EXHIBIT 99.1
CONFORMED COPY
DATED 7th August, 2000
WPP FINANCE CO. LIMITED
and
WPP GROUP U.S. FINANCE CORP.
(as Borrowers)
WPP GROUP PLC
(as Guarantor)
CITIBANK INTERNATIONAL PLC
(as Facility Agent)
and
THE LENDERS HEREIN REFERRED TO
---------------------------------------
REVOLVING CREDIT FACILITY AND TERM OUT
FACILITY AGREEMENT
----------------------------------------
FOR THE LENDERS: FOR WPP GROUP PLC:
CLIFFORD CHANCE ALLEN & OVERY
LIMITED LIABILITY PARTNERSHIP
200 Aldersgate Street One New Change
London EC1A 4JJ London EC4M 9QQ
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CONTENTS
CLAUSES PAGE
1. Interpretation.......................................................1
2. Amount and purpose of the Facility..................................11
3. Syndicate and Borrowers and Guarantors..............................11
4. Conditions Precedent................................................13
5. Utilisation of Facility.............................................15
6. Alternative Currencies for Facility.................................17
7. Interest and Fees...................................................18
8. Reduction of Facility and Repayment.................................20
9. Prepayment and Cancellation.........................................21
10. Representations and Warranties......................................23
11. Undertakings........................................................25
12. Changes in Circumstances............................................30
13. Payments............................................................33
14. Default.............................................................38
15. Indemnity...........................................................41
16. Guarantee...........................................................42
17. The Facility Agent..................................................45
18. Fees and Expenses...................................................49
19. Set-off and Pro Rata Sharing........................................50
20. Benefit of Agreement................................................52
21. Further Provisions..................................................54
SCHEDULES
1. Lenders and Commitments.............................................58
2. Calculation of the Mandatory Cost...................................61
3. Request in respect of Advances......................................63
4. Certificate.........................................................66
5. Form of Accession Notice............................................67
6. Notice of Proposed Substitution.....................................68
7. Form of Novation Agreement..........................................69
8. Form of Transfer Certificate........................................72
SIGNATORIES..............................................................75
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THIS AGREEMENT is made the 7th day of August, 2000.
BETWEEN:
1. WPP GROUP plc of 27 Farm Street, London W1X 6RD as guarantor (the
"COMPANY");
2. WPP FINANCE CO. LIMITED of 27 Farm Street, London W1X 6RD as borrower
("WPP FINANCE");
3. WPP GROUP U.S. FINANCE CORP. of 14th Floor, Worldwide Plaza, 309 West
49th Street, New York, NY 10019-7399, USA as borrower; ("WPP GROUP
U.S. FINANCE");
4. CITIBANK INTERNATIONAL plc of PO Box 78, 335 Strand, London WC2R 1LS
(the "FACILITY AGENT"); and
5. THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 (the
"LENDERS").
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement each of the following expressions has, except where
the context otherwise requires, the meaning shown opposite it:
"ACCESSION NOTICE" means in respect of a proposed additional Borrower,
a notice substantially in the form set out in Schedule 5 duly
completed and signed on behalf of the proposed additional Borrower and
the Borrowers' Agent;
"ACCOUNTS RECEIVABLE FACILITIES" means the receivables purchase
facility in an amount, on 3rd July, 1998, of up to $350,000,000 under
the pooling and servicing agreement dated 3rd December, 1993 between
Capital III Corp. as the seller, WPP Group USA Inc., as the servicer
and Mellon Bank N.A., as the Trustee, together with all related
transaction documents as amended, increased, restated, extended,
refinanced or replaced from time to time;
"ADVANCE" means the principal amount of each amount made available to
a Borrower hereunder in respect of the Facility by way of advance or
roll-over or (as the context requires) the principal amount thereof
for the time being outstanding;
"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 has recourse directly or indirectly to a deposit of cash or
cash equivalent investments beneficially owned by any member of the
Group placed, as part of a related transaction, with that creditor (or
an affiliate of that creditor) or a financial institution approved by
that creditor on the basis that the deposit be available, directly or
indirectly, so as to reduce the economic exposure of the creditor to
the Group, when looking at the related transactions together, to a net
amount;
"BORROWER" means WPP Finance, WPP Group U.S. Finance and any
additional Borrower as shall accede to this Agreement pursuant to
clause 3.7 or be substituted under clause 3.9, 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 Company as agent for the Borrowers and
the Guarantor 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) which is (in relation to any fixing date for euros), a TARGET
day;
"COMMITMENT" means in relation to a Lender, the principal amount set
opposite its name in Column 2 of Schedule 1 as reduced or cancelled
from time to time in accordance with this Agreement (subject to any
transfer effected in accordance with clause 20.2);
"CONSOLIDATED REVOLVING FACILITY AGREEMENT" means the consolidated
revolving facility agreement dated 3rd July, 1998 between the Company
and the other borrowers, the guarantors, the facility agent, the
lenders and the arrangers (in each case as named therein);
"DOLLARS" and "$" mean the lawful currency of the United States of
America;
"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 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 Advance is to be
made available;
"EARN-OUT PAYMENT" means any payment made or to be made to a former
shareholder in a Subsidiary pursuant to arrangements made in
connection with the acquisition of such Subsidiary by any member of
the Group and related to the performance of that Subsidiary, including
any payment in respect of loan notes issued to such former shareholder
in connection with the said acquisition but excluding payments under
Employee Incentive Plans;
"ELIGIBLE COMPANY" means any of the Borrowers and any other
Subsidiary;
"EMPLOYEE INCENTIVE PLAN" means any arrangement entered into by any
member of the Group (other than Earn-out Payments) for the payment for
services, acquisition or purchase of shares, warrants or other equity
linked instruments of any kind (or options for any of the foregoing)
or similar arrangements 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;
"EURIBOR" means in relation to any Advance in euros:
(a) the applicable Screen Rate; or
(b) if the Screen Rate is not available for the relevant period, the
arithmetic mean of the rates (rounded upwards to five decimal
places) as supplied to the Facility Agent at its request quoted
by the Reference Banks to leading banks in the European Interbank
Market,
at or about 11.00a.m. Brussels time on the Rate Fixing Day for the
offering deposits in euros for a period comparable to the relevant
Interest Period.
"EURO" and "[Euro Symbol]" mean the single currency of the Participat-
ing 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;
"EXISTING CREDIT AGREEMENTS" means:
(a) the $200m 364 day unsecured revolving credit facility dated 30th
June, 1999 arranged by Citibank, N.A. for Young & Rubicam; and
(b) the $400m five year unsecured revolving credit facility dated
15th May, 1998 arranged by Citibank, N.A. for Young & Rubicam;
"EXTRAORDINARY ITEMS" has the meaning given to it in the Applicable
Accounting Principles;
"FACILITY" means the multicurrency facility, the terms and conditions
of which are set out in this Agreement;
"FACILITY AGENT" means Citibank International plc or any successor as
facility agent of the Lenders under the Financing Documents;
"FINAL MATURITY" means either:
(a) (in the case of Advances (other than Term-out Advances) and the
Commitments of the Lenders) 364 days from the date of this
Agreement (or such alternative date as may from time to time be
determined in accordance with clause 8.3); or
(b) in the case of a Term-out Advance, a Business Day falling not
later than three years from the date of this Agreement selected
pursuant to clauses 5.1 and 8.4;
"FINAL DRAWING DATE" the date falling seven days prior to the date
falling 364 days from the date of this Agreement (or such alternative
date as may from time to time be determined in accordance with clause
8.3);
"FINANCING DOCUMENTS" means this Agreement, the Accession Notices, and
any other document designated as such by the Facility Agent and the
Borrowers' Agent in writing;
"GROUP" means the Company and the Subsidiaries;
"GUARANTEED AMOUNTS" means any and all amounts whatsoever (including,
without limitation, interest after the filing of a petition initiating
a proceeding referred to in 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;
"GUARANTOR" means the Company;
"HOLDING COMPANY" means in relation to a person, an entity of which
that person is a Subsidiary;
"INTEREST PAYMENT DATE" means for any Advance, the last day of an
Interest Period and for any Interest Period longer than six months the
date falling six months after the first day of such Interest Period
and the last day of such Interest Period;
"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;
"LIBOR" means:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the relevant currency and
period, the arithmetic mean (rounded upwards to five decimal
places) of the rates, as supplied to the Facility Agent at its
request, quoted by the Reference Banks to leading banks in the
London Interbank Market,
at or about 11.00a.m. on the applicable Rate Fixing Day for the
offering of deposits in the currency of the relevant Advance for a
period comparable to the relevant Interest Period.
"LOAN" means the aggregate of Advances outstanding under this
Agreement;
"(POUND)", "POUNDS" and "STERLING" mean the lawful currency of the
United Kingdom of Great Britain and Northern Ireland;
"MAJORITY LENDERS" means at any time, Lenders whose Commitments
represent more than 66 2/3% in aggregate of the Total Commitments;
"MANDATORY COST" means:
(i) the cash ratio and special deposit requirements of the Bank of
England and/or the banking supervision or other costs imposed by
the Financial Services Authority, as determined in accordance
with Schedule 2;
(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; and
(iii)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 (including,
for the avoidance of doubt, any reserve asset requirements of the
European Central Bank);
"MARGIN" has the meaning given thereto in clause 7.1;
"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;
"MERGER" means the merger of the Company and Young & Rubicam;
"MEDIA GUARANTEE" means a guarantee issued or to be issued in favour
of the Independent Television Association and/or Channel Four
Television Corporation;
"NOTICE OF PROPOSED SUBSTITUTION" means in respect of a proposed
substitute Borrower, the notice delivered by the Borrowers' Agent to
the Facility Agent in the form set out in Schedule 6;
"NOVATION AGREEMENT" means in respect of a proposed substitute
Borrower, a novation agreement substantially in the form set out in
Schedule 7 duly executed or to be executed by the parties thereto;
"OUTSTANDINGS" means the aggregate of the Dollar Amounts of all
Advances for the time being outstanding under the Facility;
"PARTICIPATING MEMBER STATE" means a member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Union relating to
European Economic and Monetary Union;
"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;
"RATE FIXING DAY" means:
(a) the second Business Day before the first day of an Interest
Period for an Advance; or
(b) in the case of an Advance in euros only, the second TARGET day
before the first day of an Interest Period for that Advance; or
(c) in the case of an Advance in Sterling only, the first day of the
Interest Period for that Advance; or
such other day on which it is market practice in the relevant
interbank market for leading banks to give quotations for deposits in
the relevant currency for delivery on the first day of the Interest
Period of an Advance, as determined by the Facility Agent.
"RATIO CERTIFICATE" means the certificate referred to in clause
11.5(B);
"REFERENCE BANKS" means subject to clause 7.7, the principal London
office of each of Barclays Bank PLC, Citibank, N.A., HSBC Bank plc and
Bank of America N.A. and any replacement Lender nominated under clause
7.8;
"REQUEST" means a notice of drawing substantially in the form set out
in Schedule 3 duly completed and signed by the Borrowers' Agent;
"SECURITY INTEREST" means any mortgage, charge, pledge, lien or other
security interest;
"SCREEN RATE" means:
(a) in relation to LIBOR, the average British Bankers Association
Interest Settlement Rate for the relevant currency and period;
and
(b) in relation to EURIBOR, the percentage rate per annum determined
by the Banking Federation of the European Union for the relevant
period,
displayed on the appropriate page of the Telerate screen. If the
agreed page is replaced or the services ceases to be available, the
Facility Agent may specify another page or service displaying the
appropriate rate after consultation with the Borrower's Agent and the
Lenders;
"SHARING LENDER" has the meaning given thereto in clause 19.2(G);
"SIGNING DATE" means the date of this Agreement;
"SUBSIDIARY" means a subsidiary for the time being of the Company and
"SUBSIDIARIES" shall refer to all such subsidiaries;
"TARGET DAY" means a day on which the Trans-European Automated
Real-Time Gross Settlement Express Transfer (TARGET) System is open
for settlement of payments in euro;
"TERM-OUT ADVANCE" means an Advance with a Final Maturity after the
date which is 364 days from the date of this Agreement (or such
alternative date as may from time to time be agreed in accordance with
clause 8.3);
"TERM-OUT REQUEST" means a notice of drawing of a Term-out Advance
substantially in the form set out in Part II of Schedule 3;
"TOTAL COMMITMENTS" means the aggregate amount for the time being of
all the Commitments in respect of all the Lenders;
"TOTAL OUTSTANDINGS" means the aggregate amount from time to time of
all Outstandings in respect of all the Lenders;
"TRANSFER CERTIFICATE" means a certificate substantially in the form
of Schedule 8 delivered by a Lender to the Facility Agent pursuant to
clause 20.3;
"U.S. BORROWER" and "U.S. SUBSIDIARY" mean a Borrower or Subsidiary,
as the case may be, incorporated under the laws of any State in the
United States of America; and
"YOUNG & RUBICAM" means Young & Rubicam Inc.
1.2 FINANCIAL DEFINITIONS
In this Agreement the following expressions have the following
meanings:
"BORROWINGS" means:
(A) moneys borrowed or raised (including, without limitation, amounts
advanced under the Accounts Receivable Facility and any accounts
receivable facility entered into on or after the 3rd July, 1998.
(B) any liability under any bond, bill discounting facility,
debenture, note or other similar debt security or under
acceptance credit or note purchase facilities, letter of credit,
subordinated debt or any amount raised pursuant to an issue of
shares which are expressed to be redeemable (in cash or in
instruments which would themselves constitute Borrowings) on or
prior to 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 the 3rd
July, 1998;
(D) the capital element of rentals payable under finance leases
(required to be disclosed in accordance with S.S.A.P. 21) entered
into primarily as a method of raising finance or financing the
acquisition cost of the asset in question; and
(E) any guarantee or other assurance against financial loss in
respect of any indebtedness of the type specified in 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) or of any Media Guarantee );
but:
(i) indebtedness owing or shares issued by one member of the
Group to another member of the Group shall not be taken into
account as Borrowings;
(ii) interest (other than interest which is capitalised and which
itself bears interest), acceptance commission and finance
charges shall be excluded;
(iii) Trade Debt and Back to Back Loans shall be excluded;
(iv) no indebtedness shall be taken into account more than once
(so that, for example, a guarantee shall be excluded to the
extent that the indebtedness guaranteed thereby is taken
into account); and
(v) the obligations of any member of the Group in respect of any
Media Guarantee shall not be taken into account unless such
Media Guarantee has been called upon in any way;
"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
13.2(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 and commissions payable in
respect of Media Guarantees (but excluding commitment fees, management
fees, banking arrangement fees, agent's administration and
participation fees (including those payable hereunder)) determined in
accordance with accounting principles generally accepted under United
Kingdom accounting standards, consistently applied less (B) the amount
of payments from counterparties under interest rate swap and cap
agreements and similar interest rate hedging arrangements receivable
or received by the Group in respect of that period;
"INTEREST RECEIVABLE" means, in respect of any financial period,
interest income accrued during that period on financial deposits and
similar assets of the Group on a consolidated basis;
"RELEVANT OPERATING PROFIT" means, in respect of any financial period,
the consolidated operating profits of the Group, as disclosed in or
derived from the published or announced financial results of the
Group;
"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.
(C) Nothing in the Contracts (Rights of Third Parties) Act 1999 and this
Agreement confers or purports to confer on any third party any benefit
or any right to enforce any term of this Agreement.
2. AMOUNT AND PURPOSE OF THE FACILITY
2.1 AMOUNT
The maximum aggregate amount for which the Facility is available (the
"AVAILABLE AMOUNT"):
(A) prior to the Effective Date, is $350,000,000; and
(B) thereafter, $700,000,000.
2.2 PURPOSE
The Facility shall be used towards financing the working capital
requirements of the Group and, following the Effective Date:
(A) to repay the Existing Credit Agreements; and
(B) towards financing the working capital requirements of Young &
Rubicam.
2.3 EFFECTIVE DATE
(A) On the Effective Date, the Available Amount will automatically be
increased to $700,000,000.
(B) For the purposes of this Agreement, the "EFFECTIVE DATE" means the
date which is five Business Days after the date on which the Facility
Agent receives the following in each case in form and content
satisfactory to it, that is to say:
(i) a certificate from the Secretary of the Company confirming that
the Merger has been approved by a simple majority of the
shareholders of the Company and by a simple majority of the
shareholders of Young & Rubicam at their respective general
meetings; and
(ii) notice from the Company certifying that irrevocable cancellation
notices have been issued in respect of each of the Existing
Credit Agreements and that all outstandings under the Existing
Credit Agreements have been repaid or will be repaid out of the
proceeds of the first drawdown under this Agreement following the
increase of the Available Amount to $700,000,000 in accordance
with clause 2.1(B) above, attaching copies of such cancellation
notices.
3. SYNDICATE AND BORROWERS AND GUARANTORS
3.1 PARTICIPATION
Subject to the provisions of this Agreement, each Lender shall
participate in any utilisation of the Facility in the proportion which
its Commitment bears to the Total Commitments up to an aggregate
principal Dollar Amount outstanding at any time not exceeding its
Commitment (or, prior to the Effective Date, 50% of 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, the 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
clause shall not affect the obligations of the Company in its capacity
as 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 the Guarantor irrevocably authorises and instructs
the Borrowers' Agent separately to give and receive as agent on its
behalf all notices and to take such other action (including, without
limitation, the giving of consents, the signing of certificates or the
acceptance of any proposal) as may be necessary or desirable under or
in connection with the Financing Documents and confirms that it will
be bound by any action taken by the 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 the
Guarantor 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 the
Guarantor or (iii) the failure by or inability of the Borrowers' Agent
to inform any Borrower or the Guarantors 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 REMOVAL OF BORROWERS
Any Borrower (other than the Company), in respect of which no Advance
is outstanding hereunder (including any other amounts outstanding in
relation thereto) in respect of the Facility may at the request of the
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.
3.9 SUBSTITUTION OF BORROWERS
Any Borrower (the "EXISTING BORROWER") may be released from its
obligations under this Agreement in relation to the Facility provided
that another Eligible Company (the "SUBSTITUTE BORROWER") assumes the
obligations in respect thereof of the Existing Borrower and provided
further that:
(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 6 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 7 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 each Borrower signed by an officer of
the Borrower substantially in the form set out in Schedule 4 and
the documents therein referred to;
(B) a certificate of a director of the Company confirming that
utilisation in full of the Facility in accordance with its terms
would not cause any borrowing limit on any Borrower or Guarantor
to be exceeded;
(C) opinions from lawyers in the USA in form and substance
satisfactory to the Facility Agent; and
(D) an opinion of Clifford Chance, English Counsel to the Lenders, in
form and substance satisfactory to the Facility Agent.
4.2 CONDITIONS FOR ADDITIONAL AND SUBSTITUTE BORROWERS
A proposed additional or substitute Borrower shall deliver to the
Facility Agent the following documents in each case in form and
content satisfactory to the Facility Agent, that is to say:
(A) a certificate signed by the secretary of the Borrower
substantially in the form set out in Schedule 4 and the documents
therein referred to;
(B) a certificate of a director of the Company confirming that
utilisation in full of the Facility in accordance with its terms
would not cause any borrowing limit on any Borrower to be
exceeded; and
(C) an opinion of an independent firm of lawyers in the country of
incorporation of the Borrower acceptable to the Facility Agent.
4.3 CONDITIONS TO EACH UTILISATION
Each utilisation, in whatever form, of the Facility (other than any
utilisation which, taken together with any repayment on the date of
such utilisation of amounts outstanding under the Facility in the same
currency, will not result in any increase in the amount outstanding
thereunder (a "ROLL-OVER UTILISATION")) is subject to the further
conditions precedent that both on the date of the relevant Request and
on the relevant Drawing Date or date of utilisation:
(A) no Event of Default or Potential Event of Default has occurred
and is continuing or would occur as a result of making the
Advance available or permitting the utilisation; and
(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 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 Request in the form
set out in Schedule 3 Part I (in the case of an Advance other than a
Term-out Advance) or Part II (in the case of a Term-out Advance),
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 Request shall request one
currency only);
(D) the amount of the Advance which shall be a Dollar Amount of not
less than $5,000,000 (or, if in sterling, (pound)2,000,000) or
such other multiple in the currency concerned as the Facility
Agent and the Borrowers' Agent may agree and which shall not in
any event at the time immediately preceding the Advance exceed
the Total Commitments or, if smaller, the Available Amount) less
the Total Outstandings;
(E) the Interest Period (or, in the case of a Term-out Advance, its
first Interest Period) which, in respect of Advances under the
Facility from time to time having an aggregate principal amount
which does not for the time being exceed $250,000,000, may be for
a period of between seven and thirty days and otherwise for a
period of one, two, three, four, five or six months or such other
period as has been agreed with the Facility Agent and the Lenders
under the Facility; and
(F) in the case of a Term-out Advance, its Final Maturity.
5.2 IRREVOCABILITY
A Request shall be irrevocable and, subject to the terms of this
Agreement, the Borrower named therein shall draw the Advance on the
Drawing Date specified in the Request.
5.3 NOTICE TO LENDERS
When the Facility Agent actually receives a Request pursuant to clause
5.1 it shall promptly notify each of the Lenders of the amount of the
proposed Advance and the proposed Drawing Date and that Lender shall,
subject to the provisions of this Agreement, make available to the
Facility Agent on the Drawing Date its participation in that Advance.
5.4 CURRENCY OF TERM-OUT ADVANCES
Once the currency of a Term-out Advance has been selected in the
applicable Request it will remain in that currency until its Final
Maturity.
5.5 TERM-OUT ADVANCES IN ALTERNATIVE CURRENCIES
(A) If a Term-out Advance is denominated in an Alternative Currency, there
shall be calculated in respect of each applicable Interest Period the
difference between the amount of the Term-out Advance (in that
Alternative Currency) for the current Interest Period and for the next
Interest Period. The amount of the Term-out Advance for the next
Interest Period will be determined by notionally converting into that
Alternative Currency the Dollar Amount of the Term-out Advance on the
basis of the Agent's Spot Rate of Exchange three Business Days before
the start of that Interest Period.
(B) At the end of the current Interest Period (but subject always to
paragraph (C) below):
(i) if the amount of the Term-out Advance for the next Interest
Period is less than for the preceding Interest Period, the
Borrower shall repay the difference; or
(ii) if the amount of the Term-out Advance for the next Interest
Period is greater, each Lender shall, provided the conditions
specified in clause 4.3 are satisfied, forthwith make available
to the Facility Agent for the Borrower its participation in the
difference.
(C) If the Agent's Spot Rate of Exchange for the next Interest Period
shows an appreciation or depreciation of the Alternative Currency
against the dollar of less than five per cent. when compared with the
Original Exchange Rate, no amounts are payable in respect of the
difference. In this clause 5.5 and in clause 5.6 "ORIGINAL EXCHANGE
RATE" means the Agent's Spot Rate of Exchange used for determining the
amount of the Alternative Currency for the Interest Period which is
the later of the following:
(i) the first Interest Period applicable to the Term-out Advance; and
(ii) the most recent Interest Period immediately prior to which a
difference was required to be paid under this clause 5.5.
5.6 PREPAYMENTS
If a Term-out Advance is to be prepaid by reference to an Dollar
Amount, the Alternative Currency amount to be prepaid shall be
determined by reference to the Agent's Spot Rate of Exchange last used
for determining the Alternative Currency amount of that Term-out
Advance under this clause 5 or, if applicable, the Original Exchange
Rate (as defined in clause 5.5).
5.7 NUMBER OF ADVANCES
No more than 15 Advances may be outstanding at any one time. No more
than 5 Term-out Advances may be outstanding at any one time.
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 the
European Interbank Market in relation to Advances in euro); or
(ii) the central bank or other governmental authorisation in the
country of the proposed Alternative Currency is required to
permit its use by the Lender (through the office through which it
participates in the Facility) for lending under this Agreement
and the authorisation has not been obtained or is not in full
force and effect; or
(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 Request.
6.3 AVAILABILITY OF ALTERNATIVE CURRENCIES
If the Borrowers' Agent delivers to the Facility Agent a Request
specifying that a Borrower wishes an Advance to be denominated in an
Alternative Currency and to give effect to such request would cause
the Loan to be denominated in more than 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.
7. INTEREST AND FEES
7.1 MARGIN, COMMITMENT AND UTILISATION FEES
(A) The Margin for any Interest Period shall be 0.40% per annum.
(B) The Company shall pay a utilisation fee (the "UTILISATION FEE") of
0.05% per annum on the Dollar Amount of the Total Outstandings for any
day on which the Dollar Amount of the Total Outstandings exceeds 50%
of the Total Commitments. Such fee shall be payable on the day which
is 3 months after the date of this Agreement and on each day falling
at 3 monthly intervals thereafter (the "PAYMENT DATES") and shall be
payable in respect of each day on which such an excess occurs during
the 3 month period preceding each payment date.
(C) The amount of the relevant Utilisation Fee shall be notified to the
Borrowers by the Agent and following such notification shall be paid
to the Facility Agent for the account of the Lenders pro rata to the
proportion which their respective Commitments bear to the Total
Commitments.
(D) The Borrowers shall pay a term-out fee in dollars of:
(i) 0.075% flat on the Dollar Amount of any Term-out Advance with a
Final Maturity less than one year from its Drawing Date; and
(ii) 0.15% flat on the Dollar Amount of any Term-out Advance with a
Final Maturity one year or more from its Drawing Date.
(E) The term-out 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.
(F) The term-out fee shall be paid on the Drawing Date of the relevant
Term-out Advance.
(G) The Borrowers shall pay a commitment fee in dollars calculated from
day to day on the daily amount by which the Total Commitments exceed
the Total Outstandings (such fee to be calculated on the basis of
actual days elapsed from the Signing Date and a 360 day year at the
rate of 0.125% per annum).
(H) 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.
(I) The commitment fee shall be paid on 7th November, 2000 and on each
date falling at three monthly intervals thereafter and on the Final
Drawing Date (or any earlier date on which the relevant Commitments of
the Lenders are permanently reduced to zero).
7.2 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 (or, if the Advance in question may be drawn for an Interest
Period of between seven days and thirty days pursuant to clause
5.1(E), the relevant number of days).
(B) The Interest Period for each Advance (other than a Term-out Advance)
shall commence on the date of that Advance.
(C) The initial Interest Period for a Term-out Advance shall commence on
the date of that Term-out Advance. Each subsequent Interest Period
will be the period selected by the Borrower's Agent by notice to the
Facility Agent received not later than 12 noon on the third Business
Day before the first day of such subsequent Interest Period (in the
case of Term-out Advances in an Alternative Currency (other than
Sterling), not later than 3.00pm on the third Business Day before the
first day of such subsequent Interest Period (in the case of Term-out
Advances in dollars) and not later than 12 noon on the Business Day
before the first day of such subsequent Interest Period (in the case
of Term-out Advances in sterling)), being one, two, three, four, five
or six months or such other period as has been agreed with the
Lenders. If no such selection is received within the time limit set
out above, the new Interest Period will be one month or such shorter
period as is required to ensure that it does not overrun Final
Maturity.
(D) 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.
(E) No Advance shall have an Interest Period ending after the Final
Maturity.
(F) 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 5.7 and 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.
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;
(B) LIBOR or, in the case of an Advance in euros, EURIBOR; and
(C) the Mandatory Cost (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 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.
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 REDUCTION
Subject to the provisions of this Agreement, the amount of each
Advance shall be reduced to zero on its Final Maturity. The undrawn
portion of the Total Commitments shall be cancelled on the Final
Drawing Date.
8.2 REPAYMENT
Subject to Clause 8.3 the Borrower shall on the last day of the
Interest Period relating to each Advance (other than a Term-out
Advance) repay that Advance to the Agent for the account of the
Lenders in accordance with clause 13.1. No Term-out Advance may be
outstanding after the date falling three years from the date of this
Agreement. All Advances outstanding on Final Maturity shall be repaid
on that date and the Facility shall be cancelled on that date (or such
alternative date as may from time to time be determined in accordance
with clause 8.3).
8.3 EXTENSION OF FINAL MATURITY
The Final Maturity in respect of each Lender's Commitment may, at the
request of the Borrower's Agent issued not more than 60 and not less
than 30 days prior to the then current Final Maturity, be extended
once only for a period up to a date which is no later than 364 days
after the existing Final Maturity as specified in that request.
However, each Bank may, in its sole discretion, decline to extend the
Final Maturity in respect of its own Commitment (and any Bank which
fails to respond within 14 days of notification of such request will
be deemed to have declined), in which case, subject to clause 8.4:
(a) the Commitment of that Bank will automatically cancel on the then
applicable Final Maturity; and
(b) that Bank will be repaid in full upon the then applicable Final
Maturity and will cease to be a Bank at such time,
irrespective of whether any other Bank has agreed to extend the Final
Maturity in respect of its own Commitment.
8.4 TERM-OUT ELECTION
A Borrower may, by delivery of a duly completed Request to the
Facility Agent under Clause 5 (who shall send a copy of the same to
the Lenders) not more than 46 days and not less than 2 Business Days
prior to the date which is 364 days from the date of this Agreement,
elect to draw one or more Advances as, or convert drawn Advances into,
a Term-out Advance (the "TERM-OUT ELECTION"). No Term-out Advance,
once repaid or prepaid, may be reborrowed (other than under Clause
5.5). The Term-out Election may be exercised only once during the life
of the Facility. For the avoidance of doubt, after the Term-out
Election has been exercised, the remainder (if any) of the Total
Commitments which have not been drawn as a Term-out Advance will
continue to be available for redrawing until the Final Drawing Date on
a revolving basis in accordance with the terms of this Agreement.
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
(including, without limitation, such amounts as may be due under
clauses 12.2, 13.3 and/or 15.1) 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 Request has been served), in
whole or in part (being in a minimum amount of $5,000,000 and an
integral multiple of $1,000,000) at any time provided that it has
given the Facility Agent not less than ten days' prior written notice
stating the principal amount to be cancelled. During such ten day
period the 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 12.3; and
(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 under this
clause 9.3, 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
Repayment and prepayment shall each be made in the currency or
currencies in which the amounts repaid or prepaid (as appropriate) are
denominated on the day the repayment or prepayment (as appropriate) is
due to be made.
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
Each Borrower and the Guarantor acknowledges that each of the Lenders
and the Facility Agent has entered into the Financing Documents in
full reliance on representations by each Borrower and the Guarantor in
the following terms; and each Borrower and the Guarantor warrants to
each of them in respect of itself, and the Company warrants to each of
them in respect of itself and of each other Borrower 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 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;
(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 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 Borrowers 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 any 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, 1999 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 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 Borrowers 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.
10.2 AFTER SIGNING
Each Borrower and the Guarantor shall be deemed to represent and
warrant in respect of itself, and the Company shall be deemed to
warrant in respect of itself and each other Borrower, 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 for 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 Guarantor will furnish or procure to be
furnished to the Facility Agent, subject to clause 17.8(A), 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 Company'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 Company's financial year) the
published unaudited interim consolidated accounts of the Group;
(C) promptly, all notices, other documents or information despatched
by the Company to its shareholders generally (or any class
thereof) or its creditors generally (or any class thereof);
(D) promptly, such further information in the possession or control
of any 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 Facility Agent may
reasonably request; and
(E) 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
the Guarantor to observe or perform its obligations under the
Financing Documents and which affect any Borrower or the
Guarantor or the Group as a whole, as soon as the same are
instituted, or, to the knowledge of any 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.
11.3 FINANCIAL RATIOS
(A) The Company 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 Company undertakes that it will procure that, as at 30th June and
31st December in each year, the financial condition of the Group shall
be such that the ratio of the Borrowings of the Group on a
consolidated basis to Consolidated EBITDA shall not exceed 3.5 to 1.
11.4 NOTIFICATION OF DEFAULT
The Borrowers' Agent, each Borrower and the Guarantor will notify the
Facility Agent in writing of any Event of Default or Potential Event
of Default forthwith upon becoming aware thereof.
11.5 COMPLIANCE CERTIFICATES
The Company will no later than the time of the delivery of the
accounts specified in 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 Company certifying on behalf of
the Company without personal liability that no Event of Default
or Potential Event of Default has occurred and is continuing or,
if the same has occurred, specifying the Event of Default or
Potential Event of Default and the steps being taken to remedy
the same; and
(B) a certificate (a "RATIO CERTIFICATE") signed by either of the
Group Finance Director and the Chief Executive of the Company
certifying without personal liability, as at the end of the
period to which the relevant accounts relate, compliance with the
covenants in clause 11.3 and 11.5 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 the 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 the
Guarantor shall comply with the terms of the same.
11.7 PARI PASSU RANKING
Each 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.
11.8 NEGATIVE PLEDGE
The Company undertakes that with effect from drawdown of the Facility
each 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
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
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 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 Security Interests permitted
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;
(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
Neither any Borrower nor the 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, neither
any Borrower nor the 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
Neither any Borrower nor the Guarantor will without the prior written
consent of the Majority Lenders enter into any merger or consolidation
(other than the Merger) if the effect thereof would be to alter the
legal personality or identity of such Borrower or Guarantor except
that any 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 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 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.
11.13 LIMITATION ON BORROWINGS OF SUBSIDIARIES
The Company will not permit any of its Subsidiaries to create, permit
to subsist, incur, assume or in any other manner be or become directly
or indirectly liable for the payment of any Borrowings (including,
without limitation, by way of indemnity, counter-indemnity or
guarantee) other than:
(A) Borrowings under this Agreement;
(B) Borrowings under the Consolidated Revolving Facility Agreement;
(C) 3% Young & Rubicam Inc. convertible subordinated notes due
January, 2005;
(D) prior to 1st January, 2001, Borrowings of $150,000,000 in
aggregate under four Revolving Facility Agreements between
Moveability Limited, the Company:
(i) and Barclays Bank PLC dated 15th October, 1999;
(ii) and The Royal Bank of Scotland plc dated 14th January, 2000;
(iii)and National Westminster Bank PLC dated 14th January, 2000;
and
(iv) and HSBC Bank plc dated 14th January, 2000.
(E) Borrowings under the Existing Credit Agreements;
(F) any Borrowings of any Subsidiary owing to another member of the
Group;
(G) Borrowings by a Subsidiary whose main business is to operate as a
finance company for the Group; and
(H) 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 COMPLIANCE WITH ERISA
Each Borrower and the Guarantor undertakes that, where relevant it (i)
has fulfilled all its obligations under the minimum funding standards
of the U.S.A. Employment Retirement Income Security Act of 1974, as
amended ("ERISA"), and the U.S.A. Internal Revenue Code of 1986, as
amended (the "CODE"), with respect to any employee pension benefit
plan (a "PLAN") covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Code maintained by such
Borrower or Guarantor or to which such Borrower or Guarantor makes
contributions, has within the previous five years made contributions
or has an obligation to make contributions and (ii) is in compliance
in all material respects with the presently applicable provisions of
ERISA and the Code, and has not incurred any liability to the Pension
Benefit Guaranty Corporation (or any entity succeeding to any or all
of its functions under ERISA) or a Plan under Title IV of ERISA.
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 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) prepay to the Facility Agent for the account of that
Lender all of that Lender's participation in the Advance and that
Lender's obligation to participate in any future utilisations of
the Facility shall terminate and the Facility shall be
permanently cancelled to such extent.
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 or its Holding Company of
making or maintaining or funding that Lender's Commitment or reduce
the amount of any sum received or receivable by it in respect of its
Commitment or oblige it or its Holding Company 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 that Lender's 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 or its Holding Company 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 or its Holding Company;
(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 or its Holding
Company of any request or requirement of any fiscal, monetary or
other regulatory authority.
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 (or the European Interbank Market in relation to
euros) 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 by no
later than close of business in London on the relevant Rate
Fixing Day that deposits in the currency of the Advance are not
in the ordinary course of business available in the London
Interbank market (or the European Interbank Market in relation to
euros) 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:
(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; 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 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 THE GUARANTOR
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 Request. If the Facility Agent makes available to a
Borrower any amount which has not been made unconditionally available
to the Facility Agent the Borrower shall forthwith on notice from the
Facility Agent repay such amount to the Facility Agent together with
interest on such amount until its repayment at a rate determined by
the Facility Agent to reflect its cost of funds.
13.3 WITHHOLDINGS
All payments by any 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 any Borrower or the
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 the 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 jurisdiction in which the Borrower or Guarantor
in question (as appropriate) is tax resident) 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.S. TAXES
(A) Notwithstanding anything to the contrary in this clause 13, with
respect to taxes which are imposed or levied by or on behalf of the
United States of America or any authority thereof or therein having
power to tax, any Borrower which is a U.S. Subsidiary shall only be
under an obligation to gross up any amounts payable or paid by that
Borrower hereunder to a Lender that is not organised under the laws of
the United States of America or any state or political sub-division
thereof (or payable or paid by the Facility Agent to such Lender) if:
(i) such Lender as soon as practicable, but in any event prior to any
payment by the Borrower concerned, delivers to that Borrower:
(a) if the facility office of such Lender is located in the
United States of America, two accurate and complete original
signed copies of Internal Revenue Service Form W-8EC1 or any
successor thereto (including, without limitation, any
substitute form which constitutes, or which includes as part
or all thereof, any revised such form) ("FORM W-8EC1")
relating to income effectively connected with the conduct of
a trade or business in the United States of America; or
(b) if the facility office of such Lender is located outside the
United States of America, two accurate and complete original
signed copies of Internal Revenue Service Form W-8BEN or any
successor thereto (including, without limitation, any
substitute form which constitutes, or which includes as part
or all thereof, any revised such form) ("FORM W-8BEN")
relating to an applicable double tax treaty concluded by the
United States of America (such Forms W-8BEN to be provided
by the Facility Agent to the Lenders on signature of this
Agreement),
in each case, indicating that such Lender is on the Signing Date
or, in the case of any Lender becoming a party to this Agreement
after the Signing Date, on the date it becomes a party entitled
to receive payments of principal, interest and fees under this
Agreement free from any deduction and withholding of US income
tax;
(ii) before or promptly after any occurrence of any event (including
the passing of time) requiring a change or re-issuance in the
most recent Form W-8EC1 or Form W-8BEN previously delivered by
such persons and if the delivery of the same be lawful, such
Lender delivers to the Borrower concerned two accurate and
complete original signed copies of Form W-8EC1 or Form W-8BEN in
replacement for the forms previously delivered by such Lender;
(iii)if any forms or documents other than or in addition to the forms
referred to above are required or such forms referred to above
shall cease to be required in order for any Borrower which is a
U.S. Subsidiary to make payments of interest under this Agreement
without any deduction or withholding on account of U.S. income
tax, such Lender as soon as practicable, delivers to the Borrower
or the relevant tax authority such forms or other similar
document notified by any Borrower which is a U.S. Subsidiary to
such Lender which such Lender can reasonably submit to any
relevant tax authority so as to avoid such deduction or
withholding to the extent that it is lawful for such Lender to do
so.
This clause 13.4(A) shall not apply where such obligation to gross up
arises as a result of the introduction of or any change in law or
regulation or in the official interpretation, administration or
application thereof of any relevant tax authority or the amendment,
withdrawal, suspension, cancellation or termination of any applicable
tax treaty with respect to any Lender, in any such case, after the
Signing Date.
(B) Each Lender which is organised under the laws of the United States of
America or any state or political sub-division thereof shall deliver
(through the Facility Agent) to each Borrower which is a U.S.
Subsidiary as soon as practicable, but in any event prior to any
payment by the Borrower concerned, a statement signed by an authorised
signatory of such Lender to the effect that it is so organised and, if
necessary in order to avoid United States backup withholding, a duly
completed copy of Internal Revenue Service Form W-9 (or any successor
thereto) establishing that such Lender is not subject to United States
backup withholding.
(C) The Facility Agent shall have no responsibility or liability for and
no obligation to check the accuracy or appropriateness of any form or
statement delivered by any Lender pursuant to this clause 13.4.
13.5 U.K. TAXES
(A) If a Lender is neither:
(i) a bank as defined in Section 840A of the Income and Corporation
Taxes Act 1988 at the date of any Advance which (with respect to
interest payable under this Agreement) is beneficially entitled
to such interest and within the charge to United Kingdom
Corporation Tax as respects such interest at the time such
interest paid; nor
(ii) entitled to such interest under a double taxation agreement in
force at the date of any Advance,
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 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 either:
(a) a bank within the meaning of section 840A of the Income and
Corporation Taxes Act 1988 which is resident in the United
Kingdom for tax purposes; or
(b) not resident for tax purposes in the United Kingdom.
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.
13.6 TAX CREDITS
If any Borrower or the 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 the Guarantor.
13.7 DATE
If any payment under this Agreement would otherwise be due on a day
which is not a Business Day, it shall be due on the next succeeding
Business Day or, if that Business Day falls in the following month of
the year, on the preceding Business Day.
13.8 DEFAULT INTEREST
(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 Mandatory Cost.
(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 13.8(A) shall equal the unexpired
portion of the Interest Period and there shall be substituted for the
rate specified in clause 13.8(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 13.8(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.
13.9 JUDGMENT CURRENCY
If, under any applicable law, whether as a result of a judgment
against a Borrower or the Guarantor or the liquidation of a 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 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 Guarantor):
(A) any 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 such Borrower or Guarantor is not responsible and is
remedied within five days of the due date); or
(B) any 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 clauses 11.3 and 11. 5,
if such default is capable of prompt remedy within 30 days after
any Borrower or the Guarantor shall have given notice of such
default pursuant to clause 11.4 (or, if earlier, the date on
which the Facility Agent shall have given notice to the
Borrowers' Agent of such default) such Borrower or the 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 the Guarantor in writing under
any of the Financing Documents is incorrect in any material
respect when made or deemed to be repeated, or, in respect of
those specified in clause 10.2, 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, the Guarantor or any 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, the Guarantor or any Material Subsidiary becomes unable
to pay its debts as they fall due, or any Borrower, the Guarantor
or any 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, the Guarantor or any 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,
the Guarantor or any Material Subsidiary or such an order is made
on the application of a creditor of any Borrower, the Guarantor
or any Material Subsidiary or any meeting of any Borrower, the
Guarantor or any 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, the Guarantor or any Material
Subsidiary and its creditors generally (or any class of them) is
proposed by the company concerned as a result of financial
difficulties; or
(H) any administrative or other receiver or any manager of any
Borrower, the Guarantor or any Material Subsidiary or all or a
substantial part of any of its property is appointed, or the
directors of any Borrower, the Guarantor or any Material
Subsidiary request any person to appoint such a receiver or
manager, or any kind of attachment (except prejudgment
attachment), sequestration, distress or execution against any
Borrower, the Guarantor or any 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, the Guarantor or any Material
Subsidiary is convened for the purpose of considering any
resolution for (or to petition for) its winding up, or any
Borrower, the Guarantor or any Material Subsidiary passes such a
resolution, or any Borrower, the Guarantor or any Material
Subsidiary or any other person (except its creditor) presents any
petition for the winding up of any Borrower, the Guarantor or any
Material Subsidiary, or an order for the winding up of any
Borrower, the Guarantor or any Material Subsidiary is made on the
petition of any of its creditors unless, in each case, it is a
voluntary solvent winding-up, amalgamation, reconstruction or
reorganisation or part of a voluntary scheme of arrangement; or
(J) there occurs in relation to any Borrower, the Guarantor or any
Material Subsidiary in any country or territory in which it
carries on business or to the jurisdiction of whose courts it or
any of its property is subject any event which reasonably appears
to the Majority Lenders to correspond in that country or
territory with any of those mentioned in paragraphs (E) to (I)
inclusive above or any Borrower, the Guarantor or any Material
Subsidiary otherwise becomes subject, in any such country or
territory, to any law relating to insolvency, bankruptcy or
liquidation; or
(K) any Borrower, the Guarantor or any Material Subsidiary ceases, or
threatens to cease, to carry on all or a substantial part of its
business except consequent upon a disposal, merger or acquisition
not otherwise prohibited under this Agreement; or
(L) any authorisation, approval, consent, licence, exemption, filing,
registration or notarisation or other requirement necessary to
enable any Borrower or the 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 Company and, in a situation where the
acquisition of such control of the Company 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 the 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 the Guarantor taken as a whole to observe or
perform their obligations under any Financing Documents and which
affect any Borrower, the 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 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 (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 the 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
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 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 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
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
The Guarantor unconditionally and irrevocably 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.
16.2 PRINCIPAL DEBTOR
The Guarantor shall be deemed to be liable for the Guaranteed Amounts
as sole or principal debtor.
16.3 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 16.4, an absolute
discharge or release of the Guarantor 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 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, any of the
Borrowers 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 the Guarantor 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 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
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 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
any Borrower or the Guarantor and, in particular, waiving any of
the pre-conditions for Advances 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, and/or any third party;
(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 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 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 Borrowers and/or any third
party; 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.
The Guarantor waives diligence, presentment, protest, demand for
payment and notice of default to or upon any Borrower.
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 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.
16.8 SUBORDINATION
So long as the Guarantor has any liability under this Agreement and
except as provided in clause 16.9 below:
(A) the Guarantor shall not 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, the Guarantor shall
not, without first obtaining the Facility Agent's written
consent, seek to recover, whether directly or by set off, lien,
counterclaim or otherwise, nor accept any moneys or other
property, nor exercise any rights in respect of, any sum which
may be or become due to 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, the 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
The Guarantor agrees that it will not exercise any rights that it may
now have or hereafter acquire against the Borrowers or any other
person that arise from the existence, payment, performance or
enforcement of the Guaranteed Amounts, including without limitation
any right of subrogation, contribution, reimbursement, exoneration or
indemnity (or any similar right) prior to the later of the cash
payment in full of the Guaranteed Amounts and all other amounts
payable under this clause 16 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 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) 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 16 shall be paid in full in cash and (iii)
the Final Maturity shall have occurred, the Facility Agent 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.
16.10 INDEMNITY
As a separate, additional and continuing obligation, the Guarantor
unconditionally and irrevocably undertakes with the Facility Agent and
the Lenders (and each of them) that, should the Guaranteed Amounts not
be recoverable from 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
17.1 APPOINTMENT
Each Lender irrevocably authorises the Facility Agent, subject to
clause 17.12, to execute such of the Financing Documents which such
Lender has approved in writing which are expressed to be executed by
the Facility Agent for and on behalf of the Lenders (and execution by
a Lender of this Agreement shall constitute approval in writing, of
any Novation Agreement and any agreement entered into under clause 3.8
or 3.9), and to take such action on its behalf and to exercise and
carry out such powers, discretions, authorities and duties as are
specifically delegated to it by the Financing Documents and such
powers as the Facility Agent reasonably considers are incidental
thereto. The Facility Agent shall have only those powers, discretions,
authorities and duties which are expressly specified in the Financing
Documents.
17.2 RELATIONSHIP
(A) In connection with its powers, discretions, authorities and duties
under the Financing Documents, the Facility Agent shall act solely as
the agent of each of the Lenders, and shall not assume, and shall not
be deemed to have assumed, any obligations to, or fiduciary
relationship with, the Lenders other than those for which specific
provision is made by the Financing Documents or any obligations to, or
fiduciary relationship with, any of the Borrowers or the Guarantor.
(B) The Facility Agent shall not be liable for any failure of any of the
parties to any of the Financing Documents duly and punctually to
observe and perform any of its obligations under the Financing
Documents.
(C) The Facility Agent shall not be liable for any action taken or omitted
by it under or in connection with the Financing Documents in good
faith and in the absence of wilful misconduct or gross negligence.
(D) The Facility Agent may act under the Financing Documents through its
personnel and agents.
17.3 MAJORITY LENDERS' DIRECTIONS
In the exercise of any power or discretion given to it under the
Financing Documents and as to any matter not expressly provided for in
the Financing Documents or where a decision of the Majority Lenders is
provided for, the Facility Agent shall act or refrain from acting in
accordance with the instructions of the Majority Lenders. In the
absence of any such instructions, the Facility Agent may act or
refrain from acting as it shall see fit. Any such instructions of the
Majority Lenders or any such decision of the Facility Agent shall be
binding on all the Lenders and the Facility Agent shall not be liable
to the Borrowers, the Guarantor, the Lenders or any of them for the
consequences of any such instructions or decision.
17.4 CREDIT APPROVAL
In favour of the Facility Agent and each Lender acknowledges in
connection with the Financing Documents:
(A) that it has made such enquiries on its own behalf and taken such
care as would have been the case had its participation in the
Facility been made directly by that Lender to the Borrowers
without the intervention of the Facility Agent or any other
Lender and that it has not relied, and does not rely, upon any
information or advice provided, or any appraisal of, or
investigation into the financial condition, credit worthiness,
affairs, status or nature of the Group effected, by the Facility
Agent in such capacity; and
(B) that, subject to clause 17.8, the Facility Agent neither was nor
will be obliged either before or at any time after the signing of
this Agreement to provide that Lender with any information or
advice or to make any such investigation or appraisal.
17.5 DOCUMENTATION
Neither the Facility Agent nor any of its directors, officers,
employees or agents shall be liable:
(A) for the execution, validity, enforceability or effectiveness of
any of the Financing Documents or any document delivered pursuant
thereto or connected therewith; or
(B) for any statements, representations or warranties made or
referred to in any of the Financing Documents or any information
given in connection with any of the Financing Documents.
17.6 RELIANCE
The Facility Agent shall not be liable:
(A) for the consequences of relying on any communication or document
reasonably believed by it in good faith to be genuine and correct
and to have been communicated or signed by the person by whom it
purports to be communicated or signed; or
(B) for the consequences of relying in good faith on the advice of
any professional advisers selected by it in connection with the
Financing Documents.
17.7 DEFAULT
(A) The Facility Agent shall not be obliged to take any steps to ascertain
whether any Event of Default (or Potential Event of Default) has
occurred and until the Facility Agent has received express notice to
the contrary from a Borrower, the Guarantor, the Borrowers' Agent or a
Lender, it shall be entitled to assume that no such event has
occurred.
(B) The Facility Agent shall not be obliged to take any proceedings
against any of the Borrowers or the Guarantor for the recovery of any
sum due under the Financing Documents or otherwise in connection
therewith unless it has been fully indemnified to its satisfaction by
each of the Lenders in the proportion which its Commitment or
Commitments bear to the Total Commitments.
17.8 INFORMATION
(A) The Facility Agent shall promptly send a copy of all notices served by
the Borrowers' Agent under this Agreement and of all other documents
delivered to it under this Agreement to each of the Lenders affected
by such notice or document unless that Lender and the Borrower's Agent
have agreed otherwise and have notified the Facility Agent to that
effect in writing.
(B) The Facility Agent shall not be obliged to transmit to the Lenders any
information in any way relating to any of the parties to the Financing
Documents which the Facility Agent may have acquired otherwise than in
connection with this Agreement.
(C) The Facility Agent shall exercise its rights under clause 11.2(E) to
seek specified further information from the Borrower, the Guarantor or
any of their respective Material Subsidiaries promptly upon the
receipt of any reasonable written request so to do from any Lender.
17.9 THE FACILITY AGENT AS LENDER
The Facility Agent shall with respect to its own participation have
the same rights and powers under the Financing Documents as any other
Lender which is a party to the same Financing Documents and may
exercise them as though it were not also acting as agent for the
Lenders. The Facility Agent and its associates and affiliates may,
without liability to disclose or account, engage in any kind of
financial, trust or commercial business with, or acquire or dispose of
any kind of security of, the Company or any of its associates or
affiliates and neither the Facility Agent nor any of its associates or
affiliates shall have any obligation to disclose or account for any
dealings with the Company or any of its associates or affiliates prior
to the Signing Date.
17.10 INDEMNITY
Each of the Lenders shall fully indemnify the Facility Agent rateably
in the proportion which its Commitment or Commitments bear to the
Total Commitments, from and against all claims, proceedings, expenses,
losses, damages and liabilities of every description which may be
incurred by the Facility Agent in such capacity in good faith and in
the absence of gross negligence or wilful misconduct and which in any
way relate to or arise out of the Financing Documents or any action
taken or omitted by the Facility Agent in enforcing or preserving, or
in attempting to enforce or preserve, any of the rights of the Lenders
under the Financing Documents. If the Facility Agent in good faith and
in the absence of gross negligence or wilful misconduct makes
available to a Borrower an amount under this Agreement which has not
been made unconditionally available to the Facility Agent by a Lender,
then that Lender shall indemnify the Facility Agent against any loss
which the Facility Agent suffers or incurs as a result.
Unless the Borrowers' Agent notifies the Facility Agent before the
date a payment is due hereunder that a Borrower does not intend to
make the payment, the Facility Agent may assume that the Borrower has
made that payment when so due and the Facility Agent may make
available to each Lender on that payment date an amount equal to that
Lender's share of the assumed payment. If the Borrower has not made
payment to the Facility Agent, each Lender shall on demand repay to
the Facility Agent, for value on the date of payment to the Lender,
the amount made available to that Lender.
17.11 AMENDMENTS
The Facility Agent may (except where any other authority is required
for the same by the express provisions of the Financing Documents)
grant waivers or consents or vary the terms of the Financing Documents
if authorised by the Majority Lenders and the Borrowers' Agent. Any
such waiver, consent or variation so authorised and effected by the
Facility Agent shall be binding on all the Lenders and the Facility
Agent shall be under no liability whatsoever in respect of any such
waiver, consent or variation. This clause 17.11 shall not authorise:
(A) any change in the rate at which interest is payable or the method
by which interest is calculated under this Agreement;
(B) any extension of the date for, or alteration in the amount or
currency of, any payment of principal, interest, fee, commission
or any other amount payable under the Financing Documents;
(C) any extension of the Final Drawing Date or Final Maturity;
(D) any increase in any Lender's Commitment;
(E) any variation of (i) the definitions of Majority Lenders; (ii)
clauses 19.2 and 20.1 or this clause 17.11; or
(F) any release of the Guarantor except where specifically permitted
elsewhere in this Agreement or any variation or amendment to
clause 11.13,
except with the prior consent of all the Lenders.
17.12 TERMINATION
(A) The Facility Agent may at any time notify the Borrowers' Agent and the
Lenders of the proposed termination of the agency. After the giving of
any notice of proposed termination or upon the expiration of the
thirty day period following the giving of a notice by the Majority
Lenders as referred to in paragraph (B), the Majority Lenders may in
writing appoint, on behalf of the Lenders, a successor as Facility
Agent subject to the consent of the Borrowers' Agent (not to be
unreasonably withheld or delayed). In the event of a proposed
termination by the Facility Agent, if such successor has not accepted
in writing the appointment within thirty days after the notice of
proposed termination from the Facility Agent, the Facility Agent may
within a further thirty days appoint, on behalf of the Lenders, a
successor which shall be a bank with an office in London and provided
that the Facility Agent's appointment hereunder shall not terminate
following the giving of a notice of termination by it until a
successor has been appointed and written acceptance of such
appointment is given by the successor pursuant to paragraph (D).
(B) The Majority Lenders may require the Facility Agent to resign by
giving to the Facility Agent (copied to the Borrowers' Agent) not less
than thirty days' prior notice.
(C) Upon the written acceptance (in such form as the Majority Lenders may
approve) by any successor of its appointment as Facility Agent, as
regards each of the Borrowers, the Guarantor and the Lenders, such
successor shall become bound by all the obligations of the Facility
Agent and become entitled to all the rights, privileges, powers,
authorities and discretions of the Facility Agent under the Financing
Documents.
(D) Upon the written acceptance (in such form as the Majority Lenders may
approve) by any successor of its appointment as Facility Agent in the
event of a termination by the Facility Agent or upon the expiration of
the thirty day period following the giving of a notice by the Majority
Lenders as referred to in paragraph (B):
(i) the agency of the retiring Facility Agent shall terminate but
without prejudice to any liabilities which the retiring Facility
Agent may have incurred prior to the termination of its agency;
and
(ii) the retiring Facility Agent shall be discharged from any further
liability or obligation under the Financing Documents.
(E) The provisions of this Agreement shall continue in effect for the
benefit of any retiring Facility Agent in respect of any actions taken
or omitted to be taken by it or any event occurring before the
termination of its agency.
18. FEES AND EXPENSES
18.1 AGENCY FEE
The Borrowers have paid 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.
18.2 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 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.
18.3 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.
18.4 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:
(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 (including, for the
avoidance of doubt, a Lender under a Designated Facility) 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 the
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 (including, for the
avoidance of doubt, a Lender under a Designated Facility) receives or
recovers any amount (other than from the Facility Agent) in respect of
sums due from a Borrower or the 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 the 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 the 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 the Guarantor to the Lender has been
extinguished, discharged or satisfied by the amount received or
recovered (for example, because of set-off). In this event, for the
purpose only of determining the liabilities of the relevant Borrower
or the Guarantor, as the case may be, to the Lenders (other than the
Lender making the said payment or payments) and the liabilities of the
Lenders to each other, the said payment or payments by the Lender
shall be deemed to have been made on behalf of the relevant Borrower
or the 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 the 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 the 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 the 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.
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 THE GUARANTOR
Except as otherwise provided in clause 3.9, neither any 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
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
(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 8. 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;
(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 $1,000.
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 the Guarantor or the observance by any 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.
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 the Guarantor 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.
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 the 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.
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 the Guarantor, as such Borrower
and/or the Guarantor may specify in writing to the Borrowers'
Agent and the Facility Agent from time to time;
(iii)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:
The Borrowers' Agent WPP Group plc Agent
27 Farm Street
London W1X 6RD
Facsimile No: 020 7491 8417
Attention: Company Secretary
The Facility Agent Citibank International plc
PO Box 78
335 Strand
London WC2P 1LS
Telephone No: 020 7500 4194
Facsimile No: 020 7500 4482/4484
Attention: Loans Agency
21.5 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.
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) Without prejudice to paragraph (i) above, each of the Borrowers
and the Guarantor irrevocably submits to the jurisdiction of any
state or federal court of the State of New York.
(iii)The Borrowers and the Guarantor irrevocably waive any objections
on the ground of venue or forum non conveniens or any similar
grounds.
(iv) The Borrowers and the Guarantor irrevocably consent to service of
process by mail or in any other manner permitted by the relevant
law.
(B) The Borrowers and the Guarantor shall at all times maintain an agent
for service of process in England and in New York. Such agent shall
be, in the case of England, the Company at its address at 27 Farm
Street, London W1X 6RD, and, in the case of New York, WPP Group USA,
Inc. of 14th Floor, Worldwide Plaza, 309 West 49th Street, New York,
NY 10019 - 7399, U.S.A. and any writ, judgment or other notice of
legal process shall be sufficiently served on the Borrowers and the
Guarantor if delivered to such agent at its address for the time
being. The Borrowers and the Guarantor 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 Guarantor to
receive service of process, the Borrowers and the Guarantor shall
promptly appoint another such agent and advise the Facility Agent
thereof. The Company and WPP Group USA, Inc. hereby accept the
foregoing appointments and agree to accept service of any writ,
judgment or other notice of legal process on behalf of the Borrowers
and the Guarantor in the relevant jurisdiction for which they are
appointed as agent for service of process.
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(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).
(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 2
CALCULATION OF THE MANDATORY COST
(a) For the purpose of paragraph (i) of the definition of Mandatory, the
Mandatory Cost for an Advance for each of its Interest Periods is the
rate determined by the Facility Agent to be equal to the arithmetic
mean (rounded upward, if necessary, to four decimal places) of the
respective rates notified by each of the Reference Banks to the
Facility Agent as the rate resulting from the application of the
following formula:
in relation to an Advance denominated in sterling:
BY + S(Y-Z) + F x 0.01% per annum
----------------------
100-(B + S)
in relation to any other Advance:
F x 0.01% per annum
--------
300
where on the day of application of the formula:
B is the percentage of the Reference Bank's eligible liabilities
(in excess of any stated minimum) by reference to which the Bank
of England and/or the Financial Services Authority ("FSA")
requires the Reference Bank to hold on a non-interest-bearing
deposit account in accordance with its cash ratio requirements;
Y is the percentage rate per annum at which sterling deposits are
offered by the Reference Bank to leading banks in the London
Interbank Market at or about 11.00 a.m. (London time) on that day
for the relevant Interest Period;
S is the percentage of the Reference Bank's eligible liabilities
which the Bank of England (or other relevant United Kingdom
governmental authority or agency) requires the Reference Bank to
place as a special deposit;
Z is the interest rate per annum payable by the Bank of England to
such Reference Bank on special deposits; and
F is the rate of charge payable by the Reference Bank to the FSA
under paragraph 2.02 or 2.03 (as appropriate) of the Fees
Regulations (but where for this purpose, the figure in paragraph
2.02b or 2.03b (as appropriate) will be deemed to be zero)
expressed in pounds per (pound)1 million of the fee base of the
Reference Bank.
(b) For the purposes of this Schedule 2:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings
given to them at the time of application of the formula by the
Bank of England;
(ii) "FEE BASE" has the meaning given to it in the Fees Regulations;
(iii)"FEES REGULATIONS" means any regulations governing the payment
of fees for banking supervision currently in force in England.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y =
15%, BY is calculated as 0.5 x 15. A negative result from subtracting
Z from Y is to be treated as zero.
(d) If a Reference Bank does not supply a rate to the Facility Agent, the
applicable Mandatory Cost will be determined on the basis of the
rate(s) supplied by the remaining Reference Banks to the Facility
Agent.
(e) (i) Each formula is applied on the first day of each Interest Period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(f) The Facility Agent may, from time to time, after consultation with the
Majority Lenders, determine and notify to the 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
PART I
REQUEST IN RESPECT OF ADVANCES (OTHER THAN TERM-OUT ADVANCES)
To: [*the Facility Agent] Date: [* ], 20[* ]
Dear Sirs,
REVOLVING FACILITY AGREEMENT DATED [ ], 2000
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 Request.
2. We wish to borrow Advances with the following specifications:
(a) Borrower: [* ]
(b) Drawing Date: [* ], 20[* ]
(c) Currency: [* ]
(d) Amount: [* ]
(e) Interest Period: [* ]
(f) Payment Instructions: [* ]
3. We confirm that the matters represented and warranted by each Borrower
and each Guarantor set out in clause 10.2 of the Revolving Facility
Agreement are true and accurate on the date of this Request as if made
with reference to the facts and circumstances now prevailing and that
no Event or Default or Potential Event or Default has occurred and is
continuing or would result from the Advance.**
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>
PART II
REQUEST IN RESPECT OF TERM-OUT ADVANCES
To: [*the Facility Agent] Date: [* ], 20[* ]
Dear Sirs,
REVOLVING FACILITY AGREEMENT DATED [ ], 2000
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 Request.
2. We wish to borrow Term-out Advances with the following specifications:
(a) Borrower: [* ]
(b) Drawing Date: [* ], 20[* ]
(c) Currency: [* ]
(d) Amount: [* ]
(e) first Interest Period: [* ]
(f) Final Maturity: [* ]
(g) 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 Request as if made
with reference to the facts and circumstances now prevailing and that
no Event or Default or Potential Event or Default has occurred and is
continuing or would result from the Advance.
Yours faithfully,
[Authorised Signatory]
for and on behalf of
[Borrowers' Agent]
<PAGE>
SCHEDULE 4
CERTIFICATE
[Letterhead of Borrower]
To: [*the Facility Agent]
I [*name], the [Secretary] of [*name of Borrower] of [*address] (the
"COMPANY")
HEREBY CERTIFY that:
(i) attached hereto marked "A" are true and correct copies of all
documents which contain or establish or relate to the constitution of
the Company;
(ii) attached hereto marked "B" is a true and correct copy of [resolutions
duly passed] at [a meeting of the Board of Directors] of the Company
duly convened and held on [ ] 20[* ] approving the Revolving Facility
Agreement to be entered into between (1) WPP Group plc, (2) WPP
Finance Co. Limited, (3) WPP Group U.S. Finance Corp., (4) the
Facility Agent and (5) the Lenders named therein and authorising its
signature, delivery and performance and such resolutions have not been
amended, modified or revoked and are in full force and effect; and
[(iii)attached hereto marked ["C1" and "C2"] are true and correct copies of
the acceptance by [each of] the agent in [England and New York] of
their [respective] appointments as agent of the Company for the
purpose of accepting service of process.]
The following signatures are the true signatures of the persons who have
been authorised to sign the Revolving Facility Agreement and to give
notices and communications, including notices of drawing, under or in
connection with the Revolving Facility Agreement.
Name Position Signature
* *
* *
* *
Signed:
----------------------------
[Secretary]
""""""""""""""
<PAGE>
SCHEDULE 5
FORM OF ACCESSION NOTICE
To: [the Facility Agent]
1. We refer to an agreement (the "REVOLVING FACILITY AGREEMENT") dated
[ ], 2000 and made between (1) WPP Group plc, (2) WPP Finance
Co. Limited, (3) WPP Group U.S. Finance Corp., (4) the Facility Agent
and (5) the Lenders named therein. Terms defined in the Revolving
Facility Agreement shall bear the same meaning herein.
2. We hereby give you notice that we wish [proposed additional Borrower]
of [address, telex number], a company incorporated in [* ] to
become a Borrower under the terms of the Revolving Facility Agreement.
3. As contemplated by the provisions of the Revolving Facility Agreement
we, [proposed additional Borrower], shall accordingly become entitled
to make Requests under the Revolving Facility Agreement in accordance
with the terms and conditions thereof and undertake with the Facility
Agent and the Lenders and the Company to be bound by the terms and
conditions of the Revolving Facility Agreement insofar as such terms
and conditions apply to an additional Borrower.
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 Company and each
Borrower and we, as the Company, 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
for and on behalf of for and on behalf of
[additional Borrower] [Borrowers' Agent]
<PAGE>
SCHEDULE 6
NOTICE OF PROPOSED SUBSTITUTION
To: [the Facility Agent]
Attention: [Date]
Pursuant to clause 3.9 of the Revolving Facility Agreement dated
[ ], 2000 between WPP Group plc, WPP Finance Co. Limited, WPP
Group U.S. Finance Corp., the Facility Agent and the Lenders (each as
defined therein) we hereby give you notice of the following proposed
substitution of a Borrower in relation to the Advances mentioned below:
(a) Existing Borrower: [* ]
(b) Proposed Substitute Borrower: [* ]
(c) Proposed date for substitution: [* ]
(d) Drawing Date or Date of Issue of relevant Advance: [* ]
(e) Drawing of Advances: [* ]
(f) Currency of Advance: [ ]
Yours faithfully,
[Authorised Signatory]
For and on behalf of
[Borrowers' Agent]
* must be at least fourteen days after the date upon which the Facility
Agent will receive this Notice.
<PAGE>
SCHEDULE 7
FORM OF NOVATION AGREEMENT
A NOVATION AGREEMENT dated [ ]
BETWEEN:
(1) [ ] (the "ORIGINAL BORROWER");
(2) [ ] (the "SUBSTITUTE BORROWER");
(3) WPP GROUP plc on behalf of itself and each other Borrower (as such
capitalised terms are defined in the Revolving Facility Agreement
referred to below) (the "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 [ ],
2000 and made between WPP Group plc, WPP Finance Co. Limited, WPP Group
U.S. Finance Corp., the Facility Agent and the Lenders (all as named
therein) (the "REVOLVING FACILITY AGREEMENT").
IT IS AGREED:
1. NOVATION
In consideration of a payment made by the Original Borrower to the
Substitute Borrower and the release of the Original Borrower from its
obligations and liabilities (actual or contingent) specified in the
Schedule hereto under the Revolving Facility Agreement and with effect
on and from [ ] (the "EFFECTIVE DATE") the Substitute
Borrower hereby undertakes to observe and perform all the obligations
and liabilities (actual or contingent) of the Original Borrower under
the Revolving Facility Agreement in respect of the Advances specified
in the Schedule (including any such obligations or liabilities as may
have accrued or become due in respect thereof prior to the Effective
Date).
2. INTEGRATION
This Novation Agreement shall be read as one with the Revolving
Facility Agreement so that any reference therein to "THIS AGREEMENT",
"HEREUNDER" and similar shall include and be deemed to include this
Novation Agreement.
3. REPRESENTATIONS AND WARRANTIES
The Substitute Borrower represents and warrants to the Facility Agent
and the Lenders on [ ] in the terms of the representations
and warranties contained in clause 10.2 of the Revolving Facility
Agreement (with reference to the facts and circumstances subsisting as
at such date).
4. CONTINUING LIABILITY
The Borrowers' Agent on behalf of itself acknowledges and confirms
that its 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.
For and on behalf of
[The Original Borrower]
-------------------------------------------
For and on behalf of
[The Substitute Borrower]
-------------------------------------------
For and on behalf of the
Guarantor, each Borrower and
the Borrowers' Agent
-------------------------------------------
For and on behalf of each
Lender and the Facility Agent
-------------------------------------------
<PAGE>
SCHEDULE 8
FORM OF TRANSFER CERTIFICATE
To: [*the Facility Agent]
TRANSFER CERTIFICATE
relating to a Revolving Facility Agreement (the "REVOLVING FACILITY
AGREEMENT") dated [ ], 2000 and made between (1) WPP Group plc (as
Guarantor), (2) WPP Finance Co. Limited (as borrower), (e) WPP Group U.S.
Finance Corp., (4) the Facility Agent and (5) the Lenders 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 either:
(i) a bank within the Meaning of Section 840A of the Income and
Corporation Taxes Act 1988 which is resident in the United
Kingdom for tax purposes; or
(ii) not resident for tax purposes in the United Kingdom.
This confirmation is given as at the date of the transfer. The
Transferee agrees that it will notify the Facility Agent promptly of
any change in any of these matters.
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
Agreement or any document relating thereto and assumes no
responsibility for the financial condition of any Borrower or the
Guarantor or any other party to the Revolving Facility Agreement or
for the performance and observance by any Borrower or the 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
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 BORROWERS
WPP FINANCE CO. LIMITED
WPP GROUP U.S. FINANCE CORP.
For each of the above as Borrower
By: PAUL RICHARDSON
THE GUARANTOR
WPP GROUP PLC
By: PAUL RICHARDSON
THE BORROWERS' AGENT
WPP GROUP PLC
By: PAUL RICHARDSON
THE FACILITY AGENT
CITIBANK INTERNATIONAL PLC
By: MICHAEL LLEWELYN-JONES
THE LENDERS
BANK OF AMERICA, N.A.
By: THOMAS WEITH
BARCLAYS BANK PLC
By: RICHARD STANNING
BNP PARIBAS
By: NICK SAINT
CITIBANK N.A.
By: MICHAEL LLEWELYN-JONES
CREDIT AGRICOLE INDOSUEZ
By: ADAM LAX
DANIEL QUIRK
FIRST UNION NATIONAL BANK
By: JOHN MAIER
FLEET NATIONAL BANK
By: DAMARIS ALBARRAN
HSBC BANK PLC
By: NIGEL SHAW
ING BANK N.V., LONDON BRANCH
By: KEITH JACQUES
THE ROYAL BANK OF SCOTLAND PLC
By: STEVE BARLOW
SUMITOMO BANK, LTD.
By: JOHN TIMMS
WACHOVIA BANK N.A.
By: JEFF McCOY
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: TIM SAI-LOUIE
MICHAELA ZINSER
