Exhibit 4.2


 


£350,000,000

FACILITY AGREEMENT


 


June 30,
2008


 


CPW
DISTRIBUTION HOLDINGS LTD

the Company


 


BEST
BUY CO., INC

the Guarantor


 


THE CARPHONE WAREHOUSE GROUP PLC

the Lender


 


 

















 


CONTENTS


 


	
  Clause­

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Definitions and
  interpretation

  	
   

  	
  1

  
	
  2.

  	
   

  	
  The Facility

  	
   

  	
  11

  
	
  3.

  	
   

  	
  Purpose

  	
   

  	
  11

  
	
  4.

  	
   

  	
  Conditions of
  Utilisation

  	
   

  	
  12

  
	
  5.

  	
   

  	
  Utilisation

  	
   

  	
  12

  
	
  6.

  	
   

  	
  Optional Currencies

  	
   

  	
  13

  
	
  7.

  	
   

  	
  Repayment

  	
   

  	
  15

  
	
  8.

  	
   

  	
  Prepayment and
  Cancellation

  	
   

  	
  15

  
	
  9.

  	
   

  	
  Interest

  	
   

  	
  17

  
	
  10.

  	
   

  	
  Interest Periods

  	
   

  	
  17

  
	
  11.

  	
   

  	
  Changes to the Calculation
  of Interest

  	
   

  	
  18

  
	
  12.

  	
   

  	
  Fees

  	
   

  	
  19

  
	
  13.

  	
   

  	
  Tax Gross Up

  	
   

  	
  20

  
	
  14.

  	
   

  	
  Indemnities

  	
   

  	
  21

  
	
  15.

  	
   

  	
  Costs and Expenses

  	
   

  	
  22

  
	
  16.

  	
   

  	
  Guarantee

  	
   

  	
  23

  
	
  17.

  	
   

  	
  Representations

  	
   

  	
  25

  
	
  18.

  	
   

  	
  Information
  Undertakings

  	
   

  	
  26

  
	
  19.

  	
   

  	
  Financial Covenant

  	
   

  	
  27

  
	
  20.

  	
   

  	
  General Undertakings

  	
   

  	
  28

  
	
  21.

  	
   

  	
  Events of Default

  	
   

  	
  30

  
	
  22.

  	
   

  	
  Changes to the Parties

  	
   

  	
  33

  
	
  23.

  	
   

  	
  Payment Mechanics

  	
   

  	
  34

  
	
  24.

  	
   

  	
  Set-Off

  	
   

  	
  35

  
	
  25.

  	
   

  	
  Notices

  	
   

  	
  36

  
	
  26.

  	
   

  	
  Calculations and
  Certificates

  	
   

  	
  37

  
	
  27.

  	
   

  	
  Partial Invalidity

  	
   

  	
  37

  
	
  28.

  	
   

  	
  Remedies and Waivers

  	
   

  	
  37

  
	
  29.

  	
   

  	
  Amendments and Waivers

  	
   

  	
  37

  
	
  30.

  	
   

  	
  Counterparts

  	
   

  	
  37

  
	
  31.

  	
   

  	
  Governing Law

  	
   

  	
  38

  
	
  32.

  	
   

  	
  Enforcement

  	
   

  	
  38

  
	
  33.

  	
   

  	
  Lender indebtedness

  	
   

  	
  38

  



 


 

















 


	
  Schedule

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Conditions Precedent

  	
   

  	
  39

  
	
  2.

  	
   

  	
  Utilisation Request

  	
   

  	
  40

  
	
  3.

  	
   

  	
  Form of Compliance
  Certificate

  	
   

  	
  41

  
	
  4.

  	
   

  	
  Timetables

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signatories

  	
   

  	
  43

  



 


 

















 


THIS
AGREEMENT is
dated June 30, 2008 and made  


 


BETWEEN:


 


(1)                                  CPW DISTRIBUTION
HOLDINGS LTD,  a company incorporated in England and
Wales with registration number 6534088 (the Company);


 


(2)                                  BEST BUY CO., INC (the Guarantor);  and


 


(3)                                  THE CARPHONE WAREHOUSE
GROUP PLC,  a company incorporated in England and
Wales with registration number 3253714 (the Lender).


 


IT IS
AGREED as
follows:


 


SECTION 1


 


INTERPRETATION


 


1.                                      DEFINITIONS AND
INTERPRETATION


 


1.1                               Definitions


 


In this Agreement:


 


Acceptable
Bank means a
commercial bank or trust company which has a rating of A or higher by Standard &
Poor’s Ratings Group or Fitch Limited or A2 or higher by Moody’s Investors
Services, Inc. or a comparable rating from an internationally recognised
credit rating agency for its long-term debt obligations.


 


Authorisation
means an
authorisation, permit, consent, approval, resolution, licence, exemption,
filing or registration.


 


Availability
Period means the
period from and including the date of this Agreement to and including the date which is one Month before the
Final Maturity Date or such other later date as may be agreed by the
Lender acting reasonably.


 


Available
Commitment means
the Lender’s Commitment minus:


 


(a)           the Base Currency Amount of any
outstanding Loans; and


 


(b)                                 in relation to any proposed Utilisation,
the Base Currency Amount of any Loans that are due to be made on or before the
proposed Utilisation Date,


 


other
than any Loans that are due to be repaid or prepaid on or before the proposed
Utilisation Date.  


 


Base
Currency means
sterling.


 


Base
Currency Amount means,
in relation to a Loan, the amount specified in the Utilisation Request
delivered by the Company for that Loan (or, if the amount requested is not
denominated in the Base Currency, that amount converted into the Base Currency
at the Lender’s Spot Rate of Exchange on the date which is three Business Days
before the Utilisation Date or, if later, on the


 


 


1

















 


date the Lender receives
the Utilisation Request) adjusted to reflect any repayment or prepayment of the
Loan.


 


Break
Costs means the
amount (if any) by which:


 


(a)                                  the interest (excluding the Margin) which
the Lender should have received for the period from the date of receipt of all
or any part of a Loan or Unpaid Sum to the last day of the current Interest
Period in respect of that Loan or Unpaid Sum, had the principal amount or
Unpaid Sum received been paid on the last day of that Interest Period;


 


exceeds:


 


(b)                                 the amount which the Lender would be able
to obtain by placing an amount equal to the principal amount or Unpaid Sum
received by it on deposit with a leading bank in the Relevant Interbank Market
for a period starting on the Business Day following receipt or recovery and
ending on the last day of the current Interest Period.


 


Business
Day means a day
(other than a Saturday or Sunday) on which banks are open for general business
in London and:


 


(a)                                  (in relation to any date for payment or
purchase of a currency other than euro) the principal financial centre of the
country of that currency; or


 


(b)                                 (in relation to any date for payment or
purchase of euro) any TARGET Day. 


 


Commitment means £350,000,000,
to the extent not cancelled or reduced under this Agreement.


 


Compliance
Certificate means
a certificate substantially in the form set out in Schedule 3 (Form of
Compliance Certificate).


 


Default means an Event of Default or any event or
circumstance specified in Clause 21 (Events of Default) which would (with the
expiry of a grace period, the giving of notice, the making of any determination
under the Finance Documents or any combination of any of the foregoing) be an
Event of Default.


 


EBIT means, in relation to any Relevant
Period, the total consolidated operating profit of the Group for that Relevant
Period before taking into account:


 


(a)                                  Net Interest Expense; 


 


(b)                                 Tax;


 


(c)                                  any share of the profit of any associated
company or undertaking, except for dividends received in cash by any member of
the Group; and


 


(d)                                 all extraordinary and exceptional items,


 


as determined (except as
needed to reflect the terms of Clause 19 (Financial Covenant)) from the
financial statements of the Group and Compliance Certificates delivered under
Clause 18.1 (Financial Statements) and Clause 18.2 (Compliance Certificate).


 


EBITDA means, in relation to any Relevant Period, EBIT
for that Relevant Period after adding back all amounts provided for depreciation, amortisation
and write-downs of goodwill and other intangible assets, as determined (except
as needed to reflect the terms of Clause 19 (Financial


 


 


2

















 


Covenant)) from the
financial statements of the Group and Compliance Certificates delivered under
Clause 18.1 (Financial Statements) and Clause 18.2 (Compliance Certificate).


 


Event of
Default means any
event or circumstance specified as such in Clause 21 (Events of Default).


 


Facility
means the
revolving credit loan facility made available under this Agreement as described
in Clause 2 (The Facility).


 


Final Maturity
Date means the
fifth anniversary of the date of this Agreement.


 


Finance
Document means
this Agreement and any other document designated as such by the Lender, the
Guarantor and the Company.


 


Financial
Indebtedness means,
without double counting, any indebtedness for or in respect of:


 


(a)                                  moneys borrowed;


 


(b)                                 any amount raised by acceptance under any
acceptance credit facility;


 


(c)                                  any amount raised pursuant to any note
purchase facility or the issue of bonds, notes, debentures, loan stock or any similar
instrument;


 


(d)                                 the amount of any liability in respect of
any lease or hire purchase contract which would, in accordance with GAAP, be
treated as a finance or capital lease;


 


(e)                                  receivables sold or discounted (other
than any receivables to the extent they are sold on a non-recourse basis);


 


(f)                                    any amount raised under any other
transaction (including any forward sale or purchase agreement) intended to and
having the commercial effect of a borrowing;


 


(g)                                 any derivative transaction entered into
in connection with protection against or benefit from fluctuation in any
interest rate or foreign exchange rate or price (and, when calculating the
value of any derivative transaction, only the marked to market value shall be
taken into account);


 


(h)                                 shares which are expressed to be
redeemable before the Final Maturity Date;


 


(i)                                     any counter-indemnity obligation in
respect of a guarantee, indemnity, bond, standby or documentary letter of
credit or any other instrument issued by a bank or financial institution
(provided that, for all purposes, any counter-indemnity obligation relating to
the obligations of a member of the Group arising in the ordinary course of its
trade for purposes other than to raise finance, shall not be included in this
paragraph (i)); and


 


(j)                                     the amount of any liability in respect of
any guarantee or indemnity for any of the items referred to in paragraphs (a) to
(i) above.


 


Financial
Year means a
financial year of the Company.


 


GAAP means generally accepted accounting
principles, standards and practices in the United Kingdom, being IFRS.


 


Guarantee
means the
guarantee of the Guarantor contained in Clause 16.


 


 


3

















 


Group means the Company and its Subsidiaries
for the time being.


 


IFRS means international accounting standards
within the meaning of the IAS Regulation 1606/2002 to the extent applicable to
the relevant financial statements.


 


Interest
Period means, in
relation to a Loan, each period determined in accordance with Clause 10
(Interest Periods) and, in relation to an Unpaid Sum, each period determined in
accordance with Clause 9.3 (Default interest).


 


Legal
Reservations means
any applicable bankruptcy, reorganisation, insolvency, moratorium or similar
laws affecting creditors’ rights generally and subject, as to enforceability,
to equitable principles of general application.


 


Lender’s
Spot Rate of Exchange means the rate of exchange at which the Lender can, acting reasonably,
purchase the relevant currency with the Base Currency in the London foreign
exchange market.


 


LIBOR means, in relation to a Loan:


 


(a)                                  the applicable Screen Rate; or


 


(b)                                 (if no Screen Rate is available for the
currency or Interest Period of that Loan) the arithmetic mean of the rates
(rounded upwards to four decimal places) as supplied to the Lender at its
request quoted by the Reference Banks to leading banks in the London interbank
market,


 


as of the Specified Time
on the Quotation Day for the offering of deposits in the currency of that Loan
and for a period comparable to the Interest Period for that Loan.


 


Loan means a loan made or to be made under the
Facility or the principal amount outstanding for the time being of that loan.


 


Margin means 0.75 per cent. per annum  


 


Market
Disruption Event means:


 


(a)                                  at or about noon on the Quotation Day for
the relevant Interest Period the Screen Rate is not available and none of the Reference Banks supplies a rate to the Lender
to determine LIBOR for the relevant currency and period; or


 


(b)                                 before close of business in London on the
Quotation Day for the relevant Interest Period, the Company receives
notification from the Lender that the cost to it of obtaining matching deposits
in the Relevant Interbank Market would be in excess of LIBOR.


 


Material
Adverse Effect means
a material adverse effect on the ability of the Company to perform and comply
with the financial covenant in Clause 19 (Financial Covenant) and/or any
payment obligations under any Finance Document.


 


Month means a period starting on one day in a
calendar month and ending on the numerically corresponding day in the next
calendar month, except that:


 


(a)                                  if the numerically corresponding day is
not a Business Day, that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one, or if there is
not, on the immediately preceding Business Day;


 


 


4

















 


(b)                                 if there is no numerically corresponding
day in the calendar month in which that period is to end, that period shall end
on the last Business Day in that calendar month;


 


(c)                                  notwithstanding sub-paragraph (a) above,
a period which commences on the last Business Day
of a month will end on the last Business Day in the next month or the calendar
month in which it is to end, as appropriate.


 


The above rules will
only apply to the last Month of any period.


 


Net Debt
means, as at any
particular time, Total Debt as at that time, less:


 


(a)                                  any cash in hand or on deposit at call
with any bank or financial institution incorporated in any OECD country;


 


(b)                                 certificates of deposit, maturing within one year after
the relevant date of calculation, issued by an Acceptable Bank;


 


(c)                                  any investment in marketable obligations
issued or guaranteed by the government of the United States of America, the
U.K. or a member state of the European Union with a credit rating of AAA by
Standard & Poor’s Ratings Group or Fitch Limited or Aaa by Moody’s
Investors Services, Inc. or by an instrumentality or agency of the
government of the United States of America, the U.K. or such member state of
the European Union having an equivalent credit rating to the government of the
United States of America, the U.K. or such member state of the European Union
respectively;


 


(d)                                 open market commercial paper, corporate bonds
or similar investments:


 


(i)                                     for which a recognised trading market
exists;


 


(ii)                                  issued in the United States of America, the
U.K. or a member state of the European Union with a credit rating of AAA by
Standard & Poor’s Ratings Group or Fitch Limited or Aaa by Moody’s
Investors Services, Inc.;


 


(iii)                               which mature within one year after the
relevant date of calculation or which are repayable at call; and


 


(iv)                              which, on the relevant date of
calculation, has a:


 


(A)                              short term credit rating of either A-1 by
Standard & Poor’s Ratings Group, F-1 by Fitch Limited or P-1 by Moody’s
Investors Services, Inc. in the case of investments maturing within one
year of issue; or


 


(B)                                long term credit rating of either A by
Standard & Poor’s Ratings Group or Fitch Limited or A2 by Moody’s
Investors Services, Inc. in the case of any other investments; or


 


(e)                                  the value of any investment in any money market or
similar fund which in each case has a credit rating of either AAA by Standard &
Poor’s Ratings Group or Fitch Limited or Aaa by Moody’s Investors Services, Inc.
provided that:


 


(i)                                     that investment is repayable at call; or


 


(ii)                                  (A)                              under the terms of that fund, a member of
the Group has the right to be repaid the value of that investment on not more than 7 days’ notice; and


 


 


5

















 


(B)                                the maximum amount invested in such funds
does not exceed £25,000,000 (or its equivalent in any other currencies) in
aggregate at any time,


 


to the extent that:


 


(X)                               the items in paragraphs (a) to (e) above
(inclusive) are denominated in any freely convertible and transferable
currencies;


 


(Y)                                those items are beneficially owned by any
member of the Group and are unencumbered by any Security (except for any
Security securing obligations to the Lender under the Finance Documents); and


 


(Z)                                no other person (except as a result of
mandatory provisions of law applying to companies generally in the relevant
jurisdiction of incorporation) has a prior claim which would at that time rank
in priority to a claim by any other unsecured and unsubordinated creditor
against those items on an insolvency of the relevant member of the Group.


 


Net
Interest Expense  means, in relation to any Relevant
Period, the aggregate amount of interest and any other finance charges (whether
or not paid, payable or capitalised) accrued by the Group in that Relevant
Period in respect of Total Debt:


 


(a)                                  including the interest element of leasing
and hire purchase payments;


 


(b)                                 including commitment fees, commissions,
arrangement fees and guarantee fees; and


 


(c)                                  including amounts in the nature of
interest payable in respect of any shares redeemable before the Final Maturity
Date,


 


after (but without double
counting):


 


(i)                                     adding back the net amount payable (or
deducting the net amount receivable) by members of the Group in respect of that
Relevant Period under any interest or (so far as they relate to interest)
currency hedging arrangements; and


 


(ii)                                  deducting interest income of the Group in
respect of that Relevant Period to the extent freely distributable to the
Company in cash,


 


all as determined (except
as needed to reflect the terms of Clause 19 (Financial Covenant)) from the
financial statements of the Group and Compliance Certificates delivered under
Clause 18.1 (Financial Statements) and Clause 18.2 (Compliance Certificate).


 


Optional
Currency means a
currency (other than the Base Currency) which complies with the conditions set
out in Clause 4.3 (Conditions relating to Optional Currencies).


 


Participating
Member State has
the meaning given to it in council Regulation EC. No 1103/97 of 17th June, 1997
made under Article 235 of the Treaty on European Union.


 


Party means a party to this Agreement and
includes its successors in title.


 


Qualifying
Lender means a
person which is beneficially entitled to interest payable to that person in
respect of an advance under a Finance Document and is:


 


(a)                                  a company resident in the United Kingdom
for United Kingdom tax purposes; or


 


 


6

















 


(b)                                 a partnership, each member of which is a
company resident in the United Kingdom for United Kingdom tax purposes or a
company not resident in the United Kingdom for tax purposes but which carries
on a trade in the United Kingdom through a branch or agency and is required to
bring into account in computing its chargeable profits for the purposes of
section 11(2) of the Taxes Act the whole of any share of interest payable
to it in respect of that advance which is attributable to it by reason of
sections 114 and 115 of the Taxes Act; or


 


(c)                                  a company not resident in the United
Kingdom for United Kingdom tax purposes which carries on a trade in the United
Kingdom through a branch or agency and brings interest payable to it in respect
of that advance into account in computing its chargeable profits for the
purposes of section 11(2) of the Taxes Act, and therefore satisfies one of
the conditions in section 349B of the Taxes Act.


 


Quotation
Day means, in
relation to any period for which an interest rate is to be determined,


 


(a)                                  (if the currency is sterling) the first
day of that period;


 


(b)                                 (if the currency is euro) two
TARGET Days before the first day of that period; or  


 


(c)                                  (for any other currency) two Business
Days before the first day of that period,


 


unless market practice
differs in the Relevant Interbank Market for a currency, in which case the
Quotation Day for that currency will be determined by the Lender in accordance
with market practice in the Relevant Interbank Market (and if quotations for
that currency and period would normally be given by leading banks in the
Relevant Interbank Market on more than one day, the Quotation Day will be the
last of those days).


 


Reference
Banks means the
principal London offices of Barclays Bank PLC and HSBC Bank PLC or such other
banks as may be appointed by the Lender in consultation with the Company and
the Guarantor.


 


Relevant
Date means 31 March or
30 September in any year or the closest Saturday to these dates on which
the Group prepares consolidated accounts.


 


Relevant
Interbank Market means
the London interbank market.


 


Relevant
Period means each
period of 52 or 53 weeks ending on a Relevant Date.


 


Repeating
Representations means
each of the representations set out in Clauses 17.1 (Status) to 17.4 (Power and
Authority) and 17.5 (No Default).


 


Rollover
Loan means one or
more Loans:


 


(a)                                  made or to be made
on the same day that a maturing Loan is due to be repaid;  


 


(b)                                 the aggregate amount of which is equal to
or less than the maturing Loan;


 


(c)                                  in the same currency as the maturing Loan
(unless it arose as a result of the operation of Clause 6.2 (Unavailability of
a currency)); and


 


(d)                                 made or to be made to the Company for the
purpose of refinancing a maturing Loan.


 


Screen
Rate means in
relation to LIBOR, the British Bankers Association Interest Settlement Rate for
the relevant currency and period displayed on the appropriate page of the
Reuters screen. If the


 


 


7

















 


agreed page is
replaced or service ceases to be available, the Lender may specify another page or
service displaying the appropriate rate after consultation with the Company.


 


Security
means a mortgage,
charge, pledge, lien or other security interest securing any obligation of any
person or any other agreement or arrangement intended to and having
substantially the same effect.


 


Specified
Time means a time
determined in accordance with Schedule 4 (Timetables).


 


Subsidiary
means a
subsidiary within the meaning of section 736 of the Companies Act 1985 and, for
the purpose of Clause 19 (Financial Covenant) and in relation to financial
statements of the Group, a subsidiary undertaking within the meaning of section
258 of the Companies Act 1985.


 


TARGET means the Trans-European Automated
Real-time Gross Settlement Express Transfer payment system which utilises
interlinked national real time gross settlement systems and the European
Central Bank’s payment mechanism and which began operations on 4 January 1999.


 


TARGET2 means the Trans-European Automated
Real-time Gross Settlement Express Transfer payment system which utilises a
single shared platform and which was launched on 19 November 2007.


 


TARGET
Day means:


 


(a)                                  until such time as TARGET is permanently
closed down and ceases operations, any day on which both TARGET and TARGET2
are; and


 


(b)                                 following such time as TARGET is
permanently closed down and ceased operations, any day on which TARGET2 is,


 


open for the settlement
of payments in euro.


 


Tax means any tax, levy, impost, duty or
other charge or withholding of a similar nature (including any penalty or
interest payable in connection with any failure to pay or any delay in paying
any of the same).


 


Taxes
Act means the
Income and Corporation Taxes Act 1988.


 


Tax
Credit means a
credit against, relief or remission for, or repayment of any Tax.


 


Tax
Deduction means a
deduction or withholding for or on account of Tax from a payment under a
Finance Document.


 


Tax
Payment means an
increased payment made by the Company to the Lender under Clause 13.1 (Tax
Gross-Up).


 


Total
Debt means, as at
any particular time, the aggregate outstanding principal, capital or nominal amount (and any fixed or minimum premium payable
on prepayment or redemption) of the Financial Indebtedness of members of
the Group owed to persons outside the Group other than any indebtedness
referred to in paragraph (g) of the definition of Financial Indebtedness,
and any guarantee or indemnity in respect of that indebtedness, and without
double-counting items referred to in the definition of Financial Indebtedness.


 


For this purpose, any
amount outstanding or repayable in a currency other than sterling shall on that
day be taken into account:


 


 


8

















 


(a)                                  if an audited consolidated balance sheet
of the Group has been prepared as at that day, in their sterling equivalent at
the rate of exchange used for the purpose of preparing that balance sheet; and


 


(b)                                 in any other case, in their sterling equivalent at the
rate of exchange that would have been used had an audited consolidated balance
sheet of the Group been prepared as at that day in accordance with GAAP.


 


Treaty on European Union means the Treaty of Rome
signed on 25th March, 1957 as amended by the Single European Act 1986 and the
Maastricht Treaty on 7th February, 1992.


 


UK Listing Rules means the listing rules of the UK
Listing Authority.


 


Unpaid Sum means any sum due and payable but unpaid by the
Company and/or the Guarantor under the Finance Documents.


 


Utilisation means a utilisation of the Facility.


 


Utilisation Date means the date of a Utilisation, being the
date on which the relevant Loan is to be made.


 


Utilisation Request means a notice
substantially in the form set out in Schedule 2 (Utilisation Request).


 


VAT means value added tax as provided for in the Value
Added Tax Act 1994 and any other tax of a similar nature.


 


1.2          Construction


 


(a)                                  Any reference in this Agreement to:


 


(i)                                     assets includes present and future properties,
revenues and rights of every description;


 


(ii)                                  determines or determined
means, in relation to Clause 13 (Tax Gross Up), a determination made
in the absolute discretion of the person making the determination;


 


(iii)                               a Finance
Document or any other agreement or instrument is a reference to that
Finance Document or other agreement or instrument as amended or novated;


 


(iv)                              financial statements of the Company includes a reference to
the audited and unaudited consolidated financial statements to be delivered
under Clause 18.1 (Financial Statements);


 


(v)                                 indebtedness includes any obligation (whether incurred
as principal or as surety) for the payment
or repayment of money, whether present or future, actual or contingent;


 


(vi)                              a person
includes any person, firm, company, corporation, government, state
or agency of a state or any association, trust or partnership (whether or not
having separate legal personality) or two or more of the foregoing;


 


(vii)                           a regulation
includes any regulation, rule, official directive, request or
guideline (whether or not having the force of law) of any governmental, intergovernmental
or


 


 


9

















 


supranational body,
agency, department or regulatory, self-regulatory or other authority or
organisation;


 


(viii)                        a provision of law is a reference to that
provision as amended or re-enacted; and


 


(ix)                                unless a contrary indication appears, a
time of day is a reference to London time. 


 


(b)                                 Section, Clause and Schedule headings are
for ease of reference only.


 


(c)                                  Unless a contrary indication appears, a
term used in any other Finance Document or in any notice given under or in
connection with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.


 


(d)                                 A Default (other than an Event of
Default) is “continuing” if it has
not been remedied or waived and an Event of Default is “continuing” if it has not been waived.


 


(e)                                  If the directors of any member of the
Group obtain a moratorium under Section 1A of the Insolvency Act 1986, the
ending of such moratorium will not remedy any Event of Default which occurred
as a result of such moratorium.


 


1.3          Third Party Rights


 


A person who is not a
Party has no rights under the Contracts (Rights of Third Parties) Act 1999 to
enforce or to enjoy the benefit of any term of this Agreement.


 


 


10
















 


SECTION 2


 


THE
FACILITY


 


2.                                      THE FACILITY


 


2.1                               The Facility


 


Subject to the terms of
this Agreement, the Lender makes available to the Company a multicurrency
revolving credit facility in an amount equal to the Commitment.


 


3.                                      PURPOSE


 


3.1                               Purpose


 


The Company shall apply
the amounts borrowed by it under the Facility towards the general corporate
purposes of the Group.


 


3.2                               Monitoring


 


The Lender is not bound
to monitor or verify the application of any amount borrowed pursuant to this
Agreement.


 


 


11

















 


SECTION 3


 


UTILISATION


 


4.                                      CONDITIONS OF
UTILISATION


 


4.1                               Initial conditions
precedent


 


The Company may not
deliver a Utilisation Request unless the Lender has received all of the
documents and other evidence listed in Schedule 1 (Conditions Precedent) in
form and substance satisfactory to the Lender, acting reasonably. The Lender
shall notify the Company and the Guarantor promptly upon being so satisfied.


 


4.2                               Further conditions
precedent


 


The Lender will only be
obliged to make a Loan if on the date of the Utilisation Request and on the
proposed Utilisation Date:


 


(i)                                     in the case of a Rollover Loan, no Event
of Default is continuing or would result from the proposed Loan and, in the
case of any other Loan, no Default is continuing or would result from the
proposed Loan; and


 


(ii)                                  the Repeating Representations to be made
by the Company are true in all material respects.


 


4.3                               Conditions relating to
Optional Currencies


 


A currency will
constitute an Optional Currency in relation to a Loan if it:


 


(a)                                  is readily available in the amount
required and freely convertible into the Base Currency in the Relevant
Interbank Market on the Quotation Day and the Utilisation Date for that Loan;
or


 


(b)                                 is approved by the Lender.


 


4.4                               Maximum Number of Loans


 


Unless the Lender agrees,
a Utilisation Request may not be given if, as a result, there would be more
than 10 Loans outstanding.


 


5.                                      UTILISATION


 


5.1                               Delivery of a
Utilisation Request


 


The Company may utilise
the Facility by delivery to the Lender of a duly completed Utilisation Request
not later than the Specified Time.


 


5.2                               Completion of a
Utilisation Request


 


(a)                                  Each Utilisation Request is irrevocable
and will not be regarded as having been duly completed unless:


 


(i)                                     the proposed Utilisation Date is a
Business Day within the Availability Period;


 


 


12

















 


(ii)                                  the currency and amount of the
Utilisation comply with Clause 5.3 (Currency and amount);


 


(iii)                               the proposed Interest Period complies
with Clause 10 (Interest Periods); and


 


(iv)                              it specifies the account and bank (which
must be in the principal financial centre of the country of the currency of the
Utilisation or, in the case of euro, the principal financial centre of a Participating
Member State or London) to which the proceeds of the Utilisation are to be
credited.


 


(b)                                 Only one Loan may be requested in each
Utilisation Request.


 


5.3                               Currency and amount


 


(a)                                  The currency specified in a Utilisation
Request must be the Base Currency or an Optional Currency.


 


(b)                                 The amount of the proposed Loan must be:


 


(i)                                     if the currency selected is the Base
Currency, a minimum of £5,000,000 and an integral multiple of £1,000,000 or, if
less, the Available Commitment; or


 


(ii)                                  if the currency selected is an Optional
Currency, the minimum amount (or an integral
multiple, if required) specified by the Lender as being the minimum amount
for that currency (being the amount determined by the Lender to be the nearest
appropriate equivalent amount to the amount described in sub-paragraph (i) above)
or, if less, the Available Commitment.


 


5.4                               Availability of Loans


 


(a)                                  If the conditions set out in this
Agreement have been met, the Lender shall make each Loan available by the
Utilisation Date.


 


(b)                                 The Lender is not obliged to make a Loan
if, as a result, the Loans would exceed the Commitment.


 


(c)                                  The Lender shall determine the Base
Currency Amount of each Loan which is to be made in an Optional Currency.


 


6.                                      OPTIONAL CURRENCIES


 


6.1                               Selection of currency


 


The
Company shall select the currency of a Loan in a Utilisation Request.




6.2                               Unavailability of a
currency


 


(a)                                  If before the Specified Time on any
Quotation Day:


 


(i)                                     the Optional Currency requested is not
readily available to the Lender in the amount required; or


 


(ii)                                  compliance with the Lender’s obligation
to make available a Loan in the proposed Optional Currency would contravene a
law or regulation applicable to it,


 


 


13

















 


the Lender will give
notice to the Company to that effect by the Specified Time on that day. In this
event, the Lender will be required to make the Loan in the Base Currency (in an
amount equal to the Base Currency Amount or, in respect of a Rollover Loan, an
amount equal to the Base Currency Amount of the maturing Loan that is to be
repaid).


 


(b)                                 A Loan will still be treated as a
Rollover Loan if it is not denominated in the same currency as the maturing
Loan by reason only of the operation of this subclause.


 


 


14

















 


SECTION 4


 


REPAYMENT,
PREPAYMENT AND CANCELLATION


 


7.                                      REPAYMENT


 


(a)                                  The Company must repay each Loan in full
on the last day of the Interest Period applicable to that Loan.


 


(b)                                 Subject to the other terms of this
Agreement, any amounts repaid under paragraph (a) above may be reborrowed.


 


8.                                      PREPAYMENT AND
CANCELLATION


 


8.1                               Mandatory prepayment -
Illegality


 


If it becomes unlawful in
any jurisdiction for the Lender to perform any of its obligations as
contemplated by this Agreement or to fund or have outstanding any Loan:


 


(a)                                  the Lender shall promptly notify the
Company upon becoming aware of that event;


 


(b)                                 upon the Lender notifying the Company,
the Commitment will be immediately cancelled; and


 


(c)                                  the Company shall repay the Loans on the
last day of the Interest Period for each Loan occurring after the Lender has
notified the Company or, if earlier, the date specified by the Lender in the
notice delivered to the Company (being no earlier than the last day of any
applicable grace period permitted by law).


 


8.2                               Automatic cancellation


 


The Commitment will be
automatically cancelled at the close of business on the last day of the
Availability Period.


 


8.3                               Voluntary cancellation


 


The Company may, if it
gives the Lender and the Guarantor not less than five Business Days’ (or such
shorter period as the Lender may agree) prior notice, cancel the whole or any
part (being a minimum amount of £5,000,000 and an integral multiple of
£1,000,000) of the Available Commitment.


 


8.4                               Voluntary prepayment of
Loans


 


The Company may, if it
gives the Lender and the Guarantor not less than five Business Days’ (or such
shorter period as the Lender may agree) prior notice, prepay the whole or any
part of any Loan (but, if in part, being an amount that reduces the Base
Currency Amount of the Loan by a minimum amount of £5,000,000 and an integral
multiple of £1,000,000).


 


8.5                               Restrictions


 


(a)                                  Any notice of cancellation or prepayment
given by any Party under this Clause 8 (Prepayment and Cancellation) shall be
irrevocable and, unless a contrary indication appears in this Agreement, shall
specify the date or dates upon which the relevant cancellation or prepayment is
to be made and the amount of that cancellation or prepayment.


 


 


15

















 


(b)                                 Any prepayment under this Agreement shall
be made together with accrued interest on the amount prepaid and, subject to
any Break Costs, without premium or penalty.


 


(c)                                  Any part of the Facility which is repaid
in accordance with Clause 7 (Repayment) or prepaid in accordance with Clause
8.4 (Voluntary prepayment of Loans) may be reborrowed in accordance with the
terms of this Agreement.


 


(d)                                 The Company shall not repay or prepay all
or any part of the Loans or cancel all or any part of the Commitment except at
the times and in the manner expressly provided for in this Agreement.


 


(e)                                  No amount of the Commitment cancelled
under this Agreement may be subsequently reinstated.


 


 


16

















 


SECTION 5


 


COSTS
OF UTILISATION


 


9.                                      INTEREST


 


9.1                               Calculation of interest


 


The rate of interest on
each Loan for each Interest Period is the percentage rate per annum which is
the aggregate of the:


 


(a)                                  Margin; and


 


(b)                                 LIBOR.


 


9.2                               Payment of interest


 


The Company shall pay
accrued interest on each Loan on the last day of its Interest Period (and if
that Interest Period is longer than six Months, on the dates falling at six
monthly intervals after the first day of the Interest Period).


 


9.3                               Default interest


 


(a)                                  If the Company fails to pay any amount
payable by it under a Finance Document on its due date, interest shall accrue
on the overdue amount from the due date up to the date of actual payment (both
before and after judgment) at a rate which is the sum of 1 per cent. and the
rate which would have been payable if the overdue amount had, during the period
of non-payment, constituted a Loan in the currency of the overdue amount for
successive Interest Periods, each of a duration selected by the Lender (acting reasonably).
Any interest accruing under this Clause 9.3 shall be immediately payable by the
Company on demand of the Lender.


 


(b)                                 However if the overdue amount is
principal of a Loan and became due on a day other than the last day of an
Interest Period relating to that Loan, the first Interest Period applicable to
that overdue amount shall be of a duration equal to the unexpired portion of
that Interest Period and the rate of interest on that overdue amount for that
Interest Period shall be the sum of 1 per cent. and the rate applicable to it
immediately before it became due.


 


(c)                                  Default interest (if unpaid) arising on
an overdue amount will be compounded with the overdue
amount at the end of each Interest Period applicable to that overdue amount but
will remain immediately due and payable.


 


9.4                               Notification of rates of
interest


 


The Lender shall promptly
notify the Company of the determination of a rate of interest under this
Agreement.


 


10.                               INTEREST PERIODS


 


10.1                        Selection of Interest
Periods


 


(a)                                  Each Loan has one Interest Period only.


 


 


17

















 


(b)                                 The Company must select an Interest
Period for a Loan in the Utilisation Request for that Loan.


 


(c)                                  Subject to this Clause 10, the Company
may select an Interest Period of one, two, three or six Months or for four or
five weeks or any other period agreed between the Company and the Lender.


 


(d)                                 An Interest Period for a Loan shall not
extend beyond the Final Maturity Date. 


 


10.2                        Non-Business Days


 


If an Interest Period
would otherwise end on a day which is not a Business Day, that Interest Period
will instead end on the next Business Day in that calendar month (if there is
one) or the preceding Business Day (if there is not).


 


11.                               CHANGES TO THE
CALCULATION OF INTEREST 


 


11.1                        Absence of Quotations


 


Subject to Clause 11.2
(Market disruption), if LIBOR is to be determined by reference to the Reference
Banks but a Reference Bank does not supply a quotation by 11.00 a.m. on
the Quotation Day, the applicable LIBOR shall be determined on the basis of the
quotations of the remaining Reference Bank.


 


11.2                        Market disruption


 


If a Market Disruption
Event occurs in relation to a Loan for any Interest Period, then the rate of
interest on that Loan for the Interest Period shall be the rate per annum which
is the sum of:


 


(a)                                  the Margin; and


 


(b)                                 the rate notified to the Company by the
Lender as soon as practicable and in any event before interest is due to be
paid in respect of that Interest Period, to be that which expresses as a percentage
rate per annum the cost to the Lender of funding that Loan from whatever source
it may reasonably select.


 


11.3                        Alternative Basis of
Interest or Funding


 


(a)                                  If a Market Disruption Event occurs and
the Lender or the Company so requires, the Lender and the Company shall enter
into negotiations (for a period of not more than thirty days) with a view to
agreeing a substitute basis for determining the rate of interest.


 


(b)                                 Any alternative basis agreed pursuant to
paragraph (a) above shall be binding on all Parties.


 


11.4                        Break Costs


 


(a)                                  The Company shall, within three Business
Days of demand by the Lender, pay to the Lender its Break Costs attributable to
all or any part of a Loan or Unpaid Sum being paid by the Company on a day other than the last day of an
Interest Period for that Loan or Unpaid Sum.


 


(b)                                 The Lender shall, as soon as reasonably
practicable after a demand by the Company, provide a certificate confirming the
amount of its Break Costs for any Interest Period in which they accrue.


 


 


18

















 


12.                               FEES


 


12.1                        Arrangement Fee


 


(a)                                  Subject to paragraph (b) below, the
Company shall pay to the Lender an arrangement fee in the Base Currency
computed at a rate of 0.325 per cent. of the Commitment (such amount being GBP 1,137,500 (One Million One Hundred
Thirty Seven Thousand and Five Hundered pounds sterling). The
arrangement fee is payable in 60 (sixty) instalments of GBP 18,958.34 (Eighteen
Thousand Nine Hundred and Fifty Eight pounds sterling and Thirty Four pence)
from the date of this Agreement and monthly thereafter until the Final Maturity
Date.


 


(b)                                 If the whole Commitment is cancelled
under this Agreement, the obligation of the Company to pay any further instalments of the arrangement fee referred to in
paragraph (a) above after the date of cancellation shall terminate.


 


12.2                        Commitment Fee


 


(a)                                  The Company shall pay to the Lender a
commitment fee in the Base Currency computed at the rate of 0.30 per cent. of the undrawn, uncancelled amount of the Commitment
during the Availability Period.


 


(b)                                 The accrued commitment fee is calculated
on a daily basis and is payable from and including the date of this Agreement
quarterly in arrear. The accrued commitment fee is also payable to the Lender
on the date the Commitment is cancelled in full.


 


 


19






 












 


SECTION 6


 


ADDITIONAL
PAYMENT OBLIGATIONS


13.          TAX GROSS UP


 


13.1        Tax Gross-Up


 


(a)                                  Each of the Company and the Guarantor
shall make all payments to be made by it without any Tax Deduction, unless a
Tax Deduction is required by law.


 


(b)                                 The Company, the Guarantor or the Lender
shall promptly upon becoming aware that the Company or the Guarantor must make
a Tax Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the other parties accordingly.


 


(c)                                  If a Tax Deduction is required by law to
be made by the Company or the Guarantor, as the case may be, the amount of the
payment due from the Company or the Guarantor, as the case may be, shall be
increased to an amount which (after making any Tax Deduction) leaves an amount equal
to the payment which would have been due if no Tax Deduction had been required.


 


(d)                                 The Company and the Guarantor is not
required to make an increased payment to the Lender under (c) above for a
Tax Deduction in respect of tax imposed by the United Kingdom from a payment of
interest on the Loan, if on the date on which the payment falls due, the
Company or the Guarantor is able to demonstrate that the payment could have
been made to the Lender without the Tax Deduction if it was a Qualifying
Lender, but on that date the Lender is not or has ceased to be a Qualifying
Lender other than as a result of any change after the date it became a Party
under this Agreement in (or the interpretation, administration, or application
of) any law or double taxation agreement, or any published practice or
concession of any relevant taxing authority.


 


(e)                                  If the Company or the Guarantor is
required to make a Tax Deduction, it shall make that Tax Deduction and any
payment required in connection with that Tax Deduction within the time allowed
and in the minimum amount required by law.


 


(f)                                    Within thirty days of making either a Tax
Deduction or any payment required in connection with that Tax Deduction, the
Company or the Guarantor, as the case may be, shall deliver to the Lender
evidence reasonably satisfactory to the Lender that the Tax Deduction has been
made or (as applicable) any appropriate payment paid to the relevant taxing
authority.


 


13.2        Tax Credit


 


If the Company or the
Guarantor makes a Tax Payment and the Lender determines that:


 


(a)                                  a Tax Credit is attributable either to an
increased payment of which that Tax Payment forms part, or to that Tax Payment;
and


 


(b)                                 the Lender has obtained, utilised and
retained that Tax Credit,


 


the Lender shall pay an
amount to the Company or the Guarantor, as the case may be, which the Lender
determines will leave it (after that payment) in the same after-Tax position as
it would have been in had the Tax Payment not been made by the Company or the
Guarantor, as the case may be.


 


 


20

















 


13.3        Stamp Taxes


 


The Company shall pay
and, within three Business Days of demand, indemnify the Lender against any
cost, loss or liability the Lender incurs in relation to all stamp duty,
registration and other similar Taxes payable in respect of any Finance
Document.


 


13.4        Value Added Tax


 


(a)                                  All consideration expressed to be payable
under a Finance Document by any Party to the Lender shall be deemed to be
exclusive of any VAT. If VAT is chargeable on any supply made by the Lender to
any Party in connection with a Finance Document, that Party shall pay to the
Lender (in addition to and at the same time as paying the consideration) an
amount equal to the amount of the VAT.


 


(b)                                 Where a Finance Document requires any
Party to reimburse the Lender for any costs or expenses, that Party shall also
at the same time pay and indemnify the Lender against all VAT incurred by the
Lender in respect of the costs or expenses to the extent that the Lender
reasonably determines that it is not entitled to a credit or repayment in
respect of that VAT.


 


14.          INDEMNITIES


 


14.1        Currency Indemnity


 


(a)                                  If any sum due from the Company or the
Guarantor under the Finance Documents (a Sum),
or any order, judgment or award given or made in relation to a Sum,
has to be converted from the currency (the First
Currency) in which that Sum is payable into another currency (the Second Currency) for the purpose of:


 


(i)                                     making or filing a claim or proof against
the Company or the Guarantor, as the case may be;


 


(ii)           obtaining or enforcing an order,
judgment or award in relation to any litigation or arbitration proceedings,


 


the Company or the
Guarantor, as the case may be, shall as an independent obligation, within three
Business Days of demand, indemnify the Lender against any cost, loss or
liability arising out of or as a result of the conversion including any
discrepancy between (A) the rate of exchange used to convert that Sum from
the First Currency into the Second Currency and (B) the rate or rates of
exchange available to the Lender at the time of its receipt of that Sum.


 


(b)                                 Each of the Company and the Guarantor
waives any right it may have in any jurisdiction to pay any amount under the
Finance Documents in a currency or currency unit other than that in which it is
expressed to be payable.


 


14.2        Other Indemnities


 


The Company shall, within
three Business Days of demand, indemnify the Lender against any cost, loss or
liability incurred by the Lender as a result of:


 


(a)           the occurrence of any Event of
Default;


 


(b)           a failure by the Company to pay any
amount due under a Finance Document on its due date;


 


 


21

















 


(c)                                  funding, or making arrangements to fund a
Loan requested by the Company in a Utilisation Request but not made by reason of the operation of any one or more of
the provisions of this Agreement (other than by reason of default or
negligence by the Lender alone); or


 


(d)                                 a Loan (or part of a Loan) not being
prepaid in accordance with a notice of prepayment given by the Company.


 


15.          COSTS AND EXPENSES


 


15.1        Amendment Costs


 


If:


 


(a)           the Company requests an amendment,
waiver or consent; or


 


(b)           an amendment is required pursuant to
Clause 23.7 (Change of Currency),


 


the Company shall, within
three Business Days of demand, reimburse the Lender for the amount of all costs
and expenses (including legal fees) reasonably incurred by the Lender in
responding to, evaluating, negotiating or complying with that request or
requirement.


 


15.2        Enforcement Costs


 


The Company shall, within
three Business Days of demand, pay to the Lender the amount of all costs and
expenses (including legal fees) incurred by the Lender in connection with the
enforcement of, or the preservation of any rights under, any Finance Document.


 


 


22

















 


SECTION 7


 


GUARANTEE


 


16.          GUARANTEE


 


16.1        Guarantee


 


Subject to the provisions
of Clause 16.2 (Limitation), the Guarantor, at the Company’s request,
irrevocably and unconditionally undertakes with the Lender that whenever the
Company does not pay any amount when due under or in connection with any
Finance Document, the Guarantor shall within 5 Business Days of demand pay that
amount as if it was the principal obligor.


 


16.2        Limitation


 


Notwithstanding the other
provisions of this Clause 16, the Guarantee is not intended to be, and shall
not be construed as, a guarantee of the whole of the indebtedness of the
Company under any Finance Document, and the maximum liability of the Guarantor
under the Guarantee shall be limited to an amount which is equivalent to 50% of
the amount unpaid by the Company under any Finance Document.


 


16.3        Waiver of defences


 


The obligations of the
Guarantor under the Guarantee will not be affected by an act, omission, matter
or thing which, but for this Clause, would reduce, release or prejudice any of
its obligations under the Guarantee (without limitation and whether or not
known to it or the Lender) including:


 


(a)                                  with the prior written consent of the
Guarantor, any time, waiver or consent granted to, or composition with, the
Lender or other person;


 


(b)                                 any incapacity or lack of power,
authority or legal personality of or dissolution or change in the members or
status of the Lender or any other person;


 


(c)                                  with the prior written consent of the
Guarantor, any amendment, novation, supplement, extension, restatement (however
fundamental and whether or not more onerous) or replacement of any Finance
Document or any other document or security including without limitation any
change in the purpose of, any extension of or any increase in any facility or
the addition of any new facility under any Finance Document or other document
or security;


 


(d)                                 any unenforceability, illegality or
invalidity of any obligation of any person under any Finance Document or any
other document or security; or


 


(e)           any insolvency or similar proceedings.


 


16.4        Immediate recourse


 


The Guarantor waives any
right it may have of first requiring the Lender (or any trustee or agent on its
behalf) to proceed against or enforce any other rights or security or claim
payment from any person before claiming from the Guarantor under the Guarantee.
This waiver applies irrespective of any law or any provision of a Finance
Document to the contrary.


 


 


23

















 


16.5        Additional security


 


The Guarantee is in
addition to and is not in any way prejudiced by any other guarantee or security
now or subsequently held by the Lender.


 


16.6        Guarantee payment


 


(a)                                  The Company shall immediately on demand
reimburse the Guarantor for any payment it makes under the Guarantee.


 


(b)                                 The Company irrevocably and
unconditionally authorises the Guarantor to pay any claim made or purported to
be made under the Guarantee.


 


 


24

















 


SECTION 8


 


REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT


 


17.          REPRESENTATIONS


 


The Company makes the
representations and warranties set out in this Clause 17 to the Lender on the
date of this Agreement.


 


17.1        Status


 


(a)                                  It is a corporation, duly incorporated
and validly existing under the law of its jurisdiction of incorporation.


 


(b)                                 It and each of its Subsidiaries has the
power to own its assets and carry on its business as it is being conducted.


 


17.2        Binding Obligations


 


Subject to the Legal
Reservations, the obligations expressed to be assumed by it in each Finance
Document are legal, valid, binding and enforceable obligations.


 


17.3        Non-Conflict with Other Obligations


 


The entry into and
performance by it of, and the transactions contemplated by, the Finance
Documents do not and will not conflict with:


 


(a)                                  any law or regulation applicable to it;


 


(b)                                 the constitutional documents of any
member of the Group; or


 


(c)                                  any material agreement or instrument
relating to Financial Indebtedness or any other material agreement or
instrument binding upon it or any member of the Group or any of its or any
member of the Group’s assets.


 


17.4        Power and Authority


 


It has the power to enter
into, perform and deliver, and has taken all necessary action to authorise its
entry into, performance and delivery of, the Finance Documents to which it is a
party and the transactions contemplated by those Finance Documents.


 


17.5        No Default


 


(a)                                  No Event of Default is continuing or
would result from the making of any Utilisation.


 


(b)                                 No other event or circumstance is
outstanding which constitutes a default under any other agreement or instrument
which is binding on it or any of its Subsidiaries or to which its (or any of
its Subsidiaries’) assets are subject which would have a Material Adverse
Effect.


 


17.6        Pari Passu Ranking


 


Its payment obligations
under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to
companies in its jurisdiction of incorporation generally.


 


 


25

















 


17.7        No Proceedings Pending or Threatened


 


No litigation,
arbitration or administrative proceedings of or before any court, arbitral body
or agency have (to the best of its knowledge and belief) been started or
threatened against it or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.


 


17.8        Repetition


 


The Repeating
Representations are deemed to be made by the Company by reference to the facts
and circumstances then existing on the date of each Utilisation Request and on
the first day of each Interest Period.


 


18.          INFORMATION UNDERTAKINGS


 


The undertakings in this Clause
18 remain in force from the date of this Agreement for so long as any amount is
outstanding under the Finance Documents or the Commitment is in force.


 


18.1        Financial Statements


 


(a)                                  The Company shall supply to the Lender,
as soon as the same become available, but in any event within 120 days after
the end of each of its Financial Years, its audited consolidated financial
statements for that Financial Year; and


 


(b)                                 As soon as the same become available, but
in any event within 90 days after the end of the first half of each of its
Financial Years, its unaudited consolidated financial statements for that
financial half year.


 


18.2        Compliance Certificate


 


(a)                                  The Company shall supply to the Lender
and the Guarantor, with each set of financial statements delivered pursuant to
paragraph (a) or (b) of Clause 18.1 (Financial Statements), a
Compliance Certificate:


 


(i)                                     setting out (in reasonable detail)
computations as to compliance with Clause 19 (Financial Covenant) as at the
date as at which those financial statements were drawn up or as at the last day
of the relevant period;


 


(ii)                                  setting out the extent of any adjustments
to EBITDA pursuant to Clause 19.3 (EBITDA adjustments); and


 


(iii)                               confirming that no Default is continuing
(or if a Default is continuing, specifying the Default and the steps being
taken to remedy it).


 


(b)                                 Each Compliance Certificate shall be
signed by two directors of the Company. 


 


18.3        Requirements as to Financial Statements


 


(a)                                  Each set of financial statements
delivered by the Company pursuant to Clause 18.1 (Financial Statements) shall
be certified by a director of the Company as fairly representing its financial
condition and operations as at the end of and for the period in relation to
which those financial statements were drawn up.


 


(b)                                 The Company shall procure that the
consolidated financial statements of the Company delivered pursuant to Clause
18.1 (Financial Statements) are prepared using GAAP.


 


 


26

















 


 


18.4        Information: Miscellaneous


 


The Company shall supply
to the Lender:


 


(a)                                  all documents dispatched by the Company
to its shareholders generally (or any class of them) or its creditors generally
at the same time as they are dispatched;


 


(b)                                 promptly upon becoming aware of them, the
details of any litigation, arbitration or administrative proceedings which are
current, threatened or pending against any member of the Group, and which
might, if adversely determined, have a Material Adverse Effect; and


 


(c)                                  promptly, such further information
regarding the financial condition, business and operations of any member of the
Group as the Lender may reasonably request.


 


18.5        Notification of Default


 


(a)                                  The Company shall notify the Lender and
the Guarantor of any Default (and the steps, if any, being taken to remedy it)
promptly upon becoming aware of its occurrence.


 


(b)                                 Promptly upon a request by the Lender
and/or the Guarantor, the Company shall supply to the Lender and/or the
Guarantor a certificate signed by two of its directors or senior officers on
its behalf certifying that so far as they are aware (without personal
liability) no Default is continuing (or if a Default is continuing, specifying
the Default and the steps, if any, being taken to remedy it).


 


19.          FINANCIAL COVENANT


 


19.1        Financial Condition


 


(a)                                  The Company shall ensure that the ratio
of Net Debt (as at any Relevant Date falling on 31 March 2009 and
thereafter) to EBITDA (in respect of the Relevant Period ending on that
Relevant Date) will not be greater than 3.0 to 1.


 


(b)                                 In the event the Company acquires any
business or part of any business or any company or any shares in any company
where such acquisition would constitute a Class 1 transaction for the
purpose of the UK Listing Rules, the financial ratio mentioned in (a) above
shall not be tested on any Relevant Date which falls less than six (6) months
after the completion of such acquisition.


 


19.2        Financial Covenant Calculations


 


EBIT, EBITDA, Net
Interest Expense, Net Debt and Total Debt shall be calculated and interpreted
on a consolidated basis in accordance with GAAP and shall be expressed in
sterling.


 


19.3        EBITDA adjustments


 


(a)                                  This Clause 19.3 applies if, and to the
extent that, any member of the Group acquires or disposes of any business or
Subsidiary after the date of this Agreement.


 


(b)                                 For any Relevant Period ending less than
12 Months after the date on which any such business or Subsidiary is acquired,
EBITDA will be calculated on a pro forma basis as if such business or
Subsidiary had been acquired by the Group at the beginning of that Relevant
Period.


 


 


27

















 


(c)                                  For any Relevant Period ending less than
12 Months after the date on which any such business or Subsidiary is disposed
of, EBITDA will be calculated on a pro forma basis as if such business or
Subsidiary had been disposed of by the Group at the beginning of that Relevant
Period.


 


(d)                                 If any adjustment is made to EBITDA for
any Relevant Period pursuant to this Clause 19.3, the Company will set out in the
Compliance Certificate for that Relevant Period details of that adjustment.


 


20.          GENERAL UNDERTAKINGS


 


The undertakings in this
Clause 20 remain in force from the date of this Agreement for so long as any
amount is outstanding under the Finance Documents or the Commitment is in
force.


 


20.1        Authorisations


 


The Company shall
promptly:


 


(a)                                  obtain, comply with and do all that is
necessary to maintain in full force and effect; and


 


(b)                                 supply certified copies to the Lender of,


 


any Authorisation
required under any law or regulation of its jurisdiction of incorporation to
enable it to perform its obligations under the Finance Documents and to ensure
the legality, validity, enforceability or admissibility in evidence in its
jurisdiction of incorporation of any Finance Document.


 


20.2        Compliance with Laws


 


The Company shall comply
in all respects with all laws, regulations and Authorisations to which it may
be subject, if failure so to comply would materially impair its ability to
perform its obligations under the Finance Documents.


 


20.3        Negative Pledge


 


(a)                                  Subject to paragraph (c) below, the
Company shall not (and shall ensure that no other member of the Group will)
create or permit to subsist any Security over any of its assets.


 


(b)           Subject to paragraph (c) below,
the Company shall not (and shall ensure that no other member of the Group
will):


 


(i)                                     sell, transfer or otherwise dispose of
any of its assets on terms whereby they are or may be leased to or re-acquired
by any other member of the Group;


 


(ii)                                  sell, transfer or otherwise dispose of
any of its receivables on recourse terms;


 


(iii)                               enter into any arrangement under which
money or the benefit of a bank or other account may be applied, set-off or made
subject to a combination of accounts; or


 


(iv)                              enter into any other preferential
arrangement intended to have and having substantially the same commercial
effect,


 


in circumstances where
the arrangement or transaction is entered into primarily as a method of raising
Financial Indebtedness or of financing the acquisition of an asset.


 


 


28

















 


(c)           Paragraphs (a) and (b) above
do not apply to:


 


(i)                                     any netting or set-off or lien
arrangement (including, but not limited to, cash pooling arrangements), entered
into by any member of the Group in the ordinary course of its banking
arrangements for the purpose of netting debit and credit balances;


 


(ii)                                  any lien arising by operation of law and
in the ordinary course of trading;


 


(iii)                               any lien created by a Subsidiary in favour
of a bank in the ordinary course of its

banking arrangements pursuant to standard banking terms of business;


 


(iv)                              any Security over or affecting any asset
acquired by a member of the Group after the

date of this Agreement if:


 


I.                                         the Security was not created in
contemplation of the acquisition of that asset by a member of the Group;


 


II.                                     the principal amount secured has not been
increased in contemplation of or since the acquisition of that asset by a
member of the Group; and


 


III.                                 the Security is removed or discharged
within three Months of the date of acquisition of such asset;


 


(v)                                 any Security over or affecting any asset
of any company which becomes a member of the Group after the date of this
Agreement, where the Security is created prior to the date on which that
company becomes a member of the Group, if:


 


I.                                         the Security was not created in
contemplation of the acquisition of that company;


 


II.                                     the principal amount secured has not
increased in contemplation of or since the acquisition of that company; and


 


III.                                 the Security is removed or discharged
within three Months of that company becoming a member of the Group;


 


(vi)                              any Security created with the prior
written consent of the Lender and the Guarantor;


 


(vii)                           any Security over goods and documents of
title to goods arising in the ordinary course of letter of credit transactions
entered into in the ordinary course of trading; or


 


(viii)                        any Security securing indebtedness and/or
any sale and leaseback involving an asset or assets the principal amount of
which (when aggregated with the principal amount of any other indebtedness
which has the benefit of Security and/or any sale and leaseback involving an
asset or assets other than any permitted under paragraphs (i) to (vii) above) does not exceed £25,000,000
(or its equivalent in another currency or currencies) outstanding at any
time.


 


20.4        Insurance


 


The Company shall (and
shall ensure that each other member of the Group will) maintain insurances on
and in relation to its business and assets with reputable underwriters or
insurance companies


 


 


29

















 


against those risks, and
to the extent, usually insured against by prudent companies located in the same
or a similar location and carrying on a similar business.


 


20.5        Ranking of Obligations


 


The
Company will ensure that its payment obligations under the Finance Documents
rank and will at all
times rank at least pari passu with
the claims of all its other unsecured and unsubordinated creditors, except for
obligations mandatorily preferred by law applying to companies generally.


 


21.          EVENTS OF DEFAULT


 


Each
of the events or circumstances set out in this Clause 21 is an Event of
Default.  


 


21.1        Non-Payment


 


The Company does not pay
on the due date any amount payable pursuant to a Finance Document at the place
at and in the currency in which it is expressed to be payable unless:


 


(a)           its failure to pay is caused by
administrative or technical error; and


 


(b)           payment is made within three Business
Days of its due date.


 


21.2        Financial and other Covenants


 


(a)           Any requirement of Clause 19
(Financial Covenant) is not satisfied;


 


(b)           The Company does not comply with
Clause 3.1 (Purpose) or 20.5 (Ranking of Obligations);


 


(c)           No Event of Default under paragraph (b) above
will occur if the failure to comply is capable of remedy and is remedied within
21 days of the Lender giving notice to the Company or the Company becoming
aware of the failure to comply.


 


21.3        Insolvency


 


(a)                                  The Company or the Guarantor is unable or
admits inability to pay its debts as they fall due, suspends making payments on
any of its debts or, by reason of actual or anticipated financial difficulties,
commences negotiations with one or more of its creditors with a view to
rescheduling any of its indebtedness.


 


(b)                                 The value of the assets of the Company or
the Guarantor is less than its liabilities (taking into account contingent and
prospective liabilities).


 


(c)                                  A moratorium is declared in respect of
any indebtedness of the Company or the Guarantor.


 


21.4        Insolvency Proceedings


 


Any corporate action,
legal proceedings or other procedure or step is taken (other than a petition
for winding-up filed by a creditor which is
contested in good faith and is withdrawn or discharged by the date which
is the earlier of 21 days after its presentation and the hearing date for such
petition) in relation to:


 


(a)                                  the suspension of payments, a moratorium
of any indebtedness, winding-up, dissolution, administration or reorganisation
(by way of voluntary arrangement, scheme of arrangement or otherwise) of the
Company or the Guarantor;


 


 


30

















 


(b)                                 a composition, assignment or arrangement
with any creditor of the Company or the Guarantor;


 


(c)                                  the appointment of a receiver, administrator,
administrative receiver, compulsory manager, liquidator (other than in respect
of a solvent liquidation of a member of the Group other than the Company) or
other similar officer in respect of the Company or the Guarantor or any of its
assets;


 


(d)                                 enforcement of any Security over any
assets of the Company securing an amount in excess of £5,000,000 (or its
equivalent in any other currency or currencies),


 


or
any analogous procedure or step is taken in any jurisdiction.


 


21.5        Creditors’ process


 


Any expropriation,
attachment, sequestration, distress or execution affects any asset or assets of
the Company and is not discharged within 14 days.


 


21.6        Unlawfulness


 


(a)                                  It is or becomes unlawful for the Company
or the Guarantor to perform all or any of its obligations under the Finance
Documents.


 


(b)                                 Any Finance Document is not valid or
effective in accordance with its terms or is alleged by the Company or the
Guarantor to be ineffective in accordance with its terms for any reason.


 


21.7        Repudiation


 


The
Company or the Guarantor repudiates a Finance Document.


 


21.8        Acceleration


 


On and
at any time after the occurrence of an Event of Default the Lender may, by
notice to the Company and the Guarantor:


 


(a)                                  cancel the Commitment whereupon it shall
immediately be cancelled;


 


(b)                                 declare that all or part of the Loans,
together with accrued interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall become
immediately due and payable; and/or


 


(c)                                  declare that all or part of the Loans be
payable on demand, whereupon they shall immediately become payable on demand by
the Lender.


 


21.9        Right to Cure Financial Covenant


 


Notwithstanding anything
to the contrary contained in this Clause 21, in the event that the Company
fails to comply with the requirements of the financial covenant referred to in
Clause 19 (Financial Covenant) (the Financial Covenant),  until the
thirtieth day subsequent to delivery of the Compliance Certificate, the Company
shall have the right to arrange the contribution of equity by way of cash
injection to the capital of the Company (collectively, the Cure Right),  and with the
consent of the Lender (such consent not to be unreasonably withheld) and upon
the receipt by the Company of such cash (the Cure Amount)  pursuant to
the exercise by the Company of such Cure Right the Financial Covenant shall be
recalculated giving effect to the following pro forma adjustments:


 


 


31

















 


(a)                                  EBITDA shall be increased, in accordance
with the definition thereof, solely for the purpose of measuring the Financial Covenant and not for any other purpose under
this Agreement, by an amount equal to the Cure Amount;


 


(b)                                 if, after giving effect to the foregoing
recalculations, the Company shall then be in compliance with the Financial
Covenant, the Company shall be deemed to have satisfied the requirements of the
Financial Covenant as of the relevant date of determination with the same
effect as though there had been no failure to comply therewith at such date,
and the applicable breach or default of the Financial Covenant which had
occurred shall be deemed cured for all purposes of this Agreement.


 


 


32
















 


SECTION 9


 


CHANGES TO THE PARTIES


 


22.                               CHANGES TO THE PARTIES


 


22.1                        Assignment and Transfer
by the Company


 


The Company may not
assign any of its rights or transfer any of its rights or obligations under the
Finance Documents without the prior written consent of the Lender and the
Guarantor.


 


22.2                        Assignment and Transfer
by the Lender


 


The Lender may not assign
any of its rights or transfer any of its rights and obligations under the
Finance Documents without the prior written consent of the Guarantor.


 


 


33

















 


SECTION 10


 


ADMINISTRATION


 


23.                               PAYMENT MECHANICS


 


23.1                        Payments to the Lender


 


(a)                                  On each date on which the Company and/or
the Guarantor is required to make a payment under a Finance Document, the Company
and/or the Guarantor shall make the same available to the Lender (unless a
contrary indication appears in a Finance Document) for value on the due date at
the time and in such funds specified by the Lender as being customary at the
time for settlement of transactions in the relevant currency in the place of
payment.


 


(b)                                 Payment shall be made to such account in
the principal financial centre of the country of that currency (or, in relation
to euro, London) with such bank as the Lender specifies.


 


23.2                        Distributions to the
Company


 


The
Lender may (with the consent of the Company or in accordance with Clause 24
(Set-Off)) apply any
amount received by it for the Company in or towards payment (on the date and in
the currency and funds of receipt) of any amount due from the Company under the
Finance Documents or in or towards purchase of any amount of any currency to be
so applied.


 


23.3                        Partial Payments


 


(a)                                  If the Lender receives a payment that is
insufficient to discharge all the amounts then due and payable by the Company
and/or the Guarantor under the Finance Documents, the Lender shall apply that
payment towards the obligations of the Company under the Finance Documents in
the following order:


 


(i)                                     first, in or towards payment pro rata of any unpaid fees, costs and
expenses of the Lender under the Finance Documents;


 


(ii)                                  secondly, in or towards payment pro rata of any accrued fees, interest or
commission due but unpaid under this Agreement;


 


(iii)                               thirdly, in or towards payment pro rata of any principal due but unpaid
under this Agreement; and


 


(iv)                              fourthly, in or towards payment pro rata of any other sum due but unpaid
under the Finance Documents.


 


(b)                                 Paragraphs (a) will override any appropriation made by the Company.


 


23.4                        No set-off by the
Company


 


Subject to the provisions
of Clause 33 (Lender indebtedness), all payments to be made by the Company
under the Finance Documents shall be calculated and be made without (and free
and clear of any deduction for) set-off or counterclaim.


 


 


34

















 


23.5                        Business Days


 


(a)                                  Any payment
which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month
(if there is one) or the preceding Business Day (if there is not).


 


(b)                                 During any extension of the due date for payment of any principal or an
Unpaid Sum under this Agreement interest is payable on the principal or Unpaid
Sum at the rate payable on the original due date.


 


23.6                        Currency of Account


 


(a)                                  A repayment of a Loan or Unpaid Sum or a
part of a Loan or Unpaid Sum shall be made in the currency in which that
principal amount is denominated on its due date.


 


(b)                                 Each payment of interest shall be made in
the currency in which the relevant amount in respect of which it is payable is
denominated.


 


(c)                                  Each payment in respect of costs,
expenses or Taxes shall be made in the currency in which they are incurred.


 


(d)                                 Each other amount payable under the Finance Documents is payable in
sterling.


 


23.7                        Change of Currency


 


(a)                                  Unless otherwise
prohibited by law, if more than one currency or currency unit are at the same
time recognised by the central bank of any country as the lawful currency of
that country, then:


 


(i)                                     any reference in the Finance Documents
to, and any obligations arising under the Finance Documents in, the currency of
that country shall be translated into, or paid in, the currency or currency
unit of that country designated by the Lender (after consultation with the
Company and the Guarantor); 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 Lender (acting reasonably).


 


(b)                                 If a change in any currency of a country
occurs, this Agreement will, to the extent the Lender (acting reasonably and
after consultation with the Company and the Guarantor) 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.


 


24.                               SET-OFF


 


The Lender may set off
any matured obligation due from the Company under the Finance Documents (to the
extent beneficially owned by the Lender) against any matured obligation owed by
the Lender to the Company, regardless of the place of payment, booking branch
or currency of either obligation. If the obligations are in different
currencies, the Lender may convert either obligation at a market rate of
exchange in its usual course of business for the purpose of the set-off.


 


 


35

















 


25.                               NOTICES


 


25.1                        Communications in
Writing


 


Any communication to be
made under or in connection with the Finance Documents shall be made in writing
and, unless otherwise stated, may be made by fax or letter.


 


25.2                        Addresses


 


The address and fax
number (and the department or officer, if any, for whose attention the
communication is to be made) of each Party for any communication or document to
be made or delivered under or in connection
with the Finance Documents is, in the case of each of the Company, the
Guarantor and the Lender, that identified with its name below or any substitute
address, fax number or department or officer as the Party may notify to the
Lender (or the Lender may notify to the other Parties, if a change is made by
the Lender) by not less than five Business Days’ notice.


 


25.3                        Delivery


 


(a)                                  Any communication or document made or
delivered by one person to another under or in connection with the Finance
Documents will only be effective:


 


(i)                                     if by way of fax, when received in
legible form; or


 


(ii)                                  if by way of letter, when it has been
left at the relevant address or five Business Days
after being deposited in the post postage prepaid in an envelope addressed to
it at that address,


 


and, if a particular
department or officer is specified as part of its address details provided
under Clause 25.2 (Addresses), if addressed to that department or officer.


 


(b)                                 Any communication or document to be made
or delivered to the Lender or the Guarantor will be effective only when
actually received by the Lender or the Guarantor and then only if it is
expressly marked for the attention of the department or officer identified with
the Lender’s or the Guarantor’s signature below (or any substitute department
or officer as the Lender or the Guarantor shall specify for this purpose).


 


(c)                                  Any communication made to the Lender or
the Guarantor by fax must subsequently be confirmed by way of letter provided
that non-receipt of such letter by the Lender or the Guarantor does not invalidate or render ineffective in any way the
initial fax communication.


 


25.4                        English Language


 


(a)                                  Any notice given under or in connection
with any Finance Document must be in English.


 


(b)                                 All other documents provided
under or in connection with any Finance Document must be:  


 


(i)                                     in English; or


 


(ii)                                  if not in English, and if so required by
the Lender, accompanied by a certified English translation and, in this case,
the English translation will prevail unless the document is a constitutional,
statutory or other official document.


 


 


36

















 


26.                               CALCULATIONS AND
CERTIFICATES 


 


26.1                        Accounts


 


In any litigation or
arbitration proceedings arising out of or in connection with a Finance
Document, the entries made in the accounts
maintained by the Lender are  prima
facie evidence of the matters to
which they relate.


 


26.2                        Certificates and
Determinations


 


Any certification or
determination by the Lender of a rate or amount under any Finance Document is,
in the absence of manifest error, prima
facie evidence of the matters to which it relates.


 


26.3                        Day Count Convention


 


Any
interest, commission or fee accruing under a Finance Document will accrue from
day to day and is
calculated on the basis of the actual number of days elapsed and a year of 365
days for any amounts denominated in the Base Currency, a year of 360 days for
amounts denominated in any Optional Currency or, in any case where the practice
in the Relevant Interbank Market differs, in accordance with that market
practice.


 


27.                               PARTIAL INVALIDITY


 


If, at any time, any
provision of the Finance Documents is or becomes illegal, invalid or
unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.


 


28.                               REMEDIES AND WAIVERS


 


No failure to exercise,
nor any delay in exercising, on the part of the Lender, any right or remedy
under the Finance Documents shall operate as a waiver, nor shall any single or
partial exercise of any right or remedy prevent any further or other exercise
or the exercise of any other right or remedy. The rights and remedies provided
in this Agreement are cumulative and not exclusive of any rights or remedies
provided by law.


 


29.                               AMENDMENTS AND WAIVERS


 


Any term of the Finance
Documents may be amended or waived only with the consent of the Lender, the
Company and the Guarantor and any such amendment or waiver will be binding on
all Parties.


 


30.                               COUNTERPARTS


 


Each Finance Document may
be executed in any number of counterparts, and this has the same effect as if
the signatures on the counterparts were on a single copy of the Finance
Document.


 


 


37

















 


SECTION 11


 


GOVERNING
LAW AND ENFORCEMENT


 


31.                               GOVERNING LAW


 


This Agreement is
governed by English law.


 


32.                               ENFORCEMENT


 


(a)                                  The courts of England have exclusive
jurisdiction to settle any dispute arising out of or in connection with this
Agreement (including a dispute regarding the existence, validity or termination
of this Agreement) (a Dispute).


 


(b)                                 The Parties agree that the courts of
England are the most appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.


 


(c)                                  This Clause 32 is for the benefit of the
Lender only. As a result, the Lender shall not be prevented from taking proceedings relating to a Dispute in any other
courts with jurisdiction.  To the
extent allowed by law, the Lender may take concurrent proceedings in any number
of jurisdictions.


 


33.                               LENDER INDEBTEDNESS 


 


Notwithstanding
any other provisions of this Agreement:


 


(a)                                  any indebtedness owed by the Lender to
the Company shall accrue interest at the percentage rate per annum which is the
aggregate of the:


 


(i)                                     Margin; and


 


(ii)                                  LIBOR;


 


(b)                                 the amount payable by the Company under
this Agreement on any relevant date shall be the amount owed by the Company
under this Agreement minus the amount of any indebtedness including interest
accrued thereon owed by the Lender to the Company on such date; and


 


(c)                                  without prejudice to the generality of
the foregoing, if the Lender exercises its rights pursuant to Clause 21.8
(Acceleration) or if the Commitment is otherwise cancelled in accordance with
this Agreement:


 


(i)                                     the amount payable by the Company under
this Agreement shall be reduced by the amount of any indebtedness including
interest accrued thereon owed by the Lender to the Company; and


 


(ii)                                  if after applying the reduction in
paragraph (i) above indebtedness is still owed by the Lender to the
Company, the Lender shall pay such indebtedness including interest accrued
thereon to the Company as the Company may direct.


 


For
the purpose of this Clause 33, indebtedness shall exclude intra-group trading
indebtedness.  


 


THIS
AGREEMENT has
been entered into on the date stated at the beginning of this Agreement.


 


 


38

















 


SCHEDULE
1


 


CONDITIONS
PRECEDENT


 


1.                                      The Company


 


1.1                                 A copy of the constitutional documents of
the Company.


 


1.2                                 A copy of a
resolution of the board of directors of the Company:


 


(a)                                  approving the terms of, and the
transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents
to which it is a party;


 


(b)                                 authorising a specified person or persons
to execute the Finance Documents to which it is a party on its behalf; and


 


(c)                                  authorising a specified person or
persons, on its behalf, to sign and/or despatch all documents and notices
(including, if relevant, any Utilisation Request) to be signed and/or despatched
by it under or in connection with the Finance Documents to which it is a party.


 


1.3                                 A specimen of the signature of each
person authorised by the resolution referred to in paragraph 1.2 above.


 


1.4                                 A certificate of the Company (signed by a
director) confirming that borrowing the Commitments would not cause any
borrowing or similar limit binding on the Company to be exceeded.


 


1.5                                 A certificate of an authorised signatory
of the Company certifying that each copy document relating to it specified in
this paragraph 1 of Schedule 1 is correct, complete and in full force and
effect as at a date no earlier than the date of this Agreement.


 


2.                                      Other Documents and
Evidence


 


2.1                                 A copy of any other Authorisation or
other document, opinion or assurance which the Lender considers to be necessary
(if it has notified the Company accordingly prior to the date of this
Agreement) in connection with the entry into and performance of the
transactions contemplated by any Finance Document or for the validity and
enforceability of any Finance Document.


 


2.2                                 Evidence that the fees then due from the
Company pursuant to Clause 12 (Fees) have been paid or will be paid by the
first Utilisation Date.


 


 


39

















 


SCHEDULE
2


 


UTILISATION REQUEST


 


From:                  CPW Distribution Holdings Ltd


 


To:                              The Carphone Warehouse Group PLC


 


Dated:


 


Dear Sirs


 


CPW
Distribution Holdings Ltd —£350,000,000 Facility Agreement

dated [                    ] (the Facility Agreement)


 


1.                                       We wish to draw-down a Loan on the following
terms:


 


Proposed Utilisation
Date:                                                                                                    [                    ]
(or, if that is not a Business Day, the next Business Day)


 


Currency of Loan:                                                                                                                                                [                    ]


 


Amount:                                                                                                                                                                                                 [                    ]
or, if less, the Available Commitment


 


Interest Period:                                                                                                                                                               [                    ]


 


2.                                       We confirm that each condition specified
in Clause 4.2 (Further conditions precedent) is satisfied on the date of this
Utilisation Request.


 


3.                                       The proceeds of this Loan should be
credited to [account].


 


4.                                       This Utilisation Request is irrevocable.


 


Yours faithfully


 




	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Authorised Signatory of

  	
   

  	
  Authorised Signatory of

  
	
  CPW Distribution
  Holdings Ltd

  	
   

  	
  CPW Distribution
  Holdings Ltd

  






 


 


40

















 


SCHEDULE
3


 


FORM OF
COMPLIANCE CERTIFICATE


 


To:                              The Carphone Warehouse Group PLC


 


From:                  CPW Distribution Holdings Ltd


 


Dated:


 


Dear Sirs


 


CPW
Distribution Holdings Ltd — £350,000,000 Facility Agreement

dated [          ] (the Facility Agreement)


 


1.                                       We refer to the Facility Agreement. This
is a Compliance Certificate.


 


2.                                       [We confirm that no Default is
continuing.](1)


 


3.                                       We confirm that the ratio of Net Debt to
EBITDA in respect of the Relevant Period ended on [                    ]
was [                    ]
to 1; and


 


4.                                       [EBITDA has been adjusted pursuant to
Clause 19.3 (EBITDA adjustments) as follows:
[                    ].]


 


This certificate is given
without personal liability.


 




	
  Signed:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Director

  	
   

  	
  Director

  
	
   

  	
   

  	
  of

  	
   

  	
  of

  
	
   

  	
   

  	
  CPW
  Distribution Holdings Ltd

  	
   

  	
  CPW
  Distribution Holdings Ltd

  






 






(1)                      If this statement cannot be made, the
certificate should identify any Default that is continuing and the steps, if
any, being taken to remedy it.


 


 


41

















 


SCHEDULE
4


 


TIMETABLES


 


D - refers to the number of Business Days
before the relevant Utilisation Date/the first day of the relevant Interest
Period.


 


	
   

  	
   

  	
  Loans in sterling

  	
   

  	
  Loans in other

  currencies

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery of a duly
  completed Utilisation Request

  	
   

  	
  D-1

  	
   

  	
  D-3

  	
   

  
	
  (Clause 5.1 (Delivery of a
  Utilisation Request))

  	
   

  	
  1.00 p.m.

  	
   

  	
  1.00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lender gives notice in
  accordance with Clause

  	
   

  	
   

  	
   

  	
  Quotation Day

  	
   

  
	
  6.2 (Unavailability of a
  currency)

  	
   

  	
   

  	
   

  	
  10.00 a.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR is fixed

  	
   

  	
  Quotation Day

  	
   

  	
  Quotation Day

  	
   

  
	
   

  	
   

  	
  as of

  	
   

  	
  as of

  	
   

  
	
   

  	
   

  	
  11.00 a.m.

  	
   

  	
  11.00 a.m.

  	
   

  



 


 


42

















 


SIGNATORIES


 




	
  The
  Company

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CPW
  DISTRIBUTION LTD

  	
   

  	
   

  
	
  By:

  	
  /s/ Roger Taylor

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ Tim Morris

  	
   

  	
   

  	
   

  
	
  CPW Distribution Ltd

  	
   

  	
   

  
	
  1 Portal Way

  	
   

  	
   

  
	
  London W3 6RS

  	
   

  	
   

  
	
   

   

  	
   

  	
   

  
	
  The
  Guarantor

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BEST
  BUY CO., INC

  	
   

  	
   

  
	
  By:

  	
  /s/ Keith Nelsen

  	
   

  	
   

  	
   

  
	
  7601 Penn Avenue South

  	
   

  	
   

  
	
  Richfield

  	
   

  	
   

  
	
  MN 55423-3645 - USA.

  	
   

  	
   

  
	
   

   

  	
   

  	
   

  
	
  The
  Lender

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE
  CARPHONE WAREHOUSE GROUP PLC

  	
   

  	
   

  
	
  By:

  	
  /s/ Roger Taylor

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ Tim Morris

  	
   

  	
   

  	
   

  
	
  The Carphone Warehouse
  Group PLC

  	
   

  	
   

  
	
  1 Portal Way

  	
   

  	
   

  
	
  London W3 6RS

  	
   

  	
   

  






 


 


43