Exhibit 4.5
C L I F F 0 R D LIMITED LIABILITY PARTNERSHIP
C H A N C E ADVOCATEN BELASTINGADVISEURS SOLICITORS
EXECUTION COPY
18 JULY 2002
KONINKLIJKE AHOLD N.V.
CROESUS INC.
AHOLD FINANCE USA, LLC
AS BORROWERS
KONINKLIJKE AHOLD N.V.
AS GUARANTOR
ABN AMRO BANK N.V.
J.P. ▇▇▇▇▇▇ PLC
AS MANDATED LEAD ARRANGERS
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED
AS FACILITY AGENT
AND
OTHERS
__________________________________________
US$2,000,000,000
MULTICURRENCY REVOLVING CREDIT AGREEMENT
__________________________________________
CONTENTS
Clause Page
1. Definitions and Interpretation...........................................1
2. The Facilities..........................................................17
3. Utilisation of the multicurrency revolving credit facilities............20
4. Indemnity in relation to letters of credit..............................25
5. interest on advances....................................................26
6. repayment...............................................................27
7. Cancellation............................................................33
8. Taxes...................................................................34
9. Tax Receipts............................................................36
10. Increased Costs.........................................................37
11. Mitigation..............................................................39
12. Market Disruption.......................................................39
13. representations and warranties..........................................40
14. Undertakings............................................................46
15. Events of Default.......................................................51
16. Guarantee and Indemnity.................................................56
17. Default Interest and Indemnity..........................................58
18. Currency of Account and Payment.........................................60
19. Payments................................................................61
20. Set-off.................................................................64
21. Sharing.................................................................64
22. Fees....................................................................65
23. Costs and Expenses......................................................67
24. The Facility Agent, the Arrangers and the Banks.........................68
25. Assignments and Transfers...............................................73
26. Calculations and Evidence of Debt.......................................76
27. Remedies and Waivers, Partial Invalidity................................77
28. Amendments..............................................................77
29. Notices.................................................................79
30. Law and Jurisdiction....................................................80
SCHEDULE 1 The Banks [omitted]................................................83
SCHEDULE 2 Form of Transfer Certificate [omitted].............................84
SCHEDULE 3 Condition Precedent Documents......................................87
SCHEDULE 4 Utilisation Request [omitted]......................................89
SCHEDULE 5 Supplemental Agreement for Additional Borrowers [omitted]..........91
SCHEDULE 6 Conversion Request [omitted].......................................95
SCHEDULE 7 Reserve Costs Formulae [omitted]...................................96
SCHEDULE 8 Form of Affiliate Notice [omitted].................................99
THIS AGREEMENT is made on 18 July 2002
BETWEEN:
(1) KONINKLIJKE AHOLD N.V. as borrower (including through its branch in Geneva,
Switzerland) and guarantor (the "Principal Company");
(2) AHOLD FINANCE USA, LLC. as borrower ("Ahold Finance USA");
(3) CROESUS INC. as borrower ("Croesus" and, together with the Principal
Company and Ahold Finance USA, the "Original Borrowers" and each an
"Original Borrower");
(4) ABN AMRO BANK N.V. and ▇.▇. ▇▇▇▇▇▇ PLC as mandated lead arrangers (the
"Arrangers");
(5) ▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED as Facility Agent (the "Facility Agent");
(6) THE BANKS (as defined below).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement
"Additional Borrower" means a wholly-owned direct or indirect subsidiary of
the Principal Company which has become an Additional Borrower pursuant to
and in accordance with the provisions of Clause 2.5 (Nomination of
Additional Borrowers) and Clause 2.6 (Accession of Additional Borrowers).
"Advance" means a Facility A Advance, a Facility A Term Advance or a
Facility B Advance as the context may require.
"Affiliate Notice" means a notice substantially in the form set out in
Schedule 8 (Form of Affiliate Notice).
"Applicable Margin" means the Facility A Applicable Margin or the Facility
B Applicable Margin, as the context may require.
"Available Commitment" means, in relation to a Bank at any time and save as
otherwise provided herein, the aggregate of its Facility A Available
Commitment, its Facility B Available Commitment and its Facility C
Available Commitment.
"Banks" means:
(a) any bank, financial institution, trust, fund or other entity named in
Schedule 1 (The Banks) (other than one which has ceased to be a party
hereto in accordance with the terms hereof); and
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(b) any bank, financial institution, trust, fund or other entity which has
become a party hereto in accordance with the provisions of Clause 25.4
(Assignments by Banks) or Clause 25.5 (Transfers by Banks).
"Borrower" means an Original Borrower or an Additional Borrower.
"Cash Collateral" means, in relation to any Letter of Credit or L/C
Proportion of a Letter of Credit, a deposit in an interest-bearing account
or accounts as the Facility Agent may specify, that deposit and account to
be secured in favour of, and on terms and conditions acceptable to, the
Facility Agent.
"Cash Collateral Documents" means any documents as the Facility Agent may
specify, to be entered into in relation to the Cash Collateral.
"Code" means the United States Internal Revenue Code of 1986.
"Commitment" means, in relation to a Bank at any time, the aggregate of its
Facility A Commitment, its Facility B Commitment and its Facility C
Commitment.
"Dollar Amount" means:
(a) in relation to any Advance, its Original Dollar Amount as reduced by
the proportion (if any) of such Advance which has been repaid; and
(b) in relation to any Letter of Credit:
(i) at or before the Utilisation Date in respect of such Letter of
Credit, the face amount thereof; and
(ii) thereafter, the sum at such time of the maximum actual and
contingent liabilities of the Issuing Bank under such Letter of
Credit and the total amount of any payments made by the Issuing
Bank thereunder which at such time have not been paid or
reimbursed by any Obligor to the Issuing Bank hereunder; and
(c) in relation to the Outstandings, the aggregate of the Dollar Amounts
of the outstanding Advances and Letters of Credit.
"Employee Plan" shall mean an "employee pension benefit plan" as defined in
Section 3(2) of ERISA, other than a Multiemployer Plan, which is maintained
for, or under which contributions are made on behalf of, employees of any
Obligor, Material US Subsidiary or any ERISA Affiliate.
"Environment" means:
(a) land including any natural or man-made structures;
(b) water including ground waters and waters in drains and sewers; and
(c) air including air within buildings and other natural or man-made
structures above or below ground.
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"Environmental Laws" means all and any applicable laws, including common
law, statute and subordinate legislation, European Community Regulations
and Directives and judgments and decisions, laws and regulations including
those of the United States of America and any state or locality therein,
including notices, orders and circulars, of any court or authority
competent to make such judgment or decision compliance with which is
mandatory for any member of the Group in any jurisdiction with regard to:
(a) the pollution or protection of the Environment;
(b) harm to the health of humans, animals or plants including laws
relating to public and workers' health and safety;
(c) emissions, discharges or releases into the Environment of
chemicals or any other pollutants or contaminants or industrial,
radioactive, dangerous, toxic or hazardous substances or wastes
(whether in solid, semi-solid, liquid or gaseous form and
including noise and genetically modified organisms); or
(d) the manufacture, processing, use, treatment, storage,
distribution, disposal, transport or handling of the substances
or wastes described in (c) above.
"Environmental Permits" means all and any permits, licences, consents,
approvals, certificates, qualifications, specifications, registrations and
other authorisations including any conditions which attach to any of the
foregoing and the filing of all notifications, reports and assessments
required under Environmental Laws for the operation of any business or for
the sale, use, ownership, leasing, or operation of any real property.
"ERISA" means the United States Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations thereunder.
"ERISA Affiliate" shall mean any person that for the purposes of Title I or
Title IV of ERISA or Section 412 of the Code is a member of any Obligor's
(or any Material US Subsidiary's) controlled group, or under common control
with any Obligor (or Material US Subsidiary), within the meaning of Section
414 (b), (c), (m) or (o) of the Code and the regulations promulgated and
rulings issued thereunder.
"ERISA Event" shall mean (i) (A) any reportable event, as defined in
Section 4043(c) of ERISA with respect to an Employee Plan, as to which PBGC
has not by regulation waived the requirement of Section 4043(a) of ERISA
that it be notified within thirty days of the occurrence of such event
(provided that a failure to meet the minimum funding standard of Section
412 of the Code or Section 302 of ERISA shall be a reportable event for the
purposes of this sub-paragraph (i) regardless of the issuance of any
waivers in accordance with Section 412(d) of the Code); or (B) the
requirements of subsection (1) of Section 4043(b) of ERISA (without regard
to subsection (2) of such Section) are met with respect to a contributing
sponsor, as defined in Section 400l(a)(13) of ERISA, of an Employee Plan
and an event described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with respect to
such Employee Plan within the following 30 days; (ii) the filing under
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Section 4041(c) of ERISA of a notice of intent to terminate any Employee
Plan or the termination of any Employee Plan under Section 4042 of ERISA by
the PBGC, or the appointment of a trustee to administer any Employee Plan
under Section 4042 of ERISA; (iii) the failure to make a required
contribution to any Employee Plan that would result in the imposition of a
lien under Section 412 (n) of the Code or Section 302 (f) of ERISA; and
(iv) an engagement in a non-exempt prohibited transaction within the
meaning of Section 4975 of the Code or Section 406 of ERISA, other than a
non-exempt prohibited transaction that may arise as a result of any Bank
using assets, in any portion or all of its Advances, of any employee
benefit plan that is subject to Title I of ERISA or any plan that is
subject to Section 4975 of the Code.
"EURIBOR" means, in relation to any Advance or unpaid sum:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the specified period) the
arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Facility Agent at its request quoted
by the Reference Banks to leading banks in the European interbank
market;
as of 11:00 a.m. (Brussels time) on the Quotation Date for the offering of
deposits in euro for the specified period (and for the purposes of this
definition, "specified period" means the Term of such Facility A Advance or
Facility B Advance or the Interest Period of such Facility A Term Advance
or, as the case may be, the period in respect of which EURIBOR falls to be
determined in relation to such unpaid sum).
"Event of Default" means any of those circumstances specified in Clause 15
(Events of Default).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Amount" means, in relation to any Facility A Term Advance and any
two successive Interest Periods relating thereto, the amount of such
Advance at the beginning of the last day of the first of those Interest
Periods less any part thereof falling to be repaid on such day.
"Expiry Date" means, in relation to any Letter of Credit, the date on which
the maximum aggregate liability under that Letter of Credit is to be
reduced to zero.
"Facilities" means Facility A, Facility B and Facility C and "Facility"
means any one of them.
"Facility A Advance" means, save as otherwise provided herein, an advance
made or to be made by the Banks under Facility A (but, for the avoidance of
doubt, does not include a Facility A Term Advance unless otherwise provided
herein).
"Facility A Applicable Margin" means the rate per annum in relation to
Facility A Advances determined in accordance with Clause 5.4.1 (Applicable
Margin and L/C Commission Rate).
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"Facility A Available Commitment" means, in relation to a Bank at any time
and save as otherwise provided herein, such Bank's Facility A Commitment at
such time less the aggregate of its portions of the Dollar Amounts of the
Facility A Advances which are then outstanding at such time provided that
such amount shall not be less than zero.
"Facility A Available Facility" means, at any time, the aggregate amount of
the Facility A Available Commitments at such time, adjusted to take account
of any reduction or increase pursuant to and in accordance with the terms
hereof.
"Facility A Commitment" means, in relation to a Bank at any time and save
as otherwise provided herein, the amount set opposite its name under the
heading "Facility A Commitment" in Schedule 1 (The Banks).
"Facility A" has the meaning given to it in Clause 2.1.1 (Grant of the
Facilities).
"Facility A Loan" means, at any time, the aggregate principal amount of the
Facility A Advances outstanding at such time.
"Facility A Maturity Date" means, subject to extension thereof pursuant to
Clauses 6.6 to 6.12 (inclusive), the date falling 364 days after the date
of execution of this Agreement.
"Facility A Term Advance" means, save as otherwise provided herein, an
advance made or to be made pursuant to Clauses 6.13 to 6.15 (inclusive).
"Facility A Termination Date" has the meaning given to it in Clause 6.13
(Request for Conversion of Facility A).
"Facility A Total Commitments" means, at any time, the aggregate of the
Banks' Facility A Commitments.
"Facility B Advance" means, save as otherwise provided herein, an advance
made or to be made by the Banks under Facility B.
"Facility B Applicable Margin" means the rate per annum in relation to
Facility B Advances determined in accordance with Clause 5.4.1 (Applicable
Margin and L/C Commission Rate).
"Facility B Available Commitment" means, in relation to a Bank at any time
and save as otherwise provided herein, such Bank's Facility B Commitment at
such time less the aggregate of its portions of the Dollar Amounts of the
Facility B Advances which are then outstanding at such time provided that
such amount shall not be less than zero.
"Facility B Available Facility" means, at any time, the aggregate amount of
the Facility B Available Commitments at such time, adjusted to take account
of any reduction or increase pursuant to and in accordance with the terms
hereof (including without limitation Clause 2.10 (Aggregation of Facility B
and Facility C)).
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"Facility B Commitment" means, in relation to a Bank at any time and save
as otherwise provided herein, the amount set opposite its name under the
heading "Facility B Commitment" in Schedule 1 (The Banks).
"Facility B" has the meaning given to it in Clause 2.1.2 (Grant of the
Facilities).
"Facility B Loan" means, at any time, the aggregate principal amount of the
Facility B Advances outstanding at such time.
"Facility B Maturity Date" means the day which is five (5) years after the
date hereof.
"Facility B Total Commitments" means, at any time, the aggregate of the
Banks' Facility B Commitments.
"Facility C Available Commitment" means, in relation to a Bank at any time
and save as otherwise provided herein, such Bank's Facility C Commitment at
such time less the aggregate of its portions of the Dollar Amounts of the
outstanding Letters of Credit at such time provided that such amount shall
not be less than zero.
"Facility C Available Facility" means, at any time, the aggregate amount of
the Facility C Available Commitments at such time, adjusted to take account
of any reduction or increase pursuant to and in accordance with the terms
hereof (including without limitation Clause 2.10 (Aggregation of Facility B
and Facility C)).
"Facility C Commitment" means, in relation to a Bank at any time and save
as otherwise provided herein, the amount set opposite its name under the
heading "Facility C Commitment" in Schedule 1 (The Banks).
"Facility C" has the meaning given to it in Clause 2.1.3 (Grant of the
Facilities).
"Facility C Maturity Date" means the day which is five (5) years after the
date hereof.
"Facility C Total Commitments" means, at any time, the aggregate of the
Banks' Facility C Commitments.
"Facility Office" means:
(a) in relation to the Facility Agent, the office identified with its
signature below or such other office as it may from time to time
select upon five business days' notice to the Principal Company;
and
(b) in relation to any Bank, the office identified with its signature
below (or, in the case of a Transferee, at the end of the
Transfer Certificate to which it is a party as Transferee) or
such other office as such Bank may from time to time select upon
five business days' notice to the Facility Agent and the
Principal Company.
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"Fee Letter" means the letter agreement dated on or about 7 June 2002
between, inter alia, the Arrangers and the Principal Company.
"Finance Documents" means this Agreement (as supplemented by any
Supplemental Agreement) and each Supplemental Agreement, any Cash
Collateral Document, the Mandate Letter and the Fee Letter and any other
documents designated as such by the Facility Agent and Principal Company.
"Finance Parties" means the Facility Agent, the Issuing Banks, the
Arrangers and the Banks, and "Finance Party" means any one of them.
"Guarantor" means the Principal Company in its capacity as guarantor
hereunder.
"Group" means at any time the Principal Company and its subsidiaries at
such time.
"Information Memorandum" means the document concerning the Obligors which,
at their request and on their behalf, was prepared in relation to this
transaction and distributed by the Arrangers to selected banks during June
2002.
"Instructing Group" means:
(a) whilst no Advances or Letters of Credit are outstanding
hereunder, a Bank or group of Banks whose Commitments at such
time (or, if each Bank's Commitment has been reduced to zero, did
immediately before such reduction to zero) amount in aggregate to
more than sixty-six and two thirds per cent. of the Total
Commitments at such time; or
(b) at any time that there are one or more Advances or Letters of
Credit outstanding hereunder, a Bank or group of Banks to whom
more than sixty-six and two thirds per cent. of the Dollar Amount
of the Outstandings at such time is owed.
"Interest Period" means, save as otherwise provided herein:
(a) any of those periods mentioned in Clause 6.16 (Interest Periods);
(b) in relation to an unpaid sum, any of those periods mentioned in
Clause 17.1 (Default Interest Periods).
"IRS" means the United States Internal Revenue Service.
"Issuing Bank" means any Bank which has agreed to issue a Letter of Credit
which, at the time of the Utilisation Request relating to the relevant
Letter of Credit, has a long-term debt rating by S&P of not less than AA-
or by Moody's of not less than Aa3 as selected by the relevant Borrower or
such alternative equivalent long term debt rating as may be applied by S&P
or Moody's, respectively, from time to time.
"L/C Commission Rate" means, at any time, a letter of credit commission
rate per annum determined in accordance with Clause 5.4.1 (Applicable
Margin and L/C Commission Rate).
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"L/C Outstandings" means, at any time, the aggregate of the Dollar Amounts
of each outstanding Letter of Credit.
"L/C Proportion" means, in relation to a Bank in respect of any Letter of
Credit and save as otherwise provided in this Agreement, the proportion
(expressed as a percentage) borne by that Bank's Facility C Available
Commitment to the Facility C Available Facility immediately prior to the
issue of that Letter of Credit.
"L/C Valuation Date" means the first business day which falls six months
after the date the first Letter of Credit is issued pursuant to this
Agreement and each day falling at six monthly intervals after that date.
"Letter of Credit" means a letter of credit issued or to be issued by an
Issuing Bank, subject to and with the benefit of the provisions hereof,
under Facility C in such form as agreed between the relevant Borrower, the
Facility Agent and the relevant Issuing Bank (acting on the instructions of
the Banks).
"LIBOR" means, in relation to any Advance or unpaid sum:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or the specified
period) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Facility Agent at its request
quoted by the Reference Banks to leading banks in the London
interbank market,
as of 11:00 a.m. (London time) on the Quotation Date for the offering of
deposits in the currency of that Advance or unpaid sum and for the
specified period (and for the purposes of this definition, "specified
period" means the Term of such Facility A Advance or Facility B Advance or
the Interest Period of such Facility A Term Advance or, as the case may be,
the period in respect of which LIBOR falls to be determined in relation to
such unpaid sum).
"Mandate Letter" means the mandate letter dated on or about 7 June 2001
from, inter alia, the Arrangers to the Principal Company.
"Margin Stock" has the meaning assigned that term in Regulation U of the
Board of Governors of the Federal Reserve System of the United States (or
any successor) as in effect from time to time.
"Material US Subsidiary" means:
(a) each of BI LO, Inc., Tops Markets, Inc., The Stop & Shop
Companies, Inc., Giant Food Inc. (Landover, Maryland) and US
Foodservice; and
(b) any other subsidiary (including, for the avoidance of doubt, any
indirect subsidiary) of the Principal Company which is
incorporated under the laws of the United States or any state
thereof the consolidated net sales of which, as detailed in the
most recently published audited consolidated financial
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statements of the Principal Company, exceed five per cent. (5%)
of the consolidated net sales of the Group taken as a whole as
detailed in the most recently published audited consolidated
financial statements of the Principal Company.
"Maturity Date" means the Facility A Maturity Date, the Facility B Maturity
Date or the Facility C Maturity Date, as the context may require.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"▇▇▇▇▇'▇ Rating" means, at any time, the lowest of all ratings most
recently announced at such time by Moody's which is assigned to any class
of long-term senior, unsecured liability in respect of securities issued or
guaranteed by the Principal Company, as to which no letter of credit,
guarantee or third party credit support is in place, regardless of whether
all or any part of such liability has been issued at the time such rating
was issued (ignoring, for this purpose, any indication by Moody's of any
negative, stable or positive outlook).
"Multiemployer Plan" means a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) maintained or contributed to for employees of (i) any
Obligor or (ii) any ERISA Affiliate.
"New Amount" means in relation to any Facility A Term Advance and any two
successive Interest Periods relating thereto, the amount of such Advance at
the beginning of the second of those Interest Periods, as determined in
accordance with Clause 6.20 (Amounts of Facility A Advances).
"Obligors" means the Borrowers and the Guarantor (and "Obligor" means any
one of them).
"Original Dollar Amount" means, in relation to an Advance or a Letter of
Credit, the principal amount thereof requested in the Utilisation Request
relating thereto as the same may be reduced pursuant to Clause 3.5
(Reduction of Available Commitment)) or, if such Advance or Letter of
Credit is not denominated in dollars, the equivalent of such amount (as the
same may be so reduced) in dollars, calculated as at:
(a) in the case of a Utilisation, the date of such Utilisation
Request; or
(b) in the case of a renewal or revaluation of a Letter of Credit,
the later of:
(i) the date falling two business days before its issue date or
any renewal date; or
(ii) the most recent L/C Valuation Date;
in each case adjusted to reflect any repayment or prepayment of the Advance
or Letter of Credit as the case may be.
"Original Financial Statements" means:
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(a) in relation to the Principal Company, its audited consolidated
financial statements for its financial year ended 31 December
2001; and
(b) in relation to each Additional Borrower, its most recently
published audited financial statements as at the date it becomes
an Additional Borrower hereunder or, if such Additional Borrower
does not have published audited financial statements, the most
recent financial statements of the Additional Borrower as at the
date it becomes an Additional Borrower hereunder (if any).
"Outstandings" means, at any time, the aggregate of:
(a) the Facility A Loan
(b) the Facility B Loan; and
(c) the L/C Outstandings.
"Participation" in relation to a Bank at any time means the aggregate of
such Bank's Available Commitment at such time and its share of the Dollar
Amount of the Outstandings at such time;
"PBGC" means the United States Pension Benefit Guaranty Corporation or any
successor thereto under ERISA.
"Potential Event of Default" means any event which could or would become
(with the passage of time, the giving of notice, the making of any
determination hereunder or any combination thereof) an Event of Default.
"Proportion" means, in relation to a Bank:
(a) whilst no Advances or Letters of Credit are outstanding
hereunder, the proportion borne by its Commitment to the Total
Commitments (or, if the Total Commitments are then zero, by its
Commitment to the Total Commitments immediately prior to their
reduction to zero); or
(b) whilst at least one Advance or Letter of Credit is outstanding
hereunder, the proportion borne by its share of the Dollar Amount
of the Outstandings to the Dollar Amount of the Outstandings.
"Quotation Date" means, in relation to any period for which LIBOR or
EURIBOR is to be determined hereunder, the day which is two business days
prior to the first day of such period.
"Reference Banks" means, for the purposes of determining LIBOR or Reserve
Costs, the principal London offices of ABN AMRO Bank N.V., JPMorgan Chase
Bank and Dresdner Bank or, for the purposes of determining EURIBOR, the
principal Amsterdam office of ABN AMRO Bank N.V. and the principal London
offices of JPMorgan Chase Bank and Dresdner Bank or, in either case, such
other bank or banks
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as may from time to time be agreed between the Principal Company and the
Facility Agent.
"Regulation Costs" means, in relation to the portion of any Advance made by
a Bank to a US Borrower (or deposits maintained by a Bank to fund such an
Advance), the amount (if any) certified by such Bank to be the cost to it
of complying with the Regulations (or any similar reserve requirements) in
respect of that Advance or those deposits.
"Regulations U and X" means, respectively, Regulations U and X of the Board
of Governors of the Federal Reserve System of the United States (or any
successor).
"Regulations" means any regulations of the Board of Governors of the
Federal Reserve System of the United States from time to time in force.
"Repayment Date" means, in relation to any Facility A Advance or any
Facility B Advance, the last day of the Term thereof or such earlier date
upon which such Advance is required to be repaid pursuant hereto.
"Reserve Costs" means, in relation to any Bank and in respect of any Term
in relation to any Facility A Advance or any Facility B Advance or any
Interest Period in relation to any Facility A Term Advance, the cost to
such Bank of compliance with the minimum reserve requirements of (a) 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 European Central Bank (any such cost, for the purposes of this
Agreement, to be represented by the percentage rate per annum calculated by
the Facility Agent in accordance with Schedule 7 (Reserve Cost Formulae)).
"Rollover Advance" means one or more Facility A Advances or Facility B
Advances:
(a) made or to be made on the same day that a maturing Facility A
Advance or Facility B Advance, as the case may be, is due to be
repaid;
(b) the aggregate amount of which is equal to or less than the
maturing Facility A Advance or Facility B Advance, as the case
may be;
(c) in the same currency as the maturing Facility A Advance or
Facility B Advance, as the case may be; and
(d) made or to be made to the same Borrower for the purpose of
refinancing a maturing Facility A Advance or Facility B Advance,
as the case may be.
"S&P" means Standard & Poor's Rating Group, a division of McGraw Hill,
Inc., a New York corporation.
"S&P Rating" means, at any time, the lowest of all ratings most recently
announced at such time by S&P which is assigned to any class of long-term
senior, unsecured liability in respect of securities issued or guaranteed
by the Principal Company, as to which no letter of credit, guarantee or
third party credit support is in place, regardless
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of whether all or any part of such liability has been issued at the time
such rating was issued (ignoring, for this purpose, any indication by S&P
of any negative, stable or positive outlook).
"Screen Rate" means:
(a) in relation to LIBOR, the British Bankers' Association Interest
Settlement Rate for the relevant currency and period; and
(b) in relation to EURIBOR, the percentage rate per annum determined
by the Banking Federation of the European Union for the relevant
period,
displayed on the appropriate page of the Telerate screen. If the agreed
page is replaced or service ceases to be available, the Facility Agent may
specify another page or service displaying the appropriate rate after
consultation with the Principal Company and an Instructing Group.
"Substantial" means equal to or greater than 10 per cent. of the relevant
amount as disclosed by the latest audited consolidated balance sheet or, as
the case may be, profit and loss account of the Group.
"Supplemental Agreement" means any agreement entered into by the parties
hereto with any Additional Borrower (in its capacity as an Additional
Obligor) pursuant to Clause 2.5 (Nomination of Additional Borrowers) to
Clause 2.8 (Principal Company's Authority) substantially in the form set
out in Schedule 5 (Supplemental Agreement for Additional Borrowers) or such
other form as the Principal Company and the Facility Agent shall agree.
"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.
"Term" means, save as otherwise provided herein, in relation to any
Facility A Advance or any Facility B Advance, the period for which such
Advance is borrowed (as specified in the Utilisation Request relating
thereto) and, in relation to any Letter of Credit, the period from the date
on which such Letter of Credit is issued until its Expiry Date (as
specified in the Utilisation Request relating thereto).
"Total Commitments" means the aggregate for the time being of the Banks'
Commitments.
"Transfer Certificate" means a certificate substantially in the form set
out in Schedule 2 (Form of Transfer Certificate) signed by a Bank and a
Transferee whereby:
(a) such Bank seeks to procure the transfer to such Transferee of all
or a part of such Bank's rights, benefits and obligations
hereunder as contemplated in Clause 25.3 (Assignment and
Transfers by Banks); and
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(b) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the
Facility Agent as is contemplated in Clause 25.5 (Transfers by
Banks).
"Transfer Date" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in the schedule to such
Transfer Certificate.
"Transferee" means any bank, financial institution, trust, fund or other
entity to which a Bank seeks to transfer all or part of such Bank's rights,
benefits and obligations hereunder.
"United States" and "US" means the United States of America (including the
District of Columbia), its territories, possessions and other areas subject
to the jurisdiction of the United States of America.
"US Borrower" means any Borrower which has been incorporated under the laws
of the United States or any state thereof.
"US Obligor" means any Obligor incorporated or organised in the United
States.
"Utilisation" means a utilisation of a Facility hereunder, whether by way
of an Advance or a Letter of Credit.
"Utilisation Date" means the date of a Utilisation, being the date on which
the Advance in respect thereof is to be made or the Letter of Credit in
respect thereof is to be issued.
"Utilisation Request" means a notice substantially in the form set out in
Schedule 4 (Utilisation Request).
"Withdrawal Liability" has the meaning given to such term under Part I of
Subtitle E of Title IV of ERISA.
1.2 Interpretation
Any reference in this Agreement to:
the "Facility Agent, any "Issuing Bank" or any "Bank" in any capacity
hereunder shall be construed so as to include its and any subsequent
successors, Transferees and assigns in accordance with their respective
interests;
any "affiliate" of any person is a reference to a holding company or a
subsidiary, or a subsidiary of a holding company, of such person;
any "applicable law" shall be construed so as to include all present and
future applicable laws, statutes, regulations, codes, treaties,
conventions, judgments, awards, determinations or decrees;
"borrowed money" means, in respect of any person:
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(a) money borrowed or raised and premiums (if any) and capitalised
interest in respect thereof;
(b) the principal and premiums (if any) and capitalised interest in
respect of any debenture, bond, note, loan stock or similar
instrument;
(c) liabilities in respect of any letter of credit, acceptance
credit, ▇▇▇▇ discounting or note purchase facility and any
receivables purchase, factoring or discounting arrangement;
(d) rental or hire payments under leases or hire purchase agreements
(whether in respect of land, machinery, equipment or otherwise)
entered into primarily for the purpose of raising finance;
(e) the deferred purchase price of assets or services in respect of
transactions which have the commercial effect of borrowing or
which otherwise finance its or the Group's operations or capital
requirements (except any such arrangements entered into in the
ordinary and usual course of trading and having a term not
exceeding 90 days from the date on which the liability was
originally incurred);
(f) liabilities in respect of any foreign exchange agreement,
currency or interest purchase or swap transactions or similar
arrangements;
(g) all obligations to purchase, redeem, retire, defease or otherwise
acquire for value any share capital of any person or any
warrants, rights or options to acquire such share capital in
respect of transactions which have the commercial effect of
borrowing or which otherwise finance its or the Group's
operations or capital requirements;
(h) any other transactions having the commercial effect of borrowing
entered into by any person to finance its operations or capital
requirements; and
(i) all indebtedness for borrowed money of other persons referred to
in paragraphs (a) to (h) above guaranteed directly or indirectly
in any manner by such person, or having the commercial effect of
being guaranteed directly or indirectly by such person by virtue
of an agreement (a) to pay or purchase such indebtedness for
borrowed money or to advance or supply funds for the payment or
purchase of such indebtedness for borrowed money, (b) to purchase
or lease (as lessee) property, or to purchase services, primarily
for the purpose of enabling the debtor to make payments of such
indebtedness for borrowed money, (c) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay
for property of services irrespective of whether such property is
received or such services are rendered) or (d) otherwise to
assure any person to whom indebtedness for borrowed money is owed
against loss with respect thereto;
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a "business day" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks are generally open for business in
London and New York City and (in relation to any date for payment or
purchase of Euros) any TARGET Day;
a "Clause" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
an "encumbrance" means any mortgage, pledge, lien (other than a lien
arising solely by operation of law in the ordinary course of business),
charge, assignment, hypothecation, security interest or other encumbrance
or charge by way of security or any title retention right (other than in
the ordinary course of trading), preferential right (other than a
preferential right accorded to creditors on a liquidation solely by
operation of law) or trust arrangement or other agreement or arrangement
the effect of any of which is the creation of security;
the "equivalent" on any given date in one currency (the "first currency")
of an amount denominated in another currency (the "second currency") is a
reference to the amount of the first currency which could be purchased with
the amount of the second currency at the spot rate of exchange quoted by
the Facility Agent at or about 12.00 (noon) (London time) on such date for
the purchase of the first currency with the second currency;
a "holding company" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
"indebtedness shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
a "month" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that, where any such period would otherwise
end on a day which is not a business day, it shall end on the next
succeeding business day, unless that day falls in the calendar month
succeeding that in which it would otherwise have ended, in which case it
shall end on the immediately preceding business day provided that, if a
period starts on the last business day in a calendar month or if there is
no numerically corresponding day in the month in which that period ends,
that period shall end on the last business day in that later month (and
references to "months" shall be construed accordingly);
"net assets" shall be construed as a reference to the difference between
(a) the aggregate of the current assets (including but not limited to Cash
and cash Equivalents, Receivables and Inventories) and fixed assets
(including but not limited to Total Net Tangible Fixed Assets, Loan
Receivables, Investments in unconsolidated subsidiaries and affiliates and
Intangible Assets) of the Principal Company and (b) the aggregate of the
current liabilities (including but not limited to Loans payable, Taxes
payable, Accounts payable, Accrued expenses and Other current liabilities)
and long term
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liabilities (including but not limited to Subordinated loans, Other loans,
Capitalised lease commitments, Deferred income taxes and Other provisions)
of the Principal Company in each case as reported in the latest
consolidated balance sheet of the Principal Company delivered pursuant to
Clause 14.1.1 (Undertakings);
a "person" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or
more of the foregoing;
a "subsidiary" of the Principal Company means a company which is a
subsidiary of the Principal Company within the meaning of Article 24a of
Book 2 of the Dutch Civil Code and which is a company which is consolidated
in the consolidated financial statements of the Principal Company;
a "subsidiary" of a company or corporation other than the Principal Company
shall be construed as a reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(c) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation
and, for these purposes, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to
direct its affairs and/or to control the composition of its board of
directors or equivalent body;
"tax" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature (including, without limitation, any
penalty or interest payable in connection with any failure to pay or any
delay in paying any of the same);
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time;
a "wholly-owned subsidiary" of a company or corporation shall be construed
as a reference to any company or corporation which has no other
shareholders or members except that company or corporation and/or that
other company's or corporation's wholly owned subsidiaries or persons
acting on behalf of that other company or corporation or its wholly-owned
subsidiaries; and
the "winding-up", "dissolution" or "administration" of a company or
corporation shall be construed so as to include bankruptcy (faillissement),
moratorium (surseance van betaling) and any equivalent or analogous
proceedings under the law of the jurisdiction in which such company or
corporation is incorporated or any jurisdiction in which such company or
corporation carries on business including the seeking of
- 16 -
liquidation, winding-up, reorganisation, dissolution, administration,
arrangement, adjustment, protection or relief of debtors.
1.3 Currency Symbols
"$" and "dollars" denote lawful currency of the United States of America.
"EUR", "Eur","", "Euro" and "euro" means the single currency unit of the
member states of the European Union that adopt or have adopted the euro as
its lawful currency in accordance with legislation of the European Union
relating to European Monetary Union.
1.4 Agreements, Documents and Statutes
Save where the contrary is indicated, any reference in this Agreement to:
1.4.1 this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may
be, such other agreement or document as the same may have been,
or may from time to time be, amended, varied, novated or
supplemented without breach of this Agreement;
1.4.2 a statute shall be construed as a reference to such statute as
the same may have been, or may from time to time be, amended or
re-enacted; and
1.4.3 a time of day shall be construed as a reference to London time.
1.5 Headings
Clause and Schedule headings are for ease of reference only.
1.6 No Third Party Rights
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement.
2. THE FACILITIES
2.1 Grant of the Facilities
The ▇▇▇▇▇ ▇▇▇▇▇ to the Borrowers, upon the terms and subject to the
conditions hereof:
2.1.1 a multicurrency revolving credit facility in an aggregate amount
of US$500,000,000 or its equivalent from time to time in Euros
("Facility A");
2.1.2 a multicurrency revolving credit facility in an aggregate amount
of US$1,500,000,000 or its equivalent from time to time in Euros
("Facility B"); and
2.1.3 a multicurrency letter of credit facility in an aggregate amount
of US$150,000,000 or its equivalent from time to time in Euros
("Facility C").
2.2 Purpose and Application
The Facilities are intended for the purposes of:
2.2.1 refinancing existing indebtedness of the Principal Company under
the US$1 billion multi-currency revolving credit agreement dated
18 December 1996
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between the Principal Company and others as borrowers and
guarantors, ABN AMRO Bank N.V., Chase Investment Bank Limited and
▇.▇. ▇▇▇▇▇▇ Securities Ltd as arrangers, The Chase Manhattan Bank
as facility, swing-line, letter of credit and short term advances
agent and Chase Manhattan International Limited as multi-currency
facility agent;
2.2.2 liquidity back-up purposes; and
2.2.3 general corporate purposes,
and accordingly each of the Borrowers shall apply all amounts raised by it
under the Facilities in or towards satisfaction of such purposes. No
portion of the proceeds of any Advance or any Letter of Credit under this
Agreement shall be used by any Borrower or any of its subsidiaries in any
manner that would cause the borrowing of such Advance or the application of
such proceeds or the issuing of or participation in such Letter of Credit
to violate any of the Regulations or to violate the Exchange Act, in each
case as in effect on the date or dates when any such Advance is made, when
such proceeds are used and/or when such Letter of Credit is issued. Without
prejudice to the obligations of the Borrowers under this Clause 2.2
(Purpose and Application), neither the Facility Agent, the Arrangers and
the Banks nor any of them shall be obliged to concern themselves with the
application of amounts raised by any Borrower hereunder.
2.3 Condition Precedent Documents
None of the Borrowers may deliver any Utilisation Request hereunder unless
the Facility Agent has confirmed to the Principal Company and the Banks
that it has received all of the documents listed in Schedule 3 (Condition
Precedent Documents) each, in form and substance, satisfactory to the
Facility Agent and that each of the other conditions referred to therein
have been met to the satisfaction of the Facility Agent. The Facility Agent
shall promptly notify the Principal Company and the Banks upon being so
satisfied.
2.4 Banks' Obligations Several
The obligations of each Bank and each Issuing Bank hereunder are several.
The failure by a Bank or an Issuing Bank to perform its obligations
hereunder shall not affect the obligations of any Obligor towards any other
party hereto nor shall any other party be liable for the failure by such
Bank or Issuing Bank, as the case may be, to perform its obligations
hereunder. The amounts outstanding at any time hereunder from a Borrower to
any of the parties hereto shall, subject as otherwise provided herein, be a
separate and independent debt and each such party shall, subject to the
terms of this Agreement, be entitled to protect and enforce its individual
rights arising out of this Agreement independently of any other party and
it shall not be necessary for any party hereto to be joined as an
additional party in any proceedings for this purpose.
2.5 Nomination of Additional Borrowers
The Principal Company may from time to time designate any of its
wholly-owned subsidiaries as an Additional Borrower provided that it has
obtained the prior written consent of an Instructing Group. If the
Principal Company so designates any such
- 18 -
subsidiary or subsidiaries, the Principal Company shall promptly deliver or
cause to be delivered to the Facility Agent a Supplemental Agreement duly
executed by the parties thereto.
2.6 Accession of Additional Borrowers
Promptly on receipt by it of each of the conditions precedent specified in
any Supplemental Agreement, the Facility Agent will confirm to the relevant
Additional Borrower, the Principal Company and the Banks that it has
received such documents and whether or not each is, in form and substance,
satisfactory to it. Upon delivery to the Facility Agent of any Supplemental
Agreement and subject to the Facility Agent having confirmed to the
relevant Additional Borrower, the Principal Company and the Banks that it
has received, in form and substance satisfactory to it, each of the
conditions precedent specified therein, this Agreement shall thenceforth be
read and construed as if each subsidiary of the Principal Company which is
a party to the Supplemental Agreement as an Additional Borrower were a
party hereto having all the rights and obligations of a Borrower.
Accordingly all references in any Finance Document to (a) any "Additional
Borrower", "Borrower", "Obligor" or any derivative term, shall be treated
as including a reference to any such subsidiary becoming a party hereto in
the manner contemplated above; and (b) this Agreement, shall be treated as
a reference to this Agreement as supplemented by such Supplemental
Agreement and all previous Supplemental Agreements to the intent that this
Agreement, such Supplemental Agreement and all previous Supplemental
Agreements shall be read and construed together as one single agreement.
2.7 Facility Agent's Authority
Each of the Arrangers, the Issuing Banks and the Banks irrevocably
authorises the Facility Agent to execute any Supplemental Agreement on its
behalf. The Facility Agent shall promptly notify each of the Banks and the
Issuing Banks of the execution by it of any Supplemental Agreement.
2.8 Principal Company's Authority
Each of the Obligors (other than the Principal Company) irrevocably
authorises the Principal Company to designate any of its subsidiaries as an
Additional Borrower pursuant to Clause 2.5 (Nomination of Additional
Borrowers) and irrevocably authorises the Principal Company to execute on
its behalf any Supplemental Agreement in relation thereto.
2.9 Separate and Independent Facilities
Subject to Clause 2.10 (Aggregation of Facility B and Facility C), the
Facilities granted in this Agreement are separate and independent of each
other. The aggregate of the amounts outstanding at any time under each
Facility shall be a separate and independent debt.
2.10 Aggregation of Facility B and Facility C
Clause 2.1.2 and Clause 2.1.3 are subject to the restriction that at no
time may the aggregate of the Dollar Amount of the Facility B Loan and the
L/C Outstandings under
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Facilities B and C exceed the amount of the Facility B Total Commitments
(being, at the date hereof, US$1,500,000,000).
3. UTILISATION OF THE MULTICURRENCY REVOLVING CREDIT FACILITIES
3.1 Delivery of Utilisation Request for Advances
Save as otherwise provided herein, a Borrower may from time to time request
the making of a Facility A Advance or a Facility B Advance or the issue of
a Letter of Credit under the relevant Facility by the delivery to the
Facility Agent not more than eight business days nor later than 11:00 a.m.
(London time) on the third business day before the proposed date for the
making of such Advance or the issue of such Letter of Credit, of a duly
completed Utilisation Request therefor.
3.2 Utilisation Details
Each Utilisation Request delivered to the Facility Agent pursuant to Clause
3.1 (Delivery of Utilisation Request for Advances) shall be irrevocable and
shall specify:
3.2.1 the proposed date for the making of the relevant Advance or issue
of the relevant Letter of Credit which (i) in the case of a
Facility A Advance shall be a business day falling before the
Facility A Maturity Date, (ii) in the case of a Facility B
Advance shall be a business day falling before the Facility B
Maturity Date and (iii) in the case of a Letter of Credit shall
be a business day falling before the Facility C Maturity Date;
3.2.2 the currency of denomination of the proposed Advance or Letter of
Credit which shall be dollars or Euros;
3.2.3 the amount of the proposed Advance or Letter of Credit, which
shall be (x) in the case of an Advance, an amount of not less
than $25,000,000 and an integral multiple of $5,000,000 (or, if
the Advance is to be denominated in Euros, such comparable and
convenient amount thereof as the Facility Agent may from time to
time specify) or (y) in the case of a Letter of Credit, the face
amount thereof, and the Dollar Amount of which shall not exceed
(i) in the case of a Facility A Advance, the Facility A Available
Facility, (ii) in the case of a Facility B Advance, the Facility
B Available Facility or (iii) in the case of a Letter of Credit,
the Facility C Available Facility, in each case adjusted to take
account of:
(a) any reduction in the Facility A Commitment, the Facility B
Commitment or, as the case may be, the Facility C Commitment
of a Bank scheduled to be made prior to the commencement of
the Term in respect of the proposed Advance or Letter of
Credit; and
(b) the Dollar Amounts of any Advances or Letters of Credit
under the relevant Facility which are scheduled to be made,
issued, repaid or cancelled on or before the date of
drawdown of the proposed Advance or the date of issue of the
proposed Letter of Credit;
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3.2.4 the proposed Term of the proposed Advance or Letter of Credit,
which shall be a period of one, two, three or six months or such
other period not exceeding twelve months agreed by the Banks
ending on a business day falling on or before (i) in the case of
a Facility A Advance, the Facility A Maturity Date, (ii) in the
case of a Facility B Advance, the Facility B Maturity Date or
(iii) in the case of a Letter of Credit, the Facility C Maturity
Date (subject, in the case of a Letter of Credit, to an automatic
extension provision which can be cancelled by the Issuing Bank on
notice to the beneficiary thereof);
3.2.5 (in the case of an Advance) the account to which the proceeds of
the proposed Advance are to be paid;
3.2.6 (in the case of a Letter of Credit) the name and address of the
recipient to whom such Letter of Credit is to be delivered; and
3.2.7 (in the case of a Letter of Credit) the Issuing Bank relating to
such Letter of Credit.
3.3 Making of Advances and Issue of Letters of Credit
If a Borrower requests an Advance or a Letter of Credit in accordance with
the provisions of this Clause 3 and, on the proposed date for the making of
such Advance or the issue of such Letter of Credit:
3.3.1 none of the events mentioned in Clause 12 (Market Disruption)
shall have occurred;
3.3.2 the Dollar Amount of such Advance or Letter of Credit does not
exceed the Facility A Available Facility (in the case of a
Facility A Advance), the Facility B Available Facility (in the
case of a Facility B Advance) or the Facility C Advance (in the
case of a Letter of Credit), in each case adjusted to take
account of:
(a) any reduction in the Facility A Commitment, the Facility B
Commitment or, as the case may be, the Facility C Commitment
of a Bank scheduled to be made on such proposed date for the
making of such Advance or issue of such Letter of Credit;
and
(b) the Dollar Amounts of any Advances or Letters of Credit
under the relevant Facility which are scheduled to be made,
issued, repaid or cancelled on such proposed date for the
making of such Advance or the issue of such Letter of
Credit;
3.3.3 to give effect to such request would not result in (i) more than
ten Facility A Advances being outstanding or (ii) more than ten
Facility B Advances being outstanding or (iii) more than forty
Letters of Credit being outstanding;
3.3.4 (in the case of a Letter of Credit) the identity of the recipient
has been agreed by all the Banks no later than 3.00 p.m. (London
time) on the third business
- 21 -
day in London before the proposed date for the issue of the
relevant Letter of Credit;
3.3.5 (in the case of a Letter of Credit) the form of such Letter of
Credit is in such form as has been agreed between the relevant
Borrower, the Facility Agent and the Issuing Bank (acting on the
instructions of the Banks) by no later than 3.00 p.m. (London
time) on the third business day in London before the date from
the issue of such Letter of Credit;
3.3.6 either:
(a) no Event of Default or (other than in the case of a Rollover
Advance) Potential Event of Default has occurred and is
continuing or would result from the making of such Advance
or the issue of such Letter of Credit; and
(b) the representations set out in Clause 13 (Representation and
Warranties) which are to be repeated pursuant to the
relevant Utilisation Request are true on and as of the
proposed date for the making of such Advance or the issue of
such Letter of Credit and would continue to be true
immediately following the making of the relevant Advance or
the issue of such Letter of Credit and the application of
the proceeds thereof in meeting the purpose for the making
of such Advance or the issue of such Letter of Credit (as if
references therein to Original Financial Statements were
references to the most recent set of annual audited
financial statements delivered by each Borrower to the
Facility Agent pursuant to Clause 14 (Undertakings))
or each of the Banks agrees, notwithstanding any matter mentioned
at sub-Clause 3.3.6(a) or (b) above to participate in the making
of such Advance or the issue of such Letter of Credit,
then:
(1) the Facility Agent shall, no later than 5.00 p.m. (London
time) on the third business day prior to the proposed
Utilisation Date, notify each Bank and (if applicable) the
Issuing Bank by telefax or by telephone (with confirmation
to follow by telefax) at its Facility Office of the amount
of such Advance or Letter of Credit, the amount of such
Bank's participation therein and the period for which such
Advance or Letter of Credit is to be made;
(2) each Bank shall, no later than 11.00 a.m. (London time) on
such proposed Utilisation Date make its portion of such
Advance available to the Facility Agent in the relevant
currency, in accordance with Clause 19 (Payments);
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(3) (in the case of an Advance) the Facility Agent shall, no
later than 4.00 p.m. (London time) on such proposed
Utilisation Date, make such Advance available to the
relevant Borrower in accordance with but subject to Clause
19 (Payments); and
(4) (in the case of any Letter of Credit) the relevant Issuing
Bank shall on such proposed Utilisation Date issue such
Letter of Credit to the relevant recipient
Provided that (in the case of a Letter of Credit), if the issue
of such proposed Letter of Credit to the proposed beneficiary is
prohibited under any law, statute, regulation, order or decree to
which a Bank is subject or pursuant to any request or requirement
of any central bank or other fiscal, monetary or other authority
to which a Bank is subject, the relevant Issuing Bank shall not
be obliged to issue such proposed Letter of Credit.
3.4 Facility Office
Each Bank will participate in each Facility A Advance, each Facility B
Advance and each Letter of Credit made pursuant to this Clause 3 through
its Facility Office specified in relation thereto in the proportion borne
by its Facility A Available Commitment, its Facility B Available Commitment
or, as the case may be, its Facility C Available Commitment to the Facility
A Available Facility, the Facility B Available Facility or, as the case may
be, the Facility C Available Facility immediately prior to the making of
such Advance or the issue of such Letter of Credit.
3.5 Reduction of Available Commitment
If a Bank's Facility A Commitment, its Facility B Commitment or, as the
case may be, its Facility C Commitment is reduced in accordance with the
terms hereof after the Facility Agent has received the Utilisation Request
for a Facility A Advance, a Facility B Advance or a Letter of Credit and
such reduction was not taken into account pursuant to of Clause 3.2.3
(Utilisation Details), then both the Original Dollar Amount and the actual
amount of that Facility A Advance, Facility B Advance or Letter of Credit
shall be reduced accordingly.
3.6 Completion of Letters of Credit
The Issuing Bank relating to any Letter of Credit is hereby authorised to
issue such Letter of Credit pursuant to Clause 3.3 (Making of Advances and
Issue of Letters of Credit) by:
3.6.1 completing the issue date and Expiry Date of such Letter of
Credit; and
3.6.2 executing and delivering such Letter of Credit to the relevant
recipient on the Utilisation Date.
3.7 Revaluation of L/C Outstandings
On each L/C Valuation Date, the Facility Agent shall calculate the amount
of the L/C Outstandings (having regard to changes in the Dollar Amounts of
the Letters of Credit which may arise as a result of currency fluctuations)
and the Facility Agent shall notify
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the Principal Company and the relevant Borrower of the amount, if any (the
"Excess Amount") by which the L/C Outstandings exceed the aggregate
Facility C Commitments of the Banks and the relevant Borrower shall:
(a) procure that the Issuing Banks' obligations under any Letters of
Credit are reduced by an amount no less than the Excess Amount;
or
(b) secure that Excess Amount by providing Cash Collateral in an
amount no less than the Excess Amount.
3.8 Nomination of Affiliates under the Facilities
3.8.1 Subject to Clause 3.8.2, each Bank may nominate one or more of
its affiliates to perform all or part of its obligations under
any of the Facilities and performance of such obligations by an
affiliate shall be deemed to discharge the corresponding
obligations of the Bank.
3.8.2 Any Bank (a "Relevant Bank") wishing to nominate an affiliate
pursuant to Clause 3.8.1 shall deliver to the Facility Agent a
duly executed Affiliate Notice at least five business days prior
to the Effective Date specified in the Affiliate Notice.
3.8.3 Upon the delivery of a duly executed Affiliate Notice, this
Agreement shall on the date specified in the Affiliate Notice be
read and construed as if the relevant affiliate were a party
hereto and such affiliate shall, subject to the terms and
conditions of this Clause 3.8 (and to the extent contemplated by
the relevant Affiliate Notice), acquire all the rights and assume
all the obligations of a Bank hereunder and upon such affiliate
performing any of the obligations expressed to be assumed by it
in such Affiliate Notice there shall be deemed to be a transfer
and assignment of the corresponding rights and obligations of the
Relevant Bank hereunder to such affiliate.
3.8.4 Each Bank hereby irrevocably authorises the Facility Agent to
execute on its behalf any Affiliate Notice delivered pursuant to
Clause 3.8.2 and each Obligor (other than the Principal Company)
hereby irrevocably authorises the Principal Company to execute
such Affiliate Notice on its behalf.
3.8.5 For the avoidance of doubt the parties confirm that each Relevant
Bank and any affiliate who is deemed to become a Bank pursuant to
Clause 3.8.3 share a single Facility A Commitment, a single
Facility B Commitment and a single Facility C Commitment so that
the obligations assumed by the affiliate pursuant to this Clause
3.8 shall not, when aggregated with such Relevant Bank's portion
of the Outstandings, cause the Relevant Bank's Commitment to be
exceeded.
3.8.6 For the purposes of constructing an Instructing Group or
obtaining the consent of a Bank, the parties agree that any
participation in the Facilities by an affiliate of a Relevant
Bank shall be deemed to have been a participation by the Relevant
Bank.
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4. INDEMNITY IN RELATION TO LETTERS OF CREDIT
4.1 Demand for Payment
If, at any time, a demand for payment (the amount so demanded being herein
referred to as the "Amount Demanded") is made under a Letter of Credit the
Issuing Bank relating to such Letter of Credit shall notify the Facility
Agent who shall notify each of the Banks and the relevant Borrower and the
Principal Company of such demand and the Facility Agent shall make demand
of each of the Banks for an amount equal to its share of the Amount
Demanded.
4.2 Payment
Each Bank shall, upon receipt by it of a demand made on it by the Facility
Agent under this Clause 4 and in any event no later than 11.00 a.m. (London
time) on the business day following receipt of the demand, pay to the
Facility Agent the amount demanded of it. The Facility Agent shall, upon
receipt of such amount, promptly pay the same to the Issuing Bank of the
relevant Letter of Credit.
4.3 Indemnification
Each Borrower which requests any Letter of Credit hereby irrevocably and
unconditionally agrees to indemnify and keep indemnified the Issuing Bank,
the Facility Agent and each Bank on demand against each and every sum paid
or payable by the Issuing Bank or any such Bank under or in respect of any
Letter of Credit and also undertakes to indemnify and hold harmless the
Issuing Bank, the Facility Agent and each Bank on demand from and against
all actions, proceedings, liabilities, costs (including any costs incurred
in funding any amount which falls due from the Issuing Bank, the Facility
Agent or any Bank under any Letter of Credit in connection with any such
Letter of Credit), claims, losses, damages and expenses which the Issuing
Bank, the Facility Agent and each Bank may at any time incur or sustain in
connection with or arising out of any Letter of Credit.
4.4 The Issuing Bank's and Banks' Entitlements
The Issuing Bank and each Bank shall be entitled to make any payment under
or in respect of any Letter of Credit for which a demand has been made
without any reference to or further authority from the relevant Borrower or
the Principal Company or any other investigation or inquiry, need not
concern itself with the propriety of any demand made or purported to be
made under and in the manner required by the terms of any such Letter of
Credit and shall be entitled to assume that any person expressed in any
Letter of Credit or in any notice served pursuant to any such Letter of
Credit to be entitled to make demands is so entitled and that any
individual purporting to sign any such demand or notice on behalf of such
person is duly authorised to do so; accordingly, it shall not be a defence
to any demand made of the relevant Borrower, nor shall the relevant
Borrower's obligations hereunder be impaired by the fact (if it be the
case), that the Issuing Bank, the Facility Agent or any Bank was or might
have been justified in refusing payment, in whole or in part, of the
amounts so demanded.
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4.5 Obligations Not Discharged
The obligations of each of the Banks and the Borrower requesting the Letter
of Credit to the Issuing Bank, the Facility Agent and (in the case of such
Borrower) each Bank shall not be discharged, lessened or impaired by any
act, omission or circumstance whatsoever which, but for this provision,
might operate to release or exonerate such Bank or the relevant Borrower
from all or part of such obligations or in any other way discharge, lessen
or impair the same.
4.6 Certificate of the Issuing Bank Conclusive
A certificate of the Issuing Bank as to the amount paid out by the Issuing
Bank under any Letter of Credit shall, save for manifest error, be
conclusive and binding upon the relevant Borrower for the purposes of this
Agreement and prima facie evidence of the payment of such amounts in any
legal action or proceedings arising in connection therewith.
5. INTEREST ON ADVANCES
5.1 Rate of Interest
The rate of interest applicable to a Facility A Advance or a Facility B
Advance during the Term of such Advance and to a Facility A Term Advance
during each Interest Period shall be the rate per annum determined by the
Facility Agent to be the sum of:
(a) LIBOR (or, in the case of Advances in Euros, EURIBOR) for the
Term or, as the case may be, the Interest Period of the Advance;
(b) the Applicable Margin; and
(c) Reserve Costs, if any.
5.2 Notification
The Facility Agent shall promptly notify the relevant Borrower and each
Bank of each determination made by it pursuant to this Clause 5.
5.3 Payment of Interest
On the Repayment Date relating to each Facility A Advance and each Facility
B Advance (and if such Advance has a Term which exceeds six months, at the
end of each successive six monthly period of such Term) the relevant
Borrower shall pay accrued interest on that Advance.
5.4 Applicable Margin and L/C Commission Rate
5.4.1 Applicable Margin
Subject to sub-Clauses 5.4.2 and 5.4.3, the Facility A Applicable
Margin in respect of each Term in respect of each Facility A
Advance and each Interest Period in respect of each Facility A
Term Advance, the Facility B Applicable Margin in respect of each
Term in respect of each Facility B Advance and the L/C Commission
Rate shall be the percentage per annum in the relevant column set
out below corresponding to the lower of the S&P Rating and the
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▇▇▇▇▇'▇ Rating as set out in the column marked S&P Rating and the
column marked ▇▇▇▇▇'▇ Rating below:
S&P ▇▇▇▇▇'▇ Facility A Facility ▇ ▇/C
Rating Rating Applicable Applicable Commission
Margin Margin Rate
A- or higher A3 or higher 0.300 0.350 0.350
BBB+ Baa1 0.350 0.400 0.400
BBB or lower Baa2 or lower 0.425 0.500 0.500
5.4.2 No ▇▇▇▇▇'▇ Rating or No S&P Rating
If there is no ▇▇▇▇▇'▇ Rating or no S&P Rating published, the
Facility A Applicable Margin shall be the highest percentage rate
per annum set out in the table in Clause 5.4.1 under the column
marked "Facility A Applicable Margin", the Facility B Applicable
Margin shall be the highest percentage rate per annum set out in
the table in Clause 5.4.1 under the column marked "Facility B
Applicable Margin" and the L/C Commission Rate shall be the
highest percentage rate per annum set out in the table in Clause
5.4.1 under the column marked "L/C Commission Rate".
5.4.3 Change in ▇▇▇▇▇'▇ Rating or S&P Rating
Upon any change in the ▇▇▇▇▇'▇ Rating or the S&P Rating, the
Applicable Margin in respect of the Advances then outstanding and
the L/C Commission Rate will be increased or decreased on the
third business day after the date on which such change is
announced or published by ▇▇▇▇▇'▇ or S&P, as the case may be.
5.4.4 Notification of Change in ▇▇▇▇▇'▇ Rating or S&P Rating
The Principal Company shall promptly upon becoming aware of the
same, inform the Facility Agent in writing of any change in the
▇▇▇▇▇'▇ Rating or the S&P Rating.
6. REPAYMENT
6.1 Repayment
6.1.1 Subject to Clauses 6.13 to 6.15 (inclusive), each Borrower shall
repay each Facility A Advance made to it in full on the Repayment
Date relating thereto.
6.1.2 Each Borrower shall repay each Facility B Advance made to it in
full on the Repayment Date relating thereto.
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6.2 Voluntary Prepayment
A Borrower may, subject to Clause 17.4 (Broken Periods), if it gives to the
Facility Agent not less than ten days' prior written notice to that effect,
prepay the whole of any Advance or part of any Advance in an amount no less
than US$25,000,000 and an integral multiple of US$ 5,000,000 (or, if the
relevant Advance is denominated in Euros such comparable and convenient
amount thereof as the Facility Agent may specify), in either case together
with all accrued interest on such amount. Any notice of prepayment shall be
irrevocable, shall specify the date upon which such prepayment is to be
made and the amount of such prepayment and shall oblige such Borrower to
make such prepayment on such date. Amounts prepaid in respect of Facility A
Advances or Facility B Advances may be reborrowed subject to the terms and
conditions hereof. Amounts prepaid in respect of Facility A Term Advances
may not be reborrowed.
6.3 Repayment of a Bank's Share of Advance(s) or Letter(s) of Credit
If any Bank or Issuing Bank claims indemnification from a Borrower under
Clause 8 (Taxes) or Clause 10 (Increased Costs) and within thirty days
thereafter the Facility Agent receives from such Borrower at least ten
days' prior written notice (which shall be irrevocable) of such Borrower's
intention to repay such Bank's share of any Advance or to provide Cash
Collateral in relation to any Letter of Credit, the Borrower shall, subject
to Clause 17.4 (Broken Periods),
6.3.1 repay such Bank's portion of such Advance; and
6.3.2 shall procure either that such Bank's L/C Proportion of each
relevant Letter of Credit be reduced to zero (by reduction of the
amount of that Letter of Credit in an amount equal to that Bank's
L/C Proportion) or that Cash Collateral be provided to the
Facility Agent in an amount equal to such Bank's L/C Proportion
of that Letter of Credit; and (if the circumstance relates to an
Issuing Bank) the relevant Borrower shall procure that the
relevant Issuing Bank's liability under any Letters of Credit
issued by it shall either be reduced to zero or otherwise secured
by the relevant Borrower providing Cash Collateral in an amount
equal to that Issuing Bank's maximum actual and contingent
liabilities under those Letters of Credit.
6.4 Reduction of Commitments
A Bank for whose account a repayment or payment is to be made under Clause
6.3 (Repayment of a Bank's Share of Advance(s) or Letter(s) of Credit)
shall not be obliged to make any Advances or issue or participate in any
Letter of Credit hereunder on or after the date upon which the Facility
Agent receives a Borrower's notice of its intention to repay such Bank's
share of any Advance or make a payment in respect of a Letter of Credit, on
which date such Bank's Available Commitment (including without limitation
its Facility C Available Commitment) shall be reduced to zero.
6.5 Repayment Method
None of the Borrowers shall repay all or any part of any Advance or cancel
any Letter of Credit outstanding hereunder except at the times and in the
manner expressly
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provided herein but shall, save as provided herein, be entitled to reborrow
any amount repaid.
6.6 Request for Extension of the Facility A Maturity Date
The Principal Company shall be entitled to request (on behalf of any
Borrower of a Facility A Advance) an extension of the Facility A Maturity
Date, for an additional period of 364 days, by giving notice to the
Facility Agent (the "Extension Request") not more than 60 days nor less
than 40 days before the Facility A Maturity Date. Such notice shall be made
in writing, be unconditional and binding on the Principal Company and the
relevant Borrower except as set out in Clause 6.10.
6.7 Notification of Extension Request
The Facility Agent shall forward a copy of the Extension Request to the
Banks as soon as practicable after receipt of it but, in any event, no
later than 5 days after such receipt.
6.8 Banks' Response to Extension Request
If a Bank, in its individual and sole discretion, agrees to the extension
requested by the Principal Company, it shall give notice to the Facility
Agent (a "Notice of Extension") (revocable only in the case mentioned in
Clause 6.10) no later than 20 days prior to the Facility A Maturity Date.
If a Bank does not give such Notice of Extension by such date, then such
Bank shall be deemed to have refused such extension.
6.9 Bank's Discretion
Nothing shall oblige a Bank to agree to an Extension Request or deliver a
Notice of Extension.
6.10 Revocation of Extension
6.10.1 If one or more Banks having in aggregate 50 per cent. or more of
the Facility A Commitments have not given a Notice of Extension
pursuant to Clause 6.8, then the Facility Agent shall so notify
the Principal Company not later than 15 days prior to the
Facility A Maturity Date, identifying in such notification which
Banks have not given a Notice of Extension.
6.10.2 The Principal Company may, on the basis that one or more Banks
having in aggregate 50 per cent. or more of the Facility A
Commitments have not given Notices of Extension and no later than
10 days prior to the Facility A Maturity Date, withdraw its
Extension Request provided that, if the Principal Company does
not give notice of such withdrawal within that period, then its
Extension Request shall be binding on it.
6.11 Extension Date
The Facility A Maturity Date shall be extended if and when:
6.11.1 one or more Banks having in aggregate 50 per cent. or more of the
Facility A Commitments so agree by giving a Notice of Extension;
or
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6.11.2 one or more Banks so agree by giving a Notice of Extension
provided that the Principal Company has not withdrawn its
Extension Request by the time specified in Clause 6.10.2,
and the Facility A Maturity Date shall then be extended to the day which is
364 days from (and including) the Facility A Maturity Date provided that,
if less than all the Banks give a Notice of Extension, then
6.11.3 the Facility Agent shall notify the Principal Company of the
amount of the Facility A Commitment of each Bank which gives a
Notice of Extension not later than 10 days prior to the Facility
A Maturity Date;
6.11.4 the share of any outstanding Facility A Advance of each of the
Banks not so extending shall be repaid on the Facility A Maturity
Date;
6.11.5 the Facility A Commitment of each such Bank shall be reduced to
zero on such date; and
6.11.6 the amount of each Facility A Advance shall be reduced
accordingly.
Upon such extension of the Facility A Maturity Date in accordance with the
terms hereof, then for purposes of this Agreement the "Facility A Maturity
Date" shall be deemed and construed to mean the Facility A Maturity Date as
so extended. The Principal Company shall be entitled to request an
extension of the Facility A Maturity Date by means of an Extension Request
in accordance with Clauses 6.6 to 6.11 (inclusive) on no more than one
occasion.
6.12 Notification of Extension
The Facility Agent shall promptly inform the Principal Company and the
Banks which will continue to participate in Facility A of the aggregate
amount of each Facility A Advance if reduced pursuant to Clause 6.11.
6.13 Request for Conversion of Facility A
6.13.1 The Principal Company, on behalf of any Borrower, shall be
entitled to request that:
(a) all or part (being in a minimum amount of US$25,000,000 and
an integral multiple of US$5,000,000) of the amount (pro
rata amongst the Banks) forming part of a Facility A Advance
and outstanding on the Facility A Maturity Date be converted
on the Facility A Maturity Date into a Facility A Term
Advance maturing on the first anniversary of the Facility A
Maturity Date (the "Facility A Termination Date"), provided
that such date would not fall after the Facility B Maturity
Date; and
(b) all or part of the Facility A Commitments which have not
been drawn down prior to the Facility A Maturity Date be
drawn down by way of
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Facility A Term Advances by the relevant Borrower on the
Facility A Maturity Date,
by delivering to the Facility Agent a request (a "Conversion
Request", in the form set out in Schedule 6) not less than 10
days, or more than 30 days prior to the Facility A Maturity Date.
6.13.2 The Conversion Request shall be unconditional and irrevocable
and, in the case of a Conversion Request for the making of
Facility A Term Advances under 6.13.1(b), shall be accompanied by
a Utilisation Request.
6.13.3 Any Facility A Advances not requested to be converted shall be
repaid in full on the Facility A Maturity Date.
6.13.4 All undrawn Facility A Commitments not the subject of a
Conversion Request shall be cancelled on the Facility A Maturity
Date.
6.13.5 The Facility Agent shall forward a copy of the Conversion Request
to each Bank as soon as practicable after receipt.
6.14 Conversion of Existing Facility A Advances
If:
6.14.1 the Principal Company has delivered a Conversion Request under
Clause 6.13.1(a);
6.14.2 the conditions in Clauses 3.2 and 3.3 would have been met,
mutatis mutandis, if each Facility A Advance to be converted had
been a new Facility A Advance; and
6.14.3 the Principal Company has, on or before the Facility A Maturity
Date, paid to the Facility Agent the fees specified in Clause
22.5 (Term-Out Fee) at the times and in the amounts specified
therein,
then all or a part of each such Facility A Advance which is outstanding on
the Facility A Maturity Date (equal to the amount specified in the
Conversion Request as being converted) shall automatically be converted on
the Facility A Maturity Date into a Facility A Term Advance in the currency
in which the relevant outstanding Facility A Advance is denominated at the
time of the Conversion Request and shall not be repayable on the Facility A
Maturity Date pursuant to Clause 6.1.1 (Repayment) but shall instead be
repayable on the Facility A Termination Date.
6.15 Conversion of Undrawn Facility A Commitment
If:
6.15.1 the Principal Company has delivered a Conversion Request and
Utilisation Request for the making of a Facility A Term Advance
under Clause 6.13.1(b);
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6.15.2 the conditions in Clauses 3.2 and 3.3 would have been met,
mutatis mutandis, if such Facility A Term Advance had been a new
Facility A Advance; and
6.15.3 the Principal Company has, on or before the Facility A Maturity
Date, paid to the Facility Agent the fees specified in Clause
22.5.2 (Term-Out Fee) at the times and in the amounts specified
therein,
then a Facility A Term Advance shall be made on the Facility A Maturity
Date to the relevant Borrower and shall not be repayable on the Facility A
Maturity Date under Clause 6.1.1 (Repayment) but shall instead be repayable
on the Facility A Termination Date.
6.16 Interest Periods
The period for which a Facility A Term Advance is outstanding shall be
divided into successive periods each of which (other than the first, which
shall begin on the Facility A Maturity Date) shall start on the last day of
the preceding such period.
6.17 Duration of Interest Periods
The duration of each Interest Period shall, save as otherwise provided
herein, be such period of one, two, three or six months as the relevant
Borrower may select or such other period as may be agreed by the Banks,
provided that:
6.17.1 if the Borrower and the Banks fail to agree in relation to an
Interest Period, the duration of that Interest Period shall,
subject to Clauses 6.17.2 and 6.17.3, be three (3) months;
6.17.2 any Interest Period which begins during or at the same time as
any other Interest Period shall end at the same time as that
other Interest Period; and
6.17.3 any Interest Period which would otherwise end during the month
preceding, or extend beyond, the Facility A Termination Date
shall be of such duration that it shall end on the Facility A
Termination Date.
6.18 Consolidation of Facility A Term Advances
If two or more Interest Periods end at the same time, then, on the last day
of those Interest Periods, the Facility A Term Advances to which they
relate shall be consolidated into and treated as a single Facility A Term
Advance.
6.19 Payment of Interest on Facility A Term Advances
On the last day of each Interest Period the relevant Borrower shall pay
accrued interest on the Facility A Term Advance to which such Interest
Period relates.
6.20 Amounts of Facility A Term Advances
The amount of a Facility A Term Advance during an Interest Period relating
thereto (in determining which it shall be assumed that any part of such
Advance falling to be repaid on or before the last day of the preceding
Interest Period, if any, relating thereto is duly repaid) shall be if such
Advance is to be denominated in Euros, the amount in Euros which could be
purchased with the Dollar Amount of such Advance at the spot
- 32 -
rate of exchange quoted by the Facility Agent at or about 11.00 a.m. on the
third business day preceding the first day of such Interest Period for the
purchase of Euros with dollars, provided that if a Facility A Term Advance
is to be denominated in Euros during two successive Interest Periods and
the amount of such Advance, calculated in accordance with this clause is no
more than 5 per cent. higher or lower than its Existing Amount, its New
Amount shall be its Existing Amount.
6.21 Same Currency
If any Facility A Term Advance is to be denominated in Euros during two
successive Interest Periods and there is any difference between the
Existing Amount of such Advance and its New Amount, then, on the last day
of the first of those Interest Periods:
6.21.1 if the Existing Amount of such Advance exceeds its New Amount,
the relevant Borrower shall pay to the Facility Agent for the
account of the Banks an amount equal to the amount of such
excess; or
6.21.2 if the New Amount of such Advance exceeds its Existing Amount:
(a) each Bank shall pay to the Facility Agent for the account of
the relevant Borrower an amount equal to its portion of the
amount of such excess; or
(b) if an Event of Default shall have occurred and the Facility
Agent or an Instructing Group so determines, no such
payments shall be made and a sum equal to the aggregate
amount which would have been so payable shall be treated as
having been prepaid by the Borrower under Clause 6.2
(Voluntary Prepayment).
7. CANCELLATION
7.1 Cancellation
7.1.1 The Principal Company may, by giving to the Facility Agent not
less than five business days' prior written notice to that
effect, cancel the whole or any part (being an amount of not less
than $25,000,000 and an integral multiple of $5,000,000) of the
Facility A Total Commitments, the Facility B Total Commitments or
the Facility C Total Commitments. Any such cancellation shall
reduce the Facility A Commitment, the Facility B Commitment or,
as the case may be, the Facility C Commitment of each Bank
rateably.
7.1.2 The Principal Company may give the Facility Agent not less than
ten business days' prior notice of its intention to procure that
the relevant Issuing Bank's liability under a Letter of Credit is
reduced to zero (whereupon it shall do so).
7.2 Irrevocable Instruction
Any notice of cancellation given by the Principal Company pursuant to
Clause 7.1 (Cancellation) shall be irrevocable and shall specify the date
upon which such
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cancellation is to be made and the amount of such cancellation. Amounts so
cancelled may not be reborrowed.
7.3 Notice
The Facility Agent shall promptly notify each of the Banks of any notice of
cancellation received by it from the Principal Company pursuant to Clause
7.1 (Cancellation).
7.4 Cancellation of Commitment
If any Bank or Issuing Bank claims indemnification from the Principal
Company under Clause 8 (Taxes) or Clause 10 (Increased Costs), the
Principal Company may, whilst the relevant circumstances continue and by
not less than ten days' prior written notice to the Facility Agent (which
notice shall be irrevocable), (i) cancel such Bank's or such Issuing Bank's
Commitment whereupon such Bank or such Issuing Bank shall cease to be
obliged to make Advances or to issue Letters of Credit and its Commitment
(including without limitation its Facility C Commitment) shall be reduced
to zero and (ii) (if such circumstance relates to an Issuing Bank) cancel
or provide Cash Collateral in respect of that Issuing Bank's Letters of
Credit.
8. TAXES
8.1 Tax Gross-Up
All payments to be made by any Obligor to any person hereunder shall be
made free and clear of and without deduction or withholding for or on
account of tax unless such Obligor is required to make such a payment
subject to the deduction or withholding of tax, in which case the sum
payable by such Obligor in respect of which such deduction or withholding
is required to be made shall be increased to the extent necessary to ensure
that, after the making of the required deduction or withholding, such
person receives and retains (free from any liability in respect of any such
deduction or withholding, including without limitation deductions or
withholdings applicable to additional sums payable under this Clause 8.1) a
net sum equal to the sum which it would have received and so retained had
no such deduction or withholding been made or required to be made.
8.2 Tax Indemnity
Without prejudice to the provisions of Clause 8.1 (Tax Gross-Up), if any
person or the Facility Agent on its behalf is required to make any payment
on account of tax or otherwise (not being a tax imposed on the net income
of any Facility Office by the jurisdiction in which it is incorporated or
in which such Facility Office is located) on or in relation to any sum
received or receivable hereunder by such person or the Facility Agent on
its behalf (including, without limitation, any sum received or receivable
under this Clause 8) or any liability in respect of any such payment is
asserted, imposed, collected, levied or assessed against such person or the
Facility Agent on its behalf, the Principal Company shall, upon demand of
the Facility Agent, promptly indemnify such person against such payment or
liability, together with any interest, penalties and expenses payable or
incurred in connection therewith.
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8.3 Claims by Banks or Issuing Banks
Any person intending to make a demand pursuant to Clause 8.2 (Tax
Indemnity) shall notify the Principal Company (through the Facility Agent
in the case of a Bank or an Issuing Bank) in reasonable detail of the event
by reason of which it is entitled to do so provided that nothing herein
shall require such person to disclose any confidential information relating
to the organisation of its affairs.
8.4 U.S. Withholding Taxes
The Facility Agent and each Bank that is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for United States
federal income tax purposes which is or will be a lender to any US Obligor
agrees that it will deliver to such US Obligor (in the case of a Bank, via
the Facility Agent) within ten business days of the date hereof two duly
completed copies of United States Internal Revenue Service Form W8-BEN or
W-8ECI or successor applicable form, as the case may be. Each such Bank and
the Facility Agent also agrees to deliver to such US Obligor (in the case
of a Bank, via the Facility Agent) two further copies of said Form W8-BEN
or W-8ECI or successor applicable forms or other manner of certification,
as the case may be, on or before the date that any such form expires or
becomes obsolete or promptly after the occurrence of any event requiring a
change in the most recent form previously delivered by it to such US
Obligor (if applicable, via the Facility Agent) and such extensions or
renewals thereof as may reasonably be requested by such US Obligor or the
Facility Agent, unless in any such case an event (including, without
limitation, any change in treaty, law or regulation) has occurred prior to
the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such Bank or the
Facility Agent from duly completing and delivering any such form with
respect to it and such Bank or the Facility Agent so advises such US
Obligor (in the case of any Bank, via the Facility Agent) and the Facility
Agent. The Forms W8-BEN or W-8ECI described above shall indicate that the
relevant Bank or Facility Agent is entitled to receive payments from each
US Obligor under this Agreement without deduction or withholding of any
United States federal income taxes.
Notwithstanding anything to the contrary contained in this Clause 8, (x)
each US Obligor shall be entitled, to the extent it is required to do so by
law, to deduct or withhold income or similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or
therein) from interest, fees or other amounts payable hereunder for the
account of the Facility Agent and each Bank that is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for
United States federal income tax purposes to the extent that such Facility
Agent or Bank, as the case may be, has not provided to such US Obligor
within a reasonable time the IRS forms that establish a complete exemption
from such deduction or withholding and (y) such US Obligor shall not be
obligated pursuant to Clause 8.1 hereof to gross-up payments to be made by
such US Obligor, or pursuant to Clause 8.2 hereof to indemnify any person,
in respect of income or similar taxes imposed by the United States if such
Facility Agent or Bank, as the case may be, has not provided to
- 35 -
such US Obligor within a reasonable time the IRS forms required to be
provided to the US Obligor pursuant to this Clause 8.4 provided, however,
that (x) and (y) above shall not apply if the failure to provide the
relevant form is due to an event (including a change in law, treaty or
regulation) that occurred prior to the date on which the relevant form is
required which renders all such forms inapplicable or prevents the relevant
Bank or Facility Agent from duly completing and delivering any such form
indicating its entitlement to receive payments free of any such withholding
tax.
8.5 Tax Benefit
If an Obligor pays any additional amount under this Clause 8 and a Bank
determines in its sole discretion that it is entitled to receive or realise
in connection therewith any refund or any reduction of, or credit against,
its tax liabilities (a "Tax Benefit"), such Bank shall pay to such Obligor
an amount that the Bank shall, in its sole discretion, determine is equal
to the benefit obtained by such Bank as a consequence of such Tax Benefit;
provided, however, that (i) such Bank may determine, in its sole discretion
consistent with the policies of the Bank, whether to seek a Tax Benefit;
(ii) any taxes that are imposed on such Bank as a result of a disallowance
or reduction (including through the expiration of any tax credit carryover
or carryback that otherwise would not have expired) of any Tax Benefit with
respect to which such Bank has made a payment to the Obligor pursuant to
this Clause 8.5 shall be treated as a tax for which such Obligor is
obligated to indemnify such Bank pursuant to this Clause 8.5; and (iii)
nothing in this Clause 8.5 shall require any Bank to disclose any
confidential information to an Obligor (including, without limitation, its
tax returns).
8.6 Tax Co-operation
If the Obligors determine in good faith that a reasonable basis exists for
contesting a tax, the relevant Bank, or the Facility Agent, as applicable,
shall cooperate with the Obligors in challenging such tax at the Obligors'
expense and if requested by the Obligors in writing; provided, however,
that no Bank shall be required to take any action hereunder which, in the
sole discretion of such Bank, would cause such Bank or its applicable
lending office to suffer an economic, legal or regulatory disadvantage.
8.7 Survival of Tax Provisions
The provisions of this Clause 8 shall survive until thirty days after the
expiration of the applicable statute of limitations with respect to any
such taxes.
9. TAX RECEIPTS
9.1 Notification of Requirement to Deduct Tax
If, at any time, any Obligor is required by law to make any deduction or
withholding from any sum payable by it hereunder (or if thereafter there is
any change in the rates at which or the manner in which such deductions or
withholdings are calculated), such Obligor shall promptly notify the
Facility Agent upon becoming aware of the same.
9.2 Evidence of Payment of Tax
If any Obligor makes any payment hereunder in respect of which it is
required to make any deduction or withholding, it shall pay the full amount
required to be deducted or
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withheld to the relevant taxation or other authority within the time
allowed for such payment under applicable law and shall deliver to the
Facility Agent for each Bank, within thirty days after it has made such
payment to the applicable authority, an original receipt (or a certified
copy thereof) issued by such authority (if any) or other written evidence
of payment as such Obligor can provide evidencing the payment to such
authority of all amounts so required to be deducted or withheld in respect
of that Bank's share of such payment.
10. INCREASED COSTS
10.1 Increased Costs
If, by reason of (i) the introduction of or any change in law or regulation
or in its interpretation, application or administration, (ii) compliance
with any law or regulation and/or (iii) compliance with any request from or
requirement of any central bank or other fiscal, monetary or other
authority (including, without limitation, a request or requirement which
affects the manner in which a Bank or any holding company of such Bank is
required to or does maintain capital resources having regard to such Bank's
obligations hereunder and to amounts owing to it hereunder):
10.1.1 a Bank or any holding company of such Bank incurs a cost as a
result of such Bank's having entered into and/or performing its
obligations under this Agreement and/or assuming or maintaining a
commitment or performing its obligations (including its
obligation to make Advances or participate in, or make a payment
under, a Letter of Credit) under this Agreement and/or its
participating in or making one or more Advances or the issuing of
or participation in one or more Letters of Credit;
10.1.2 a Bank or any holding company of such Bank is unable to obtain
the rate of return on its overall capital which it would have
been able to obtain but for such Bank's having entered into
and/or performing its obligations and/or assuming or maintaining
a commitment under this Agreement or any Letter of Credit;
10.1.3 there is any increase in the cost to a Bank or any holding
company of such Bank of funding or maintaining all or any of the
advances comprised in a class of advances formed by or including
the Advances or payments in respect of Letters of Credit made or
to be made by such Bank hereunder; or
10.1.4 a Bank or any holding company of such Bank becomes liable to make
any payment on account of tax or otherwise (not being a tax
imposed on the net income of such holding company or any Facility
Office of such Bank by the jurisdiction in which it is
incorporated or in which such Facility Office is located) on or
calculated by reference to the amount of the Advances made or to
be made by such Bank hereunder or Letters of Credit issued to or
to be issued hereunder or its participation therein and/or to any
sum received or receivable by it hereunder,
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then the Principal Company shall, from time to time on demand of the
Facility Agent, promptly pay to the Facility Agent for the account of that
Bank amounts sufficient to indemnify that Bank or any such holding company
against, as the case may be, (1) such cost, (2) such reduction in such rate
of return (or such proportion of such reduction as is, in the opinion of
that Bank, attributable to its obligations hereunder), (3) such increased
cost (or such proportion of such increased cost as is, in the opinion of
that Bank, attributable to its funding or maintaining Advances or payments
in respect of Letters of Credit) or (4) such liability.
This Clause 10.1 (Increased Costs) shall not apply to the extent any
payment by the Principal Company thereunder would be (i) attributable to
tax deductions or withholdings required by law to be made by any Obligor on
account of tax from a payment under this Agreement, (ii) compensated for by
Clause 8.2 (Tax Indemnity), (iii) compensated for by the payment of
applicable Reserve Costs, or (iv) attributable to a wilful breach of any
law or regulation by the relevant Bank.
10.2 Increased Cost Claims
A Bank intending to make a claim pursuant to Clause 10.1 (Increased Costs)
shall notify the Facility Agent in reasonable detail of the event by reason
of which it is entitled to do so and each Bank shall, as soon as
practicable after a demand by the Facility Agent, provide a certificate
confirming the amount of such claim for increased costs, whereupon the
Facility Agent shall notify the Principal Company thereof provided that
nothing herein shall require such Bank to disclose any confidential
information relating to the organisation of its affairs.
10.3 Illegality
If, at any time, it is unlawful for a Bank or an Issuing Bank to maintain
its Commitment or to make, fund or allow to remain outstanding all or any
of the Advances made or to be made by it hereunder or to participate in the
issue of, or to allow to remain outstanding all or any of its liabilities
under, any of the Letters of Credit then that Bank or Issuing Bank, as the
case may be, shall, promptly after becoming aware of the same, deliver to
the Principal Company through the Facility Agent a notice to that effect
and:
10.3.1 such Bank or Issuing Bank, as the case may be, shall not
thereafter be obliged to make any Advances or to participate in
the issue of any Letters of Credit and the amount of its
Commitment shall be immediately reduced to zero; and
10.3.2 if the Facility Agent on behalf of such Bank or Issuing Bank, as
the case may be, so requires, the Principal Company shall procure
that the relevant Borrower or Borrowers shall on such date as the
Facility Agent shall have specified (being no earlier than the
last day of any applicable grace period permitted by law) (i)
repay such Bank's or Issuing Bank's, as the case may be, share of
any outstanding Advances together with accrued interest thereon
and all other amounts owing to such Bank or Issuing Bank, as the
case may be, hereunder and/or (ii) procure that such Bank's or
Issuing Bank's, as the case may be, obligations under any Letters
of Credit will be reduced to zero or
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otherwise secured with 100% Cash Collateral (in the currency in
which such Letter of Credit is denominated) in a manner
acceptable to such Bank or Issuing Bank, as the case may be.
10.4 Regulation Costs
Each relevant Borrower shall, within seven days of demand by any Bank
(through the Facility Agent), pay to that Bank the amount of any Regulation
Costs actually incurred by that Bank in respect of any Advance made by it
to that Borrower. Any such demand shall contain reasonable details of the
calculation of the relevant Regulation Costs.
11. MITIGATION
If, in respect of any Bank, circumstances arise which would or would upon
the giving of notice result in:
11.1.1 the reduction of its Commitment to zero pursuant to Clause 10.3
(Illegality);
11.1.2 an increase in the amount of any payment to be made to it or for
its account pursuant to Clause 8.1 (Tax Gross-Up); or
11.1.3 a claim for indemnification pursuant to Clause 8.2 (Tax
Indemnity) or Clause 10.1 (Increased Costs),
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the obligations of any Obligor under any of the
Clauses referred to in Clauses 11.1.1, 11.1.2 or 11.1.3 above, such Bank
shall promptly upon becoming aware of the same notify the Facility Agent
thereof and, in consultation with the Facility Agent and the Principal
Company and to the extent that it can do so without prejudice to its own
position, take reasonable steps to mitigate the effects of such
circumstances including the transfer of its Facility Office provided that
such Bank shall be under no obligation to take any such action if, in the
opinion of such Bank, to do so might have any material adverse effect upon
its business, operations or financial condition. In addition, if
circumstances arise which would result in a Bank becoming subject to a tax
which is not indemnified or grossed up under Clause 8, each Obligor shall
take reasonable steps to mitigate the effect of such circumstances.
12. MARKET DISRUPTION
If, in relation to any Advance:
12.1.1 the Facility Agent determines that at 11.00 a.m. on the Quotation
Date for such Advance (i) there is no Screen Rate quote for LIBOR
or EURIBOR, as applicable and (ii) none or only one of the
Reference Banks supplies a rate to the Facility Agent to
determine LIBOR or, if applicable, EURIBOR for the relevant
currency and Term or Interest Period thereof; or
12.1.2 before the close of business in London on the Quotation Date for
such Term or Interest Period the Facility Agent has been notified
by a Bank or each of a group of Banks to whom in aggregate
thirty-five per cent. or more of the
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Dollar Amount of the Outstandings is (or, if such Advance were
then made, would be) owed that the cost to it of obtaining
matching deposits in the relevant interbank market will be in
excess of LIBOR or, if applicable, EURIBOR,
then, notwithstanding the provisions of Clause 5 (Interest on Advances):
12.1.3 the Facility Agent shall notify the other parties hereto of such
event;
12.1.4 such Advance shall not be made; and
12.1.5 if the Facility Agent or the Principal Company so requires,
within five days of such notification the Facility Agent and the
Principal Company shall enter into negotiations in good faith
with a view to agreeing a substitute basis for determining the
rates of interest which may be applicable to Advances in the
future and any such substitute basis that is agreed shall take
effect in accordance with its terms and be binding on each party
hereto provided that the Facility Agent may not agree any such
substitute basis without the prior consent of each Bank.
13. REPRESENTATIONS AND WARRANTIES
13.1 Representations and Warranties
Each Obligor represents and warrants to the Facility Agent and each of the
Banks that:
13.1.1 Status
(a) (in the case of the Principal Company) it is a public
company with limited liability (naamloze vennootschap) duly
incorporated and validly existing under the laws of The
Netherlands and has the corporate power and authority to own
its property and assets and to carry on its business as it
is now being conducted;
(b) (in the case of Croesus) it is a corporation duly organised
and in good standing under the laws of the State of Delaware
and the laws of the United States of America and has the
corporate power and authority to own its property and assets
and to carry on its business as it is now being conducted;
(c) (in the case of Ahold Finance USA) it is a company duly
organised and in good standing under the laws of Delaware
and the laws of the United States of America and has the
power and authority to own its property and assets and to
carry on its business as it is now being conducted; and
(d) (in the case of any Additional Borrower) it is a corporation
duly organised and in good standing under the laws of its
jurisdiction of incorporation and has the power and
authority to own its property and assets and to carry on its
business as it is now being conducted;
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13.1.2 Corporate Power; Execution
it has the power to enter into and perform the Finance Documents
to which it is expressed to be a party and the transactions
contemplated thereby and to borrow and to undertake obligations
in respect of Letters of Credit hereunder and has taken all
necessary actions to authorise the borrowing of Advances and the
undertaking of obligations in respect of Letters of Credit upon
the terms and conditions of this Agreement and to authorise the
execution, delivery and performance of the Finance Documents to
which it is expressed to be a party in accordance with their
respective terms;
13.1.3 Binding Obligations
each of the Finance Documents to which it is expressed to be a
party constitutes and will at all times constitute its legal,
valid and binding obligations, enforceable in accordance with its
terms subject to any legal limitations arising as a result of any
applicable laws relating to bankruptcy or insolvency or
equivalent proceedings and subject to any general principles of
law limiting its obligations which are specifically referred to
in the legal opinions delivered pursuant to Clause 2.3
(Conditions Precedent Documents) and Schedule 3 (Conditions
Precedent Documents);
13.1.4 Claims Pari Passu
its indebtedness under this Agreement is its direct,
unconditional and general indebtedness and ranks, and will at all
times rank, pari passu with all other unsecured indebtedness and
liabilities (actual or contingent) (with the exception of any
indebtedness and liabilities preferred by law and deferred or
subordinated indebtedness) issued, created or assumed now or in
the future or for which it is now or may at any time in the
future otherwise be or become responsible;
13.1.5 Financial Statements
its Original Financial Statements (copies of which have been
provided to each of the Banks) and the most recently published
quarterly financial statements of the Principal Company were
prepared in accordance with accounting principles generally
accepted in The Netherlands (in the case of the Principal
Company) and its jurisdiction of incorporation and The
Netherlands (in the case of any Additional Borrower) and fairly
present its condition and (in the case of the Principal Company)
that of the Group, at the date to which the Original Financial
Statements or the most recently published quarterly financial
statements of the Principal Company, as the case may be, have
been prepared and its results and (in the case of the Principal
Company) the results of the Group for such year; and such
accounts included all significant liabilities (including
contingent liabilities);
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13.1.6 No Material Adverse Change
since the date on which the most recently published quarterly
financial statements of the Principal Company were prepared there
has been no material adverse change in its (or, in the case of
the Principal Company, the Group's, or, in the case of Croesus,
Croesus and its subsidiaries, or, in the case of Ahold Finance
USA, Ahold Finance USA and its subsidiaries) financial or trading
condition or prospects which could have a material adverse effect
on its ability to perform or comply with its obligations under
any of the Finance Documents to which it is expressed to be a
party;
13.1.7 No Event of Default
no Event of Default or (other than in relation to a Rollover
Advance) Potential Event of Default has occurred and is
continuing unremedied, nor will any Event of Default or (other
than in relation to a Rollover Advance) Potential Event of
Default result from the making of any Advance or issue of or
participation by a Bank in any Letter of Credit hereunder;
13.1.8 Non-Violation of Laws, Agreements
its execution, delivery and performance of the Finance Documents
to which it is expressed to be a party, the borrowing of Advances
and the use of the proceeds thereof and the undertaking of
obligations in respect of Letters of Credit do not and will not
violate in any respect any provisions of (i) any applicable
federal law or judgment of the United States, (ii) any applicable
law or judgement of The Netherlands, the State of Delaware, its
jurisdiction of incorporation or any other relevant jurisdiction,
or (iii) any mortgage, contract, other undertaking or instrument
to which it is a party or which is binding upon it or any of its
assets (to an extent that (x) such violation could have a
material adverse effect on its financial condition or (y) such
violation could give rise to any claim against any of the Finance
Parties) and does not and will not result in the creation or
imposition of any encumbrance on any of its assets pursuant to
the provisions of any such mortgage, contract or other
undertaking or instrument;
13.1.9 No Proceedings
no litigation, arbitration or administrative proceedings are
presently current or pending or, to the best of its knowledge
threatened, which would or might reasonably have a material
adverse effect on its ability to perform its obligations under
this Agreement;
13.1.10 Validity and Admissibility in Evidence
all acts, conditions and things required to be done, fulfilled
and performed in order (a) to enable it lawfully to enter into,
exercise its rights under and perform and comply with the
obligations expressed to be assumed by it in the
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Finance Documents to which it is expressed to be party, (b) to
ensure that the obligations expressed to be assumed by it in the
Finance Documents to which it is expressed to be party are legal,
valid and binding and (c) to make the Finance Documents to which
it is expressed to be party admissible in evidence in its
jurisdiction of incorporation have been done, fulfilled and
performed;
13.1.11 No Breach or Default
no member of the Group is in breach of or in default under any
agreement in respect of borrowed money which exceeds $50,000,000
(or its equivalent) (save, in respect of any guarantees, where
liability under such guarantee is being contested by an Obligor
in good faith) to which it is a party or which is binding on it
or any of its assets;
13.1.12 Accuracy of Information
all of the written information supplied by it to the Facility
Agent, the Arrangers and the Banks in connection herewith or with
the Information Memorandum is (save as disclosed to the Facility
Agent prior to the date hereof in any written statement
identified on its face as a disclosure against this
representation) true, complete and accurate in all material
respects and it is not aware of any material facts or
circumstances that have not been disclosed to the Facility Agent,
the Arrangers and the Banks and which might, if disclosed,
adversely affect the decision of a person considering whether or
not to provide finance to it (provided that, to the extent that
this representation and warranty relates to the Information
Memorandum, such representation and warranty shall be made or
given on the date on which the Information Memorandum is approved
by the Principal Company and on the date hereof);
13.1.13 No Winding-Up
none of it or, subject to the proviso below, any other member of
the Group has taken any corporate action nor have any other steps
been taken or legal proceedings been started or (to the best of
its knowledge and belief) threatened against it or such member of
the Group for its or such member of the Group's winding-up,
dissolution, administration or re-organisation or for the
appointment of a receiver, administrator, administrative
receiver, trustee or similar officer of it or any member of the
Group or of any or all of its or such member of the Group's
assets or revenues provided that it shall not, for purposes of
this Agreement, be a misrepresentation under this Clause 13.1.13
if the events or circumstances referred to in this Clause 13.1.13
apply only to member(s) of the Group which are not Obligors
unless the consolidated or unconsolidated net sales of such
member(s) of the Group (as determined by reference to the most
recently published audited consolidated financial statements of
the Principal Company), when aggregated with the consolidated or
unconsolidated net sales of each other member of the Group (as
determined by reference to the most recently published audited
consolidated financial
- 43 -
statements of the Principal Company) which is the subject of any
event or circumstance referred to in this Clause 13.1.13, exceeds
5% of consolidated net sales of the Group taken as a whole (as
determined by reference to the most recently published audited
consolidated financial statements of the Principal Company);
13.1.14 Compliance with Applicable Law
it is conducting, in all material respects, its business and
operations in compliance with all laws and regulations and all
directives of governmental authorities having the force of law
applicable or relevant to it;
13.1.15 Title to Property
it owns and has good and marketable title to all of its property
except where the failure to have such good and marketable title
would not reasonably be expected to have a material adverse
effect on it;
13.1.16 Environmental Laws and Permits
to the best of its knowledge, it is in compliance in all material
respects with all Environmental Laws and it has obtained, and
will at all times obtain, and is in compliance in all material
respects with, all Environmental Permits;
13.1.17 Environmental Claims
to the best of its knowledge, there are no circumstances which
have led, or could lead, to a competent authority or a third
party taking any action or making a claim under any Environmental
Laws including the requirement to clean up any contaminated land
or the revocation, suspension, variation or non-renewal of any
Environmental Permits or to any member of the Group having to
take action to avert the possibility of any such action or claim
which action or claim would have a material adverse effect on the
Group;
13.1.18 ERISA Matters
(a) the aggregate liabilities of each Obligor, each Material US
Subsidiary and the ERISA Affiliates to all Multiemployer
Plans in the event of a complete withdrawal therefrom, as of
the close of the most recent fiscal year of each such
Multiemployer Plan ended prior to the date hereof, would not
have a material adverse effect upon the financial condition
of such Obligor or Material US Subsidiary;
(b) each Employee Plan is in compliance in all material respects
in form and operation with ERISA and the Code except for any
instance of noncompliance that would not have a material
adverse effect upon the financial condition of any Obligor;
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(c) except as disclosed, each Employee Plan which is intended to
be qualified under Section 401(a) of the Code has received a
favourable determination letter from the IRS to be so
qualified as to form (or has submitted or is within the
remedial amendment period for submitting an application for
a determination letter with the IRS), and, to the knowledge
of any Obligor, nothing has occurred since the date of such
determination that would materially adversely affect such
determination except as disclosed;
(d) except to the extent as would not have a material adverse
effect upon the financial condition of the Obligor or
Material U.S. Subsidiary, the fair market value of the
assets of each Employee Plan subject to Title IV of ERISA is
at least equal to the present value of the "benefit
liabilities" (within the meaning of Section 4001(a)(16) of
ERISA) under such Employee Plan determined using the
actuarial assumptions and methods used by the actuary to
such Employee Plan in its most recent valuation of such
Employee Plan;
(e) there are no actions, suits or claims pending against or
with respect to any Employee Plan (other than routine claims
for benefits) which would cause any Obligor or any Material
US Subsidiary to incur a material liability or to the
knowledge of any Obligor or such Material US Subsidiary,
which could reasonably be expected to be asserted against or
with respect to any Employee Plan that would have a material
adverse effect upon the financial condition of any Obligor;
(f) each of the Obligors and the ERISA Affiliates has made all
material contributions to or under each such Employee Plan,
or any contract or agreement requiring contribution to any
Employee Plan, except for any failure to make such
contributions that would not have a material adverse effect
upon the financial condition of the Obligors;
(g) no Obligor, Material US Subsidiary or ERISA Affiliate has
ceased operations at a facility so as to become subject to
the provisions of Section 4062(e) of ERISA, withdrawn as a
substantial employer so as to become subject to the
provisions of Section 4063 of ERISA or ceased making
contributions to any Employee Plan subject to Section
4064(a) of ERISA to which it made contributions each in a
manner that would have a material adverse effect upon the
financial condition of the Obligors; and
(h) no Obligor, Material US Subsidiary or ERISA Affiliate has
incurred or reasonably expects to incur any material
liability to PBGC other than for premiums under Section 4007
of ERISA that would have a material adverse effect upon the
financial condition of any Obligor;
13.1.19 No Violation of Regulations or Exchange Act, etc.
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the borrowings made hereunder will not violate, or give rise to a
violation of, any of the Regulations. No member of the Group or
any agent acting in their behalf has taken or will take any
action which would cause this Agreement or any of the documents
or instruments delivered pursuant hereto, any borrowing hereunder
or use of proceeds thereof to violate any Regulation or to
violate the Exchange Act or any applicable US federal or state
securities laws; and
13.1.20 No Investment Company, etc.
no member of the Group is subject to regulation under the United
States Public Utility Holding Company Act of 1935, the United
States Federal Power Act or the United States Investment Company
Act of 1940 or to any United States federal or state statute or
regulation limiting its ability to incur indebtedness; no Obligor
is an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment
company", as such terms are defined in the U.S. Investment
Company Act of 1940 (15 U.S.C. sections 80a-1. et seq.); and none
of the transactions contemplated by this Agreement will violate
such Act.
14. UNDERTAKINGS
Each of the Borrowers and the Guarantor (unless otherwise specified)
undertakes that from and after the date hereof and until all sums due and
to become due from the Borrowers under this Agreement have been paid or
repaid and the Facilities shall no longer exist:
14.1.1 Financial Statements
(a) Annual Statements
the Principal Company will deliver to the Facility Agent and each
of the Banks as soon as the same are available (and in any event
no later than 180 days after the end of the relevant financial
year) its audited consolidated (and unconsolidated to the extent
that any Bank shall have to comply with any regulations imposed
on it in relation to the provision of financial information by
the Principal Company) profit and loss account for such financial
year and its audited consolidated (and unconsolidated to the
extent that any Bank shall have to comply with any regulations
imposed on it in relation to the provision of financial
information by the Principal Company) balance sheet as at the end
of such financial year prepared in conformity with generally
accepted accounting principles in The Netherlands applied on a
basis consistent with those of the preceding financial year, or
if not prepared on a consistent basis, containing or accompanied
by an adequate explanation of the consequences of any such
inconsistency;
(b) Interim Statements
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the Principal Company will promptly send to the Facility Agent
and each of the Banks two copies of any interim report or
accounts or any other notice or communication sent by it to its
shareholders in their capacity as such or to any stock exchange
on which its shares are listed;
(c) Other Financial Information
it will forthwith upon a request to that effect, provide the
Facility Agent with such additional financial information or
other information as the Facility Agent or any Bank through the
Facility Agent may from time to time reasonably require
(including, without limitation, information that the Facility
Agent or any Bank may reasonably require in order to determine
the ratios referred to in Clause 14.1.7) in respect of any
financial period) and upon receipt of a written request to that
effect from the Facility Agent, confirm to the Facility Agent
that, save as previously notified to the Facility Agent or as
notified in such confirmation, no Event of Default or Potential
Event of Default has occurred;
(d) Repetition of Representations
it will annually as soon as possible after the end of its
financial year (but in no event later than 90 days after the end
of the relevant financial year) furnish the Facility Agent with a
certificate to the effect that the representations and warranties
set out in Clause 13 (Representations and Warranties) hereof are
true and accurate on and as of that time as if made at that time
(provided that the representation and warranty in Clause 13.1.12
(Accuracy of Information) shall be made or given on such date but
as of and with reference to the facts and circumstances existing
on the date on which the relevant information was supplied to the
Finance Parties.)
(e) Quarterly Statements
without prejudice to Clause 14.1.1(b), the Principal Company will
as soon as possible after the end of each quarter of each
financial year (but in no event later than 90 days after the end
of the relevant quarter of such financial year) furnish the
Facility Agent in sufficient copies for the Banks with its
interim report in respect of such financial quarter, such interim
report to contain such information as may be required to enable
the Facility Agent and the Banks to calculate the ratios
contained in Clause 14.1.7 as at or during the four quarter
period ending on (as the case may be) the last day of the
relevant quarter of such financial year and a duly signed
certificate by one of its duly authorised officers stating that
the covenants set out in Clause 14.1.7 were complied with during
the four quarter period ending at the end of such quarter;
14.1.2 Notification of Events of Default
it will promptly give written notice to the Facility Agent of any
Event of Default and of any Potential Event of Default or of the
occurrence of any such
- 47 -
event in relation to a subsidiary as if the references to
Borrower in Clause 15 (Events of Default) were references to a
subsidiary and if, in such latter case, such event could have a
material adverse affect on the ability of any Borrower to perform
its obligations under this Agreement, at the same time informing
the Facility Agent of any action taken or proposed to be taken by
such Borrower in connection therewith;
14.1.3 Negative Pledge
it will not without the Banks' prior written consent create or
permit to be created or to subsist and will ensure that none of
its subsidiaries will without the Banks' prior written consent
create or permit to be created or to subsist any encumbrance on
or over the whole or any part of its assets (present or future)
other than the Cash Collateral, provided however that:
(a) the foregoing shall not prohibit any encumbrances upon any
Margin Stock; and
(b) the Banks hereby consent to
(i) encumbrances to secure indebtedness for borrowed money
to be created or to subsist over assets and revenues
not in excess of 15% of the total consolidated net
assets of the Group according to the audited
consolidated financial statements of the Group most
recently delivered to the Facility Agent pursuant to
Clause 14.1.1(a), and
(ii) encumbrances created or consented to by any member of
the Group prior to the date of this Agreement provided
that the Principal Company has notified the Facility
Agent in writing of such encumbrances providing to the
Facility Agent full details thereof, such notice to be
received by the Facility Agent not later than the date
hereof;
14.1.4 Security
it will, if the consent (other than the consent granted pursuant
to sub-clause 14.1.3) of the Banks is required pursuant to
sub-clause 14.1.3 above and such consent is forthcoming in
relation to any encumbrance, create to the satisfaction of the
Banks in favour of the Banks (or the Facility Agent on behalf of
the Banks) the same encumbrance or such other encumbrance or
encumbrances as the Banks in their absolute discretion shall deem
not materially less beneficial to them than the encumbrance in
respect of which such consent is given to secure, in each case,
all sums due and to become due from any Obligor under this
Agreement provided that the foregoing shall not apply to any
Margin Stock;
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14.1.5 Notice of Proceedings
it will forthwith notify the Facility Agent of any litigation or
administrative or arbitration proceedings in or by any court,
tribunal, arbitrator or governmental or municipal authority in
process, pending or threatened against any member of the Group or
any of their respective assets which might have a material
adverse effect on the ability of an Obligor to perform its
obligations under this Agreement;
14.1.6 Authorisations and Approvals
it will use its best endeavours to obtain and maintain, and the
Principal Company shall cause each of the Obligors to use their
best endeavours to obtain and maintain, all authorisations,
approvals, consents, licenses and exemptions and it will make,
and the Principal Company shall cause each of the Obligors to
make, all necessary filings and registrations as may be required
under any applicable law or regulation (which expression shall
include, without limitation, the Regulations and applicable
federal and state securities laws) to enable it to perform its
obligations under each Finance Document, or required for the
validity or enforceability of each Finance Document and will
comply with the terms of the same; and
14.1.7 Interest Cover Ratio
the Principal Company will ensure at all times the consolidated
financial condition of the Group, as evidenced by the Principal
Company's most recently published quarterly consolidated
financial statements (adjusted to take account of any changes in
circumstances which occur after the date as of which such audited
annual consolidated financial statements were prepared), shall be
such that the ratio, determined on a rolling four quarter average
basis, of (i) operating results plus the amount attributable to
amortisation of goodwill plus exceptional results (if negative)
or minus exceptional results (if positive) to (ii) Net Interest
Expense, is not less than 3.00:1.00.
The expressions used in this Clause 14.1.7 shall have the
meanings attributed thereto in the Original Financial Statements
but so that "Net Interest Expense" shall equal interest expense
minus interest income.
Finally, "determined on a rolling four quarter average basis"
means in relation to the ratio referred to above, such ratio
tested at the end of each Quarterly Financial Period by taking
the average of such ratios calculated for each of such Quarterly
Financial Period and the three immediately preceding Quarterly
Financial Periods where "Quarterly Financial Period" means a
financial quarter of a financial year of the Principal Company;
14.1.8 Insurance
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procure that each member of the Group maintains insurances on and
in relation to its business and assets with reputable
underwriters or insurance companies against such risks and to
such extent as is usual for companies carrying on a business such
as that carried on by such member of the Group whose practice is
not to self insure;
14.1.9 Environmental Laws and Permits
it shall and shall ensure that each of its subsidiaries shall
comply, in all material respects, with all Environmental Laws and
Environmental Permits applicable from time to time to all or any
part of its business or assets;
14.1.10 Environmental Claims
it shall not and it shall ensure that each of its subsidiaries
shall not allow any circumstances to arise which could lead to a
competent authority or a third party taking action or making a
claim under any Environmental Laws including the requirement to
clean up any contaminated land or the revocation, suspension,
variation or non-renewal of any Environmental Permits or to it or
any such subsidiary having to take action to avert the
possibility of any such action or claim which action or claim
would have a material adverse effect on the Group;
14.1.11 Notification of Environmental Matters
within four days of the receipt of notice of the same, give full
particulars (and if requested a copy of any written particulars
received by the relevant member of the Group) to the Facility
Agent of any material notice, order, direction, designation,
resolution or proposal having application to all or any part of
the its business or assets or that of any of its subsidiaries or
to the area in which such business or assets are situate or to
any real property owned, leased, used or operated by any member
of the Group given or made by any planning authority or other
public body or authority whatsoever under or by virtue of
Environmental Laws or any other statutory power whatsoever or in
pursuance of the powers conferred by any other statute
whatsoever;
14.1.12 Compliance with Environmental Orders
if so required by the Facility Agent, without delay and at the
cost of the Principal Company, take all reasonable or necessary
steps to comply with any such notice or order referred to in
Clause 14.1.11 above and at the request of any Bank, without
delay and at the cost of the Principal Company, make or join with
the Facility Agent in making such objection or objections or
representations against or in respect of any proposal for such a
notice or order as the Facility Agent shall deem expedient;
14.1.13 Further Information
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it shall provide all relevant information reasonably requested
(including information on its current business and its
prospective future business) to the Finance Parties in relation
to this Agreement and any transaction contemplated hereby and
shall ensure that all such information above is true and
accurate.
Nothing contained in this Agreement shall restrict the ability of the
Principal Company or any of its subsidiaries from selling, pledging or
otherwise disposing of any assets which, at the time in question,
constitute Margin Stock, or cause or enable any one or more Banks to cause
any or all of the Advances or other payment obligations owed by the
Principal Company hereunder to become due and payable or enable any one or
more of the Banks to take any of the actions specified in Clauses 15.1.17
or 15.1.18 below solely as a result of any such sale, pledge or
disposition.
15. EVENTS OF DEFAULT
15.1 Events of Default
If:
15.1.1 Failure to Pay
any Obligor fails to pay any principal, interest or other sum on
the day of the same becoming due and payable pursuant to this
Agreement;
15.1.2 Misrepresentation
any representation, warranty or statement made or (deemed to be)
repeated by any Obligor in this Agreement or in any certificate,
statement or other document contemplated hereby to the extent
provided by or for or on behalf of any Obligor proves to be
untrue or incorrect in a respect which is, in the opinion of an
Instructing Group, material at the time such certificate
statement or document is made or repeated (or deemed to be made
or repeated) or expressed; or
15.1.3 Covenants
any Obligor defaults in the due performance or observance of any
undertaking or obligation on its part contained in or pursuant to
this Agreement and, if such default is capable of remedy, the
same shall not have been remedied to the satisfaction of the
Facility Agent (after consultation with an Instructing Group,)
within fourteen days thereafter; or
15.1.4 Liquidation
subject to the further proviso to this Clause 15, there shall
have occurred the liquidation of any of the Obligors or any other
member of the Group or any order is made or resolution, law or
regulation passed or other action taken (including the making of
any application to any court or other relevant authority) for or
with a view to the liquidation of any Obligor or any other
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member of the Group or any Obligor or any other member of the
Group shall otherwise enter into liquidation; or
15.1.5 Winding-Up
subject to the further proviso to this Clause 15, any Obligor or
any other member of the Group petitions or applies to any court,
tribunal or other body or authority for the appointment of, or
there shall otherwise be appointed, any administrator,
bewindvoerder, receiver, liquidator, curator, sequestrator,
trustee or other similar officer of any Obligor or any other
member of the Group or of all or any part of the assets of any
Obligor or any other member of the Group; or
15.1.6 Suspension of Payments
subject to the further proviso to this Clause 15, any Obligor or
any other member of the Group applies for a (temporary)
moratorium or suspension of payments or for an arrangement with
its creditors or for any proceedings or arrangement by which the
assets of any Obligor or any other member of the Group are
submitted to the control of its creditors or any Obligor or any
other member of the Group otherwise threatens, proposes or
declares any moratorium on its debts or any class of its debts;
or
15.1.7 Insolvency
subject to the further proviso to this Clause 15, any Obligor or
any other member of the Group becomes, or is declared by any
competent authority to be, insolvent or admits in writing its
inability to pay its debts as they fall due or is or becomes
subject to or applies for any bankruptcy proceedings or starts
negotiations with its creditors for a restructuring of its debt;
or
15.1.8 Ceasing Business
any Obligor without the written consent of the Facility Agent on
behalf of the Banks ceases or threatens to cease its business as
presently conducted or if any Obligor or any other member of the
Group sells, leases, transfers or otherwise disposes of the whole
or any Substantial part of its assets (other than Margin Stock)
exceeding a value equalling a Substantial part of the assets on a
consolidated basis of the Principal Company whether by one
transaction or a series of related transactions without the prior
written consent of the Banks; or
15.1.9 Cross-Default
subject to the further proviso to this Clause 15, any other
indebtedness of any Obligor or any other member of the Group for
or in respect of any borrowed moneys which, when aggregated with
the amount of all other borrowed monies to which this Clause
15.1.9) applies, exceed $50,000,000 (or its equivalent) (save, in
respect of any guarantee, where liability under such guarantee is
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being contested by such Obligor or such other member of the Group
in good faith) is not paid when due for payment (or within any
stated applicable period of grace) or is found not to have been
so paid or becomes due and payable or capable of being declared
due and payable prior to its stated date of payment or, if
payable on demand, shall not be paid when demanded provided that
if such other indebtedness is held by any Bank (or any affiliate
thereof) and was declared to be due and payable or became capable
of being declared due and payable prior to its stated date of
payment, in any case, in circumstances which would not have
occurred but for a default by any of the Borrowers or one or more
of its subsidiaries in complying with a restriction contained in
the documentation governing such indebtedness on the ability of
such Borrower or such subsidiary to sell, pledge or otherwise
dispose of Margin Stock, then neither such declaration (or any
failure to pay based on any such declaration) or such becoming
capable of being declared due and payable shall constitute a
Potential Event of Default or Event of Default; or
15.1.10 Default under Mortgage, etc.
subject to the further proviso to this Clause 15, any Obligor or
any other member of the Group defaults under any mortgage,
charge, pledge, lien or other encumbrance or other security
interest upon the whole or any Substantial part of the assets of
such Obligor or such other member of the Group and the same
accordingly becomes enforceable; or
15.1.11 Execution or Distress
subject to the further proviso to this Clause 15, all or any
Substantial part of the assets of any Obligor or any other member
of the Group are attached or distrained upon or becomes subject
to any order or court or other process for execution and such
attachment, distraint, order or process remains in effect and not
discharged for 30 days; or
15.1.12 Illegality
any consent of the Dutch authorities or the authorities of any
other relevant jurisdiction required for the validity,
enforceability or legality of this Agreement or the performance
hereof ceases to be or is not for any reason in full force and
effect or such performance becomes unlawful or the obligations of
any of the Obligors under this Agreement or the material
obligations of any other party to any Finance Document are not or
cease to be legal, valid, binding or enforceable; or
15.1.13 Governmental Intervention
subject to the further proviso to this Clause 15, the whole or
any part of the assets, revenues or share capital of any Obligor
or any other member of the Group having a value which, when
aggregated with the value of all other assets to which this
Clause 15.1.13 applies, equals or exceeds 15% of the
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consolidated net assets of the Principal Company, is expropriated
or nationalised by any government; or
15.1.14 US Insolvency
any US Obligor shall (i) file a petition to take advantage of any
insolvency act; (ii) file a petition or answer seeking
reorganisation or arrangement or similar relief under the Federal
Bankruptcy Code or any other applicable law or statute of the
United States or any state; or (iii) by appropriate proceedings
of the board of directors, or the general or limited partners or
managers or other governing body of any US Obligor, authorise the
filing of any such petition, making of such assignment or
commencement of such a proceeding; or
15.1.15 US Bankruptcy
in respect of any US Obligor a court of competent jurisdiction
shall enter an order, judgment or decree appointing a custodian,
receiver, trustee, liquidator or conservator of any US Obligor or
of the whole or any substantial part of its properties, or
approve a petition filed against any US Obligor seeking
reorganisation or arrangement or similar relief under the Federal
Bankruptcy Code or any other applicable law or statute of the
United States or any state; or if, under the provisions of any
other law for the relief or aid of debtors, a court of competent
jurisdiction shall assume custody or control of any US Obligor or
of the whole or any substantial part of its properties; or if
there is commenced against any US Obligor any proceeding for any
of the foregoing relief and such proceeding or petition remains
undismissed for a period of sixty days; or if any US Obligor by
any act indicates its consent to or approval of any such
proceeding or petition; or
15.1.16 ERISA Event
subject to the further proviso to this Clause 15, with respect to
any Obligor, any Material US Subsidiary or any ERISA Affiliate
thereof, an ERISA Event shall occur with respect to an Employee
Plan and there shall result from such ERISA Event a liability
which, individually or in the aggregate, has a material adverse
effect upon the financial condition of such Obligor or such
Material US Subsidiary,
then, and in any such case and at any time thereafter, the Facility Agent
may (and, if so instructed by an Instructing Group, shall) by written
notice to the Borrowers:
15.1.17 Acceleration
(a) declare the Advances to be immediately due and payable (in
the case of an Event of Default specified in Clauses 15.1.1
to 15.1.11 (inclusive) and Clauses 15.1.13 to 15.1.16
(inclusive) above) or due and payable within seven days of
demand of the Facility Agent (in any other case) (whereupon
the same shall become so payable together with accrued
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interest thereon and any other sums then owed by any Obligor
hereunder) or declare the Advances to be due and payable on
demand of the Facility Agent; and/or
(b) require the relevant Borrower to procure that the
obligations of each of the Banks and the Issuing Banks in
respect of each Letter of Credit are promptly reduced to
zero or provide 100% Cash Collateral (in the currency in
which such Letter of Credit is denominated) in a manner
acceptable to each Bank and each Issuing Bank in respect
thereof (whereupon the relevant Borrower shall do so);
and/or
15.1.18 Cancellation
declare that any undrawn portion of the Facilities shall be
cancelled, whereupon the same shall be cancelled and the
Commitment of each Bank shall be reduced to zero
(Provided, however, that notwithstanding the above, if there shall occur an
Event of Default under Clause 15.1.14 or Clause 15.1.15 then the
obligations of the Banks to lend hereunder shall automatically terminate
and any and all of the Advances and other obligations shall be immediately
due and payable without any action by the Facility Agent or any Bank
Provided further, however, that no Event of Default will occur under
Clauses 15.1.4, 15.1.5, 15.1.6, 15.1.7, 15.1.9, 15.1.10, 15.1.11 or 15.1.13
if the events or circumstances referred to in such Clauses occur only in
relation to a member (or members) of the Group which is (or are) not an
Obligor (or Obligors) unless the consolidated or unconsolidated net sales
of each such member of the Group (as determined by reference to the most
recently published audited consolidated financial statements of the
Principal Company), when aggregated with the consolidated or unconsolidated
net sales of each other member of the Group to whom an event or
circumstance of the kind referred to in those Clauses has occurred, exceeds
5% of consolidated net sales of the Group taken as a whole (as determined
by reference to the most recently published audited consolidated financial
statements of the Principal Company).
15.2 Facilities Due on Demand
If, pursuant to Clause 15.1 (Events of Default), the Facility Agent
declares the Advances to be due and payable on demand of the Facility
Agent, then, and at any time thereafter, the Facility Agent may (and, if so
instructed by an Instructing Group, shall) by written notice to the
Borrowers call for repayment of the Advances on such date as it may specify
in such notice (whereupon the same shall become due and payable on such
date together with, in the case of payments in respect of Advances, accrued
interest thereon and any other sums then owed by the Obligors hereunder) or
withdraw its declaration with effect from such date as it may specify in
such notice.
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16. GUARANTEE AND INDEMNITY
16.1 Guarantee by Principal Company
The Principal Company irrevocably and unconditionally guarantees to the
Facility Agent, the Arrangers and the Banks the due and punctual observance
and performance of all the terms, conditions and covenants on the part of
each other Obligor under this Agreement and agrees to pay to the Facility
Agent for its account or for the account of the Banks and the Arrangers
from time to time on demand any and every sum or sums of money which any
such other Obligor is at any time liable to pay to the Facility Agent, the
Arrangers and the Banks or any of them under or pursuant to this Agreement
and which has become due and payable but has not been paid at the time such
demand is made.
16.2 Indemnity by Principal Company
The Principal Company irrevocably and unconditionally agrees as a primary
obligation to indemnify the Facility Agent, the Arrangers and the Banks
from time to time on demand by the Facility Agent from and against any loss
incurred by the Facility Agent, the Arrangers and the Banks or any of them
as a result of any of the obligations of any other Obligor under or
pursuant to this Agreement being or becoming void, voidable, unenforceable
or ineffective as against such Obligor for any reason whatsoever, whether
or not known to the Facility Agent, the Arrangers and the Banks or any of
them or any other person, the amount of such loss being the amount which
the person or persons suffering it would otherwise have been entitled to
recover from such Obligor.
16.3 Additional Security
The obligations of the Guarantor herein contained shall be in addition to
and independent of every other security which the Facility Agent, the
Arrangers and the Banks or any of them may at any time hold in respect of
any obligations of any Obligor hereunder.
16.4 Continuing Obligations
The obligations of the Guarantor herein contained shall constitute and be
continuing obligations notwithstanding any settlement of account or other
matter or thing whatsoever and shall not be considered satisfied by any
intermediate payment or satisfaction of all or any of the obligations of
any Obligor under this Agreement and shall continue in full force and
effect until final payment in full of all amounts owing by each Obligor
hereunder and total satisfaction of all the Obligors' actual and contingent
obligations hereunder.
16.5 Obligations not Discharged
Neither the obligations of the Guarantor herein contained nor the rights,
powers and remedies conferred in respect of the Guarantor upon the Facility
Agent, the Arrangers and the Banks or any of them by this Agreement or by
law shall be discharged, impaired or otherwise affected by:
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16.5.1 the winding-up, dissolution, administration or re-organisation of
any other Obligor or any other person or any change in its
status, function, control or ownership;
16.5.2 any of the obligations of any other Obligor or any other person
hereunder or under any other security taken in respect of any of
its obligations hereunder being or becoming illegal, invalid,
unenforceable or ineffective in any respect;
16.5.3 time or other indulgence being granted or agreed to be granted to
any other Obligor in respect of its obligations hereunder or
under any such other security;
16.5.4 any amendment to, or any variation, waiver or release of, any
obligation of any other Obligor hereunder or under any such other
security;
16.5.5 any failure to take, or fully to take, any security contemplated
hereby or otherwise agreed to be taken in respect of any other
Obligor's obligations hereunder;
16.5.6 any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security
taken in respect of any other Obligor's obligations hereunder; or
16.5.7 any other act, event or omission which, but for this Clause 16.5,
might operate to discharge, impair or otherwise affect any of the
obligations of such Obligor herein contained or any of the
rights, powers or remedies conferred upon the Facility Agent, the
Arrangers and the Banks or any of them by this Agreement or by
law.
16.6 Settlement Conditional
Any settlement or discharge between the Guarantor and the Facility Agent,
the Arrangers and the Banks or any of them shall be conditional upon no
security or payment to the Facility Agent, the Arrangers and the Banks or
any of them by any Obligor or any other person on behalf of such Obligor
being avoided or reduced by virtue of any provisions or enactments relating
to bankruptcy, insolvency, liquidation or similar laws of general
application for the time being in force and, if any such security or
payment is so avoided or reduced, the Facility Agent, the Arrangers and the
Banks shall each be entitled to recover the value or amount of such
security or payment from the Guarantor subsequently as if such settlement
or discharge had not occurred.
16.7 Exercise of Rights
Neither the Facility Agent, the Arrangers and the Banks nor any of them
shall be obliged before exercising any of the rights, powers or remedies
conferred upon them in respect of the Guarantor by this Agreement or by
law:
16.7.1 to make any demand of any other Obligor;
16.7.2 to take any action or obtain judgment in any court against any
other Obligor;
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16.7.3 to make or file any claim or proof in a winding-up or dissolution
of any other Obligor; or
16.7.4 to enforce or seek to enforce any other security taken in respect
of any of the obligations of any other Obligor hereunder.
16.8 Deferral of Borrowers' Rights
The Guarantor agrees that, so long as any amounts are or may be owed by any
other Obligor hereunder or any other Borrower is under any actual or
contingent obligations hereunder, the Guarantor shall not exercise any
rights which it may at any time have by reason of performance by it of its
obligations hereunder:
16.8.1 to be indemnified by any other Obligor; and/or
16.8.2 to claim any contribution from any other Obligor or any other
guarantor of any other Obligor's obligations hereunder; and/or
16.8.3 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Facility Agent,
the Arrangers and the Banks hereunder or of any other security
taken pursuant to, or in connection with, this Agreement by all
or any of the Facility Agent, the Arrangers and the Banks.
16.9 Suspense Accounts
All moneys received, recovered or realised by a Bank by virtue of Clause
16.1 (Guarantee by Principal Company) or Clause 16.2 (Indemnity by
Principal Company) may, in that Bank's discretion, be credited to a
suspense or impersonal account and may be held in such account for so long
as such Bank thinks fit pending the application from time to time (as such
Bank may think fit) of such moneys in or towards the payment and discharge
of any amounts owing by any of the Obligors to such Bank hereunder.
17. DEFAULT INTEREST AND INDEMNITY
17.1 Default Interest Periods
If any sum due and payable by any of the Obligors hereunder is not paid on
the due date therefor in accordance with the provisions of Clause 19
(Payments) or if any sum due and payable by any of the Obligors under any
judgment of any court in connection herewith is not paid on the date of
such judgment, the period beginning on such due date or, as the case may
be, the date of such judgment and ending on the date upon which the
obligation of such Obligor to pay such sum (the balance thereof for the
time being unpaid being herein referred to as an "unpaid sum") is
discharged shall be divided into successive periods, each of which (other
than the first) shall start on the last day of the preceding such period
shall be of such duration (not exceeding three months) as the Facility
Agent may select (except as otherwise provided in this Clause 17).
17.2 Default Interest
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During each such period relating thereto as is mentioned in Clause 17.1
(Default Interest Periods) an unpaid sum referred to in Clause 17.1 shall
bear interest at the rate per annum which is the sum from time to time of
two per cent., the Applicable Margin, Reserve Costs and LIBOR (or, in the
case of an unpaid sum denominated in Euros, EURIBOR) determined in respect
of such unpaid sum for such period provided that:
17.2.1 if, for any such period, LIBOR (or, in the case of an unpaid sum
denominated in Euros, EURIBOR) cannot be determined, the rate of
interest applicable to each part of any unpaid sum owed to any
Bank shall be the sum from time to time of two per cent., the
Applicable Margin, Reserve Costs and the rate per annum (rounded
upwards to the nearest four decimal places) notified (together
with reasonable evidence that such rate is applicable) by such
Bank to the Facility Agent (who shall notify the Borrower
thereof) before the last day of such period to be that which
expresses as a percentage rate per annum the cost to it of
funding from whatever source it may select its portion of such
unpaid sum for such period; and
17.2.2 if such unpaid sum is all or part of a Facility A Advance or a
Facility B Advance which became due and payable on a day other
than the last day of the Term thereof, or if such unpaid sum is
all or part of a Facility A Term Advance which became due and
payable on a day other than the last day of the Interest Period
relating thereto, the first such period applicable thereto shall
be of a duration equal to the unexpired portion of that Term or,
as the case may be, the current Interest Period relating to that
Advance and the rate of interest applicable thereto from time to
time during such period shall be that which exceeds by two per
cent. the rate which would have been applicable to it had it not
so fallen due.
17.3 Payment of Default Interest
Any interest which shall have accrued under Clause 17.2 (Default Interest)
in respect of any sum shall be due and payable and shall be paid by the
Obligor owing such sum at the end of the period by reference to which it is
calculated or on such other date or dates as the Facility Agent may specify
by written notice to such Obligor.
17.4 Broken Periods
If any Bank or the Facility Agent on its behalf receives or recovers all or
any part of a Facility A Advance or a Facility B Advance made by such Bank
otherwise than on the last day of the Term thereof, or if any Bank or the
Facility Agent on its behalf receives or recovers all or any part of a
Facility A Term Advance made by such Bank otherwise than on the last day of
the Interest Period relating thereto, the Obligor to whom such Advance was
made shall pay to the Facility Agent on demand for account of such Bank an
amount equal to the amount (if any) by which (a) the additional interest
(excluding, for the avoidance of doubt, the Applicable Margin and
applicable Reserve Costs) which would have been payable on the amount so
received or recovered had it been received or recovered on the last day of
the Term or, as the case may be, the Interest Period
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relating thereto exceeds (b) the amount which that Bank or the Facility
Agent would be able to obtain in respect of a deposit in the currency of
the amount so received or recovered equal to the principal amount so
received or recovered placed by it with a leading bank in the relevant
interbank market for a period starting on the date of such receipt or
recovery and ending on the last day of the Term or, as the case may be, the
Interest Period relating thereto.
17.5 The Principal Company's Indemnity
The Principal Company undertakes to indemnify:
17.5.1 each of the Facility Agent, the Arrangers and the Banks against
any cost, claim, loss, expense (including legal fees) or
liability together with any VAT thereon, which any of them may
sustain or incur as a consequence of the occurrence of any Event
of Default or any payment default by any of the Obligors
hereunder;
17.5.2 the Facility Agent against any loss it may suffer as a result of
its entering into, or performing, any foreign exchange contract
for the purposes of Clauses 17 through 20 hereof;
17.5.3 each Bank against any loss it may suffer as a result of its
funding an Advance requested by any of the Borrowers hereunder
but not made by reason of the operation of any one or more of the
provisions hereof (other than by reason of wilful misconduct or
gross negligence by that Bank alone); and
17.5.4 each Bank and each Issuing Bank against any loss it may suffer as
a result of issuing or making arrangements to issue a Letter of
Credit requested by any Borrower in a Utilisation Request but not
issued by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of wilful
misconduct or gross negligence by that Bank or that Issuing Bank
alone).
17.6 Unpaid Sums as Advances
Any unpaid sum shall (for the purposes of this Clause 17 and Clause 10.1
(Increased Costs)) be treated as an advance and accordingly in this Clause
17 and Clause 10.1 (Increased Costs) the term "Advance" includes any unpaid
sum and "Term" or "Interest Period", in relation to an unpaid sum, includes
each such period relating thereto as is mentioned in Clause 17.1 (Default
Interest Periods).
18. CURRENCY OF ACCOUNT AND PAYMENT
18.1 Currency of Account
The dollar is the currency of account and payment for each and every sum at
any time due from any of the Obligors hereunder provided that:
18.1.1 each repayment of an Advance or a part thereof shall be made in
the currency in which such Advance is denominated at the time of
that repayment;
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18.1.2 each payment in respect of a Letter of Credit (including any Cash
Collateral in respect of a Letter of Credit) shall be made in the
currency in which such Letter of Credit is denominated;
18.1.3 each payment of interest shall be made in the currency in which
the sum in respect of which such interest is payable is
denominated;
18.1.4 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred;
18.1.5 each payment pursuant to Clause 8.2 (Tax Indemnity) or Clause
10.1 (Increased Costs) shall be made in the currency specified by
the party claiming thereunder; and
18.1.6 any amount expressed to be payable in a currency other than
dollars shall be paid in that other currency.
18.2 Currency Indemnity
If any sum due from any of the Obligors under this Agreement or any order
or judgment given or made in relation hereto has to be converted from the
currency (the "first currency") in which the same is payable hereunder or
under such order or judgment into another currency (the "second currency")
for the purpose of (a) making or filing a claim or proof against such
Obligor, (b) obtaining an order or judgment in any court or other tribunal
or (c) enforcing any order or judgment given or made in relation hereto or
if any such sum is paid in the second currency, the Principal Company shall
indemnify and hold harmless each of the persons to whom such sum is due
from and against any loss suffered as a result of any discrepancy between
(i) the rate of exchange used for such purpose to convert the sum in
question from the first currency into the second currency and (ii) the rate
or rates of exchange at which such person may in the ordinary course of
business purchase the first currency with the second currency upon receipt
of a sum paid to it in satisfaction, in whole or in part, of any such
order, judgment, claim or proof.
19. PAYMENTS
19.1 Payments to the Facility Agent
On each date on which this Agreement requires an amount to be paid by any
Obligor or any of the Banks hereunder, such Obligor or, as the case may be,
such Bank shall make the same available to the Facility Agent:
19.1.1 where such amount is denominated in dollars, by payment in
dollars and in same day funds (or in such other funds as may for
the time being be customary in New York City for the settlement
in New York City of international banking transactions in
dollars) to the Facility Agent's account number 544714108 with
JPMorgan Chase Bank, New York (or such other account or bank as
the Facility Agent may have specified for this purpose); or
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19.1.2 where such amount is denominated in Euros, by payment in Euros
and in immediately available, freely transferable, cleared funds
to such account with such bank in Frankfurt as the Facility Agent
shall have specified for this purpose.
Any payment received by the Facility Agent from any Obligor in accordance
with the foregoing shall, without prejudice to the Facility Agent's or any
Bank's rights to reclaim or reassert its rights to payment from the
Obligors of any amount which the Facility Agent or such Bank is required to
repay to the Obligors for any reason, constitute fulfilment by the Obligors
of its obligation to make such payment hereunder. The parties hereto hereby
acknowledge and agree that the Principal Company may deliver Utilisation
Requests from its branch or office located in Switzerland, request that the
proceeds of Advances be credited to accounts located in Switzerland and
make payments to the Finance Parties from its branch or office located in
Switzerland.
19.2 Alternative Payment Arrangements
If, at any time, it shall become impracticable (by reason of any action of
any governmental authority or any change in law, exchange control
regulations or any similar event) for any or all of the Obligors to make
any payments hereunder in the manner specified in Clause 19.1 (Payments to
the Facility Agent), then such Obligor may agree with each or any of the
Banks alternative arrangements for the payment direct to such Bank of
amounts due to such Bank hereunder provided that, in the absence of any
such agreement with any Bank, such Obligor shall be obliged to make all
payments due to such Bank in the manner specified herein. Upon reaching
such agreement such Obligor and such Bank shall immediately notify the
Facility Agent thereof and shall thereafter promptly notify the Facility
Agent of all payments made direct to such Bank.
19.3 Payments by the Facility Agent
Save as otherwise provided herein, each payment received by the Facility
Agent for the account of another person pursuant to Clause 19.1 (Payments
to the Facility Agent) shall:
19.3.1 in the case of a payment received for the account of any Obligor,
be made available by the Facility Agent as soon as reasonably
possible after receipt thereof to such Obligor by application:
(a) first, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then due from
such Obligor hereunder to the person from whom the amount
was so received or in or towards the purchase of any amount
of any currency to be so applied; and
(b) secondly, in or towards payment (on the date, and in the
currency and funds, of receipt) to such account with such
bank in the principal financial centre of the country of the
currency of such payment as such Obligor shall have
previously notified to the Facility Agent for this purpose;
and
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19.3.2 in the case of any other payment, be made available by the
Facility Agent to the person for whose account such payment was
received (in the case of a Bank, for the account of its relevant
Facility Office) for value the same day by transfer to such
account of such person with such bank in the principal financial
centre of the country of the currency of such payment as such
person shall have previously notified to the Facility Agent.
19.4 No Set-off
All payments required to be made by any of the Obligors hereunder shall be
calculated without reference to any set-off or counterclaim and shall be
made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
19.5 Clawback
Where a sum is to be paid hereunder to the Facility Agent for account of
another person, the Facility Agent shall not be obliged to make the same
available to that other person or to enter into or perform any exchange
contract in connection therewith until it has been able to establish to its
satisfaction that it has actually received such sum, but if it does so and
it proves to be the case that it had not actually received such sum, then
the person to whom such sum or the proceeds of such exchange contract were
so made available shall on request refund the same to the Facility Agent
together with an amount sufficient to indemnify the Facility Agent against
any cost or loss it may have suffered or incurred by reason of its having
paid out such sum or the proceeds of such exchange contract prior to its
having received such sum.
19.6 Application of Payments
If the Facility Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by an Obligor hereunder, the Facility
Agent shall apply that payment towards the obligations of that Obligor
hereunder in the following order (and which order will override any order
or appropriation made by an Obligor):
19.6.1 first, in or towards payment pro rata of all unpaid fees, costs
and expenses of the Facility Agent and the Arrangers under the
Finance Documents;
19.6.2 secondly, in or towards payment pro rata of any demand made by an
Issuing Bank in respect of a payment made or to be made by it
under a Letter of Credit due but unpaid;
19.6.3 thirdly, in or towards payment pro rata of all accrued but unpaid
default interest;
19.6.4 fourthly, in or towards payment pro rata of all accrued but
unpaid interest (other than default interest);
19.6.5 fifthly, in or towards payment pro rata of any principal which is
due but unpaid under this Agreement; and
19.6.6 sixthly, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
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The Facility Agent shall, if so directed by an Instructing Group, vary the
order set out in Clauses 19.6.1 to 19.6.6 above and shall promptly notify
the Principal Company of such variation.
20. SET-OFF
20.1 Contractual Set-off
After an Event of Default has occurred and is continuing, each of the
Obligors authorises each Bank to apply and each Bank shall be entitled to
set-off any credit balance to which such Obligor is entitled on any account
of such Obligor with that Bank in satisfaction of any sum due and payable
from such Obligor to such Bank hereunder but unpaid; for this purpose, each
Bank is authorised to purchase with the moneys standing to the credit of
any such account such other currencies as may be necessary to effect such
application.
20.2 Set-off not Mandatory
No Bank shall be obliged to exercise any right given to it by Clause 20.1
(Contractual Set-off). Any Bank that exercises such a set-off right shall
promptly notify the Facility Agent and the Principal Company of such
exercise.
21. SHARING
21.1 Redistribution of Payments
Subject to Clause 21.3 (Recoveries Through Legal Proceedings), if, at any
time, the proportion which any Bank (a "Recovering Bank") has received or
recovered (whether by payment, the exercise of a right of set-off or
combination of accounts or otherwise) in respect of its portion of any
payment (a "relevant payment") to be made under this Agreement by any of
the Obligors for account of such Recovering Bank and one or more other
Banks is greater (the portion of such receipt or recovery giving rise to
such excess proportion being herein called an "excess amount") than the
proportion thereof so received or recovered by the Bank or Banks so
receiving or recovering the smallest proportion thereof, then:
21.1.1 such Recovering Bank shall pay to the Facility Agent an amount
equal to such excess amount;
21.1.2 there shall thereupon fall due from such Obligor to such
Recovering Bank an amount equal to the amount paid out by such
Recovering Bank pursuant to sub-Clause 21.1.1 above, the amount
so due being, for the purposes hereof, treated as if it were an
unpaid part of such Recovering Bank's portion of such relevant
payment; and
21.1.3 the Facility Agent shall treat the amount received by it from
such Recovering Bank pursuant to sub-Clause 21.1.1 above as if
such amount had been received by it from such Obligor in respect
of such relevant payment and shall pay the same to the persons
entitled thereto (including such Recovering Bank) pro rata to
their respective entitlements thereto,
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provided that to the extent that any excess amount is attributable to a
payment to a Bank pursuant to sub-Clause 19.3.1(a) (Payments by the
Facility Agent) such portion of such excess amount as is so attributable
shall not be required to be shared pursuant hereto.
21.2 Repayable Recoveries
If any sum (a "relevant sum") received or recovered by a Recovering Bank in
respect of any amount owing to it by any of the Obligors becomes repayable
and is repaid by such Recovering Bank, then:
21.2.1 each Bank which has received a share of such relevant sum by
reason of the implementation of Clause 21.1 (Redistribution of
Payments) shall, upon request of the Facility Agent, pay to the
Facility Agent for account of such Recovering Bank an amount
equal to its share of such relevant sum together with such amount
(if any) as is necessary to reimburse the Recovering Bank the
appropriate proportion of any interest it shall have been obliged
to pay when repaying such relevant sum to the relevant Obligor as
aforesaid; and
21.2.2 there shall thereupon fall due from such Obligor to each such
Bank an amount equal to the amount paid out by it pursuant to
sub-Clause 21.2.1 above, the amount so due being, for the
purposes hereof, treated as if it were the sum payable to such
Bank against which such Bank's share of such relevant sum was
applied.
21.3 Recoveries Through Legal Proceedings
If any Bank shall commence any action or proceeding in any court to enforce
its rights hereunder after consultation with the other Banks and, as a
result thereof or in connection therewith, shall receive any excess amount
(as defined in Clause 21.1 (Redistribution of Payments)), then such Bank
shall not be required to share any portion of such excess amount with any
Bank which has the legal right to, but does not, join in such action or
proceeding or commence and diligently prosecute a separate action or
proceeding to enforce its rights in another court.
22. FEES
22.1 Commitment Fee
22.1.1 The Principal Company shall pay to the Facility Agent for the
account of each Bank a commitment fee on the daily undrawn amount
of the Facility A Total Commitments from time to time during the
period (the "Facility A relevant period") beginning on the date
hereof and ending on the Facility A Maturity Date, such
commitment fee to be calculated on the basis of actual days
elapsed and a 360 day year at the rate of 40 per cent. of the
Facility A Applicable Margin from time to time during the
Facility A relevant period and to be payable in arrear on the
last day of each successive period of three months which ends
during the Facility A relevant period and on the Facility A
Maturity Date.
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22.1.2 The Principal Company shall pay to the Facility Agent for the
account of each Bank a commitment fee on the daily undrawn amount
of the Facility B Total Commitments from time to time during the
period (the "Facility B relevant period") beginning on the date
hereof and ending on the Facility B Maturity Date, such
commitment fee to be calculated on the basis of actual days
elapsed and a 360 day year at the rate of 40 per cent. of the
Facility B Applicable Margin from time to time during the
Facility B relevant period and to be payable in arrear on the
last day of each successive period of three months which ends
during the Facility B relevant period and on the Facility B
Maturity Date.
22.1.3 The Principal Company shall pay to the Facility Agent for the
account of each Bank a commitment fee on the daily undrawn amount
of the Facility C Total Commitments from time to time during the
period (the "Facility C relevant period") beginning on the date
hereof and ending on the Facility C Maturity Date, such
commitment fee to be calculated on the basis of actual days
elapsed and a 360 day year at the rate of 40 per cent. of the L/C
Commission Rate from time to time during the Facility C relevant
period and to be payable in arrear on the last day of each
successive period of three months which ends during the Facility
C relevant period and on the Facility C Maturity Date.
22.2 Participation, Book-Running and Arrangement Fees
The Principal Company shall pay to the Arrangers or the Facility Agent (as
the case may be) the fees specified in the fee letter from the Arrangers to
the Principal Company dated 7 June 2002 at the times, and in the amounts,
specified in such letters.
22.3 Agency Fee
The Principal Company shall pay to the Facility Agent for its own account
the agency fees specified in the letter of even date herewith from the
Facility Agent to the Principal Company at the times, and in the amounts,
specified in such letter.
22.4 Utilisation Fee
The Principal Company shall pay to the Facility Agent for each Bank a
utilisation fee (the "33% Utilisation Fee") with respect to each day upon
which the Outstandings exceeds 33 per cent. of the Total Commitments. The
33% Utilisation Fee will be calculated on a daily basis and a 360 day year
at the rate of 0.075 per cent. per annum of the Outstandings on such day,
and shall be payable quarterly in arrear and on the Maturity Date for each
Facility. The Principal Company shall pay to the Facility Agent for each
Bank a utilisation fee (the "66% Utilisation Fee") with respect to each day
upon which the Outstandings exceeds 66 per cent. of the Total Commitments.
The 66% Utilisation Fee will be calculated on a daily basis and a 360 day
year at the rate of 0.100 per cent. per annum of the Outstandings on such
day, and shall be payable quarterly in arrear and on the Maturity Date for
each Facility. For the avoidance of doubt, the 66% Utilisation Fee is to
replace and is not in addition to the 33% Utilisation Fee.
22.5 Term-Out Fee
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22.5.1 If the Principal Company delivers a Conversion Request under
Clause 6.13.1(a), the Principal Company shall, on or before the
Facility A Maturity Date, pay to the Facility Agent for the
account of each Bank a fee in the amount of 0.05% of the
principal amount of the Facility A Advance(s) to be converted
pursuant to such Conversion Request.
22.5.2 If the Principal Company delivers a Conversion Request and
Utilisation Request for the making of a Facility A Term Advance
under Clause 6.13.1(b), the Principal Company shall, on or before
the Facility A Maturity Date, pay to the Facility Agent for the
account of each Bank a fee in the amount of 0.05% of the
principal amount of the Facility A Advance(s) to be made pursuant
to such Utilisation Request.
22.6 Letter of Credit Fees
The Principal Company shall, in respect of each Letter of Credit issued at
the request of any Borrower, be obliged to pay to the Facility Agent for
the account of each Bank (for distribution in proportion to each Bank's
participation under the relevant Letter of Credit), a letter of credit fee
at the L/C Commission Rate on the face amount of the relevant Letter of
Credit. Such letter of credit fee shall be paid in arrears in respect of
each successive period of three months (or such shorter period as shall end
on the Expiry Date relating to such Letter of Credit) which begins during
the Term of the relevant Letter of Credit, each payment of such letter of
credit commission to be made on the last day of each such period.
22.7 Fronting Fee
The Principal Company shall negotiate in good faith with any proposed
Issuing Bank and agree a fee to be paid to such Issuing Bank in respect of
its issuing any Letter of Credit. Such fee shall be payable in arrears in
respect of each successive period of three months (or such shorter period
as shall end on the Expiry Date of such Letter of Credit) which begins
during the Term of such Letter of Credit, such fee to be payable directly
to such Issuing Bank on the last day of each such period. In addition, the
Principal Company shall compensate each Issuing Bank in full on demand by
such Issuing Bank for all customary administrative, issuance, amendment,
payment and negotiation charges incurred or chargeable by it in connection
with any Letter of Credit issued by it.
23. COSTS AND EXPENSES
23.1 Transaction Expenses
The Principal Company shall, on demand of the Facility Agent, reimburse
each of the Facility Agent and the Arrangers for all reasonable legal and
out-of-pocket costs and expenses (including printing and publicity costs)
together with any VAT thereon incurred by it in connection with the
negotiation, preparation and execution of this Agreement and the completion
of the transactions herein contemplated.
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23.2 Preservation and Enforcement of Rights
The Principal Company shall, from time to time on demand of the Facility
Agent, reimburse each of the Facility Agent, the Arrangers, the Issuing
Banks and the Banks for all costs and expenses (including legal fees)
together with any VAT thereon incurred in or in connection with the
preservation and/or enforcement of any of the rights of any of the Facility
Agent, the Issuing Banks, the Arrangers and the Banks under this Agreement.
23.3 Stamp Taxes
The Principal Company shall pay all stamp, registration and other taxes to
which this Agreement is or at any time may be subject and shall, from time
to time on demand of the Facility Agent, indemnify each of the Facility
Agent, the Issuing Banks, the Arrangers and the Banks against any
liabilities, costs, claims and expenses resulting from any failure to pay
or any delay in paying any such tax.
23.4 Facility Agent's Management Time
Any amount payable to the Facility Agent under this Agreement by way of
indemnity or reimbursement in respect of any costs, losses, expenses or
other amounts shall include the cost of utilising the Facility Agent's
management time or other resources and will be calculated on the basis of
such reasonable daily or hourly rates as the Facility Agent may notify to
the Principal Company and the Banks, and is in addition to any fee paid or
payable to the Facility Agent under Clause 22 (Fees).
23.5 Banks' Liabilities for Costs
If the Principal Company fails to perform any of its obligations under this
Clause 23, each Bank shall, in its Proportion, indemnify each of the
Facility Agent and the Arrangers against any loss incurred by either of
them as a result of such failure and the Principal Company shall forthwith
reimburse each Bank for any payment made by it pursuant to this Clause
23.5.
24. THE FACILITY AGENT, THE ARRANGERS AND THE BANKS
24.1 Appointment of the Facility Agent
Each of the Arrangers, the Issuing Banks and the Banks hereby appoints the
Facility Agent to act as its agent in connection herewith and authorises
the Facility Agent to exercise such rights, powers, authorities and
discretions as are specifically delegated to the Facility Agent by the
terms hereof together with all such rights, powers, authorities and
discretions as are reasonably incidental thereto.
24.2 Facility Agent's Discretions
The Facility Agent may:
24.2.1 assume that:
(a) any representation made by any of the Obligors in connection
herewith is true;
(b) no Event of Default or Potential Event of Default has
occurred;
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(c) none of the Obligors is in breach of or default under its
obligations hereunder; and
(d) any right, power, authority or discretion vested herein upon
an Instructing Group, the Banks or any other person or group
of persons has not been exercised
unless the Facility Agent has, in its capacity as agent
hereunder, actual knowledge of or received actual notice to the
contrary from any other party hereto;
24.2.2 assume that the Facility Office of each Bank is that identified
with its signature below (or, in the case of a Transferee, at the
end of the Transfer Certificate to which it is a party as
Transferee) until it has received from such Bank a notice
designating some other office of such Bank to replace any such
Facility Office and act upon any such notice until the same is
superseded by a further such notice;
24.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services
may to it seem necessary, expedient or desirable and rely upon
any advice so obtained;
24.2.4 rely as to any matters of fact which might reasonably be expected
to be within the knowledge of any of the Obligors upon a
certificate signed by or on behalf of such Obligor;
24.2.5 rely upon any communication or document believed by it to be
genuine;
24.2.6 refrain from exercising any right, power or discretion vested in
it as agent hereunder unless and until instructed by an
Instructing Group as to whether or not such right, power or
discretion is to be exercised and, if it is to be exercised, as
to the manner in which it should be exercised; and
24.2.7 refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding arising
out of or in connection with this Agreement until it shall have
received such security as it may require (whether by way of
payment in advance or otherwise) for all costs, claims, losses,
expenses (including legal fees) and liabilities together with any
VAT thereon which it will or may expend or incur in complying
with such instructions.
24.3 Facility Agent's Obligations
The Facility Agent shall:
24.3.1 promptly inform each Bank (and, where appropriate, each Issuing
Bank) of the contents of any notice or document received by it in
its capacity as Facility Agent from any of the Obligors
hereunder;
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24.3.2 promptly notify each Bank (and, where appropriate, each Issuing
Bank) of the occurrence of any Event of Default, any Potential
Event of Default or any default by any of the Obligors in the due
performance of or compliance with its obligations under this
Agreement, in each case of which the Facility Agent has actual
knowledge or received actual notice from any other party hereto;
24.3.3 save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an Instructing
Group, which instructions shall be binding on the Arrangers, the
Issuing Banks and all of the Banks; and
24.3.4 if so instructed by an Instructing Group, refrain from exercising
any right, power or discretion vested in it as agent hereunder
unless such right, power or discretion is vested in the Facility
Agent in its individual capacity hereunder or is a right, power
or discretion that may be exercised against the Arrangers, the
Issuing Banks, the Banks or any of them.
24.4 Excluded Obligations
Notwithstanding anything to the contrary expressed or implied herein,
neither the Facility Agent nor any of the Arrangers shall:
24.4.1 be bound to enquire as to:
(a) whether or not any representation made by any of the
Obligors in connection herewith is true;
(b) the occurrence or otherwise of any Event of Default or
Potential Event of Default;
(c) the performance by any of the Obligors of its obligations
hereunder; or
(d) any breach of or default by any of the Obligors of or under
its obligations hereunder;
24.4.2 be bound to account to any Bank or Issuing Bank for any sum or
the profit element of any sum received by it for its own account;
24.4.3 be bound to disclose to any other person any information relating
to any member of the Group if such disclosure would or might in
its opinion constitute a breach of any law or regulation or be
otherwise actionable at the suit of any person; or
24.4.4 be under any obligations or fiduciary duties other than those for
which express provision is made herein.
24.5 Indemnification
Each Bank shall, in its Proportion, from time to time on demand by the
Facility Agent, indemnify the Facility Agent, against any and all costs,
claims, losses, expenses (including legal fees) and liabilities together
with any VAT thereon which the Facility Agent may incur in acting in its
capacity as facility agent hereunder to the extent the
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same are not paid by any of the Obligors and the Principal Company shall,
on first demand of such Bank, reimburse such Bank in full for any monies
paid out by it pursuant to this Clause 24.5. Each Bank shall, following any
payment made by it under this Clause 24.5, be entitled to recover from the
Facility Agent any amount which it establishes has been paid by it to the
Facility Agent pursuant to this Clause 24.5 in respect of costs, claims,
losses, expenses (including legal fees) and liabilities incurred by the
Facility Agent as a result of the Facility Agent's own gross negligence or
wilful misconduct in acting in its capacity as facility agent hereunder.
The Principal Company shall, following any payment made by it under this
Clause 24.5, be entitled to recover from each relevant Bank any amount
which it establishes has been paid by it to such Bank pursuant to this
Clause 24.5 in respect of costs, claims, losses, expenses (including legal
fees) and liabilities incurred by the Facility Agent as a result of the
Facility Agent's own gross negligence or wilful misconduct in acting in its
capacity as facility agent hereunder.
24.6 Exclusion of Liabilities
None of the Facility Agent and the Arrangers accepts any responsibility for
the accuracy and/or completeness of any information supplied by any of the
Obligors in connection herewith or for the legality, validity,
effectiveness, adequacy or enforceability of this Agreement and none of the
Facility Agent and the Arrangers shall be under any liability as a result
of taking or omitting to take any action in relation to this Agreement,
save in the case of gross negligence or wilful misconduct.
24.7 No Actions
Each of the Banks and the Issuing Banks agrees that it will not assert or
seek to assert against any director, officer or employee of the Facility
Agent or any Arranger any claim it might have against any of them in
respect of the matters referred to in Clause 24.6 (Exclusion of
Liabilities).
24.8 Business with the Group
Each of the Facility Agent and the Arrangers may accept deposits from, lend
money to and generally engage in any kind of banking or other business with
any member of the Group.
24.9 Resignation
The Facility Agent may resign its appointment hereunder at any time without
assigning any reason therefor by giving not less than thirty days' prior
written notice to that effect to each of the other parties hereto provided
that no such resignation shall be effective until a successor for the
Facility Agent is appointed in accordance with the succeeding provisions of
this Clause 24.
24.10 Removal of Facility Agent
An Instructing Group may remove the Facility Agent from its appointment
hereunder as Facility Agent at any time by giving not less than thirty
days' prior written notice to that effect to each of the other parties
hereto provided that no such removal shall be effective until a successor
for the Facility Agent is appointed in accordance with the succeeding
provisions of this Clause 24.
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24.11 Successor Facility Agent
If the Facility Agent gives notice of its resignation pursuant to Clause
24.9 (Resignation), then any reputable and experienced bank or other
financial institution may be appointed as a successor to the Facility Agent
by an Instructing Group during the period of such notice but, if no such
successor is so appointed, the Facility Agent may appoint such a successor
itself.
24.12 New Facility Agent
If an Instructing Group removes the Facility Agent from its appointment
hereunder pursuant to Clause 24.10 (Removal of Facility Agent), then any
reputable and experienced bank or other financial institution may be
appointed, after consultation with the Principal Company, as a successor to
the Facility Agent by an Instructing Group.
24.13 Rights and Obligations
If a successor to the Facility Agent is appointed under the provisions of
Clause 24.11 (Successor Facility Agent) or Clause 24.12 (New Facility
Agent), then (a) the retiring Facility Agent shall be discharged from any
further obligation hereunder but shall remain entitled to the benefit of
the provisions of this Clause 24 and (b) its successor and each of the
other parties hereto shall have the same rights and obligations amongst
themselves as they would have had if such successor had been a party
hereto.
24.14 Own Responsibility
It is understood and agreed by each Bank and each Issuing Bank that it has
itself been, and will continue to be, solely responsible for making its own
independent appraisal of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of each Borrower
and the Group and, accordingly, each Bank and each Issuing Bank warrants to
each of the Facility Agent and the Arrangers that it has not relied on and
will not hereafter rely on any of the Facility Agent and the Arrangers:
24.14.1 to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by any of the Obligors
in connection with this Agreement or the transactions herein
contemplated (whether or not such information has been or is
hereafter circulated to such Bank or such Issuing Bank by the
Facility Agent or any Arranger); or
24.14.2 to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature
of any member of the Group.
24.15 Separation of Departments
In acting as Facility Agent and/or Arranger for the Banks and the Issuing
Banks, the agency department of each of the Facility Agent and the
Arrangers shall be treated as a separate entity from any other of its
divisions or departments and, notwithstanding the foregoing provisions of
this Clause 24, in the event that the Facility Agent or, as the case may
be, an Arranger should act for any member of the Group in any capacity in
relation to any other matter, any information given by such member of the
Group to
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the Facility Agent or, as the case may be, such Arranger in such other
capacity may be treated as confidential by the Facility Agent or, as the
case may be, such Arranger and shall not constitute actual knowledge of any
matter for the purposes of Clause 24.2.
24.16 Confidential Information
Notwithstanding anything to the contrary expressed or implied herein and
without prejudice to the provisions of Clause 24.15 (Separation of
Departments), the Facility Agent shall not as between itself and the Banks
and/or the Issuing Banks be bound to disclose to any Bank or any Issuing
Banks or any other person any information which is supplied by any member
of the Group to the Facility Agent in its capacity as facility agent
hereunder for the Banks and/or the Issuing Banks and which is identified by
such member of the Group at the time it is so supplied as being
confidential information provided that the consent of the relevant member
of the Group to such disclosure shall not be required in relation to any
information which in the opinion of the Facility Agent relates to an Event
of Default or Potential Event of Default or in respect of which the Banks
or the Issuing Banks have given a confidentiality undertaking in a form
satisfactory to the Facility Agent and the relevant member of the Group.
25. ASSIGNMENTS AND TRANSFERS
25.1 Binding Agreement
This Agreement shall be binding upon and enure to the benefit of each party
hereto and its or any subsequent successors (including, without limitation,
any entity which assumes the rights and obligations of any party hereto by
operation of the law of the jurisdiction of incorporation or domicile of
such party), Transferees and assigns.
25.2 No Assignments and Transfers by the Obligors
None of the Obligors shall be entitled to assign or transfer all or any of
its rights, benefits and obligations hereunder.
25.3 Assignment and Transfers by Banks
Any Bank may, at any time, assign all or (subject to the provisos below)
any of its rights and benefits hereunder or transfer in accordance with
Clause 25.5 all or any of its rights, benefits and obligations hereunder
(i) to any holding company, any of its wholly-owned subsidiaries or any
affiliate or (ii) with the prior written consent of the Principal Company
(such consent not to be unreasonably withheld or delayed and the Principal
Company will be deemed to have given its consent five business days after
the Facility Agent has notified it in writing of the proposed transfer or
assignment unless such consent is expressly refused by the Principal
Company in writing within that time) to any other person provided that
25.3.1 (without prejudice to a Bank's right to assign and/or transfer
all of its rights, benefits and obligations hereunder in
accordance with this Clause 25.3) a Bank shall be entitled to
assign and/or transfer part of its Participation hereunder only
in an amount equal to or exceeding $ 5,000,000 and then only if
it retains a Participation of not less than $ 7,500,000 unless an
Event of Default has
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occurred and is continuing, in which case a Bank shall not be
required to retain a Participation of not less than $ 7,500,000;
and
25.3.2 the prior written consent of the relevant Issuing Bank is
required for an assignment or transfer by a Bank in relation to a
Letter of Credit.
25.4 Assignments by Banks
If any Bank assigns all or any of its rights and benefits hereunder in
accordance with Clause 25.3 (Assignments and Transfers by Banks), then,
unless and until the assignee has agreed with the Principal Company, the
Facility Agent, the Arrangers and the other Banks that it shall be under
the same obligations towards each of them as it would have been under if it
had been an original party hereto as a Bank (whereupon such assignee shall
become a party hereto as a "Bank"), the Facility Agent, the Arrangers and
the other Banks shall not be obliged to recognise such assignee as having
the rights against each of them which it would have had if it had been such
a party hereto. The Assignee shall be responsible for giving notice of the
assignment to the relevant Obligors.
25.5 Transfers by Banks
If any Bank wishes to transfer all or any of its rights, benefits and/or
obligations hereunder as contemplated in Clause 25.3 (Assignments and
Transfers by Banks), then such transfer may be effected by the delivery to
and signature by the Facility Agent on behalf of the Obligors (and each of
the Obligors hereby irrevocably appoints the Facility Agent as its agent
for the purposes of such delivery and signature of any Transfer
Certificate) of a duly completed and duly executed Transfer Certificate in
which event it is hereby irrevocably agreed by each of the Obligors in
advance that, on the later of the Transfer Date specified in such Transfer
Certificate and the fifth business day after (or such earlier business day
endorsed by the Facility Agent on such Transfer Certificate falling on or
after) the date of delivery of such Transfer Certificate to and signature
by the Facility Agent on behalf of the Obligors (which signature the
Facility Agent agrees to complete promptly upon receipt of the relevant
Transfer Certificate in accordance with this Clause 25):
25.5.1 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights, benefits and obligations
hereunder each of the Obligors and such Bank shall be released
from further obligations towards one another hereunder and their
respective rights against one another shall be cancelled (such
rights, benefits and obligations being referred to in this Clause
25.5 as "discharged rights and obligations");
25.5.2 each of the Obligors and the Transferee party thereto shall
assume obligations towards one another and/or acquire rights
against one another which differ from such discharged rights and
obligations only insofar as such Obligor and such Transferee have
assumed and/or acquired the same in place of such Obligor and
such Bank;
25.5.3 the Facility Agent, the Arrangers, such Transferee, the other
Banks and any relevant Issuing Bank shall acquire the same rights
and benefits and assume
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the same obligations between themselves as they would have
acquired and assumed had such Transferee been an original party
hereto as a Bank with the rights, benefits and/or obligations
acquired or assumed by it as a result of such transfer;
25.5.4 such Transferee shall become a party hereto as a "Bank" and will
also be deemed to have appointed the Facility Agent as its agent
in accordance with the terms of this Agreement; and
25.5.5 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its Commitment, the Transferee shall
replace such Bank in respect of any relevant Letter of Credit.
25.6 Transfer Fee
On the date upon which a transfer takes effect pursuant to Clause 25.5
(Transfers by Banks) the Transferee in respect of such transfer shall pay
to the Facility Agent for its own account a transfer fee of US$1,500. All
costs of any transfer of any Bank's rights, benefits and obligations
hereunder to any Transferee (including, without limitation, any stamp duty)
shall be for the account of such Bank.
25.7 Excess Amounts
If any Bank assigns or transfers any of its rights, benefits and
obligations hereunder or changes its Facility Office and there arises (by
reason of circumstances existing at the date of such assignment or transfer
or which are not existing at such date but which are scheduled to take
effect or in respect of which there is a general consensus that they will
take effect after the date thereof) an obligation on the part of a Borrower
to such Bank or its assignee or transferee or any other person of any
amount in excess of the amount it would have been obliged to pay but for
such assignment, transfer or change, then such Borrower shall not be
obliged to pay the amount of such excess.
25.8 Disclosure of Information
Any Bank may disclose to any actual or potential assignee or Transferee or
to any person who may otherwise enter into contractual relations with such
Bank in relation to this Agreement such information about the Obligors and
the Group as such Bank shall consider appropriate and each Bank shall also
be entitled to disclose any such information:
25.8.1 if required by applicable law or applicable regulations of any
relevant supervising authorities, provided that each such Bank
will deliver prompt written notice of such requirement to the
Principal Company and each such Bank agrees to cooperate fully if
the Principal Company seeks a protective order in respect of such
disclosure;
25.8.2 in connection with any legal proceedings taken against any of the
Obligors in connection with this Agreement;
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25.8.3 to any of its auditors or legal counsel (it being understood that
such auditors or legal counsel will be informed of the
confidential nature of such information); or
25.8.4 which is in the public domain (other than as a result of a
disclosure in breach of this Agreement).
26. CALCULATIONS AND EVIDENCE OF DEBT
26.1 Basis of Accrual
Interest and the commitment fee shall accrue from day to day and shall be
calculated on the basis of a year of 360 days (or, if market practice
differs, in accordance with market practice) and the actual number of days
elapsed.
26.2 Letter of Credit Commission
Letter of Credit Commission in respect of any Letter of Credit, and any
period of the Term thereof determined pursuant to Clause 22.6 (Letter of
Credit Fees), shall be calculated on the basis of a year of 360 days and
the actual number of days in such period.
26.3 Quotations
If on any occasion a Reference Bank or Bank fails to supply the Facility
Agent with a quotation required of it under the foregoing provisions of
this Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Facility Agent.
26.4 Evidence of Debt
Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it hereunder.
26.5 Control Accounts
The Facility Agent shall maintain on its books a control account or
accounts in which shall be recorded (a) the amount of any Advance made or
arising hereunder (and the name of the Bank to whom such sum relates and
each Bank's share therein) and the face amount of any Letter of Credit
issued (and each Bank's share therein) as the case may be, (b) the amount
of all principal, interest and other sums due or to become due from any of
the Obligors to any of the Banks hereunder and each Bank's share therein
and (c) the amount of any sum received or recovered by the Facility Agent
hereunder and each Bank's share therein. The Facility Agent shall, upon
request of any Borrower, deliver to such Borrower statements of the
accounts referred to in this Clause 26.5.
26.6 Prima Facie Evidence
In any legal action or proceeding arising out of or in connection with this
Agreement, the entries made in the accounts maintained pursuant to Clause
26.4 (Evidence of Debt) and Clause 26.5 (Control Accounts) shall be prima
facie evidence of the existence and amounts of the obligations of the
Obligors therein recorded.
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26.7 Certificates of Banks
A certificate of a Bank as to (a) the amount by which a sum payable to it
hereunder is to be increased under Clause 8.1 (Tax Gross-up) or (b) the
amount for the time being required to indemnify it against any such cost,
payment or liability as is mentioned in Clause 8.2 (Tax Indemnity) or
Clause 10.1 (Increased Costs) or Clause 17.4 (Broken Periods) or Clause
18.2 (Currency Indemnity) and a certificate by an Issuing Bank as to the
amount paid out by that Issuing Bank in respect of any Letter of Credit
shall in each case be conclusive evidence for the purposes of this
Agreement save in the case of manifest error.
26.8 Facility Agent's Certificates
A certificate of the Facility Agent as to the amount at any time due from
any Borrower hereunder or the amount which, but for any of the obligations
of any Borrower hereunder being or becoming void, voidable, unenforceable
or ineffective, at any time would have been due from such Borrower
hereunder shall, in the absence of manifest error, be conclusive for the
purposes of Clause 16 (Guarantee).
26.9 Counterparts
This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts, each of which when so executed
and delivered shall be an original but all counterparts together shall
constitute one and the same instrument.
27. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
27.1 Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of any
party hereto, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any other
right or remedy. The rights and remedies herein provided are cumulative and
not exclusive of any rights or remedies provided by law.
27.2 Partial Invalidity
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions hereof nor
the legality, validity or enforceability of such provision under the law of
any other jurisdiction shall in any way be affected or impaired thereby.
28. AMENDMENTS
28.1 Amendments
With the prior written consent of an Instructing Group, the Facility Agent
and the Principal Company (acting for and on behalf of all the Obligors)
may from time to time enter into written amendments, supplements or
modifications hereto for the purpose of adding any provisions to this
Agreement or changing in any manner the rights of all or any of the
Facility Agent, the Arrangers and the Banks or of any Obligor hereunder,
and, at the request of the Principal Company with the prior consent of an
Instructing
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Group, the Facility Agent on behalf of the Arrangers and the Banks may
execute and deliver to the Principal Company a written instrument waiving
prospectively or retrospectively, on such terms and conditions as the
Facility Agent may specify in such instrument, any of the requirements of
this Agreement or any Event of Default or Potential Event of Default and
its consequences Provided, however, that:
28.1.1 no such waiver and no such amendment, supplement or modification
shall without the prior consent of all the Banks:
(a) amend or modify the definitions of Additional Borrower,
Instructing Group, Applicable Margin, Facility A Applicable
Margin, Facility B Applicable Margin, Maturity Date,
Facility A Maturity Date, Facility A Termination Date,
Facility B Maturity Date, Facility C Maturity Date, or L/C
Commission Rate;
(b) amend, modify or waive any provision which requires the
prior written consent of the Banks, Clause 22 (Fees),
Clause 25.2 (No Assignments and Transfers by the Obligors)
or this Clause 28;
(c) change the principal or currency of any Advance or Letter of
Credit or extend the Term or Interest Period relating
thereto;
(d) decrease the amount of, or change the currency of or extend
the date for any payment of interest, fees or any other
amount payable to all or any of the Facility Agent, the
Arrangers and the Banks hereunder;
(e) increase the amount of the Total Commitments; or
(f) release the Guarantor from all or any of its obligations
hereunder;
28.1.2 notwithstanding any other provision hereof, the Facility Agent
shall not be obliged to agree to any such waiver, amendment,
supplement or modification if the same would:
(a) amend, modify or waive any provision of this Clause 28; or
(b) otherwise amend, modify or waive any of the Facility
Agent's, an Issuing Bank's or the Arrangers' rights
hereunder or subject the Facility Agent, that Issuing Bank
or, as the case may be, any Arranger to any additional
obligations hereunder.
28.1.3 The Facility Agent shall promptly notify the Banks of any written
amendments, supplements or modifications hereto which have been
made with the consent of an Instructing Group and the Borrower.
28.2 Amendment Costs
If the Principal Company requests any amendment, supplement, modification
or waiver in accordance with Clause 28.1, then the Principal Company shall,
on demand of the Facility Agent, reimburse the Facility Agent for all
reasonable costs and expenses
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(including reasonable legal fees) together with any VAT thereon incurred by
the Facility Agent in the negotiation, preparation and execution of any
written instrument contemplated by Clause 28.1.
29. NOTICES
29.1 Communications in Writing
Each communication to be made hereunder shall be made in writing but,
unless otherwise stated, may be made by telefax or letter or (to the extent
that the relevant Party has specified such address pursuant to Clause 29.2
(Delivery)) by e-mail, and in the case of the notification of rates of
interest by the Facility Agent pursuant to Clause 5.2 (Notification) and in
the case of the delivery of any document by the Facility Agent pursuant to
Clause 24.3.1 (Facility Agent's Obligations), the Facility Agent may refer
the relevant party or parties (by fax, letter or telex (or if so specified)
email) to a web site and to the location of the relevant information on
such web site in discharge of such notification or delivery obligation
provided that the Borrowers shall indemnify each of the Facility Agent, the
Arrangers, the Issuing Banks and the Banks against any cost, claims, loss,
expense (including legal fees) or liability together with any VAT thereon
which any of them may sustain or incur as a consequence of any telefax or
email communication originating from any Borrower not being actually
received by or delivered to the intended recipient thereof or any telefax
or e-mail communication purporting to originate from any Borrower being
made or delivered fraudulently.
29.2 Delivery
Any communication or document (unless made by telefax, e-mail or telephone)
to be made or delivered by one person to another pursuant to this Agreement
shall (unless that other person has by fifteen days' written notice to the
Facility Agent specified another address) be made or delivered to that
other person at the address identified with its signature below (or, in the
case of a Transferee, at the end of the Transfer Certificate to which it is
a party as Transferee) and shall be deemed to have been made or delivered
when left at that address or (as the case may be) ten days after being
deposited in the post postage prepaid in an envelope addressed to it at
that address provided that:
29.2.1 any communication or document to be made or delivered to the
Facility Agent shall be effective only when received by the
Facility Agent and then only if the same is expressly marked for
the attention of the department or officer identified with the
Facility Agent's signature below (or such other department or
officer as the Facility Agent shall from time to time specify for
this purpose); and
29.2.2 any communication or document to be made or delivered to any Bank
having more than one Facility Office shall (unless such Bank has
by fifteen days' written notice to the Facility Agent specified
another address) be made or delivered to such Bank at the address
identified with its signature below (or, in the case of a
Transferee, at the end of the Transfer Certificate to which it is
a party as Transferee) as its main Facility Office.
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29.3 Communications by telephone or telefax
Where any provision of this Agreement specifically contemplates telephone
or telefax communication made by one person to another, such communication
shall be made to that other person at the relevant telephone number
specified by it from time to time for the purpose and shall be deemed to
have been received when made (in the case of any communication by
telephone) or when transmission of such telefax communication has been
received in legible form (in the case of any telecommunication by telefax).
Each such telefax communication, if made to the Facility Agent by a
Borrower shall be signed by the person or persons authorised by such
Borrower in the certificate delivered pursuant to Schedule 3 (Condition
Precedent Documents) and shall be expressed to be for the attention of the
department or officer whose name has been notified for the time being for
that purpose by the Facility Agent to such Borrower.
29.4 Communication by Email
Where it is reasonable in all the circumstances to send any communication
or document by email, any communication or document made or delivered by
one person to another under or in connection with the Finance Documents by
email will only be effective when sent in legible form, but only if (i)
following transmission, the sender receives a confirmation message that the
e-mail has been received and (ii) if a particular department or officer is
specified as part of its address details pursuant to Clause 29.2
(Delivery), if the e-mail is addressed to that department or officer.
Notwithstanding the foregoing or anything else contained herein, the
following communications and documents may not be sent by e-mail: Transfer
Certificates, Utilisation Requests and any other communication, document,
notification or correspondence of which the Facility Agent, acting
reasonably, requests a hard-copy or an originally signed copy.
29.5 English Language
Each communication and document made or delivered by one party to another
pursuant to this Agreement shall be in the English language or accompanied
by a translation thereof into English certified (by an officer of the
person making or delivering the same) as being a true and accurate
translation thereof.
30. LAW AND JURISDICTION
30.1 English Law
This Agreement shall be governed by, and shall be construed in accordance
with, English law.
30.2 English Courts
Each of the parties hereto irrevocably agrees for the benefit of each of
the Facility Agent, the Arrangers, the Issuing Banks and the Banks that the
courts of England shall have non-exclusive jurisdiction to hear and
determine any suit, action or proceeding, and to settle any disputes, which
may arise out of or in connection with this Agreement (respectively
"Proceedings" and "Disputes") and, for such purposes, irrevocably submits
to the jurisdiction of such courts.
30.3 Appropriate Forum
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Each of the Obligors irrevocably waives any objection which it might now or
hereafter have to the courts referred to in Clause 30.2 (English Courts),
being nominated as the forum to hear and determine any Proceedings and to
settle any Disputes and agrees not to claim that any such court is not a
convenient or appropriate forum.
30.4 Service of Process
Each of the Obligors agrees that the process by which any suit, action or
proceeding in England is begun may be served on it by being delivered to
Hackwood Secretaries Limited. If the appointment of the person mentioned in
this Clause 30.4 ceases to be effective each Obligor shall immediately
appoint a further person in England to accept service of process on its
behalf in England and, failing such appointment within 15 days, the
Facility Agent shall be entitled to appoint such a person by notice to such
Obligor. Nothing contained herein shall affect the right to serve process
in any other manner permitted by law.
30.5 Non-exclusive Submissions
The submission to the jurisdiction of the courts referred to in Clause 30.2
(English Courts) shall not (and shall not be construed so as to) limit the
right of the Facility Agent, the Arrangers, the Issuing Banks and the Banks
or any of them to take Proceedings against any of the Obligors in any other
court of competent jurisdiction nor shall the taking of Proceedings in any
one or more jurisdictions preclude the taking of Proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent permitted
by applicable law.
30.6 Consent to Enforcement
Each of the Obligors hereby consents generally in respect of any
Proceedings to the giving of any relief or the issue of any process in
connection with such Proceedings including, without limitation, the making,
enforcement or execution against any property whatsoever (irrespective of
its use or intended use) of any order or judgment which may be made or
given in such Proceedings.
30.7 Waiver of Immunity
To the extent that any of the Obligors may in any jurisdiction claim for
itself or its assets immunity from suit, execution, attachment (whether in
aid of execution, before judgment or otherwise) or other legal process and
to the extent that in any such jurisdiction there may be attributed to
itself or its assets such immunity (whether or not claimed), such Obligor
hereby irrevocably agrees and shall be obliged for the purposes of this
Agreement not to claim and hereby irrevocably waives such immunity to the
full extent permitted by the laws of such jurisdiction and, in particular,
to the intent that in any Proceedings taken in New York the foregoing
waiver of immunity shall have effect under and be construed in accordance
with the United States Foreign Sovereign Immunities Act of 1976.
30.8 Waiver of Jury Trial
EACH OF THE OBLIGORS AND EACH OF THE FINANCE PARTIES MUTUALLY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY
JURY IN
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RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER FINANCE DOCUMENTS CONTEMPLATED TO BE
EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY,
INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS OR ACTIONS OF ANY FINANCE PARTY RELATING TO THE ADMINISTRATION
OF THE LOANS OR ADVANCES OR ANY LETTER OF CREDIT OR ENFORCEMENT OF THIS
AGREEMENT OR THE FINANCE DOCUMENTS, AND AGREES THAT NO PARTY WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW. EACH OBLIGOR
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY FINANCE PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH FINANCE PARTY WOULD NOT,
IN TILE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR EACH FINANCE PARTY TO ENTER
INTO THIS AGREEMENT, MAKE THE LOANS AND ADVANCES AND ISSUE OR PARTICIPATE
IN ANY LETTER OF CREDIT.
30.9 Pledge to the Federal Reserve
Any Bank may at any time pledge or assign all or any portion of its rights
under the Finance Documents, including any portion of any promissory note,
to any of the twelve (12) Federal Reserve Banks organized under Section 4
of the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or
assignment or enforcement thereof shall release such Bank from its
obligations under any of the Finance Documents.
30.10 Replacement of Finance Documents
Upon receipt of an affidavit of an officer of any Finance Party as to the
loss, theft, destruction or mutilation of any security document or any
other Finance Document which is not of public record, and, in the case of
any such loss, theft, destruction or mutilation, upon cancellation of such
document, each Borrower will issue, in lieu thereof, a replacement document
in the same principal amount thereof and otherwise of like tenor.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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SCHEDULE 3
CONDITION PRECEDENT DOCUMENTS
1. In relation to each of the Obligors:
(a) a copy, certified as a true copy by a duly authorised officer of such
Obligor, of the constitutional documents of such Obligor and (in the
case of the Principal Company) an extract from the relevant Chamber of
Commerce;
(b) a copy, certified as a true copy by a duly authorised officer of such
Obligor, of:
(i) subject to (ii) and (iii) below, a board resolution of such
Obligor;
(ii) (in the case of the Principal Company) such resolutions of the
members of the Executive Board (Raad van Bestuur) of the
Principal Company, the supervisory board of the Principal
Company (Raad van Commissarissen) and the works' council of the
Principal Company (Ondernemingsraad) as may be required pursuant
to Dutch law by Dutch Counsel to the Banks, if any; and
(iii) (in the case of Ahold Finance USA) of a resolution of either its
managers or its sole member,
approving the execution, delivery and performance of this Agreement
and the terms and conditions hereof and authorising a named person or
persons to sign this Agreement and any documents to be delivered by
such Obligor pursuant hereto (or, in the case of such requirement to
the extent that it relates to the works' council of the Principal
Company, a certificate of the in-house general counsel of the
Principal Company stating that they have notified the central works'
council of the Principal Company (Ondernemingsraad) of the entering
into by the Principal Company of this Agreement and the transactions
contemplated hereby and have sought the advice of the central works'
council in accordance with article 25 of the Works' Councils Act ("Wet
op de ondernemingsraden")) and;
(c) a certificate of a duly authorised officer of such Obligor setting out
the names and signatures of the persons authorised to sign, on behalf
of such Obligor, this Agreement and any documents to be delivered by
such Obligor pursuant hereto.
2. Certificate of Incorporation, certified by the secretary of state of
Delaware, and bylaws of Croesus, each certified as true, correct, complete
and in full force and effect by the secretary of Croesus.
3. Certificate of Formation, certified by the secretary of state of Delaware,
and operating agreement of Ahold Finance USA, each certified as true,
correct, complete and in full force and effect by the secretary of Ahold
Finance USA.
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4. Evidence of existence and good standing of Croesus and Ahold Finance USA
from the State of Delaware.
5. A copy, certified as a true copy by or on behalf of the Principal Company,
of each such law, decree, consent, licence, approval, registration or
declaration as is, in the opinion of counsel to the Banks, necessary to
render this Agreement legal, valid, binding and enforceable, to make this
Agreement admissible in evidence in each Obligor's jurisdiction of
incorporation and to enable each of the Obligors to perform its obligations
hereunder.
6. An opinion of ▇▇▇▇▇▇▇▇ Chance, solicitors to the Facility Agent, in
relation to English law in substantially the form distributed to the Banks
prior to the execution hereof.
7. An opinion of the Principal Company's in-house Counsel.
8. An opinion of White & Case LLP, United States counsel to Ahold Finance USA
and Croesus.
9. A copy, certified as a true copy by a duly authorised officer of the
Principal Company, of the Original Financial Statements.
10. Evidence that each of the process agents referred to in Clause 30.4
(Service of Process) has agreed to act as the agent of the Obligors for the
service of process in England.
11. Evidence that all fees, costs and expenses required to be paid by any
Obligor pursuant to Clause 22 and the fee letters referred to therein have
been paid.
12. Evidence satisfactory to the Facility Agent that, upon the making of the
initial Advance(s) or issue of (or participation by a Bank in) the first
Letter of Credit hereunder (whichever occurs first), all indebtedness of
the Principal Company under the US$1 billion multi-currency revolving
credit agreement dated 18 December 1996 between the Principal Company and
others as borrowers and guarantors, ABN AMRO Bank N.V., Chase Investment
Bank Limited and ▇.▇. ▇▇▇▇▇▇ Securities Ltd as arrangers, The Chase
Manhattan Bank as facility, swing-line, letter of credit and short term
advances agent and Chase Manhattan International Limited as multi-currency
facility agent has been or will be paid and discharged in full and that the
facility made available thereunder will be cancelled.
- 88 -
The Obligors
KONINKLIJKE AHOLD N.V.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------
Address: 2, ▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇
▇▇ - ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇.▇▇▇
CROESUS INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇/▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
AHOLD FINANCE USA, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Telefax: + 1 703 961 6051
E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
The Arrangers
ABN AMRO BANK N.V.
By: ______________________
Address: Gustav ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇.▇. ▇▇▇ ▇▇▇ (HQ 4063)
1000 EA Amsterdam
The Netherlands
Attention:
Telephone:
Fax:
E-mail:
▇.▇. ▇▇▇▇▇▇ PLC
By: _____________________
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention:
Telephone: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
E-mail:
The Facility Agent
▇.▇. ▇▇▇▇▇▇ EUROPE LIMITED
By: _____________________
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention:
Telephone: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
E-mail: [please provide e-mail address]
The Banks
ABN AMRO BANK N.V.
By: ______________________
Address: Gustav ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇.▇. ▇▇▇ ▇▇▇ (HQ 4063)
1000 EA Amsterdam
The Netherlands
Attention: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Telephone: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇.▇▇▇▇▇▇@▇▇.▇▇▇▇▇▇▇.▇▇▇
JPMORGAN CHASE BANK
By: _______________________
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Credit Matters
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Operational Matters
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
BANK OF AMERICA N.A.
By: _________________________
Address: Bank of America House
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
BANQUE LBLUX S.A.
By: _________________________
Address: ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇
Telephone: + ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇▇
Fax: + ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇.▇▇
BARCLAYS BANK PLC
By: _________________________
For Credit Matters:
Address: Barclays Capital
5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: + ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇/1760
Facsimile: + 44 207 7773 1840
Email: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ / ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
For Administration Matters.
Address: Global Services Unit
Barclays Bank PLC
5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telephone: + ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
Facsimile: + 44 207 7773 6812
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
BNP PARIBAS
By: _________________________
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
CITIBANK, N.A.
By: _________________________
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇.▇.
Copies to:
Address: ▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇▇ (▇▇▇▇▇▇) Quashne
Telephone: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
And to:
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ Amsterdam, Z.O.
The Netherlands
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
And copies in respect of non-US Borrowers to:
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
COMMERZBANK (NEDERLAND) NV
By:
_________________________
Address: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇
Telephone: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to: COMMERZBANK AKTIENGESELLSCHAFT
Address: ▇▇▇▇▇▇▇▇▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention:
Telephone: + ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
E-mail:
DRESDNER BANK LUXEMBOURG S.A.
By: _________________________
For Credit Matters
Address: ▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇-▇▇▇-▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
For courier deliveries:
▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇,
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Risk Management
Telephone: + ▇▇▇ ▇▇▇▇-▇▇▇ / 411
Fax: + ▇▇▇ ▇▇▇▇-▇▇▇ / 561
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇-▇▇▇▇.▇▇ / ▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇-▇▇▇▇.▇▇
For Operational Matters
Address: ▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇-▇▇▇-▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
For courier deliveries:
▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇,
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇
Credit Management / Loan Administration
Telephone: + ▇▇▇ ▇▇▇▇-▇▇▇ / 955
Fax: + ▇▇▇ ▇▇▇▇-▇▇▇
E-mail:
FORTIS INTERNATIONAL FINANCE (DUBLIN)
By: _________________________
Address: ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: + ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
E-mail ▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇.▇▇
ING BANK N.V.
By: _________________________
Address: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
Location HG 02.03
The Netherlands
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇.▇▇
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., trading as RABOBANK
NEDERLAND
By: _________________________
Address: ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ / ▇▇▇▇ ▇▇▇▇▇
Telephone: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ / ▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
THE ROYAL BANK OF SCOTLAND BANK PLC
By: _________________________
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Telephone: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇@▇▇▇.▇▇.▇▇
BANK ONE, NA
By: _________________________
Address: Corporate Finance, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇▇▇_▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
DANSKE BANK A/S
By: _________________________
For Credit Matters:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ / ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
E-mail:
For Operational Matters:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Corporate Loans Administration / ▇▇▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇ ▇▇▇▇▇
Telephone: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
E-mail:
MIZUHO CORPORATE BANK NEDERLAND N.V.
By: _________________________
Address: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention: Joost van Leeuwen
Telephone: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇-▇▇.▇▇
WACHOVIA BANK, NATIONAL ASSOCIATION
By: _________________________
Address: ▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ / ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ / ▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
BBVA IRELAND P.L.C.
By: _________________________
Address: IFSC ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
THE BANK OF NEW YORK
By: _________________________
Address: One Wall Street, 18th Floor
New York City, NY 10286
United States
Attention: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Telephone: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇ / 1483
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
FLEET NATIONAL BANK
By: _________________________
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: + ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
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E-mail: ▇▇▇▇▇▇_▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
With a copy to: FLEETBOSTON FINANCIAL
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: + ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
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E-mail: ▇▇▇▇▇▇▇_▇_▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
SVENSKA HANDELSBANKEN AB (publ) LUXEMBOURG BRANCH
By: _________________________
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▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇
E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇
With a copy to: SVENSKA HANDELSBANKEN AB (publ) AMSTERDAM BRANCH
Address: Strawinskylaan 3051
1077 ZX Amsterdam
The Netherlands
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ / ▇▇. ▇▇▇▇▇▇ van Pooij
Telephone: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇ / ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇