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Exhibit 4.9


 


	
  C L I
  F F O R D

  	
   

  	
  LIMITED
  LIABILITY PARTNERSHIP

  
	
  C H A
  N C E

  	
   

  	
   

  



 


EXECUTION VERSION


 


£35,000,000


 


COMMITTED MULTICURRENCY REVOLVING FACILITY AGREEMENT


 


 


dated 29 JUNE 2005


 


 


for


 


 


MARCONI BONDING LIMITED


 


as Applicant


 


with


 


MARCONI CORPORATION plc


 


as Company


 


with


 


HSBC BANK plc

acting as Agent and Security Trustee


 


AND OTHERS


 





















 


CONTENTS


 


	
  CLAUSE

  	
   

  
	
   

  	
   

  
	
  1.

  	
  Definitions And Interpretation

  	
   

  
	
  2.

  	
  The Facility

  	
   

  
	
  3.

  	
  Purpose

  	
   

  
	
  4.

  	
  Conditions Of Utilisation

  	
   

  
	
  5.

  	
  Utilisation

  	
   

  
	
  6.

  	
  Long Dated Bonds

  	
   

  
	
  7.

  	
  Bonds

  	
   

  
	
  8.

  	
  Repayment, Prepayment And
  Cancellation

  	
   

  
	
  9.

  	
  Default Interest

  	
   

  
	
  10.

  	
  Changes To The Calculation
  Of Interest

  	
   

  
	
  11.

  	
  Break Costs

  	
   

  
	
  12.

  	
  Fees

  	
   

  
	
  13.

  	
  Tax Gross Up And Indemnities

  	
   

  
	
  14.

  	
  Increased Costs

  	
   

  
	
  15.

  	
  Other Indemnities

  	
   

  
	
  16.

  	
  Mitigation By The Banks

  	
   

  
	
  17.

  	
  Costs And Expenses

  	
   

  
	
  18.

  	
  Guarantee And Indemnity

  	
   

  
	
  19.

  	
  Representations

  	
   

  
	
  20.

  	
  Information
  Undertakings

  	
   

  
	
  21.

  	
  Security Undertakings

  	
   

  
	
  22.

  	
  General Undertakings

  	
   

  
	
  23.

  	
  Events Of Default

  	
   

  
	
  24.

  	
  Changes To The Banks

  	
   

  
	
  25.

  	
  Changes To The Obligors

  	
   

  
	
  26.

  	
  Role Of The
  Agent And The Security Trustee

  	
   

  
	
  27.

  	
  Conduct Of
  Business By The Finance Parties

  	
   

  
	
  28.

  	
  Sharing Among
  The Finance Parties

  	
   

  
	
  29.

  	
  Payment Mechanics

  	
   

  
	
  30.

  	
  Set-Off

  	
   

  
	
  31.

  	
  Notices

  	
   

  
	
  32.

  	
  Calculations And
  Certificates

  	
   

  
	
  33.

  	
  Partial Invalidity

  	
   

  
	
  34.

  	
  Remedies And Waivers

  	
   

  
	
  35.

  	
  Amendments And Waivers

  	
   

  



 





















 


	
  36.

  	
  Counterparts

  	
   

  
	
  37.

  	
  Governing Law

  	
   

  
	
  38.

  	
  Enforcement

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1 THE ORIGINAL PARTIES

  	
   

  
	
   

  	
  Part A

  	
  The Original Issuing Bank

  	
   

  
	
   

  	
  Part B

  	
  The Original Bank

  	
   

  
	
   

  	
  Part C

  	
  The Original Indemnifying Companies

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 2 CONDITIONS PRECEDENT

  	
   

  
	
   

  	
  Part A
  Conditions Precedent To Initial Utilisation

  	
   

  
	
   

  	
  Part B Conditions Precedent
  Required To Be Delivered By An Additional Obligor

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 3
  UTILISATION REQUEST

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 4 MANDATORY COST FORMULAE

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 5 FORM OF TRANSFER
  CERTIFICATES

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 6 FORM OF ACCESSION
  LETTER

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 7 TIMETABLES

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 8 FORM OF LMA
  CONFIDENTIALITY UNDERTAKING

  	
   

  



 





















 


THIS
AGREEMENT is dated 29 June 2005 and made between:


 


(1)           MARCONI BONDING LIMITED (the “Applicant”);


 


(2)           MARCONI CORPORATION PLC (the “Company”);


 


(3)           HSBC BANK plc as Original Issuing Bank and
Original Bank;


 


(4)           HSBC BANK plc as agent of (and security
trustee for) the other Finance Parties (the “Agent”
and the “Security Trustee” respectively);
and


 


(5)           THE COMPANIES listed in Schedule 1 (The
Original Indemnifying Companies) (the
“Original Indemnifying Companies”).


 


IT
IS AGREED as follows:


 


1.             DEFINITIONS
AND INTERPRETATION


 


1.1           Definitions


In this Agreement:


 


“Accession Letter” means
a document substantially in the form set out in Schedule 6 (Form of
Accession Letter).


 


“Account” means the
account number 01504991, sort code 40-04-09 of the Applicant with the Security
Trustee denominated in the Base Currency and designated as a “Cash Collateral
Security Account” by the Security Trustee (together with any substitute,
replacement or sub-account in relation to such designated account) and which is
subject to the New Security Agreement.


 


“Additional Cost Rate” has
the meaning given to it in Schedule 4 (Mandatory Cost Formulae).


 


“Additional Indemnifying Company” means
a company which becomes an Indemnifying Company in accordance with Clause 25 (Changes
to the Obligors).


 


“Affiliate” means,
in relation to any person, a Subsidiary of that person or a Holding Company of
that 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 Base Currency with
the relevant currency or relevant currencies in the London foreign exchange
market at or about 11:00 a.m. on a particular day.


 


“Arrangement Fee Letter” means
the letter dated about the date of this Agreement between HSBC Bank plc as
Original Bank and the Company setting out the fee referred to in Clause 12.1 (Arrangement
Fee).


 


“Authorisation” means
an authorisation, consent, approval, resolution, licence, exemption, filing,
notarisation, registration, recordal or enrolment.


 


“Available Commitment” means
a Bank’s Commitment minus:


 


(a)           the Base Currency
Amount of its participation in any outstanding Bonds; and


 


(b)           in
relation to any proposed Utilisation, the Base Currency Amount of its participation
in any Bonds that are due to be issued on or before the proposed Utilisation
Date,


 





















 


other than that Bank’s participation in any Migrated Bonds or in any
Bonds that are due to be repaid or prepaid in full on or before the proposed
Utilisation Date.


 


“Availability Period” means
the period from and including the Effective Date to and including 19 November 2007.


 


“Available Facility” means the aggregate for the time being of
each Bank’s Available Commitment.


 


“Bank” means:


 


(a)           any Original Bank and
(unless the context requires otherwise) any Original Issuing Bank; and


 


(b)           any bank,
financial institution, trust, fund or other entity which has become a Party in
accordance with Clause 24 (Changes to the Banks),


 


which in each case has not ceased to be a Party in accordance with the terms
of this Agreement.


 


“Base Currency” means
sterling.


 


“Base Currency Amount” means,
in relation to a Utilisation, the amount specified in the Utilisation Request
for that Utilisation (or, if the amount requested is not denominated in the
Base Currency, that amount converted into the Base Currency at the Agent’s Spot
Rate of Exchange on the date which is three Business Days before the
Utilisation Date or, if later, on the date the Agent receives the Utilisation
Request) adjusted to reflect any repayment or prepayment of the Utilisation.


 


“Bond” means a
bond, guarantee, letter of credit, indemnity or similar instrument to be
utilised for the purposes set out in Clause 3.1 (Purpose) in a form requested by the
Applicant and agreed with the relevant Issuing Bank in accordance with
sub-clause 5.2.1(c) of Clause 5.2 (Completion of a Utilisation Request).


 


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


 


(a)           the
interest which a Bank should have received for the period from the date of receipt
of all or any part of its participation in an Unpaid Sum to the last day of the
current Interest Period in respect of that Unpaid Sum, had the Unpaid Sum
received been paid on the last day of that Interest Period;


 


exceeds:


 


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


 


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


 


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


 


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


 


2





















 


“Cash Cover Amount” means,
in relation to a Bond, if denominated in the Base Currency, the outstanding
amount of that Bond or, if not denominated in the Base Currency, the
outstanding amount of that Bond converted into the Base Currency on the basis
of the Agent’s Spot Rate of Exchange three Business Days before the Utilisation
Date for such Bond or, if later, on the date such amount falls to be determined
pursuant to the provisions of this Agreement adjusted to reflect any repayment
or prepayment of the Bond.


 


“Change of Control” means
any person or group of persons acting in concert gaining control of the
Company, where “control” means:


 


(a)           the power
(whether by way of ownership of shares, proxy, contract, agency or otherwise)
to:


 


(i)            cast, or
control the casting of, more than one-half of the maximum number of votes that
might be cast at a general meeting of the Company; or


 


(ii)           appoint or
remove all, or the majority, of the directors or other equivalent officers of
the Company; or


 


(iii)          give
directions with respect to the operating and financial policies of the Company
which the directors or other equivalent officers of the Company are obliged to
comply with; or


 


(b)           the
holding of more than one-half of the issued share capital of the Company (excluding
any part of that issued share capital that carries no right to participate
beyond a specified amount in a distribution of either profits or capital),


 


and where “acting in concert” means,
a group of persons who, pursuant to an agreement or understanding (whether
formal or informal), actively co-operate, through the acquisition by any of
them, either directly or indirectly, of shares in the Company, to obtain or
consolidate control of the Company.


 


“Commitment” means:


 


(a)           in
relation to an Original Bank, the amount in the Base Currency set opposite its
name under the heading “Commitment” in Part B of Schedule 1 (The Original
Bank) and the
amount of any other Commitment transferred to it under this Agreement; and


 


(b)           in
relation to any other Bank, the amount in the Base Currency of any Commitment
transferred to it under this Agreement,


 


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


 


“Confidentiality Undertaking” means
a confidentiality undertaking substantially in a recommended form of the LMA as
set out in Schedule 8 (Form of LMA Confidentiality Undertaking) or in any other form agreed
between the Company and the Agent.


 


“Default” means an
Event of Default or any event or circumstance specified in Clause 23 (Events
of Default) which
would (with the expiry of a grace period, the giving of notice, the making of
any determination under the Finance Documents or any combination of any of the
foregoing) be an Event of Default.


 


3





















 


“Effective Date” means
the date that the Agent notifies the Applicant, the Company and the Banks that
it has received all of the documents and other evidence listed in Part A (Conditions
Precedent to Initial Utilisation) of Schedule 2 in form and substance satisfactory to the
Agent.


 


“Event of Default” means
any event or circumstance specified as such in Clause 23 (Events
of Default).


 


“Existing Bonding Facility” means
the £50,000,000 committed multicurrency revolving facility agreement dated 27 March 2003
between, among others, the Applicant, the Company and the Agent pursuant to
which certain bonds have been issued and are outstanding on the date of this
Agreement.


 


“Existing Bonding Facility Agreement”
means the agreement entered into in relation to the Existing
Bonding Facility and each document entered into in connection therewith.


 


“Expiry Date” means,
for a Bond, the last day of its Term.


 


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


 


“Facility Office” means
the office or offices notified by a Bank to the Agent in writing on or before
the date it becomes a Bank (or, following that date, by not less than five
Business Days’ written notice) as the office or offices through which it will
perform its obligations under this Agreement.


 


“Finance Document” means
this Agreement, any Accession Letter, the New Security Agreement, and any other
document designated as such by the Agent and the Company.


 


“Finance Party” means
the Agent, the Security Trustee, an Issuing Bank or a Bank.


 


“Financial Indebtedness” means
any indebtedness for or in respect of:


 


(a)           moneys borrowed;


 


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


 


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


 


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


 


(e)           receivables
sold or discounted provided that receivables to the extent they are sold on a
non-recourse basis shall be disregarded, and for this purpose, where recourse
is:


 


(i)            limited to the
receivable sold; or


 


(ii)           arises as a result of
breach of warranties (or the equivalent),


 


the sale or discounting of such receivable shall be deemed to be on a
non-recourse basis.


 


4





















 


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


 


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


 


(h)           any
counter-indemnity obligation in respect of a guarantee, indemnity, bond,
standby or documentary bond or any other instrument issued by a bank or
financial institution;


 


(i)            any
amount raised by the issue of shares redeemable prior to the date falling 54
Months after the date of this Agreement;


 


(j)            any
amount of any liability under an advance or deferred purchase agreement if one
of the primary reasons behind the entry into of such agreement is to raise
finance;


 


(k)           (without
double counting) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a) to (j) above,


 


but excluding any indebtedness for or in respect of assets or services
acquired or sold in the ordinary course of business (except to the extent it
would be treated as a loan, overdraft or obligation under a finance or capital
lease in the audited financial statements of the Company).


 


“GAAP” means generally accepted
accounting principles in the United Kingdom.


 


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


 


“Holding Company” means,
in relation to a company or corporation, any other company or corporation in
respect of which it is a Subsidiary.


 


“Indemnifying Company” means
an Original Indemnifying Company or an Additional Indemnifying Company.


 


“Interest Period” means,
in relation to an Unpaid Sum, each period determined in accordance with Clause
9.1 (Default
interest).


 


“Interim Bonding Facility” means
the interim bonding facility dated 10 May 2002 (as amended) between
Barclays Bank PLC, HSBC Bank plc and JP Morgan Chase Bank and the Applicant
providing for the issuance of surety bonds, appeal bonds, bid bonds,
performance bonds, letters of credit, bank guarantees and other obligations of
a like nature.


 


“Interim Bonding Facility Agreement” means
the facility letters entered into in relation to the Interim Bonding Facility
and each document entered into in connection therewith.


 


“Issuing Bank” means
an Original Issuing Bank and any other Bank which agrees to be designated by
the Agent as an Issuing Bank under this Agreement.


 


5





















 


“LIBOR” means, in
relation to any Unpaid Sum:


 


(a)           the
applicable Screen Rate; or


 


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


 


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


 


“Long Dated Bond” has the meaning ascribed thereto in
Clause 6.1 of Clause 6 (Long Dated Bonds).


 


“Majority Banks” means:


 


(a)           until the
Total Commitments have been reduced to zero, a Bank or Banks whose Commitments
aggregate more than 662/3% of the Total Commitments (or,
if the Total Commitments have been reduced to zero and there are no Bonds then
outstanding, aggregated more than 662/3% of the Total Commitments
immediately prior to the reduction); or


 


(b)           at any
other time, a Bank or Banks whose participations in the Bonds then outstanding
aggregate more than 662/3% of all the Bonds then
outstanding.


 


“Mandatory Cost” means
the percentage rate per annum calculated by the Agent in accordance with Schedule 4
(Mandatory
Cost Formulae).


 


“Material Adverse Effect” means
a material adverse effect on:


 


(a)           the
financial condition or business of the Group taken as a whole; and


 


(b)           the
ability of the Group taken as a whole to perform any of its payment and/or other
material obligations under the Finance Documents.


 


“Migrated Bonds” means
the outstanding bonds issued by HSBC Bank plc under the Interim Bonding
Facility and Existing Bonding Facility and deemed to have been issued under
this Agreement in accordance with an agreement relating to bonding facilities
dated on or about the date hereof between the Applicant, the Company, HSBC Bank
plc, JP Morgan Chase Bank and Barclays Bank PLC.


 


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


 


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


 


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


 


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


 


6





















 


“New Security Agreement” means the security over cash
agreement in the form agreed between the Applicant and the Agent to be entered
into between the Applicant and the Security Trustee on or about the date of
this Agreement.


 


“Obligor” means the Applicant,
the Company or an Indemnifying Company.


 


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


 


“Original Obligor” means
the Applicant, the Company and each Original Indemnifying Company.


 


“Participating Member State” means
any member state of the European Communities that adopts or has adopted the
euro as its lawful currency in accordance with legislation of the European
Community relating to Economic and Monetary Union.


 


“Party” means a
party to this Agreement.


 


“Proportion” means, in relation
to a Bank in respect of any Bond, the proportion (expressed as a percentage)
borne by that Bank’s Available Commitment to the Available Facility immediately
prior to the issue of that Bond, adjusted to reflect any assignment or transfer
under this Agreement to or by that Bank.


 


“Quarter Date” means the last
Business Day in each of April, July, October and January, in each year.


 


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


 


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


 


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


 


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


 


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


 


“Reference Banks” means
the principal London offices of HSBC Bank plc and such other banks as may be
appointed by the Agent in consultation with the Company.


 


“Relevant Interbank Market” means
the London interbank market.


 


“Repeating Representations” means
each of the representations set out in Clause 19.1 (Status) to Clause 19.6 (Governing
Law and Enforcement) and
Clause 19.8 (No default) to Clause 19.10 (Pari passu ranking).


 


“Screen Rate” means
in relation to LIBOR, the British Bankers Association Interest Settlement Rate
for the relevant currency and period displayed on the appropriate page of
the Telerate screen. If the agreed page is replaced or service ceases to
be available, the Agent may specify another page or service displaying the
appropriate rate after consultation with the Company and the Banks.


 


7





















 


“Security” means a
mortgage, charge, pledge, lien or other security interest securing any
obligation of any person or any other agreement or arrangement having a similar
effect.


 


“Specified Time” means
a time determined in accordance with Schedule 7 (Timetables).


 


“Subsidiary” means
a subsidiary within the meaning of section 736 of the Companies Act 1985
as amended by section 144 of the Companies Act 1989.


 


“TARGET” means
Trans-European Automated Real-time Gross Settlement Express Transfer payment
system.


 


“TARGET Day” means
any day on which TARGET is open for the settlement of payments in euro.


 


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


 


“Taxes Act” means the Income and
Corporation Taxes Act 1988.


 


“Term” means the
period set out in the relevant Utilisation Request for which an Issuing Bank is
initially under a liability under a Bond (whether or not such Bond is an “extend
or pay Bond”).


 


“Total Commitments” means
the aggregate of the Commitments, being £35,000,000 at the date of this
Agreement.


 


“Transaction Security” means
the Security granted to the Security Trustee under the New Security Agreement.


 


“Transfer Certificate” means
a certificate substantially in the form set out in Schedule 5 (Form of
Transfer Certificates) or
any other form agreed between the Agent and the Company.


 


“Transfer Date” means,
in relation to a transfer, the later of:


 


(a)           the proposed Transfer
Date specified in the Transfer Certificate; and


 


(b)           the date on which the
Agent executes the Transfer Certificate.


 


“Unpaid Sum” means
any sum due and payable but unpaid by an Obligor under the Finance Documents.


 


“Utilisation” means
a utilisation of the Facility by way of the issue of a Bond.


 


“Utilisation Date” means
the date of a Utilisation, being the date on which a Bond is to be issued.


 


“Utilisation Request” means
a notice substantially in the form set out in Schedule 3 (Utilisation
Request).


 


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


 


1.2           Construction


 


1.2.1        Unless a contrary indication
appears, any reference in this Agreement to:


 


8





















 


(a)           the “Agent”, the “Security Trustee”, “any
“Finance Party”, any “Issuing
Bank”, any “Bank”, any “Obligor” or any “Party” shall be construed so as to include
its successors in title, permitted assigns and permitted transferees;


 


(b)           “euro” means the single currency unit of
the Participating Member States; “£” and “sterling” means the lawful currency of the
United Kingdom, “$” and “dollars” means the lawful currency of the
United States of America;


 


(c)           a “Finance
Document” or any other agreement or instrument is a reference
to that Finance Document or other agreement or instrument as amended or novated
pursuant to this Agreement or otherwise. 
In the event of any inconsistencies arising between this Agreement and
any other Finance Document, the provisions of this Agreement shall prevail;


 


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


 


(e)           an
outstanding amount of a Bond at any time is the maximum amount that is or may
be payable by the Applicant in respect of that Bond at that time;


 


(f)            a “regulation”
includes any regulation, rule, official directive, request or
guideline (whether or not having the force of law) of any governmental, intergovernmental
or supranational body, agency, department or regulatory, self-regulatory or
other authority or organisation;


 


(g)           the “relevant Issuing Bank” means in relation
to any Bond which has been or is to be issued, the Issuing Bank which has
issued, is to issue or has been requested to issue that Bond;


 


(h)           the “repaying”, “repayment”, “prepaying” or “prepayment” of a Bond means:


 


(i)            the
provision of cash cover for that Bond;


 


(ii)           the
maximum amount payable under the Bond being reduced in accordance with its
terms; or


 


(iii)          the
Issuing Bank of that Bond being satisfied that it has no further liability
under that Bond;


 


and the amount by which a Bond is repaid or prepaid under (i) and (ii) above
is the amount of the relevant cash cover or reduction (but, save as provided
under Clause 8.7 (Cash Cover), the provision of cash security pursuant to Clause
21 (Security
undertakings) does
not constitute the repayment or prepayment of a Bond); and


 


(i)            the
provision of “cash cover” for a
Bond means the payment of an amount in the Base Currency to the Account and the
following conditions are met:


 


9





















 


(i)            withdrawals
from the Account may only be made to pay a Finance Party amounts due and
payable to it under this Agreement until no amount is or may be outstanding
under any Bond following which such restrictions shall not apply; and


 


(ii)           interest
shall accrue at such commercial rate and with such interest periods as the
Security Trustee or the relevant Bank (as the case may be) shall specify from
time to time on the credit balance of the Account. All such interest shall be
for the account of the Applicant and credited to the Account and paid to the
Applicant quarterly in arrear; and


 


(iii)          the
Applicant has executed the New Security Agreement;


 


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


 


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


 


1.2.2        Section, Clause and Schedule headings
are for ease of reference only.


 


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


 


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


 


1.3           Third Party Rights


1.3.1        Unless
expressly provided to the contrary in a Finance Document a person who is not a
Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”)
to enforce or to enjoy the benefit of any term of this Agreement.


 


1.3.2        Notwithstanding
any term of any Finance Document, the consent of any person who is not a Party
is not required to rescind or vary this Agreement at any time.


 


2.             THE FACILITY


 


2.1           The
Facility


Subject to the terms of this Agreement, the Banks make available to the
Applicant a committed multicurrency revolving facility for the issue of Bonds
in an aggregate amount equal to the Total Commitments.


 


2.2           Finance Parties’ rights and obligations


2.2.1        The
obligations of each Finance Party under the Finance Documents are several.  Failure by a Finance Party to perform its
obligations under the Finance Documents does not affect the obligations of any
other Party under the Finance Documents. 
No Finance Party is responsible for the obligations of any other Finance
Party under the Finance Documents.


 


2.2.2        The
rights of each Finance Party under or in connection with the Finance Documents
are separate and independent rights and any debt arising under the


 


10





















 


Finance Documents to a Finance Party from an Obligor shall be a
separate and independent debt.


 


2.2.3        A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance Documents.


 


3.             PURPOSE


 


3.1           Purpose


The Facility is provided for the purpose of supporting (directly or
indirectly) obligations owed by Indemnifying Companies to third parties where
such obligations are incurred in the ordinary course of the Group’s trade or
business (but not, for the avoidance of doubt, for the purpose of supporting
any financing facilities of members of the Group other than any financing facilities
which have been provided to members of the Group for the purpose of supporting
directly obligations of members of the Group incurred in the ordinary course of
the Group’s trade or business (other than where such business includes the
raising or incurrence of financial indebtedness) through the issue of surety
bonds, appeal bonds, bid bonds, advance payment bonds, performance bonds,
letters of credit, bank guarantees or other obligations of a like nature issued
for such purpose).


 


3.2           Monitoring


No Finance Party is bound to monitor or verify the manner in which the
Facility is utilised.


 


4.             CONDITIONS OF UTILISATION


 


4.1           Initial
conditions precedent


The Applicant may not deliver a Utilisation Request until the Effective
Date and the Agent shall notify the Applicant, the Company and the Banks
promptly upon the occurrence of the Effective Date.


 


4.2           Further conditions precedent


The Banks will only be obliged to comply with Clause 5.4 (Issue of
Bonds) if on
the date of the Utilisation Request and on the proposed Utilisation Date:


 


4.2.1        (other
than in the case of a renewal or extension of an existing Bond) no Default is
continuing or would result from the proposed Utilisation;


 


4.2.2        (other
than in the case of a renewal or extension of an existing Bond) the Repeating
Representations to be made by the Company, the Applicant and the Indemnifying
Company for whose account the relevant Bond has been requested to be issued are
true in all material respects; and


 


4.2.3        in
the case of a renewal or extension of an existing Bond, the Agent has not delivered
a notice pursuant to sub-clause 23.11.1 or sub-clause 23.11.2 of Clause 23.11 (Remedies).


 


4.3           Conditions relating to Optional Currencies


4.3.1        A
currency will constitute an Optional Currency in relation to a Utilisation if
it is euro or dollars or:


 


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


 


11





















 


(b)           it has
been approved by the relevant Issuing Bank for that Utilisation on or prior to
receipt by the Agent of the relevant Utilisation Request for that Utilisation.


 


4.3.2        If
the Agent has received a written request from the Applicant for a currency to
be approved under sub-clause 4.3.1(b) of this Clause 4.3, the Agent will
confirm to the Applicant by the Specified Time whether or not the relevant
Issuing Bank has granted its approval.


 


5.             UTILISATION


 


5.1           Delivery of
a Utilisation Request


The Applicant may utilise the Facility by delivery to the Agent of a
duly completed Utilisation Request requesting the issue of a Bond by an Issuing
Bank not later than the Specified Time. Further, but provided only that the
relevant Issuing Bank has confirmed to the Applicant and the Agent that the
Issuing Bank consents to the same, the Applicant may deliver a Utilisation
Request later than the Specified Time.


 


5.2           Completion
of a Utilisation Request


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


 


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


 


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


 


(c)           the form
of the Bond is attached and is satisfactory to the relevant Issuing Bank
(having regard to that Issuing Bank’s formal internal policies at the relevant
time, and to all relevant legal and regulatory restrictions) but, for the
avoidance of doubt, the Parties have agreed that there will be no requirement as
to the Expiry Date of any Bond and no limitation on the issue of undated Bonds;


 


(d)           the
delivery instructions for the Bond are specified;


 


(e)           the Bond
is a Bond for the purpose of supporting (directly or indirectly) the
obligations of an Indemnifying Company to a third party where such obligations
are incurred in the ordinary course of the Group’s trade or business, but not
for the purpose of supporting any financing facility of a member of the Group
other than any financing facilities which have been provided to members of the
Group for the purpose of supporting directly obligations of members of the
Group incurred in the ordinary course of the Group’s trade or business (other
than where such business includes the raising or incurrence of financial indebtedness)
through the issue of surety bonds, appeal bonds, bid bonds, performance bonds, advance
payment bonds, letters of credit, bank guarantees or other obligations of a
like nature issued for such purpose); and


 


(f)            the
identity of the beneficiary of the Bond is satisfactory to the relevant Issuing
Bank (having regard to the relevant Issuing Bank’s formal internal policies at
the relevant time, and to all relevant legal and regulatory restrictions).


 


5.2.2        Only one Utilisation may
be requested in each Utilisation Request.


 


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5.2.3        If
the relevant Issuing Bank does not agree or approve the form of the Bond or the
beneficiary of the Bond (as the case may be), the relevant Issuing Bank shall
inform the Agent and the Agent will inform the Applicant of that fact not later
than the Specified Time.


 


5.3           Currency and amount


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


 


5.3.2        The
amount of the proposed Bond must be such that its Base Currency Amount is less
than or equal to the Available Facility.


 


5.3.3        In
respect of a proposed advance payment bond the amount of such Bond must be such
that its Base Currency Amount when aggregated with the Base Currency Amount of
all other advance payment bonds issued or proposed to be issued under the
Facility does not exceed £5,000,000.


 


5.4           Issue of
Bonds


5.4.1        If
the conditions set out in this Agreement have been met the relevant Issuing Bank
shall issue the relevant Bond on the Utilisation Date.


 


5.4.2        The
amount of each Bank’s participation in each Bond will be equal to the proportion
borne by its Available Commitment to the Available Facility immediately prior
to the issue of the Bond.


 


5.4.3        The
Agent shall determine the Base Currency Amount of each Bond which is to be
issued in an Optional Currency and shall notify (a) the Company of the Base
Currency Amount of such Bond and (b) the relevant Issuing Bank and each
Bank of the details of the requested Bond and the amount of its participation
in that Bond, in each case by the Specified Time.


 


5.4.4        A
renewal or extension of a Bond shall be treated in the same manner as if the issue
of a new Bond were being requested save that Clauses 5.2.1(b), (c) or (f)
shall not apply.


 


5.4.5        An
Issuing Bank and all the Banks may agree, in their sole discretion, to issue a
Bond on behalf of a member of the Group which is not an Indemnifying Company.


 


6.             LONG DATED BONDS


 


6.1           If an
Issuing Bank issues a Bond with an Expiry Date falling after the date falling
54 Months after the date of this Agreement which has not been repaid or prepaid
in full on or prior to the date falling 54 Months after the date of this
Agreement (each, a “Long Dated Bond”),
the Applicant (or the relevant Indemnifying Company or the Company on its
behalf) shall, no later than the date falling 54 Months after the date of this
Agreement, repay that Long Dated Bond. To the extent that the Applicant (or the
relevant Indemnifying Company or the Company on its behalf) wishes to repay
such Long Dated Bonds by the provision of cash cover, it may, provided that it
has given prior notice to the Security Trustee and the relevant Issuing Bank of
that fact, request that the amount of any cash security provided pursuant to
Clause 21 (Security Undertakings) standing
to the credit of the Applicant in the Account (“Existing
Cash Collateral”), be taken into account in calculating the amount
of cash cover so to be provided and only such additional amount of cash cover
shall have to be paid to the Security Trustee as is necessary (when added to
the amount of the Existing Cash


 


13





















 


Collateral) to ensure that the amount to be repaid in respect of such
Long Dated Bonds has been provided in full.


 


6.2           In
addition to any other form of repayment permitted by the terms of this
Agreement, but provided that the relevant Issuing
Bank has given its prior consent to the same, the Applicant (or the relevant
Indemnifying Company or the Company on its behalf) shall, for the purpose only
of complying with its obligations under Clause 6.1 of this Clause 6 to repay
any Long Dated Bond, also be entitled to procure the issuance of a letter of
credit, indemnity or bank guarantee by an issuing institution acceptable to the
relevant Issuing Bank and on terms and conditions acceptable to the relevant
Issuing Bank in respect of the entire liability of that Issuing Bank under the
relevant Long Dated Bond. In the event that the relevant Issuing Bank agrees to
accept such a letter of credit, indemnity or bank guarantee and the same is
duly issued to the relevant Issuing Bank, on the date falling 54 Months after
the date of this Agreement each Bank shall, without the need for any further
action by that Issuing Bank or any of the Banks, be released from the indemnity
given to that Issuing Bank pursuant to sub-clause 7.3.2 of Clause 7.3 (Indemnities) of this Agreement and pursuant to
any equivalent provision in the Interim Bonding Facility Agreement and the
Existing Bonding Facility Agreement in respect of any claim thereafter paid by
that Issuing Bank under the relevant Long Dated Bond.


 


7              BONDS


 


7.1           Immediately
payable


If a Bond or any amount outstanding under a Bond is expressed to be
immediately payable, the Applicant shall repay or prepay that amount
immediately.


 


7.2           Claims
under a Bond


7.2.1        Each
of the Applicant and each Indemnifying Company whose obligations are supported
by a Bond (other than any Migrated Bond issued by HSBC Bank plc under the
Interim Bonding Facility) (the “Relevant Indemnifying Company”)
irrevocably and unconditionally authorises the relevant Issuing Bank to pay any
claim made or purported to be made under that Bond which appears on its face to
be in order (a “claim”).


 


7.2.2        The
relevant Issuing Bank shall promptly notify the Applicant and the Relevant
Indemnifying Company if a claim is made upon it under a Bond. The Applicant and
the Relevant Indemnifying Company agree (on a joint and several basis)
immediately on demand (or, if such Bond provides a time within which the
relevant Issuing Bank must make payment in respect of a claim, no later than
one Business Day before the last date on which the Issuing Bank must make such
payment) to pay to the Agent for the relevant Issuing Bank an amount equal to the
amount of any claim in respect of a Bond.


 


7.2.3        Each
of the Applicant and the Relevant Indemnifying Companies acknowledges that each
Issuing Bank:


 


(a)           is not
obliged to carry out any investigation or seek any confirmation from any other
person before paying a claim; and


 


(b)           deals in
documents only and will not be concerned with the legality of a claim or any
underlying transaction or any available set-off, counterclaim or other defence
of any person.


 


14





















 


7.2.4        The
obligations of the Applicant and a Relevant Indemnifying Company under this
Clause will not be affected by:


 


(a)           the
sufficiency, accuracy or genuineness of any claim or any other document; or


 


(b)           any
incapacity of, or limitation on the powers of, any person signing a claim or
other document.


 


7.3           Indemnities


7.3.1        The
Applicant and the Relevant Indemnifying Company shall (on a joint and several
basis) within 3 Business Days of demand being made by the relevant Issuing Bank
indemnify the relevant Issuing Bank against any cost, loss or liability
incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank’s
gross negligence or wilful misconduct) in acting as the Issuing Bank under any
Bond.


 


7.3.2        Subject
to the provisions of Clause 6.1 of Clause 6 (Long Dated Bonds) and of sub-clause 8.8.2 of Clause
8 (Repayment,
Prepayment and Cancellation), each Bank shall (according to its Proportion) immediately on demand indemnify
the relevant Issuing Bank against any cost, loss or liability incurred by that
Issuing Bank (otherwise than by reason of the Issuing Bank’s gross negligence
or wilful misconduct) in acting as the Issuing Bank under any Bond (unless that
Issuing Bank has been reimbursed by an Obligor pursuant to a Finance Document).


 


7.3.3        The
Applicant and the Relevant Indemnifying Company shall (on a joint and several
basis) within 3 Business Days of demand being made on it reimburse any Bank for
any payment it makes to any Issuing Bank under this Clause 7.3 in respect of a
Bond.


 


7.3.4        The
obligations of the Applicant, each Indemnifying Company and each Bank under
this Clause 7 are continuing obligations and will extend to the ultimate balance
of sums payable by that Applicant, Indemnifying Company or Bank in respect of
any Bond, regardless of any intermediate payment or discharge in whole or in
part.


 


7.3.5        The
obligations of the Applicant, each Indemnifying Company and any Bank under this
Clause 7 will not be affected by any act, omission, matter or thing which, but
for this Clause, would reduce, release or prejudice any of its obligations
under this Clause 7 (without limitation and whether or not known to it or any
other person) including:


 


(a)           any time,
waiver or consent granted to, or composition with, any Obligor, any beneficiary
under a Bond 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, any beneficiary under a Bond or other person or any
non-presentation or non-observance of any formality


 


15





















 


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 power, authority or legal personality of or dissolution
or change in the members or status of an Obligor, any beneficiary under a Bond
or any other person;


 


(e)           any
amendment (however fundamental) or replacement of a Finance Document, any Bond
or any other document or security;


 


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


 


(g)           any
insolvency or similar proceedings.


 


7.4           Rights of
contribution


No Obligor will be entitled to any right of contribution or indemnity
from any Finance Party in respect of any payment it may make under this Clause
7.


 


7.5           Role of the
Issuing Banks


7.5.1        Nothing
in this Agreement constitutes any Issuing Bank as a trustee or fiduciary of any
other person.


 


7.5.2        No
Issuing Bank shall be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own account.


 


7.5.3        Each
Issuing Bank may accept deposits from, lend money to and generally engage in
any kind of banking or other business with any member of the Group.


 


7.5.4        Each
Issuing Bank may rely on:


 


(a)           any
representation, notice or document believed by it to be genuine, correct and
appropriately authorised; and


 


(b)           any
statement made by a director, authorised signatory or employee of any person
regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify.


 


7.5.5        Each
Issuing Bank may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other experts.


 


7.5.6        Each
Issuing Bank may act in relation to the Finance Documents through its personnel
and agents.


 


7.5.7        No
Issuing Bank is responsible for:


 


(a)           the
adequacy, accuracy and/or completeness of any information (whether oral or
written) supplied by that Issuing Bank or any other person given in or in
connection with any Finance Document; or


 


(b)           the
legality, validity, effectiveness, adequacy or enforceability of any Finance
Document or any other agreement, arrangement or document entered into, made or
executed in anticipation of or in connection with any Finance Document.


 


16





















 


7.6           Exclusion
of liability


7.6.1        Without
limiting sub-clause 7.6.2 of this Clause 7.6, no Issuing Bank will be liable
for any action taken by it under or in connection with any Finance Document, unless
directly caused by its gross negligence or wilful misconduct.


 


7.6.2        No
Party (other than an Issuing Bank) may take any proceedings against any officer,
employee or agent of that Issuing Bank in respect of any claim it might have against
that Issuing Bank or in respect of any act or omission of any kind by that
officer, employee or agent in relation to any Finance Document and any officer,
employee or agent of that Issuing Bank may rely on this Clause subject to
Clause 1.3 (Third Party Rights) and
the provisions of the Third Parties Act.


 


7.7           Credit
appraisal by the Banks


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 to each Issuing Bank that it has been, and will continue to be,
solely responsible for making its own independent appraisal and investigation
of all risks arising under or in connection with any Finance Document.


 


8.             REPAYMENT,
PREPAYMENT AND CANCELLATION


 


8.1           Illegality


If it becomes unlawful in any applicable jurisdiction for a Bank to
perform any of its obligations as contemplated by this Agreement or to fund or
maintain its participation in any Utilisation:


 


8.l.l          that Bank shall promptly
notify the Agent upon becoming aware of that event;


 


8.1.2        upon
the Agent notifying the Company and the Applicant, the Commitment of that Bank
will be immediately cancelled; and


 


8.1.3        the
Applicant shall (a) repay that Bank’s participation in the Utilisations and/or
(b) within three Business Days of notice being delivered by the Agent, repay
that Bank’s proportion of any Bond issued by any Issuing Bank or, if the
illegality affects an Issuing Bank in its capacity as such, repay the whole of
any Bond issued by that Issuing Bank, or, at the request of that Bank, take such
other measures as may be reasonably practicable (without undue additional cost
to that Obligor) to cure such unlawfulness, in each case on the date specified
by the Bank in the notice delivered to the Agent (being no earlier than the
last day of any applicable grace period permitted by law).


 


8.2           Change of
control


If a Change of Control occurs, the Company shall promptly notify the
Agent upon becoming aware of that event and the Agent may, and shall if so
directed by the Majority Banks, by notice to the Company:


 


8.2.1        declare
that the Total Commitments are to be cancelled and the Total Commitments shall
be cancelled with effect from the day falling 45 days after such Change of
Control (or, if such day is not a Business Day, the immediately following
Business Day, or if such day would fall into a different calendar month, the
immediately preceding Business Day); and/or


 


8.2.2        declare
that full cash cover in respect of each Bond is due and payable, and such cash
cover shall become due and payable by the Applicant and each


 


17





















 


Relevant Indemnifying Company on the day falling 45 days after such
Change of Control (or, if such day is not a Business Day, the immediately following
Business Day or, if such day would fall into a different calendar month, the
immediately preceding Business Day).


 


8.3           Voluntary cancellation


The Applicant (or the Company on the Applicant’s behalf) may, if it
gives the Agent not less than 5 Business Days’ (or such shorter period as the
Majority Banks may agree) prior notice, cancel the whole or any part (being a
minimum amount of £5,000,000) of the Available Facility. Any cancellation under
this Clause 8.3 shall reduce the Commitments of the Banks rateably.


 


8.4           Voluntary Prepayment


The Applicant (or the Company on the Applicant’s behalf) may, if it
gives the Agent not less than 5 Business Days’ (or such shorter period as the
Majority Banks may agree) prior notice, prepay a Bond through the provision of
cash cover for the whole or any part of the outstanding amount of that Bond.


 


8.5           Right of repayment and cancellation in relation to a
single Bank


8.5.1        If:


 


(a)           any sum
payable to any Bank by an Obligor is required to be increased under sub-clause
13.2.3 of Clause 13.2 (Tax gross-up); or


 


(b)           any Bank
claims indemnification from the Company under Clause 13.3 (Tax
indemnity) or
Clause 14.1 (Increased costs),


 


the Applicant (or the Company on behalf of the Applicant) may, whilst
the circumstance giving rise to the requirement or indemnification continues,
give the Agent notice of cancellation of the Commitment of that Bank and its
intention to procure the repayment of that Bank’s participation in the
Utilisations.


 


8.5.2        On
receipt of a notice referred to in sub-clause 8.5.1 of this Clause 8.5, the Commitment
of that Bank shall immediately be reduced to zero.


 


8.5.3        On
the date specified by the Applicant (or the Company) in the notice under sub-clause
8.5.1 of this Clause 8.5, the Applicant shall repay that Bank’s participation
in each Utilisation.


 


8.6           Restrictions


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


 


8.6.2        Any
prepayment under this Agreement shall be made together with accrued commission
and fees on the amount prepaid and, without premium or penalty.


 


8.6.3        No
amount of the Total Commitments cancelled under this Agreement may be subsequently
reinstated.


 


8.6.4        If
the Agent receives a notice under this Clause 8 it shall promptly forward a copy
of that notice to either the Company or the affected Bank, as appropriate.


 


18





















 


8.6.5        For
the avoidance of doubt, if any Bond has been repaid or prepaid in full (other
than pursuant to the provisions of Clause 23.11 (Remedies)), and each of the conditions and
requirements of Clause 4 (Conditions of Utilisation) and Clause 5 (Utilisation) are satisfied, the Base Currency amount of such Bond
shall become available for re-utilisation pursuant and subject to the terms of
this Agreement.


 


8.7           Cash Cover


On any day where, pursuant to the terms of this Agreement, any Obligor
is required or permitted to repay or prepay any Bond (or part thereof) by the
provision of cash cover or otherwise to provide cash cover in respect of any
Bond other than (for the avoidance of doubt) pursuant to Clause 21 (Security
Undertakings), the
Cash Cover Amount of cash security provided pursuant to Clause 21 (Security
Undertakings) standing
to the credit of the Applicant in the Account on that day shall be taken into
account in calculating the amount of cash cover so to be provided and only such
additional amount of cash cover shall have to be paid to the Security Trustee
as is necessary (when added to the amount of cash security standing to the
credit of the Applicant in the Account to be taken into account pursuant to the
above provisions) to ensure that the amount otherwise to be repaid, prepaid or
provided as cash cover (as the case may) has been provided in full.


 


8.8           Disposal of
Indemnifying Companies


8.8.l         The
Company will not sell or dispose of any shares or other equity interests of any
Indemnifying Company and shall procure that no Subsidiary of the Company will
sell or dispose of any shares or other equity interests of any Indemnifying
Company unless:


 


(a)           each
Issuing Bank which has issued any Bond for the account of the relevant
Indemnifying Company has given its prior consent to the same; or


 


(b)           each
Issuing Bank which has issued any Bond for the account of the relevant
Indemnifying Company has released the relevant Indemnifying Company from its
obligations under or in respect of the Finance Documents in accordance with the
provisions of sub-Clause 8.8.2 below; or


 


(c)           such sale
or disposal is made to the Company or to a Subsidiary of the Company.


 


8.8.2        In
the event of any proposed sale or disposition of all of the shares or equity
interests of any Indemnifying Company, other than a disposal to another member
or members of the Group, each relevant Issuing Bank shall release the relevant
Indemnifying Company from its obligations under or in respect of the Finance
Documents immediately prior to the time at which such sale or disposition is to
become effective provided that each relevant Issuing Bank has at or prior to
such time either received repayment in full in respect of each Bond issued by
that Issuing Bank for the account of the relevant Indemnifying Company or, but
only provided that the relevant Issuing Bank has given its prior consent to the
same, the relevant Indemnifying Company (or the Applicant or the Company on its
behalf) has procured the issuance of a letter of credit, indemnity or bank
guarantee by an issuing institution acceptable to the relevant Issuing Bank and
on terms and conditions acceptable to the relevant Issuing Bank in respect of
the entire liability of that Issuing Bank


 


19





















 


under any Bond issued by that Issuing Bank for the account of the
relevant Indemnifying Company. In the event that the relevant Issuing Bank
agrees to accept such a letter of credit, indemnity or bank guarantee and the
same is duly issued to the relevant Issuing Bank, on the date upon which the
relevant sale or disposition becomes effective each Bank shall, without the
need for any further action by that Issuing Bank or any of the Banks, be
released from the indemnity given to the relevant Issuing Bank pursuant to
sub-clause 7.3.2 of Clause 7.3 (Indemnities) of this Agreement in respect of any claim thereafter
paid by that Issuing Bank under any Bond in respect of which it has accepted
such letter of credit, indemnity or bank guarantee.


 


9.             DEFAULT INTEREST


 


9.1           Default
interest


9.1.1        If
an Obligor fails to pay any amount payable by it under a Finance Document on
its due date, interest shall accrue on the overdue amount from the due date up
to the date of actual payment (both before and after judgment) at a rate per annum
equal to the applicable LIBOR plus 0.50% plus 2% plus the applicable Mandatory
Cost (if any) for successive Interest Periods, each of a duration selected by
the Agent (acting reasonably).  Any
interest accruing under this Clause 9.1 shall be immediately payable by the
relevant Obligor on demand by the Agent.


 


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


 


9.2           Notification of rates of interest


The Agent shall promptly notify the Banks and the Company of the
determination of a rate of interest under this Agreement.


 


10.           CHANGES TO
THE CALCULATION OF INTEREST


 


10.1         Absence
of quotations


Subject to Clause 10.2 (Market disruption), if LIBOR is to be determined by
reference to the Reference Banks but a Reference Bank does not supply a
quotation by the Specified Time on the Quotation Day, the applicable LIBOR
shall be determined on the
basis of the quotations of the remaining Reference Banks.


 


10.2         Market disruption


10.2.1      If
a Market Disruption Event occurs in relation to an Unpaid Sum for any Interest Period,
then the rate of interest on each Bank’s share of that Unpaid Sum for the
Interest Period shall be the rate per annum which is the sum of:


 


(a)           0.50%;


 


(b)           the rate
notified to the Agent by that Bank as soon as practicable and in any event
before interest is due to be paid in respect of that Interest Period, to be
that which expresses as a percentage rate per annum the cost to that Bank of
funding its participation in that Unpaid Sum from whatever source it may
reasonably select; and


 


(c)           the Mandatory
Cost, if any, applicable to that Bank’s participation in the Unpaid Sum.


 


20





















 


10.2.2      In this
Agreement “Market Disruption Event”
means:


 


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


 


(b)           before
close of business in London on the Quotation Day for the relevant Interest
Period, the Agent receives notifications from a Bank or Banks (whose
participations in an Unpaid Sum exceed 35 per cent, of that Unpaid Sum) that
the cost to it of obtaining matching deposits in the Relevant Interbank Market
would be in excess of LIBOR.


 


10.3         Alternative
basis of interest or funding


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


 


10.3.2      Any
alternative basis agreed pursuant to sub-clause 10.3.1 of this Clause 10.3 shall,
with the prior consent of all the Banks and the Company, be binding on all
Parties.


 


11.           BREAK COSTS


 


11.1         Payment


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


 


11.2         Determination


Each Bank shall, as soon as reasonably practicable after a demand by
the Agent, provide a certificate confirming the amount of its Break Costs for
any Interest Period in which they accrue.


 


12.           FEES


 


12.1         Arrangement
fee


The Company shall on the date of this Agreement pay to the Agent for
distribution to the Banks an arrangement fee in an amount and at the time
agreed in the Arrangement Fee Letter.


 


12.2         Commitment
fee


12.2.1      The
Applicant shall pay to the Agent (for the account of each Bank) a fee in the
Base Currency computed at the rate of 0.25% per cent. per annum on that Bank’s
Available Commitment for the Availability Period.


 


12.2.2      The
accrued commitment fee is payable on the last day of each successive period of
three Months which ends during the Availability Period, on the last day of the
Availability Period and, if cancelled in full, on the cancelled amount of the
relevant Bank’s Commitment at the time the cancellation is effective.


 


21





















 


12.3         Bonding
Fee


12.3. l      The
Applicant shall pay to the Agent (for the account of each Bank) a bonding fee
in the currency of the relevant Bond (other than any Migrated Bond issued by
HSBC Bank plc under the Interim Bonding Facility) in the amount of 0.50% per
annum on the outstanding amount of each such Bond (but ignoring for the
purposes of this Clause any repayment or prepayment of any such Bond by the
provision of cash cover and also ignoring all payments of cash security
pursuant to the requirements of Clause 21 (Security Undertakings)) for the period from (and
including) the Utilisation Date until (but not including) the next Quarter
Date, and on each subsequent Quarter Date prior to the Expiry Date of the Relevant
Bond (provided
that in respect of any Bond which has been repaid or prepaid
in accordance with paragraph (ii) or (iii) of sub-clause 1.2.1(h) of
Clause 1.2 (Construction) such
fee shall no longer be payable in respect of the period after such prepayment
or repayment has been made). This fee shall be distributed according to each
Bank’s Proportion of the relevant Bond (provided that in respect of any Long
Dated Bond which has been duly repaid in accordance with Clause 6.1 and Clause
6.2 of Clause 6 (Long Dated Bonds), such fee shall no longer be
distributed to each Bank in respect of the period after such repayment has been
made) and shall be payable in arrear on each Quarter Date following the
Utilisation Date in respect of the relevant Bond and on the Expiry Date of the
relevant Bond.


 


12.3.2      The
Applicant shall pay to the Agent (for the account of the relevant Issuing Bank)
in respect of each Migrated Bond issued by HSBC Bank plc under the Interim
Bonding Facility a bonding fee in the currency of the relevant Bond in the
amount of 2% per annum on the outstanding amount of each such Bond or £25
(whichever is the higher) on the last day of each successive period of one
Month from the Utilisation Date of each such Migrated Bond whilst each such
Migrated Bond is outstanding.


 


12.4         Issuance Fee


The Applicant shall pay to the Agent (for the account of the relevant
Issuing Bank) on the Utilisation Date in respect of each Bond (other than any
Migrated Bond) an issuance fee of £500 in respect of such Bond.


 


13.           TAX GROSS
UP AND INDEMNITIES


 


13.1         Definitions


13.1.1      In this Agreement:


 


“Protected Party” means
a Finance Party which is or will be subject to any liability, or required to
make any payment, for or on account of Tax in relation to a sum received or receivable
(or any sum deemed for the purposes of Tax to be received or receivable) under
a Finance Document.


 


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


 


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


 


“Tax Payment” means
either the increase in a payment made by an Obligor to a Finance Party under
Clause 13.2 (Tax gross-up) or a payment under Clause 13.3 (Tax
indemnity).


 


22





















 


13.1.2      Unless
a contrary indication appears, in this Clause 13 a reference to “determines” or
“determined” means a determination made in the absolute discretion of the
person making the determination.


 


13.2         Tax gross-up


13.2.1      Each
Obligor shall make all payments to be made by it without any Tax Deduction,
unless a Tax Deduction is required by law.


 


13.2.2      The
Company shall promptly upon becoming aware that an Obligor must make a Tax
Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Agent accordingly. 
Similarly, a Finance Party shall notify the Agent on becoming so aware
in respect of a payment payable to that Finance Party.  If the Agent receives such notification from
a Finance Party it shall notify the Company and that Obligor.


 


13.2.3      If
a Tax Deduction is required by law to be made by an Obligor, the amount of the
payment due from that Obligor shall be increased to an amount which (after
making any Tax Deduction) leaves an amount equal to the payment which would
have been due if no Tax Deduction had been required.


 


13.2.4      If
an Obligor is required to make a Tax Deduction, that Obligor shall make that
Tax Deduction and any payment required in connection with that Tax Deduction
within the time allowed and in the minimum amount required by law.


 


13.2.5      Within
thirty days of making either a Tax Deduction or any payment required in
connection with that Tax Deduction, the Obligor making that Tax Deduction shall
deliver to the Agent for the Finance Party entitled to the payment evidence
reasonably satisfactory to that Finance Party that the Tax Deduction has been
made or (as applicable) any appropriate payment paid to the relevant taxing
authority.


 


13.3         Tax
indemnity


13.3.1      The
Company shall (within three Business Days of demand by the Agent) pay to a
Protected Party an amount equal to the loss, liability or cost which that Protected
Party determines will be or has been (directly or indirectly) suffered for or
on account of Tax by that Protected Party in respect of a Finance Document.


 


13.3.2      Sub-clause
13.3.1 of this Clause 13.3 shall not apply:


 


(a)           with respect to any Tax
assessed on a Finance Party:


 


(i)            under the
law of the jurisdiction in which that Finance Party is incorporated or, if different,
the jurisdiction (or jurisdictions) in which that Finance Party is treated as
resident for tax purposes; or


 


(ii)           under the
law of the jurisdiction in which that Finance Party’s Facility Office is
located in respect of amounts received or receivable in that jurisdiction,


 


if that Tax is imposed on or calculated by reference to the net income
received or receivable (but not any sum deemed to be received or receivable) by
that Finance Party; or


 


23





















 


(b)           to the
extent a loss, liability or cost is compensated for by an increased payment
under Clause 13.2 (Tax gross-up);


 


13.3.3      A
Protected Party making, or intending to make a claim under sub-clause 13.3.1 of
this Clause 13.3 shall promptly notify the Agent of the event which will give,
or has given, rise to the claim, following which the Agent shall notify the
Company.


 


13.3.4      A
Protected Party shall, on receiving a payment from an Obligor under this Clause
13.3, notify the Agent.


 


13.4         Tax
Credit


If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:


 


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


 


13.4.2      that
Finance Party has obtained, utilised and retained that Tax Credit,


 


the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been required to be made
by the Obligor.


 


13.5         Stamp
taxes


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


 


13.6         Value
added tax


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


 


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


 


14.           INCREASED COSTS


 


14.1         Increased
costs


14.1.1      Subject
to Clause 14.3 (Exceptions) the Company shall, within three Business Days of a
demand by the Agent, pay for the account of a Finance Party the amount of any
Increased Costs incurred by that Finance Party or any of its Affiliates as a
result of (a) the introduction of or any change in (or in the
interpretation, administration or application of) any law or regulation or (b) compliance
with any law or regulation made after the date of this Agreement.


 


24





















 


14.1.2      In this Agreement “Increased Costs” means:


 


(a)           a
reduction in the rate of return from the Facility or on a Finance Party’s (or
its Affiliate’s) overall capital;


 


(b)           an
additional or increased cost; or


 


(c)           a
reduction of any amount due and payable under any Finance Document,


 


which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance Party having
entered into its Commitment or funding or performing its obligations under any
Finance Document.


 


14.2         Increased cost claims


14.2.1      A
Finance Party intending to make a claim pursuant to Clause 14.1 (Increased
costs) shall
notify the Agent of the event giving rise to the claim, following which the
Agent shall promptly notify the Company.


 


14.2.2      Each
Finance Party shall, as soon as practicable after a demand by the Agent, provide
a certificate confirming the amount of its Increased Costs.


 


14.3         Exceptions


14.3.1      Clause
14.1 (Increased
costs) does not
apply to the extent any Increased Cost is:


 


(a)           attributable
to a Tax Deduction required by law to be made by an Obligor;


 


(b)           compensated
for by Clause 13.3 (Tax indemnity);


 


(c)           compensated
for by the payment of the Mandatory Cost; or


 


(d)           attributable
to the wilful breach by the relevant Finance Party or its Affiliates of any law
or regulation.


 


14.3.2      In
this Clause 14.3, a reference to a “Tax
Deduction” has the same meaning given to the term in Clause 13.1 (Definitions).


 


15.           OTHER INDEMNITIES


 


15.1         Currency
indemnity


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


 


(a)           making or
filing a claim or proof against that Obligor;


 


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


 


that Obligor shall as an independent obligation, within three Business
Days of demand, indemnify each Finance Party to whom that Sum is due against
any cost, loss or liability arising out of or as a result of the conversion
including any discrepancy between (i) the rate of exchange used to convert
that Sum


 


25





















 


from the First Currency into the Second Currency and (ii) the rate
or rates of exchange available to that person at the time of its receipt of
that Sum.


 


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


 


15.2         Other
indemnities


The Company shall (or shall procure that an Obligor will), within three
Business Days of demand, indemnify each Finance Party against any cost, loss or
liability incurred by that Finance Party as a result of:


 


15.2.1      the
occurrence of any Event of Default; or


 


15.2.2      a
failure by an Obligor to pay any amount due under a Finance Document on its due
date, including without limitation, any cost, loss or liability arising as a
result of Clause 28 (Sharing among the Finance Parties).


 


15.3         Indemnity to the Agent and Security Trustee


The Company shall promptly indemnify the Agent and the Security Trustee
against any cost, loss or liability incurred by the Agent or the Security
Trustee as a result of:


 


15.3.1      investigating
any event which it reasonably believes is a Default; or


 


15.3.2      acting
or relying on any notice, request or instruction which it reasonably believes
to be genuine, correct and appropriately authorised.


 


16.           MITIGATION BY THE BANKS


 


16.1         Mitigation


16.1.1      Each
Finance Party shall, in consultation with the Company, take all reasonable
steps to mitigate any circumstances which arise and which would result in any
amount becoming payable under or pursuant to, or cancelled pursuant to, any of
Clause 8.1 (Illegality), Clause
13 (Tax
gross-up and indemnities), Clause
14 (Increased
costs) or
paragraph 3 of Schedule 4 (Mandatory Cost Formulae) including (but not limited to)
transferring its rights and obligations under the Finance Documents to another
Affiliate or Facility Office or to another bank or financial institution
willing to participate in the Facility (provided that no Finance Party shall
have any obligation to take any steps to identify any such other bank or
financial institution).


 


16.1.2      Sub-clause
16.1.1 of this Clause 16.1 does not in any way limit the obligations of any
Obligor under the Finance Documents.


 


16.2         Limitation
of liability


16.2.1      The
Company shall indemnify each Finance Party for all costs and expenses reasonably
incurred by that Finance Party as a result of steps taken by it under Clause
16.1 (Mitigation).


 


16.2.2      A
Finance Party is not obliged to take any steps under Clause 16.1 (Mitigation) if, in the opinion of that Finance
Party (acting reasonably), to do so might be prejudicial to it.


 


26





















 


17.           COSTS AND EXPENSES


 


17.1         Transaction
expenses


The Company shall promptly on demand pay the Agent and the Security
Trustee the amount of all costs and expenses (including legal fees) reasonably
incurred by either of them in connection with the negotiation, preparation,
printing, execution and syndication of:


 


17.1.1      this
Agreement and any other documents referred to in this Agreement (including any
amendment to any other Finance Document in existence at the date of this
Agreement); and


 


17.1.2      any
other Finance Documents executed after the date of this Agreement.


 


17.2         Amendment
costs


If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 29.9 (Change of currency), the Company shall, within three
Business Days of demand, reimburse the Agent and the Security Trustee for the
amount of all costs and expenses (including legal fees) reasonably incurred by
the Agent or the Security Trustee in responding to, evaluating, negotiating or
complying with that request or requirement.


 


17.3         Enforcement
costs


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


 


18.           GUARANTEE AND INDEMNITY


 


18.1         Guarantee
and indemnity


With effect from the Effective Date, the Company irrevocably and
unconditionally:


 


18.1.1      guarantees
to each Finance Party punctual performance by each other Obligor of all of that
Obligor’s obligations under the Finance Documents;


 


18.1.2      undertakes
with each Finance Party that whenever an Obligor does not pay any amount when
due under or in connection with any Finance Document, the Company shall
immediately on demand pay that amount as if it was the principal obligor; and


 


18.1.3      indemnifies
each Finance Party immediately on demand against any cost, loss or liability
suffered by that Finance Party if any obligation guaranteed by it is or becomes
unenforceable, invalid or illegal.  The
amount of the cost, loss or liability shall be equal to the amount which that
Finance Party would otherwise have been entitled to recover.


 


18.2         Continuing
guarantee


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


 


27


















 


18.3         Reinstatement


If any payment by
an Obligor or any discharge given by a Finance Party under or in respect of any
Finance Document (whether in respect of the obligations of any Obligor or any
security for those obligations or otherwise) is avoided or reduced as a result
of insolvency or any similar event:


 


18.3.1      the
liability of each Obligor shall continue as if the payment, discharge, avoidance
or reduction had not occurred; and


 


18.3.2      each
Finance Party shall be entitled to recover the value or amount of that security
or payment from each Obligor, as if the payment, discharge, avoidance or
reduction had not occurred.


 


18.4         Waiver of defences


The obligations of
the Company under this Clause 18 will not be affected by any act, omission,
matter or thing which, but for this Clause, would reduce, release or prejudice
any of its obligations under this Clause 18 including (without limitation and
whether or not known to it or any Finance Party):


 


18.4.1      any
time, waiver or consent granted to, or composition with, any Obligor or other
person;


 


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


 


18.4.3      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;


 


18.4.4      any
incapacity or lack of power, authority or legal personality of or dissolution
or change in the members or status of an Obligor or any other person;


 


18.4.5      any
amendment (however fundamental) or replacement of a Finance Document or any
other document or security;


 


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


 


18.4.7      any
insolvency or similar proceedings.


 


18.5        Immediate
recourse


The Company 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 the Company under this
Clause 18. This waiver applies irrespective of any law or any provision of a
Finance Document to the contrary.


 


28





















 


18.6         Appropriations


Until all amounts which may be or become payable by the Obligors 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:


 


18.6.1      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 (whether against those
amounts or otherwise) and the Company shall not be entitled to the benefit of
the same; and


 


18.6.2      hold in an interest-bearing suspense account
any moneys received from the Company or on account of the Company’s liability
under this Clause 18.


 


18.7         Deferral of Company’s rights


Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid in full
and unless the Agent otherwise directs, the Company will not exercise any
rights which it may have by reason of performance by it of its obligations
under the Finance Documents:


 


18.7.1      to be indemnified by an Obligor;


 


18.7.2      to claim any contribution from any other
guarantor of any Obligor’s obligations under the Finance Documents; and/or


 


18.7.3      to take the benefit (in whole or in part and
whether by way of subrogation or otherwise) of any rights of the Finance
Parties under the Finance Documents or of any other guarantee or security taken
pursuant to, or in connection with, the Finance Documents by any Finance Party.


 


18.8        Additional security


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


 


19.          REPRESENTATIONS


Other than where expressly stated to the contrary, each Obligor makes the
representations and warranties set out in this Clause 19 to each Finance Party
on the date of this Agreement.


 


19.1        Status


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


 


19.2        Binding obligations


The obligations expressed to be assumed by it in each Finance Document
are, subject to any general principles of law limiting its obligations which
are specifically referred to in any legal opinion delivered pursuant to Clause
4 (Conditions
of Utilisation) or
Clause 25 (Changes to the Obligors), legal, valid, binding and enforceable obligations.


 


19.3        Non-conflict
with other obligations


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


 


19.3.1      any law or regulation applicable to it;


 


19.3.2      its
constitutional documents; or


 


29





















 


19.3.3      any
agreement or instrument binding upon it or any of its assets.


 


19.4         Power and authority


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


 


19.5         Validity and admissibility
in evidence


All Authorisations
required or desirable:


 


19.5.1      to
enable it lawfully to enter into, exercise its rights and comply with its obligations
in the Finance Documents to which it is a party; and


 


19.5.2      to
make the Finance Documents to which it is a party admissible in evidence in its
jurisdiction of incorporation,


 


have been obtained
or effected and are in full force and effect.


 


19.6         Governing law and
enforcement


Subject to any
reservations, qualifications or assumptions contained in any of the legal
opinions delivered pursuant to paragraph 2, Part A (Conditions Precedent to Initial
Utilisation), Schedule 2
or pursuant to paragraphs 7 and 8, Part B (Conditions Precedent Required to be
Delivered by an Additional Obligor), Schedule 2 of this Agreement which are accepted by the
Facility Agent:


 


19.6.1      the
choice of English law as the governing law of the Finance Documents will be
recognised and enforced in its jurisdiction of incorporation; and


 


19.6.2      any
judgment obtained in England in relation to a Finance Document will be recognised
and enforced in its jurisdiction of incorporation.


 


19.7         No filing or stamp taxes


Under the law of
its jurisdiction of incorporation it is not necessary that the Finance
Documents be filed, recorded or enrolled with any court or other authority in
that jurisdiction or that any stamp, registration or similar tax be paid on or
in relation to the Finance Documents or the transactions contemplated by the
Finance Documents.


 


19.8        No default


(made only by the
Company) No Event of Default is continuing or might reasonably be expected to
result from the making of any Utilisation.


 


19.9        Security


(made only by the
Applicant) The Security expressed to be created under the New Security
Agreement constitutes a valid, first priority charge over the assets expressed
to be charged thereunder.


 


19.10      Pari passu ranking


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


 


19.11      No proceedings pending or threatened


No litigation,
arbitration or administrative proceedings of or before any court, arbitral body
or agency which is continuing against any member of the Group which has been or
is reasonably likely to be adversely determined and which (if already adversely
determined) has had or (if adversely determined) would have a Material Adverse
Effect.


 


30





















 


19.12       Repetition


The Repeating
Representations are deemed to be made by each Obligor by reference to the facts
and circumstances then existing on:


 


19.12.1    the
date of each Utilisation Request and the first day of each Term; and


 


19.12.2    in
the case of an Additional Indemnifying Company, the day on which the company
becomes (or it is proposed that the company becomes) an Additional Indemnifying
Company.


 


20.           INFORMATION UNDERTAKINGS


 


20.1         Information:
miscellaneous


The Company shall
supply to the Agent (in sufficient copies for all the Banks, if the Agent so
requests):


 


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


 


20.1.2      as
soon as reasonably practicable upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings against any member of the
Group which is continuing and which has been or is reasonably likely to be
adversely determined and which (if already adversely determined) has had or (if
adversely determined) would have a Material Adverse Effect; and


 


20.1.3      promptly,
such further information regarding the financial condition, business and
operations of any member of the Group as any Finance Party (through the Agent)
may reasonably request.


 


20.2         Notification of default


20.2.1      Each
Obligor shall notify the Agent of any Default (and the steps, if any, being
taken to remedy it) promptly upon becoming aware of its occurrence (unless that
Obligor is aware that a notification has already been provided by another
Obligor).


 


20.2.2      Promptly
upon a request by the Agent, the Company shall supply to the Agent a
certificate signed by two of its directors or senior officers on its behalf certifying
that to the best of the Company’s knowledge and belief (after making due and
proper enquiry) no Default is continuing (or if a Default is continuing,
specifying the Default and the steps, if any, being taken to remedy it).


 


20.3         “Know
your customer” checks


20.3.1      If:


 


(a)           the introduction
of or any change in (or in the interpretation, administration or application
of) any law or regulation made after the date of this Agreement;


 


(b)           any change
in the status of an Obligor after the date of this Agreement;


 


(c)           a proposed
assignment or transfer by a Bank of any of its rights and obligations under
this Agreement to a party that is not a Bank prior to such assignment or
transfer,


 


obliges the Agent
or any Bank (or, in the case of paragraph (c) above, any prospective new
Bank) to comply with “know your customer” or similar


 


31





















 


identification procedures in circumstances where the necessary
information is not already available to it, each Obligor shall promptly upon
the request of the Agent or any Bank supply such documentation and other
evidence as is available to it and which is reasonably requested by the Agent
(for itself or on behalf of any Bank) or any Bank (for itself or, in the case
of the event described in paragraph (c) above, on behalf of any
prospective new Bank) in order for the Agent, such Bank or, in the case of the
event described in paragraph (c) above, any prospective new Bank to carry
out and be satisfied it has complied with all necessary “know your customer” or
other similar checks under all applicable laws and regulations pursuant to the
transactions contemplated in the Finance Documents.


 


20.3.2      Each Bank shall promptly upon the request of
the Agent supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Agent (for itself) in order for the
Agent to carry out and be satisfied it has complied with all necessary “know
your customer” or other similar checks under all applicable laws and regulations
pursuant to the transactions contemplated in the Finance Documents.


 


20.3.3      The Company shall, by not less than 10
Business Days’ prior written notice to the Agent, notify the Agent (which shall
promptly notify the Banks) of its intention to request that one of its Subsidiaries
becomes an Additional Indemnifying Company pursuant to Clause 25 (Changes
to the Obligors).


 


20.3.4      Following the giving of any notice pursuant
to sub-clause 20.3.3 above, if the accession of such Additional Indemnifying
Company obliges the Agent or any Bank to comply with “know your customer” or similar
identification procedures in circumstances where the necessary information is
not already available to it, the Company shall promptly upon the request of the
Agent or any Bank supply such documentation and other evidence as is available
to it and which is reasonably requested by the Agent (for itself or on behalf
of any Bank) or any Bank (for itself or on behalf of any prospective new Bank)
in order for the Agent or such Bank or any prospective new Bank to carry out and
be satisfied it has complied with the results of all necessary “know your customer”
or other similar checks under all applicable laws and regulations pursuant to
the accession of such Subsidiary to this Agreement as an Additional
Indemnifying Company.


 


20.4         Duration of Undertakings


The undertakings in this Clause 20 remain in force from the date of
this Agreement until the earlier of (a) the date which is 54 Months after
this Agreement and (b) the date upon which all Bonds have been repaid or
prepaid.


 


21.           SECURITY UNDERTAKINGS


 


21.1         Recalculation of cash
security


The Security Trustee shall on the last 10th Business Day of each Month (or as otherwise
agreed by the Agent and the Applicant) (the “Calculation
Date”) after the date of this Agreement recalculate the Cash Cover
Amount of all of the unexpired Bonds outstanding at the close of business on
the previous Business Day and the Security Trustee shall promptly notify the
Company of the amount so determined. If the Security Trustee so requires, the
Applicant shall within three Business Days of receiving a relevant notification
by the Security Trustee ensure that a further amount is deposited in the
Account to ensure that the Security Trustee holds cash security in an


 


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amount at least equal to 50% of the Cash Cover Amount of all unexpired
Bonds at the Calculation Date.


 


21.2         Release of cash security


If no Default has occurred and is continuing and the Security Trustee
holds cash security pursuant to the New Security Agreement in an amount in
excess of 50% of the Cash Cover Amount (such amount being the “Excess Cash Security”) of all unexpired
Bonds on the Calculation Date the Applicant may request in writing that the
Security Trustee pay to the Applicant the Excess Cash Security within 3
Business Days of date of receipt by the Security Trustee of that request
provided that the amount of the Excess Cash Security is equal to or greater
than £5,000.


 


21.3         Continuing rights


The Applicant’s obligations to provide cash security in accordance with
Clause 21.1 (Recalculation of cash security) are and shall be without prejudice
to any other obligation of the Company, the Applicant or any Indemnifying
Company to provide any other cash cover pursuant to the terms of this
Agreement.


 


21.4         Interest


Interest shall accrue on the balance standing to the credit of the
Account at such commercial rate and with such interest periods as the Security
Trustee shall specify from time to time. Unless otherwise agreed, all such
interest on the Account shall be for the account of the Applicant and be
credited to the Account and paid quarterly in arrear to the Applicant.


 


21.5         Top-up Cash Security


Irrespective of any other provision of this Agreement or of any other
Finance Document on the date falling 3 Business Days after the delivery by the
Agent to the Applicant of a notice in writing requiring the same the Applicant
will, as security for its obligations under the Finance Documents, by no later
than 11 a.m. on that day deposit as cash security in the Base Currency an
amount equal to 100% of the Cash Cover Amount of all Bonds to the Account.


 


For the avoidance of doubt, the provisions of this Clause 21.5 shall
where applicable, override the provisions of Clause 21.1 (Recalculation
of cash security), and
Clause 21.2, (Release of cash security) and any other provision of any
other Finance Document which purports to restrict or release the Applicant from
any obligation to provide cash cover of less than the amounts stipulated in
this Clause 21.5.


 


22.          GENERAL
UNDERTAKINGS


The undertakings in this Clause 22 remain in force from the date of
this Agreement until the earlier of (a) the date which is 54 Months after
the date of this Agreement and (b) the date upon which all Bonds have been
repaid or prepaid.


 


22.1        Authorisations


Each Obligor shall promptly:


 


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


 


22.1.2      supply certified copies to the Agent of,


 


any Authorisation required under any law or regulation of its
jurisdiction of incorporation to enable it to perform its obligations under the
Finance Documents and


 


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to ensure the legality, validity, enforceability or admissibility in
evidence in its jurisdiction of incorporation of any Finance Document.


 


22.2         Compliance with laws


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


 


22.3         Applicant to be special purpose vehicle


The Applicant shall not trade or carry on any business, own any assets
or incur any liabilities except (a) for those contemplated by the Finance
Documents, (b) pursuant to the Interim Bonding Facility and any other
bonding arrangements in place on the date of this Agreement (and the related
collateral in respect thereof), (c) for loans provided to the Applicant by
other members of the Group the proceeds of which are or have been applied by
the Applicant in providing cash cover or cash security pursuant to the terms of
this Agreement or the Interim Bonding Facility, and (d) for and in
connection with the carrying out of such activities necessary to or directly
incidental to the maintenance of its corporate existence.


 


22.4         Other Bonding Facilities


22.4.1      Subject to Clause 22.4.2 and until 19 November 2007,
if any Obligor enters into any new bonding facility (the “New Bonding
Facility”) it shall offer to the Agent, the Issuing Banks and the
Banks the option for the Banks to enter into a new bonding facility (the “Replacement Facility”) on the same terms as the New Bonding
Facility (but with parties and a level of commitment the same as under this
Facility) and to migrate any Bonds under this Agreement to the Replacement
Facility so that those Bonds benefit from the same terms as any bonds issued
under the New Bonding Facility.


 


22.4.2      Clause 22.4.1 shall not apply if the New
Bonding Facility:


 


(a)           is solely to support the obligations owed by
one Indemnifying Company; and


 


(b)           has a level of commitment that does not
exceed £5 million.


 


23.          EVENTS OF DEFAULT


 


23.1        Non-payment


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


 


23.1.1      its failure to pay is caused by administrative or technical error; and


 


23.1.2      payment is made within 3 Business Days of its due date.


 


23.2        Security


Any requirement of Clause 21 (Security undertakings) is not satisfied unless:


 


23.2.1      its failure to pay is caused by administrative or technical error; and


 


23.2.2      payment is made within 3 Business Days of its due date.


 


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23.3         Other obligations


23.3.1      An Obligor does not comply with any provision
of the Finance Documents (other than those referred to in Clause 23.1 (Non-payment) and Clause 23.2 (Security)).


 


23.3.2      No Event of Default under sub-clause 23.3.1 of
this Clause 23.3 in relation will occur if the failure to comply is capable of
remedy and is remedied within 15 Business Days of the Agent giving notice to
the Company or the Company becoming aware of the failure to comply.


 


23.4         Misrepresentation


Any representation or statement made or deemed to be made by an Obligor
in the Finance Documents or any other document delivered by or on behalf of any
Obligor under or in connection with any Finance Document is or proves to have
been incorrect or misleading in any material respect when made or deemed to be
made and it is not remedied (if capable of remedy) within 15 Business Days of
the earlier of the Company’s knowledge that such representation or statement
was inaccurate or notice thereof to the Company from the Agent.


 


23.5        Cross default


23.5.1      Any Financial Indebtedness of any member of
the Group is not paid when due nor
within any originally applicable grace period.


 


23.5.2      Any Financial Indebtedness of any member of
the Group is declared to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default (however described) but,
for the avoidance of doubt, the timely payment by a member of the Group of a
claim under a guarantee or indemnity by that member of the Group in respect of
the obligations of a non-member of the Group shall not constitute an Event of
Default.


 


23.5.3      Any commitment for any Financial Indebtedness
of any member of the Group is cancelled or suspended by a creditor of any
member of the Group as a result of an event of default (however described).


 


23.5.4      Any creditor of any member of the Group
becomes entitled to declare any Financial Indebtedness of any member of the
Group due and payable prior to its specified maturity as a result of an event
of default (however described) and that member of the Group commences
negotiations with the relevant creditor with a view to improving the position
of that creditor.


 


23.5.5      No Event of Default will occur under this
Clause 23.5 if the aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within sub-clauses 23.5.1 to 23.5.4 of this Clause
23.5 is less than £35,000,000 (or its equivalent) or the payment in question or
the occurrence of the relevant event of default (however described), is being
contested in good faith by the relevant member of the Group.


 


23.6        Insolvency


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


 


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


 


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23.6.3      A moratorium is declared in respect of any
indebtedness of the Company or the Applicant.


 


23.7         Insolvency proceedings


Any corporate action, legal proceedings or other procedure or step is
taken in relation to:


 


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


 


23.7.2      a composition, assignment or arrangement with
any creditor of the Company or the Applicant;


 


23.7.3      the appointment of a liquidator, receiver, administrator,
administrative receiver, compulsory manager or other similar officer in respect
of the Company or the Applicant or any of its assets; or


 


23.7.4      enforcement of any Security over any assets
of the Company or the Applicant,


 


or any analogous procedure or step is taken in any
jurisdiction, save that the above provisions do not apply to (a) the mere
presentation of a statutory demand against the Company or the Applicant or the
presentation of a petition for the winding-up of the Company or the Applicant
by a creditor provided that the same is contested in good faith and with due
diligence and is discharged or struck out within 30 days of the presentation
thereof or (b) (for the avoidance of doubt) the set-off against or
appropriation by the Security Trustee or any Bank of any moneys standing to the
credit of the Account or other account with the Security Trustee or any Bank
into which cash cover has been paid pursuant to the terms of the New Security
Agreement or the security document relating to that account in circumstances
where such set-off or appropriation is made in satisfaction of the liabilities
of the Applicant or any Relevant Indemnifying Company under sub-clause 7.2.2 of
Clause 7.2 (Claims under a Bond) or
sub-clause 7.3.2 of Clause 7.3 (Indemnities).


 


23.8        Unlawfulness


It is or becomes unlawful for an Obligor to perform any of its
obligations under the Finance Documents unless, in the case of an Indemnifying
Company, the Applicant provides full cash cover in respect of each Bond issued
to support the obligations of that Indemnifying Company.


 


23.9        Repudiation


An Obligor repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.


 


23.10      Audit
Qualification


The auditors of the Group materially and adversely qualify the audited
annual consolidated financial statements of the Company.


 


23.11      Remedies


On and at any time after the occurrence of an Event of Default which is
continuing:


 


23.11.1    the Agent shall if so directed by any Bank,
by notice to the Company:


 


(a)           cancel the Commitment of that Bank whereupon
that Commitment shall immediately be cancelled; and/or


 


36





















 


(b)           declare that full cash cover in respect of
that Bank’s participation under this Agreement in respect of each Bond is
immediately due and payable whereupon it shall become immediately due and
payable by the Applicant and each Relevant Indemnifying Company; and


 


23.11.2    the Agent may, and shall if so directed by the Majority Banks, by
notice to the Company:


 


(a)           cancel the Total Commitments whereupon they
shall immediately be cancelled; and/or


 


(b)           declare that full cash cover in respect of
each Bond is immediately due and payable whereupon it shall become immediately
due and payable by the Applicant and each Relevant Indemnifying Company.


 


24.           CHANGES TO THE BANKS


 


24.1         Assignments and transfers by
the Banks


Subject to this Clause 24, a Bank (the “Existing
Bank”) may:


 


24.1.1      assign any of its rights; or


 


24.1.2      transfer by novation any of its rights and obligations,


 


under the Finance Documents to another bank or financial institution or
to a trust, fund or other entity which is regularly engaged in or established
for the purpose of making, purchasing or investing in loans, securities or
other financial assets (the “New Bank”).


 


24.2         Conditions of assignment or transfer


24.2.1      The consent of each Issuing Bank is required for an assignment or
transfer by a Bank.


 


24.2.2      The consent of the Applicant is required for
an assignment or transfer by an Existing Bank, unless the assignment or
transfer is to another Bank or an Affiliate of a Bank.


 


24.2.3      The consent of the Applicant to an assignment
or transfer must not be unreasonably withheld or delayed. The Applicant will be
deemed to have given its consent five Business Days after the Existing Bank has
requested it unless consent is expressly refused by the Applicant within that
time.


 


24.2.4      The consent of the Applicant to an assignment
or transfer must not be withheld solely because the assignment or transfer may
result in an increase to the Mandatory Cost.


 


24.2.5      An assignment will only be effective on:


 


(a)           receipt by the Agent of written confirmation
from the New Bank (in form and substance satisfactory to the Agent) that the
New Bank will assume the same obligations to the other Finance Parties as it
would have been under if it was an Original Bank; and


 


(b)           performance by the Agent of all “know your
customer” or other checks relating to any person that it is required to carry
out in relation to such assignment to a New Bank, the completion of which the
Agent shall promptly notify to the Existing Bank and the New Bank.


 


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24.2.6      A transfer will only be effective if all the
procedures set out in Clause 24.5 (Procedure for transfer) are complied with.


 


24.2.7      If:


 


(a)           a Bank assigns or transfers any of its rights
or obligations under the Finance Documents or changes its Facility Office; and


 


(b)           as a result of circumstances existing at the
date the assignment, transfer 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 (Tax gross-up and indemnities) or Clause 14 (Increased
Costs),


 


then the New Bank or Bank acting through its new Facility Office is
only entitled to receive payment under those Clauses to the same extent as the
Existing Bank or Bank acting through its previous Facility Office would have
been if the assignment, transfer or change had not occurred.


 


24.3         Assignment or transfer fee


The New Bank shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of £1,000.


 


24.4         Limitation of responsibility of Existing Banks


24.4.1      Unless expressly agreed to the contrary, an Existing
Bank makes no representation or warranty and assumes no responsibility to a New
Bank for:


 


(a)           the legality, validity, effectiveness,
adequacy or enforceability of the Finance Documents or any other documents;


 


(b)           the financial condition of any Obligor;


 


(c)           the performance and observance by any Obligor
of its obligations under the Finance Documents or any other documents; or


 


(d)           the accuracy of any statements (whether
written or oral) made in or in connection with any Finance Document or any
other document,


 


and any representations or warranties implied by law are excluded.


 


24.4.2      Each New Bank confirms to the Existing Bank
and the other Finance Parties that it:


 


(a)           has made (and shall continue to make) 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


 


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


 


24.4.3      Nothing in any Finance Document obliges an
Existing Bank to:


 


(a)           accept a re-transfer from a New Bank of any of
the rights and obligations assigned or transferred under this Clause 24; or


 


38





















 


(b)           support any losses directly or indirectly
incurred by the New Bank by reason of the non-performance by any Obligor of its
obligations under the Finance Documents or otherwise.


 


24.5         Procedure for transfer


 


24.5.1      Subject to the conditions set out in Clause
24.2 (Conditions
of assignment or transfer) a
transfer is effected in accordance with sub-clause 24.5.2 of this Clause 24.5
when the Agent executes an otherwise duly completed Transfer Certificate
delivered to it by the Existing Bank and the New Bank. The Agent shall, as soon
as reasonably practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of this Agreement
and delivered in accordance with the terms of this Agreement, execute that
Transfer Certificate.


 


24.5.2      The Agent shall only be obliged to execute a
Transfer Certificate delivered to it by the Existing Bank and the New Bank once
it is satisfied it has complied with all necessary “know your customer” or
other similar checks under all applicable laws and regulations in relation to
the transfer to such New Bank.


 


24.5.3      The Existing Bank shall at the same time as
it delivers to the Agent the Transfer Certificate, as required under sub-clause
24.5.1 of this Clause 24.5 send to the Company a copy of such Transfer
Certificate.


 


24.5.4      On the Transfer Date:


 


(a)           to the extent that in the Transfer
Certificate the Existing Bank seeks to transfer by novation its rights and obligations
under the Finance Documents each of the Obligors and the Existing Bank shall be
released from further obligations towards one another under the Finance Documents
and their respective rights against one another under the Finance Documents
shall be cancelled (being the “Discharged Rights and Obligations”);


 


(b)           each of the Obligors and the New Bank shall
assume obligations towards one another and/or acquire rights against one
another which differ from the Discharged Rights and Obligations only insofar as
that Obligor and the New Bank have assumed and/or acquired the same in place of
that Obligor and the Existing Bank;


 


(c)           the Agent, the Security Trustee, the Issuing
Banks, the New Bank and other Banks shall acquire the same rights and assume the
same obligations between themselves as they would have acquired and assumed had
the New Bank been an Original Bank with the rights and/or obligations acquired
or assumed by it as a result of the transfer and to that extent the Agent, the
Arranger and the Existing Bank shall each be released from further obligations
to each other under the Finance Documents; and


 


(d)           the New Bank shall become a Party as a “Bank”.


 


24.6        Disclosure
of information


24.6.1      Each Finance Party must keep confidential any
information supplied to it by or on behalf of any Obligor in connection with
the Finance Documents (“Confidential Information”).
However, a Finance Party is entitled to disclose information:


 


39





















 


(a)           which is publicly available, other than as a
result of a breach by that Finance Party of this Clause;


 


(b)           in connection with any legal or arbitration
proceedings;


 


(c)           if required to do so under any law or
regulation;


 


(d)           to a governmental, banking, taxation or other
regulatory authority;


 


(e)           to its professional advisers;


 


(f)            to any Secured Creditor and any member of the
Group;


 


(g)           to the extent allowed under sub clause 24.6.2
below; or


 


(h)           with the agreement of the relevant Obligor.


 


24.6.2      Any Finance Party may also disclose to any of
its Affiliates and any other person:


 


(a)           to (or through) whom that Finance Party
assigns or transfers (or may potentially assign or transfer) all or any of its
rights and obligations under this Agreement;


 


(b)           with (or through) whom that Finance Party enters
into (or may potentially enter into) any sub-participation in relation to, or
any other transaction under which payments are to be made by reference to, this
Agreement or any Obligor;


 


any Confidential
Information as that Finance Party shall consider appropriate if the person to
whom the information is to be given has entered into a Confidentiality
Undertaking.


 


24.7         Sub-participations


For the avoidance of doubt, a Finance Party shall be entitled to enter
into any sub-participation in relation to this Agreement but shall not do so
unless it has first notified the Applicant of its intention to do so and
consulted with the Applicant in relation to the intended sub-participation.


 


25.           CHANGES TO
THE OBLIGORS


 


25.1         Assignments
and transfer by Obligors


No Obligor may assign any of its rights or transfer any of its rights
or obligations under the Finance Documents.


 


25.2         Additional Indemnifying Companies


25.2.1      Subject to compliance with the provisions of
Clause 20.3 (Know your customer checks), the Company may request that any
of its wholly owned Subsidiaries becomes an Additional Indemnifying Company.
That Subsidiary shall become an Additional Indemnifying Company if:


 


(a)           the Company delivers to the Agent a duly
completed and executed Accession Letter;


 


(b)           the Company confirms that no Default is
continuing or would occur as a result of that Subsidiary becoming an Additional
Indemnifying Company; and


 


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(c)           the Agent has received all of the documents
and other evidence listed in Part B (Conditions precedent required to be delivered by an
Additional Obligor) of
Schedule 2 in relation to that Additional Indemnifying Company, each in
form and substance satisfactory to the Agent.


 


25.2.2      The Agent shall notify the Company and the
Banks promptly upon being satisfied that it has received (in form and substance
satisfactory to it) all the documents and other evidence listed in Part B (Conditions
precedent required to be delivered by an Additional Obligor) of Schedule 2.


 


25.3         Repetition of Representations


Delivery of an Accession Letter constitutes confirmation by the
relevant Subsidiary that the Repeating Representations to be given by it are
true and correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then existing.


 


26.           ROLE OF THE AGENT AND THE
SECURITY TRUSTEE


 


26.1         Appointment
of the Agent


26.1.1      Each other Finance Party appoints the Agent
to act as its agent and the Security Trustee to act as its security trustee
under and in connection with the Finance Documents.


 


26.1.2      Each other Finance Party authorises the Agent
and the Security Trustee to exercise the rights, powers, authorities and
discretions specifically given to the Agent and the Security Trustee under or
in connection with the Finance Documents together with any other incidental
rights, powers, authorities and discretions.


 


26.2         Duties
of the Agent


26.2.1      The Agent and the Security Trustee shall
promptly forward to a Party the original or a copy of any document which is
delivered to the Agent or the Security Trustee for that Party by any other
Party.


 


26.2.2      Except where a Finance Document specifically
provides otherwise, neither the Agent nor the Security Trustee is obliged to
review or check the adequacy, accuracy or completeness of any document it
forwards to another Party.


 


26.2.3      If the Agent or the Security Trustee receives
notice from a Party referring to this Agreement, describing a Default and stating
that the circumstance described is a Default, it shall promptly notify the
Finance Parties.


 


26.2.4      If the Agent or the Security Trustee is aware
of the non-payment of any principal, interest, commitment fee or other fee
payable to a Finance Party under this Agreement it shall promptly notify the
other Finance Parties.


 


26.2.5      The Agent’s and Security Trustee’s duties
under the Finance Documents are solely mechanical and administrative in nature.


 


26.3         No fiduciary duties


26.3.1      Except as expressly set out herein nothing in
this Agreement constitutes the Agent or the Security Trustee as a trustee or
fiduciary of any other person.


 


26.3.2      Neither the Agent nor the Security Trustee
shall be bound to account to any Bank for any sum or the profit element of any
sum received by it for its own account.


 


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26.4         Business with the Group


The Agent and the Security Trustee may accept deposits from, lend money
to and generally engage in any kind of banking or other business with any
member of the Group.


 


26.5         Rights and discretions of
the Agent and Security Trustee


26.5.1      The Agent and the Security Trustee may rely on:


 


(a)           any representation, notice or document
believed by it to be genuine, correct and appropriately authorised; and


 


(b)           any statement made by a director, authorised
signatory or employee of any person regarding any matters which may reasonably
be assumed to be within his knowledge or within his power to verify.


 


26.5.2      Each of the Agent and the Security Trustee
may assume (unless it has received notice to the contrary in its capacity as
agent or security trustee for the Banks) that:


 


(a)           no Default has occurred (unless it has actual
knowledge of a Default arising under Clause 23.1 (Non-payment));


 


(b)           any right, power, authority or discretion
vested in any Party or the Majority Banks has not been exercised; and


 


(c)           any notice or request made by the Company or
the Applicant (other than a Utilisation Request) is made on behalf of and with
the consent and knowledge of all the Obligors.


 


26.5.3      The Agent and the Security Trustee may
engage, pay for and rely on the advice or services of any lawyers, accountants,
surveyors or other experts.


 


26.5.4      Each of the Agent and the Security Trustee
may act in relation to the Finance Documents through its personnel and agents.


 


26.5.5      Each of the Agent and the Security Trustee
may disclose to any other Party any information it reasonably believes it has
received as agent or security trustee under this Agreement.


 


26.5.6      Notwithstanding any other provision of any Finance
Document to the contrary, neither the Agent nor the Security Trustee is obliged
to do or omit to do anything if it would or might in its reasonable opinion
constitute a breach of any law or regulation or a breach of a fiduciary duty or
duty of confidentiality.


 


26.6        Majority Banks’ instructions


26.6.1      Unless a contrary indication appears in a
Finance Document, each of the Agent and the Security Trustee shall (a) exercise
any right, power, authority or discretion vested in it as Agent in accordance
with any instructions given to it by the Majority Banks (or, if so instructed
by the Majority Banks, refrain from exercising any right, power, authority or
discretion vested in it as agent or security trustee) and (b) not be
liable for any act (or omission) if it acts (or refrains from taking any
action) in accordance with an instruction of the Majority Banks.


 


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26.6.2      Unless a contrary indication appears in a
Finance Document, any instructions given by the Majority Banks will be binding
on all the Finance Parties.


 


26.6.3      Each of the Agent and the Security Trustee
may refrain from acting in accordance with the instructions of the Majority
Banks (or, if appropriate, the Banks) until it has received such security as it
may require for any cost, loss or liability (together with any associated VAT)
which it may incur in complying with the instructions.


 


26.6.4      In the absence of instructions from the
Majority Banks, (or, if appropriate, the Banks) each of the Agent and the
Security Trustee may act (or refrain from taking action) as it considers to be
in the best interest of the Banks.


 


26.6.5      Neither the Agent nor the Security Trustee is
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.


 


26.7         Responsibility for documentation


Neither the Agent nor the Security Trustee:


 


26.7.1      is responsible for the adequacy, accuracy and/or
completeness of any information (whether oral or written) supplied by the
Agent, the Security Trustee, an Obligor or any other person given in or in
connection with any Finance Document; or


 


26.7.2      is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in anticipation of or in
connection with any Finance Document.


 


26.8         Exclusion of liability


26.8.1      Without limiting sub-clause 26.8.2 of this
Clause 26.8, neither the Agent nor the Security Trustee will be liable for any
action taken by it under or in connection with any Finance Document, unless
directly caused by its gross negligence or wilful misconduct.


 


26.8.2      No Party (other than the Agent or the
Security Trustee) may take any proceedings against any officer, employee or
agent of the Agent or the Security Trustee in respect of any claim it might
have against the Agent or the Security Trustee or in respect of any act or
omission of any kind by that officer, employee or agent in relation to any
Finance Document and any officer, employee or agent of the Agent or the
Security Trustee may rely on this Clause subject to Clause 1.3 (Third
Party Rights) and
the provisions of the Third Parties Act.


 


26.8.3      Neither the Agent nor the Security Trustee
will be liable for any delay (or any related consequences) in crediting an
account with an amount required under the Finance Documents to be paid by the
Agent or the Security Trustee if the Agent or the Security Trustee has taken
all necessary steps as soon as reasonably practicable to comply with the
regulations or operating procedures of any recognised clearing or settlement
system used by the Agent or the Security Trustee for that purpose.


 


26.8.4      Nothing in this Agreement shall oblige the
Agent to carry out any “know your customer” or other checks in relation to any
person on behalf of any Bank and


 


43





















 


each Bank confirms to the Agent that it is solely responsible for any
such checks it is required to carry out and that it may not rely on any
statement in relation to such checks made by the Agent.


 


26.9         Banks’ indemnity to the Agent


Each Bank shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the Agent
and the Security Trustee, within three Business Days of demand, against any
cost, loss or liability incurred by the Agent or Security Trustee (otherwise
than by reason of the Agent’s or Security Trustee’s gross negligence or wilful
misconduct) in acting as Agent or Security Trustee under the Finance Documents
(unless the Agent or Security Trustee has been reimbursed by an Obligor
pursuant to a Finance Document).


 


26.10       Resignation of the Agent and Security Trustee


26.10.1    Each of the Agent and the Security Trustee
may resign and appoint one of its Affiliates acting through an office in the
United Kingdom as successor by giving notice to the other Finance Parties and
the Company.


 


26.10.2    Alternatively the Agent or Security Trustee
may resign by giving notice to the other Finance Parties and the Company, in
which case the Majority Banks (after consultation with the Company) may appoint
a successor Agent or Security Trustee.


 


26.10.3    If the Majority Banks have not appointed a
successor Agent or Security Trustee in accordance with sub-clause 26.10.2 of
this Clause 26.10 within 30 days after notice of resignation was given, the
Agent or Security Trustee (after consultation with the Company) may appoint a
successor Agent or Security Trustee (acting through an office in the United
Kingdom).


 


26.10.4    The retiring Agent or Security Trustee shall,
at its own cost, make available to the successor Agent or Security Trustee such
documents and records and provide such assistance as the successor Agent may
reasonably request for the purposes of performing its functions as Agent or
Security Trustee under the Finance Documents.


 


26.10.5    The Agent’s or Security Trustee’s resignation
notice shall only take effect upon the appointment of a successor.


 


26.10.6    Upon the appointment of a successor, the
retiring Agent or Security Trustee shall be discharged from any further
obligation in respect of the Finance Documents but shall remain entitled to the
benefit of this Clause 26. Its successor and each of the other Parties shall
have the same rights and obligations amongst themselves as they would have had
if such successor had been an original Party.


 


26.10.7    After consultation with the Company, the
Majority Banks may, by notice to the Agent or Security Trustee, require it to
resign in accordance with sub-clause 26.10.2 of this Clause 26.10. In this
event, the Agent or Security Trustee shall resign in accordance with sub-clause
26.10.2 of this Clause 26.10.


 


26.11       Confidentiality


26.11.1    In acting as agent or security trustee for
the Finance Parties, the Agent or Security Trustee shall be regarded as acting
through its agency or trustee


 


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division which shall be treated as a separate entity from any other of
its divisions or departments.


 


26.11.2    If information is received by another
division or department of the Agent or Security Trustee, it may be treated as
confidential to that division or department and the Agent or Security Trustee
shall not be deemed to have notice of it.


 


26.12       Relationship with the Banks


26.12.1    Each of the Agent and Security Trustee may
treat each Bank as a Bank, entitled to payments under this Agreement and acting
through its Facility Office unless it has received not less than five Business
Days prior notice from that Bank to the contrary in accordance with the terms of
this Agreement.


 


26.12.2    Each Bank shall supply the Agent with any
information required by the Agent in order to calculate the Mandatory Cost in
accordance with Schedule 4 (Mandatory Cost Formulae).


 


26.13       Credit appraisal by the Banks


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 to the Agent and the Security Trustee that it has been, and will
continue to be, solely responsible for making its own independent appraisal and
investigation of all risks arising under or in connection with any Finance
Document including but not limited to:


 


26.13.1    the financial condition, status and nature of
each member of the Group;


 


26.13.2    the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document and any other agreement,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document;


 


26.13.3    whether that Bank has recourse, and the
nature and extent of that recourse, against any Party or any of its respective
assets under or in connection with any Finance Document, the transactions contemplated
by the Finance Documents or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with
any Finance Document; and


 


26.13.4    the adequacy, accuracy and/or completeness of
any information provided by the Agent or the Security Trustee, any Party or by
any other person under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document.


 


26.14      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.


 


26.15      Agent’s
and Security Trustee’s Management Time


Any amount payable to the Agent or Security Trustee under Clause 15.3 (Indemnity
to the Agent and Security Trustee), Clause 17 (Costs and expenses) and Clause 26.9 (Banks’
indemnity to the Agent) shall
include the cost of utilising the Agent’s and


 


45





















 


Security Trustee’s management time or other resources and will be
calculated on the basis of such reasonable daily or hourly rates as the Agent
or Security Trustee may notify to the Company and the Banks, and is in addition
to any fee paid or payable to the Agent and Security Trustee under Clause 12 (Fees).


 


26.16       Deduction from amounts
payable by the Agent or Security Trustee


If any Party owes an amount to the Agent or Security Trustee under the
Finance Documents the Agent or Security Trustee may, after giving notice to
that Party, deduct an amount not exceeding that amount from any payment to that
Party which the Agent or Security Trustee would otherwise be obliged to make
under the Finance Documents and apply the amount deducted in or towards
satisfaction of the amount owed. For the purposes of the Finance Documents that
Party shall be regarded as having received any amount so deducted.


 


26.17       Trust


The Security Trustee declares that it shall hold the Transaction
Security on trust for the Finance Parties on the terms contained in this
Agreement. Each of the parties to this Agreement agrees that the Security
Trustee shall have only those duties, obligations and responsibilities
expressly specified in this Agreement or the New Security Agreement (and no
others shall be implied).


 


26.18       No Independent Power


The Finance Parties shall not have any independent power to enforce, or
have recourse to, any of the Transaction Security or to exercise any rights or
powers arising under the New Security Agreement except through the Security
Trustee.


 


26.19      Security
Trustee’s Actions


Subject to the provisions of this Clause 26:


 


26.19.1    the Security Trustee may, in the absence of
any instructions to the contrary, take such action in the exercise of any of
its powers and duties under the Finance Documents which in its absolute
discretion it considers to be for the protection and benefit of all the Finance
Parties; and


 


26.19.2    at any time after receipt by the Security
Trustee of notice from the Agent directing the Security Trustee to exercise all
or any of its rights, remedies, powers or discretions under any of the Finance
Documents, the Security Trustee may, and shall if so directed by the Agent,
take any action as in its sole discretion it thinks fit to enforce the
Transaction Security.


 


26.20      No responsibility to
perfect Transaction Security


The Security Trustee shall not be liable for any failure to:


 


26.20.1    require the deposit with it of any deed or
document certifying, representing or constituting the title of any Obligor to
any of the property subject to the Transaction Security;


 


26.20.2    obtain any licence, consent or other
authority for the execution, delivery, legality, validity, enforceability or
admissibility in evidence of any of the Finance Documents or the Transaction
Security;


 


26.20.3    register, file or record or otherwise protect
any of the Transaction Security (or the priority of any of the Transaction
Security) under any applicable laws in any jurisdiction or to give notice to
any person of the execution of any of the Finance Documents or of the
Transaction Security;


 


46





















 


26.20.4    take, or to require any of the Obligors to
take, any steps to perfect its title to any of the property subject to the
Transaction Security or to render the Transaction Security effective or to
secure the creation of any ancillary Security under the laws of any
jurisdiction; or


 


26.20.5    require any further assurances in relation to
any of the Transaction Security Documents.


 


26.21       Custodians and Nominees


The Security Trustee may appoint and pay any person to act as a
custodian or nominee on any terms in relation to any assets of the trust as the
Security Trustee may determine, including for the purpose of depositing with a
custodian this Agreement or any document relating to the trust created under
this Agreement and the Security Trustee shall not be responsible for any loss,
liability, expense, demand, cost, claim or proceedings incurred by reason of
the misconduct, omission or default on the part of any person appointed by it
under this Agreement or be bound to supervise the proceedings or acts of any
person provided that the Security
Trustee has acted with due care in appointing such custodian or nominee.


 


26.22      Refrain
from Illegality


The Security Trustee may refrain from doing anything which in its
opinion will or may be contrary to any relevant law, directive or regulation of
any jurisdiction which would or might otherwise render it liable to any person,
and the Security Trustee may do anything which is, in its opinion, necessary to
comply with any law, directive or regulation.


 


26.23      Winding up of Trust


If the Security Trustee, with the approval of the Majority Banks,
determines that (a) all of the obligations secured by the New Security
Agreement have been fully and finally discharged and (b) none of the
Finance Parties is under any commitment, obligation or liability (actual or
contingent) to provide financial accommodation to any Obligor pursuant to the
Finance Documents, the trusts set out in this Agreement shall be wound up and
the Security Trustee shall release, without recourse or warranty, all of the
Transaction Security and the rights of the Security Trustee under the New
Security Agreement.


 


26.24      Perpetuity Period


The perpetuity period under the rule against perpetuities, if
applicable to this Agreement, shall be the period of eighty years from the date
of this Agreement.


 


26.25      Powers Supplemental


The rights, powers and discretions conferred upon the Security Trustee
by this Agreement shall be supplemental to the Trustee Acts 1925 and 2000 and
in addition to any which may be vested in the Security Trustee by general law
or otherwise.


 


26.26      Disapplication


Section 1 of the Trustee Act 2000 shall not apply to the duties of
the Security Trustee in relation to the trusts constituted by this Agreement.
Where there are any inconsistencies between the Trustee Acts 1925 and 2000 and
the provisions of this Agreement, the provisions of this Agreement shall, to
the extent allowed by law, prevail and, in the case of any inconsistency with
the Trustee Act 2000, the provisions of this Agreement shall constitute a
restriction or exclusion for the purposes of that Act.


 


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26.27       Delegation


26.27.1    The Security Trustee may, at any time,
delegate by power of attorney or otherwise to any person for any period, all or
any of the rights, powers and discretions vested in it by any of the Finance
Documents.


 


26.27.2    The delegation may be made upon any terms and
conditions (including the power to sub-delegate) and subject to any
restrictions as the Security Trustee may think fit in the interests of the
Finance Parties and it shall not be bound to supervise, or be in any way
responsible for any loss incurred by reason of any misconduct or default on the
part of any delegate or sub-delegate.


 


26.28       Order of Application


All monies from time to time received or recovered by the Security
Trustee in connection with the realisation or enforcement of all or any part of
the Transaction Security shall be held by the Security Trustee on trust to
apply them at such times as the Security Trustee sees fit, to the extent
permitted by applicable law, in the following order of priority:


 


26.28.1    in discharging any sums owing to the Security
Trustee (in its capacity as Security Trustee);


 


26.28.2    in payment to the Agent, on behalf of the
Secured Parties, for application towards the discharge of all sums due and
payable by any Obligor under any of the Finance Documents in accordance with
Clause 29.5 (Partial payments);


 


26.28.3    if none of the Obligors is under any further
actual or contingent liability under any Finance Document, in payment to any
person to whom the Security Trustee is obliged to pay in priority to any
Obligor; and


 


26.28.4    the balance, if any, in payment to the
relevant Obligor.


 


26.29      Investment of proceeds


Prior to the application of the proceeds of the Transaction Security in
accordance with Clause 26.28 (Order of Application) the Security Trustee may, at its
discretion, hold all or part of those proceeds in an interest bearing suspense
or impersonal account(s) in the name of the Security Trustee or Agent with such
financial institution (including itself) for so long as the Security Trustee
thinks fit (the interest being credited to the relevant account) pending the
application from time to time of those monies at the Security Trustee’s
discretion in accordance with the provisions of this Clause.


 


26.30      Currency conversion


26.30.1    For the purpose of or pending the discharge
of any of the Secured Obligations the Security Trustee may convert any monies
received or recovered by the Security Trustee from one currency to another, at
the spot rate at which the Security Trustee is able to purchase the currency in
which the Secured Obligations are due with the amount received.


 


26.30.2    The obligations of any Obligor to pay in the
due currency shall only be satisfied to the extent of the amount of the due
currency purchased after deducting the costs of conversion.


 


26.31      Permitted deductions


The Security Trustee shall be entitled (a) to set aside by way of
reserve amounts required to meet and (b) to make and pay, any deductions
and withholdings (on account of Taxes or otherwise) which it is or may be
required by any applicable law to make from any distribution or payment made by
it under this Agreement, and to pay


 


48





















 


all Taxes which may be assessed against it in respect of any of the
property charged under the New Security Agreement, or as a consequence of
performing its duties, or by virtue of its capacity as Security Trustee under
any of the Finance Documents or otherwise (except in connection with its
remuneration for performing its duties under any Finance Document).


 


26.32       Discharge of Secured Obligations


26.32.1    Any payment to be made in respect of the
Secured Obligations by the Security Trustee may be made to the Agent on behalf
of the Banks and that payment shall be a good discharge to the extent of that
payment, to the Security Trustee.


 


26.32.2    The Security Trustee is under no obligation
to make payment to the Agent in the same currency as that in which any Unpaid
Sum is denominated.


 


27.           CONDUCT OF
BUSINESS BY THE FINANCE PARTIES


No provision of this Agreement will:


 


27.1.1      interfere with the right of any Finance Party
to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;


 


27.1.2      oblige any Finance Party to investigate or
claim any credit, relief, remission or repayment available to it or the extent,
order and manner of any claim; or


 


27.1.3      oblige any Finance Party to disclose any
information relating to its affairs (tax or otherwise) or any computations in
respect of Tax.


 


28.           SHARING
AMONG THE FINANCE PARTIES


 


28.1        Payments
to Finance Parties


If a Finance Party (a “Recovering Finance Party”)
receives or recovers any amount from an Obligor other than in accordance with
Clause 29 (Payment mechanics) and
applies that amount to a payment due under the Finance Documents then:


 


28.1.1      the Recovering Finance Party shall, within
three Business Days, notify details of the receipt or recovery, to the Agent;


 


28.1.2      the Agent shall determine whether the receipt
or recovery is in excess of the amount the Recovering Finance Party would have
been paid had the receipt or recovery been received or made by the Agent and
distributed in accordance with Clause 29 (Payment mechanics), without taking account of any Tax which
would be imposed on the Agent in relation to the receipt, recovery or distribution;
and


 


28.1.3      the Recovering Finance Party shall, within
three Business Days of demand by the Agent, pay to the Agent an amount (the “Sharing Payment”) equal to such receipt or recovery less
any amount which the Agent determines may be retained by the Recovering Finance
Party as its share of any payment to be made, in accordance with Clause 29.5 (Partial
payments).


 


28.2        Redistribution
of payments


The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other than the
Recovering Finance Party) in accordance with Clause 29.5 (Partial
payments).


 


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28.3         Recovering Finance Party’s rights


28.3.1      On a distribution by the Agent under Clause
28.2 (Redistribution
of payments), the
Recovering Finance Party will be subrogated to the rights of the Finance
Parties which have shared in the redistribution.


 


28.3.2      If and to the extent that the Recovering
Finance Party is not able to rely on its rights under sub-clause 28.3.1 of this
Clause 28.3, the relevant Obligor shall be liable to the Recovering Finance
Party for a debt equal to the Sharing Payment which is immediately due and
payable.


 


28.4         Reversal of redistribution


If any part of the Sharing Payment received or recovered by a
Recovering Finance Party becomes repayable and is repaid by that Recovering
Finance Party, then:


 


28.4.1      each Finance Party which has received a share
of the relevant Sharing Payment pursuant to Clause 28.2 (Redistribution of payments) shall, upon request of the Agent,
pay to the Agent for account of that Recovering Finance Party an amount equal
to the appropriate part of its share of the Sharing Payment (together with an amount
as is necessary to reimburse that Recovering Finance Party for its proportion
of any interest on the Sharing Payment which that Recovering Finance Party is
required to pay); and


 


28.4.2      that Recovering Finance Party’s rights of
subrogation in respect of any reimbursement shall be cancelled and the relevant
Obligor will be liable to the reimbursing Bank for the amount so reimbursed.


 


28.5        Exceptions


28.5.1      This Clause 28 shall not apply to the extent
that the Recovering Finance Party would not, after making any payment pursuant
to this Clause, have a valid and enforceable claim against the relevant
Obligor.


 


28.5.2      A Recovering Finance Party is not obliged to
share with any other Bank any amount which the Recovering Finance Party has
received or recovered as a result of taking legal or arbitration proceedings,
if:


 


(a)      it notified that other Finance Party of the legal
or arbitration proceedings; and


 


(b)      that other Finance Party had an opportunity
to participate in those legal or arbitration proceedings but did not do so as
soon as reasonably practicable having received notice and did not take separate
legal or arbitration proceedings.


 


29.          PAYMENT MECHANICS


 


29.1        Payments to the Agent or Security Trustee


29.1.1      On each date on which an Obligor or a Bank is
required to make a payment under a Finance Document, that Obligor or Bank shall
make the same available to the Agent or Security Trustee (unless a contrary indication
appears in a Finance Document) for value on the due date at the time and in such
funds specified by the Agent or Security Trustee as being customary at the time
for settlement of transactions in the relevant currency in the place of payment.


 


29.1.2      Payment shall be made to such account in the
principal financial centre of the country of that currency (or, in relation to
euro, in a principal financial centre


 


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in a Participating Member State or London) with such bank as the Agent
or Security Trustee specifies.


 


29.2         Distributions by the Agent


Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 29.3 (Distributions to an Obligor) and Clause 29.4 (Clawback), be made available by the Agent as
soon as practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Bank, for the account of its
Facility Office), to such account as that Party may notify to the Agent by not
less than five Business Days’ notice with a bank in the principal financial
centre of the country of that currency (or, in relation to euro, in the
principal financial centre of a Participating Member State or London).


 


29.3         Distributions to an Obligor


The Agent or Security Trustee may (with the consent of the Obligor or
in accordance with Clause 30 (Set-off)) apply any amount received by it for that 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
purchase of any amount of any currency to be so applied.


 


29.4         Clawback


29.4.1      Where a sum is to be paid to the Agent or
Security Trustee under the Finance Documents for another Party, the Agent or
Security Trustee is not obliged to pay that sum to that other Party (or to
enter into or perform any related exchange contract) until it has been able to
establish to its satisfaction that it has actually received that sum.


 


29.4.2      If the Agent or Security Trustee pays an
amount to another Party and it proves to be the case that the Agent or Security
Trustee had not actually received that amount, then the Party to whom that
amount (or the proceeds of any related exchange contract) was paid by the Agent
or Security Trustee shall on demand refund the same to the Agent or Security
Trustee together with interest on that amount from the date of payment to the
date of receipt by the Agent or Security Trustee, calculated by the Agent or Security
Trustee to reflect its cost of funds.


 


29.5        Partial payments


29.5.1      If the Agent receives a payment that is
insufficient to discharge all the amounts then due and payable by an Obligor
under the Finance Documents, the Agent shall apply that payment towards the
obligations of that Obligor under the Finance Documents in the following order:


 


(a)           first, in or towards payment pro rata of any unpaid
fees, costs and expenses of the Agent and the Issuing Banks under the Finance Documents;


 


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


 


(c)           thirdly, in or towards payment pro rata of any
principal or indemnity payment in respect of a Bond due but unpaid under this
Agreement; and


 


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


 


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29.5.2      The Agent shall, if so directed by the
Majority Banks, vary the order set out in sub-clause 29.5.l(b) to
29.5.l(d).


 


29.5.3      Sub-clause 29.5.1 and 29.5.2 of this Clause 29.5
will override any appropriation made by an Obligor.


 


29.6         No set-off by Obligors


All payments to be made by an Obligor under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.


 


29.7         Business Days


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


 


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


 


29.8         Currency of account


29.8.1      Subject to sub-clauses 29.8.2 to 29.8.5 of
this Clause 29.8, the Base Currency is the currency of account and payment for
any sum due from an Obligor under any Finance Document.


 


29.8.2      Unless expressly indicated to the contrary, a
repayment of a Bond or Unpaid Sum or a part of a Bond or Unpaid Sum shall be
made in the currency in which that Bond or Unpaid Sum is denominated on its due
date.


 


29.8.3      Each payment of interest shall be made in the
currency in which the sum in respect of which the interest is payable was
denominated when that interest accrued.


 


29.8.4      Each payment in respect of costs, expenses or
Taxes shall be made in the currency in which the costs, expenses or Taxes are
incurred.


 


29.8.5      Any amount expressed to be payable in a
currency other than the Base Currency shall be paid in that other currency.


 


29.9        Change of currency


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


 


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


 


(b)           any translation from one currency or currency
unit to another shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency unit into the
other, rounded up or down by the Agent (acting reasonably).


 


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


 


52





















 


specifies to be necessary, be amended to comply with any generally
accepted conventions and market practice in the Relevant Interbank Market and
otherwise to reflect the change in currency.


 


30.           SET-OFF


 


A Finance Party may set off any matured obligation due from
an Obligor under the Finance Documents (to the extent beneficially owned by
that Finance Party) against any matured obligation 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.


 


31.           NOTICES


 


31.1        Communications in writing


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


 


31.2        Addresses


The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection with
the Finance Documents is:


 


31.2.1      in the case of the Company or the Applicant,
that identified with its name below;


 


31.2.2      in the case of each Bank or any other
Original Obligor, that notified in writing to the Agent on or prior to the date
on which it becomes a Party; and


 


31.2.3      in the case of the Agent and the Security
Trustee, that identified with its name below,


 


or any substitute address or fax number or department or
officer as the Party may notify to the Agent (or the Agent may notify to the
other Parties, if a change is made by the Agent) by not less than five Business
Days’ notice.


 


31.3        Delivery


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


 


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


 


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


 


and, if a particular department or officer is specified as part of its
address details provided under Clause 31.2 (Addresses), if addressed to that department or
officer.


 


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


 


53





















 


31.3.3      All notices from or to an Obligor shall be
sent through the Agent or Security Trustee.


 


31.3.4      Any communication or document made or
delivered to the Company in accordance with this Clause will be deemed to have
been made or delivered to each of the Obligors.


 


31.4         Notification of address or fax number


Promptly upon receipt of notification of an address or fax number or
change of address or fax number telex number pursuant to Clause 31.2 (Addresses) or changing its own address or fax
number, the Agent shall notify the other Parties.


 


31.5         Electronic communication


31.5.1      Any communication to be made between the
Agent and a Bank under or in connection with the Finance Documents may be made
by electronic mail or other electronic means, if the Agent and the relevant
Bank:


 


(a)           agree that, unless and until notified to the
contrary, this is to be an accepted form of communication;


 


(b)           notify each other in writing of their
electronic mail address and/or any other information required to enable the sending
and receipt of information by that means; and


 


(c)           notify each other of any change to their
address or any other such information supplied by them.


 


31.5.2      Any electronic communication made between the
Agent and a Bank will be effective only when actually received in readable form
and in the case of any electronic communication made by a Bank to the Agent
only if it is addressed in such a manner as the Agent shall specify for this
purpose.


 


31.6         English language


31.6.1      Any notice given under or in connection with
any Finance Document must be in English.


 


31.6.2      All other documents provided under or in
connection with any Finance Document must be:


 


(a)           in English; or


 


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


 


32.          CALCULATIONS
AND CERTIFICATES


 


32.1        Accounts


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


 


32.2        Certificates
and Determinations


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


 


54





















 


32.3         Day count convention


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


 


33.           PARTIAL INVALIDITY


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


 


34.           REMEDIES AND WAIVERS


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


 


35.          AMENDMENTS AND WAIVERS


 


35.1        Required
consents


35.1.1      Subject to Clause 35.2 (Exceptions) any term of the Finance Documents
may be amended or waived only with the consent of the Majority Banks and the Company
and the Applicant and any such amendment or waiver will be binding on all
Parties.


 


35.1.2      The Agent may effect, on behalf of any Finance
Party, any amendment or waiver permitted by this Clause.


 


35.2        Exceptions


35.2.1      An amendment or waiver that has the effect of
changing or which relates to:


 


(a)           the definition of “Majority Banks” in Clause
1.1 (Definitions);


 


(b)           an extension to the date of payment of any
amount under the Finance Documents;


 


(c)           a reduction in the amount of any payment of
principal, interest, fees or commission payable;


 


(d)           an increase in or an extension of any
Commitment;


 


(e)           a change to the Obligors other than in accordance
with Clause 25 (Changes to the Obligors);


 


(f)            any provision which expressly requires the
consent of all the Banks;


 


(g)           Clause 2.2 (Finance Parties’ rights and
obligations), Clause
21 (Security
undertakings), Clause
24 (Changes
to the Banks) or
this Clause 35,


 


shall not be made without
the prior consent of all the Banks.


 


55





















 


35.2.2      An amendment or waiver which relates to the
rights or obligations of the Agent, the Security Trustee or an Issuing Bank may
not be effected without the consent of the Agent, the Security Trustee or that
Issuing Bank.


 


35.3         Administrative Action


In respect of any administrative action or procedure required under
this Agreement in relation to the issuance of any Bond or the payment of any
amount the Applicant and the Agent may agree to follow a different action or
procedure. Any change to any procedure or action so agreed by the Applicant and
the Agent will not affect the rights and obligations of any other party under
this Agreement.


 


36.           COUNTERPARTS


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


 


37.           GOVERNING LAW


This Agreement is governed by English law.


 


38.           ENFORCEMENT


 


38.1        Jurisdiction


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


 


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


 


38.1.3      This Clause 38.1 is for the benefit of the
Finance Parties only. As a result, no Finance Party shall be prevented from
taking proceedings relating to a Dispute in any other courts with jurisdiction.
To the extent allowed by law, the Finance Parties may take concurrent
proceedings in any number of jurisdictions.


 


38.2        Service
of process


Without prejudice to any other mode of service allowed under any
relevant law, each Obligor (other than an Obligor incorporated in England and
Wales):


 


38.2.1      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; and


 


38.2.2      agrees that failure by a process agent to
notify the relevant Obligor of the process will not invalidate the proceedings
concerned.


 


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


 


56





















 


SCHEDULE 1


THE ORIGINAL PARTIES


 


Part A


The Original Issuing Bank


 


HSBC Bank plc


 


57





















 


Part
B


The Original Bank


 


	
  Name
  of Original Bank

  	
   

  	
  Commitment

  	
   

  
	
   

  	
   

  	
  £

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  HSBC
  Bank plc

  	
   

  	
  35,000,000

  	
   

  



 


58





















 


Part C


The
Original Indemnifying Companies


 


	
  Name of Original Indemnifying
  Companies

  	
   

  	
  Company No.

  
	
   

  	
   

  	
   

  
	
  Marconi
  Communications China Limited

  	
   

  	
  02956293

  
	
   

  	
   

  	
   

  
	
  Marconi
  Communications GmbH

  	
   

  	
  HRB1563

  
	
   

  	
   

  	
   

  
	
  Marconi
  Communications International Limited

  	
   

  	
  00464439

  
	
   

  	
   

  	
   

  
	
  Marconi
  Communications Ltd

  	
   

  	
  00703317

  
	
   

  	
   

  	
   

  
	
  Marconi
  Communications SpA

  	
   

  	
  01168770996

  
	
   

  	
   

  	
   

  
	
  Marconi
  International SpA

  	
   

  	
  01201400999

  
	
   

  	
   

  	
   

  
	
  Metapath
  Software International Limited

  	
   

  	
  02436108

  
	
   

  	
   

  	
   

  
	
  Marconi
  Australia Pty Ltd

  	
   

  	
  091247746

  
	
   

  	
   

  	
   

  
	
  Marconi
  Telecommunications India (Private) Limited

  	
   

  	
  55-107884

  
	
   

  	
   

  	
   

  
	
  Marconi
  Middle East LLC

  	
   

  	
  57150

  
	
   

  	
   

  	
   

  
	
  Marconi
  Communications Asia Limited

  	
   

  	
  21763

  
	
   

  	
   

  	
   

  
	
  Marconi
  Middle East

  	
   

  	
  1010180568

  
	
   

  	
   

  	
   

  
	
  Marconi
  Colombia S.A.

  	
   

  	
  1002175

  
	
   

  	
   

  	
   

  
	
  Marconi
  Iberia S.A.

  	
   

  	
  82553470

  
	
   

  	
   

  	
   

  
	
  MNI
  Tecnologias e Sistemas de Comunicacao S.A.

  	
   

  	
  LISBOA
  9874

  
	
   

  	
   

  	
   

  
	
  Marconi
  Sud SpA

  	
   

  	
  04159131004

  
	
   

  	
   

  	
   

  
	
  Marconi
  Communications de Mexico S.A. de C.V.

  	
   

  	
  AMC-970131-AL2

  
	
   

  	
   

  	
   

  
	
  Marconi
  Communications, Inc.

  	
   

  	
  2316994

  
	
   

  	
   

  	
   

  
	
  Marconi
  Inc

  	
   

  	
  2230335

  
	
   

  	
   

  	
   

  
	
  Metapath
  Software International (US), Inc

  	
   

  	
  2463712

  
	
   

  	
   

  	
   

  
	
  GPT
  Special Project Management Limited

  	
   

  	
  2984211

  



 


59





















 


SCHEDULE 2


CONDITIONS PRECEDENT


 


Part A

Conditions Precedent To Initial Utilisation


 


1.             Original Obligors


 


(a)           A copy of the constitutional documents of
each Original Obligor.


 


(b)           A copy of a resolution of the board of directors
(or the shareholders, as the case may be) of each Original Obligor:


 


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


 


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


 


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


 


(c)           A specimen of the signature of each person
authorised by the resolution referred to in paragraph (b) above.


 


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


 


(e)           A certificate of an authorised signatory of
the relevant Original Obligor certifying that each copy document relating to it
specified in this Part A of Schedule 2 is correct, complete and in
full force and effect as at a date no earlier than the date of this Agreement.


 


(f)            Good standing certificates from the Secretary
of State of the State of Delaware in respect of each Original Indemnifying
Company incorporated in the United States of America.


 


2.             Legal opinions


 


(a)           A legal opinion of Clifford Chance LLP, legal
advisers to the Agent in England, substantially in the form distributed to the
Original Banks prior to signing this Agreement.


 


(b)           If an Original Obligor is incorporated in a
jurisdiction other than England and Wales, a legal opinion of the legal
advisers to the Agent in the relevant jurisdiction, substantially in the form
distributed to the Original Banks prior to signing this Agreement.


 


3.             Other documents and evidence


 


(a)           Evidence
that any process agent referred to in Clause 38.2 (Service of process), if not an Original Obligor, has
accepted its appointment.


 


60





















 


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


 


(c)           Evidence that the fees, costs and expenses
then due from the Company pursuant to Clause 12 (Fees)
and Clause 17 (Costs and expenses) have been
paid or will be paid by the first Utilisation Date.


 


(d)           Executed copies of all Finance Documents
(including the New Security Agreement) and of all documents to be delivered
thereunder.


 


(e)           Evidence that the Account required to be
opened pursuant to the New Security Agreement has been opened and is
operational.


 


(f)            Evidence that the entire amounts of the Available Facility under and as defined
in the Existing Bonding Facility Agreement) has been cancelled by the
Applicant.


 


61





















 


Part B


Conditions
precedent required to be

delivered by an Additional Obligor


 


1.             An Accession Letter, duly executed by the Additional Obligor and the
Company.


 


2.             A copy of the constitutional documents of the
Additional Obligor.


 


3.             A copy of a resolution of the board of directors of the Additional Obligor:


 


(a)           approving the terms of, and the transactions
contemplated by, the Accession Letter and the Finance Documents and resolving
that it execute the Accession Letter;


 


(b)           authorising a specified person or persons to
execute the Accession Letter 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,
in relation to an Additional Borrower, any Utilisation Request) to be signed
and/or despatched by it under or in connection with the Finance Documents.


 


4.             A specimen of the signature of each person authorised by the resolution referred
to in paragraph 3 above.


 


5.             A certificate of an authorised signatory of
the Additional Obligor certifying that each copy document listed in this Part B
of Schedule 2 is correct, complete and in full force and effect as at a
date no earlier than the date of the Accession Letter.


 


6.             A copy of any other Authorisation or other
document, opinion or assurance which the Agent considers to be necessary or
desirable in connection with the entry into and performance of the transactions
contemplated by the Accession Letter or for the validity and enforceability of
any Finance Document.


 


7.             A legal opinion of Clifford Chance LLP, legal
advisers to the Agent in England.


 


8.             If the Additional Obligor is incorporated in
a jurisdiction other than England and Wales, a legal opinion of the legal
advisers to the Agent in the jurisdiction in which the Additional Obligor is
incorporated.


 


9.             If the proposed Additional Obligor is
incorporated in a jurisdiction other than England and Wales, evidence that the
process agent specified in
Clause 38.2 (Service of process), if not an Obligor, has accepted
its appointment in relation to the proposed Additional Obligor.


 


62





















 


SCHEDULE 3

UTILISATION REQUEST


 


From:      [Applicant]


 


To:          [Agent]


 


Dated:


 


Dear Sirs


 


[Company] –
[               ]
Facility Agreement


dated [               ]
(the “Agreement”)


 


1.             We refer
to the Agreement. This is a Utilisation Request. Terms defined in the Agreement
have the same meaning in this Utilisation Request unless given a different meaning
in this Utilisation Request.


 


2.             We wish
to arrange for a Bond to be issued by [•] as Issuing Bank on the following terms:


 


	
  Proposed Utilisation
  Date:

  	
   

  	
  [         ]
  (or, if that is not a Business Day, the next Business Day)

  
	
  Currency of Bond:

  	
   

  	
  [         ]

  
	
  Amount:

  	
   

  	
  [              ]
  or, if less, the Available Facility

  
	
  Term:

  	
   

  	
  [              ]

  
	
   

  	
   

  	
   

  
	
  Type of Bond:

  	
   

  	
  [              ]

  
	
   

  	
   

  	
   

  
	
  Beneficiary of Bond:

  	
   

  	
  [              ]

  
	
   

  	
   

  	
   

  
	
  [Correspondent
  Bank:](1)

  	
   

  	
   

  



 


3.             The Bond
is for a purpose specified in Clause 3.1 (Purpose) of the Agreement and the relevant Indemnifying Company is [•].


 


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


 


5.             We attach a copy of the proposed Bond.


 


6.             The Bond
is to be delivered to [•].


 


7.             This
Utilisation Request is irrevocable.


 


	
  Yours faithfully

  
	
   

  
	
   

  
	
   

  	
   

  	
   

  
	
  authorised
  signatory for
[Applicant]

  



 










(1) Insert where relevant


 


63





















 


SCHEDULE 4


MANDATORY COST FORMULAE


 


1.             The Mandatory Cost is an addition to the
interest rate to compensate Banks for the cost of compliance with (a) the
requirements of the Bank of England and/or the Financial Services Authority
(or, in either case, any other authority which replaces all or any of its
functions) or (b) the requirements of the European Central Bank.


 


2.             On the first day of each Interest Period or
Term (or as soon as possible thereafter) the Agent shall calculate, as a
percentage rate, a rate (the “Additional Cost
Rate”) for each Bank, in accordance with the paragraphs set out
below. The Mandatory Cost will be calculated by the Agent as a weighted average
of the Banks’ Additional Cost Rates (weighted in proportion to the percentage
participation of each Bank in the relevant Loan) and will be expressed as a
percentage rate per annum.


 


3.             The Additional Cost Rate for any Bank lending
from a Facility Office in a Participating Member State will be the percentage
notified by that Bank to the Agent. This percentage will be certified by that
Bank in its notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Bank’s participation in all Loans made from
that Facility Office) of complying with the minimum reserve requirements of the
European Central Bank in respect of loans made from that Facility Office.


 


4.             The Additional Cost Rate for any Bank lending
from a Facility Office in the United Kingdom will be calculated by the Agent as
follows:


 


(a)           in relation to a sterling Utilisation:


 


	
   

  	
  AB + C(B–D) + E x 0.01

  	
  per cent. per annum

  
	
   

  	
  100 – (A + C)

  



 


(b)             in
relation to a Utilisation in any currency other than sterling:


 


	
   

  	
  E x 0.01

  	
  per cent. per annum

  
	
   

  	
  300

  



 


Where:


 


A             is the
percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that Bank is from time
to time required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.


 


B             is the percentage rate of interest (excluding
the Mandatory Cost and, if the Utilisation is an Unpaid Sum, the additional
rate of interest specified in sub-clause 9.1.1 of Clause 9.1 (Default
Interest)) payable
for the relevant Interest Period on the Utilisation.


 


C             is the percentage (if any) of Eligible
Liabilities which that Bank is required from time to time to maintain as
interest bearing Special Deposits with the Bank of England.


 


D             is the percentage rate per annum payable by
the Bank of England to the Agent on interest bearing Special Deposits.


 


64





















 


E              is designed to compensate Banks for amounts
payable under the Fees Rules and is calculated by the Agent as being the
average of the most recent rates of charge supplied by the Reference Banks to
the Agent pursuant to paragraph 7 below and expressed in pounds per £1,000,000.


 


5.             For the purposes of this Schedule:


 


(a)           “Eligible Liabilities” and “Special
Deposits” have the meanings given to them from time to time under or
pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank
of England;


 


(b)           “Fees Rules” means the rules on periodic fees
contained in the FSA Supervision Manual or such other law or regulation as may
be in force from time to time in respect of the payment of fees for the
acceptance of deposits;


 


(c)           “Fee Tariffs” means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero
rated fee required pursuant to the Fees Rules but taking into account any
applicable discount rate); and


 


(d)           “Tariff Base” has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.


 


6.             In application of the above formulae, A, B, C
and D will be included in the formulae as percentages (i.e. 5 per cent. will be
included in the formula as 5 and not as 0.05). A negative
result obtained by subtracting D from B shall be taken as zero. The resulting
figures shall be rounded to four decimal places.


 


7.             If requested by the Agent, each Reference
Bank shall, as soon as practicable after publication by the Financial Services
Authority, supply to the Agent, the rate of charge payable by that Reference
Bank to the Financial Services Authority pursuant to the Fees Rules in
respect of the relevant financial year of the Financial Services Authority (calculated
for this purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed in pounds
per £1,000,000 of the Tariff Base of that Reference Bank.


 


8.             Each Bank shall supply any information
required by the Agent for the purpose of calculating its Additional Cost Rate. In
particular, but without limitation, each Bank shall supply the following
information on or prior to the date on which it becomes a Bank:


 


(a)           the jurisdiction of its Facility Office; and


 


(b)           any other information that the Agent may reasonably
require for such purpose.


 


Each Bank shall promptly notify the Agent of any change to the
information provided by it pursuant to this paragraph.


 


9.             The percentages of each Bank for the purpose
of A and C above and the rates of charge of each Reference Bank for the purpose
of E above shall be determined by the Agent based upon the information supplied
to it pursuant to paragraphs 7 and 8 above and on the assumption that, unless a
Bank notifies the Agent to the contrary, each Bank’s obligations in relation to
cash ratio deposits and Special Deposits are the same as those of a typical
bank from its jurisdiction of incorporation with a Facility Office in the same
jurisdiction as its Facility Office.


 


65





















 


10.           The Agent shall have no liability to any
person if such determination results in an Additional Cost Rate which over or under
compensates any Bank and shall be entitled to assume that the information
provided by any Bank or Reference Bank pursuant to paragraphs 3, 7 and 8 above
is true and correct in all respects.


 


11.           The Agent shall distribute the additional
amounts received as a result of the Mandatory Cost to the Banks on the basis of
the Additional Cost Rate for each Bank based on the information provided by
each Bank and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.


 


12.           Any determination by the Agent pursuant to
this Schedule in relation to a formula, the Mandatory Cost, an Additional
Cost Rate or any amount payable to a Bank shall, in the absence of manifest
error, be conclusive and binding on all Parties.


 


13.           The Agent may from time to time, after consultation
with the Parent and the Banks, determine and notify to all Parties any
amendments which are required to be made to this Schedule in order to comply with
any change in law, regulation or any requirements from time to time imposed by
the Bank of England, the Financial Services Authority or the European Central
Bank (or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest error,
be conclusive and binding on all Parties.


 


66





















 


SCHEDULE 5


FORM OF TRANSFER
CERTIFICATES


 


To:          [            ]
as Agent


 


From:      [The
Existing Bank] (the “Existing Bank”)
and [The
New Bank] (the “New Bank”)


 


Dated:


 


[Company] –
[             ]
Facility Agreement


dated [             ]
(the “Agreement”)


 


1.             We refer to the Agreement. This is a Transfer
Certificate. Terms defined in the Agreement have the same meaning in this
Transfer Certificate unless given a different meaning in this Transfer Certificate.


 


2.             We refer to Clause 24.5 (Procedure
for transfer):


 


(a)           The Existing Bank and the New Bank agree to
the Existing Bank transferring to the New Bank by novation all or part of the
Existing Bank’s Commitment, rights and obligations referred to in the Schedule in
accordance with Clause 24.5 (Procedure for transfer).


 


(b)           The proposed Transfer Date is [             ].


 


(c)           The Facility Office and address, fax number
and attention details for notices of the New Bank for the purposes of Clause
31.2 (Addresses) are set out in the Schedule.


 


3.             The New Bank expressly acknowledges the limitations
on the Existing Bank’s obligations set out in sub-clause 24.4.3 of Clause 24.4 (Limitation
of responsibility of Existing Banks).


 


4.             This Transfer Certificate 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 this Transfer Certificate.


 


5.             This Transfer Certificate is governed by
English law.


 


67





















 


THE SCHEDULE


 


Commitment/rights
and obligations to be transferred


 


[insert relevant details]


[Facility Office address, fax number and attention
details for notices and account details for

payments.]


 


 


	
  [Existing
  Bank]

  	
   

  	
  [New
  Bank]

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  By:

  



 


 


This Transfer Certificate is accepted by the
Agent and the Transfer Date is confirmed as [            ].


 


[Agent]


 


By:


 


68





















 


SCHEDULE 6


FORM OF
ACCESSION LETTER


 


To:          [             ]
as Agent


 


From:      [Subsidiary] and [Company]


 


Dated:


 


Dear Sirs


 


[Company] –
[             ] Facility Agreement


dated [             ]
(the “Agreement”)


 


1.             We refer to the Agreement. This is an
Accession Letter. Terms defined in the Agreement have the same meaning in this
Accession Letter unless given a different meaning in this Accession Letter.


 


2.             [Subsidiary] agrees to
become an Additional Indemnifying Company and to be bound by the terms of the
Agreement as an Additional Indemnifying Company pursuant to Clause 25.2 (Additional
Indemnifying Companies) of
the Agreement. [Subsidiary] is a company duly incorporated under the laws of [name of
relevant jurisdiction].


 


3.             [Subsidiary’s] administrative
details are as follows:


 


Address:


 


Fax No:


 


Attention:


 


4.             This Accession Letter is governed by English
law.


 


	
  [Company]

  	
   

  	
  [Subsidiary]

  



 


69


















 


SCHEDULE 7


TIMETABLES


 


	
   

  	
   

  	
  Specified Time

  
	
  Agent
  notifies the Application if a currency is approved as an Optional Currency in accordance
  with Clause 4.3 (Conditions relating to Optional Currencies)

  	
   

  	
  D - 4

  11.00 am

  
	
   

  	
   

  	
   

  
	
  Delivery
  of a duly completed Utilisation Request (Clause 5.1)
(Delivery
  of a Utilisation Request)

  	
   

  	
  D - 3

  11.00 am

  
	
   

  	
   

  	
   

  
	
  Agent
  notifies the Application if the form, beneficiary or tenor of the Bond is not
  approved in accordance with sub-clause 5.2.3 of Clause 5.2 (Completion
  of a Utilisation Request)

  	
   

  	
  D - 1

  11.00 am

  
	
   

  	
   

  	
   

  
	
  Agent
  determines (in relation to a Utilisation) the Base Currency Amount of the
  Bond, if required under Clause 5.4 (Issue of Bonds) and notifies the Issuing Bank
  and the Banks of the Bond in accordance with Clause 5.4 (Issue
  of Bonds)

  	
   

  	
  D - 1

  Noon

  



 


D                                       =                                         Utilisation
Date


 


D-x                              =                                         Business Days prior to Utilisation Date


 


70





















 


SCHEDULE 8


FORM OF LMA CONFIDENTIALITY
UNDERTAKING


 


[Letterhead
of Existing Bank]


 


	
  To:

  	
   

  	
   

  
	
   

  	
   

  	
  [insert name of Potential

  New Bank]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Re:

  	
  The Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  Applicant: Marconi
  Bonding Limited

  	
   

  	
   

  
	
  Date: [  ] 2005

  	
   

  	
   

  
	
  Amount: £35,000,000

  	
   

  	
   

  
	
  Agent: HSBC
  Bank plc

  	
   

  	
   

  
				



 


 


Dear
Sirs


 


We
understand that you are considering acquiring an interest in the Agreement (the
“Acquisition”). In
consideration of us agreeing to make available to you certain information, by
your signature of a copy of this letter you agree as follows:


 


1.                                       Confidentiality Undertaking


 


You undertake (a) to keep the Confidential Information
confidential and not to disclose it to anyone except as provided for by
paragraph 2 below and to ensure that the Confidential Information is protected
with security measures and a degree of care that would apply to your own
confidential information, (b) to use the Confidential Information only for
the Permitted Purpose, (c) to use all reasonable endeavours to ensure that
any person to whom you pass any Confidential Information (unless disclosed
under paragraph 2(c) below) acknowledges and complies with the provisions
of this letter as if that person were also a party to it, and (d) not to
make enquiries of any member of the Group or any of their officers, directors,
employees or professional advisers relating directly or indirectly to the
Acquisition.


 


2.                                       Permitted Disclosure


 


We agree that you may disclose Confidential Information:


 


(a)                                  to members of the Purchaser Group and their
officers, directors, employees and professional advisers to the extent
necessary for the Permitted Purpose and to any auditors of members of the
Purchaser Group;


 


(b)                                 subject to the requirements of the Agreement,
to any person to (or through) whom you assign or transfer (or may potentially
assign or transfer) all or any of the rights, benefits and obligations which
you may acquire under the Agreement or with (or through) whom you enter into
(or may potentially enter into) any sub-participation in relation to, or any
other transaction under which


 


71





















 


payments are to be made by reference to, the Agreement or the Borrower
or any member of the Group in each case so long as that person has delivered a
letter to you in equivalent form to this letter; and


 


(c)                                  (i) where requested or required by any
court of competent jurisdiction or any competent judicial, governmental,
supervisory or regulatory body, (ii) where required by the rules of
any stock exchange on which the shares or other securities of any member of the
Purchaser Group are listed or (iii) where required by the laws or
regulations of any country with jurisdiction over the affairs of any member of
the Purchaser Group.


 


3.                                       Notification of Required or
Unauthorised Disclosure


 


You agree (to the extent permitted by law) to inform us of the full
circumstances of any disclosure under paragraph 2(c) or upon becoming
aware that Confidential Information has been disclosed in breach of this
letter.


 


4.                                       Return of Copies


 


If we so request in writing, you shall return all Confidential
Information supplied to you by us and destroy or permanently erase all copies
of Confidential Information made by you and use all reasonable endeavours to
ensure that anyone to whom you have supplied any Confidential Information
destroys or permanently erases such Confidential Information and any copies
made by them, in each case save to the extent that you or the recipients are
required to retain any such Confidential Information by any applicable law, rule or
regulation or by any competent judicial, governmental, supervisory or
regulatory body or in accordance with internal policy, or where the
Confidential Information has been disclosed under paragraph 2(c) above.


 


5.                                       Continuing Obligations


 


The obligations in this letter are continuing and, in particular, shall
survive the termination of any discussions or negotiations between you and us.
Notwithstanding the previous sentence, the obligations in this letter shall
cease (a) if you become a party to or otherwise acquire (by assignment or
sub-participation) an interest, direct or indirect, in the Agreement or (b) twelve
months after you have returned all Confidential Information supplied to you by
us and destroyed or permanently erased all copies of Confidential Information
made by you (other than any such Confidential Information or copies which have
been disclosed under paragraph 2 above (other than sub-paragraph 2(a)) or
which, pursuant to paragraph 4 above, are not required to be returned or
destroyed).


 


6.                                       No Representation;
Consequences of Breach, etc


 


You acknowledge and agree that:


 


(a)                                  neither we, nor any member of the Group nor any
of our or their respective officers, employees or advisers (each a “Relevant Person”) (i) make any representation or warranty, express or
implied, as to, or assume any responsibility for, the accuracy, reliability or
completeness of any of the Confidential Information or any other information
supplied by us or the assumptions on which it is based or (ii) shall be
under any obligation to update or correct any inaccuracy in the Confidential
Information or any other information supplied by us or be otherwise liable to
you or any other person in respect to the Confidential Information or any such
information; and


 


72





















 


(b)                                 we or members of the Group may be irreparably
harmed by the breach of the terms hereof and damages may not be an adequate
remedy; each Relevant Person may be granted an injunction or specific
performance for any threatened or actual breach of the provisions of this
letter by you.


 


7.                                       No Waiver; Amendments, etc


 


This letter sets out the full extent of your obligations of
confidentiality owed to us in relation to the information the subject of this
letter. No failure or delay in exercising any right, power or privilege
hereunder will operate as a waiver thereof nor will any single or partial exercise
of any right, power or privilege preclude any further exercise thereof or the
exercise of any other right, power or privileges hereunder. The terms of this
letter and your obligations hereunder may only be amended or modified by
written agreement between us.


 


8.                                       Inside Information


 


You acknowledge that some or all of the Confidential Information is or
may be price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation relating to insider dealing
and you undertake not to use any Confidential Information for any unlawful
purpose.


 


9.                                       Nature of Undertakings


 


The undertakings given by you under this letter are given to us and
(without implying any fiduciary obligations on our part) are also given for the
benefit of the Borrower and each other member of the Group.


 


10.                                 Third Party Rights


 


(a)                                  Subject to this paragraph 10 and to
paragraphs 6 and 9, a person who is not a party to this letter has no right
under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”)
to enforce or to enjoy the benefit of any term of this letter.


 


(b)                                 The Relevant Persons may enjoy the benefit of
the terms of paragraphs 6 and 9 subject to and in accordance with this
paragraph 10 and the provisions of the Third Parties Act.


 


(c)                                  The parties to this letter do not require the
consent of the Relevant Persons to rescind or vary this letter at any time.


 


11.                                 Governing Law and
Jurisdiction


 


(a)                                  This letter (including the agreement
constituted by your acknowledgement of its terms) is governed by English law.


 


(b)                                 The parties submit to the non-exclusive
jurisdiction of the English courts.


 


12.                                 Definitions


 


In this letter (including the acknowledgement set out below) terms
defined in the Agreement shall, unless the context otherwise requires, have the
same meaning and:


 


“Confidential Information” means any information relating to the
Borrower, the Group, the Agreement and/or the Acquisition provided to you by us
or any of our affiliates or advisers, in whatever form, and includes
information given orally and any


 


73





















 


document, electronic file or any other way of representing or recording
information which contains or is derived or copied from such information but
excludes information that (a) is or becomes public knowledge other than as
a direct or indirect result of any breach of this letter or (b) is known
by you before the date the information is disclosed to you by us or any of our
affiliates or advisers or is lawfully obtained by you thereafter, other than
from a source which is connected with the Group and which, in either case, as
far as you are aware, has not been obtained in violation of, and is not
otherwise subject to, any obligation of confidentiality;


 


“Group” means the Borrower and each of its holding companies and subsidiaries
and each subsidiary of each of its holding companies (as each such term is
defined in the Companies Act 1985);


 


“Permitted Purpose” means considering and evaluating whether to
enter into the Acquisition; and


 


“Purchaser Group” means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as each
such term is defined in the Companies Act 1985).


 


Please acknowledge your agreement to the above by signing and returning
the enclosed copy.


 


Yours faithfully










 


For and on behalf of


 


[Existing Bank]


 


To:                              [Existing Bank]


 


and the Applicant


 


We acknowledge and agree to the above:










 


For and on behalf of


 


[Potential New Bank]


 


74





















 


SIGNATURES


 


	
  The Applicant

  	
   

  
	
   

  	
   

  
	
  MARCONI BONDING LIMITED

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  New
  Century Park

  
	
   

  	
  P.O. Box
  53

  
	
   

  	
  Coventry
  CV3 1HJ

  
	
   

  	
   

  
	
  Fax:

  	
  024
  7656 7000

  
	
   

  	
   

  
	
  The Company

  	
   

  
	
   

  	
   

  
	
  MARCONI CORPORATION plc

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  New
  Century Park

  
	
   

  	
  P.O. Box
  53

  
	
   

  	
  Coventry
  CV3 1HJ

  
	
   

  	
   

  
	
  Fax:

  	
  024
  7656 7000

  
	
   

  	
   

  
	
  The Original Issuing Bank and Original Bank

  
	
   

  	
   

  
	
  HSBC BANK plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  8
  Canada Square

  
	
   

  	
  London
  E14 5HQ

  
	
   

  	
   

  
	
  Fax:

  	
  020
  7991 4346

  



 


75





















 


	
  The Agent

  	
   

  
	
   

  	
   

  
	
  HSBC BANK plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  8
  Canada Square

  
	
   

  	
  London
  E14 5HQ

  
	
   

  	
   

  
	
  Fax:

  	
  020
  7991 4346

  
	
   

  	
   

  
	
  The Security Trustee

  
	
   

  	
   

  
	
  HSBC BANK plc

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  8
  Canada Square

  
	
   

  	
  London
  E14 5HQ

  
	
   

  	
   

  
	
  Fax:

  	
  020
  7991 4346

  
	
   

  	
   

  
	
  Original Indemnifying Companies

  
	
   

  	
   

  
	
  MARCONI COMMUNICATIONS CHINA LIMITED

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  New
  Century Park

  
	
   

  	
  P.O. Box
  53

  
	
   

  	
  Coventry
  CV3 1HJ

  
	
   

  	
   

  
	
  Fax:

  	
  024
  7656 7000

  
	
   

  	
   

  
	
  MARCONI COMMUNICATIONS GMBH

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
  /s/ [ILLEGIBLE]

  
	
   

  	
   

  
	
  Address:

  	
  Geberstrasse
  33

  
	
   

  	
  71522
  Backnang,

  
	
   

  	
  Germany

  
	
   

  	
   

  
	
  Fax:

  	
  +
  49 7191 13 2007

  
				



 


76





















 


	
  MARCONI COMMUNICATIONS INTERNATIONAL LIMITED

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  New
  Century Park

  
	
   

  	
  P.O. Box
  53

  
	
   

  	
  Coventry
  CV3 1HJ

  
	
   

  	
   

  
	
  Fax:

  	
  024
  7656 7000

  
	
   

  	
   

  
	
  MARCONI COMMUNICATIONS LTD

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  New
  Century Park

  
	
   

  	
  P.O. Box
  53

  
	
   

  	
  Coventry
  CV3 1HJ

  
	
   

  	
   

  
	
  Fax:

  	
  024
  7656 7000

  
	
   

  	
   

  
	
  MARCONI COMMUNICATIONS SpA

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Via
  Ludovico Calda 5

  
	
   

  	
  16153
  Genoa

  
	
   

  	
  Italy

  
	
   

  	
   

  
	
  MARCONI INTERNATIONAL SpA

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Via
  Ludovico Calda 5

  
	
   

  	
  16153
  Genoa

  
	
   

  	
  Italy

  



 


77





















 


	
  METAPATH SOFTWARE INTERNATIONAL LIMITED

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  New
  Century Park

  
	
   

  	
  P.O. Box
  53

  
	
   

  	
  Coventry
  CV3 1HJ

  
	
   

  	
   

  
	
  Fax:

  	
  024
  7656 7000

  
	
   

  	
   

  
	
  MARCONI AUSTRALIA PTY LTD

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
  /s/ [ILLEGIBLE]

  
	
   

  	
   

  
	
  Address:

  	
  Level
  7

  
	
   

  	
  90
  Arthur Street

  
	
   

  	
  North
  Sydney

  
	
   

  	
  NSW
  2060

  
	
   

  	
  Australia

  
	
   

  	
   

  
	
  MARCONI TELECOMMUNICATIONS INDIA (PRIVATE) LIMITED

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  2nd
  Floor

  
	
   

  	
  F
  Block

  
	
   

  	
  International
  Trade Tower

  
	
   

  	
  Nehru
  Place

  
	
   

  	
  New
  Delhi 110019

  
	
   

  	
  India

  
	
   

  	
   

  
	
  MARCONI MIDDLE EAST LLC

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Floor
  37

  
	
   

  	
  Emirates
  Towers

  
	
   

  	
  Sheikh
  Zayed Highway

  
	
   

  	
  Dubai

  
				



 


78





















 


	
  MARCONI COMMUNICATIONS ASIA LIMITED

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Suites
  1301-2, 13/F

  
	
   

  	
  1063
  Kings Road

  
	
   

  	
  Quarry
  Bay

  
	
   

  	
  Hong
  Kong

  
	
   

  	
   

  
	
  MARCONI MIDDLE EAST

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Level
  20

  
	
   

  	
  Al
  Faisaliah Tower

  
	
   

  	
  P.O. Box
  9985

  
	
   

  	
  Riyadh
  11423

  
	
   

  	
  Saudi
  Arabia

  
	
   

  	
   

  
	
  MARCONI COLOMBIA S.A.

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Autopista
  Norte No. 118-130

  
	
   

  	
  Oficina
  701

  
	
   

  	
  Santafe
  de Bogota

  
	
   

  	
  Colombia

  
	
   

  	
   

  
	
  MARCONI IBERIA S.A.

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  C/Calendula
  93, Miniparc III

  
	
   

  	
  El Soto de La Moraleja, Alcobendas

  
	
   

  	
  Madrid
  28109

  
	
   

  	
  Spain

  
	
   

  	
   

  
	
  MNI TECNOLOGIAS E SISTEMAS DE
  COMUNICACAO S.A.

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Avenida
  Duarte Pacheco

  
	
   

  	
  Empremendimento
  das Amoreiras

  
	
   

  	
  Torre
  1, 2nd Floor

  
	
   

  	
  Lisbon

  



 


79





















 


	
  MARCONI
  SUD SpA

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Via
  Ludovico Calda 5

  
	
   

  	
  16153
  Genoa

  
	
   

  	
  Italy

  
	
   

  	
   

  
	
  MARCONI COMMUNICATIONS DE
  MEXICO S.A. DE C.V.

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  Calle de la Amarguia #60PB

  
	
   

  	
  Col. Lomas de la Herradura

  
	
   

  	
  Paseo de la Herradura y Blvd. Magnocentro

  
	
   

  	
  52785 Huixquilucan, Estado de México, México

  



 


80





















 


	
  MARCONI COMMUNICATIONS, INC

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  3000 Marconi Drive

  
	
   

  	
  Warrendale,
  Pennsylvania 15086 USA

  
	
   

  	
   

  
	
  MARCONI INC

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  c/o Marconi Communications, Inc

  
	
   

  	
  333 Pierce Road - Suite 370

  
	
   

  	
  Itasca, Illinois 60143
  USA

  
	
   

  	
   

  
	
  METAPATH SOFTWARE INTERNATIONAL
  (US), INC

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  1755 N. Collins
  Boulevard - Suite 400

  
	
   

  	
  Richardson, Texas 75080
  USA

  
	
   

  	
   

  
	
  GPT SPECIAL PROJECT MANAGEMENT
  LIMITED

  
	
   

  	
   

  
	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  New Century Park

  
	
   

  	
  PO Box 53

  
	
   

  	
  Coventry CV3 1HJ

  
	
   

  	
   

  
	
  Fax:

  	
  024 7656 7000

  



 


81