Exhibit 4.10
EXECUTION COPY
15 OCTOBER 2002
CEREOL SA
AS BORROWER
BNP PARIBAS
CCF
SOCIETE GENERALE
AS MANDATED LEAD ARRANGERS
THE BANKS HEREIN REFERRED TO
AND
BNP PARIBAS
AS FACILITY AGENT
----------
EURO500,000,000
364-DAY MULTICURRENCY REVOLVING
FACILITY AGREEMENT
----------
CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation...........................................1
2. The Facility............................................................10
3. Syndicate And Obligors..................................................10
4. Drawdown Of Advances....................................................11
5. Drawings In Alternative Currency........................................12
6. Interest And Default Interest...........................................13
7. Late Payment Compensation...............................................15
8. Repayment Of Advances...................................................15
9. Voluntary Cancellation And Prepayment...................................16
10. Mandatory Cancellation And Prepayment...................................17
11. Payments - Taxes........................................................19
12. Changes In Circumstances................................................21
13. Conditions Precedent....................................................25
14. Representations.........................................................26
15. Undertakings............................................................30
16. Default.................................................................37
17. Indemnity...............................................................40
18. Guarantee...............................................................41
19. Set-Off And PRO RATA Sharing............................................44
20. The Facility Agent And The Arrangers....................................46
21. Amendments..............................................................50
22. Assignments And Transfers...............................................50
23. Fees And Expenses.......................................................54
24. Miscellaneous...........................................................55
25. Law And Jurisdiction....................................................57
Schedule 1 COMMITMENTS.........................................................59
Schedule 2 FORM OF DRAWING NOTICE..............................................60
Schedule 3 FORM OF TRANSFER CERTIFICATE........................................61
Schedule 4 MANDATORY COST FORMULAE.............................................64
Schedule 5 CONDITIONS PRECEDENT................................................67
Schedule 6 NEW GUARANTORS......................................................69
Schedule 7 CERTIFICATE OF ACCEDING GUARANTORS..................................70
Schedule 8 FINANCIAL COVENANTS.................................................72
Schedule 9 PERMITTED SECURITY INTERESTS........................................74
Schedule 10 JOINT VENTURES.....................................................75
Schedule 11 FORM OF RESIGNATION LETTER.........................................76
EXHIBIT
FORM OF PARENT GUARANTEE
THIS FACILITY AGREEMENT is made on 15 October 2002
BETWEEN:
(1) CEREOL SA, a company incorporated under French law, having its
registered office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ sur
Seine, registered with the Trade and Companies Register of Nanterre
under number 330339 169 (the "BORROWER");
(2) BNP PARIBAS, a company incorporated under French law, having its
registered office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, registered
with the Trade and Companies Register of Paris under number 662 042
4495; CCF, a company incorporated under French law, having its
registered office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
registered with the Trade and Companies Register of Paris under number
77567 0284; and SOCIETE GENERALE a company incorporated under French
law, having its registered office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, registered with the Trade and Companies Register of Paris under
number 552 120 222 as mandated lead arrangers of the Facility (together
the "ARRANGERS" and each an "ARRANGER");
(3) THE BANKS listed on the execution pages of this Agreement; and
(4) BNP PARIBAS, as aforesaid acting as agent of the Banks (the "FACILITY
AGENT").
IT IS AGREED
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement, except where the context otherwise requires:
"ACCEDING GUARANTORS" means ▇▇▇▇▇▇▇, Cereol Novenyolajipari and Central
Soya Company, in each case upon satisfaction with the conditions
precedent set out in Clause 3.3 (ACCESSION OF ACCEDING GUARANTORS).
"ADVANCE" means the principal amount of each advance made available to
the Borrower hereunder or (as the context requires) the principal amount
thereof for the time being outstanding.
"AFFECTED BANK" has the meaning specified in Clause 12.4 (MARKET
DISRUPTION).
"AFFILIATE" means, in relation to any Person, a Subsidiary of that
Person or a holding company of that Person or any other Subsidiary of
that holding company.
"AGREED LENDING OFFICE" means in relation to each Bank, the office
through which such Bank will initially be lending, as set out, in
respect of each Bank currently participating in the Facility, opposite
its name in Schedule 1.
"AGREEMENT" means this Facility Agreement.
"ALTERNATIVE CURRENCY" means, subject to the market disruption
provisions provided in this Agreement, United States Dollars.
"ANCILLARY FACILITIES" means any overdraft facility or any other advance
granted by various lenders to Group Companies from time to time (other
than notes, bonds, acceptance credits, receivables sold or discounted or
other similar financial instruments) the purpose of which is to finance
working capital and acquisitions of plant and equipment in a maximum
aggregate outstanding amount of Euro450,000,000.
"AVAILABILITY PERIOD" means the period (i) beginning on the date on
which the Facility Agent confirms to the Banks and the Borrower that all
conditions precedent to the Facility have been satisfied in full and
(ii) ending on the Final Repayment Date.
"BANKS" means those of the banks listed on the execution pages of this
Agreement and their respective successors and any Transferee Banks (as
defined in Clause 22.2 (TRANSFERS BY BANK)) which are, in each case, for
the time being participating in the Facility.
"BREAKAGE COSTS" means (in relation to any Advance requested but not
made when scheduled or all or part of which is received or recovered
otherwise than on the relevant Interest Payment Date) the amount in such
currencies as may be specified and reasonably documented by the relevant
Person by which:
(a) the amount of interest which the relevant Person is able to
obtain by placing an amount equal to its share of the relevant
Advance or, as the case may be, of the relevant amount so
received or recovered, on deposit in the relevant inter-bank
market for the remainder of the relevant Interest Period as
soon as reasonably practicable after (i) it becomes aware that
the relevant Advance is not being made or (ii) as the case may
be, the receipt or recovery of all or part of the Advance
otherwise than on the relevant Interest Payment Date,
is less than
(b) the amount of interest which, in accordance with the terms of
this Agreement, would otherwise be payable to that Person on
its share of that Advance for that Interest Period (in the
case of an Advance which is not made) or, as the case may be,
of the relevant amount for the remainder of the relevant
Interest Period (in the case of an Advance all or part of
which is received or recovered otherwise than on an Interest
Payment Date),
the foregoing reflecting such Person's loss, if any, incurred in
terminating, liquidating, employing or re-deploying deposits from or
with third parties following early repayment or prepayment (and subject
to compensation pursuant to Clauses 9.3 (ADDITIONAL RIGHT OF PREPAYMENT
AND CANCELLATION IN CASE OF WITHHOLDINGS AND INCREASED COSTS) and 17
(INDEMNITY)).
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in Paris and:
(a) (in relation to any date for payment or purchase of the
Alternative Currency) a day on which banks are open for
general business in London and New York; or
(b) (in relation to any date for payment or purchase of Euro) any
TARGET Day.
"CEREOL NOVENYOLAJIPARI" means Cereol Novenyolajipari RT Magyarorszag, a
company incorporated under Hungarian law, having its registered office
at Rumbach ▇▇▇▇▇▇▇▇▇ U 19-21,1075 Budapest, registered with the
Commercial Registry of Budapest under number 01-092688819.
"CENTRAL SOYA COMPANY" means Central Soya Company Inc., a company
incorporated under Indiana law, having its registered office at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (▇▇▇).
"CHANGE IN CONTROL OF THE PARENT" means if the Parent becomes a
Subsidiary of any Person.
"COMMITMENT" means, in relation to a Bank, the amount set opposite its
name in the column headed "Commitment" in Schedule l or in the Schedule
to any relative Transfer Certificate, in each case as reduced or
cancelled pursuant to the terms of this Agreement.
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking
substantially in a recommended form of the LMA or in any other form
agreed between the Borrower and the Facility Agent.
"CONSOLIDATED EBIT" has the meaning given to it in Schedule 8 (FINANCIAL
COVENANTS).
"CONSOLIDATED EBITDA" has the meaning given to it in Schedule 8
(FINANCIAL COVENANTS).
"CONSOLIDATED INVENTORIES AND TRADE RECEIVABLES" has the meaning given
to it in Schedule 8 (FINANCIAL COVENANTS).
"CONSOLIDATED NET BORROWINGS" has the meaning given to it in Schedule 8
(FINANCIAL COVENANTS).
"CONSOLIDATED NET INTEREST COST" has the meaning given to it in Schedule
8 (FINANCIAL COVENANTS).
"DEBT ISSUANCE" means the issuance of any capital markets instrument
including commercial paper, notes or bonds.
"DEFAULT" means an Event of Default or a Potential Event of Default.
"DELIVERY DATE" means, (i) in respect of any financial information
(other than the financial information required for each Test Date
relating to the financial covenant contained in sub-paragraph (C) of
paragraph 3 of Schedule 8), the earlier of (a) the date falling 30 days
after the approval by the relevant Board of Directors of such
information and (b) the date falling 120 days after the relevant Test
Date and (ii) in the case of the financial information required for each
Test Date relating to the financial covenant contained in sub-paragraph
(C) of paragraph 3 of Schedule 8, within 30 days of the relevant Test
Date.
"DERIVATIVE INSTRUMENT" means any forward rate agreement, option, swap,
cap, floor, any combination or hybrid of the foregoing and any other
financial derivative instrument.
"DISPOSAL" means a sale, transfer or other disposal (including by way of
lease or loan) by a Group Company to any Person (other than a Group
Company) of all or part of its non current assets, whether by one
transaction or a series of transactions and whether at the same time or
over a period of time.
"DRAWING DATE" means a Business Day upon which any Advance is to be
made.
"DRAWING NOTICE" means a notice of drawing substantially in the form set
out in Schedule 2 (FORM OF DRAWING NOTICE) duly completed and signed by
the Borrower.
"EONIA" means the rate equal to the overnight rate as calculated by the
European Central Bank on any day and appearing on the Reuters Page
"EONIA" on the first Business Day following that day (or such other page
on that service or such other service as may, in the Facility Agent's
determination, replace it for the purposes or displaying such rate).
"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in
which any member of the Group conducts business which relates to the
pollution or protection of the environment or harm to or the protection
of human health or the health of animals or plants.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval and
other authorisation required under any Environmental Law for the
operation of the business of any member of the Group conducted on or
from the properties owned or used by the relevant member of the Group.
"EURIBOR" means, in relation to any Advance, the rate for deposits in
Euro, for a period equal to the required period, which appears on
Telerate page 248 (or such other page on that service or such other
service as may, in the Facility Agent's determination, replace it for
the purposes of displaying such rate) as of 11.00 a.m., Brussels time,
on the relevant Quotation Date. If such rate does not appear on the
Telerate page 248, the rate for that period will be determined on the
basis of the rates at which deposits in Euro are offered by the
Reference Banks at approximately 11.00 a.m., Brussels time, on the
relevant Quotation Date to prime banks in the Euro-zone interbank market
for a period equal to the period considered and for deposits in an
amount comparable to the amounts concerned. The Facility Agent will
request the principal Euro-zone office of each of the Reference Banks to
provide a quotation of its rate. If at least two quotations are
provided, the rate for that period will be the arithmetic mean of these
quotations (rounded, if necessary, to the nearest four decimal places
with the midpoint rounded upward).
"EURO" means the single currency of Participating Member States of the
European Union.
"EURO AMOUNT" means:
(a) in relation to any Advance or, as the case may be, any other
amount specified hereunder in Euro, its principal amount or,
as the case may be, such other amount, at any time; or
(b) on any date on which a Euro Amount is to be determined, in
relation to any Advance or, as the case may be, any other
amount hereunder denominated in
any currency (other than Euro), the amount in Euro, calculated
at the Spot Rate of Exchange for the relevant date, which
would have been outstanding in respect of such Advance or, as
the case may be, such other amount if it had been advanced and
remained at all times denominated in Euro.
"EVENT OF DEFAULT" means any of the events mentioned in Clause 16.1
(EVENTS OF DEFAULT).
"EXISTING FACILITY" means the revolving credit facility dated 27 June
2001 and made between, INTER ALIA, the Borrower, certain of the
Guarantors and the facility agent and the banks named therein.
"FACILITY" means the revolving loan facility made or to be made
available to the Borrower by the Banks, as described in Clause 2 (THE
FACILITY) and pursuant to the terms and conditions set out in this
Agreement.
"FACILITY AGENT" means BNP Paribas or any successor as facility agent of
the Banks under the Financing Documents.
"FACILITY OFFICE" shall have the meaning given to it in Clause 22.8
(FACILITY OFFICE).
"FEE LETTERS" mean (i) the letter agreement of even date herewith
between, INTER ALIA, the Borrower and the Facility Agent, setting out
the fee referred to in Clause 23.2 (FACILITY AGENCY FEE) and (ii) the
letter agreement of even date herewith between INTER ALIA the Borrower
and the Arrangers (or their Affiliates), setting out details of certain
fees payable by the Borrower in connection with the Facility.
"FINAL REPAYMENT DATE" means the date falling 364 days from the date
hereof or, if such date is not a Business Day, the immediately preceding
Business Day.
"FINANCE PARTY" means any of the Facility Agent, the Arrangers or a
Bank.
"FINANCIAL YEAR" means the period of 12 months ending on 31 December in
2002.
"FINANCING DOCUMENTS" means this Agreement, the Fee Letters, any
Transfer Certificate, the Parent Guarantee, any other agreement or
document from time to time entered into pursuant to any of the foregoing
documents and any other document designated in writing as such by the
Facility Agent and the Borrower.
"FRENCH GAAP" means accounting principles and practices generally
accepted in France.
"GROUP" means, at any particular date, the Borrower and its consolidated
Subsidiaries. "GROUP COMPANY" means any legal entity that is a member of
the Group.
"GUARANTOR" means any of the Parent and each Acceding Guarantor, in each
case, so long as they remain Guarantors and as the context requires,
together the "GUARANTORS".
"GUARANTOR ACCESSION DEED" means, in respect of an Acceding Guarantor, a
deed substantially in the form set out in Schedule 6 (NEW GUARANTORS)
duly completed and executed on behalf of the Acceding Guarantor.
"INCREASED COST" has the meaning given to it in Clause 12.2 (INCREASED
COSTS).
"INDEBTEDNESS" means, in respect of the Borrower or any of its
Subsidiaries, as the case may be, (i) all moneys borrowed or raised from
entities not belonging to the Group by means of overdraft, confirmed
credit facilities, bonds, debentures, notes or any other instruments
whatsoever (including, INTER ALIA, acceptance credit, receivables sold
or discounted), (ii) all guarantees or other contingent obligations in
respect of (i) above or under any guarantee, indemnity or similar
assurance given under a credit transaction in whatever form and (iii)
any finance lease, hire purchase, credit sale or conditional sale
agreement.
"INFORMATION MEMORANDUM" means the syndication information memorandum to
be prepared by the Borrower and the Parent regarding the Group and the
Parent and other ancillary information.
"INTEREST PAYMENT DATE" means, for any Advance, the last day of an
Interest Period.
"INTEREST PERIOD" means, for any Advance, the period determined in
accordance with Clause 6.1 (DURATION OF PERIODS).
"ISSUANCE OF SHARES" means any issue of equity shares by a Group
Company, which is subscribed in cash by any Person (other than (i)
joint-venture partners on the setting up of that joint-venture, (ii) a
Group Company, (iii) employees, officers or directors of the Group and
(iv) by way of distribution of dividends).
"▇▇▇▇▇▇▇" means a company incorporated under French law, having its
registered office at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ sur
Seine, registered with the Trade and Companies Register of Nanterre
under number 328202338.
"▇▇▇▇▇▇▇ JOINT VENTURE" means the contribution, sale or transfer of any
assets or shares of ▇▇▇▇▇▇▇ to a joint venture in which the Parent or a
Group Company has an interest.
"LIBOR" means in relation to any Advance in an Alternative Currency:
(a) the display rate per annum of the offered quotation for
deposits in the currency of the relevant Advance for a period
equal to the required period which appears on Telerate Page
3750 or 3740 (as appropriate) at or about 11.00 a.m. London
time on the relevant Quotation Date; or
(b) if the display rate cannot be determined under paragraph (a)
above, the rate determined by the Facility Agent to be the
arithmetic mean (rounded, if necessary, to the nearest five
decimal places with the midpoint rounded upwards) of the rates
notified to the Facility Agent by each of the Reference Banks
quoting as the rate at which such Reference Bank is offering
deposits in the required currency and for the period concerned
in an amount comparable to that amount to prime banks in the
London interbank market at or about 11.00 a.m London time on
the relevant Quotation Date for such period. If at least two
quotations are provided, the rate for that period will be the
arithmetic mean of these quotations (rounded, if necessary, to
the nearest four decimal places with the midpoint rounded
upward).
For the purposes of paragraph (a) of this definition "TELERATE PAGE
3750" means the display designated as "PAGE 3750", and "TELERATE PAGE
3740" means the display designated as "PAGE 3740", in each case on the
Telerate Service (or such other pages as may replace Telerate Page 3750
or 3740 on that service or such other service selected by the Facility
Agent, as may be nominated by the British Bankers' Association as the
information vendor for the purposes of displaying British Bankers'
Association Interest Settlement Rates for deposits in the currency
concerned).
"MAJORITY BANKS" means, at any time, Banks whose Commitments are more
than 66(2)/3 per cent. in aggregate of the Total Commitments at that
time.
"MANDATORY COST" means the percentage rate per annum calculated by the
Facility Agent in accordance with Schedule 4 (MANDATORY COST FORMULAE).
"MARGIN" means 1.00 per cent. per annum.
"NET CASH PROCEEDS" means:
(a) in respect of a Disposal (other than the ▇▇▇▇▇▇▇ Joint
Venture), by any Obligor (other than the Parent) or any member
of the Group, the gross cash consideration received by that
Obligor (other than the Parent) or any member of the Group
(after any related repayment of Indebtedness made by way of
set-off in connection with such Disposal) for that Disposal
less all taxes, costs and expenses directly incurred in
respect of that Disposal;
(b) in respect of the ▇▇▇▇▇▇▇ Joint Venture, the gross cash
consideration received by an Obligor or any member of the
Group in connection with the ▇▇▇▇▇▇▇ Joint Venture less all
taxes, costs and expenses directly incurred in respect of the
▇▇▇▇▇▇▇ Joint Venture; and
(c) in respect of an Issuance of Shares or Debt Issuance the
amount subscribed for such shares or instrument (as the case
may be) less all fees and expenses directly incurred in
respect thereof.
"OBLIGOR" means the Parent, the Borrower and each Acceding Guarantor.
"OUTSTANDINGS" means, in relation to a Bank, the aggregate of all
amounts of principal advanced by it under the Facility and not yet
repaid.
"PARENT" means ▇▇▇▇▇ Limited, a company incorporated under the laws of
Bermuda, having its registered office at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ II Bermuda.
"PARENT GUARANTEE" means the guarantee given by the Parent in the form
of the Exhibit.
"PARTICIPATING MEMBER STATE" means, at any time, any member state that
adopts or has adopted the Euro as its lawful currency in accordance with
the legislation of the European Union relating to the European Monetary
Union for the time being.
"PARTY" means, at any time, a party to this Agreement at such time.
"PERMITTED SECURITY INTERESTS" has the meaning specified in sub-clause
15.4.1 (NEGATIVE PLEDGE) of Clause 15.4 (NEGATIVE UNDERTAKINGS).
"PERSON" or "PERSON" means any individual, corporation, association,
partnership, limited liability company, unincorporated organisation,
trust or joint venture, government agency or political subdivision
thereof or other entity and includes its successors and permitted
transferees and assigns.
"POTENTIAL EVENT OF DEFAULT" means any event which if continued after
the giving of notice, and/or the expiry of any grace period and/or the
making of any determination specified in Clause 16.1 (DEFAULT) would
constitute an Event of Default.
"QUOTATION DATE" means, in relation to any Interest Period for which an
interest rate is to be determined hereunder, the day on which quotations
would ordinarily be given by banks in (i) the European interbank market
for deposits in Euro (two (2) Target Days before the Drawing Date) and
(ii) the London interbank market for deposits in any other relevant
currency (two (2) Business Days before the Drawing Date).
"REFERENCE BANKS" means, subject to Clause 6.6 (NEW REFERENCE BANK), the
principal Paris or (as relevant), London office of each of BNP Paribas,
Societe Generale and HSBC Bank plc and any replacement Bank nominated
under that Clause.
"RESIGNATION LETTER" means a letter substantially in the form set out in
Schedule 11 (FORM OF RESIGNATION LETTER).
"SECURITY INTEREST" means any mortgage, charge, pledge, lien, right of
set-off, assignment by way of security, retention of title or any other
security interest whatsoever or any other agreement or arrangement
having the effect of conferring security, howsoever created or arising.
"SEMI-FINANCIAL YEAR" means the period of six months ending on 30 June
or 31 December.
"SIGNIFICANT SUBSIDIARY" means, at any date of determination, any
Subsidiary of the Borrower that, together with its Subsidiaries for the
Financial Year of the Group, accounted (i) for more than 10% of the
consolidated revenues of the Group or (ii) as of the end of the
Financial Year, was owner of more than 10% of the consolidated assets of
the Group, all as set forth in the most recently available consolidated
financial statements of the Group for the Financial Year.
"SPOT RATE OF EXCHANGE" means the spot rate of exchange quoted by the
European Central Bank as the rate offered for the purchase with one
currency of any other relevant currency in the Paris foreign exchange
market on the day in question for delivery three Business Days later.
"SUBSIDIARY" means a company, partnership or stock corporation:
(a) in respect of which another company, partnership or stock
corporation holds (whether directly or indirectly) more than
50 per cent. of the voting rights in it; or
(b) of which another company is a member and either (i) has the
right to appoint or remove a majority of its board of
directors or (ii) controls alone or pursuant to an agreement
with other shareholders, members, holders of partnership
interests or stockholders more than 50 per cent. of the voting
rights; or
(c) which is a subsidiary of a company, partnership or stock
corporation which is itself a subsidiary of that other
company, partnership or stock corporation.
"SYNDICATION DATE" means the earlier of (i) the date, which the
Arrangers notify to the Borrower and the other Finance Parties as being
the date on which a Successful Syndication (as defined in the mandate
letter dated 3 October 2002) has been completed or (ii) two months after
letters are sent to potential banks inviting them to participate in the
Facility.
"TARGET DAY" means a day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer system (TARGET) is operating.
"TEST DATE" has the meaning given to it in Schedule 8 (FINANCIAL
COVENANTS).
"TOTAL COMMITMENTS" means the aggregate of the Banks' Commitments.
"TOTAL OUTSTANDINGS" means, at any time, the aggregate of the Banks'
Outstandings at such time.
"TRANSFER CERTIFICATE" means a certificate in the form of Schedule 3
(FORM OF TRANSFER CERTIFICATE) delivered pursuant to Clause 22
(ASSIGNMENTS AND TRANSFERS).
"TRANSFEREE BANK" shall bear the meaning given to such term in Clause 22
(ASSIGNMENTS AND TRANSFERS).
"WHOLLY OWNED SUBSIDIARY" means, in respect of any Person, any
Subsidiary of such Person the issued share capital of which is at least
90% owned by such Person or one or more Wholly Owned Subsidiaries of
such Person.
1.2 CONSTRUCTION
Except where the context otherwise requires, any reference in this
Agreement to:
an "AGREEMENT" also includes a concession, contract, deed, franchise,
licence, treaty or undertaking (in each case, whether oral or written);
the "ASSETS" of any person shall be construed as a reference to the
whole or any part of its business, undertaking, property, assets, rights
and revenues (including any right to receive revenues);
a "FINANCING DOCUMENT" or other agreement includes any amendments,
transfers or supplements thereto;
a "GUARANTEE" also includes any other obligation (whatever called) of
any person to pay or to provide funds (whether by way of the advance of
money, the purchase of or subscription for shares or other securities,
the purchase of assets or services, or
otherwise) for the payment of, indemnify against the consequences of
default in the payment of, or otherwise be responsible for, any
indebtedness of any other person;
"LAW" or "LAW" includes common or customary law and any constitution,
decree, judgment, legislation, order, ordinance, regulation, statute,
treaty or other legislative measure in any jurisdiction and any present
or future directive, regulation, guideline, practice, concession,
request or requirement whether or not having the force of law issued by
any governmental body, agency or department or any central bank or other
fiscal, monetary, regulatory, self regulatory or other authority or
agency (but, if not having the force of law, only if compliance with the
same is in accordance with the general practice of the persons to whom
the law is intended to apply);
a "PROVISION OF LAW" is a reference to that provision as amended or
re-enacted;
"TAX" means any present or future tax, impost, duty, levy or charge of a
similar nature payable to or imposed by any supra-national,
governmental, federal, state, provincial, local governmental or
municipal taxing authority, body or official, whether in France or
elsewhere (together with any related penalties, fines, surcharges and
interest);
a "TIME OF DAY" is, unless otherwise stated, a reference to Paris time.
Headings and the table of contents are for ease of reference only and
any references to Schedules are, unless the context otherwise requires,
to Schedules to this Agreement as each of the same may be amended,
supplemented or substituted by written agreement of the Parties.
2. THE FACILITY
2.1 AMOUNTS
In accordance with the terms and conditions of this Agreement and in
reliance upon the representations and warranties made in Clause 14
(REPRESENTATIONS), the Banks agree to make available to the Borrower a
revolving credit facility, in a maximum aggregate Euro Amount of
Euro500,000,000.
2.2 PURPOSE
2.2.1 The Facility shall initially be used for the refinancing of the
Existing Facility and thereafter for general corporate purposes.
The Borrower hereby agrees and undertakes with each of the
Finance Parties that it will only use the proceeds of the
Advances made under the Facility as provided for in this
Agreement.
2.2.2 No Finance Party shall be bound to enquire as to the use or
application of the proceeds of any Advance.
3. SYNDICATE AND OBLIGORS
3.1 PARTICIPATION
Subject to the provisions of this Agreement, each of the Banks shall
participate in each Advance in the proportion which its Commitment bears
to the Total Commitments up to an aggregate principal amount not
exceeding its Commitment.
3.2 OBLIGATIONS SEVERAL
3.2.1 The rights and obligations of each of the Finance Parties
under the Financing Documents are several. Failure of a
Finance Party to perform its obligations under the Financing
Documents shall not:
(a) result in any other Finance Party incurring any
liability whatsoever; or
(b) relieve any other Finance Party or any Obligor from any
of its obligations under the Financing Documents.
3.2.2 The aggregate of the amounts due to each Finance Party under
the Financing Documents at any time is a separate and
independent debt and, subject to the provisions of this
Agreement, each Finance Party shall have the right to protect
and enforce its rights under the Financing Documents and it
shall not be necessary (except as otherwise provided in the
Financing Documents) for any other Finance Party to be joined
as an additional party in any proceedings to this end.
3.3 ACCESSION OF ACCEDING GUARANTORS
The Borrower shall procure the addition of the Acceding Guarantors by
procuring that each Acceding Guarantor shall, within 30 days of the date
hereof:
3.3.1 execute a Guarantor Accession Deed; and
3.3.2 deliver to the Facility Agent the documents referred to in
Clause 13.2 (CONDITIONS FOR ACCEDING GUARANTORS), all in form
and substance reasonably satisfactory to the Facility Agent,
in relation to such Acceding Guarantor.
4. DRAWDOWN OF ADVANCES
4.1 DRAWING NOTICE
Subject to the provisions of this Agreement, the Borrower may on any
Business Day during the Availability Period make a request for an
Advance by delivering to the Facility Agent no later than 10 a.m. on the
Quotation Date for the first Advance, or no later than 10.00 a.m. on the
Business Day prior to the Quotation Date for any other proposed Advance,
a Drawing Notice specifying in respect of the proposed Advance:
4.1.1 the proposed Drawing Date, which shall be a Business Day;
4.1.2 subject to Clause 5 (DRAWINGS IN ALTERNATIVE CURRENCY), the
currency of the Advance;
4.1.3 subject to the other provisions of this Agreement relating
thereto (in particular Clause 4.2 (LIMITATION OF THE RIGHT TO
DRAW ADVANCES), the amount of the Advance, which shall be a
minimum amount of Euro5,000,000 and an integral multiple of
Euro5,000,000 (or, if in the Alternative Currency the same
number of units in the Alternative Currency) or the undrawn
balance available under the Facility; and
4.1.4 the Interest Period.
4.2 LIMITATION OF THE RIGHT TO DRAW ADVANCES
4.2.1 No new Drawing Notice may be served by the Borrower if the sum
of (a) the Total Outstandings (less the Outstandings to be
repaid on or prior to the Drawing Date referred to in such new
Drawing Notice), (b) the amount of all Advances not yet made
but in respect of which a Drawing Notice has been delivered
with a Drawing Date on or prior to the Drawing Date referred
to in such new Drawing Notice) and (c) the Advance to be made
available under such new Drawing Notice, would exceed the
Total Commitments.
4.2.2 No more than 20 Advances shall be outstanding at any time.
4.3 IRREVOCABILITY
A Drawing Notice shall be irrevocable and, subject to the provisions of
this Agreement, the Borrower shall draw the Advance on the Drawing Date
and as specified in the Drawing Notice.
4.4 NOTICE TO BANKS AND PAYMENTS
When the Facility Agent actually receives a Drawing Notice, it shall
promptly notify each of the Banks of the details of, and the amount of
such Bank's participation in, the proposed Advance and each Bank shall,
subject to the provisions of this Agreement, make available to the
Facility Agent on the Drawing Date its participation in that Advance in
immediately available funds no later than 12 noon (in the place for
payment) and the Facility Agent shall make such amounts available to the
Borrower concerned on the Drawing Date no later than 2.00 p.m. (in the
place for payment).
5. DRAWINGS IN ALTERNATIVE CURRENCY
5.1 NOTICE TO FACILITY AGENT
The Borrower may, in the relevant Drawing Notice, request any Advance to
be made available in the Alternative Currency specified in such Drawing
Notice.
5.2 NOTICE TO BANKS
The Facility Agent shall calculate and promptly notify each of the Banks
of the amount of the Advance and the amount and currency of each Bank's
participation in the Advance.
5.3 NON-AVAILABILITY
Subject to Clause 12.4 (MARKET DISRUPTION), if any Bank notifies the
Facility Agent before 11.00 a.m. two (2) Business Days prior to any
Drawing Date that it is unable (for any reason, including, without
limitation, any limit placed upon it by the European Central Bank or any
other European Union or national authority with requisite powers or
pursuant to any applicable Law) to obtain matching deposits sufficient
to fund its participation in such Advance in the Alternative Currency,
the Facility Agent shall promptly notify the Borrower and, unless the
Borrower notifies the Facility Agent of its decision not to proceed with
the relevant Advance, such Bank shall make its participation in the
Advance in Euro for the period in question. If the Borrower decides not
to draw the relevant Advance, then the Borrower shall fully indemnify
each Bank upon presentation of supporting evidence against any loss and
reasonable expenses (including, without limitation, any premium, penalty
or expense or the Breakage Costs
incurred or sustained, or to be incurred or sustained, in liquidating or
employing deposits acquired or agreed to be acquired from third parties
in order to make, maintain or fund such Bank's participation during the
forthcoming Interest Period) which such Bank shall incur or sustain as a
consequence of the occurrence of any change as aforesaid.
5.4 CHANGE IN CIRCUMSTANCES
If before 3.00 p.m. on the day two Business Days prior to the start of
an Interest Period relating to an Advance denominated in the Alternative
Currency (i) there shall occur any change in national or international
financial, political or economic conditions, currency availability,
currency exchange rates or exchange controls, which change the Facility
Agent reasonably determines renders such Advance in the Alternative
Currency impracticable, or (ii) the Facility Agent shall have reasonably
determined that, by reason of circumstances affecting the relevant
inter-bank market for the Alternative Currency in question, adequate and
reasonable means do not exist for ascertaining the rate of interest
applicable for the forthcoming Interest Period pursuant to the
provisions of Clause 6 (INTEREST AND DEFAULT INTEREST) (which
determination shall, in each case referred to in (i) and in (ii) above,
be conclusive and binding upon all parties hereto):
5.4.1 the Facility Agent shall give notice to each of the Banks and
to the Borrower to that effect as soon as practicable;
5.4.2 unless the Borrower notifies the Facility Agent of its
decision not to proceed with the relevant Advance or unless
the Borrower and the Banks agree otherwise, the Advance shall
be made in Euro in respect of the Banks which cannot make such
Advance in the relevant Alternative Currency and in such
Alternative Currency in respect of the Banks which are able to
do so; and
5.4.3 if the Borrower decides not to draw the relevant Advance, then
the Borrower shall fully indemnify each Bank upon presentation
of supporting evidence against any loss and reasonable
expenses (including, without limitation, any premium, penalty
or expense or the Breakage Costs incurred or sustained, or to
be incurred or sustained, in liquidating or employing deposits
acquired or agreed to be acquired from third parties in order
to make, maintain or fund such Bank's participation during the
forthcoming Interest Period) which such Bank shall incur or
sustain as a consequence of the decision not to draw as
aforesaid.
6. INTEREST AND DEFAULT INTEREST
6.1 DURATION OF PERIODS
The following provisions shall apply to the duration of Interest
Periods:
6.1.1 each Interest Period shall be one week in relation to all
Advances made on or before the Syndication Date;
6.1.2 each Interest Period shall be one (1), two (2), three (3) or
six (6) months as selected by the Borrower (or some other
period which has been agreed with the Banks after the
Syndication Date or with the Arrangers prior to the
Syndication Date);
6.1.3 the first Interest Period for each Advance shall commence on
(and including) the date of that Advance and expire on (but
excluding) the Interest Payment Date applicable thereto;
6.1.4 an Interest Period which would otherwise end on a day which is
not a Business Day shall end on the next succeeding Business
Day, unless the result of such extension would be that such
Interest Period would end on a day in the next following
calendar month, in which event such Interest Period shall end
on the last preceding Business Day; and
6.1.5 an Interest Period which would otherwise expire after the
Final Repayment Date shall expire on the Final Repayment Date.
6.2 RATE OF INTEREST
The rate of interest payable on each Advance for each Interest Period
shall be the rate per annum determined by the Facility Agent to be the
aggregate of:
6.2.1 for Advances denominated in Euro;
(a) the Margin, and
(b) EURIBOR;
6.2.2 for Advances denominated in the Alternative Currency:
(a) the Margin; and
(b) LIBOR;
6.2.3 in each case, the Mandatory Cost, if any.
6.3 CALCULATION/PAYMENT
Interest on each Advance shall be calculated on the basis of actual days
elapsed (not counting within an Interest Period the last day of that
Interest Period) and a year of 360 days, or in each case otherwise as
market convention dictates, and shall be paid by the Borrower to the
Facility Agent for the account of the Banks, in arrear on the relevant
Interest Payment Date and in the currency of that Advance.
6.4 FACILITY AGENT'S CERTIFICATE
The Facility Agent shall notify the Borrower and the Banks of the rate
of interest as soon as it is determined under this Agreement.
6.5 FAILURE OF REFERENCE BANK
If any Reference Bank for any reason fails to notify to the Facility
Agent the relevant rate of interest, the applicable rate of interest
shall, unless otherwise provided herein, be determined on the basis of
the rates notified to the Facility Agent by the remaining Reference
Banks or Reference Bank.
6.6 NEW REFERENCE BANK
If any Reference Bank ceases to participate in the Facility:
6.6.1 it shall cease to be a Reference Bank; and
6.6.2 the Facility Agent shall, with the approval (which shall not
be unreasonably withheld) of the Borrower, nominate as soon as
reasonably practicable another Bank to be a Reference Bank in
place of such Reference Bank.
7. LATE PAYMENT COMPENSATION
7.1 In the event that any amount of principal, interest, fees, expenses or
related costs due by the Borrower under this Agreement is not paid on
the due date, the Borrower shall automatically and without notification
be required to pay, in the currency in which such amount is denominated,
to the Facility Agent for the account of the Banks as relevant, late
payment compensation calculated on the basis of the unpaid amount, from
such due date until the actual payment date, at:
7.1.1 in respect of Euro, EONIA increased by the Margin plus 1% (one
per cent.) per annum;
7.1.2 in respect of all other currencies (including the Alternative
Currency), the rate equal to the overnight rate for deposits
in the relevant interbank market in the currency in which the
unpaid amount is denominated, increased by the Margin plus 1%
(one per cent.) per annum; and
7.1.3 the Mandatory Cost, if any.
Notwithstanding the foregoing, if the unpaid amount referred to above is
principal of an Advance which has been declared due pursuant to Clause
16.2 (ACTION ON EVENT OF DEFAULT) before the last day of an Interest
Period relating to such Advance, the late payment compensation in
respect of such amount shall be calculated for the period from the date
on which such amount became due until the last day of such Interest
Period at a rate which is the sum of the Margin, 1% per annum, the
Mandatory Cost if any, and the rate of interest (less the Margin)
applicable to such unpaid amount immediately before it became due, and
thereafter the late payment compensation shall be calculated as set out
above.
7.2 Late payment compensation shall be calculated on the basis of the actual
number of days elapsed and a year of 360 days, or in each case otherwise
as market convention dictates, and shall be payable at any time by the
Borrower upon presentation of an invoice by the Facility Agent.
Receipt of late payment compensation shall not imply the granting of any
extension, nor a waiver of any rights whatsoever of the Banks arising
under this Agreement.
8. REPAYMENT OF ADVANCES
8.1 The Borrower shall on the last day of the Interest Period relating to
each Advance repay that Advance to the Facility Agent for the account of
the Banks in accordance with Clause 11.1 (PAYMENTS). Each Advance shall
be repaid in the currency in which it is denominated.
8.2 Any amount repaid under each Advance may be redrawn in accordance with
Clause 4 (DRAWDOWN OF ADVANCES).
8.3 NETTING OF PAYMENTS OF PRINCIPAL ON INTEREST PAYMENT DATES AND DRAWING
DATES If on any Drawing Date:
8.3.1 a Bank is required to participate in an Advance requested by
the Borrower; and
8.3.2 a payment of principal in the same currency as that Advance is
due to that Bank by the Borrower pursuant to this Clause 8,
then the Facility Agent shall (without prejudice to the Borrower's
obligation to make any payment before such netting, and without
prejudice to the Borrower's obligation to make any payment for further
amounts due hereunder after such netting, including, without limitation,
interest due) apply the amount payable by such Bank to the Borrower in
respect of such Advance on that Drawing Date in or towards satisfaction
of the principal amount payable by the Borrower to such Bank on such
Drawing Date and the Bank shall make payment in respect of that Advance
only for the amount, if any, in excess of such principal amount payable
by the Borrower.
8.4 On the Final Repayment Date:
8.4.1 the Facility will expire and the Commitment of each Bank will
be reduced to zero; and
8.4.2 the Borrower will repay or prepay all amounts outstanding and
owed by it in relation to the Facility.
9. VOLUNTARY CANCELLATION AND PREPAYMENT
9.1 VOLUNTARY PREPAYMENT
The Borrower may at any time prepay an Advance in whole or in part (in a
minimum amount of Euro5,000,000 and in integral multiples of
Euro5,000,000), without penalty but together with all accrued interest
and any Breakage Costs and other amounts in respect of such Advance
(including under Clause 17 (INDEMNITY)) PROVIDED THAT it has given the
Facility Agent not less than five (5) Business Days' notice, stating the
amount of the Advance in the relevant currency to be prepaid and the
date of such prepayment.
9.2 VOLUNTARY CANCELLATION
The Borrower may cancel any undrawn part of the Facility (in respect of
which no Drawing Notice has been served) in whole or in part (in a
minimum amount of Euro5,000,000 and in integral multiples of
Euro5,000,000) at any time PROVIDED THAT it has given the Facility Agent
not less than five (5) Business Days' prior notice stating the principal
amount to be cancelled and the date of such cancellation. During such
five-day period the Borrower may not serve a Drawing Notice purporting
to draw all or any part of the amount which is the subject of such
notice of cancellation.
9.3 ADDITIONAL RIGHT OF PREPAYMENT AND CANCELLATION IN CASE OF WITHHOLDINGS
OR INCREASED COSTS If:
9.3.1 the Borrower is required to pay to a Bank any additional
amounts under Clause 11.4 (WITHHOLDINGS); or
9.3.2 the Borrower is required to pay to a Bank any amount under
Clause 12.2 (INCREASED COSTS),
then, without prejudice to the obligations of the Borrower under those
Clauses, the Borrower may, whilst the circumstances continue, serve a
notice of prepayment and cancellation on that Bank through the Facility
Agent. On the date falling five Business Days after the date of service
of the notice, the Borrower shall prepay to the Facility Agent for the
account of that Bank all of that Bank's Outstandings. On prepaying a
Bank's Outstandings under this Clause, the Borrower shall pay to the
Facility Agent for the account of that Bank accrued interest together
with all other amounts due to that Bank (including any Breakage Costs or
other amounts payable under the indemnity contained in Clause 17
(INDEMNITY)).
9.4 MISCELLANEOUS
9.4.1 No amount cancelled under this Clause 9 (VOLUNTARY
CANCELLATION AND PREPAYMENT) may be redrawn or reinstated.
9.4.2 All prepayments shall be made in the currency in which the
relevant Advance is denominated.
10. MANDATORY CANCELLATION AND PREPAYMENT
10.1 TOTAL CANCELLATION AND MANDATORY PREPAYMENT OF THE FACILITY If after the
date of this Agreement:
10.1.1 a person other than the Parent becomes the owner (directly or
through an Affiliate) of at least 50 per cent. of the voting
rights of the Borrower; or
10.1.2 a Change in Control of the Parent shall have occurred,
then the Facility Agent, acting on the instructions of the Majority
Banks, may after five Business Days' notice cancel and reduce to zero,
all of the Banks' Commitments and the Borrower will immediately prepay
all Advances drawn by it, together with all interest accrued in respect
thereof and all other amounts due hereunder (including Breakage Costs or
other amounts payable under the indemnity contained in Clause 17
(INDEMNITY)).
10.2 PARTIAL CANCELLATION AND MANDATORY REPAYMENT OF THE FACILITY
10.2.1 Upon the occurrence of the following events after the date of
this Agreement, namely:
(a) an Obligor (other than the Parent) or any member of the
Group makes an Issuance of Shares or Debt Issuance; or
(b) Group Companies make on a consolidated basis, a Disposal
or a series of Disposals; or
(c) (i) an Obligor (other than the Parent) or any member of
the Group enters into any agreement for borrowing money
(other than an Ancillary Facility or intercompany
Indebtedness) which is documented by way of a facility
agreement, loan agreement, credit agreement or similar
document (in this
Clause 10.2, a "LOAN AGREEMENT") or (ii) the Parent
enters into a Loan Agreement the proceeds of which are
to be used by any Group Company (other than monies
raised specifically for the purpose of making
acquisitions); or
(d) the ▇▇▇▇▇▇▇ Joint Venture,
the Banks' Commitments will, save as mentioned in the proviso
to this Clause 10.2.1, immediately be reduced by the following
amounts:
(i) in the case of sub-clause 10.2.1(a), the amount of
the Net Cash Proceeds (if such amount is greater
than Euro5,000,000, rounded down to Euro5,000,000
or the integral multiple thereof nearest thereto);
and
(ii) subject to the proviso to this Clause 10.2.1
mentioned below, in the case of sub-clause
10.2.1(b), an amount equal to the Euro Amount of
the Net Cash Proceeds (if such an amount is
greater than Euro5,000,000, rounded down to
Euro5,000,000 or the integral multiple thereof
nearest thereto); and
(iii) in the case of sub-clause 10.2.1(c), an amount
equal to the amount advanced to such Obligor or
member of the Group pursuant to the Loan Agreement
(if such amount is greater than Euro5,000,000,
rounded down to Euro5,000,000 or the integral
multiple thereof nearest thereto); and
(iv) subject to the proviso to this Clause 10.2.1
mentioned below, in the case of sub-clause
10.2.1(d), an amount equal to the greater of (i)
Euro 100,000,000 and (ii) the Euro Amount of the
Net Cash Proceeds (if such amount is greater than
Euro5,000,000, rounded down to Euro5,000,000 or
the integral multiple thereof nearest thereto),
PROVIDED THAT paragraphs (ii) and (iv) above shall not apply
(and no reduction shall be made to Banks' Commitments) in
respect of the initial Euro Amount of Euro 50,000,000 received
by an Obligor or, as the case may be, Group Companies in
connection with a Disposal, a series of Disposals and/or the
▇▇▇▇▇▇▇ Joint Venture (or any combination thereof);
10.2.2 the Borrower shall, to the extent that Total Outstandings
would otherwise exceed the Total Commitments as reduced
pursuant to sub-clause 10.2.1 procure that all or the required
part of the amounts referred to in sub-clause 10.2.1 above are
applied in repayment of all or the required part of the
Advances on the first Interest Payment Dates applicable
thereto falling at least sixty days after the relevant event
together with all interest accrued in respect of the amount so
repaid, PROVIDED THAT all amounts shall be repaid on the day
falling ninety days after such relevant event if no new
Interest Period has occurred during such period.
10.3 MISCELLANEOUS
10.3.1 No amount cancelled under this Clause 10 (MANDATORY
CANCELLATION AND PREPAYMENT) may be redrawn or reinstated.
10.3.2 All repayments shall be made in the currency in which the
relevant Advance is denominated.
11. PAYMENTS - TAXES
11.1 PAYMENTS
The following provisions shall apply to the making of payments under
this Agreement:
11.1.1 unless otherwise stated herein, all payments by an Obligor or
a Bank shall be made, as the case may be, to the Facility
Agent to its account at such office or bank as it may notify
to the Borrower or the Banks;
11.1.2 payments to the Facility Agent shall be made for value on the
due date at such times and in such funds as the Facility Agent
may specify to the payer as being customary at the time for
the settlement of transactions in the relevant currency in the
place for payment;
11.1.3 each payment received by the Facility Agent for another person
shall, subject to sub-clause 11.1.4 below, be made available
by the Facility Agent to that person by payment (on the date
and in the currency and funds of receipt) to its account with
such bank in the principal financial centre of the relevant
currency as it may notify to the Facility Agent by no less
than three Business Days' prior notice; and
11.1.4 the Facility Agent is not obliged to make payment under 11.1.3
above until it has actually received the corresponding sum. If
the Facility Agent makes available to a person any amount
which has not been made unconditionally available to the
Facility Agent and that amount is not actually and
unconditionally made available, the person concerned shall
forthwith on notice from the Facility Agent repay that amount
to the Facility Agent together with interest on the amount
until its repayment at a rate determined by the Facility Agent
to reflect its cost of funds.
11.2 NO SET-OFF OR COUNTERCLAIM
All payments made by an Obligor under this Agreement shall be made
without set-off or counterclaim.
11.3 JUDGMENT CURRENCY
If, under any applicable Law, whether as a result of a judgment against
an Obligor or the receivership or liquidation of an Obligor (or any
similar procedure) or for any other reason, any payment under or in
connection with this Agreement is made or is recovered in a currency
(the "OTHER CURRENCY") other than that in which it is required to be
paid hereunder (the "ORIGINAL CURRENCY"), then, to the extent that the
payment to any Finance Party (when converted at the rate of exchange on
the date of payment or, in the case of a receivership or liquidation (or
any similar procedure), the latest date for the determination of
liabilities permitted by applicable Law) falls short of the amount
unpaid
under this Agreement, the Obligor shall, as a separate and independent
obligation, fully indemnify that Finance Party against the amount of the
shortfall; and for the purposes of this Clause 11.3 "RATE OF EXCHANGE"
means the rate at which the Finance Party concerned is able on the
relevant date to purchase the original currency with the other currency.
Such rate of exchange shall be notified to the relevant Obligor.
11.4 WITHHOLDINGS
All payments by an Obligor under this Agreement, whether in respect of
principal, interest, fees or any other item, shall be made in full
without any deduction or withholding in respect of tax or otherwise
unless the deduction or withholding is required by Law. If such a
deduction or withholding is required by Law or if any deduction or
withholding in respect of tax or otherwise is required by Law to be made
by the Facility Agent (or in this connection amounts are required by Law
thereafter to be rescinded or otherwise restored by a Finance Party) in
respect of any payment to any Finance Party under this Agreement, such
deduction or withholding shall be for the account of the relevant
Obligor PROVIDED THAT the Finance Party affected hereunder shall on the
date of this Agreement or, if later, the date on which the relevant Bank
became a party to this Agreement, be lending under the Facility through
its Agreed Lending Office or through a Facility Office as provided for
in Clause 11.5 (LENDING OFFICES).
Accordingly:
11.4.1 in the case of a deduction or withholding made by an Obligor,
such Obligor shall ensure that the deduction or withholding
does not exceed the minimum amount legally required;
11.4.2 such Obligor shall forthwith pay (to the extent permitted by
applicable Law) to the Facility Agent for the account of each
Bank an additional amount calculated to ensure that the net
amount received by that Bank (taking into account any
deduction or withholding required on such additional amounts)
will equal the full amount which would have been received by
it had no such deduction or withholding been made;
11.4.3 such Obligor or the Facility Agent, as applicable, shall pay
to the relevant taxation or other authorities within the
period for payment permitted by applicable law the full amount
of the deduction or withholding (including any deduction or
withholding from any additional amount paid pursuant to this
clause); and
11.4.4 in the case of a deduction or withholding made by an Obligor,
that Obligor shall furnish to the Facility Agent on behalf of
the Bank concerned, within the period for payment permitted by
the relevant law, either:
(a) an official receipt of the relevant taxation or other
authorities involved in respect of all amounts so
deducted or withheld; or
(b) if such receipts are not issued by the taxation or other
authorities concerned on payment to them of amounts so
deducted or withheld, a
certificate of deduction or equivalent evidence of the
relevant deduction or withholding.
In the event that an Obligor would be obliged to pay an amount pursuant
to sub-clause 11.4.2 of this Clause 11.4 to any Bank, but is prevented
by law from making such payment in full, then such Obligor shall within
5 Business Days of becoming aware thereof give notice to the Facility
Agent and shall, absent any agreement to the contrary with the relevant
Bank, prepay to the Facility Agent for the account of such Bank, that
Bank's share of each Advance on the last day of the Interest Period for
each Advance, together with all interest accrued thereon and any and all
sums then due to that Bank hereunder.
11.5 LENDING OFFICES
Each of the Banks agrees that it shall lend under the Facility through
an office which is, on the date of this Agreement its Agreed Lending
Office, or, in respect of a Transferee Bank, on the date on which such
Transferee Bank becomes a party to this Agreement, a Facility Office
which is a permanent establishment resident for tax purposes in the
jurisdiction in which the Borrower is incorporated or a permanent
establishment resident for tax purposes in a country in respect of which
there is in force a tax treaty with the jurisdiction in which the
Borrower is incorporated providing for the absence of withholding tax on
interest in respect of bank loans.
11.6 TAX CREDITS
If and to the extent that an Obligor pays any additional amount under
sub-clause 11.4.2 of Clause 11.4 (WITHHOLDINGS) and any Bank thereafter
receives and retains the benefit of a refund of tax or credit against
tax on its overall net income which is identified by the Bank as
attributable to the tax that was withheld or deducted (a "TAX CREDIT"),
then that Bank shall reimburse to that Obligor such amount as it shall
determine so as to leave that Bank, after that reimbursement, in no
better or worse position than it would have been in if payment of the
relevant additional amount had not been required. Each Bank shall have
absolute discretion as to whether to claim any Tax Credit and, if it
does so claim, the extent, order and manner in which it does so and
which reliefs and credits are to be regarded as used for these purposes.
No Bank shall be obliged to disclose any information regarding its tax
affairs or computations to the Obligors.
11.7 DATE
If any payment (other than a payment required to be made on an Interest
Payment Date) would otherwise be due on a day which is not a Business
Day, it shall be due on the next succeeding Business Day. Payments due
on an Interest Payment Date shall be made on the last day of the
relevant Interest Period, as determined in accordance with Clause 6.1
(DURATION OF PERIODS).
12. CHANGES IN CIRCUMSTANCES
12.1 ILLEGALITY
Where the introduction, imposition or variation of any Law or any change
in the interpretation or application of any Law in each case occurring
after the date of this Agreement or, if later, the date on which the
relevant Bank became a party to this Agreement, makes it unlawful or
impractical without breaching such Law for any Bank
to allow all or part of its participation in this Facility to remain
outstanding or to fund all or part of its participation in an Advance or
to carry out all or any of its other obligations under this Agreement or
to charge or receive interest at the rate applicable under this
Agreement, then, upon that Bank notifying the Facility Agent:
12.1.1 the Facility Agent shall notify the Borrower and that Bank's
Commitment shall forthwith be reduced to the extent necessary
to cure such illegality;
12.1.2 the Borrower shall, on the earlier of (i) the last day of the
Interest Period for each Advance occurring after the Facility
Agent has notified the Borrower, and (ii) the day specified by
the Bank in the notice (being no earlier than the last day of
any applicable grace period permitted by Law) (and only to the
extent necessary to cure such illegality), prepay to the
Facility Agent for the account of that Bank all of that Bank's
participation in the Advances.
12.2 INCREASED COSTS
Subject to Clause 12.3 (INCREASED COSTS - EXCEPTIONS), where any Finance
Party determines that the enactment, introduction or variation of any
Law or any change in the interpretation or application of any Law, in
each case occurring after the date hereof or, if later, the date on
which the relevant Finance Party became a party to the Financing
Documents (including, without limitation, any such Law relating to a
change in the currency of a country, taxation, reserve asset, special
deposit, cash ratio, liquidity or capital adequacy requirements and/or
any other form of banking, fiscal, monetary or regulatory controls (and
for the avoidance of doubt, any change after the relevant date in
respect of the solvency ratio for credit institutions under Council
Directive 89/647/EEC of 18 December 1989, as amended)) would cause it to
incur or suffer an Increased Cost (as defined below), such Finance Party
shall notify the Facility Agent, promptly upon its becoming aware of
such event and the Borrower shall forthwith on demand pay to the
Facility Agent, for the account of that Finance Party, such amounts as
such Finance Party from time to time certifies (setting out reasonable
information showing the basis for and calculation of such amount,
PROVIDED THAT, in respect of such information, no Finance Party shall be
obliged to disclose any information regarding its tax affairs or
compensations to the Obligors) to the Facility Agent to be necessary to
indemnify it against such Increased Cost (as defined below).
In this Agreement "INCREASED COST" means:
12.2.1 any direct or indirect additional cost to a Finance Party (or
an Affiliate) in making, maintaining or funding its Commitment
or performing its obligations under the Financing Documents;
or
12.2.2 any direct or indirect cost or loss incurred or suffered by a
Finance Party (or an Affiliate) in connection with the
reduction of the amount of any sum received or receivable by
it or its effective rate of return in respect of its
Commitment or its Outstandings; or
12.2.3 any direct or indirect cost or loss incurred or suffered by a
Finance Party (or an Affiliate) arising out of any requirement
for a Finance Party (or an Affiliate) to make any payment or
suffer any tax, cost or loss of relief or other benefits, or
forgo any interest on, or calculated by reference to, any sum
received or receivable by such Finance Party under this
Agreement; or
12.2.4 any direct or indirect cost or loss incurred or suffered by a
Finance Party (or an Affiliate) in connection with the
reduction of the rate of return to such Finance Party (or an
Affiliate) on its overall capital or on any class of its
capital as a result of any change in the amount or nature of
the capital resources required to be allocated in respect of
such Bank's Commitment.
12.3 INCREASED COSTS - EXCEPTIONS
The Borrower shall not be obliged to make any payment under Clause 12.2
(INCREASED COSTS) to the extent the payment is:
12.3.1 one in respect of which the Finance Party is entitled to be
(and if actually) compensated for under any other provision of
this Agreement; or
12.3.2 attributable to any tax on or any change in the rate of tax on
the overall net income of that Finance Party in the
jurisdiction in which it is incorporated or its Facility
Office is located; or
12.3.3 attributable to any breach by that Finance Party of any Law;
or
12.3.4 attributable to any transfer by a Bank or any change by any
Bank of its Facility Office, where circumstances exist which
would oblige the relevant Borrower to pay to the Transferee
Bank or, in the case of a change in Facility Office, the
relevant Bank any sum in excess of the sum (if any) which it
would have been obliged to pay to that Bank in the absence of
such transfer or change in Facility Office.
For the avoidance of doubt, nothing herein shall require any Finance
Party to disclose any confidential information relating to the
organisation of its business.
12.4 MARKET DISRUPTION
If, in relation to any Advance, on the relevant Quotation Date:
12.4.1 the Facility Agent determines that, by reason of circumstances
affecting the inter-bank market generally, reasonable and
adequate means do not or will not exist for ascertaining
EURIBOR, LIBOR or EONIA;
12.4.2 the Facility Agent is notified by Banks (the "AFFECTED BANKS")
whose Commitments aggregate more than one third of the Total
Commitments in respect of the Facility under which the
relevant Advance is made or is to be made, that deposits in
the currency in which an Advance is made are not in the
ordinary course of business available in the relevant
inter-bank market for a period equal to the forthcoming
Interest Period in amounts sufficient to fund its
participation in an Advance; or
12.4.3 the Facility Agent is notified by Banks (the "AFFECTED BANKS")
whose Commitments aggregate more than one third of the Total
Commitments in respect of the Facility under which the
relevant Advance is made or is to be
made, that the cost to them of obtaining matching deposits in
the relevant interbank market would be in excess of EURIBOR or
LIBOR applicable to any Advance during the forthcoming
Interest Periods,
then the Facility Agent shall forthwith notify the Borrower and each
Bank, and:
12.4.4 no further Advances shall be made while such circumstances
continue to exist;
12.4.5 unless within thirty (30) days of the giving of the notice,
the Borrower and the Facility Agent (in consultation with the
Banks or, as the case may be, the Affected Banks) arrive, by
negotiation in good faith, at an alternative basis acceptable
to the Borrower and the Banks for continuing the Facility or
the participations of the Affected Banks (and any alternative
basis agreed in writing shall be retroactive to and effective
from the commencement of the relevant affected Interest
Period) the Borrower shall prepay to the Facility Agent for
the account of the Banks the Total Outstandings in the case of
sub-clause 12.4.1 above or the Outstandings of the Affected
Banks in the case of sub-clause 12.4.2 and sub-clause 12.4.3
above within 10 Business Days after the end of such thirty
(30) day period with accrued interest payable to each Bank or
Affected Bank at a rate equal to the Margin plus the aggregate
of the amounts certified by such Bank, and notified through
the Facility Agent to the Borrower as being the cost to that
Bank of continuing its Outstandings during the periods
referred to in this paragraph (including the Breakage Costs);
and
12.4.6 while any agreed alternative basis is in force, the Facility
Agent in consultation with the Banks or the Affected Banks,
shall periodically (but at least monthly) determine whether
circumstances are such that the basis is no longer necessary;
and if the Facility Agent so determines, it shall forthwith
notify the Borrower and each Bank and that basis shall cease
to be effective on a date specified by the Facility Agent
after consultation with the Banks.
12.5 TAX INDEMNITY
If and to the extent either:
12.5.1 an amount deducted or withheld from any payment, or an
additional amount payable for the account of any Bank by
reason of a deduction or withholding, pursuant to Clause 11.4
(WITHHOLDINGS); or
12.5.2 an amount in respect of increased costs payable pursuant to
Clause 12.2 (INCREASED COSTS) is brought into account by a
Bank as a receipt for the purposes of taxation and proves
inadequate, by reason of the absence of a credit, deduction or
other relief which is (in any case) immediately and
effectively received, the Obligor shall fully and immediately,
on demand following receipt of reasonable information showing
the basis of calculation of such sum (PROVIDED THAT, in
respect of such information, no Bank shall be obliged to
disclose any information regarding its tax affairs or
compensations to the Obligor), indemnify the relevant Bank on
an after-tax basis against the cost, payment, deduction or
withholding in question, and will on demand pay such further
sum to the Facility Agent for the account of the Bank as is
necessary to
remedy the inadequacy; PROVIDED THAT in no event shall the
Obligor be required to indemnify any Bank in respect of tax on
its overall net income.
12.6 MITIGATION
If any of Clauses 11.4 (WITHHOLDINGS), 12.1 (ILLEGALITY), 12.2
(INCREASED COSTS) or 12.5 (TAX INDEMNITY) operates in relation to any
Finance Party to the detriment of any Obligor, such Finance Party shall,
upon the request of the Borrower, enter into discussions with the
Facility Agent and the Borrower with a view to determining what
mitigating action might be taken by such Finance Party.
Without limiting or reducing the obligations of the Obligors (or any of
them under Clauses 11.4 (WITHHOLDINGS), 12.1 (ILLEGALITY), 12.2
(INCREASED COSTS) or 12.5 (TAX INDEMNITY)), the relevant Finance Party
and the Facility Agent, if relevant, shall at the expense of the
Borrower take such reasonable steps (acceptable to the Borrower) as may
be practical and open to it to mitigate or remove the effects of such
circumstances including, without limitation and as applicable, a change
in its Agreed Lending Office or Facility Office or a transfer of its
participation in the Facility and its Commitment to another bank or
financial institution reasonably acceptable to the Borrower, PROVIDED
THAT nothing in this Clause 12.6 shall oblige any Finance Party to take
any such step if, in the opinion of such Finance Party (such opinion
being conclusive), any such step might reasonably be expected to have an
adverse effect upon its business, operations or financial condition or
the management of its affairs or its return in relation to its
participation in the Advance or cause it to incur any costs or expenses.
13. CONDITIONS PRECEDENT
13.1 CONDITIONS TO THE FACILITY AND TO THE FIRST ADVANCE
The Facility shall become available on the date on which the Facility
Agent confirms to the Banks and the Borrower that it has received the
documents set out in Schedule 5 (CONDITIONS PRECEDENT), in each case in
form and content reasonably satisfactory to the Facility Agent.
13.2 CONDITIONS FOR ACCEDING GUARANTORS
Each Acceding Guarantor shall deliver to the Facility Agent the
following documents, in each case in form and content satisfactory to
the Facility Agent:
13.2.1 a certificate signed by a duly authorised officer of such
Acceding Guarantor substantially in the form set out in
Schedule 7 (CERTIFICATE OF GUARANTORS) and the documents
therein referred to, in particular, an updated copy of the
Memorandum and Articles of Association (STATUTS) and
certificate of incorporation (K-BIS) (or relevant similar
official certificate with respect to any Obligor that is
incorporated in a jurisdiction other than France);
13.2.2 an opinion of an independent law firm acceptable to the
Facility Agent in form and substance satisfactory to the
Facility Agent, opining notably as to the capacity of such
Acceding Guarantor to enter into and perform its obligations
under the Financing Documents in its relevant jurisdiction,
the recognition under the relevant jurisdiction of the
validity of such obligations and the choice of law expressed
in the Financing Documents and the recognition and
enforcement in such jurisdiction of any judgment rendered
against such Obligor pursuant to the jurisdiction provisions
of the Financing Documents.
13.3 CONDITIONS TO FIRST ADVANCE
The first Advance is subject to the further conditions precedent that on
the Drawing Date for that Advance:
13.3.1 the Borrower is a Subsidiary of the Parent;
13.3.2 no Default has occurred or would occur as a result of making
the Advance; and
13.3.3 except as otherwise notified to the Facility Agent, each of
the warranties mentioned in Clause 14.2 (AFTER SIGNING) and
Section 7 of the Parent Guarantee remains accurate in all
material respects at the Drawing Date as if given on that date
by reference to the facts and circumstances then existing.
13.4 CONDITIONS TO EACH FURTHER ADVANCE
Each further Advance is subject to the further conditions precedent that
both on the date of the relevant Drawing Notice and on the relevant
Drawing Date:
13.4.1 No Default has occurred or would occur as a result of making
the Advance; and
13.4.2 except as otherwise notified to the Facility Agent each of the
warranties mentioned in Clause 14.2 (AFTER SIGNING) and
Section 7 of the Parent Guarantee remains accurate in all
material respects at the Drawing Date as if given on that date
by reference to the facts and circumstances then existing.
14. REPRESENTATIONS
14.1 ON SIGNING OBLIGORS' REPRESENTATIONS
Each Obligor (other than the Parent) acknowledges that each of the Banks
has entered into the Financing Documents and participated in the
syndication of the Facility in full reliance on representations by each
Obligor (other than the Parent) (in respect of itself and each of its
Subsidiaries referred to in this Clause 14.1) in the following terms,
and each Obligor (other than the Parent) (in respect of itself and each
of its Subsidiaries referred to in this Clause 14.1) now warrants to
each of them that:
14.1.1 STATUS: It is duly incorporated and, except in the case of
Central Soya Company, with limited liability and validly
existing and in good standing under the laws of its place of
incorporation;
14.1.2 POWERS AND AUTHORISATIONS: The documents which contain or
establish its constitution include provisions which give
power, and all necessary corporate authority has been obtained
and remains in full force and all action has been taken, for
it to own its assets, carry on its business and operations as
they are now being conducted, to sign and deliver, and perform
the transactions contemplated, in the Financing Documents to
which it is a party;
14.1.3 OBLIGATIONS BINDING: The Financing Documents to which it is a
party constitute its legal, valid and binding obligations
enforceable in accordance with their terms;
14.1.4 NON-VIOLATION: Neither the signing and delivery of the
Financing Documents to which it is a party nor the performance
of any of the transactions contemplated in any of them does or
will contravene or constitute a default under, or cause to be
exceeded, any limitation on it or the powers of its directors
imposed by or contained in:
(a) any Law by which it or any of its assets is bound or
affected;
(b) any document which contains or establishes its
constitution;
(c) any material provision of any agreement or undertaking
to which it (or any of its Significant Subsidiaries) is
a party or by which any of its or their assets is bound;
(d) any material provision of any financing agreement
entered into by it (or by any Significant Subsidiary);
or
(e) any judicial or arbitral decision binding on it;
14.1.5 CONSENTS: No authorisation, approval, consent, license,
exemption, registration, recording, filing or notarisation and
no payment of any duty or tax and no other action whatsoever
which has not been duly and unconditionally obtained, made or
taken is necessary to ensure the validity, legality,
enforceability or ranking of the liabilities and obligations
of it or the rights of each of the Banks, under the Financing
Documents;
14.1.6 NO DEFAULT:
(a) no Event of Default is continuing or is reasonably
likely to result from the execution of, or the
performance of any transaction contemplated by the
Financing Documents;
(b) no event has occurred which constitutes, or which with
the giving of notice and/or the expiry of any applicable
grace period and/or the making of a relevant
determination would constitute, a contravention of, or
default under, any agreement or instrument by which it
or any of its assets is bound or affected, or by which
any of its assets is bound or affected (in each case
including any financing agreement to which it is a
party), being a contravention or default which in the
opinion of the Majority Banks could reasonably be
expected to have a material adverse effect on (i) the
business, financial condition, operations or property of
each Obligor (other than the Parent) or any of the
Borrower's Significant Subsidiaries, and (ii) the
ability of each Obligor (other than the Parent) to
observe or perform any of its payment obligations under
the Financing Documents to which it is a party;
14.1.7 LITIGATION: Subject to the proviso to sub-clause 14.1.6 (NO
DEFAULT), no litigation, arbitration or administrative
proceeding or claim which (if adversely determined) could, in
the opinion of the Majority Banks, by itself, or together with
any other such proceedings or claims, reasonably be expected
to affect
materially and adversely (i) the business, financial
condition, operations or property of it (or of any of its
Significant Subsidiaries) and (ii) the ability of each Obligor
to observe or perform its obligations under the Financing
Documents to which it is a party, is presently in progress or
pending or, to the best of its knowledge, threatened against
it (or any of its Significant Subsidiaries) or any of its (or
any of its Significant Subsidiaries') assets;
14.1.8 TAX LIABILITIES: Neither it nor any of its Significant
Subsidiaries is in default in the delivery of returns to the
relevant taxation authorities or in the payment of any taxes,
the non-delivery or non-payment of which in the opinion of the
Majority Banks could reasonably be expected to materially and
adversely affect (i) the business, financial condition,
operations or property of each Obligor (or that of any of its
Significant Subsidiaries) and (ii) each Obligor's ability to
perform or observe its obligations under the Financing
Documents to which it is a party; and no material claim is
being asserted against the Obligors (other than the Parent) or
any Significant Subsidiary with respect to taxes which is not
disclosed or provisioned as required by French GAAP or the
generally accepted accounting principles in its jurisdiction
of incorporation in its most recent financial statements;
14.1.9 DEDUCTION OF TAX: It is not required under the law of its
jurisdiction of incorporation to make any deduction for or on
account of Tax from any payment it may make under the
Financing Documents;
14.1.10 ACCOUNTS: The latest consolidated accounts of the Group
delivered under this Agreement have been prepared on a basis
consistently applied (except as therein stated) in accordance
with French GAAP and present fairly the results of its
operations and those of the Obligors (other than the Parent)
for the period to which they relate and the state of its
affairs and those of the Obligors (other than the Parent) at
the end of that period;
14.1.11 NO SECURITY INTEREST: None of its assets (nor the assets of
any of its Significant Subsidiaries) is affected by any
Security Interest (other than Permitted Security Interests)
for an amount exceeding (in aggregate for all such persons)
Euro2,000,000, and it is not (and none of its Significant
Subsidiaries is) a party to nor is it or any of its assets
bound by, any order, agreement or instrument under which it
(or any of its Significant Subsidiaries) is, or in certain
events may be, required to create, assume or permit to arise
any Security Interest, other than any Permitted Security
Interest;
14.1.12 DISSOLUTION: No current or pending proceedings for the
dissolution, or any other similar proceedings, of it (or of
its Significant Subsidiaries) is presently in progress or
pending or, to its knowledge, threatened against it (or any of
its Significant Subsidiaries) except as part of an internal
solvent re-organisation;
14.1.13 PARI PASSU RANKING: The Obligors' (other than the Parent's)
obligations under the Financing Documents will rank at least
PARI PASSU with all its other present and future unsecured and
unsubordinated obligations other than obligations that are
mandatorily preferred by law;
14.1.14 NO IMMUNITY: No Obligor (other than the Parent) is entitled to
claim any sovereign or jurisdiction immunity for itself or its
assets under any law or in any jurisdiction or the enforcement
of any judgment or award arising from any proceedings under
the Financing Documents;
14.1.15 MATERIAL ADVERSE CHANGE: There has been no material adverse
change in the consolidated financial condition of the Group
since the date hereof;
14.1.16 EXISTING INDEBTEDNESS: No Indebtedness exists in respect of
the Group other than the Existing Facility until refinanced by
this Facility, outstanding Indebtedness from other Group
Companies, the Ancillary Facilities and the bonds issued by
the Borrower with a maturity of February 2005;
14.1.17 JOINT-VENTURES AND UNLIMITED LIABILITY PARTNERSHIPS: No Group
Company has entered into any partnership resulting in any such
Group Company having unlimited liability, or any joint-venture
or other agreement with any Person outside the Group for the
joint-development of any business or the sharing of any assets
or revenues derived from any business save as set out in
Schedule 10 (JOINT VENTURES) or as permitted by sub-clause
15.4.7 (JOINT VENTURES AND UNLIMITED PARTNERSHIPS);
14.1.18 CASH CIRCULATION: There exists no restriction to the cash
circulation within the Group which would prevent partial
repayments of the Facility pursuant to Clause 8 (REPAYMENT OF
ADVANCES) or Clause 10.2 (PARTIAL CANCELLATION AND MANDATORY
REPAYMENT) other than those imposed by applicable laws;
14.1.19 NO FILING OR STAMP TAXES: Under the laws of its jurisdiction
of incorporation, it is not necessary that the Financing
Documents be filed, recorded or enrolled with any court or
other authority in that jurisdiction, or that any stamp,
registration or similar tax (other than nominal stamp duty,
the non payment of which does not affect the binding nature of
its obligation thereunder) be paid in relation to the
Financing Documents or the transactions contemplated by the
Financing Documents;
14.1.20 GOVERNING LAW: The choice of English law as the governing law
of this Agreement and any judgment obtained in
England will be
recognised and enforced in its jurisdiction of incorporation;
14.1.21 ENVIRONMENTAL LICENCES AND ENVIRONMENTAL LAWS: It has and each
member of the Group has, obtained all Environmental Permits
requisite for the operation of its business and the entry into
and performance of the Financing Documents and has at all
times fully complied in all material respects with the terms
of those Environmental Permits and all other applicable
Environmental Laws; and
14.1.22 INFORMATION: All of the written information supplied by it to
the Facility Agent, the Arrangers and the Banks in connection
herewith (including without limitation the Information
Memorandum) was true, complete and accurate in all material
respects as of the date it was supplied and it is not aware of
any material facts or circumstances that have not been
disclosed to the Facility
Agent, the Arrangers or the Banks and which might, if
disclosed, adversely affect the decision of a person
considering whether or not to provide finance to the Borrower.
14.2 AFTER SIGNING
Absent notice to the Facility Agent pursuant to sub-clause 13.4.2 of
Clause 13.4 (CONDITIONS TO EACH ADVANCE), each Obligor (other than the
Parent which is deemed to repeat its warranties and representations
pursuant to Section 7 of the Parent Guarantee) shall be deemed to
represent and warrant to each of the Finance Parties on every Drawing
Date and on the first day of any Interest Period, with reference to the
facts and circumstances then subsisting, that each of the
representations and warranties given by it contained in Clause 14.1 (ON
SIGNING OBLIGORS' REPRESENTATIONS) remains true, accurate and correct
(other than sub-clauses 14.1.9 (DEDUCTION OF TAX) and 14.1.16 (EXISTING
INDEBTEDNESS).
15. UNDERTAKINGS
15.1 ACCOUNTS AND INFORMATION
The Borrower undertakes with each of the Banks that, from the date of
this Agreement until all of its liabilities under the Financing
Documents have been discharged:
15.1.1 PREPARATION OF ACCOUNTS:
(a) It will prepare the financial statements referred to in
sub-clause 15.1.2 (INFORMATION) on a basis consistently
applied in accordance with French GAAP and those
financial statements shall fairly present the results of
its operations and those of the Group for the period in
question and the state of its affairs and those of the
Group as at the date to which the financial statements
are made up; and
(b) It will, prior to any amendment being effected, inform
the Facility Agent of its desire to amend the date of
its financial year end or that of any of its
Subsidiaries from 31 December (the "ACCOUNTING REFERENCE
DATE") whereupon the Borrower and the Facility Agent, on
behalf of the Majority Banks, shall in good faith make
any amendments to this Agreement (including, but not
limited to this Clause 15 (UNDERTAKINGS), Clause 16
(EVENTS OF DEFAULT) and Schedule 8 (FINANCIAL COVENANTS)
and the other Financing Documents as, in the opinion of
the Facility Agent, on behalf of the Majority Banks, may
be necessary or desirable to take account of the change
of the accounting reference date.
15.1.2 INFORMATION: It will deliver to the Facility Agent in
sufficient numbers for each of the Banks:
(a) ACCOUNTS:
on each relevant Delivery Date,
(i) with respect to the Financial Year, copies of the
audited consolidated financial statements of the
Group for that period which
shall contain an income statement, a balance sheet
and a cash flow statement and be audited and
certified without material qualification referring
to circumstances which could result in any Obligor
being unable to perform its payment obligations
under the Financing Documents; and
(ii) with respect to the Semi-Financial Year ending in
June 2003, copies of the consolidated financial
statements of the Group for that half-year which
shall contain an income statement, a balance sheet
and a cash flow statement and be the subject of a
limited review by its auditors if available or
otherwise certified by the chief financial officer
of the Borrower;
(b) promptly and upon the occurrence of each event set out
in Clause 10.2 (PARTIAL CANCELLATION AND MANDATORY
REPAYMENT OF THE FACILITY) a certificate signed by the
chief financial officer of the Borrower containing all
information necessary to verify the calculation of all
amounts to be repaid pursuant to Clause 10.2 (PARTIAL
CANCELLATION AND MANDATORY REPAYMENT OF THE FACILITY);
(c) promptly, all public information as the Facility Agent
may request;
(d) promptly, any such information regarding the financial
condition, business and operations of any member of the
Group as any Bank (through the Facility Agent) may
reasonably request;
(e) promptly, such additional financial or other available
information about any material event relating to the
ability of each Obligor (other than the Parent) to
perform its payment obligations pursuant to this
Agreement; and
(f) any financial notation or change in such financial
notation attributed by any rating agency to the Facility
(or to the Borrower if no rating of the Facility has
been published) as soon as the Borrower has been
informed of such information.
15.2 USE OF WEBSITES
15.2.1 The Borrower may satisfy its obligation to deliver public
information to the Banks by posting such information onto an
electronic website and by notifying the Facility Agent (i) of
the address of the website together with any relevant password
specifications and (ii) that such information has been posted
on the website.
15.2.2 Notwithstanding sub-clause 15.2.1 above, the Borrower shall
also supply to the Facility Agent one paper copy of any
information which is posted onto the website.
15.3 GENERAL UNDERTAKINGS
Each Obligor (other than the Parent) undertakes (on behalf of itself
and, on behalf of each of its Significant Subsidiaries, where
applicable) with each of the Banks that from
the date of this Agreement until all its liabilities under the Financing
Documents have been discharged and the Banks have no further obligations
under the Financing Documents:
15.3.1 CONSENTS: It will obtain and promptly renew from time to time,
and will promptly deliver to the Facility Agent certified
copies of, any such authorisation, approval, consent, license,
exemption, registration, recording, filing or notarisation as
may be necessary (under the laws of all jurisdictions
concerned) to ensure the validity, enforceability or ranking
of the liabilities and obligations of it or the rights of each
of the Banks under the Financing Documents to which it is a
party and it shall comply with the terms of the same;
15.3.2 DEFAULT: If it becomes aware of the occurrence of a Default it
will forthwith notify the Facility Agent and provide the
Facility Agent with full details of any steps which it is
taking, or is considering taking, in order to remedy or
mitigate the effect of the Default or otherwise in connection
with it;
15.3.3 LITIGATION: Promptly after becoming aware of the same, it will
inform the Facility Agent of any litigation, arbitration or
administrative proceeding or claim of the kind described in
sub-clause 14.1.7 (LITIGATION);
15.3.4 INSURANCE: It will procure that there is in effect insurance
cover over its assets and undertakings (and the assets and
undertakings of each of its Significant Subsidiaries) of a
type and in an amount which is prudent and consistent with
good business practice in the industry concerned;
15.3.5 PARI PASSU RANKING: Its obligations under the Financing
Documents do and will rank at least PARI PASSU with all its
other present and future unsecured and unsubordinated
obligations other than obligations that are mandatorily
preferred by law;
15.3.6 COMPLIANCE WITH LAWS: It will (and it will procure that each
of its Significant Subsidiaries will):
(a) comply with all applicable laws in all material respects
(including laws in relation to taxes); and
(b) obtain all consents, authorisations, licenses,
approvals, permits, exemptions, filings, recordings,
notarisations and registrations and take all actions, in
each case, necessary for the time being to comply in all
material respects with applicable laws, PROVIDED THAT
obligations with respect to taxes and social security
contributions may be disputed in good faith so long as
sufficient provision therefore is made in accordance
with French GAAP to meet the requirements of its
auditors in respect of the making of provisions for such
disputed liabilities and so long as such non-payment
does not prejudice the interests of the Banks in any
material respect.
15.3.7 COMPLIANCE WITH AGREEMENTS:
(a) Each Obligor (other than the Parent) will comply in all
material respects with the terms of any agreement or
undertaking (as amended from time to time) to which it
is a party or by which any of its assets is bound; and
(b) Each Obligor (other than the Parent) will procure that
each of its Significant Subsidiaries will comply in all
material respects with the terms of any agreement or
undertaking (as amended from time to time) to which such
Significant Subsidiary is a party or by which any of its
assets is bound;
in each case to the extent that failure to do so could, in the
opinion of the Majority Banks, be reasonably expected to have
a material adverse effect on the business, financial
condition, operations or property of any Obligor (other than
the Parent) or any Significant Subsidiary, and on the ability
of such Obligor to observe and perform any of its obligations
under the Financing Documents to which it is a party.
15.3.8 STATUS: It will, and it will procure that each Significant
Subsidiary will, maintain its corporate existence under
applicable law and the right to carry on its business and
operations as they are now being conducted;
15.3.9 AUTHORISATIONS: It will, and it will procure that each
Significant Subsidiary will, obtain and promptly renew from
time to time any authorisation, approval, consent, license,
exemption, registration, recording, filing or notarisation as
may be necessary for its business;
15.3.10 TAXES-SOCIAL CONTRIBUTIONS: It will, and it will procure that
each Significant Subsidiary will pay all material taxes and
social contributions due and payable by each of them within
applicable time limits, PROVIDED THAT obligations with respect
to taxes and social security contributions may be disputed in
good faith so long as sufficient provision therefore is made
in accordance with French GAAP to meet the requirements of its
auditors in respect of the making of provisions for such
disputed liabilities and so long as such non-payment does not
prejudice the interests of the Banks in any material respect.
15.3.11 REPRESENTATIONS AND WARRANTIES: It will promptly inform the
Facility Agent of any change in the representations and
warranties.
15.3.12 CASH CIRCULATION: The Borrower shall use its best endeavours
to facilitate cash circulation within the Group to the extent
necessary to permit partial repayments of the Facility
pursuant to Clauses 8 (REPAYMENT OF ADVANCES) and 10.2
(PARTIAL CANCELLATION AND MANDATORY REPAYMENT).
15.3.13 ENVIRONMENTAL MATTERS: It will, and it will procure that each
Significant Subsidiary of it will, obtain all requisite
Environmental Permits and fully comply in all material
respects with the terms and conditions of all Environmental
Permits applicable to it and all other applicable
Environmental Law and shall, promptly upon receipt of the
same, notify the Facility Agent of
any claim, notice or other communication served on it in
respect of any alleged breach of any Environmental Law which
is reasonably likely to have a material adverse change.
15.4 NEGATIVE UNDERTAKINGS
Each Obligor (other than the Parent) undertakes with each of the Banks
that, from the date of this Agreement until all its liabilities under
the Financing Documents have been discharged:
15.4.1 NEGATIVE PLEDGE: It will not, and will procure that no Group
Company will, create or permit to subsist any Security
Interest on the whole or any part of its present or future
property, assets or revenues except for:
(a) the Security Interests detailed in Schedule 9 (EXISTING
PERMITTED SECURITY INTERESTS) so long as the principal
amount secured by any such Security Interest is not
increased beyond the maximum such amount which may be
secured at the date of this Agreement (by reference to
the facts and circumstances existing at such date); and
(b) Liens or rights of set-off arising by operation of Law;
and
(c) in a maximum amount not exceeding Euro125,000,000
Security Interests guaranteeing the repayment of the
Ancillary Facilities, Security Interests existing over
the assets of Subsidiaries acquired after the date of
this Agreement (to the extent permitted by sub-clause
15.4.5 (ACQUISITIONS)) and Security Interests securing
payment of the purchase price of assets acquired in the
ordinary course of business,
(together the "PERMITTED SECURITY INTERESTS").
15.4.2 DISPOSALS:
(a) Save as permitted under this Agreement in relation to
the ▇▇▇▇▇▇▇ Joint Venture, it will not, either in a
single transaction or in a series of transactions
whether related or not and whether voluntarily or
involuntarily, sell, assign, transfer or otherwise
dispose of more than 10% of its shares in a Significant
Subsidiary to any Person, except to a Wholly Owned
Subsidiary of the Borrower or of a Significant
Subsidiary and PROVIDED THAT such disposal does not
entail any Group Company ceasing to be a Subsidiary of
the Borrower;
(b) Save as otherwise permitted by this Agreement, it will
not, either in a single transaction or in a series of
transactions whether related or not and whether
voluntarily or involuntarily, sell, assign, transfer or
otherwise dispose of any of its assets other than:
(i) on arm's length terms in the ordinary course of
trading; or
(ii) to another Obligor.
15.4.3 CHANGE OF BUSINESS: It will not, and it will procure that each
Significant Subsidiary will not, engage in any business other
than its current business or any reasonable extensions or
expansions thereof or any business ancillary thereto or
supportive thereof.
15.4.4 INDEBTEDNESS: It will not incur, and shall procure that no
Group Company will incur, any Indebtedness after the date of
this Agreement other than Indebtedness from other Group
Companies, the Ancillary Facilities, Indebtedness the proceeds
of which are applied in accordance with Clause 10.2 (PARTIAL
CANCELLATION AND MANDATORY REPAYMENT OF THE FACILITY) and
Indebtedness from the Parent or any of its Subsidiaries (other
than a Group Company) which is subordinated to the
Indebtedness arising under this Agreement.
15.4.5 ACQUISITIONS: It will not, and the Borrower will procure that
its Subsidiaries will not acquire or subscribe for any assets
or shares other than in the line of its business except to the
extent that:
(i) the aggregate consideration for the shares or
assets comprising all such acquisitions does not
exceed Euro50,000,000 in aggregate until the Final
Repayment Date; or
(ii) such acquisition is in connection with a solvent
corporate restructuring of the Group; or
(iii) such acquisition is wholly financed by the Parent
once the Euro50,000,000 threshold set out in part
(i) above has been reached.
15.4.6 AMALGAMATIONS - LIQUIDATION:
(a) It will not, and it will procure that no Obligor (other
than the Parent) will amalgamate, merge or consolidate
with or into any other Person (other than another
Obligor) or be the subject of any reconstruction (except
as permitted by sub-clause 15.4.7 (JOINT VENTURES AND
UNLIMITED PARTNERSHIPS).
(b) It will not, and it will procure that none of its
Significant Subsidiaries will amalgamate, merge or
consolidate with or into any other Person or to be the
subject of any reconstruction other than an
amalgamation, a merger or a consolidation between Group
Companies or as permitted by sub-clause 15.4.7 (JOINT
VENTURES AND UNLIMITED PARTNERSHIPS), PROVIDED THAT in
each case the rights of the Finance Parties and the
Financing Documents will not be adversely affected by
such amalgamation, merger or consolidation.
(c) It will not, and it will procure that no Group Company
will voluntarily dissolve or liquidate Subsidiaries
other than non Significant Subsidiaries and whose
liquidation surplus is distributed to another Group
Company.
15.4.7 JOINT VENTURES AND UNLIMITED PARTNERSHIPS:
(a) It will not (and will procure that no Group Company
does) enter into any joint venture or similar
arrangement with any Person other than (i) any
investments by any Group Company the consideration for
which, when aggregated with the consideration of any
other investments made by any Group Company (other than
the ▇▇▇▇▇▇▇ Joint Venture) does not exceed 10% of the
consolidated assets of the Group (as at 30 June 2002 as
set forth in the consolidated financial statements of
the Group for the Semi-Financial Year ending on 30 June
2002) or (ii) the ▇▇▇▇▇▇▇ Joint Venture;
(b) It will not reduce (and will procure that no Group
Company reduces) its participation in joint-ventures
existing as at the date of this Agreement or, if it
occurs, the ▇▇▇▇▇▇▇ Joint Venture;
(c) It will not (and will procure that no Group Company
does) enter into partnerships or other bodies corporate
or incorporate involving its or such Group Company's
unlimited liability.
15.4.8 GUARANTEES - LOANS: It will not, and it will procure that no
Group Company will guarantee any Person, make any loans, or
grant any credit to any Person (other than the Group
Companies) except that:
(a) the Borrower or any other Group Company may issue a
guarantee in favour of any Person in connection with the
Ancillary Facilities;
(b) any Group Company may issue a guarantee in favour of any
Person in connection with commercial and ancillary
transactions (including insurance, tax obligations,
customs or any other similar obligations) within the
framework of the Group's field of activities; and
(c) any Group Company may make a loan in favour of any
Person in connection with a transaction permitted by
sub-clause 15.4.7 (JOINT VENTURES AND UNLIMITED
PARTNERSHIPS) so long as such loan is funded with the
proceeds of an intercompany loan made by the Parent or
any of its Subsidiaries (other than a Group Company) to
such Group Company.
15.5 FINANCIAL COVENANTS
The Borrower shall procure that the financial ratios set out in Schedule
8 (FINANCIAL COVENANTS) are complied with at all times. The ratios will
be tested on each relevant Test Date for the relevant period or date
specified in Schedule 8 and a certificate signed by the chief financial
officer of the Borrower shall be delivered to the Facility Agent on each
relevant Delivery Date showing the calculation thereof as indicated in
Schedule 8 (FINANCIAL COVENANTS) with the relevant information
permitting the verification and calculation of such ratios by the
Facility Agent.
16. DEFAULT
16.1 EVENTS OF DEFAULT
Each of the following events (whether or not caused by a reason outside
the control of the Obligors) shall constitute an Event of Default:
16.1.1 NON-PAYMENT: Any Obligor fails to pay:
(a) any amount of principal, fees, commissions or interest
due under any Financing Document on the due date or on
demand, if so payable, except where such failure arises
solely from an administrative or technical failure
affecting the transfer of funds and where the amount in
question is paid within five (5) Business Days of the
due date; or
(b) any other amount whatsoever due under any Financing
Document on the due date or on demand, if so payable,
except where the amount in question is paid within
fifteen (15) days of the due date or the date of demand.
16.1.2 BREACH OF SPECIFIC UNDERTAKINGS:
(a) (i) Any Obligor (other than the Parent) is in breach of
sub-clause 15.4.6 (AMALGAMATIONS-LIQUIDATION) or Clause
15.5 (FINANCIAL COVENANTS) or, (ii) the Parent is in
breach of section 8.2(a) of the Parent Guarantee;
(b) Any Obligor (other than the Parent) is in breach of
sub-clause 15.4.1 (NEGATIVE PLEDGE), sub-clause 15.4.2
(DISPOSALS), sub-clause 15.4.4 (INDEBTEDNESS),
sub-clause 15.4.8 (GUARANTEES - LOANS) except if it is
remedied within a period of ten (10) Business Days of
notifying such failure to the Borrower to the Majority
Banks' satisfaction.
16.1.3 BREACH OF OTHER OBLIGATIONS: Any Obligor fails to observe or
perform any of its obligations or undertakings under the
Financing Documents or under any undertaking or arrangement
entered into in connection therewith, other than an obligation
of the type referred to in sub-clauses 16.1.1 (NON-PAYMENT),
16.1.2 (BREACH OF SPECIFIC UNDERTAKINGS) and, in the case of a
failure capable of being remedied, the Facility Agent acting
upon the instructions of the Majority Banks does not
determine, within a period of twenty (20) Business Days of
notifying such failure to the Borrower, that it has been
remedied to the Majority Banks' satisfaction.
16.1.4 MISREPRESENTATION: Any representation, warranty or statement
which is made (or deemed to be repeated or acknowledged in
writing to have been made) by any Obligor in any of the
Financing Documents or which is contained in any written
certificate, statement, or notice provided under or in
connection with any of the Financing Documents proves to be
incorrect in any material respect, or if repeated at any time
with reference to the facts and circumstances subsisting at
such time, would not be accurate in any material respect and,
in the case of a failure capable of being remedied, the
Facility Agent acting upon the instructions of the Majority
Banks determines, within a period of twenty (20)
Business Days of notifying such failure to the Borrower, that
it has not been remedied to the Majority Banks' reasonable
satisfaction.
16.1.5 INVALIDITY: Any provision of any of the Financing Documents is
or becomes, for any reason, invalid, unenforceable or
ineffective, is repudiated by any Obligor or is alleged by any
Obligor to be invalid, unenforceable or ineffective.
16.1.6 CESSATION OF BUSINESS: An Obligor or any Significant
Subsidiary changes or threatens to change the nature or scope
of its business, suspends or threatens to suspend an essential
part of the present business operations which it now conducts
directly or indirectly and/or (except with respect to the
Parent) sells or threatens to sell all or a materially
significant part of its assets or shares, unless such changes
are made for the purposes of an internal reorganisation or in
connection with a transaction permitted by sub-clause 15.4.7
(JOINT VENTURES AND UNLIMITED PARTNERSHIPS).
16.1.7 CROSS-DEFAULT:
(a) any Indebtedness of an Obligor, or any of the Borrower's
Significant Subsidiaries aggregating for all such
persons an amount in excess of Euro40,000,000 (or the
equivalent thereof in other currencies) is not repaid on
its due date (or within any applicable grace period) and
remains unpaid fifteen (15) days after it becomes due
(provided however that no grace period shall be
applicable if the relevant creditor accelerates the
repayment of the relevant Indebtedness or takes any
measures to attach assets); or
(b) the occurrence of any event whatsoever constituting an
event of default which results in any amount outstanding
aggregating in respect of an Obligor and/or any of the
Borrower's Significant Subsidiaries in excess of
Euro40,000,000 (or the equivalent thereof in other
currencies), under any loan or credit facility to which
an Obligor or any of the Borrower's Significant
Subsidiaries is a party, becoming due and payable before
its stated maturity (where applicable, upon expiry of
any notice or grace period),
16.1.8 RECEIVERSHIP, INSOLVENCY, ADMINISTRATION:
(a) A petition is presented, a meeting is convened, an
application is made or any other step is taken for the
purpose of appointing an administrator or receiver or
other similar officer (a CONCILIATEUR or an
ADMINISTRATEUR PROVISOIRE or a MANDATAIRE AD HOC) in
respect of an Obligor and/ or any of the Borrower's
Significant Subsidiaries enters into or proposes to
enter into an amicable settlement (ACCORD AMIABLE) with
its creditors pursuant to the French Law no 84-148 of 1
March 1984 (Article L611-3 ET SEQ. of the CODE DE
COMMERCE to the extent applicable) or an alert procedure
(PROCEDURE D'ALERTE) is initiated (pursuant to Article
230-1 all of French Law no. 66-537 of 24 July 1966
(Article L. 234-1 of the CODE DE COMMERCE), Article
226-1 of French Law no. 66-537 of 24 July 1966
(Article L. 225-232 of the CODE DE COMMERCE), Article L.
432-5 section 1 of the CODE DU TRAVAIL or Article 34 of
the Law no. 84-148 of 1 March 1984 (Article L. 611-2 of
the CODE DE COMMERCE)); or
(b) Any insolvency, administration or analogous events or
proceedings whatsoever are commenced in respect of an
Obligor or any of the Borrower's Significant
Subsidiaries, as the result of any stoppage or
suspension, or threat or announcement of intention to
stop or suspend, the payment of debts of an Obligor or
any of the Borrower's Significant Subsidiaries pursuant
to Article 3 of the French Law no. 85-98 of 25 January
1985 (Article L621-1 of the CODE DE COMMERCE to the
extent applicable) (whether declared or undeclared), or
an Obligor or any of the Borrower's Significant
Subsidiaries makes any proposal for a moratorium in
relation to any of its debts, or becomes insolvent, or,
to the fullest extent permitted by applicable laws, is
subject to any bankruptcy or insolvency proceedings
(PROCEDURE DE REDRESSEMENT JUDICIAIRE, PROCEDURE DE
LIQUIDATION JUDICIAIRE), or makes any conveyance,
assignment or other similar arrangements for the benefit
of its creditors, or a judgment is issued for the
judicial liquidation or for a transfer of the whole of
its business (CESSION TOTALE DE L'ENTREPRISE), or ceases
to operate its business or goes into voluntary
liquidation (LIQUIDATION AMIABLE OU VOLONTAIRE) or
dissolution, except as part of an internal
reorganisation permitted by the terms of this Agreement.
16.1.9 ANALOGOUS PROCEEDINGS: Anything analogous to any of the events
specified in sub-clause 16.1.8 of this Clause 16.1 occurs
under the laws of any applicable jurisdiction.
16.1.10 MATERIAL ADVERSE CHANGE:
(a) any event or series of events whether related or not,
including but not limited to any breach or loss of a
material contract of any nature, occurs which in the
opinion of the Majority Banks could reasonably be
expected to affect materially and adversely (a) the
business, financial condition, operations or property of
an Obligor (or that of any of the Borrower's Significant
Subsidiaries) or (b) the ability of an Obligor to
observe or perform any of its obligations under the
Financing Documents; or
(b) there has been, in the opinion of the Majority Banks, a
material adverse change in the consolidated financial
condition of the Parent or the Group since the date of
the Parent's or, as the case may be, the Group's most
recent consolidated financial statements.
16.1.11 FINAL JUDGMENT: Any final judgment or order whatsoever (not
covered by insurance) for the payment of money which in
aggregate for the Obligors and the Borrower's Significant
Subsidiaries exceeds an amount of Euro40,000,000 (or the
equivalent thereof in other currencies) (treating, for the
avoidance of doubt, any deductibles, self-insurance or
retention as not so covered by insurance) is rendered against
an Obligor (or any of the Borrower's Significant
Subsidiaries) and is not paid or discharged, and a stay of
enforcement of such final judgment or order, by reason of a
pending appeal or otherwise, is not effected within a period
of thirty (30) days from the date the final judgment or order
was rendered.
16.1.12 EXPROPRIATION, NATIONALISATION: The expropriation or
nationalisation of all or a substantial part of any Obligor or
any of the Borrower's Significant Subsidiaries' assets by any
governmental, regulatory or other competent authority.
16.1.13 AUDITORS' QUALIFICATIONS: Any material qualification being
made by the auditors of any Obligor referring to circumstances
which could result in such Obligor being unable to perform its
payment obligations under any Finance Document.
16.2 ACTION ON EVENT OF DEFAULT
On the occurrence of an Event of Default then, at once or at any time
thereafter, the Facility Agent may, and upon the request of the Majority
Banks shall, by notice to the Borrower take the following actions:
16.2.1 cancel all or part of the Total Commitments; and/or
16.2.2 declare all or part of the Total Outstandings to be
immediately due and payable whereupon they shall become so due
and payable together with accrued interest thereon and any
other amounts then payable under the Financing Documents, such
payment to be effected on a date to be notified by the
Facility Agent to the Borrower.
16.3 NOTICE
If the Facility Agent is notified under this Agreement of the occurrence
of a Default, it shall inform each of the Banks.
17. INDEMNITY
The Borrower shall, from time to time, forthwith on demand indemnify
each Finance Party against any expense, loss, cost, damage or liability
(including any loss of profit) which that Finance Party suffers or
incurs in connection with:
17.1.1 the occurrence of any Default in respect of the Borrower;
17.1.2 the operation of Clause 19.3 (CLAWBACK) or Clause 16.2 (ACTION
ON EVENT OF DEFAULT) in respect of the Borrower;
17.1.3 the receipt by any Bank from the Borrower of all or part of
any Advance or an overdue sum otherwise than on the last day
of any Interest Period in respect of such Advance or the last
day of any period designated under Clause 7 (LATE PAYMENT
COMPENSATION) in respect of such overdue sum; or
17.1.4 funding, or making arrangements to fund, its participation in
an Advance requested by the Borrower in a Drawing Notice but
not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default
or negligence by that Finance Party alone).
Without prejudice to its generality, the foregoing indemnity shall
extend to any Breakage Costs and loss of margin and to any interest,
fees or other sum whatsoever paid or payable on account of any funds
borrowed in order to carry any unpaid amount.
18. GUARANTEE
18.1 GUARANTEED AMOUNTS
Each Acceding Guarantor as principal debtor and not merely as surety
unconditionally and irrevocably and jointly and severally guarantees to
each of the Finance Parties punctual payment by the Borrower of the
Guaranteed Amounts in accordance with the Financing Documents and
unconditionally and irrevocably undertakes to each of the Finance
Parties that, if and each time the Borrower does not make payment of any
of the Guaranteed Amounts in accordance with the Financing Documents,
such Acceding Guarantor shall pay the amounts not so paid upon first
written demand being made by the Facility Agent to all Guarantors.
In this Clause 18.1 "GUARANTEED AMOUNTS" means any and all amounts
whatsoever which the Financing Documents provide are to be paid by the
Borrower to the Finance Parties (or any of them) and references to the
Guaranteed Amounts include references to any part of them
18.2 INDEMNITY
As a separate, additional, continuing and primary obligation, each
Acceding Guarantor unconditionally and irrevocably and jointly and
severally undertakes with the Finance Parties (and each of them) that,
should the Guaranteed Amounts not be recoverable from any Acceding
Guarantor under Clause 18.1 (GUARANTEED AMOUNTS) for any reason
whatsoever (including, but without prejudice to the generality of the
foregoing, by reason of any other provision of the Financing Documents
being or becoming void, unenforceable or otherwise invalid under any
applicable Law) then, notwithstanding that it may have been known to any
Finance Party, such Acceding Guarantor shall upon first written demand
by the Facility Agent under Clause 18.1 (GUARANTEED AMOUNTS) make
payment of the Guaranteed Amounts by way of a full indemnity in such
manner as is provided for in the Financing Documents and shall indemnify
the Finance Parties (and each of them) against all losses, claims,
costs, charges and expenses to which they may be subject or which they
may incur under or in connection with the Financing Documents.
18.3 CONTINUING GUARANTEE
The above guarantees shall be continuing and shall extend to the
ultimate balance of the Guaranteed Amounts, regardless of any
intermediate payment or discharge in whole or in part. If any of the
above guarantees ceases to continue in force, the Facility Agent and
each Finance Party may open a new account with or continue any existing
account with the Borrower and the liability of the relevant Acceding
Guarantor in respect of the Guaranteed Amounts at the date of the
cessation shall remain regardless of any payments in or out of any such
account.
18.4 DISCHARGE AND RELEASE
Save as permitted by Clause 18.11, none of the Guarantors may terminate
its guarantee by notice to any Finance Party or otherwise. Subject to
Clause 18.5 (CLAWBACK) and
provided the Guaranteed Amounts have been paid in full, the Facility
Agent may on behalf of itself and the other Finance Parties discharge or
release the Guarantors by written instrument signed by the Facility
Agent.
18.5 CLAWBACK
Any discharge or release referred to in Clause 18.4 (DISCHARGE AND
RELEASE), and any composition or arrangement which any of the Guarantors
may effect with the Facility Agent, shall be deemed to be made subject
to the condition that it will be void if any payment or security which
the Finance Parties (or any of them) may previously have received or may
thereafter receive from any person in respect of the Guaranteed Amounts
is set aside, refunded or reduced, in whole or in part, under any
applicable Law or proves to have been for any reason invalid. If such
condition is satisfied, the Facility Agent shall be entitled to recover
from each Acceding Guarantor on demand the value of such security or the
amount of any such payment as if such discharge, release, compromise or
arrangement had not occurred.
18.6 WAIVER OF DEFENCES
The liabilities and obligations of each of the Acceding Guarantors under
this Agreement shall remain in force notwithstanding any act, omission,
neglect, event or matter whatsoever, except the proper and valid payment
of all the Guaranteed Amounts and, without prejudice to its generality,
the foregoing shall apply in relation to anything which would have
discharged the Guarantors (wholly or in part) or which would have
afforded the Guarantors any legal or equitable defence, and in relation
to any winding up, reconstruction, reorganisation or dissolution of, or
any change in constitution or corporate identity or loss of corporate
identity by, the Borrower, any other Guarantor or any other person and
any incapacity or lack of corporate power or authority of any person.
Without prejudice to the generality of the foregoing none of the
liabilities or obligations of the Acceding Guarantors under this
Agreement shall be impaired by the Finance Parties (or any of them):
18.6.1 agreeing with any Obligor any variation or departure (however
substantial) of or from any Financing Document and any such
variation or departure shall, whatever its nature, be binding
upon each Acceding Guarantor in all circumstances,
notwithstanding that it may increase or otherwise affect the
liability of the Guarantors, PROVIDED THAT if any variation
which would increase the liability of any Acceding Guarantor
is made without each Acceding Guarantor's prior written
consent the amount of each Acceding Guarantor's liability
under this Clause 18.6 shall be limited to the amount for
which it would have been liable had such variation not been
made;
18.6.2 releasing or granting any time or any indulgence whatsoever to
the Borrower and, in particular, waiving any of the
pre-conditions for Advances under this Agreement or any
contravention by the Borrower of any of the Financing
Documents, or entering into any transaction or arrangements
whatsoever with or in relation to the Borrower and/or any
third party;
18.6.3 taking, accepting, varying, dealing with, enforcing,
abstaining from enforcing, surrendering or releasing any
security for the Guaranteed Amounts in such manner as it or
they think fit;
18.6.4 claiming, proving for, accepting or transferring any payment
in respect of the Guaranteed Amounts in any composition by, or
winding up of, the Borrower and/or any third party or
abstaining from so claiming, proving, accepting or
transferring.
18.7 DEMANDS
Demands under this Clause 18.7 may be made from time to time, and the
liabilities and obligations of the Acceding Guarantors under this
Agreement may be enforced, irrespective of:
18.7.1 whether any demands, steps or proceedings are being or have
been made or taken against the Borrower and/or any third party
and/or any other Guarantor; or
18.7.2 whether or in what order any security to which any of the
Finance Parties may be entitled in respect of the Guaranteed
Amounts is enforced.
Each Acceding Guarantor waives diligence, presentment, protest, demand
for repayment and notice of default to or upon the Borrower or
Guarantor. Any demand to be made by the Facility Agent under this Clause
18 shall be made to all the Acceding Guarantors and shall not require
payment of any amount less than 5 Business Days after the date of such
demand.
18.8 SUSPENSE ACCOUNT
Until all amounts which may be or become payable by the Borrower
hereunder or in connection herewith have been irrevocably paid and
discharged in full, the Facility Agent and each other Finance Party may:
18.8.1 refrain from applying or enforcing any other security, moneys
or rights held or received by the Facility Agent or such
Finance Party in respect of such amounts or apply and enforce
the same in such manner and order as the Facility Agent or
such Finance Party sees it (whether against such amounts or
otherwise) and none of the Acceding Guarantors shall be
entitled to the benefit of the same; and
18.8.2 hold in suspense account (subject to the accrual of interest
thereon at market rates for the account of the relevant
Acceding Guarantor(s)) any moneys received from any Acceding
Guarantor or on account of that Guarantor's liability
hereunder.
18.9 SUBORDINATION
So long as any Acceding Guarantor has any liability under this
Agreement:
18.9.1 the Acceding Guarantor shall not take or accept any Security
Interest from the Borrower or, in relation to the Guaranteed
Amounts, from any third party, without first obtaining the
Facility Agent's express written consent;
18.9.2 after the occurrence of an Event of Default or a Potential
Event of Default of which the Acceding Guarantor is aware, no
Acceding Guarantor shall, without
first obtaining the Facility Agent's written consent, seek to
recover, whether directly or by set-off, lien, counterclaim or
otherwise, or accept any moneys or other property, or exercise
any rights, in respect of any sum which may be or become due
to the Acceding Guarantor on any account by the Borrower or,
in relation to the Guaranteed Amounts, from any third party,
or claim, prove for or accept any payment in any composition
by, or any winding up of, the Borrower or, in relation to the
Guaranteed Amounts, any third party;
18.9.3 notwithstanding the foregoing, any Acceding Guarantor holds or
receives any such security, moneys or property, it shall
forthwith pay or transfer the same to the Facility Agent.
18.10 LIMITATION OF LIABILITY
The aggregate liability under this Agreement on any account whatsoever
of ▇▇▇▇▇▇▇ shall not exceed 95% of the consolidated net worth of ▇▇▇▇▇▇▇
(as determined in accordance with its latest financial statements) at
the date on which ▇▇▇▇▇▇▇ is required to make any payment.
18.11 RESIGNATION OF ▇▇▇▇▇▇▇
18.11.1 The Borrower may request that ▇▇▇▇▇▇▇ ceases to be a Guarantor
by delivering to the Facility Agent a Resignation Letter.
18.11.2 The Facility Agent shall accept such resignation and notify
the Borrower and the Banks of its acceptance PROVIDED THAT:
(a) the ▇▇▇▇▇▇▇ Joint Venture has occurred; and
(b) no Default is continuing (and the Borrower has confirmed
that this is the case).
19. SET-OFF AND PRO RATA SHARING
19.1 SET-OFF
Following an Event of Default, any Finance Party may without notice to
the Borrower combine, consolidate or merge all or any of the Obligors'
accounts with, and liabilities to, that Finance Party and may set off or
transfer any sum standing to the credit of any such accounts in or
towards satisfaction of any such Obligor's liabilities to that Finance
Party under the Financing Documents, and may do so notwithstanding that
the balances on such accounts and the liabilities may not be expressed
in the same currency and each Finance Party is hereby authorised to
effect any necessary conversions at the Finance Party's own rate of
exchange then prevailing.
19.2 PRO RATA SHARING
Subject to Clause 19.4 (EXCEPTIONS), if a Finance Party (the "RECIPIENT
FINANCE PARTY") receives or recovers in respect of the Facility any
amount (a "REALISED AMOUNT") (other than from the Facility Agent in
accordance with this Agreement) in respect of sums due from an Obligor
under the Financing Documents under such Facility (whether by set-off or
otherwise) it shall promptly notify the Facility Agent of such amount
and of the Facility under which such amount is received or recovered
and:
19.2.1 the Facility Agent shall, as soon as practicable, determine
and notify the Recipient Finance Party of the portion (the
"NOTIFIED PORTION") of the Realised Amount which the Banks
would have been entitled to had such Realised Amount been
received by the Facility Agent as a payment from a Borrower
under the Facility;
19.2.2 the Recipient Finance Party shall promptly pay the Notified
Portion of the Realised Amount to the Facility Agent who shall
treat such amount as if it were a payment received under
Clause 11 (PAYMENTS) and the Facility Agent will distribute
such payment to the concerned Banks, in accordance with this
Agreement (but after taking account of the Recipient Finance
Party's retained amount and any disentitlement to
distributions under sub-clause 19.4.2 of Clause 19.4
(EXCEPTIONS));
19.2.3 as between the relevant Obligor and the Recipient Finance
Party the Notified Portion shall be treated as not having been
paid but the obligations of such Obligor to the Banks, as
applicable, shall be discharged to the extent of the related
distribution made under sub-clause 19.4.2 of Clause 19.4
(EXCEPTIONS).
19.3 CLAWBACK
If all or any portion of a Realised Amount becomes repayable and is
repaid by such Recipient Finance Party (whether pursuant to a court
order following a winding up of an Obligor or otherwise), then:
19.3.1 each Finance Party receiving a payment under sub-clause 19.2.2
of Clause 19.2 (PRO RATA SHARING) shall, at the request of the
Facility Agent, reimburse the Facility Agent for the account
of the Recipient Finance Party all or the appropriate portion
of the amount paid to such Finance Party under such sub-clause
19.2.2 of Clause 19.2 (PRO RATA SHARING) together with its
proportionate share of any interest paid by the Recipient
Finance Party in respect of such amount;
19.3.2 the adjustments to obligations made pursuant to sub-clause
19.2.2 of Clause 19.2 (PRO RATA SHARING) shall to the
appropriate extent be reversed.
19.4 EXCEPTIONS
19.4.1 Clause 19.2 (PRO RATA SHARING) shall not apply in respect of
any amount received from any Person other than any Obligor,
any Affiliate of an Obligor (or any Person connected to any
Obligor) arising out of a subparticipation or an assignment or
transfer pursuant to Clause 22 (ASSIGNMENTS AND TRANSFERS) or
similar contractual arrangement.
19.4.2 A Finance Party shall not be entitled to any distribution
under sub-clause 19.2.2 of Clause 19.2 (PRO RATA SHARING) if
the Realised Amount arises as a result of any court action or
proceeding in relation to which such Finance Party was invited
in writing and had the opportunity to participate in and/or
make a proportionate contribution in respect of associated
costs, but did not do so.
20. THE FACILITY AGENT AND THE ARRANGERS
20.1 APPOINTMENT
Each Finance Party hereby appoints the Facility Agent to act as its
facility agent, subject to Clause 20.12 (TERMINATION), to take such
action on its behalf and to exercise and carry out such powers,
discretions, authorities and duties as are specifically delegated to it
by the Financing Documents and such powers as the Facility Agent
reasonably considers are incidental thereto. The Facility Agent shall
have only those powers, discretions, authorities and duties which are
expressly specified in the Financing Documents. In connection with its
powers, discretions, authorities and duties under the Financing
Documents, the Facility Agent:
20.1.1 shall act solely as the agent of each of the Banks, and shall
not assume, and shall not be deemed to have assumed, any
obligations or duties to the Banks other than those for which
specific provision is made by the Financing Documents or any
obligations or duty to any of the Obligors;
20.1.2 shall not be liable for any failure of any of the other
Parties to this Agreement duly and punctually to observe and
perform any of its obligations under the Financing Documents;
20.1.3 shall not be liable for any action taken or omitted by it
under or in connection with the Financing Documents unless
directly caused by its gross negligence or wilful misconduct;
20.1.4 may act under the Financing Documents through its personnel
and agents; and
20.1.5 may receive advice from counsel but shall not be responsible
for negligence or misconduct of any adviser, agent or
attorney-in-fact that it selects with reasonable care.
20.2 MAJORITY BANK DIRECTIONS
In the exercise of any power or discretion given to the Facility Agent
under the Financing Documents and as to any matter not expressly
provided for in the Financing Documents or where a decision of the
Majority Banks is provided for, the Facility Agent shall act or refrain
from acting in accordance with the instructions of the Majority Banks.
In the absence of any such instructions or instructions failing to
indemnify the Facility Agent to its satisfaction, the Facility Agent may
act or refrain from acting as it shall see fit. Any such instructions of
the Majority Banks or any such decision of the Facility Agent shall be
binding on all the Banks and the Facility Agent shall not be liable to
any of the Obligors or the Banks or any of them for the consequences of
any such instructions or decision.
20.3 CREDIT APPROVAL
In favour of the Arrangers and the Facility Agent, each Bank
acknowledges in connection with the Financing Documents;
20.3.1 that it has made such enquiries on its own behalf and taken
such care as would have been the case had its participation in
the Facility been made directly by that Bank to the Borrower
without the intervention of the Arrangers or the
Facility Agent and that it has not relied, and does not rely,
upon any information or advice provided, or any appraisal of,
or investigation into, the financial condition,
creditworthiness, affairs, status or nature of the Parent, the
Borrower or any company in the Group effected or provided to
it by the Arrangers or the Facility Agent;
20.3.2 that neither the Arrangers nor the Facility Agent was or will
be obliged either before or at any time after the signing of
this Agreement to provide that Bank with any information or
advice or to make any such investigation or appraisal;
20.3.3 Except as specifically provided in this Agreement, the
Arrangers shall have no obligations or duties under or in
connection with the Financing Documents.
20.4 DOCUMENTATION
Neither the Facility Agent nor the Arrangers or any of their respective
directors, officers, employees or agents shall be liable:
20.4.1 for the execution, validity, enforceability, adequacy or
effectiveness of any of the Financing Documents or any
document delivered pursuant thereto or connected therewith; or
20.4.2 for any statements, representations or warranties made or
referred to in any of the Financing Documents or any
information given in connection with any of the Financing
Documents.
20.5 RELIANCE
The Facility Agent and the Arrangers shall not be liable:
20.5.1 for the consequences of relying on any communication or
document believed by it to be genuine and correct and to have
been communicated or signed by the Person by whom it purports
to be communicated or signed; or
20.5.2 for the consequences of relying on the advice of any
professional advisers selected by it in connection with the
Financing Documents.
20.6 DEFAULT
The Facility Agent shall not be obliged to take:
20.6.1 any steps to ascertain whether any Default has occurred and
until the Facility Agent receives express notice to the
contrary from the Borrower or a Bank (or has actual knowledge
of a payment default under sub-clause 16.1.1 of Clause 16.1
(DEFAULT), the Facility Agent shall be entitled to assume that
no such Default has occurred; or
20.6.2 any proceedings against the Obligors for the recovery of any
sum due under any of the Financing Documents or otherwise in
connection therewith unless it has been fully indemnified to
its satisfaction by each Bank in the proportion which such
Bank's Commitment bears to the Total Commitments.
20.7 INFORMATION
The Facility Agent shall:
20.7.1 send a copy of all notices served by the Borrower under this
Agreement and under the Financing Documents and a copy of any
document received by it and required to be delivered to the
Banks hereunder to each of the Banks affected by such notice
or document;
20.7.2 not be obliged to transmit to the Banks any information in any
way relating to any of the Parties to the Financing Documents
which the Facility Agent may have acquired otherwise than in
its capacity as agent for the Banks in connection with this
Agreement.
20.8 THE FACILITY AGENT AS A BANK
The Facility Agent shall with respect to its own participation have the
same rights and powers under the Financing Documents as any other Bank
and may exercise them as though it were not also acting as agent for the
Banks. The Facility Agent and its associates and Affiliates may, without
liability to disclose or account, engage in any kind of financial, trust
or commercial business with, or acquire or dispose of any kind of
security of, the Borrower or any member of the Group, and neither the
Facility Agent nor any of its associates or Affiliates shall have any
obligation to disclose or account for any dealings with the Borrower or
any member of the Group. The agency department of the Facility Agent
will be treated as a separate entity from any other department of the
Facility Agent and any information received by the Facility Agent in any
other capacity may be treated by it as confidential.
20.9 INDEMNITY
Each of the Banks shall fully indemnify the Facility Agent (including
its various personnel and Affiliates) rateably in the proportion which
such Bank's Commitment bears to the Total Commitments, from and against
all claims, proceedings, costs, expenses, losses, damages and
liabilities of every description (except in respect of any agency fee
due to the Facility Agent) which may be incurred by the Facility Agent
in such capacity in good faith and which in any way relate to or arise
out of the Financing Documents or any related documents or any action
taken or omitted by the Facility Agent in good faith in enforcing or
preserving, or in attempting to enforce or preserve, any of the rights
of the Banks under the Financing Documents or any related documents
20.10 EXONERATION OF EMPLOYEES
No Party may take any proceedings against any officer, employee or agent
of the Facility Agent in respect of any claim it might have against the
Facility Agent or in respect of any act or omission of any kind
(including gross negligence or wilful misconduct) by that officer,
employee or agent in relation to any Financing Document.
20.11 COMPLIANCE
The Facility Agent may refrain from doing anything which might, in its
opinion, constitute a breach of any Law or be otherwise actionable at
the suit of any Person, and may do anything which, in its opinion, is
necessary or desirable to comply with any Law of any jurisdiction and in
particular the Facility Agent need not disclose any information
relating to the Borrower or any of its related entities if the
disclosure might, in its opinion, constitute a breach of any Law or any
duty of confidentiality.
20.12 TERMINATION
The Facility Agent (herein, the "RETIRING AGENT") or the Majority Banks
may at any time notify the Borrower and the Banks of the proposed
termination of the Retiring Agent's agency. After the giving of any
notice of proposed termination, the Majority Banks may, after
consultation with the Borrower (and, in respect of the first proposed
successor agent for such Retiring Agent, with the prior approval of the
Borrower which shall not be unreasonably withheld), in writing appoint a
successor as the Facility Agent (the "REPLACEMENT AGENT"). If a
Replacement Agent is not appointed or has not accepted in writing the
appointment within thirty (30) days after the notice of proposed
termination, the Retiring Agent may within a further thirty (30) days
appoint a Replacement Agent which shall be a Bank with an office in
Paris. If the Retiring Agent is unable to make such appointment as
described herein, it shall notify the other Banks as soon as possible
and thereafter the appointment of a Replacement Agent shall be arranged
by the Banks, or the Borrower in agreement with the Banks.
Notwithstanding such arrangements, the Retiring Agent shall retire from
the agency relationship upon the earlier of fourteen (14) days from its
notice to the Banks that it is unable to appoint a Replacement Agent or
the written acceptance (in such form as the Majority Banks may approve)
by the Replacement Agent of its appointment as Facility Agent.
Upon such retirement:
20.12.1 as regards each of the Obligors and each of the Banks, the
Replacement Agent (or future Replacement Agent) shall become
bound by all the obligations of the Retiring Agent and become
entitled to all the rights, privileges, powers, authorities
and discretions of the Retiring Agent under the Financing
Documents;
20.12.2 the agency of the Retiring Agent shall terminate but without
prejudice to any rights that may have accrued prior to the
termination and without prejudice to any liabilities which the
Retiring Agent may have incurred prior to the termination of
its agency; and
20.12.3 the Retiring Agent shall be discharged from any further
liability or obligation under the Financing Documents (save
that the Retiring Agent shall pay to the successor a PRO RATA
proportion of any agency fee paid in advance under Clause 23
(FEES AND EXPENSES)).
The provisions of this Agreement shall continue in effect for the
benefit of any Retiring Agent in respect of any actions taken or omitted
to be taken by it or any event occurring before the termination of its
agency.
20.13 THE ARRANGERS
Without limiting any other provision of this ▇▇▇▇▇▇ ▇▇, ▇▇▇▇ of the
Arrangers shall have any rights, powers, obligations, liabilities,
responsibilities or duties under this Agreement other than those
applicable to all Banks as such. Each Bank acknowledges that it has not
relied, and will not rely, on the Arrangers in deciding to enter into
this Agreement or in taking or not taking action hereunder.
21. AMENDMENTS
The Facility Agent may (if authorised by the Majority Banks), and shall
(if instructed by the Majority Banks), except, in each case, where any
other authority is required for the same by the express provisions of
the Financing Documents, grant waivers or consents or vary the terms of
any of the Financing Documents with the Borrower's consent. Any such
waiver, consent or variation so authorised and effected by the Facility
Agent shall be binding on all the Parties and the Facility Agent shall
be under no liability whatsoever in respect of any such waiver, consent
or variation. This Clause 21 shall not authorise, except with the prior
consent of all the Banks:
21.1.1 any extension or deferral of the date for, or decrease in the
amount, or change in the currency of, any payment of
principal, interest, fee, commission or any other amount
payable under the Financing Documents;
21.1.2 any increase in or amendment to any Bank's Commitment;
21.1.3 any extension of the Availability Period;
21.1.4 any reduction in the applicable Margin as referred to in
Clause 6 (INTEREST AND DEFAULT INTEREST);
21.1.5 any variation of:
(a) the definition of Majority Banks;
(b) Clause 11.2 (NO SET-OFF OR COUNTERCLAIM);
(c) Clause 19.2 (PRO RATA SHARING); or
(d) this Clause 21,
and PROVIDED FURTHER THAT no amendment or variation which
changes or relates to the rights and/or obligations of the
Facility Agent and/or the Mandated Lead Arrangers may be made
without the Facility Agent's or, as the case may be, Mandated
Lead Arrangers' consent.
22. ASSIGNMENTS AND TRANSFERS
22.1 TRANSFERS BY OBLIGOR
No Obligor may assign, transfer or dispose of any of, or any interest
in, its rights and/or obligations under this Agreement.
22.2 TRANSFERS BY BANK
22.2.1 A Bank (the "TRANSFEROR BANK") may at any time assign,
transfer or novate any of its rights and/or obligations under
this Agreement for a minimum amount of Euro5,000,000 to
another bank or financial institution or to a trust, fund or
other entity which is regularly engaged in or established for
the purpose of making, purchasing or investing in loans,
securities or other financial assets (the
"TRANSFEREE BANK"), PROVIDED THAT, after the Syndication Date,
this shall be subject to a notification delivered to the
Facility Agent not less than ten (10) Business Days prior to
the date of the proposed transfer.
22.2.2 The consent of the Borrower is required for an assignment or
transfer by the Transferor Bank, unless the assignment or
transfer is to another Bank or an Affiliate of a Bank or if an
Event of Default has occurred and is continuing.
22.2.3 The consent of the Borrower to an assignment or transfer must
not be unreasonably withheld or delayed. The Borrower will be
deemed to have given its consent five Business Days after the
Bank has requested it unless consent is expressly refused by
the Borrower (by notice to the Facility Agent) within that
time.
22.2.4 A transfer of obligations will be effective only if either:
(a) the obligations are novated in accordance with Clause
22.3 (TRANSFER PROCEDURE); or
(b) the Transferee Bank confirms in writing to the Facility
Agent and the Borrower (on behalf of the Obligors) that
it undertakes to be bound by the terms of the Financing
Documents as a Bank in form and substance satisfactory
to the Facility Agent. On the transfer becoming
effective in this manner the Transferor Bank shall be
relieved of its obligations under the Financing
Documents to the extent that they are transferred to the
Transferee Bank.
22.2.5 On each occasion on which a Transferor Bank assigns, transfers
or novates any of its rights and/or obligations under this
Agreement, the Transferee Bank shall ensure that the Facility
Agent has notice of the same and shall, on the date the
assignment, transfer and/or novation takes effect, pay to the
Facility Agent for its own account a fee of Euro1500. The
Transferee Bank shall also ensure that the assignment or
transfer will be valid as against third parties (notably the
Obligors) in the jurisdictions in which they are incorporated
and will comply with the appropriate formalities of assignment
(as the case may be), in particular in France the Transferee
Bank will notify the French Obligors of the assignment or
transfer by way of process server (HUISSIER) in accordance
with the provisions of Article 1690 of the French Civil Code.
22.2.6 Neither a Transferor Bank nor any other Finance Party is
responsible to a Transferee Bank for:
(a) the execution, genuineness, validity, enforceability or
sufficiency of any Financing Documents or any other
document;
(b) the collectability of amounts payable under any
Financing Documents or the financial condition of or the
performance of its obligations under the Financing
Documents by any Obligor; or
(c) the accuracy of any statements or information (whether
written or oral) made in or in connection with or
supplied in connection with any Financing Documents.
22.2.7 Each Transferee Bank confirms to the Transferor Bank and the
other Banks that it:
(a) has made its own independent investigation and
assessment of the financial condition and affairs of
each Obligor and its related entities in connection with
its participation in this Agreement and has not relied
exclusively on any information provided to it by the
Transferor Bank or any other Finance Party in connection
with any Financing Documents;
(b) will continue to make its own independent appraisal of
the creditworthiness of each Obligor and its related
entities for so long as there are any Commitments or
Outstandings under this Agreement.
22.2.8 Nothing in any Finance Document obliges a Transferor Bank to:
(a) accept a re-transfer from a Transferee Bank of any of
the rights and/or obligations assigned or transferred
under this clause; or
(b) support any losses incurred by the Transferee Bank by
reason of the non-performance by any Obligor of its
obligations under any Financing Document or otherwise.
22.3 TRANSFER PROCEDURE
22.3.1 A novation is effected if:
(a) the Transferor Bank and the Transferee Bank deliver to
the Facility Agent a duly completed Transfer Certificate
executed by the Transferor Bank and the Transferee Bank,
and
(b) the Facility Agent executes it.
22.3.2 Each Party (other than the Transferor Bank and the Transferee
Bank) irrevocably authorises the Facility Agent to execute any
duly completed Transfer Certificate on its behalf.
22.3.3 To the extent that they are expressed to be the subject of the
novation in the Transfer Certificate:
(a) the Transferor Bank and the other Parties (the "EXISTING
PARTIES") will be released from their obligations to
each other under the Financing Documents (the
"DISCHARGED OBLIGATIONS");
(b) the Transferee Bank and the existing Parties will assume
obligations towards each other under the Financing
Documents which differ from the discharged obligations
only insofar as they are owed to or assumed by the
Transferee Bank instead of the Transferor Bank;
(c) the rights of the Transferor Bank against the existing
Parties under the Financing Documents and VICE VERSA
(the "DISCHARGED RIGHTS") will be cancelled; and
(d) the Transferee Bank and the existing Parties will
acquire rights against each other under the Financing
Documents which differ from the discharged rights only
insofar as they are exercisable by or against the
Transferee Bank instead of the Transferor Bank,
all on the date of execution of the Transfer Certificate by
the Facility Agent or, if later, the date specified in the
Transfer Certificate.
22.4 REFERENCE BANKS
If a Reference Bank ceases to be one of the Banks, the Facility Agent
shall, with the approval (which shall not be unreasonably withheld) of
the Borrower, nominate as soon as reasonably practicable another Bank to
be a Reference Bank in place of such Reference Bank.
22.5 TRANSFER COSTS
In respect of any transfer made pursuant to this Clause 22.5, if, at the
time such transfer is effected, circumstances exist which would oblige
any Obligor to pay to the Transferee any increased amounts under Clauses
11.4 (WITHHOLDINGS) or 12.2 (INCREASED COSTS), in excess of those
amounts which would have been payable to the Transferor had no transfer
or assignment been made, the relevant Obligor shall not be obliged to
pay that excess.
22.6 SUB-PARTICIPATION
Nothing in this Agreement restricts the ability of a Bank to
sub-contract an obligation of that Bank providing such Bank remains
liable under this Agreement for that obligation.
22.7 DISCLOSURE OF INFORMATION
Any Bank may disclose to any of its Affiliates and any other person:
22.7.1 to (or through) whom that Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement; or
22.7.2 with (or through) whom that Bank enters into (or may
potentially enter into) any sub-participation, any
securitisation, any hedge or otherwise, in relation to, or any
other transaction under which payments are to be made by
reference to, this Agreement or any Obligor; or
22.7.3 to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Financing Documents
as that lender shall consider appropriate, if in relation to sub-clauses
22.7.1, 22.7.2 and 22.7.3 above, the person to whom information is to be
given has entered into a Confidentiality Undertaking.
22.8 FACILITY OFFICE
Subject to the provisions of Clause 11.5 (LENDING OFFICES), any Bank may
make its participation in any Advance available from, and may receive
the benefit of any payment due to it under this Agreement at, any of its
lending offices (each a "FACILITY OFFICE") PROVIDED THAT no Bank may
change its Facility Office to one which does not comply with the
requirements set out in Clause 11.5 (LENDING OFFICES). A Bank shall give
the Facility Agent prior written notice of any change from its Agreed
Lending Office to any Facility Office, or from any Facility Office to
another one, for the purposes of this Agreement.
23. FEES AND EXPENSES
23.1 COMMITMENT FEE
23.1.1 The Borrower shall pay a commitment fee which:
(a) shall be calculated on the basis of actual days elapsed
from the date of this Agreement divided by 360 at the
rate per annum of 0.45 per cent. of the Margin upon the
daily amount in Euro of the Facility for the time being
not utilised and uncancelled; and
(b) shall be paid to the Facility Agent for the account of
the Banks on the dates falling at three monthly
intervals after the date of this Agreement, and on the
last day of the Availability Period.
23.1.2 In the event that any outstanding Advance has been made in an
Alternative Currency, the corresponding utilised portion of
the Revolving Facility shall be the original Euro Amount of
such Advance.
23.1.3 The commitment fee shall be paid by the Facility Agent to the
Banks PRO RATA in respect of the Commitment of each Bank under
the Facility.
23.2 FACILITY AGENCY FEE
The Borrower shall pay to the Facility Agent for its own account an
annual agency fee in accordance with the terms of the Fee Letters.
23.3 EXPENSES
The Borrower shall on demand (upon presentation of supporting evidence)
pay, in each case on the basis of a full indemnity:
23.3.1 to the Facility Agent the reasonable costs and expenses
(including legal, printing, publicity and out-of-pocket
expenses) incurred in connection with the negotiation,
preparation or completion of the Financing Documents and any
related documents PROVIDED THAT such legal expenses shall be
subject to the limitations set out in the letter addressed to
the Facility Agent and the Parent from ▇▇▇▇▇▇▇▇ Chance LLP
dated the date hereof; and
23.3.2 to the Facility Agent (for its own account and for the account
of the Banks) all costs and expenses (including legal and
out-of-pocket expenses) incurred in connection with any
amendment, waiver, variation, consent or approval relating to
this Agreement or any related documents, and the preservation
or
enforcement or the attempted preservation or enforcement of
any of their rights under the Financing Documents or any
related documents.
23.4 STAMP DUTY
The Borrower shall pay any stamp, documentary and other similar duties
and taxes to which the Financing Documents may be subject or give rise
and shall fully indemnify (upon presentation of supporting evidence)
each of the Banks from and against any losses or liabilities which any
of them may incur as a result of any delay or omission by the Borrower
to pay any such duties or taxes.
23.5 VALUE ADDED TAX
The amounts stated in this Agreement to be payable by the Borrower are
exclusive of value added tax (TAXE SUR LA VALEUR ajoutee ("T.V.A.")) and
accordingly:
23.5.1 the Borrower shall pay on demand (upon presentation of
supporting evidence) any T.V.A. properly chargeable in respect
of supplies to the Borrower contemplated by this Agreement
(including any T.V.A. chargeable by the Facility Agent in
respect of its supplies to the Borrower under this Agreement);
and
23.5.2 in the case of services supplied to or other costs, fees and
expenses incurred by the Facility Agent or the other Banks in
connection with this Agreement, and which are to be met by the
Borrower or in respect of which the Borrower is to indemnify
the Facility Agent and/or the other Banks, the Borrower (for
the avoidance of doubt) shall pay (upon presentation of
supporting evidence) to the Facility Agent (for itself or the
Banks in question) by way of additional remuneration such
amount as shall represent any associated T.V.A..
24. MISCELLANEOUS
24.1 CERTIFICATES
Any determination or notification by the Facility Agent or any other
Finance Party concerning any rate or amount under this Agreement shall,
in the absence of manifest error, be PRIMA FACIE evidence as to that
matter.
24.2 APPLICATION OF MONEYS
24.2.1 If any sum paid or recovered in respect of the liabilities of
the Borrower under this Agreement is less than the amount then
due, the Facility Agent shall apply that sum in the following
order:
(a) first, in or towards payments PRO RATA of any unpaid
fees, costs and expenses of the Facility Agent and the
Arrangers;
(b) secondly, in or towards payments PRO RATA of any unpaid
fees, costs and expenses of the Banks;
(c) thirdly, in or towards payment PRO RATA of any interest
due to the Banks;
(d) fourthly, in or towards payment PRO RATA of any
principal due to the Banks; and
(e) fifthly, in or towards payment PRO RATA of any other sum
due under the Financing Documents.
24.2.2 The Facility Agent shall, if so directed by all the Banks with
the Borrower's prior agreement, vary the order of priorities
set out in sub-clauses 24.2.1(b) to 24.2.1(e) of this Clause
24.2.
24.3 RIGHTS CUMULATIVE, WAIVERS
The rights of the Banks under this Agreement are cumulative, may be
exercised as often as they consider appropriate and are in addition to
their respective rights under the general law. The rights of the Banks
in relation to the Facility (whether arising under this Agreement or
under the general law) shall not be capable of being waived or varied
otherwise than by an express waiver or variation in writing; and in
particular any failure to exercise or any delay in exercising any of
such rights shall not operate as a waiver or variation of that or any
other such right; any defective or partial exercise of any of such
rights shall not preclude any other or further exercise of that or any
other such right; and no act or course of conduct or negotiation on
their part or on their behalf shall in any way preclude them from
exercising any such right or constitute a suspension or any variation of
any such right.
24.4 NOTICES
All notices or other communications under or in connection with each
Finance Document shall be given in writing or facsimile and shall be
signed by the Party giving it. Any such notice will be deemed to be
given as follows:
24.4.1 if in writing, when delivered; and
24.4.2 if by facsimile, when received.
A notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given at opening of business on the next working
day in that place.
24.5 ADDRESSES
The relevant addresses and fax numbers of any Party (other than the
Facility Agent) for the purpose of Clause 24.4 (NOTICES) shall be those
notified by that Party for this purpose to the Facility Agent by not
less than five Business Days' notice. The relevant address and fax
numbers of the Facility Agent are:
FACILITY AGENT
Address: BNP PARIBAS
GEMOA
▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Cedex 01
Telephone: ▇▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇
Facsimile: ▇▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
or as may be otherwise notified by the Facility Agent to the other
Parties by not less than 5 Business Days' notice.
24.6 LANGUAGE
All notices or communications under or in connection with any Financing
Document shall be either in the English or the French language or, if in
any other language, accompanied by a translation into English. In the
event of any conflict between the English text and the text in any other
language, the English text shall prevail.
24.7 INVALIDITY OF ANY PROVISION
If any of the provisions of any Financing Document becomes invalid,
illegal or unenforceable in any respect under any Law, the validity,
legality and enforceability of the remaining provisions shall not in any
way be affected or impaired. The Parties shall, where reasonably
practicable, amend any invalid or unenforceable provision in order to
render it valid and enforceable.
24.8 SEVERABILITY
Any provision of any Financing Document which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction. To the
extent permitted by applicable Law, each Obligor hereby waives any
provision of Law which renders any provision of this Agreement
prohibited or unenforceable in any respect.
24.9 TAUX EFFECTIF GLOBAL
The global rate (TAUX EFFECTIF GLOBAL) of the Facility calculated in
accordance with the provisions of Article L313-4 of the French Monetary
and Finance Code and Article L313-2 of the French Consumers Code,
appears in a separate document of even date herewith between the
Facility Agent and the Borrower, which forms an integral part of this
Agreement.
24.10 COUNTERPARTS
Any Financing Document may be executed in any number of counterparts,
and this has the same effect as if the signatures on the counterparts
were on a single copy of such Financing Document.
25. LAW AND JURISDICTION
25.1 CHOICE OF LAW
This Agreement and the relationship between the Parties is governed by,
and shall be construed in accordance with, the laws of
England.
25.2 SUBMISSION TO JURISDICTION
For the benefit of each Finance Parties:
25.2.1 all the Parties agree that the courts of
England are, subject
to sub-clauses 25.2.2 and 25.2.3 of this Clause 25.2, to have
exclusive jurisdiction to settle any disputes which may arise
in connection with the creation, validity, effect,
interpretation or performance of, or the legal relationships
established by, this
Agreement (including, without limitation, claims for set-off
or counterclaim) or otherwise arising in connection with this
Agreement and for such purposes irrevocably submit to the
jurisdiction of the English courts;
25.2.2 the agreement contained in sub-clause 25.2.1 of this Clause
25.2 is included for the benefit of the Finance Parties.
Accordingly, notwithstanding the exclusive agreement in (a)
above, each of the Finance Parties shall retain the right to
bring proceedings in any other court which has jurisdiction by
virtue of the Convention on Jurisdiction and the Enforcement
of Judgments signed on 27 September 1968 (as from time to time
amended and extended) or by virtue of the Convention on
Jurisdiction and the Enforcement of Judgments signed on 16
September 1988 (from time to time amended and extended);
25.2.3 each of the Obligors (other than the Parent) irrevocably
waives any objections on the ground of venue or FORUM NON
CONVENIENS or any similar ground;
25.2.4 each of the Obligors (other than the Parent) irrevocably
agrees that a judgment or order of any court referred to in
this clause in connection with this Agreement is conclusive
and binding on it and may be enforced against it in the courts
of any other jurisdiction; and
25.2.5 each of the Obligors (other than the Parent) irrevocably
consents to service of process by mail or in any other manner
permitted by the relevant Law.
25.3 AGENT FOR SERVICE OF PROCESS
The Obligors (other than the Parent) shall at all times maintain an
agent for service of process and any other documents in proceedings in
England or any other proceedings in connection with this Agreement. Such
agent shall be Law Debenture Corporate Services Limited (Fifth Floor,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, c/o ▇▇▇▇ ▇▇▇▇▇) and any writ, judgment
or other notice of legal process shall be sufficiently served on any
Obligors (other than the Parent) if delivered to such agent at its
address for the time being. The Obligors (other than the Parent)
undertake not to revoke the authority of the above agent and if, for any
reason, the Facility Agent requests any Obligor (other than the Parent)
to do so it shall promptly appoint another such agent with an address in
England and advise the Facility Agent thereof. If following such a
request such Obligor (other than the Parent) fails to appoint another
agent, the Facility Agent shall be entitled to appoint one on his
behalf.
25.4 RIGHTS OF THIRD PARTIES
A person who is not a party to this Agreement shall have no right under
the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any of its
terms.
SCHEDULE 1
COMMITMENTS
BANK FACILITY OFFICE COMMITMENT (EURO)
------------------------------------------------------------------------
BNP Paribas Paris 166,666,666
CCF Paris 166,666,667
Societe Generale Paris 166,666,667
SCHEDULE 2
FORM OF DRAWING NOTICE
To: The Facility Agent
Date: _____
Dear Sirs,
FACILITY AGREEMENT DATED 15 OCTOBER 2002
Drawing Number ________________________
1. We refer to Clause 4 (DRAWDOWN OF ADVANCES) of the Facility Agreement.
Terms defined in the Facility Agreement have the same meanings in this
Drawing Notice.
2. We wish to borrow Advances with the following specifications:
(a) Drawing Date: ________________________________________
(b) Currency: ________________________________________
(c) Amount: ________________________________________
(d) Interest Period: ________________________________________
(e) Payment Instructions: ________________________________________
3. We confirm that:
(a) the matters represented and warranted by the Borrower and each
Acceding Guarantor referred to in Clause 14.2 (AFTER SIGNING)
of the Facility Agreement are true and accurate in all
material respects on the date of this Drawing Notice as if
made with reference to the facts and circumstances now
prevailing and that no Event of Default has occurred and is
continuing or would result from the Advance;
(b) the drawing of the amount set out in paragraph 2 above will
not cause the Total Outstandings to exceed the Total
Commitments.
Yours faithfully,
Authorised Signatory for and on behalf of the Borrower
SCHEDULE 3
FORM OF TRANSFER CERTIFICATE
To. the Facility Agent
TRANSFER CERTIFICATE
relating to a facility agreement (the FACILITY AGREEMENT) dated 15 October 2002
and made between, Cereol SA as the Borrower, the Arrangers therein named, the
Facility Agent and certain Banks named therein. Terms defined in the Facility
Agreement have the same meanings herein.
1. [Transferor Bank] (the BANK):
(a) confirms that to the extent that details appear in the
Schedule hereto against, as the case may be, the heading
BANK'S COMMITMENT and/or BANK'S PARTICIPATION, such details
accurately summarise, as the case may be, its participation in
the Facility (as defined in the Facility Agreement); and
(b) requests [Transferee Bank] (the TRANSFEREE) to accept and
procure the transfer to the Transferee of the portion
specified in the Schedule of, as the case may be, its
participation in the Facility by counter-signing and
delivering this Transfer Certificate to the Facility Agent at
its address for the service of notices specified in the
Facility Agreement.
2. The Transferee hereby requests the Facility Agent to accept this
Transfer Certificate as being delivered to the Facility Agent pursuant
to and for the purposes of Clause 22 (ASSIGNMENT AND TRANSFERS) of the
Facility Agreement so as to take effect in accordance with the terms
thereof on [date of transfer].
3. The Facility Office and address for notices of the Transferee Bank for
the purposes of the Financing Documents are set out in the Schedule.
4. The Transferor Bank and the Transferee Bank acknowledge and agree that
sub-clauses 22.2.6 to 22.2.8 of Clause 22.2 (TRANSFERS BY BANK) of the
Facility Agreement apply to this Transfer Certificate as if set out in
full herein, MUTATIS MUTANDIS.
5. The Transferee hereby undertakes with the Bank and each of the other
Parties to the Facility Agreement that it will perform in accordance
with their terms all those obligations which by the terms of the
Facility Agreement will be assumed by it after delivery of this Transfer
Certificate to the Facility Agent and satisfaction of the conditions (if
any) subject to which this Transfer Certificate is expressed to take
effect.
6. The Transferee Bank shall ensure that the Facility Agent has notice of
the transfer or assignment and shall, on the date the assignment or
transfer takes effect, pay to the Facility Agent for its own account a
fee of Euro1500. The Transferee Bank shall also ensure that the
assignment or transfer will be valid as against third parties (notably
the Obligors) in the jurisdictions in which the Obligors are
incorporated and will comply with the appropriate formalities of
assignment (as the case may be); in France, in particular, the
Transferee Bank will notify the Borrower and ▇▇▇▇▇▇▇ (unless and until
it
ceases to be a Guarantor) of the assignment or transfer by way of
process server (HUISSIER) in accordance with the provisions of Article
1690 of the French Civil Code.
7. This Transfer Certificate and the rights and obligations of the Parties
hereunder shall be governed by and construed in accordance with English
law.
THE SCHEDULE
Bank's Commitment
Bank's Outstandings
Portion of Commitment Transferred
Portion of Outstandings Transferred
[Or otherwise insert details of amount
transferred]
Transferee Bank's Agreed Facility Office for
the Facility
*Transferor Bank [*Transferee Bank]
Address. *
Fax. *
Signed Signed
--------------------- --------------------------
[Facility Agent]
Signed
--------------------------------
Dated * 20*
-------------------------- ---
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost Rate is an addition to the interest rate to
compensate Banks for the cost of compliance with (a) the requirements of
the Financial Services Authority (or, in either case, any other
authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Facility Agent shall calculate, as a percentage rate, a
rate (the "ADDITIONAL COSTS RATE") for each Bank, in accordance with the
paragraphs set out below. The Mandatory Cost Rate will be calculated by
the Facility Agent as a weighted average of the Banks' Additional Costs
Rates (weighted in proportion to the percentage participation of each
Bank in the relevant Advance) and will be expressed as a percentage rate
per annum.
3. The Additional Cost Rate for any Bank lending from a Facility Office in
a Participating Member State will be the percentage notified by that
Bank to the Facility Agent. This percentage will be certified by that
Bank in its notice to the Facility Agent to be its reasonable
determination of the cost (expressed as a percentage of that Bank's
participation in all Advances made from that Facility Office) of
complying with the minimum reserve requirements of the European Central
Bank in respect of Advances made from that Facility Office.
4. The Additional Cost Rate for any Bank lending from a Facility Office in
the United Kingdom will be calculated by the Facility Agent as follows:
E x 0.01
-------- per cent. per annum.
300
Where:
E is designed to compensate Banks for amounts payable under the
Fees Rules and is calculated by the Facility Agent as being
the average of the most recent rates of charge supplied by the
Reference Banks to the Facility Agent pursuant to paragraph 6
below and expressed in pounds per L 1,000,000.
5. For the purposes of this Schedule:
(a) "FEES RULES" means the rules on supervision fees contained in
the FSA Supervision Manual or such other law or regulation as
may be in force from time to time in respect of the payment of
fees for the acceptance of deposits;
(b) "FEE TARIFFS" means the fee tariffs specified in the Fees
Rules under the activity group A.1 Deposit acceptors (ignoring
any minimum fee or zero rated fee required pursuant to the
Fees Rules but taking into account any applicable discount
rate); and
(c) "TARIFF BASE" has the meaning given to it in and will be
calculated in accordance with, the Fees Rules.
6. If requested by the Facility Agent, each Reference Bank shall, as soon
as practicable after publication by the Financial Services Authority,
supply to the Facility Agent, the rate of charge payable by that
Reference Bank to the Financial Services Authority pursuant to the Fees
Rules in respect of the relevant financial year of the Financial
Services Authority (calculated for this purpose by that Reference Bank
as being the average of the Fee Tariffs applicable to that Reference
Bank for that financial year) and expressed in pounds per L 1,000,000 of
the Tariff Base of that Reference Bank.
7. Each Bank shall supply any information required by the Facility Agent
for the purpose of calculating its Additional Costs Rate. In particular,
but without limitation, each Bank shall supply the following information
in writing on or prior to the date on which it becomes a Bank:
(a) the jurisdiction of its Facility Office; and
(d) any other information that the Facility Agent may reasonably
require for such purpose.
Each Bank shall promptly notify the Facility Agent in writing of any
change to the information provided by it pursuant to this paragraph.
8. The percentages or rates of charge of each Reference Bank for the
purpose of E above shall be determined by the Facility Agent based upon
the information supplied to it pursuant to paragraph 7 above and on the
assumption that, unless a Bank notifies the Facility Agent to the
contrary, each Bank's obligations in relation to cash ratio deposits and
the Fees Rules are the same as those of a typical bank from its
jurisdiction of incorporation with a Facility Office in the same
jurisdiction as its Facility Office.
9. The Facility Agent shall have no liability to any person if such
determination results in an Additional Costs Rate which over or under
compensates any Bank and shall be entitled to assume that the
information provided by any Bank or Reference Bank pursuant to
paragraphs 3, 6 and 7 above is true and correct in all respects.
10. The Facility Agent shall distribute the additional amounts received as a
result of the Mandatory Cost Rate to the Banks on the basis of the
Additional Costs Rate for each Bank based on the information provided by
each Bank or Reference Bank pursuant to paragraphs 3, 6 and 7 above.
11. Any determination by the Facility Agent pursuant to this Schedule in
relation to a formula, the Mandatory Cost Rate, an Additional Costs Rate
or any amount payable to a Bank shall, in the absence of manifest error,
be conclusive and binding on all of the parties hereto.
12. The Facility Agent may from time to time, after consultation with the
Borrower and the Banks, determine and notify to all parties any
amendments which are required to be made to this Schedule in order to
comply with any change in law, regulation or any requirements from time
to time imposed by the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or
any of its functions) and any such determination shall, in the absence
of manifest error, be conclusive and binding on all the parties hereto.
SCHEDULE 5
CONDITIONS PRECEDENT
The conditions precedent to the obligation of the Banks to make an Advance
hereunder shall be the delivery in form and content reasonably satisfactory to
the Facility Agent of the following:
1. one signed original of the Parent Guarantee;
2. a copy, certified as at the date of this Agreement a true and up-to-date
copy by a duly authorised officer of the Parent, of its constitutive
documents;
3. a copy, certified as at the date of this Agreement a true and up-to-date
copy by a duly authorised officer of the Parent, of a board resolution
of the Parent approving the execution, delivery and performance of the
Parent Guarantee and the terms and conditions thereof and authorising a
named person or persons to sign the Parent Guarantee and any documents
to be delivered by the Parent pursuant thereto;
4. a certificate of a duly authorised officer of the Parent setting out the
names and signatures of the persons authorised to sign, on behalf of the
Parent, the Parent Guarantee and any documents to be delivered by the
Parent pursuant thereto;
5. a certificate of a duly authorised officer of the Parent confirming that
the execution of the Parent Guarantee would not breach any restrictions
on its powers to issue guarantees;
6. the latest annual audited and certified financial statements of the
Parent;
7. a legal opinion of ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ as to matters of Bermuda law,
opining notably as to (i) the capacity of the Parent to enter into and
perform its obligations under the Parent Guarantee, (ii) the recognition
under Bermuda law of the validity of such obligations and the choice of
law expressed in the Parent Guarantee and (iii) the recognition and
enforcement in Bermuda of any judgment rendered against the Parent
pursuant to the jurisdiction provisions of the Parent Guarantee;
8. a copy, certified as at the date of this Agreement, a true and
up-to-date copy by a duly authorised officer of the Borrower, of its
constitutive documents;
9. a certificate of a duly authorised officer of the Borrower setting out
the names and signatures of the persons authorised to sign, on behalf of
the Borrower, this Agreement and any documents to be delivered by the
Borrower pursuant hereto;
10. a certificate of a duly authorised officer of the Borrower confirming
that utilisation of the Facility would not breach any restrictions on
its borrowing powers;
13. evidence that the Existing Facility will be prepaid and cancelled in
full on or by the first Drawing Date;
14. the financial statements of the Borrower for the Semi-Financial Year
ending on 30 June 2002;
15. (a) a legal opinion of ▇▇▇▇▇▇▇▇▇ and May as to matters of French
law, opining notably as to (i) the capacity of the Borrower to
enter into and perform its obligations under the Financing
Documents, (ii) the recognition under French law of the
validity of such obligations and the choice of law expressed
in the Financing Documents and (iii) the recognition and
enforcement in France of any judgment rendered against the
Borrower pursuant to the jurisdiction provisions of the
Financing Documents;
(b) a legal opinion of ▇▇▇▇▇▇▇▇ Chance LLP opining, notably as to
the validity under English law of the obligations of the
Borrower under this Agreement; and
(c) a legal opinion of Winston & ▇▇▇▇▇▇ as to matters of New York
law, opining notably as to the validity under New York law of
the obligations of the Parent under the Parent Guarantee;
16. evidence that Law Debenture Corporate Services Limited has agreed to act
as agent of the Borrower for the service of process in
England; and
17. evidence that CT Corporation System has agreed to act as agent of the
Parent for the service of process in New York.
SCHEDULE 6
NEW GUARANTORS
FORM OF GUARANTOR ACCESSION DEED
This deed is made * the [ ] day of [ ] by [Proposed Guarantor]
1. We refer to an agreement (the FACILITY AGREEMENT) dated [ ] 2002 and
made between the Borrower, the Arrangers, the Facility Agent (as Agent
for the Finance Parties) and the Banks as referred to therein. Terms
defined in the Facility Agreement shall bear the same meanings herein
2. We [name of company] of [Registered Office] (Registered no. *________)
agree to become a Guarantor with effect from the date of this Deed under
the Facility Agreement and to be bound by the terms of the Facility
Agreement as Guarantor.
3. Our address for notices is:
*______________________
4. This Deed is governed by English law.
In witness whereof these presents were executed and delivered as a deed on the
date first above written.
Executed and delivered as a deed by [Proposed Guarantor] in the presence of:
______________________________ ________________________________
[2 directors/1 director] [seals]
______________________________ ________________________________
[1 secretary] [seal]
[Or for non UK Guarantor
Executed and delivered as a deed by [ ], the duly authorised
representative of [Proposed Guarantor] in the presence of:
[Witnesses]]
SCHEDULE 7
CERTIFICATE OF ACCEDING GUARANTORS
[LETTERHEAD OF GUARANTOR]
To. the Facility Agent
1 [*name] and [*address], a duly authorised officer of [*name of Guarantor]
[*address] (the GUARANTOR)
HEREBY CERTIFY that:
(a) attached hereto marked "A", are true and correct copies of all documents
which contain or establish or relate to the constitution of the
Guarantor;
(b) attached hereto marked "B", is a true and correct copy of [resolutions
duly passed] at [a meeting of the Board of Directors of the Guarantor or
[as the case may be other appropriate authorisation necessary to the
validity of the Guarantee in certain jurisdictions] duly convened and
held on *________________ approving the Facility Agreement and
authorising its signature, delivery and performance;
(c) and such resolutions have not been amended, modified or revoked and are
in full force and effect;
(d) attached hereto marked "C" are true and correct copies of the acceptance
by the agent in
England of their appointments as agents of the Guarantor
for the purpose of accepting service of process.
The following signatures are the true signatures of the persons who have been
authorised to sign the Facility Agreement and to give any notices and
communications under or in connection with the Facility Agreement
Name Position Signature
* *
* *
* *
Signed:
--------------------------
Duly authorised officer
Date. *____________________
I, [*name], [as ___________] of [*name of GUARANTOR] (the Guarantor), hereby
certify that [*name of duly authorised officer giving above certificate] is a
duly authorised officer of the Guarantor and that the signature above is his
signature.
Signed:
--------------------------
Secretary
Date. *_________________
SCHEDULE 8
FINANCIAL COVENANTS
1. ACCOUNTING PRINCIPLES
The Borrower shall ensure that each set of financial statements
delivered by it is prepared (a) in accordance with French GAAP and (b)
on the same basis as was used in the preparation of the financial
statements as of 31 December 2001 or, if such financial statements are
prepared on some other basis following a material change in the
accounting principles, that such financial statements are accompanied by
a reconciliation statement by reference to the accounting principles and
the basis used in the preparation of the financial statements as of 31
December 2001.
The Borrower shall:
(i) calculate the financial ratios set out in paragraph 3 below as
of the Test Dates, based, if such Test Date is 30 June or 31
December, on the most recent audited annual and, if
applicable, the reviewed semi-annual consolidated accounts for
the Group;
(ii) set out such ratios in a certificate signed by the chief
financial officer of the Borrower and deliver to the Facility
Agent such certificate, together with the relevant information
required under Clause 15.5 (FINANCIAL COVENANTS) by no later
than the relevant Delivery Date.
2. DEFINITIONS
"CONSOLIDATED EBIT" means the consolidated earnings of the Group before
interest, tax on income and profits and extraordinary items ("RESULTAT
D'EXPLOITATION") after adding back the cost or profit (if any) of the
exchange risk hedging agreements which are related solely to operations.
"CONSOLIDATED EBITDA" means the consolidated earnings of the Group
before interest, tax on income and profits and extraordinary items
("RESULTAT D'EXPLOITATION") after adding back (i) the cost or profit (if
any) of the exchange risk hedging agreements which are related solely to
operations, and (ii) all provisions for depreciation and amortisation
(except goodwill amortisation).
"CONSOLIDATED INVENTORIES AND TRADE RECEIVABLE" means the aggregate of
the inventories and work-in progress ("STOCKS ET encours") and trade
receivables ("CREANCES CLIENTS").
"CONSOLIDATED AVERAGE NET BORROWINGS" means one twelfth (1/12) of the
aggregate of the Consolidated Net Borrowings for each of the twelve (12)
previous months (as calculated on the last Business Day of such month);
provided that any exchange rate calculations shall be made using the
exchange rate prevailing at the relevant Test Date.
"CONSOLIDATED NET BORROWINGS" means the aggregate, on a consolidated
basis, of (i) all amounts outstanding under long, medium and short term
facilities (including overdraft facilities and commercial paper) and
(ii) all off-balance sheet financial commitments, (such as notes
deposited by discounting ("ESCOMPTE"), and that part of finance lease
payments in respect of movable and immovable assets which represents
principal), and decreased by the value of cash ("DISPONIBILITES") and
investment securities ("VALEURS MOBILIERES DE PLACEMENT") excluding any
Indebtedness due to the Parent or any of its Subsidiaries which are not
also Group Companies if such Indebtedness is subordinated to the
Indebtedness arising under this Agreement.
CONSOLIDATED NET INTEREST COSTS means the aggregate, on a consolidated
basis, of all interest payable (including under interest hedging
arrangements) and other financial expenses in the nature of interest
(excluding, for the avoidance of doubt, arrangement fees payable in
respect of a facility but including the portion of finance lease
payments which corresponds to financial expenses and interest expense
relating to the remuneration of shareholders' current accounts) less the
sum of interest receivable and other receivables in the nature of
interest (including interest hedging arrangements), excluding other
financial income and expenses such as capital gains or losses on the
value of assets transferred and contingency provisions.
TEST DATE means (i) in respect of ratios (A) and (B) in paragraph 3
below, 31 December 2002 and 30 June 2003, and (ii) in respect of ratio
(C) of paragraph 3 below, 31 December 2002, 31 March 2003 and 30 June
2003.
3. COVENANTS
The financial covenants shall in respect of ratios (A) and (B) be
calculated on each relevant Test Date in respect of the 12 month period
ending on that Test Date. The calculation for each ratio comprising the
financial covenants in respect of ratios (A) and (B) shall be based on
most recent audited annual, and, if applicable, the most recent reviewed
semi-annual, consolidated accounts of the Group. The financial covenant
in respect of ratio (C) shall be tested on each relevant Test Date by
reference of the certificate of the Borrower delivered to the Facility
Agent pursuant to Clause 15.5 (FINANCIAL COVENANTS) in respect of such
ratio.
(A) Consolidated EBIT to Consolidated Net Interest Costs shall not
be less than 3 to 1.
(B) Consolidated Average Net Borrowings to Consolidated EBITDA
shall not be greater than 3 to 1.
(C) Consolidated Net Borrowings on each Test Date shall not be
greater than 80% of the Consolidated Inventories and Trade
Receivable on such Test Date.
SCHEDULE 9
PERMITTED SECURITY INTERESTS
SECURITY INTEREST
MEMBER OF GROUP AMOUNT SECURED ASSETS SECURED GRANTED IN FAVOUR OF
-------------------------------------------------------------------------------------------------------------
Dnepropetrovsk Oil USD 70,000,000 Current and non current European Bank for
Extraction Plan (DOEP) assets Reconstruction and
Development
The Borrower USD 40,000,000 Cash BNP Paribas
USD 5,500,000 Cash Societe Generale
Central Soya Company USD 6,200,000 Cash Bank One Chicago
Cereol America, Inc USD 2,900,000 Cash Bank One Chicago
Canamera Foods CAD 39,000,000 Trade receivables SAFE Trust
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, Inc. CAD 700,000 Land & buildings at Royal Bank of Canada
St. ▇▇▇▇▇▇ & at St
▇▇▇▇▇▇▇, Quebec
CAD 21,500,000 Account receivables, National Bank of Canada
all other land &
buildings
Cereol Holding BV USD 12,000,000 Cash HSBC (Switzerland)
SCHEDULE 10
JOINT VENTURES
JOINT VENTURES GROUP SHAREHOLDING
------------------------------------------------------------------------
1. CF Edible Oils, Inc (Canada) 50%
2. HCS Nutritional Resources LLC (USA) 51%
3. Olmuhle GmbH (Austria) 50%
4. Polska Oil Investment BV (Netherlands) 60.50%
5. Saipol SA (France) 33.34%
6. Sogip SA (France) 75%
7. Universal Financial Services LP (USA) 50%
SCHEDULE 11
FORM OF RESIGNATION LETTER
To: BNP Paribas as Facility Agent
From: ▇▇▇▇▇▇▇ ▇▇ and the Borrower
Dated: [ ]
Dear Sirs
FACILITY AGREEMENT DATED 15 OCTOBER 2002 (THE "AGREEMENT")
1. We refer to the Agreement. This is a Resignation Letter. Terms defined
in the Agreement have the same meaning in the Resignation Letter unless
given a different meaning in the Resignation Letter.
2. Pursuant to Clause 18.11 (RESIGNATION OF ▇▇▇▇▇▇▇) we request that
▇▇▇▇▇▇▇ be released from its obligations as a Guarantor under this
Agreement.
3. We confirm that:
(i) the ▇▇▇▇▇▇▇ Joint Venture has occurred; and
(i) no Default is continuing.
17. This Resignation Letter is governed by English law.
[BORROWER] [▇▇▇▇▇▇▇]
By: By:
By: By:
Signed on 15 October 2002 by the authorised representatives of the Parties, in
as many copies as there are Parties to this Agreement.
CEREOL SA
AS BORROWER
By: Matthieu Hauw ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Counsel Finance and Treasury Manager
Signature: /s/ Matthieu Hauw /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BNP PARIBAS
AS ARRANGER
By: Simon ▇▇▇▇▇▇▇ ▇▇▇ Mingaz
Title:
Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇ Mingaz
CCF
AS ARRANGER
By: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director Managing Director
Signature: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
SOCIETE GENERALE
AS ARRANGER
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
Signature: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BNP PARIBAS
AS BANK
By: Simon ▇▇▇▇▇▇▇ ▇▇▇ Mingaz
Title:
Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇ Mingaz
CCF
AS BANK
By: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director Managing Director
Signature: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
SOCIETE GENERALE
AS BANK
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
Signature: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BNP PARIBAS
AS FACILITY AGENT
By: Simon ▇▇▇▇▇▇▇ ▇▇▇ Mingaz
Title:
Signature: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇ Mingaz