EXHIBIT (B)(2)
CONFORMED COPY
Dated 23rd June, 1998
SYNDICATION AGREEMENT
between
TI GROUP plc
TI INTERNATIONAL HOLDINGS LIMITED
ABN AMRO BANK N.V., CITIBANK, N.A.
and MIDLAND BANK plc
(as Arrangers and Existing Banks)
THE NEW BANKS
(as listed in Schedule 1)
and
HSBC INVESTMENT BANK plc
(as Agent)
XXXXX & XXXXX
London
BK:125984.1
INDEX
Clause Page No.
1. Interpretation.........................................................1
2. Consent and Confirmation...............................................2
3. Novation...............................................................2
4. Nature of this Agreement...............................................3
5. Amendments.............................................................3
6. Representation and Warranty from the Company...........................4
7. Governing Law..........................................................4
1. The New Banks..........................................................5
2. Part I - Banks and Commitments - Facility A............................6
Part II - Banks and Commitments - Facility B...........................7
3. Calculation of the Mandatory Cost......................................8
Signatories................................................................10
THIS AGREEMENT is dated 23rd June, 1998 between:
(1) TI GROUP plc (the "COMPANY");
(2) TI INTERNATIONAL HOLDINGS LIMITED ("TIIH");
(3) ABN AMRO BANK N.V., CITIBANK, N.A. and MIDLAND BANK plc as arrangers (in
this capacity the "ARRANGERS");
(4) ABN AMRO BANK N.V., CITIBANK, N.A. and MIDLAND BANK plc as the banks party
to the Credit Agreement (as defined below) as at today's date (the
"EXISTING BANKS");
(5) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as the banks who wish to
accede to the Credit Agreement as Banks (the "NEW BANKS"); and
(6) HSBC INVESTMENT BANK plc as agent (the "AGENT").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the contrary intention appears or the context
otherwise requires:
"CREDIT AGREEMENT"
means the Original Credit Agreement as amended pursuant to Clause 4 (Nature
of this Agreement) and Clause 5 (Amendments) of this Agreement.
"EFFECTIVE DATE"
means 23rd June, 1998.
"INFORMATION MEMORANDUM"
means the information memorandum dated May, 1998 prepared by the Company in
connection with the Credit Agreement.
"ORIGINAL CREDIT AGREEMENT"
means the Credit Agreement dated 27th April, 1998 between the Company,
TIIH, the Arrangers, the Existing Banks and the Agent.
1.2 INCORPORATION OF CREDIT AGREEMENT DEFINITIONS
Terms defined in the Credit Agreement shall, unless the contrary intention
appears or the context otherwise requires, have the same meaning in this
Agreement.
1.3 INCORPORATION
Clauses 1.2 (Construction) and 34 (Counterparts) of the Credit Agreement
shall apply to this Agreement, mutatis mutandis.
2. CONSENT AND CONFIRMATION
The Company, TIIH, the Arrangers, the Existing Banks and the Agent each
consent to the New Banks becoming Banks and confirm that, except as
expressly provided by the terms of this Agreement, the Credit Agreement and
each of the documents contemplated by the Credit Agreement shall continue
in full force and effect.
3. NOVATION
3.1 NOVATION OF COMMITMENTS AND RELATED RIGHTS AND OBLIGATIONS
On the Effective Date:
(a) each New Bank will become a Bank under the Credit Agreement with those
Commitments as set out opposite its name in Schedule 2;
(b) the Commitments of each Existing Bank shall be and be deemed to be
reduced down to the level set out opposite its name in Schedule 2 so
long as the overall level of the Total Commitments is not reduced; and
(c) each New Bank will automatically obtain and assume, and undertakes to
perform, all of the rights and obligations of a Bank under and in
respect of the Credit Agreement and the documents contemplated in the
Credit Agreement in respect of the rights and obligations transferred
to it under paragraphs (a) and (b) above.
3.2 AMOUNTS DUE ON OR BEFORE THE EFFECTIVE DATE
(a) All amounts (if any) payable to an Existing Bank by the Borrowers on or
before the Effective Date (including, without limitation, all interest and
fees payable on the Effective Date) in respect of any period ending prior
to the Effective Date shall be for the account of the Existing Banks, and
none of the New Banks shall have any interest in, or any rights in respect
of, any such amounts.
(b) If any Loan falls to be made on the Effective Date:
(i) the Agent will promptly notify each of the New Banks of that fact (and
the amount of its participation in that Loan in accordance with
paragraph (ii) below); and
(ii) each Existing Bank and each New Bank shall participate in that Loan
(subject to the terms of the Credit Agreement) as if the novation of
the Commitments under Clauses 3.1(a) and (b) (Novation of Commitments
and related rights and obligations) of this Agreement had taken effect
prior to opening of business on the Business Day before the Effective
Date,
and the relevant Borrower acknowledges that no Existing Bank will be
obliged to participate in any such Loan to any greater extent.
3.3 ADMINISTRATIVE DETAILS
Each New Bank has delivered to the Agent its initial details for the
purposes of Clause 35 (Notices) of the Credit Agreement.
4. NATURE OF THIS AGREEMENT
The novation of Commitments and rights and obligations contemplated by this
Agreement shall take effect (in accordance with its terms) as a novation so
that:
(a) Schedule 2 is substituted for Schedule 1 to the Credit Agreement on
the Effective Date; and
(b) Clause 28.3 (Procedure for novations) of the Credit Agreement shall
apply to the Commitments, rights and obligations transferred, assumed
and released under Clause 3.1 (Novation of Commitments and related
rights and obligations) of this Agreement and to the associated rights
and obligations under the Credit Agreement and the documents
contemplated in the Credit Agreement, as if this Agreement were a
Novation Certificate.
5. AMENDMENTS
On and from the Effective Date the Credit Agreement will be amended as
follows:
(a) In Clause 1.1 (Definitions) of the Credit Agreement, the definition of "MLA
Cost" shall be deleted and replaced with a new definition as follows:
"MANDATORY COST RATE"
means the cost imputed to the Banks of compliance with the Mandatory Cost
Rate requirements of the Bank of England and the Financial Services
Authority during the term of a Loan denominated in Sterling, determined in
accordance with Schedule 3".
(b) Each reference to "MLA Cost" in the Credit Agreement shall be deleted and
replaced with a reference to "Mandatory Cost Rate."
(c) Schedule 3 (Calculation of the MLA Cost) of the Credit Agreement, shall be
amended by deleting its contents and replacing them with the contents of
Schedule 3.
(d) Clause 33.4 shall be deleted and replaced with the following:
"33.4 BUSINESS DAYS
In relation to a payment or rate fixing in or other matters relating to
euros, any reference to a Business Day shall be construed as a reference to
a day on which the Trans-European Automated Real-time Gross settlement
Express Transfer system (TARGET) is operating".
6. REPRESENTATION AND WARRANTY FROM THE COMPANY
The Company represents and warrants for the benefit of each other party to
this Agreement in respect of the Information Memorandum that :
(a) the material factual information relating to the Group contained in
the Information Memorandum was true and accurate in all material
respects as at its date;
(b) to the best of its knowledge the opinions, projections and forecasts
contained in it and the assumptions on which they are based were
arrived at after due and careful consideration and genuinely
represented its views; and
(c) to the best of its knowledge there are no material facts or
circumstances which have not been disclosed to the parties to this
Agreement by the Information Memorandum or otherwise prior to the date
of this Agreement and which would make any of the information,
opinions, projections, forecasts or assumptions contained in it
untrue, incomplete, inaccurate or misleading in any material respect.
7. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
SCHEDULE 1
THE NEW BANKS
BANQUE NATIONALE DE PARIS, LONDON BRANCH
BARCLAYS BANK PLC
THE BANK OF TOKYO-MITSUBISHI, LTD.
DEUTSCHE BANK AG LONDON
MELLON BANK N.A.
ROYAL BANK OF CANADA
WESTDEUTSCHE LANDESBANK GIROZENTRALE, LONDON BRANCH
BANCA DI ROMA - LONDON BRANCH
BANCA NAZIONALE DEL LAVORO S.P.A., LONDON BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, LONDON BRANCH
DEN DANSKE BANK AKTIESELSKAB
THE FIRST NATIONAL BANK OF CHICAGO
SVENSKA HANDELSBANKEN AB (PUBL)
BANCA COMMERCIALE ITALIANA S.P.A., LONDON BRANCH
BANCO BILBAO VIZCAYA
BANKBOSTON, N.A.
BANK BRUSSELS XXXXXXX
THE DAI-ICHI KANGYO BANK, LIMITED
ISTITUTO BANCARIO SAN PAOLO DI TORINO S.P.A.
XXXXXX BANK PLC
NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)
NORDDEUTSCHE LANDESBANK GIROZENTRALE
SCHEDULE 2
PART I
BANKS AND COMMITMENTS - FACILITY A
BANKS Facility A Commitments
(Pounds)
ABN AMRO Bank N.V. 20,166,666.67
Citibank, N.A. 20,166,666.66
Midland Bank plc 20,166,666.67
Banque Nationale de Paris, London Branch 16,000,000.00
Barclays Bank PLC 16,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd. 16,000,000.00
Deutsche Bank AG London 16,000,000.00
Mellon Bank N.A. 16,000,000.00
Royal Bank of Canada 16,000,000.00
Westdeutsche Landesbank Girozentrale, London Branch 16,000,000.00
Banca di Roma - London Branch 12,500,000.00
Banca Nazionale del Lavoro S.p.A., London Branch 12,500,000.00
Bayerische Landesbank Girozentrale, London Branch 12,500,000.00
Den Danske Bank Aktieselskab 12,500,000.00
The First National Bank of Chicago 12,500,000.00
Svenska Handelsbanken AB (publ) 12,500,000.00
Banca Commerciale Italiana S.p.A., London Branch 7,500,000.00
Banco Bilbao Vizcaya 7,500,000.00
BankBoston, N.A. 7,500,000.00
Bank Brussels Xxxxxxx 7,500,000.00
The Dai-Ichi Kangyo Bank, Limited 7,500,000.00
Istituto Bancario San Paolo di Torino S.p.A. 7,500,000.00
Xxxxxx Bank Plc 7,500,000.00
National Australia Bank Limited (ACN 004 044 937) 7,500,000.00
Norddeutsche Landesbank Girozentrale 7,500,000.00
--------------
TOTAL (Pounds)315,000,000.00
--------------
PART II
BANKS AND COMMITMENTS - FACILITY B
BANKS Facility B Commitments
(Pounds)
ABN AMRO Bank N.V. 20,166,666.66
Citibank, N.A. 20,166,666.67
Midland Bank plc 20,166,666.67
Barclays Bank PLC 16,000,000.00
Banque Nationale de Paris, London Branch 16,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd. 16,000,000.00
Deutsche Bank AG London 16,000,000.00
Mellon Bank N.A. 16,000,000.00
Royal Bank of Canada 16,000,000.00
Westdeutsche Landesbank Girozentrale, London Branch 16,000,000.00
Banca di Roma - London Branch 12,500,000.00
Banca Nazionale del Lavoro S.p.A., London Branch 12,500,000.00
Bayerische Landesbank Girozentrale, London Branch 12,500,000.00
Den Danske Bank Aktieselskab 12,500,000.00
The First National Bank of Chicago 12,500,000.00
Svenska Handelsbanken AB (publ) 12,500,000.00
Banco Bilbao Vizcaya 7,500,000.00
BankBoston, N.A. 7,500,000.00
Bank Brussels Xxxxxxx 7,500,000.00
Banca Commerciale Italiana S.p.A., London Branch 7,500,000.00
The Dai-Ichi Kangyo Bank, Limited 7,500,000.00
Istituto Bancario San Paolo di Torino S.p.A. 7,500,000.00
Xxxxxx Bank Plc 7,500,000.00
National Australia Bank Limited (ACN 004 044 937) 7,500,000.00
Norddeutsche Landesbank Girozentrale, London Branch 7,500,000.00
--------------
TOTAL (Pounds)315,000,000.00
--------------
SCHEDULE 3
CALCULATION OF THE MANDATORY COST
(a) The Mandatory Cost for a Loan denominated in Sterling for each of its
Interest Periods is the rate determined by the Agent to be equal to the
arithmetic mean rounded upward, if necessary, to four decimal places of the
respective rates notified by each of the Reference Banks to the Agent and
calculated in accordance with the following formulae:
BY + S(Y-Z) + F x 0.01 % per annum = Mandatory Cost
----------------------
100-(B + S)
where on the day of application of the formula:
B is the percentage of the Reference Bank's eligible liabilities (in
excess of any stated minimum) which the Bank of England requires the
Reference Bank to hold on a non-interest-bearing deposit account in
accordance with its cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the Reference
Bank to leading banks in the London interbank market at or about 11.00
a.m. on that day for the relevant period;
S is the percentage of the Reference Bank's eligible liabilities which
the Bank of England requires the Reference Bank to place as a special
deposit;
Z is the interest rate per annum allowed by the Bank of England on
special deposits; and
F is the charge payable by the Reference Bank to the Financial Services
Authority under the Fees Regulations expressed in pounds per (Pounds)1
million of the fee base of the Reference Bank.
A negative result obtained from subtracting Z from Y shall be counted as
zero.
(b) For the purposes of this Schedule 3:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given
to them at the time of application of the formula by the Bank of
England;
(ii) "FEE BASE" has the meaning given to it in the Fees Regulations;
(iii) "FEES REGULATIONS" means any regulations governing the payment of
fees for banking supervision.
(ii) "RELEVANT PERIOD" in relation to each Interest Period, means:
(A) if it is three months or less, that Interest Period; or
(B) if it is more than three months, three months.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%, BY
is calculated as 0.5 x 15.
(d) If a Reference Bank does not supply a rate to the Agent, the applicable
Mandatory Cost will be determined on the basis of the rate(s) supplied by
the remaining Reference Banks.
(e) (i) The formula is applied on the first day of each relevant period
comprised in the relevant Interest Period.
(ii) Each rate calculated in accordance with the formula is, if necessary,
rounded upward to four decimal places.
(f) If the Agent determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Agent (after consultation with
the Banks) shall notify the Company of the manner in which the Mandatory
Cost will subsequently be calculated. The manner of calculation so notified
by the Agent shall, in the absence of manifest error, be binding on all the
Parties.
SIGNATORIES
COMPANY
TI GROUP plc
By: X. XXXXX
TIIH
TI INTERNATIONAL HOLDINGS LIMITED
By: X. XXXXX
ARRANGERS AND EXISTING BANKS
ABN AMRO BANK N.V.
By: X. XXXXXX A.R.HILL
CITIBANK, N.A.
By: XXXX X.X. XXXXXXXX
MIDLAND BANK plc
By: XXXXX XXXXXX
NEW BANKS
BANQUE NATIONALE DE PARIS, LONDON BRANCH
By: XXXXXXXX XXXXXXX
BARCLAYS BANK PLC
By: XXX XXXXXXX
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: XXXXXXX XXXXXXXXX
DEUTSCHE BANK AG LONDON
By: XXXXX XXXXXXXXX XXXXXXX XXXXXXXX
XXXXXX BANK N.A.
By: XXXXX X.X. XXXXXXXX
ROYAL BANK OF CANADA
By: S.R. XXXXXXX
WESTDEUTSCHE LANDESBANK GIROZENTRALE, LONDON BRANCH
By: X.X. XXXXXXX
BANCA DI ROMA - LONDON BRANCH
By: X. XXXXXXXXXX X. XXXXXXXX
BANCA NAZIONALE DEL LAVORO S.P.A., LONDON BRANCH
By: XXXX XXXXXXXX XXXXX XXXX
BAYERISCHE LANDESBANK GIROZENTRALE, LONDON BRANCH
By: C.A. XXXXXXXX XXXXX BUCK
DEN DANSKE BANK AKTIESELSKAB
By: XXXXX STENT
(Power of attorney)
THE FIRST NATIONAL BANK OF CHICAGO
By: J.P.B. XXXXXXX
SVENSKA HANDELSBANKEN AB (PUBL)
By: XXXX XXXXXX XXXXXX XXXXX XXX
BANCA COMMERCIALE ITALIANA S.P.A., LONDON BRANCH
By: XXXXXXXXXXX XXXXX
BANCO BILBAO VIZCAYA
By: XXXXX STENT
(Power of attorney)
BANKBOSTON, N.A.
By: XXXXXXXX X. XXXXXXXX
BANK BRUSSELS XXXXXXX
By: J.R. XXXXXX
THE DAI-ICHI KANGYO BANK, LIMITED
By: X.X. XXXXXXXX
ISTITUTO BANCARIO SAN PAOLO DI TORINO S.P.A.
By: C.C.E. STAMFORD XXXXXX XXXXXXXX
XXXXXX BANK PLC
By: XXXXXXX XXXXXXXXX XXX XXXXX
NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)
By: XXXXXXX X. XXXXXXXXX
NORDDEUTSCHE LANDESBANK GIROZENTRALE
By: XXXXXXXX XxXXXXXX
AGENT
HSBC INVESTMENT BANK plc
By: XXXXX STENT
BK:125984.1
B1:138442.1