Days' prior
notice from that Lender to the contrary.
(b) The Facility Agent may at any time, and shall if requested to do so by
the Majority Lenders, convene a meeting of the Lenders.
<PAGE>
18 FEES AND EXPENSES
18.1 ARRANGER'S FEE
The Borrowers will pay to the Facility Agent for the account of the
Arranger an arranger's fee in accordance with the terms of a letter
dated the Signing Date between the Company and the Facility Agent.
18.2 AGENCY FEE
The Borrowers will pay (if required) to the Facility Agent for its own
account an agency fee in accordance with the terms of a letter dated
the Signing Date between the Company and the Facility Agent.
18.3 UPFRONT FEE
The Borrowers will pay to the Facility Agent for its own account an
upfront fee in accordance with the terms of a letter dated the Signing
Date between the Company and the Facility Agent.
18.4 EXPENSES
The Borrowers shall on demand pay, in each case on the basis of a full
indemnity:
(A) to the Facility Agent all reasonable expenses (including
legal, printing, publicity and out-of-pocket expenses)
reasonably incurred by the Facility Agent or the Arranger (in
which case the relevant payment shall be made to the Facility
Agent for the account of the relevant Arranger) in connection
with the negotiation, preparation or completion of this
Agreement and any related documents; and
(B) to the Facility Agent all expenses (including legal and
out-of-pocket expenses) incurred by it in connection with any
variation, refinancing, consent or approval relating to the
Financing Documents or incurred by it or any of the Lenders in
connection with the preservation, enforcement or the attempted
preservation or enforcement of any of their rights under the
Financing Documents or any related documents.
18.5 STAMP DUTY
The Borrowers shall pay any stamp, documentary and other similar duties
and taxes to which the Financing Documents or any related documents
(other than an assignment or transfer of a Lender's rights or
obligations hereunder) may be subject or give rise in any relevant
jurisdiction and shall fully indemnify the Facility Agent and each of
the Lenders from and against any losses or liabilities which any of
them may incur as a result of any delay or omission by the Borrowers to
pay any such duties or taxes.
18.6 VALUE ADDED TAX
The amounts stated in this Agreement to be payable by the Borrowers are
exclusive of United Kingdom value added tax ("VAT") and accordingly:
<PAGE>
(A) the Borrowers shall pay any VAT properly chargeable in respect
of supplies to the Borrowers as contemplated by this Agreement
(including any VAT chargeable by the Facility Agent in respect
of its supplies to the Borrowers under this Agreement); and
(B) in the case of goods or services supplied to the Facility
Agent as contemplated by this Agreement, the Borrowers shall
pay to the Facility Agent by way of additional remuneration
such amount as shall represent any associated VAT (whether
charged by the supplier or suffered by reason of the reverse
charge provisions contained in section 8 of the Value Added
Tax Act 1994) to the extent that VAT is not, in the reasonable
opinion of the Facility Agent, otherwise recoverable as input
tax.
19. SET OFF AND PRO RATA SHARING
19.1 SET OFF
Following an Event of Default, any Lender may at the same time as
providing notice to the Borrower or the Guarantor combine, consolidate
or merge all or any of a Borrower's or Guarantor's accounts with, and
liabilities to, that Lender and may set off or transfer any sum
standing to the credit of any such accounts in or towards satisfaction
of any of the Borrower's or the Guarantor's, as the case may be,
liabilities to that Lender under the Financing Documents, and may do so
notwithstanding that the balances on such accounts and the liabilities
may not be expressed in the same currency and each Lender is hereby
authorised to effect any necessary conversions at the Lender's own rate
of exchange then prevailing.
19.2 PRO RATA SHARING
(A) If, following an Event of Default, a Lender receives or recovers any
amount (other than from the Facility Agent) in respect of sums due from
a Borrower or a Guarantor under the Financing Documents (whether by set
off or otherwise) it shall promptly notify the Facility Agent of such
amount and the manner of its receipt or recovery.
(B) Following receipt of notice under clause 19.2(A) the Facility Agent
shall, as soon as practicable, having regard to the circumstances,
consult with the Lenders to establish the aggregate amount of sums
received or recovered by the Lenders and what payments are necessary
amongst the Lenders for such aggregate amount to be divided amongst
each Lender in the proportion to which each Lender's Outstandings bear
to the Total Outstandings.
(C) The Lenders shall promptly make such payments to each other, through
the Facility Agent, as the Facility Agent shall direct to effect the
divisions referred to in clause 19.2(B).
(D) If a Lender makes a payment or payments pursuant to clause 19.2(C), any
payment previously received by that Lender as described in clause
19.2(A) shall, subject to clause 19.2(E), be deemed to have been made
by the relevant Borrower or Guarantor, as the case may be, on the
understanding that it was received by that Lender as agent for the
Lenders and that the payments described in clause 19.2(C) would be made
and the liabilities of the relevant Borrower or Guarantor, as the case
may be, to each of the Lenders shall accordingly be determined on the
basis that such payment or payments pursuant to clause 19.2(C) would be
made.
(E) If a Lender makes a payment or payments pursuant to clause 19.2(C),
clause 19.2(D) shall not apply if, as a result, the indebtedness of the
relevant Borrower or Guarantor to the Lender has been extinguished,
discharged or satisfied by the amount received or recovered (for
example, because of set off). In this event, for the purpose only of
determining the liabilities of the
<PAGE>
relevant Borrower or Guarantor, as the case may be, to the Lenders
(other than the Lender making the said payment or payments) and the
liabilities of the Lenders to each other, the said payment or payments
by the Lender shall be deemed to have been made on behalf of the
relevant Borrower or Guarantor, as the case may be, in respect of its
obligations under the Financing Documents and to the extent the
Facility is thereby discharged the relevant Borrower or Guarantor, as
the case may be, shall fully indemnify the Lender for such payment or
payments.
(F) Any moneys payable by the relevant Borrower or Guarantor under clause
19.2(E) by way of indemnity shall be payable from the date the Lender
makes the payment or payments under clause 19.2(C), shall carry
interest from such date and for such purpose and all other purposes of
this Agreement be treated in the same way as other amounts payable
under this Agreement as though such moneys were payable in respect of
the Outstandings of the Lender which has the benefit of the indemnity
contained in clause 19.2(E) (whether or not the indebtedness
attributable to such participation has been extinguished, discharged or
satisfied in whole or in part).
For the purpose of disclosure pursuant to the Interest Act (Canada),
the yearly rate of interest to which any rate of interest payable under
this Agreement which is to be calculated on any basis other than a full
calendar year is equivalent may be determined by multiplying such rate
by a fraction, the numerator of which is the number of days in the
calendar year in which the period for which interest at such rate is
payable ends and the denominator of which is the number of days
comprising such basis.
(G) Every payment and adjustment made pursuant to this clause shall be
subject to the condition that if any receipt or recovery as referred to
in paragraph (A) made by a Lender (or any part thereof) subsequently
has to be repaid by the relevant Lender (the "SHARING LENDER") to the
relevant Borrower or Guarantor, the Facility Agent (if it shall then
hold the same) and each of the Lenders which has received any part
thereof shall repay the relevant amount received (or the relevant part,
as the case may be) to the Sharing Lender together with such amount (if
any) as is necessary to reimburse to the Sharing Lender the appropriate
proportion of any interest (in respect of the period during which the
Facility Agent or (as the case may be) such Lender held such amount (or
part thereof)) it shall have been obliged to pay when repaying such
amount as aforesaid and the relevant adjustments pursuant to the
preceding paragraphs of this clause shall be to that extent cancelled.
19.3 LITIGATION
If any Lender shall commence an action or proceeding in any court to
enforce its rights and, as a result thereof or in connection therewith,
shall receive any amount which would otherwise require such Lender to
make a payment to another Lender pursuant to this clause the relevant
Lender shall not be required to make any such payment to (a) a Lender
that has the legal right to, but does not (after notification to that
Lender by the Lender instituting legal proceedings), join such action
or proceeding or commence and diligently prosecute a separate action or
proceeding to enforce its rights in the same or another court or (b)
the Lenders(s) which shall have joined the same action or proceeding or
shall have commenced and prosecuted a separate action or proceeding to
enforce their rights in the same or in another court if, by reason of
the negligence or wilful default of such Lender(s), such Lender(s)
shall obtain a sum which is proportionately smaller (including a nil
receipt) than that received by the Lender otherwise required to make a
payment pursuant to this clause.
<PAGE>
19.4 NOTIFICATION
Each Lender shall promptly give notice to the Facility Agent of:
(A) the institution by such Lender of any legal action or
proceedings hereunder or in connection herewith prior to such
institution; and
(B) the receipt or recovery by such Lender of any amount due and
payable to such Lender hereunder and received or recovered by
it otherwise than through the Facility Agent.
Upon receipt of any such notice the Facility Agent will as soon as
practicable thereafter notify all the other Lenders.
20. BENEFIT OF AGREEMENT
20.1 TRANSFER BY BORROWERS AND GUARANTORS
Except as otherwise provided in clause 3.10, neither any Borrower nor
any Guarantor may assign or transfer all or any part of the rights or
obligations hereunder without the prior written consent of the Lenders.
20.2 TRANSFER BY LENDERS
Any Lender (the "TRANSFEROR") may at any time, with the prior written
consent of the Borrowers' Agent (such consent not to be unreasonably
withheld or delayed) except in the case of any such transfer to another
member of the group of companies to which the relevant Lender belongs
(provided that the Borrowers' Agent has confirmed to the Facility Agent
that it is satisfied (which confirmation shall not be unreasonably
withheld and shall be deemed to have been given if the Borrowers' Agent
has failed to respond to a request therefor within five Business Days
of the date of receipt thereof) that interest payable to the transferee
by each relevant Borrower would be a tax deductible expense of such
Borrower), in which case no such consent shall be required, transfer to
any other bank or financial institution which is a Qualifying Bank (the
"TRANSFEREE") the whole or any part of its rights and/or obligations
under the Facility by the delivery to the Facility Agent of a Transfer
Certificate substantially in the form of Schedule 9. For the avoidance
of doubt, any such transfer may be in whole or in part of the
Transferor's relevant Commitment but, if in part, in a minimum amount
of $5,000,000 (unless the Borrowers' Agent otherwise agrees at its
absolute discretion) and provided that after such transfer such
Transferor's Commitment shall not be less than $5,000,000 (or zero if
the whole of such Transferor's Commitment is transferred). Each
Transfer Certificate delivered to the Facility Agent shall only be
valid if it is in writing signed by each of the Transferor and the
Transferee and is contained in one document or two counterparts.
20.3 TRANSFER CERTIFICATES
(A) Each of the parties hereto agrees that, following timely receipt by the
Facility Agent of a Transfer Certificate from each of a Transferor and
a Transferee and with effect from the date of the Transfer Certificate:
(i) the Transferor shall cease to be entitled to the rights and
shall be released from the obligations hereunder which are
specified in the Transfer Certificate;
<PAGE>
(ii) the Transferee shall become a party hereto as a Lender
entitled to rights and liable to observe obligations which
differ from those referred to in (i) only insofar as the
Transferee is entitled thereto and liable in respect thereof
in place of the Transferor;
accordingly, each of the parties hereto confirms that (a) the delivery
by a Transferor to a Transferee of a Transfer Certificate signed by the
Transferor constitutes an irrevocable offer by each of the parties
hereto to accept the Transferee as a Lender party to this Agreement
entitled to such rights and liable to observe such obligations as are
mentioned in (ii) above, (b) such offer may be accepted by the
execution of the Transfer Certificate by the Transferee and the
delivery thereof to the Facility Agent and (c) the provisions of this
Agreement shall apply to the contract between the parties hereto
arising from the acceptance of such offer.
(B) The Transferee shall, at the same time that any Transfer Certificate is
sent to the Facility Agent, pay to the Facility Agent for its own
account a fee of $1000.
20.4 TRANSFEREES
Each Transferee shall, by its execution of a Transfer Certificate,
accept that none of the other parties hereto is in any way responsible
for (a) the accuracy and/or completeness of any information supplied to
the Transferee in connection herewith, (b) the financial condition,
creditworthiness, condition, affairs, status and nature of any Borrower
or any Guarantor or the observance by any Borrower or any Guarantor of
any of its obligations under this Agreement or any document relating
hereto, or (c) the legality, validity, effectiveness, adequacy or
enforceability of this Agreement or any document relating hereto or
thereto and, save as otherwise expressly provided herein, none of such
parties shall, or shall be deemed to be, the agent or trustee of such
Transferee in connection herewith.
20.5 OFFICE
Each Lender shall make its participation in any utilisation of the
Facility to which it is a party available from, and may receive the
benefit of any payment due to it under this Agreement at, its lending
office(s) identified against its name in Schedule 1. A Lender shall
give the Facility Agent prior written notice of any change in any
lending office (which may only be to another office or other offices in
either the United Kingdom or the United States unless the Borrowers'
Agent and the Lender concerned otherwise agree, such agreement on the
part of the Borrowers' Agent not to be unreasonably withheld or
delayed).
20.6 CONFIDENTIALITY
Each Lender may disclose to a proposed assignee, transferee or
sub-participant such information in its possession relating to the
Borrowers and Guarantors as it thinks appropriate but:
(A) any such person must first undertake to the Lender concerned
and to the Borrowers' Agent to keep such information
confidential; and
(B) nothing in this clause 20.6 shall permit the disclosure of any
confidential information which the Borrowers' Agent
specifically provides in writing should not be disclosed to
any person.
<PAGE>
20.7 LIMITATION OF INCREASED COSTS
Where any Lender assigns or transfers all or any part of its rights or
obligations hereunder or changes its lending office for the purpose of
this Agreement, the Borrower shall not be liable (other than where such
change in its lending office was requested by the Borrowers' Agent on
behalf of any Borrower) to pay any additional amounts under clauses
12.2 or 13.3 due to circumstances existing on the effective date of
such assignment or transfer and which would not have been payable had
no such change, assignment or transfer taken place.
20.8 SUB-PARTICIPATIONS
No Lender shall be required to notify any other party to this Agreement
of a sub-participation of its rights and interests hereunder provided
that nothing in this clause 20.8 gives any sub-participant any rights
against any Borrower or Guarantor. No Borrower shall be liable to pay
any additional amounts under clause 12.2 or clause 13.3 arising as a
direct consequence of any such sub-participation.
21. FURTHER PROVISIONS
21.1 EVIDENCE OF INDEBTEDNESS
In any proceedings relating to this Agreement:
(A) a statement as to any amount due to the Lenders under this
Agreement which is certified as being correct by an officer of
the Facility Agent; and
(B) a statement as to any amount due to a Lender under this
Agreement which is certified as being correct by an officer of
the Lender,
shall, unless otherwise provided in this Agreement, be prima facie
evidence that such amount is in fact due and payable.
21.2 APPLICATION OF MONEYS
If any sum paid or recovered in respect of the liabilities of a
Borrower under this Agreement is less than the amount then due, the
Facility Agent may apply that sum to principal, interest, fees or any
other amount due under this Agreement in such proportions and order and
generally in such manner as the Majority Lenders shall determine.
21.3 RIGHTS CUMULATIVE: WAIVERS
The respective rights of the Facility Agent and the Lenders under this
Agreement are cumulative, may be exercised as often as they consider
appropriate and are in addition to their respective rights under the
general law. The respective rights of the Facility Agent and the
Lenders in relation to the Facility (whether arising under this
Agreement or under the general law) shall not be capable of being
waived or varied otherwise than by an express waiver or variation in
writing; and in particular any failure to exercise or any delay in
exercising any of such rights shall not operate as a waiver or
variation of that or any other such right; any defective or partial
exercise of any of such rights shall not preclude any other or further
exercise of that or any other such right; and no act or course of
conduct or negotiation on their part or on their behalf shall in any
way preclude them from exercising any such right or constitute a
suspension or any variation of any such right.
<PAGE>
21.4 NOTICES
Except as otherwise stated herein, all notices or other communications
hereunder to any party hereto shall be deemed to be duly given or made
when delivered (in the case of personal delivery or letter) and when
despatched (in the case of telex or fax) to such party addressed to it
at its address, telex number or facsimile number:
(i) in the case of a Lender, as specified in Schedule 1 or at such
other address, telex number and/or facsimile number as such
Lender may notify to the Facility Agent in writing from time
to time;
(ii) in the case of a Borrower or a Guarantor, as such Borrower
and/or such Guarantor may specify in writing to the Borrowers'
Agent and the Facility Agent from time to time;
(ii) in the case of the Borrowers' Agent or the Facility Agent as
follows, or as such a party may specify to all the other
parties hereto in writing from time to time:
<TABLE>
<CAPTION>
<S> <C> <C>
The Borrowers' Agent WPP Group plc
27 Farm Street
London W1X 6RD
Facsimile No: 0207 491 8417
Attention: Company Secretary
The Facility Agent Barclays Bank PLC
54 Lombard Street
London EC3P 3AH
Facsimile No: 0207 699 3717
Attention: Large Corporate Banking
</TABLE>
21.5 ENGLISH LANGUAGE
All notices or communications under or in connection with this
Agreement shall be in the English language or, if in any other
language, accompanied by a translation into English. In the event of
any conflict between the English text and the text in any other
language, the English text shall prevail.
21.6 INVALIDITY OF ANY PROVISION
If any of the provisions of this Agreement becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
21.7 COUNTERPARTS
This Agreement may be executed in any number of counterparts, and such
execution shall have the same effect as if the signatures on the
counterparts were on a single copy of this Agreement.
<PAGE>
21.8 CHOICE OF LAW
This Agreement is governed by, and shall be construed in accordance
with, the laws of England.
21.9 SUBMISSION TO JURISDICTION
(A) (i) For the benefit of the Facility Agent and each of the Lenders,
all the parties agree that the courts of England are to have
jurisdiction to settle any disputes which may arise in
connection with the legal relationships established by this
Agreement (including, without limitation, claims for set-off
or counterclaim) or otherwise arising in connection with this
Agreement.
(ii) The Borrowers and the Guarantors irrevocably waive any
objections on the ground of venue or forum non conveniens or
any similar grounds.
(iii) The Borrowers and the Guarantors irrevocably consent to
service of process by mail or in any other manner permitted by
the relevant law.
(B) The Borrowers and the Guarantors shall at all times maintain an agent
for service of process in England. Such agent shall be, in the case of
England, the Parent at its address at 27 Farm Street, London W1X 6RD,
and any writ, judgment or other notice of legal process shall be
sufficiently served on the Borrowers and the Guarantors if delivered to
such agent at its address for the time being. The Borrowers and the
Guarantors undertake not to revoke the authority of the above agents
and if, for any reason, any such agent no longer serves as agent of the
Borrowers and the Guarantors to receive service of process, the
Borrowers and the Guarantors shall promptly appoint another such agent
and advise the Facility Agent thereof. The Parent hereby accepts the
foregoing appointment and agrees to accept service of any writ,
judgment or other notice of legal process on behalf of the Borrowers
and the Guarantors in England.
21.10 WAIVER OF JURY TRIAL
Each of the parties hereto waives trial by jury in any judicial
proceeding involving, directly or indirectly, any matter (whether
sounding in tort, contract or otherwise) in any way arising out of,
related, or connected with any of the finance documents or the
relationship established hereunder and whether arising or asserted
before or after the date hereof or before or after the payment,
observance and performance in full of such party's obligations
hereunder.
21.11 CHANGE OF CURRENCY
(A) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank of
any country as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or
currency unit of that country designated by the Agent; and
(ii) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency
unit into the other, rounded up or down by the Agent (acting
reasonably).
<PAGE>
(B) If a change in any currency of a country occurs, this Agreement will,
to the extent the Agent (acting reasonably) specifies to be necessary
be amended to comply with any generally accepted conventions and market
practice in the relevant interbank market and otherwise to reflect the
change in currency.
Signed by the authorised representatives of the parties.
<PAGE>
SCHEDULE 1
LENDERS AND COMMITMENTS
<TABLE>
<CAPTION>
LENDER COMMITMENT
(IN DOLLARS)
<S> <C>
Barclays Bank PLC 150,000,000
54 Lombard Street
London EC3P 3AH
Tel: 0207 699 3852
Fax: 0207 699 3717
---------------
150,000,000
---------------
</TABLE>
<PAGE>
SCHEDULE 2
CALCULATION OF THE MANDATORY COST
(a) The sterling Reserve Asset Costs will be the rate determined by the
Facility Agent to be equal to the arithmetic mean (rounded upward, if
necessary, to four decimal places) of the respective rates notified by
each of the Reference Banks to the Facility Agent as the rate resulting
from the application of the following formula:
BY + S(Y-Z) + F X 0.0.1% per annum
------------------------
100-(B + S)
where on the day of application of the formula:
B is the percentage of the Reference Bank's eligible liabilities
(in excess of any stated minimum) by reference to which the
Bank of England and/or the Financial Services Authority
("FSA") requires the Reference Bank to hold on a
non-interest-bearing deposit account in accordance with its
cash ratio requirements;
Y is the percentage rate per annum at which sterling deposits
are offered by the Reference Bank to leading banks in the
London Interbank Market at or about 11.00 a.m. (London time)
on that day for the relevant Interest Period;
S is the percentage of the Reference Bank's eligible liabilities
which the Bank of England (or other relevant United Kingdom
governmental authority or agency) requires the Reference Bank
to place as a special deposit;
Z is the interest rate per annum payable by the Bank of England
to such Reference Bank on special deposits; and
F is the rate of charge payable by the Reference Bank to the FSA
under paragraph 2.02 or 2.03 (as appropriate) of the Fees
Regulations (but where for this purpose, the figure in
paragraph 2.02b or 2.03b (as appropriate) will be deemed to be
zero) expressed in pounds per L1 million of the fee base of
the Reference Bank.
(b) For the purposes of this Schedule 2:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the
meanings given to them at the time of application of the
formula under or pursuant to the Bank of England Act, 1998 or
by the Bank of England as appropriate;
(ii) "FEE BASE" has the meaning given to it in the Fees
Regulations;
(iii) "FEES REGULATIONS" means:
(1) prior to 31st March, 1999, the Banking Supervision
(Fees) Regulations 1998; and
(2) on and after 31st March, 1999, any regulations
governing the payment of fees for banking
supervision.
<PAGE>
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y =
15%, BY is calculated as 0.5 x 15. A negative result from subtracting Z
from Y is to be treated as zero.
(d) If a Reference Bank does not supply a rate to the Facility Agent, the
applicable Reserve Asset Costs will be determined on the basis of the
rate(s) supplied by the remaining Reference Banks to the Facility
Agent.
(e) (i) The formula is applied on the first day of each Interest
Period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(f) The Facility Agent may, from time to time, after consultation with the
Majority Lenders, determine and notify to the Company and the Majority
Lenders any amendments or variations which are required to be made to
the formula set out above in order to comply with any requirements from
time to time imposed by any applicable regulatory authority in relation
to Advances denominated in sterling (including, without limitation, any
requirements relating to sterling primary liquidity) and any such
determination shall, in the absence of manifest error, be conclusive
and binding on all the parties hereto.
<PAGE>
SCHEDULE 3
CREDIT REQUEST IN RESPECT OF ADVANCES
<TABLE>
<CAPTION>
<S> <C> <C>
To: [*the Facility Agent] Date: [* ], [19[* ]/20[* ]]
</TABLE>
Dear Sirs,
REVOLVING FACILITY AGREEMENT DATED [ ], 1999
DRAWING NUMBER: [* ]
1. We refer to clause 5 of the Revolving Facility Agreement. Terms defined
in the Revolving Facility Agreement have the same meanings in this
Credit Request.
2. We wish to borrow Advances with the following specifications:
(a) Borrower: [* ]
(b) Drawing Date: [* ] [19[* ]/20[* ]]
(c) Currency: [* ]
(d) Amount: [* ]
(e) Interest Period: [* ]
(f) Payment Instructions: [* ]
3. We confirm that the matters represented and warranted by each Borrower
and each Guarantor set out in clause 10.2 of the Revolving Facility
Agreement are true and accurate on the date of this Credit Request as
if made with reference to the facts and circumstances now prevailing
and that no Event or Default or Potential Event or Default has occurred
and is continuing or would result from the Credit.**
Yours faithfully,
[Authorised Signatory]
for and on behalf of
[Borrowers' Agent]
** Note: This paragraph is not required for a rollover utilisation (as defined
in clause 4.3)
<PAGE>
SCHEDULE 4
CERTIFICATE
[Letterhead of Borrower/Guarantor]
To: [*the Facility Agent]
I [*name], the [Secretary] of [*name of Borrower/Guarantor] of [*address] (the
"Company")
HEREBY CERTIFY that:
(i) attached hereto marked "A" are true and correct copies of all documents
which contain or establish or relate to the constitution of the
Company;
(ii) attached hereto marked "B" is a true and correct copy of [resolutions
duly passed] at [a meeting of the Board of Directors] of the Company
duly convened and held on [ ] 19[* ] approving the Revolving
Facility Agreement to be entered into between (1) Moveability Limited,
(2) the Guarantors therein referred to, (3) the Facility Agent and
(4) the Lenders and Arrangers named therein and authorising its
signature, delivery and performance and such resolutions have not been
amended, modified or revoked and are in full force and effect; and
[(iii) attached hereto marked "C1" is a true and correct copy of the
acceptance by the agent in England of its appointment as agent of the
Company for the purpose of accepting service of process.(1)]
The following signatures are the true signatures of the persons who have been
authorised to sign the Revolving Facility Agreement and to give notices and
communications, including notices of drawing, under or in connection with the
Revolving Facility Agreement.
<TABLE>
<CAPTION>
<S> <C> <C>
Name Position Signature
* *
* *
* *
Signed: --------------------------------
[Secretary]
</TABLE>
---------------------
(1) Required for Borrowers/Guarantors incorporated outside England
and Wales only.
<PAGE>
SCHEDULE 5
FORM OF ACCESSION NOTICE
To: [the Facility Agent]
1. We refer to an agreement (the "REVOLVING FACILITY AGREEMENT") dated
[ ], 1999 and made between (1) Moveability Limited,
(2) the Guarantors therein referred to, (3) the Facility Agent and
(4) the Lenders and Arranger named therein. Terms defined in the
Revolving Facility Agreement shall bear the same meaning herein.
2. We hereby give you notice that we wish [proposed additional Borrower]
of [address, telex number], a company incorporated in [* ] to become a
Borrower under the terms of the Revolving Facility Agreement.
3. As contemplated by the provisions of the Revolving Facility Agreement
we, [proposed additional Borrower], shall accordingly become entitled
to make Credit Requests under the Revolving Facility Agreement in
accordance with the terms and conditions thereof and undertake with the
Revolving Facility Agent and the Lenders and the Parent and the Company
to be bound by the terms and conditions of the Revolving Facility
Agreement insofar as such terms and conditions apply to an additional
Borrower.
4. We, [proposed additional Borrower], confirm that at [ ] the
representations set out in paragraphs [* ] of clause 10.2 of the
Revolving Facility Agreement would be true (to the extent that such
representations can relate to any additional Borrower) if repeated by
reference to ourselves instead of the Parent and the Company and each
Borrower and we, as the Parent, confirm that, at [ ] the
representations set out in clause 10.2 of the Revolving Facility
Agreement are true and no Event of Default or Potential Event of
Default has occurred and is continuing.
[5. The Borrowers' Agent (as agent for itself and for each of the Borrowers
and the Guarantors) confirms that clause 16 of the Revolving Facility
Agreement shall apply to the obligations of the additional Borrower
under the Revolving Facility Agreement.]
6. We enclose in respect of [proposed additional Borrower] the Certificate
set out in Schedule 4 of the Revolving Facility Agreement.
Yours faithfully
<TABLE>
<CAPTION>
<S> <C>
for and on behalf of for and on behalf of
[additional Borrower] [Borrowers' Agent]
</TABLE>
<PAGE>
SCHEDULE 6
FORM OF GUARANTOR ACCESSION AGREEMENT
<TABLE>
<CAPTION>
<S> <C>
THIS GUARANTOR ACCESSION AGREEMENT (the "AGREEMENT") is made on [* ] [19[* ]/20 [ ]]
</TABLE>
BETWEEN:
(1) WPP GROUP plc of 27 Farm Street, London W1X 6RD (the "PARENT");
(2) [* ] (the "NEW GUARANTOR");
(3) [* ] of [* ] as
facility agent (the "FACILITY AGENT").
WHEREAS:
(A) By an agreement (the "REVOLVING FACILITY AGREEMENT") dated [ ], 1999
and made between (1) Moveability Limited, (2) the Guarantors therein
referred to, (3) the Facility Agent and (4) the Lenders and Arranger
named therein, the Lenders agreed to make available certain facilities
to the Borrowers.
(B) The Parent has requested that the New Guarantor becomes an additional
Guarantor under the Revolving Facility Agreement.
(C) Clause 3.8 of the Revolving Facility Agreement requires the Parent to
procure that each New Guarantor execute a supplemental agreement to the
Revolving Facility Agreement in the form and subject to the terms of
this Agreement.
IT IS AGREED:
1. INTERPRETATION
Terms defined in the Revolving Facility Agreement shall, when used in
this Agreement, have the same meaning herein as therein.
2. INTEGRATION
(a) The New Guarantor hereby agrees to become a Guarantor for all the
purposes of and to be bound by all the provisions of the Revolving
Facility Agreement with effect on and from the date hereof with
obligations and liabilities (actual or contingent) identical to and
jointly and severally with the Guarantors as if each New Guarantor had
been an original party thereto as a Guarantor.
(b) The Facility Agent on behalf of itself and as agent for the Lenders
hereby gives its consent to the New Guarantor being nominated and
becoming a Guarantor under the Revolving Facility Agreement.
<PAGE>
3. REPRESENTATIONS AND WARRANTIES
The New Guarantor represents and warrants to the Facility Agent and the
Lenders on the date hereof in the terms of the representations and
warranties contained in clause 10.2 of the Revolving Facility Agreement
(to the extent that such representations can relate to the New
Guarantor) with reference to the facts and circumstances subsisting at
such date.
4. CONDITIONS PRECEDENT
This Agreement shall become effective upon receipt by the Facility
Agent of the following documents in each case in form and content
satisfactory to the Facility Agent:
(a) a certificate signed by the secretary of the New Guarantor
substantially in the form set out in the Schedule hereto and
the documents therein referred to;
(b) an opinion of an independent firm of lawyers in the country of
incorporation of the New Guarantor acceptable to the Facility
Agent which is in a form acceptable to the Facility Agent; and
(c) a certificate of a director of the New Guarantor confirming
that entry into of this Agreement would not cause any
borrowing limit of the New Guarantor to be exceeded.
5. NOTICES
All notices or other communications required to be made to the New
Guarantor under the Revolving Facility Agreement shall be made to the
address the New Guarantor may specify in writing to the Borrowers'
Agent and the Facility Agent from time to time.
6. MISCELLANEOUS
(a) Save as expressly provided herein, all the provisions of the Financing
Documents as supplemented by this Agreement shall remain in full force
and effect.
(b) This Agreement shall be governed by, and shall be construed in
accordance with, the laws of England.
(c) (i) For the benefit of the Facility Agent and each of the Lenders,
all the parties agree that the courts of England are to have
jurisdiction to settle any disputes which may arise in
connection with the legal relationships established by this
Agreement (including, without limitation, claim for set-off or
counterclaim) or otherwise arising in connection with this
Agreement.
(ii) The New Guarantor irrevocably waives any objections on the
grounds of venue or forum non conveniens or any similar
grounds.
(iii) The New Guarantor irrevocably consents to service of process
by mail or in any other manner permitted by the relevant law.
(d) The New Guarantor shall at all times maintain an agent for service of
process in England. Such agent shall the Parent at its address at 27
Farm Street, London W1X 6RD and any writ, judgment or other notice of
legal process shall be sufficiently served on the New Guarantor if
delivered to such agent at its address for the time being. The New
Guarantor undertakes not
<PAGE>
to revoke the authority of the above agents and if, for any reason, any
such agent no longer serves as agent of the New Guarantor to receive
service of process, the New Guarantor shall promptly appoint another
such agent and advise the Facility Agent thereof.
IN WITNESS whereof the parties hereto have caused this Agreement to be duly
executed on the date first written above.
<PAGE>
SCHEDULE
CERTIFICATE
[Letterhead of New Guarantor]
To: [the Facility Agent]
I [*name] the [Secretary] of [*name of New Guarantor] of [*address] (the
"Company")
HEREBY CERTIFY that:
(i) attached hereto marked "A" are true and correct copies of all documents
which contain or establish or relate to the constitution of the
Company;
(ii) attached hereto marked "B" is a true and correct copy of [a letter]
dated [* ] [19[* ]/20 [* ]] from [*name governmental authority]
containing the necessary consents of the appropriate authorities for
the Company to sign, deliver and perform a loan facility agreement (the
"Revolving Facility Agreement") dated [ ] between (1) Moveability
Limited, (2) the Guarantors therein referred to, (3) the Facility Agent
and (4) the Lenders and Arrangers named therein;
(iii) attached hereto marked "C" is a true and correct copy of [resolutions
duly passed] at [a meeting of the Board of Directors of the Company
duly convened and held on [ ] 19[ ] approving the Revolving Facility
Agreement and authorising its signature, delivery and performance and
such resolutions have not been amended, modified or revoked and are in
full force and effect;
(iv) attached hereto marked "D1" are true and correct copies of the
acceptance by the agent in England of its appointment as agent of the
Company for the purpose of accepting service of process.
The following signatures are the true signatures of the persons who have been
authorised to sign the Revolving Facility Agreement and to give any notices and
communications under or in connection with the Revolving Facility Agreement.
<TABLE>
<CAPTION>
<S> <C> <C>
Name Position Signature
Signed: --------------------------------
[Secretary]
Date:
</TABLE>
<PAGE>
SIGNATORIES
WPP GROUP plc
By:
[The New Guarantor]
By:
[ ]
as Facility Agent
By:
<PAGE>
SCHEDULE 7
NOTICE OF PROPOSED SUBSTITUTION
To: [the Facility Agent]
Attention:
[Date]
Pursuant to clause 3.10 of the Revolving Facility Agreement dated [ ], 1999
between Moveability Limited, the Guarantors, the Facility Agent, the Lenders and
Arranger (each as defined therein) we hereby give you notice of the following
proposed substitution of a Borrower in relation to the Credits mentioned below:
(a) Existing Borrower: [* ]
(b) Proposed Substitute Borrower: [* ]
(c) Proposed date for substitution: [* ]
(d) Drawing Date or Date of Issue of relevant Credit: [* ]
(e) **Drawing of Advances: [* ]
(f) Currency of Credit: [ ]
Yours faithfully,
[Authorised Signatory]
For and on behalf of
[Borrowers' Agent]
* must be at least fourteen days after the date upon which the Facility
Agent will receive this Notice.
** Delete as applicable.
<PAGE>
SCHEDULE 8
FORM OF NOVATION AGREEMENT
A NOVATION AGREEMENT dated [ ]
BETWEEN:
(1) [ ] (the "EXISTING BORROWER");
(2) [ ] (the "SUBSTITUTE BORROWER");
(3) WPP GROUP plc on behalf of itself, each Borrower and each other
Guarantor (as both such capitalised terms are defined in the Revolving
Facility Agreement referred to below) (the "BORROWERS' AGENT");
(4) [ ] as facility agent (the "FACILITY AGENT") on behalf of itself and
the Lenders (as defined in the Revolving Facility Agreement referred to
below);
is supplemental to the Revolving Facility Agreement dated [ ], 1999 and made
between Moveability Limited, the Guarantors, the Facility Agent, the Lenders and
the Arranger (all as named therein) (the "REVOLVING FACILITY AGREEMENT").
IT IS AGREED:
1. NOVATION
In consideration of a payment made by the Existing Borrower to the
Substitute Borrower and the release of the Existing Borrower from its
obligations and liabilities (actual or contingent) specified in the
Schedule hereto under the Revolving Facility Agreement and with effect
on and from [ ] (the "EFFECTIVE DATE") the Substitute Borrower hereby
undertakes to observe and perform all the obligations and liabilities
(actual or contingent) of the Existing Borrower under the Revolving
Facility Agreement in respect of the Credits specified in the Schedule
(including any such obligations or liabilities as may have accrued or
become due in respect thereof prior to the Effective Date).
2. INTEGRATION
This Novation Agreement shall be read as one with the Revolving
Facility Agreement so that any reference therein to "THIS AGREEMENT",
"HEREUNDER" and similar shall include and be deemed to include this
Novation Agreement.
3. REPRESENTATIONS AND WARRANTIES
The Substitute Borrower represents and warrants to the Facility Agent
and the Lenders on [ ] in the terms of the representations and
warranties contained in clause 10.2 of the Revolving Facility Agreement
(with reference to the facts and circumstances subsisting as at such
date).
<PAGE>
4. CONTINUING LIABILITY
The Borrowers' Agent on behalf of itself and each other Guarantor
acknowledges and confirms that the Guarantors' obligations under clause
16 of the Revolving Facility Agreement apply to the obligations and
liabilities assumed by the Substitute Borrower hereunder.
<PAGE>
SCHEDULE
[ ]
IN WITNESS whereof the parties hereto have caused this Novation Agreement to be
duly executed on the date first written above.
<TABLE>
<CAPTION>
<S> <C>
For and on behalf of
[The Existing Borrower] ................................
For and on behalf of
[The Substitute Borrower] ................................
For and on behalf of each Guarantor, each
Borrower and the Borrowers' Agent
................................
For and on behalf of each
Lender and the Facility Agent ................................
</TABLE>
<PAGE>
SCHEDULE 9
FORM OF TRANSFER CERTIFICATE
To: [*the Facility Agent]
TRANSFER CERTIFICATE
relating to a Revolving Facility Agreement (the "REVOLVING FACILITY AGREEMENT")
dated [ ], 1999 and made between (1) Moveability Limited, (2) the Guarantors
therein referred to, (3) the Facility Agent, and (4) the Lenders and Arrangers
named therein. Terms defined in the Revolving Facility Agreement have the same
meanings herein.
1. [Transferor Lender] (the "LENDER") (a) confirms that to the extent that
details appear in the Schedule hereto against, as the case may be, the
heading "LENDER'S COMMITMENT" and/or "Lender's Participation", such
details accurately summarise, as the case may be, its participation in
the Facility and (b) requests [Transferee Lender] (the "TRANSFEREE") to
accept and procure the transfer to the Transferee of the portion
specified in the Schedule of, as the case may be, its participation in
the Facility by counter-signing and delivering this Transfer
Certificate to the Facility Agent at its address for the service of
notices specified in the Revolving Facility Agreement.
2. The Transferee hereby requests the Facility Agent to accept this
Transfer Certificate as being delivered to the Agent pursuant to and
for the purposes of clause 20.3 of the Revolving Facility Agreement so
as to take effect in accordance with the terms thereof on [date of
transfer].
3. The Transferee confirms that it has received a copy of the Revolving
Facility Agreement together with such other documents and information
as it has required in connection with this transaction and that it has
not relied and will not hereafter rely on the Lender to check or
enquire on its behalf into the execution, validity, enforceability,
effectiveness, adequacy, accuracy or completeness of any such documents
or information and further agrees that it has not relied and will not
rely on the Lender to assess or keep under review on its behalf the
financial condition, credit worthiness, affairs, status or nature of
the Borrower or of any other party to the Revolving Facility Agreement.
4. The Transferee hereby undertakes with the Lender and each of the other
parties to the Revolving Facility Agreement that it will perform in
accordance with their terms all those obligations which by the terms of
the Revolving Facility Agreement will be assumed by it after delivery
of this Transfer Certificate to the Facility Agent and satisfaction of
the conditions (if any) subject to which this Transfer Certificate is
expressed to take effect.
5. The Transferee confirms to the Facility Agent as follows:
(A) it will be beneficially entitled to its rights to principal
and interest under the Agreement; and
(B) it is a Qualifying Bank as at the date of the transfer. The
Transferee agrees that it will notify the Facility Agent
promptly of any change in this matter.
6. The Lender makes no representation or warranty and assumes no
responsibility with respect to the execution, validity, enforceability,
effectiveness or adequacy of the Revolving Facility
<PAGE>
Agreement or any document relating thereto and assumes no
responsibility for the financial condition of any Borrower or any
Guarantor or any other party to the Revolving Facility Agreement or for
the performance and observance by any Borrower or any Guarantor or any
other such party of any of its obligations under the Revolving Facility
Agreement or any document relating thereto and any and all such
conditions and warranties, whether express or implied by law or
otherwise, are hereby excluded.
7. The Lender hereby gives notice to the Transferee (and the Transferee
hereby acknowledges and agrees with the Lender) that the Lender is
under no obligation to purchase (or in any other manner to assume,
undertake or discharge any obligation or liability in relation to) the
portion transferred and referred to in the Schedule at any time after
this Transfer Certificate shall have taken effect.
8. Following the date upon which this Transfer Certificate shall have
taken effect, without limiting the provisions hereof, each of the
Transferee and the Lender hereby acknowledges and confirms to the other
that in relation to the portion transferred and referred to in the
Schedule variations, amendments or alterations to any of the terms of
any of the Revolving Facility Agreement and the Financing Documents
arising in connection with any renegotiation or rescheduling of the
obligations hereunder shall apply to and be binding on the Transferee
alone.
9. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law.
<PAGE>
THE SCHEDULE
<TABLE>
<CAPTION>
<S> <C> <C>
LENDER'S COMMITMENT PORTION TRANSFERRED
Facility Commitment
LENDER'S PARTICIPATION
AMOUNT TERM PORTION TRANSFERRED
[Transferor Lender] [Transferee Lender]
Address:
Telex:
By: By:
Date: Date:
</TABLE>
<PAGE>
SIGNATORIES
THE COMPANY
MOVEABILITY LIMITED
By: PAUL RICHARDSON
THE PARENT
WPP GROUP PLC
By: PAUL RICHARDSON
THE GUARANTORS
WPP GROUP PLC
By: PAUL RICHARDSON
MOVEABILITY LIMITED
By: PAUL RICHARDSON
THE BORROWERS' AGENT
WPP GROUP PLC
By: PAUL RICHARDSON
THE FACILITY AGENT
BARCLAYS BANK PLC
By: IAN MOSELEY
<PAGE>
THE LENDERS
BARCLAYS BANK PLC
By: IAN MOSELEY
THE ARRANGER
BARCLAYS BANK PLC
By: IAN MOSELEY
<PAGE>
DATED 14TH JANUARY, 2000
WPP PEARLS LIMITED
(as Borrower)
WPP GROUP PLC
(as Guarantor)
HSBC BANK PLC
(as Lender)
---------------------------------------
TERM LOAN AGREEMENT
----------------------------------------
ALLEN & OVERY
London
BK:713440.2
<PAGE>
CONTENTS
<TABLE>
<CAPTION>
CLAUSES PAGE
<S> <C> <C>
1. Interpretation.......................................................................................1
2. Amount and Purpose of the Facility...................................................................7
3. Conditions Precedent.................................................................................7
4. Utilisation of Facility..............................................................................8
5. Interest.............................................................................................8
6. Repayment............................................................................................9
7. Prepayment and Cancellation.........................................................................10
8. Representations and Warranties......................................................................10
9. Undertakings........................................................................................12
10. Changes in Circumstances............................................................................18
11. Payments............................................................................................20
12. Default.............................................................................................23
13. Indemnity...........................................................................................25
14. Guarantee...........................................................................................26
15 Fees and Expenses...................................................................................29
16. Set Off.............................................................................................30
17. Benefit of Agreement................................................................................30
18. Further Provisions..................................................................................32
SCHEDULES
1. Calculation of Mandatory Cost.......................................................................35
2. Credit Request in respect of Advances...............................................................36
3. Certificate.........................................................................................37
4. Form of Transfer Certificate........................................................................38
SIGNATORIES..................................................................................................41
</TABLE>
<PAGE>
THIS AGREEMENT is made the 14th day of January, 2000.
BETWEEN:
1. WPP PEARLS LIMITED of 27 Farm Street, London, W1X 6RD as borrower (the
"BORROWER");
2. WPP GROUP PLC of 27 Farm Street, London W1X 6RD as guarantor (the
"GUARANTOR"); and
3. HSBC BANK PLC of 27-32 Poultry, London EC2P 2BX as lender (the
"LENDER").
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement each of the following expressions has, except where
the context otherwise requires, the meaning shown opposite it:
"ACCOUNTS RECEIVABLE FACILITY" means the receivables purchase facility
in an amount, on 3rd July, 1998, of up to $350,000,000 under the
pooling and servicing agreement dated 3 December, 1993 between Capital
III Corp. as the seller, WPP Group USA Inc., as the servicer and Mellon
Bank N.A., as the Trustee together with all related transaction
documents as amended, increased, restated, extended, refinanced or
replaced from time to time;
"ACQUISITION" means the acquisition directly or indirectly (whether by
one transaction or by a series of related transactions) of any interest
whatsoever in the share capital (or equivalent) or the business or
undertaking, or assets constituting a substantial part of the business
or undertaking, of any company or other person other than a member of
the Group;
"ACQUISITION CASH LIMIT" means in relation to any financial year, an
amount equal to the aggregate of:
(i) $500,000,000; and
(ii) the amount by which Acquisition Cash Payments made in the
preceding financial year fall short of the Acquisition Cash
Limit for the preceding financial year but subject to a
maximum amount equal to 20% of the Acquisition Cash Limit for
that preceding financial year;
"ACQUISITION CASH PAYMENT" means in relation to any financial year, any
cash consideration in respect of an Acquisition (other than by way of
assumption of debt not issued in contemplation of that Acquisition)
paid by a member of the Group in that year, whether at the time of
Acquisition or on a deferred basis pursuant to an Acquisition made
prior to that financial year and including (i) cash payable upon
redemption of preferred stock issued by way of consideration for any
Acquisition and (ii) cash Earn-out Payments (but does not include cash
raised by way of issuance of shares by a member of the Group for the
purpose of or in connection with the Acquisition);
<PAGE>
"ADVANCE" means the amount made available to the Borrower hereunder in
respect of the Facility by way of one advance (subject to clause 5.3)
or the principal amount thereof for the time being outstanding;
"APPLICABLE ACCOUNTING PRINCIPLES" means accounting principles and
practices which at the Signing Date are generally accepted in the
United Kingdom;
"AVAILABILITY PERIOD" means the period commencing on the Signing Date
and ending at the close of business in New York on the Final Drawing
Date;
"BACK TO BACK LOAN" means any loan or other financial accommodation
made available to a member of the Group to the extent that the
creditor:
(a) has recourse directly or indirectly to a deposit of cash or
cash equivalent investments beneficially owned by any member
of the Group placed, as part of a related transaction, with
that creditor (or an affiliate of that creditor) or a
financial institution approved by that creditor on the basis
that the deposit be available, directly or indirectly or
(b) has granted a sub-participation, risk participation or similar
arrangement,
so as to reduce the economic exposure of the creditor to the Group,
when looking at the related transactions together, to a net amount;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open in London and New York City for the transaction of
business of the nature required by this Agreement;
"COMMITMENT" means $37,500,000 as reduced or cancelled from time to
time in accordance with this Agreement;
"CREDIT" means the Advance issued under the Facility;
"CREDIT REQUEST" means a notice of drawing substantially in the form
set out in Schedule 2 duly completed and signed in each case by the
Borrower;
"DOLLARS AND $" means the lawful currency of the United States of
America;
"DRAWING DATE" means the Business Day upon which the Credit is to be
made available;
"EARN-OUT PAYMENT" means any payment made or to be made to a former
shareholder in a Subsidiary pursuant to arrangements made in connection
with the acquisition of such Subsidiary by any member of the Group and
related to the performance of that Subsidiary , including any payment
in respect of loan notes issued to such former shareholder in
connection with the said acquisition but excluding payments under
Employee Incentive Plans;
"ELIGIBLE COMPANY" means any of the Borrower and any other Subsidiary;
"EMPLOYEE INCENTIVE PLAN" means any arrangement entered into by any
member of the Group (other than Earn-out Payments) for the payment for
services, acquisition or purchase of shares, warrants or other equity
linked instruments of any kind (or options for any of the foregoing) or
similar arrangements from any person (or any entity on behalf of or
ultimately for the benefit of that person) primarily for the purpose of
incentivising or compensating that person for services to any member of
the Group in the nature of services of employment;
<PAGE>
"EVENT OF DEFAULT" means any of the events mentioned in clause 12.1;
"EXCEPTIONAL ITEMS" has the meaning given to it in the Applicable
Accounting Principles but shall exclude any items falling within the
definition of Extraordinary Items;
"EXTRAORDINARY ITEMS" has the meaning given to it in the Applicable
Accounting Principles;
"FACILITY" means the facility, the terms and conditions of which are
set out in this Agreement;
"FINAL MATURITY" means one year less one day from the Signing Date;
"FINAL DRAWING DATE" the date falling 14 days after the Signing Date;
"FINANCING DOCUMENTS" means this Agreement and any other document
designated as such by the Lender and the Borrower in writing;
"GROUP" means the Guarantor, the Borrower and the Subsidiaries;
"GUARANTEED AMOUNTS" means any and all amounts whatsoever (including,
without limitation, interest after the filing of a petition initiating
a proceeding referred to in clause 12.1(F), whether or not such
interest constitutes an allowed claim for the purposes of such
proceeding) which are to be paid by the Borrower to the Lenderunder the
Financing Documents;
"HOLDING COMPANY" has the meaning ascribed to it in Section 736 of
the Companies Act 1985;
"INTEREST PAYMENT DATE" means for any Advance, the last day of an
Interest Period and for any Interest Period longer than six months the
date falling six months after the first day of such Interest Period and
the last day of such Interest Period;
"INTEREST PERIOD" means for any Advance, the period determined in
accordance with clause 5.2;
"L", "POUNDS" and "STERLING" means the lawful currency of the United
Kingdom of Great Britain and Northern Ireland;
"MANDATORY COST" means the cost to the Lender of compliance with the
banking supervision or other costs imposed by the Financial Services
Authority during each period in respect of which interest is payable
under this Agreement expressed as a rate per annum and determined in
accordance with Schedule 1;
"MARGIN" has the meaning given thereto in clause 5.1;
"MATERIAL SUBSIDIARY" means at any time, a Subsidiary whose
consolidated revenues are at least 5% of the aggregate of the total
consolidated revenues of all members of the Group. For this purpose:
(i) in the case of a company which itself has subsidiaries, the
calculation shall be made by using the consolidated revenues
of it and its subsidiaries;
(ii) the calculation of consolidated revenues shall be made by
reference to:
<PAGE>
(a) the accounts of the relevant Subsidiary (consolidated
where necessary) used for the purpose of the most
recent audited consolidated accounts of the Borrower;
and
(b) the accounts of each member of the Group used for the
purpose of those audited consolidated accounts of the
Borrower;
"OUTSTANDINGS" means all amounts for the time being outstanding under
the Facility;
"POTENTIAL EVENT OF DEFAULT" means any event which with the giving of
notice, expiry of any grace period or satisfaction of any other
condition specified in clause 12.1 would constitute an Event of
Default;
"QUALIFYING BANK" means a bank as defined in section 840A of the Income
and Corporation Taxes Act 1988 (as in force at the date of this
Agreement), which is within the charge to U.K. corporation tax as
regards any interest received by it under this Agreement.
"RATIO CERTIFICATE" means the certificate referred to in clause 9.5(B);
"SECURITY INTEREST" means any mortgage, charge, pledge, lien or other
security interest;
"SIGNING DATE" means the date of signature of this Agreement;
"SUBSIDIARY" means a subsidiary for the time being of the Guarantor and
"SUBSIDIARIES" shall refer to all such subsidiaries;
"TRANSFER CERTIFICATE" means a certificate substantially in the form of
Schedule 4 delivered by a Lender to the Facility Agent pursuant to
clause 17.3; and
"U.S. SUBSIDIARY" means a Subsidiary incorporated under the laws of any
State in the United States of America.
1.2 FINANCIAL DEFINITIONS
In this Agreement the following expressions have the following
meanings:
"BORROWINGS" means:
(A) moneys borrowed or raised (including, without limitation,
amounts advanced under the Accounts Receivable Facility and
any accounts receivable facility entered into on or after 3rd
July 1998);
(B) any liability under any bond, bill discounting facility,
debenture, note or other similar debt security or under
acceptance credit or note purchase facilities, letter of
credit, subordinated debt or any amount raised pursuant to an
issue of shares which are expressed to be redeemable (in cash
or in instruments which would themselves constitute
Borrowings) on or prior to Final Maturity;
(C) any liability in respect of the acquisition cost of assets or
services to the extent payable more than 120 days before or
after the time of acquisition or possession thereof by the
party liable but excluding any bona fide performance related
cash consideration payable under Employee Incentive Plans or
for an Acquisition
<PAGE>
calculated by reference to future profits in accordance with
the current practice of the Group as at 3rd July, 1998;
(D) the capital element of rentals payable under finance leases
(required to be disclosed in accordance with S.S.A.P. 21)
entered into primarily as a method of raising finance or
financing the acquisition cost of the asset in question; and
(E) any guarantee or other assurance against financial loss in
respect of any indebtedness of the type specified in
paragraphs (A) to (D) above (including any obligation to
counter-indemnify any person in respect of the provision of
any such guarantee (but only to the extent that Borrowings
supported thereby are outstanding);
but:
(i) indebtedness owing or shares issued by one member of
the Group to another member of the Group shall not be
taken into account as Borrowings;
(ii) interest (other than interest which is capitalised
and which itself bears interest), acceptance
commission and finance charges shall be excluded;
(iii) Trade Debt and Back to Back Loans shall be excluded;
(iv) no indebtedness shall be taken into account more than
once (so that, for example, a guarantee shall be
excluded to the extent that the indebtedness
guaranteed thereby is taken into account); and
(v) the obligations of any member of the Group in respect
of any media guarantee issued otherwise than pursuant
to this Agreement shall not be taken into account
unless such media guarantee has been called upon in
any way;
"CONSOLIDATED EBITDA" means in respect of any financial period the
Relevant Operating Profit of the Group for such financial period:
(i) before deducting all depreciation and other amortisation and
write-downs, including but not limited to, goodwill
amortisation and brand write-downs;
(ii) before taking into account all Extraordinary Items and
Exceptional Items (in each case whether positive or negative);
(iii) after deducting any gain over, and adding back any losses
under, book value (including related goodwill) arising on the
sale, lease or other disposal of any asset (other than on the
sale of trading stock) during such period and any gain or loss
arising on revaluation of any asset during such period, in
each case to the extent that it would otherwise be taken into
account, whether as an Exceptional Item or otherwise;
and for the purposes of the foregoing no item shall be effectively
deducted or credited more than once in this calculation, all as
determined on a consolidated basis by reference to the most recent
financial statements and certificates delivered pursuant to clause
9.2(A) and (B);
"FINANCIAL PERIOD" shall refer to each period of 12 months ending on
30th June and 31st December in each year;
<PAGE>
"INTEREST COVER RATIO" for any financial period in respect of the Group
means (A) the aggregate of (1) Consolidated EBITDA and (2) Interest
Receivable in relation to (B) Interest Expense;
"INTEREST EXPENSE" means, in respect of any financial period, (A) the
amount of interest (or equivalent consideration) accrued (on a
consolidated basis) for or by way of interest or equivalent
consideration on the Advances and other Borrowings of the Group as a
whole including any interest or similar consideration paid or accrued
or discounts given in respect of the sale or financing of Group
accounts receivables and the amount of payments made under interest
rate swap and cap agreements and similar interest rate hedging
arrangements made by the Group as a whole (but excluding commitment
fees, management fees, banking arrangement fees, agent's administration
and participation fees (including those payable hereunder)) determined
in accordance with accounting principles generally accepted under
United Kingdom accounting standards, consistently applied less (B) the
amount of payments from counterparties under interest rate swap and cap
agreements and similar interest rate hedging arrangements receivable or
received by the Group in respect of that period;
"INTEREST RECEIVABLE" means, in respect of any financial period,
interest income accrued during that period on financial deposits and
similar assets of the Group on a consolidated basis;
"RELEVANT OPERATING PROFIT" means, in respect of any financial period,
the consolidated operating profits of the Group, as disclosed in or
derived from the published or announced financial results of the Group;
"TRADE DEBT" means:
(a) obligations of any member of the Group to pay the purchase
price of assets or services purchased by any member of the
Group in the ordinary course of business including, without
limitation, indebtedness incurred by any member of the Group
in respect of any documentary letter of credit, bill of
exchange or promissory note issued in respect of any such
purchase;
(b) indebtedness incurred by any member of the Group in respect of
any bill of exchange or promissory note drawn on or by, or
accepted, issued or endorsed by, any member of the Group in
the ordinary course of business, including, without
limitation, indebtedness in respect of any moneys raised by
way of sale, discounting or otherwise in respect of any such
bill or note; and
(c) indebtedness incurred by any member of the Group in respect of
any guarantee, indemnity, counter-indemnity or other assurance
against financial loss or indebtedness of the type specified
in paragraph (a) or (b) above,
except to the extent that any indebtedness falling within paragraphs
(a) to (c) above is treated as borrowings under accounting principles
generally accepted under United Kingdom accounting standards,
consistently applied.
1.3 CONSTRUCTION
(A) Except where the context otherwise requires, any reference in this
Agreement to:
any of the Financing Documents (including this Agreement) is to such
Financing Document as it may be altered, amended, supplemented or
novated from time to time;
<PAGE>
an "AGREEMENT" also includes a concession, contract, deed, franchise,
licence, treaty or undertaking (in each case, whether oral or written);
the "ASSETS" of any person shall be construed as a reference to the
whole or any part of its business, undertaking, property, assets and
revenues (including any right to receive revenues);
a "MONTH" is to a calendar month;
"SUBSIDIARY" has the meaning ascribed thereto by section 736 Companies
Act 1985 as amended, modified, replaced or re-enacted from time to
time;
words and expressions (including defined words and expressions)
importing the singular include the plural and vice versa, those
importing the masculine gender include the feminine and vice versa, and
references to persons include references to companies and corporations
and vice versa; and
a "TIME" is to London time.
(B) Headings, sub-headings and the table of contents are for ease of
reference only.
2. AMOUNT AND PURPOSE OF THE FACILITY
2.1 AMOUNT
The maximum amount for which the Facility is available is $37,500,000.
2.2 PURPOSE
(a) The Facility shall be used for general corporate purposes
including the refinancing of the $150,000,000 revolving
facility agreement dated 15th October, 1999 arranged by
Barclays Bank PLC.
(b) Without prejudice to paragraph (a) above and the remaining
provisions of this Agreement the Lender shall not be bound to
enquire as to, nor shall it be responsible for, the
application by the Borrower of the proceeds of the Advance.
3. CONDITIONS PRECEDENT
3.1 CONDITIONS TO THE FACILITY
The obligations of the Lender under this Agreement are subject to the
Lender having received the following in each case in form and content
satisfactory to it, that is to say:
(A) a certificate in respect of the Borrower and the Guarantor
signed by an officer of the Borrower and the Guarantor
respectively substantially in the form set out in Schedule 3
and the documents therein referred to; and
(B) a certificate of a director of the Guarantor confirming that
utilisation in full of the Facility in accordance with its
terms would not cause any borrowing limit on the Borrower or
the Guarantor to be exceeded.
<PAGE>
3.2 CONDITIONS TO UTILISATION
Utilisation of the Facility is subject to the further conditions
precedent that both on the date of the Credit Request and on the
relevant Drawing Date:
(A) no Event of Default or Potential Event of Default has occurred
and is continuing or would occur as a result of making the
Credit available or permitting the utilisation; and
(B) each of the warranties deemed to be repeated in clause 8
remains accurate in all material respects at the Drawing Date
as if given on that date by reference to the facts and
circumstances then existing.
4. UTILISATION OF FACILITY
4.1 ADVANCE
Subject to the terms of this Agreement, the Borrower may on a Business
Day during the Availability Period draw the Advance under the Facility
by delivering to the Lender no later than 3.00 p.m. on the third
Business Day prior to the proposed Drawing Date a duly completed Credit
Request in the form set out in Schedule 2, specifying in respect of the
proposed Advance:
(A) the proposed Drawing Date, which shall be a Business Day
falling on or prior to the Final Drawing Date; and
(B) the amount of the Advance which shall be an amount of not less
than $5,000,000 and an integral multiple of $1,000,000
thereafter or such other multiple as the Lender and the
Borrower may agree and which shall not in any event at the
time immediately preceding the Advance exceed the Commitment.
4.2 IRREVOCABILITY
A Credit Request shall be irrevocable and, subject to the terms of this
Agreement, the Borrower shall draw the Advance on the Drawing Date
specified in the Credit Request.
5. INTEREST
5.1 MARGIN
The Margin for any Interest Period shall be 0.40 per cent. per annum.
5.2 DURATION OF INTEREST PERIODS
(A) The Interest Period in respect of the Advance shall be one month unless
not later than 3.00 p.m. on the third Business Day before the first day
of an Interest Period the Lender has received from the Borrower a
notice selecting one, two, three, four, five or six months or such
other period as has been agreed with the Lender.
(B) The Interest Period for the Advance shall commence on the date of that
Advance.
<PAGE>
(C) An Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day in that
calendar month (if there is one) or the preceding Business Day (if
there is not).
(D) No Advance shall have an Interest Period ending after the Final
Maturity.
(E) The Borrower and the Lender may enter into such other arrangements as
they may agree for the consolidation or splitting of Advances and
Interest Periods.
5.3 NUMBER OF INTEREST PERIODS FOR FACILITY
Subject to clause 5.2(E), the Borrower may, in the notice referred to
in clause 5.2(A), elect to split the Advance into two or more Advances
having different Interest Periods, notwithstanding that under the
provisions of this Agreement the Borrower may only drawdown a single
advance under the Facility.
5.4 RATE OF INTEREST FOR FACILITY
The rate of interest payable on the Advance under the Facility for each
Interest Period shall be the rate per annum determined by the Lender to
be the aggregate of:
(A) the Margin; and
(B) (i) the arithmetic mean (rounded to five decimal places
with the mid-point rounded up) of the offered
quotations in dollars for the required period which
appear on the display for dollars on page 3740 or
page 3750 of Telerate (or such other page as may
replace such pages on such system for the purpose of
displaying London Interbank Offered Rates of leading
banks) as at 11.00 a.m. on the second Business Day
before the commencement of that Interest Period; or
(ii) if no such display rate is then available for
dollars, the rate quoted by the Lender for the same
period as that Interest Period to prime banks in the
London Interbank Market at or about 11.00 a.m. on the
second Business Day before the commencement of that
Interest Period; and
(C) the Mandatory Cost (if any).
5.5 PAYMENT OF INTEREST ON ADVANCES
Interest shall be calculated on the basis of actual days elapsed (not
counting within an Interest Period the last day of that Interest
Period) and a year of 360 days and shall be paid on the Advance by the
Borrower to the Lender in arrears on the Interest Payment Date in
dollars.
5.6 LENDER'S CERTIFICATE
In respect of the Advance the Lender shall notify the Borrower of the
rate of interest as soon as it is determined under this Agreement. The
certificate of the Lender as to a rate of interest shall, in the
absence of manifest error, be conclusive.
6. REPAYMENT
The Borrower shall repay the Advance in full together with any
outstanding interest that has
<PAGE>
accrued pursuant to clause 5 (Interest) and any other amounts owed to
the Lender under this Facility on Final Maturity.
7. PREPAYMENT AND CANCELLATION
7.1 VOLUNTARY PREPAYMENT
(A) The Borrower may, without premium, prepay the Advance made to it in
whole or in part (but, if in part, in an aggregate minimum amount of
$5,000,000 and an integral multiple of $1,000,000 or such other
minimums and multiples in the currency concerned as the Lender and
Borrower may agree), provided that the Borrower has given the Lender
not less than ten days' prior notice stating the principal amount of
the Advance to be prepaid.
(B) Any prepayment under this clause 7.1 shall be made together with
accrued interest and all other amounts due under this Agreement in
respect of the prepayment.
7.2 CANCELLATION OF FACILITY
The Borrower may, without premium, cancel the undrawn part of the
Facility (in respect of which no Credit Request has been served), in
whole or in part (being in a minimum amount of $5,000,000 and an
integral multiple of $1,000,000) provided that it has given the Lender
not less than ten days' prior written notice stating the principal
amount to be cancelled. During such ten day period the Borrower may not
purport to draw or utilise all or any part of the amount the subject of
such notice of cancellation.
7.3 IRREVOCABILITY
Any notice under clause 7.1 or 7.2 shall be irrevocable. The amount of
any prepayment shall become due and payable on the applicable date. No
amount cancelled under clause 7.1 or 7.2 may subsequently be
reinstated.
7.4 CURRENCY
Prepayment shall be made in dollars .
8. REPRESENTATIONS AND WARRANTIES
8.1 ON SIGNING
The Borrower and the Guarantor acknowledge that the Lender has entered
into the Financing Documents in full reliance on representations by the
Borrower and the Guarantor in the following terms; and the Borrower and
the Guarantor warrant to the Lender in respect of itself, and the
Guarantor warrants to the Lender in respect of itself and of the
Borrower that as of the Signing Date:
(A) STATUS: it is duly incorporated with limited liability and
validly existing under the laws of its place of incorporation;
(B) POWERS AND AUTHORISATIONS: the documents which contain or
establish its constitution include provisions which give
power, and all necessary corporate authority has been obtained
and action taken, for it to own its assets, carry on its
business and operations as they are now being conducted, and
sign and deliver, and perform the transactions contemplated
in, the Financing Documents to which it is a party and the
Financing Documents to which it is a
<PAGE>
party constitute valid and binding obligations of it
enforceable in accordance with their terms subject to general
equitable principles, insolvency, liquidation and other laws
affecting creditors' rights generally;
(C) NON-VIOLATION: neither the signing and delivery of the
Financing Documents to which it is a party nor the performance
of any of the transactions contemplated in any of them does or
will contravene or constitute a default under, or cause to be
exceeded any limitation on it or the powers of its directors
imposed by or contained in, (i) any law by which it or any of
its assets is bound or affected, (ii) any document which
contains or establishes its constitution, or (iii) any
agreement to which it is a party or by which any of its assets
is bound which has had or would be reasonably likely in any
such case materially and adversely to affect its ability to
observe and perform its obligations under the Financing
Documents;
(D) CONSENTS: no authorisation, approval, consent, licence,
exemption, registration, recording, filing or notarisation and
no payment of any duty or tax and no other action whatsoever
which has not been duly and unconditionally obtained, made or
taken is necessary or desirable to ensure the validity or
enforceability of the liabilities and obligations of it or the
rights of the Lender under the Financing Documents;
(E) NO DEFAULT:
(i) no Event of Default has occurred which is continuing
under this Agreement; and
(ii) no event has occurred which constitutes a
contravention of, or default in any material respect
under, any agreement or instrument (other than the
Financing Documents) by which it or any of its assets
is bound or affected, being a contravention or
default which has had or would be reasonably likely
either to have a material adverse effect on the
business, assets or consolidated financial condition
of the Group as a whole or materially and adversely
affects the ability of the Borrower and the Guarantor
as a whole to observe or perform their obligations
under the Financing Documents;
(F) LITIGATION: no litigation, arbitration or administrative
proceeding or claim in which there is a reasonable possibility
of an adverse decision which has had or would be reasonably
likely by itself or together with any other such proceedings
or claims either (i) to have a material adverse effect on the
business, assets or consolidated financial condition of the
Group as a whole or (ii) materially and adversely to affect
the ability of the Borrower and the Guarantor as a whole to
observe or perform their obligations under any Financing
Documents or (iii) to impair the validity or enforceability of
this Agreement or any other Financing Document, is presently
in progress or pending or, to the knowledge of the Borrower or
the Guarantor, threatened against any member of the Group or
any of their assets;
(G) ACCOUNTS: the audited consolidated financial statements
(including the profit and loss, cash flow statement and
balance sheet) of the Group for the year ended 31st December,
1998 have been prepared on a basis consistently applied in
accordance with generally accepted accounting principles and
practices in England and Wales and give a true and fair view
of the results of the operations of the Group for that year
and the state of the affairs of the Group at that date: since
that date there has been no
<PAGE>
material adverse change in the consolidated financial
condition of the Group as shown in such statements;
(H) INVESTMENT COMPANY ACT: none of the Borrower, the Guarantor or
their respective subsidiaries is an "investment company" or an
"affiliated person" or, "promoter" or "principal underwriter"
for an "investment company" within the meaning of the United
States Investment Company Act of 1940, as amended; and
(I) PUBLIC UTILITY HOLDING COMPANY ACT: none of the Borrower or
the Guarantor is a holding company or a subsidiary company of
a holding company or an affiliate of a holding company or of a
subsidiary company of a holding company within the meaning of
the United States Public Utility Holding Company Act of 1935,
as amended.
8.2 AFTER SIGNING
The Borrower and the Guarantor shall be deemed to represent and warrant
in respect of itself, and the Guarantor shall be deemed to warrant in
respect of itself and the Borrower, to the Lender on the Drawing Date,
with reference to the facts and circumstances then subsisting, that
each of the representations and warranties contained in paragraphs (A),
(B), (C), (E), (H) and (I) remains correct.
9. UNDERTAKINGS
9.1 DURATION
The undertakings in this clause shall remain in force from so long as
any amount is or may be outstanding under the Facility or the
Commitment is in force.
9.2 INFORMATION
The Borrower and the Guarantor will furnish or procure to be furnished
to the Lender:
(A) as soon as practicable (and in any event within 180 days after
the close of each of the Guarantor's financial years) the
audited consolidated accounts of the Group for that year;
(B) as soon as practicable (and in any event within 90 days of the
end of each half year of the Guarantor's financial year) the
published unaudited interim consolidated accounts of the
Group;
(C) together with the statements specified in paragraph (A) above,
a certificate signed by any one of the Group Finance Director
and the Chief Executive of the Guarantor (or the equivalent
from time to time) without personal liability as to whether
the consolidated revenues for that financial year of any
operating Subsidiary shall have exceeded 5% of the
consolidated revenues of the Group for that financial year
(and, if so, identifying the Subsidiary or Subsidiaries
concerned);
(D) promptly, all notices, other documents or information
despatched by the Guarantor to its shareholders generally (or
any class thereof) or its creditors generally (or any class
thereof);
<PAGE>
(E) promptly, such further information in the possession or
control of the Borrower, the Guarantor or of any of their
respective Material Subsidiaries regarding the financial
condition or operations of the Borrower, the Guarantor or any
of their respective Material Subsidiaries, as the Lender may
reasonably request; and
(F) details of any litigation, arbitration or administrative
proceedings, which, if adversely determined, would be
reasonably likely to have a material adverse effect on the
business, assets or consolidated financial condition of the
Group as a whole or materially and adversely to affect the
ability of the Borrower or the Guarantor to observe or perform
its obligations under the Financing Documents and which affect
the Borrower or the Guarantor or the Group as a whole, as soon
as the same are instituted, or, to the knowledge of the
Borrower or the Guarantor, are threatened.
All accounts and statements required under this clause shall be
prepared in accordance with Applicable Accounting Principles
consistently applied and shall give a true and fair view of the state
of affairs of the Group and of the profit and cash flows of the Group
and in the case of unaudited accounts and statements shall be prepared
in a manner which is consistent with the audited consolidated accounts
of the Group except to comply with changes in accounting practice or as
noted therein.
Any audited consolidated accounts of the Group delivered or to be
delivered to the Lender under this Agreement shall be prepared in all
material respects in accordance with the Applicable Accounting
Principles and applicable accounting policies which were applied in the
audited consolidated accounts for the year ended 31 December, 1998 save
for any changes to comply with changes in the law or in such Applicable
Accounting Principles consistently applied. If there are any changes in
law or in United Kingdom accounting standards as described above:
(i) if material to the calculation of the financial ratios and
covenants in this Agreement, the Borrower shall promptly so
advise the Lender and provide details of the difference and
the reasons therefor;
(ii) on request of the Lender, the Borrower and the Lender shall
negotiate in good faith with a view to agreeing such
amendments to clause 9.3 and/or the definitions of any of or
all of the terms used therein as are necessary, in the opinion
of the Lender, to give the Lender comparable protection to
that contemplated on the Signing Date.
9.3 FINANCIAL RATIOS
(A) The Guarantor undertakes that it will procure that the Interest Cover
Ratio for each period of twelve consecutive months ending on 30th June
and 31st December in each year will equal or exceed 4.0.
(B) The Guarantor undertakes that it will procure that, as at 30th June and
31st December in each year, the financial condition of the Group shall
be such that the ratio of the Borrowings of the Group on a consolidated
basis to Consolidated EBITDA shall not exceed 3.5 to 1.
9.4 NOTIFICATION OF DEFAULT
The Borrower and the Guarantor will notify the Lender in writing of any
Event of Default or Potential Event of Default forthwith upon becoming
aware thereof.
<PAGE>
9.5 COMPLIANCE CERTIFICATES
The Guarantor will no later than the time of the delivery of the
accounts specified in paragraphs (A) and (B) of clause 9.2 (and, in
relation to a certificate dealing with the matters referred to in
paragraph (A) below, also promptly at the request of the Lender from
time to time) furnish the Lender with:
(A) a certificate signed by any two of the Company Secretary, the
Director of Group Treasury (or equivalent from time to time)
and the executive directors of the Guarantor certifying on
behalf of the Guarantor without personal liability that no
Event of Default or Potential Event of Default has occurred
and is continuing or, if the same has occurred, specifying the
Event of Default or Potential Event of Default and the steps
being taken to remedy the same; and
(B) a certificate (a "RATIO CERTIFICATE") signed by either of the
Group Finance Director and the Chief Executive of the
Guarantor certifying without personal liability, as at the end
of the period to which the relevant accounts relate,
compliance with the covenants in clause 9.3 and 9.14 or, if
such covenants have not been met, specifying the same and, in
each case, setting out in reasonable detail the relevant
computations.
9.6 CONSENTS
The Borrower and the Guarantor will use its best endeavours to obtain
and promptly renew from time to time, and will promptly furnish
certified copies to the Lender of, all such authorisations, approvals,
consents, licences and exemptions as may be required under any
applicable law or regulation to enable it to perform its obligations
under the Financing Documents or required for the validity or
enforceability of the Financing Documents and the Borrower and the
Guarantor shall comply with the terms of the same.
9.7 PARI PASSU RANKING
The Borrower and the Guarantor undertakes that, subject as set out
herein, its obligations under the Financing Documents do and will rank
at least pari passu with all its other present and future unsecured
obligations other than obligations in respect of national, provincial
and local taxes and employees' remuneration and taxes and for certain
other statutory exceptions.
9.8 NEGATIVE PLEDGE
The Borrower undertakes that with effect from drawdown of the Facility
the Borrower and the Guarantor will not create, suffer or permit to
subsist (and will procure that none of the Subsidiaries will create,
suffer or permit to subsist) any Security Interest on the whole or any
part of its respective present or future assets except for the
following:
(A) Security Interests created with the prior written consent of
the Lender;
(B) Security Interests arising by operation of law in the ordinary
course of business including, without limitation, statutory
liens and encumbrances;
(C) any Security Interest over the assets and/or revenues of a
company which became or becomes a Subsidiary of the Borrower
or the Guarantor after the Signing Date and which Security
Interest is in existence or contracted to be given as at the
date it becomes a Subsidiary (and which was not created in
contemplation of it becoming a Subsidiary) provided that the
principal amount of any borrowing which may be so
<PAGE>
secured shall not be increased beyond the amount outstanding
or committed at the date it becomes a Subsidiary but shall be
reduced in accordance with its terms and provided further that
in the case of a fluctuating amount for banking type
accommodation the foregoing shall not prevent fluctuation
within the overall limit that existed at that date and
provided that the amount secured under any such Security
Interest shall not be increased beyond the amount secured at
the date the company becomes a Subsidiary;
(D) those Security Interests existing at the Signing Date over the
assets and/or revenues of a Subsidiary (whether or not it is
the Borrower or the Guarantor), provided that the principal
amount of any borrowing which may be so secured shall not be
increased beyond the amount outstanding or committed at the
Signing Date but shall be reduced in accordance with its terms
and provided further that in the case of a fluctuating amount
for banking type accommodation the foregoing shall not prevent
fluctuation within the overall limit that existed at the
Signing Date;
(E) Security Interests securing the performance of bids, tenders,
bonds, leases, contracts (other than in respect of
Borrowings), statutory obligations, surety, customs and appeal
bonds and other obligations of like nature (but not including
obligations in respect of Borrowings) incurred in the ordinary
course of business provided that the aggregate amount secured
under such Security Interests shall not, at any time, exceed
$20,000,000 save that such aggregate amount may be exceeded
with the prior written consent of the Lender;
(F) Security Interests arising out of judgments or awards which
are being contested in good faith and with respect to which an
appeal or proceeding for review has been instituted or the
time for doing so has not yet expired;
(G) Security Interests upon any property which are created or
incurred contemporaneously with the acquisition of such
property to secure or provide for the payment of any part of
the purchase price of such property (but no other amounts),
provided that any such Security Interest shall not apply to
any other property of the purchaser thereof and provided
further that the aggregate amount of all liabilities secured
by this paragraph (G) shall not, at any time, exceed
$25,000,000;
(H) any Security Interest arising out of title retention
provisions in a supplier's conditions of supply of goods or
services acquired by a member of the Group in the ordinary
course of its business;
(I) any right of any bank or financial institution of combination
or consolidation of accounts or right to set-off or transfer
any sum or sums standing to the credit of any account (or
appropriate any securities held by such bank or financial
institution) in or towards satisfaction of any present or
future liabilities to that bank or financial institution;
(J) any Security Interest securing indebtedness re-financing
indebtedness secured by Security Interests permitted by
paragraphs (C), (D) or (G) above or this paragraph (J)
provided that (except to the extent otherwise permitted by
paragraph (A)) the maximum principal amount of the
indebtedness secured by such Security Interests is not
increased and such Security Interests do not extend to any
assets which were not subject to the Security Interests
securing the re-financed indebtedness;
<PAGE>
(K) any Security Interest created by a member of the Group which
is neither the Borrower nor the Guarantor securing banking
facilities over accounts receivable (or book debts) outside
the U.K. or the U.S.A.;
(L) any other Security Interest created or outstanding on or over
any assets of any member of the Group provided that the
aggregate outstanding amount secured by all Security Interests
created or outstanding under this exception in this paragraph
(L) shall not at any time exceed $40,000,000 or its equivalent
and further provided that no single such Security Interest
under this paragraph (L) shall secure an aggregate principal
amount exceeding $10,000,000 or its equivalent; and
(M) any Security Interest arising out of any of the Accounts
Receivable Facility or Back to Back Loans.
9.9 DISPOSALS
The Borrower and the Guarantor will not, without the prior written
consent of the Lender (which may be given subject to conditions), and
each of them will procure that none of its Subsidiaries will sell,
transfer, lease or otherwise dispose of all or any substantial part of
their respective assets except on an arm's length basis and for a fair
market value or to another member of the Group.
9.10 CHANGE OF BUSINESS
Except with the prior written consent of the Lender, the Borrower and
the Guarantor will not, and each will procure that none of its
respective Material Subsidiaries will, make any change in its business
as presently conducted, or carry on any other business other than its
business as presently conducted or business consisting of allied or
related activities, provided that this prohibition shall not apply
unless such change of business or other business alters the nature of
the business of the Group as a whole.
9.11 MERGERS
Neither the Borrower nor the Guarantor will without the prior written
consent of the Lender enter into any merger or consolidation if the
effect thereof would be to alter the legal personality or identity of
such Borrower or Guarantor except that the Borrower or the Guarantor
may merge or consolidate with or into any other Subsidiary which is in
the same jurisdiction as the Borrower or Guarantor (as the case may be)
provided that from the date on which the merger or consolidation takes
effect the Borrower or Guarantor is the legal entity surviving the
merger or the legal entity into which it shall be merged or the legal
entity which is formed by such consolidation shall assume its
obligations hereunder in an agreement or instrument satisfactory in
form and substance to the Lender.
9.12 INSURANCE
The Borrower and the Guarantor will, and will procure that each of its
respective Material Subsidiaries will, effect and maintain such
insurance over and in respect of its respective assets and business and
in such manner and to such extent as is reasonable and customary for a
business enterprise engaged in the same or a similar business and in
the same or similar localities.
<PAGE>
9.13 LIMITATION ON BORROWINGS OF SUBSIDIARIES
The Guarantor and the Borrower will not permit any of their
Subsidiaries to create, permit to subsist, incur, assume or in any
other manner be or become directly or indirectly liable for the payment
of any Borrowings (including, without limitation, by way of indemnity,
counter-indemnity or guarantee) other than:
(A) Borrowings under this Agreement;
(B) any Borrowings of any Subsidiary owing to another member of
the Group;
(C) Borrowings under the Consolidated Revolving Facility Agreement
dated 3rd July, 1998 and made between WPP Group plc and the
other Borrowers named therein, the Guarantors, the Facility
Agent, the Lenders and the Arrangers (all as named therein);
(D) Borrowings under the Revolving Facility Agreement dated 15th
October, 1999 and made between Moveability Limited (as
Borrower), WPP Group plc and the other Guarantors named
therein, the Facility Agent, the Lenders and the Arrangers
(all as named therein);
(E) Borrowings by a Subsidiary whose main business is to operate
as a finance company for the Group; and
(F) additional Borrowings of Subsidiaries to the extent that:
(i) no individual Material Subsidiary has or will create,
permit to subsist, incur, assume or in any other
manner be or become directly or indirectly liable for
the payment of any Borrowings (including, without
limitation, by way of indemnity, counter-indemnity or
guarantee) with an aggregate principal amount
exceeding an amount equal to 15 per cent. of
Consolidated EBITDA; and
(ii) the aggregate principal amount of Borrowings of all
Subsidiaries permitted under this sub-clause (E) does
not exceed an amount equal to 25 per cent. of
Consolidated EBITDA,
in each case for the financial period most recently ended from
time to time in respect of which financial results of the
Group have been published or announced.
9.14 GROUP ACQUISITIONS
The Guarantor will procure that the aggregate maximum value of all
Acquisition Cash Payments paid in any financial year (as reduced by the
aggregate amount of (i) any cash recorded in the balance sheet or
financial records of the company, business, undertaking or other person
the subject of the Acquisition as at the last day of the financial year
of that company or business most recently ended or, at the option of
the Guarantor, upon completion of the Acquisition and (ii) cash
proceeds of any disposals of any business or undertaking by any member
of the Group received during that financial year) shall not, without
the consent of the Lender, exceed the Acquisition Cash Limit.
<PAGE>
10. CHANGES IN CIRCUMSTANCES
10.1 ILLEGALITY
Where the introduction, imposition or variation of any law, regulation
or treaty or any change in the interpretation or application of any
law, regulation or treaty makes it unlawful for the Lender to make
available or fund or maintain the Facility or to carry out all or any
of its other obligations under this Agreement or to charge or receive
interest or fees or commissions at the rate applicable under this
Agreement:
(A) the Lender shall notify the Borrower; and
(B) (i) the Borrower shall forthwith prepay any Advance
made to it by the Lender together with all other
amounts payable by it to the Lender under this
Agreement; and
(ii) the Lender's Commitment shall be cancelled.
10.2 INCREASED COSTS
Where the Lender determines that the introduction or variation of any
law or any change in the interpretation or application thereof, or
compliance with any request (whether or not having the force of law)
from any central bank or other fiscal, monetary or other authority
would increase the cost to the Lender of making or maintaining or
funding the Commitment or reduce the amount of any sum received or
receivable by it in respect of the Commitment or oblige it to make any
payment or forgo any interest or other return on, or calculated by
reference to, the amount of any sum received or receivable by it from a
Borrower in respect of the Commitment or reduce the effective return to
it under the Commitment, then:
(A) the Lender shall notify the Borrower of such event promptly
upon its becoming aware of such event; and
(B) the Borrower shall on demand pay to the Lender such amounts as
the Lender from time to time and at any time (including after
a prepayment of the Lender's participation) notifies the
Borrower to be necessary to compensate it for such increased
cost, reduction, payment or forgone interest or return,
Provided that this clause 10.2 shall not apply to or in respect of:
(i) any change in, or in the rate of, tax on overall net income of
the Lender;
(ii) any circumstances referred to in clause 11.3;
(iii) any increased costs, reduction in return payment or forgone
interest arising as a result of breach by the Lender of any
request or requirement of any fiscal, monetary or other
regulatory authority.
<PAGE>
10.3 MARKET DISRUPTION
If:
(A) the Lender determines that, by reason of circumstances
affecting the London Interbank market generally, reasonable
and adequate means do not or will not exist for ascertaining
under clause 5.4 a rate of interest applicable to the Advance;
or
(B) the Lender determines that deposits in dollars are not in the
ordinary course of business available in the London Interbank
market for a period equal to the forthcoming Interest Period
in amounts sufficient to fund their participations in an
Advance,
the Lender shall give written notice (a "SUSPENSION NOTICE") of such
determination or notification to the Borrower, and the following
provisions shall apply:
(i) If a Suspension Notice relates to the Advance which has not
yet been made hereunder, then the Lender shall not be obliged
to make such Advance hereunder until written notice to the
contrary is given by the Lender to the Borrower.
Notwithstanding the service of such Suspension Notice, the
Lender's Commitment shall remain in force and during the
period of thirty days from such Suspension Notice, the Lender
shall consult regularly in good faith with the Borrower with a
view to agreeing to an alternative basis for the making of
such Advance. If such alternative basis is agreed between the
Borrower and the Lender, it shall apply in accordance with its
terms.
(ii) If a Suspension Notice relates to the Advance outstanding at
the time of a Suspension Notice, during the period of thirty
days from such Suspension Notice, the Lender shall, in
consultation with the Borrower, certify to the Borrower an
alternative basis (in this Agreement referred to as the
"SUBSTITUTE BASIS") for maintaining the participation of the
Lender in the Advance. Without limitation, such Substitute
Basis may be retroactive to the beginning of the Interest
Period to which the Suspension Notice relates, and may include
an alternative method of fixing the interest rate (which shall
reflect the cost to the Lender of funding its participation in
such Advances from other sources plus the Margin), alternative
Interest Periods or alternative currencies for its
participation in such Advance. Each Substitute Basis so
certified shall be binding upon the relevant Borrower and the
Lender and shall be treated as part of this Agreement.
(iii) So long as any Substitute Basis is in force, the Borrower and
the Lender certifying a Substitute Basis, shall from time to
time, but not less often than monthly and at the Borrower's
request, review whether or not the circumstances referred to
in clause 10.3(i) or (ii) above (as the case may be) still
prevail with a view to returning to the normal provisions of
this Agreement.
10.4 MITIGATION
If circumstances arise in respect of the Lender which would, or would
upon the giving of notice, result in:
(A) the Borrower being obliged to pay to the Lender additional
amounts pursuant to clause 10.2 or any amounts pursuant to
clause 11.3; or
<PAGE>
(B) an alternative basis applying for the purposes of clause 10.3;
or
(C) the Borrower being obliged to repay the Lender's participation
in the Advance pursuant to clause 10.1,
then, without in any way limiting, reducing or otherwise qualifying
such Borrower's obligations under clauses 10 and 11, the Lender shall,
in consultation with the Borrower, endeavour to take such reasonable
steps as may be open to it to mitigate or remove such circumstances,
including without limitation the transfer of its rights and obligations
under this Agreement to another bank or financial institution
acceptable to the Borrower, unless to do so might (in the opinion of
the Lender) be prejudicial to the Lender or would conflict with the
Lender's general banking policies.
10.5 CERTIFICATES
Any determination or notification by the Lender concerning any matter
referred to in this clause shall, in the absence of manifest error, be
conclusive evidence as to that matter and shall be binding on the
Borrower and the Lender.
11. PAYMENTS
11.1 BY THE BORROWER AND THE GUARANTOR
All payments to be made by the Borrower or the Guarantor under this
Agreement for the account of the Lender shall be made in immediately
available funds not later than twelve noon on the relevant day to such
account as the Lender may have notified to the Borrower.
11.2 BY THE LENDER
All amounts to be advanced by the Lender to the Borrower under this
Agreement shall be remitted in immediately available funds not later
than 12 noon on the relevant day to the Borrower by payment to the
account and bank which are specified in the relevant Credit Request.
11.3 WITHHOLDINGS
All payments by the Borrower or the Guarantor under this Agreement
whether in respect of principal, interest, fees or any other item,
shall be made in full without any deduction or withholding (whether in
respect of set off, counterclaim, duties, taxes, charges or otherwise
whatsoever) unless the deduction or withholding is on account of taxes
imposed or levied by any jurisdiction in which the Borrower or the
Guarantor is incorporated or through which any payment is made and is
required by law, in which event (unless the Lender otherwise agrees
with the Borrower) the Borrower or the Guarantor shall:
(A) ensure that the deduction or withholding does not exceed the
minimum amount legally required (based on the details of the
Lender provided to the Borrower or Guarantor by the Lender);
(B) forthwith pay to the Lender such additional amount so that the
net amount received by that Lender will equal the full amount
which would have been received by it had no such deduction or
withholding been made;
<PAGE>
(C) pay to the relevant taxation or other authorities within the
period for payment permitted by applicable law the full amount
of the deduction or withholding (including, but without
prejudice to the generality of the foregoing the full amount
of any deduction or withholding from any additional amount
paid pursuant to this sub-clause); and
(D) furnish to the Lender concerned, within the period for payment
permitted by the relevant law, either an official receipt of
the relevant taxation authorities involved in respect of all
amounts so deducted or withheld or if such receipts are not
issued by the taxation authorities concerned on payment to
them of amounts so deducted or withheld, a certificate of
deduction or equivalent evidence of the relevant deduction or
withholding.
The obligation on the Borrower or Guarantor to pay an additional amount
under this clause 11.3 shall not apply to the extent that the tax
deducted is:
(i) tax on the overall income of the Lender save to the extent
that such tax is collected by way of withholding from the
relevant payment from which the deduction must be made; or
(ii) tax that would not be imposed but for the connection between
the Lender and the jurisdiction (other than the United
Kingdom) imposing such tax other than a connection arising as
a result of the Lender entering into this Agreement.
11.4 U.K. TAXES
If the Lender:
(i) at the Signing Date is not a Qualifying Bank; or
(ii) ceases to be a Qualifying Bank after the Signing Date,
otherwise than as a result of any introduction of or change in or in
the interpretation, administration or application by the English courts
or the Inland Revenue of any relevant law or any relevant practice or
concession of the Inland Revenue after the Signing Date, then the
Borrower shall not be liable to pay to the Lender any amount under this
clause 11 in excess of the amount they would have been obliged to pay
if the Lender had been (i) a bank, as so defined at the date of the
relevant Advance, and (ii) beneficially entitled to such interest and
within the charge to United Kingdom corporation tax as respects such
interest at the time such interest is paid.
11.5 TAX CREDITS
If the Borrower or the Guarantor pays any additional amount (a "TAX
PAYMENT") under clause 11.3 and the Lender effectively obtains a refund
of tax or credit against tax on its overall net income by reason of
that Tax Payment (a "TAX CREDIT") and the Lender is able to identify
such Tax Credit as being attributable to such Tax Payment, then the
Lender shall reimburse to the Borrower or, as the case may be, the
Guarantor such amount as it shall determine to be the proportion of
such Tax Credit as will leave the Lender, after that reimbursement, in
no better or worse position than it would have been in if that Tax
Payment had not been required. The Lender shall have absolute
discretion as to whether to claim any Tax Credit and, if it does so
claim, the extent, order and manner in which it does so. The Lender
shall not be obliged to
<PAGE>
disclose any information regarding its tax affairs or computations to
the Borrower or the Guarantor.
11.6 DATE
If any payment under this Agreement would otherwise be due on a day
which is not a Business Day, it shall be due on the next succeeding
Business Day or, if that Business Day falls in the following month of
the year, on the preceding Business Day.
11.7 DEFAULT INTEREST
(A) If the Borrower fails to pay any amount in accordance with this
Agreement, the Borrower shall pay interest on that amount from the time
of default up to the time of actual payment (as well after as before
judgment) at the rate per annum which is the sum of (a) the Margin plus
1% and (b) the rate, (as determined by the Lender), for a deposit of an
amount comparable to the defaulted amount, offered to the Lender in the
London Interbank market, for such period as the Lender may from time to
time select, at or about 11.00 a.m. (London time) on the Business Day
succeeding that on which the Lender becomes aware of the default for
value two Business Days later and (c) the Reserve Asset Costs (if any).
(B) If an amount unpaid in accordance with this Agreement in respect of the
Facility, is of principal due on a day during, but not the last day of,
an Interest Period relating thereto, the period selected by the Lender
under clause 11.7(A) shall equal the unexpired portion of the Interest
Period and there shall be substituted for the rate specified in clause
11.7(A) the rate of 1% above the rate calculated in accordance with
clause 5.4 and applicable to the unpaid amount immediately before it
fell due.
(C) Interest under this clause shall accrue daily on the basis of a year of
360 days from and including the first day to the last day of each
period for which a rate of interest is determined as aforesaid and
shall be due and payable by the Borrower at the end of each such
period. So long as the default continues, the rate referred to in
clause 11.7(A) shall be calculated on a similar basis at the end of
each period selected by the Lender and notified to the Lenders and
interest payable under this sub-clause which is unpaid at the end of
each such period shall thereafter itself bear interest at the rates
provided in this sub-clause.
11.8 JUDGMENT CURRENCY
If, under any applicable law, whether as a result of a judgment against
the Borrower or the Guarantor or the liquidation of the Borrower or the
Guarantor or for any other reason, any payment under or in connection
with the Facility is made or is recovered in a currency (the "OTHER
CURRENCY") other than that in which it is required to be paid hereunder
(the "ORIGINAL CURRENCY") then, to the extent that the payment to the
Lender (when converted at the rate of exchange on the date of payment
or, in the case of a liquidation, the latest date for the determination
of liabilities permitted by the applicable law) falls short of the
amount unpaid under this Agreement, the Borrower or the Guarantor shall
as a separate and independent obligation, fully indemnify the Lender
against the amount of the shortfall; and for the purposes of this
sub-clause "RATE OF EXCHANGE" means the rate at which the Lender is
able on the relevant date to purchase the original currency in London
with the other currency.
<PAGE>
12. DEFAULT
12.1 EVENTS
If (whether or not caused by any reason outside the control of the
Borrower or the Guarantor):
(A) the Borrower or the Guarantor does not pay on the due date
(or, in the case of amounts other than principal, within three
Business Days thereafter) any amount payable by it under any
of the Financing Documents at the place and in the currency
expressed to be payable (unless such failure results solely
from a technical problem in relation to the transfer of funds
for which the Borrower or the Guarantor is not responsible and
is remedied within five days of the due date); or
(B) the Borrower or the Guarantor fails to comply in any material
respect with any other provision of any of the Financing
Documents and, other than in the case of clause 9.3, if such
default is capable of prompt remedy within 30 days after the
Borrower or Guarantor shall have given notice of such default
pursuant to clause 9.4 (or, if earlier, the date on which the
Lender shall have given notice to the Borrower of such
default) the Borrower or Guarantor shall have failed to cure
such default; or
(C) any representation, warranty or written statement made or
deemed to be repeated in, or in connection with, this
Agreement or in any other Financing Document or in any
certificate delivered by or on behalf of any Borrower or any
Guarantor in writing under any of the Financing Documents is
incorrect in any material respect when made or deemed to be
repeated, or, in respect of those specified in clause 8.2,
would be if repeated at any time; or
(D) any other present or future Borrowings of a principal amount
exceeding in the aggregate $20,000,000 or the equivalent sum
in any other currency of any member of the Group shall become
due and payable or capable of being declared due and payable
prior to the due date thereof as a result of a default or any
such Borrowings shall not be paid on the due date thereof (or,
if a grace period was originally provided for in the document
evidencing or constituting such Borrowing, within any
applicable grace period therefor) or any Security Interest
over any assets of any member of the Group and securing a
principal amount exceeding $20,000,000 shall be or become
enforceable; or
(E) any Borrower, Guarantor or Material Subsidiary is deemed
unable to pay its debts within the meaning of section
123(1)(a), (b), (c) or (d) of the Insolvency Act 1986 (as that
section may be amended by order under section 416 or
otherwise), or any Borrower, Guarantor or Material Subsidiary
becomes unable to pay its debts as they fall due, or any
Borrower, Guarantor or Material Subsidiary suspends making
payments (whether of principal or interest) with respect to
all or any class of its debts or announces an intention to do
so; or
(F) an application for an administration order in relation to any
Borrower, Guarantor or Material Subsidiary is presented to the
court by any such company or its directors or the supervisor
of a voluntary arrangement relating to any Borrower, Guarantor
or Material Subsidiary or such an order is made on the
application of a creditor of any Borrower, Guarantor or
Material Subsidiary or any meeting of any Borrower, Guarantor
or Material Subsidiary is convened for the purpose of
considering any resolution to present an application for such
an order; or
<PAGE>
(G) any kind of composition, scheme of arrangement, compromise or
arrangement involving any Borrower, Guarantor or Material
Subsidiary and its creditors generally (or any class of them)
is proposed by the company concerned; or
(H) any administrative or other receiver or any manager of any
Borrower, Guarantor or Material Subsidiary or all or a
substantial part of any of its property is appointed, or the
directors of any Borrower, Guarantor or Material Subsidiary
request any person to appoint such a receiver or manager, or
any kind of attachment (except prejudgment attachment),
sequestration, distress or execution against any Borrower,
Guarantor or Material Subsidiary or all or a substantial part
of its property is levied or sued out and not discharged
within 30 days; or
(I) any meeting of any Borrower, Guarantor or Material Subsidiary
is convened for the purpose of considering any resolution for
(or to petition for) its winding up, or any Borrower,
Guarantor or Material Subsidiary passes such a resolution, or
any Borrower, Guarantor or Material Subsidiary or any other
person (except its creditor) presents any petition for the
winding up of any Borrower, Guarantor or Material Subsidiary,
or an order for the winding up of any Borrower, Guarantor or
Material Subsidiary is made on the petition of any of its
creditors; or
(J) there occurs in relation to any Borrower, Guarantor or
Material Subsidiary in any country or territory in which it
carries on business or to the jurisdiction of whose courts it
or any of its property is subject any event which reasonably
appears to the Majority Lenders to correspond in that country
or territory with any of those mentioned in paragraphs (E) to
(I) inclusive above or any Borrower, Guarantor or Material
Subsidiary otherwise becomes subject, in any such country or
territory, to any law relating to insolvency, bankruptcy or
liquidation; or
(K) any Borrower, Guarantor or Material Subsidiary ceases, or
threatens to cease, to carry on all or a substantial part of
its business except consequent upon a disposal, merger or
acquisition not otherwise prohibited under this Agreement; or
(L) any authorisation, approval, consent, licence, exemption,
filing, registration or notarisation or other requirement
necessary to enable any Borrower or Guarantor to comply with
its obligations under any of the Financing Documents to which
it is a party in any material respect is revoked or withheld
or does not remain in full force and effect or is materially
and adversely modified; or
(M) any single person, or group of persons acting in concert (as
defined in the City Code on Takeovers and Mergers), acquires
control (as defined in Section 416 of the Income and
Corporation Taxes Act 1988) of the Guarantor and, in a
situation where the acquisition of such control of the
Guarantor takes place with the consent, and on the
recommendation, of the Board of Directors of the Borrower
only, ninety days shall have elapsed following such
acquisition of control; or
(N) at any time it is unlawful for any Borrower or any Guarantor
to perform any of its material obligations under any Financing
Document to which it is a party; or
(O) any litigation, arbitration or administrative proceeding or
claim in which there is a reasonable possibility of an adverse
decision which has had or would be reasonably likely by itself
or together with any other such proceedings or claims either
to have a material adverse effect on the business, assets or
consolidated financial condition of the Group as a whole or
which would be reasonably likely materially and adversely to
<PAGE>
affect the ability of the Borrowers and Guarantors taken as a
whole to observe or perform their obligations under any
Financing Documents and which affect any Borrower, any
Guarantor or the Group as a whole is in progress or pending or
threatened; or
(P) (i) any U.S. Subsidiary (a "QUALIFYING U.S. SUBSIDIARY") which
is a Material Subsidiary shall commence any case, proceeding
or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to winding-up,
dissolution, bankruptcy, insolvency, reorganisation or relief
of debtors, seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganisation, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its
assets, or any Qualifying U.S. Subsidiary shall make a general
assignment for the benefit of its creditors; or (ii) there
shall be commenced against any Qualifying U.S. Subsidiary any
case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order
for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of
sixty days; or (iii) there shall be commenced against any
Qualifying U.S. Subsidiary any case, proceeding or other
action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged,
or stayed or bonded pending appeal within sixty days from the
entry thereof; or (iv) any Qualifying U.S. Subsidiary shall
take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii) or (iii) above: or (v) any Qualifying U.S.
Subsidiary shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they
become due; or
(Q) any other event or series of events whether related or not
which has a material adverse effect on the business, assets or
consolidated financial condition of the Group as a whole or
which would be reasonably likely materially and adversely to
affect the ability of the Group as a whole to comply with any
or all of its obligations under the Financing Documents
occurs,
then, at once or at any time thereafter, the Lender may by notice to
the Borrower, declare the Outstandings to be immediately due and
payable whereuponthe Advance and all other sums outstanding under the
Facility shall become so due and payable together with accrued interest
thereon and any other amounts then payable under this Agreement or the
Facility.
13. INDEMNITY
13.1 GENERAL INDEMNITY
The Borrower and the Guarantor shall fully indemnify the Lender from
and against any expense, loss, damage or liability (as to the amount of
which the certificate of the Lender shall, in the absence of manifest
error, be conclusive) which it may incur as a consequence of the
occurrence of any Event of Default, of any failure to draw down in
accordance with a Credit Request or other notification of any intention
to utilise the Facility or of any repayment or prepayment under this
Agreement or otherwise in connection with this Agreement (including
without limitation any repayment or prepayment pursuant to clause 6 or
7.1). Without prejudice to its generality, the foregoing indemnity
shall extend to any interest, fees
<PAGE>
or other sums whatsoever paid or payable on account of any funds
borrowed in order to carry any unpaid amount and to any loss, premium,
penalty or expense which may be incurred in liquidating or employing
deposits from third parties acquired to make, maintain or fund the
Outstandings (or any part of them) or any other amount due or to become
due under this Agreement.
13.2 WAIVER OF DEFENCES
The Borrower and the Guarantor agree that no delay, extension of time,
renewal, compromise, waiver, indulgence, release of security or rights
or any other matter or thing shall in any way prejudice the Lender's
rights or powers hereunder. The Borrower shall not by virtue of any
payment made by it pursuant to this clause 13 claim in competition with
the Lender any right of subrogation, contribution or indemnity against
any member of the Group so long as any amount is or is capable of
becoming outstanding hereunder.
14. GUARANTEE
14.1 GUARANTEE
The Guarantor unconditionally and irrevocably guarantees, as a
continuing obligation, the proper and punctual payment by the Borrower
of the Guaranteed Amounts and unconditionally and irrevocably
undertakes, as a continuing obligation, with the Lender that, if for
any reason the Borrower does not make such payment, the Guarantor shall
pay the Guaranteed Amounts upon first written demand by the Borrower.
14.2 PRINCIPAL DEBTOR
The Guarantor shall be deemed to be liable for the Guaranteed Amounts
as sole or principal debtor.
14.3 DISCHARGE
The liabilities and obligations of the Guarantor under this Agreement
shall remain in force notwithstanding any act, omission, neglect, event
or matter whatsoever, except the proper and valid payment of all the
Guaranteed Amounts and, subject to clause 14.4, an absolute discharge
or release of the Guarantor signed by the Lender; and without prejudice
to its generality, the foregoing shall apply in relation to anything
which would have discharged the Guarantor (wholly or in part) or which
would have afforded the Guarantor any legal or equitable defence, and
in relation to any winding up or dissolution of, or any change in
constitution or corporate identity or loss of corporate identity by,
the Borrower or any other person.
14.4 PREFERENCE
Any such discharge or release as is referred to in clause 14.3, and any
composition or arrangement which the Guarantor may effect with the
Lender, shall be deemed to be made subject to the condition that it
will be void if any payment or security which the the Lender may
previously have received or may thereafter receive from any person in
respect of the Guaranteed Amounts is set aside under any applicable law
or proves to have been for any reason invalid.
<PAGE>
14.5 NO IMPAIRMENT
Without prejudice to the generality of clauses 14.2 and 14.3 none of
the liabilities or obligations of the Guarantor under this Agreement
shall be impaired by, and the Guarantor hereby irrevocably waives any
defences it may now or hereafter have in any way relating to, the
Lender:
(A) agreeing with the Borrower any variation or departure (however
substantial) of or from this Agreement (other than this
clause) or any of the Financing Documents and any such
variation or departure shall, whatever its nature, be binding
upon the Guarantor in all circumstances, notwithstanding that
it may increase or otherwise affect the liability of the
Guarantor provided however that if any such variation is made,
without the Guarantor's prior written consent, which has the
effect of increasing the amount of the Facility or the Margin,
the amount of the Guarantor's liability under this clause
shall be limited to the amount for which they would have been
liable had such variation not been made;
(B) releasing or granting any time or any indulgence whatsoever to
the Borrower or Guarantor and, in particular, waiving any of
the pre-conditions for Credits under this Agreement or any
contravention by the Borrower of this Agreement, or entering
into any transaction or arrangements whatsoever with or in
relation to the Borrower and/or any third party; and
(C) taking, perfecting, accepting, varying, dealing with,
enforcing, abstaining from enforcing, surrendering or
releasing any security for the Guaranteed Amounts in such
manner as it or they think fit, or claiming, proving for,
accepting or transferring any payment in respect of the
Guaranteed Amounts in any composition by, or winding up of,
the Borrower and/or any third party or abstaining from so
claiming, proving, accepting or transferring.
14.6 DEMANDS
Demands under this clause may be made from time to time, and the
liabilities and obligations of the Guarantor under this Agreement may
be enforced, irrespective of:
(A) whether any demands, steps or proceedings are being or have
been made or taken against any of the Borrower and/or any
third party; or
(B) whether or in what order any security to which the Lender may
be entitled in respect of the Guaranteed Amounts is enforced.
Each Guarantor waives diligence, presentment, protest, demand for
payment and notice of default to or upon the Borrower or Guarantor.
14.7 SUSPENSE ACCOUNT
Until all amounts which may be or become payable by the Borrower
hereunder or under any of the Financing Documents or in connection
herewith or therewith have been irrevocably paid and discharged in
full, the Lender may:
(A) refrain from applying or enforcing any other security, moneys
or rights held or received by the Lender in respect of such
amounts or apply and enforce the same in
<PAGE>
such manner and order as it sees fit (whether against such
amounts or otherwise) and the Guarantor shall not be entitled
to the benefit of the same; and
(B) hold in suspense account (subject to the accrual of interest
thereon at market rates for the account of the Guarantor) any
moneys received from the Guarantor or on account of that
Guarantor's liability hereunder.
14.8 SUBORDINATION
So long as the Guarantor has any liability under this Agreement and
except as provided in clause 14.9 below:
(A) the Guarantor shall not take or accept any Security Interest
from the Borrower or, in relation to the Guaranteed Amounts,
from any third party, without first obtaining the Lender's
written consent;
(B) after the occurrence of an Event of Default, the Guarantor
shall not, without first obtaining the Lender's written
consent, seek to recover, whether directly or by set off,
lien, counterclaim or otherwise, nor accept any moneys or
other property, nor exercise any rights in respect of, any sum
which may be or become due to the Guarantor on any account by
the Borrower or, in relation to the Guaranteed Amounts, from
any third party, nor claim, prove for or accept any payment in
any composition by, or any winding up of, the Borrower or, in
relation to the Guaranteed Amounts, any third party;
(C) if, notwithstanding the foregoing, the Guarantor holds or
receives any such security, moneys or property, it shall
forthwith pay or transfer the same to the Lender.
14.9 DEFERRAL OF SUBROGATION, CONTRIBUTION, REIMBURSEMENT, EXONERATION AND
INDEMNITY
The Guarantor agrees that it will not exercise any rights that it may
now have or hereafter acquire against the Borrower or any other person
that arise from the existence, payment, performance or enforcement of
the Guaranteed Amounts, including without limitation any right of
subrogation, contribution, reimbursement, exoneration or indemnity (or
any similar right) prior to the later of the cash payment in full of
the Guaranteed Amounts and all other amounts payable under this clause
14 and the Final Maturity. If any amount shall be paid to the Guarantor
in violation of the preceding sentence, such amount shall be held in
trust for the benefit of the Lender and shall forthwith be paid to the
Lender to be credited and applied to the Guaranteed Amounts and all
other amounts payable under this clause 14, whether or not due, in
accordance with the terms of the Financing Documents, or be held as
collateral security for any Guaranteed Amounts or other amounts payable
under this clause 14 and thereafter arising. If (i) the Guarantor shall
make payment of all or any part of the Guaranteed Amounts, (ii) all of
the Guaranteed Amounts and all other amounts payable under this clause
14 shall be paid in full in cash and (iii) the Final Maturity shall
have occurred, the Lender will, at the Guarantor's request and expense,
execute and deliver to the Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence
the transfer by subrogation to the Guarantor of an interest in the
Guaranteed Amounts resulting from such payment by the Guarantor.
14.10 INDEMNITY
As a separate, additional and continuing obligation, the Guarantor
unconditionally and irrevocably undertakes with the Lender that, should
the Guaranteed Amounts not be
<PAGE>
recoverable from the Guarantor under clause 14.1 for any reason
whatsoever (including, but without prejudice to the generality of the
foregoing, by reason of any other provision of this Agreement being or
becoming void, unenforceable or otherwise invalid under any applicable
law) then, notwithstanding that it may have been known to the Lender,
the Guarantor shall, as a sole, original and independent obligor, upon
first written demand by the Lender under clause 14.1, make payment of
the Guaranteed Amounts by way of a full indemnity in such currency and
otherwise in such manner as is provided for in this Agreement and shall
indemnify the Lender against all losses, claims, costs, charges and
expenses to which they may be subject or which they may incur under or
in connection with this Agreement.
15 FEES AND EXPENSES
15.1 UPFRONT FEE
The Borrower will pay to the Lender for its own account an upfront fee
in accordance with the terms of a letter dated the Signing Date between
the Borrower and the Lender.
15.2 EXPENSES
The Borrower shall on demand pay, in each case on the basis of a full
indemnity:
(A) to the Lender all reasonable expenses (including legal,
printing, publicity and out-of-pocket expenses) reasonably
incurred by the Lender in connection with the negotiation,
preparation or completion of this Agreement and any related
documents; and
(B) to the Lender all expenses (including legal and out-of-pocket
expenses) incurred by it in connection with any variation,
refinancing, consent or approval relating to the Financing
Documents or incurred by it in connection with the
preservation, enforcement or the attempted preservation or
enforcement of any of their rights under the Financing
Documents or any related documents.
15.3 STAMP DUTY
The Borrower shall pay any stamp, documentary and other similar duties
and taxes to which the Financing Documents or any related documents
(other than an assignment or transfer of the Lender's rights or
obligations hereunder) may be subject or give rise in any relevant
jurisdiction and shall fully indemnify the Lender from and against any
losses or liabilities which any of them may incur as a result of any
delay or omission by the Borrower to pay any such duties or taxes.
15.4 VALUE ADDED TAX
The amounts stated in this Agreement to be payable by the Borrower are
exclusive of United Kingdom value added tax ("VAT") and accordingly:
(A) the Borrower shall pay any VAT properly chargeable in respect
of supplies to the Borrower as contemplated by this Agreement
(including any VAT chargeable by the Lender in respect of its
supplies to the Borrower under this Agreement); and
(B) in the case of goods or services supplied to the Lender as
contemplated by this Agreement, the Borrower shall pay to the
Lender by way of additional remuneration such amount as shall
represent any associated VAT (whether charged by the supplier
<PAGE>
or suffered by reason of the reverse charge provisions
contained in section 8 of the Value Added Tax Act 1994) to the
extent that VAT is not, in the reasonable opinion of the
Lender, otherwise recoverable as input tax.
16. SET OFF
Following an Event of Default, the Lender may at the same time as
providing notice to the Borrower or the Guarantor combine, consolidate
or merge all or any of the Borrower's or Guarantor's accounts with, and
liabilities to, the Lender and may set off or transfer any sum standing
to the credit of any such accounts in or towards satisfaction of any of
the Borrower's or the Guarantor's, as the case may be, liabilities to
the Lender under the Financing Documents, and may do so notwithstanding
that the balances on such accounts and the liabilities may not be
expressed in the same currency and the Lender is hereby authorised to
effect any necessary conversions at the Lender's own rate of exchange
then prevailing.
17. BENEFIT OF AGREEMENT
17.1 TRANSFER BY BORROWERS AND GUARANTORS
Neither the Borrower nor the Guarantor may assign or transfer all or
any part of the rights or obligations hereunder without the prior
written consent of the Lender.
17.2 TRANSFER BY LENDER
The Lender (the "TRANSFEROR") may at any time, with the prior written
consent of the Borrower (such consent not to be unreasonably withheld
or delayed) except in the case of any such transfer to another member
of the group of companies to which the Lender belongs (provided that
the Borrower has confirmed to the Lender that it is satisfied (which
confirmation shall not be unreasonably withheld and shall be deemed to
have been given if the Borrower has failed to respond to a request
therefor within five Business Days of the date of receipt thereof) that
interest payable to the transferee by the Borrower would be a tax
deductible expense of the Borrower), in which case no such consent
shall be required, transfer to any other bank or financial institution
which is a Qualifying Bank (the "TRANSFEREE") the whole or any part of
its rights and/or obligations under the Facility by the execution of a
Transfer Certificate substantially in the form of Schedule 4. For the
avoidance of doubt, any such transfer may be in whole or in part of the
Transferor's Commitment but, if in part, in a minimum amount of
$5,000,000 (unless the Borrower otherwise agrees at its absolute
discretion) and provided that after such transfer such Transferor's
Commitment shall not be less than $5,000,000 (or zero if the whole of
such Transferor's Commitment is transferred). A Transfer Certificate
shall only be valid if it is in writing signed by each of the
Transferor and the Transferee and is contained in one document or two
counterparts.
17.3 TRANSFER CERTIFICATES
(A) Each of the parties hereto agrees that, with effect from the date of
the Transfer Certificate:
(i) the Transferor shall cease to be entitled to the rights and
shall be released from the obligations hereunder which are
specified in the Transfer Certificate;
(ii) the Transferee shall become a party hereto as a Lender
entitled to rights and liable to observe obligations which
differ from those referred to in (i) only insofar as the
Transferee is entitled thereto and liable in respect thereof
in place of the Transferor;
<PAGE>
accordingly, each of the parties hereto confirms that (a) the delivery
by a Transferor to a Transferee of a Transfer Certificate signed by the
Transferor constitutes an irrevocable offer by each of the parties
hereto to accept the Transferee as a Lender party to this Agreement
entitled to such rights and liable to observe such obligations as are
mentioned in (ii) above, (b) such offer may be accepted by the
execution of the Transfer Certificate by the Transferee and (c) the
provisions of this Agreement shall apply to the contract between the
parties hereto arising from the acceptance of such offer.
17.4 TRANSFEREES
Each Transferee shall accept that none of the other parties hereto is
in any way responsible for (a) the accuracy and/or completeness of any
information supplied to the Transferee in connection herewith, (b) the
financial condition, creditworthiness, condition, affairs, status and
nature of the Borrower or the Guarantor or the observance by the
Borrower or the Guarantor of any of its obligations under this
Agreement or any document relating hereto, or (c) the legality,
validity, effectiveness, adequacy or enforceability of this Agreement
or any document relating hereto or thereto and, save as otherwise
expressly provided herein, none of such parties shall, or shall be
deemed to be, the agent or trustee of such Transferee in connection
herewith.
17.5 OFFICE
The Lender shall make the Commitment available from, and may receive
the benefit of any payment due to it under this Agreement at, its
lending office(s) notified to the Borrower on or prior to the date of
this Agreement. The Lender shall give the Borrower prior written notice
of any change in any lending office (which may only be to another
office or other offices in either the United Kingdom or the United
States unless the Borrower and the Lender otherwise agree, such
agreement on the part of the Borrower not to be unreasonably withheld
or delayed).
17.6 CONFIDENTIALITY
The Lender may disclose to a proposed assignee, transferee or
sub-participant such information in its possession relating to the
Borrower and Guarantor as it thinks appropriate but:
(A) any such person must first undertake to the Lender and to the
Borrower to keep such information confidential; and
(B) nothing in this clause 17.6 shall permit the disclosure of any
confidential information which the Borrower specifically
provides in writing should not be disclosed to any person.
17.7 LIMITATION OF INCREASED COSTS
Where the Lender assigns or transfers all or any part of its rights or
obligations hereunder or changes its lending office for the purpose of
this Agreement, the Borrower shall not be liable (other than where such
change in its lending office was requested by the Borrower to pay any
additional amounts under clauses 10.2 or 11.3 due to circumstances
existing on the effective date of such assignment or transfer and which
would not have been payable had no such change, assignment or transfer
taken place.
<PAGE>
17.8 SUB-PARTICIPATIONS
The Lender shall not be required to notify any other party to this
Agreement of a sub-participation of its rights and interests hereunder
provided that nothing in this clause 17.8 gives any sub-participant any
rights against the Borrower or Guarantor. The Borrower shall not be
liable to pay any additional amounts under clause 10.2 or clause 11.3
arising as a direct consequence of any such sub-participation.
18. FURTHER PROVISIONS
18.1 EVIDENCE OF INDEBTEDNESS
In any proceedings relating to this Agreement a statement as to any
amount due to the Lender under this Agreement which is certified as
being correct by an officer of the Lender, shall, unless otherwise
provided in this Agreement, be prima facie evidence that such amount is
in fact due and payable.
18.2 APPLICATION OF MONEYS
If any sum paid or recovered in respect of the liabilities of the
Borrower under this Agreement is less than the amount then due, the
Lender may apply that sum to principal, interest, fees or any other
amount due under this Agreement in such proportions and order and
generally in such manner as the Lender shall determine.
18.3 RIGHTS CUMULATIVE: WAIVERS
The rights of the Lender under this Agreement are cumulative, may be
exercised as often as it considers appropriate and are in addition to
its rights under the general law. The rights of the Lender in relation
to the Facility (whether arising under this Agreement or under the
general law) shall not be capable of being waived or varied otherwise
than by an express waiver or variation in writing; and in particular
any failure to exercise or any delay in exercising any of such rights
shall not operate as a waiver or variation of that or any other such
right; any defective or partial exercise of any of such rights shall
not preclude any other or further exercise of that or any other such
right; and no act or course of conduct or negotiation on their part or
on their behalf shall in any way preclude them from exercising any such
right or constitute a suspension or any variation of any such right.
18.4 NOTICES
Except as otherwise stated herein, all notices or other communications
hereunder to any party hereto shall be deemed to be duly given or made
when delivered (in the case of personal delivery or letter) and when
despatched (in the case of telex or fax) to such party addressed to it
at its address, telex number or facsimile number:
in the case of the Lender, the Borrower and the Guarantor as follows,
or such a party may specify to all the other parties hereto in writing
from time to time:
The Lender HSBC Bank plc
27-32 Poultry
London EC2P 2BX
Facsimile No: 0207 260 4800/5310
Attention: Timothy J Coffey
<PAGE>
The Borrower WPP Pearls Limited
27 Farm Street
London W1X 6RD
Facsimile No: 0207 4918417
Attention: Company Secretary
The Guarantor WPP Group plc
27 Farm Street
London W1X 6RD
Facsimile No: 0207 491 8417
Attention: Company Secretary
18.5 ENGLISH LANGUAGE
All notices or communications under or in connection with this
Agreement shall be in the English language or, if in any other
language, accompanied by a translation into English. In the event of
any conflict between the English text and the text in any other
language, the English text shall prevail.
18.6 INVALIDITY OF ANY PROVISION
If any of the provisions of this Agreement becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
18.7 COUNTERPARTS
This Agreement may be executed in any number of counterparts, and such
execution shall have the same effect as if the signatures on the
counterparts were on a single copy of this Agreement.
18.8 CHOICE OF LAW
This Agreement is governed by, and shall be construed in accordance
with, the laws of England.
18.9 SUBMISSION TO JURISDICTION
(A) (i) For the benefit of the Lender, all the parties agree that
the courts of England are to have jurisdiction to settle any
disputes which may arise in connection with the legal
relationships established by this Agreement (including,
without limitation, claims for set-off or counterclaim) or
otherwise arising in connection with this Agreement.
(ii) The Borrower and the Guarantor irrevocably waive any
objections on the ground of venue or forum non conveniens or
any similar grounds.
(iii) The Borrower and the Guarantor irrevocably consent to service
of process by mail or in any other manner permitted by the
relevant law.
<PAGE>
18.10 CHANGE OF CURRENCY
(A) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank of
any country as the lawful currency of that country, then:
(i) any reference in the Financing Documents to, and any
obligations arising under the Financing Documents in, the
currency of that country shall be translated into, or paid in,
the currency or currency unit of that country designated by
the Lender; and
(ii) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency
unit into the other, rounded up or down by the Agent (acting
reasonably).
(B) If a change in any currency of a country occurs, this Agreement will,
to the extent the Lender (acting reasonably) specifies to be necessary
be amended to comply with any generally accepted conventions and market
practice in the relevant interbank market and otherwise to reflect the
change in currency.
Signed by the authorised representatives of the parties.
<PAGE>
SCHEDULE 1
CALCULATION OF MANDATORY COST
(a) The Mandatory Cost for the Advance during each period in respect of
which interest is payable under this Agreement is the rate expressed as
a rate per annum determined by the Lender to be equal to the rate
notified by the Lender and calculated in accordance with the following
formula:
F x 0.01% per annum = Mandatory Cost
---------
300
where on the day of application of the formula:
F is the charge payable by the Lender to the Financial Services
Authority under paragraph 2.02 or 2.03 (as appropriate) of the
Fees Regulations but where for this purpose, the figure in
paragraph 2.02b and 2.03b will be deemed to be zero expressed
in pounds per (pound)1 million of the fee base of the Bank.
(b) For the purposes of this Schedule 1:
(i) "FEE BASE" has the meaning given to it in the Fees
Regulations;
(ii) "FEES REGULATIONS" means any regulations governing
the payment of fees for banking supervision.
(c) (i) The formula is applied on the first day of each relevant
period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(d) If the Lender determines that a change in circumstances has rendered,
or will render, the formula inappropriate, the Lender shall notify the
Borrower of the manner in which the Mandatory Cost will subsequently be
calculated. The manner of calculation so notified by the Lender shall,
in the absence of manifest error, be binding on all of the Borrower,
the Guarantor and the Lender.
<PAGE>
SCHEDULE 2
CREDIT REQUEST IN RESPECT OF ADVANCES
To: [*the Lender] Date: [* ], [20 [* ]]
Dear Sirs,
TERM LOAN AGREEMENT DATED 14TH JANUARY, 2000
DRAWING NUMBER: [* ]
1. We refer to clause 4 of the Term Loan Agreement. Terms defined in the
Term Loan Agreement have the same meanings in this Credit Request.
2. We wish to borrow the Advance with the following specifications:
(a) Drawing Date: [* ] [20[* ]]
(b) Amount: [* ]
(c) Interest Period: [* ]
(d) Payment Instructions: [* ]
3. We confirm that the matters represented and warranted by the Borrower
and the Guarantor set out in clause 8.2 of the Term Loan Agreement are
true and accurate on the date of this Credit Request as if made with
reference to the facts and circumstances now prevailing and that no
Event or Default or Potential Event or Default has occurred and is
continuing or would result from the Credit.
Yours faithfully,
[Authorised Signatory]
for and on behalf of
[Borrower]
<PAGE>
SCHEDULE 3
CERTIFICATE
[Letterhead of Borrower/Guarantor]
To: [*the Lender]
I [*name], the [Secretary] of [*name of Borrower/Guarantor] of [*address] (the
"Company")
HEREBY CERTIFY that:
(i) attached hereto marked "A" are true and correct copies of all documents
which contain or establish or relate to the constitution of the
Company;
(ii) attached hereto marked "B" is a true and correct copy of [resolutions
duly passed] at [a meeting of the Board of Directors] of the Company
duly convened and held on [ ] 20[* ] approving the Term Loan Agreement
to be entered into between (1) WPP Pearls Limited, (2) WPP Group plc
and (3) [*the Lender] and authorising its signature, delivery and
performance and such resolutions have not been amended, modified or
revoked and are in full force and effect; and
The following signatures are the true signatures of the persons who have been
authorised to sign the Term Loan Agreement and to give notices and
communications, including notices of drawing, under or in connection with the
Term Loan Agreement.
<TABLE>
<CAPTION>
Name Position Signature
<S> <C>
* *
* *
* *
</TABLE>
Signed: ......................
[Secretary]
""""""""""""""
<PAGE>
SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
To: [*the Lender]
TRANSFER CERTIFICATE
relating to a Term Loan Agreement (the "TERM LOAN AGREEMENT") dated 14th
January, 2000 and made between (1) WPP Pearls Limited, (2) WPP Group plc, and
(3) the Lender. Terms defined in the Term Loan Agreement have the same meanings
herein.
1. [Transferor Lender] (the "LENDER") (a) confirms that to the extent that
details appear in the Schedule hereto against, as the case may be, the
heading "LENDER'S COMMITMENT" and/or "Lender's Participation", such
details accurately summarise, as the case may be, its participation in
the Facility and (b) requests [Transferee Lender] (the "TRANSFEREE") to
accept and procure the transfer to the Transferee of the portion
specified in the Schedule of, as the case may be, its participation in
the Facility by counter-signing and delivering this Transfer
Certificate to the Lender at its address for the service of notices
specified in the Term Loan Agreement.
2. The Transferee confirms that it has received a copy of the Term Loan
Agreement together with such other documents and information as it has
required in connection with this transaction and that it has not relied
and will not hereafter rely on the Lender to check or enquire on its
behalf into the execution, validity, enforceability, effectiveness,
adequacy, accuracy or completeness of any such documents or information
and further agrees that it has not relied and will not rely on the
Lender to assess or keep under review on its behalf the financial
condition, credit worthiness, affairs, status or nature of the Borrower
or of any other party to the Term Loan Agreement.
3. The Transferee hereby undertakes with the Lender and each of the other
parties to the Term Loan Agreement that it will perform in accordance
with their terms all those obligations which by the terms of the Term
Loan Agreement will be assumed by it upon execution of this Transfer
Certificate and satisfaction of the conditions (if any) subject to
which this Transfer Certificate is expressed to take effect.
5. The Transferee confirms as follows:
(A) it will be beneficially entitled to its rights to principal
and interest under the Agreement; and
(B) it is a Qualifying Bank as at the date of the transfer.
6. The Lender makes no representation or warranty and assumes no
responsibility with respect to the execution, validity, enforceability,
effectiveness or adequacy of the Term Loan Agreement or any document
relating thereto and assumes no responsibility for the financial
condition of the Borrower or the Guarantor or for the performance and
observance by the Borrower or the Guarantor or any other such party of
any of its obligations under the Term Loan Agreement or any document
relating thereto and any and all such conditions and warranties,
whether express or implied by law or otherwise, are hereby excluded.
<PAGE>
7. The Lender hereby gives notice to the Transferee (and the Transferee
hereby acknowledges and agrees with the Lender) that the Lender is
under no obligation to purchase (or in any other manner to assume,
undertake or discharge any obligation or liability in relation to) the
portion transferred and referred to in the Schedule at any time after
this Transfer Certificate shall have taken effect.
8. Following the date upon which this Transfer Certificate shall have
taken effect, without limiting the provisions hereof, each of the
Transferee and the Lender hereby acknowledges and confirms to the other
that in relation to the portion transferred and referred to in the
Schedule variations, amendments or alterations to any of the terms of
any of the Term Loan Agreement and the Financing Documents arising in
connection with any renegotiation or rescheduling of the obligations
hereunder shall apply to and be binding on the Transferee alone.
9. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law.
<PAGE>
THE SCHEDULE
LENDER'S COMMITMENT PORTION TRANSFERRED
Facility Commitment
LENDER'S PARTICIPATION
<TABLE>
<CAPTION>
AMOUNT TERM PORTION TRANSFERRED
<S> <C> <C>
[Transferor Lender] [Transferee Lender]
Address:
Telex:
By: By:
Date: Date:
</TABLE>
<PAGE>
SIGNATORIES
THE BORROWER
WPP PEARLS LIMITED
By: Paul Richardson
THE GUARANTOR
WPP GROUP PLC
By: Paul Richardson
THE LENDER
HSBC BANK PLC
By: Alan O Thomas
<PAGE>
DATED 14TH JANUARY, 2000
WPP PEARLS LIMITED
(as Borrower)
WPP GROUP PLC
(as Guarantor)
THE ROYAL BANK OF SCOTLAND PLC
(as Lender)
---------------------------------------
TERM LOAN AGREEMENT
----------------------------------------
ALLEN & OVERY
London
BK:713439.2
<PAGE>
CONTENTS
<TABLE>
<CAPTION>
CLAUSES PAGE
<S> <C>
1. Interpretation............................................................1
2. Amount and Purpose of the Facility........................................7
3. Conditions Precedent......................................................7
4. Utilisation of Facility...................................................8
5. Interest..................................................................8
6. Repayment.................................................................9
7. Prepayment and Cancellation..............................................10
8. Representations and Warranties...........................................10
9. Undertakings.............................................................12
10. Changes in Circumstances.................................................18
11. Payments.................................................................20
12. Default..................................................................23
13. Indemnity................................................................25
14. Guarantee................................................................26
15 Fees and Expenses........................................................29
16. Set Off..................................................................30
17. Benefit of Agreement.....................................................30
18. Further Provisions.......................................................32
SCHEDULES
1. Calculation of Mandatory Cost............................................35
2. Credit Request in respect of Advances....................................36
3. Certificate..............................................................37
4. Form of Transfer Certificate.............................................38
SIGNATORIES ..................................................................41
</TABLE>
<PAGE>
THIS AGREEMENT is made the 14th day of January, 2000.
BETWEEN:
1. WPP PEARLS LIMITED of 27 Farm Street, London, W1X 6RD as borrower (the
"BORROWER");
2. WPP GROUP PLC of 27 Farm Street, London W1X 6RD as guarantor (the
"GUARANTOR"); and
3. THE ROYAL BANK OF SCOTLAND PLC acting through its Corporate and
Institutional Department of Waterhouse Square, 138-142 Holborn, London EC1N
2TH as lender (the "LENDER").
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement each of the following expressions has, except where the
context otherwise requires, the meaning shown opposite it:
"ACCOUNTS RECEIVABLE FACILITY" means the receivables purchase facility in
an amount, on 3rd July, 1998, of up to $350,000,000 under the pooling and
servicing agreement dated 3 December, 1993 between Capital III Corp. as the
seller, WPP Group USA Inc., as the servicer and Mellon Bank N.A., as the
Trustee together with all related transaction documents as amended,
increased, restated, extended, refinanced or replaced from time to time;
"ACQUISITION" means the acquisition directly or indirectly (whether by one
transaction or by a series of related transactions) of any interest
whatsoever in the share capital (or equivalent) or the business or
undertaking, or assets constituting a substantial part of the business or
undertaking, of any company or other person other than a member of the
Group;
"ACQUISITION CASH LIMIT" means in relation to any financial year, an amount
equal to the aggregate of:
(i) $500,000,000; and
(ii) the amount by which Acquisition Cash Payments made in the preceding
financial year fall short of the Acquisition Cash Limit for the
preceding financial year but subject to a maximum amount equal to 20%
of the Acquisition Cash Limit for that preceding financial year;
"ACQUISITION CASH PAYMENT" means in relation to any financial year, any
cash consideration in respect of an Acquisition (other than by way of
assumption of debt not issued in contemplation of that Acquisition) paid by
a member of the Group in that year, whether at the time of Acquisition or
on a deferred basis pursuant to an Acquisition made prior to that financial
year and including (i) cash payable upon redemption of preferred stock
issued by way of consideration for any Acquisition and (ii) cash Earn-out
Payments (but does not include cash raised by way of issuance of shares by
a member of the Group for the purpose of or in connection with the
Acquisition);
<PAGE>
"ADVANCE" means the amount made available to the Borrower hereunder in
respect of the Facility by way of one advance (subject to clause 5.3) or
the principal amount thereof for the time being outstanding;
"APPLICABLE ACCOUNTING PRINCIPLES" means accounting principles and
practices which at the Signing Date are generally accepted in the United
Kingdom;
"AVAILABILITY PERIOD" means the period commencing on the Signing Date and
ending at the close of business in New York on the Final Drawing Date;
"BACK TO BACK LOAN" means any loan or other financial accommodation made
available to a member of the Group to the extent that the creditor:
(a) has recourse directly or indirectly to a deposit of cash or cash
equivalent investments beneficially owned by any member of the Group
placed, as part of a related transaction, with that creditor (or an
affiliate of that creditor) or a financial institution approved by
that creditor on the basis that the deposit be available, directly or
indirectly or
(b) has granted a sub-participation, risk participation or similar
arrangement,
so as to reduce the economic exposure of the creditor to the Group, when
looking at the related transactions together, to a net amount;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which banks
are open in London and New York City for the transaction of business
of the nature required by this Agreement;
"COMMITMENT" means $37,500,000 as reduced or cancelled from time to time in
accordance with this Agreement;
"CREDIT" means the Advance issued under the Facility;
"CREDIT REQUEST" means a notice of drawing substantially in the form set
out in Schedule 2 duly completed and signed in each case by the Borrower;
"DOLLARS AND $" means the lawful currency of the United States of America;
"DRAWING DATE" means the Business Day upon which the Credit is to be made
available;
"EARN-OUT PAYMENT" means any payment made or to be made to a former
shareholder in a Subsidiary pursuant to arrangements made in connection
with the acquisition of such Subsidiary by any member of the Group and
related to the performance of that Subsidiary , including any payment in
respect of loan notes issued to such former shareholder in connection with
the said acquisition but excluding payments under Employee Incentive Plans;
"ELIGIBLE COMPANY" means any of the Borrower and any other Subsidiary;
"EMPLOYEE INCENTIVE PLAN" means any arrangement entered into by any member
of the Group (other than Earn-out Payments) for the payment for services,
acquisition or purchase of shares, warrants or other equity linked
instruments of any kind (or options for any of the foregoing) or similar
arrangements from any person (or any entity on behalf of or ultimately for
the benefit of that person) primarily for the purpose of incentivising or
compensating that person for services to any member of the Group in the
nature of services of employment;
<PAGE>
"EVENT OF DEFAULT" means any of the events mentioned in clause 12.1;
"EXCEPTIONAL ITEMS" has the meaning given to it in the Applicable
Accounting Principles but shall exclude any items falling within the
definition of Extraordinary Items;
"EXTRAORDINARY ITEMS" has the meaning given to it in the Applicable
Accounting Principles;
"FACILITY" means the facility, the terms and conditions of which are set
out in this Agreement;
"FINAL MATURITY" means one year less one day from the Signing Date;
"FINAL DRAWING DATE" the date falling 14 days after the Signing Date;
"FINANCING DOCUMENTS" means this Agreement and any other document
designated as such by the Lender and the Borrower in writing;
"GROUP" means the Guarantor, the Borrower and the Subsidiaries;
"GUARANTEED AMOUNTS" means any and all amounts whatsoever (including,
without limitation, interest after the filing of a petition initiating a
proceeding referred to in clause 12.1(F), whether or not such interest
constitutes an allowed claim for the purposes of such proceeding) which are
to be paid by the Borrower to the Lenderunder the Financing Documents;
"HOLDING COMPANY" has the meaning ascribed to it in Section 736 of the
Companies Act 1985;
"INTEREST PAYMENT DATE" means for any Advance, the last day of an Interest
Period and for any Interest Period longer than six months the date falling
six months after the first day of such Interest Period and the last day of
such Interest Period;
"INTEREST PERIOD" means for any Advance, the period determined in
accordance with clause 5.2;
"L", "POUNDS" and "STERLING" means the lawful currency of the United
Kingdom of Great Britain and Northern Ireland;
"MANDATORY COST" means the cost to the Lender of compliance with the
banking supervision or other costs imposed by the Financial Services
Authority during each period in respect of which interest is payable under
this Agreement expressed as a rate per annum and determined in accordance
with Schedule 1;
"MARGIN" has the meaning given thereto in clause 5.1;
"MATERIAL SUBSIDIARY" means at any time, a Subsidiary whose consolidated
revenues are at least 5% of the aggregate of the total consolidated
revenues of all members of the Group. For this purpose:
(i) in the case of a company which itself has subsidiaries, the
calculation shall be made by using the consolidated revenues of it and
its subsidiaries;
(ii) the calculation of consolidated revenues shall be made by reference
to:
<PAGE>
(a) the accounts of the relevant Subsidiary (consolidated where
necessary) used for the purpose of the most recent audited
consolidated accounts of the Borrower; and
(b) the accounts of each member of the Group used for the purpose of
those audited consolidated accounts of the Borrower;
"OUTSTANDINGS" means all amounts for the time being outstanding under the
Facility;
"POTENTIAL EVENT OF DEFAULT" means any event which with the giving of
notice, expiry of any grace period or satisfaction of any other condition
specified in clause 12.1 would constitute an Event of Default;
"QUALIFYING BANK" means a bank as defined in section 840A of the Income and
Corporation Taxes Act 1988 (as in force at the date of this Agreement),
which is within the charge to U.K. corporation tax as regards any interest
received by it under this Agreement.
"RATIO CERTIFICATE" means the certificate referred to in clause 9.5(B);
"SECURITY INTEREST" means any mortgage, charge, pledge, lien or other
security interest;
"SIGNING DATE" means the date of signature of this Agreement;
"SUBSIDIARY" means a subsidiary for the time being of the Guarantor and
"SUBSIDIARIES" shall refer to all such subsidiaries;
"TRANSFER CERTIFICATE" means a certificate substantially in the form of
Schedule 4 delivered by a Lender to the Facility Agent pursuant to clause
17.3; and
"U.S. SUBSIDIARY" means a Subsidiary incorporated under the laws of any
State in the United States of America.
1.2 FINANCIAL DEFINITIONS
In this Agreement the following expressions have the following meanings:
"BORROWINGS" means:
(A) moneys borrowed or raised (including, without limitation, amounts
advanced under the Accounts Receivable Facility and any accounts
receivable facility entered into on or after 3rd July 1998);
(B) any liability under any bond, bill discounting facility, debenture,
note or other similar debt security or under acceptance credit or note
purchase facilities, letter of credit, subordinated debt or any amount
raised pursuant to an issue of shares which are expressed to be
redeemable (in cash or in instruments which would themselves
constitute Borrowings) on or prior to Final Maturity;
(C) any liability in respect of the acquisition cost of assets or services
to the extent payable more than 120 days before or after the time of
acquisition or possession thereof by the party liable but excluding
any bona fide performance related cash consideration payable under
Employee Incentive Plans or for an Acquisition
<PAGE>
calculated by reference to future profits in accordance with the
current practice of the Group as at 3rd July, 1998;
(D) the capital element of rentals payable under finance leases (required
to be disclosed in accordance with S.S.A.P. 21) entered into primarily
as a method of raising finance or financing the acquisition cost of
the asset in question; and
(E) any guarantee or other assurance against financial loss in respect of
any indebtedness of the type specified in paragraphs (A) to (D) above
(including any obligation to counter-indemnify any person in respect
of the provision of any such guarantee (but only to the extent that
Borrowings supported thereby are outstanding);
but:
(i) indebtedness owing or shares issued by one member of the Group
to another member of the Group shall not be taken into account
as Borrowings;
(ii) interest (other than interest which is capitalised and which
itself bears interest), acceptance commission and finance
charges shall be excluded;
(iii) Trade Debt and Back to Back Loans shall be excluded;
(iv) no indebtedness shall be taken into account more than once (so
that, for example, a guarantee shall be excluded to the extent
that the indebtedness guaranteed thereby is taken into account);
and
(v) the obligations of any member of the Group in respect of any
media guarantee issued otherwise than pursuant to this Agreement
shall not be taken into account unless such media guarantee has
been called upon in any way;
"CONSOLIDATED EBITDA" means in respect of any financial period the Relevant
Operating Profit of the Group for such financial period:
(i) before deducting all depreciation and other amortisation and
write-downs, including but not limited to, goodwill amortisation and
brand write-downs;
(ii) before taking into account all Extraordinary Items and Exceptional
Items (in each case whether positive or negative);
(iii) after deducting any gain over, and adding back any losses under, book
value (including related goodwill) arising on the sale, lease or
other disposal of any asset (other than on the sale of trading stock)
during such period and any gain or loss arising on revaluation of
any asset during such period, in each case to the extent that it
would otherwise be taken into account, whether as an Exceptional
Item or otherwise;
and for the purposes of the foregoing no item shall be effectively deducted
or credited more than once in this calculation, all as determined on a
consolidated basis by reference to the most recent financial statements and
certificates delivered pursuant to clause 9.2(A) and (B);
"FINANCIAL PERIOD" shall refer to each period of 12 months ending on 30th
June and 31st December in each year;
<PAGE>
"INTEREST COVER RATIO" for any financial period in respect of the Group
means (A) the aggregate of (1) Consolidated EBITDA and (2) Interest
Receivable in relation to (B) Interest Expense;
"INTEREST EXPENSE" means, in respect of any financial period, (A) the
amount of interest (or equivalent consideration) accrued (on a consolidated
basis) for or by way of interest or equivalent consideration on the
Advances and other Borrowings of the Group as a whole including any
interest or similar consideration paid or accrued or discounts given in
respect of the sale or financing of Group accounts receivables and the
amount of payments made under interest rate swap and cap agreements and
similar interest rate hedging arrangements made by the Group as a whole
(but excluding commitment fees, management fees, banking arrangement fees,
agent's administration and participation fees (including those payable
hereunder)) determined in accordance with accounting principles generally
accepted under United Kingdom accounting standards, consistently applied
less (B) the amount of payments from counterparties under interest rate
swap and cap agreements and similar interest rate hedging arrangements
receivable or received by the Group in respect of that period;
"INTEREST RECEIVABLE" means, in respect of any financial period, interest
income accrued during that period on financial deposits and similar assets
of the Group on a consolidated basis;
"RELEVANT OPERATING PROFIT" means, in respect of any financial period, the
consolidated operating profits of the Group, as disclosed in or derived
from the published or announced financial results of the Group;
"TRADE DEBT" means:
(a) obligations of any member of the Group to pay the purchase price of
assets or services purchased by any member of the Group in the
ordinary course of business including, without limitation,
indebtedness incurred by any member of the Group in respect of any
documentary letter of credit, bill of exchange or promissory note
issued in respect of any such purchase;
(b) indebtedness incurred by any member of the Group in respect of any
bill of exchange or promissory note drawn on or by, or accepted,
issued or endorsed by, any member of the Group in the ordinary course
of business, including, without limitation, indebtedness in respect of
any moneys raised by way of sale, discounting or otherwise in respect
of any such bill or note; and
(c) indebtedness incurred by any member of the Group in respect of any
guarantee, indemnity, counter-indemnity or other assurance against
financial loss or indebtedness of the type specified in paragraph (a)
or (b) above,
except to the extent that any indebtedness falling within paragraphs (a) to
(c) above is treated as borrowings under accounting principles generally
accepted under United Kingdom accounting standards, consistently applied.
1.3 CONSTRUCTION
(A) Except where the context otherwise requires, any reference in this
Agreement to:
any of the Financing Documents (including this Agreement) is to such
Financing Document as it may be altered, amended, supplemented or novated
from time to time;
<PAGE>
an "AGREEMENT" also includes a concession, contract, deed, franchise,
licence, treaty or undertaking (in each case, whether oral or written);
the "ASSETS" of any person shall be construed as a reference to the whole
or any part of its business, undertaking, property, assets and revenues
(including any right to receive revenues);
a "MONTH" is to a calendar month;
"SUBSIDIARY" has the meaning ascribed thereto by section 736 Companies Act
1985 as amended, modified, replaced or re-enacted from time to time;
words and expressions (including defined words and expressions) importing
the singular include the plural and vice versa, those importing the
masculine gender include the feminine and vice versa, and references to
persons include references to companies and corporations and vice versa;
and
a "TIME" is to London time.
(B) Headings, sub-headings and the table of contents are for ease of reference
only.
2. AMOUNT AND PURPOSE OF THE FACILITY
2.1 AMOUNT
The maximum amount for which the Facility is available is $37,500,000.
2.2 PURPOSE
(a) The Facility shall be used for general corporate purposes including
the refinancing of the $150,000,000 revolving facility agreement dated
15th October, 1999 arranged by Barclays Bank PLC.
(b) Without prejudice to paragraph (a) above and the remaining provisions
of this Agreement the Lender shall not be bound to enquire as to, nor
shall it be responsible for, the application by the Borrower of the
proceeds of the Advance.
3. CONDITIONS PRECEDENT
3.1 CONDITIONS TO THE FACILITY
The obligations of the Lender under this Agreement are subject to the
Lender having received the following in each case in form and content
satisfactory to it, that is to say:
(A) a certificate in respect of the Borrower and the Guarantor signed by
an officer of the Borrower and the Guarantor respectively
substantially in the form set out in Schedule 3 and the documents
therein referred to; and
(B) a certificate of a director of the Guarantor confirming that
utilisation in full of the Facility in accordance with its terms would
not cause any borrowing limit on the Borrower or the Guarantor to be
exceeded.
<PAGE>
3.2 CONDITIONS TO UTILISATION
Utilisation of the Facility is subject to the further conditions precedent
that both on the date of the Credit Request and on the relevant Drawing
Date:
(A) no Event of Default or Potential Event of Default has occurred and is
continuing or would occur as a result of making the Credit available
or permitting the utilisation; and
(B) each of the warranties deemed to be repeated in clause 8 remains
accurate in all material respects at the Drawing Date as if given on
that date by reference to the facts and circumstances then existing.
4. UTILISATION OF FACILITY
4.1 ADVANCE
Subject to the terms of this Agreement, the Borrower may on a Business Day
during the Availability Period draw the Advance under the Facility by
delivering to the Lender no later than 3.00 p.m. on the third Business Day
prior to the proposed Drawing Date a duly completed Credit Request in the
form set out in Schedule 2, specifying in respect of the proposed Advance:
(A) the proposed Drawing Date, which shall be a Business Day falling on or
prior to the Final Drawing Date; and
(B) the amount of the Advance which shall be an amount of not less than
$5,000,000 and an integral multiple of $1,000,000 thereafter or such
other multiple as the Lender and the Borrower may agree and which
shall not in any event at the time immediately preceding the Advance
exceed the Commitment.
4.2 IRREVOCABILITY
A Credit Request shall be irrevocable and, subject to the terms of this
Agreement, the Borrower shall draw the Advance on the Drawing Date
specified in the Credit Request.
5. INTEREST
5.1 MARGIN
The Margin for any Interest Period shall be 0.40 per cent. per annum.
5.2 DURATION OF INTEREST PERIODS
(A) The Interest Period in respect of the Advance shall be one month unless not
later than 3.00 p.m. on the third Business Day before the first day of an
Interest Period the Lender has received from the Borrower a notice
selecting one, two, three, four, five or six months or such other period as
has been agreed with the Lender.
(B) The Interest Period for the Advance shall commence on the date of that
Advance.
<PAGE>
(C) An Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day in that calendar
month (if there is one) or the preceding Business Day (if there is not).
(D) No Advance shall have an Interest Period ending after the Final Maturity.
(E) The Borrower and the Lender may enter into such other arrangements as they
may agree for the consolidation or splitting of Advances and Interest
Periods.
5.3 NUMBER OF INTEREST PERIODS FOR FACILITY
Subject to clause 5.2(E), the Borrower may, in the notice referred to in
clause 5.2(A), elect to split the Advance into two or more Advances having
different Interest Periods, notwithstanding that under the provisions of
this Agreement the Borrower may only drawdown a single advance under the
Facility.
5.4 RATE OF INTEREST FOR FACILITY
The rate of interest payable on the Advance under the Facility for each
Interest Period shall be the rate per annum determined by the Lender to be
the aggregate of:
(A) the Margin; and
(B) (i) the arithmetic mean (rounded to five decimal places with the
mid-point rounded up) of the offered quotations in dollars for
the required period which appear on the display for dollars on
page 3740 or page 3750 of Telerate (or such other page as may
replace such pages on such system for the purpose of displaying
London Interbank Offered Rates of leading banks) as at 11.00
a.m. on the second Business Day before the commencement of that
Interest Period; or
(ii) if no such display rate is then available for dollars, the rate
quoted by the Lender for the same period as that Interest Period
to prime banks in the London Interbank Market at or about 11.00
a.m. on the second Business Day before the commencement of that
Interest Period; and
(C) the Mandatory Cost (if any).
5.5 PAYMENT OF INTEREST ON ADVANCES
Interest shall be calculated on the basis of actual days elapsed (not
counting within an Interest Period the last day of that Interest Period)
and a year of 360 days and shall be paid on the Advance by the Borrower to
the Lender in arrears on the Interest Payment Date in dollars.
5.6 LENDER'S CERTIFICATE
In respect of the Advance the Lender shall notify the Borrower of the rate
of interest as soon as it is determined under this Agreement. The
certificate of the Lender as to a rate of interest shall, in the absence of
manifest error, be conclusive.
6. REPAYMENT
The Borrower shall repay the Advance in full together with any outstanding
interest that has
<PAGE>
accrued pursuant to clause 5 (Interest) and any other amounts owed to the
Lender under this Facility on Final Maturity.
7. PREPAYMENT AND CANCELLATION
7.1 VOLUNTARY PREPAYMENT
(A) The Borrower may, without premium, prepay the Advance made to it in whole
or in part (but, if in part, in an aggregate minimum amount of $5,000,000
and an integral multiple of $1,000,000 or such other minimums and multiples
in the currency concerned as the Lender and Borrower may agree), provided
that the Borrower has given the Lender not less than ten days' prior notice
stating the principal amount of the Advance to be prepaid.
(B) Any prepayment under this clause 7.1 shall be made together with accrued
interest and all other amounts due under this Agreement in respect of the
prepayment.
7.2 CANCELLATION OF FACILITY
The Borrower may, without premium, cancel the undrawn part of the Facility
(in respect of which no Credit Request has been served), in whole or in
part (being in a minimum amount of $5,000,000 and an integral multiple of
$1,000,000) provided that it has given the Lender not less than ten days'
prior written notice stating the principal amount to be cancelled. During
such ten day period the Borrower may not purport to draw or utilise all or
any part of the amount the subject of such notice of cancellation.
7.3 IRREVOCABILITY
Any notice under clause 7.1 or 7.2 shall be irrevocable. The amount of any
prepayment shall become due and payable on the applicable date. No amount
cancelled under clause 7.1 or 7.2 may subsequently be reinstated.
7.4 CURRENCY
Prepayment shall be made in dollars .
8. REPRESENTATIONS AND WARRANTIES
8.1 ON SIGNING
The Borrower and the Guarantor acknowledge that the Lender has entered into
the Financing Documents in full reliance on representations by the Borrower
and the Guarantor in the following terms; and the Borrower and the
Guarantor warrant to the Lender in respect of itself, and the Guarantor
warrants to the Lender in respect of itself and of the Borrower that as of
the Signing Date:
(A) STATUS: it is duly incorporated with limited liability and validly
existing under the laws of its place of incorporation;
(B) POWERS AND AUTHORISATIONS: the documents which contain or establish
its constitution include provisions which give power, and all
necessary corporate authority has been obtained and action taken, for
it to own its assets, carry on its business and operations as they are
now being conducted, and sign and deliver, and perform the
transactions contemplated in, the Financing Documents to which it is a
<PAGE>
party and the Financing Documents to which it is a party constitute
valid and binding obligations of it enforceable in accordance with
their terms subject to general equitable principles, insolvency,
liquidation and other laws affecting creditors' rights generally;
(C) NON-VIOLATION: neither the signing and delivery of the Financing
Documents to which it is a party nor the performance of any of the
transactions contemplated in any of them does or will contravene or
constitute a default under, or cause to be exceeded any limitation on
it or the powers of its directors imposed by or contained in, (i) any
law by which it or any of its assets is bound or affected, (ii) any
document which contains or establishes its constitution, or (iii) any
agreement to which it is a party or by which any of its assets is
bound which has had or would be reasonably likely in any such case
materially and adversely to affect its ability to observe and perform
its obligations under the Financing Documents;
(D) CONSENTS: no authorisation, approval, consent, licence, exemption,
registration, recording, filing or notarisation and no payment of any
duty or tax and no other action whatsoever which has not been duly and
unconditionally obtained, made or taken is necessary or desirable to
ensure the validity or enforceability of the liabilities and
obligations of it or the rights of the Lender under the Financing
Documents;
(E) NO DEFAULT:
(i) no Event of Default has occurred which is continuing under this
Agreement; and
(ii) no event has occurred which constitutes a contravention of, or
default in any material respect under, any agreement or
instrument (other than the Financing Documents) by which it or
any of its assets is bound or affected, being a contravention or
default which has had or would be reasonably likely either to
have a material adverse effect on the business, assets or
consolidated financial condition of the Group as a whole or
materially and adversely affects the ability of the Borrower and
the Guarantor as a whole to observe or perform their obligations
under the Financing Documents;
(F) LITIGATION: no litigation, arbitration or administrative proceeding or
claim in which there is a reasonable possibility of an adverse
decision which has had or would be reasonably likely by itself or
together with any other such proceedings or claims either (i) to have
a material adverse effect on the business, assets or consolidated
financial condition of the Group as a whole or (ii) materially and
adversely to affect the ability of the Borrower and the Guarantor as a
whole to observe or perform their obligations under any Financing
Documents or (iii) to impair the validity or enforceability of this
Agreement or any other Financing Document, is presently in progress or
pending or, to the knowledge of the Borrower or the Guarantor,
threatened against any member of the Group or any of their assets;
(G) ACCOUNTS: the audited consolidated financial statements (including the
profit and loss, cash flow statement and balance sheet) of the Group
for the year ended 31st December, 1998 have been prepared on a basis
consistently applied in accordance with generally accepted accounting
principles and practices in England and Wales and give a true and fair
view of the results of the operations of the Group for that year and
the state of the affairs of the Group at that date: since that date
there has been no
<PAGE>
material adverse change in the consolidated financial condition of the
Group as shown in such statements;
(H) INVESTMENT COMPANY ACT: none of the Borrower, the Guarantor or their
respective subsidiaries is an "investment company" or an "affiliated
person" or, "promoter" or "principal underwriter" for an "investment
company" within the meaning of the United States Investment Company
Act of 1940, as amended; and
(I) PUBLIC UTILITY HOLDING COMPANY ACT: none of the Borrower or the
Guarantor is a holding company or a subsidiary company of a holding
company or an affiliate of a holding company or of a subsidiary
company of a holding company within the meaning of the United States
Public Utility Holding Company Act of 1935, as amended.
8.2 AFTER SIGNING
The Borrower and the Guarantor shall be deemed to represent and warrant in
respect of itself, and the Guarantor shall be deemed to warrant in respect
of itself and the Borrower, to the Lender on the Drawing Date, with
reference to the facts and circumstances then subsisting, that each of the
representations and warranties contained in paragraphs (A), (B), (C), (E),
(H) and (I) remains correct.
9. UNDERTAKINGS
9.1 DURATION
The undertakings in this clause shall remain in force from so long as any
amount is or may be outstanding under the Facility or the Commitment is in
force.
9.2 INFORMATION
The Borrower and the Guarantor will furnish or procure to be furnished to
the Lender:
(A) as soon as practicable (and in any event within 180 days after the
close of each of the Guarantor's financial years) the audited
consolidated accounts of the Group for that year;
(B) as soon as practicable (and in any event within 90 days of the end of
each half year of the Guarantor's financial year) the published
unaudited interim consolidated accounts of the Group;
(C) together with the statements specified in paragraph (A) above, a
certificate signed by any one of the Group Finance Director and the
Chief Executive of the Guarantor (or the equivalent from time to time)
without personal liability as to whether the consolidated revenues for
that financial year of any operating Subsidiary shall have exceeded 5%
of the consolidated revenues of the Group for that financial year
(and, if so, identifying the Subsidiary or Subsidiaries concerned);
(D) promptly, all notices, other documents or information despatched by
the Guarantor to its shareholders generally (or any class thereof) or
its creditors generally (or any class thereof);
<PAGE>
(E) promptly, such further information in the possession or control of the
Borrower, the Guarantor or of any of their respective Material
Subsidiaries regarding the financial condition or operations of the
Borrower, the Guarantor or any of their respective Material
Subsidiaries, as the Lender may reasonably request; and
(F) details of any litigation, arbitration or administrative proceedings,
which, if adversely determined, would be reasonably likely to have a
material adverse effect on the business, assets or consolidated
financial condition of the Group as a whole or materially and
adversely to affect the ability of the Borrower or the Guarantor to
observe or perform its obligations under the Financing Documents and
which affect the Borrower or the Guarantor or the Group as a whole, as
soon as the same are instituted, or, to the knowledge of the Borrower
or the Guarantor, are threatened.
All accounts and statements required under this clause shall be prepared in
accordance with Applicable Accounting Principles consistently applied and
shall give a true and fair view of the state of affairs of the Group and of
the profit and cash flows of the Group and in the case of unaudited
accounts and statements shall be prepared in a manner which is consistent
with the audited consolidated accounts of the Group except to comply with
changes in accounting practice or as noted therein.
Any audited consolidated accounts of the Group delivered or to be delivered
to the Lender under this Agreement shall be prepared in all material
respects in accordance with the Applicable Accounting Principles and
applicable accounting policies which were applied in the audited
consolidated accounts for the year ended 31 December, 1998 save for any
changes to comply with changes in the law or in such Applicable Accounting
Principles consistently applied. If there are any changes in law or in
United Kingdom accounting standards as described above:
(i) if material to the calculation of the financial ratios and covenants
in this Agreement, the Borrower shall promptly so advise the Lender
and provide details of the difference and the reasons therefor;
(ii) on request of the Lender, the Borrower and the Lender shall negotiate
in good faith with a view to agreeing such amendments to clause 9.3
and/or the definitions of any of or all of the terms used therein as
are necessary, in the opinion of the Lender, to give the Lender
comparable protection to that contemplated on the Signing Date.
9.3 FINANCIAL RATIOS
(A) The Guarantor undertakes that it will procure that the Interest Cover Ratio
for each period of twelve consecutive months ending on 30th June and 31st
December in each year will equal or exceed 4.0.
(B) The Guarantor undertakes that it will procure that, as at 30th June and
31st December in each year, the financial condition of the Group shall be
such that the ratio of the Borrowings of the Group on a consolidated basis
to Consolidated EBITDA shall not exceed 3.5 to 1.
9.4 NOTIFICATION OF DEFAULT
The Borrower and the Guarantor will notify the Lender in writing of any
Event of Default or Potential Event of Default forthwith upon becoming
aware thereof.
<PAGE>
9.5 COMPLIANCE CERTIFICATES
The Guarantor will no later than the time of the delivery of the accounts
specified in paragraphs (A) and (B) of clause 9.2 (and, in relation to a
certificate dealing with the matters referred to in paragraph (A) below,
also promptly at the request of the Lender from time to time) furnish the
Lender with:
(A) a certificate signed by any two of the Company Secretary, the Director
of Group Treasury (or equivalent from time to time) and the executive
directors of the Guarantor certifying on behalf of the Guarantor
without personal liability that no Event of Default or Potential Event
of Default has occurred and is continuing or, if the same has
occurred, specifying the Event of Default or Potential Event of
Default and the steps being taken to remedy the same; and
(B) a certificate (a "RATIO CERTIFICATE") signed by either of the Group
Finance Director and the Chief Executive of the Guarantor certifying
without personal liability, as at the end of the period to which the
relevant accounts relate, compliance with the covenants in clause 9.3
and 9.14 or, if such covenants have not been met, specifying the same
and, in each case, setting out in reasonable detail the relevant
computations.
9.6 CONSENTS
The Borrower and the Guarantor will use its best endeavours to obtain and
promptly renew from time to time, and will promptly furnish certified
copies to the Lender of, all such authorisations, approvals, consents,
licences and exemptions as may be required under any applicable law or
regulation to enable it to perform its obligations under the Financing
Documents or required for the validity or enforceability of the Financing
Documents and the Borrower and the Guarantor shall comply with the terms of
the same.
9.7 PARI PASSU RANKING
The Borrower and the Guarantor undertakes that, subject as set out herein,
its obligations under the Financing Documents do and will rank at least
pari passu with all its other present and future unsecured obligations
other than obligations in respect of national, provincial and local taxes
and employees' remuneration and taxes and for certain other statutory
exceptions.
9.8 NEGATIVE PLEDGE
The Borrower undertakes that with effect from drawdown of the Facility the
Borrower and the Guarantor will not create, suffer or permit to subsist
(and will procure that none of the Subsidiaries will create, suffer or
permit to subsist) any Security Interest on the whole or any part of its
respective present or future assets except for the following:
(A) Security Interests created with the prior written consent of the
Lender;
(B) Security Interests arising by operation of law in the ordinary course
of business including, without limitation, statutory liens and
encumbrances;
(C) any Security Interest over the assets and/or revenues of a company
which became or becomes a Subsidiary of the Borrower or the Guarantor
after the Signing Date and which Security Interest is in existence or
contracted to be given as at the date it becomes a Subsidiary (and
which was not created in contemplation of it becoming a Subsidiary)
provided that the principal amount of any borrowing which may be so
<PAGE>
secured shall not be increased beyond the amount outstanding or
committed at the date it becomes a Subsidiary but shall be reduced in
accordance with its terms and provided further that in the case of a
fluctuating amount for banking type accommodation the foregoing shall
not prevent fluctuation within the overall limit that existed at that
date and provided that the amount secured under any such Security
Interest shall not be increased beyond the amount secured at the date
the company becomes a Subsidiary;
(D) those Security Interests existing at the Signing Date over the assets
and/or revenues of a Subsidiary (whether or not it is the Borrower or
the Guarantor), provided that the principal amount of any borrowing
which may be so secured shall not be increased beyond the amount
outstanding or committed at the Signing Date but shall be reduced in
accordance with its terms and provided further that in the case of a
fluctuating amount for banking type accommodation the foregoing shall
not prevent fluctuation within the overall limit that existed at the
Signing Date;
(E) Security Interests securing the performance of bids, tenders, bonds,
leases, contracts (other than in respect of Borrowings), statutory
obligations, surety, customs and appeal bonds and other obligations of
like nature (but not including obligations in respect of Borrowings)
incurred in the ordinary course of business provided that the
aggregate amount secured under such Security Interests shall not, at
any time, exceed $20,000,000 save that such aggregate amount may be
exceeded with the prior written consent of the Lender;
(F) Security Interests arising out of judgments or awards which are being
contested in good faith and with respect to which an appeal or
proceeding for review has been instituted or the time for doing so has
not yet expired;
(G) Security Interests upon any property which are created or incurred
contemporaneously with the acquisition of such property to secure or
provide for the payment of any part of the purchase price of such
property (but no other amounts), provided that any such Security
Interest shall not apply to any other property of the purchaser
thereof and provided further that the aggregate amount of all
liabilities secured by this paragraph (G) shall not, at any time,
exceed $25,000,000;
(H) any Security Interest arising out of title retention provisions in a
supplier's conditions of supply of goods or services acquired by a
member of the Group in the ordinary course of its business;
(I) any right of any bank or financial institution of combination or
consolidation of accounts or right to set-off or transfer any sum or
sums standing to the credit of any account (or appropriate any
securities held by such bank or financial institution) in or towards
satisfaction of any present or future liabilities to that bank or
financial institution;
(J) any Security Interest securing indebtedness re-financing indebtedness
secured by Security Interests permitted by paragraphs (C), (D) or (G)
above or this paragraph (J) provided that (except to the extent
otherwise permitted by paragraph (A)) the maximum principal amount of
the indebtedness secured by such Security Interests is not increased
and such Security Interests do not extend to any assets which were not
subject to the Security Interests securing the re-financed
indebtedness;
<PAGE>
(K) any Security Interest created by a member of the Group which is
neither the Borrower nor the Guarantor securing banking facilities
over accounts receivable (or book debts) outside the U.K. or the
U.S.A.;
(L) any other Security Interest created or outstanding on or over any
assets of any member of the Group provided that the aggregate
outstanding amount secured by all Security Interests created or
outstanding under this exception in this paragraph (L) shall not at
any time exceed $40,000,000 or its equivalent and further provided
that no single such Security Interest under this paragraph (L) shall
secure an aggregate principal amount exceeding $10,000,000 or its
equivalent; and
(M) any Security Interest arising out of any of the Accounts Receivable
Facility or Back to Back Loans.
9.9 DISPOSALS
The Borrower and the Guarantor will not, without the prior written consent
of the Lender (which may be given subject to conditions), and each of them
will procure that none of its Subsidiaries will sell, transfer, lease or
otherwise dispose of all or any substantial part of their respective assets
except on an arm's length basis and for a fair market value or to another
member of the Group.
9.10 CHANGE OF BUSINESS
Except with the prior written consent of the Lender, the Borrower and the
Guarantor will not, and each will procure that none of its respective
Material Subsidiaries will, make any change in its business as presently
conducted, or carry on any other business other than its business as
presently conducted or business consisting of allied or related activities,
provided that this prohibition shall not apply unless such change of
business or other business alters the nature of the business of the Group
as a whole.
9.11 MERGERS
Neither the Borrower nor the Guarantor will without the prior written
consent of the Lender enter into any merger or consolidation if the effect
thereof would be to alter the legal personality or identity of such
Borrower or Guarantor except that the Borrower or the Guarantor may merge
or consolidate with or into any other Subsidiary which is in the same
jurisdiction as the Borrower or Guarantor (as the case may be) provided
that from the date on which the merger or consolidation takes effect the
Borrower or Guarantor is the legal entity surviving the merger or the legal
entity into which it shall be merged or the legal entity which is formed by
such consolidation shall assume its obligations hereunder in an agreement
or instrument satisfactory in form and substance to the Lender.
9.12 INSURANCE
The Borrower and the Guarantor will, and will procure that each of its
respective Material Subsidiaries will, effect and maintain such insurance
over and in respect of its respective assets and business and in such
manner and to such extent as is reasonable and customary for a business
enterprise engaged in the same or a similar business and in the same or
similar localities.
<PAGE>
9.13 LIMITATION ON BORROWINGS OF SUBSIDIARIES
The Guarantor and the Borrower will not permit any of their Subsidiaries to
create, permit to subsist, incur, assume or in any other manner be or
become directly or indirectly liable for the payment of any Borrowings
(including, without limitation, by way of indemnity, counter-indemnity or
guarantee) other than:
(A) Borrowings under this Agreement;
(B) any Borrowings of any Subsidiary owing to another member of the Group;
(C) Borrowings under the Consolidated Revolving Facility Agreement dated
3rd July, 1998 and made between WPP Group plc and the other Borrowers
named therein, the Guarantors, the Facility Agent, the Lenders and the
Arrangers (all as named therein);
(D) Borrowings under the Revolving Facility Agreement dated 15th October,
1999 and made between Moveability Limited (as Borrower), WPP Group plc
and the other Guarantors named therein, the Facility Agent, the
Lenders and the Arrangers (all as named therein);
(E) Borrowings by a Subsidiary whose main business is to operate as a
finance company for the Group; and
(F) additional Borrowings of Subsidiaries to the extent that:
(i) no individual Material Subsidiary has or will create, permit to
subsist, incur, assume or in any other manner be or become
directly or indirectly liable for the payment of any Borrowings
(including, without limitation, by way of indemnity,
counter-indemnity or guarantee) with an aggregate principal
amount exceeding an amount equal to 15 per cent. of Consolidated
EBITDA; and
(ii) the aggregate principal amount of Borrowings of all Subsidiaries
permitted under this sub-clause (E) does not exceed an amount
equal to 25 per cent. of Consolidated EBITDA,
in each case for the financial period most recently ended from time to
time in respect of which financial results of the Group have been
published or announced.
9.14 GROUP ACQUISITIONS
The Guarantor will procure that the aggregate maximum value of all
Acquisition Cash Payments paid in any financial year (as reduced by the
aggregate amount of (i) any cash recorded in the balance sheet or financial
records of the company, business, undertaking or other person the subject
of the Acquisition as at the last day of the financial year of that company
or business most recently ended or, at the option of the Guarantor, upon
completion of the Acquisition and (ii) cash proceeds of any disposals of
any business or undertaking by any member of the Group received during that
financial year) shall not, without the consent of the Lender, exceed the
Acquisition Cash Limit.
<PAGE>
10. CHANGES IN CIRCUMSTANCES
10.1 ILLEGALITY
Where the introduction, imposition or variation of any law, regulation or
treaty or any change in the interpretation or application of any law,
regulation or treaty makes it unlawful for the Lender to make available or
fund or maintain the Facility or to carry out all or any of its other
obligations under this Agreement or to charge or receive interest or fees
or commissions at the rate applicable under this Agreement:
(A) the Lender shall notify the Borrower; and
(B) (i) the Borrower shall forthwith prepay any Advance made to it by the
Lender together with all other amounts payable by it to the
Lender under this Agreement; and
(ii) the Lender's Commitment shall be cancelled.
10.2 INCREASED COSTS
Where the Lender determines that the introduction or variation of any law
or any change in the interpretation or application thereof, or compliance
with any request (whether or not having the force of law) from any central
bank or other fiscal, monetary or other authority would increase the cost
to the Lender of making or maintaining or funding the Commitment or reduce
the amount of any sum received or receivable by it in respect of the
Commitment or oblige it to make any payment or forgo any interest or other
return on, or calculated by reference to, the amount of any sum received or
receivable by it from a Borrower in respect of the Commitment or reduce the
effective return to it under the Commitment, then:
(A) the Lender shall notify the Borrower of such event promptly upon its
becoming aware of such event; and
(B) the Borrower shall on demand pay to the Lender such amounts as the
Lender from time to time and at any time (including after a prepayment
of the Lender's participation) notifies the Borrower to be necessary
to compensate it for such increased cost, reduction, payment or
forgone interest or return,
Provided that this clause 10.2 shall not apply to or in respect of:
(i) any change in, or in the rate of, tax on overall net income of the
Lender;
(ii) any circumstances referred to in clause 11.3;
(iii) any increased costs, reduction in return payment or forgone interest
arising as a result of breach by the Lender of any request or
requirement of any fiscal, monetary or other regulatory authority.
<PAGE>
10.3 MARKET DISRUPTION
If:
(A) the Lender determines that, by reason of circumstances affecting the
London Interbank market generally, reasonable and adequate means do
not or will not exist for ascertaining under clause 5.4 a rate of
interest applicable to the Advance; or
(B) the Lender determines that deposits in dollars are not in the ordinary
course of business available in the London Interbank market for a
period equal to the forthcoming Interest Period in amounts sufficient
to fund their participations in an Advance,
the Lender shall give written notice (a "SUSPENSION NOTICE") of such
determination or notification to the Borrower, and the following provisions
shall apply:
(i) If a Suspension Notice relates to the Advance which has not yet been
made hereunder, then the Lender shall not be obliged to make such
Advance hereunder until written notice to the contrary is given by the
Lender to the Borrower. Notwithstanding the service of such Suspension
Notice, the Lender's Commitment shall remain in force and during the
period of thirty days from such Suspension Notice, the Lender shall
consult regularly in good faith with the Borrower with a view to
agreeing to an alternative basis for the making of such Advance. If
such alternative basis is agreed between the Borrower and the Lender,
it shall apply in accordance with its terms.
(ii) If a Suspension Notice relates to the Advance outstanding at the time
of a Suspension Notice, during the period of thirty days from such
Suspension Notice, the Lender shall, in consultation with the
Borrower, certify to the Borrower an alternative basis (in this
Agreement referred to as the "SUBSTITUTE BASIS") for maintaining the
participation of the Lender in the Advance. Without limitation, such
Substitute Basis may be retroactive to the beginning of the Interest
Period to which the Suspension Notice relates, and may include an
alternative method of fixing the interest rate (which shall reflect
the cost to the Lender of funding its participation in such Advances
from other sources plus the Margin), alternative Interest Periods or
alternative currencies for its participation in such Advance. Each
Substitute Basis so certified shall be binding upon the relevant
Borrower and the Lender and shall be treated as part of this
Agreement.
(iii) So long as any Substitute Basis is in force, the Borrower and the
Lender certifying a Substitute Basis, shall from time to time, but not
less often than monthly and at the Borrower's request, review whether
or not the circumstances referred to in clause 10.3(i) or (ii) above
(as the case may be) still prevail with a view to returning to the
normal provisions of this Agreement.
10.4 MITIGATION
If circumstances arise in respect of the Lender which would, or would upon
the giving of notice, result in:
(A) the Borrower being obliged to pay to the Lender additional amounts
pursuant to clause 10.2 or any amounts pursuant to clause 11.3; or
<PAGE>
(B) an alternative basis applying for the purposes of clause 10.3; or
(C) the Borrower being obliged to repay the Lender's participation in the
Advance pursuant to clause 10.1,
then, without in any way limiting, reducing or otherwise qualifying such
Borrower's obligations under clauses 10 and 11, the Lender shall, in
consultation with the Borrower, endeavour to take such reasonable steps as
may be open to it to mitigate or remove such circumstances, including
without limitation the transfer of its rights and obligations under this
Agreement to another bank or financial institution acceptable to the
Borrower, unless to do so might (in the opinion of the Lender) be
prejudicial to the Lender or would conflict with the Lender's general
banking policies.
10.5 CERTIFICATES
Any determination or notification by the Lender concerning any matter
referred to in this clause shall, in the absence of manifest error, be
conclusive evidence as to that matter and shall be binding on the Borrower
and the Lender.
11. PAYMENTS
11.1 BY THE BORROWER AND THE GUARANTOR
All payments to be made by the Borrower or the Guarantor under this
Agreement for the account of the Lender shall be made in immediately
available funds not later than twelve noon on the relevant day to such
account as the Lender may have notified to the Borrower.
11.2 BY THE LENDER
All amounts to be advanced by the Lender to the Borrower under this
Agreement shall be remitted in immediately available funds not later than
12 noon on the relevant day to the Borrower by payment to the account and
bank which are specified in the relevant Credit Request.
11.3 WITHHOLDINGS
All payments by the Borrower or the Guarantor under this Agreement whether
in respect of principal, interest, fees or any other item, shall be made in
full without any deduction or withholding (whether in respect of set off,
counterclaim, duties, taxes, charges or otherwise whatsoever) unless the
deduction or withholding is on account of taxes imposed or levied by any
jurisdiction in which the Borrower or the Guarantor is incorporated or
through which any payment is made and is required by law, in which event
(unless the Lender otherwise agrees with the Borrower) the Borrower or the
Guarantor shall:
(A) ensure that the deduction or withholding does not exceed the minimum
amount legally required (based on the details of the Lender provided
to the Borrower or Guarantor by the Lender);
(B) forthwith pay to the Lender such additional amount so that the net
amount received by that Lender will equal the full amount which would
have been received by it had no such deduction or withholding been
made;
<PAGE>
(C) pay to the relevant taxation or other authorities within the period
for payment permitted by applicable law the full amount of the
deduction or withholding (including, but without prejudice to the
generality of the foregoing the full amount of any deduction or
withholding from any additional amount paid pursuant to this
sub-clause); and
(D) furnish to the Lender concerned, within the period for payment
permitted by the relevant law, either an official receipt of the
relevant taxation authorities involved in respect of all amounts so
deducted or withheld or if such receipts are not issued by the
taxation authorities concerned on payment to them of amounts so
deducted or withheld, a certificate of deduction or equivalent
evidence of the relevant deduction or withholding.
The obligation on the Borrower or Guarantor to pay an additional amount
under this clause 11.3 shall not apply to the extent that the tax deducted
is:
(i) tax on the overall income of the Lender save to the extent that such
tax is collected by way of withholding from the relevant payment from
which the deduction must be made; or
(ii) tax that would not be imposed but for the connection between the
Lender and the jurisdiction (other than the United Kingdom) imposing
such tax other than a connection arising as a result of the Lender
entering into this Agreement.
11.4 U.K. TAXES
If the Lender:
(i) at the Signing Date is not a Qualifying Bank; or
(ii) ceases to be a Qualifying Bank after the Signing Date,
otherwise than as a result of any introduction of or change in or in the
interpretation, administration or application by the English courts or the
Inland Revenue of any relevant law or any relevant practice or concession
of the Inland Revenue after the Signing Date, then the Borrower shall not
be liable to pay to the Lender any amount under this clause 11 in excess of
the amount they would have been obliged to pay if the Lender had been (i) a
bank, as so defined at the date of the relevant Advance, and (ii)
beneficially entitled to such interest and within the charge to United
Kingdom corporation tax as respects such interest at the time such interest
is paid.
11.5 TAX CREDITS
If the Borrower or the Guarantor pays any additional amount (a "TAX
PAYMENT") under clause 11.3 and the Lender effectively obtains a refund of
tax or credit against tax on its overall net income by reason of that Tax
Payment (a "TAX CREDIT") and the Lender is able to identify such Tax Credit
as being attributable to such Tax Payment, then the Lender shall reimburse
to the Borrower or, as the case may be, the Guarantor such amount as it
shall determine to be the proportion of such Tax Credit as will leave the
Lender, after that reimbursement, in no better or worse position than it
would have been in if that Tax Payment had not been required. The Lender
shall have absolute discretion as to whether to claim any Tax Credit and,
if it does so claim, the extent, order and manner in which it does so. The
Lender shall not be obliged to
<PAGE>
disclose any information regarding its tax affairs or computations to the
Borrower or the Guarantor.
11.6 DATE
If any payment under this Agreement would otherwise be due on a day which
is not a Business Day, it shall be due on the next succeeding Business Day
or, if that Business Day falls in the following month of the year, on the
preceding Business Day.
11.7 DEFAULT INTEREST
(A) If the Borrower fails to pay any amount in accordance with this Agreement,
the Borrower shall pay interest on that amount from the time of default up
to the time of actual payment (as well after as before judgment) at the
rate per annum which is the sum of (a) the Margin plus 1% and (b) the rate,
(as determined by the Lender), for a deposit of an amount comparable to the
defaulted amount, offered to the Lender in the London Interbank market, for
such period as the Lender may from time to time select, at or about 11.00
a.m. (London time) on the Business Day succeeding that on which the Lender
becomes aware of the default for value two Business Days later and (c) the
Reserve Asset Costs (if any).
(B) If an amount unpaid in accordance with this Agreement in respect of the
Facility, is of principal due on a day during, but not the last day of, an
Interest Period relating thereto, the period selected by the Lender under
clause 11.7(A) shall equal the unexpired portion of the Interest Period and
there shall be substituted for the rate specified in clause 11.7(A) the
rate of 1% above the rate calculated in accordance with clause 5.4 and
applicable to the unpaid amount immediately before it fell due.
(C) Interest under this clause shall accrue daily on the basis of a year of 360
days from and including the first day to the last day of each period for
which a rate of interest is determined as aforesaid and shall be due and
payable by the Borrower at the end of each such period. So long as the
default continues, the rate referred to in clause 11.7(A) shall be
calculated on a similar basis at the end of each period selected by the
Lender and notified to the Lenders and interest payable under this
sub-clause which is unpaid at the end of each such period shall thereafter
itself bear interest at the rates provided in this sub-clause.
11.8 JUDGMENT CURRENCY
If, under any applicable law, whether as a result of a judgment against the
Borrower or the Guarantor or the liquidation of the Borrower or the
Guarantor or for any other reason, any payment under or in connection with
the Facility is made or is recovered in a currency (the "OTHER CURRENCY")
other than that in which it is required to be paid hereunder (the "ORIGINAL
CURRENCY") then, to the extent that the payment to the Lender (when
converted at the rate of exchange on the date of payment or, in the case of
a liquidation, the latest date for the determination of liabilities
permitted by the applicable law) falls short of the amount unpaid under
this Agreement, the Borrower or the Guarantor shall as a separate and
independent obligation, fully indemnify the Lender against the amount of
the shortfall; and for the purposes of this sub-clause "RATE OF EXCHANGE"
means the rate at which the Lender is able on the relevant date to purchase
the original currency in London with the other currency.
<PAGE>
12. DEFAULT
12.1 EVENTS
If (whether or not caused by any reason outside the control of the Borrower
or the Guarantor):
(A) the Borrower or the Guarantor does not pay on the due date (or, in the
case of amounts other than principal, within three Business Days
thereafter) any amount payable by it under any of the Financing
Documents at the place and in the currency expressed to be payable
(unless such failure results solely from a technical problem in
relation to the transfer of funds for which the Borrower or the
Guarantor is not responsible and is remedied within five days of the
due date); or
(B) the Borrower or the Guarantor fails to comply in any material respect
with any other provision of any of the Financing Documents and, other
than in the case of clause 9.3, if such default is capable of prompt
remedy within 30 days after the Borrower or Guarantor shall have given
notice of such default pursuant to clause 9.4 (or, if earlier, the
date on which the Lender shall have given notice to the Borrower of
such default) the Borrower or Guarantor shall have failed to cure such
default; or
(C) any representation, warranty or written statement made or deemed to be
repeated in, or in connection with, this Agreement or in any other
Financing Document or in any certificate delivered by or on behalf of
any Borrower or any Guarantor in writing under any of the Financing
Documents is incorrect in any material respect when made or deemed to
be repeated, or, in respect of those specified in clause 8.2, would be
if repeated at any time; or
(D) any other present or future Borrowings of a principal amount exceeding
in the aggregate $20,000,000 or the equivalent sum in any other
currency of any member of the Group shall become due and payable or
capable of being declared due and payable prior to the due date
thereof as a result of a default or any such Borrowings shall not be
paid on the due date thereof (or, if a grace period was originally
provided for in the document evidencing or constituting such
Borrowing, within any applicable grace period therefor) or any
Security Interest over any assets of any member of the Group and
securing a principal amount exceeding $20,000,000 shall be or become
enforceable; or
(E) any Borrower, Guarantor or Material Subsidiary is deemed unable to pay
its debts within the meaning of section 123(1)(a), (b), (c) or (d) of
the Insolvency Act 1986 (as that section may be amended by order under
section 416 or otherwise), or any Borrower, Guarantor or Material
Subsidiary becomes unable to pay its debts as they fall due, or any
Borrower, Guarantor or Material Subsidiary suspends making payments
(whether of principal or interest) with respect to all or any class of
its debts or announces an intention to do so; or
(F) an application for an administration order in relation to any
Borrower, Guarantor or Material Subsidiary is presented to the court
by any such company or its directors or the supervisor of a voluntary
arrangement relating to any Borrower, Guarantor or Material Subsidiary
or such an order is made on the application of a creditor of any
Borrower, Guarantor or Material Subsidiary or any meeting of any
Borrower, Guarantor or Material Subsidiary is convened for the purpose
of considering any resolution to present an application for such an
order; or
<PAGE>
(G) any kind of composition, scheme of arrangement, compromise or
arrangement involving any Borrower, Guarantor or Material Subsidiary
and its creditors generally (or any class of them) is proposed by the
company concerned; or
(H) any administrative or other receiver or any manager of any Borrower,
Guarantor or Material Subsidiary or all or a substantial part of any
of its property is appointed, or the directors of any Borrower,
Guarantor or Material Subsidiary request any person to appoint such a
receiver or manager, or any kind of attachment (except prejudgment
attachment), sequestration, distress or execution against any
Borrower, Guarantor or Material Subsidiary or all or a substantial
part of its property is levied or sued out and not discharged within
30 days; or
(I) any meeting of any Borrower, Guarantor or Material Subsidiary is
convened for the purpose of considering any resolution for (or to
petition for) its winding up, or any Borrower, Guarantor or Material
Subsidiary passes such a resolution, or any Borrower, Guarantor or
Material Subsidiary or any other person (except its creditor) presents
any petition for the winding up of any Borrower, Guarantor or Material
Subsidiary, or an order for the winding up of any Borrower, Guarantor
or Material Subsidiary is made on the petition of any of its
creditors; or
(J) there occurs in relation to any Borrower, Guarantor or Material
Subsidiary in any country or territory in which it carries on business
or to the jurisdiction of whose courts it or any of its property is
subject any event which reasonably appears to the Majority Lenders to
correspond in that country or territory with any of those mentioned in
paragraphs (E) to (I) inclusive above or any Borrower, Guarantor or
Material Subsidiary otherwise becomes subject, in any such country or
territory, to any law relating to insolvency, bankruptcy or
liquidation; or
(K) any Borrower, Guarantor or Material Subsidiary ceases, or threatens to
cease, to carry on all or a substantial part of its business except
consequent upon a disposal, merger or acquisition not otherwise
prohibited under this Agreement; or
(L) any authorisation, approval, consent, licence, exemption, filing,
registration or notarisation or other requirement necessary to enable
any Borrower or Guarantor to comply with its obligations under any of
the Financing Documents to which it is a party in any material respect
is revoked or withheld or does not remain in full force and effect or
is materially and adversely modified; or
(M) any single person, or group of persons acting in concert (as defined
in the City Code on Takeovers and Mergers), acquires control (as
defined in Section 416 of the Income and Corporation Taxes Act 1988)
of the Guarantor and, in a situation where the acquisition of such
control of the Guarantor takes place with the consent, and on the
recommendation, of the Board of Directors of the Borrower only, ninety
days shall have elapsed following such acquisition of control; or
(N) at any time it is unlawful for any Borrower or any Guarantor to
perform any of its material obligations under any Financing Document
to which it is a party; or
(O) any litigation, arbitration or administrative proceeding or claim in
which there is a reasonable possibility of an adverse decision which
has had or would be reasonably likely by itself or together with any
other such proceedings or claims either to have a material adverse
effect on the business, assets or consolidated financial condition of
the Group as a whole or which would be reasonably likely materially
and adversely to
<PAGE>
affect the ability of the Borrowers and Guarantors taken as a whole to
observe or perform their obligations under any Financing Documents and
which affect any Borrower, any Guarantor or the Group as a whole is in
progress or pending or threatened; or
(P) (i) any U.S. Subsidiary (a "QUALIFYING U.S. SUBSIDIARY") which is a
Material Subsidiary shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to winding-up, dissolution, bankruptcy,
insolvency, reorganisation or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganisation, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of
a receiver, trustee, custodian or other similar official for it or for
all or any substantial part of its assets, or any Qualifying U.S.
Subsidiary shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against any Qualifying
U.S. Subsidiary any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of sixty
days; or (iii) there shall be commenced against any Qualifying U.S.
Subsidiary any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry
of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within sixty days from
the entry thereof; or (iv) any Qualifying U.S. Subsidiary shall take
any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii)
or (iii) above: or (v) any Qualifying U.S. Subsidiary shall generally
not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due; or
(Q) any other event or series of events whether related or not which has a
material adverse effect on the business, assets or consolidated
financial condition of the Group as a whole or which would be
reasonably likely materially and adversely to affect the ability of
the Group as a whole to comply with any or all of its obligations
under the Financing Documents occurs,
then, at once or at any time thereafter, the Lender may by notice to the
Borrower, declare the Outstandings to be immediately due and payable
whereuponthe Advance and all other sums outstanding under the Facility
shall become so due and payable together with accrued interest thereon
and any other amounts then payable under this Agreement or the Facility.
13. INDEMNITY
13.1 GENERAL INDEMNITY
The Borrower and the Guarantor shall fully indemnify the Lender from and
against any expense, loss, damage or liability (as to the amount of which
the certificate of the Lender shall, in the absence of manifest error, be
conclusive) which it may incur as a consequence of the occurrence of any
Event of Default, of any failure to draw down in accordance with a Credit
Request or other notification of any intention to utilise the Facility or
of any repayment or prepayment under this Agreement or otherwise in
connection with this Agreement (including without limitation any repayment
or prepayment pursuant to clause 6 or 7.1). Without prejudice to its
generality, the foregoing indemnity shall extend to any interest, fees
<PAGE>
or other sums whatsoever paid or payable on account of any funds borrowed
in order to carry any unpaid amount and to any loss, premium, penalty or
expense which may be incurred in liquidating or employing deposits from
third parties acquired to make, maintain or fund the Outstandings (or any
part of them) or any other amount due or to become due under this
Agreement.
13.2 WAIVER OF DEFENCES
The Borrower and the Guarantor agree that no delay, extension of time,
renewal, compromise, waiver, indulgence, release of security or rights or
any other matter or thing shall in any way prejudice the Lender's rights or
powers hereunder. The Borrower shall not by virtue of any payment made by
it pursuant to this clause 13 claim in competition with the Lender any
right of subrogation, contribution or indemnity against any member of the
Group so long as any amount is or is capable of becoming outstanding
hereunder.
14. GUARANTEE
14.1 GUARANTEE
The Guarantor unconditionally and irrevocably guarantees, as a continuing
obligation, the proper and punctual payment by the Borrower of the
Guaranteed Amounts and unconditionally and irrevocably undertakes, as a
continuing obligation, with the Lender that, if for any reason the Borrower
does not make such payment, the Guarantor shall pay the Guaranteed Amounts
upon first written demand by the Borrower.
14.2 PRINCIPAL DEBTOR
The Guarantor shall be deemed to be liable for the Guaranteed Amounts as
sole or principal debtor.
14.3 DISCHARGE
The liabilities and obligations of the Guarantor under this Agreement shall
remain in force notwithstanding any act, omission, neglect, event or matter
whatsoever, except the proper and valid payment of all the Guaranteed
Amounts and, subject to clause 14.4, an absolute discharge or release of
the Guarantor signed by the Lender; and without prejudice to its
generality, the foregoing shall apply in relation to anything which would
have discharged the Guarantor (wholly or in part) or which would have
afforded the Guarantor any legal or equitable defence, and in relation to
any winding up or dissolution of, or any change in constitution or
corporate identity or loss of corporate identity by, the Borrower or any
other person.
14.4 PREFERENCE
Any such discharge or release as is referred to in clause 14.3, and any
composition or arrangement which the Guarantor may effect with the Lender,
shall be deemed to be made subject to the condition that it will be void if
any payment or security which the the Lender may previously have received
or may thereafter receive from any person in respect of the Guaranteed
Amounts is set aside under any applicable law or proves to have been for
any reason invalid.
<PAGE>
14.5 NO IMPAIRMENT
Without prejudice to the generality of clauses 14.2 and 14.3 none of the
liabilities or obligations of the Guarantor under this Agreement shall be
impaired by, and the Guarantor hereby irrevocably waives any defences it
may now or hereafter have in any way relating to, the Lender:
(A) agreeing with the Borrower any variation or departure (however
substantial) of or from this Agreement (other than this clause) or any
of the Financing Documents and any such variation or departure shall,
whatever its nature, be binding upon the Guarantor in all
circumstances, notwithstanding that it may increase or otherwise
affect the liability of the Guarantor provided however that if any
such variation is made, without the Guarantor's prior written consent,
which has the effect of increasing the amount of the Facility or the
Margin, the amount of the Guarantor's liability under this clause
shall be limited to the amount for which they would have been liable
had such variation not been made;
(B) releasing or granting any time or any indulgence whatsoever to the
Borrower or Guarantor and, in particular, waiving any of the
pre-conditions for Credits under this Agreement or any contravention
by the Borrower of this Agreement, or entering into any transaction or
arrangements whatsoever with or in relation to the Borrower and/or any
third party; and
(C) taking, perfecting, accepting, varying, dealing with, enforcing,
abstaining from enforcing, surrendering or releasing any security for
the Guaranteed Amounts in such manner as it or they think fit, or
claiming, proving for, accepting or transferring any payment in
respect of the Guaranteed Amounts in any composition by, or winding up
of, the Borrower and/or any third party or abstaining from so
claiming, proving, accepting or transferring.
14.6 DEMANDS
Demands under this clause may be made from time to time, and the
liabilities and obligations of the Guarantor under this Agreement may be
enforced, irrespective of:
(A) whether any demands, steps or proceedings are being or have been made
or taken against any of the Borrower and/or any third party; or
(B) whether or in what order any security to which the Lender may be
entitled in respect of the Guaranteed Amounts is enforced.
Each Guarantor waives diligence, presentment, protest, demand for payment
and notice of default to or upon the Borrower or Guarantor.
14.7 SUSPENSE ACCOUNT
Until all amounts which may be or become payable by the Borrower hereunder
or under any of the Financing Documents or in connection herewith or
therewith have been irrevocably paid and discharged in full, the Lender
may:
(A) refrain from applying or enforcing any other security, moneys or
rights held or received by the Lender in respect of such amounts or
apply and enforce the same in
<PAGE>
such manner and order as it sees fit (whether against such amounts
or otherwise) and the Guarantor shall not be entitled to the benefit
of the same; and
(B) hold in suspense account (subject to the accrual of interest thereon
at market rates for the account of the Guarantor) any moneys received
from the Guarantor or on account of that Guarantor's liability
hereunder.
14.8 SUBORDINATION
So long as the Guarantor has any liability under this Agreement and except
as provided in clause 14.9 below:
(A) the Guarantor shall not take or accept any Security Interest from the
Borrower or, in relation to the Guaranteed Amounts, from any third
party, without first obtaining the Lender's written consent;
(B) after the occurrence of an Event of Default, the Guarantor shall not,
without first obtaining the Lender's written consent, seek to recover,
whether directly or by set off, lien, counterclaim or otherwise, nor
accept any moneys or other property, nor exercise any rights in
respect of, any sum which may be or become due to the Guarantor on any
account by the Borrower or, in relation to the Guaranteed Amounts,
from any third party, nor claim, prove for or accept any payment in
any composition by, or any winding up of, the Borrower or, in relation
to the Guaranteed Amounts, any third party;
(C) if, notwithstanding the foregoing, the Guarantor holds or receives any
such security, moneys or property, it shall forthwith pay or transfer
the same to the Lender.
14.9 DEFERRAL OF SUBROGATION, CONTRIBUTION, REIMBURSEMENT, EXONERATION AND
INDEMNITY
The Guarantor agrees that it will not exercise any rights that it may now
have or hereafter acquire against the Borrower or any other person that
arise from the existence, payment, performance or enforcement of the
Guaranteed Amounts, including without limitation any right of subrogation,
contribution, reimbursement, exoneration or indemnity (or any similar
right) prior to the later of the cash payment in full of the Guaranteed
Amounts and all other amounts payable under this clause 14 and the Final
Maturity. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, such amount shall be held in trust for the benefit of
the Lender and shall forthwith be paid to the Lender to be credited and
applied to the Guaranteed Amounts and all other amounts payable under this
clause 14, whether or not due, in accordance with the terms of the
Financing Documents, or be held as collateral security for any Guaranteed
Amounts or other amounts payable under this clause 14 and thereafter
arising. If (i) the Guarantor shall make payment of all or any part of the
Guaranteed Amounts, (ii) all of the Guaranteed Amounts and all other
amounts payable under this clause 14 shall be paid in full in cash and
(iii) the Final Maturity shall have occurred, the Lender will, at the
Guarantor's request and expense, execute and deliver to the Guarantor
appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to the
Guarantor of an interest in the Guaranteed Amounts resulting from such
payment by the Guarantor.
14.10 INDEMNITY
As a separate, additional and continuing obligation, the Guarantor
unconditionally and irrevocably undertakes with the Lender that, should the
Guaranteed Amounts not be
<PAGE>
recoverable from the Guarantor under clause 14.1 for any reason whatsoever
(including, but without prejudice to the generality of the foregoing, by
reason of any other provision of this Agreement being or becoming void,
unenforceable or otherwise invalid under any applicable law) then,
notwithstanding that it may have been known to the Lender, the Guarantor
shall, as a sole, original and independent obligor, upon first written
demand by the Lender under clause 14.1, make payment of the Guaranteed
Amounts by way of a full indemnity in such currency and otherwise in such
manner as is provided for in this Agreement and shall indemnify the Lender
against all losses, claims, costs, charges and expenses to which they may
be subject or which they may incur under or in connection with this
Agreement.
15 FEES AND EXPENSES
15.1 UPFRONT FEE
The Borrower will pay to the Lender for its own account an upfront fee in
accordance with the terms of a letter dated the Signing Date between the
Borrower and the Lender.
15.2 EXPENSES
The Borrower shall on demand pay, in each case on the basis of a full
indemnity:
(A) to the Lender all reasonable expenses (including legal, printing,
publicity and out-of-pocket expenses) reasonably incurred by the
Lender in connection with the negotiation, preparation or completion
of this Agreement and any related documents; and
(B) to the Lender all expenses (including legal and out-of-pocket
expenses) incurred by it in connection with any variation,
refinancing, consent or approval relating to the Financing Documents
or incurred by it in connection with the preservation, enforcement or
the attempted preservation or enforcement of any of their rights under
the Financing Documents or any related documents.
15.3 STAMP DUTY
The Borrower shall pay any stamp, documentary and other similar duties and
taxes to which the Financing Documents or any related documents (other than
an assignment or transfer of the Lender's rights or obligations hereunder)
may be subject or give rise in any relevant jurisdiction and shall fully
indemnify the Lender from and against any losses or liabilities which any
of them may incur as a result of any delay or omission by the Borrower to
pay any such duties or taxes.
15.4 VALUE ADDED TAX
The amounts stated in this Agreement to be payable by the Borrower are
exclusive of United Kingdom value added tax ("VAT") and accordingly:
(A) the Borrower shall pay any VAT properly chargeable in respect of
supplies to the Borrower as contemplated by this Agreement (including
any VAT chargeable by the Lender in respect of its supplies to the
Borrower under this Agreement); and
(B) in the case of goods or services supplied to the Lender as
contemplated by this Agreement, the Borrower shall pay to the Lender
by way of additional remuneration such amount as shall represent any
associated VAT (whether charged by the supplier
<PAGE>
or suffered by reason of the reverse charge provisions contained in
section 8 of the Value Added Tax Act 1994) to the extent that VAT is
not, in the reasonable opinion of the Lender, otherwise recoverable as
input tax.
16. SET OFF
Following an Event of Default, the Lender may at the same time as providing
notice to the Borrower or the Guarantor combine, consolidate or merge all
or any of the Borrower's or Guarantor's accounts with, and liabilities to,
the Lender and may set off or transfer any sum standing to the credit of
any such accounts in or towards satisfaction of any of the Borrower's or
the Guarantor's, as the case may be, liabilities to the Lender under the
Financing Documents, and may do so notwithstanding that the balances on
such accounts and the liabilities may not be expressed in the same currency
and the Lender is hereby authorised to effect any necessary conversions at
the Lender's own rate of exchange then prevailing.
17. BENEFIT OF AGREEMENT
17.1 TRANSFER BY BORROWERS AND GUARANTORS
Neither the Borrower nor the Guarantor may assign or transfer all or any
part of the rights or obligations hereunder without the prior written
consent of the Lender.
17.2 TRANSFER BY LENDER
The Lender (the "TRANSFEROR") may at any time, with the prior written
consent of the Borrower (such consent not to be unreasonably withheld or
delayed) except in the case of any such transfer to another member of the
group of companies to which the Lender belongs (provided that the Borrower
has confirmed to the Lender that it is satisfied (which confirmation shall
not be unreasonably withheld and shall be deemed to have been given if the
Borrower has failed to respond to a request therefor within five Business
Days of the date of receipt thereof) that interest payable to the
transferee by the Borrower would be a tax deductible expense of the
Borrower), in which case no such consent shall be required, transfer to any
other bank or financial institution which is a Qualifying Bank (the
"TRANSFEREE") the whole or any part of its rights and/or obligations under
the Facility by the execution of a Transfer Certificate substantially in
the form of Schedule 4. For the avoidance of doubt, any such transfer may
be in whole or in part of the Transferor's Commitment but, if in part, in a
minimum amount of $5,000,000 (unless the Borrower otherwise agrees at its
absolute discretion) and provided that after such transfer such
Transferor's Commitment shall not be less than $5,000,000 (or zero if the
whole of such Transferor's Commitment is transferred). A Transfer
Certificate shall only be valid if it is in writing signed by each of the
Transferor and the Transferee and is contained in one document or two
counterparts.
17.3 TRANSFER CERTIFICATES
(A) Each of the parties hereto agrees that, with effect from the date of the
Transfer Certificate:
(i) the Transferor shall cease to be entitled to the rights and shall be
released from the obligations hereunder which are specified in the
Transfer Certificate;
(ii) the Transferee shall become a party hereto as a Lender entitled to
rights and liable to observe obligations which differ from those
referred to in (i) only insofar as the Transferee is entitled thereto
and liable in respect thereof in place of the Transferor;
<PAGE>
accordingly, each of the parties hereto confirms that (a) the delivery by a
Transferor to a Transferee of a Transfer Certificate signed by the
Transferor constitutes an irrevocable offer by each of the parties hereto
to accept the Transferee as a Lender party to this Agreement entitled to
such rights and liable to observe such obligations as are mentioned in (ii)
above, (b) such offer may be accepted by the execution of the Transfer
Certificate by the Transferee and (c) the provisions of this Agreement
shall apply to the contract between the parties hereto arising from the
acceptance of such offer.
17.4 TRANSFEREES
Each Transferee shall accept that none of the other parties hereto is in
any way responsible for (a) the accuracy and/or completeness of any
information supplied to the Transferee in connection herewith, (b) the
financial condition, creditworthiness, condition, affairs, status and
nature of the Borrower or the Guarantor or the observance by the Borrower
or the Guarantor of any of its obligations under this Agreement or any
document relating hereto, or (c) the legality, validity, effectiveness,
adequacy or enforceability of this Agreement or any document relating
hereto or thereto and, save as otherwise expressly provided herein, none of
such parties shall, or shall be deemed to be, the agent or trustee of such
Transferee in connection herewith.
17.5 OFFICE
The Lender shall make the Commitment available from, and may receive the
benefit of any payment due to it under this Agreement at, its lending
office(s) notified to the Borrower on or prior to the date of this
Agreement. The Lender shall give the Borrower prior written notice of any
change in any lending office (which may only be to another office or other
offices in either the United Kingdom or the United States unless the
Borrower and the Lender otherwise agree, such agreement on the part of the
Borrower not to be unreasonably withheld or delayed).
17.6 CONFIDENTIALITY
The Lender may disclose to a proposed assignee, transferee or
sub-participant such information in its possession relating to the Borrower
and Guarantor as it thinks appropriate but:
(A) any such person must first undertake to the Lender and to the Borrower
to keep such information confidential; and
(B) nothing in this clause 17.6 shall permit the disclosure of any
confidential information which the Borrower specifically provides in
writing should not be disclosed to any person.
17.7 LIMITATION OF INCREASED COSTS
Where the Lender assigns or transfers all or any part of its rights or
obligations hereunder or changes its lending office for the purpose of this
Agreement, the Borrower shall not be liable (other than where such change
in its lending office was requested by the Borrower to pay any additional
amounts under clauses 10.2 or 11.3 due to circumstances existing on the
effective date of such assignment or transfer and which would not have been
payable had no such change, assignment or transfer taken place.
<PAGE>
17.8 SUB-PARTICIPATIONS
The Lender shall not be required to notify any other party to this
Agreement of a sub-participation of its rights and interests hereunder
provided that nothing in this clause 17.8 gives any sub-participant any
rights against the Borrower or Guarantor. The Borrower shall not be liable
to pay any additional amounts under clause 10.2 or clause 11.3 arising as a
direct consequence of any such sub-participation.
18. FURTHER PROVISIONS
18.1 EVIDENCE OF INDEBTEDNESS
In any proceedings relating to this Agreement a statement as to any amount
due to the Lender under this Agreement which is certified as being correct
by an officer of the Lender, shall, unless otherwise provided in this
Agreement, be prima facie evidence that such amount is in fact due and
payable.
18.2 APPLICATION OF MONEYS
If any sum paid or recovered in respect of the liabilities of the Borrower
under this Agreement is less than the amount then due, the Lender may apply
that sum to principal, interest, fees or any other amount due under this
Agreement in such proportions and order and generally in such manner as the
Lender shall determine.
18.3 RIGHTS CUMULATIVE: WAIVERS
The rights of the Lender under this Agreement are cumulative, may be
exercised as often as it considers appropriate and are in addition to its
rights under the general law. The rights of the Lender in relation to the
Facility (whether arising under this Agreement or under the general law)
shall not be capable of being waived or varied otherwise than by an express
waiver or variation in writing; and in particular any failure to exercise
or any delay in exercising any of such rights shall not operate as a waiver
or variation of that or any other such right; any defective or partial
exercise of any of such rights shall not preclude any other or further
exercise of that or any other such right; and no act or course of conduct
or negotiation on their part or on their behalf shall in any way preclude
them from exercising any such right or constitute a suspension or any
variation of any such right.
18.4 NOTICES
Except as otherwise stated herein, all notices or other communications
hereunder to any party hereto shall be deemed to be duly given or made when
delivered (in the case of personal delivery or letter) and when despatched
(in the case of telex or fax) to such party addressed to it at its address,
telex number or facsimile number:
in the case of the Lender, the Borrower and the Guarantor as follows, or
such a party may specify to all the other parties hereto in writing from
time to time:
The Lender The Royal Bank of Scotland plc
Corporate Banking
3rd Floor Waterhouse Square
138-142 Holborn
London EC1N 2TH
<PAGE>
Facsimile No: 0207 427 9634
Attention: David Vaughan
The Borrower WPP Pearls Limited
27 Farm Street
London W1X 6RD
Facsimile No: 0207 4918417
Attention: Company Secretary
The Guarantor WPP Group plc
27 Farm Street
London W1X 6RD
Facsimile No: 0207 491 8417
Attention: Company Secretary
18.5 ENGLISH LANGUAGE
All notices or communications under or in connection with this Agreement
shall be in the English language or, if in any other language, accompanied
by a translation into English. In the event of any conflict between the
English text and the text in any other language, the English text shall
prevail.
18.6 INVALIDITY OF ANY PROVISION
If any of the provisions of this Agreement becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired.
18.7 COUNTERPARTS
This Agreement may be executed in any number of counterparts, and such
execution shall have the same effect as if the signatures on the
counterparts were on a single copy of this Agreement.
18.8 CHOICE OF LAW
This Agreement is governed by, and shall be construed in accordance with,
the laws of England.
18.9 SUBMISSION TO JURISDICTION
(A) (i) For the benefit of the Lender, all the parties agree that the courts
of England are to have jurisdiction to settle any disputes which may
arise in connection with the legal relationships established by this
Agreement (including, without limitation, claims for set-off or
counterclaim) or otherwise arising in connection with this
Agreement.
(ii) The Borrower and the Guarantor irrevocably waive any objections on
the ground of venue or forum non conveniens or any similar grounds.
(iii) The Borrower and the Guarantor irrevocably consent to service of
process by mail or in any other manner permitted by the relevant
law.
<PAGE>
18.10 CHANGE OF CURRENCY
(A) Unless otherwise prohibited by law, if more than one currency or currency
unit are at the same time recognised by the central bank of any country as
the lawful currency of that country, then:
(i) any reference in the Financing Documents to, and any obligations
arising under the Financing Documents in, the currency of that country
shall be translated into, or paid in, the currency or currency unit of
that country designated by the Lender; and
(ii) any translation from one currency or currency unit to another shall be
at the official rate of exchange recognised by the central bank for
the conversion of that currency or currency unit into the other,
rounded up or down by the Agent (acting reasonably).
(B) If a change in any currency of a country occurs, this Agreement will, to
the extent the Lender (acting reasonably) specifies to be necessary be
amended to comply with any generally accepted conventions and market
practice in the relevant interbank market and otherwise to reflect the
change in currency.
Signed by the authorised representatives of the parties.
<PAGE>
SCHEDULE 1
CALCULATION OF MANDATORY COST
(a) The Mandatory Cost for the Advance during each period in respect of
which interest is payable under this Agreement is the rate expressed
as a rate per annum determined by the Lender to be equal to the rate
notified by the Lender and calculated in accordance with the following
formula:
F x 0.01% per annum = Mandatory Cost
------
300
where on the day of application of the formula:
F is the charge payable by the Lender to the Financial Services
Authority under paragraph 2.02 or 2.03 (as appropriate) of the
Fees Regulations but where for this purpose, the figure in
paragraph 2.02b and 2.03b will be deemed to be zero expressed in
pounds per L1 million of the fee base of the Bank.
(b) For the purposes of this Schedule 1:
(i) "FEE BASE" has the meaning given to it in the Fees Regulations;
(ii) "FEES REGULATIONS" means any regulations governing the
payment of fees for banking supervision.
(c) (i) The formula is applied on the first day of each relevant period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(d) If the Lender determines that a change in circumstances has rendered,
or will render, the formula inappropriate, the Lender shall notify the
Borrower of the manner in which the Mandatory Cost will subsequently
be calculated. The manner of calculation so notified by the Lender
shall, in the absence of manifest error, be binding on all of the
Borrower, the Guarantor and the Lender.
<PAGE>
SCHEDULE 2
CREDIT REQUEST IN RESPECT OF ADVANCES
To: [*the Lender] Date: [* ], [20 [* ]]
Dear Sirs,
TERM LOAN AGREEMENT DATED 14TH JANUARY, 2000
DRAWING NUMBER: [* ]
1. We refer to clause 4 of the Term Loan Agreement. Terms defined in the Term
Loan Agreement have the same meanings in this Credit Request.
2. We wish to borrow the Advance with the following specifications:
(a) Drawing Date: [* ] [20[* ]]
(b) Amount: [* ]
(c) Interest Period: [* ]
(d) Payment Instructions: [* ]
3. We confirm that the matters represented and warranted by the Borrower and
the Guarantor set out in clause 8.2 of the Term Loan Agreement are true and
accurate on the date of this Credit Request as if made with reference to
the facts and circumstances now prevailing and that no Event or Default or
Potential Event or Default has occurred and is continuing or would result
from the Credit.
Yours faithfully,
[Authorised Signatory]
for and on behalf of
[Borrower]
<PAGE>
SCHEDULE 3
CERTIFICATE
[Letterhead of Borrower/Guarantor]
To: [*the Lender]
I [*name], the [Secretary] of [*name of Borrower/Guarantor] of [*address] (the
"Company")
HEREBY CERTIFY that:
(i) attached hereto marked "A" are true and correct copies of all documents
which contain or establish or relate to the constitution of the Company;
(ii) attached hereto marked "B" is a true and correct copy of [resolutions duly
passed] at [a meeting of the Board of Directors] of the Company duly
convened and held on [ ] 20[* ] approving the Term Loan
Agreement to be entered into between (1) WPP Pearls Limited, (2) WPP
Group plc and (3) [*the Lender] and authorising its signature, delivery
and performance and such resolutions have not been amended, modified or
revoked and are in full force and effect; and
The following signatures are the true signatures of the persons who have been
authorised to sign the Term Loan Agreement and to give notices and
communications, including notices of drawing, under or in connection with the
Term Loan Agreement.
Name Position Signature
* *
* *
* *
Signed: ....................
[Secretary]
""""""""""""""
<PAGE>
SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
To: [*the Lender]
TRANSFER CERTIFICATE
relating to a Term Loan Agreement (the "TERM LOAN AGREEMENT") dated 14th
January, 2000 and made between (1) WPP Pearls Limited, (2) WPP Group plc, and
(3) the Lender. Terms defined in the Term Loan Agreement have the same meanings
herein.
1. [Transferor Lender] (the "LENDER") (a) confirms that to the extent that
details appear in the Schedule hereto against, as the case may be, the
heading "LENDER'S COMMITMENT" and/or "Lender's Participation", such details
accurately summarise, as the case may be, its participation in the Facility
and (b) requests [Transferee Lender] (the "TRANSFEREE") to accept and
procure the transfer to the Transferee of the portion specified in the
Schedule of, as the case may be, its participation in the Facility by
counter-signing and delivering this Transfer Certificate to the Lender at
its address for the service of notices specified in the Term Loan
Agreement.
2. The Transferee confirms that it has received a copy of the Term Loan
Agreement together with such other documents and information as it has
required in connection with this transaction and that it has not relied and
will not hereafter rely on the Lender to check or enquire on its behalf
into the execution, validity, enforceability, effectiveness, adequacy,
accuracy or completeness of any such documents or information and further
agrees that it has not relied and will not rely on the Lender to assess or
keep under review on its behalf the financial condition, credit worthiness,
affairs, status or nature of the Borrower or of any other party to the Term
Loan Agreement.
3. The Transferee hereby undertakes with the Lender and each of the other
parties to the Term Loan Agreement that it will perform in accordance with
their terms all those obligations which by the terms of the Term Loan
Agreement will be assumed by it upon execution of this Transfer Certificate
and satisfaction of the conditions (if any) subject to which this Transfer
Certificate is expressed to take effect.
5. The Transferee confirms as follows:
(A) it will be beneficially entitled to its rights to principal and
interest under the Agreement; and
(B) it is a Qualifying Bank as at the date of the transfer.
6. The Lender makes no representation or warranty and assumes no
responsibility with respect to the execution, validity, enforceability,
effectiveness or adequacy of the Term Loan Agreement or any document
relating thereto and assumes no responsibility for the financial condition
of the Borrower or the Guarantor or for the performance and observance by
the Borrower or the Guarantor or any other such party of any of its
obligations under the Term Loan Agreement or any document relating thereto
and any and all such conditions and warranties, whether express or implied
by law or otherwise, are hereby excluded.
<PAGE>
7. The Lender hereby gives notice to the Transferee (and the Transferee hereby
acknowledges and agrees with the Lender) that the Lender is under no
obligation to purchase (or in any other manner to assume, undertake or
discharge any obligation or liability in relation to) the portion
transferred and referred to in the Schedule at any time after this Transfer
Certificate shall have taken effect.
8. Following the date upon which this Transfer Certificate shall have taken
effect, without limiting the provisions hereof, each of the Transferee and
the Lender hereby acknowledges and confirms to the other that in relation
to the portion transferred and referred to in the Schedule variations,
amendments or alterations to any of the terms of any of the Term Loan
Agreement and the Financing Documents arising in connection with any
renegotiation or rescheduling of the obligations hereunder shall apply to
and be binding on the Transferee alone.
9. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law.
<PAGE>
THE SCHEDULE
LENDER'S COMMITMENT PORTION TRANSFERRED
Facility Commitment
LENDER'S PARTICIPATION
AMOUNT TERM PORTION TRANSFERRED
[Transferor Lender] [Transferee Lender]
Address:
Telex:
By: By:
Date: Date:
<PAGE>
SIGNATORIES
THE BORROWER
WPP PEARLS LIMITED
By: Paul Richardson
THE GUARANTOR
WPP GROUP PLC
By: Paul Richardson
THE LENDER
THE ROYAL BANK OF SCOTLAND PLC
By: David N. Vaughan
<PAGE>
DATED 14TH JANUARY, 2000
WPP PEARLS LIMITED
(as Borrower)
WPP GROUP PLC
(as Guarantor)
NATIONAL WESTMINSTER BANK PLC
(as Lender)
---------------------------------------
TERM LOAN AGREEMENT
----------------------------------------
ALLEN & OVERY
London
BK:713434.2
<PAGE>
CONTENTS
<TABLE>
<CAPTION>
CLAUSES PAGE
<S> <C> <C>
1. Interpretation.......................................................................................1
2. Amount and Purpose of the Facility...................................................................7
3. Conditions Precedent.................................................................................7
4. Utilisation of Facility..............................................................................8
5. Interest.............................................................................................8
6. Repayment............................................................................................9
7. Prepayment and Cancellation.........................................................................10
8. Representations and Warranties......................................................................10
9. Undertakings........................................................................................12
10. Changes in Circumstances............................................................................18
11. Payments............................................................................................20
12. Default.............................................................................................23
13. Indemnity...........................................................................................25
14. Guarantee...........................................................................................26
15 Fees and Expenses...................................................................................29
16. Set Off.............................................................................................30
17. Benefit of Agreement................................................................................30
18. Further Provisions..................................................................................32
SCHEDULES
1. Calculation of Mandatory Cost.......................................................................35
2. Credit Request in respect of Advances...............................................................36
3. Certificate.........................................................................................37
4. Form of Transfer Certificate........................................................................38
SIGNATORIES..................................................................................................41
</TABLE>
<PAGE>
THIS AGREEMENT is made the 14th day of January, 2000.
BETWEEN:
1. WPP PEARLS LIMITED of 27 Farm Street, London, W1X 6RD as borrower (the
"BORROWER");
2. WPP GROUP PLC of 27 Farm Street, London W1X 6RD as guarantor (the
"GUARANTOR"); and
3. NATIONAL WESTMINSTER BANK PLC of 1 Princes Street, London EC2R 8PB as
lender (the "LENDER").
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement each of the following expressions has, except where
the context otherwise requires, the meaning shown opposite it:
"ACCOUNTS RECEIVABLE FACILITY" means the receivables purchase facility
in an amount, on 3rd July, 1998, of up to $350,000,000 under the
pooling and servicing agreement dated 3 December, 1993 between Capital
III Corp. as the seller, WPP Group USA Inc., as the servicer and Mellon
Bank N.A., as the Trustee together with all related transaction
documents as amended, increased, restated, extended, refinanced or
replaced from time to time;
"ACQUISITION" means the acquisition directly or indirectly (whether by
one transaction or by a series of related transactions) of any interest
whatsoever in the share capital (or equivalent) or the business or
undertaking, or assets constituting a substantial part of the business
or undertaking, of any company or other person other than a member of
the Group;
"ACQUISITION CASH LIMIT" means in relation to any financial year, an
amount equal to the aggregate of:
(i) $500,000,000; and
(ii) the amount by which Acquisition Cash Payments made in the
preceding financial year fall short of the Acquisition Cash
Limit for the preceding financial year but subject to a
maximum amount equal to 20% of the Acquisition Cash Limit for
that preceding financial year;
"ACQUISITION CASH PAYMENT" means in relation to any financial year, any
cash consideration in respect of an Acquisition (other than by way of
assumption of debt not issued in contemplation of that Acquisition)
paid by a member of the Group in that year, whether at the time of
Acquisition or on a deferred basis pursuant to an Acquisition made
prior to that financial year and including (i) cash payable upon
redemption of preferred stock issued by way of consideration for any
Acquisition and (ii) cash Earn-out Payments (but does not include cash
raised by way of issuance of shares by a member of the Group for the
purpose of or in connection with the Acquisition);
<PAGE>
"ADVANCE" means the amount made available to the Borrower hereunder in
respect of the Facility by way of one advance (subject to clause 5.3)
or the principal amount thereof for the time being outstanding;
"APPLICABLE ACCOUNTING PRINCIPLES" means accounting principles and
practices which at the Signing Date are generally accepted in the
United Kingdom;
"AVAILABILITY PERIOD" means the period commencing on the Signing Date
and ending at the close of business in New York on the Final Drawing
Date;
"BACK TO BACK LOAN" means any loan or other financial accommodation
made available to a member of the Group to the extent that the
creditor:
(a) has recourse directly or indirectly to a deposit of cash or
cash equivalent investments beneficially owned by any member
of the Group placed, as part of a related transaction, with
that creditor (or an affiliate of that creditor) or a
financial institution approved by that creditor on the basis
that the deposit be available, directly or indirectly or
(b) has granted a sub-participation, risk participation or similar
arrangement,
so as to reduce the economic exposure of the creditor to the Group,
when looking at the related transactions together, to a net amount;
"BUSINESSDAY" means a day (other than a Saturday or Sunday) on which
banks are open in London and New York City for the transaction of
business of the nature required by this Agreement;
"COMMITMENT" means $37,500,000 as reduced or cancelled from time to
time in accordance with this Agreement;
"CREDIT" means the Advance issued under the Facility;
"CREDIT REQUEST" means a notice of drawing substantially in the form
set out in Schedule 2 duly completed and signed in each case by the
Borrower;
"DOLLARS AND $" means the lawful currency of the United States of
America;
"DRAWING DATE" means the Business Day upon which the Credit is to be
made available;
"EARN-OUT PAYMENT" means any payment made or to be made to a former
shareholder in a Subsidiary pursuant to arrangements made in connection
with the acquisition of such Subsidiary by any member of the Group and
related to the performance of that Subsidiary , including any payment
in respect of loan notes issued to such former shareholder in
connection with the said acquisition but excluding payments under
Employee Incentive Plans;
"ELIGIBLE COMPANY" means any of the Borrower and any other Subsidiary;
"EMPLOYEE INCENTIVE PLAN" means any arrangement entered into by any
member of the Group (other than Earn-out Payments) for the payment for
services, acquisition or purchase of shares, warrants or other equity
linked instruments of any kind (or options for any of the foregoing) or
similar arrangements from any person (or any entity on behalf of or
ultimately for the benefit of that person) primarily for the purpose of
incentivising or compensating that person for services to any member of
the Group in the nature of services of employment;
<PAGE>
"EVENT OF DEFAULT" means any of the events mentioned in clause 12.1;
"EXCEPTIONAL ITEMS" has the meaning given to it in the Applicable
Accounting Principles but shall exclude any items falling within the
definition of Extraordinary Items;
"EXTRAORDINARY ITEMS" has the meaning given to it in the Applicable
Accounting Principles;
"FACILITY" means the facility, the terms and conditions of which are
set out in this Agreement;
"FINAL MATURITY" means one year less one day from the Signing Date;
"FINAL DRAWING DATE" the date falling 14 days after the Signing Date;
"FINANCING DOCUMENTS" means this Agreement and any other document
designated as such by the Lender and the Borrower in writing;
"GROUP" means the Guarantor, the Borrower and the Subsidiaries;
"GUARANTEED AMOUNTS" means any and all amounts whatsoever (including,
without limitation, interest after the filing of a petition initiating
a proceeding referred to in clause 12.1(F), whether or not such
interest constitutes an allowed claim for the purposes of such
proceeding) which are to be paid by the Borrower to the Lenderunder the
Financing Documents;
"HOLDING COMPANY" has the meaning ascribed to it in Section 736 of the
Companies Act 1985;
"INTEREST PAYMENT DATE" means for any Advance, the last day of an
Interest Period and for any Interest Period longer than six months the
date falling six months after the first day of such Interest Period and
the last day of such Interest Period;
"INTEREST PERIOD" means for any Advance, the period determined in
accordance with clause 5.2;
"L", "POUNDS" and "STERLING" means the lawful currency of the United
Kingdom of Great Britain and Northern Ireland;
"MANDATORY COST" means the cost to the Lender of compliance with the
banking supervision or other costs imposed by the Financial Services
Authority during each period in respect of which interest is payable
under this Agreement expressed as a rate per annum and determined in
accordance with Schedule 1;
"MARGIN" has the meaning given thereto in clause 5.1;
"MATERIAL SUBSIDIARY" means at any time, a Subsidiary whose
consolidated revenues are at least 5% of the aggregate of the total
consolidated revenues of all members of the Group. For this purpose:
(i) in the case of a company which itself has subsidiaries, the
calculation shall be made by using the consolidated revenues
of it and its subsidiaries;
(ii) the calculation of consolidated revenues shall be made by
reference to:
<PAGE>
(a) the accounts of the relevant Subsidiary (consolidated
where necessary) used for the purpose of the most
recent audited consolidated accounts of the Borrower;
and
(b) the accounts of each member of the Group used for the
purpose of those audited consolidated accounts of the
Borrower;
"OUTSTANDINGS" means all amounts for the time being outstanding under
the Facility;
"POTENTIAL EVENT OF DEFAULT" means any event which with the giving of
notice, expiry of any grace period or satisfaction of any other
condition specified in clause 12.1 would constitute an Event of
Default;
"QUALIFYING BANK" means a bank as defined in section 840A of the Income
and Corporation Taxes Act 1988 (as in force at the date of this
Agreement), which is within the charge to U.K. corporation tax as
regards any interest received by it under this Agreement.
"RATIO CERTIFICATE" means the certificate referred to in clause 9.5(B);
"SECURITY INTEREST" means any mortgage, charge, pledge, lien or other
security interest;
"SIGNING DATE" means the date of signature of this Agreement;
"SUBSIDIARY" means a subsidiary for the time being of the Guarantor and
"SUBSIDIARIES" shall refer to all such subsidiaries;
"TRANSFER CERTIFICATE" means a certificate substantially in the form of
Schedule 4 delivered by a Lender to the Facility Agent pursuant to
clause 17.3; and
"U.S. SUBSIDIARY" means a Subsidiary incorporated under the laws of any
State in the United States of America.
1.2 FINANCIAL DEFINITIONS
In this Agreement the following expressions have the following
meanings:
"BORROWINGS" means:
(A) moneys borrowed or raised (including, without limitation,
amounts advanced under the Accounts Receivable Facility and
any accounts receivable facility entered into on or after 3rd
July 1998);
(B) any liability under any bond, bill discounting facility,
debenture, note or other similar debt security or under
acceptance credit or note purchase facilities, letter of
credit, subordinated debt or any amount raised pursuant to an
issue of shares which are expressed to be redeemable (in cash
or in instruments which would themselves constitute
Borrowings) on or prior to Final Maturity;
(C) any liability in respect of the acquisition cost of assets or
services to the extent payable more than 120 days before or
after the time of acquisition or possession thereof by the
party liable but excluding any bona fide performance related
cash consideration payable under Employee Incentive Plans or
for an Acquisition
<PAGE>
calculated by reference to future profits in accordance with
the current practice of the Group as at 3rd July, 1998;
(D) the capital element of rentals payable under finance leases
(required to be disclosed in accordance with S.S.A.P. 21)
entered into primarily as a method of raising finance or
financing the acquisition cost of the asset in question; and
(E) any guarantee or other assurance against financial loss in
respect of any indebtedness of the type specified in
paragraphs (A) to (D) above (including any obligation to
counter-indemnify any person in respect of the provision of
any such guarantee (but only to the extent that Borrowings
supported thereby are outstanding);
but:
(i) indebtedness owing or shares issued by one member of
the Group to another member of the Group shall not be
taken into account as Borrowings;
(ii) interest (other than interest which is capitalised
and which itself bears interest), acceptance
commission and finance charges shall be excluded;
(iii) Trade Debt and Back to Back Loans shall be excluded;
(iv) no indebtedness shall be taken into account more than
once (so that, for example, a guarantee shall be
excluded to the extent that the indebtedness
guaranteed thereby is taken into account); and
(v) the obligations of any member of the Group in respect
of any media guarantee issued otherwise than pursuant
to this Agreement shall not be taken into account
unless such media guarantee has been called upon in
any way;
"CONSOLIDATED EBITDA" means in respect of any financial period the
Relevant Operating Profit of the Group for such financial period:
(i) before deducting all depreciation and other amortisation and
write-downs, including but not limited to, goodwill
amortisation and brand write-downs;
(ii) before taking into account all Extraordinary Items and
Exceptional Items (in each case whether positive or negative);
(iii) after deducting any gain over, and adding back any losses
under, book value (including related goodwill) arising on the
sale, lease or other disposal of any asset (other than on the
sale of trading stock) during such period and any gain or loss
arising on revaluation of any asset during such period, in
each case to the extent that it would otherwise be taken into
account, whether as an Exceptional Item or otherwise;
and for the purposes of the foregoing no item shall be effectively
deducted or credited more than once in this calculation, all as
determined on a consolidated basis by reference to the most recent
financial statements and certificates delivered pursuant to clause
9.2(A) and (B);
"FINANCIAL PERIOD" shall refer to each period of 12 months ending on
30th June and 31st December in each year;
<PAGE>
"INTEREST COVER RATIO" for any financial period in respect of the Group
means (A) the aggregate of (1) Consolidated EBITDA and (2) Interest
Receivable in relation to (B) Interest Expense;
"INTEREST EXPENSE" means, in respect of any financial period, (A) the
amount of interest (or equivalent consideration) accrued (on a
consolidated basis) for or by way of interest or equivalent
consideration on the Advances and other Borrowings of the Group as a
whole including any interest or similar consideration paid or accrued
or discounts given in respect of the sale or financing of Group
accounts receivables and the amount of payments made under interest
rate swap and cap agreements and similar interest rate hedging
arrangements made by the Group as a whole (but excluding commitment
fees, management fees, banking arrangement fees, agent's administration
and participation fees (including those payable hereunder)) determined
in accordance with accounting principles generally accepted under
United Kingdom accounting standards, consistently applied less (B) the
amount of payments from counterparties under interest rate swap and cap
agreements and similar interest rate hedging arrangements receivable or
received by the Group in respect of that period;
"INTEREST RECEIVABLE" means, in respect of any financial period,
interest income accrued during that period on financial deposits and
similar assets of the Group on a consolidated basis;
"RELEVANT OPERATING PROFIT" means, in respect of any financial period,
the consolidated operating profits of the Group, as disclosed in or
derived from the published or announced financial results of the Group;
"TRADE DEBT" means:
(a) obligations of any member of the Group to pay the purchase
price of assets or services purchased by any member of the
Group in the ordinary course of business including, without
limitation, indebtedness incurred by any member of the Group
in respect of any documentary letter of credit, bill of
exchange or promissory note issued in respect of any such
purchase;
(b) indebtedness incurred by any member of the Group in respect of
any bill of exchange or promissory note drawn on or by, or
accepted, issued or endorsed by, any member of the Group in
the ordinary course of business, including, without
limitation, indebtedness in respect of any moneys raised by
way of sale, discounting or otherwise in respect of any such
bill or note; and
(c) indebtedness incurred by any member of the Group in respect of
any guarantee, indemnity, counter-indemnity or other assurance
against financial loss or indebtedness of the type specified
in paragraph (a) or (b) above,
except to the extent that any indebtedness falling within paragraphs
(a) to (c) above is treated as borrowings under accounting principles
generally accepted under United Kingdom accounting standards,
consistently applied.
1.3 CONSTRUCTION
(A) Except where the context otherwise requires, any reference in this
Agreement to:
any of the Financing Documents (including this Agreement) is to such
Financing Document as it may be altered, amended, supplemented or
novated from time to time;
<PAGE>
an "AGREEMENT" also includes a concession, contract, deed, franchise,
licence, treaty or undertaking (in each case, whether oral or written);
the "ASSETS" of any person shall be construed as a reference to the
whole or any part of its business, undertaking, property, assets and
revenues (including any right to receive revenues);
a "MONTH" is to a calendar month;
"SUBSIDIARY" has the meaning ascribed thereto by section 736 Companies
Act 1985 as amended, modified, replaced or re-enacted from time to
time;
words and expressions (including defined words and expressions)
importing the singular include the plural and vice versa, those
importing the masculine gender include the feminine and vice versa, and
references to persons include references to companies and corporations
and vice versa; and
a "TIME" is to London time.
(B) Headings, sub-headings and the table of contents are for ease of
reference only.
2. AMOUNT AND PURPOSE OF THE FACILITY
2.1 AMOUNT
The maximum amount for which the Facility is available is $37,500,000.
2.2 PURPOSE
(a) The Facility shall be used for general corporate purposes
including the refinancing of the $150,000,000 revolving
facility agreement dated 15th October, 1999 arranged by
Barclays Bank PLC.
(b) Without prejudice to paragraph (a) above and the remaining
provisions of this Agreement the Lender shall not be bound to
enquire as to, nor shall it be responsible for, the
application by the Borrower of the proceeds of the Advance.
3. CONDITIONS PRECEDENT
3.1 CONDITIONS TO THE FACILITY
The obligations of the Lender under this Agreement are subject to the
Lender having received the following in each case in form and content
satisfactory to it, that is to say:
(A) a certificate in respect of the Borrower and the Guarantor
signed by an officer of the Borrower and the Guarantor
respectively substantially in the form set out in Schedule 3
and the documents therein referred to; and
(B) a certificate of a director of the Guarantor confirming that
utilisation in full of the Facility in accordance with its
terms would not cause any borrowing limit on the Borrower or
the Guarantor to be exceeded.
<PAGE>
3.2 CONDITIONS TO UTILISATION
Utilisation of the Facility is subject to the further conditions
precedent that both on the date of the Credit Request and on the
relevant Drawing Date:
(A) no Event of Default or Potential Event of Default has occurred
and is continuing or would occur as a result of making the
Credit available or permitting the utilisation; and
(B) each of the warranties deemed to be repeated in clause 8
remains accurate in all material respects at the Drawing Date
as if given on that date by reference to the facts and
circumstances then existing.
4. UTILISATION OF FACILITY
4.1 ADVANCE
Subject to the terms of this Agreement, the Borrower may on a Business
Day during the Availability Period draw the Advance under the Facility
by delivering to the Lender no later than 3.00 p.m. on the third
Business Day prior to the proposed Drawing Date a duly completed Credit
Request in the form set out in Schedule 2, specifying in respect of the
proposed Advance:
(A) the proposed Drawing Date, which shall be a Business Day
falling on or prior to the Final Drawing Date; and
(B) the amount of the Advance which shall be an amount of not less
than $5,000,000 and an integral multiple of $1,000,000
thereafter or such other multiple as the Lender and the
Borrower may agree and which shall not in any event at the
time immediately preceding the Advance exceed the Commitment.
4.2 IRREVOCABILITY
A Credit Request shall be irrevocable and, subject to the terms of this
Agreement, the Borrower shall draw the Advance on the Drawing Date
specified in the Credit Request.
5. INTEREST
5.1 MARGIN
The Margin for any Interest Period shall be 0.40 per cent. per annum.
5.2 DURATION OF INTEREST PERIODS
(A) The Interest Period in respect of the Advance shall be one month unless
not later than 3.00 p.m. on the third Business Day before the first day
of an Interest Period the Lender has received from the Borrower a
notice selecting one, two, three, four, five or six months or such
other period as has been agreed with the Lender.
(B) The Interest Period for the Advance shall commence on the date of that
Advance.
<PAGE>
(C) An Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day in that
calendar month (if there is one) or the preceding Business Day (if
there is not).
(D) No Advance shall have an Interest Period ending after the Final
Maturity.
(E) The Borrower and the Lender may enter into such other arrangements as
they may agree for the consolidation or splitting of Advances and
Interest Periods.
5.3 NUMBER OF INTEREST PERIODS FOR FACILITY
Subject to clause 5.2(E), the Borrower may, in the notice referred to
in clause 5.2(A), elect to split the Advance into two or more Advances
having different Interest Periods, notwithstanding that under the
provisions of this Agreement the Borrower may only drawdown a single
advance under the Facility.
5.4 RATE OF INTEREST FOR FACILITY
The rate of interest payable on the Advance under the Facility for each
Interest Period shall be the rate per annum determined by the Lender to
be the aggregate of:
(A) the Margin; and
(B) (i) the arithmetic mean (rounded to five decimal places
with the mid-point rounded up) of the offered
quotations in dollars for the required period which
appear on the display for dollars on page 3740 or
page 3750 of Telerate (or such other page as may
replace such pages on such system for the purpose of
displaying London Interbank Offered Rates of leading
banks) as at 11.00 a.m. on the second Business Day
before the commencement of that Interest Period; or
(ii) if no such display rate is then available for
dollars, the rate quoted by the Lender for the same
period as that Interest Period to prime banks in the
London Interbank Market at or about 11.00 a.m. on the
second Business Day before the commencement of that
Interest Period; and
(C) the Mandatory Cost (if any).
5.5 PAYMENT OF INTEREST ON ADVANCES
Interest shall be calculated on the basis of actual days elapsed (not
counting within an Interest Period the last day of that Interest
Period) and a year of 360 days and shall be paid on the Advance by the
Borrower to the Lender in arrears on the Interest Payment Date in
dollars.
5.6 LENDER'S CERTIFICATE
In respect of the Advance the Lender shall notify the Borrower of the
rate of interest as soon as it is determined under this Agreement. The
certificate of the Lender as to a rate of interest shall, in the
absence of manifest error, be conclusive.
6. REPAYMENT
The Borrower shall repay the Advance in full together with any
outstanding interest that has
<PAGE>
accrued pursuant to clause 5 (Interest) and any other amounts owed to
the Lender under this Facility on Final Maturity.
7. PREPAYMENT AND CANCELLATION
7.1 VOLUNTARY PREPAYMENT
(A) The Borrower may, without premium, prepay the Advance made to it in
whole or in part (but, if in part, in an aggregate minimum amount of
$5,000,000 and an integral multiple of $1,000,000 or such other
minimums and multiples in the currency concerned as the Lender and
Borrower may agree), provided that the Borrower has given the Lender
not less than ten days' prior notice stating the principal amount of
the Advance to be prepaid.
(B) Any prepayment under this clause 7.1 shall be made together with
accrued interest and all other amounts due under this Agreement in
respect of the prepayment.
7.2 CANCELLATION OF FACILITY
The Borrower may, without premium, cancel the undrawn part of the
Facility (in respect of which no Credit Request has been served), in
whole or in part (being in a minimum amount of $5,000,000 and an
integral multiple of $1,000,000) provided that it has given the Lender
not less than ten days' prior written notice stating the principal
amount to be cancelled. During such ten day period the Borrower may not
purport to draw or utilise all or any part of the amount the subject of
such notice of cancellation.
7.3 IRREVOCABILITY
Any notice under clause 7.1 or 7.2 shall be irrevocable. The amount of
any prepayment shall become due and payable on the applicable date. No
amount cancelled under clause 7.1 or 7.2 may subsequently be
reinstated.
7.4 CURRENCY
Prepayment shall be made in dollars .
8. REPRESENTATIONS AND WARRANTIES
8.1 ON SIGNING
The Borrower and the Guarantor acknowledge that the Lender has entered
into the Financing Documents in full reliance on representations by the
Borrower and the Guarantor in the following terms; and the Borrower and
the Guarantor warrant to the Lender in respect of itself, and the
Guarantor warrants to the Lender in respect of itself and of the
Borrower that as of the Signing Date:
(A) STATUS: it is duly incorporated with limited liability and
validly existing under the laws of its place of incorporation;
(B) POWERS AND AUTHORISATIONS: the documents which contain or
establish its constitution include provisions which give
power, and all necessary corporate authority has been obtained
and action taken, for it to own its assets, carry on its
business and operations as they are now being conducted, and
sign and deliver, and perform the transactions contemplated
in, the Financing Documents to which it is a
<PAGE>
party and the Financing Documents to which it is a party
constitute valid and binding obligations of it enforceable in
accordance with their terms subject to general equitable
principles, insolvency, liquidation and other laws affecting
creditors' rights generally;
(C) NON-VIOLATION: neither the signing and delivery of the
Financing Documents to which it is a party nor the performance
of any of the transactions contemplated in any of them does or
will contravene or constitute a default under, or cause to be
exceeded any limitation on it or the powers of its directors
imposed by or contained in, (i) any law by which it or any of
its assets is bound or affected, (ii) any document which
contains or establishes its constitution, or (iii) any
agreement to which it is a party or by which any of its assets
is bound which has had or would be reasonably likely in any
such case materially and adversely to affect its ability to
observe and perform its obligations under the Financing
Documents;
(D) CONSENTS: no authorisation, approval, consent, licence,
exemption, registration, recording, filing or notarisation and
no payment of any duty or tax and no other action whatsoever
which has not been duly and unconditionally obtained, made or
taken is necessary or desirable to ensure the validity or
enforceability of the liabilities and obligations of it or the
rights of the Lender under the Financing Documents;
(E) NO DEFAULT:
(i) no Event of Default has occurred which is continuing
under this Agreement; and
(ii) no event has occurred which constitutes a
contravention of, or default in any material respect
under, any agreement or instrument (other than the
Financing Documents) by which it or any of its assets
is bound or affected, being a contravention or
default which has had or would be reasonably likely
either to have a material adverse effect on the
business, assets or consolidated financial condition
of the Group as a whole or materially and adversely
affects the ability of the Borrower and the Guarantor
as a whole to observe or perform their obligations
under the Financing Documents;
(F) LITIGATION: no litigation, arbitration or administrative
proceeding or claim in which there is a reasonable possibility
of an adverse decision which has had or would be reasonably
likely by itself or together with any other such proceedings
or claims either (i) to have a material adverse effect on the
business, assets or consolidated financial condition of the
Group as a whole or (ii) materially and adversely to affect
the ability of the Borrower and the Guarantor as a whole to
observe or perform their obligations under any Financing
Documents or (iii) to impair the validity or enforceability of
this Agreement or any other Financing Document, is presently
in progress or pending or, to the knowledge of the Borrower or
the Guarantor, threatened against any member of the Group or
any of their assets;
(G) ACCOUNTS: the audited consolidated financial statements
(including the profit and loss, cash flow statement and
balance sheet) of the Group for the year ended 31st December,
1998 have been prepared on a basis consistently applied in
accordance with generally accepted accounting principles and
practices in England and Wales and give a true and fair view
of the results of the operations of the Group for that year
and the state of the affairs of the Group at that date: since
that date there has been no
<PAGE>
material adverse change in the consolidated financial
condition of the Group as shown in such statements;
(H) INVESTMENT COMPANY ACT: none of the Borrower, the Guarantor or
their respective subsidiaries is an "investment company" or an
"affiliated person" or, "promoter" or "principal underwriter"
for an "investment company" within the meaning of the United
States Investment Company Act of 1940, as amended; and
(I) PUBLIC UTILITY HOLDING COMPANY ACT: none of the Borrower or
the Guarantor is a holding company or a subsidiary company of
a holding company or an affiliate of a holding company or of a
subsidiary company of a holding company within the meaning of
the United States Public Utility Holding Company Act of 1935,
as amended.
8.2 AFTER SIGNING
The Borrower and the Guarantor shall be deemed to represent and warrant
in respect of itself, and the Guarantor shall be deemed to warrant in
respect of itself and the Borrower, to the Lender on the Drawing Date,
with reference to the facts and circumstances then subsisting, that
each of the representations and warranties contained in paragraphs (A),
(B), (C), (E), (H) and (I) remains correct.
9. UNDERTAKINGS
9.1 DURATION
The undertakings in this clause shall remain in force from so long as
any amount is or may be outstanding under the Facility or the
Commitment is in force.
9.2 INFORMATION
The Borrower and the Guarantor will furnish or procure to be furnished
to the Lender:
(A) as soon as practicable (and in any event within 180 days after
the close of each of the Guarantor's financial years) the
audited consolidated accounts of the Group for that year;
(B) as soon as practicable (and in any event within 90 days of the
end of each half year of the Guarantor's financial year) the
published unaudited interim consolidated accounts of the
Group;
(C) together with the statements specified in paragraph (A) above,
a certificate signed by any one of the Group Finance Director
and the Chief Executive of the Guarantor (or the equivalent
from time to time) without personal liability as to whether
the consolidated revenues for that financial year of any
operating Subsidiary shall have exceeded 5% of the
consolidated revenues of the Group for that financial year
(and, if so, identifying the Subsidiary or Subsidiaries
concerned);
(D) promptly, all notices, other documents or information
despatched by the Guarantor to its shareholders generally (or
any class thereof) or its creditors generally (or any class
thereof);
<PAGE>
(E) promptly, such further information in the possession or
control of the Borrower, the Guarantor or of any of their
respective Material Subsidiaries regarding the financial
condition or operations of the Borrower, the Guarantor or any
of their respective Material Subsidiaries, as the Lender may
reasonably request; and
(F) details of any litigation, arbitration or administrative
proceedings, which, if adversely determined, would be
reasonably likely to have a material adverse effect on the
business, assets or consolidated financial condition of the
Group as a whole or materially and adversely to affect the
ability of the Borrower or the Guarantor to observe or perform
its obligations under the Financing Documents and which affect
the Borrower or the Guarantor or the Group as a whole, as soon
as the same are instituted, or, to the knowledge of the
Borrower or the Guarantor, are threatened.
All accounts and statements required under this clause shall be
prepared in accordance with Applicable Accounting Principles
consistently applied and shall give a true and fair view of the state
of affairs of the Group and of the profit and cash flows of the Group
and in the case of unaudited accounts and statements shall be prepared
in a manner which is consistent with the audited consolidated accounts
of the Group except to comply with changes in accounting practice or as
noted therein.
Any audited consolidated accounts of the Group delivered or to be
delivered to the Lender under this Agreement shall be prepared in all
material respects in accordance with the Applicable Accounting
Principles and applicable accounting policies which were applied in the
audited consolidated accounts for the year ended 31 December, 1998 save
for any changes to comply with changes in the law or in such Applicable
Accounting Principles consistently applied. If there are any changes in
law or in United Kingdom accounting standards as described above:
(i) if material to the calculation of the financial ratios and
covenants in this Agreement, the Borrower shall promptly so
advise the Lender and provide details of the difference and
the reasons therefor;
(ii) on request of the Lender, the Borrower and the Lender shall
negotiate in good faith with a view to agreeing such
amendments to clause 9.3 and/or the definitions of any of or
all of the terms used therein as are necessary, in the opinion
of the Lender, to give the Lender comparable protection to
that contemplated on the Signing Date.
9.3 FINANCIAL RATIOS
(A) The Guarantor undertakes that it will procure that the Interest Cover
Ratio for each period of twelve consecutive months ending on 30th June
and 31st December in each year will equal or exceed 4.0.
(B) The Guarantor undertakes that it will procure that, as at 30th June and
31st December in each year, the financial condition of the Group shall
be such that the ratio of the Borrowings of the Group on a consolidated
basis to Consolidated EBITDA shall not exceed 3.5 to 1.
9.4 NOTIFICATION OF DEFAULT
The Borrower and the Guarantor will notify the Lender in writing of any
Event of Default or Potential Event of Default forthwith upon becoming
aware thereof.
<PAGE>
9.5 COMPLIANCE CERTIFICATES
The Guarantor will no later than the time of the delivery of the
accounts specified in paragraphs (A) and (B) of clause 9.2 (and, in
relation to a certificate dealing with the matters referred to in
paragraph (A) below, also promptly at the request of the Lender from
time to time) furnish the Lender with:
(A) a certificate signed by any two of the Company Secretary, the
Director of Group Treasury (or equivalent from time to time)
and the executive directors of the Guarantor certifying on
behalf of the Guarantor without personal liability that no
Event of Default or Potential Event of Default has occurred
and is continuing or, if the same has occurred, specifying the
Event of Default or Potential Event of Default and the steps
being taken to remedy the same; and
(B) a certificate (a "RATIO CERTIFICATE") signed by either of the
Group Finance Director and the Chief Executive of the
Guarantor certifying without personal liability, as at the end
of the period to which the relevant accounts relate,
compliance with the covenants in clause 9.3 and 9.14 or, if
such covenants have not been met, specifying the same and, in
each case, setting out in reasonable detail the relevant
computations.
9.6 CONSENTS
The Borrower and the Guarantor will use its best endeavours to obtain
and promptly renew from time to time, and will promptly furnish
certified copies to the Lender of, all such authorisations, approvals,
consents, licences and exemptions as may be required under any
applicable law or regulation to enable it to perform its obligations
under the Financing Documents or required for the validity or
enforceability of the Financing Documents and the Borrower and the
Guarantor shall comply with the terms of the same.
9.7 PARI PASSU RANKING
The Borrower and the Guarantor undertakes that, subject as set out
herein, its obligations under the Financing Documents do and will rank
at least pari passu with all its other present and future unsecured
obligations other than obligations in respect of national, provincial
and local taxes and employees' remuneration and taxes and for certain
other statutory exceptions.
9.8 NEGATIVE PLEDGE
The Borrower undertakes that with effect from drawdown of the Facility
the Borrower and the Guarantor will not create, suffer or permit to
subsist (and will procure that none of the Subsidiaries will create,
suffer or permit to subsist) any Security Interest on the whole or any
part of its respective present or future assets except for the
following:
(A) Security Interests created with the prior written consent of
the Lender;
(B) Security Interests arising by operation of law in the ordinary
course of business including, without limitation, statutory
liens and encumbrances;
(C) any Security Interest over the assets and/or revenues of a
company which became or becomes a Subsidiary of the Borrower
or the Guarantor after the Signing Date and which Security
Interest is in existence or contracted to be given as at the
date it becomes a Subsidiary (and which was not created in
contemplation of it becoming a Subsidiary) provided that the
principal amount of any borrowing which may be so
<PAGE>
secured shall not be increased beyond the amount outstanding
or committed at the date it becomes a Subsidiary but shall be
reduced in accordance with its terms and provided further that
in the case of a fluctuating amount for banking type
accommodation the foregoing shall not prevent fluctuation
within the overall limit that existed at that date and
provided that the amount secured under any such Security
Interest shall not be increased beyond the amount secured at
the date the company becomes a Subsidiary;
(D) those Security Interests existing at the Signing Date over the
assets and/or revenues of a Subsidiary (whether or not it is
the Borrower or the Guarantor), provided that the principal
amount of any borrowing which may be so secured shall not be
increased beyond the amount outstanding or committed at the
Signing Date but shall be reduced in accordance with its terms
and provided further that in the case of a fluctuating amount
for banking type accommodation the foregoing shall not prevent
fluctuation within the overall limit that existed at the
Signing Date;
(E) Security Interests securing the performance of bids, tenders,
bonds, leases, contracts (other than in respect of
Borrowings), statutory obligations, surety, customs and appeal
bonds and other obligations of like nature (but not including
obligations in respect of Borrowings) incurred in the ordinary
course of business provided that the aggregate amount secured
under such Security Interests shall not, at any time, exceed
$20,000,000 save that such aggregate amount may be exceeded
with the prior written consent of the Lender;
(F) Security Interests arising out of judgments or awards which
are being contested in good faith and with respect to which an
appeal or proceeding for review has been instituted or the
time for doing so has not yet expired;
(G) Security Interests upon any property which are created or
incurred contemporaneously with the acquisition of such
property to secure or provide for the payment of any part of
the purchase price of such property (but no other amounts),
provided that any such Security Interest shall not apply to
any other property of the purchaser thereof and provided
further that the aggregate amount of all liabilities secured
by this paragraph (G) shall not, at any time, exceed
$25,000,000;
(H) any Security Interest arising out of title retention
provisions in a supplier's conditions of supply of goods or
services acquired by a member of the Group in the ordinary
course of its business;
(I) any right of any bank or financial institution of combination
or consolidation of accounts or right to set-off or transfer
any sum or sums standing to the credit of any account (or
appropriate any securities held by such bank or financial
institution) in or towards satisfaction of any present or
future liabilities to that bank or financial institution;
(J) any Security Interest securing indebtedness re-financing
indebtedness secured by Security Interests permitted by
paragraphs (C), (D) or (G) above or this paragraph (J)
provided that (except to the extent otherwise permitted by
paragraph (A)) the maximum principal amount of the
indebtedness secured by such Security Interests is not
increased and such Security Interests do not extend to any
assets which were not subject to the Security Interests
securing the re-financed indebtedness;
<PAGE>
(K) any Security Interest created by a member of the Group which
is neither the Borrower nor the Guarantor securing banking
facilities over accounts receivable (or book debts) outside
the U.K. or the U.S.A.;
(L) any other Security Interest created or outstanding on or over
any assets of any member of the Group provided that the
aggregate outstanding amount secured by all Security Interests
created or outstanding under this exception in this paragraph
(L) shall not at any time exceed $40,000,000 or its equivalent
and further provided that no single such Security Interest
under this paragraph (L) shall secure an aggregate principal
amount exceeding $10,000,000 or its equivalent; and
(M) any Security Interest arising out of any of the Accounts
Receivable Facility or Back to Back Loans.
9.9 DISPOSALS
The Borrower and the Guarantor will not, without the prior written
consent of the Lender (which may be given subject to conditions), and
each of them will procure that none of its Subsidiaries will sell,
transfer, lease or otherwise dispose of all or any substantial part of
their respective assets except on an arm's length basis and for a fair
market value or to another member of the Group.
9.10 CHANGE OF BUSINESS
Except with the prior written consent of the Lender, the Borrower and
the Guarantor will not, and each will procure that none of its
respective Material Subsidiaries will, make any change in its business
as presently conducted, or carry on any other business other than its
business as presently conducted or business consisting of allied or
related activities, provided that this prohibition shall not apply
unless such change of business or other business alters the nature of
the business of the Group as a whole.
9.11 MERGERS
Neither the Borrower nor the Guarantor will without the prior written
consent of the Lender enter into any merger or consolidation if the
effect thereof would be to alter the legal personality or identity of
such Borrower or Guarantor except that the Borrower or the Guarantor
may merge or consolidate with or into any other Subsidiary which is in
the same jurisdiction as the Borrower or Guarantor (as the case may be)
provided that from the date on which the merger or consolidation takes
effect the Borrower or Guarantor is the legal entity surviving the
merger or the legal entity into which it shall be merged or the legal
entity which is formed by such consolidation shall assume its
obligations hereunder in an agreement or instrument satisfactory in
form and substance to the Lender.
9.12 INSURANCE
The Borrower and the Guarantor will, and will procure that each of its
respective Material Subsidiaries will, effect and maintain such
insurance over and in respect of its respective assets and business and
in such manner and to such extent as is reasonable and customary for a
business enterprise engaged in the same or a similar business and in
the same or similar localities.
<PAGE>
9.13 LIMITATION ON BORROWINGS OF SUBSIDIARIES
The Guarantor and the Borrower will not permit any of their
Subsidiaries to create, permit to subsist, incur, assume or in any
other manner be or become directly or indirectly liable for the payment
of any Borrowings (including, without limitation, by way of indemnity,
counter-indemnity or guarantee) other than:
(A) Borrowings under this Agreement;
(B) any Borrowings of any Subsidiary owing to another member of
the Group;
(C) Borrowings under the Consolidated Revolving Facility Agreement
dated 3rd July, 1998 and made between WPP Group plc and the
other Borrowers named therein, the Guarantors, the Facility
Agent, the Lenders and the Arrangers (all as named therein);
(D) Borrowings under the Revolving Facility Agreement dated 15th
October, 1999 and made between Moveability Limited (as
Borrower), WPP Group plc and the other Guarantors named
therein, the Facility Agent, the Lenders and the Arrangers
(all as named therein);
(E) Borrowings by a Subsidiary whose main business is to operate
as a finance company for the Group; and
(F) additional Borrowings of Subsidiaries to the extent that:
(i) no individual Material Subsidiary has or will create,
permit to subsist, incur, assume or in any other
manner be or become directly or indirectly liable for
the payment of any Borrowings (including, without
limitation, by way of indemnity, counter-indemnity or
guarantee) with an aggregate principal amount
exceeding an amount equal to 15 per cent. of
Consolidated EBITDA; and
(ii) the aggregate principal amount of Borrowings of all
Subsidiaries permitted under this sub-clause (E) does
not exceed an amount equal to 25 per cent. of
Consolidated EBITDA,
in each case for the financial period most recently ended from
time to time in respect of which financial results of the
Group have been published or announced.
9.14 GROUP ACQUISITIONS
The Guarantor will procure that the aggregate maximum value of all
Acquisition Cash Payments paid in any financial year (as reduced by the
aggregate amount of (i) any cash recorded in the balance sheet or
financial records of the company, business, undertaking or other person
the subject of the Acquisition as at the last day of the financial year
of that company or business most recently ended or, at the option of
the Guarantor, upon completion of the Acquisition and (ii) cash
proceeds of any disposals of any business or undertaking by any member
of the Group received during that financial year) shall not, without
the consent of the Lender, exceed the Acquisition Cash Limit.
<PAGE>
10. CHANGES IN CIRCUMSTANCES
10.1 ILLEGALITY
Where the introduction, imposition or variation of any law, regulation
or treaty or any change in the interpretation or application of any
law, regulation or treaty makes it unlawful for the Lender to make
available or fund or maintain the Facility or to carry out all or any
of its other obligations under this Agreement or to charge or receive
interest or fees or commissions at the rate applicable under this
Agreement:
(A) the Lender shall notify the Borrower; and
(B) (i) the Borrower shall forthwith prepay any Advance made
to it by the Lender together with all other amounts
payable by it to the Lender under this Agreement; and
(ii) the Lender's Commitment shall be cancelled.
10.2 INCREASED COSTS
Where the Lender determines that the introduction or variation of any
law or any change in the interpretation or application thereof, or
compliance with any request (whether or not having the force of law)
from any central bank or other fiscal, monetary or other authority
would increase the cost to the Lender of making or maintaining or
funding the Commitment or reduce the amount of any sum received or
receivable by it in respect of the Commitment or oblige it to make any
payment or forgo any interest or other return on, or calculated by
reference to, the amount of any sum received or receivable by it from a
Borrower in respect of the Commitment or reduce the effective return to
it under the Commitment, then:
(A) the Lender shall notify the Borrower of such event promptly
upon its becoming aware of such event; and
(B) the Borrower shall on demand pay to the Lender such amounts as
the Lender from time to time and at any time (including after
a prepayment of the Lender's participation) notifies the
Borrower to be necessary to compensate it for such increased
cost, reduction, payment or forgone interest or return,
Provided that this clause 10.2 shall not apply to or in respect of:
(i) any change in, or in the rate of, tax on overall net income of
the Lender;
(ii) any circumstances referred to in clause 11.3;
(iii) any increased costs, reduction in return payment or forgone
interest arising as a result of breach by the Lender of any
request or requirement of any fiscal, monetary or other
regulatory authority.
<PAGE>
10.3 MARKET DISRUPTION
If:
(A) the Lender determines that, by reason of circumstances
affecting the London Interbank market generally, reasonable
and adequate means do not or will not exist for ascertaining
under clause 5.4 a rate of interest applicable to the Advance;
or
(B) the Lender determines that deposits in dollars are not in the
ordinary course of business available in the London Interbank
market for a period equal to the forthcoming Interest Period
in amounts sufficient to fund their participations in an
Advance,
the Lender shall give written notice (a "SUSPENSION NOTICE") of such
determination or notification to the Borrower, and the following
provisions shall apply:
(i) If a Suspension Notice relates to the Advance which has not
yet been made hereunder, then the Lender shall not be obliged
to make such Advance hereunder until written notice to the
contrary is given by the Lender to the Borrower.
Notwithstanding the service of such Suspension Notice, the
Lender's Commitment shall remain in force and during the
period of thirty days from such Suspension Notice, the Lender
shall consult regularly in good faith with the Borrower with a
view to agreeing to an alternative basis for the making of
such Advance. If such alternative basis is agreed between the
Borrower and the Lender, it shall apply in accordance with its
terms.
(ii) If a Suspension Notice relates to the Advance outstanding at
the time of a Suspension Notice, during the period of thirty
days from such Suspension Notice, the Lender shall, in
consultation with the Borrower, certify to the Borrower an
alternative basis (in this Agreement referred to as the
"SUBSTITUTE BASIS") for maintaining the participation of the
Lender in the Advance. Without limitation, such Substitute
Basis may be retroactive to the beginning of the Interest
Period to which the Suspension Notice relates, and may include
an alternative method of fixing the interest rate (which shall
reflect the cost to the Lender of funding its participation in
such Advances from other sources plus the Margin), alternative
Interest Periods or alternative currencies for its
participation in such Advance. Each Substitute Basis so
certified shall be binding upon the relevant Borrower and the
Lender and shall be treated as part of this Agreement.
(iii) So long as any Substitute Basis is in force, the Borrower and
the Lender certifying a Substitute Basis, shall from time to
time, but not less often than monthly and at the Borrower's
request, review whether or not the circumstances referred to
in clause 10.3(i) or (ii) above (as the case may be) still
prevail with a view to returning to the normal provisions of
this Agreement.
10.4 MITIGATION
If circumstances arise in respect of the Lender which would, or would
upon the giving of notice, result in:
(A) the Borrower being obliged to pay to the Lender additional
amounts pursuant to clause 10.2 or any amounts pursuant to
clause 11.3; or
<PAGE>
(B) an alternative basis applying for the purposes of clause 10.3;
or
(C) the Borrower being obliged to repay the Lender's participation
in the Advance pursuant to clause 10.1,
then, without in any way limiting, reducing or otherwise qualifying
such Borrower's obligations under clauses 10 and 11, the Lender shall,
in consultation with the Borrower, endeavour to take such reasonable
steps as may be open to it to mitigate or remove such circumstances,
including without limitation the transfer of its rights and obligations
under this Agreement to another bank or financial institution
acceptable to the Borrower, unless to do so might (in the opinion of
the Lender) be prejudicial to the Lender or would conflict with the
Lender's general banking policies.
10.5 CERTIFICATES
Any determination or notification by the Lender concerning any matter
referred to in this clause shall, in the absence of manifest error, be
conclusive evidence as to that matter and shall be binding on the
Borrower and the Lender.
11. PAYMENTS
11.1 BY THE BORROWER AND THE GUARANTOR
All payments to be made by the Borrower or the Guarantor under this
Agreement for the account of the Lender shall be made in immediately
available funds not later than twelve noon on the relevant day to such
account as the Lender may have notified to the Borrower.
11.2 BY THE LENDER
All amounts to be advanced by the Lender to the Borrower under this
Agreement shall be remitted in immediately available funds not later
than 12 noon on the relevant day to the Borrower by payment to the
account and bank which are specified in the relevant Credit Request.
11.3 WITHHOLDINGS
All payments by the Borrower or the Guarantor under this Agreement
whether in respect of principal, interest, fees or any other item,
shall be made in full without any deduction or withholding (whether in
respect of set off, counterclaim, duties, taxes, charges or otherwise
whatsoever) unless the deduction or withholding is on account of taxes
imposed or levied by any jurisdiction in which the Borrower or the
Guarantor is incorporated or through which any payment is made and is
required by law, in which event (unless the Lender otherwise agrees
with the Borrower) the Borrower or the Guarantor shall:
(A) ensure that the deduction or withholding does not exceed the
minimum amount legally required (based on the details of the
Lender provided to the Borrower or Guarantor by the Lender);
(B) forthwith pay to the Lender such additional amount so that the
net amount received by that Lender will equal the full amount
which would have been received by it had no such deduction or
withholding been made;
<PAGE>
(C) pay to the relevant taxation or other authorities within the
period for payment permitted by applicable law the full amount
of the deduction or withholding (including, but without
prejudice to the generality of the foregoing the full amount
of any deduction or withholding from any additional amount
paid pursuant to this sub-clause); and
(D) furnish to the Lender concerned, within the period for payment
permitted by the relevant law, either an official receipt of
the relevant taxation authorities involved in respect of all
amounts so deducted or withheld or if such receipts are not
issued by the taxation authorities concerned on payment to
them of amounts so deducted or withheld, a certificate of
deduction or equivalent evidence of the relevant deduction or
withholding.
The obligation on the Borrower or Guarantor to pay an additional amount
under this clause 11.3 shall not apply to the extent that the tax
deducted is:
(i) tax on the overall income of the Lender save to the extent
that such tax is collected by way of withholding from the
relevant payment from which the deduction must be made; or
(ii) tax that would not be imposed but for the connection between
the Lender and the jurisdiction (other than the United
Kingdom) imposing such tax other than a connection arising as
a result of the Lender entering into this Agreement.
11.4 U.K. TAXES
If the Lender:
(i) at the Signing Date is not a Qualifying Bank; or
(ii) ceases to be a Qualifying Bank after the Signing Date,
otherwise than as a result of any introduction of or change in or in
the interpretation, administration or application by the English courts
or the Inland Revenue of any relevant law or any relevant practice or
concession of the Inland Revenue after the Signing Date, then the
Borrower shall not be liable to pay to the Lender any amount under this
clause 11 in excess of the amount they would have been obliged to pay
if the Lender had been (i) a bank, as so defined at the date of the
relevant Advance, and (ii) beneficially entitled to such interest and
within the charge to United Kingdom corporation tax as respects such
interest at the time such interest is paid.
11.5 TAX CREDITS
If the Borrower or the Guarantor pays any additional amount (a "TAX
PAYMENT") under clause 11.3 and the Lender effectively obtains a refund
of tax or credit against tax on its overall net income by reason of
that Tax Payment (a "TAX CREDIT") and the Lender is able to identify
such Tax Credit as being attributable to such Tax Payment, then the
Lender shall reimburse to the Borrower or, as the case may be, the
Guarantor such amount as it shall determine to be the proportion of
such Tax Credit as will leave the Lender, after that reimbursement, in
no better or worse position than it would have been in if that Tax
Payment had not been required. The Lender shall have absolute
discretion as to whether to claim any Tax Credit and, if it does so
claim, the extent, order and manner in which it does so. The Lender
shall not be obliged to
<PAGE>
disclose any information regarding its tax affairs or computations to
the Borrower or the Guarantor.
11.6 DATE
If any payment under this Agreement would otherwise be due on a day
which is not a Business Day, it shall be due on the next succeeding
Business Day or, if that Business Day falls in the following month of
the year, on the preceding Business Day.
11.7 DEFAULT INTEREST
(A) If the Borrower fails to pay any amount in accordance with this
Agreement, the Borrower shall pay interest on that amount from the time
of default up to the time of actual payment (as well after as before
judgment) at the rate per annum which is the sum of (a) the Margin plus
1% and (b) the rate, (as determined by the Lender), for a deposit of an
amount comparable to the defaulted amount, offered to the Lender in the
London Interbank market, for such period as the Lender may from time to
time select, at or about 11.00 a.m. (London time) on the Business Day
succeeding that on which the Lender becomes aware of the default for
value two Business Days later and (c) the Reserve Asset Costs (if any).
(B) If an amount unpaid in accordance with this Agreement in respect of the
Facility, is of principal due on a day during, but not the last day of,
an Interest Period relating thereto, the period selected by the Lender
under clause 11.7(A) shall equal the unexpired portion of the Interest
Period and there shall be substituted for the rate specified in clause
11.7(A) the rate of 1% above the rate calculated in accordance with
clause 5.4 and applicable to the unpaid amount immediately before it
fell due.
(C) Interest under this clause shall accrue daily on the basis of a year of
360 days from and including the first day to the last day of each
period for which a rate of interest is determined as aforesaid and
shall be due and payable by the Borrower at the end of each such
period. So long as the default continues, the rate referred to in
clause 11.7(A) shall be calculated on a similar basis at the end of
each period selected by the Lender and notified to the Lenders and
interest payable under this sub-clause which is unpaid at the end of
each such period shall thereafter itself bear interest at the rates
provided in this sub-clause.
11.8 JUDGMENT CURRENCY
If, under any applicable law, whether as a result of a judgment against
the Borrower or the Guarantor or the liquidation of the Borrower or the
Guarantor or for any other reason, any payment under or in connection
with the Facility is made or is recovered in a currency (the "OTHER
currency") other than that in which it is required to be paid hereunder
(the "ORIGINAL CURRENCY") then, to the extent that the payment to the
Lender (when converted at the rate of exchange on the date of payment
or, in the case of a liquidation, the latest date for the determination
of liabilities permitted by the applicable law) falls short of the
amount unpaid under this Agreement, the Borrower or the Guarantor shall
as a separate and independent obligation, fully indemnify the Lender
against the amount of the shortfall; and for the purposes of this
sub-clause "RATE OF exchange" means the rate at which the Lender is
able on the relevant date to purchase the original currency in London
with the other currency.
<PAGE>
12. DEFAULT
12.1 EVENTS
If (whether or not caused by any reason outside the control of the
Borrower or the Guarantor):
(A) the Borrower or the Guarantor does not pay on the due date
(or, in the case of amounts other than principal, within three
Business Days thereafter) any amount payable by it under any
of the Financing Documents at the place and in the currency
expressed to be payable (unless such failure results solely
from a technical problem in relation to the transfer of funds
for which the Borrower or the Guarantor is not responsible and
is remedied within five days of the due date); or
(B) the Borrower or the Guarantor fails to comply in any material
respect with any other provision of any of the Financing
Documents and, other than in the case of clause 9.3, if such
default is capable of prompt remedy within 30 days after the
Borrower or Guarantor shall have given notice of such default
pursuant to clause 9.4 (or, if earlier, the date on which the
Lender shall have given notice to the Borrower of such
default) the Borrower or Guarantor shall have failed to cure
such default; or
(C) any representation, warranty or written statement made or
deemed to be repeated in, or in connection with, this
Agreement or in any other Financing Document or in any
certificate delivered by or on behalf of any Borrower or any
Guarantor in writing under any of the Financing Documents is
incorrect in any material respect when made or deemed to be
repeated, or, in respect of those specified in clause 8.2,
would be if repeated at any time; or
(D) any other present or future Borrowings of a principal amount
exceeding in the aggregate $20,000,000 or the equivalent sum
in any other currency of any member of the Group shall become
due and payable or capable of being declared due and payable
prior to the due date thereof as a result of a default or any
such Borrowings shall not be paid on the due date thereof (or,
if a grace period was originally provided for in the document
evidencing or constituting such Borrowing, within any
applicable grace period therefor) or any Security Interest
over any assets of any member of the Group and securing a
principal amount exceeding $20,000,000 shall be or become
enforceable; or
(E) any Borrower, Guarantor or Material Subsidiary is deemed
unable to pay its debts within the meaning of section
123(1)(a), (b), (c) or (d) of the Insolvency Act 1986 (as that
section may be amended by order under section 416 or
otherwise), or any Borrower, Guarantor or Material Subsidiary
becomes unable to pay its debts as they fall due, or any
Borrower, Guarantor or Material Subsidiary suspends making
payments (whether of principal or interest) with respect to
all or any class of its debts or announces an intention to do
so; or
(F) an application for an administration order in relation to any
Borrower, Guarantor or Material Subsidiary is presented to the
court by any such company or its directors or the supervisor
of a voluntary arrangement relating to any Borrower, Guarantor
or Material Subsidiary or such an order is made on the
application of a creditor of any Borrower, Guarantor or
Material Subsidiary or any meeting of any Borrower, Guarantor
or Material Subsidiary is convened for the purpose of
considering any resolution to present an application for such
an order; or
<PAGE>
(G) any kind of composition, scheme of arrangement, compromise or
arrangement involving any Borrower, Guarantor or Material
Subsidiary and its creditors generally (or any class of them)
is proposed by the company concerned; or
(H) any administrative or other receiver or any manager of any
Borrower, Guarantor or Material Subsidiary or all or a
substantial part of any of its property is appointed, or the
directors of any Borrower, Guarantor or Material Subsidiary
request any person to appoint such a receiver or manager, or
any kind of attachment (except prejudgment attachment),
sequestration, distress or execution against any Borrower,
Guarantor or Material Subsidiary or all or a substantial part
of its property is levied or sued out and not discharged
within 30 days; or
(I) any meeting of any Borrower, Guarantor or Material Subsidiary
is convened for the purpose of considering any resolution for
(or to petition for) its winding up, or any Borrower,
Guarantor or Material Subsidiary passes such a resolution, or
any Borrower, Guarantor or Material Subsidiary or any other
person (except its creditor) presents any petition for the
winding up of any Borrower, Guarantor or Material Subsidiary,
or an order for the winding up of any Borrower, Guarantor or
Material Subsidiary is made on the petition of any of its
creditors; or
(J) there occurs in relation to any Borrower, Guarantor or
Material Subsidiary in any country or territory in which it
carries on business or to the jurisdiction of whose courts it
or any of its property is subject any event which reasonably
appears to the Majority Lenders to correspond in that country
or territory with any of those mentioned in paragraphs (E) to
(I) inclusive above or any Borrower, Guarantor or Material
Subsidiary otherwise becomes subject, in any such country or
territory, to any law relating to insolvency, bankruptcy or
liquidation; or
(K) any Borrower, Guarantor or Material Subsidiary ceases, or
threatens to cease, to carry on all or a substantial part of
its business except consequent upon a disposal, merger or
acquisition not otherwise prohibited under this Agreement; or
(L) any authorisation, approval, consent, licence, exemption,
filing, registration or notarisation or other requirement
necessary to enable any Borrower or Guarantor to comply with
its obligations under any of the Financing Documents to which
it is a party in any material respect is revoked or withheld
or does not remain in full force and effect or is materially
and adversely modified; or
(M) any single person, or group of persons acting in concert (as
defined in the City Code on Takeovers and Mergers), acquires
control (as defined in Section 416 of the Income and
Corporation Taxes Act 1988) of the Guarantor and, in a
situation where the acquisition of such control of the
Guarantor takes place with the consent, and on the
recommendation, of the Board of Directors of the Borrower
only, ninety days shall have elapsed following such
acquisition of control; or
(N) at any time it is unlawful for any Borrower or any Guarantor
to perform any of its material obligations under any Financing
Document to which it is a party; or
(O) any litigation, arbitration or administrative proceeding or
claim in which there is a reasonable possibility of an adverse
decision which has had or would be reasonably likely by itself
or together with any other such proceedings or claims either
to have a material adverse effect on the business, assets or
consolidated financial condition of the Group as a whole or
which would be reasonably likely materially and adversely to
<PAGE>
affect the ability of the Borrowers and Guarantors taken as a
whole to observe or perform their obligations under any
Financing Documents and which affect any Borrower, any
Guarantor or the Group as a whole is in progress or pending or
threatened; or
(P) (i) any U.S. Subsidiary (a "QUALIFYING U.S. SUBSIDIARY") which
is a Material Subsidiary shall commence any case, proceeding
or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to winding-up,
dissolution, bankruptcy, insolvency, reorganisation or relief
of debtors, seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganisation, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its
assets, or any Qualifying U.S. Subsidiary shall make a general
assignment for the benefit of its creditors; or (ii) there
shall be commenced against any Qualifying U.S. Subsidiary any
case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order
for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of
sixty days; or (iii) there shall be commenced against any
Qualifying U.S. Subsidiary any case, proceeding or other
action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged,
or stayed or bonded pending appeal within sixty days from the
entry thereof; or (iv) any Qualifying U.S. Subsidiary shall
take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii) or (iii) above: or (v) any Qualifying U.S.
Subsidiary shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they
become due; or
(Q) any other event or series of events whether related or not
which has a material adverse effect on the business, assets or
consolidated financial condition of the Group as a whole or
which would be reasonably likely materially and adversely to
affect the ability of the Group as a whole to comply with any
or all of its obligations under the Financing Documents
occurs,
then, at once or at any time thereafter, the Lender may by notice to
the Borrower, declare the Outstandings to be immediately due and
payable whereuponthe Advance and all other sums outstanding under the
Facility shall become so due and payable together with accrued interest
thereon and any other amounts then payable under this Agreement or the
Facility.
13. INDEMNITY
13.1 GENERAL INDEMNITY
The Borrower and the Guarantor shall fully indemnify the Lender from
and against any expense, loss, damage or liability (as to the amount of
which the certificate of the Lender shall, in the absence of manifest
error, be conclusive) which it may incur as a consequence of the
occurrence of any Event of Default, of any failure to draw down in
accordance with a Credit Request or other notification of any intention
to utilise the Facility or of any repayment or prepayment under this
Agreement or otherwise in connection with this Agreement (including
without limitation any repayment or prepayment pursuant to clause 6 or
7.1). Without prejudice to its generality, the foregoing indemnity
shall extend to any interest, fees
<PAGE>
or other sums whatsoever paid or payable on account of any funds
borrowed in order to carry any unpaid amount and to any loss, premium,
penalty or expense which may be incurred in liquidating or employing
deposits from third parties acquired to make, maintain or fund the
Outstandings (or any part of them) or any other amount due or to become
due under this Agreement.
13.2 WAIVER OF DEFENCES
The Borrower and the Guarantor agree that no delay, extension of time,
renewal, compromise, waiver, indulgence, release of security or rights
or any other matter or thing shall in any way prejudice the Lender's
rights or powers hereunder. The Borrower shall not by virtue of any
payment made by it pursuant to this clause 13 claim in competition with
the Lender any right of subrogation, contribution or indemnity against
any member of the Group so long as any amount is or is capable of
becoming outstanding hereunder.
14. GUARANTEE
14.1 GUARANTEE
The Guarantor unconditionally and irrevocably guarantees, as a
continuing obligation, the proper and punctual payment by the Borrower
of the Guaranteed Amounts and unconditionally and irrevocably
undertakes, as a continuing obligation, with the Lender that, if for
any reason the Borrower does not make such payment, the Guarantor shall
pay the Guaranteed Amounts upon first written demand by the Borrower.
14.2 PRINCIPAL DEBTOR
The Guarantor shall be deemed to be liable for the Guaranteed Amounts
as sole or principal debtor.
14.3 DISCHARGE
The liabilities and obligations of the Guarantor under this Agreement
shall remain in force notwithstanding any act, omission, neglect, event
or matter whatsoever, except the proper and valid payment of all the
Guaranteed Amounts and, subject to clause 14.4, an absolute discharge
or release of the Guarantor signed by the Lender; and without prejudice
to its generality, the foregoing shall apply in relation to anything
which would have discharged the Guarantor (wholly or in part) or which
would have afforded the Guarantor any legal or equitable defence, and
in relation to any winding up or dissolution of, or any change in
constitution or corporate identity or loss of corporate identity by,
the Borrower or any other person.
14.4 PREFERENCE
Any such discharge or release as is referred to in clause 14.3, and any
composition or arrangement which the Guarantor may effect with the
Lender, shall be deemed to be made subject to the condition that it
will be void if any payment or security which the the Lender may
previously have received or may thereafter receive from any person in
respect of the Guaranteed Amounts is set aside under any applicable law
or proves to have been for any reason invalid.
<PAGE>
14.5 NO IMPAIRMENT
Without prejudice to the generality of clauses 14.2 and 14.3 none of
the liabilities or obligations of the Guarantor under this Agreement
shall be impaired by, and the Guarantor hereby irrevocably waives any
defences it may now or hereafter have in any way relating to, the
Lender:
(A) agreeing with the Borrower any variation or departure (however
substantial) of or from this Agreement (other than this
clause) or any of the Financing Documents and any such
variation or departure shall, whatever its nature, be binding
upon the Guarantor in all circumstances, notwithstanding that
it may increase or otherwise affect the liability of the
Guarantor provided however that if any such variation is made,
without the Guarantor's prior written consent, which has the
effect of increasing the amount of the Facility or the Margin,
the amount of the Guarantor's liability under this clause
shall be limited to the amount for which they would have been
liable had such variation not been made;
(B) releasing or granting any time or any indulgence whatsoever to
the Borrower or Guarantor and, in particular, waiving any of
the pre-conditions for Credits under this Agreement or any
contravention by the Borrower of this Agreement, or entering
into any transaction or arrangements whatsoever with or in
relation to the Borrower and/or any third party; and
(C) taking, perfecting, accepting, varying, dealing with,
enforcing, abstaining from enforcing, surrendering or
releasing any security for the Guaranteed Amounts in such
manner as it or they think fit, or claiming, proving for,
accepting or transferring any payment in respect of the
Guaranteed Amounts in any composition by, or winding up of,
the Borrower and/or any third party or abstaining from so
claiming, proving, accepting or transferring.
14.6 DEMANDS
Demands under this clause may be made from time to time, and the
liabilities and obligations of the Guarantor under this Agreement may
be enforced, irrespective of:
(A) whether any demands, steps or proceedings are being or have
been made or taken against any of the Borrower and/or any
third party; or
(B) whether or in what order any security to which the Lender may
be entitled in respect of the Guaranteed Amounts is enforced.
Each Guarantor waives diligence, presentment, protest, demand for
payment and notice of default to or upon the Borrower or Guarantor.
14.7 SUSPENSE ACCOUNT
Until all amounts which may be or become payable by the Borrower
hereunder or under any of the Financing Documents or in connection
herewith or therewith have been irrevocably paid and discharged in
full, the Lender may:
(A) refrain from applying or enforcing any other security, moneys
or rights held or received by the Lender in respect of such
amounts or apply and enforce the same in
<PAGE>
such manner and order as it sees fit (whether against such
amounts or otherwise) and the Guarantor shall not be entitled
to the benefit of the same; and
(B) hold in suspense account (subject to the accrual of interest
thereon at market rates for the account of the Guarantor) any
moneys received from the Guarantor or on account of that
Guarantor's liability hereunder.
14.8 SUBORDINATION
So long as the Guarantor has any liability under this Agreement and
except as provided in clause 14.9 below:
(A) the Guarantor shall not take or accept any Security Interest
from the Borrower or, in relation to the Guaranteed Amounts,
from any third party, without first obtaining the Lender's
written consent;
(B) after the occurrence of an Event of Default, the Guarantor
shall not, without first obtaining the Lender's written
consent, seek to recover, whether directly or by set off,
lien, counterclaim or otherwise, nor accept any moneys or
other property, nor exercise any rights in respect of, any sum
which may be or become due to the Guarantor on any account by
the Borrower or, in relation to the Guaranteed Amounts, from
any third party, nor claim, prove for or accept any payment in
any composition by, or any winding up of, the Borrower or, in
relation to the Guaranteed Amounts, any third party;
(C) if, notwithstanding the foregoing, the Guarantor holds or
receives any such security, moneys or property, it shall
forthwith pay or transfer the same to the Lender.
14.9 DEFERRAL OF SUBROGATION, CONTRIBUTION, REIMBURSEMENT, EXONERATION AND
INDEMNITY
The Guarantor agrees that it will not exercise any rights that it may
now have or hereafter acquire against the Borrower or any other person
that arise from the existence, payment, performance or enforcement of
the Guaranteed Amounts, including without limitation any right of
subrogation, contribution, reimbursement, exoneration or indemnity (or
any similar right) prior to the later of the cash payment in full of
the Guaranteed Amounts and all other amounts payable under this clause
14 and the Final Maturity. If any amount shall be paid to the Guarantor
in violation of the preceding sentence, such amount shall be held in
trust for the benefit of the Lender and shall forthwith be paid to the
Lender to be credited and applied to the Guaranteed Amounts and all
other amounts payable under this clause 14, whether or not due, in
accordance with the terms of the Financing Documents, or be held as
collateral security for any Guaranteed Amounts or other amounts payable
under this clause 14 and thereafter arising. If (i) the Guarantor shall
make payment of all or any part of the Guaranteed Amounts, (ii) all of
the Guaranteed Amounts and all other amounts payable under this clause
14 shall be paid in full in cash and (iii) the Final Maturity shall
have occurred, the Lender will, at the Guarantor's request and expense,
execute and deliver to the Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence
the transfer by subrogation to the Guarantor of an interest in the
Guaranteed Amounts resulting from such payment by the Guarantor.
14.10 INDEMNITY
As a separate, additional and continuing obligation, the Guarantor
unconditionally and irrevocably undertakes with the Lender that, should
the Guaranteed Amounts not be
<PAGE>
recoverable from the Guarantor under clause 14.1 for any reason
whatsoever (including, but without prejudice to the generality of the
foregoing, by reason of any other provision of this Agreement being or
becoming void, unenforceable or otherwise invalid under any applicable
law) then, notwithstanding that it may have been known to the Lender,
the Guarantor shall, as a sole, original and independent obligor, upon
first written demand by the Lender under clause 14.1, make payment of
the Guaranteed Amounts by way of a full indemnity in such currency and
otherwise in such manner as is provided for in this Agreement and shall
indemnify the Lender against all losses, claims, costs, charges and
expenses to which they may be subject or which they may incur under or
in connection with this Agreement.
15 FEES AND EXPENSES
15.1 UPFRONT FEE
The Borrower will pay to the Lender for its own account an upfront fee
in accordance with the terms of a letter dated the Signing Date between
the Borrower and the Lender.
15.2 EXPENSES
The Borrower shall on demand pay, in each case on the basis of a full
indemnity:
(A) to the Lender all reasonable expenses (including legal,
printing, publicity and out-of-pocket expenses) reasonably
incurred by the Lender in connection with the negotiation,
preparation or completion of this Agreement and any related
documents; and
(B) to the Lender all expenses (including legal and out-of-pocket
expenses) incurred by it in connection with any variation,
refinancing, consent or approval relating to the Financing
Documents or incurred by it in connection with the
preservation, enforcement or the attempted preservation or
enforcement of any of their rights under the Financing
Documents or any related documents.
15.3 STAMP DUTY
The Borrower shall pay any stamp, documentary and other similar duties
and taxes to which the Financing Documents or any related documents
(other than an assignment or transfer of the Lender's rights or
obligations hereunder) may be subject or give rise in any relevant
jurisdiction and shall fully indemnify the Lender from and against any
losses or liabilities which any of them may incur as a result of any
delay or omission by the Borrower to pay any such duties or taxes.
15.4 VALUE ADDED TAX
The amounts stated in this Agreement to be payable by the Borrower are
exclusive of United Kingdom value added tax ("VAT") and accordingly:
(A) the Borrower shall pay any VAT properly chargeable in respect
of supplies to the Borrower as contemplated by this Agreement
(including any VAT chargeable by the Lender in respect of its
supplies to the Borrower under this Agreement); and
(B) in the case of goods or services supplied to the Lender as
contemplated by this Agreement, the Borrower shall pay to the
Lender by way of additional remuneration such amount as shall
represent any associated VAT (whether charged by the supplier
<PAGE>
or suffered by reason of the reverse charge provisions
contained in section 8 of the Value Added Tax Act 1994) to the
extent that VAT is not, in the reasonable opinion of the
Lender, otherwise recoverable as input tax.
16. SET OFF
Following an Event of Default, the Lender may at the same time as
providing notice to the Borrower or the Guarantor combine, consolidate
or merge all or any of the Borrower's or Guarantor's accounts with, and
liabilities to, the Lender and may set off or transfer any sum standing
to the credit of any such accounts in or towards satisfaction of any of
the Borrower's or the Guarantor's, as the case may be, liabilities to
the Lender under the Financing Documents, and may do so notwithstanding
that the balances on such accounts and the liabilities may not be
expressed in the same currency and the Lender is hereby authorised to
effect any necessary conversions at the Lender's own rate of exchange
then prevailing.
17. BENEFIT OF AGREEMENT
17.1 TRANSFER BY BORROWERS AND GUARANTORS
Neither the Borrower nor the Guarantor may assign or transfer all or
any part of the rights or obligations hereunder without the prior
written consent of the Lender.
17.2 TRANSFER BY LENDER
The Lender (the "TRANSFEROR") may at any time, with the prior written
consent of the Borrower (such consent not to be unreasonably withheld
or delayed) except in the case of any such transfer to another member
of the group of companies to which the Lender belongs (provided that
the Borrower has confirmed to the Lender that it is satisfied (which
confirmation shall not be unreasonably withheld and shall be deemed to
have been given if the Borrower has failed to respond to a request
therefor within five Business Days of the date of receipt thereof) that
interest payable to the transferee by the Borrower would be a tax
deductible expense of the Borrower), in which case no such consent
shall be required, transfer to any other bank or financial institution
which is a Qualifying Bank (the "TRANSFEREE") the whole or any part of
its rights and/or obligations under the Facility by the execution of a
Transfer Certificate substantially in the form of Schedule 4. For the
avoidance of doubt, any such transfer may be in whole or in part of the
Transferor's Commitment but, if in part, in a minimum amount of
$5,000,000 (unless the Borrower otherwise agrees at its absolute
discretion) and provided that after such transfer such Transferor's
Commitment shall not be less than $5,000,000 (or zero if the whole of
such Transferor's Commitment is transferred). A Transfer Certificate
shall only be valid if it is in writing signed by each of the
Transferor and the Transferee and is contained in one document or two
counterparts.
17.3 TRANSFER CERTIFICATES
(A) Each of the parties hereto agrees that, with effect from the date of
the Transfer Certificate:
(i) the Transferor shall cease to be entitled to the rights and
shall be released from the obligations hereunder which are
specified in the Transfer Certificate;
(ii) the Transferee shall become a party hereto as a Lender
entitled to rights and liable to observe obligations which
differ from those referred to in (i) only insofar as the
Transferee is entitled thereto and liable in respect thereof
in place of the Transferor;
<PAGE>
accordingly, each of the parties hereto confirms that (a) the delivery
by a Transferor to a Transferee of a Transfer Certificate signed by the
Transferor constitutes an irrevocable offer by each of the parties
hereto to accept the Transferee as a Lender party to this Agreement
entitled to such rights and liable to observe such obligations as are
mentioned in (ii) above, (b) such offer may be accepted by the
execution of the Transfer Certificate by the Transferee and (c) the
provisions of this Agreement shall apply to the contract between the
parties hereto arising from the acceptance of such offer.
17.4 TRANSFEREES
Each Transferee shall accept that none of the other parties hereto is
in any way responsible for (a) the accuracy and/or completeness of any
information supplied to the Transferee in connection herewith, (b) the
financial condition, creditworthiness, condition, affairs, status and
nature of the Borrower or the Guarantor or the observance by the
Borrower or the Guarantor of any of its obligations under this
Agreement or any document relating hereto, or (c) the legality,
validity, effectiveness, adequacy or enforceability of this Agreement
or any document relating hereto or thereto and, save as otherwise
expressly provided herein, none of such parties shall, or shall be
deemed to be, the agent or trustee of such Transferee in connection
herewith.
17.5 OFFICE
The Lender shall make the Commitment available from, and may receive
the benefit of any payment due to it under this Agreement at, its
lending office(s) notified to the Borrower on or prior to the date of
this Agreement. The Lender shall give the Borrower prior written notice
of any change in any lending office (which may only be to another
office or other offices in either the United Kingdom or the United
States unless the Borrower and the Lender otherwise agree, such
agreement on the part of the Borrower not to be unreasonably withheld
or delayed).
17.6 CONFIDENTIALITY
The Lender may disclose to a proposed assignee, transferee or
sub-participant such information in its possession relating to the
Borrower and Guarantor as it thinks appropriate but:
(A) any such person must first undertake to the Lender and to the
Borrower to keep such information confidential; and
(B) nothing in this clause 17.6 shall permit the disclosure of any
confidential information which the Borrower specifically
provides in writing should not be disclosed to any person.
17.7 LIMITATION OF INCREASED COSTS
Where the Lender assigns or transfers all or any part of its rights or
obligations hereunder or changes its lending office for the purpose of
this Agreement, the Borrower shall not be liable (other than where such
change in its lending office was requested by the Borrower to pay any
additional amounts under clauses 10.2 or 11.3 due to circumstances
existing on the effective date of such assignment or transfer and which
would not have been payable had no such change, assignment or transfer
taken place.
<PAGE>
17.8 SUB-PARTICIPATIONS
The Lender shall not be required to notify any other party to this
Agreement of a sub-participation of its rights and interests hereunder
provided that nothing in this clause 17.8 gives any sub-participant any
rights against the Borrower or Guarantor. The Borrower shall not be
liable to pay any additional amounts under clause 10.2 or clause 11.3
arising as a direct consequence of any such sub-participation.
18. FURTHER PROVISIONS
18.1 EVIDENCE OF INDEBTEDNESS
In any proceedings relating to this Agreement a statement as to any
amount due to the Lender under this Agreement which is certified as
being correct by an officer of the Lender, shall, unless otherwise
provided in this Agreement, be prima facie evidence that such amount is
in fact due and payable.
18.2 APPLICATION OF MONEYS
If any sum paid or recovered in respect of the liabilities of the
Borrower under this Agreement is less than the amount then due, the
Lender may apply that sum to principal, interest, fees or any other
amount due under this Agreement in such proportions and order and
generally in such manner as the Lender shall determine.
18.3 RIGHTS CUMULATIVE: WAIVERS
The rights of the Lender under this Agreement are cumulative, may be
exercised as often as it considers appropriate and are in addition to
its rights under the general law. The rights of the Lender in relation
to the Facility (whether arising under this Agreement or under the
general law) shall not be capable of being waived or varied otherwise
than by an express waiver or variation in writing; and in particular
any failure to exercise or any delay in exercising any of such rights
shall not operate as a waiver or variation of that or any other such
right; any defective or partial exercise of any of such rights shall
not preclude any other or further exercise of that or any other such
right; and no act or course of conduct or negotiation on their part or
on their behalf shall in any way preclude them from exercising any such
right or constitute a suspension or any variation of any such right.
18.4 NOTICES
Except as otherwise stated herein, all notices or other communications
hereunder to any party hereto shall be deemed to be duly given or made
when delivered (in the case of personal delivery or letter) and when
despatched (in the case of telex or fax) to such party addressed to it
at its address, telex number or facsimile number:
in the case of the Lender, the Borrower and the Guarantor as follows,
or such a party may specify to all the other parties hereto in writing
from time to time:
The Lender (i) in relation to the Credit Request and Interest Periods
National Westminster Bank Plc
Treasury, GFM, Corporate Money Desk
135 Bishopsgate
London EC2M 3UK
<PAGE>
Facsimile No.: 0207 334 1288
Attention: Duncan Wiggins
(ii) in relation to any other matter
National Westminster Bank Plc
Major Corporate Group
PO Box 12264
6th Floor, 1 Princes Street
London EC2R 8PB
Facsimile No.: 0207 390 1417
Attention: Steve Barlow
The Borrower WPP Pearls Limited
27 Farm Street
London W1X 6RD
Facsimile No: 0207 4918417
Attention: Company Secretary
The Guarantor WPP Group plc
27 Farm Street
London W1X 6RD
Facsimile No: 0207 491 8417
Attention: Company Secretary
18.5 ENGLISH LANGUAGE
All notices or communications under or in connection with this
Agreement shall be in the English language or, if in any other
language, accompanied by a translation into English. In the event of
any conflict between the English text and the text in any other
language, the English text shall prevail.
18.6 INVALIDITY OF ANY PROVISION
If any of the provisions of this Agreement becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
18.7 COUNTERPARTS
This Agreement may be executed in any number of counterparts, and such
execution shall have the same effect as if the signatures on the
counterparts were on a single copy of this Agreement.
18.8 CHOICE OF LAW
This Agreement is governed by, and shall be construed in accordance
with, the laws of England.
<PAGE>
18.9 SUBMISSION TO JURISDICTION
(A) (i) For the benefit of the Lender, all the parties agree that
the courts of England are to have jurisdiction to settle any
disputes which may arise in connection with the legal
relationships established by this Agreement (including,
without limitation, claims for set-off or counterclaim) or
otherwise arising in connection with this Agreement.
(ii) The Borrower and the Guarantor irrevocably waive any
objections on the ground of venue or forum non conveniens or
any similar grounds.
(iii) The Borrower and the Guarantor irrevocably consent to service
of process by mail or in any other manner permitted by the
relevant law.
18.10 CHANGE OF CURRENCY
(A) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank of
any country as the lawful currency of that country, then:
(i) any reference in the Financing Documents to, and any
obligations arising under the Financing Documents in, the
currency of that country shall be translated into, or paid in,
the currency or currency unit of that country designated by
the Lender; and
(ii) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency
unit into the other, rounded up or down by the Agent (acting
reasonably).
(B) If a change in any currency of a country occurs, this Agreement will,
to the extent the Lender (acting reasonably) specifies to be necessary
be amended to comply with any generally accepted conventions and market
practice in the relevant interbank market and otherwise to reflect the
change in currency.
Signed by the authorised representatives of the parties.
<PAGE>
SCHEDULE 1
CALCULATION OF MANDATORY COST
(a) The Mandatory Cost for the Advance during each period in respect of
which interest is payable under this Agreement is the rate expressed as
a rate per annum determined by the Lender to be equal to the rate
notified by the Lender and calculated in accordance with the following
formula:
F x 0.01% per annum = Mandatory Cost
---------
300
where on the day of application of the formula:
F is the charge payable by the Lender to the Financial Services
Authority under paragraph 2.02 or 2.03 (as appropriate) of the
Fees Regulations but where for this purpose, the figure in
paragraph 2.02b and 2.03b will be deemed to be zero expressed
in pounds per (pound)1 million of the fee base of the Bank.
(b) For the purposes of this Schedule 1:
(i) "FEE BASE" has the meaning given to it in the Fees Regulations;
(ii) "FEES REGULATIONS" means any regulations governing the payment
of fees for banking supervision.
(c) (i) The formula is applied on the first day of each relevant
period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(d) If the Lender determines that a change in circumstances has rendered,
or will render, the formula inappropriate, the Lender shall notify the
Borrower of the manner in which the Mandatory Cost will subsequently be
calculated. The manner of calculation so notified by the Lender shall,
in the absence of manifest error, be binding on all of the Borrower,
the Guarantor and the Lender.
<PAGE>
SCHEDULE 2
CREDIT REQUEST IN RESPECT OF ADVANCES
To: [*the Lender] Date: [* ], [20 [* ]]
Dear Sirs,
TERM LOAN AGREEMENT DATED 14TH JANUARY, 2000
DRAWING NUMBER: [* ]
1. We refer to clause 4 of the Term Loan Agreement. Terms defined in the
Term Loan Agreement have the same meanings in this Credit Request.
2. We wish to borrow the Advance with the following specifications:
(a) Drawing Date: [* ] [20[* ]]
(b) Amount: [* ]
(c) Interest Period: [* ]
(d) Payment Instructions: [* ]
3. We confirm that the matters represented and warranted by the Borrower
and the Guarantor set out in clause 8.2 of the Term Loan Agreement are
true and accurate on the date of this Credit Request as if made with
reference to the facts and circumstances now prevailing and that no
Event or Default or Potential Event or Default has occurred and is
continuing or would result from the Credit.
Yours faithfully,
[Authorised Signatory]
for and on behalf of
[Borrower]
<PAGE>
SCHEDULE 3
CERTIFICATE
[Letterhead of Borrower/Guarantor]
To: [*the Lender]
I [*name], the [Secretary] of [*name of Borrower/Guarantor] of [*address] (the
"Company")
HEREBY CERTIFY that:
(i) attached hereto marked "A" are true and correct copies of all documents
which contain or establish or relate to the constitution of the
Company;
(ii) attached hereto marked "B" is a true and correct copy of [resolutions
duly passed] at [a meeting of the Board of Directors] of the Company
duly convened and held on [ ] 20[* ] approving the Term
Loan Agreement to be entered into between (1) WPP Pearls Limited,
(2) WPP Group plc and (3) [*the Lender] and authorising its signature,
delivery and performance and such resolutions have not been amended,
modified or revoked and are in full force and effect; and
The following signatures are the true signatures of the persons who have been
authorised to sign the Term Loan Agreement and to give notices and
communications, including notices of drawing, under or in connection with the
Term Loan Agreement.
<TABLE>
<CAPTION>
Name Position Signature
<S> <C> <C>
* *
* *
* *
</TABLE>
Signed: ......................
[Secretary]
""""""""""""""
<PAGE>
SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
To: [*the Lender]
TRANSFER CERTIFICATE
relating to a Term Loan Agreement (the "TERM LOAN AGREEMENT") dated 14th
January, 2000 and made between (1) WPP Pearls Limited, (2) WPP Group plc, and
(3) the Lender. Terms defined in the Term Loan Agreement have the same meanings
herein.
1. [Transferor Lender] (the "LENDER") (a) confirms that to the extent that
details appear in the Schedule hereto against, as the case may be, the
heading "LENDER'S COMMITMENT" and/or "Lender's Participation", such
details accurately summarise, as the case may be, its participation in
the Facility and (b) requests [Transferee Lender] (the "TRANSFEREE") to
accept and procure the transfer to the Transferee of the portion
specified in the Schedule of, as the case may be, its participation in
the Facility by counter-signing and delivering this Transfer
Certificate to the Lender at its address for the service of notices
specified in the Term Loan Agreement.
2. The Transferee confirms that it has received a copy of the Term Loan
Agreement together with such other documents and information as it has
required in connection with this transaction and that it has not relied
and will not hereafter rely on the Lender to check or enquire on its
behalf into the execution, validity, enforceability, effectiveness,
adequacy, accuracy or completeness of any such documents or information
and further agrees that it has not relied and will not rely on the
Lender to assess or keep under review on its behalf the financial
condition, credit worthiness, affairs, status or nature of the Borrower
or of any other party to the Term Loan Agreement.
3. The Transferee hereby undertakes with the Lender and each of the other
parties to the Term Loan Agreement that it will perform in accordance
with their terms all those obligations which by the terms of the Term
Loan Agreement will be assumed by it upon execution of this Transfer
Certificate and satisfaction of the conditions (if any) subject to
which this Transfer Certificate is expressed to take effect.
5. The Transferee confirms as follows:
(A) it will be beneficially entitled to its rights to principal and
interest under the Agreement; and
(B) it is a Qualifying Bank as at the date of the transfer.
6. The Lender makes no representation or warranty and assumes no
responsibility with respect to the execution, validity, enforceability,
effectiveness or adequacy of the Term Loan Agreement or any document
relating thereto and assumes no responsibility for the financial
condition of the Borrower or the Guarantor or for the performance and
observance by the Borrower or the Guarantor or any other such party of
any of its obligations under the Term Loan Agreement or any document
relating thereto and any and all such conditions and warranties,
whether express or implied by law or otherwise, are hereby excluded.
<PAGE>
7. The Lender hereby gives notice to the Transferee (and the Transferee
hereby acknowledges and agrees with the Lender) that the Lender is
under no obligation to purchase (or in any other manner to assume,
undertake or discharge any obligation or liability in relation to) the
portion transferred and referred to in the Schedule at any time after
this Transfer Certificate shall have taken effect.
8. Following the date upon which this Transfer Certificate shall have
taken effect, without limiting the provisions hereof, each of the
Transferee and the Lender hereby acknowledges and confirms to the other
that in relation to the portion transferred and referred to in the
Schedule variations, amendments or alterations to any of the terms of
any of the Term Loan Agreement and the Financing Documents arising in
connection with any renegotiation or rescheduling of the obligations
hereunder shall apply to and be binding on the Transferee alone.
9. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law.
<PAGE>
THE SCHEDULE
<TABLE>
<S> <C> <C>
LENDER'S COMMITMENT PORTION TRANSFERRED
Facility Commitment
LENDER'S PARTICIPATION
AMOUNT TERM PORTION TRANSFERRED
[Transferor Lender] [Transferee Lender]
Address:
Telex:
By: By:
Date: Date:
</TABLE>
<PAGE>
SIGNATORIES
THE BORROWER
WPP PEARLS LIMITED
By: Paul Richardson
THE GUARANTOR
WPP GROUP PLC
By: Paul Richardson
THE LENDER
NATIONAL WESTMINSTER BANK PLC
By: Steve Pateman
