Exhibit 10.3
[LETTERHEAD]
CONFORMED COPY
Dated 26 MAY 2004
XXXXX FINANCE EUROPE B.V.
as Borrower
WITH
HSBC BANK PLC
ACTING AS AGENT
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AMENDMENT AGREEMENT
RELATING TO A
MULTICURRENCY REVOLVING FACILITIES AGREEMENT
DATED 28 MAY 2003
--------------------------------------------
THIS AGREEMENT is dated 26 May 2004 and made between:
(1) XXXXX FINANCE EUROPE B.V. a private company with limited liability
(BESLOTEN VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID) incorporated under
the laws of The Netherlands having its seat (STATUTAIRE ZETEL) at
Rotterdam, The Netherlands and its registered office at 00000 Xxxxxx
Xxxxx, Xx. Xxxxx, Xxxxxxxx, 00000, Xxxxxx Xxxxxx and registered with the
Chamber of Commerce (XXXXX VAN KOOPHANDE) in Rotterdam under number
24347428 (the "BORROWER");
(2) THE LENDERS (as defined in the Original Facility Agreement); and
(3) HSBC BANK PLC as agent of the Lenders (the "AGENT").
RECITALS:
(A) We refer to the US $650,000,000 Multicurrency Revolving Facilities
Agreement dated 28 May 2003 (as may be amended and restated from time to
time, the "ORIGINAL FACILITY AGREEMENT") between the Borrower, the Agent,
BNP Paribas, CCF and Societe Generale as mandated lead arrangers and the
lenders referred to therein;
(B) Pursuant to Clause 3 of the Original Facility Agreement, the Borrower has
given notice to the Agent as an Extension Request in relation to Facility
A;
(C) In connection with the extension of the Final Maturity Date of Facility
A, the Lenders have agreed to amend certain provisions of the Original
Facility Agreement; and
(D) Accordingly, the parties hereto desire to amend certain provisions of the
Original Facility Agreement as set out below.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"AMENDED AGREEMENT" means the Original Facility Agreement, as amended by
this Agreement.
"EFFECTIVE DATE" means 26 May 2004, provided that on or before such date
the Agent has received each of the documents listed in Schedule 1
(CONDITIONS PRECEDENT) in a form and substance satisfactory to the Agent.
1.2 INCORPORATION OF DEFINED TERMS
(a) 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.
(b) The principles of construction set out in the Original Facility
Agreement shall have effect as if set out in this Agreement.
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1.3 CLAUSES
(a) In this Agreement any reference to a "Clause" or "Schedule" is,
unless the context otherwise requires, a reference to a Clause or
Schedule of this Agreement.
(b) Clause and Schedule headings are for ease of reference only.
2. AMENDMENT OF THE ORIGINAL FACILITY AGREEMENT
With effect from the Effective Date the Original Facility Agreement shall
be amended as set out in Schedule 2 (AMENDMENTS TO ORIGINAL FACILITY
AGREEMENT).
3. EXTENSION OF FACILITY A FINAL MATURITY DATE
With effect from the Effective Date, it is hereby agreed that pursuant to
clause 3 (EXTENSION OF FACILITY) of the Original Facility Agreement, the
Final Maturity Date for Facility A shall be extended to the date falling
364 days from the date hereof.
4. REPRESENTATIONS
The Borrower makes the Repeating Representations as if each reference in
those representations to "this Agreement" includes a reference to (a)
this Agreement and (b) the Amended Agreement.
5. CONTINUITY AND FURTHER ASSURANCE
5.1 CONTINUING OBLIGATIONS
The provisions of the Finance Documents shall, save as amended in this
Agreement, continue in full force and effect.
5.2 FURTHER ASSURANCE
The Borrower shall, at the request of the Agent and at its own expense,
do all such acts and things necessary or desirable to give effect to the
amendments effected or to be effected pursuant to this Agreement.
6. FEES, COSTS AND EXPENSES
6.1 ARRANGEMENT/FRONT END FEES
The Borrower shall pay the fees set out in the Mandate Letter dated 21
April 2004 within five Business Days of the Effective Date.
6.2 TRANSACTION EXPENSES
The Borrower shall promptly on demand pay the Agent the amount of all
costs and expenses (including legal fees) reasonably incurred by it in
connection with the negotiation, preparation, printing and execution of
this Agreement and any other documents referred to in this Agreement.
6.3 ENFORCEMENT COSTS
The Borrower 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
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Party in connection with the enforcement of, or the preservation of any
rights under this Agreement.
6.4 STAMP TAXES
The Borrower shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that a
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of this Agreement.
7. MISCELLANEOUS
7.1 INCORPORATION OF TERMS
The provisions of clause 33 (PARTIAL INVALIDITY), clause 34 (REMEDIES AND
WAIVERS), clause 37 (GOVERNING LAW) and clause 38 (ENFORCEMENT) of the
Original Facility Agreement shall be incorporated into this Agreement as
if set out in full in this Agreement and as if references in those
clauses to "this Agreement" are references to this Agreement.
7.2 DESIGNATION AS FINANCE DOCUMENT
The Borrower, the Agent and the Lenders designate this Agreement as a
Finance Document by execution of this Agreement for the purposes of the
definition of Finance Document in the Original Facility Agreement.
7.3 COUNTERPARTS
This Agreement may be executed in any number of counterparts, and this
has the same effect as if the signatures on the counterparts were on a
single copy of this Agreement.
THIS AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
CONDITIONS PRECEDENT
1. BORROWER
(a) A copy of the constitutional documents of the Borrower, or a
certificate from an authorised signatory of the Borrower
certifying that the constitutional documents have not been amended
or restated since the date of the Original Facility Agreement.
(a) A copy of a resolution of the board of directors of the Borrower:
(i) approving the terms of, and the transactions contemplated
by, this Agreement and resolving that it execute this
Agreement;
(ii) authorising a specified person or persons to execute this
Agreement on its behalf; and
(iii) authorising a specified person or persons, on its behalf,
to sign and/or despatch all documents and notices to be
signed and/or despatched by it under or in connection with
this Agreement.
(b) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above.
(c) A shareholder resolution of the Borrower, approving the terms of,
and the transactions contemplated by this Agreement.
(d) A certificate of an authorised signatory of the Borrower
certifying that each copy document relating to it specified in
this Schedule 1 is correct, complete and in full force and effect
as at a date no earlier than the date of this Agreement.
2. PARENT
(a) A certificate of an authorised signatory of the Parent confirming
the prevalent S&P and Moody's Ratings of the Parent on the
Effective Date.
3. LEGAL OPINIONS
(a) A legal opinion of Xxxxxxxx Chance LLP, legal advisers to the
Agent as to matters of English law, substantially in the form
distributed to the Lenders prior to signing this Agreement.
(b) A legal opinion of Xxxxxxxx Chance LLP, legal advisers to the
Agent as to matters of Dutch law, substantially in the form
distributed to the Lenders prior to signing this Agreement.
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(c) A legal opinion of Winston & Xxxxxx LLP as to matters of New York
law, opining notably on the continuing validity and enforceability
of the Parent Guaranty.
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SCHEDULE 2
AMENDMENTS TO ORIGINAL FACILITY AGREEMENT
1. The following to be inserted after Clause 12.3 (AGENCY FEE) of the
Original Facility Agreement as Clause 12.4:
"12.4 FACILITY A UTILISATION FEE
A utilisation fee will accrue on the aggregate principal amount of
Facility A Loans in respect of each day on which the aggregate principal
amount of Facility A Loans exceed 50 per cent. of the Facility A
Commitment. This fee will accrue from 26 May 2004 until the relevant
Final Maturity Date. The rate of the fee will be 0.075 per cent. per
annum. The Borrower agrees to pay the fee to each Lender pro rata in
arrear at three-month intervals from 26 May 2004 and on the Final
Maturity Date in respect of Facility A."
2. The following to be inserted at the end of sub-clause (a) of Clause 35.2
(EXCEPTIONS) after the word "Lenders.":
"PROVIDED THAT, an amendment or waiver described in sub-clauses (ii),
(iii) and (iv) above, shall only require the prior consent of all of the
Lenders participating in the Facility affected by such amendment or
waiver."
3. Paragraph 1.1 of Schedule 1 (APPLICABLE MARGIN) of the Original Facility
Agreement shall be deleted and replaced with the following:
"1.1 In relation to Facility A, the Applicable Margin is 1.00 per cent.
per annum unless S&P and/or Moody's are publishing in respect of
the Parent a long term unsecured debt rating, in which case the
Applicable Margin is the percentage rate per annum that
corresponds to that rating, as in effect from time to time as set
out in the following table:
------------------------------------- ---------------------------------- -----------------------------------
S&P RATING XXXXX'X RATING APPLICABLE MARGIN
(% PER ANNUM)
------------------------------------- ---------------------------------- -----------------------------------
BBB+ or above Baa1 or above 0.45
------------------------------------- ---------------------------------- -----------------------------------
BBB Baa2 0.65
------------------------------------- ---------------------------------- -----------------------------------
BBB- Baa3 0.80
------------------------------------- ---------------------------------- -----------------------------------
BB+ or below Ba1 or below 1.00"
------------------------------------- ---------------------------------- -----------------------------------
4. Schedule 2 (THE ORIGINAL LENDERS) shall be deleted and replaced with the
following:
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"SCHEDULE 2
THE LENDERS
NAME OF LENDER FACILITY A COMMITMENT FACILITY B COMMITMENT
-------------- --------------------- ---------------------
CDC IXIS 35,000,000.00 15,000,000.00
BNP Paribas S.A. 24,500,000.00 10,500,000.00
Societe Generale 24,500,000.00 10,500,000.00
WestLB AG, Paris Branch 24,500,000.00 10,500,000.00
Barclays Bank PLC 22,750,000.00 9,750,000.00
ABN AMRO Bank N.V. Paris Branch 18,500,000.00 7,500,000.00
Bayerische Hypo-und Vereinsbank AG, Munich 18,500,000.00 7,500,000.00
Fortis Bank (Nederland) N.V. 18,500,000.00 7,500,000.00
ING Bank N.V. 18,500,000.00 7,500,000.00
BBVA Ireland plc 17,500,000.00 7,500,000.00
Credit Agricole d'Ile de France 17,500,000.00 7,500,000.00
Natexis Banques Populaires 17,500,000.00 7,500,000.00
Raiffeisen Zentralbank Xxxxxxxxxxx XX 17,500,000.00 7,500,000.00
HSBC Bank plc 24,500,000.00 10,500,000.00
Cooperatieve Centrale Raiffeisen- 15,000,000.00 6,000,000.00
Boerenleenbank B.A. trading as
Rabobank International London Branch
Sanpaolo IMI S.p.A. 13,500,000.00 3,750,000.00
Landesbank Rheinland-Pfalz - Girozentrale 14,000,000.00 6,000,000.00
KBC Bank N.V. 11,500,000.00 4,500,000.00
Banca Nazionale del Lavoro International SA 0.00 3,750,000.00
Banca Nazionale del Lavoro S.p.A. - New York 9,750,000.00 0.00
Branch
KfW 9,750,000.00 3,750,000.00
Scotiabank Europe plc 9,750,000.00 3,750,000.00
Standard Chartered Bank PLC 9,750,000.00 3,750,000.00
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ANZEF Limited 8,750,000.00 3,750,000.00
Banca Intesa, France 8,750,000.00 3,750,000.00
Credit Suisse 8,750,000.00 3,750,000.00
Unicredito Italiano SpA - London Branch 8,750,000.00 3,750,000.00
Banque Artesia Nederland N.V. 8,000,000.00 3,000,000.00
Banca Monte dei Paschi di Siena S.p.A., New 7,000,000.00 3,000,000.00
York Branch
Morgan Xxxxxxx Bank 5,250,000.00 2,250,000.00
BRED Banque Populaire, Paris 3,500,000.00 1,500,000.00
State Bank of India, Antwerp 3,500,000.00 1,500,000.00
Bank fur Arbeit und Wirtschaft AG 0.00 3,750,000.00
Banco Espanol de Credito S.A. 0.00 3,000,000.00
TOTALS: 455,000,000.00 195,000,000.00
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SIGNATURES
THE BORROWER
XXXXX FINANCE EUROPE B.V.
By: XXXXXX XXXXX
THE AGENT
HSBC BANK PLC
By: XXXX XXXXXXXX
THE LENDERS
CDC IXIS
By: XXXXXX XXXXXX
BNP PARIBAS S.A.
By: CAMERON LETTERS AND XXXXXX LATUEF
SOCIETE GENERALE
By: A.-XXXXXXXX XXXXXXX
WEST LB AG, PARIS BRANCH
By: XXXXXX XXXXX AND XXXXX-XXXXX XXXXXXXX
BARCLAYS BANK PLC
By: DES POTTER
ABN AMRO BANK N.V. PARIS BRANCH
By: XXXXXX XXXXXX
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XXXXXXXXXX XXXX-XXX XXXXXXXXXXX XX, XXXXXX
By: X. XXXXXXXXX AND X. XXXXX
FORTIS BANK (NEDERLAND) N.V.
By: J. AE OPTEN NOORT AND J. J. BRONSWIFT
ING BANK N.V.
By: XXXX XXX XXXXXX AND XXXX XXXXXX
BBVA IRELAND PLC
By: XXXXX XXXXXXX
CREDIT AGRICOLE D'ILE DE FRANCE
By: XXXXXX XXXXXX
NATEXIS BANQUES POPULAIRES
By: XXXXXX XXXXXX
RAIFFEISEN ZENTRALBANK XXXXXXXXXXX XX
By: WOLFGANG RACHBAUER AND L GERSCHNER
HSBC BANK PLC
By: XXXXX XXXXXX
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. TRADING
AS RABOBANK INTERNATIONAL LONDON BRANCH
By: X.X. XXXXXXX AND X. XXXXX
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SANPAOLO IMI S.P.A.
By: XXXXX X. XXXXX AND XXXXXX XXXXXXXX
LANDESBANK RHEINLAND-PFALZ - GIROZENTRALE
By: XXXXXX XXXXXXXX AND XXXXX XX XXXXXXX XXXXX
KBC BANK N.V.
By: XXXXXXX DES XXXXX AND XXXXXX XXXXXXX
BANCA NAZIONALE DEL LAVORO INTERNATIONAL SA
By: XXXXXXXX XXXXXXXXX AND XXXXXXXXX XXXXXXXX
BANCA NAZIONALE DEL LAVORO SPA, NEW YORK BRANCH
By: FRANCESCO DI MARIO AND XXXXX XXXXXX
KFW
By: XX. XXXX XXXX AND XXXX XXXXXXX
SCOTIABANK EUROPE PLC
By: X.X. XXXXXXXX
STANDARD CHARTERED BANK PLC
By: X.X. XXXX AND X. XXXXXXXX
ANZEF LIMITED
By: X.X. XXXXXX
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XXXXX XXXXXX, XXXXXX
By: XXXXXX XXXXXX
CREDIT SUISSE
By: XXXXXX XXXXXXXX AND XXXXXXX XXXXXX
UNICREDITO ITALIANO SPA - LONDON BRANCH
By: X.X. XXXXXX AND X.X. XXXXXXXX
BANQUE ARTESIA NEDERLAND N.V.
By: X.X. XXXXXXX AND JORIS VAN HELLEPUTTE
BANCA MONTE DEI PASCHI DI SIENA S.P.A., NEW YORK BRANCH
By: XXXXX X. XXXXX AND XXXXX X. XXXXX
XXXXXX XXXXXXX BANK
By: XXXXXX XXXXXX
BRED BANQUE POPULAIRE, PARIS
By: XXXXXX XXXXXX
STATE BANK OF INDIA, ANTWERP
BY: XXXXXX X. XXXXXXXX
BANK FUR ARBEIT UND WIRTSCHAFT AG
By: X. XXXXXX AND X. XXXX
BANCO ESPANOL DE CREDITO S.A.
By: PERE JORI DEL AMO AND XXXXXXXX XXXX-XXXXXXXXX BANULS
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