Exhibit
4.10


 


THIS SUPPLEMENTAL AGREEMENT is dated 11th March, 2003 between:


 


(1)                                  SPIRENT plc (formerly known as BOWTHORPE plc)
(Registered No. 470893) (the Company);


 


(2)                                  HSBC BANK PLC as agent (in this capacity the Agent).


 


BACKGROUND


 


(A)                              This Agreement is supplemental to and amends
a credit agreement dated 14th June, 1999, as amended by a supplemental
agreement dated 15th July, 1999, a syndication agreement dated 16th August,
1999, two further supplemental agreements, each dated 15th November, 2000 and a
supplemental agreement dated 6th March, 2002 between, among others, the Company
and the Agent (the Credit Agreement).


 


(B)                                The Majority Banks (as defined in the Credit
Agreement) have consented to the amendments to the Credit Agreement
contemplated by this Agreement. 
Accordingly, the Agent is authorised to execute this Agreement on behalf
of the Finance Parties.


 


IT IS AGREED as follows:


 


1.                                      INTERPRETATION


 


1.1                               Definitions


 


Capitalised
terms defined in the Credit Agreement have, unless expressly defined in this
Agreement, the same meaning in this Agreement.


 


Effective Date means the date that:


 


(a)                                  the Agent notifies the Company that it has
received all of the documents and other matters referred to in Schedule 1 in
form and substance satisfactory to the Agent (which it shall do promptly on
receipt of all of those documents and other matters in Schedule 1); and


 


(b)                                 subject only to the occurrence of the
Effective Date of this Agreement, the conditions precedent to the Noteholder
Agreement are satisfied.


 


Supplemental Fee Letter means the letter dated the date of this
Agreement between the Company and the Agent setting out the amount of the fee
referred to in Clause 4 (Fees).


 


WAGO Disposal means the disposals by each of Spirent GmbH and Spirent B.V.  of all of their respective interests in the
WAGO Joint Venture.


 


WAGO Disposal Document means each of:


 


(a)                                  the sale and purchase agreement dated on or
about 11th March, 2003 between Spirent GmbH and each of Hohorst Familien
Holding (Minden) Beteiligungs GmbH and Hohorst Familien Holding (Schweiz)
Beteiligungs GmbH, relating to the sale of the shares in WAGO Kontakttechnik
GmbH;


 


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(b)                                 the sale and purchase agreement dated on or
about 11th March, 2003 between Spirent GmbH and Sven-Michael Hohorst relating
to the sale of the shares in WAGO Verwalktungs GmbH;


 


(c)                                  the sale and purchase agreement dated on or
about 11th March, 2003 between Spirent GmbH, Gesellschaft burgerlichen Rechts
Wolfgang and Sven-Michael Hohorst relating to the sale of the shares in each of
Hohorst Familien Holding (Minden) Beteiligungs GmbH, Hohorst Familien Holding
(Minden) Beteiligungs GmbH and Hohorst Holding (Schweiz) Beteiligungs GmbH; and


 


(d)                                 the sale and purchase agreement dated on or
about 11th March, 2003 between Spirent B.V., Hohorst Familien Holding (Minden)
Beteiligungs GmbH and Hohorst Familien Holding (Schweiz) Beteiligungs GmbH
relating to the sale of the shares in WAGO Contact S.A.


 


WAGO Joint Venture means the interconnection joint venture in respect of WAGO
Kontakttechnik GmbH, WAGO Verwaltungs GmbH and WAGO Contract S.A., their
subsidiaries and their subsidiary undertakings.


 


1.2                               Construction


 


The
provisions of Clause 1.2  (Construction)
of the Credit Agreement apply to this Agreement as though they were set out in
full in this Agreement except that references to the Credit Agreement are to be
construed as references to this Agreement.


 


2.                                      AMENDMENTS AND WAIVERS


 


2.1                               Amendment


 


The
Credit Agreement will be amended and restated in the form set out in Schedule 2
(Restated Credit Agreement) on and from the Effective Date.


 


2.2                               Effective Date


 


If
the completion of the WAGO Disposal has not occurred by 5.00pm New York time on
15th May, 2003, Clause 2.1 (Amendment) shall lapse and this Agreement shall be
of no effect.


 


2.3                               Consent to WAGO Disposal


 


The
Agent has been authorised on behalf of the Finance Parties to consent to the
WAGO Disposal and does so consent.


 


3.                                      REPRESENTATIONS


 


3.1                               Representations


 


The
representations set out in this Clause are made by the Company on the date of
this Agreement and on the Effective Date to each Finance Party.


 


3.2                               Powers and authority


 


It
has the power to enter into and perform, and has taken all necessary action to
authorise the entry into and performance of this Agreement and the transactions
contemplated by this Agreement.


 


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3.3                               Legal validity


 


Subject
to any qualifications as to matters of law set out in the legal opinion
delivered under Schedule 1, this Agreement constitutes its legally binding,
valid and enforceable obligation.


 


3.4                               Non-conflict


 


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


 


(a)                                  any law or regulation applicable to it; or


 


(b)                                 its constitutional documents; or


 


(c)                                  any document which is binding on it or any of
its assets.


 


3.5                               Authorisations


 


All
authorisations required by it in connection with the entry into, performance,
validity and enforceability of, and the transactions contemplated by, this
Agreement have been obtained or effected (as appropriate) and are (or at the
relevant time will be) in full force and effect.


 


3.6                               Credit Agreement


 


The
representations set out in Clause 18 (Representations and Warranties) of the
Credit Agreement (with the exception of Clause 18.8(d) (Accounts)) are true as
if made on the Effective Date and as if references to the Credit Agreement are
references to the Credit Agreement, as amended by this Agreement, with reference
to the facts and circumstances then existing.


 


4.                                      FEES


 


The
Company shall on the date of this Agreement pay to the Agent for each  Bank a fee in the amount referred to in
the Supplemental Fee Letter.


 


5.                                      MISCELLANEOUS


 


(a)                                  This Agreement is a Finance Document.


 


(b)                                 Subject to the terms of this Agreement, the
Credit Agreement will remain in full force and effect and the Credit Agreement
and this Agreement will be read and construed as one document.


 


6.                                      GOVERNING LAW


 


This
Agreement is governed by English law.


 


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


 


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SCHEDULE
1


 


CONDITIONS
PRECEDENT DOCUMENTS


 


Authorisations


 


1.                                       A copy of the constitutional documents of the
Company or, if the Agent already has a copy, a certificate of an authorised
signatory of the Company confirming that the copy in the Agent’s possession is
still correct, complete and in full force and effect as at a date no earlier
than the date of this Agreement.


 


2.                                       A copy of a resolution of the board of
directors of the Company (or a committee of its board of directors) approving
the terms of, and the transactions contemplated by, this Agreement.


 


3.                                       If applicable, a copy of a resolution of the
board of directors of the Company establishing the committee referred to in
paragraph 2 above.


 


4.                                       If not already supplied to the Agent, a
specimen of the signature of each person authorised on behalf of the Company to
sign this Agreement.


 


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


 


Noteholder Agreement


 


6.                                       A copy of the executed amendment
documentation to the Noteholder Agreement.


 


7.                                       Subject to the occurrence of the Effective
Date, a confirmation from the Company to the Agent that the amendments to the
Noteholder Agreement referred to in paragraph 6 above have become wholly
unconditional in accordance with their terms.


 


WAGO Joint Venture


 


8.                                       A copy of each executed WAGO Disposal
Document.


 


9.                                       A confirmation from the Company to the Agent
that the disposal by the Company of its interest in the WAGO Joint Venture has
become wholly unconditional in accordance with the WAGO Disposal Documents.


 


10.                                 The shareholders circular issued by the
Company relating to the WAGO Disposal, and confirmation from the Company that
the requisite majority of its shareholders have approved the WAGO Disposal.


 


Legal Opinion


 


11.                                 A legal opinion of Allen & Overy, legal
advisors in England to the Arrangers and the Agent, addressed to the Finance
Parties.


 


Other documents


 


12.                                 A copy of the report from the Reporting
Accountant in respect of the Company.


 


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13.                                 A copy of the working capital report prepared
by KPMG LLP in respect of the circular referred to in paragraph 11 above.


 


14.                                 A confirmation from the Company to the Agent
that the Tranche A Loans (as defined in Clause 7.4 (Mandatory prepayment -
reduction amount)) will, on the Effective Date, be repaid in full.


 


15.                                 A disclosure letter in respect of any
disclosures required under clauses 18.8(d) (Accounts), 18.9 (Litigation),
19.11(c)(ii)(A) (Mergers and Acquisitions) and 19.12 (Change of business) of
the Credit Agreement.


 


16.                                 Evidence that all fees and expenses then due
and payable from the Company in respect of this Agreement have been paid to the
extent that the invoices in relation to such fees and expenses are delivered at
least 48 hours before the Effective Date.


 


17.                                 Evidence of compliance with Clause 19.17(d)
(Material Subsidiaries) of the Credit Agreement.


 


18.                                 A copy of any other authorisation or other
document, opinion or assurance which the Agent has given prior notification to
the Company is necessary in connection with the entry into and performance of,
and the transactions contemplated by, this Agreement or for the validity and
enforceability of this Agreement.


 


19.                                 A copy of the form of the quarterly report to
be delivered under Clause 19.2(a)(iv) (Financial Information).


 


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SCHEDULE
2


 


RESTATED
CREDIT AGREEMENT


 


AGREEMENT


 


DATED
14th June, 1999


 


£75,000,000


AMENDED
AND RESTATED


 


CREDIT
FACILITY


 


FOR


 


SPIRENT
plc (formerly known as BOWTHORPE plc)


 


ARRANGED
BY


 


DEUTSCHE
BANK AG LONDON


HSBC
BANK plc


 


ALLEN
& OVERY


London


 


 

















 


CONTENTS


 


	
  Clause

  	
   

  
	
   

  	
   

  
	
  1.

  	
  Interpretation

  
	
  2.

  	
  The  Facility

  
	
  3.

  	
  Purpose

  
	
  4.

  	
  Conditions
  Precedent

  
	
  5.

  	
  Loans.

  
	
  6.

  	
  Repayment

  
	
  7.

  	
  Prepayment and Cancellation

  
	
  8.

  	
  Interest Periods

  
	
  9.

  	
  Interest

  
	
  10.

  	
  Optional
  Currencies

  
	
  11.

  	
  Amount of Optional
  Currencies

  
	
  12.

  	
  Payments

  
	
  13.

  	
  Taxes

  
	
  14.

  	
  Market Disruption

  
	
  15.

  	
  Increased Costs

  
	
  16.

  	
  Illegality

  
	
  17.

  	
  Guarantee

  
	
  18.

  	
  Representations and
  Warranties

  
	
  19.

  	
  Undertakings

  
	
  20.

  	
  Default

  
	
  21.

  	
  The Agent and the Arrangers

  
	
  22.

  	
  Fees

  
	
  23.

  	
  Expenses

  
	
  24.

  	
  Stamp Duties

  
	
  25.

  	
  Indemnities

  
	
  26.

  	
  Evidence and Calculations

  
	
  27.

  	
  Amendments
  and Waivers

  
	
  28.

  	
  Changes
  to the Parties

  
	
  29.

  	
  Disclosure of Information

  
	
  30.

  	
  Set-Off

  
	
  31.

  	
  Pro Rata Sharing

  
	
  32.

  	
  Severability

  
	
  33.

  	
  Counterparts

  
	
  34.

  	
  Notices

  
	
  35.

  	
  Language 

  
	
  36.

  	
  Jurisdiction

  
	
  37.

  	
  Governing Law

  
	
  38.

  	
  Waiver
  of Jury Trial

  



 


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  Schedules

  	
   

  
	
   

  	
   

  
	
  4.

  	
  Banks
  and Commitments

  
	
  5.

  	
  Conditions Precedent
  Documents

  
	
   

  	
  Part 1

  	
  To be  Delivered On or About Signing

  
	
   

  	
  Part 2

  	
  To Be Delivered
  Before The First Loan

  
	
   

  	
  Part 3

  	
  To Be Delivered
  By An Additional Borrower

  
	
   

  	
  Part 4

  	
  To Be Delivered
  By An Additional Guarantor

  
	
   

  	
  Part 5

  	
  Calculation of the
  Mandatory Cost

  
	
   

  	
  Part 6

  	
  Form of Request

  
	
  6.

  	
  Forms of Accession Documents
  

  
	
   

  	
  Part 1

  	
  Novation
  Certificate

  
	
   

  	
  Part 2

  	
  Borrower Accession
  Agreement

  
	
   

  	
  Part 3

  	
  Guarantor Accession
  Agreement

  
	
  7.

  	
  Form of Compliance
  Certificate

  
	
  8.

  	
  Form of Margin Certificate

  
	
  9.

  	
  Existing Preferred
  Indebtedness

  
	
  10.

  	
  Subsidiaries

  
	
   

  	
  Part
  1

  	
  Material
  Subsidiaries

  
	
   

  	
  Part 2

  	
  Further Additional
  Guarantors

  
	
   

  	
   

  
	
  Signatories

  
				



 


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THIS AGREEMENT is made on 14th June, 1999 between:


 


(1)                                  SPIRENT plc (formerly known as BOWTHORPE plc)
(Registered No. 470893) (the Company);


 


(2)                                  DEUTSCHE BANK AG LONDON AND
HSBC BANK plc as arrangers
(in this capacity the Arrangers);


 


(3)                                  THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the Banks); and


 


(4)                                  HSBC BANK plc as agent (in this capacity the Agent).


 


IT IS AGREED as follows:


 


1.                                      INTERPRETATION


 


1.1                               Definitions


 


In
this Agreement:


 


Accounting Period means:


 


(a)                                  in respect of the Group, any period of 12  months ending on the last day of a
financial year, financial half-year or financial quarter of the Group; or


 


(b)                                 for the purposes of Clause 19.17 (Material
Subsidiaries), in respect of the Company or any Material Subsidiary, any period
of 12 months ending on the last day of a financial year, financial half-year or
financial quarter of the Company or that Material Subsidiary (as applicable).


 


Accounts means, at any time:


 


(a)                                  in respect of any Accounting Period of the
Group, the consolidated balance sheet and profit and loss account of the Group
provided to the Agent under Clause 19.2(a) (Financial information) in respect
of that Accounting Period; or


 


(b)                                 for the 
purposes of Clause 19.17 (Material 
Subsidiaries),  in  respect of any Accounting Period of the
Company or any Material Subsidiary the balance sheet and profit and loss
account of the Company or that Material Subsidiary (as applicable) in respect
of that Accounting Period.


 


Additional Borrower means a member of the Group which becomes a Borrower in accordance
with Clause 28.5 (Additional Borrowers).


 


Additional Guarantor means a member of the Group which becomes a Guarantor in accordance
with Clause 28.6 (Additional Guarantors).


 


Affiliate means a Subsidiary or a Holding Company of a person or any other
Subsidiary of that Holding Company.


 


Agent’s Spot Rate of Exchange means the Agent’s spot rate of exchange for
the purchase of the relevant Optional Currency in the London foreign exchange
market with Sterling at or about 11.00 a.m. on a particular day.


 


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Auditor means Ernst & Young LLP or any other auditor appointed by the Company.


 


Balance Sheet means, at any time, the latest published consolidated balance sheet of the Group.


 


Borrower means, subject to Clause 28.7 (Removal of Obligors), the Company or an
Additional Borrower.


 


Borrower Accession Agreement means a letter substantially in the form of
Part 2 of Schedule 5 with such amendments as the Agent and the Company may
agree.


 


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 a payment in an Optional
Currency other than euros, the principal financial centre of the country of
that Optional Currency; or


 


(b)                                 in relation to a payment in euros, a TARGET
Business Day.


 


Cash and Cash Equivalents means, at any time:


 


(a)                                  cash on deposit in any Permitted Bank;


 


(b)                                 any investment in:


 


(i)                                     marketable obligations issued or guaranteed
by the U.S. or the U.K. or by an instrumentality or agency of the U.S. or the
U.K. having an equivalent credit rating;


 


(ii)                                  certificates of deposit, maturing within one
year after acquisition thereof, issued by a Permitted Bank;


 


(iii)                               bankers’ acceptances and eligible bills
accepted by Permitted Banks, maturing within one year after acquisition
thereof; and


 


(iv)                              open market commercial paper or other
unsubordinated indebtedness:


 


(A)                              for which a recognised trading market exists on
any Business Day;


 


(B)                                issued in the U.S., the U.K. or the
Eurodollar market;


 


(C)                                which matures within one year after
acquisition thereof; and


 


(D)                               which has a credit rating of either A-1 by
Standard & Poor’s or IBCA or P-l by Moody’s or any future equivalent of any
such credit rating, or, if no  rating
is available with respect to such commercial paper or indebtedness, the issuer
of which has, in respect of its long-term debt Obligations, an equivalent
rating; or


 


(c)                                  any other instrument, security or investment
approved by the Majority Banks, in each case, to which any member of the Group
is beneficially entitled at that time.


 


Code
means the United States Internal Revenue Code of 1986 as amended from time to
time.


 


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Commitment means:


 


(a)                                  in relation to a Bank which is a Bank on the
date of this Agreement, the amount in Sterling set opposite its name in
Schedule 1 and the amount of any other Bank’s Commitment acquired by it under
Clause 28 (Changes to the Parties); and


 


(b)                                 in relation to a Bank which becomes a Bank
after the date of this Agreement, the amount of any other Bank’s Commitment
acquired by it under Clause 28 (Changes to the Parties),


 


to the extent not cancelled, transferred or reduced under this
Agreement.


 


Commitment Period means the period from the date of this
Agreement up to and including the Final Maturity Date.


 


Compliance Certificate means a certificate substantially in the
form of Schedule 4.


 


Consolidated EBIT means, in relation to any Accounting Period of the Group, the
consolidated operating profit of the Group for that Accounting Period
calculated by reference to the Accounts of the Group for that Accounting Period
and:


 


(a)                                  before deducting, charging or providing for:


 


(i)                                     Consolidated Net Interest Expense; and


 


(ii)                                  any taxation as shown in the profit and loss
section of those Accounts for that Accounting Period; and


 


(b)                                 before taking into account any exceptional
items (including, without limitation, profits or losses on the sale or
termination of an operation, costs of a fundamental reorganisation or
restructuring and profits or losses on the disposal of fixed assets) as shown
in the profit and loss section of the Accounts of the Group for that Accounting
Period.


 


Consolidated EBITA means, in relation to any Accounting Period of the Group, the
consolidated operating profit of the Group for that Accounting Period
calculated by reference to the Accounts of the Group for that Accounting Period
and:


 


(a)                                  before deducting, charging or providing for:


 


(i)                                     Consolidated Net Interest Expense;


 


(ii)                                  any taxation as shown in the profit and loss
section of those Accounts for that Accounting Period;


 


(iii)                               amortisation charged during that Accounting
Period; and


 


(b)                                 before taking into account any exceptional
items (including, without limitation, profits or losses on the sale or
termination of an operation, costs of a fundamental reorganisation or
restructuring and profits or losses on the disposal of fixed assets) as shown
in the profit and loss section of the Accounts of the Group for that Accounting
Period.


 


6

















 


Consolidated EBITDA means, in relation to any Accounting Period, the consolidated
operating profit of the Group for that Accounting Period calculated by
reference to the Accounts for that Accounting Period and:


 


(a)                                  before deducting, charging or providing for:


 


(i)                                     Consolidated Net Interest Expense;


 


(ii)                                  any taxation as shown in the profit and loss
section of those Accounts for that Accounting Period;


 


(iii)                               depreciation in respect of that Accounting
Period; and


 


(iv)                              amortisation charged during that Accounting
Period; and


 


(b)                                 before taking into account any exceptional
items (including, without limitation, profits or losses on the sale or
termination of an operation, costs of a fundamental reorganisation or
restructuring and profits or losses on the disposal of fixed assets) as shown
in the profit and loss section of the Accounts of the Group for that Accounting
Period.


 


Consolidated Interest Expense means, in relation to any Accounting Period,
all interest, acceptance commission and any other continuing, regular or
periodic costs and expenses in the nature of interest (whether paid, payable or
capitalised) incurred by the Group (other than interest paid or payable to
another member of the Group) during that Accounting Period.


 


Consolidated Interest Receivable means, in relation to any Accounting Period,
all interest received or receivable by any member of the Group (other than
interest received or receivable from another member of the Group) during that
Accounting Period.


 


Consolidated Net Debt means, at any time and without double
counting, Total Consolidated Debt less Cash and Cash Equivalents at that time.


 


Consolidated  Net Interest Expense
means, in relation to any Accounting Period, Consolidated Interest Expense for
that period less Consolidated Interest Receivable for that period.


 


Consolidated Net Worth means, at any date, the sum for the Company
and its Subsidiaries (without duplication) of:


 


(a)                                  that amount paid up or credited as being paid
upon the called-up share capital, plus (or minus in the case of a negative
amount);


 


(b)                                 that amount credited to the share premium
account, plus (or minus in the case of a negative amount);


 


(c)                                  that amount credited to the capital
redemption reserve, plus (or minus in the case of a negative amount);


 


(d)                                 that amount then credited to the profit and
loss account (excluding any amounts attributable to any dividend or other
distribution at the time declared, recommended or made by the Company); plus


 


7

















 


(e)                                  any amount credited as, or constituting,
other non-distributable reserves (other than, for the avoidance of doubt, the
revaluation reserve),


 


all
as determined by reference to the then most recent
audited, interim or quarterly, as the case may be, consolidated balance sheet
of the Company and its Subsidiaries required to be provided under Clause
19.2(a) (Financial Information) provided that:


 


(i)                                     any write-off or write downs associated with
any goodwill or impairment charges and amortisation of goodwill will not be
added back; and


 


(ii)                                  there shall be no increase or decrease in
reserves attributable to translating non-Sterling balances at exchange rates different
to those used in the financial statements for the financial year ended 31st
December, 2002.


 


Consolidated Total Assets means, at any time, the consolidated fixed
assets and consolidated current assets of the Group as shown in its Balance
Sheet excluding, for the avoidance of doubt, goodwill and investments in joint
ventures.


 


Dangerous Substances means any radioactive emissions and any
natural or artificial substance (whether in solid or liquid form or in the form
of a gas or vapour), the generation, transportation, storage, treatment, use or
disposal of which (whether alone or in combination with any other substance)
gives a risk of causing harm to man or any other living organism or damaging in
any material respect the environment or public health or welfare, including,
but not limited to, any controlled, special, hazardous, toxic, radioactive or
dangerous waste.


 


Default means an Event of Default or a Potential
Event of Default.


 


Drawdown Date means the date of the making of a Loan.


 


EBIT
means, in relation to any Accounting Period for the Company or any Material
Subsidiary, the operating profit of the Company or that Material Subsidiary (as
applicable) for that Accounting Period calculated by reference to the Accounts
of the Company or that Material Subsidiary (as applicable) for that Accounting
Period and:


 


(a)                                  before deducting, charging or providing for:


 


(i)                                     all interest, acceptance commission and any
other continuing, regular or periodic costs and expenses in the nature of
interest (whether paid, payable or capitalised) incurred by the Company or that
Material Subsidiary (as applicable) during that Accounting Period less all
interest received or receivable by the Company or that Material Subsidiary (as
applicable) during that Accounting Period; and


 


(ii)                                  any taxation as  shown in the profit and loss section of those Accounts for
that Accounting Period; and


 


(b)                                 before taking into account any exceptional
items (including, without limitation, profits or losses on the sale or
termination of an operation, costs of a fundamental reorganisation or
restructuring and profits or losses on the disposal of fixed assets) as shown
in the profit and loss section of those Accounts for that Accounting Period.


 


Effective Date has the meaning given to it in the Supplemental
Agreement dated on or about 11th March, 2003.


 


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Environmental Claim means any claim by any person:


 


(a)                                  in respect of losses or liabilities suffered
or incurred by that person as a result of or in connection with the violation
of any Environmental Law; or


 


(b)                                 giving rise to any remedy or
penalty that may be enforced or assessed by private or public legal action as a
result of environmental contamination or any application for any interim or
financial, judicial or administrative decree, injunction, cease and desist
order, abatement order, compliance order, consent order, clean-up order, or
enforcement notice, stop notice, improvement notice, prohibition notice or
revocation order in respect of that environmental contamination; or


 


(c)                                  in respect of any other remedial action or
action to comply that the relevant person is obliged to take pursuant to any
Environmental Law in respect of any environmental contamination.


 


Environmental Law means any common or statutory law or regulation concerning the
protection of human health, any living organism, the workplace or the
environment or the conditions of the workplace or  the generation, transportation, storage, treatment or
disposal of Dangerous Substances.


 


ERISA
means the United States Employee Retirement Income Security Act of 1974, as amended from
time to time, and the rules and regulations promulgated thereunder from time to
time in effect.


 


ERISA Affiliate means any person treated as a single employer with any
Obligor for the purpose of Section 414 of the Code.


 


euro or € means the single
currency of the Participating Member States.


 


Event of Default means an event specified as such in Clause
20.1 (Events of Default).


 


Facility means the revolving credit facility referred to in Clause 2.1(a)
(Facility).


 


Facility Office means the office(s) notified by a Bank to
the Agent:


 


(a)                                  on or before the date it becomes a Bank; or


 


(b)                                 by not less than 5 Business Days’ notice,


 


as the office(s) through which it will perform all or any of its
obligations under this Agreement.


 


Fee Letter means:


 


(a)                                  a letter dated on or about the date of this
Agreement between the Arrangers and the Company or the Agent and the Company
setting out the amount of various fees referred to in Clause 22 (Fees); or


 


(b)                                 the Supplemental Fee Letter (as defined in
the Supplemental Agreement dated on or about 11th March, 2003).


 


Final Maturity Date
means 21st July, 2004.


 


9

















 


Finance Document means;


 


(a)                                  this Agreement;


 


(b)                                 a Novation Certificate;


 


(c)                                  a Fee Letter;


 


(d)                                 the Mandate Letter;


 


(e)                                  a Borrower Accession Agreement;


 


(f)                                    a Guarantor Accession Agreement;


 


(g)                                 a Supplemental Agreement; or


 


(h)                                 any other document designated as such by the
Agent and the Company.


 


Finance Party means an Arranger, a Bank or the Agent.


 


Financial Indebtedness means any indebtedness (without double
counting) in respect of:


 


(a)                                  moneys borrowed;


 


(b)                                 any debenture, bond, note, loan stock or
other similar security;


 


(c)                                  any acceptance credit;


 


(d)                                 receivables sold or discounted (to the extent
of recourse);


 


(e)                                  the acquisition cost of any asset to the
extent payable before or after the time of acquisition or possession by the
party liable where the advance or deferred payment is arranged primarily as a
method of raising finance or financing the acquisition of that asset and, for
the purposes of Clause 19.8 (Preferred Indebtedness), to the extent that it is
required by generally accepted U.K. accounting principles to be shown as a
borrowing in the Accounts of the relevant company;


 


(f)                                    any lease entered into primarily as a method
of raising finance or financing the acquisition of the asset leased and
required to be accounted for as a finance lease under SSAP 21 or FRS 5;


 


(g)                                 any currency swap or interest swap, cap or
collar arrangement or any other derivative instrument the amount of which will
be calculated on a mark to market basis;


 


(h)                                 any amount raised under any other transaction
having the commercial effect of a borrowing or raising of money; or


 


(i)                                     any guarantee, indemnity, counter indemnity
or similar assurance against financial loss of any person given for a type of
indebtedness referred to in paragraphs (a) to (h) above.


 


FRS
means a financial reporting standard issued by the Accounting Standards Board.


 


Group
means the Company and its Subsidiaries.


 


10

















 


Group Finance Director means Eric Hutchinson or any other person
that becomes group finance director of the Company.


 


Guarantor means, subject to Clause 28.7 (Removal of Obligors), the Company or an
Additional Guarantor.


 


Guarantor Accession Agreement means a letter substantially in the form of
Part 3 of Schedule 5 with such amendments as the Agent and the Company may
agree.


 


Hedging Arrangement means any derivative hedging transaction entered into by a member of
the Group on standard (or more favourable than standard) terms and conditions
in order to mitigate interest rate or currency exchange risks.


 


Holding Company has the meaning given to it in Section 736 of the Companies Act 1985.


 


IBCA
means The Fitch IBCA Group.


 


Information  Memorandum means the
information memorandum to be prepared on behalf of the Company and delivered to
potential Banks in connection with the syndication of the Facility.


 


Interest  Period means each period
determined in accordance with Clause 8 (Interest Periods).


 


LIBOR
means for an Interest Period of any Loan or overdue amount:


 


(a)                                  the applicable Screen Rate; or


 


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


 


as
of 11.00 a.m. on the Rate Fixing Day for the offering of deposits in the
currency of that Loan or overdue amount for a period comparable to that
Interest Period.


 


Loan
means, subject to Clauses 8 (Interest Periods) and 10 (Optional Currencies),
the principal amount of each borrowing by a Borrower under this Agreement or
the principal amount outstanding of that borrowing.


 


Majority Banks means, at any time:


 


(a)                                  if any Loan is outstanding, Banks with an
aggregate outstanding Original Sterling Amount of participations in Loans at
that time of more than 66 2/3 per cent of the aggregate Original Sterling
Amount of all Loans then outstanding; or


 


(b)                                 if no Loan is outstanding, Banks whose
Commitments then aggregate more than 66 2/3 per cent, of the Total Commitments
(or, if the Total Commitments have been reduced to zero, aggregated more than
66 2/3 per cent. of the Total Commitments immediately before the reduction).


 


Mandate Letter means the mandate letter dated 14th June, 1999 between the Arrangers
and the Company.


 


11

















 


Mandatory Cost
means the cost of complying with certain regulatory requirements, expressed as
a percentage rate per annum and calculated by the Agent under Schedule 3.


 


Margin
means, subject to Clause 9.5 (Adjustment of the Margin), 1.75 per cent, per
annum.


 


Margin Certificate means a certificate substantially in the form of Schedule 5.


 


Material Adverse Effect means a material adverse effect:


 


(a)                                  on and from the Effective Date, on the
business or financial condition of the Group as a whole; or


 


(b)                                 on the ability of the Company to perform:


 


(i)                                     any of its payment obligations under the
Finance Documents; or


 


(ii)                                  any of its obligations under Clause 19.10
(Financial covenants).


 


Material Subsidiary means:


 


(a)                                  before any Compliance Certificate is
delivered under Clause 19.2(a)(v) (Financial information), each Subsidiary of
the Company listed in Part 1 of Schedule 7; or


 


(b)                                 each Subsidiary of the Company listed in the
Compliance Certificate most recently provided to the Agent under Clause
19.2(a)(v) (Financial information); or


 


(c)                                  each Subsidiary of the Company listed in Part
2  of Schedule 7,


 


so
long as it is a Subsidiary of the Company.


 


Moody’s means Moody’s Investors Service, Limited.


 


Multiemployer Plan means a “multiemployer plan” within the meaning of section 3(37) or
4001(a)(3) of ERISA.


 


Network Products Division means the Company’s division comprised of
Hellerman Tyton (“HT”), divisions of Spirent plc (divisions: HT Broadband, HT
Plymouth, HT Ireland, HT BHD, HT Manchester and the assets and business of
Staeng Limited), Staeng Limited, HT Data Limited, Spirent Australia pty
Limited, HellermanTyton GmbH, HellermanTyton S.A., HellermanTyton pty Limited,
HellermanTyton AB, HellermanTyton Limitada, HellermanTyton Srl, Spirent BV’s
interest in HellermanTyton Pte Limited (75 per cent), Spirent BV’s interest in
Tyton Corporation of Japan (49 per cent.), Spirent International Inc’s interest
in HellermanTyton Corporation (97 per cent.) and all Subsidiaries of such
companies.


 


Non Wholly-Owned Subsidiary means each of HellermannTyton Data Limited,
HellermannTyton (Pty) Limited, HellermannTyton Corporation, HellermannTyton
Canada Incorporated, HellermannTyton Pte Limited and Optical Networks Testing
Inc.


 


Novation Certificate has the meaning given to it in Clause 28.3 (Procedure for novations).


 


Note
means any of the:


 


(a)                                  amended and restated series A senior notes
due 23rd November, 2006;


 


12

















 


 


(b)                                 amended and restated series B senior notes
due 23rd November, 2009;


 


(c)                                  amended and restated series C senior notes
due 23rd November, 2009; or


 


(d)                                 amended and restated  series D senior notes due 23rd November,
2009,


 


each
issued pursuant to the Noteholders Agreement.


 


Noteholder means any person who holds a Note.


 


Noteholders Agreement means the note purchase agreements dated
23rd November, 1999 between the Company and the Noteholders in respect of the
Notes (as amended from time to time).


 


Obligor means a Borrower or a Guarantor.


 


Optional Currency means:


 


(a)                                  U.S. Dollars; and


 


(b)                                 any other currency (other than Sterling)
which is for the time being freely transferable and
convertible into Sterling and deposits of which are readily available in the
London interbank market.


 


Original Sterling Amount means:


 


(a)                                  the principal amount of a Loan denominated in
Sterling; or


 


(b)                                 the principal amount of a Loan denominated in
an Optional Currency translated into Sterling on the
basis of the Agent’s Spot Rate of Exchange 3 Business Days before its Drawdown
Date.


 


Participating Member State means a member state of the European
Communities that adopts the euro as its currency in accordance with legislation
of the European Union relating to European Economic and Monetary Union.


 


Party
means a party to this Agreement.


 


PBGC
means the Pension Benefit Guaranty Corporation and any entity succeeding to any
of its functions under ERISA.


 


Pension Plan means an employee benefit pension plan or pension plan as defined in
Section 3(2) of ERISA:


 


(a)                                  maintained by any Obligor or any ERISA
Affiliate; or


 


(b)                                 to which any Obligor or any ERISA Affiliate
is required to make any payment or contribution.


 


Permitted Bank means:


 


(a)                                  any commercial bank or trust company having,
in respect of its long-term debt obligations, a rating of A or higher by
Standard & Poor’s  or  IBCA or A-2 or higher by


 


13

















 


Moody’s
or a comparable rating from a nationally recognised (in England) credit rating
agency; or


 


(b)                                 the Agent.


 


Permitted Reorganisation means:


 


(a)                                  any amalgamation, demerger, merger,
reconstruction or other reorganisation on a solvent basis of a member of the
Group (other than an Obligor) where all of the business and assets of that
member remain within the Group; or


 


(b)                                 any amalgamation, demerger, merger,
reconstruction, dissolution or other reorganisation on a solvent basis of an
Obligor provided that all the business and assets of that Obligor are
transferred to or assumed by one or more other Obligors; or


 


(c)                                  any other reorganisation of one or more
members of the Group approved by the Majority Banks,


 


provided
that, in the case of paragraphs (a) and (b) above, the Company shall have at
least the same degree of control (as defined in the City Code on Takeovers and
Mergers) in respect of any relevant Subsidiary acquiring any business or assets
as it had in respect of the Subsidiary transferring those businesses or assets.


 


Potential Event of Default means an event or circumstance which, with
the giving of notice and/or lapse of time and/or fulfilment of any other
applicable condition, as provided in Clause 20.1 (Events of Default), would
constitute an Event of Default.


 


Preferred Indebtedness means the principal amount of Financial
Indebtedness (or in the case of any derivative transaction, the mark to market
value of that derivative transaction) of:


 


(a)                                  all members of the Group which are secured by
Security Interests other than Security Interests listed in Schedule 6 except to
the extent the principal amount secured by that Security Interest exceeds the
amount stated in that Schedule; and


 


(b)                                 all Total Subsidiary Debt.


 


Preferred Shares means any class of share capital of an entity that is preferred over
any other class of capital shares of such entity as to the payment of dividends
or the payment of any amount upon liquidation or dissolution of such entity.


 


Qualifying Bank means:


 


(a)                                  in respect of the UK: 


 


(i)                                     a U.K. Bank;


 


(ii)                                  a U.K. Treaty Bank; or


 


(b)                                 in respect of the U.S., a U.S. Bank or a U.S.
Treaty Bank.


 


Rate Fixing Day means:


 


(a)                                  the first day of an Interest Period for a
Loan denominated in Sterling;


 


14

















 


(b)                                 the second TARGET Business Day before the
first day of an Interest Period for a Loan denominated in euros; or


 


(c)                                 the second Business Day before the first day
of an Interest Period for a Loan denominated in any currency other than
Sterling or euros,


 


or
such other day as is generally treated as the rate fixing day by market
practice in the London interbank market for the currency concerned, as notified
by the Agent to the other Parties by not less than five Business Days’ notice.


 


Reference Banks means, subject to Clause 28.8 (Reference Banks), Deutsche Bank AG
London, HSBC Bank plc and Lloyds TSB Bank PLC.


 


Regulation D means Regulation D of the Board of Governors of the Federal Reserve
System (or any successor).


 


Regulation D Costs means, in relation to its participation in a Loan made to a U.S. Borrower
(or deposits maintained by a Bank to fund that participation), the amount (if
any) certified by a Bank to be the cost to it of complying with Regulation D
(or any similar reserve requirements) in respect of its participation or those
deposits.


 


Reporting Accountant means PricewaterhouseCoopers or any other
accountant appointed by the Agent.


 


Request means a request made by a Borrower to utilise the Facility,
substantially in the form of Schedule 4.


 


Rollover Loan means a requested Loan:


 


(a)                                  which is being made solely to refinance an
outstanding Loan;


 


(b)                                 whose Original Sterling Amount is equal to or
less than that outstanding Loan; and


 


(c)                                  whose Drawdown Date coincides with the last
day of the Interest Period.


 


Screen Rate means the British Bankers Association Interest Settlement Rate (if
any) for the relevant currency and Interest Period displayed on the appropriate
page of the Reuters screen selected by the Agent.  If the relevant page is replaced or the service ceases to be
available, the Agent (after consultation with the Company and the Banks) may
specify another page or service displaying the appropriate rate.


 


Security Interest means any mortgage, charge, assignment, pledge, lien, hypothecation or
security interest or any other agreement having the effect of conferring
security but, for the avoidance of doubt, excluding any finance lease.


 


SSAP means a standard of accounting practice issued by the Accounting
Standards Committee.


 


Standard &  Poor’s means Standard & Poor’s Rating Services,
a division of McGraw Hill Companies Inc.


 


Sterling or £ means the lawful
currency for the time being of the U.K.


 


15

















 


Subsidiary means:


 


(a)                                  a subsidiary within the meaning of section
736 of the Companies Act 1985; and


 


(b)                                 in relation to the financial statements or
any financial covenants in respect of the Group, a subsidiary undertaking
within the meaning of section 258 of the Companies Act 1985.


 


Supplemental Agreement means:


 


(a)                                  the supplemental agreement dated 15th July,
1999 between the Company and the Agent, supplemental to this Agreement;


 


(b)                                 each supplemental agreement dated 15th
November, 2000 between the Company and the Agent, supplemental to this
Agreement;


 


(c)                                  the supplemental agreement dated 6th March,
2002 between the Company and the Agent, supplemental to this Agreement; or


 


(d)                                 the supplemental agreement dated on or about
11th March, 2003 between the Company and the Agent, supplemental to this
Agreement.


 


Systems-Drives Division means the business and assets of PG Drives
Technology Limited owned by each of PG International plc, PG Drives Technology
Limited and PG Drives Technology Inc.,


 


TARGET Business Day means a day on which the Trans-European Real-Time Gross Settlement
(TARGET) System is open.


 


Taxes
includes all present and future income and other taxes, levies, imposts,
deductions and charges and withholdings whatsoever together with interest
thereon and penalties with respect thereto, if any, and any payments made on or
in respect thereof; Taxation and Tax shall be construed accordingly.


 


Total Assets means, at any time in respect of the Company or any Material
Subsidiary, the fixed assets and current assets of the Company or that Material
Subsidiary (as applicable) as shown in the then latest balance sheet of the
Company or that Material Subsidiary (as applicable) excluding, for the
avoidance of doubt, goodwill.


 


Total Commitments means, at any time, the aggregate of the Commitments being £75,000,000
at the Effective Date.


 


Total Consolidated Debt means at any time the aggregate (without
double counting) of the following:


 


(a)                                  the outstanding principal amount of any
moneys borrowed by any member of the Group and any outstanding overdraft debit
balance of any member of the Group (but subject to set-off in accordance with
generally accepted U.K. accounting principles);


 


(b)                                 the outstanding principal amount of any
debenture, bond, note, loan stock or other similar security of any member of
the Group;


 


(c)                                  the outstanding principal amount of any
acceptance under any acceptance credit opened by a bank or other financial
institution in favour of any member of the Group;


 


16

















 


(d)                                 any amount raised pursuant to any issue of
shares which are or may be expressed to be redeemable at the insistence of the
holder at any time prior to the date on which all amounts due and owing by the
Obligors or any of them to any of the Finance Parties hereunder, whether
present or future, actual or contingent, have been irrevocably and
unconditionally discharged in full;


 


(e)                                  the outstanding principal amount of all
moneys owing by a member of the Group in connection with the sale or
discounting of receivables (to the extent of recourse to that member of the
Group);


 


(f)                                    the outstanding principal amount of any
indebtedness of any member of the Group arising from any advance or deferred
payment agreements arranged primarily as a method of raising finance or
financing the acquisition of an asset to the extent that is required by generally
accepted U.K. accounting principles to be shown as a borrowing in the Accounts;


 


(g)                                 the capitalised element of indebtedness of
any member of the Group in respect of a lease entered into primarily as a
method of raising finance or financing the acquisition of the asset leased and
required to be accounted for under SSAP 21 or FRS 5;


 


(h)                                 any fixed or minimum premium on the repayment
or redemption at maturity of any instrument referred to in paragraph (b) above
which is or may be expressed to be payable at any time prior to the date on
which all amounts due and owing by the Obligors or any of them to any of the
Finance Parties hereunder, whether present or future, actual or contingent,
have been irrevocably and unconditionally discharged in full; and


 


(i)                                     the outstanding principal amount of any
indebtedness of any person of a type referred to in paragraphs (a) - (h) above
which is the subject of a guarantee, indemnity or similar assurance against
financial loss given by any member of the Group.


 


Total Subsidiary Debt means, at any time without duplication, the
aggregate amount of:


 


(a)                                  the aggregate Financial Indebtedness of each
Subsidiary (whether or not a Subsidiary is a Guarantor) outstanding at such
time; plus


 


(b)                                 all claims in respect of the redemption of,
and accumulated, unpaid dividends on, all Preferred Shares (and all securities
convertible into, exchangeable for, or representing the right to purchase,
Preferred Shares) of each Subsidiary whether or not a Subsidiary is a Guarantor
and whether or not any right of redemption or conversion is exercisablc by the
holder thereof at any time,


 


but excluding from such calculation:


 


(i)                                     any Financial Indebtedness of any Subsidiary
owing to the Company, any Guarantor or any other Subsidiary;


 


(ii)                                  all Preferred Shares and other securities
which are legally and beneficially owned by any of the Company, any Guarantor
or any other Subsidiary;


 


(iii)                               Financial Indebtedness of any person which
becomes a Subsidiary after the Effective Date for a period of up to 180 days
after the date such person becomes a Subsidiary (other than Financial
Indebtedness incurred or contractually bound to be incurred solely in
contemplation of such person becoming a Subsidiary), provided that:


 


17

















 


(A)                              the Subsidiary executes a Guarantor Accession
Agreement within ten Business Days of the date that the Subsidiary becomes a
Subsidiary; and


 


(B)                                the Subsidiary shall not enter into any other
guarantee or similar obligation in favour of any other person prior to it
having executed a Guarantor Accession Agreement;


 


(iv)                              all Financial Indebtedness of the
Subsidiaries outstanding on 31st December, 2002 and identified in Schedule 6
(including any extensions, renewals and refinancings of such Financial
Indebtedness) to the extent that the principal amount of such Financial
Indebtedness is  not increased;


 


(v)                                 all Financial Indebtedness owing under the
Finance Documents; and


 


(vi)                              the guarantee given by a Guarantor under or
in connection with the Noteholders Agreement.


 


U.K. means the United Kingdom.


 


U.K. Bank means a Bank which is:


 


(a)                                  within the charge to U.K. corporation tax in
respect of, and beneficially entitled to, a payment of interest on a Loan made
by a person that was a bank for the purposes of section 349 of the Taxes Act
(as currently defined in section 840A of the Taxes Act) at the time the Loan
was made; or


 


(b)                                 a U.K. Non-Bank Lender.


 


U.K. Non-Bank Lender means:


 


(a)                                  a company resident in the U.K. for U.K. tax
purposes;


 


(b)                                 a partnership, each member of which is a
company resident in the U.K. for U.K. tax purposes or a company not resident in
the U.K. for U.K. tax purposes but which carries on a trade in the U.K. through
a branch or agency and brings into account in computing its chargeable profits
(for the purpose of section 11(2) of the Taxes Act) the whole of any share of
interest payable to it under this Agreement which falls to it by reason of
sections 114 and 115 of the Taxes Act; or


 


(c)                                  a company not resident in the U.K. for U.K.
tax purposes which carries on a trade in the U.K. through a branch or agency
and brings into account interest payable to it under this Agreement in
computing its chargeable profits for the purpose of section 11(2) of the Taxes
Act,


 


which
is beneficially entitled to payments made to it under this Agreement and which
has provided to the Company and not retracted confirmation of the above in
accordance with this Agreement.


 


U.K. Treaty Bank means any person to whom payments of interest and fees on the Loans
may be made free from U.K. withholding tax or deduction for or on account of
tax by virtue of a double tax treaty entered into between the U.K. and the
jurisdiction in which that person is resident.


 


U.S. means the United States of America.


 


18

















 


U.S. Bank means a bank or financial institution which is organised under the
laws of the U.S., any state of the U.S. or the District of Columbia or any
branch or office located in the U.S. through which any Bank is participating in
any Loan and with respect to which interest and fees under this Agreement are
treated as effectively connected income.


 


U.S. Borrower means a Borrower which is incorporated in the U.S.


 


U.S.  Dollars or U.S.$
means the lawful currency for the time being of the U.S.


 


U.S. Material Subsidiary means a Material Subsidiary which is
incorporated in the U.S.


 


U.S. Obligor means an Obligor incorporated or organised under the laws of the U.S.
or any state of the U.S. (including the District of Columbia).


 


U.S. Treaty Bank means a Bank which is entitled to the benefit of a double taxation
treaty between the U.S. and the jurisdiction in which that Bank is resident
under which payments of interest and fees under this Agreement may be made free
of U.S. withholding tax to that Bank.


 


Voting Shares means the capital shares of any class or classes of an entity having
power under ordinary circumstances to vote for the election of members of the
board of directors or similar governing body of such entity, or persons
performing similar functions (irrespective of whether or not at the time shares
of any other class or classes shall have or might have special voting power or
rights by reason of the happening of any contingency).


 


WAGO Disposal means the disposal by Spirent GmbH and Spirent B.V. of all of their
respective interests in the WAGO Joint Venture.


 


WAGO Joint Venture means the interconnection joint venture in respect of WAGO
Kontalettechnik GmbH, WAGO-Verwaftungs GmbH and WAGO Contract S.A. and their
subsidiaries and subsidiary undertakings.


 


1.2                             Construction


 


(a)                                 In this Agreement, unless the contrary
intention appears, a reference to:


 


(i)                                     an amendment
includes a supplement, novation or re-enactment and amended is to be construed accordingly;


 


 


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


 


an
authorisation includes an
authorisation, consent, approval, resolution, licence, exemption, filing and
registration;


 


a
month is a reference to 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, the period will end on the next Business Day in that month (if
there is one) or the preceding Business Day (if there is not);


 


(B)                                if there is no numerically corresponding day
in that month, that period will end on the last Business Day in that month; and


 


19

















 


(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.


 


a
person includes any person,
company, partnership, association, government, state, agency or other entity or
any of its successors and assigns;


 


a
regulation includes any
regulation, rule, official directive, request or guideline (whether or not
having the force of law but, if not having the force of law, being of a type
which the person to whom it applies is accustomed to comply) of any
governmental, inter-governmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;


 


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


 


(iii)                               a Clause or a Schedule is a reference to a
clause of or a schedule to this Agreement;


 


(iv)                              a person includes its successors, transferees
and assigns;


 


(v)                                 a Finance Document or another document is a
reference to that Finance Document or other document as amended; and


 


(vi)                              a time of day is a reference to London time.


 


(b)                                 Unless the contrary intention 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.


 


(c)                                  Unless expressly provided to the contrary in
a Finance Document, a person who is not a party to a Finance Document may not
enforce any of its terms under the Contract (Rights of Third Parties) Act 1999
and notwithstanding any term of any Finance Document, the consent of any third
party is not required for any variation (including any release or compromise or
any liability) or termination of that Finance Document.


 


(d)                                 The index to and the headings in this
Agreement are for convenience only and are to be ignored in construing this
Agreement.


 


2.                                      THE FACILITY


 


2.1                               Facility


 


(a)                                  Subject to the terms of this Agreement, the
Banks agree to make available to the Borrowers a committed multicurrency
revolving credit facility under which the Banks agree to make Loans to the
Borrowers up to an aggregate outstanding Original Sterling Amount not exceeding
the Total Commitments.


 


(b)                                 No Bank is obliged to lend if it would cause
the Original Sterling Amount of the aggregate of its participations in the
Loans to exceed its Commitment.


 


2.2                              Nature of a Finance Party’s
rights and obligations


 


(a)                                  The obligations of a Finance Party under the
Finance Documents are several.  Failure
of a Finance Party to carry out those obligations does not relieve any other
Party of its obligations


 


20

















 


under
the Finance Documents.  No Finance Party
is responsible for the obligations of any other Finance Party under the Finance
Documents.


 


(b)                                 The rights of a Finance Party under the
Finance Documents are divided rights.  A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce those rights.


 


2.3                               Number of Loans  and currencies


 


Unless
otherwise agreed by the Agent, no more than 25 Loans may be outstanding at any
time and Loans may not be denominated in more than eight currencies at any
time.


 


2.4                               Affiliates of Banks


 


(a)                                  Each Bank may, if it so elects, fulfil its
commitment as to any Loan by designating a branch or an Affiliate to make that
Loan.  However:


 


(i)                                     the Bank shall remain solely responsible for
the performance of its obligations under this Agreement;


 


(ii)                                  no such designation shall result in any
additional costs to the Obligors (whether under this Agreement, by loss or
limitation of tax deduction or relief or otherwise); and


 


(iii)                               the branch or Affiliate shall:


 


(A)                              be a Qualifying Bank;


 


(B)                                in the case of any U.K. Bank, be situated in
the U.K.;


 


(C)                                in the case of any U.K. Treaty Bank, be
situated outside the U.K.; and


 


(D)                               comply with all form, delivery and other
requirements under this Agreement.


 


(b)                                 A Bank may provide for an Affiliate to
participate in certain Loans in the manner contemplated in paragraph (a) above
by:


 


(i)                                     joining the relevant Affiliate in as a Bank
by means of a Novation Certificate in accordance with Clause 28.2 (Transfers by
Banks); and


 


(ii)                                  giving notice to the Agent and the Company,
detailing the Loans in which that Affiliate will participate.


 


In
this event that Bank and its Affiliate:


 


(A)                              will be treated as having a single
Commitment, but, for all other purposes other than that mentioned in paragraph
(c) below, will be treated as separate Banks; and


 


(B)                                participate in Loans in the manner described
in sub-paragraph (ii) above.


 


(c)                                  For the purposes of:


 


(i)                                     compliance with Clause 28.2 (Transfers by
Banks); and 


 


(ii)                                  voting in connection with any Finance
Document,


 


21

















 


each
Bank and its Affiliate will be regarded as a single Bank.


 


3.                                      PURPOSE


 


(a)                                  Each Borrower shall apply each Loan borrowed
by it towards its general corporate purposes. 
No Loan may be used to finance or refinance any principal repayment or make-whole repayment to a Noteholder.


 


(b)                                 Without affecting the obligations of any
Borrower in any way, no Finance Party is bound to monitor or verify the
application of any Loan.


 


4.                                      CONDITIONS PRECEDENT


 


4.1                               Documentary conditions precedent


 


(a)                                  No Borrower may deliver the first Request until the Agent has received:


 


(i)                                     all of the documents set out in Part 1 of
Schedule 2, in form and substance satisfactory to the Agent; and


 


(ii)                                  all of the documents set out in Part 2 of
Schedule 2.


 


(b)                                 Any references to an Arranger and/or this Agreement
contained in the documents referred to in paragraph (a)(ii) above shall be in
the form approved by the Arrangers (such approval not to be unreasonably
withheld or delayed).


 


4.2                               Further conditions precedent


 


The
obligations of each Bank to participate in any Loan are subject to the further
conditions precedent that:


 


(a)                                  on both the date for the Request and the
Drawdown Date for that Loan:


 


(i)                                     the representations and warranties in Clause
18 (Representations and Warranties) to be repeated on those dates are correct
and will be correct immediately after the Loan is  made; and


 


(ii)                                  no Default or (in the case of a Rollover
Loan) no Event of Default is outstanding or would result from the Loan; and


 


(b)                                 the Loan would not cause Clause 2.1
(Facility) to be contravened.


 


5.                                      LOANS


 


5.1                               Commitment Period


 


A
Borrower may borrow a Loan during the Commitment Period if the Agent receives,
not later than 10.00 a.m. three (or, in the case of a Loan in Sterling, one)
Business Day(s) before the proposed Drawdown Date, a duly completed
Request.  Each Request is irrevocable
and, subject to the terms of this Agreement, shall oblige the Borrower to
borrow the Loan.


 


5.2                               Completion of Requests


 


A
Request will not be regarded as having been duly completed unless:


 


22

















 


(a)                                  the Drawdown Date is a Business Day falling
on or before the final day of the Commitment Period;


 


(b)                                 the amount of the Loan is:


 


(i)                                     if the currency is Sterling, a minimum of
£5,000,000 and an integral multiple of £1,000,000; or


 


(ii)                                  if the currency is U.S. Dollars, a minimum of
U.S.$5,000,000 and an integral multiple of U.S.$1,000,000; or


 


(iii)                               if the currency is euro, a minimum of
€5,000,000 and an integral multiple of €1,000,000; or


 


(iv)                              if the currency is an Optional Currency other
than U.S. Dollars or euro either:


 


(A)                              the equivalent of a minimum of £5,000,000 and
an integral multiple of 1,000,000 units of the relevant currency; or


 


(B)                                such amount as the Agent and the Company may
agree; or 


 


(v)                                 the balance of the undrawn Total Commitments;


 


(c)                                  the amount selected under paragraph (b) above
does not cause Clause 2.1  (Facility)
to be contravened;


 


(d)                                 the currency selected complies with Clause 10
(Optional Currencies);


 


(e)                                  the Interest Period selected complies with
Clause 8 (Interest Periods) and does not extend beyond the Final Maturity Date;
and


 


(f)                                    the payment instructions comply with Clause
12 (Payments).


 


Each
Request must specify one Loan only, but the Borrowers may, subject to the other
terms of this Agreement, deliver more than one Request on any one day.


 


5.3                               Advance of Loan


 


(a)                                  The Agent shall promptly notify each Bank of
the details of the requested Loan and the amount of its participation in the
Loan.


 


(b)                                 Subject to the terms of this Agreement, each
Bank shall make its participation in the Loan available to the Agent for the
relevant Borrower on the relevant Drawdown Date.


 


(c)                                  The amount of each Bank’s participation in
the Loan will be the proportion of the Loan which its Commitment bears to the
Total Commitments on the proposed Drawdown Date.


 


6.                                      REPAYMENT


 


6.1                               Reduction of Total
Commitments


 


On
31st December, 2003, the Borrower shall repay (if necessary) an amount of the
Loans to ensure that the Loans do not exceed the Total Commitments as if those
Total Commitments


 


23

















 


have
been reduced to £60,000,000 in accordance with Clause 7.1 (Automatic
cancellation and reduction).


 


6.2                               Repayment of Loans


 


Without
prejudice to Clause 6.1 (Reduction of Total Commitments) above each Borrower
shall repay in full each Loan on the last day of its Interest Period.


 


6.3                               Re-borrowing


 


Subject
to the terms of this Agreement any Loan repaid under Clause 6.2 (Repayment of
Loans) may be re-borrowed.


 


7.                                      PREPAYMENT AND CANCELLATION


 


7.1                               Automatic cancellation and
reduction


 


(a)                                  The Total Commitments shall be automatically
reduced to £60,000,000 at the close of business in London on 31st December,
2003.


 


(b)                                 The reduction in the Total Commitments shall
be applied against the Commitment of each Bank pro rata.


 


(c)                                  The Commitment of each Bank shall be
automatically cancelled in full at the close of business in London on the Final
Maturity Date.


 


7.2                               Voluntary cancellation


 


(a)                                  The Company may, by giving not less than 14
days’ prior notice to the Agent (or such shorter period as the Majority Banks
may agree) cancel the unutilised portion of the Total Commitments in whole or
in part (but, if in part, in a minimum of £5,000,000 and an integral multiple
of £1,000,000).


 


 (b)                              Any cancellation in part shall be applied
against the Commitment of each Bank pro rata.


 


7.3                               Mandatory prepayment -
change of control


 


(a)                                  (i)                                     If any person, or group of persons acting in
concert (as defined in the City Code on Takeovers and Mergers) acquires control (as defined in the City Code on
Takeovers and Mergers) of the Company, the Company shall immediately notify the
Agent.


 


(ii)                                  On the date falling 5 Business Days after
notice under sub-paragraph (i) above:


 


(A)                              the Facility shall be cancelled; and


 


(B)                                each Borrower shall prepay all Loans made to
it together with accrued interest and all other amounts payable by it under the
Finance Documents.


 


(b)                                 (i)                                     If any Borrower ceases to be beneficially
wholly-owned by the Company, the Company shall immediately notify the
Agent.  For this purpose, a Borrower
will be regarded as wholly-owned if a portion of the share capital is required
to be held by law by officers of that Borrower.


 


24

















 


(ii)                                  On the date falling 5 Business Days after
notice under sub-paragraph (i) above the relevant Borrower shall either:


 


(A)                              prepay all Loans made to it together with
accrued interest and all other amounts payable by it under the Finance
Documents; or


 


(B)                                transfer its obligations under the Finance
Documents to another Borrower pursuant to Clause 28.l(b) (Transfers by
Obligors).


 


(iii)                               Any amount prepaid under sub-paragraph
(ii)(A) above shall, subject to the other terms of this Agreement, remain
available for re-borrowing by any other Borrower.


 


7.4                               Mandatory prepayment –
reduction amount


 


(a)                                  On the Effective Date the Company shall
procure that the reduction amount shall be applied in or towards prepayment of
the Loans.  Any Loan repaid under this
paragraph (a) may be re-borrowed.


 


(b)                                 For the purposes of this Clause 7.4:


 


(i)                                     reduction amount means an amount of £70,000,000 less the
amount of US$18,000,000 applied in repayment of the Tranche A Loans on the
Effective Date in accordance with the Supplemental Agreement dated on or about
11th March, 2003;


 


(ii)                                  Tranche A Loans means the principal amount outstanding of
each borrowing by a Borrower under the committed U.S. Dollar revolving credit
facility designated “Tranche A” which has been provided to the Borrowers by the
Banks under this Agreement prior to the Effective Date.


 


7.5                               Voluntary prepayment


 


A
Borrower may, by giving not less than 14 days’ prior notice to the Agent and,
subject to Clause 25.2(d) (Other indemnities), prepay any Loan in whole or in
part (but, if in part, in a minimum Original Sterling Amount of £5,000,000 and
an integral multiple of £1,000,000.)


 


7.6                               Additional right of
prepayment and cancellation


 


(a)                                  If:


 


(i)                                   a Borrower is required to pay to a Bank any
additional amounts under Clause 13 (Taxes); or


 


(ii)                                a Borrower is required to pay to a Bank any amount under Clause 15
(Increased Costs); or


 


(iii)                             interest on a Bank’s participation in a Loan is being calculated in
accordance with Clause 14.3(d) (Alternative basis),


 


and
that Borrower has not transferred its obligations under the Finance Documents
in accordance with Clause 28.1 (Transfers by Obligors) to another Borrower,
then, without prejudice to the obligations of any Obligor under those Clauses,
the Company may, whilst the circumstances giving rise to the requirement
continue, serve a notice of prepayment and cancellation on that Bank through
the Agent.  On the date falling 2
Business Days after the date of service of the notice and subject to Clause
25.2(d) (Other indemnities):


 


25

















 


(A)                              that Borrower shall prepay that Bank’s
participation in all the Loans made to it; and


 


(B)                                if the notice given by the Company so
specifies, the Commitment of that Bank shall be cancelled.


 


(b)                                 Any amount prepaid under paragraph (a) above
shall, subject to the other terms of this Agreement, remain available for
re-borrowing by any other Borrower.


 


7.7                               Mitigation


 


If, in respect of any Bank, circumstances arise which would, or would
on the giving of notice, result in:


 


(a)                                  any additional amounts becoming payable under
Clause 13 (Taxes); or


 


(b)                                 any amount becoming payable under Clause 15
(Increased Costs); or


 


(c)                                  any prepayment, early payment or cancellation
under Clause 16  (Illegality),


 


then,
without in any way limiting, reducing or otherwise qualifying the obligations
of any Obligor under this Agreement and without prejudice to the terms of those
Clauses, that Bank shall, in consultation with, and at the reasonable expense
of, the Company through the Agent and to the extent that it can do so lawfully,
take such reasonable steps as may be open to it to mitigate or remove such
circumstances, including (without limitation) the transfer of its rights and
obligations under this Agreement to another branch or an Affiliate or another
bank or financial institution nominated by the Company, unless to do so might
(in the reasonable opinion of the Bank) be prejudicial to it.


 


7.8                               Miscellaneous provisions


 


(a)                                  Any notice of prepayment and/or cancellation
under this Agreement is irrevocable. 
The Agent shall notify the Banks promptly of receipt of any such notice.


 


(b)                                 All prepayments under this Agreement shall be
made together with accrued interest on the amount prepaid and, subject to
Clause 25.2(d) (Other indemnities), without premium or penalty.


 


(c)                                  No prepayment or cancellation is permitted
except in accordance with the express terms of this Agreement.


 


(d)                                 No amount of the Total Commitments cancelled
under this Agreement may subsequently be reinstated.


 


(e)                                  Without prejudice to the right of a Borrower
to re-borrow amounts repaid under Clause 6.2 (Repayment of Loans) in accordance
with Clause 6.3 (Re-borrowing) or amounts prepaid under Clause 7.3(b)(iii)
(Mandatory prepayment - change of control), Clause 7.4(a) (Mandatory prepayment
- reduction amount) or Clause 7.6(b) (Additional right of prepayment and
cancellation), no amount repaid or prepaid under any other provision of this
Agreement may subsequently be re-borrowed.


 


26

















 


8.                                      INTEREST PERIODS


 


8.1                               Selection


 


(a)                                  Each Loan has one Interest Period only.


 


(b)                                 A Borrower may select the Interest Period for
a Loan in the relevant Request.  Each
Interest Period for a Loan will commence on its Drawdown Date.


 


(c)                                  Subject to the following provisions of this
Clause 8, each Interest Period will be one, two, three or six months or any
other period agreed by the relevant Borrower and the Banks.


 


8.2                               Non-Business Days


 


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


 


8.3                               Coincidence with repayment
dates


 


(a)                                  If an Interest Period for a Loan would
otherwise overrun the Final Maturity Date it will be shortened so that it ends
on the Final Maturity Date.


 


(b)                                 Any Interest Period for any Loan will be
shortened to ensure that the aggregate principal amount of Loans with an
Interest Period ending on 31st
December, 2003 is not less than the amount required to enable the Borrowers to
comply with Clause 6.1 (Reduction of Total Commitments).


 


8.4                               Other adjustments


 


The
Agent (after consultation with the Banks) and the Company may enter into such
other arrangements as they may agree for the adjustment of Interest Periods and
the consolidation and/or splitting of Loans.


 


8.5                               Notification


 


The
Agent shall notify the relevant Borrower and the Banks of the duration of each
Interest Period promptly after ascertaining its duration.


 


9.                                      INTEREST


 


9.1                               Interest rate


 


The
rate of interest on each Loan for each of its Interest Periods is the rate per
annum determined by the Agent to be the aggregate of the applicable:


 


(a)                                  Margin;


 


(b)                                 LIBOR; and


 


(c)                                  Mandatory Cost.


 


27

















 


9.2                               Due dates


 


Except
as otherwise provided in this Agreement, accrued interest on each Loan is
payable by the relevant Borrower on the last day of each Interest Period for
that Loan and also, if the Interest Period is longer than six months, on the
dates falling at six monthly intervals after the first day of that Interest
Period.


 


9.3                               Default interest


 


(a)                                  If an Obligor fails to pay any amount payable
by it under the Finance Documents, it shall forthwith on demand by the Agent
pay interest on the overdue amount from the due date up to the date of actual
payment, as well after as before judgment, at a rate (the default rate) determined by the Agent to be
one per cent. per annum above, subject to sub-paragraph (b) below, 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 such
successive Interest Periods of such duration as the Agent may determine having
due regard to the likely date for payment of the overdue amount (each a Designated Interest Period).


 


(b)                                 If the overdue amount is a principal amount
of a Loan and it becomes due and payable prior to the last day of an Interest
Period for that Loan, then:


 


(i)                                     the first Designated Interest Period for that
overdue sum will be the unexpired portion of that Interest Period; and


 


(ii)                                  the rate of interest on the overdue amount
for that first Designated Interest Period will be one per cent, per annum above
the rate on the overdue amount under Clause 9.1 (Interest rate) immediately
before the due date.


 


After
the expiry of the first Designated Interest Period for that overdue amount, the
rate on the overdue amount will be calculated in accordance with sub-paragraph
(a) above.


 


(c)                                  The default rate will be determined by the
Agent (acting reasonably) on each Business Day or the first day of,  or 2 Business Days before the first day
of, the relevant Designated Interest Period, as appropriate.


 


(d)                                 If the Agent (acting reasonably) determines
that deposits in the currency of the overdue amount are not at the relevant
time being made available by the Reference Banks to leading banks in the
relevant interbank market, the default rate will be determined by reference to
the cost of funds to the Agent from whatever sources it may reasonably select.


 


(e)                                  Default interest will be compounded at the
end of each Designated Interest Period.


 


9.4                               Notification of rates of
interest


 


The
Agent shall promptly notify each relevant Party of the determination of a rate
of interest under this Agreement.


 


9.5                               Adjustment of the Margin


 


(a)                                  From the Effective Date until the date of
delivery of the Compliance Certificate for the financial period ended 30th June, 2003 in accordance with Clause
19.2(a)(v) (Financial information) (the margin
adjustment testing date) the Margin for the Facility will be 1.75
per cent. per annum.


 


28

















 


(b)                                 On and from the margin adjustment testing
date the Company must supply to the Agent a Margin Certificate signed by two
authorised signatories of the Company:


 


(i)                                     at the same time as each press release issued
with the preliminary results of the Company for the financial year end of the
Company;


 


(ii)                                  at the same time as the delivery of a Compliance
Certificate in accordance with Clause 19.2(a)(v) (Financial information) in
respect of the Accounting Periods ending on the
financial half year of the Company and on the first and third financial
quarters of the Group,


 


for
the purpose of calculating whether the Margin in respect of a Loan is to be
adjusted in accordance with this Clause.


 


(c)                                  Subject to the following provisions, the
applicable Margin for a Loan will be adjusted (upwards or downwards) to the percentage rate per annum specified in Column 2 below set opposite the range in
Column 1 below into which the ratio of Consolidated Net Debt to Consolidated
EBITDA, as shown in the relevant Margin Certificate, falls:


 


	
  Column 1

  	
   

  	
  Column 2

  
	
   

  	
   

  	
   

  
	
  Ratio of
  Consolidated Net Debt to Consolidated EBITDA

  	
   

  	
  Applicable Margin (per annum)

  
	
   

  	
   

  	
   

  
	
  Equal to or
  above 2 to 1

  	
   

  	
  1.75 per cent.

  
	
   

  	
   

  	
   

  
	
  Less than 2 to 1
  but greater than or equal to 1.5 to 1

  	
   

  	
  1.65 per cent.

  
	
   

  	
   

  	
   

  
	
  Less than 1.5 to
  1 but greater than or equal to 1 to 1

  	
   

  	
  1.575 per cent.

  
	
   

  	
   

  	
   

  
	
  Less than 1 to 1

  	
   

  	
  1.50 per cent.

  



 


(d)                                 The adjustment (if any) specified in
paragraph (c) above will apply only in respect of a Loan made after the date
the Company delivers the relevant Margin Certificate.


 


(e)                                  Whilst a Potential Event of Default is
outstanding the Margin may be increased under paragraph (c) above but not
decreased and, when no Potential Event of Default is outstanding will revert to
the applicable rate calculated under paragraph (c) above.


 


(f)                                    For so long as:


 


(i)                                     the Company is in default of its obligation to
provide the relevant Margin Certificate or to provide accounts under Clause
19.2(a)(i)(A), (ii), (iii) or (iv) (Financial information); or


 


(ii)                                  an Event of Default is outstanding;


 


the
Margin for any Loan made or outstanding in the period during which that default
or Event of Default remains outstanding will be (if it is not already) 1.75 per
cent. per annum and will subsequently revert to the applicable rate calculated
under paragraph (c) above.


 


(g)                                 If a Margin Certificate (a Supported Certificate) when reconciled
against information delivered under Clause 19.2(a)(i) (Financial information)
shows that in reliance on a Margin Certificate (an Unsupported Certificate) delivered under paragraph (b)(i)
above the applicable Margin of any Loan for any Interest Period has been
incorrectly adjusted or


 


29

















 


determined at a level lower than required by
paragraph (c) above, such Margin shall be re-adjusted or re-determined with
effect from the first  day of such
Interest Period and if the Borrowers have, in reliance on such Unsupported
Certificate, paid to the Finance Parties an amount less than the amount which
the Borrowers would have paid if the Supported Certificate had been delivered
to the Agent instead of the Unsupported Certificate, the Company shall, within
5 Business Days of demand, pay to the Agent for the Banks an amount equal to
that difference.


 


10.                               OPTIONAL CURRENCIES


 


10.1                        Selection


 


(a)                                  A Borrower may select the currency of a Loan
in the relevant Request.


 


(b)                                 The currency of each Loan must be Sterling or
an Optional Currency.


 


10.2                        Revocation of currency


 


If,
before 9.30 a.m. on any Rate Fixing Day for a Loan denominated in an Optional
Currency (other than U.S. Dollars or euros), the Agent receives notice from a
Bank that:


 


(a)                                  it is impracticable for that Bank to fund its
participation in the Loan in the relevant Optional Currency during that
Interest Period in the ordinary course of business in the relevant interbank
market; and/or


 


(b)                                 the use of the proposed Optional Currency
might contravene any law or regulation,


 


the
Agent shall give notice to the relevant Borrower and to the Banks to that
effect before 11.00 a.m. on that day. In this event:


 


(i)                                     the Borrower and the Banks may agree that the
drawdown will not be made; or


 


(ii)                                  in the absence of agreement that Bank’s
participation in the Loan (or if more than one Bank is similarly affected,
those Banks’ participations in the Loan) shall be treated as a separate Loan
denominated in Sterling during that Interest Period.


 


11.                            AMOUNT OF OPTIONAL
CURRENCIES


 


If
a Loan is to be drawn down in an Optional Currency, the Original Sterling
Amount of each Bank’s participation in that Loan will be determined by
converting into Sterling the Bank’s participation in that Loan on the basis of
the applicable Agent’s Spot Rate of Exchange 3 Business Days before its
Drawdown Date.  The Agent shall notify
each Bank and each Borrower of the Original Sterling Amount of each Loan denominated
in an Optional Currency and the applicable Agent’s Spot Rate of Exchange
promptly after they are ascertained.


 


12.                               PAYMENTS


 


12.1                        Place


 


All
payments by an Obligor or a Bank under the Finance Documents shall be made to
the Agent to its account at such office or bank:


 


(a)                                  in the principal financial centre of the
country of the relevant currency; or


 


30

















 


(b)                                 in the case of euros, in the principal
financial centre of a Participating Member State or London,


 


as
it may notify to that Obligor or Bank for this purpose.


 


12.2                        Funds


 


Payments
under the Finance Documents to the Agent shall be made for value on the due
date in such funds as the Agent may specify to the Party concerned as being
customary at the time for the settlement of transactions in the relevant
currency in the place for payment.


 


12.3                        Distribution


 


(a)                                  Each payment received by the Agent under the
Finance Documents for another Party  shall,
subject to paragraphs (b) and (c) below, be made available by the Agent to that
Party by payment (on the date and in the currency and funds of receipt) to its
account with such office or bank:


 


(i)                                     in the principal financial centre of the
country of the relevant currency; or


 


(ii)                                  in the case of euros, in the principal
financial centre of a Participating Member State or London,


 


as
it may notify to the Agent for this purpose by not less than 5 Business Days’
prior notice or in the relevant Request.


 


(b)                                 If the relevant Obligor agrees, the Agent may
apply any amount received by it for an Obligor in or towards payment (on the
date and in the currency and funds of receipt) of any amount due from that
Obligor under the Finance Documents or in or towards the purchase of any amount
of any currency to be so applied.


 


(c)                                  Where a sum is to be paid to the Agent under
the Finance Documents for another Party, the Agent is not obliged to pay that
sum to that Party until it has established that it has actually received that
sum.  The Agent may, however, assume
that the sum has been paid to it in accordance with this Agreement, and, in
reliance on that assumption, make available to that Party a corresponding
amount.  If the sum has not been made
available but the Agent has paid a corresponding amount to another Party, that
Party shall forthwith on demand by  the
Agent refund the corresponding amount together with interest on that amount
from the date of payment to the date of receipt, calculated at a rate
determined by the Agent (acting reasonably) to reflect its cost of funds.


 


12.4                    Currency


 


(a)                                  A repayment or prepayment of a Loan or any
part of a Loan is payable in the currency in which the Loan is denominated on
its due date.


 


(b)                                 Interest is payable in the currency in which
the relevant amount in respect of which it is payable is denominated.


 


(c)                                  Amounts payable in respect of costs, expenses
and taxes and the like are payable in the currency in which they are incurred.


 


(d)                                 Any other amount payable under the Finance
Documents is, except as otherwise provided in this Agreement, payable in
Sterling.


 


31

















 


12.5                        Set-off and counterclaim


 


All
payments made by an Obligor under the Finance Documents shall be made without
set-off or counterclaim.


 


12.6                       Non-Business Days


 


(a)                                  If a payment under the Finance Documents is
due on a day which is not a Business Day, the due date for that payment shall
instead be the next Business Day in the same calendar month (if there is one)
or the preceding Business Day (if there is not).


 


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


 


12.7                       Partial payments


 


(a)                                  If the Agent receives a payment insufficient
to discharge all the amounts then due and payable by the Obligors under the
Finance Documents, the Agent shall apply that payment towards the obligations
of the Obligors 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 Agent under the Finance Documents;


 


(ii)                                  secondly, in or towards payment of any
commitment fee due under Clause 22.3 (Commitment fee) but unpaid;


 


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


 


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


 


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


 


(b)                                    The Agent shall, if so directed by all the
Banks, vary the order set out in sub-paragraphs (a)(ii) to (v) above.


 


(c)                                  Paragraphs (a) and (b) above will override
any appropriation made by an Obligor.


 


13.                               TAXES


 


13.1                        Gross-up


 


All
payments by an Obligor under the Finance Documents shall be made without any
deduction and free and clear of and without any deduction for or on account of
any Taxes, except to the extent that the Obligor is required by law to make
payment subject to any Taxes.  If any
Tax, or amounts in respect of Tax, must be deducted from any amounts payable or
paid by an Obligor, or paid or payable by the Agent to a Bank, under the
Finance Documents, the Obligor shall pay such additional amounts as may be
necessary to ensure that the relevant Bank receives a net amount equal to the
full amount which it would have received had payment not been made subject to
Tax.  Notwithstanding the foregoing, no
Obligor shall be required to pay additional amounts under this Clause 13.1 in
respect of such Taxes to the


 


32

















 


extent
they are net income taxes or branch taxes or franchise taxes imposed in lieu of
net income taxes on any Finance Party.


 


13.2                        Tax receipts


 


All
Taxes required by law to be deducted by an Obligor from any amounts paid or
payable under the Finance Documents shall be paid by the relevant Obligor when
due and the Obligor shall, as soon as practicable, deliver to the Agent for the
relevant Bank appropriate evidence that the payment has been duly remitted to
the appropriate authority.


 


13.3                        Qualifying Banks


 


(a)                                  Subject to paragraph (b) below, if a Bank is
not or ceases to be a Qualifying Bank in respect of the U.K., no Obligor will
be liable to  pay to that Bank
under Clause 13.1 (Gross-up), any amount in respect of taxes levied or imposed by
the U.K. or any taxing authority of or in the U.K. in excess of the amount it
would have been obliged to pay if that Bank had been, or had not ceased to be,
a Qualifying Bank in respect of the U.K.


 


(b)                                 Paragraph (a) above does not apply if a Bank
ceases to be a Qualifying Bank in respect of the U.K. as a result of the
introduction of, change in, or any change in the interpretation, administration
or application of, any law or regulation or any practice or concession of the
U.K. Inland Revenue occurring after the date of this Agreement.


 


(c)                                  Each Bank represents and warrants to each
Obligor that it is a Qualifying Bank in respect of the U.K. on the date of this
Agreement or, in the case of a Bank which becomes a Party after the date of
this Agreement, on the date it becomes a Party.  If at any time after the date of this Agreement any Bank is aware
that it is not or will cease to be a Qualifying Bank in respect of the U.K., it
shall promptly notify the Agent and the Company.


 


(d)                                 Each U.K. Treaty Bank shall, subject to
paragraph (e) below, deliver to each Borrower incorporated in the U.K. via the
Agent on the date it becomes a Party (and prior to the expiry of any such form
previously provided by that U.K. Treaty Bank), all such forms required to allow
that Borrower to make payments to that U.K. Treaty Bank without deduction or
withholding in respect of any tax imposed by the U.K.


 


(e)                                  No Bank is obliged to deliver any form(s)
under paragraph (d) above if that Bank is unable to complete the form(s) in a
manner which will enable any Borrower incorporated in the U.K. to make payments
to that Bank without deduction or withholding in respect of taxes imposed by
the U.K.  as a result of the
introduction of or any change in, or in the interpretation or application by
any relevant authority of, any law, treaty or regulation or any practice,
position or concession of the U.K., Inland Revenue after the date of this
Agreement.


 


13.4                        U.S. Taxes


 


(a)                                  Each Borrower agrees that it shall notify the
Agent on or before the date that the Borrower becomes a Party if that Borrower
is subject to withholding on payments of interest made to nonresident aliens of
the U.S. and foreign corporations under U.S. federal income tax law (a
Withholding Borrower and, after notifying the Agent, a  Notifying
Withholding Borrower).  A Borrower shall notify the Agent promptly
if it becomes a Withholding Borrower at any time after becoming a Party.


 


(b)                                 Each Bank that is not organised under the
laws of the U.S. (a Non-U.S. Bank) represents and warrants to
each Withholding Borrower on the latest of the dates that:


 


33

















 


(i)                                     the Withholding Borrower becomes a Party;


 


(ii)                                  the Withholding Borrower becomes a Notifying
Withholding Borrower; or


 


(iii)                               the Bank becomes a Party,


 


that
the Bank is a U.S. Treaty Bank or is otherwise exempt from withholding under
U.S. federal income tax law (a U.S. Treaty or Exempt Bank).  Each Non-U.S. Bank agrees that if, at any
time after becoming a Party, it becomes aware that it is ceasing or will cease
to be a U.S. Treaty or Exempt Bank, it shall promptly notify the Agent, and via
the Agent, each Notifying Withholding Borrower.


 


(c)                                  Subject to paragraph (d) below, if a Non-U.S.
Bank is not or ceases to be a U.S. Treaty or Exempt Bank, no Notifying
Withholding Borrower will be liable to pay to that Non-U.S. Bank under Clause
13.1 any amount in respect of taxes levied or imposed by the U.S. or any taxing
authority of or in the U.S. in excess of the amount it would have been obliged
to pay if that Non-U.S. Bank had been, or had not ceased to be, a U.S. Treaty
or Exempt Bank.


 


(d)                                 Paragraph (c) above does not apply if a Non-U.S. Bank ceases to be a
U.S. Treaty or Exempt Bank as a result of the introduction of, change in, or
any change in the interpretation, administration or application of, any law,
treaty or regulation of any relevant taxing authority or any practice or
concession of the U.S. Internal Revenue Service after the date of this
Agreement.


 


(e)                                  Each Non-U.S. Bank shall, subject to
paragraph (g) below, deliver via the Agent to the Company and each Notifying
Withholding Borrower on the later of the date that:


 


(i)                                     the Bank becomes a Party; or


 


(ii)                                  the Withholding Borrower becomes a Notifying
Withholding Borrower (and prior to the expiry of any such form previously
provided by the Non-U.S. Bank),


 


the
appropriate number of copies of duly executed U.S. Internal Revenue Service
Forms W-8BEN or W-8ECI or any successor or additional forms allowing each
Notifying Withholding Borrower to make payments to that Non-U.S. Bank without
deduction or withholding in respect of federal income taxes imposed by the
U.S..


 


(f)                                    Each Bank that is organised under the federal
laws of the U.S., or the laws of any of, any U.S. state or the District of
Columbia (a U.S. Organised Bank) shall, subject to
paragraph (g) below, deliver via the Agent to the Company and each Notifying
Withholding Borrower on the later of the two dates provided in paragraph (e)
above (and prior to the expiry of any such form previously provided by that
U.S. Organised Bank) the appropriate number of copies of duly executed U.S.
Internal Revenue Service Forms W-9 or any successor or additional forms
allowing each Notifying Withholding Borrower to make payments to that Non-U.S.
Bank without deduction or withholding in respect of federal income taxes
imposed by the U.S..


 


(g)                                 No Bank is obliged to deliver any form(s) under paragraph (e) or (f)
above if the Bank is unable to complete the form(s) in a manner which will
enable any Notifying Withholding Borrower to make payments to that Bank without
deduction or withholding in respect of taxes imposed by the U.S. as a result of
the introduction of, change in, or any change in the interpretation or
application by any relevant authority of, any law, treaty or regulation of any
relevant taxing authority or any practice, position or concession of the U.S.
Internal Revenue Service after the date of this Agreement.


 


34

















 


13.5                     Other tax forms


 


Without
prejudice to Clause 13.3 (Qualifying Banks) or 13.4 (U.S. Taxes) each Finance
Party shall co-operate with the relevant Obligor and the Agent in respect of
any application to the relevant revenue authorities by the completion and
execution (as soon as reasonably practicable following a request from the
Obligor or the Agent) of such certificates, claim forms or other documentation
as:


 


(a)                                  the Finance Party is reasonably able to
complete and execute without incurring any significant administrative burden on
its part; and


 


(b)                                 the Obligor or the Agent reasonably requests
for the purpose of enabling the Obligor or the Agent to obtain authorisation
from the relevant revenue authorities to make interest payments in full without
deduction or withholding of Tax.


 


13.6                       Reimbursement of Tax Credits


 


(a)                                If:


 


(i)                                     an Obligor pays any additional amount (a Tax
Payment) under Clause 13.1 (Gross-up); and


 


(ii)                                  a Bank effectively obtains a refund of Tax,
or credit against Tax on its overall net income, by reason of that Tax Payment (a Tax
Credit); and


 


(iii)                               that Bank is able to identify such Tax Credit
as being attributable to the Tax Payment,


 


then
the Bank shall reimburse to the relevant Obligor such proportion of such Tax
Credit as will leave the Bank, after that reimbursement, in no better or worse
position than it would have been in if such Tax Payment had not been required.


 


(b)                               Each Bank has an absolute discretion as to whether to claim any Tax
Credit which may be due to it (and, if it does claim, the extent, order and
manner in which it does so) and whether any amount is due from it under this
Clause 13.6. No Bank is obliged to disclose any information regarding its tax
affairs or computations to any Obligor.


 


14.                              MARKET DISRUPTION


 


14.1                        Absence of quotations


 


If
LIBOR is to be determined by reference to the Reference Banks but a Reference
Bank does not supply an offered rate by 11.30 a.m. on the relevant Rate Fixing
Day, the applicable LIBOR shall, subject to Clause 14.2 (Market disruption), be
determined on the basis of the quotations of the remaining Reference Banks.


 


14.2                        Market disruption


 


If:


 


(a)                                  LIBOR is to be determined by reference to the
Reference Banks but no, or (following the appointment of additional Reference
Banks pursuant to Clause 28.8 (Reference Banks)) only one, Reference Bank
supplies a rate by 11.30 a.m. on the Rate Fixing Day; or


 


35

















 


(b)                                 the Agent receives notification from Banks
whose participations in a Loan exceed 33 1/3 per cent of that Loan that, in
their opinion:


 


(i)                                     matching deposits may not be available to
them in the relevant interbank market in the ordinary course of business to
fund their participations in that Loan for the relevant Interest Period; or


 


(ii)                                  the cost to them of matching deposits in the
relevant interbank market would be in excess of the relevant LIBOR,


 


the
Agent shall promptly notify the relevant Borrower and the Banks of the fact and
that this Clause 14 is in operation.


 


14.3                        Alternative basis


 


If
a notification under Clause 14.2 (Market disruption) applies:


 


(a)                                  in the case of a Loan which has not been
made, and unless the relevant Borrower notifies the Agent to the contrary
before close of business on the day it received the notification under Clause
14.2 (Market disruption), the Loan shall still be made but it shall be
denominated (at the option of the relevant Borrower) in Sterling or U.S.
Dollars (or a combination), it shall have an Interest Period of one month and
the interest payable on that Loan shall be determined in accordance with this
Clause 14.3.


 


(b)                                 within 5 Business Days of receipt of the
notification for a Loan under Clause 14.2 (Market disruption), the Company and
the Agent shall enter into negotiations for a period of not more than 30 days
with a view to agreeing an alternative basis for determining the rate of
interest and/or funding applicable to that Loan;


 


(c)                                  any alternative basis agreed under paragraph
(b) above shall be, with the prior consent of all the Banks, binding on all the
Parties;


 


(d)                                 if no alternative basis is agreed each Bank
shall (through the Agent) certify on or before 10.00 a.m. on the last day of
the Interest Period (in respect of a Loan in Sterling) or 10.00 a.m. on the
second Business Day before the last day of the Interest Period (in respect of a
Loan in an Optional Currency) to which the notification relates an alternative
basis for maintaining its participation in that Loan;


 


(e)                                  any alternative basis under paragraph (b) or
(d) above may include an alternative method of fixing the interest rate,
alternative Interest Periods or optional currencies but it must reflect the
cost to each Bank of funding its participation in the Loan from whatever
sources it may select plus the applicable Margin plus any applicable Mandatory
Cost;


 


(f)                                    each alternative basis so certified shall be
binding on the Obligors and each certifying Bank and treated as part of this
Agreement; and


 


(g)                                 the Agent and the Company shall consult in
good faith following any significant change in market conditions with a view to
returning to the normal provisions of this Agreement.


 


36

















 


15.                               INCREASED COSTS


 


15.1                        Increased costs


 


(a)                                  Subject to Clause 15.2 (Exceptions), the
Company shall within five Business Days of demand by a Bank pay to that Bank
the amount of any increased cost incurred by it or its Holding Company as a
result of:


 


(i)                                     the introduction of, or any change in, or any
change in the interpretation or application of  any
law or regulation; or


 


(ii)                                  compliance with any regulation made after the
date of this Agreement,


 


including
any law or regulation relating to taxation or reserve asset, special deposit,
cash ratio, liquidity or capital adequacy requirements or any other form of
banking or monetary control.


 


(b)                                  In this Agreement increased cost means:


 


(i)                                     an additional cost incurred by a Bank or its
Holding Company as a result of having entered into, or performing, maintaining
or funding its obligations under, this Agreement; or


 


(ii)                                  that portion of an additional cost incurred
by a Bank or its Holding Company in making, funding or maintaining all or any
advances comprised in a class of advances formed by or including that Bank’s
participations in the Loans made or to be made under this Agreement as is
attributable to that Bank making, funding or maintaining those participations;
or


 


(iii)                               a reduction in any amount payable to a Bank
or its Holding Company or the effective return to a Bank or its Holding Company
under this Agreement or (to the extent that it is attributable to this
Agreement) on its capital.


 


(c)                                  Each Bank shall notify the Company promptly
upon it becoming aware of any increased cost incurred (or which is reasonably
likely to be incurred) by it or its Holding Company.  Any demand under paragraph (a) above shall be accompanied by a
calculation of the increased cost in reasonable detail.  However, a Finance Party is not obliged to
disclose any confidential information.


 


15.2                        Exceptions


 


Clause
15 (Increased Costs) does not apply to any increased cost:


 


(a)                                 intended to be compensated for by the payment
of the Mandatory Cost; or


 


(b)                                referred to in Clause 13 (Taxes); or


 


(c)                                 attributable to tax on the overall net income
of a Bank or its Holding Company.


 


15.3                       Regulation D Costs


 


Each
U.S. Borrower shall, within 5 Business Days of demand by any Bank (through the
Agent), pay to that Bank the amount of any Regulation D Costs actually incurred
by that Bank in respect of its participation in any Loan made by it to that
U.S. Borrower.


 


37

















 


16.                              ILLEGALITY


 


If
it is or becomes unlawful in any jurisdiction for a Bank to give effect to any
of its obligations as contemplated by this Agreement or to fund or maintain its
participation in any Loan, then:


 


(a)                                  that Bank may notify the Company through the
Agent accordingly; and


 


(b)                                 if the relevant Borrowers have not
transferred their obligations under the Finance Documents to another Borrower
pursuant to Clause 28.1(b) (Transfers by Obligors) so that after such transfer
that unlawfulness has ceased to exist:


 


(i)                                     each Borrower shall forthwith or (if later)
on the latest date(s) permitted by the relevant law prepay the participations
of that Bank in all the Loans made to that Borrower; and


 


(ii)                                  the Commitment of that Bank shall forthwith
or (if later) on the latest date(s) permitted by the relevant law be cancelled.


 


17.                              GUARANTEE


 


17.1                       Guarantee


 


Each Guarantor irrevocably and unconditionally:


 


(a)                                  as principal obligor guarantees to each
Finance Party prompt performance by each Borrower of all its payment
obligations under the Finance Documents;


 


(b)                                 undertakes with each Finance Party that
whenever a Borrower does not pay any amount when due under or in connection
with any Finance Document, that Guarantor shall on demand by the Agent pay that
amount as if that Guarantor instead of the relevant Borrower were expressed to
be the principal obligor; and


 


(c)                                  indemnifies as primary obligor each Finance
Party on demand against any loss or liability suffered by it if any obligation
guaranteed by that Guarantor is or becomes unenforceable, invalid or illegal.


 


17.2                       Continuing guarantee


 


This
guarantee is a continuing guarantee and will extend to the ultimate balance of
all sums payable by the Borrowers under the Finance Documents, regardless of
any intermediate payment or discharge in whole or in part.


 


17.3                       Reinstatement


 


(a)                                  Where any discharge (whether in respect of
the obligations of any Obligor or any security for those obligations or
otherwise) is made in whole or in part or any arrangement is made on the faith
of any payment, security or other disposition which is avoided or must be
restored on insolvency, liquidation or otherwise without limitation, the
liability of each Guarantor under this Clause 17 shall continue as if the
discharge or arrangement had not occurred.


 


(b)                                 Each Finance Party may concede or compromise
any claim that any payment, security or other disposition is liable to
avoidance or restoration if it has received legal advice to this effect.


 


38

















 


17.4                       Waiver of defences


 


The
obligations of each Guarantor under this Clause 17 will not be affected by an
act, omission, matter or thing which, but for this provision, would reduce,
release or prejudice any of its obligations under this Clause 17 or prejudice
or diminish those obligations in whole or in part, including (whether or not
known to it or any Finance Party):


 


(a)                                  any time or waiver granted to, or composition
with, any Obligor or other person;


 


(b)                                 the release of any other Obligor or any other
person under the terms of any composition or arrangement with any creditor or
any member of the Group;


 


(c)                                  the taking, variation, compromise, exchange,
renewal or release of, or refusal or neglect to perfect, take up or enforce,
any rights against, or security over assets of, any Obligor or other person or
any non-presentation or non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full value of any
security;


 


(d)                                 any incapacity or lack of powers, authority
or legal personality of or dissolution or change in the members or status of an
Obligor or any other person;


 


(e)                                  any variation (however fundamental) or
replacement of a Finance Document or any other document or security so that
references to that Finance Document in this Clause 17 shall include each
variation or replacement;


 


(f)                                      any unenforceability, illegality or
invalidity of any obligation of any person under any Finance Document or any
other document or security, to the intent that the Guarantors obligations under
this Clause 17 shall remain in full force and its guarantee be construed
accordingly, as if there were no unenforceability, illegality or invalidity; or


 


(g)                                 any postponement, discharge, reduction,
non-provability or other similar circumstance affecting any obligation of any
Obligor under a Finance Document resulting from any insolvency, liquidation or
dissolution proceedings or from any law, regulation or order so that each such
obligation shall for the purposes of each Guarantor’s obligations under this
Clause 17 be construed as if there were no such circumstance.


 


17.5                       Immediate recourse


 


Each
Guarantor waives any right it may have of first requiring any Finance Party (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 that
Guarantor under this Clause 17.


 


17.6                       Appropriations


 


Until
all amounts which may be or become payable by the Borrowers under or in
connection with the Finance Documents have been irrevocably paid in full, each
Finance Party (or any trustee or agent on its behalf) may:


 


(a)                                  refrain from applying or enforcing any other
moneys, security or rights held or received by that Finance Party (or any
trustee or agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit


 


39

















 


(whether
against those amounts or otherwise) and no Guarantor shall be entitled to the
benefit of the same; and


 


(b)                                 hold in a suspense account any moneys
received from a Guarantor or on account of that Guarantor’s liability under
this Clause 17, and interest will accrue on those moneys at the rate payable by
the relevant Borrower on the corresponding amount outstanding under this
Agreement.


 


17.7                       Non-competition


 


Until
all amounts which may be or become payable by the Borrowers under or in
connection with the Finance Documents have been irrevocably paid in full, no
Guarantor shall, after a claim has been made or by virtue of any payment or
performance by it under this Clause 17:


 


(a)                                  be subrogated to any rights, security or
moneys held, received or receivable by any Finance Party (or any trustee or
agent on its behalf) or be entitled to any right of contribution or indemnity
in respect of any payment made or moneys received on account of that
Guarantor’s liability under this Clause 17;


 


(b)                                 claim, rank, prove or vote as a creditor of any
Obligor or its estate in competition with any Finance Party (or any trustee or
agent on its behalf); or


 


(c)                                  receive, claim or have the benefit of any
payment, distribution or security from or on account of any Obligor, or
exercise any right of set-off as against any Obligor,


 


unless
the Agent otherwise directs.  Each
Guarantor shall hold in trust for and forthwith pay or transfer to the Agent
for the Finance Parties any payment or distribution or benefit of security
received by it contrary to this Clause 17.7 or as directed by the Agent.


 


17.8                       U.S. Guarantors


 


(a)                                  In this Subclause:


 


(i)                                     fraudulent transfer law means any applicable
United States bankruptcy or State fraudulent transfer or conveyance statute and
any related case law;


 


(ii)                                  U.S. Guarantor means any U.S. Obligor that is a Guarantor;
and


 


(iii)                               terms used in this Subclause 17.8 have the
meanings given to them in the United States Bankruptcy Code of 1978 and
applicable fraudulent transfer laws.


 


(b)                                 Each U.S. Guarantor acknowledges that:


 


(i)                                     it will receive valuable direct or indirect
benefits as a result of the transactions financed by the Finance Documents;


 


(ii)                                  those benefits will constitute reasonably
equivalent value and fair consideration for the purpose of any fraudulent
transfer law; and


 


(iii)                               each Finance Party had acted in good faith in
connection with the guarantee given by that U.S. Guarantor and the transactions
contemplated by the Finance Documents.


 


40

















 


(c)                                  Each Finance Party agrees that each U.S.
Guarantor’s liability under this Clause is limited so that no obligation of, or
transfer by, any U.S. Guarantor under this Clause is subject to avoidance and
turnover under any fraudulent transfer law.


 


(d)                                 Each U.S. Guarantor represents and warrants
to the Finance Parties on the date of each Guarantor Accession Agreement to
which that Guarantor is a party that:


 


(i)                                     the aggregate amount of each U. S.
Guarantor’s debts (including its obligations under the Finance Documents) is
less than the aggregate value (being the lesser of fair valuation and present
fair saleable value) of its assets;


 


(ii)                                  its capital is not unreasonably small to
carry on its business as it is being conducted;


 


(iii)                               it has not incurred and does not intend to
incur debts beyond its ability to pay as they mature; and


 


(iv)                              it has not made a transfer or incurred any
obligation under any Finance Document with the intent to hinder, delay or
defraud any of its present or future creditors.


 


17.9                        Additional security


 


This
guarantee is in addition to and is not in any way prejudiced by any other
security now or subsequently held by any Finance Party.


 


18.                               REPRESENTATIONS AND
WARRANTIES


 


18.1                        Representations and warranties


 


Each
Obligor makes the representations and warranties set out in this Clause 18 to
each Finance Party.  The representations
and warranties to be made by the Company will be made in respect of itself and,
where applicable, any other member of the Group.  The representations and warranties to be given by each other
Obligor will be made in respect of itself only.


 


18.2                        Status


 


It
is a limited liability company, duly incorporated and validly existing under
the laws of its jurisdiction of incorporation and, where relevant under those
laws, in good standing and has the power to own its assets and carry on its
business as it is being conducted.


 


18.3                        Powers and authority


 


It
has the corporate power to enter into and perform its obligations under the
Finance Documents to which it is a party and has taken all necessary corporate
action to authorise the entry into and performance of its obligations under
those Finance Documents.


 


18.4                        Legal validity


 


Subject
to any qualifications as to matters of law set out in the legal opinion
delivered under Schedule 2 in respect of that Obligor, this Agreement
constitutes, and each other Finance Document to which it is a party (when
executed in accordance with the terms of this Agreement) will constitute, its
legal, valid, binding and enforceable obligation.


 


41

















 


18.5                        Non-conflict


 


The
entry into and performance of each Finance Document does not and will not
conflict with:


 


(a)                              any applicable law or regulation or any applicable official or judicial
order in the jurisdiction of its incorporation;


 


(b)                             its constitutional documents; or


 


(c)                              any document to which it is a party or which is binding upon it or any
of its assets.


 


18.6                        Authorisations


 


All
authorisations required by it in connection with the entry into, performance,
validity and enforceability of each Finance Document to which it is a party and
the transactions contemplated by each such Finance Document have been obtained
or effected and are in (or will at the relevant time be) full force and effect.


 


18.7                      Pari passu


 


Its
obligations under the Finance Documents do and will rank at least pari passu
with all of its other unsecured and unsubordinated obligations other than those
obligations which are mandatorily preferred by law and not by reason of
contract.


 


18.8                      Accounts


 


(a)                                 In the case of the Company, the audited
consolidated accounts of the Group most recently delivered to the
Agent:


 


(i)                                     have been prepared in accordance with
accounting principles generally accepted in the U.K. as at 31st December, 2001
and consistently applied or (if not consistently applied) are accompanied by
details of the inconsistencies; and


 


(ii)                                  give a true and fair view of the consolidated
financial condition of the Group as at the date to which they were drawn up.


 


(b)                                In the case of each Obligor (other than the Company) which produces
audited accounts, its audited accounts most recently delivered to the Agent
under Clause 19.2(a)(i)(B) (Financial information):


 


(i)                                     have been prepared in accordance with
accounting principles generally accepted in the U.K. as at 31st December, 2001
and consistently applied or (if not consistently applied) are accompanied by
details of the inconsistencies; and


 


(ii)                                  give a true and fair view of the financial
condition of that Obligor as at the date to which they were drawn up.


 


(c)                                  In the case of each Obligor which does not
produce audited accounts, the accounts of that Obligor most recently delivered
to the Agent under Clause 19.2(a)(i)(C) (Financial information) have been
prepared in accordance with accounting principles required in order to
consolidate the accounts of that Obligor into the consolidated accounts of the
Company.


 


42

















 


(d)                                 Except
as disclosed to the Agent prior to the Effective Date, as at the Effective Date,
there has been no material adverse change in the consolidated financial
condition of the Group since 31st December, 2001.


 


18.9                       Litigation


 


Except
as disclosed to the Agent prior to the Effective Date, as at the Effective
Date, no litigation, arbitration or administrative proceedings has been
commenced or, to its knowledge, is threatened or pending against any member of
the Group which, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.


 


18.10                No default


 


No
Event of Default or (unless this representation is being repeated or deemed to
be repeated on the date of a Request or a Drawdown Date in respect of a
Rollover Loan) Potential Event of Default has occurred and is continuing which
has not been waived.


 


18.11                Information


 


(a)                                  All information supplied by each Obligor to
the Finance Parties in the initial information memorandum dated 18th December,
2002 and the supplementary information memorandum dated 13th January, 2003 (the
Information) was, in the case of
factual information, true in all material respects as at its date, and all
forecasts and projections contained in the Information were arrived at after
careful consideration, were based in all material respects on information that
the Company believed to be accurate and complete at the time that Information
was supplied and were made on the basis of assumptions and estimates which the
Company believed were reasonable in view of the circumstances existing at the
time such assumptions and estimates were made.


 


(b)                                 The Information did not omit as at its date
any material information which, if disclosed, could reasonably be expected to
adversely affect the decision of a person considering whether to enter into
this Agreement.


 


18.12                 ERISA


 


(a)                                  In the case of the Company, each U.S.
Borrower and each U.S. Material Subsidiary, each Pension Plan is in compliance
in all material respects with the applicable provisions of ERISA, the Code and
any other applicable Federal law.


 


(b)                                 In the case of the Company, each U.S.
Borrower and each U.S. Material Subsidiary, no event or condition has occurred
or exists as a result of which it would be under an obligation to furnish a
report to the Agent in accordance with Clause 19.16 (ERISA).


 


18.13                 Investment Company Act


 


In
the case of the Company, each U.S. Borrower and each U.S. Material Subsidiary,
neither it nor any of its Subsidiaries is an “investment company”, or a company
“controlled” by an “investment company”, within the meaning of the Investment
Company Act of 1940 of the United States of America.


 


18.14                 Public Utility Holding
Company Act


 


It
is not a holding company, an affiliate of a holding company or a subsidiary
company of a holding company, or subject to regulation, under the United States
Public Utility Holding


 


43

















 


Company
Act of 1935.  In this Clause holding company, affiliate and subsidiary
company have the meanings given to them in the United States Public
Utility Holding Company Act of 1935.


 


18.15                Use of Proceeds


 


In
the case of the Company, each U.S. Borrower and each U.S. Material Subsidiary,
neither it nor any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for  the purpose, whether immediate, incidental or
ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
the Loans will be used to buy or carry any Margin Stock in violation of
Regulation U or X of the Board of Governors of the Federal Reserve System.  For purposes of this Clause, Margin Stock means “margin stock” within
the meaning of Regulations U and X of the Board of Governors of the Federal
Reserve System (or any successor), as the same may be modified and supplemented
and in effect from time to time.  No Obligor
may use any part of any Loan to acquire any security in a transaction that is
subject to Section 13 or 14 of the United States Securities Exchange Act of
1934.


 


18.16                Environmental matters


 


(a)                                  It and each member of the Group complies, in
all respects, with all requirements of all Environmental Laws where failure to
do so has or could reasonably be expected to have a Material Adverse Effect;
and


 


(b)                                 no Environmental Claim is existing or, to its knowledge pending or
threatened against it or any member of the Group which has or could reasonably
be expected to have a Material Adverse Effect.


 


18.17                Executive Order 13224


 


Neither
the Company nor any member of the Group is a person or entity described by
Section 1 of Executive Order 13224 of 23rd September, 2001 Blocking Property
and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism, Exec.  Order No.
13,224 66 Fed. Reg. 47,079 (2001), and neither the Company nor any member of
the Group is knowingly engaged in any dealings or transactions, or is otherwise
associated with any such persons or entities in violation of such Executive
Order.


 


18.18                Times for making
representations and warranties


 


The
representations and warranties set out in this Clause 18 (Representations and
Warranties):


 


(a)                                  (i)                                     with the exception of the representations and
warranties in Clause 18.11 (Information) and Clause 18.17 (Executive Order), in
the case of an Obligor which is a Party on the date of this Agreement, are made
by that Obligor on that date; and


 


(ii)                                  in the case of an Obligor which becomes a
Party after the date of this Agreement, (with the exception of the
representations and warranties in Clauses 18.8(d) (Accounts), 18.9
(Litigation), Clause 18.11 (Information) and Clause 18.17 (Executive Order))
will be deemed to be made by that Obligor on the date it executes a Borrower
Accession Agreement or Guarantor Accession Agreement, as appropriate;


 


44

















(b)                                 (with the exception of the representations
and warranties in Clauses 18.8(d) (Accounts), 18.9 (Litigation),
Clause 18.11 (Information) and Clause 18.17 (Executive Older 13224)) are
deemed to be repeated by each Obligor on the date of each Request, each
Drawdown Date and the first day of each Interest Period with reference to the
facts and circumstances then existing; and


 


(c)                                  for Clause 18.11 (Information) and Clause
18.17 (Executive Older 13224), is made by each Obligor on the date of the
Supplemental Agreement dated on or about 11th March, 2003 and on the Effective
Date.


 


19.                               UNDERTAKINGS


 


19.1                        Duration


 


The undertakings in this
Clause 19 remain in force from the date of this Agreement for so long as any
amount is or may be outstanding under this Agreement or any Commitment is in
force.


 


19.2                        Financial Information


 


(a)                                  The Company shall supply to the Agent in
sufficient copies for all the Banks in respect of the items referred to in
sub-paragraphs (i)(A) and (B)(ii), (iii) and (iv) below and in sufficient
copies for all the Banks in respect of the item referred to in sub-paragraph
(i)(C) below if the Agent so requests:


 


(i)                                     as soon as practicable:


 


(A)                              and in any event within 145 days after the
close of each of its financial years, the audited consolidated accounts of the
Company for that financial year;


 


(B)                                and in any event within 180 days after the
close of each of its financial years, in the case of any Obligor where the
jurisdiction in which that Obligor is incorporated requires that Obligor to
produce annual audited accounts, the audited accounts of that Obligor; or


 


(C)                                and in any event within 180 days after the
close of each of its financial years, in any other case, the accounts of each
Obligor used by the auditors of the Company in preparing the audited
consolidated accounts of the Company,


 


for that year;


 


(ii)                                  as soon as practicable (and in any event
within 120 days of the end of the first half of each of its financial years)
the unaudited consolidated accounts of the Company for that half year;


 


(iii)                               as soon as practicable (and in any event
within 30 days of the end of each month) the unaudited consolidated monthly
management accounts of the Company for that month;


 


(iv)                              as soon as practicable (and in any event
within 45 days of the end of each of the first and third financial quarters in
each financial year) the unaudited consolidated quarterly management accounts
of the Company for the first and third financial quarters in each financial
year, such quarterly management accounts to include a


 


45

















 


summary and analysis of the
monthly management accounts for that financial quarter prepared by the
Reporting Accountant; and


 


(v)                                 together with the accounts specified in
sub-paragraphs (i)(A) and (ii) (for the financial half year of the Group) and
(iv) (for the first and third financial quarters of the Group) above, a
Compliance Certificate signed by two duly authorised signatories as at the end
of the relevant Accounting Period.


 


(b)                                 Within 7 days of receipt by the Agent of each
set of quarterly management accounts under sub-paragraph (a)(iv) above, each
set of audited consolidated accounts under sub-paragraph (a) (i) (A) above and
each set of unaudited consolidated accounts under sub-paragraph (a) (ii) above
the Group Finance Director will hold a conference call with the Finance Parties
to provide an update on the financial performance of the Group as at the end of
that financial quarter.


 


19.3                        Form of accounts


 


If, at any time, the Company
changes or proposes to change the accounting policies upon which any of the
information provided pursuant Clause 19.2  (a)(i)(A),
(ii) and (iv) (Financial information) is prepared, then:


 


(a)                                  it shall notify the Agent of the change or
proposed change;


 


(b)                                 within
5 Business Days of receipt of the notification, it and the Agent shall enter
into discussions for a period of not more than 45 days with a view to  agreeing the amendments which would be
required to be made to this Agreement (including, without limitation, Clause
19.10 (Financial covenants)) to reflect the basis upon which this Agreement was
entered into by it and the Banks;


 


(c)                                  any
agreement between it and the Agent under sub-paragraph (b) above shall be, with
the prior consent of the Majority Banks, binding on all the Parties; and


 


(d)                                 if no agreement is reached under
sub-paragraph (b) above, then the Auditor (acting as experts) shall certify the
amendments which would be required to be made to this Agreement to place the
Company and the Banks in the same position they would have been in if the change
had not taken place; a certificate of the Auditor in accordance with the above
will, in the absence of manifest error, be binding on all the Parties.


 


19.4                       Information – miscellaneous


 


(a)                                  The Company shall supply to the Agent:


 


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


 


(ii)                                  except if prohibited by applicable law or
regulation promptly upon becoming aware of them, details of any litigation,
arbitration or administrative proceedings which are current, threatened or
pending, and which might, if adversely determined, be reasonably expected to
have a Material Adverse Effect; and


 


(iii)                               promptly, such further information in the
possession or control of any member of the Group regarding its financial
condition and operations as any Finance Party may reasonably request,


 


46

















 


in sufficient copies for all
of the Banks, if the Agent so requests.


 


(b)                                 Upon reasonable notice being given by the
Agent, each member of the Group must allow any one or more representatives of
the Agent and/or accountants or other professional advisers appointed by the
Agent (if a Default is demonstrated to have occurred or to be outstanding, at
the Company’s risk and expense) to have access during normal business hours to
the premises, assets, books and records of that member of the Group.


 


(c)                                  The Agent may not give notice under paragraph
(b) above more than once every financial year unless it believes, acting
reasonably, that a Default is outstanding or is reasonably likely to have
occurred or may occur.


 


19.5                        Notification of Default


 


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


 


19.6                        Authorisations


 


(a)                                  Each Obligor shall obtain and promptly renew
from time to time, and will promptly upon the request of the Agent furnish
certified copies to the Agent of, all such material authorisations as may be
required under any applicable law or regulation to enable any Obligor to
perform its obligations under, or for the validity or enforceability of, any
Finance Document.


 


(b)                                 The Company shall ensure that each member of
the Group shall obtain, maintain and comply with the terms of any authorisation
required to enable it to carry on its business where failure to do so could
reasonably be expected to have a Material Adverse Effect.


 


19.7                        Pari passu ranking


 


Each Obligor undertakes that
its obligations under the Finance Documents shall rank at least pari passu with
all of its other present and future unsecured and unsubordinated obligations
other than those obligations which are mandatorily preferred by law and not by
reason of contract.


 


19.8                        Preferred Indebtedness


 


The Company shall procure
that:


 


(a)                               Preferred Indebtedness does not at any time
exceed £30,000,000 (or its equivalent in any other currency or currencies) in
aggregate; and


 


(b)                              the Company shall ensure that, if any
derivative transaction is or is to be entered into by a Borrower, then, unless
any applicable law prevents that Borrower becoming a Guarantor, that Borrower
will (unless it is already a Guarantor) become an Additional Guarantor in accordance
with Clause 28.6 (Additional Guarantors).


 


19.9                        Disposals


 


(a)                                  Except
as provided below no Obligor shall, and the Company shall procure that no
member of the Group will, either in a single transaction or in a series of
transactions, whether related or not and whether voluntarily or involuntarily,
sell, transfer, lease or otherwise dispose (each a disposal) of all or a part
of its respective assets.


 


47

















 


(b)                                 Paragraph
(a) does not apply to:


 


(i)                                     disposals of real estate that is not material
to the ordinary course of business of the Group; and


 


(ii)                                  disposals made in the ordinary course of
trade of the disposing entity;


 


(iii)                               disposals from a member of the Group to
another member of the Group;


 


(iv)                              disposals of cash raised or borrowed for the
purposes for which it was raised or borrowed;


 


(v)                                 disposals of assets in exchange for other
assets comparable or superior as to type, value and quality;


 


(vi)                              disposals of obsolete assets for cash;


 


(vii)                           disposals to trade debtors in satisfaction of
trade debts incurred in the ordinary course of trade of the disposing entity;


 


(viii)                        disposals of cash on arms length terms
provided that any such disposal is not prohibited by this Agreement;


 


(ix)                                a Permitted Reorganisation and its proceeds;
and 


 


(x)                                   the WAGO Disposal and its proceeds.


 


(c)                                  Nothing in paragraph (b) above shall permit
any member of the Group to dispose of any ownership interests to a third party
in the companies or divisions comprising all or any part of the Network Product
Division or the Systems-Drives Division.


 


19.10                 Financial
covenants


 


(a)                                  On
any testing date falling before 31st March, 2003 the Company shall procure
that:


 


(i)                                     the ratio of Consolidated Net Debt to
Consolidated EBITDA is not, as at any testing date, greater than 3.0:1, and


 


(ii)                                  the ratio of Consolidated EBITA to
Consolidated Net Interest Expense is not, as at any testing date, less than 3.0
to 1.


 


(b)                                 On
the testing date falling on 31st March, 2003 the Company shall procure that:


 


(i)                                     the ratio of Consolidated Net Debt to
Consolidated EBITDA is not greater than 3.0:1; and


 


(ii)                                  the ratio of Consolidated EBITA to
Consolidated Net Interest Expense is not less than 2.0:1.


 


(c)                                  On
the testing date falling on 30th June, 2003 the Company shall procure that:


 


(i)                                     the ratio of Consolidated Net Debt to
Consolidated EBITDA is not greater than 2.75:1; and


 


48

















 


(ii)                                  the ratio of Consolidated EBITA to
Consolidated Net Interest Expense is not less than 2.0:1.


 


(d)                                 On
the testing date falling on 30th September, 2003 the Company shall procure
that:


 


(i)                                     the ratio of Consolidated Net Debt to
Consolidated EBITDA is not greater than 2.5:1; and


 


(ii)                                  the ratio of Consolidated EBITA to
Consolidated Net Interest Expense is not less than 2.25:1.


 


(e)                                  On
the testing date falling on 31st December, 2003 the Company shall procure that:


 


(i)                                     the ratio of Consolidated Net Debt to
Consolidated EBITDA is not greater than 2.25:1; and


 


(ii)                                  the ratio of Consolidated EBITA to
Consolidated Net Interest Expense is not less than 2.5:1.


 


(f)                                    On
each testing date thereafter the Company shall procure that:


 


(i)                                     the ratio of Consolidated Net Debt to
Consolidated EBITDA is not, as at any testing date, greater than 2.25:1; and


 


(ii)                                  the ratio of Consolidated EBITA to
Consolidated Net Interest Expense is not, as at any testing date less than
2.5:1.


 


(g)                                 The
Company shall procure that Consolidated Net Worth is not at any time less than
£100,000,000.


 


(h)                                 (i)                                     Notwithstanding
that the amount of the terms used in paragraphs (a)-(g) above will be derived
from the latest accounts, all the terms used in paragraphs (a)-(g) above are,
subject to Clause 19.3 (Form of accounts), to be calculated in accordance with
the accounting principles in effect and as applied by the Company in connection
with the accounts produced for the financial year ending 31st December, 2002;


 


(ii)                                  testing date means the last day of each
financial quarter of the Company, being 31st March, 30th June, 30th September
and 31st December in each year;


 


(iii)                               if
there is a dispute as to any interpretation of, or computation for, such
definitions or terms, the interpretation or computation of the Auditor notified
to the Agent and the Company prevails in the absence of manifest error; and


 


(iv)                              subject
to sub-paragraph (ii) of the definition of Consolidated Net Worth, any amount
denominated in a currency other than Sterling is to be taken into account at
its Sterling equivalent calculated on the basis set out in the then latest Accounts.


 


19.11                 Mergers and
Acquisitions


 


(a)                                  Except
as provided below no member of the Group may enter into any amalgamation,
demerger, merger or reconstruction other than under or in connection with a
Permitted Reorganisation.


 


49

















 


(b)                                 The Company shall not and shall procure that
no member of the Group shall acquire or subscribe for shares or other ownership
interests in or securities of any company or other person or acquire any
business or incorporate any company (an acquisition).


 


(c)                                  Unless an Event of Default is outstanding (or
would result from an acquisition made by any member of the Group), paragraphs
(a) and (b) do not apply to:


 


(i)                                     acquisitions made in the ordinary course of
trade or under or in connection with a Permitted Reorganisation;


 


(ii)                                  acquisitions made before the Effective Date
in respect of which deferred consideration is payable after the Effective Date
and as disclosed to the Banks, provided that:


 


(A)                              the terms of the deferred consideration have
been disclosed to the Bank prior to the Effective Date;


 


(B)                                other than amendments or waivers contemplated
by the terms of the relevant agreements, no amendments or waivers are made in
respect of that deferred consideration which may increase the aggregate
consideration payable by the Group or may otherwise be on less favourable terms
to the terms disclosed to the Banks; and


 


(C)                                if expressly provided for in the relevant
agreement, the deferred consideration shall be satisfied by an issue of shares
in the Company to the Seller;


 


(iii)                               an acquisition made in relation to a disposal
made under Clause 19.9(b)(iii) and 19.9(b)(ix) (Disposals); and


 


(iv)                              an acquisition, the consideration for which,
when aggregated with the consideration of any other acquisitions made by a
member of the Group in that financial year, does not cause the aggregate
consideration for acquisitions made by members of the Group to exceed
£2,500,000 in any financial year.


 


19.12                 Change of business


 


The Company shall procure that, except as disclosed to
the Arrangers prior to the Effective Date and in the Information (as referred
to in Clause 18.1 l(a) (Information) no substantial change is made to the
nature of the Group’s business from that carried on as at the date of the disclosure.


 


19.13                 Environmental
Laws


 


The Company shall, and the Company shall procure that
each member of the Group will, comply with and carry out its business in
accordance with all Environmental Laws necessary for the conduct of its
business where any failure to comply or carry out its business in accordance
with that Environmental Law might have a Material Adverse Effect.


 


19.14                 Compliance with
laws


 


The Company shall, and the
Company shall procure that each member of the Group will, comply with and carry
out its business in accordance with all laws necessary for the conduct of its
business where any failure to comply or carry out its business in accordance
with that law might have a Material Adverse Effect.


 


50

















 


19.15                 Insurance


 


Each Obligor shall, and the
Company shall procure that each of its Subsidiaries will, insure and keep
insured its assets with underwriters or insurance companies in accordance with
sound business practice and as companies engaged in a similar business in its
jurisdiction would normally insure.


 


19.16                 ERISA


 


(a)                                  As
soon as possible, and in any event within 30 days, after any U.S. Borrower or
any other member of the Group knows or has reason to know that any of the
events or conditions mentioned in paragraph (b) below have occurred or exist,
where such event or condition has or is reasonably likely to have a Material
Adverse Effect, it will furnish to the Agent a statement signed by a senior
financial officer of the relevant company (without personal liability) setting
forth the nature of such event or condition and the action, if any, which the
relevant company or an ERISA Affiliate proposes to take with respect thereto.


 


(b)                                 The
events or conditions mentioned in paragraph (a) above are:


 


(i)                                     any reportable event, as defined in Section
4043(c) of ERISA with respect to a Pension Plan, as to which the PBGC has not
by regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event;


 


(ii)                                  the failure to meet the minimum funding
standards of Section 412 of the Code or Section 302 of ERISA with respect to a
Pension Plan or any request for a waiver under Section 412(d) of the Code or
Section 303 of ERISA, or for an extension under Section 4l2(e) of the Code or
Section 304 of ERISA for any Pension Plan;


 


(iii)                               the distribution under Section 4041(c) of
ERISA of a notice of intent to terminate any Pension Plan;


 


(iv)                              the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Pension Plan, or the receipt by any U.S. Borrower, U.S.
Material Subsidiary or any ERISA Affiliate of a notice that such action has
been taken by PBGC with respect to a Multiemployer Plan;


 


(v)                                 the complete or partial withdrawal from a
Multiemployer Plan by any U.S.  Borrower
or any ERISA Affiliate that results in liability under Section 4201 or 4204 of
ERISA or the receipt by any U.S. Borrower, U.S. Material Subsidiary or any
ERISA Affiliate of notice from a Multiemployer Plan that it is in
reorganisation or insolvency pursuant to Section 4241 or 4245 of ERISA or that
it intends to terminate or has terminated under Section 4041A of ERISA;


 


(vi)                              the institution of a proceeding by a fiduciary
of any Multiemployer Plan against any U.S. Borrower, U.S. Material Subsidiary
or any ERISA Affiliate to enforce Section 515 of ERISA, which proceeding is not
dismissed within 30 days;


 


(vii)                           the adoption of an amendment to any Pension
Plan pursuant to Section 307 of ERISA that requires the provision of security
to such Pension Plan; or


 


(viii)                        the conditions for the imposition of a
Security Interest under Section 302(f) of ERISA shall have been met with respect to any Pension Plan.


 


51

















 


(c)                                  The
Company shall furnish to the Agent, promptly after the request of the Agent,
copies of each Schedule B (actuarial information) to the annual report (Form
5500) filed with respect to each Pension Plan.


 


(d)                                 Each
Obligor and its ERISA Affiliates must be, and remain, in compliance in all
material respects with all laws and regulations relating to each of its Pension
Plans.


 


(e)                                  Each of the Obligors and its ERISA Affiliates
must ensure that no event or condition exists at any time in relation to a
Pension Plan which is reasonably likely to result in the imposition of a
Security Interest on any of its assets pursuant to Table I or IV of ERISA which
would be reasonably likely to have a Material Adverse Effect.


 


19.17                 Material
Subsidiaries


 


(a)                                  In
each Compliance Certificate delivered with the accounts referred to in Clauses
19.2(a)(i)(A) and (ii) (Financial information) (a Material Subsidiary Compliance Certificate) the Company shall
designate the Subsidiaries which are to be Material Subsidiaries from the date
of that Material Subsidiary Compliance Certificate to the date of the next
Material Subsidiary Compliance Certificate.


 


(b)                                 In each Compliance Certificate, the Company
shall list Subsidiaries in descending order of their contribution to
Consolidated EBIT and, where the Consolidated EBIT for two or more Subsidiaries
is the same, list those Subsidiaries in descending order of their contribution
to Consolidated Total Assets.


 


(c)                                  The Company shall procure that the list provided
in each Compliance Certificate shall be such that, as at the end of the
Accounting Period to which the Compliance Certificate relates, the aggregate of
the EBIT and Total Assets of each Material Subsidiary plus the EBIT and Total
Assets of the Company accounts for at least 80 per cent. of Consolidated EBIT
and 80 per cent. of Consolidated Total Assets. The list shall set out the
proportion which the aggregate EBIT and Total Assets of the Company and each
Material Subsidiary bears to the Consolidated EBIT and Consolidated Total
Assets.


 


(d)                                 The
Company shall procure that each company listed in Part 2  of Schedule 7 executes a Guarantor
Accession Agreement and accedes to this Agreement as a Guarantor in accordance
with Clause 28.6 (Additional Guarantors) on or before the Effective Date.


 


19.18                 Guarantors


 


The Company shall at all
times own, directly or indirectly, at least 90 per cent. of the share capital
and all other equity interests of each Guarantor.


 


19.19                 Dividends


 


(a)                                  Except
as provided below no Obligor shall:


 


(i)                                     declare,
make or pay, or pay  interest on
any unpaid amount of, any dividend, charge, fee or other distribution (whether
in cash or in kind) on or in respect of its shares or share capital (or any
class of its share capital); or


 


(ii)                                  repay or distribute any share premium
account.


 


(b)                                 Paragraph
(a) does not apply to:


 


52

















 


(i)                                     any Obligor that is a Non-Wholly Owned
Subsidiary; and


 


(ii)                                  payments by an Obligor to another Obligor
(including, for the avoidance of doubt, pursuant to a Permitted
Reorganisation).


 


19.20                 Negative Pledge


 


(a)                                  Other
than in respect of any Security Interest already granted in respect of the
Financial Indebtedness disclosed in Schedule 6, the Company shall not and shall
procure that no member of the Group shall create or allow to exist any Security
Interest on any of its assets in favour of a person securing Financial
Indebtedness where the principal amount or the committed amount of the
Financial Indebtedness secured is £50,000,000 or more and that Financial
Indebtedness has a scheduled final maturity date falling on or after 31st
March, 2006.


 


(b)                                 Without
prejudice to paragraph (a) above, if any member of the Group intends to create
or permits to subsist any Security Interest on any of its assets contrary to
paragraph (a) above, the Company shall ensure, by no later than the date upon
which that Security Interest is granted, that:


 


(i)                                     the relevant member of the Group executes
such security and intercreditor documentation as the Agent may require to
ensure that all the obligations under the Finance Documents shall be secured
upon the same assets, ranking at least pari
passu with the other obligations secured on those assets; or


 


(ii)                                  at the request of the Company, such other
security and intercreditor documentation in respect of any other assets of the
Group as the Agent shall agree.


 


19.21                 Equal Treatment


 


(a)                                  The
Company shall ensure that no other creditor of an Obligor has the benefit of
any guarantee, preference, financial reporting requirements, representation,
warranty, covenant or event of default (howsoever described) under any document
relating to Financial Indebtedness entered into after the date of this
Agreement to which it is a party unless this Agreement is amended so that the
relevant terms of this Agreement are at least as restrictive and extensive as
those other covenants and/or provisions.


 


(b)                                 Paragraph (a) above does not apply to any
covenants and/or provisions relating to any Hedging Arrangement.


 


19.22                 Executive Order
13224


 


The Company shall ensure
that no member of the Group will become a person or entity described by Section
1 of Executive Order 13224 of 23rd September, 2001 Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism, Exec. Order No. 13224 66  Fed.
Reg. 49,079 (2001), and neither the Company nor any member of the Group will
knowingly become engaged in any dealings or transactions, or be otherwise
associated, with any such persons or entities in violation of such Executive
Order.


 


53

















 


20.                               DEFAULT


 


20.1                        Events of
Default


 


Each of the events set out
in this Clause 20 is an Event of Default (whether or not caused by any reason
whatsoever outside the control of any Obligor or any other person).


 


20.2                        Non-payment


 


An Obligor does not pay on
the due date any amount payable by it under the Finance Documents at the place
at and in the currency in which it is expressed to be payable and (if caused solely
by technical or administrative error) the non-payment continues unremedied for
3 Business Days after notice of non-payment is received from the Agent.


 


20.3                        Breach of
other obligations


 


(a)                                  An
Obligor fails to comply with any provision of Clauses 19.8 (Preferred
Indebtedness), 19.9 (Disposals), 19.10 (Financial covenants), 19.11 (Mergers
and Acquisitions) or 19.19 (Dividends).


 


(b)                                 An
Obligor does not comply with any provision of the Finance Documents (other than
those referred to in Clause 20.2 (Non-payment) or paragraph (a) above) and, if
that default is capable of remedy, it is not remedied within 20 days of the
earlier of the relevant Obligor becoming aware of the default and receipt by it
of a notice of default from the Agent.


 


20.4                        Misrepresentation


 


A representation or warranty
made or repeated in any Finance Document or in any document delivered by or on
behalf of any Obligor under or in connection with any Finance Document is
incorrect in any material respect when made or deemed to be made or repeated by
reference to the facts and circumstances then subsisting.


 


20.5                        Cross-default


 


(a)                                  Any Financial Indebtedness of a member of the
Group is not paid when due or within any originally applicable grace period; or


 


(b)                                 an event of default howsoever described
occurs under any document relating to Financial Indebtedness of a member of the
Group; or


 


(c)                                  any Financial Indebtedness of a member of the
Group becomes prematurely due and payable or is placed on demand as a result of
an event of default (howsoever described) under the document relating to that
Financial Indebtedness; or


 


(d)                                 any commitment for, or underwriting of, any
Financial Indebtedness of a member of the Group is cancelled or suspended as a
result of an event of default (howsoever described) under the document relating
to that Financial Indebtedness; or


 


(e)                                  any Security Interest securing Financial
Indebtedness over any asset of a member of the Group becomes enforceable,


 


unless, in any such case or
cases the aggregate amount of all such Financial Indebtedness is less than the
threshold amount (or its equivalent in other currencies). For the purposes of
this Clause 20.5 threshold amount
means the lesser of £10,000,000 or US$15,000,000.


 


54

















 


20.6                        Insolvency


 


(a)                                  An
Obligor or a Material Subsidiary is, or is deemed for the purposes of any law
to be, unable to pay its debts as they fall due or to be insolvent, or admits
inability to pay its debts as they fall due; or


 


(b)                                 an
Obligor or a Material Subsidiary suspends making payments on all or any class
of its debts or announces an intention to do so, or a moratorium is declared in
respect of all or any class of its indebtedness; or


 


(c)                                  an
Obligor or a Material Subsidiary by reason of financial difficulties, begins
negotiations with one or more of its creditors with a view to the readjustment
or rescheduling of all or any class of its indebtedness.


 


20.7                        Insolvency
proceedings


 


Except
as required for a Permitted Reorganisation:


 


(a)                                  any step (including petition, proposal or
convening a meeting) is taken
with a view to a moratorium or composition, assignment or arrangement with any
creditors of an Obligor or  a
Material Subsidiary; or


 


(b)                                 a meeting of the shareholders, directors or
other officers of an Obligor Subsidiary is convened for the purpose of
considering any resolution for, to petition for or to file documents with a
court for its winding-up or its administration or any such resolution is
passed; or


 


(c)                                  any person presents a petition or files documents
with a court for the winding-up or for the administration of an Obligor or a
Material Subsidiary, and, in the case of a petition for winding-up presented by
a creditor, it is not withdrawn, discharged or stayed within 30 days; or


 


(d)                                 any order is made for the winding-up,
administration or dissolution of an Obligor of a Material Subsidiary; or


 


(e)                                  any other step (including petition, proposal
or convening a meeting) is taken with a view to the rehabilitation,
administration, custodianship, liquidation, winding-up or dissolution of or any
other insolvency proceedings involving an Obligor or a Material Subsidiary,
and, in the case of any such step taken by a creditor, it is not withdrawn,
discharged or stayed within 30 days.


 


20.8                        Appointment
of receivers and managers


 


(a)                                  Any
liquidator, trustee in bankruptcy, judicial custodian, compulsory manager,
receiver, administrative receiver, administrator or the like is appointed in
respect of an Obligor or a Material Subsidiary or any part of its assets; or


 


(b)                                 the directors, shareholders or other officers
of an Obligor or a Material Subsidiary request the appointment of a liquidator,
trustee in bankruptcy, judicial custodian, compulsory manager, receiver, or
give notice of their intention to appoint an administrative receiver,
administrator or the like; or


 


(c)                                  any other step is taken to enforce any
security over any part of the assets of an Obligor or a Material Subsidiary and
is not withdrawn, discharged or stayed within 30 days.


 


55

















 


20.9                        Creditors’
process


 


Any attachment,
sequestration, distress or execution affects any assets of an Obligor or a
Material Subsidiary having an aggregate value of £1,000,000 (or its equivalent
in other currencies) and is not discharged within 30 days.


 


20.10                 U.S. Obligor or
U.S. Material Subsidiary Insolvency events of default


 


(a)                                  Any
case shall be instituted by or against any U.S. Obligor or U.S. Material
Subsidiary under the United States Bankruptcy Code of 1978 or any other United
States Federal or State bankruptcy insolvency or similar law for the release of
debtors and, in the case of any such case instituted against it (but not
instituted by it), either:


 


(i)                                     the case shall remain undismissed or unstayed
for a period of 60 days; or


 


(ii)                                  any of the actions sought in the case
(including, without limitation, the entry of an order for  relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or any
substantial part of its assets) shall occur; or


 


(b)                                 any U.S. Obligor or U.S. Material Subsidiary
shall take any corporate action to authorise any of the actions set out above
in this Clause; or


 


(c)                                  any U.S. Obligor or U.S. Material Subsidiary
is unable to pay its debts generally as they fall due or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment
for  the benefit of creditors.


 


20.11                 Analogous
proceedings


 


There occurs, in relation to
an Obligor or a Material Subsidiary, any event anywhere which, in the opinion
of the Majority Banks, appears to correspond with any of those mentioned in
Clauses 20.6 (Insolvency) to 20.10 (U.S. Obligor or U.S. Material Subsidiary
insolvency events of default) (inclusive).


 


20.12                 Unlawfulness


 


It is or becomes unlawful
for any Obligor to perform any of its obligations under the Finance Documents.


 


20.13                 Cessation of business


 


Any Obligor or Material
Subsidiary ceases to carry on business unless the business is transferred to
any other member of the Group.


 


20.14                 Effectiveness of
guarantee


 


The guarantee of a Guarantor
is ineffective or is alleged by any Obligor to be ineffective, for any reason.


 


20.15                 Material adverse
change


 


Any event or series of
events occurs which, in the reasonable opinion of the Majority Banks, has or is
reasonably likely to have a Material Adverse Effect.


 


56

















 


20.16                 Acceleration


 


On and at any time after the occurrence of an Event of
Default which is continuing the Agent may, and shall if so directed by  the Majority Banks, by notice to the
Company:


 


(a)                                  cancel
the Total Commitments; and/or


 


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


 


(c)                                  demand
that all or part of the Loans be payable on demand, whereupon they shall
immediately become payable on demand by the Agent (acting on the instructions
of the Majority Banks).


 


21.                               THE AGENT AND THE ARRANGERS


 


21.1                        Appointment
and duties of the Agent


 


(a)                                  Each
Finance Party (other than the Agent) irrevocably appoints the Agent to act as
its agent under and in connection with the Finance Documents.


 


(b)                                 Each
Party appointing the Agent irrevocably authorises the Agent on its behalf to:


 


(i)                                     perform
the duties and to exercise the rights, powers and discretions that are
specifically delegated to it under or in connection with the Finance Documents,
together with any other incidental rights, powers and discretions; and


 


(ii)                                  execute each Finance Document expressed to be
executed by the Agent on that Party’s behalf.


 


(c)                                  The
Agent has only those duties which are expressly specified in the Finance
Documents. Those duties are solely of a mechanical and administrative nature.


 


21.2                        Role of
the Arrangers


 


Except as specifically provided in the Finance
Documents, no Arranger has any obligations of any kind to any other Party under
or in connection with any Finance Document.


 


21.3                        Relationship


 


The relationship between the
Agent and the other Finance Parties is that of agent and principal only. Except
as contemplated by the Finance Documents, nothing in this Agreement constitutes
the Agent as trustee or fiduciary for any other Party or any other person and
the Agent need not hold in trust any moneys paid to it for a Party or be liable
to account for interest on those moneys.


 


21.4                        Majority
Banks’ instructions


 


(a)                                  The
Agent will be fully protected if it acts in accordance with the instructions of
the Majority Banks in connection with the exercise of any right, power or
discretion or any matter not expressly provided for in the Finance Documents.
Any such instructions given by the Majority Banks will be binding on all the
Banks. In the absence of such instructions, the Agent may act as it considers
to be in the best interests of all the Banks.


 


57

















 


(b)                                 The Agent is not authorised to act on behalf
of a Bank (without first obtaining that Bank’s consent) in any legal or
arbitration proceedings relating to any Finance Document.


 


21.5                        Delegation


 


The Agent may act under the Finance Documents through
its personnel and agents. 


 


21.6                        Responsibility
for documentation


 


Neither the Agent nor any Arranger is responsible to
any other Party for:


 


(a)                                  the execution, genuineness, validity,
enforceability or sufficiency of any Finance Document or any other document;


 


(b)                                  the collectability of amounts payable under
any Finance Document; or


 


(c)                                  the
accuracy of any statements (whether written or oral) made in or in connection
with any Finance Document (including, without limitation, the Information
Memorandum).


 


21.7                        Default


 


(a)                                  The
Agent is not obliged to monitor or enquire as to whether or not a Default has
occurred. The Agent will not be deemed to have knowledge of the occurrence of a
Default. However, if the Agent receives notice from a Party referring to this
Agreement, describing the Default and stating that the event is a Default, it
shall promptly notify the Banks.


 


(b)                                 The Agent may require the receipt of security
satisfactory to it, whether by  way
of payment in advance or otherwise, against any liability or loss which it will
or may incur in taking any proceedings or action arising out of or in
connection with any Finance Document before it commences those proceedings or
takes that action.


 


21.8                        Exoneration


 


(a)                                  Without limiting paragraph (b) below, the
Agent will not be liable to any other Finance Party for any action taken or not
taken by it under or in connection with any Finance Document, unless directly
caused by its gross negligence or wilful misconduct.


 


(b)                                 No
Party may take any proceedings against any officer, employee or agent of the
Agent in respect of any claim it might have against the Agent or in respect of
any act or omission of any kind (including gross negligence or wilful
misconduct) by that officer, employee or agent in relation to any Finance
Document.


 


21.9                        Reliance


 


The Agent may:


 


(a)                                  rely
on any notice or document believed by it to be genuine and correct and to have
been signed by, or with the authority of, the proper person;


 


(b)                                 rely
on any statement made by a director or employee of any person regarding any
matters which may reasonably be assumed to be within his knowledge or within
his power to verify; and


 


58

















 


(c)                                  engage, pay for and rely on legal or other
professional advisers selected by it (including those in the Agent’s employment
and those representing a Party other than the Agent).


 


21.10                 Credit approval
and appraisal


 


Without affecting the
responsibility of any Obligor for information supplied by it or on its behalf
in connection with any Finance Document, each Bank confirms that it:


 


(a)                                  has
made its own independent investigation and assessment of the financial
condition and affairs of each Obligor and its related entities in connection
with its participation in this Agreement and has not relied exclusively on any
information provided to it by the Agent or any Arranger in connection with any
Finance Document; and


 


(b)                                 will
continue to make its own independent appraisal of the creditworthiness of each
Obligor and its related entities while any amount is or may be outstanding
under the Finance Documents or any Commitment is in force.


 


21.11                 Information


 


(a)                                  The Agent shall promptly forward to the
person concerned the original or a copy of any document which is delivered to
the Agent by a Party for that person.


 


(b)                                 The Agent shall promptly supply a Bank with a
copy of each document received by the Agent under Clauses 4 (Conditions
Precedent), 28.5 (Additional Borrowers) or  28.6
(Additional Guarantors) upon the request and at the expense of that Bank.


 


(c)                                  Except where this Agreement specifically
provides otherwise, the Agent is not obliged to review or check the accuracy or
completeness of any document it forwards to another Party.


 


(d)                                 Except as provided above, the Agent has no
duty:


 


(i)                                     either
initially or on a continuing basis to provide any Bank with any credit or other
information concerning the financial condition or affairs of any Obligor or any
related entity of any Obligor whether coming into its possession before, on or
after the date of this Agreement; or


 


(ii)                                  unless specifically requested to do so by a
Bank in accordance with a Finance Document, to request any certificates or
other documents from any Obligor.


 


21.12                 The Agent and the
Arrangers individually


 


(a)                                  If
it is also a Bank, the Agent and each Arranger has the same rights and powers
under this Agreement as any other Bank and may exercise those rights and powers
as though it were not the Agent or an Arranger.


 


(b)                                 The
Agent and each Arranger may:


 


(i)                                     carry
on any business with an Obligor or its related entities;


 


(ii)                                  act as agent or trustee for, or in relation
to any financing involving, an Obligor or its related entities; and


 


59

















 


(iii)                               retain
any profits or remuneration in connection with its activities under this
Agreement or in relation to any of the foregoing.


 


(c)                                  If
it is also a Bank, any reference in the Finance Documents to the Agent means
the agency department of the Agent specifically responsible for acting as Agent
under and in connection with the Finance Documents, as referred to in Clause 34
(Notices). In acting as Agent, the agency department will be treated as a
separate entity from any other department or division of the Bank concerned.
Without limiting the above, the Agent will not be deemed to have notice of a
document, information, fact, matter or thing in the possession or knowledge of
any other department or division of that Bank.


 


(d)                                 Each
Obligor irrevocably authorises the Agent to disclose to the other Finance
Parties any information which, in the opinion of the Agent, is received by it
in its capacity as the Agent.


 


(e)                                  The
Agent may deduct from any amount received by it for the Banks pro rata any
unpaid fees, costs and expenses of the Agent incurred by it in connection with
the Finance Documents.


 


21.13                 Indemnities


 


(a)                                  Without
limiting the liability of any Obligor under the Finance Documents, each Bank
shall forthwith on demand indemnify the Agent for that Bank’s proportion of any
liability or loss incurred by the Agent in any way relating to or arising out
of its acting as the Agent, except to the extent that the liability or loss
arises directly from the Agent’s gross negligence or wilful misconduct.


 


(b)                                 A
Bank’s proportion of the liability or loss set out in paragraph (a) above will
be the proportion which its participation in the Loans (if any) bears to the
Original Sterling Amount of all the Loans on the date of the demand. However,
if there is no Loan outstanding on the date of demand, then the proportion will
be the proportion which its Commitments bears to the Total Commitments at the
date of demand or, if the Total Commitments have then been cancelled, bore to
the Total Commitments immediately before being cancelled.


 


21.14                 Compliance


 


(a)                                  The
Agent may refrain from doing anything which might, in its opinion, constitute a
breach of any law or regulation or be otherwise actionable at the suit of any
person, and may do anything which, in its opinion, is necessary or desirable to
comply with any law or regulation of any jurisdiction.


 


(b)                                 Without
limiting paragraph (a) above, the Agent need not disclose any information
relating to any Obligor or any of its related entities if the disclosure might,
in the opinion of the Agent, constitute a breach of any law or regulation or
any duty of secrecy or confidentiality or be otherwise actionable at the suit
of any person.


 


21.15                 Resignation of
the Agent


 


(a)                                  Notwithstanding
its irrevocable appointment, the Agent may resign by giving notice to the Banks
and the Company, in which case the Agent may forthwith appoint one of its
Affiliates as successor Agent or, failing that, the Majority Banks may (with
the prior consent of the Company) appoint a successor Agent.


 


(b)                                 If
the appointment of a successor Agent is to be made by the Majority Banks but
they have not, within 30 days after notice of resignation, appointed a
successor Agent which accepts the


 


60

















 


appointment, the Agent may
(with the prior consent of the Company) appoint a successor Agent.


 


(c)                                  The
resignation of the Agent and the appointment of any successor Agent will both
become effective only upon the successor Agent notifying all the Parties that
it accepts its appointment. On giving the notification, the successor Agent
will succeed to the position of the Agent and the term Agent will mean the
successor Agent.


 


(d)                                 The
retiring Agent shall, at its own cost, make available to the successor Agent
such documents and records and provide such assistance as the successor Agent
may reasonably request for the purposes of performing its functions as the
Agent under this Agreement.


 


(e)                                  Upon
its resignation becoming effective, this Clause 21 shall continue to benefit
the retiring Agent in respect of any action taken or not taken by it under or
in connection with the Finance Documents while it was the Agent, and, subject
to paragraph (d) above, it shall have no further obligations under any Finance
Document.


 


(f)                                    The
Majority Banks may, by notice to the Agent, require it to resign in accordance
with paragraph (a) above. In this event, the Agent shall resign in accordance
with paragraph (a) above but it shall not be entitled to appoint one of its
Affiliates as successor Agent.


 


21.16                 Banks


 


(a)                                  The
Agent may treat each Bank as a Bank, entitled to payments under this Agreement
and as acting through its Facility Office(s) until it has received not less
than 5 Business Days’ prior notice from that Bank to the contrary.


 


(b)                                 The
Agent may at any time, and shall if requested to do so by the Company or the
Majority Banks, convene a meeting of the Banks.


 


22.                               FEES


 


22.1                        Arrangement
fee


 


Subject to Clause 22.5
(Joint and several liability), the Borrowers shall pay to the Agent for the
account of Arrangers an arrangement fee in the amounts and on the dates agreed
in the Fee Letter between the Company and the Arrangers.


 


22.2                        Agent’s
fee


 


Subject to Clause 22.5 (Joint and several liability),
the Borrowers shall pay to the Agent for its own account an agency fee in the
amount and on the dates agreed in the Fee Letter between the Agent and the
Company.


 


22.3                        Commitment
fee


 


(a)                                  Subject
to Clause 22.5 (Joint and several liability), the Borrowers shall during the
Commitment Period pay to the Agent for each Bank a commitment fee computed at
the rate of 0.75 per cent. per annum on the undrawn, uncancelled amount of that
Bank’s Commitment.


 


(b)                                 For
the purpose of calculating commitment fee, Loans are taken at their Original
Sterling Amount.


 


61

















 


(c)                                  Accrued commitment fee is payable quarterly
in arrear up to (and including) the Effective Date with a payment of that
accrued commitment fee being payable on the Effective Date. From the Effective
Date, accrued commitment fee is payable quarterly in arrear, with the first
payment being payable three months after the Effective Date. Accrued commitment
fee shall also be payable to the Agent for the relevant Bank on the cancelled
amount of its Commitment at the time the cancellation comes into effect.
Accrued commitment fee is payable in Sterling.


 


22.4                        VAT


 


Any fee referred to in this
Clause 22 is exclusive of any value added tax or any other tax which might be
chargeable in connection with that fee. If any value added tax or other tax is
so chargeable, it shall be paid by the Borrowers at the same time as it pays
the relevant fee.


 


22.5                        Joint and
several liability


 


(a)                                  The
obligations of the Borrowers under this Clause 22 are joint and several
obligations of each Borrower.


 


(b)                                 The obligations of each Borrower under this
Clause 22 shall not be affected by any release of any Obligor or any other
person under the terms of any composition or arrangement with any creditor of
any Obligor.


 


(c)                                  Failure of any Borrower to carry out its
obligations under this Clause 22 does not relieve any other Borrower of its
obligations under this Clause 22.


 


23.                               EXPENSES


 


23.1                        Initial
and special costs


 


The Company shall within 5
Business Days of demand pay the Arrangers the amount of all reasonable costs
and expenses (including legal fees to any limit agreed in the Mandate Letter,
and any applicable value added tax) incurred by them in connection with:


 


(a)                                  the
negotiation, preparation, printing and execution of:


 


(i)                                     this
Agreement and any other documents referred to in this Agreement;


 


(ii)                                  any
other Finance Document (other than a Novation Certificate) executed after the date
of this Agreement; and


 


(iii)                               the arrangement and syndication of the
Facility; and


 


(b)                                 any amendments, waiver, consent or suspension
of rights (or any proposal for any of the foregoing) requested by or on behalf
of an Obligor or, in the case of Clause 27.2 (Change of currency) the Agent,
and relating to a Finance Document or a document referred to in a Finance
Document.


 


23.2                        Enforcement
costs


 


The Company shall forthwith
on demand pay to each Finance Party the amount of all costs and expenses
(including legal fees and any applicable value added tax) incurred by it in
connection with the enforcement of, or the preservation of any rights under,
any Finance Document.


 


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24.                              STAMP DUTIES


 


The Company shall pay and
within 5 Business Days of demand indemnify each Finance Party against any
liability it incurs in respect of any stamp, registration and similar tax which
is or becomes payable in connection with the entry into, performance or
enforcement of any Finance Document (other than the entry into of a Novation
Certificate), including any liability which results from any failure to pay or
any delay in paying such tax.


 


25.                               INDEMNITIES  


 


25.1                        Currency
indemnity


 


(a)                                  If
a Finance Party receives an amount in respect of an Obligor’s liability under
the Finance Documents or if that liability is converted into a claim, proof,
judgment or order in a currency other than the currency (the contractual currency) in which the amount
is expressed to be payable under the relevant Finance Document:


 


(i)                                     that
Obligor shall indemnify that Finance Party as an independent obligation against
any loss or liability arising out of or as a result of the conversion;


 


(ii)                                  if
the amount received by that Finance Party, when converted into the contractual
currency at a market rate in the usual course of its business is less than the
amount owed in the contractual currency, the Obligor concerned shall forthwith
on demand pay to that Finance Party an amount in the contractual currency equal
to the deficit; and


 


(iii)                               the
Obligor shall forthwith on demand pay to the Finance Party concerned any
exchange costs and taxes payable in connection with any such conversion.


 


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


 


25.2                        Other
indemnities


 


The Company shall indemnify
each Finance Party against any loss or liability which that Finance Party
incurs as a consequence of:


 


(a)                                  the occurrence of any Event of Default;


 


(b)                                 the operation of Clause 20.16 (Acceleration);


 


(c)                                  a Loan (or part of a Loan) not being prepaid
in accordance with a notice of prepayment or (other than by reason of
negligence or default by any Finance Party) a Loan not being made after the
Borrower has delivered a Request; or


 


(d)                                 any payment of principal or an overdue amount
being received from any source otherwise than on the last day of a relevant
Interest Period or Designated Interest Period (as defined in Clause 9.3
(Default interest)) relative to the amount so received.


 


The
Company’s liability in each case includes any loss (other than loss of margin)
or expense on account of funds borrowed, contracted for or utilised to fund any
amount payable under any Finance Document, any amount repaid or prepaid or any
Loan.


 


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26.                               EVIDENCE AND CALCULATIONS


 


26.1                        Accounts


 


Accounts maintained by a
Finance Party in connection with this Agreement are prima facie evidence of the
matters to which they relate.


 


26.2                        Certificates
and determinations


 


Any certification or
determination by a Finance Party of a rate or amount under the Finance
Documents is prima facie evidence of the matters to which it relates.


 


26.3                        Calculations


 


Interest and the fee payable under Clause 22.3
(Commitment fee) accrue from day to day and are calculated on the basis of the
actual number of days elapsed and a year of 365 days, or, in the case of
interest payable on an amount denominated in an Optional Currency or unless
market practice otherwise dictates, 360 days.


 


27.                               AMENDMENTS AND WAIVERS


 


27.1                        Procedure


 


(a)                                  Subject
to Clause 27.3 (Exceptions), any term of the Finance Documents may be amended
or waived with the agreement of the Company and the Majority Banks. The Agent
may effect, on behalf of any Finance Party, an amendment or waiver permitted
under this Clause.


 


(b)                                 The Agent shall promptly notify the other
Parties of any amendment or waiver effected under paragraph (a) above, and any
such amendment or waiver shall be binding on all the Parties.


 


27.2                        Change of
currency


 


Notwithstanding Clause 27.1 (Procedure) if a change in
any currency of a country occurs, this Agreement will be amended to the extent
the Agent determines is necessary to reflect the change in currency and to put
each Finance Party in the same position, so far as possible, that it would have been in if no change in
currency had occurred.


 


27.3                        Exceptions


 


(a)                                  An
amendment or waiver which relates to:


 


(i)                                     the
definition of Majority Banks in
Clause 1.1 (Definitions);


 


(ii)                                  an
extension of the date (including the Final Maturity Date) for, or a decrease in
an amount or (subject to Clause 27.2 (Change of currency)) a change in the
currency of, any payment to that Bank under the Finance Documents (including
the Margin and any fee payable under Clause 22.3 (Commitment fee));


 


(iii)                               an
increase in a Bank’s Commitment;


 


(iv)                              the
incorporation of additional borrowers otherwise than in accordance with Clause  28.5 (Additional Borrowers).


 


64

















 


(v)                                 a term of a Finance Document which expressly
requires the consent of all the Banks; or


 


(vi)                              Clause 2.2 
(Nature of a Finance Party’s rights and obligations), Clause 28.2
(Transfers by Banks), Clause 31 (Pro rata sharing) or this Clause 27,


 


may
not be effected without the agreement of all the Banks.


 


(b)                                 An
amendment or waiver which relates to the rights and/or obligations of the Agent
may not be effected without the agreement of the Agent.


 


27.4                        Waivers
and remedies cumulative


 


The rights of each Party under the Finance Documents:


 


(a)                                  may
be exercised as often as necessary;


 


(b)                                 re
cumulative and not exclusive of its rights under the general law; and


 


(c)                                  may
be waived only in writing and specifically.


 


Delay in exercising or non-exercise of any such right
is not a waiver of that right.


 


28.                               CHANGES TO THE PARTIES  


 


28.1                        Transfers
by Obligors


 


(a)                                  Subject
to paragraph (b) below, no Obligor may assign, transfer, novate or dispose of
any of, or any interest in, its rights and/or obligations under the Finance
Documents;


 


(b)                                 If
no Default is outstanding at that time, a Borrower (the Existing Borrower) may transfer all or any
part of its obligations under the Finance Documents to any other Borrower (the New Borrower) and the New Borrower may
enter into such documentation as the Agent may reasonably require to effect the
transfer.


 


28.2                        Transfers
by  Banks


 


(a)                                  A
Bank (the Existing Bank) may,
subject to paragraph (b) below, at any time assign, transfer or novate any of
its Commitments and/or any of its rights and/or obligations under this
Agreement to another bank or financial institution which is a Qualifying Bank
(the New Bank).


 


(b)                                 (i)                                     A
transfer of part of a Commitment must be in a minimum amount of at least £5,000,000 (or its equivalent in any other
currency).


 


(ii)                                  The
prior consent of the Company is required for any assignment, transfer or
novation under paragraph (a) above unless the New Bank is another Bank or an
Affiliate of a Bank or an Event of Default is outstanding. However, this
consent must not be unreasonably withheld or delayed and will be deemed to have
been given if it is not refused by the Company within 10 Business Days of
receipt of a request for it.


 


(iii)                               A
Bank may only assign, transfer or novate part of one of its Commitments if it
assigns, transfers or novates at the same time a pro rata proportion of its
other Commitments.


 


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(iv)                              The
prior consent of the Company is required if the New Bank is a U.K. Treaty Bank.


 


(v)                                 A
Bank will still be treated as a Qualifying Bank if it takes advantage of Clause
2.4 (Affiliates of Banks) to satisfy the requirements of this Clause so long as
the branch or Affiliate under Clause 2.4 (Affiliates of Banks) is a Qualifying
Bank.


 


(c)                                  A
transfer of obligations will be effective only if either:


 


(i)                                     the
obligations are novated in accordance with Clause 28.3  (Procedure for novations); or


 


(ii)                                  the
New Bank confirms to the Agent and the Company that it undertakes to be bound
by the terms of this Agreement as a Bank in form and substance satisfactory to
the Agent. On the transfer becoming effective in this manner the Existing Bank
shall be relieved of its obligations under this Agreement to the extent that
they are transferred to the New Bank.


 


(d)                                 Nothing
in this Agreement restricts the ability of a Bank to sub-contract an obligation
to a person if that Bank remains liable under this Agreement for that
obligation.


 


(e)                                  On
each occasion an Existing Bank assigns, transfers or novates any of its
Commitments and/or any of its rights and/or obligations under this Agreement,
the New Bank shall, on the date the assignment, transfer and/or novation takes
effect, pay to the Agent for its own account a fee of £1,000.


 


(f)                                    An
Existing Bank is not responsible to a New Bank for:


 


(i)                                     the
execution, genuineness, validity, enforceability or sufficiency of any Finance
Document or any other document;


 


(ii)                                  the
collectability of amounts payable under any Finance Document; or


 


(iii)                               the
accuracy of any statements (whether written or oral) made in or in connection
with any Finance Document.


 


(g)                                 Each
New Bank confirms to the Existing Bank and the other Finance Parties that it:


 


(i)                                     has
made its own independent investigation and assessment of the financial
condition and affairs of each Obligor and its related entities in connection
with its participation in this Agreement and has not relied exclusively on any
information provided to it by the Existing Bank in connection with any Finance
Document; and


 


(ii)                                  will
continue to make its own independent appraisal of the creditworthiness of each
Obligor and its related entities while any amount is or may be outstanding
under this Agreement or any Commitment is in force.


 


(h)                                 Nothing
in any Finance Document obliges an Existing Bank to:


 


(i)                                     accept
a re-transfer from a New Bank of any of the rights and/or obligations assigned,
transferred or novated under this Clause; or


 


(ii)                                  support
any losses incurred by the New Bank by reason of the non-performance by any
Borrower of its obligations under this Agreement or otherwise.


 


66

















 


(i)                                     Any
reference in this Agreement to a Bank includes a New Bank but excludes a Bank
if no amount is or may be owed to or by it under this Agreement and its
Commitments have been cancelled or reduced to nil.


 


28.3                        Procedure
for novations


 


(a)                                  A
novation is effected if the Existing Bank and the New Bank deliver to the Agent
a duly completed certificate, substantially in the form of Part 1 of Schedule 5
(a Novation Certificate) and the
Agent executes it.


 


(b)                                 Each Party (other than the Existing Bank and
the New Bank) irrevocably authorises the Agent to execute any duly completed
Novation Certificate on its behalf.


 


(c)                                  To the extent that they are expressed to be
the subject of the novation in the Novation Certificate:


 


(i)                                     the
Existing Bank and the other Parties (the existing
Parties) will be released from their obligations to each other (the discharged obligations);


 


(ii)                                  the
New Bank and the existing Parties will assume obligations towards each other
which differ from the discharged obligations only insofar as they are owed to
or assumed by the New Bank instead of the Existing Bank;


 


(iii)                               the
rights of the Existing Bank against the existing Parties and vice versa (the discharged rights) will be cancelled; and


 


(iv)                              the
New Bank and the existing Parties will acquire rights against each other which
differ from the discharged rights only insofar as they are exercisable by or against
the New Bank instead of the Existing Bank,


 


all on the date of execution of the Novation
Certificate by the Agent or, if later, the date specified in the Novation
Certificate.


 


28.4                        Increased
costs or changes to the Facility Office


 


If:


 


(i)                                     a Bank assigns, transfers or novates any of
its Commitments and/or rights and/or obligations under the Finance Documents or
changes its Facility Office without the prior consent of the Company; and


 


(ii)                                  as a result of circumstances existing at the
date the assignment, transfer, novation or change occurs, an Obligor would be
obliged to make a payment to the New Bank or Bank acting through its new
Facility Office under Clause 13 (Taxes) or Clause 15 (Increased costs) or
Clause 16 (Illegality),


 


then, notwithstanding the provisions of Clause 13
(Taxes), 15 (Increased costs) or 16 (Illegality), the relevant New Bank or Bank
acting through its new Facility Office is only entitled to receive payment
under those Clauses from an Obligor in respect of those circumstances to the
same extent as the relevant Existing Bank or Bank acting through its previous
Facility Office would have been if the assignment, transfer, novation or change
had not occurred.


 


67

















 


28.5                        Additional
Borrowers


 


(a)                                  If
the Company wishes one of its wholly-owned Subsidiaries to become an Additional
Borrower, then it may, with the prior consent of the Banks (except that no
consent is required in respect of Bowthorpe International Inc., Bowthorpe
Holdings Corporation or Bowthorpe B.V.), deliver to the Agent a Borrower
Accession Agreement.


 


(b)                                 On delivery of a Borrower Accession
Agreement, executed by the relevant Subsidiary and the Company, the Subsidiary
concerned will become an Additional Borrower. However it may not submit a
Request until the Agent confirms to the other Finance Parties that it has
received all the documents listed in Part 2 of Schedule 2.


 


(c)                                  Delivery of a Borrower Accession Agreement,
executed by the relevant Subsidiary and the Company, constitutes confirmation
by that Subsidiary and the Company that the representations and warranties set
out in Clause 18 (Representations and warranties) deemed to be made on that
date are correct on the date of the Borrower Accession Agreement, as if made by
them with reference to the facts and circumstances then existing.


 


(d)                                 For the purpose of this Clause, a Subsidiary
will be regarded as wholly-owned if a portion of the share capital is required
to be held by law by officers of that Subsidiary.


 


28.6                        Additional
Guarantors


 


(a)                                  If
a guarantee is given by any member of the Group (which is not already an
Obligor) in favour of any creditor for Financial Indebtedness which exceeds an
amount of £50,000 (except under the Finance Documents or any Hedging Arrangement)
or if a guarantee is required under Clause 19.8(b) (Preferred Indebtedness),
then the Company shall promptly following the giving of that guarantee deliver
to the Agent the documents listed in Part 4 of Schedule 2 in respect of that
member of the Group.


 


(b)                                 If the Company wishes one of its wholly-owned
Subsidiaries to become an Additional Guarantor, then it may (with the prior
agreement of the Agent acting on instructions of the Majority Banks) deliver to
the Agent the documents listed in Part 4 of Schedule 2.


 


(c)                                  On delivery of a Guarantor Accession
Agreement, executed by the relevant Subsidiary and the Company, the Subsidiary
concerned will become an Additional Guarantor.


 


(d)                                 Delivery of a Guarantor Accession Agreement,
executed by the relevant Subsidiary and the Company, constitutes confirmation
by that Subsidiary and the Company that the representations and warranties set
out in Clause 18 (Representations and warranties) deemed to be made on that
date are correct on the date of the Guarantor Accession Agreement, as if made
by them with reference to the facts and circumstances then existing.


 


(e)                                  For the purpose of this Clause, a Subsidiary
will be regarded as wholly-owned if a portion of the share capital is required
to be held by law by officers of that Subsidiary.


 


28.7                        Removal of
Obligors


 


(a)                                  At any time any Obligor (other than the
Company) which is not a Material Subsidiary and which is not a guarantor of
other Financial Indebtedness of any member of the Group may by notice to the
Agent (countersigned by two authorised signatories of the Company) request that
it ceases to be an Obligor.


 


(b)                                 If:


 


68

















 


(i)                                     no
Default is outstanding at that time or is likely to result from that Obligor
ceasing to be an Obligor; and


 


(ii)                                  in
the case of any Borrower, it has no outstanding obligations under the Finance
Documents (except under Clause 22  (Fees)),


 


that
Obligor shall cease to be an Obligor.


 


28.8                        Reference
Banks


 


If a Reference Bank (or, if a Reference Bank is not a
Bank, the Bank of which it is an Affiliate) ceases to be a Bank, the Agent
shall (in consultation with the Company) appoint another Bank or an Affiliate
of a Bank to replace that Reference Bank.


 


28.9                        Register


 


The Agent shall keep a register of all the Parties and
shall supply any other Party (at that Party’s expense) with a copy of the
register on request.


 


29.                               DISCLOSURE OF INFORMATION


 


(a)                                  A
Bank may disclose to one of its Affiliates or any person with whom it is
proposing to enter, or has entered into, any kind of transfer, participation or
other agreement in relation to this Agreement:


 


(i)                                     a copy of any Finance Document; and


 


(ii)                                  any information which that Bank has acquired
under or in connection with any Finance Document,


 


but only if the recipient of the information has
agreed to keep that information confidential on the terms of paragraph (b)
below.


 


(b)                                 Each
Finance Party shall keep confidential and shall not, without the prior consent
of the Company, use any information (other than information which is publicly
available other than as a result of a breach by that Finance Party of this
paragraph(b)) supplied by or on behalf of any Obligor under or in connection
with the Finance Documents otherwise than in connection with the Finance Documents.
However, the restriction set out in this paragraph (b) shall not apply to, and
each Finance Party shall be entitled to disclose, information:


 


(i)                                     in
connection with any legal proceedings arising out of or in connection with a
Finance Document; or


 


(ii)                                  if
required to do so by an order of a court of competent jurisdiction whether
under any procedure for discovering documents or otherwise; or


 


(iii)                               pursuant to any law or regulation in
accordance with which that Finance Party is required or accustomed to act; or


 


(iv)                              to a
governmental, banking, taxation or other regulatory authority of any competent
jurisdiction; or


 


(v)                                 to
its accountants or legal or other professional advisers.


 


69

















 


30.                               SET-OFF


 


A Finance Party mayset off any matured obligation owed by an Obligor under the Finance
Documents (to the extent beneficially owned by that Finance Party) against any
obligation (whether or not matured) owed by that Finance Party  to that Obligor, regardless of the place
of payment, booking branch or currency of either obligation. If the obligations
are in different currencies, the Finance Party may convert either obligation at
a market rate of exchange in its usual course of business for the purpose of
the set-off. If either obligation is unliquidated or unascertained, the Finance
Party may set off in an amount estimated by it in good faith to be the amount
of that obligation. Any right to set off under this paragraph is not intended
to constitute a Security Interest.


 


31.                               PRO RATA SHARING  


 


31.1                        Redistribution


 


If any amount owing by an Obligor under this Agreement
to a Finance Party (the recovering Finance
Party) is discharged by payment, set-off or any other manner other
than through the Agent in accordance with Clause 12 (Payments) (a recovery), then:


 


(a)                                  the
recovering Finance Party shall, within 3 Business Days, notify details of the
recovery to the Agent;


 


(b)                                 the
Agent shall determine whether the recovery is in excess of the amount which the
recovering Finance Party would have received had the recovery been received by
the Agent and distributed in accordance with Clause 12 (Payments);


 


(c)                                  subject
to Clause 31.3 (Exceptions), the recovering Finance Party shall within  3 Business Days of demand by the Agent pay
to the Agent an amount (the redistribution)
equal to the excess;


 


(d)                                 the
Agent shall treat the redistribution as if it were a payment by the Obligor
concerned under Clause 12 (Payments) and shall pay the redistribution to the
Finance Parties (other than the recovering Finance Party) in accordance with
Clause 12.7 (Partial payments); and


 


(e)                                  after
payment of the full redistribution, the recovering Finance Party will be
subrogated to the portion of the claims paid under paragraph (d) above and that
Obligor will owe the recovering Finance Party a debt which is equal to the
redistribution, immediately payable and of the type originally discharged.


 


31.2                        Reversal
of redistribution


 


If under Clause 31.1 (Redistribution):


 


(a)                                  a
recovering Finance Party must subsequently return a recovery, or an amount
measured by reference to a recovery, to an Obligor; and


 


(b)                                 the
recovering Finance Party has paid a redistribution in relation to that
recovery,


 


each Finance Party shall, within 3 Business Days of
demand by the recovering Finance Party through the Agent, reimburse the
recovering Finance Party all or the appropriate portion of the redistribution
paid to that Finance Party together with interest on the amount to be returned
to the recovering Finance Party for the period whilst it held the
redistribution.


 


70

















 


Thereupon, the subrogation in Clause 31.l(e)
(Redistribution) will operate in reverse to the extent of the reimbursement.


 


31.3                        Exceptions


 


(a)                                  A
recovering Finance Party need not pay a redistribution to the extent that it
would not, after the payment, have a valid claim against the Obligor concerned
in the amount of the redistribution pursuant to Clause 31.l(e)
(Redistribution).


 


(b)                                 A
recovering Finance Party is not obliged to share with any other Finance Party
any amount which the recovering Finance Party has received or recovered as a
result of taking legal proceedings, if the other Finance Party had an
opportunity to participate in those legal proceedings but did not do so or did
not take separate legal proceedings.


 


32.                               SEVERABILITY


 


If a provision of any Finance Document is or becomes
illegal, invalid or unenforceable in any jurisdiction, that shall not affect:


 


(a)                                  the
validity or enforceability in that jurisdiction of any other provision of the
Finance Documents; or


 


(b)                                 the
validity or enforceability in other jurisdictions of that or any other
provision of the Finance Documents.


 


33.                               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.


 


34.                               NOTICES


 


34.1                        Giving of
notices


 


All notices or other communications under or in
connection with this Agreement shall be given in writing and, unless otherwise
stated, may be made by letter or facsimile. Any such notice will be deemed to
be given as follows:


 


(a)                                  if
by letter, when delivered personally or on actual receipt; and


 


(b)                                 if
by facsimile, when received in legible form.


 


However, a notice given in accordance with the above
but received on a non-working day or after business hours in the place of
receipt will only be deemed to be given on the next working day in that place.
Any notice to the Agent by facsimile must be confirmed in writing, but failure
to so confirm in writing will not prejudice the validity of the notice by
facsimile.


 


34.2                        Addresses
for notices


 


(a)                                  The
address and facsimile number of each Party (other than the Company and the
Agent) for all notices under or in connection with the Finance Documents are:


 


71

















 


(i)                                     those
notified by that Party for this purpose to the Agent on or before the date it
becomes a Party; or


 


(ii)                                  any other notified by that Party for this
purpose to the Agent by not less than 5 Business Days’ notice.


 


(b)                                 The
address and facsimile number of the Company are:


 


	
  Spirent House

  
	
  Crawley Business Quarter

  
	
  Fleming Way

  
	
  Crawley

  
	
  West Sussex

  
	
  RHI0 9QL

  
	
   

  	
   

  	
   

  
	
  Facsimile no:

  	
   

  	
  01293 767944

  
	
  For the attention of:

  	
   

  	
  Group Treasurer

  
	
   

  	
   

  	
   

  
	
  or (for all notices in respect of a Default):

  
	
   

  	
   

  	
   

  
	
  Facsimile no:

  	
   

  	
  01293 767929

  
	
  For the attention of:

  	
   

  	
  Company Secretary

  
	
   

  	
   

  	
   

  
	
  or such other as the Company may notify to the Agent
  by not less than 5 Business Days’ notice.

  



 


(c)                                  The
address and facsimile number of the Agent are:


 


Level
17


8
Canada Square


London E14 5HQ


 


	
  Facsimile no:

  	
   

  	
  020 7991 4348

  
	
  For the attention of:

  	
   

  	
  Debt Finance, Support and
  Agency Services

  
	
   

  	
   

  	
   

  
	
  or such other as the Agent may notify to the other
  Parties by not less than 5 Business Days’ notice.

  



 


(d)                                 All
notices from or to an Obligor shall be sent through the Agent.


 


(e)                                  The
Agent shall, promptly upon request from any Party, give to that Party the
address or facsimile number of any other Party applicable at the time for the
purposes of this Clause.


 


(f)                                    Each
Obligor (other than the Company) irrevocably appoints the Company to act as its
agent for the purpose of executing, giving and receiving any document
(including a Finance Document), notice or other communication in connection
with this Agreement.


 


35.                               LANGUAGE


 


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


 


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


 


(i)                                     in
English; or


 


72

















 


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


 


36.                               JURISDICTION


 


36.1                        Submission


 


For the benefit of each
Finance Party, each Obligor agrees that the courts of England have jurisdiction
to settle any disputes in connection with any Finance Document and accordingly
submits to the jurisdiction of the English courts.


 


36.2                        Service of process


 


(a)                                  Without
prejudice to any other mode of service, each Obligor (other than an Obligor
incorporated in England and Wales):


 


(i)                                     irrevocably
appoints the Company as its agent for service of process in relation to any
proceedings before the English courts in connection with any Finance Document;


 


(ii)                                  agrees
that failure by a process agent to notify the relevant Obligor of the process
will not invalidate the proceedings concerned; and


 


(iii)                               consents
to the service of process relating to any such proceedings by prepaid posting
of a copy of the process to its address for the time being applying under
Clause 34.2 (Addresses for notices).


 


36.3                        Forum convenience and
enforcement abroad


 


Each Obligor:


 


(a)                                  waives
objection to the English and New York State and Federal courts on grounds of
inconvenient forum or otherwise as regards proceedings in connection with a
Finance Document; and


 


(b)                                 agrees
that a judgment or order of an English or New York State or Federal court in connection
with a Finance Document is conclusive and binding on it and may be enforced
against it in the courts of any other jurisdiction.


 


36.4                        Non-exclusivity


 


Nothing in this Clause 36 limits the right of a
Finance Party to bring proceedings against an Obligor in connection with any
Finance Document:


 


(a)                                  in
any other court of competent jurisdiction; or


 


(b)                                 concurrently in more than one jurisdiction.


 


37.                               GOVERNING LAW


 


This
Agreement is governed by English law.


 


73

















 


38.                               WAIVER OF JURY TRIAL


 


THE OBLIGORS AND THE FINANCE
PARTIES WAIVE ANY RIGHTS THEY MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED ON OR ARISING FROM ANY FINANCE DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED BY THE FINANCE DOCUMENTS. In the event of litigation, this
Agreement may be filed as a written consent to a trial by the court.


 


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


 


74

















 


SCHEDULE
1


 


BANKS AND COMMITMENTS


 


	
  Banks

  	
   

  	
  Commitments 

  	
   

  
	
   

  	
   

  	
  £

  	
   

  
	
  HSBC Bank plc

  	
   

  	
  5,965,909.09

  	
   

  
	
  Deutsche Bank AG

  	
   

  	
  5,965,909.09

  	
   

  
	
  Abbey National Treasury Services plc

  	
   

  	
  5,113,636.37

  	
   

  
	
  Banca Nazionale del Lavoro S.p.A.

  	
   

  	
  2,005,724.54

  	
   

  
	
  Fleet National Bank

  	
   

  	
  5,113,636.37

  	
   

  
	
  Bayerische Landesbank

  	
   

  	
  4,261,363.64

  	
   

  
	
  Citibank N.A.

  	
   

  	
  3,409,090.91

  	
   

  
	
  Commerzbank AG

  	
   

  	
  4,261,363.64

  	
   

  
	
  Lloyds TSB Bank plc

  	
   

  	
  5,113,636.37

  	
   

  
	
  National Australia Bank Ltd

  	
   

  	
  5,113,636.37

  	
   

  
	
  The Royal Bank of Scotland plc

  	
   

  	
  4,261,363.64

  	
   

  
	
  BNP Paribas

  	
   

  	
  4,261,363.64

  	
   

  
	
  SanPaolo IMI SpA

  	
   

  	
  5,113,636.37

  	
   

  
	
  Bank One NA London

  	
   

  	
  4,261,363.64

  	
   

  
	
  Svenska Handelsbanken AB

  	
   

  	
  5,664,730.02

  	
   

  
	
  The UFJ Bank Limited

  	
   

  	
  1,704,545.45

  	
   

  
	
  Bayersiche Hypo-und Vereinsbank AG

  	
   

  	
  3,409,090.91

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Total Commitments

  	
   

  	
  75,000,000

  	
   

  
					



 


75

















 


SCHEDULE
2


 


CONDITIONS PRECEDENT DOCUMENTS


 


(in
relation to Original Credit Agreement only)


 


PART 1


 


TO BE DELIVERED ON OR ABOUT SIGNING


 


[Previously satisfied]


 


76

















 


PART 2 


 


TO BE
DELIVERED BEFORE THE FIRST LOAN


 


[Previously satisfied]


 


77

















 


PART 3


 


TO BE
DELIVERED BY AN ADDITIONAL BORROWER


 


1.                                       A
Borrower Accession Agreement, duly executed by the Additional Borrower and the
Company.


 


2.                                       A copy of the constitutional documents of the
Additional Borrower.


 


3.                                       If the Additional Borrower is incorporated in
the U.S., a Certificate of Good Standing from the Secretary of State of the
state of incorporation of that Additional Borrower dated not more than 5
Business Days prior to the date of the relevant Borrower Accession Agreement.


 


4.                                       A
copy of a resolution of the board of directors of the Additional Borrower:


 


(a)                                  approving
the terms of, and the transactions contemplated by, the Borrower Accession
Agreement and resolving that it execute the Borrower Accession Agreement;


 


(b)                                 authorising
a specified person or persons to execute the Borrower Accession Agreement on
its behalf; and


 


(c)                                  authorising
a specified person or persons, on its behalf, to sign and/or despatch all other
documents and notices (including Requests) to be signed and/or despatched by it
under or in connection with this Agreement.


 


5.                                       A certificate of an authorised signatory of
the Additional Borrower confirming that the execution by the Additional
Borrower of each Finance Document to which it is a party and the performance by
it of its obligations under each such Finance Document are within its corporate
powers and have been duly approved by all necessary corporate action.


 


6.                                       A
specimen of the signature of each person authorised by the resolution referred
to in paragraph 4 above.


 


7.                                       The
latest accounts (audited if produced) of the Additional Borrower.


 


8.                                       A
certificate of an authorised signatory of the Additional Borrower certifying
that each copy document specified in Part 3 of this Schedule 2 is correct,
complete and in full force and effect as at a date no earlier than the date of
the Borrower Accession Agreement.


 


9.                                       A
legal opinion of each of Allen & Overy and lawyers acceptable to the Agent
in the jurisdiction of incorporation of the Additional Borrower, addressed to
the Finance Parties.


 


10.                                 A
copy of any other authorisation or other document, opinion or assurance which
the Agent considers to be necessary in connection with the entry into and
performance of, and the transactions contemplated by, the Borrower Accession
Agreement or for the validity and enforceability of any Finance Document.


 


78

















 


PART 4


 


TO BE
DELIVERED BY AN ADDITIONAL GUARANTOR


 


1.                                       A Guarantor Accession Agreement, duly
executed as a deed by the Additional Guarantor and the Company.


 


2.                                       A copy of the constitutional documents of the
Additional Guarantor.


 


3.                                       A copy of a resolution of the board of
directors of the Additional Guarantor:


 


(a)                                  approving the terms of, and the transactions
contemplated by, the Guarantor Accession Agreement and resolving that it
execute the Guarantor Accession Agreement;


 


(b)                                 authorising a specified person or persons to
execute the Guarantor Accession Agreement on its behalf; and


 


(c)                                  authorising a specified person or persons, on
its behalf to sign and/or despatch all other documents and notices to be signed
and/or despatched by it under or in connection with the Agreement.


 


4.                                       If lawyers in the jurisdiction of the
Additional Guarantor have advised the Agent to obtain such a resolution, a copy
of a resolution, signed by all the holders of the issued or allotted shares in
the Additional Guarantor, approving the terms of, and the transactions
contemplated by, the Guarantor Accession Agreement.


 


5.                                       A certificate of an authorised signatory of
the Additional Guarantor confirming that the execution by the Additional
Guarantor of each Finance Document to which it is a party and the performance
by it of its obligations under each such Finance Document are within its
corporate powers and have been duly approved by all necessary corporate action.


 


6.                                       A specimen of the signature of each person
authorised by the resolutions referred to in paragraph 3 above.


 


7.                                       The latest accounts (audited if produced) of
the Additional Guarantor.


 


8.                                       A certificate of an authorised signatory of
the Additional Guarantor certifying that each copy document specified in Part 4
of this Schedule 2 is correct, complete and in full force and effect as at a
date no earlier than the date of the Guarantor Accession Agreement


 


9.                                       If
applicable, a copy of all resolutions, written decisions, declarations,
certificates of incorporation and re-registration and other documents required
to ensure compliance with sections 151 to 158 of the Companies Act 1985
including an auditor’s report from an auditor acceptable to the Agent,
addressed to the Company and the Finance Parties, together with a letter from
the Company confirming that it will register the relevant documents at
Companies House.


 


10.                                 A
legal opinion of Allen & Overy and lawyers, acceptable to the Agent, in the
jurisdiction of incorporation of the Additional Guarantor addressed to the
Finance Parties.


 


11.                                 A
copy of any other authorisation or other document, opinion or assurance which
the Agent considers to be necessary in connection with the entry into and
performance of, and the


 


79

















 


transactions contemplated
by, the Guarantor Accession Agreement or for the validity and enforceability of
any Finance Document.


 


80

















 


SCHEDULE
3


 


CALCULATION OF THE MANDATORY COST


 


(a)                                  The Mandatory Cost for a Loan for its Interest
Period or each of its Interest Periods, as appropriate, is the rate determined
by the Agent to be equal to the arithmetic mean (rounded upward, if necessary,
to four decimal places) of the respective rates notified by each of the
Reference Banks to the Agent and calculated in accordance with the following
formulae:


 


In
relation to a Loan denominated in Sterling:


 


	
  AB + C(B-D) + E x 0.01%
  per annum  = 
  Mandatory Cost

  
	
  100-(A+C)

  	
   

  



 


in
relation to any other Loan:


 


	
  E x 0.01% per annum 
  =  Mandatory Cost  

  	
   

  
	
  300

  	
   

  



 


where
on the day of application of the  formula:


 


A                                      is the percentage of the Reference Bank’s
eligible liabilities (in excess of any stated minimum) which the Bank of
England requires the Reference Bank to hold on a non-interest-bearing deposit
account in accordance with its cash ratio requirements;


 


B                                        is LIBOR as appropriate for the relevant
Interest Period;


 


C                                        is the percentage of the Reference Bank’s
eligible liabilities which the Bank of England requires the Reference Bank to
place as a special deposit;


 


D                                       is the interest rate per annum allowed by the
Bank of England on special deposits; and


 


E                                         is calculated by the Agent as being the
average of the rates of charge supplied by the Reference Banks to the Agent
under paragraph (d) below and expressed in pounds per £1 million.


 


(b)                                 For
the purposes of this Schedule 3:


 


(i)                                     eligible liabilities and special deposits have the meanings given to
them at the time of application of the formula by the Bank of England; and


 


(ii)                                  tariff base has the meaning given to it in the fees
rules;


 


(iii)                               fees rules means the then current rules of periodic
fees in the Supervision Manual of the FSA Handbook.


 


(c)                                  In
the application of the formula, A, B, C and D are included in the formula as
figures and not as percentages, e.g. if A = 0.5% and B = 15%, AB is calculated
as 0.5 x 15. A negative result obtained by subtracting D from B is taken as
zero.


 


(d)                                (i)                                      Each
Reference Bank must supply to the Agent the rate of charge payable by that Reference Bank to the Financial Services Authority
under the fees rules (calculated


 


81

















 


by that Reference Bank as
being the average of the rates of charge applicable to that Reference Bank but,
for this purpose, applying any applicable discount and ignoring any minimum fee
required under the fees rules) and expressed in pounds per £1 million of the
tariff base of that Reference Bank.


 


(ii)                                  Each Reference Bank must promptly notify the
Agent of any change to the rate of charge.


 


(e)                                 (i)                                      Each Bank and each Reference Bank must supply
to the Agent the information required by it to make a calculation of the rate
for that Bank or Reference Bank. The Agent may assume that this information is
correct in all respects.


 


(ii)                                  If a Bank or a Reference Bank fails to do so,
the Agent may assume that the Bank’s or that Reference Bank’s obligations in
respect of cash ratio deposits, special deposits and the fees rules are the
same as those of a typical bank from its jurisdiction of incorporation with a
Facility Office in the U.K.


 


(iii)                               The Agent has no liability to any Party if
its calculation over or under compensates any Bank.


 


3.                                      For
a Bank lending from a Facility Office in a Participating Member State


 


(a)                                  The
relevant rate for a Bank lending from a Facility Office in a Participating
Member State is the percentage rate per annum notified by that Lender to the
Agent as its cost of complying with the minimum reserve requirements of the
European Central Bank.


 


(b)                                 If a Bank fails to specify a rate under
paragraph (a) above, the Agent will assume that the Bank has not incurred any
such cost.


 


4.                                      Changes


 


(a)                                  The Agent may, after consultation with the
Company and the Banks, notify all the Parties of any amendment to this Schedule
which is required to reflect:


 


(i)                                     any change in law or regulation; or


 


(ii)                                  any requirement imposed by the Bank of
England, the Financial Services Authority or the European Central Bank (or, in
any case, any successor authority).


 


(b)                                 Notification
will be, in the absence of manifest error, conclusive and binding on all the
Parties.


 


82

















 


SCHEDULE 4


 


FORM OF REQUEST


 


(BY LETTER OR BY FAX)


 


To:                              HSBC
Bank plc as Agent 


 


From:                  [BORROWER]


 


 


Date:                    [                             ]


 


SPIRENT
plc (formerly BOWTHORPE plc) - £75,000,000


Credit
Agreement dated [      ] June, 1999


 


1.                                       We
wish to utilise the Facility as follows:


 


(a)                                Drawdown Date: [                             ] (1)


 


(b)                               Amount and currency: [                             ] (2)


 


(c)                                Interest Period: [                             ]. (3)


 












(1) To be completed in accordance with Clause 5.2 (Completion of
Requests).


(2) To be completed in accordance with Clause 5.2 (Completion of
Requests).


(3) To be completed in accordance  with
Clause 5.2 (Completion of Requests).


 


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


 


 


	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [BORROWER]

  	
   

  



 


83

















 


SCHEDULE 5


 


FORMS OF
ACCESSION DOCUMENTS


 


PART 1


 


NOVATION CERTIFICATE


 


To:                              HSBC Bank plc as Agent


 


From:                  [THE EXISTING BANK] and [THE NEW
BANK]        Date:
[                           ]


 


SPIRENT
plc (formerly BOWTHORPE plc) - £75,000,000


Credit
Agreement dated [      ] June, 1999


 


We refer to Clause 28.3 (Procedure for novations).


 


1.                                       We
[                              ]
(the Existing Bank) and
[                              ]
(the New Bank) agree to the
Existing Bank and the New Bank novating all or part of the Existing Bank’s
Commitments, rights and obligations referred to in the Schedule in accordance
with Clause 28.3 (Procedure for novations).


 


2.                                       The
specified date for the purposes of Clause 28.3(c) (Procedure for novations) is
[date of novation].


 


3.                                       The
Facility Office and address for notices of the New Bank for the purposes of
Clause 34.2 (Addresses for  notices)
are set out in the Schedule.


 


4.                                       This
Novation Certificate is governed by English law.


 


THE
SCHEDULE


 


Commitments/rights
and obligations to be novated


 




	
  [insert relevant details].

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Existing Bank]

  	
   

  	
  [New Bank]

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  By:

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  Date:

  
	
   

  	
   

  	
   

  
	
  [New Bank]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Facility Office

  	
   

  	
  Address for notices]

  
	
   

  	
   

  	
   

  
	
  HSBC Investment Bank plc

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  






 


84

















 


PART 2


 


BORROWER
ACCESSION AGREEMENT


 


To:                              HSBC Bank plc as Agent


 


From:                  [PROPOSED BORROWER] and SPIRENT plc (formerly
BOWTHORPE plc)


 


Date:
[             ]


 


SPIRENT
plc (formerly BOWTHORPE plc) - £75,000,000

Credit Agreement dated [      ] June, 1999 (the
Credit Agreement)


 


We refer to Clause 28.5
(Additional Borrowers).


 


We,
[name of proposed borrower] of [Registered Office] (Registered no.
[                    ]),
agree to become an Additional Borrower and to be bound by the terms of the
Credit Agreement as an Additional Borrower in accordance with Clause 28.5
(Additional Borrowers).


 


Our address for notices for
the purposes of Clause 34.2 (Addresses for notices) is:


 


[                                                                                                                                                 ]


 


We, [name of proposed
borrower] and Spirent plc, confirm that the representations and warranties set
out in Clause 18 (Representations and warranties) deemed to be made on the date
of this Agreement are correct on the date of this Agreement.


 


This Agreement is governed
by English law.


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [PROPOSED BORROWER]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Authorised Signatory

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SPIRENT plc

  	
   

  	
   

  



 


85

















 


PART 3


 


GUARANTOR
ACCESSION AGREEMENT


 


To:                              HSBC
Bank plc as Agent


 


From:                  [PROPOSED
GUARANTOR] and SPIRENT plc (formerly BOWTHORPE plc)


 


Date:
[                ]


 


SPIRENT plc (formerly BOWTHORPE plc) - £75,000,000

Credit Agreement dated [        ] June,
1999 (the Credit Agreement)


 


We refer to Clause 28.6 (Additional Guarantors).


 


We, [name of proposed guarantor]of [Registered Office] (Registered no.
[                          ])
agree to become an
Additional Guarantor and to be bound by the terms of the Credit Agreement as an
Additional Guarantor in accordance with Clause 28.6 (Additional Guarantors).


 


Our address for notices for the purposes of Clause 34.2 (Addresses for
notices) is:


 


[                                                                                                                                                 ]


 


We, [name of proposed guarantor] and Spirent plc, confirm that the
representations and warranties set out in Clause 18 (Representations and
warranties) deemed to be made on the date of this Agreement are correct on the
date of this Agreement.


 


This Agreement is entered into as a deed and is governed by English
law.


 


 


[APPLICABLE EXECUTION CLAUSE FOR ADDITIONAL GUARANTOR FOR SIGNING DEEDS]


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SPIRENT plc

  	
   

  	
   

  



 


86

















 


SCHEDULE 4


 


FORM OF
COMPLIANCE CERTIFICATE


 


To:                              HSBC Bank plc as Agent


 


From;                 Spirent
plc


 


Date:  [            ]


 


SPIRENT plc (formerly BOWTHORPE plc) - £75,000,000
Credit Agreement dated [        ] June,
1999 (the Credit Agreement)


 


This is a Compliance
Certificate.


 


We confirm that:


 


(a)                                 as at
[                  ]
(the testing date), Consolidated Net Debt was
£[                  ]
and Consolidated EBITDA was
£[                  ]
therefore, the ratio of Consolidated Net Debt to Consolidated EBITDA was
[                  ]
to 1; the maximum ratio permitted under Clause l9.l0(a)-(g)(i) (as the case may
be) (Financial covenants) at the testing date is
[                  ]
to l; and 


 


(b)                                 as at the testing date, Consolidated EBITA
was £[            ]
and Consolidated Net Interest Expense is
£[            ];
therefore, the ratio of Consolidated EBITA to Consolidated Net Interest Expense
is [            ]
to 1; the minimum ratio permitted under
Clause 19.10(a)-(g)(ii) (Financial covenants) at the testing date is 3.0 to 1;
and


 


(c)                                  Consolidated Net Worth is
£[           ]


 


(d)                                 the following companies are Material
Subsidiaries:


 


[                                                                                      ];
and


 


(e)                                  Percentage of Consolidated EBIT and
Consolidated Total Assets provided by the Company and these Material
Subsidiaries is
[            ]and
[             ]


 


	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SPIRENT plc

  	
   

  	
   

  



 


87

















 


SCHEDULE 5


 


FORM OF
MARGIN CERTIFICATE


 


To:                              HSBC
Bank plc as Agent


 


From:                  Spirent
plc


 


Date: [             ]


 


SPIRENT plc (formerly BOWTHORPE plc) - £75,000,000

Credit Agreement dated [        ] June,
1999 (the Credit Agreement)


 


This is a Margin Certificate.


 


We confirm that as at [            ],  Consolidated Net Debt was £[            ]
and Consolidated EBITDA was £[            ]
and therefore the ratio of Consolidated Net Debt to Consolidated EBITDA was [            ]
to 1.   Accordingly the applicable Margin is, in accordance with
Clause 9.5 (Adjustment of the Margin), [        ]
per cent per annum.


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SPIRENT plc

  	
   

  	
   

  



 


88

















 


SCHEDULE 6


 


EXISTING
PREFERRED INDEBTEDNESS


 


SUMMARY OF PREFERRED INDEBTEDNESS AND SECURITY INTERESTS AS
AT 31ST DECEMBER, 2002


 


	
   

  	
   

  	
  TOTAL

  O/DRAFT

  FACILITIES

  AVAILABLE

  (000)

  	
   

  	
  TOTAL

  LOAN

  FACILITIES

  AVAILABLE

  (000)

  	
   

  	
  OVERDRAFT

  BALANCE

  AS AT

  31-Dec-02

  (000)

  	
   

  	
  LOAN

  BALANCE

  AS AT

  3l-Dec-02

  (000)

  	
   

  	
  TOTAL

  O’STDING

  31-Dec-02

  (000)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECURED

  	
   

  	
  2,154

  	
   

  	
  4,357

  	
   

  	
  492

  	
   

  	
  4,357

  	
   

  	
  4,849

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UNSECURED

  	
   

  	
  7,640

  	
   

  	
  330,361

  	
   

  	
  88

  	
   

  	
  232,131

  	
   

  	
  232,219

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FINANCE LEASES

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  9,479

  	
   

  	
  9,479

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  9,794

  	
   

  	
  334,718

  	
   

  	
  580

  	
   

  	
  245,967

  	
   

  	
  246,547

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UNSECURED SPIRENT
  PLC INDEBTEDNESS

  	
   

  	
  6,131

  	
   

  	
  329,860

  	
   

  	
  88

  	
   

  	
  231,630

  	
   

  	
  231,718

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL SUBSIDIARY
  FINANCIAL INDEBTEDNESS

  	
   

  	
  3,663

  	
   

  	
  4,858

  	
   

  	
  492

  	
   

  	
  14,337

  	
   

  	
  £

  	
  14,829

  	
   

  
													



 


89

















 


	
  SCHEDULE 7

  
	
   

  
	
  SUBSIDIARIES

  
	
   

  
	
  PART 1

  
	
   

  
	
  MATERIAL
  SUBSIDIARIES

  
	
   

  
	
  Spirent Communications of
  Rockville, Inc.

  
	
  Spirent Communication Inc.

  
	
  HellermannTyton GmbH

  
	
  PG International Plc

  
	
  HellermannTyton
  Corporation

  
	
  HellermannTyton Data Ltd.

  
	
  PG Drives Technology Inc.

  
	
  Spirent Communications of
  Ottawa Ltd.

  
	
  HellermannTyton Canada
  Incorporated

  
	
  Spirent Communications
  Limited

  
	
  Spirent Communications (Scotland) Limited

  
	
  Spirent Holdings
  Corporation

  
	
  Spirent International Inc.

  
	
  Caw Networks, Inc.

  
	
  Spirent Plc

  



 


90

















 


	
  PART 2

  
	
   

  
	
  FURTHER
  ADDITIONAL GUARANTORS

  
	
   

  
	
  Spirent Communications of
  Rockville, Inc.

  
	
  Caw Networks, Inc.

  
	
  Spirent Communications
  Inc.

  
	
  Spirent Communications of
  Ottawa Ltd.

  
	
  HellermannTyton
  Corporation

  
	
  HellermannTyton Canada
  Incorporated

  
	
  PG Drives Technology Inc.

  
	
  PG International plc

  
	
  HellermannTyton Data Ltd.

  
	
  Spirent Communications
  (Scotland) Limited

  
	
  Spirent Communications
  (SW) Limited

  
	
  Spirent Communications
  Limited

  
	
  Spirent Holdings Corporation

  
	
  Spirent International Inc.

  
	
  Spirent Financing
  Corporation

  
	
  Netcom Systems Holding
  Corporation

  
	
  Spirent Overseas Limited

  
	
  Reorg Co I, Inc.

  
	
  Reorg Co II, Inc

  



 


91

















 


	
   

  	
  SIGNATORIES

  
	
   

  	
   

  
	
   

  	
   

  
	
  Company

  	
   

  
	
   

  	
   

  
	
  BOWTHORPE plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Arrangers

  	
   

  
	
   

  	
   

  
	
  DEUTSCHE BANK AG LONDON

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  HSBC BANK plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Banks

  	
   

  
	
   

  	
   

  
	
  DEUTSCHE BANK AG LONDON

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  MIDLAND BANK plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Agent

  	
   

  
	
   

  	
   

  
	
  HSBC BANK plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  



 


92

















 


	
  SIGNATORIES TO SUPPLEMENTAL AGREEMENT

  
	
   

  	
   

  
	
   

  	
   

  
	
  Company

  	
   

  
	
   

  	
   

  
	
  SPIRENT PLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Agent

  	
   

  
	
   

  	
   

  
	
  HSBC BANK PLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  



 


93