SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) November 22, 2005
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INTERNATIONAL FLAVORS & FRAGRANCES INC.
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(Exact Name of Registrant as Specified in Charter)
New York 1-4858 13-1432060
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
521 West 57th Street, New York, N 10019
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(Address of Principal Executive O (Zip Code)
Registrant's telephone number, including area code (212) 765-5500
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Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
|_| Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On November 23, 2005, International Flavors & Fragrances Inc., a New York
corporation (the "Company"), International Flavors & Fragrances (Luxembourg)
S.a.r.l., a Luxembourg corporation ("IFF Lux"), and certain of the Company's
subsidiaries (the "Subsidiaries" and together with the Company and IFF Lux, the
"Company Parties") entered into a multi-currency revolving credit facility
agreement (the "Facility Agreement") among the Company Parties, the banks named
therein, including Citigroup Global Markets Limited, Fortis Bank S.A./N.V, Bank
of America N.A., Bank of Tokyo-Mitsubishi Trust Company, BNP Paribas, ING Bank
N.V., JP Morgan Chase and Wachovia Bank, National Association, as mandated lead
arrangers, and Citibank International PLC, as Facility Agent.
The Facility Agreement provides for a dual tranche, five-year US
$350,000,000 ("Tranche A") and Euro 400,000,0000 ("Tranche B") multi-currency
revolving credit facility, which replaces the Terminated Agreements referred to
in Item 1.02 below. Tranche A is available to the Company for general corporate
purposes, for repayment of outstanding amounts under the September 2001
Agreement referred to in Item 1.02, and for commercial paper backstop purposes,
and Tranche B is available to IFF Lux and the Subsidiaries for general corporate
purposes and for repayment of outstanding amounts under the July 2002 Agreement
referred to in Item 1.02. Borrowings under the Facility Agreement bear interest
at an annual rate of LIBOR (or in relation to any loan in Euro, EURIBOR) plus a
margin of 20 basis points linked to a ratings grid.
The Company has guaranteed the obligations of its respective subsidiaries
under the Facility Agreement.
IFF Lux may approach the lenders prior to each of November 22, 2006 and
November 22, 2007 to request the extension of the Facility Agreement for up to
an aggregate of two additional years.
The Facility Agreement contains various affirmative and negative covenants
customary in a facility of this type, including a covenant requiring the Company
to maintain, at the end of each fiscal quarter, a ratio of net debt for borrowed
money to EBITDA in respect of the previous 12-month period of not more than 3.25
to 1.
The Company is required to pay a commitment fee payable quarterly in
arrears of 30% of the margin per annum on the aggregate unused and uncanceled
commitments under the Facility Agreement. An additional utilization fee of 2.5
basis points is payable if such outstanding amounts exceed 50% of the aggregate
commitments under the Facility Agreement.
Unless extended, the Facility Agreement will expire on November 22, 2010,
at which time all outstanding amounts under the Facility Agreement will be due
and payable. In the event of an event of default, the lenders may terminate the
Facility Agreement and declare any principal amount then outstanding and all
accrued interest, fees and other amounts payable under the Facility Agreement to
be immediately due and payable. Defaults under the Facility Agreement which
could result in the acceleration by the lenders of the obligations of the
Company Parties include a change of control of the Company (as defined in the
Facility Agreement) and certain acquisitions made in contemplation of a merger
where as a direct result of the acquisition, the public debt rating of the
Company quoted by Moody's or S&P (including any change in terms of its outlook)
is a lower rating than its public debt rating immediately prior to such
acquisition.
Some of the lenders under the Facility Agreement and their affiliates have
various relationships with the Company, IFF Lux and the Subsidiaries involving
the provision of financial services, including cash management, investment
banking and trust services.
Item 1.02. Termination of a Material Definitive Agreement
Concurrently with the effectiveness of the Facility Agreement described in
Item 1.01 above, the Company terminated its US $300,000,000 revolving credit
facility dated September 26, 2001 (the "September 2001 Agreement") by the
Company, certain initial lenders named therein, Citibank N.A., as Administrative
Agent, and Salomon Smith Barney Inc., as Arranger.
Concurrently with the effectiveness of the Facility Agreement described in
Item 1.01 above, IFF Lux, terminated its Euro 350,000,000 revolving credit
facility dated July 19, 2002 (the "July 2002 Agreement") by IFF Lux, the banks
named therein, ABN AMRO Bank NV and Barclays Capital, as Mandated Lead
Arrangers, and Barclays Bank PLC, as Facility Agent. The September 2001
Agreement and the July 2002 Agreement are referred to herein together as the
"Terminated Agreements".
The commitment of the lenders under the Terminated Agreements to make loans
was scheduled to expire on September 26, 2006 under the September 2001 Agreement
and on July 19, 2007 under the July 2002 Agreement. The Company did not incur
any material termination penalties to exit the agreements.
Borrowings under the September 2001 Agreement bore interest at LIBOR plus a
margin linked to a price grid, and borrowings under the July 2002 Agreement bore
interest at EURIBOR plus a margin linked to a price grid. The interest rates
were subject to change from time-to-time based on the rating for any class of
non-credit enhanced long-term senior unsecured debt issued by the Company. There
are no outstanding amounts being transferred to the new facility and there are
no material changes in terms under the new agreements.
The Terminated Agreements contained customary representations, warranties,
covenants and events of default.
Some of the lenders under the Terminated Agreements and their affiliates
have various relationships with the Company and its subsidiaries involving the
provision of financial services, including cash management, investment banking
and trust services.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth under Item 1.01 is incorporated herein by
reference.
Item 9.01. Financial Statements and Exhibits.
(c) Exhibits
Exhibit No. Document
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4.1 Multi-Currency Revolving Facility Agreement, dated
November 22, 2005, among International Flavors &
Fragrances Inc., International Flavors & Fragrances
(Luxembourg) S.a.r.l., certain subsidiaries, the banks
named therein, including Citigroup Global Markets
Limited, Fortis Bank S.A./N.V, Bank of America N.A.,
Bank of Tokyo-Mitsubishi Trust Company, BNP Paribas,
ING Bank N.V., JP Morgan Chase and Wachovia Bank,
National Association, as mandated lead arrangers, and
Citibank International PLC, as Facility Agent.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
INTERNATIONAL FLAVORS & FRAGRANCES INC.
Dated: November 28, 2005 By: /s/ Douglas J. Wetmore
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Name: Douglas J. Wetmore
Title: Senior Vice President and
Chief Financial Officer
23 November 2005
INTERNATIONAL FLAVORS & FRAGRANCES S.A.R.L.
AND OTHERS
as Borrowers
INTERNATIONAL FLAVORS & FRAGRANCES INC.
as Guarantor and Parent
CITIGROUP GLOBAL MARKETS LIMITED
FORTIS BANK S.A./N.V.
BANK OF AMERICA, N.A.
BANK OF TOKYO-MITSUBISHI
BNP PARIBAS
ING BANK N.V.
J.P. MORGAN SECURITIES INC.
WACHOVIA BANK, NATIONAL ASSOCIATION
as Mandated Lead Arrangers
with
CITIBANK INTERNATIONAL PLC
acting as Agent and Euro Swingline Agent
and
CITIBANK N.A.
as US Swingline Agent
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MULTICURRENCY REVOLVING FACILITY AGREEMENT
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CONTENTS
CLAUSE
1. DEFINITIONS AND INTERPRETATION
2. THE FACILITY
3. PURPOSE
4. CONDITIONS OF UTILISATION
5. UTILISATION - REVOLVING FACILITIES
6. OPTIONAL CURRENCIES
7. UTILISATION - SWINGLINE LOANS
8. SWINGLINE LOANS
9. REPAYMENT
10. PREPAYMENT AND CANCELLATION
11. EXTENSION OF FACILITY
12. INTEREST
13. INTEREST PERIODS
14. CHANGES TO THE CALCULATION OF INTEREST
15. FEES
16. TAX GROSS UP AND INDEMNITIES
17. INCREASED COSTS
18. OTHER INDEMNITIES
19. MITIGATION BY THE LENDERS
20. COSTS AND EXPENSES
21. GUARANTEE AND INDEMNITY
22. REPRESENTATIONS AND WARRANTIES
23. GENERAL COVENANTS
24. FINANCIAL COVENANT
25. EVENTS OF DEFAULT
26. CHANGES TO THE LENDERS
27. CHANGES TO THE OBLIGORS
28. ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGERS
29. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
30. SHARING AMONG THE LENDERS
31. PAYMENT MECHANICS
32. SET-OFF
33. NOTICES
34. CALCULATIONS AND CERTIFICATES
35. PARTIAL INVALIDITY
36. REMEDIES AND WAIVERS
37. AMENDMENTS AND WAIVERS
38. COUNTERPARTS 89 39. GOVERNING LAW 91 40. ENFORCEMENT 91
41. COMPLETE AGREEMENT
SCHEDULE 1 THE ORIGINAL PARTIES
Part A The Original Borrowers
Part BI The Original Lenders
Part BII The Original Swingline Lenders
SCHEDULE 2 CONDITIONS PRECEDENT
Part A Conditions Precedent to Initial Utilisation
Part B Conditions Precedent required to be delivered by
an Additional Borrower
SCHEDULE 3 UTILISATION REQUEST
Part A Revolving Facility Utilisation Request
Part B Swingline Facility Utilisation Request
SCHEDULE 4 MANDATORY COST FORMULAE
SCHEDULE 5 FORM OF TRANSFER CERTIFICATES
SCHEDULE 6 TIMETABLES
SCHEDULE 7 SUBSIDIARY GUARANTEE DOCUMENTS
SCHEDULE 8 FORM OF ACCESSION LETTER
SCHEDULE 9 FORM OF RESIGNATION LETTER
THIS AGREEMENT is dated 23 November 2005 and made between:
(1) INTERNATIONAL FLAVORS & FRAGRANCES (LUXEMBOURG) S.A.R.L, a company (societe
a responsabilite limitee) incorporated in Luxembourg and registered with
the Register of Commerce and Companies of Luxembourg under number B 79234
and having its registered address at 6 rue de Mamer, L-8081 Bertrange,
Grand-Dutchy of Luxembourg, with a share capital of EUR 163,360,000 (the
"Company");
(2) THE COMPANIES listed as original borrowers in Part A of Schedule 1 (The
Original Parties) (the "Original Borrowers");
(3) INTERNATIONAL FLAVORS & FRAGRANCES INC. as guarantor (the "Guarantor");
(4) INTERNATIONAL FLAVORS & FRAGRANCES INC. as parent (the "Parent");
(5) CITIGROUP GLOBAL MARKETS LIMITED, FORTIS BANK S.A./N.V., bank of America,
n.a., BANK OF TOKYO-MITSUBISHI, BNP PARIBAS, ING BANK N.V., J.P. MORGAN
securities inc. and WACHOVIA BANK, NATIONAL ASSOCIATION, as mandated lead
arrangers (the "Mandated Lead Arrangers");
(6) THE FINANCIAL INSTITUTIONS listed in Part BI of Schedule 1 (The Original
Parties) as lenders (the "Original Lenders");
(7) THE FINANCIAL INSTITUTIONS listed in Part BII of Schedule 1 (The Original
Parties) as swingline lenders (the "Original Swingline Lenders");
(8) CITIBANK N.A. as agent for the Dollar Swingline Facility (the "US Swingline
Agent");
(9) CITIBANK INTERNATIONAL PLC as agent for the Euro Swingline Facility (the
"Euro Swingline Agent"); and
(10) CITIBANK INTERNATIONAL PLC as agent of the Lenders (the "Agent").
IT IS AGREED as follows:
SECTION 1.
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Additional Borrower" means a company which becomes an Additional Borrower
in accordance with Clause 27.2 (Additional Borrowers).
"Affiliate" means, as to any person, any other person that, directly or
indirectly, controls, is controlled by or is under common control with such
person or is a director or officer of such person. For purposes of this
definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a person means the
possession, direct or indirect, of the power to vote 50% or more of the
Voting Stock of such person or to direct or cause the direction of the
management and policies of such person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Agent" includes the Euro Swingline Agent or the US Swingline Agent (or
both of them) where the context permits.
"Agent's Spot Rate of Exchange" means the Agent's spot rate of exchange for
the purchase of the relevant currency with the relevant Base Currency in
the London foreign exchange market at or about 11:00 a.m. on a particular
day.
"Authorisation" means an authorisation, consent, approval, resolution,
licence exemption, filing or registration (including, without limitation,
the Environmental Permits).
"Applicable Margin" means as of any date, a percentage per annum determined
by reference to the Public Debt Rating in effect on such date as set forth
below:
Public Debt Rating S&P/Moody's Applicable Margin
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Level 1 0.125%
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A+/A1 or above
Level 2 0.150%
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A/A2
Level 3 0.175%
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A-/A3
Level 4 0.225%
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BBB+/Baa1
Level 5 0.275%
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BBB/Baa2
Level 6 0.350%
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BBB-/Baa3
Level 7 0.500%
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lower than level 6
If the Public Debt Rating shall be changed, the change in Applicable Margin
arising as a result of such change shall be effective as of the date on
which any change in rating established by S&P or Moody's or both giving
rise to such change in the Public Debt Rating is first announced publicly
by the relevant rating agency making such change (for greater certainty, it
is understood that such date may be a date falling at any time during an
Interest Period).
"Availability Period" means the period from and including the date of this
Agreement to and including the date falling one Business Day prior to the
Termination Date.
"Available Commitment" means the Tranche A Available Commitment or the
Tranche B Available Commitment.
"Available Dollar Swingline Commitment" of a Swingline Lender means (but
without limiting Clause 7.5 (Relationship with the Revolving Facility))
that Lender's Dollar Swingline Commitment minus:
(a) the Base Currency Amount of its participation in any outstanding
Dollar Swingline Loans; and
(b) in relation to any proposed Utilisation under the Dollar Swingline
Facility, the Base Currency Amount of its participation in any Dollar
Swingline Loans that are due to be made under the Dollar Swingline
Facility on or before the proposed Utilisation Date,
other than that Lender's participation in any Dollar Swingline Loans that
are due to be repaid or prepaid on or before the proposed Utilisation Date.
"Available Dollar Swingline Facility" means the aggregate for the time
being of each Swingline Lender's Available Dollar Swingline Commitment.
"Available Euro Swingline Commitment" of a Swingline Lender means (but
without limiting Clause 7.5 (Relationship with the Revolving Facility))
that Lender's Euro Swingline Commitment minus:
(a) the Base Currency Amount of its participation in any outstanding Euro
Swingline Loans; and
(b) in relation to any proposed Utilisation under the Euro Swingline
Facility, the Base Currency Amount of its participation in any Euro
Swingline Loans that are due to be made under the Euro Swingline
Facility on or before the proposed Utilisation Date,
other than that Lender's participation in any Euro Swingline Loans that are
due to be repaid or prepaid on or before the proposed Utilisation Date.
"Available Euro Swingline Facility" means the aggregate for the time being
of each Swingline Lender's Available Euro Swingline Commitment.
"Available Facility" means, in relation to a Facility, the aggregate for
the time being of each Lender's Available Commitment in respect of that
Facility.
"Base Currency" means, in respect of the Tranche A Revolving Facility and
the Dollar Swingline Facility, US dollars and, in respect of the Tranche B
Revolving Facility and the Euro Swingline Facility, euro.
"Base Currency Amount" means, in relation to a Loan, the amount specified
in the Utilisation Request for that Loan (or, if the amount requested is
not denominated in the relevant Base Currency, that amount converted into
the relevant Base Currency at the relevant Agent's Spot Rate of Exchange on
the date which is three Business Days before the Utilisation Date or, if
later, on the date the Agent receives the Utilisation Request) adjusted to
reflect any repayment, prepayment, consolidation or division of the Loan.
"Borrower" means an Original Borrower or an Additional Borrower.
"Break Costs" means the amount (if any) by which:
(a) the interest (excluding the Applicable Margin) which a Lender should
have received for the period from the date of receipt of all or any
part of its participation in a Loan or Unpaid Sum to the last day of
the current Interest Period in respect of that Loan or Unpaid Sum, had
the principal amount or Unpaid Sum received been paid on the last day
of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on
deposit with a leading bank in the Relevant Interbank Market for a
period starting on the Business Day following receipt or recovery and
ending on the last day of the current Interest Period.
"Business Day" means a day (other than a Saturday or Sunday) on which banks
are open for general business in Amsterdam, London, Luxembourg and New York
and:
(a) (in relation to any date for payment or purchase of a currency other
than euro or any date for the fixing of LIBOR) the principal financial
centre of the country of that currency; or
(b) (in relation to any date for payment or purchase of euro) any TARGET
Day.
"Cash" means at any time, in respect of any member of the Group, cash as
defined in the Audit and Accounting Guides issued by the American Institute
of Certified Public Accountants of the United States of America (as amended
from time to time) which includes as at the date of this Agreement currency
on hand, demand deposits with financial institutions and other similar
deposit accounts.
"Cash Equivalents" means in respect of any member of the Group, cash
equivalents as defined in the Audit and Accounting Guides issued by the
American Institute of Certified Public Accountants of the United States of
America (as amended from time to time) which includes as at the date of
this Agreement short term instruments having not more than three months to
final maturity and highly liquid instruments readily convertible to known
amounts of cash
"Commitment" means a Tranche A Commitment, a Tranche B Commitment, a Dollar
Swingline Commitment or a Euro Swingline Commitment.
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP.
"Corporate Bonds" means the US$700,000,000 of 6.45% notes issued by the
Parent in 2001 maturing on 15 May 2006.
"Corporate Bond Repayment Date" means 15 May 2006 or such other date as the
Corporate Bonds are repaid.
"Debt" of any person means, without duplication:
(a) all indebtedness of such person for borrowed money;
(b) all obligations of such person for the deferred purchase price of
assets or services (other than trade payables not overdue by more than
60 days incurred in the ordinary course of such person's business);
(c) all obligations of such person evidenced by notes, bonds, debentures
or other similar instruments,
(d) all obligations of such person created or arising under any
conditional sale or other title retention agreement with respect to
assets acquired by such person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such assets);
(e) all obligations of such person as lessee under leases that have been
or should be, in accordance with GAAP, recorded as capital leases;
(f) all obligations, contingent or otherwise, of such person in respect of
acceptances, letters of credit or similar extensions of credit;
(g) all obligations of such person in respect of Hedge Agreements;
(h) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(i) any amount raised by the issue of shares redeemable prior to the
Termination Date;
(j) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing;
(k) all Debt of others referred to in paragraphs (a) through (j) above or
paragraph (l) below guaranteed directly or indirectly in any manner by
such person, or in effect guaranteed directly or indirectly by such
person through an agreement (1) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such Debt, (2)
to purchase, sell or lease (as lessee or lessor) assets, or to
purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Debt or to assure the holder of such
Debt against loss, (3) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for assets or
services irrespective of whether such assets are received or such
services are rendered) or (4) otherwise to assure a creditor against
loss; and
(l) all Debt referred to in paragraphs (a) through (k) above secured by
(or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Security on assets
(including, without limitation, accounts and contract rights) owned by
such person, even though such person has not assumed or become liable
for the payment of such Debt.
"Debt for Borrowed Money" of a person means all items that, in accordance
with GAAP, would be classified as indebtedness on a Consolidated balance
sheet of such person other than any amounts which would be classified as
indebtedness, in accordance with GAAP, which arise under any Hedge
Agreements.
"Default" means an Event of Default or any event or circumstance specified
in Clause 25 (Events of Default) which would (with the expiry of a grace
period, the giving of notice, the making of any determination under the
Finance Documents or any combination of any of the foregoing) be an Event
of Default.
"Disruption Event" means either or both of:
(a) a material disruption to those payment or communications systems or to
those financial markets which are, in each case, required to operate
in order for payments to be made in connection with the Facilities (or
otherwise in order for the transactions contemplated by the Finance
Documents to be carried out) which disruption is not caused by, and is
beyond the control of, any of the Parties; or
(b) the occurrence of any other event which results in a disruption (of a
technical or systems-related nature) to the treasury or payments
operations of a Party preventing that, or any other Party:
(i) from performing its payment obligations under the Finance
Documents; or
(ii) from communicating with other Parties in accordance with the
terms of the Finance Documents,
(and which (in either such case)) is not caused by, and is beyond the
control of, the Party whose operations are disrupted.
"DNB" means the Dutch Central Bank (De Nederlandsche Bank N.V.).
"Dollar Swingline Commitment" means:
(a) in relation to a Swingline Lender on the date of this Agreement, the
amount in US dollars set opposite its name under the heading "Dollar
Swingline Commitment" in Part BII of Schedule 1 (The Original Parties)
and the amount of any other Dollar Swingline Commitment transferred to
it under this Agreement; and
(b) in relation to any other Swingline Lender, the amount of any Dollar
Swingline Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Dollar Swingline Facility" means the dollar swingline loan facility made
available under this Agreement as described in Clause 2.1(b)(i) (The
Facility).
"Dollar Swingline Loan" means a loan made or to be made under the Dollar
Swingline Facility or the principal amount outstanding for the time being
of that loan.
"Dutch Borrower" means a Borrower incorporated in the Netherlands.
"Dutch Obligor" means an Obligor incorporated in the Netherlands.
"Dutch Banking Act" means the Dutch Act on the Supervision of the Credit
System 1992 (Wet toezicht kredietwezen 1992) as amended from time to time,
including the Dutch Exemption Regulation.
"Dutch Civil Code" means the Burgerlijk Wetboek.
"Dutch Exemption Regulation" means the Exemption Regulation dated 26 June
2002 (as amended from time to time) of the Minister of Finance
(Vrijstellingsregeling Wtk 1992), as promulgated in connection with the
Dutch Banking Act.
"EBITDA" means, for any Relevant Period, net income (or net loss) plus the
sum of:
(a) interest expense;
(b) income tax expense;
(c) depreciation expense;
(d) amortisation expense and all other non-cash charges; and
(e) extraordinary or unusual losses deducted in calculating net income
less extraordinary or unusual gains added in calculating net income, in
each case determined in accordance with GAAP for the Relevant Period.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, Environmental
Permit or Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment, including, without limitation:
(a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages; and
(b) by any governmental or regulatory authority or any third party for
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment, decree or judicial
or agency interpretation, policy or guidance relating to pollution or
protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permits" means any permit, approval, identification number,
license or other authorisation required under any Environmental Law.
"ERISA" means the United States Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any person that for purposes of Title IV of ERISA
is a member of the Parent's controlled group, or under common control with
the Parent, within the meaning of Section 414 of the United States Internal
Revenue Code of 1986 (as amended from time to time) and the regulations
promulgated and rulings issued thereunder.
"ERISA Event" means:
(a) (i) the occurrence of a reportable event, within the meaning of
Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the
PBGC, or (ii) the requirements of subsection (1) of Section 4043(b) of
ERISA (without regard to subsection (2) of such Section) are met with
a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of
a Plan, and an event described in paragraph (9), (10), (11), (12) or
(13) of Section 4043(c) of ERISA is reasonably expected to occur with
respect to such Plan within the following 30 days;
(b) the application for a minimum funding waiver with respect to a Plan;
(c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred
to in Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of the Parent or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA;
(e) the withdrawal by the Parent or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA;
(f) the imposition of a lien under Section 302(f) of ERISA with respect to
any Plan;
(g) the adoption of an amendment to a Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds
for the termination of, or the appointment of a trustee to administer,
a Plan.
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the period of that Loan) the
arithmetic mean of the rates (rounded upwards to four decimal places)
as supplied to the Agent at its request quoted by the Reference Banks
to leading banks in the European interbank market;
as of the Specified Time on the Quotation Day for the offering of deposits
in euro for a period comparable to the Interest Period of the relevant
Loan.
"Euro Swingline Commitment" means:
(a) in relation to a Swingline Lender on the date of this Agreement, the
amount in euro set opposite its name under the heading "Euro Swingline
Commitment" in Part BII of Schedule 1 (The Original Parties) and the
amount of any other Euro Swingline Commitment transferred to it under
this Agreement; and
(b) in relation to any other Swingline Lender, the amount of any Euro
Swingline Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Euro Swingline Facility" means the euro swingline loan facility made
available under this Agreement as described in Clause 2.1(b)(ii) (The
Facility).
"Euro Swingline Loan" means a loan made or to be made under the Euro
Swingline Facility or the principal amount outstanding for the time being
of that loan.
"Euro Swingline Rate" means, in relation to a Euro Swingline Loan, the
percentage rate per annum which is the aggregate of:
(a) Euro Swingline Reference Bank Rate; and
(b) the Applicable Margin; and
(c) Mandatory Cost (if any).
"Euro Swingline Reference Bank Rate" means the arithmetic mean of the rates
(rounded upwards to four decimal places) as supplied to the Euro Swingline
Agent at its request quoted by the Reference Banks to leading banks in the
European interbank market as of 11.00 a.m. Brussels time on the Utilisation
Date for that Euro Swingline Loan for the offering of deposits in euro for
a period comparable to the Interest Period for the relevant Euro Swingline
Loan and for settlement on that day.
"Event of Default" means any event or circumstance specified as such in
Clause 25 (Events of Default).
"Existing 2001 Facility" means the US$300,000,000 revolving credit facility
made available to the Parent under an agreement dated 26 September 2001.
"Existing 2002 Facility" means the EUR350,000,000 revolving credit facility
made available to the Company under an agreement dated 19 July 2002.
"Facility" means the Tranche A Revolving Facility, the Tranche B Revolving
Facility, the Dollar Swingline Facility or the Euro Swingline Facility.
"Facility Office" means the office or offices notified by a Lender to the
Agent in writing on or before the date it becomes a Lender (or, following
that date, by not less than five Business Days' written notice) as the
office or offices through which it will perform its obligations under this
Agreement.
"Federal Funds Rate" means, in relation to any day, the rate per annum
equal to:
(a) the weighted average of the rates on overnight Federal funds
transactions with members of the US Federal Reserve System arranged by
Federal funds brokers, as published for that day (or, if that day is
not a New York Business Day, for the immediately preceding New York
Business Day) by the Federal Reserve Bank of New York; or
(b) if a rate is not so published for any day which is a New York Business
Day, the average of the quotations for that day on such transactions
received by the US Swingline Agent from three Federal funds brokers of
recognised standing selected by the Agent.
"Fee Letter" means any letter or letters between certain of the Mandated
Lead Arrangers, the Parent and the Company setting out any of the fees
referred to in Clause 15 (Fees).
"Finance Document" means this Agreement, any Fee Letter and any other
document designated as such by the Agent and the Borrower.
"Finance Party" means the Agent, the Mandated Lead Arrangers or a Lender.
"Founder" means:
(a) each person who is a beneficial owner (within the meaning of Rule13d-3
of the United States Securities and Exchange Commission under the
United States Securities Exchange Act of 1934) of 20% or more of the
outstanding shares of Voting Stock of the Parent on the date hereof or
any person that is or becomes a fiduciary of any person who is a
beneficial owner of (or any person for whose account were held)
outstanding shares of Voting Stock of the Parent on the date hereof
(in any such case, an "Existing Shareholder"), including any group
that is comprised solely of Existing Shareholders; and
(b) any such Existing Shareholder or group comprised solely of Existing
Shareholders who shall become the beneficial owner of 20% or more of
the outstanding shares of Voting Stock of the Parent solely as a
result of an acquisition by the Parent of shares of its Voting Stock,
in each case until such time as the persons or group described in
paragraphs (a) and (b) above shall become the beneficial owner (other than
by means of a stock dividend, stock split, gift or inheritance or receipt
or exercise of, or accrual of any right to exercise, any stock options of
shares of stock granted by the Parent) of any additional shares of Voting
Stock of the Parent.
In addition, the Parent, any wholly-owned Subsidiary of the Parent and any
employee stock ownership or other employee benefit plan of the Parent or a
wholly-owned Subsidiary of the Parent shall be a "Founder".
"GAAP" means, in respect of the Parent, generally accepted accounting
principles in the United States of America consistent with those applied in
the preparation of the financial statements referred to in Clause 22.5
(Financial Statements).
"Group" means the Parent and its Subsidiaries for the time being.
"Hazardous Materials" means (a) petroleum and petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements.
"Information Memorandum" means the document concerning the Obligors and the
Parent which, at the Parent's and the Company's request and on its behalf,
is to be prepared in relation to this transaction, approved by the Parent
and the Company and distributed by the Mandated Lead Arrangers in
connection with syndication of the Facility.
"Interest Period" means, in relation to a Revolving Facility Loan, each
period determined in accordance with Clause 13 (Interest Periods), in
relation to a Swingline Loan, each period determined in accordance with
Clause 8.4 (Interest Period) and, in relation to an Unpaid Sum, each period
determined in accordance with Clause 12.4 (Default interest).
"Legal Reservations" means:
(a) the principle that equitable remedies may be granted or refused at the
discretion of a court and the limitation of enforcement by laws
relating to insolvency, reorganisation and other laws generally
affecting the rights of creditors;
(b) the time barring of claims under the Limitation Acts, the possibility
that an undertaking to assume liability for or indemnify a person
against non-payment of UK stamp duty may be void and defences of
set-off or counterclaim; and
(c) similar principles, rights and defences under the laws of any Relevant
Jurisdiction.
"Lender" means:
(a) any Original Lender;
(b) where the context so requires, any Swingline Lender; and
(c) any bank or financial institution which has become a Party in
accordance with Clause 26 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest Period of
that Loan) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the London interbank market,
as of the Specified Time on the Quotation Day for the offering of deposits
in the currency of that Loan and for a period comparable to the Interest
Period for that Loan.
"Limitation Acts" means the Limitation Act 1980 and the Foreign Limitation
Periods Act 1984.
"Loan" means a Revolving Facility Loan, a Swingline Loan or the principal
amount outstanding for the time being of that loan.
"LMA" means the Loan Market Association.
"Majority Lenders" means:
(a) if there are no Loans then outstanding, a Lender or Lenders whose
Commitments aggregate more than 662/3% of the Total Commitments (or,
if the Total Commitments have been reduced to zero, aggregated more
than 66 2/3% of the Total Commitments immediately prior to the
reduction); or
(b) at any other time, a Lender or Lenders whose participations in the
Loans then outstanding aggregate more than 66 2/3% of all the Loans
then outstanding.
provided that
for the purpose only of determining the composition of and voting rights in
relation to the "Majority Lenders" the Total Commitments and the
outstanding Loans of each Lender shall be calculated by the amount of the
Total Tranche A Commitments or any Tranche A Loans being converted into
euros at the Agent's Spot Rate of Exchange on the date which the Agent
notifies the Lenders of any waiver, consent, approval, notice, direction or
instruction to be given, amendment or appointment to be made or other
decision to be taken.
"Mandatory Cost" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost formulae).
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise) or results of operations of
the Parent and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on:
(a) the business, condition (financial or otherwise) or results of
operations of the Parent and its Subsidiaries taken as a whole;
(b) the rights and remedies of the Agent or any Lender under the Finance
Documents; or
(c) the ability of any Obligor or the Parent to perform its payment
obligations under the Finance Documents.
"Moody's" means Moody's Investor Services, Inc., or any successor by merger
or change of name which is a nationally recognised rating agency in the
United States of America.
"Month" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month, except
that:
(a) (subject to paragraph (c) below) if the numerically corresponding day
is not a Business Day, that period shall end on the next Business Day
in that calendar month in which that period is to end if there is one,
or if there is not, on the immediately preceding Business Day;
(b) if there is no numerically corresponding day in the calendar month in
which that period is to end, that period shall end on the last
Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a calendar
month, that Interest Period shall end on the last Business Day in the
calendar month in which that Interest Period is to end.
The above rules will only apply to the last Month of any period.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Parent or any ERISA Affiliate is making
or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that:
(a) is maintained for employees of the Parent or any ERISA Affiliate and
at least one person other than the Parent and the ERISA Affiliates; or
(b) was so maintained and in respect of which the Parent or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"Net Debt" means Debt for Borrowed Money less Cash and Cash Equivalents.
"New York Business Day" means a day (other than a Saturday or Sunday) on
which banks are open for general business in New York City.
"Obligors" means the Borrowers and the Guarantor.
"OECD Jurisdiction" means a member country of the Organisation for Economic
Co-operation and Development.
"Optional Currency" means a currency (other than the Base Currency) which
complies with the conditions set out in Clause 4.3 (Conditions relating to
Optional Currencies) or, in relation to the Euro Swingline Facility, Clause
7.3 (Completion of a Utilisation Request for Swingline Loans).
"Original Obligors" means the Original Borrowers and the Guarantor.
"Overall Tranche A Commitment" of a Lender means:
(a) its Tranche A Commitment; or
(b) in the case of a Lender which does not have a Tranche A Commitment,
the Tranche A Commitment of a Lender which is its Affiliate.
"Overall Tranche B Commitment" of a Lender means:
(a) its Tranche B Commitment; or
(b) in the case of a Lender which does not have a Tranche B Commitment,
the Tranche B Commitment of a Lender which is its Affiliate.
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Communities relating to
Economic and Monetary Union.
"Party" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees.
"Patriot Act" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Public Law 107-56, as amended.
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
"Permitted Security" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced:
(a) Security for Taxes, assessments and governmental charges or levies to
the extent not required to be paid under Clause 23.3.1 (Payment of
Taxes, Etc.);
(b) Security imposed by law, such as materialmen's, mechanics', carriers',
workmen's and repairmen's Security and other similar Security arising
in the ordinary course of business securing obligations that are not
overdue for a period of more than 30 days;
(c) pledges or deposits to secure obligations under workers' compensation
laws or similar legislation or to secure public or statutory
obligations;
(d) easements, rights of way and other encumbrances on title to real
property that do not render title to the real property encumbered
thereby unmarketable or materially adversely affect the use of such
real property for its present purposes;
(e) any netting or set-off arrangement entered into by any member of the
Group in the ordinary course of its banking arrangements for the
purpose of netting debit and credit balances of members of the Group;
(f) any Security arising solely by virtue of the maintenance of a bank
account by any member of the Group in the ordinary course of business
pursuant to the general terms and conditions of the bank with which
such account is held; and
(g) any lien arising by operation of law and in the ordinary course of
trading.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Policy Guidelines" means the 2005 Dutch Central Bank's Policy Guidelines
(issued in relation to the Dutch Exemption Regulation) dated 29 December
2004 (Beleidsregel 2005 kernbegrippen markttoetreding en handhaving Wtk
1992) as amended from time to time.
"Professional Market Party" means a professional market party
(professionele marktpartij) under the Dutch Exemption Regulation.
"Public Debt Rating" means: (i) as of any date until and including the
Corporate Bond Repayment Date, the rating that has been most recently
announced by either S&P or Moody's or both as the case may be, for any
class of non-credit enhanced long-term senior unsecured debt issued by the
Parent; and (ii) as of any date following the Corporate Bond Repayment
Date, the rating that has been most recently announced by either S&P or
Moody's or both as the case may be with respect to the overall financial
capacity (its creditworthiness) of the Parent to pay its financial
obligations as they come due. For purposes of the foregoing:
(a) if only one of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin shall be determined by reference to the
available rating;
(b) if neither S&P nor Moody's shall have in effect a Public Debt Rating,
the Applicable Margin shall be set in accordance with Level 7 under
the definition of "Applicable Margin", as the case may be;
(c) if the ratings established by S&P and Moody's shall fall within
different levels, the Applicable Margin shall be based upon the
average of the Applicable Margins which applies to each rating; and
(d) if S&P or Moody's shall change the basis on which ratings are
established, each reference to the Public Debt Rating announced by S&P
or Moody's, as the case may be, shall refer to the then equivalent
rating by S&P or Moody's, as the case may be.
"Quotation Day" means, in relation to any period for which an interest rate
is to be determined:
(a) (if the currency is euro) two TARGET Days before the first day of that
period; or
(b) (for any other currency) two Business Days before the first day of
that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the Relevant
Interbank Market (and if quotations would normally be given by leading
banks in the Relevant Interbank Market on more than one day, the Quotation
Day will be the last of those days).
"Reference Banks" means, in relation to:
(a) LIBOR, the principal London offices of Citibank International PLC,
Fortis Bank (Nederland) N.V. and Cooperatieve Centrale
Raiffeisen-Boerenleenbank BA; and
(b) EURIBOR, the principal office in the European interbank market of
Citibank International PLC, Fortis Bank (Nederland) N.V. and
Cooperatieve Centrale Raiffeisen-Boerenleenbank BA,
or such other banks as may be appointed by the Agent or the Euro Swingline
Agent (as appropriate) in consultation with the Parent.
"Relevant Interbank Market" means in relation to euro, the European
interbank market, and, in relation to any other currency, the London
interbank market.
"Relevant Jurisdiction" means, in relation to an Obligor:
(a) its jurisdiction of incorporation as listed in Part A of Schedule 1
(The Original Parties); and
(b) any jurisdiction where it conducts its business.
"Relevant Period" means each period of twelve months ending on the last day
of the Parent's financial year and each period of twelve months ending on
the last day of each of the first three quarters of the Parent's financial
year.
"Resignation Letter" means a letter substantially in the form set out in
Schedule 9 (Form of Resignation Letter).
"Revolving Facility" means the Tranche A Revolving Facility or the Tranche
B Revolving Facility.
"Revolving Facility Loan" means a Tranche A Revolving Facility Loan or a
Tranche B Revolving Facility Loan.
"Rollover Loan" means one or more Revolving Facility Loans:
(a) made or to be made on the same day that a maturing Revolving Facility
Loan is due to be repaid;
(b) the aggregate amount of which is equal to or less than the maturing
Revolving Facility Loan;
(c) in the same currency as the maturing Revolving Facility Loan (unless
it arose as a result of the operation of Clause 6.2 (Unavailability of
a currency)); and
(d) made or to be made for the purpose of refinancing a maturing Revolving
Facility Loan.
"Reacquisition Sale and Leaseback Transaction" has the meaning given to it
in Clause 23.9(e) (Merger).
"S&P"means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. or any successor by merger or change of name
which is a nationally recognised rating agency in the United States of
America.
"Screen Rate" means:
(a) in relation to LIBOR, the British Bankers' Association Interest
Settlement Rate for the relevant currency and period; and
(b) in relation to EURIBOR, the percentage rate per annum determined by
the Banking Federation of the European Union for the relevant period,
displayed on the appropriate page of the Telerate screen (currently page
3750 in relation to LIBOR and page 248 in relation to EURIBOR). If the
agreed page is replaced or service ceases to be available, the Agent may
specify another page or service displaying the appropriate rate after
consultation with the Borrower and the Lenders.
"Security" means any lien, security interest or other charge or encumbrance
of any kind, or any other type of preferential arrangement, including,
without limitation, the lien or retained security title of a conditional
vendor and any easement, right of way or other encumbrance on title to real
property.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that:
(a) is maintained for employees of the Parent or any ERISA Affiliate and
no person other than the Parent and the ERISA Affiliates; or
(b) was so maintained and in respect of which the Parent or any ERISA
Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Specified Time" means a time determined in accordance with Schedule 6
(Timetables)
"Subsidiary" of any person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of:
(a) the issued and outstanding capital stock having ordinary voting power
to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class
or classes of such corporation shall or might have voting power upon
the occurrence of any contingency);
(b) the interest in the capital or profits of such limited liability
company, partnership or joint venture; or
(c) the beneficial interest in such trust or estate
is at the time directly or indirectly owned or controlled by such person,
by such person and one or more of its other Subsidiaries or by one or more
of such person's other Subsidiaries.
"Subsidiary Guarantee" has the meaning given to it in Clause 23.14
(Subsidiary Guarantors).
"Subsidiary Guarantor" has the meaning given to it in Clause 23.14
(Subsidiary Guarantors).
"Swingline Facility" means the Dollar Swingline Facility or the Euro
Swingline Facility.
"Swingline Lender" means:
(a) an Original Lender listed in Part BII of Schedule 1 (The Original
Parties) as a Swingline Lender; and
(b) any other person that becomes a Swingline Lender after the date of
this Agreement in accordance with Clause 26 (Changes to Lenders)
which in each case has not ceased to be a Party as a Swingline Lender in
accordance with the terms of this Agreement.
"Swingline Loan" means a Dollar Swingline Loan or a Euro Swingline Loan.
"TARGET" means Trans-European Automated Real-time Gross Settlement Express
Transfer payment system.
"TARGET Day" means any day on which TARGET is open for the settlement of
payments in euro.
"Tax" means any tax, levy, impost, duty or other charge or withholding of a
similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
"Termination Date" means the date falling five years after the date of this
Agreement, subject to the terms of Clause 11 (Extension of Facility).
"Total Commitments" means the Total Tranche A Commitments and the Total
Tranche B Commitments.
"Total Dollar Swingline Commitments" means the aggregate of the Dollar
Swingline Commitments, being US$50,000,000 at the date of this Agreement.
"Total Euro Swingline Commitments" means the aggregate of the Euro
Swingline Commitments, being EUR50,000,000 at the date of this Agreement;
"Total Tranche A Commitments" means the aggregate of the Tranche A
Commitments, being US$350,000,000 at the date of this Agreement.
"Total Tranche B Commitments" means the aggregate of the Tranche B
Commitments, being EUR400,000,000 at the date of this Agreement.
"Tranche A Available Commitment" means a Lender's Tranche A Commitment
minus:
(a) the Base Currency Amount of its participation in any outstanding
Tranche A Loans; and
(b) in relation to any proposed Utilisation, the Base Currency Amount of
its participation in any Tranche A Loans that are due to be made on or
before the proposed Utilisation Date,
other than that Lender's participation in any Tranche A Loans that are due
to be repaid or prepaid on or before the proposed Utilisation Date.
"Tranche A Borrower" means the Parent or any Additional Borrower which
becomes a party hereto as a Borrower under the Tranche A Facility.
"Tranche A Commitment" means:
(a) in relation to an Original Lender, the amount in US dollars set
opposite its name under the heading "Tranche A Commitment" in Schedule
1 (The Original Lenders) and the amount of any other Tranche A
Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in US dollars of any
Tranche A Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Tranche A Loan" means a Tranche A Revolving Facility Loan or a Dollar
Swingline Loan.
"Tranche A Revolving Facility" means the multicurrency revolving loan
facility made available under this Agreement as described in Clause 2.1
(a)(i) (The Facility).
"Tranche A Revolving Facility Loan" means a loan made or to be made under
the Tranche A Revolving Facility.
"Tranche B Available Commitment" means a Lender's Tranche B Commitment
minus:
(a) the Base Currency Amount of its participation in any outstanding
Tranche B Loans; and
(b) in relation to any proposed Utilisation, the Base Currency Amount of
its participation in any Tranche B Loans that are due to be made on or
before the proposed Utilisation Date,
other than that Lender's participation in any Tranche B Loans that are due
to be repaid or prepaid on or before the proposed Utilisation Date.
"Tranche B Borrowers" means the Companies listed in Part A of Schedule 1
(The Original Parties) as Tranche B Borrowers and any Additional Borrower
which becomes a party hereto as a Borrower under the Tranche B Facility.
"Tranche B Commitment" means:
(a) in relation to an Original Lender, the amount in euro set opposite its
name under the heading "Tranche B Commitment" in Schedule 1 (The
Original Lenders) and the amount of any other Tranche B Commitment
transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in euro of any Tranche B
Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Tranche B Loan" means a Tranche B Revolving Facility Loan or a Euro
Swingline Loan.
"Tranche B Revolving Facility" means the multicurrency revolving loan
facility made available under this Agreement as described in Clause 2.1
(a)(ii) (The Facility).
"Tranche B Revolving Facility Loan" means a loan made or to be made under
the Tranche B Revolving Facility.
"Transfer Certificate" means a certificate substantially in one of the
forms set out in Schedule 5 (Form of Transfer Certificates) or any other
form agreed between the Agent and the Parent.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate; and
(b) the date on which the Agent executes the Transfer Certificate.
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under
the Finance Documents.
"Utilisation" means a utilisation of a Facility.
"Utilisation Date" means the date of a Utilisation, being the date on which
the relevant Loan is to be made.
"Utilisation Request" means a notice substantially in the form set out in
Schedule 3 (Utilisation Request).
"VAT" means value added tax as provided for in the Value Added Tax Act 1994
and any other tax of a similar nature.
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such person, even if the right
so to vote has been suspended by the happening of such a contingency.
1.2 Construction
(a) Unless a contrary indication appears a reference in this Agreement to:
(i) "assets" includes present and future properties, revenues and
rights of every description;
(ii) the "European interbank market" means the interbank market for
euro operating in Participating Member States;
(iii)a "Finance Document" or any other agreement or instrument is a
reference to that Finance Document or other agreement or
instrument as amended or novated;
(iv) a "financial year" in relation to any body corporate is a
reference to the period in respect of which such body corporate
produces its annual accounts and references to "financial half
years" and "financial quarters" shall be construed accordingly;
(v) "indebtedness" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(vi) a "person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability
company or other entity, or a government or any political
subdivision or agency thereof;
(vii)a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the force
of law) of any governmental, intergovernmental or supranational
body, agency, department or regulatory, self-regulatory or other
authority or organisation;
(viii) a provision of law is a reference to that provision as amended
or re-enacted; and
(ix) a time of day is a reference to London time.
(b) Section, Clause and Schedule headings are for ease of reference only.
(c) In this Agreement, any reference to a "Clause" or "Schedule" is,
unless the context otherwise requires, a reference to a Clause or
Schedule hereof.
(d) Unless a contrary indication appears, a term used in any other Finance
Document or in any notice given under or in connection with any
Finance Document has the same meaning in that Finance Document or
notice as in this Agreement.
(e) A Default (other than an Event of Default) is "continuing" if it has
not been remedied or waived and an Event of Default is "continuing" if
it has not been remedied or waived.
1.3 Construction of Dutch Terms
In this Agreement, where it relates to a Dutch entity, a reference to:
(a) a necessary action to authorise where applicable, includes without
limitation:
(i) any action required to comply with the Dutch Works Councils Act
(Wet op de ondernemingsraden); and
(ii) obtaining an unconditional positive advice (advies) from the
competent works council(s);
(b) a winding-up, administration or dissolution includes a Dutch entity
being:
(i) declared bankrupt (failliet verklaard);
(ii) dissolved (ontbonden);
(c) a moratorium includes surseance van betaling and granted a moratorium
includes surseance verleend;
(d) a trustee in bankruptcy includes a curator;
(e) an administrator includes a bewindvoerder;
(f) a(n) (administrative) receiver does not include a curator or
bewindvoerder; and
(g) an attachment includes a beslag.
1.4 Construction of Luxembourg Terms
In this Agreement, where it relates to a Luxembourg entity, a reference to:
(a) a winding-up, administration or dissolution includes a Luxembourg
entity being declared in a situation of, without limitation,
bankruptcy (faillite), insolvency, voluntary or judicial liquidation
(liquidation voluntaire or judiciaire), composition with creditors
(concordat preventif de faillite), reprieve from payment (sursis de
paiement), controlled management (gestion controlee), fraudulent
conveyance, general settlement with creditors, reorganisation or
similar laws affecting the rights of creditors generally; and
(b) a trustee in bankruptcy, administrator, receiver, administrative
receiver, compulsory manager or manager includes the nomination of any
commissaire, juge-commissaire, curateur, liquidateur or similar
officer in relation to a Luxembourg entity.
1.5 Currency Symbols and Definitions
"US$" and "US dollars" denote lawful currency of the United States of
America, "(pound)" and "sterling" denotes lawful currency of the United
Kingdom, "Yen" denotes the lawful currency of Japan, "Swiss francs" denotes
the lawful currency of Switzerland and "EUR" and "euro" means the single
currency unit of the Participating Member States.
1.6 Third party rights
Unless expressly provided to the contrary in a Finance Document, a person
who is not a party to this Agreement has no right under the Contracts
(Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce any
term of this Agreement.
SECTION 2.
THE FACILITY
2. THE FACILITY
2.1 The Facility
(a) Subject to the terms of this Agreement, the Lenders make available to
the Borrowers:
(i) a multicurrency revolving loan facility made available to the
Tranche A Borrower(s) in an aggregate amount equal to the Total
Tranche A Commitments; and
(ii) a multicurrency revolving loan facility made available to the
Tranche B Borrowers in an aggregate amount equal to the Total
Tranche B Commitments.
(b) Subject to the terms of this Agreement, the Swingline Lenders make
available to the Borrowers:
(i) (as a sub-limit of the Tranche A Revolving Facility) a US dollar
swingline loan facility made available to the Tranche A
Borrower(s) in an aggregate amount equal to the Total Dollar
Swingline Facility Commitments; and
(ii) (as a sub-limit of the Tranche B Revolving Facility) a euro
swingline loan facility made available to the Tranche B Borrowers
in an aggregate amount equal to the Total Euro Swingline Facility
Commitments.
Clauses 2.1 (a) and 2.1 (b) are subject to the restriction that at no time
may the aggregate of the total amounts drawn under each Facility exceed the
Total Tranche A Commitments or the Total Tranche B Commitments, as the case
may be.
2.2 Lenders' rights and obligations
(a) The obligations of each Lender under the Finance Documents are
several. Failure by a Lender to perform its obligations under the
Finance Documents does not affect the obligations of any other
Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party under
the Finance Documents.
(b) The rights of each Lender under or in connection with the Finance
Documents are separate and independent rights and any debt
arising under the Finance Documents to a Lender from the
Borrowers shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
2.3 Lenders' PMP representations
(a) Each Original Lender explicitly declares and represents that it
is a Professional Market Party and that it is aware that:
(i) it therefore does not benefit from the (creditor) protection
under the Dutch Banking Act; and
(ii) each Borrower incorporated in the Netherlands has relied
upon this representation.
(b) This declaration and representation is made by each Original
Lender on the date of this Agreement and on the date a New Lender
becomes a Lender, it is required such New Lender is a
Professional Market Party, each New Lender shall make the
representation set out in paragraph 4 of the Transfer
Certificate.
3. PURPOSE
3.1 Purpose
(a) Each Tranche A Borrower shall apply all amounts borrowed by it
under the Tranche A Revolving Facility for general corporate
purposes, including the refinancing of the Existing 2001 Facility
and for commercial paper backstop purposes.
(b) Each Tranche B Borrower shall apply all amounts borrowed by it
under the Tranche B Revolving Facility for general corporate
purposes, including the refinancing of the Existing 2002
Facility.
(c) Each Tranche A Borrower shall apply all amounts borrowed by it
under the Dollar Swingline Facility towards (i) refinancing any
note or other instrument maturing under any dollar commercial
paper programme of such Tranche A Borrower and (ii) general
corporate purposes.
(d) Each Tranche B Borrower shall apply all amounts borrowed by it
under the Euro Swingline Facility towards the general corporate
purposes of such Tranche B Borrower.
A Swingline Loan may not be applied in repayment or prepayment of another
Swingline Loan.
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 Initial conditions precedent
No Borrower may deliver a Utilisation Request unless the Agent has received
all of the documents and other evidence listed in Schedule 2
(Conditions precedent) in form and substance satisfactory to the Agent. The
Agent shall notify the relevant Borrower and the Lenders promptly upon
being so satisfied.
4.2 Further conditions precedent
The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(a) in the case of a Rollover Loan, no Event of Default is continuing or
would result from the proposed Loan and, in the case of any other
Loan, no Default is continuing or would result from the proposed Loan;
and
(b) the representations and warranties contained in Clause 22
(Representations and Warranties), other than those set out in the last
sentence of Clause 22.5 (Financial Statements), paragraph (a) of
Clause 22.6 (No proceedings pending or threatened) and paragraphs (a),
(b) and (c) of Clause 22.10 (No misleading information), are correct
on and as of the Utilisation Date.
4.3 Conditions relating to Optional Currencies
(a) A currency will constitute an Optional Currency in relation to a
Revolving Facility Loan if:
(i) it is readily available in the amount required and freely
convertible into the Base Currency in the Relevant Interbank
Market on the Quotation Day and the Utilisation Date for that
Loan; and
(ii) it is US dollars (in the case of the Tranche A Facility), euro
(in the case of the Tranche B Facility), sterling, Swiss francs
or Yen or has been approved by the Agent (acting on the
instructions of all the Lenders) on or prior to receipt by the
Agent of the Utilisation Request for that Loan.
(b) If the Agent has received a written request from a Borrower for a
currency to be approved under paragraph (a)(ii) above, the Agent will
confirm to that Borrower by the Specified Time:
(i) whether or not the Lenders have granted their approval; and
(ii) if approval has been granted, the minimum amount (and, if
required, integral multiples) for any subsequent Utilisation in
that currency.
4.4 Maximum number of Loans
(a) No Borrower may deliver a Utilisation Request in respect of a
Revolving Facility Loan if as a result of the proposed Utilisation
more than 25 Revolving Facility Loans would be outstanding.
(b) No Borrower may deliver a Utilisation Request in respect of a
Swingline Facility Loan if as a result of the proposed Utilisation
more than 5 Swingline Facility Loans would be outstanding.
(c) Any Loan made by a single Lender under Clause 6.2 (Unavailability of a
currency) shall not be taken into account in this Clause 4.4.
SECTION 3.
UTILISATION
5. UTILISATION - REVOLVING FACILITIES
5.1 Delivery of a Utilisation Request
A Borrower may utilise a Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time.
5.2 Completion of a Utilisation Request
(a) Each Utilisation Request in respect of a Revolving Facility is
irrevocable and will not be regarded as having been duly completed
unless:
(i) it identifies the Facility to be Utilised;
(ii) the proposed Utilisation Date is a Business Day within the
Availability Period;
(iii)the currency and amount of the Utilisation comply with Clause
5.3 (Currency and amount); and
(iv) the proposed Interest Period complies with Clause 13 (Interest
Periods).
(b) Only one Revolving Facility Loan may be requested in each Utilisation
Request.
5.3 Currency and amount
(a) The currency specified in a Utilisation Request must be the relevant
Base Currency or an Optional Currency.
(b) The amount of the proposed Loan must be an amount whose Base Currency
Amount is not more than the relevant Available Facility and which is:
(i) (in the case of a Tranche A Loan) if the currency selected is the
relevant Base Currency, a minimum of US$5,000,000 (and an
integral multiple of US$5,000,000) or an amount equal to the
relevant Available Facility;
(ii) (in the case of a Tranche B Loan) if the currency selected is the
relevant Base Currency, a minimum of EUR5,000,000 (and an
integral multiple of EUR5,000,000) or an amount equal to the
relevant Available Facility; or
(iii)if the currency selected is an Optional Currency, the minimum
amount (or an integral multiple, if required) specified by the
Agent pursuant to paragraph (b) (ii) of Clause 4.3 (Conditions
relating to Optional Currencies) or the equivalent in such
Optional Currency of the Base Currency Amount of the relevant
Available Facility.
5.4 Lenders' participation
(a) If the conditions set out in this Agreement have been met, each Lender
shall make its participation in each Revolving Facility Loan available
through its Facility Office.
(b) The amount of each Lender's participation in each Revolving Facility
Loan will be equal to the proportion borne by its applicable Available
Commitment to the applicable Available Facility immediately prior to
making the Loan.
(c) The Agent shall notify each Lender of the amount, currency and the
Base Currency Amount of each Revolving Facility Loan at the Specified
Time.
6. OPTIONAL CURRENCIES
6.1 Selection of currency
A Borrower shall select the currency of a Revolving Facility Loan in a
Utilisation Request.
6.2 Unavailability of a currency
If before the Specified Time on any Quotation Day:
(a) the Agent has received notice from a Lender that the Optional Currency
requested is not readily available to it in the amount required; or
(b) a Lender notifies the Agent that compliance with its obligation to
participate in a Revolving Facility Loan in the proposed Optional
Currency would contravene a law or regulation applicable to it,
the Agent will give notice to the relevant Borrower to that effect by the
Specified Time on that day. In this event, any Lender that gives notice
pursuant to this Clause 6.2 will be required to participate in the
Revolving Facility Loan in the relevant Base Currency (in an amount equal
to that Lender's proportion of the Base Currency Amount, or in respect of a
Rollover Loan, an amount equal to that Lender's proportion of the Base
Currency Amount of the maturing Loan that is due to be repaid) and its
participation will be treated as a separate Revolving Facility Loan
denominated in the relevant Base Currency during that Interest Period.
6.3 Participation in a Loan
Each Lender's participation in a Revolving Facility Loan will be determined
in accordance with paragraph (b) of Clause 5.4 (Lenders' participation).
7. UTILISATION - SWINGLINE LOANS
7.1 General
7.1.1 The following Clauses do not apply to a Swingline Facility Loan:
(a) Clause 4.2 (Further conditions precedent) and 4.3 (Conditions
relating to optional currencies);
(b) Clause 5 (Utilisation - Revolving Facilities);
(c) Clause 6 (Optional currencies);
(d) Clause 12 (Interest) as it applies to the calculation of interest
on a Loan but not default interest on an overdue amount;
(e) Clause 13.1 (Selection of Interest Periods); and
(f) (in relation to a Dollar Swingline Loan) Clause 14 (Changes to
the calculation of interest),
7.2 Delivery of a Utilisation Request for Swingline Loans
(a) A Borrower may utilise a Swingline Facility by delivery to the US
Swingline Agent or the Euro Swingline Agent, as appropriate, of a duly
completed Utilisation Request in the form of Part B of Schedule 3
(Utilisation Request) not later than the Specified Time.
(b) Each Utilisation Request for a Swingline Facility Loan must be sent to
the US Swingline Agent or the Euro Swingline Agent, as appropriate, to
the address (i) in respect of a Dollar Swingline Loan, in New York
City or (ii) in respect of a Euro Swingline Loan, in London notified
by the US Swingline Agent or the Euro Swingline Agent (as the case may
be) for this purpose with a copy to its address referred to in Clause
33 (Notices).
7.3 Completion of a Utilisation Request for Swingline Loans
(a) Each Utilisation Request for a Swingline Loan is irrevocable and will
not be regarded as having been duly completed unless:
(i) it identifies the Borrower;
(ii) it specifies that it is for a Dollar Swingline Loan or a Euro
Swingline Loan;
(iii)in respect of a Dollar Swingline Loan, the proposed Utilisation
Date is a New York Business Day, and in respect of a Euro
Swingline Loan, a Business Day in either case within the
Availability Period;
(iv) in the case of a Dollar Swingline Loan, it is denominated in US
dollars and in the case of a Euro Swingline Loan, it is
denominated in euro, sterling or US dollars;
(v) the amount of the proposed Swingline Loan is an amount which is
not more than the Available Dollar Swingline Facility or the
Available Euro Swingline Facility, as appropriate, and is a
minimum of US$5,000,000 for a Dollar Swingline Loan or
EUR5,000,000 (or equivalent in another currency) for a Euro
Swingline Loan or, if less, the Available Dollar Swingline
Facility or the Available Euro Swingline Facility, as
appropriate; and
(vi) the proposed Interest Period:
(1) does not overrun the relevant Availability Period;
(2) in the case of a Dollar Swingline Loan is a period of not
more than five New York Business Days; and
(3) in the case of a Euro Swingline Loan is a period of not more
than five Business Days.
(b) Only one Swingline Loan may be requested in each Utilisation Request.
(c) A currency will constitute an Optional Currency in relation to the
Euro Swingline Facility if it is US dollars or sterling.
7.4 Swingline Lenders' participation
(a) If the conditions set out in this Agreement have been met, each
Swingline Lender shall make its participation in each Dollar Swingline
Loan available through its Facility Office in New York City or such
other place as is in the same time zone as New York City and shall
make its participation in each Euro Swingline Loan available through
its Facility Office in the relevant interbank market.
(b) The Swingline Lenders will only be obliged to comply with paragraph
(a) above if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(i) no Default is continuing or would result from the proposed
Utilisation; and
(ii) the representations and warranties contained in Clause 22
(Representations and Warranties), other than those set out in the
last sentence of Clause 22.5 (Financial Statements), paragraph
(a) of Clause 22.6 (No proceedings pending or threatened) and
paragraphs (a), (b) and (c) of Clause 22.10 (No misleading
information), are true and correct.
(c) The amount of each Swingline Lender's participation in each Dollar
Swingline Loan will be equal to the proportion borne by its Available
Dollar Swingline Commitment to the Available Dollar Swingline Facility
immediately prior to making a Dollar Swingline Loan, adjusted to take
account of any limit applying under Clause 7.5 (Relationship with the
Revolving Facility).
(d) The amount of each Swingline Lender's participation in each Euro
Swingline Loan will be equal to the proportion borne by its Available
Euro Swingline Commitment to the Available Euro Swingline Facility
immediately prior to making a Euro Swingline Loan, adjusted to take
account of any limit applying under Clause 7.5 (Relationship with the
Revolving Facility).
(e) The US Swingline Agent shall notify each Swingline Lender of the
amount of each Dollar Swingline Loan and the Euro Swingline Agent
shall notify each Swingline Lender of the amount of each Euro
Swingline Loan and its participation in that Swingline Loan by the
Specified Time.
7.5 Relationship with the Revolving Facility
(a) This Clause 7.5 applies when a Swingline Loan is outstanding or is to
be borrowed.
(b) The Tranche A Revolving Facility may be used by way of Dollar
Swingline Loans. The Dollar Swingline Facility is not independent of
the Tranche A Revolving Facility.
(c) The Tranche B Revolving Facility may be used by way of Euro Swingline
Loans. The Euro Swingline Facility is not independent of the Tranche B
Revolving Facility.
(d) Notwithstanding any other term of this Agreement a Lender is only
obliged to participate in:
(i) a Tranche A Loan or a Dollar Swingline Loan to the extent that it
would not result in its participation and that of a Lender which
is its Affiliate in the Tranche A Loans exceeding its Overall
Tranche A Commitment; and
(ii) a Tranche B Loan or a Euro Swingline Loan to the extent that it
would not result in its participation and that of a Lender which
is its Affiliate in the Tranche B Loans exceeding its Overall
Tranche B Commitment.
(e) Where, but for the operation of paragraph (d) above, the relevant Base
Currency Amount of a Lender's participation and that of a Lender which
is its Affiliate in the Loans would have exceeded its Overall Tranche
A Commitment or Overall Tranche B Commitment, the excess will be
apportioned among the other Lenders participating in the relevant Loan
pro rata according to their relevant Tranche A Commitments or Tranche
B Commitments. This calculation will be applied as often as necessary
until the Loan is apportioned among the relevant Lenders in a manner
consistent with paragraph (d) above.
8. SWINGLINE LOANS
8.1 Repayment
(a) Each Borrower that has drawn a Swingline Loan shall repay that
Swingline Loan on the last day of its Interest Period.
(b) If a Swingline Loan is not repaid in full on its due date, the Agent
shall (if requested to do so in writing by any affected Lender) set a
date (the "Loss Sharing Date") on which payments shall be made between
the Lenders to re-distribute the unpaid amount between them. The Agent
shall give at least 3 Business Days notice to each affected Lender of
the Loss Sharing Date and notify it of the amounts to be paid or
received by it.
(c) On the Loss Sharing Date each Lender must pay to the Agent its
Proportion of the Unpaid Amount minus its (or its Affiliate's) Unpaid
Swingline Participation (if any). If this produces a negative figure
for a Lender no amount need be paid by that Lender.
(d) For the purposes of this Clause 8.1 (Repayment):
"Proportion" of a Lender means
(i) in respect of an Unpaid Amount under a Dollar Swingline Loan the
proportion borne by:
(A) its Tranche A Commitment (or, if the Total Tranche A
Commitments are then zero, its Tranche A Commitment
immediately prior to their reduction to zero) minus the
amount of its participation (or that of a Lender which is
its Affiliate) in any outstanding Tranche A Loans when
converted into the relevant Base Currency at the Agent's
Spot Rate of Exchange (but ignoring its (or its Affiliate's)
participation in the unpaid Dollar Swingline Loan): to
(B) the Total Tranche A Commitments (or, if the Total Tranche A
Commitments are then zero, the Total Tranche A Commitments
immediately prior to their reduction to zero) minus any
outstanding Tranche A Loans (but ignoring the unpaid Dollar
Swingline Loan); and
(ii) in respect of an Unpaid Amount under a Euro Swingline Loan the
proportion borne by:
(A) its Tranche B Commitment (or, if the Total Tranche B
Commitments are then zero, its Tranche B Commitment
immediately prior to their reduction to zero) minus the
amount of its participation in any outstanding Tranche B
Loans when converted into the relevant Base Currency at the
Agent's Spot Rate of Exchange (but ignoring its
participation in the unpaid Euro Swingline Loan): to
(B) the Total Tranche B Commitments (or, if the Total Tranche B
Commitments are then zero, the Total Tranche B Commitments
immediately prior to their reduction to zero) minus any
outstanding Tranche B Loans (but ignoring the unpaid Euro
Swingline Loan).
"Unpaid Amount" means, in relation to a Swingline Loan, any principal not
repaid and/or any interest accrued but unpaid on that Swingline Loan
calculated from the Utilisation Date to the Loss Sharing Date.
"Unpaid Swingline Participation" of a Lender means that part of the Unpaid
Amount (if any) owed to that Lender (or its Affiliate) (before any
re-distribution under this Clause 8.1 (Repayment)).
"Shortfall" of a Swingline Lender is an amount equal to its Unpaid
Swingline Participation minus its (or its Affiliate's) Proportion of the
Unpaid Amount.
(e) Out of the funds received by the Agent pursuant to sub-clause (c) the
Agent shall pay to each Swingline Lender an amount equal to the
Shortfall (if any) of that Swingline Lender.
(f) If the amount actually received by the Agent from the Lenders is
insufficient to pay the full amount of the Shortfall of all Swingline
Lenders then the amount actually received will be distributed amongst
the Swingline Lenders pro rata to the Shortfall of each Swingline
Lender.
(g)
(i) On a payment under this Clause 8.1 (Repayment), the paying Lender
will be subrogated to the rights of the Swingline Lenders which
have shared in the payment received.
(ii) If and to the extent a paying Lender is not able to rely on its
rights under sub-paragraph (i) above, the relevant Borrower shall
be liable to the paying Lender for a debt equal to the amount the
paying Lender has paid under this Clause 8.1 (Repayment).
(iii)Any payment under this Clause 8.1 (Repayment) does not reduce
the obligations in aggregate of any Obligor.
8.2 Voluntary Prepayment of Swingline Loans
(a) The Borrower to which a Swingline Loan has been made may prepay at any
time the whole of that Swingline Loan.
(b) Unless a contrary indication appears in this Agreement, any part of
the Swingline Facility which is prepaid may be reborrowed in
accordance with the terms of this Agreement.
8.3 Interest
(a) The rate of interest on each Dollar Swingline Loan for any day during
its Interest Period is the higher of:
(i) the prime commercial lending rate in US dollars announced by the
US Swingline Agent at the Specified Time and in force on that
day; and
(ii) 0.50 per cent. per annum over the rate per annum determined by
the US Swingline Agent to be the Federal Funds Rate (as published
by the Federal Reserve Bank of New York) for that day.
(b) The rate of interest on each Euro Swingline Loan for any day during
its Interest Period is the Euro Swingline Rate.
(c) The Agent shall promptly notify the Swingline Lenders and the relevant
Borrower of the determination of the rate of interest under paragraph
(a) or (b) above.
(d) Each Borrower shall pay accrued interest on each Swingline
Loan made to it on the last day of its Interest Period.
8.4 Interest Period
(a) Each Swingline Loan has one Interest Period only.
(b) The Interest Period for a Swingline Loan must be selected in the
relevant Utilisation Request.
8.5 Swingline Agents
(a) The Euro Swingline Agent and the Dollar Swingline Agent may each
perform their duties in respect of the Euro Swingline Facility and the
Dollar Swingline Facility, respectively, through an Affiliate acting
as their agent.
(b) Notwithstanding any other term of this Agreement and without limiting
the liability of any Obligor under the Finance Documents:
(i) each Swingline Lender shall (in proportion to its share of the
Total Dollar Swingline Commitments or, if the Total Dollar
Swingline Commitments are then zero, to its share of the Total
Dollar Swingline Commitments immediately prior to their reduction
to zero) pay to or indemnify the US Swingline Agent, within three
New York Business Days of demand, for or against any cost, loss
or liability incurred by the US Swingline Agent (other than by
reason of the US Swingline Agent's gross negligence or wilful
misconduct) in acting as US Swingline Agent for the Dollar
Swingline Facility under the Finance Documents (unless the US
Swingline Agent has been reimbursed by an Obligor pursuant to a
Finance Document); and
(ii) each Swingline Lender shall (in proportion to its share of the
Total Euro Swingline Commitments or, if the Total Euro Swingline
Commitments are then zero, to its share of the Total Euro
Swingline Commitments immediately prior to their reduction to
zero) pay to or indemnify the Euro Swingline Agent, within three
Business Days of demand, for or against any cost, loss or
liability incurred by the Euro Swingline Agent (other than by
reason of the Euro Swingline Agent's gross negligence or wilful
misconduct) in acting as Euro Swingline Agent for the Euro
Swingline Facility under the Finance Documents (unless the Euro
Swingline Agent has been reimbursed by an Obligor pursuant to a
Finance Document).
8.6 Conditions of assignment or transfer
Notwithstanding any other term of this Agreement, each Swingline Lender
shall ensure that at all times its Overall Tranche A Commitment is not less
than its Dollar Swingline Commitment (or if it does not have a Dollar
Swingline Commitment, the Dollar Swingline Commitment of a Lender which is
its Affiliate) and its Overall Tranche B Commitment is not less than its
Euro Swingline Commitment (or if it does not have a Euro Swingline
Commitment, the Euro Swingline Commitment of a Lender which is its
Affiliate).
SECTION 4.
REPAYMENT, PREPAYMENT AND CANCELLATION
9. REPAYMENT
9.1 Repayment of Loans
Each Borrower which has drawn a Loan shall repay that Loan on the last day
of its Interest Period.
10. PREPAYMENT AND CANCELLATION
10.1 Illegality
If, at any time, it is or will become unlawful in any jurisdiction for a
Lender to perform any of its obligations as contemplated by this Agreement
or to fund its participation in any Loan:
(a) that Lender shall promptly notify the Agent upon becoming aware of
that event;
(b) upon the Agent notifying the Company, the Commitment of that Lender
will be immediately cancelled; and
(c) each Borrower shall repay that Lender's participation in the Loans
made to that Borrower on the last day of the Interest Period for each
Loan occurring after the Agent has notified the Company or, if
earlier, the date specified by the Lender in the notice delivered to
the Agent.
10.2 Change of Control
(a) Subject to paragraph (b) below, upon the occurrence of a Change of
Control and at the request of the Majority Lenders, the Facilities
will be cancelled and all outstanding Loans, together with accrued
interest, and all other amounts accrued under the Finance Documents,
shall become immediately due and payable.
(b) For the purposes of paragraph (a), above, a Change of Control shall be
deemed not to have occurred for the purposes of this Agreement if
paragraph (a) or (b) in the definition of "Change of Control" applies
and the person or persons referred to in such paragraph has or have a
Public Debt Rating with a stable outlook which is equal to or better
than that of the Parent immediately before what would, but for this
paragraph (b), have been a Change of Control.
For the purposes of this Clause 10.2 (Change of Control):
"Change of Control" means:
(a) any person or two or more persons acting in concert (other than any
Founder) acquiring beneficial ownership (within the meaning of Rule
13d-3 of the United States Securities and Exchange Commission under
the United States Securities Exchange Act of 1934), directly or
indirectly, of Voting Stock of the Parent (or other securities
convertible into such Voting Stock) representing 20% or more of the
combined voting power of all Voting Stock of the Parent; or
(b) any person or two or more persons acting in concert (other than any
Founder) acquiring by contract or otherwise, or entering into a
contract or arrangement that, upon consummation, will result in its or
their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Parent.
10.3 Acquisition for Merger
(a) Subject to paragraph (b) below, upon the acquisition by an Obligor of
a person which is not an Obligor, where such acquisition is made in
contemplation of a merger between such Obligor and such other person
whether or not the surviving entity is such Obligor, and at the
request of the Majority Lenders, the Facilities will be cancelled and
all outstanding Loans, together with accrued interest, and all other
amounts accrued under the Finance Documents, shall become immediately
due and payable.
(b) Paragraph (a) above shall only apply if, as a direct result of such
acquisition, the Public Debt Rating of the Parent quoted by Moody's or
S&P (including any change in terms of its outlook) is worse than its
Public Debt Rating immediately prior to such acquisition.
10.4 Voluntary cancellation
(a) The Company may, if it gives the Agent not less than 5 Business Days'
prior notice, cancel the whole or any part (being a minimum amount of
US$10,000,000 and an integral multiple of US$5,000,000 (or their
equivalent in another currency or currencies)) of the Tranche A
Available Facility.
(b) The Company may, if it gives the Agent not less than 5 Business Days'
prior notice, cancel the whole or any part (being a minimum amount of
EUR10,000,000 and an integral multiple of EUR5,000,000 (or their
equivalent in another currency or currencies)) of the Tranche B
Available Facility.
(c) Any cancellation under this Clause 10.4 shall reduce the Commitments
of the Lenders rateably under the Facility.
10.5 Voluntary Prepayment
(a) A Borrower may, if it gives the Agent not less than 5 Business Days'
prior notice, prepay the whole or any part of a Tranche A Loan (but if
in part, being an amount that reduces the Base Currency Amount of the
Loan by a minimum amount of US$10,000,000 and an integral multiple of
US$5,000,000 (or their equivalent in another currency or currencies)).
(b) A Borrower may, if it gives the Agent not less than 5 Business Days'
prior notice, prepay the whole or any part of a Tranche B Loan (but if
in part, being an amount that reduces the Base Currency Amount of the
Loan by a minimum amount of EUR10,000,000 and an integral multiple of
EUR5,000,000 (or their equivalent in another currency or currencies)).
10.6 Right of repayment and cancellation in relation to a single Lender
(a) If:
(i) any sum payable to any Lender by an Obligor is required to be
increased under paragraph (c) of Clause 16.2 (Tax gross-up); or
(ii) any Lender claims indemnification from an Obligor under Clause
16.3 (Tax indemnity) or Clause 17.1 (Increased costs),
the Company may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent notice of
cancellation of the Commitment of that Lender and its intention to
procure the repayment of that Lender's participation in the Loans.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the Company
has given notice under paragraph (a) above (or, if earlier, the date
specified by the Company in that notice), each Borrower to which a
Loan is outstanding shall repay that Lender's participation in that
Loan together with all reasonable costs, fees and expenses owing to
such Lender in accordance with the terms of this Agreement.
10.7 Restrictions
(a) Any notice of cancellation or prepayment given by any Party under this
Clause 10 shall be irrevocable and, unless a contrary indication
appears in this Agreement, shall specify the date or dates upon which
the relevant cancellation or prepayment is to be made and the amount
of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break
Costs, without premium or penalty.
(c) Unless a contrary indication appears in this Agreement, any part of
the Facility which is prepaid may be reborrowed in accordance with the
terms of this Agreement.
(d) No Borrower shall repay or prepay all or any part of the Loans or
cancel all or any part of the Commitments except at the times and in
the manner expressly provided for in this Agreement.
(e) No amount of the Total Commitments cancelled under this Agreement may
be subsequently reinstated.
(f) If the Agent receives a notice under this Clause 10 it shall promptly
forward a copy of that notice to either the Company or the affected
Lender, as appropriate.
11. EXTENSION OF FACILITY
11.1 First Extension Request
The Company shall be entitled to request an extension of the Termination
Date (the "Original Termination Date"), for an additional period of 365
days (the day to which the Facility is first so extended being referred to
in this Clause 11 as the "First Extended Termination Date"), by giving
notice to the Agent (the "First Extension Request") not more than 60 nor
less than 45 days before the first anniversary of the date hereof (the
"First Anniversary Date").
11.2 Second Extension Request
The Company shall be entitled to submit a further request for an extension
of the Facility, either:
(a) if one or more Lenders have agreed to an extension of the Original
Termination Date pursuant to a First Extension Request, for an
additional period of 365 days; or
(b) if no Lenders have agreed to an extension of the Original Termination
Date at the end of First Anniversary Date or if the Company has not
requested an extension of the Original Termination Date at the end of
the First Anniversary Date, for an additional period of 730 days,
by giving notice to the Agent (the "Second Extension Request" and together
with a First Extension Request, an "Extension Request") not more than 60
nor less than 45 days before the second anniversary of the date hereof (the
"Second Anniversary Date").
11.3 Notification of Extension Request
The Agent shall forward a copy of any Extension Request to the Lenders as
soon as practicable after receipt of it.
11.4 Lenders' Response to Extension Request
If a Lender, in its individual and sole discretion, agrees to an extension
requested by the Company, it shall give notice to the Agent (a "Notice of
Extension") no later than 20 days prior to the First Anniversary Date or
the Second Anniversary Date, as the case may be. If a Lender does not give
such Notice of Extension by such date, then that Lender shall be deemed to
have refused that extension provided that a Lender may agree to a Second
Extension Request notwithstanding that it shall have refused a First
Extension Request (in which case it shall be deemed to have agreed to such
First Extension Request).
11.5 Extension Date
If:
11.5.1 one or more Lenders agree to a First Extension Request, the Original
Termination Date shall be extended for such Lenders to the day which is 365
days from (and including) the Original Termination Date;
11.5.2 one or more Lenders have agreed to a First Extension Request and one or
more Lenders agree to a Second Extension Request, the First Extended
Termination Date shall be extended for such Lenders to the day which is 365
days from (and including) the First Extended Termination Date; and
11.5.3 no Lenders agreed to an extension of the Original Termination Date at the
end of First Anniversary Date and one or more Lenders agree to a Second
Extension Request, the Original Termination Date shall be extended for such
Lenders to the day which is 730 days from (and including) the Original
Termination Date.
11.6 Cancellation and Repayment
On the Original Termination Date and on the First Extended Termination Date
the Commitments and the share of any outstanding Loans of the Lenders which
have not agreed to the extension on such date shall be reduced to zero and
all amounts owing to them will be repaid at the relevant Termination Date
(and those Lenders shall cease from that date to be Lenders under this
Agreement) and the amount of the Facility shall be reduced accordingly.
11.7 Lender's Discretion
Nothing shall oblige a Lender to agree to an Extension Request.
11.8 Notification of Extension
The Agent shall promptly inform the Company and the Lenders of any
extension of the Original Termination Date or the First Extended
Termination Date.
SECTION 5.
COSTS OF UTILISATION
12. INTEREST
12.1 Calculation of interest
The rate of interest on each Revolving Facility Loan from day to day during
each Interest Period relating thereto is the percentage rate per annum
which is the aggregate of:
(a) the Applicable Margin at such time;
(b) LIBOR or, in relation to any Revolving Facility Loan in euro, EURIBOR;
and
(c) Mandatory Cost, if any.
12.2 Notification of change in Public Debt Rating
The Parent shall, promptly upon any public announcement of a change in any
Public Debt Rating being made, notify the Agent of such change.
12.3 Payment of interest
On the last day of each Interest Period the Borrower to which a Loan has
been made shall pay accrued interest on that Loan to which that Interest
Period relates (and, if the Interest Period is longer than six Months, on
the dates falling at six Monthly intervals after the first day of the
Interest Period).
12.4 Default interest
(a) If an Obligor fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue on the overdue amount
from the due date up to the date of actual payment (both before and
after judgment) at a rate one per cent. higher than the rate which
would have been payable if the overdue amount had, during the period
of non-payment, constituted a Loan in the currency of the overdue
amount for successive Interest Periods, each of a duration selected by
the Agent (acting reasonably). Any interest accruing under this Clause
12.4 shall be immediately payable by the Obligor on demand by the
Agent.
(b) Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest Period
applicable to that overdue amount but will remain immediately due and
payable.
12.5 Notification of rates of interest
The Agent shall promptly notify the Lenders and the relevant Borrower (and
the Company) of the determination of a rate of interest under this
Agreement.
13. INTEREST PERIODS
13.1 Selection of Interest Periods
(a) A Borrower may select an Interest Period for a Loan in the Utilisation
Request for that Loan.
(b) Subject to this Clause 13, the Borrower may select an Interest Period
of one, two, three or six Months or any other period agreed between
the relevant Borrower and the Agent (acting on the instructions of all
the Lenders).
(c) An Interest Period for a Loan shall not extend beyond the Termination
Date.
(d) Each Interest Period for a Loan shall start on the Utilisation Date.
(e) A Loan has one Interest Period only.
13.2 Non-Business Days
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period will instead end on the next Business Day in that
calendar month (if there is one) or the preceding Business Day (if there is
not).
14. CHANGES TO THE CALCULATION OF INTEREST
14.1 Absence of quotations
Subject to Clause 14.2 (Market disruption), if LIBOR or, if applicable,
EURIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by 12:00 noon on the Quotation
Day, the applicable LIBOR or EURIBOR shall be determined on the basis of
the quotations of the remaining Reference Banks.
14.2 Market disruption
(a) If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on each Lender's share of
that Loan for the Interest Period shall be the rate per annum which is
the sum of:
(i) the Applicable Margin;
(ii) the rate notified to the Agent by that Lender as soon as
practicable and in any event before interest is due to be paid in
respect of that Interest Period, to be that which expresses as a
percentage rate per annum the cost to that Lender of funding its
participation in that Loan from whatever source it may reasonably
select; and
(iii)the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan.
(b) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the relevant Interest
Period the Screen Rate is not available and none or only one of
the Reference Banks supplies a rate to the Agent to determine
LIBOR or, if applicable, EURIBOR for the relevant currency and
Interest Period; or
(ii) before close of business on the Quotation Day for the relevant
Interest Period, the Agent receives notifications from a Lender
or Lenders (whose participations in a Loan exceed 35 per cent. of
that Loan) that the cost to it of obtaining matching deposits in
the Relevant Interbank Market would be in excess of LIBOR or, if
applicable, EURIBOR.
14.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Agent or the Company so
requires, the Agent and the Company shall enter into negotiations (for
a period of not more than thirty days) with a view to agreeing a
substitute basis for determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above shall,
with the prior consent of all the Lenders and the Company, be binding
on all Parties.
14.4 Break Costs
(a) Each Borrower shall, within three Business Days of demand by a Finance
Party, pay to that Finance Party its Break Costs attributable to all
or any part of a Loan or Unpaid Sum being paid by that Borrower on a
day other than the last day of an Interest Period for that Loan or
Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a demand by
the Agent, provide a certificate confirming the amount of its Break
Costs for any Interest Period in which they accrue.
15. FEES
15.1 Commitment fee
(a) The Parent (in its capacity as a Tranche A Borrower) and the Company
(in its capacity as a Tranche B Borrower) shall pay to the Agent (for
the account of each Lender) a fee in the Base Currency computed at a
percentage rate per annum equal to thirty per cent of the Applicable
Margin applicable at the relevant time on that Lender's Available
Commitment under the Tranche A Revolving Facility and the Tranche B
Revolving Facility for the Availability Period.
(b) The accrued commitment fee is payable on the last day of each
successive period of three Months which ends during the Availability
Period, on the Termination Date and on any cancelled amount of the
relevant Lender's Commitment at the time the cancellation is
effective.
15.2 Arrangement fee
The Parent or the Company shall pay to the Mandated Lead Arrangers an
arrangement fee in the amount and at the times agreed in a Fee Letter.
15.3 Agency fee
The Parent or the Company shall pay to the Agent (for its own account) an
agency fee in the amount and at the times agreed in a Fee Letter.
15.4 Utilisation fee
(a) The Parent (in its capacity as a Tranche A Borrower) or the Company
(in its capacity as a Tranche B Borrower) shall pay to the Agent (for
the account of each Lender) for each date on which the aggregate of:
(a) the Base Currency Amounts of all Tranche B Loans at such time; and
(b) the Euro Amounts of all Tranche A Loans at such time exceeds 50%
of the aggregate of: (i) the Total Tranche B Commitments; and (ii) the
Euro Amount of the Total Tranche A Commitments on that date a fee on
the aggregate amount by which the outstanding Loans on that date
exceed 50% of the Total Commitments on that date at a rate per annum
equal to 0.025%, payable on the last day of each successive period of
three Months which ends during the Availability Period and on the
Termination Date (each of such dates being a "Payment Date").
(b) For the purposes of paragraph (a) above, the Euro Amount of a Tranche
A Loan or the Total Tranche A Commitments means the amount of such
Tranche A Loan or Total Tranche A Commitments converted into euro at
the Agent's Spot Rate of Exchange on the relevant Payment Date.
15.5 Participation fee
The Parent (in its capacity as a Tranche A Borrower) or the Company (in its
capacity as a Tranche B Borrower) shall pay to the Agent (for the account
of each Original Lender) a participation fee in the amount and at the times
agreed in a Fee Letter.
SECTION 6.
ADDITIONAL PAYMENT OBLIGATIONS
16. TAX GROSS UP AND INDEMNITIES
16.1 Definitions
(a) In this Clause 16:
"Protected Party" means a Finance Party which is or will be, for or on
account of Tax, subject to any liability or required to make any payment in
relation to a sum received or receivable (or any sum deemed for the
purposes of Tax to be received or receivable) under a Finance Document.
"Qualifying Jurisdiction" means the Netherlands, Ireland, the United States
of America, Luxembourg, Spain and England.
"Qualifying Lender" means, in respect of any Obligor incorporated,
established resident or otherwise deemed to be resident for tax purposes in
a Qualifying Jurisdiction, a Lender that is permitted (in accordance with
the applicable tax legislation in the Obligor's tax jurisdiction and/or any
applicable double taxation convention providing for the exemption from
taxation on interest) to receive all payments made under or in connection
with the Finance Documents without withholding or deduction for or on
account of Tax.
"Tax Credit" means a credit against, relief or remission for, or repayment
of, any Tax.
"Tax Deduction" means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
"Tax Payment" means an increased payment made by an Obligor to a Finance
Party under Clause 16.2 (Tax gross-up) or a payment under Clause 16.3 (Tax
indemnity).
(b) In this Clause 16 a reference to "determines" or "determined" means a
determination made in the absolute discretion of the person making the
determination.
16.2 Tax gross-up
(a) Each Obligor shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by law.
(b) The Company or a Lender shall promptly upon becoming aware that an
Obligor must make a Tax Deduction (or that there is any change in the
rate or the basis of a Tax Deduction) notify the Agent accordingly. If
the Agent receives such notification from a Lender it shall notify
each Obligor.
(c) If a Tax Deduction is required by law to be made by an Obligor in
relation to any payment to be made to a Finance Party under any
Finance Document the amount of the payment due from that Obligor shall
be increased to an amount which (after making any Tax Deduction)
leavesan amount equal to the payment which would have been due if no
Tax Deduction had been required.
(d) An Obligor is not required to make payment to a Lender under paragraph
(c) above if the Obligor making the payment would not have been
required to make the Tax Deduction if the Lender had complied with its
obligations under Clause 23.3.2 (US Tax forms).
(e) Except as provided below, an Obligor incorporated, established,
resident or otherwise deemed to be resident for tax purposes in a
Qualifying Jurisdiction is not required to make an increased payment
under paragraph (c) above for a Tax Deduction to a Lender that is not,
or has ceased to be, a Qualifying Lender in respect of that Obligor in
excess of the amount that the Obligor would have had to pay had the
Lender been, or not ceased to be, a Qualifying Lender in respect of
that Obligor.
(f) Paragraph (e) above will not apply if the Lender has ceased to be a
Qualifying Lender by reason of any change after the date it became a
Lender under this Agreement in (or in the interpretation,
administration, or application of) any law or double taxation
agreement or any published practice or concession of any relevant
taxing authority.
(g) An Obligor is not required to make an increased payment to a Lender
under paragraph (c) above for a Tax Deduction in respect of tax
imposed if that Lender is relying (or intending to rely) upon the
provisions of a relevant double taxation convention or any applicable
tax legislation in the Obligor's tax jurisdiction in order to receive
payments under the Finance Documents without a withholding for or on
account of Taxes and has not complied with its obligations under
paragraph (j) below.
(h) If an Obligor is required to make a Tax Deduction, such Obligor shall
make that Tax Deduction and any payment required in connection with
that Tax Deduction within the time allowed and in the minimum amount
required by law.
(i) Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Obligor making
that Tax Deduction shall deliver to the Agent for the Finance Party
entitled to the payment evidence reasonably satisfactory to that
Finance Party that the Tax Deduction has been made or (as applicable)
any appropriate payment paid to the relevant taxing authority.
(j) A Lender must co-operate with each Obligor by completing, as soon as
reasonably practicable after the date on which it becomes a Party to
this Agreement, any procedural formalities necessary for that Obligor
to be authorised or to obtain authorisation to make that payment
without a Tax Deduction including, without limitation and where
applicable:
(i) the delivery (through the Agent) by the relevant Lender to the
relevant Obligor of a certificate of tax residence duly issued by
its competent tax authorities evidencing such tax residence in so
far as it is a requirement of the law or regulation of the
jurisdiction in which that Obligor is resident for tax purposes;
and/or
(ii) the filing by the relevant Lender of any form, claim or
certificate required pursuant to the provisions of an applicable
double taxation convention providing for the exemption from
taxation on interest,
and, in each case, the obligation to provide any certificate or form or
lodge any claim shall include any subsequent or renewal certificates, forms
or claims as may be required pursuant to the provisions of domestic law in
a Qualifying Jurisdiction or pursuant to the provisions of an applicable
double taxation convention.
16.3 Tax indemnity
(a) The Parent shall (within three Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be
or has been (directly or indirectly) suffered for or on account
of Tax by that Protected Party.
(b) Paragraph (a) above shall not apply with respect to any Tax
assessed on a Finance Party:
(i) under the law of the jurisdiction in which that Finance
Party is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as
resident for tax purposes; or
(ii) under the law of the jurisdiction in which that Finance
Party's Facility Office is located in respect of amounts
received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income
received or receivable (but not any sum deemed to be received or
receivable) by that Finance Party.
(c) A Protected Party making, or intending to make a claim pursuant to
paragraph (a) above shall promptly notify the Agent of the event which
will give, or has given, rise to the claim, following which the Agent
shall notify the Company.
(d) A Protected Party shall, on receiving a payment from an Obligor under
this Clause 16.3, notify the Agent.
16.4 Tax Credit
If an Obligor makes a Tax Payment and the relevant Finance Party determines
that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been made by the
Obligor.
16.5 Stamp taxes
The Parent shall pay and, within three Business Days of demand, indemnify
each Finance Party against any cost, loss or liability that Finance Party
incurs in relation to all stamp duty, registration and other similar Taxes
payable in respect of any Finance Document, except where such duty or Tax
arises as a result of a Finance Party proceeding with a registration of a
Finance Document (i) which is or was not compulsory under applicable law
and (ii) which such Finance Party has not been advised or recommended to
carry out by legal counsel.
16.6 Value added tax
(a) All consideration payable under a Finance Document by any Obligor to a
Finance Party shall be deemed to be exclusive of any VAT. If VAT is
chargeable by the Finance Party, the Obligor making the payment shall
pay to the Finance Party (in addition to and at the same time as
paying the consideration) an amount equal to the amount of the VAT
(and the Finance Party shall promptly provide an appropriate VAT
invoice to such Party).
(b) Where a Finance Document requires an Obligor to reimburse a Finance
Party for any costs or expenses, such Obligor shall also at the same
time pay and indemnify that Finance Party against all VAT incurred by
that Finance Party in respect of the costs or expenses save to the
extent that that Finance Party is entitled to repayment or credit in
respect of the VAT.
17. INCREASED COSTS
17.1 Increased costs
(a) Subject to Clause 17.3 (Exceptions) the Parent shall, within three
Business Days of a demand by the Agent, pay for the account of a
Finance Party the amount of any Increased Costs incurred by that
Finance Party or any of its Affiliates as a result of (i) the
introduction of or any change in (or in the interpretation or
application of) any law or regulation or (ii) compliance with any law
or regulation made after the date of this Agreement.
(b) In this Agreement "Increased Costs" means:
(i) a reduction in the rate of return from the Facility or on a
Finance Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii)a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its Affiliates
to the extent that it is attributable to that Finance Party having entered
into its Commitment or funding or performing its obligations under any
Finance Document.
17.2 Increased cost claims
(a) A Finance Party intending to make a claim pursuant to Clause 17.1
(Increased costs) shall notify the Agent of the event giving rise
to the claim, following which the Agent shall promptly notify the
Company.
(b) Each Finance Party shall, as soon as practicable after a demand
by the Agent, provide a certificate confirming the amount of its
Increased Costs.
17.3 Exceptions
(a) Clause 17.1 (Increased costs) does not apply to the extent any
Increased Cost is:
(i) attributable to a Tax Deduction required by law to be made
by an Obligor;
(ii) compensated for by Clause 16.3 (Tax indemnity) (or would
have been compensated for under Clause 16.3 (Tax indemnity)
but was not so compensated solely because one of the
exclusions in paragraph (b) of Clause 16.3 (Tax indemnity)
applied);
(iii) compensated for by the payment of the Mandatory Cost; or
(iv) attributable to the wilful breach by the relevant Finance
Party or its Affiliates of any law or regulation.
(b) In this Clause 17.3, a reference to a "Tax Deduction" has the same
meaning given to the term in Clause 16.1 (Definitions).
18. OTHER INDEMNITIES
18.1 Currency indemnity
(a) If any sum due from an Obligor under the Finance Documents (a "Sum"),
or any order, judgment or award given or made in relation to a Sum,
has to be converted from the currency (the "First Currency") in which
that Sum is payable into another currency (the "Second Currency") for
the purpose of:
(i) making or filing a claim or proof against that Obligor;
(ii) obtaining or enforcing an order, judgment or award in relation to
any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three Business Days
of demand, indemnify each Finance Party to whom that Sum is due against any
cost, loss or liability arising out of or as a result of the conversion
including any discrepancy between (A) the rate of exchange used to convert
that Sum from the First Currency into the Second Currency and (B) the rate
or rates of exchange available to that person at the time of its receipt of
that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction to
pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
18.2 Other indemnities
The Parent shall (or shall procure that an Obligor will), within three
Business Days of demand, indemnify each Lender against any cost, loss or
liability incurred by that Lender as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any cost,
loss or liability arising as a result of Clause 30 (Sharing among
the Lenders);
(c) funding, or making arrangements to fund, its participation in a
Loan requested by a Borrower in a Utilisation Request 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 Lender alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by the Borrower or the Company.
18.3 Indemnity to the Agent
The Parent shall promptly indemnify the Agent against any cost, loss or
liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a
Default; or
(b) entering into or performing any foreign exchange contract for the
purposes of Clause 6 (Optional Currencies); or
(c) acting or relying on any notice, request or instruction delivered
in connection with a Finance Document which it reasonably
believes to be genuine, correct and appropriately authorised.
19. MITIGATION BY THE LENDERS
19.1 Mitigation
(a) Each Finance Party shall, in consultation with the Company, take
all reasonable steps to mitigate any circumstances which arise
and which would result in any amount becoming payable under, or
cancelled pursuant to, any of Clause 10.1 (Illegality), Clause 16
(Tax gross-up and indemnities) or Clause 17 (Increased costs)
including (but not limited to) the completion of any form or
application required to claim exemption from withholding taxes in
any relevant jurisdiction (to the extent that such Finance Party
may lawfully complete such form or application without causing
material prejudice to its own interests (as determined by such
Finance Party in its absolute discretion) or revealing any
information which such Finance Party considers to be
confidential) or transferring its rights and obligations under
the Finance Documents to another Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of
any of the Obligors under the Finance Documents.
19.2 Limitation of liability
(a) The Parent shall indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 19.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause
19.1 (Mitigation) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
20. COSTS AND EXPENSES
20.1 Transaction expenses
The Parent shall promptly on demand pay the Agent and the Mandated Lead
Arrangers the amount of all costs and expenses (including legal fees)
reasonably incurred by any of them in connection with the negotiation,
preparation, printing, execution and syndication of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement.
20.2 Amendment costs
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 31.9 (Change of currency), the
Parent shall, within three Business Days of demand, reimburse the Agent for
the amount of all costs and expenses (including legal fees) reasonably
incurred by the Agent in responding to, evaluating, negotiating or
complying with that request or requirement.
20.3 Enforcement costs
The Parent shall, within three Business Days of demand, pay to each Finance
Party the amount of all costs and expenses (including legal fees) incurred
by that Finance Party in connection with the enforcement of, or the
preservation of any rights under, any Finance Document.
SECTION 7.
GUARANTEE
21. GUARANTEE AND INDEMNITY
21.1 Guarantee and indemnity
The Guarantor irrevocably and unconditionally:
(a) guarantees to each Finance Party punctual performance by each Obligor
of all that Obligor's obligations under the Finance Documents;
(b) undertakes with each Finance Party that whenever an Obligor does not
pay any amount when due under or in connection with any Finance
Document, the Guarantor shall immediately on demand pay that amount as
if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against any cost,
loss or liability suffered by that Finance Party if any obligation
guaranteed by it is or becomes unenforceable, invalid or illegal. The
amount of the cost, loss or liability shall be equal to the amount
which that Finance Party would otherwise have been entitled to
recover.
21.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by an Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
21.3 Reinstatement
If any payment by an Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security for
those obligations or otherwise) is avoided or reduced as a result of
insolvency or any similar event:
(a) the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) each Finance Party shall be entitled to recover the value or amount of
that security or payment from each Obligor, as if the payment,
discharge, avoidance or reduction had not occurred.
21.4 Waiver of defences
The obligations of the Guarantor under this Clause 21 will not be affected
by an act, omission, matter or thing which, but for this Clause, would
reduce, release or prejudice any of its obligations under this Clause 21
(without limitation and whether or not known to it or any Finance Party)
including:
(a) any time, waiver or consent granted to, or composition with, any
Obligor or other person;
(b) the release of any Obligor or any other person under the terms of any
composition or arrangement with any creditor of any member of the
Group;
(c) the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights against,
or security over assets of, any Obligor or other person or any
non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise the
full value of any security;
(d) any incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of an Obligor or any
other person;
(e) any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document or any other document or
security; or
(g) any insolvency or similar proceedings.
21.5 Immediate recourse
The Guarantor waives any right it may have of first requiring any Finance
Party (or any trustee or agent on its behalf) to proceed against or enforce
any other rights or security or claim payment from any person before
claiming from the Guarantor under this Clause 21. This waiver applies
irrespective of any law or any provision of a Finance Document to the
contrary.
21.6 Appropriations
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or agent
on its behalf) in respect of those amounts, or apply and enforce the
same in such manner and order as it sees fit (whether against those
amounts or otherwise) and the Guarantor shall not be entitled to the
benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received from
the Guarantor or on account of the Guarantor's liability under this
Clause 21.
21.7 Deferral of Guarantor's rights
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in full
and unless the Agent otherwise directs, the Guarantor will not exercise any
rights which it may have by reason of performance by it of its obligations
under the Finance Documents:
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any other guarantor of an Obligor's
obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties under
the Finance Documents or of any other guarantee or security taken
pursuant to, or in connection with, the Finance Documents by any
Finance Party.
21.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Finance Party.
SECTION 8.
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
22. REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants in respect of itself and the Parent
represents and warrants in respect of itself and each other member of the
Group as follows:
22.1 Status
Each Obligor is a corporation duly organised or duly incorporated (as the
case may be), validly existing and in good standing under the laws of its
jurisdiction of incorporation as listed in Part A of Schedule 1 (The
Original Parties) and in respect of the Company, that it is in compliance
with, in particular, the amended Luxembourg laws dated 10 August 1915 on
commercial companies and 31 May 1999 on the domicile of companies.
22.2 Power and Authority
The execution, delivery and performance by each Obligor of the Finance
Documents to which it is a party, and the consummation of the transactions
contemplated thereby, are within such Obligor's corporate powers, have been
duly authorised by all necessary corporate action, and do not conflict
with:
(a) such Obligor's charter, by-laws or other constitutive documents; or
(b) any law or any contractual restriction binding on or affecting such
Obligor.
22.3 Validity and admissibility in evidence
All Authorisations required (i) for the due execution, delivery and
performance by each Obligor of the Finance Documents to which it is a party
or (ii) (except for the requirement of registration of the Finance
Documents and/or any other documents referred to therein in the case of
their production in court proceedings before a Luxembourg court or their
submittal (either directly or by way of reference) as a legal title before
an official Luxembourg authority) to make the Finance Documents to which it
is a party admissible in evidence in its jurisdiction of incorporation have
been obtained or effected and are in full force and effect.
22.4 Binding obligations
Subject to the Legal Reservations:
(a) each Finance Document once delivered will have been duly executed and
delivered by the Obligor party thereto; and
(b) each Finance Document once delivered will be the legal, valid and
binding obligation of the Obligor party thereto enforceable against it
in accordance with its terms.
22.5 Financial Statements
The Consolidated balance sheet of the Parent and its Subsidiaries as at
December 31, 2004, and the related Consolidated statements of income and
cash flows of the Parent and its Subsidiaries for the financial year then
ended, accompanied by an opinion of the Parent's auditors, copies of which
have been furnished to each Lender, fairly present the Consolidated
financial condition of the Parent and its Subsidiaries as at such date and
the Consolidated results of the operations of the Parent and its
Subsidiaries for the period ended on such date, all in accordance with GAAP
consistently applied. Since December 31, 2004, there has been no Material
Adverse Change.
22.6 No proceedings pending or threatened
There is no pending or threatened action, suit, investigation, litigation
or proceeding, including, without limitation, any Environmental Action,
affecting any Borrower, the Parent or any of its Subsidiaries before any
court, governmental agency or arbitrator that (a) could be reasonably
likely to have a Material Adverse Effect or (b) purports to affect the
legality, validity or enforceability of the Finance Documents or the
consummation of the transactions contemplated thereby.
22.7 Margin stock regulations
No Obligor is engaged in the business of extending and no Obligor will
extend credit for the purpose of purchasing or carrying margin stock
(within the meaning of the United States Regulation U issued by the Board
of Governors of the United States Federal Reserve System), and no proceeds
of any Utilisation will be used directly or indirectly to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
22.8 Investment company
No Obligor is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the United States Investment
Company Act of 1940, as amended or otherwise subject to regulation
thereunder.
22.9 Holding company
(a) No Obligor is a "holding company" or subject to regulation under the
United States Public Utility Holding Company Act of 1935, as amended.
(b) No Obligor is a public utility or subject to regulation under the
United States Federal Power Act of 1926, as amended.
22.10 No misleading information
(c) Any factual information provided by any of the Obligors or any other
member of the Group for the purposes of the Information Memorandum was
true and accurate in all material respects as at the date it was
provided or as at the date (if any) at which it is stated and all
material information in relation to the Information Memorandum has
been disclosed to the Finance Parties.
(d) The financial projections contained in the Information Memorandum have
been prepared on the basis of recent historical information and on the
basis of reasonable assumptions and nothing has occurred since the
date of the Information Memorandum which is reasonably likely to cause
any of those assumptions to be untrue.
(e) Nothing has occurred or been omitted from the Information Memorandum
and no information has been given or withheld that results in the
information contained in the Information Memorandum being untrue or
misleading in any material respect.
(f) All written information (other than the Information Memorandum)
supplied by any of the Obligors or any of the Parent's Subsidiaries to
any Finance Party is true, complete and accurate in all material
respects as at the date it was given and is not misleading in any
material respect.
22.11 Dutch Banking Act
Subject to the representation as set out in Clause 2.3 (Lenders' PMP
representations) being true, each Dutch Obligor is in compliance with the
Dutch Banking Act and any regulations issued pursuant thereto (including,
but not limited to, the Policy Guidelines and Exemption Regulation).
22.12 Tax Status
No notice under Section 36 of the Tax Collection Act (Invorderingswet 1990)
or section 16d of the Social Insurance Coordination Act (Coordinatiewet
Sociale Verzekeringen) has been given by any member of the Group
incorporated in the Netherlands.
23. GENERAL COVENANTS
The general covenants in this Clause 23 shall remain in force from the date
of this Agreement for so long as any amount shall remain unpaid under the
Finance Documents or any Lender shall have any Commitment hereunder.
23.1 Authorisation
Each Obligor shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in full
force and effect; and
(b) supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its jurisdiction
of incorporation to enable it to perform all of its payment and other
material obligations under any Finance Document to which it is a party and
to ensure the legality, validity, enforceability or admissibility in
evidence in its jurisdiction of incorporation of any Finance Document.
23.2 Compliance with laws
Each Obligor shall comply, and cause each of its Subsidiaries to comply, in
all material respects, with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and Environmental Laws.
23.3 Taxes
23.3.1 Payment of Taxes, Etc.
Each Obligor shall pay and discharge, and cause each of its Subsidiaries to
pay and discharge, before the same shall become overdue, (a) all Taxes,
assessments and governmental charges or levies imposed upon it or upon its
assets and (b) all lawful claims that, if unpaid, might by law become a
Security upon its assets; provided, however, that no Obligor nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Security resulting therefrom attaches to
its assets and becomes enforceable against its other creditors.
23.3.2 US Tax forms
In this Subclause:
"US Obligor" means an Obligor that is a United States person or that is
otherwise required to withhold on payments of interest made to nonresident
aliens of the United States and foreign corporations under U.S. federal
income tax law.
"United States person" has the meaning given to it in Section 7701(a)(30)
of the United States Internal Revenue Code of 1986.
(a) Except as provided below, each Lender that is not a United States
person must supply to the Agents and to each US Obligor the US
Internal Revenue Service forms that are necessary to enable that US
Obligor to make payments to that Lender under the Finance Documents
without any deduction or withholding in respect of any Tax imposed by
the United States of America.
(b) A Lender must comply with its obligations under paragraph (a) above as
soon as practicable after the date it becomes a Party or (if later)
the date the US Obligor becomes a Party and thereafter, as soon as
practicable upon receipt of written request to do so.
(c) A Lender is not obliged to supply any form under paragraph (a) above
if it is unable to do so by reason of any change after the date of
this Agreement in (or in the interpretation, administration or
application of) any law or regulation or any published practice or
concession of any relevant taxing authority.
(d) A US Obligor is not obliged to pay any Tax Payment (as defined in
Clause 16.1 (a) (Definitions) herein) to a Lender to the extent that
such Tax Payment would not have been payable if that Lender had
complied with its obligations under this Subclause.
23.4 Maintenance of insurance
Each Obligor shall maintain, and cause each of its Subsidiaries to
maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried
by companies engaged in similar businesses and owning similar properties in
the same general areas in which the Obligors or such Subsidiary operates;
provided, however, that each of the Obligors and its Subsidiaries may
self-insure to the same extent as other companies engaged in similar
businesses and owning similar properties in the same general areas in which
the Obligors or such Subsidiary operates and to the extent consistent with
prudent business practice.
23.5 Preservation of corporate existence, Etc.
Each Obligor shall preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, its corporate existence (other than,
in the case of any Subsidiary which is not an Obligor, as a result of a
solvent winding-up on terms approved by the Majority Lenders), rights
(charter and statutory) and franchises, provided, however, that each of the
Obligors and its Subsidiaries may consummate any merger or consolidation
permitted under Clause 23.9 (Mergers) and provided further that neither the
Obligors nor any of their Subsidiaries shall be required to preserve any
right or franchise if the Board of Directors of the Parent shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the relevant Obligor or its Subsidiaries, and that the loss
thereof is not disadvantageous in any material respect to the relevant
Obligor or its Subsidiaries or the Lenders.
23.6 Keeping of books
Each Obligor shall keep, and cause each of its Subsidiaries to keep, proper
books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the
Obligors and each such Subsidiary in accordance with GAAP in effect from
time to time.
23.7 Reporting requirements
23.7.1 Quarterly Statements of the Parent
The Parent shall furnish to the Agent (in sufficient copies for each of the
Lenders), as soon as available and in any event within 45 days after the
end of each of the first three quarters of each financial year of the
Parent, (i) the Consolidated balance sheet of the Parent and its
Subsidiaries as of the end of such quarter and Consolidated statements of
income and cash flows of the Parent and its Subsidiaries for such quarter
and for the period commencing at the end of the previous financial year and
ending with the end of such quarter, duly certified (subject to year-end
audit adjustments) by the chief financial officer of the Parent as having
been prepared in accordance with GAAP and (ii) certificates of the chief
financial officer of the Parent as to compliance with the terms of this
Agreement and setting forth in reasonable detail the calculations necessary
to demonstrate compliance with Clause 24 (Financial covenant), provided
that in the event of any change in generally accepted accounting principles
in the United States of America which is then applied in the preparation of
such financial statements, the Parent shall also provide, if necessary for
the determination of compliance with Clause 24 (Financial covenant), a
statement of reconciliation conforming such financial statements to GAAP
(which means, for the avoidance of doubt, generally accepted accounting
principles in the United States of America consistent with those applied in
the preparation of the financial statements referred to in Clause 22.5
(Financial Statements)).
23.7.2 Annual Statements of the Parent
The Parent shall furnish to the Agent (in sufficient copies for each of the
Lenders), as soon as available and in any event within 90 days after the
end of each financial year of the Parent, a copy of the annual audit report
for such year for the Parent and its Subsidiaries, containing the
Consolidated balance sheet of the Parent and its Subsidiaries as of the end
of such financial year and Consolidated statements of income and cash flows
of the Parent and its Subsidiaries for such financial year, in each case
accompanied by an opinion acceptable to the Majority Lenders by
PricewaterhouseCoopers LLP or other independent public accountants of
comparable size and of international reputation, provided that in the event
of any change in generally accepted accounting principles in the United
States of America which is then applied in the preparation of such
financial statements, the Parent shall also provide, if necessary for the
determination of compliance with Clause 24 (Financial covenant), a
statement of reconciliation conforming such financial statements to GAAP
(which means, for the avoidance of doubt, generally accepted accounting
principles in the United States of America consistent with those applied in
the preparation of the financial statements referred to in Clause 22.5
(Financial Statements)).
23.7.3 Notification of Default
The Obligors shall furnish to the Agent, as soon as possible and in any
event within five days after the occurrence of each Default continuing on
the date of such statement, a statement of a director of the Company
setting forth details of such Default and the action that the relevant
Obligor has taken and proposes to take with respect thereto.
23.7.4 Communications to securityholders
The Obligors shall furnish to the Agent, promptly after the sending or
filing thereof, copies of all material reports that the Parent sends to any
of its securityholders, and copies of all material reports and material
registration statements that the Parent or any of its Subsidiaries files
with the United States Securities and Exchange Commission or any national
securities exchange.
23.7.5 Notification of proceedings
The Obligors shall furnish to the Agent, promptly after the commencement
thereof, notice of all material actions and proceedings before any court,
governmental agency or arbitrator affecting any Obligor or any of its
Subsidiaries of the type described in Clause 22.6 (No proceedings pending
or threatened).
23.7.6 Other information
Each Obligor shall furnish to the Agent such other information regarding
any of the Obligors or any of its Subsidiaries as any Lender through the
Agent may from time to time reasonably request from that Obligor.
23.7.7 Delivery
Reports and financial statements required to be delivered by the Obligors
pursuant to subclauses 23.7.1, 23.7.2 and 23.7.4 of this Clause 23.7 shall
be deemed to have been delivered on the date on which the Parent posts such
reports, or reports containing such financial statements, on its website on
the Internet at www.iff.com provided that the Obligors notify the Agent
that such reports have been posted and that such web site is accessible by
the Agent and the Lenders; and provided further that paper copies of the
reports and financial statements referred to in subclauses 23.7.1, 23.7.2
and 23.7.4 of this Clause 23.7 shall be delivered by the Obligors to the
Agent or any Lender who requests it to deliver such paper copies until
written notice to cease delivering paper copies is given by the Agent or
such Lender; and provided further that in every instance the Obligors shall
provide paper copies of the certificates or opinions required by subclauses
23.7.1 and 23.7.2 of this Clause 23.7 to the Agent and each of the Lenders
until such time as the Agent shall provide any of them written notice
otherwise.
23.8 Negative Pledge
No Obligor shall create or suffer to exist, any Security on or with respect
to any of its assets, whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any right to receive income,
other than:
(a) Permitted Securities;
(b) purchase money Securities upon or in any real property or equipment
acquired or held by the Parent or any Subsidiary in the ordinary
course of business to secure the purchase price of such real property
or equipment or to secure Debt incurred solely for the purpose of
financing the acquisition of such real property or equipment, or
Securities existing on such real property or equipment at the time of
its acquisition (other than any such Securities created in
contemplation of such acquisition that were not incurred to finance
the acquisition of such real property) or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount,
provided, however, that no such Security shall extend to or cover any
assets of any character other than the real property or equipment
being acquired, and no such extension, renewal or replacement shall
extend to or cover any assets not theretofore subject to the Security
being extended, renewed or replaced, provided further that the
aggregate principal amount of the indebtedness secured by the Security
referred to in this paragraph (b) shall not exceed US$60,000,000 (or
its equivalent in another currency or currencies) at any time
outstanding;
(c) Securities on assets of a person existing at the time such person is
merged into or consolidated with the Parent or any Subsidiary of the
Parent or becomes a Subsidiary of the Parent; provided that such
Securities were not created in contemplation of such merger,
consolidation or acquisition and do not extend to any assets other
than those of the person so merged into or consolidated with the
Parent or such Subsidiary or acquired by the Parent or such
Subsidiary;
(d) other Securities securing Debt in an aggregate principal amount not to
exceed US$120,000,000 (or its equivalent in another currency or
currencies) at any time outstanding; and
(e) the replacement, extension or renewal of any Security permitted by
paragraph (c) above provided that such replacement, extension or
renewal shall not extend to or cover any assets not subject to the
Security being replaced, extended or renewed and provided further that
the grantor of the Security as obligor of the relevant Debt shall not
change and the amount of the Debt secured thereby shall not increase
as a result of such replacement, extension or renewal.
23.9 Mergers
No Obligor shall merge or consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of the assets (whether now owned or
hereafter acquired) of the Parent and its Subsidiaries, taken as a whole,
to any person, or permit any of its Subsidiaries to do so, except that:
(a) any Subsidiary of the Parent may merge or consolidate with or into, or
dispose of assets to, any other Subsidiary of the Parent;
(b) any Subsidiary of the Parent may merge into or dispose of assets to
the Parent;
(c) the solvent liquidation or reorganisation of any member of the Group
which is not an Obligor is permitted so long as any payments or assets
distributed as a result of such liquidation or reorganisation are
distributed to other members of the Group;
(d) (without prejudice to Clause 10.3 (Acquisition for Merger)), each of
the Obligors may merge with any other person so long as the surviving
corporation has the obligations expressed to be assumed by the
relevant Obligor hereunder and legal opinions in form and content
satisfactory to the Agent have been delivered to it; and
(e) an Obligor may dispose of an asset to a person which is not a member
of the Group on terms that such asset is to be reacquired by a member
of the Group (a " Reacquisition Sale and Leaseback Transaction")
provided that the principal obligations of such member of the Group,
when aggregated with the principal obligations of all other members of
the Group in respect of all other Reacquisition Sale and Leaseback
Transactions entered into after the date hereof, do not exceed US$
50,000,000 (or its equivalent in another currency or currencies),
provided, in each case, that no Event of Default shall have occurred and be
continuing at the time of such proposed transaction or would result
therefrom.
23.10 Accounting changes
No Obligor shall make or permit, or permit any of its Subsidiaries to make
or permit, any change in accounting policies or reporting practices, except
as required or permitted by GAAP.
23.11 Change in nature of business
No Obligor shall make, or permit any of its Subsidiaries to make, any
material change in the nature of the business of the Parent and its
Subsidiaries, taken as a whole, as carried on at the date hereof.
23.12 Subsidiary Debt
No Obligor shall permit any of its Subsidiaries to create or suffer to
exist, any Debt other than:
(a) Debt owed to the Parent or to a wholly-owned Subsidiary of the Parent;
(b) Debt (not falling within paragraphs (a), (c), (e) and (f) of this
Clause 23.12 but including Debt falling within paragraph (d) of this
Clause 23.12) aggregating for all of the Parent's Subsidiaries not
more than US$800,000,000 (or its equivalent in another currency or
currencies) at any one time outstanding;
(c) endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business;
(d) Debt owed pursuant to the Finance Documents;
(e) Debt which is effectively subordinated to the payment obligations of
the Obligors to the Finance Parties hereunder to the satisfaction of
the Agent; and
(f) Debt arising as a result of a member of the Group entering into a
Reacquisition Sale and Leaseback Transaction provided that the
principal obligations of such member of the Group, when aggregated
with the principal obligations of all other members of the Group in
respect of all other Reacquisition Sale and Leaseback Transactions
entered into after the date hereof, do not exceed US$ 50,000,000 (or
its equivalent in another currency or currencies).
23.13 Pari passu
Each Obligor shall ensure that at all times the claims of the Finance
Parties against it under the Finance Documents rank at least pari passu
with the claims of all its other unsecured and unsubordinated creditors
save those whose claims are preferred by any bankruptcy, insolvency,
liquidation or other similar laws of general application.
23.14 Subsidiary Guarantors
(a) The Parent shall cause each of its Subsidiaries that is or thereafter
becomes a guarantor under any bank credit facility entered into by a
Borrower to guarantee the obligations of any Borrower under this
Agreement by delivering to the Agent:
(i) a subsidiary guarantee (the "Subsidiary Guarantee") in form and
substance satisfactory to the Majority Lenders, duly executed by
that Subsidiary (the "Subsidiary Guarantor");
(ii) the documents described in Schedule 7 (Subsidiary Guarantee
Documents); and
(iii)opinions of reputable counsel in the jurisdiction of
incorporation of the Subsidiary Guarantor reasonably satisfactory
to the Majority Lenders and of special US counsel for the Parent
or other counsel reasonably satisfactory to the Majority Lenders
(which opinions shall be reasonably satisfactory to the Majority
Lenders and may be subject to customary exceptions,
qualifications and limitations under the circumstances none of
which may relate to the absence of shareholder approval or be
material to the practical realisation of the benefits and pari
passu ranking with the right of pro rata recovery of a guarantee
of unsecured and unsubordinated Debt) to the effect that such
Subsidiary Guarantee has been duly authorised, executed and
delivered by such Subsidiary Guarantor and is valid, binding and
enforceable in accordance with its terms and the claims of the
Lenders (having the benefits of such Subsidiary Guarantee)
against such Subsidiary Guarantor will be enforced on a parity
with the claims of other unsecured and unsubordinated creditors
of such Subsidiary Guarantor in a bankruptcy, insolvency or other
analogous proceeding arising in the jurisdiction of incorporation
of such Subsidiary Guarantor.
(b) The Parent need only perform its obligations under paragraph (a) above
if it is not unlawful for the relevant Subsidiary to become a
Subsidiary Guarantor or it would not result in personal or criminal
liability for that Subsidiary's directors or other management. The
Parent must use, and must procure that the relevant person uses, all
reasonable endeavours lawfully available to avoid such unlawfulness or
personal or criminal liability. This includes agreeing to a limit on
the amount guaranteed. The Agent may (but shall not be obliged to)
agree to such a limit if, in its reasonable opinion, to do so would
avoid the relevant unlawfulness or personal or criminal liability.
23.15 "Know your customer" checks
23.15.1 If:
(a) the introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation made after the
date of this Agreement;
(b) any change in the status of an Obligor or the composition of the
shareholders of an Obligor after the date of this Agreement; or
(c) a proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior
to such assignment or transfer,
obliges the Agent or any Lender (or, in the case of paragraph (c) above,
any prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information
is not already available to it, each Obligor shall promptly upon the
request of the Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the Agent
(for itself, or on behalf of any Lender) or any Lender (for itself or, in
the case of the event described in paragraph (iii) above, or on behalf of
any prospective new Lender) in order for the Agent, such Lender or, in the
case of the event described in paragraph (c) above, any prospective new
Lender to carry out and be satisfied it has complied with all necessary
"know your customer" or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance
Documents.
23.15.2 Each Lender shall promptly upon the request of the Agent
supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Agent (for itself)
in order for the Agent to carry out and be satisfied it has
complied with all necessary "know your customer" or other
similar checks under all applicable laws and regulations
pursuant to the transactions contemplated in the Finance
Documents.
23.15.3 The Company shall, by not less than 10 Business Days' prior
written notice to the Agent, notify the Agent (which shall
promptly notify the Lenders) of its intention to request that
one of its Subsidiaries becomes an Additional Borrower
pursuant to Clause 27.2 (Additional Borrowers).
23.15.4 Following the giving of any notice pursuant to Clause 23.15.3
above, if the accession of such Additional Borrower obliges
the Agent or any Lender to comply with "know your customer" or
similar identification procedures in circumstances where the
necessary information is not already available to it, the
Parent shall promptly upon the request of the Agent or any
Lender supply, or procure the supply of, such documentation
and other evidence as is reasonably requested by the Agent
(for itself or on behalf of any Lender) or any Lender (for
itself or on behalf of any prospective new Lender) in order
for the Agent, such Lender or any prospective new Lender to
carry out and be satisfied it has complied with all necessary
"know your customer" or other similar checks under all
applicable laws and regulations pursuant to the accession of
such Subsidiary to this Agreement as an Additional Borrower.
23.16 Patriot Act
The Lenders hereby notify the Borrowers that pursuant to the
requirements of the Patriot Act, they are required to obtain, verify and
record information that identifies the Borrowers, which information
includes the name and address of the Borrowers and other information
that will allow the Lenders to identify the Borrowers in accordance with
the terms of the Patriot Act.
23.17 Filing of 2002 and 2003 Annual Accounts of the Company
The Company shall file its 2002 and 2003 annual accounts as soon as
reasonably practicable and in any event within the following time limits
after the date of this Agreement:
(c) the 2002 annual accounts shall be filed with the Luxembourg commercial
and companies register (which for the purpose of this Clause 23.17
shall be referred to as the "Register") within 3 months; and
(d) the 2003 annual accounts shall be filed with the Register within 9
months.
The rights of the Finance Parties in respect of any Event of Default
(including any Event of Default referred to in Clause 25.5 (Insolvency))
arising as a consequence of any failure to comply with any legal
requirements to approve or file any annual accounts with the Register shall
remain unaffected and unwaived.
24. FINANCIAL COVENANT
So long as any amount shall remain unpaid under the Finance Documents or
any Lender shall have any Commitment hereunder, the Parent shall maintain a
ratio of Net Debt as at the end of any Relevant Period to consolidated
EBITDA in respect of such Relevant Period of not more than 3.25:1.
25. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 25 is an Event of
Default.
25.1 Non-payment
An Obligor shall fail to pay any amount of principal under a Finance
Document when the same becomes due and payable unless such failure to pay
is caused by technical or administrative error or a Disruption Event and
payment is made within three Business Days of its due date; or an Obligor
shall fail to pay any interest on any such amount of principal or make any
other payment of fees or other amounts payable under a Finance Document
within three Business Days after the same becomes due and payable.
25.2 Misrepresentation
Any representation or warranty made or confirmed to be correct by an
Obligor herein (or any of its officers) in connection with a Finance
Document shall prove to have been incorrect or misleading in any material
respect when made or confirmed provided that no Event of Default shall
occur under this Clause by reason of any representation by the Borrower set
out in Clause 22.11 (Dutch Banking Act) being untrue in any material
respect as a result of a Lender's representation under Clause 2.3 (Lenders'
PMP representations) as to its status as a PMP being untrue (but without
prejudice to the rights of the Finance Parties under this Agreement other
than under this Clause 25.2 (Misrepresentation) or under applicable law and
without prejudice to any other Event of Default which may occur by reason
of any representation set out in Clause 22.11 (Dutch Banking Act) being
untrue in any material respect).
25.3 Other obligations
(a) An Obligor shall fail to perform or observe any term, covenant or
agreement contained in Clauses 23.5 (Preservation of corporate
existence, Etc.), 23.8 (Negative Pledge), 23.9 (Mergers), 23.11
(Change in nature of business) or Clause 24 (Financial Covenant); or
(b) an Obligor shall fail to perform or observe any other term, covenant
or agreement contained in any of the Finance Documents on its part to
be performed or observed if such failure shall remain unremedied for
10 days after written notice thereof shall have been given to the
Borrower by the Agent or any Lender.
25.4 Cross default
Any Obligor or any of its Subsidiaries shall fail to pay any principal of
or premium or interest on any Debt that is outstanding in a principal or
notional amount of at least the higher of US$75,000,000 and EUR60,000,000
(or the equivalent to the higher of those amounts in another currency or
currencies) in the aggregate (but excluding Debt outstanding hereunder) of
such Obligor or such Subsidiary (as the case may be), when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after
the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity
of such Debt; or any such Debt shall be declared to be due and payable, or
required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be made,
in each case prior to the stated maturity thereof.
25.5 Insolvency
Any Obligor or any of its Subsidiaries shall:
(a) generally not pay its debts as such debts become due (which in the
case of a Luxembourg entity, and without prejudice to the provisions
set out in this paragraph, means that such Luxembourg entity is or is
deemed to be in a state of cessation of payments (cessation de
payments) and has lost its commercial creditworthiness (ebranlement de
credit));
(b) admit in writing its inability to pay its debts generally;
(c) make a general assignment for the benefit of creditors; or
(d) any proceeding shall be instituted by or against such Obligor or any
of its Subsidiaries seeking:
(i) to adjudicate it a bankrupt or insolvent;
(ii) liquidation, winding up, reorganisation, examinership,
arrangement, adjustment, protection, relief, or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganisation or examinership or relief of debtors (such as, in
particular, under Luxembourg law, a "faillite", "gestion
controlee", "concordat judiciaire" or a "liquidation
judiciaire"); or
(iii)attachment, sequestration, distress or execution or the entry of
an order for relief or the appointment of a receiver, trustee,
examiner, custodian or other similar official for it or for any
part of its assets,
and in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian, examiner or
other similar official for, it or for any part of its assets) shall occur;
or any Obligor or other member of the Group shall take any corporate action
to authorise any of the actions set forth above in this Clause 25.5.
However, no Event of Default will occur under this Clause 25.5 if the
events or circumstances referred to in paragraphs (a) to (d) above apply
only to a member or members of the Group which is or are not (an)
Obligor(s) unless:
(1) the aggregate amount of the consolidated assets of each member of the
Group which is the subject of any such event or circumstance, when
aggregated with the consolidated assets of each other member of the
Group which is the subject of any such event or circumstance, is equal
to or greater than 7.5% of the consolidated assets of the Group; or
(2) the aggregate amount of the consolidated net sales of each member of
the Group which is the subject of any such event or circumstance, when
aggregated with the consolidated net sales of each other member of the
Group which is the subject of any such event or circumstance, is equal
to or greater than 7.5% of the consolidated net sales of the Group.
For the purposes of paragraphs (1) and (2) above, the consolidated assets
and consolidated net sales of any member of the Group shall be determined
by reference to the most recent financial year of the Group and the most
recent set of annual audited accounts of the relevant member of the Group,
if any (which, in the case of the consolidated assets and consolidated net
sales of the Group, shall mean the financial statements referred to in
Clause 22.5 (Financial Statements) or the most recent set of financial
statements delivered pursuant to Clause 23.7 (Reporting requirements),
whichever has been most recently delivered to the Agent hereunder) provided
that in the absence of any such accounts in relation to any member of the
Group other than the Parent the figures for consolidated assets and
consolidated net sales of such member of the Group shall be determined by
such member of the Group's auditors.
25.6 Creditors' Process
Any expropriation, attachment, sequestration, distress or execution affects
any asset or assets of a member of the Group where the aggregate value of
such asset or assets, when aggregated with the value of any other asset or
assets of a member of the Group subject to any expropriation, attachment,
sequestration, distress or execution, exceeds US$30,000,000 and is not
discharged within 10 days.
25.7 Control of the Borrowers
The Parent shall cease to own, directly or indirectly, the whole of the
outstanding issued share capital of any of the Borrowers unless:
(a) there are no outstandings of such Borrower under any Finance Document;
or
(b) any outstandings of such Borrower under any Finance Document are
repaid on the date such cessation takes place
and the relevant Borrower resigns as a Borrower under this Facility Agreement.
25.8 ERISA liabilities
The Parent or any of its ERISA Affiliates shall incur, or shall be
reasonably likely to incur liability in excess of US$50,000,000 (or its
equivalent in another currency or currencies) in the aggregate as a result
of one or more of the following:
(a) the occurrence of any ERISA Event;
(b) the partial or complete withdrawal of the Parent or any of its ERISA
Affiliates from a Multiemployer Plan; or
(c) the reorganisation or termination of a Multiemployer Plan.
25.9 Unlawfulness
At any time an Obligor no longer has the legal power to perform its
obligations under the Finance Documents to which it is a party or to own
its assets or to carry on its business or at any time it is or becomes
unlawful for an Obligor or the Parent to perform or comply with any or all
of its payment and other material obligations under any Finance Document to
which it is a party or any of such obligations are not or cease to be
legal, valid, binding and enforceable.
25.10 Repudiation
An Obligor shall repudiate a Finance Document or shall evidence an
intention to repudiate a Finance Document.
25.11 Tax status
A notice under Section 36 of the Tax Collection Act (Invorderingswet 1990)
or section 16d of the Social Insurance Coordination Act) (Coordinatiewet
Sociale Verzekeringen) has been given by any member of the Group
incorporated in the Netherlands.
25.12 Material adverse change
Any event or circumstance shall occur which could reasonably be expected to
have a material adverse effect on the ability of the Obligors to perform or
comply with their payment obligations under the Finance Documents and their
obligations under Clause 24 (Financial Covenant).
25.13 Acceleration
On and at any time after the occurrence of an Event of Default the Agent
may, and shall if so directed by the Majority Lenders, by notice to the
Company:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(b) declare that all or part of the Loans, together with accrued interest,
and all other amounts accrued under the Finance Documents be
immediately due and payable, whereupon they shall become immediately
due and payable; and/or
(c) declare that all or part of the Loans be payable on demand, whereupon
they shall immediately become payable on demand by the Agent on the
instructions of the Majority Lenders,
provided, however, that in the event of an actual or deemed entry of an
order for relief with respect to the Parent or any other Obligor
incorporated or organised under the laws of the United States of America or
any State of the United States of America under the United States
Bankruptcy Code shall occur, (A) the Total Commitments shall automatically
be cancelled and (B) the Loans, together with accrued interest, and all
other amounts accrued under the Finance Documents shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the
Obligors.
SECTION 9.
changes to the parties
26. CHANGES TO THE LENDERS
26.1 Assignments and transfers by the Lenders
Subject to this Clause 26, a Lender (the "Existing Lender") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or financial institution (the "New Lender") provided that
if any Lender assigns or transfers any of its Commitment it shall also
transfer an equal proportion of the Loans and vice versa.
26.2 Conditions of assignment or transfer
(a) Unless an Event of Default has occurred and is continuing, the consent
of the Company is required for an assignment or transfer by a Lender,
unless the assignment or transfer is to another Lender or an Affiliate
of a Lender.
(b) The consent of the Company to an assignment or transfer must not be
unreasonably withheld or delayed. The Company will be deemed to have
given its consent 10 Business Days after the Lender has requested it
unless consent is expressly refused by the Company within that time.
(c) The consent of the Company to an assignment or transfer must not be
withheld solely because the assignment or transfer may result in an
increase to the Mandatory Cost.
(d) An assignment will only be effective on receipt by the Agent of
written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the same
obligations to the other Finance Parties as it would have been under
if it was an Original Lender.
(e) A transfer will only be effective if the procedure set out in Clause
26.5 (Procedure for transfer) is complied with.
(f) If:
(i) a Lender assigns or transfers any of its rights or obligations
under the Finance Documents or changes its Facility Office; and
(ii) as a result of circumstances existing at the date the assignment,
transfer or change occurs, the Borrower would be obliged to make
a payment to the New Lender or Lender acting through its new
Facility Office under Clause 16 (Tax gross-up and indemnities) or
Clause 17 (Increased costs),
then the New Lender or Lender acting through its new Facility Office is
only entitled to receive payment under those Clauses to the same extent as
the Existing Lender or Lender acting through its previous Facility Office
would have been if the assignment, transfer or change had not occurred.
(g) If on the date the assignment or transfer becomes effective it is
required such New Lender is a Professional Market Party, the New
Lender must make the explicit declaration and representation set out
in paragraph 4 of the Transfer Certificate.
26.3 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of EUR2,500.
26.4 Limitation of responsibility of Existing Lenders
(a) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New
Lender for:
(i) the legality, validity, effectiveness, adequacy or enforceability
of the Finance Documents or any other documents;
(ii) the financial condition of any of the Obligors;
(iii)the performance and observance by any Obligor of its obligations
under the Finance Documents to which it is a party or any other
documents; or
(iv) the accuracy of any statements (whether written or oral) made in
or in connection with any Finance Document or any other document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of the Obligors and its related entities in connection
with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Existing
Lender in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Obligors and its related entities whilst
any amount is or may be outstanding under the Finance Documents
or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause 26; or
(ii) support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by any Obligor of its
obligations under the Finance Documents or otherwise.
26.5 Procedure for transfer
(a) Subject to the conditions set out in Clause 26.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph (b) below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing
Lender and the New Lender. The Agent shall within five Business
Days of receipt by it of a duly completed Transfer Certificate
appearing on its face to comply with the terms of this Agreement
and delivered in accordance with the terms of this Agreement,
execute that Transfer Certificate.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing
Lender seeks to transfer by novation its rights and
obligations under the Finance Documents each of the Obligors
and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents
and their respective rights against one another shall be
cancelled (being the "Discharged Rights and Obligations");
(ii) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged Rights
and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of
that Obligor and the Existing Lender;
(iii)the Agent, the Mandated Lead Arrangers, the New Lender and
other Lenders shall acquire the same rights and assume the
same obligations between themselves as they would have
acquired and assumed had the New Lender been an Original
Lender with the rights and/or obligations acquired or
assumed by it as a result of the transfer and to that extent
the Agent, the Mandated Lead Arrangers and the Existing
Lender shall each be released from further obligations to
each other under this Agreement; and
(iv) the New Lender shall become a Party as a "Lender".
26.6 Copy of Transfer Certificate to Company
The Agent shall, as soon as reasonably practicable after it has
executed a Transfer Certificate, send to the Company a copy of that
Transfer Certificate.
26.7 Disclosure of information
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to, this
Agreement or any Obligor; or
(c) 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 Finance Documents
as that Lender shall consider appropriate.
27. CHANGES TO THE OBLIGORS
27.1 Assignment and transfers by Obligors
No Obligor may assign any of its rights or transfer any of its rights
or obligations under the Finance Documents.
27.2 Additional Borrowers
27.2.1 Subject to compliance with the provisions of Clauses 23.15.3 and
23.15.4 of Clause 23.15 ("Know your customer" checks), the Parent may
request that any of its wholly owned Subsidiaries becomes an
Additional Borrower. That Subsidiary shall become an Additional
Borrower if:
(a) in the case of a Subsidiary which is not incorporated or
organised in an OECD Jurisdiction, all the Lenders approve the
addition of that Subsidiary;
(b) in the case of a Subsidiary which is incorporated or organised in
an OECD Jurisdiction, the Majority Lenders approve the addition
of that Subsidiary
(c) the Parent delivers to the Agent a duly completed and executed
Accession Letter;
(d) the Parent confirms that no Default is continuing or would occur
as a result of that Subsidiary becoming an Additional Borrower;
and
(e) the Agent has received all of the documents and other evidence
listed in Part B of Schedule 2 (Conditions precedent) in relation
to that Additional Borrower, each in form and substance
satisfactory to the Agent.
27.2.2 The Agent shall notify the Parent and the Lenders promptly upon
being satisfied that it has received (in form and substance
satisfactory to it) all the documents and other evidence listed in
Part B of Schedule 2 (Conditions precedent).
27.3 Repetition of Representations
Delivery of an Accession Letter constitutes confirmation by the
relevant Subsidiary that the representations and warranties contained
in Clause 22 (Representations and Warranties), other than those set
out in the last sentence of Clause 22.5 (Financial Statements),
paragraph (a) of Clause 22.6 (No proceedings pending or threatened)
and paragraphs (a), (b) and (c) of Clause 22.10 (No misleading
information), are true and correct in relation to it as at the date of
delivery as if made by reference to the facts and circumstances then
existing.
27.4 Resignation of a Borrower
(a) The Company may request that a Borrower (other than the Company or the
Parent) ceases to be a Borrower by delivering to the Agent a
Resignation Letter.
(b) The Agent shall accept a Resignation Letter and notify the Company and
the Lenders of its acceptance if:
(i) no Default is continuing or would result from the acceptance of
the Resignation Letter (and the Company has confirmed this is the
case); and
(ii) the Borrower is under no actual or contingent obligations as a
Borrower under any Finance Documents,
Whereupon that company shall cease to be a Borrower and shall
have no further rights or obligation under the Finance Documents.
SECTION 10.
THE FINANCE PARTIES
28. ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGERS
28.1 Appointment of the Agent
(a) Each of the Mandated Lead Arrangers and the Lenders appoints the
Agent to act as its agent under and in connection with the
Finance Documents.
(b) Each of the Mandated Lead Arrangers and the Lenders authorises
the Agent to exercise the rights, powers, authorities and
discretions specifically given to the Agent under or in
connection with the Finance Documents together with any other
incidental rights, powers, authorities and discretions.
28.2 Duties of the Agent
(a) The Agent shall promptly forward to a Party the original or a
copy of any document which is delivered to the Agent for that
Party by any other Party.
(b) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the Lenders.
(c) The Agent shall promptly notify the Lenders of any Default
arising under Clause 25.1 (Non-payment).
(d) The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
28.3 Role of the Mandated Lead Arrangers
Except as specifically provided in the Finance Documents, none of the
Mandated Lead Arrangers has obligations of any kind to any other Party
under or in connection with any Finance Document.
28.4 No fiduciary duties
(a) Nothing in this Agreement constitutes the Agent or the Mandated
Lead Arrangers as a trustee or fiduciary of any other person.
(b) Neither the Agent nor the Mandated Lead Arrangers shall be bound
to account to any Lender for any sum or the profit element of any
sum received by it for its own account.
28.5 Business with the Group
The Agent and the Mandated Lead Arrangers may accept deposits from, lend
money to and generally engage in any kind of banking or other business with
any member of the Group.
28.6 Rights and discretions of the Agent
(a) The Agent may rely on:
(i) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within
his power to verify.
(b) The Agent may assume (unless it has received notice to the contrary in
its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 25.1 (Non-payment));
(ii) any right, power, authority or discretion vested in any Party or
the Majority Lenders has not been exercised; and
(iii)any notice or request made by the Company (other than a
Utilisation Request) is made on behalf of and with the consent
and knowledge of all the Obligors.
(c) The Agent may engage, pay for and rely on the advice or services of
any lawyers, accountants, surveyors or other experts.
(d) The Agent may act in relation to the Finance Documents through its
personnel and agents.
28.7 Majority Lenders' instructions
(a) Unless a contrary indication appears in a Finance Document, the Agent
shall (a) act in accordance with any instructions given to it by the
Majority Lenders (or, if so instructed by the Majority Lenders,
refrain from acting or exercising any right, power, authority or
discretion vested in it as Agent) and (b) not be liable for any act
(or omission) if it acts (or refrains from taking any action) in
accordance with such an instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all the
Lenders and the Mandated Lead Arrangers.
(c) The Agent may refrain from acting in accordance with the instructions
of the Majority Lenders (or, if appropriate, the Lenders) until it has
received such security as it may require for any cost, loss or
liability (together with any associated VAT) which it may incur in
complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the Lenders.
(e) The Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or arbitration
proceedings relating to any Finance Document.
28.8 Responsibility for documentation
Neither the Agent nor any of the Mandated Lead Arrangers:
(a) is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, a
Mandated Lead Arranger, an Obligor or any other person given in or in
connection with any Finance Document or the Information Memorandum; or
(b) is responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in anticipation
of or in connection with any Finance Document.
28.9 Exclusion of liability
(a) Without limiting paragraph (b) below, the Agent will not be liable for
any action taken by it under or in connection with any Finance
Document, unless directly caused by its gross negligence or wilful
misconduct.
(b) No Party may take any proceedings against any officer, employee or
agent of the Agent in respect of any claim it might have against the
Agent or in respect of any act or omission of any kind by that
officer, employee or agent in relation to any Finance Document and any
officer, employee or agent of the Agent may rely on this Clause
subject to Clause 1.6 (Third Party Rights) and the provisions of the
Third Parties Act.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under
the Finance Documents to be paid by the Agent if the Agent has taken
all necessary steps as soon as reasonably practicable to comply with
the regulations or operating procedures of any recognised clearing or
settlement system used by the Agent for that purpose.
28.10 Lenders' indemnity to the Agent
Each Lender shall (in proportion to its share of the Total Commitments or,
if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three Business Days of demand, against any cost, loss or
liability incurred by the Agent (and the Agent shall refund such payment if
the Lenders can prove that such cost, loss or liability was incurred by
reason of the Agent's gross negligence or wilful misconduct) in acting as
Agent under the Finance Documents (unless the Agent has been reimbursed by
an Obligor pursuant to a Finance Document).
28.11 Resignation of the Agent
(a) The Agent may resign and appoint one of its Affiliates as successor by
giving notice to the Lenders and the Borrower.
(b) Alternatively the Agent may resign by giving notice to the Lenders and
the Company, in which case the Majority Lenders (after consultation
with the Company) may appoint a successor Agent.
(c) If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph (b) above within 30 days after notice of
resignation was given, the Agent (after consultation with the Company)
may appoint a successor Agent.
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such assistance
as the successor Agent may reasonably request for the purposes of
performing its functions as Agent under the Finance Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause 28.
Its successor and each of the other Parties shall have the same rights
and obligations amongst themselves as they would have had if such
successor had been an original Party.
(g) After consultation with the Company, the Majority Lenders may, by
notice to the Agent, require it to resign in accordance with paragraph
(b) above. In this event, the Agent shall resign in accordance with
paragraph (b) above.
28.12 Confidentiality
(a) In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be treated
as a separate entity from any other of its divisions or departments.
(b) If information is received by another division or department of the
Agent, it may be treated as confidential to that division or
department and the Agent shall not be deemed to have notice of it.
(c) Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor any of the Mandated Lead Arrangers is
obliged to disclose to any other person (i) any confidential
information or (ii) any other information if the disclosure would or
might in its reasonable opinion constitute a breach of any law or a
breach of a fiduciary duty.
28.13 Relationship with the Lenders
(a) The Agent may treat each Lender as a Lender, entitled to payments
under this Agreement and acting through its Facility Office unless it
has received not less than five Business Days prior notice from that
Lender to the contrary in accordance with the terms of this Agreement.
(b) Each Lender shall supply the Agent with any information required by
the Agent in order to calculate the Mandatory Cost in accordance with
Schedule 4 (Mandatory Cost formulae).
28.14 Credit appraisal by the Lenders
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms to the Agent and to each of the Mandated Lead
Arrangers that it has been, and will continue to be, solely responsible for
making its own independent appraisal and investigation of all risks arising
under or in connection with any Finance Document including but not limited
to:
(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document and any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in
connection with any Finance Document;
(c) whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or
in connection with any Finance Document, the transactions contemplated
by the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or
in connection with any Finance Document; and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent, any Party
or by any other person under or in connection with any Finance
Document, the transactions contemplated by the Finance Documents or
any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance
Document.
28.15 Agent's Management Time
Any amount payable to the Agent under Clause 18.3 (Indemnity to the Agent),
Clause 20 (Costs and expenses) and Clause 28.10 (Lenders' indemnity to the
Agent) shall include the cost of utilising the Agent's management time or
other resources and will be calculated on the basis of such reasonable
daily or hourly rates as the Agent may notify to the Borrower and the
Lenders, and is in addition to any fee paid or payable to the Agent under
Clause 15 (Fees).
29. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit, relief,
remission or repayment available to it or the extent, order and manner
of any claim; or
(c) oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.
30. SHARING AMONG THE LENDERS
30.1 Payments to Lenders
If a Lender (a "Recovering Lender") receives or recovers any amount from an
Obligor other than in accordance with Clause 31 (Payment mechanics) and
applies that amount to a payment due under the Finance Documents then:
(a) the Recovering Lender shall, within three Business Days, notify
details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in excess
of the amount the Recovering Lender would have been paid had the
receipt or recovery been received or made by the Agent and distributed
in accordance with Clause 31 (Payment mechanics), without taking
account of any Tax which would be imposed on the Agent in relation to
the receipt, recovery or distribution; and
(c) the Recovering Lender shall, within three Business Days of demand by
the Agent, pay to the Agent an amount (the "Sharing Payment") equal to
such receipt or recovery less any amount which the Agent determines
may be retained by the Recovering Lender as its share of any payment
to be made, in accordance with Clause 31.5 (Partial payments).
30.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other than
the Recovering Lender) in accordance with Clause 31.5 (Partial payments).
30.3 Recovering Lender's rights
(a) On a distribution by the Agent under Clause 30.2 (Redistribution of
payments), the Recovering Lender will be subrogated to the rights of
the Finance Parties which have shared in the redistribution.
(b) If and to the extent that the Recovering Lender is not able to rely on
its rights under paragraph (a) above, the relevant Obligor shall be
liable to the Recovering Lender for a debt equal to the Sharing
Payment which is immediately due and payable.
30.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering
Lender becomes repayable and is repaid by that Recovering Lender, then:
(a) each Lender which has received a share of the relevant Sharing Payment
pursuant to Clause 30.2 (Redistribution of payments) shall, upon
request of the Agent, pay to the Agent for account of that Recovering
Lender an amount equal to its share of the Sharing Payment (together
with an amount as is necessary to reimburse that Recovering Lender for
its proportion of any interest on the Sharing Payment which that
Recovering Lender is required to pay); and
(b) that Recovering Lender's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable to the reimbursing Lender for the amount so reimbursed.
30.5 Exceptions
(a) This Clause 30 shall not apply to the extent that the Recovering
Lender would not, after making any payment pursuant to this Clause,
have a valid and enforceable claim against the relevant Obligor.
(b) A Recovering Lender is not obliged to share with any other Lender any
amount which the Recovering Lender has received or recovered as a
result of taking legal or arbitration proceedings, if:
(i) it notified the other Lenders of the legal or arbitration
proceedings; and
(ii) the other Lender had an opportunity to participate in those legal
or arbitration proceedings but did not do so as soon as
reasonably practicable having received notice or did not take
separate legal or arbitration proceedings.
SECTION 11.
ADMINISTRATION
31. PAYMENT MECHANICS
31.1 Payments to the Agent
(a) On each date on which an Obligor or a Lender is required to make
a payment under a Finance Document, that Obligor or the relevant
Lender shall make the same available to the Agent (unless a
contrary indication appears in a Finance Document) for value on
the due date at the time and in such funds specified by the Agent
as being customary at the time for settlement of transactions in
the relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal financial
centre of the country of that currency (or, in relation to euro,
in a principal financial centre in a Participating Member State
or London) with such bank as the Agent specifies.
31.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for another
Party shall, subject to Clause 31.3 (Distributions to an Obligor) and
Clause 31.4 (Clawback) be made available by the Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account of
its Facility Office), to such account as that Party may notify to the Agent
by not less than five Business Days' notice with a bank in the principal
financial centre of the country of that currency (or, in relation to euro,
in the principal financial centre of a Participating Member State or
London).
31.3 Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with Clause
32 (Set-off)) apply any amount received by it for that Obligor in or
towards payment (on the date and in the currency and funds of receipt) of
any amount due from that Obligor under the Finance Documents or in or
towards purchase of any amount of any currency to be so applied.
31.4 Clawback
(a) Where a sum is to be paid to the Agent under the Finance
Documents for another Party, the Agent is not obliged to pay that
sum to that other Party (or to enter into or perform any related
exchange contract) until it has been able to establish to its
satisfaction that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to be
the case that the Agent had not actually received that amount,
then the Party to whom that amount (or the proceeds of any
related exchange contract) was paid by the Agent shall on demand
refund the same to the Agent together with interest on that
amount from the date of payment to the date of receipt by the
Agent, calculated by the Agent to reflect its cost of funds.
31.5 Partial payments
(a) If the Agent receives a payment that is insufficient to discharge all
the amounts then due and payable by an Obligor under the Finance
Documents, the Agent shall apply that payment towards the obligations
of that Obligor under the Finance Documents in the following order:
(i) first, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent and the Mandated Lead
Arrangers under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued
interest or commission due but unpaid under this Agreement;
(iii)thirdly, in or towards payment pro rata of any principal
due but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum
due but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by
an Obligor.
31.6 No set-off by the Obligors
All payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.
31.7 Business Days
(a) Any payment which is due to be made on a day that is not a Business
Day shall be made on the next Business Day in the same calendar month
(if there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or
an Unpaid Sum under this Agreement interest is payable on the
principal or Unpaid Sum at the rate payable on the original due date.
31.8 Currency of account
(a) Subject to paragraphs (b) to (e) below, the Base Currency is the
currency of account and payment for any sum due from an Obligor under
any Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum
shall be made in the currency in which that Loan or Unpaid Sum is
denominated on its due date.
(c) Each payment of interest shall be made in the currency in which the
sum in respect of which the interest is payable was denominated when
that interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be made in
the currency in which the costs, expenses or Taxes are incurred.
(e) Any amount expressed to be payable in a currency other than the Base
Currency shall be paid in that other currency.
31.9 Change of currency
(f) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank of
any country as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or
currency unit of that country designated by the Agent (after
consultation with the Borrower); and
(ii) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency unit
into the other, rounded up or down by the Agent (acting
reasonably).
(g) If a change in any currency of a country occurs, this Agreement will,
to the extent the Agent (acting reasonably and after consultation with
the Borrower) specifies to be necessary, be amended to comply with any
generally accepted conventions and market practice in the Relevant
Interbank Market and otherwise to reflect the change in currency.
32. SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party to
that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
33. NOTICES
33.1 Communications in writing
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter, electronic mail or telex.
33.2 Addresses
The address, fax number, electronic mail address and telex number (and the
department or officer, if any, for whose attention the communication is to
be made) of each Party for any communication or document to be made or
delivered under or in connection with the Finance Documents is:
(a) in the case of the Borrowers, the Parent and the Guarantor, that
identified with their names below;
(b) in the case of each Lender that notified in writing to the Agent on or
prior to the date on which it becomes a Party; and
(c) in the case of the Agent, the Euro Swingline Agent and the US
Swingline Agent, that identified with their names below,
or any substitute address, fax number, electronic mail address, telex
number or department or officer as the Party may notify to the Agent (or
the Agent may notify to the other Parties, if a change is made by the
Agent) by not less than five Business Days' notice.
33.3 Delivery
(a) Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will only be
effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the post
postage prepaid in an envelope addressed to it at that address;
or
(iii)if by way of telex, when despatched, but only if, at the time of
transmission, the correct answerback appears at the start and at
the end of the sender's copy of the notice; or
(iv) if by way of electronic mail when actually received in legible
form,
and, if a particular department or officer is specified as part of its
address details provided under Clause 33.2 (Addresses), if addressed to
that department or officer.
(b) Any communication or document to be made or delivered to the Agent
will be effective only when actually received by the Agent and then
only if it is expressly marked for the attention of the department or
officer identified with the Agent's signature below (or any substitute
department or officer as the Agent shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the Agent.
(d) Any communication or document made or delivered to the Company in
accordance with this Clause will be deemed to have been made or
delivered to each Obligor.
33.4 Notification of address, fax number, electronic mail address and
telex number
Promptly upon receipt of notification of an address, fax number, electronic
mail address and telex number or change of address, fax number, electronic
mail address or telex number pursuant to Clause 33.2 (Addresses) or
changing its own address, fax number, electronic mail address or telex
number, the Agent shall notify the other Parties.
33.5 English language
(a) Any notice given under or in connection with any Finance Document must
be in English.
(b) All other documents provided under or in connection with any Finance
Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Agent, accompanied
by a certified English translation and, in this case, the English
translation will prevail unless the document is a constitutional,
statutory or other official document.
34. CALCULATIONS AND CERTIFICATES
34.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
34.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error, conclusive
evidence of the matters to which it relates.
34.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 360 days or, in any case where the practice
in the Relevant Interbank Market differs, in accordance with that market
practice.
35. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
36. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise or the exercise of any
other right or remedy. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any rights or remedies provided by law.
37. AMENDMENTS AND WAIVERS
37.1 Required consents
(a) Subject to Clause 37.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of the
Majority Lenders and the Obligors and any such amendment or
waiver will be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
37.2 Exceptions
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "Majority Lenders" in Clause 1.1
(Definitions);
(ii) an extension to the date of payment of any amount under the
Finance Documents;
(iii)a reduction in the Applicable Margin or the amount of any
payment of principal, interest, fees or commission payable;
(iv) an increase in or an extension of any Commitment (other than
in accordance with Clause 11 (Extension of the Facility));
(v) a change to or a release of any Obligor, other than as
contemplated by Clause 27.4 (Resignation of a Borrower) or
permitted with Majority Lender consent by paragraph (b) of
Clause 27.2 (Additional Borrowers);
(vi) any provision which expressly requires the consent of all
the Lenders;
(vii)Clause 2.2 (Lenders' rights and obligations), Clause 26
(Changes to the Lenders) or this Clause 37; or
(viii) Clauses 30 (Sharing among the Lenders) and 31.5 (Partial
payments) or any provision requiring the pro rata nature of
disbursements by or payments to the Lenders,
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations
of the Agent or the Mandated Lead Arrangers may not be effected
without the consent of the Agent or the Mandated Lead Arrangers.
38. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were
on a single copy of the Finance Document.
SECTION 12.
governing law and enforcement
39. GOVERNING LAW
This Agreement is governed by English law.
40. ENFORCEMENT
40.1 Jurisdiction of English courts
(a) The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement (including
a dispute regarding the existence, validity or termination of this
Agreement) (a "Dispute").
(b) The Parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes and accordingly no Party will
argue to the contrary.
(c) This Clause 40.1 is for the benefit of the Finance Parties only. As a
result, no Finance Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To the
extent allowed by law, the Finance Parties may take concurrent
proceedings in any number of jurisdictions.
40.2 Service of process
Without prejudice to any other mode of service allowed under any relevant
law, each Obligor:
(a) irrevocably appoints International Flavours & Fragrances IFF (Great
Britain) Ltd. as its agent for service of process in relation to any
proceedings before the English courts in connection with any Finance
Document; and
(b) agrees that failure by a process agent to notify the relevant Obligor
of the process will not invalidate the proceedings concerned.
40.3 Waiver of Immunity
Each Obligor waives generally all immunity it or its assets or revenues may
otherwise have in any jurisdiction, including immunity in respect of:
40.3.1 the giving of any relief by way of injunction or order for specific
performance or for the recovery of assets or revenues; and
40.3.2 the issue of any process against its assets or revenues for the
enforcement of a judgment or, in an action in rem, for the arrest,
detention or sale of any of its assets and revenues.
41. COMPLETE AGREEMENT
The Finance Documents contain the complete agreement between the Parties on
the matters to which they relate and supersede all prior commitments,
agreements and understandings, whether written or oral, on those matters.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
SCHEDULE 1
THE ORIGINAL PARTIES
Part A
The Original Borrowers
Original Tranche A Borrower Relevant Jurisdiction Registration Number (or
equivalent, if any)
International Flavors & Fragrances, New York (US) -
Inc.
Original Tranche B Borrowers Registration Number (or
equivalent, if any)
International Flavors & Fragrances Luxembourg B 79234
(Luxembourg) S.a.r.l.
International Flavors & Fragrances The Netherlands 32001848
I.F.F. (Nederland) B.V.
International Flavors & Fragrances The Netherlands 32082880
(Nederland) Holding B.V.
Irish Flavours and Fragrances Ltd Ireland 60601
IFF Benicarlo SA Spain CS-889
International Flavours & Fragrances England 00214174
I.F.F. (Great Britain) Ltd.
Bush Boake Allen Holdings (UK) Ltd. England 1648477
Part BI
The Original Lenders
Name of Original Lender Tranche A Commitment Tranche B Commitment
(US$) (EUR)
Citibank, N.A., New York Branch 37,383,512 -
Fortis Capital Corp 37,383,512 -
Fortis Bank (Nederland) N.V. - 42,724,015
Bank of America, N.A. 28,602,151 -
Bank of Tokyo-Mitsubishi Trust Company 28,602,151 -
BNP Paribas Amsterdam Branch 28,602,151 32,688,172
ING Capital LLC 28,602,151 -
JPMorgan Chase Bank, N.A. 28,602,151
Wachovia Bank, National Association 28,602,151 32,688,172
Banco Bilbao Vizcaya Argentaria S.A. 20,071,685 22,939,068
Cooperatieve Centrale Raiffeisen-Boerenleenbank BA 20,071,685 22,939,068
Banca Nazionale del Lavoro S.p.A., New York Branch 11,189,964 -
Banque LBLux S.A. 11,189,964 12,788,530
Sanpaolo IMI Bank Ireland PLC 11,189,964 12,788,530
Societe Generale, New York Branch 11,189,964 -
Standard Chartered Bank 11,189,964 12,788,530
The Bank of New York, Grand Cayman Island 7,526,880 8,602,152
Banca Nazionale del Lavoro S.p.A., London Branch - 12,788,530
Banc of America Securities Limited - 32,688,172
Bank of Tokyo-Mitsubishi (Holland) NV - 32,688,172
Citibank International plc, London - 42,724,015
ING Bank N.V. - 32,688,172
J.P. Morgan Europe Limited - 32,688,172
Societe Generale, Paris Branch - 12,788,530
US$ 350,000,000 EUR 400,000,000
Part BII
The Original Swingline Lenders
Name of Original Swingline Lender Dollar Swingline Euro Swingline Commitment
Commitment (EUR)
(US$)
Citibank, N.A., New York Branch 7,586,557 -
Fortis Capital Corporation 7,586,557 -
Bank of America, N.A. 5,804,481 -
Bank of Tokyo-Mitsubishi Trust Company 5,804,481 -
BNP Paribas 5,804,481 -
JPMorgan Chase Bank, N.A. 5,804,481 -
Wachovia Bank, National Association 5,804,481 5,804,481
Banc of America Securities Limited - 5,804,481
Bank of Tokyo-Mitsubishi (Holland) NV - 5,804,481
BNP Paribas Amsterdam Branch - 5,804,481
Citibank International plc, London - 7,586,557
Fortis Bank (Nederland) N.V. - 7,586,557
ING Bank N.V. 5,804,481 5,804,481
J.P. Morgan Europe Limited - 5,804,481
TOTAL US$ 50,000,000 EUR 50,000,000
SCHEDULE 2
CONDITIONS PRECEDENT
Part A
Conditions Precedent to Initial Utilisation
1. Obligors and Parent
(a) A copy of the up-to-date constitutional documents (including, in
relation to IFF Benicarlo S.A., its up-to-date by-laws) of each
Original Borrower.
(b) In respect of each Dutch Obligor, a copy of the articles of
association (statuten) and deed of incorporation (oprichtings
akte) of each Dutch Obligor as well as an extract (uittreksel)
from the relevant Chamber of Commerce (Kamer van Koophandel) of
such Dutch Obligor(s).
(c) A copy of the certificate of incorporation of the Parent
certified a true copy by the Secretary of State of New York on or
about the date hereof.
(d) A copy of the by-laws of the Parent.
(e) A certificate of good standing in relation to the Parent issued
by the Secretary of State of the State of New York on or about
the date hereof.
(f) A copy of a resolution signed by the authorised manager(s) of
each Original Obligor (or a copy of the certificate of the
minutes of a meeting of the board of managers of each Original
Obligor incorporated in Spain) or a copy of the minutes of a
meeting of the board of managers or board of directors (as the
case may be) of each Original Obligor or a copy of a written
resolution of the board of directors of each Original Obligor:
(i) approving the terms of, and the transactions contemplated
by, the Finance Documents to which it is a party and
resolving that it execute the Finance Documents to which it
is a party;
(ii) authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf;
(iii)authorising a specified person or persons, on its behalf,
to sign and/or despatch all documents and notices
(including, any Utilisation Request) to be signed and/or
despatched by it under or in connection with the Finance
Documents to which it is a party; and
(iv) confirming that the entry into and performance of the
transactions contemplated by the Finance Documents to which
it is a party is in its best corporate interest.
(g) A copy of the resolution of the shareholders of each Dutch
Obligor approving the resolutions of the board of managing
directors and the transactions contemplated thereby and
appointing an authorised person to represent the relevant Dutch
Obligor in case of a conflict of interest.
(h) A solvency certificate signed by an authorised signatory of the
Company.
(i) A specimen of the signature of each person authorised by the
resolutions referred to in paragraph (f) above.
(j) A certificate of each Original Obligor which is a Tranche A
Borrower (signed by an authorised signatory) confirming that
borrowing the Total Tranche A Commitments would not cause any
borrowing or similar limit binding on such Original Obligor to be
exceeded.
(k) A certificate of each Original Obligor which is a Tranche B
Borrower (signed by an authorised signatory) confirming that
borrowing the Total Tranche B Commitments would not cause any
borrowing or similar limit binding on such Original Obligor to be
exceeded.
(l) A certificate of the Guarantor (signed by an authorised
signatory) confirming that guaranteeing the Total Commitments
would not cause any guarantee or similar limit binding on the
Guarantor to be exceeded.
(m) A certificate of an authorised signatory of each Original Obligor
certifying that each copy document relating to it specified in
this Schedule 2 is correct, complete and in full force and effect
as at a date no earlier than the date of this Agreement.
(n) Such other evidence as may be required to ensure that the Finance
Parties are in compliance with the Wet Identificatie Financiele
Dienstverlening.
(o) A copy of the PE-1 form filed by IFF Benicarlo S.A. with the Bank
of Spain providing a Financial Transaction Number ("Numero de
Operacion Financiera" or "NOF") in relation to the Tranche B
Revolving Facility.
2. Legal opinions
(a) A legal opinion of Clifford Chance LLP, legal advisers to the
Mandated Lead Arrangers as to matters of English law,
substantially in the form distributed to the Original Lenders
prior to signing this Agreement.
(b) A legal opinion of Kremer Associes & Clifford Chance, legal
advisers to the Mandated Lead Arrangers as to matters of
Luxembourg law, substantially in the form distributed to the
Original Lenders prior to signing this Agreement.
(c) A legal opinion of Clifford Chance LLP, legal advisors to the
Mandated Lead Arrangers as to matters of US law, substantially in
the form distributed to the Original Lenders prior to signing
this Agreement.
(d) A legal opinion of Clifford Chance LLP, legal advisers to the
Mandated Lead Arrangers as to matters of Dutch law, substantially
in the form distributed to the Original Lenders prior to signing
this Agreement.
(e) A legal opinion of McCann FitzGerald, legal advisers to the
Mandated Lead Arrangers as to matters of Irish law, substantially
in the form distributed to the Original Lenders prior to signing
this Agreement.
(f) A legal opinion of Clifford Chance LLP, legal advisers to the
Mandated Lead Arrangers as to matters of Spanish law,
substantially in the form distributed to the Original Lenders
prior to signing this Agreement.
3. Other documents and evidence
(a) Evidence that any process agent referred to in Clause 40.2
(Service of process) has accepted its appointment as process
agent for the Obligors.
(b) A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable
(if it has notified the Parent accordingly) in connection with
the entry into and performance of the transactions contemplated
by any Finance Document or for the validity and enforceability of
any Finance Document.
(c) The financial statements referred to in Clause 22.5 (Financial
Statements).
(d) Evidence that the fees, costs and expenses then due from the
Parent and the Company pursuant to Clause 15 (Fees) and Clause 20
(Costs and expenses) have been paid or will be paid by the first
Utilisation Date.
(e) Evidence that, upon first Utilisation of the Facility, the
facilities granted to the Parent pursuant to the Existing 2001
Facility will be prepaid and cancelled in full.
(f) Evidence that, upon first Utilisation of the Facility, the
facilities granted to the Company pursuant to the Existing 2002
Facility will be prepaid and cancelled in full.
Part B
Conditions Precedent required to be delivered
by an Additional Borrower
1. An Accession Letter, duly executed by the Additional Borrower and the
Parent.
2. A copy of the constitutional documents of the Additional Borrower.
3. In respect of each Additional Borrower which is to become a Dutch Obligor,
a copy of the articles of association (statuten) and deed of incorporation
(oprichtings akte) of each Dutch Obligor as well as an extract (uittreksel)
from the relevant Chamber of Commerce (Kamer van Koophandel) of such
Additional Borrower.
4. A copy of a resolution of the board of directors of the Additional
Borrower:
(a) approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it
execute the Accession Letter;
(b) authorising a specified person or persons to execute the Accession
Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices (including, in
relation to an Additional Borrower, any Utilisation Request or
Selection Notice) to be signed and/or despatched by it under or in
connection with the Finance Documents.
5. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 4 above.
6. If applicable, a copy of the resolution of the board of supervisory
directors of each Additional Borrower which is to become a Dutch Obligor
incorporated in The Netherlands approving the resolutions of the board of
managing directors and the transactions contemplated thereby and appointing
an authorised person to represent the relevant Additional Borrower in case
of a conflict of interest.
7. A copy of the resolution of the shareholders of each Additional Borrower
which is to become a Dutch Obligor approving the resolutions of the board
of managing directors and the transactions contemplated thereby and
appointing an authorised person to represent the relevant Additional
Borrower in case of a conflict of interest.
8. If applicable, a copy of (i) the request for advice from each works council
with jurisdiction over the transactions contemplated by this Agreement and
(ii) the positive advice from such works council which contains no
condition, which if complied with, could result in a breach of the Finance
Documents.
9. If the Additional Borrower is to become a Tranche A Borrower, a certificate
of the Additional Borrower (signed by a director) confirming that borrowing
the Total Tranche A Commitments would not cause any borrowing or similar
limit binding on it to be exceeded.
10. If the Additional Borrower is to become a Tranche B Borrower, a certificate
of the Additional Borrower (signed by a director) confirming that borrowing
the Total Tranche B Commitments would not cause any borrowing or similar
limit binding on it to be exceeded.
11. A certificate of an authorised signatory of the Additional Borrower
certifying that each copy document listed in this Part B of Schedule 2 is
correct, complete and in full force and effect as at a date no earlier than
the date of the Accession Letter.
12. A copy of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection with
the entry into and performance of the transactions contemplated by the
Accession Letter or for the validity and enforceability of any Finance
Document.
13. A legal opinion of the legal advisers to the Mandated Lead Arrangers and
the Agent in England.
14. If the Additional Borrower is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the Arranger
and the Agent in the jurisdiction in which the Additional Borrower is
incorporated.
15. If the proposed Additional Borrower is incorporated in a jurisdiction other
than England and Wales, evidence that the agent for service of process
specified in Clause 40.2 (Service of process), if not an Obligor, has
accepted its appointment in relation to the proposed Additional Borrower.
16. In relation to any relevant Additional Borrower incorporated in Spain, and
if applicable, a copy of the PE-1 form filed by such Additional Borrower
with the Bank of Spain providing a Financial Transaction Number ("Numero de
Operacion Financiera" or "NOF") in relation to the relevant Facility.
SCHEDULE 3
UTILISATION REQUEST
Part A
Revolving Facility Utilisation Request
From: [Borrower]
To: Citibank International plc
Dated:
Dear Sirs
International Flavors & Fragrances Inc. and certain of its Subsidiaries -
EUR 400,000,000 and US$ 350,000,000 dual tranche
multicurrency revolving credit facility agreement dated
23 November 2005 (the "Facility Agreement")
1. We wish to borrow a Revolving Facility Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is
not a Business Day,
the next Business Day)
Facility: [ ]
Currency of Revolving Facility Loan: [ ]
Amount: [ ] or, if less, the Available
Facility
Interest Period: [ ]
2. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
3. The proceeds of this Revolving Facility Loan should be credited to
[account].
4. This Utilisation Request is irrevocable.
Yours faithfully
.......................................
authorised signatory for
[Name of relevant Borrower]
Part B
Swingline Facility Utilisation Request
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
International Flavors & Fragrances Inc. and certain of its Subsidiaries -
EUR 400,000,000 and US$ 350,000,000 dual tranche
multicurrency revolving credit facility agreement dated
23 November 2005 (the "Facility Agreement")
2. We wish to borrow a Swingline Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a [New York/
Brussels] Business Day, the next
[New York/Brussels] Business Day)
Facility to be utilised: [Euro Swingline Facility/Dollar Swingline
Facility]
Amount and currency: [ ] or, if less, the Available Euro
Swingline Facility/Dollar Swingline Facility
Interest Period: [ ]
3. We confirm that each condition specified in Clause 7.4 (Swingline Lenders'
participation) is satisfied on the date of this Utilisation Request.
4. The proceeds of this Swingline Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
......................................
authorised signatory for
[name of relevant Borrower]
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Lender, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Lenders' Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant
Loan) and will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the Agent. This percentage will be certified by that Lender in its
notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender's Participation in all Loans made
from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from
that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a domestic sterling Loan:
AB + C(B-D)+E x 0.01 per cent. per annum
---------------------
100 - (A + C)
(b) in relation to a Loan in any currency other than domestic sterling:
E x 0.01 per cent. per annum.
--------
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be
in excess of any stated minimum) which that Lender is from time
to time required to maintain as an interest free cash ratio
deposit with the Bank of England to comply with cash ratio
requirements.
B is the percentage rate of interest (excluding the Applicable
Margin and the Mandatory Cost and, if the Loan is an Unpaid Sum,
the additional rate of interest specified in paragraph (a) of
Clause 12.4 (Default interest)) payable for the relevant Interest
Period on the Loan.
C is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England
to the Agent on interest bearing Special Deposits.
E is the rate of charge payable by that Lender to the Financial
Services Authority pursuant to the Fees Rules (calculated for
this purpose by the Agent as being the average of the fee tariffs
specified in the Fee Rules under the activity group A.1 Deposit
acceptors, ignoring any minimum fee or zero rated fee required
pursuant to the Fee Rules) and expressed in pounds per
(pound)1,000,000 of the Fee Base of that Lender.
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the meanings given
to them from time to time under or pursuant to the Bank of England Act
1998 or (as may be appropriate) by the Bank of England;
(b) "Fees Rules" means the rules on 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; and
(c) "Tariff Base" has the meaning given to it, and will be calculated in
accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula
as 5 and not as 0.05). A negative result obtained by subtracting D from B
shall be taken as zero. The resulting figures shall be rounded to four
decimal places.
7. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information in writing
on or prior to the date on which it becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of its Facility
Office; and
(b) any other information that the Agent may reasonably require for such
purpose.
Each Lender shall promptly notify the 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 Lender for the purpose of A, C
and E above shall be determined by the Agent based upon the information
supplied to it pursuant to paragraph 7 above and on the assumption that,
unless a Lender notifies the Agent to the contrary, each Lender's
obligations in relation to cash ratio deposits, Special Deposits and the
Fees Rules are the same as those of a typical bank from its jurisdiction of
incorporation with a Facility Office in the same jurisdiction as its
Facility Office.
9. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by any
Lender pursuant to paragraphs 3 and 7 above is true and correct in all
respects.
10. The Agent shall distribute the additional amounts received as a result of
the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate
for each Lender based on the information provided by each Lender pursuant
to paragraphs 3 and 7 above.
11. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all Parties.
12. The Agent may from time to time, after consultation with the Borrower and
the Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all Parties.
SCHEDULE 5
FORM OF TRANSFER CERTIFICATES
Part I
To: Citibank International plc as Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender]
(the "New Lender")
Dated:
International Flavors & Fragrances Inc. and certain of its Subsidiaries
- EUR 400,000,000 and US$ 350,000,000 dual tranche
multicurrency revolving credit facility agreement dated
23 November 2005 (the "Facility Agreement")
1. We refer to Clause 26.5 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing Lender
and the New Lender transferring by novation all or part of the
Existing Lender's Commitment, rights and obligations referred to in
the Schedule in accordance with Clause 26.5 (Procedure for transfer).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 33.2 (Addresses)
are set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 26.4 (Limitation of
responsibility of Existing Lenders).
3. This Transfer Certificate is governed by English law.
4. The New Lender explicitly declares and represents that on the Transfer Date
it is a Professional Market Party and that is aware that:
(a) it therefore does not benefit from the (creditor) protection under the
Dutch Banking Act; and
(b) each Borrower incorporated in the Netherlands has relied upon this
representation.
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments,]
[Existing Lender] [New Lender]
By: By
This Transfer Certificate is accepted by the Agent and the Transfer Date
is confirmed as [ ].
[Agent]
By
Part II
LMA Transfer Certificate (Par)
BANK: Date:
TRANSFEREE:
This Transfer Certificate is entered into pursuant to (i) the agreement (the
"Sale Agreement") evidenced by the Confirmation dated between the Bank and the
Transferee (acting directly or through their respective agents) and (ii) the
Credit Agreement.
On the Transfer Date, the transfer by way of novation from the Bank to the
Transferee on the terms set out herein and in the Credit Agreement shall become
effective subject to:-
(i) the Sale Agreement and the terms and conditions incorporated in the
Sale Agreement;
(ii) the terms and conditions annexed hereto; and
(i) the schedule annexed hereto,
all of which are incorporated herein by reference.
The Bank The Transferee
[ ] [ ]
By: By:
The Schedule
Credit Agreement Details:
Borrower: International Flavors & Fragrances (Luxembourg) S.a.r.l..;
International Flavors & Fragrances, Inc.;
International Flavors & Fragrances I.F.F. (Nederland) B.V.;
International Flavors & Fragrances (Nederland) Holding B.V.;
Irish Flavours and Fragrances Ltd;
IFF Benicarlo SA;
International Flavours & Fragrances I.F.F. (Great Britain)
Ltd.; and
Bush Boake Allen Holdings (UK) Ltd.
[Specify additional Borrowers]
Credit Agreement Dated 23 November 2005
Guarantor: International Flavors & Fragrances Inc.
Agent Bank: Citibank International plc
Security: [ ] No [ ]Yes (specify) ____________________
Total Facility Amount: EUR 400,000,000 and US$350,000,000
Governing Law: English
Additional Information: _________________________________________
Transfer Details:
Name of Tranche Facility: _________________ __________________
Nature (Revolving, Term, Acceptances
Guarantee/Letter of Credit, Other): _________________ _________________
Final Maturity: _________________ _________________
Participation Transferred
Commitment transferred1 _________________ __________________
Drawn Amount (details below):1 _________________ __________________
Undrawn Amount:1 _________________ __________________
Settlement Date: ________________
Details of outstanding Credits1
Specify in respect of each Credit: __________________
Transferred Portion (amount): __________________
Tranche/Facility: ___________
------
Nature: [ ]Term [ ]Revolver [ ]Acceptance [ ] Guarantee/Letter of Credit
[ ]Other(specify)_________________
[ ]Details of other Credits are set out on the attached sheet
Administration Details
Bank's Receiving Account: ________________________________
Transferee's Receiving Account: ________________________________
1 As the date of the Transfer Certificate
Addresses
Bank Transferee
[ ] [ ]
Address: Address:
Telephone: Telephone:
Facsimile: Facsimile:
Telex: Telex:
Attn/Ref: Attn/Ref:
TERMS AND CONDITIONS
These are the Terms and Conditions applicable to the transfer certificate
including the Schedule thereto (the "Transfer Certificate") to which they are
annexed.
1. Interpretation
In these Terms and Conditions words and expressions shall (unless otherwise
expressly defined herein) bear the meaning given to them in the Transfer
Certificate, the Credit Agreement or the Sale Agreement.
2. Transfer
The Bank requests the Transferee to accept and procure the transfer by
novation of all or a part (as applicable) of such participation of the Bank
under the Credit Agreement as is set out in the relevant part of the
Transfer Certificate under the heading "Participation Transferred" (the
"Purchased Assets") by counter-signing and delivering the Transfer
Certificate to the Agent at its address for the service of notice specified
in the Credit Agreement. On the Transfer Date the Transferee shall pay to
the Bank the Settlement Amount as specified in the pricing letter between
the Bank and the Transferee dated the date of the Transfer Certificate
(adjusted, if applicable, in accordance with the Sale Agreement) and
completion of the transfer will take place.
3. Effectiveness of Transfer
The Transferee hereby requests the Agent to accept the Transfer Certificate
as being delivered to the Agent pursuant to and for the purposes of the
Credit Agreement so as to take effect in accordance with the terms of the
Credit Agreement on the Transfer Date or on such later date as may be
determined in accordance with the terms thereof.
4. Transferee's Undertaking
The Transferee hereby undertakes with the Agent and the Bank and each of
the other parties to the Credit Documentation that it will perform in
accordance with its terms all those obligations which by the terms thereof
will be assumed by it after delivery of the Transfer Certificate to the
Agent and satisfaction of the conditions (if any) subject to which the
Transfer Certificate is to take effect.
5. Payments
5.1 Place
All payments by either party to the other under the Transfer Certificate
shall be made to the Receiving Account of that other party. Each party may
designate a different account as its Receiving Account for payment by
giving the other not less than five Business Days notice before the due
date for payment.
5.2 Funds
Payments under the Transfer Certificate shall be made in the currency in
which the amount is denominated for value on the due date at such times and
in such funds as are customary at the time for settlement of transactions
in that currency.
6. The Agent
The Agent shall not be required to concern itself with the Sale Agreement
and may rely on the Transfer Certificate without taking account of the
provisions of such agreement.
7. Assignment of Rights
The Transfer Certificate shall be binding upon and enure to the benefit of
each party and its successors and permitted assigns provided that neither
party may assign or transfer its rights thereunder without the prior
written consent of the other party.
8. Governing Law and Jurisdiction
The Transfer Certificate (including, without limitation, these Terms and
Conditions) shall be governed by and construed in accordance with the laws
of England, and the parties submit to the non-exclusive jurisdiction of the
English courts.
Each party irrevocably appoints the person described as process agent (if
any) specified in the Sale Agreement to receive on its behalf service of
any action, suit or other proceedings in connection with the Transfer
Certificate. If any person appointed as process agent ceases to act for any
reason the appointing party shall notify the other party and shall promptly
appoint another person incorporated within England and Wales to act as its
process agent.
SCHEDULE 6
TIMETABLES
Revolving Facility Loans Loans in Base Loans in other currencies
Currency
Agent notifies the Borrower if a currency is - U-4
approved as an Optional Currency in accordance
with Clause 4.3 (Conditions relating to
Optional Currencies)
Delivery of a duly completed Utilisation U-3 U-3
Request (Clause 5.1 (Delivery of a Utilisation
Request)) 11.00 am 11.00 am
Agent determines (in relation to a - U-3
Utilisation) the Base Currency Amount of the
Loan, if required under Clause 5.4 (Lenders' Noon
participation)
Agent notifies the Lenders of the Loan in U-3 U-3
accordance with Clause 5.4 (Lenders'
participation) 3.00 pm 3.00 pm
Agent receives a notification from a Lender U-2
under Clause 6.2 (Unavailability of a currency)
9.30 pm
Agent gives notice in accordance with U-2
Clause 6.2 (Unavailability of a currency)
10.30 am
LIBOR or EURIBOR is fixed Quotation Day as Quotation Day as of 11:00
of 11:00 am am London
Brussels time in time in respect
respect of of LIBOR
EURIBOR
Swingline Facility Loans Euro Swingline US Dollar Swingline Loans
Loans
Delivery of a duly completed Utilisation U U
Request (Clause 7.2 (Delivery of a Utilisation
Request for Swingline Loans)) 10.00 am London 11.00 am New York time
time
Agent determines (in relation to a 11.00 am London -
Utilisation) the Base Currency Amount of the time
Swingline Loan, if required under Clause 7.4
(Swingline Lenders' participation)
Agent determines the Federal Funds Rate or the 11.00 am London 12 noon New York time
Euro Swingline Rate and notifies the Swingline time
Lenders and the relevant Borrower under Clause
8.3 (Interest)
"U" = date of Utilisation
"U - X" = X Business Days prior to date of Utilisation
SCHEDULE 7
SUBSIDIARY GUARANTEE DOCUMENTS
(a) A copy of the memorandum and articles of association or certificate of
incorporation of the Subsidiary Guarantor.
(b) A copy of a resolution of the board of directors of the Subsidiary
Guarantor:
(i) approving the terms of, and the transactions contemplated by, the
Subsidiary Guarantee and resolving that it execute the Subsidiary
Guarantee;
(ii) authorising a specified person or persons to execute and deliver
the Subsidiary Guarantee; and
(iii)authorising a specified person or persons on its behalf, to sign
or dispatch all documents to be signed or dispatched by it under
or in connection with this Agreement and the Subsidiary
Guarantee.
(c) A certificate of a director of the Subsidiary Guarantor certifying
that execution and delivery of the Subsidiary Guarantee would not
cause any borrowing limit binding on it to be exceeded.
(d) A specimen of the signature of each person authorised by the
resolutions referred to in paragraph (b) above.
(e) A certificate of an authorised signatory of the Subsidiary Guarantor
certifying that each document specified in this Schedule 7 is correct,
complete and in full force and effect.
(f) Evidence that any process agent referred to in Clause 40.2 (Service of
process) has accepted its appointment as process agent for the
Subsidiary Guarantor.
SCHEDULE 8
FORM OF ACCESSION LETTER
To: [ ] as Agent
From: [Subsidiary] and [Parent]
Dated:
Dear Sirs
International Flavors & Fragrances Inc. and certain of its Subsidiaries -
EUR 400,000,000 and US$ 350,000,000 dual tranche
multicurrency revolving credit facility agreement dated
23 November 2005 (the "Facility Agreement")
1. We refer to the Agreement. This is an Accession Letter. Terms defined
in the Agreement have the same meaning in this Accession Letter unless
given a different meaning in this Accession Letter.
2. [Subsidiary] agrees to become an Additional Borrower and to be bound
by the terms of the Agreement as an Additional Borrower pursuant to
Clause 27.2 (Additional Borrowers) of the Agreement. [Subsidiary] is a
company duly incorporated under the laws of [name of relevant
jurisdiction].
3. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
4. This Accession Letter is governed by English law.
[Parent] [Subsidiary]
SCHEDULE 9
FORM OF RESIGNATION LETTER
To: [o] as Agent
From: [resigning Obligor] and [Company]
Dated:
Dear Sirs
International Flavors & Fragrances Inc. and certain of its Subsidiaries -
EUR 400,000,000 and US$ 350,000,000 dual tranche
multicurrency revolving credit facility agreement dated
23 November 2005 (the "Facility Agreement")
1. We refer to the Facility Agreement. This is a Resignation Letter.
Terms defined in the Facility Agreement have the same meaning in this
Resignation Letter unless given a different meaning in this
Resignation Letter.
2. Pursuant to Clause 27.4 (Resignation of a Borrower), we request that
[resigning Obligor] be released from its obligations as a Borrower
under the Facility Agreement.
3. We confirm that no Default is continuing or would result from the
acceptance of this request; and
4. This Resignation Letter is governed by English law.
International Flavors & Fragrances [resigning Obligor]
(Luxembourg) S.a.r.l.
By: By:
SIGNATURES
THE COMPANY
INTERNATIONAL FLAVORS & FRAGRANCES (LUXEMBOURG) S.A.R.L
By: /s/Jan Ambergen
Title: Treasury Manager Europe
Address: 6 Rue de Mamer
L-8081 Bertrange, Luxembourg
Fax: + 35 2 26 11 41 41
Tel: + 35 2 26 11 41 1
Attention: Iain Campbell
THE ORIGINAL BORROWERS
INTERNATIONAL FLAVORS & FRAGRANCES INC.
By: /s/Jeroen H.M. van Noorden
Title: VP Legal Affairs Europe
Address: 521 West 57th St., New York, NY 10019
Fax: + 1 212 708 7191
Tel: + 1 212 765 5500
Attention: Dennis Meany
INTERNATIONAL FLAVORS & FRAGRANCES (LUXEMBOURG) S.A.R.L
By: /s/Jan Ambergen
Title: Treasury Manager Europe
Address: 6 Rue de Mamer
L-8081 Bertrange, Luxembourg
Fax: + 35 2 26 11 41 41
Tel: + 35 2 26 11 41 1
Attention: Iain Campbell
INTERNATIONAL FLAVORS & FRAGRANCES I.F.F. (Nederland) B.V.
By: /s/Jan Ambergen
Title: Treasury Manager Europe
Address: P.O. Box 309
1200 AH Hilversum
The Netherlands
Fax: + 31 (0)35 6883 202
Tel: + 31 (0)35 6883 911
Attention: Jeroen van Noorden
INTERNATIONAL FLAVORS & FRAGRANCES (NEDERLAND) HOLDING B.V.
By: /s/Jan Ambergen
Title: Treasury Manager Europe
Address: P.O. Box 309
1200 AH Hilversum
The Netherlands
Fax: + 31 (0)35 6883 202
Tel: + 31 (0)35 6883 911
Attention: Jeroen van Noorden
IRISH FLAVOURS AND FRAGRANCES LTD
By: /s/Jan Ambergen
Title: Treasury Manager Europe
Address: Industrial Estate, Drogheda, Co. Louth
Fax: + 353 (0)41 983 5119
Tel: + 353 (0)41 983 1031
Attention: Martin Tolan
IFF BENICARLO SA
By: /s/Jan Ambergen
Title: Treasury Manager Europe
Address: Avenida Felipe Klein, 2
Benicarlo - 12580 - Castellon
Fax: +34 (0)964 473 411
Tel: +34 (0)964 470 200
Attention: Raul Mate
INTERNATIONAL FLAVOURS & FRAGRANCES I.F.F. (GREAT BRITAIN) LTD
By: /s/Jan Ambergen
Title: Treasury Manager Europe
Address: Duddery Hill, Haverhill, Suffolk, CB9 8LG
United Kingdom
Fax: + 44 (0)1440 76 1599
Tel: + 44 (0)1440 71 5000
Attention: Philip Gardner
BUSH BOAKE ALLEN HOLDINGS (UK) LTD
By: /s/Jan Ambergen
Title: Treasury Manager Europe
Address: Duddery Hill, Haverhill, Suffolk, CB9 8LG
United Kingdom
Fax: + 44 (0)1440 76 1599
Tel: + 44 (0)1440 71 5000
Attention: Philip Gardner
THE GUARANTOR
INTERNATIONAL FLAVORS & FRAGRANCES INC.
By: /s/Jeroen H.M. van Noorden
Title: VP Legal Affairs Europe
Address: 521 West 57th St., New York NY 10019
Fax: + 1 212 708 7191
Tel: + 1 212 765 5500
Attention: Dennis Meany
THE PARENT
INTERNATIONAL FLAVORS & FRAGRANCES INC.
By: /s/Jeroen H.M. van Noorden
Title: VP Legal Affairs Europe
Address: 521 West 57th St., New York NY 10019
Fax: + 1 212 708 7191
Tel: + 1 212 765 5500
Attention: Dennis Meany
THE MANDATED LEAD ARRANGERS
CITIGROUP GLOBAL MARKETS LIMITED
By: /s/Paul Gibbs
Title: Vice President
FORTIS BANK S.A./N.V.
By: /s/Patrick Delvaux
Title: Director Global Chemicals & Pharma Group
bank of America, n.a.
By: /s/Irene Bertozzi Bartenstein
Title: Director
BANK OF TOKYO-MITSUBISHI
represented by
BANK OF TOKYO-MITSUBISHI trust company
By: /s/Chimie T. Pempa
Title: Assistant Vice President
Address: 1251 Avenue of the Americas
Fax: + (212) 782 6440
Tel: + (212) 782 4340
and
BANK OF TOKYO-MITSUBISHI (Holland) NV
By: /s/ N. Kato
Title: Managing Director & DGM
Address:
Fax: + 31 (0) 20 679 1016
Tel: + 31 (0)20 573 7907
and
BNP PARIBAS
By: /s/Michel de Vibraye
Title: Head of Territory, The Netherlands
ING BANK N.V.
By: /s/Arnold M.W. Esser
Title: Managing Director
J.P. MORGAN securities inc.
By: /s/Dale Akinla
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/Denis Waltrich
Title: Associate
For the purposes of the Dutch Banking Act, each Lender expressly confirms the
representations given by it in Clause 2.3 (Lenders' PMP representations).
THE ORIGINAL LENDERS
Citibank, N.A., New York Branch
By: /s/Stuart G. Miller
Title: Managing Director
Fortis Capital Corporation
By: /s/John W. Deegan
Title: Senior Vice President
Bank of America, N.A.
By: /s/Irene Bertozzi Bartenstein
Title: Director
Bank of Tokyo-Mitsubishi Trust Company
By: /s/Chimie T. Pempa
Title: Assistant Vice President
BNP Paribas Amsterdam Branch
By: /s/Michel de Vibraye
Title: Head of Territory, The Netherlands
ING Capital LLC
By: /s/Willem Pijpers
Title: Managing Director
JPMorgan Chase Bank, N.A.
By: /s/Susan H. Atha
Title: Vice President
Wachovia Bank, National Association
By: /s/Denis Waltrich
Title: Associate
Banco Bilbao Vizcaya Argentaria S.A.
By: /s/Javier Ruiz
Title: Relationship manager
Cooperatieve Centrale Raiffeisen-Boerenleenbank BA
By: /s/ C. Rodenbergh
Title: Executive Vice President
Banca Nazionale del Lavoro S.p.A., New York Branch
By: /s/Donna La Spina
Title: Relationship Manager
Banque LBLux S.A.
By: /s/Herbert Weynand
Title: Managing Director
Sanpaolo IMI Bank Ireland PLC
By: /s/Pier Carlo Arena
Title: Managing Director
Societe Generale, New York Branch
By: /s/Geoffroy Teyssonniere de Gramont
Title: Vice President
Standard Chartered Bank
By: /s/Richard L. van de Berghof
Title: Senior Vice President
Standard Chartered Bank
By: /s/Robert K. Reddington
Title: AVR/Credit Documentation/Credit Risk Control
The Bank of New York, grand cayman island
By: /s/Joanna S. Belloco
Title: Vice President
Banca Nazionale del Lavoro S.p.A., London Branch
By: /s/Martin Wiles
Title: Senior Relationship Manager
Banc of America Securities Limited
By: /s/David Chalk
Title: Senior Vice President
Bank of Tokyo-Mitsubishi (Holland) NV
By: /s/N. Kato
Title: Managing Director & DGM
Citibank International plc, London
By: /s/Paul Gibbs
Title: Vice President
ING Bank N.V.
By: /s/Arnold M.W. Esser
Title: Managing Director
J.P. Morgan Europe Limited
By: /s/Mark Herridge
Title: Assistant Vice President
Societe Generale
By: /s/William Birkbeck
Title: Managing Director
THE ORIGINAL SWINGLINE LENDERS
Citibank, N.A., New York Branch
By: /s/Stuart G. Miller
Title: Managing Director
Fortis Capital Corporation
By: /s/John W. Deegan
Title: Senior Vice President
Bank of America, N.A.
By: /s/Irene Bertozzi Bartenstein
Title: Director
Bank of Tokyo-Mitsubishi Trust Company
By: /s/Chimie T. Pemba
Title: Assistant Vice President
BNP Paribas
By: /s/Michel de Vibraye
Title: Head of Territory, The Netherlands
Citibank International plc, London
By: /s/Paul Gibbs
Title: Vice President
Fortis Bank (Nederland) N.V.
By: /s/H. Visser
Title: Senior Manager
JPMorgan Chase Bank, N.A.
By: /s/Susan H. Atha
Title: Vice President
Wachovia Bank, National Association
By: /s/Denis Waltrich
Title: Associate
Banc of America Securities Limited
By: /s/David Chalk
Title: Senior Vice President
Bank of Tokyo-Mitsubishi (Holland) NV
By: /s/N. Kato
Title: Managing Director & DGM
BNP Paribas Amsterdam Branch
By: /s/Michel de Vibraye
Title: Head of Territory, The Netherlands
ING Bank N.V.
By: /s/Arnold M.W. Esser
Title: Managing Director
J.P. Morgan Europe Limited
By: /s/Mark Herridge
Title: Assistant Vice President
THE US SWINGLINE AGENT
CITIBANK N.A.
By: /s/Stuart G. Miller
Title: Managing Director
Address: 399 Park Avenue
New York
New York 10043
USA
Fax: + 1 212 994 0961
Tel: + 1 302 894 6029
Attention: Janet Wallace-Himmler
Janet.wallacehimmler@citigroup.com
THE EURO SWINGLINE AGENT
CITIBANK INTERNATIONAL PLC
By: /s/Paul Gibbs
Title: Vice President
Address: Canada Square
Canary Wharf
London
E14 5L
Fax: + 44 208 636 3824
Tel: + 44 207 500 4246
Attention: John Nelson
John1.nelson@citigroup.com
THE AGENT
CITIBANK INTERNATIONAL PLC
By: /s/Paul Gibbs
Title: Vice President
Address: Canada Square
Canary Wharf
London
E14 5L
Fax: + 44 208 636 3824
Tel: + 44 207 500 4246
Attention: John Nelson
John1.nelson@citigroup.com