EXHIBIT (b)
AGREEMENT
DATED 3rd April, 2000
US$1,600,000,000 and euro 2,000,000,000
CREDIT FACILITY
FOR
REXAM PLC
ARRANGED BY
ABN AMRO BANK N.V.
BANQUE NATIONALE DE PARIS
CITIBANK, N.A.
CREDIT SUISSE FIRST BOSTON
HSBC INVESTMENT BANK plc
LLOYDS TSB CAPITAL MARKETS
WESTDEUTSCHE LANDESBANK GIROZENTRALE
For Rexam PLC For the Finance Parties
Xxxxx & Xxxxx Xxxxxxxx Chance
XXXXX & OVERY
London
BK:733880.10
INDEX
CLAUSE PAGE
1. Interpretation.......................................................1
2. The Facilities......................................................21
3. Purpose.............................................................22
4. Conditions precedent................................................22
5. Loans...............................................................22
6. Drawing of Bills....................................................24
7. Bills...............................................................25
8. Repayment...........................................................27
9. Prepayment and cancellation.........................................27
10. Interest Periods....................................................30
11. Interest............................................................31
12. Alternative Currencies..............................................34
13. Amount of Alternative Currencies....................................35
14. Payments............................................................35
15. Taxes...............................................................37
16. Market disruption...................................................39
17. Increased costs.....................................................41
18. Illegality..........................................................42
19. Guarantee...........................................................43
20. Representations and warranties......................................45
21. Undertakings........................................................47
22. Default.............................................................52
23. The Agent and the Arrangers.........................................54
24. Fees................................................................59
25. Expenses............................................................60
26. Stamp duties........................................................60
27. Indemnities.........................................................61
28. Evidence and calculations...........................................62
29. Amendments and waivers..............................................62
30. Changes to the Parties..............................................63
31. Disclosure of information...........................................67
32. Set-off.............................................................68
33. Pro rata sharing....................................................68
34. Severability........................................................69
35. Counterparts........................................................69
36. Notices.............................................................70
37. Language............................................................71
38. Jurisdiction........................................................71
39. Governing law.......................................................72
SCHEDULES
1. Banks and Commitments..............................................73
Part I - Banks and Commitments - Term Loan Facility................73
Part II - Banks and Commitments - Revolving Credit Facility........73
2. Conditions Precedent Documents.....................................74
Part I - To be delivered on or about signing.......................74
Part II - To be delivered before the first Utilisation.............75
Part III - To be delivered by an Additional Guarantor..............76
3. Calculation of the Mandatory Cost..................................77
4. Form of Request....................................................79
5. Forms of Accession Documents.......................................80
Part I - Novation Certificate......................................80
Part II - Borrower Accession Agreement.............................82
Part III - Guarantor Accession Agreement...........................83
6. Form of Xxxx.......................................................84
7. Form of Compliance Certificate.....................................85
8. Form of Margin Certificate.........................................86
9. Form of Power of Attorney for Bills................................87
SIGNATORIES.................................................................89
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THIS AGREEMENT is dated 3rd April, 2000 between:
(1) REXAM PLC (the "COMPANY");
(2) ABN AMRO BANK N.V., BANQUE NATIONALE DE PARIS, CITIBANK, N.A., CREDIT
SUISSE FIRST BOSTON, HSBC INVESTMENT BANK plc, LLOYDS TSB CAPITAL
MARKETS and WESTDEUTSCHE LANDESBANK GIROZENTRALE as arrangers (in this
capacity the "ARRANGERS");
(3) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the "BANKS");
and
(4) LLOYDS TSB BANK plc as agent (in this capacity the "AGENT").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCEPTANCE COMMISSION RATE"
means, subject to Clause 11.5 (Adjustment of the Margin and Acceptance
Commission Rate), 0.95 per cent. per annum.
"ADDITIONAL BORROWER"
means, subject to Clause 30.8 (Cessation of Obligors), a member of the
Group which becomes a Borrower in accordance with Clause 30.4
(Additional Borrowers).
"ADDITIONAL GUARANTOR"
means, subject to Clause 30.8 (Cessation of Obligors), a member of the
Group which becomes a Guarantor in accordance with Clause 30.5
(Additional Guarantors).
"AFFILIATE"
means a Subsidiary or a Holding Company of a person or any other
Subsidiary of that Holding Company.
"AGENT'S SPOT RATE OF EXCHANGE"
means the Agent's spot rate of exchange for the purchase of the
relevant Alternative Currency in the London foreign exchange market
with the relevant Base Currency at the relevant time on a particular
day.
"ALTERNATIVE CURRENCY"
means:
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(a) in the case of the Tranche A Facility, Sterling, euros or any
other currency (other than U.S. Dollars) which is for the time
being freely transferable and convertible into U.S. Dollars
and deposits of which are readily available in the London
interbank market; or
(b) in the case of the Tranche B Facility, Sterling, U.S. Dollars
or any other currency (other than euros) which is for the time
being freely transferable and convertible into euros and
deposits of which are readily available in the London
interbank market.
"BALANCE SHEET"
means, at any time, the latest published audited annual consolidated
balance sheet of the Company or the balance sheet in the latest
published interim consolidated accounts of the Company.
"BASE CURRENCY"
means, for the Tranche A Facility, U.S. Dollars or, for the Tranche B
Facility, euros.
"XXXX"
means a Xxxxxxxx xxxx of exchange substantially in the form of Schedule
6.
"BORROWED MONIES"
means the following, except in so far as otherwise taken into account:
(a) the nominal amount of any issued share capital and the
principal amount of any debentures, moneys borrowed or other
indebtedness (together in each case with any fixed or minimum
premium payable on final repayment) of any person the legal
and beneficial interest whereof is not for the time being
owned by a member of the Group and the payment or repayment of
which is guaranteed or secured or is the subject of an
indemnity or covenant to pay given by a member of the Group;
(b) the principal amount (together with any fixed or minimum
premium payable on final repayment) of any debenture (whether
secured or unsecured) of a member of the Group owned otherwise
than by another member of the Group and whether issued for
cash or otherwise;
(c) the principal amount raised by acceptances under any
acceptance credit granted by any bank or accepting house other
than acceptances solely relating to the purchase or sale of
goods in the ordinary course of trading;
(d) the capitalised element of any finance leases of any member of
the Group, as determined in accordance with the accounting
principles applied in connection with the preparation of the
Balance Sheet of the Group; and
(e) for the purposes of Clause 22.1(d) (Events of Default) only,
any indebtedness in respect of any hedging transaction,
including any currency or interest rate swap or forward
exchange contract, futures and other derivatives of a member
of the Group,
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and the amount of indebtedness in respect of the transaction
will be the net exposure (meaning the amount payable by the
party liable under the transaction on termination or closing
out of those arrangements as determined on a xxxx to market
basis);
but:
(i) moneys borrowed by a member of the Group for the purpose of
repaying (or enabling another member of the Group to repay)
within six months of such date the whole or part of Borrowed
Monies of itself or another member of the Group owing
otherwise than to another member of the Group and for the time
being outstanding (including any fixed or minimum premium
payable on final repayment) shall pending their application
for such purpose within such period be deemed (except for the
purposes of Clause 22.1(d) (Events of Default)) not to be
Borrowed Monies;
(ii) that proportion of the moneys borrowed (owing otherwise than
to any other member of the Group) of any partly owned
Subsidiary of the Company which is equivalent to the
proportion of its ordinary share capital not attributable to
the Company shall be deemed not to be Borrowed Monies but only
to the extent that an amount equivalent to such proportion
exceeds moneys borrowed (if any) from such partly owned
Subsidiary by the Company or another Subsidiary of the
Company;
(iii) moneys borrowed by a member of the Group for the purpose of
financing any contract in respect of which part of the price
receivable is guaranteed by the Export Credits Guarantee
Department or by any institution approved by the Agent
carrying on similar business, not exceeding that part of the
price which is so guaranteed, shall be deemed not to be
Borrowed Monies; and
(iv) only the net amount outstanding (after taking into account any
credit balances) of monies borrowed and outstanding in
connection with any cash management scheme operated by the
Group shall be included.
Borrowed Monies expressed in a currency other than Sterling shall be converted
into Sterling as follows:
(1) as regards such Borrowed Monies outstanding at the date of the
Balance Sheet at the rates of exchange adopted for the purpose
of that
Balance Sheet;
(2) as regards such Borrowed Monies outstanding at the date of and
converted into Sterling for the purpose of inclusion in the
then latest audited balance sheet of an unconsolidated
subsidiary of the Company at the rates of exchange adopted for
such purpose; and
(3) as regards other such Borrowed Monies either at the rates of
exchange current at the date of the Balance Sheet of the
Company or the balance sheet of the relevant Subsidiary, as
the case may be, or, if in the case of a Subsidiary there is
no such balance sheet, at the rates of exchange current at the
date of the Balance Sheet of the Company. For the purposes of
this sub-paragraph (3) the rate of exchange for any currency
shall be deemed to be the spot rate of the Agent for the
exchange of the relevant currency into Sterling at 11.00 a.m.
on the relevant day.
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"BORROWER"
means the Company or an Additional Borrower.
"BORROWER ACCESSION AGREEMENT"
means a letter substantially in the form of Part II of Schedule 5 with
such amendments as the Agent and the Company may agree.
"BUSINESS DAY"
means a day (other than a Saturday or Sunday) on which banks are open
for general business (other than operation only of business in euros)
in:
(a) London; and
(b) if a payment is required in U.S. Dollars, New York City; and
(c) if a payment is required in an Alternative Currency (other
than Sterling, U.S. Dollars or euros), the principal financial
centre of the country of that Alternative Currency,
and, if a payment is required in euros, that day is also a TARGET
Business Day.
"CLEAN UP PERIOD"
means the period from the date of this Agreement to the date falling
four months after the Merger Date.
"COMMITMENT"
means a Tranche A Commitment or a Tranche B Commitment.
"COMMITMENT PERIOD"
means the Tranche A Commitment Period or the Tranche B Commitment
Period.
"COMPLIANCE CERTIFICATE"
means a certificate substantially in the form of Schedule 7.
"DANGEROUS SUBSTANCES"
means any radioactive emissions and any natural or artificial substance
(whether in solid or liquid form or in the form of a gas or vapour),
the generation, transportation, storage, treatment, use or disposal of
which (whether alone or in combination with any other substance) gives
a risk of causing harm to man or any other living organism or damaging
in any material respect the Environment or public health or welfare,
including, but not limited to, any controlled, special, hazardous,
toxic, radioactive or dangerous waste.
"DEFAULT"
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means an Event of Default or a Potential Event of Default.
"DOUBLE TAXATION TREATY"
means any convention between the government of the United Kingdom and
any other government for the avoidance of double taxation and the
prevention of fiscal evasion with respect to taxes on income and
capital gains.
"EBDR"
means the rate (as quoted by the Agent at or about 10.30 a.m. on the
Utilisation Date for a Xxxx) at which Eligible Bills of an equivalent
tenor can be discounted in the London discount market at or about that
time.
"EBITA"
means, in respect of each Ratio Period, the total operating profit of
the Group for continuing operations, acquisitions (as a component of
continuing operations) and discontinued operations, but adding back, in
each case, any operating exceptional losses and amortised goodwill and
deducting any operating exceptional profits included within that
figure. EBITA shall be calculated by reference to the most recent
annual or interim consolidated accounts of the Company delivered to the
Agent under Clause 21.2 (Information) or, for the purposes of Clauses
11.5 (Adjustment of the Margin and Acceptance Commission Rate) and 24.3
(Commitment fee), the Company's quarterly management information for
the Group to the extent reflected in the Margin Certificate, but
further adjusted (where appropriate) for the pro forma effect of
acquisitions and disposals during the relevant Ratio Period.
"EBITDA"
means, in respect of each Ratio Period, EBITA adjusted (without double
counting) for depreciation included within that figure. EBITDA shall be
calculated by reference to the most recent annual or interim
consolidated accounts of the Company delivered to the Agent under
Clause 21.2 (Information) or, for the purposes of Clauses 11.5
(Adjustment of the Margin and Acceptance Commission Rate) and 24.3
(Commitment fee), the Company's quarterly management information for
the Group to the extent reflected in the Margin Certificate, but
further adjusted (where appropriate) for the pro forma effect of
acquisitions and disposals during the relevant Ratio Period.
"ELIGIBLE XXXX"
means a Xxxxxxxx xxxx of exchange eligible for rediscounting at the
Bank of England.
"ENCUMBRANCE"
means any mortgage, charge, assignment, pledge, lien or other
encumbrance, but shall not include any encumbrance arising out of any
title retention provision contained in any contract for the purchase of
goods entered into in the ordinary course of business, liens arising by
operation of law, encumbrances over cash and transactions involving the
disposal of an asset on terms whereby it is leased to or reacquired or
acquired by the disposer or any of its related
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entities.
"ENVIRONMENT"
means any of the following media, the air (including, without
limitation, the air within buildings and the air within other natural
or man-made structures above or below ground), water (including,
without limitation, ground and surface water) and land (including,
without limitation, surface and sub-surface soil).
"ENVIRONMENTAL LAW"
means any common or statutory law, regulation, code of practice,
circular, guidance note and the like (whether or not having the force
of law but in respect of which compliance is customary) concerning the
protection of human health, any living organism, the workplace or the
Environment or Dangerous Substances.
"EU ANTI-TRUST CLEARANCE"
means:
(a) the EC Commission declaration, in terms which the Company
considers are materially commercially reasonable in the
aggregate, that the concentration is compatible with the
common market pursuant to Articles 6(1) (b) or Article 8(2) of
Council Regulation (EEC) no. 4064/89 (as amended by Council
Regulation (EC) No. 1310/97) (the "REGULATION"); and
(b) in the event that a request under Article 9(2) of that
Regulation has been made by one or more European Union or EFTA
states, (A) the European Commission indication, in terms
satisfactory to the Company, that it does not intend to refer
the proposed acquisition, or any aspect of it, to a competent
authority of such state in accordance with Article 9 of that
Regulation or (B) if such referral is made, the state(s) shall
have resolved their investigations, in terms which the Company
considers are materially commercially reasonable in the
aggregate, or any applicable waiting period(s) shall have
expired."
"EURIBOR"
means in relation to any Loan in euros:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the relevant period, 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,
at or about 11.00 a.m. Brussels time on the Rate Fixing Day for the
offering of deposits in euros for a period comparable to the relevant
Interest Period.
"EURO"
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means the single currency of the Participating Member States.
"EVENT OF DEFAULT"
means an event specified as such in Clause 22.1 (Events of Default).
"EXISTING FACILITIES"
means:
(a) the euro 800,000,000 credit facility dated 2nd December, 1998
of the Company arranged by ABN AMRO Bank N.V., HSBC Investment
Bank plc and Lloyds Bank Plc; and
(b) all committed bilateral facilities of the Company existing
immediately prior to the Merger Date.
"EXTERNAL NET BORROWINGS"
means, at any time, Borrowed Monies of all members of the Group (other
than Obligors) less:
(a) Investments of any member of the Group (other than Obligors)
at that time or any Investment issued by or guaranteed by any
member of the Group (other than Obligors); and
(b) Borrowed Monies of a company which becomes a Subsidiary of the
Company after the date of this Agreement for a period of six
months from the date it becomes a Subsidiary of the Company,
so long as the principal amount outstanding of Borrowed Monies
of that company does not exceed the maximum amount of Borrowed
Monies capable of being incurred by that company on the date
it becomes a Subsidiary of the Company.
"FACILITY"
means the Tranche A Facility or the Tranche B Facility and "FACILITIES"
means both of them.
"FACILITY OFFICE"
means the office(s) notified by a Bank to the Agent:
(a) on or before the date it becomes a Bank; or
(b) by not less than five Business Days' notice,
as the office(s) through which it will perform all or any of its
obligations under this Agreement.
"FEE LETTER"
means a letter dated the date of this Agreement between the Arrangers
and the Company or
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the Agent and the Company setting out the amount of various fees
referred to in Clause 24 (Fees).
"FINAL MATURITY DATE"
means:
(a) in the case of the Tranche A Facility:
(i) if the Term-Out Option has not been exercised, the
date falling 364 days from the date of this
Agreement; or
(ii) if the Term-Out Option has been exercised, the date
falling no later than 30 months from the date of this
Agreement; and
(b) in the case of the Tranche B Facility, the fifth anniversary
of the date of this Agreement.
"FINANCE DOCUMENT"
means:
(a) this Agreement;
(b) a Xxxx;
(c) a Novation Certificate;
(d) a Fee Letter;
(e) a Borrower Accession Agreement;
(f) a Guarantor Accession Agreement;
(g) the Syndication Side-Letter;
(h) a Syndication Agreement; or
(i) any other document designated as such by the Agent and the Company.
"FINANCE PARTY"
means an Arranger, a Bank or the Agent.
"GROUP"
means the Company and its Subsidiaries other than the Russian JV.
"GUARANTOR"
means the Company or an Additional Guarantor.
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"GUARANTOR ACCESSION AGREEMENT"
means a letter substantially in the form of Part III of Schedule 5 with
such amendments as the Agent and the Company may agree.
"HOLDING COMPANY"
has the meaning given to it in Section 736 of the Companies Xxx 0000.
"INFORMATION MEMORANDUM"
means any information memorandum to be prepared by or on behalf of the
Company in connection with syndication of the Facilities.
"INTEREST PAYABLE"
means all interest, acceptance commission and other continuing, regular
or periodic costs, charges and expenses in the nature of interest
(whether paid, payable or capitalised but excluding any front-end fees
payable in connection with this Agreement and capitalised interest
treated as a development cost for a project in accordance with the
accounting policies applied in connection with the Original Group
Accounts) incurred by the Group during a Ratio Period, all as
calculated by reference to the most recent annual or interim
consolidated accounts of the Company delivered to the Agent under
Clause 21.2 (Information).
"INTEREST PERIOD"
means each period determined in accordance with Clause 10 (Interest
Periods).
"INVESTMENTS"
means:
(a) any cash in hand or cash at bank to the extent that it is
freely remittable to the U.K. or can lawfully be applied
against Borrowed Monies;
(b) short term deposits and money at call with a recognised bank
or financial institution to the extent that it is freely
remittable to the U.K. or can lawfully be applied against
Borrowed Monies;
(c) deposits made with the Commissioners of Inland Revenue in
respect of which certificates of tax deposits have been issued
by Her Majesty's Treasury;
(d) the face amount of certificates of deposit issued by a bank or
financial institution;
(e) the book value of Sterling bills of exchange eligible for
rediscount at the Bank of England;
(f) any other negotiable money market instrument with a maximum
maturity of 12 months or less with ratings of at least A1
granted by Standard & Poor's Corporation and P1 granted by
Xxxxx'x Investors Services Inc. respectively (or, if a rating
is
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granted by only one of these agencies, either at least A1
granted by Standard & Poor's Corporation or P1 granted by
Xxxxx'x Investors Services Inc.); and
(g) marketable debt securities issued by a sovereign entity with a
rating of at least AA by Standard & Poor's Corporation or at
least Aa2 by
Xxxxx'x Investors Services Inc.
"LIBOR"
means:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the relevant currency and
period, the arithmetic mean (rounded upward to four decimal
places) of the rates, as supplied to the Agent at its request,
quoted by the Reference Banks to leading banks in the London
interbank market,
at or about 11.00 a.m. on the applicable Rate Fixing Day for the
offering of deposits in the currency of the relevant Loan for a period
comparable to its relevant Interest Period.
"LOAN"
means, subject to Clauses 10 (Interest Periods) and 12 (Alternative
Currencies), the principal amount of each borrowing by a Borrower under
this Agreement or the principal amount outstanding of that borrowing,
being either a Revolving Credit Loan or a Term Loan.
"MAJORITY BANKS"
means, at any time:
(a) if any Utilisation is outstanding, Banks with an aggregate
outstanding Original Currency Amount of participations in
Loans and Bills plus undrawn Commitments at that time of more
than 66 2/3 per cent. of the aggregate Original Currency
Amount of all Utilisations then outstanding plus the aggregate
of the then undrawn Commitments of all the Banks; or
(b) if no Utilisation is outstanding, Banks whose Commitments then
aggregate more than 66 2/3 per cent. of the Total Commitments
(or, if the Total Commitments have been reduced to zero,
aggregated more than 66 2/3 per cent. of the Total Commitments
immediately before the reduction).
For this purpose, if there are Utilisations and/or Commitments
outstanding under both Tranche A and Tranche B the Original Currency
Amount of all Utilisations, and the amount of all Commitments, under
Tranche A will be translated into euros at the Agent's Spot Rate of
Exchange on the relevant date of determination.
"MANDATORY COST"
means the cost imputed to the Banks of compliance with certain
requirements of the Bank of England and/or the banking supervision or
other costs of the Financial Services Authority as
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determined in accordance with Schedule 3.
"MARGIN"
means:
(a) in respect of Loans under the Tranche A Facility, 1.00 per
cent. per annum; and
(b) in respect of Loans under the Tranche B Facility, subject to
Clause 11.5 (Adjustment of the Margin and Acceptance
Commission Rate), 0.95 per cent. per annum.
"MARGIN CERTIFICATE"
means a certificate substantially in the form of Schedule 8.
"MATERIAL ADVERSE EFFECT"
means a material adverse effect on:
(a) the ability of the Obligors (taken as a whole) to perform
their payment obligations under the Finance Documents; or
(b) the ability of the Company to perform and comply with its
obligations under Clause 21.9 (Financial covenants).
"MATURITY DATE"
means the last day of the term of a Xxxx.
"MERGER"
means the merger of a subsidiary of the Company with and into the
Target in accordance with the terms of the Merger Agreement.
"MERGER AGREEMENT"
means the agreement and plan of merger dated as of March, 2000 between
the Target, a subsidiary of the Company and the Company.
"MERGER DATE"
means the date on which the Merger becomes effective pursuant to the
terms of the Merger Agreement.
"NET ASSETS"
means, at any time, the gross assets of the Group less the liabilities
of the Group at that time, each as determined in accordance with
generally accepted accounting principles in the United Kingdom, as
calculated by reference to the most recent annual or interim
consolidated accounts of the Company delivered to the Agent under
Clause 21.2 (Information).
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"NET DEBT"
means, at the end of a Ratio Period, Borrowed Monies of all members of
the Group less Investments of all members of the Group, as calculated
by reference to the most recent annual or interim consolidated accounts
of the Company delivered to the Agent under Clause 21.2 (Information)
or, for the purposes of Clause 11.5 (Adjustment of the Margin and
Acceptance Commission Rate) and Clause 24.3 (Commitment fee), the
Company's quarterly management information for the Group to the extent
reflected in the Margin Certificate.
"NET INTEREST PAYABLE"
means all Interest Payable by the Group during a Ratio Period minus all
interest or amounts in the nature of interest received or receivable
during that Ratio Period, all as calculated by reference to the most
recent annual or interim consolidated accounts of the Company delivered
to the Agent under Clause 21.2 (Information).
"NOVATION CERTIFICATE"
has the meaning given to it in Clause 30.3 (Procedure for novations).
"OBLIGOR"
means a Borrower or a Guarantor.
"ORIGINAL CURRENCY AMOUNT"
means for a Facility:
(a) the principal amount of a Loan denominated in the Base
Currency of that Facility; or
(b) the principal amount of a Revolving Credit Loan denominated in
any other currency other than the Base Currency of that
Facility or (if appropriate) a Xxxx translated into the Base
Currency of that Facility on the basis of the Agent's Spot
Rate of Exchange three Business Days before its Utilisation
Date; or
(c) in the case of a Term Loan denominated in any other currency
other than the Base Currency of that Facility, the equivalent
in the Base Currency of that Facility on the basis of the
Agent's Spot Rate of Exchange three Business Days before its
Utilisation Date.
"ORIGINAL GROUP ACCOUNTS"
means the audited consolidated accounts of the Group for the year ended
31st December, 1998.
"PARTICIPATING MEMBER STATE"
means a member state of the European Union that adopts a single
currency in accordance with the Treaty.
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"PARTY"
means a party to this Agreement.
"POTENTIAL EVENT OF DEFAULT"
means an event or circumstance which, with the giving of notice and
lapse of time as provided in Clause 22.1 (Events of Default), would be
likely to constitute an Event of Default.
"PRINCIPAL SUBSIDIARY"
means a Subsidiary of the Company (other than the Russian JV) at any
relevant date:
(a) whose net profits after taxation attributable to the Group for
the then last year or other period in respect of which
accounts of such Subsidiary have been audited (and as derived
by reference to such accounts) represent 10 per cent. or more
of the consolidated net profits after taxation and minority
interests of the Group for the then last year or other period
(or proportionately if the then last accounting period of the
relevant Subsidiary shall have been for a shorter period than
the then last year or other period of the Group) in respect of
which consolidated accounts of the Company shall have been
audited; or
(b) whose gross assets as shown by the then latest audited
accounts of such Subsidiary represent 10 per cent. or more of
the consolidated gross assets of the Group as derived by
reference to the then last audited consolidated accounts of
the Company; or
(c) whose net assets as shown by the then latest audited accounts
of such Subsidiary represent 10 per cent. or more of the Net
Assets as derived by reference to the then last audited
consolidated accounts of the Company; or
(d) to which has been transferred (whether by one transaction or a
series of transactions, related or not) the whole or
substantially the whole of the assets of a Subsidiary of the
Company which immediately prior to those transactions was a
Principal Subsidiary.
However:
(i) a determination of whether a company which becomes a
Subsidiary of the Company after the date of this Agreement is
or is not a Principal Subsidiary may be made upon that company
becoming a Subsidiary of the Company by reference to its
latest audited accounts and the latest audited consolidated
accounts of the Company;
(ii) in the case of paragraph (d) above, the transferring
Subsidiary shall, upon the transferee Subsidiary becoming a
Principal Subsidiary, cease to be a Principal Subsidiary; and
(iii) the opinion of the auditors for the time being of the Company
that a Subsidiary of the Company is or is not a Principal
Subsidiary shall, in the absence of manifest error, be
conclusive and binding on the Parties.
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"PRESS RELEASE"
means the press release issued on behalf of the Company in relation to
the Merger.
"QUALIFYING BANK"
means a person which is:
(a) (i) a bank as defined in section 840A of the Income and
Corporation Taxes Xxx 0000; and
(ii) beneficially entitled, and within the charge, to U.K.
corporation tax for the purposes of section 349(3) of
the Income and Corporation Taxes Act 1988 as regards
any interest received by it under this Agreement; or
(b) a Tax Treaty Bank agreed to by the Company (at its discretion).
"RATE FIXING DAY"
means:
(a) the first day of an Interest Period for a Loan denominated in
Sterling;
(b) the second TARGET Business Day before the first day of an
Interest Period for a Loan denominated in euros;
(c) the second Business Day before the first day of an Interest
Period for a Loan denominated in any currency other than
Sterling or euros; or
(d) such other day as is generally treated as the rate fixing day
by market practice in the relevant interbank market for the
currency concerned, as notified by the Agent to the other
Parties by not less than 5 Business Days' notice.
"RATIO PERIOD"
means the preceding period of 12 months ending at the end of each
financial year and each financial half-year of the Group and, for the
purposes of Clause 11.5 (Adjustment of the Margin and Acceptance
Commission Rate) and Clause 24.3 (Commitment fee), each of the first
and third financial quarters of the Group.
"REFERENCE BANKS"
means, subject to Clause 30.6 (Reference Banks), the Agent, ABN AMRO
Bank N.V. and Credit Suisse First Boston.
"RELEVANT TAXES"
means any Tax imposed, levied or assessed by or on behalf of:
(a) the U.K.; or
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(b) any jurisdiction from or through which a relevant Obligor
makes any payment under the Finance Documents;
(c) any federation or organisation of which the U.K. or any
jurisdiction referred to in paragraph (b) is a member; or
(d) any political sub-division or authority of any of the above.
"REPAYMENT DATE"
means, in relation to a Revolving Credit Loan, the last day of its
Interest Period.
"REQUEST"
means a request made by a Borrower to utilise a Facility, substantially
in the form of Schedule 4.
"REVOLVING CREDIT LOAN"
means a Loan drawn down or to be drawn down under the Tranche A
Facility (other than a Term Loan) or under the Tranche B Facility.
"ROLLOVER UTILISATION"
means a requested Utilisation whose Original Currency Amount is equal
or less than an outstanding Utilisation and whose Utilisation Date
coincides with the Repayment Date or Maturity Date, as appropriate, of
that outstanding Utilisation.
"RUSSIAN JV"
means PLM Beverage Can Manufacturing Z.A.O. for so long as the Company
does not own directly or indirectly 90 per cent. or more of its issued
share capital.
"SCREEN RATE"
means:
(a) in relation to LIBOR, the average 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 either the Telerate or Reuters
screen. If that 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 Company and the Banks.
"STERLING" or "L"
means the lawful currency for the time being of the U.K.
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"SUBSIDIARY"
means:
(a) a subsidiary within the meaning of section 736 of the
Companies Xxx 0000; and
(b) unless the context otherwise requires, a subsidiary
undertaking within the meaning of section 258 of the Companies
Xxx 0000.
"SYNDICATION AGREEMENT"
means an agreement between the then Parties and other banks and
financial institutions, substantially in the form set out in the
schedule to the Syndication Side-Letter, joining in those other banks
and financial institutions into this Agreement under either the
sub-underwriting or general syndication process.
"SYNDICATION SIDE-LETTER"
means the letter between the Company and the Arrangers, dated the date
of this Agreement, relating to primary syndication (which will comprise
both the sub-underwriting and general syndication processes).
"TARGET"
means American National Can Group, Inc.
"TARGET BUSINESS DAY"
means, in relation to a transaction involving euros, a day on which the
Trans-European Automated Real-time Gross Settlement Express System
(TARGET) is operating.
"TARGET EXISTING FACILITIES"
means the U.S.$650,000,000 five year revolving credit facility of the
Target and the U.S.$650,000,000 364 day credit facility of the Target
both dated 22nd July, 1999 (as subsequently amended or extended), and
arranged by The First National Bank of Chicago, The Chase Manhattan
Bank, ABN AMRO Bank N.V., Royal Bank of Canada, Banque Nationale de
Paris, Chase Securities Inc. and Banc One Capital Markets, Inc.
"TAX TREATY BANK"
means a person carrying on a bona fide banking business who:
(a) is resident (as that term is defined in the appropriate Double
Taxation Treaty) in a country with which the United Kingdom
has an appropriate Double Taxation Treaty giving residents of
that country full exemption from United Kingdom taxation on
interest; and
(b) does not carry on business in the United Kingdom through a
permanent establishment with which the indebtedness under this
Agreement in respect of which the interest is paid is
effectively connected.
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"TAXES"
includes all present and future income and other taxes, levies,
imposts, deductions and charges and withholdings whatsoever together
with interest thereon and penalties with respect thereto, if any, and
any payments made on or in respect thereof; "TAXATION" and "TAX" shall
be construed accordingly.
"TERM DATE"
means the Tranche A Term Date or the Tranche B Term Date.
"TERM LOAN"
means a Tranche A Loan made after the exercise of the Term-Out Option.
"TERM-OUT OPTION"
means the option of the Company in Clause 5.4 (Term-Out Option) to
convert the Tranche A Facility into a term loan facility.
"TOTAL COMMITMENTS"
means the aggregate of the Total Tranche A Commitments and the Total
Tranche B Commitments.
"TOTAL TRANCHE A COMMITMENTS"
means the aggregate of the Tranche A Commitments of all the Banks,
being U.S.$1,600,000,000 at the date of this Agreement.
"TOTAL TRANCHE B COMMITMENTS"
means the aggregate of the Tranche B Commitments of all the Banks,
being euro 2,000,000,000 at the date of this Agreement.
"TRANCHE A COMMITMENT"
means:
(a) in relation to a Bank which is a Bank on the date of this
Agreement, the amount in U.S. Dollars set opposite its name in
Part I of Schedule 1 under the heading "Tranche A Commitment"
and the amount of any other Bank's Tranche A Commitment
acquired by it under Clause 30 (Changes to the Parties); and
(b) in relation to a Bank which becomes a Bank after the date of
this Agreement, the amount of any other Bank's Tranche A
Commitment acquired by it under Clause 30 (Changes to the
Parties),
to the extent not cancelled, transferred or reduced under this
Agreement.
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"TRANCHE A COMMITMENT PERIOD"
means the period from the date of this Agreement up to and including
the Tranche A Term Date.
"TRANCHE A FACILITY"
means the facility referred to in Clause 2.1(a)(i) (The Facilities).
"TRANCHE A TERM DATE"
means the earlier of:
(a) if the date of the acceptance for payment of shares of common
stock of the Target pursuant to and subject to the conditions
of a tender offer made by a subsidiary of the Company for the
Target in order to effect the Merger has not occurred, the
date falling 210 days after the date of this Agreement;
(b) the date upon which the Merger Agreement is terminated in
accordance with its terms; and
(c) the date falling 364 days from the date of this Agreement.
"TRANCHE B COMMITMENT"
means:
(a) in relation to a Bank which is a Bank on the date of this
Agreement, the amount in euros set opposite its name in Part
II of Schedule 1 under the heading "Tranche B Commitment" and
the amount of any other Bank's Tranche B Commitment acquired
by it under Clause 30 (Changes to the Parties); and
(b) in relation to a Bank which becomes a Bank after the date of
this Agreement, the amount of any other Bank's Tranche B
Commitment acquired by it under Clause 30 (Changes to the
Parties),
to the extent not cancelled, transferred or reduced under this
Agreement.
"TRANCHE B COMMITMENT PERIOD"
means the period from the date of this Agreement up to and including
the Tranche B Term Date.
"TRANCHE B FACILITY"
means the facility referred to in Clause 2.1(a)(ii) (The Facilities).
"TRANCHE B TERM DATE"
means the earlier of:
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(a) if the date of the acceptance for payment of shares of common
stock of the Target pursuant to and subject to the conditions
of a tender offer made by a subsidiary of the Company for the
Target in order to effect the Merger has not occurred, the
date falling 210 days after the date of this Agreement;
(b) the date upon which the Merger Agreement is terminated in
accordance with its terms; and
(c) the Final Maturity Date for the Tranche B Facility.
"TREATY"
means the Treaty Establishing the European Community, being the Treaty
of Rome of 25th March, 1957, as amended by the Single Xxxxxxxx Xxx 0000
and the Maastricht Treaty (which was signed at Maastricht on 7th
February, 1992 and came into force on 1st November, 1993), as amended
from time to time.
"U.K."
means the United Kingdom of Great Britain and Northern Ireland.
"U.S. DOLLARS" or "U.S.$"
means the lawful currency for the time being of the United States of
America.
"UTILISATION"
means:
(a) a Loan made or to be made; or
(b) all the Bills accepted or to be accepted on a particular date,
following the giving by a Borrower of a Request for that Loan or those
Bills.
"UTILISATION DATE"
means the date of the making of a Loan or the acceptance of a Xxxx.
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a
reference to:
(i) an "AMENDMENT" includes a supplement, novation or re-enactment
and "AMENDED" is to be construed accordingly;
"ASSETS" includes present and future properties, revenues and
rights of every description;
an "AUTHORIZATION" includes an authorization, consent,
approval, resolution, licence,
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exemption, filing and registration;
a "MONTH" is a reference to a period starting on one
day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except
that:
(1) if there is no numerically corresponding day
in the month in which that period ends, that
period shall end on the last Business Day in
that calendar month; or
(2) if an Interest Period commences 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 it is to
end;
a "PERSON" includes any person, company, partnership,
association, government, state, agency or other
entity or any of its successors and assigns;
a "REGULATION" includes any regulation, rule,
official directive, request or guideline (whether or
not having the force of law but, if not having the
force of law, being of a type which the person to
whom it applies is accustomed to comply) of any
governmental, inter-governmental or supranational
body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(ii) a provision of law is a reference to that provision
as amended or re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of
or a schedule to this Agreement;
(iv) a Finance Document or another document is a reference
to that Finance Document or other document as
amended; and
(v) a time of day is a reference to London time.
(b) Unless the contrary intention 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.
(c) The index to and the headings in this Agreement are for
convenience only and are to be ignored in construing this
Agreement.
(d) Notwithstanding that the amount of EBITA, EBITDA, External Net
Borrowings, Net Assets, Net Debt and Net Interest Payable will
be derived from the latest relevant accounts, all those terms
are to be calculated in accordance with the accounting
principles applied in connection with the Original Group
Accounts.
2. THE FACILITIES
2.1 THE FACILITIES
(a) Subject to the terms of this Agreement, the Banks agree to
make available to the Borrowers the following facilities:
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(i) a committed multicurrency revolving credit facility (with the
Term-Out Option) under which the Banks agree to make Loans to the
Borrowers up to an aggregate Original Currency Amount not
exceeding the Total Tranche A Commitments; and
(ii) a committed multicurrency revolving credit and Sterling bankers'
acceptance facility under which the Banks agree to make Revolving
Credit Loans to (or accept Bills in Sterling drawn by) the
Borrowers up to an aggregate outstanding Original Currency Amount
not exceeding the Total Tranche B Commitments.
(b) (i) The aggregate Original Currency Amount of all outstanding
Utilisations under Tranche A shall not exceed the Total Tranche
A Commitments.
(ii) The aggregate Original Currency Amount of all outstanding
Utilisations under Tranche B shall not exceed the Total Tranche B
Commitments.
(c) No Bank is obliged to lend if it would cause the Original Currency Amount
of the aggregate of its participations in the Loans and the Bills accepted
by it under Tranche A or Tranche B to exceed its relevant Commitment.
2.2 NUMBER OF UTILISATIONS AND CURRENCIES
Unless otherwise agreed by the Agent, no more than 30 Utilisations may be
outstanding at any time and Utilisations may not be denominated in more
than 10 currencies at any time.
2.3 NATURE OF A FINANCE PARTY'S RIGHTS AND OBLIGATIONS
(a) The obligations of a Finance Party under the Finance Documents are several.
Failure of a Finance Party to carry out those obligations does not relieve
any other Party of its obligations 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 a Finance Party under the Finance Documents are divided
rights. A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
3. PURPOSE
(a) Each Borrower shall apply each Utilisation made by it
(i) in the case of the Tranche A Facility, towards financing or
refinancing the costs of the Merger (including, without limitation,
refinancing the Target Existing Facilities); and
(ii) in the case of the Tranche B Facility, towards its general corporate
purposes (including, to the extent not refinanced under sub-paragraph
(i) above, the fees, costs and expenses associated with the Merger and
refinancing of the Existing Facilities and the existing indebtedness
of the Target and its Subsidiaries).
(b) Without affecting the obligations of any Borrower in any way, no Finance
Party is bound to monitor or verify the application of any Utilisation.
4. CONDITIONS PRECEDENT
4.1 DOCUMENTARY CONDITIONS PRECEDENT
(a) No Borrower may deliver the first Request until the Agent has received:
(i) all of the documents set out in Part I of Schedule 2, substantially in
the form agreed by the Agent and the Company prior to the date of this
Agreement; and
(ii) all of the documents set out in Part II of Schedule 2.
(b) Any references to an Arranger and/or this Agreement contained in the
documents referred to in sub-paragraph (a)(ii) above shall be in the form
approved by the Agent (such approval not to be unreasonably withheld or
delayed).
4.2 FURTHER CONDITIONS PRECEDENT
The obligations of each Bank to participate in any Utilisation are subject
to the further conditions precedent that:
(a) on both the date of the Request and the Utilisation Date for that
Utilisation no Event of Default and (except in the case of a Rollover
Utilisation) no Potential Event of Default is outstanding or would
result from the Utilisation; and
(b) the Utilisation would not cause Clause 2.1 (The Facilities) or Clause
2.2 (Number of Utilisations and currencies) to be contravened.
5. LOANS
5.1 COMMITMENT PERIOD
A Borrower may borrow a Loan during the relevant Commitment Period if the
Agent receives, not later than 3.00 p.m. three (or, in the case of a Loan
in Sterling, one) Business Day(s) before the proposed Utilisation Date, a
duly completed Request. Each Request is irrevocable and, subject to the
terms of this Agreement, shall oblige the Borrower to borrow the Loan.
5.2 COMPLETION OF REQUESTS
A Request will not be regarded as having been duly completed unless:
(a) it specifies whether the Loan is a Loan under the Tranche A Facility
or the Tranche B Facility;
(b) the Utilisation Date is a Business Day falling on or before the final
day of the relevant Commitment Period;
(c) the amount of the Loan is:
(i) if the currency is euro, a minimum of euro 30,000,000 and an
integral multiple of euro 5,000,000; or
(ii) if the currency is U.S. Dollars, a minimum of U.S.$30,000,000 and
an integral multiple of U.S.$5,000,000; or
(iii) if the currency is Sterling, a minimum of L20,000,000 and an
integral multiple of L5,000,000; or
(iv) if the currency is an Alternative Currency other than Sterling or
Dollars either:
(A) such amount as the Agent and the relevant Borrower may
agree; or
(B) in the absence of such agreement, the equivalent of a
minimum of euro 30,000,000 and an integral multiple of
5,000,000 units of the relevant currency, rounded on such
basis as may reasonably be determined by the Agent and
notified to the relevant Borrower; or
(v) the balance of the relevant undrawn Commitments;
(d) the amount selected under paragraph (c) above does not cause Clause
2.1 (The Facilities) to be contravened;
(e) the currency selected complies with Clause 12 (Alternative
Currencies);
(f) the Interest Period selected complies with Clause 10 (Interest
Periods) and does not extend beyond the relevant Final Maturity Date;
and
(g) the payment instructions comply with Clause 14 (Payments).
5.3 ADVANCE OF LOAN
(a) The Agent shall promptly notify each Bank of the details of the requested
Loan and the amount of its participation in the Loan.
(b) Subject to the terms of this Agreement, each Bank shall make its
participation in the Loan available to the Agent for the Borrower on the
relevant Utilisation Date.
(c) The amount of each Bank's participation in the Loan will be the proportion
of the Loan which its relevant Commitment bears to the Total Tranche A
Commitments or the Total Tranche B Commitments, as appropriate, on the
proposed Utilisation Date.
5.4 TERM-OUT OPTION
(a) The Company may, not less than 30 days' prior to the Tranche A Term Date,
give notice to the Agent to convert the Tranche A Facility into a term loan
facility.
(b) With effect from the date the notice under paragraph (a) above is given to
the Agent:-
(i) the Final Maturity Date for the Tranche A Facility shall be the date
falling 30 months after the date of this Agreement or such earlier
date as the Company may specify in
that notice; and
(ii) Loans under the Tranche A Facility may, subject to the terms of this
Agreement, be drawn down during the remainder of the Tranche A
Commitment Period, but all subsequent Loans under the Tranche A
Facility will be Term Loans.
6. DRAWING OF BILLS
6.1 RECEIPT OF REQUESTS
A Borrower may draw Bills if the Agent receives, not later than 3.00 p.m.
on the Business Day before the proposed Utilisation Date, a duly completed
Request.
6.2 FORM OF REQUESTS
A Request will not be regarded as being duly completed unless:
(a) the Utilisation Date is a Business Day before the Final Maturity Date
for the Tranche B Facility;
(b) the principal amount of the Xxxx is a minimum of L20,000,000 and an
integral multiple of L5,000,000 or such other amount as the Agent and
the Company may agree;
(c) only one term is specified which:
(i) does not overrun the Final Maturity Date for the Tranche B
Facility; and
(ii) is a period of between 14 and 187 days;
(d) the amount selected under paragraph (c) above does not cause Clause
2.1 (The Facilities) to be contravened; and
(e) the payment instructions comply with Clause 14 (Payments).
6.3 AMOUNT OF BILLS TO BE ACCEPTED BY EACH BANK
The aggregate principal amount of the Bills to be accepted by a Bank will
be the proportion of the aggregate principal amount of the Bills which its
Tranche B Commitment bears to the Total Tranche B Commitments on the
proposed Utilisation Date.
6.4 NOTIFICATION OF THE BANKS
The Agent shall, not later than 5.00 p.m. on the Business Day before the
proposed Utilisation Date, notify each Bank of the details of the requested
Bills and the aggregate principal amount of the Bills to be accepted by it.
6.5 ACCEPTANCE OF BILLS
(a) The Agent shall, not later than 11.00 a.m. on the proposed Utilisation
Date, deliver to each Bank Bills completed in accordance with Clause 7.1
(Holding and completion of Bills).
(b) Each Bank shall accept the Bills delivered to it in accordance with
paragraph (a) above.
(c) The Agent shall, not later than 11.30 a.m. on the proposed Utilisation
Date, notify the Borrower and each Bank of the applicable EBDR.
(d) Subject to the terms of this Agreement, each Bank shall pay to the Agent
for the Borrower an amount equal to:
(i) the amount which the Bank would have received as the proceeds of
discounting if it had discounted the Bills accepted by it at the
applicable EBDR; less
(ii) acceptance commission calculated at the applicable Acceptance
Commission Rate on the aggregate principal amount of those Bills.
6.6 LOANS AS AN ALTERNATIVE
(a) If the acceptance of the Bills would conflict with any limit imposed by the
Bank of England on the amount of Bills a Bank can accept or, by reason of
any law or regulation, it is otherwise impracticable for a Bank to accept
any Bills, then it may notify the Agent accordingly.
(b) If a Bank notifies the Agent in accordance with paragraph (a) above or the
Agent has notified the Company in accordance with Clause 16.4(a) (Bills),
then, subject to the terms of this Agreement, the Bank or the relevant
Banks (as the case may be) shall instead make a Loan under the Tranche B
Facility in accordance with Clause 5 (Loans) in Sterling on the relevant
Utilisation Date in a principal amount equal to the aggregate principal
amount of the Bills which it would otherwise have been obliged to accept
pursuant to this Clause 6 (Drawing of Bills).
7. BILLS
7.1 HOLDING AND COMPLETION OF BILLS
(a) Unless paragraph (d) below applies, each Borrower shall ensure that the
Agent has a sufficient stock of Bills before delivering any Request for a
Utilisation comprising Bills.
(b) Each Xxxx shall:
(i) be drawn by the Borrower in its own favour and endorsed by it in
blank;
(ii) be undated;
(iii) have the Maturity Date and the face amount left blank; and
(iv) be claused in a manner which complies with the Bank of England's
requirements for Eligible Bills at that time.
(c) Subject to the terms of this Agreement, the Agent shall:
(i) date each Xxxx with its Utilisation Date;
(ii) insert in each Xxxx the name of the Bank on which it is drawn, its
face amount and its Maturity Date; and
(iii) deliver the requisite number of completed Bills to the relevant Banks
for acceptance in accordance with this Agreement.
(d) If a power of attorney substantially in the form of Schedule 9 given to the
Agent in respect of the relevant Borrower is in effect on the relevant
Utilisation Date and no notice of revocation of that power of attorney has
been received by the Agent, then, notwithstanding the preceding paragraphs
of this Clause 7, the Agent, for and on behalf of the relevant Borrower,
shall draw, clause (so as to comply with the Bank of England's requirements
for Eligible Bills current at the time), endorse (if appropriate) and
deliver Bills to implement the relevant Utilisation in satisfaction of the
relevant Borrower's obligations under this Clause 7.
7.2 ROUNDING OF PRINCIPAL AMOUNT OF BILLS
The Agent may round the principal amount of the relevant Bills to be
accepted by each Bank to ensure that each Xxxx has a principal amount of an
integral multiple of L10,000, being not less than L100,000 nor more than
L5,000,000.
7.3 DISCOUNTING OF BILLS
Each Bank may arrange for a Xxxx accepted by it to be discounted on its
behalf in the London discount market or elsewhere or discount the Xxxx
itself.
7.4 INFORMATION RELATING TO BILLS
Each Borrower shall, promptly on request by a Finance Party, supply to the
Agent for that Finance Party any information relating to any Xxxx as that
Finance Party may reasonably require or which may be required by the Bank
of England or any other fiscal or monetary authority in the U.K.
7.5 ELIGIBLE BILLS
A Borrower shall ensure that each Xxxx drawn by it and accepted by a Bank
is, assuming that the relevant Bank is a bank whose acceptances are then
being treated as eligible acceptances by the Bank of England, eligible for
rediscounting at the Bank of England.
7.6 BILLS
(a) Any Bills delivered to the Agent under Clause 7.1(a) (Holding and
completion of Bills) shall be held for the Company's account. In
keeping and handling Bills under this Agreement the Agent shall use
all reasonable care.
(b) The Agent shall indemnify each Borrower from any loss or liability
arising from:
(i) any failure by the Agent to comply with its obligations under
paragraph (a) above; or
(ii) any unauthorised completion or use by the Agent, its officers,
agents or employees of any Xxxx.
8. REPAYMENT
8.1 REPAYMENT OF TERM LOANS
Each Borrower shall repay in full each Term Loan made to it on the Final
Maturity Date for the Tranche A Facility.
8.2 REPAYMENT OF REVOLVING CREDIT LOANS
Each Borrower shall repay in full each Revolving Credit Loan made to it on
its Repayment Date.
8.3 PAYMENT OF BILLS
Each Borrower shall pay an amount equal to the principal amount of each
Xxxx drawn by it on its Maturity Date to the Agent for the Bank that
accepted that Xxxx.
9. PREPAYMENT AND CANCELLATION
9.1 AUTOMATIC CANCELLATION
(a) The undrawn Tranche A Commitment of each Bank shall be automatically
cancelled at the close of business in London on the Tranche A Term Date.
(b) The Tranche B Commitment of each Bank shall be automatically cancelled at
the close of business in London on the Tranche B Term Date.
9.2 VOLUNTARY CANCELLATION
(a) The Company may, by giving not less than 5 Business Days' prior notice to
the Agent, at any time prior to the relevant Term Date, cancel the
unutilised portion of the Total Tranche A Commitments or the Total Tranche
B Commitments, as appropriate, in whole or in part (but, if in part, in a
minimum of U.S.$15,000,000 or euro 15,000,000 (as applicable) and an
integral multiple of U.S.$5,000,000 or euro 5,000,000 (as applicable)).
(b) Any cancellation in part shall be applied against the relevant Commitment
of each Bank pro rata.
9.3 VOLUNTARY PREPAYMENT
(a) A Borrower may, by giving not less than 5 Business Days' prior notice to
the Agent and subject to Clause 27.2(b) (Other indemnities), prepay any
Loan in whole or in part (but, if in part, in a minimum amount of
U.S.$15,000,000 or euro 15,000,000 and an integral multiple of
U.S.$5,000,000 or euro 5,000,000 or, if the Loan is denominated in an
Alternative Currency, an integral multiple of 1,000,000 of the largest
currency unit of that Alternative Currency but at least the equivalent of
U.S.$15,000,000 or euro 15,000,000).
(b) A Borrower may, by giving not less than 5 Business Days' prior notice to
the Agent, prematurely comply with its obligations under Clause 8.3
(Payment of Bills).
9.4 ADDITIONAL RIGHT OF PREPAYMENT AND CANCELLATION
If:
(a) an Obligor is required to pay to a Bank any additional amounts under
Clause 15 (Taxes); or
(b) an Obligor is required to pay to a Bank any amount under Clause 17
(Increased costs); or
(c) interest on a Bank's participation in a Loan is being calculated in
accordance with Clause 16.3(d) (Alternative basis),
then, without prejudice to the obligations of any Obligor under those
Clauses, the Company may, whilst the circumstances giving rise to the
requirement continue, serve a notice of prepayment and cancellation on
that Bank through the Agent. On the date falling five Business Days
after the date of service of the notice and subject to Clause 27.2(b)
(Other indemnities):
(i) each Borrower shall prepay that Bank's participation in all the Loans
made to it;
(ii) each Borrower shall perform its obligations under Clause 8.3 (Payment
of Bills) in respect of all outstanding Bills accepted by that Bank;
and
(iii) the Commitments of that Bank shall be cancelled.
9.5 MANDATORY PREPAYMENT OR CANCELLATION FOLLOWING DISPOSAL OR REFINANCING
(a) From the date of this Agreement until such date as a Compliance Certificate
is delivered which shows that the ratio of Net Debt to EBITDA as calculated
in accordance with Clause 21.9 (Financial covenants) is less than or equal
to 2:1, the Company shall apply at least 90 per cent. of the Net Proceeds
of any Relevant Disposal or Relevant Refinancing in prepayment of the Loans
under the Tranche A Facility.
(b) Any prepayment under paragraph (a) above will be made on the last day of
the then current Interest Period(s) for the Loans under the Tranche A
Facility. On the date(s) of that prepayment, the Total Tranche A
Commitments will be cancelled by an amount equal to the amount prepaid. Any
such cancellation shall be applied against the Tranche A Commitments of
each Bank on a pro rata basis.
(c) Notwithstanding paragraph (a) above, the Company shall only apply the Net
Proceeds of any Relevant Disposal or Relevant Refinancing in accordance
with paragraph (a) above:
(i) if the Net Proceeds of that Relevant Disposal or Relevant Refinancing
exceed U.S.$50,000,000 (or its equivalent) or the Relevant Disposal is
one which the Company is required to make as a condition of the EU
Anti-trust Clearance; and
(ii) if application in whole would result in the ratio of Net Debt to
EBITDA being less than 2:1, to the extent necessary to ensure that,
after so applying that part of those Net Proceeds, the ratio of Net
Debt to EBITDA is equal to 2:1 calculated as described
in Clause 11.5(a) (Adjustment of the Margin and Acceptance Commission
Rate).
(d) For the purpose of this Clause 9.5 and Clause 11.5 (Adjustment of the
Margin and Acceptance Commission Rate):
(i) "RELEVANT DISPOSAL" means the disposal of any asset or business
(whether by way of a share or asset sale) of a member of the Group
other than the currently envisaged sale of its printing sector;
(ii) "RELEVANT REFINANCING" means a raising of external debt finance by a
member of the Group in the capital markets or by way of a private
placement where the borrowing under that transaction has a maturity of
greater than one year; and
(iii) "NET PROCEEDS" means the proceeds of a Relevant Disposal or Relevant
Refinancing received by the relevant member of the Group after the
date of this Agreement less all directly related expenses, fees, taxes
and reserves.
(e) The Company shall ensure that, if the Net Proceeds of a Relevant Disposal
or Relevant Refinancing received by the Group which are still to be applied
in prepayment under this Clause 9 exceed at any time U.S.$200,000,000 in
aggregate, those Net Proceeds will, within three Business Days of receipt,
be placed on account with all or any of the Arrangers or their Affiliates
until application towards prepayment under this Clause 9.
9.6 MITIGATION
If, in respect of any Bank, circumstances arise which would, or would on
the giving of notice, result in:
(a) any additional amounts becoming payable under Clause 15 (Taxes); or
(b) any amount becoming payable under Clause 17 (Increased costs); or
(c) any prepayment, early payment or cancellation under Clause 18
(Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
obligations of any Obligor under this Agreement and without prejudice to
the terms of those Clauses, that Bank shall, in consultation with, and at
the expense of, the Company through the Agent and to the extent that it can
do so lawfully, take such reasonable steps as may be open to it to mitigate
or remove such circumstances, including (without limitation) the transfer
of its rights and obligations under this Agreement to another branch or an
Affiliate or another bank or financial institution nominated by the
Company, unless to do so might (in the reasonable opinion of the Bank) be
prejudicial to it.
9.7 EARLY PAYMENT OF BILLS
If a Borrower complies prematurely with its obligations under Clause 8.3
(Payment of Bills) in respect of a Xxxx, it will only be obliged to pay to
each relevant Bank an amount (calculated by the Agent) as would be
necessary to ensure that the Bank would receive on the original Maturity
Date of the Xxxx the face amount of the Xxxx, assuming that the amount
received was deposited on the Business Day following receipt of that amount
from (and including) that
date up to (but excluding) the original Maturity Date accruing interest at
a normal commercial rate.
9.8 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable. The Agent shall notify the Banks promptly of receipt of any
such notice.
(b) All prepayments under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to Clause 27.2 (Other
indemnities), without premium or penalty.
(c) No prepayment or cancellation is permitted except in accordance with the
express terms of this Agreement.
(d) Subject to the terms of this Agreement, Revolving Credit Loans prepaid
under Clause 9.3 (Voluntary prepayment) prior to the relevant Final
Maturity Date may subsequently be reborrowed.
(e) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
(f) Except as permitted by paragraph (d) above and without prejudice to the
right of a Borrower to re-borrow or re-draw amounts repaid under Clause 8.2
(Repayment of Revolving Credit Loans) or 8.3 (Payment of Bills), no amount
repaid or prepaid under this Agreement may subsequently be re-borrowed
(including any amount prepaid under Clause 9.5 (Mandatory prepayment or
cancellation following disposal or refinancing)).
10. INTEREST PERIODS
10.1 SELECTION
(a) (i) Each Term Loan will have successive Interest Periods.
(ii) Each Revolving Credit Loan has one Interest Period only.
(b) A Borrower may select the Interest Period for a Revolving Credit Loan in
the relevant Request. Each Interest Period for a Revolving Credit Loan will
commence on its Utilisation Date.
(c) A Borrower may select the Interest Period for a Term Loan in the relevant
Request or, if the Term Loan has been borrowed, in a notice received by the
Agent not later than 3.00 p.m. three (or, in the case of Sterling, one)
Business Day(s) before the commencement of that Interest Period. Each
Interest Period for a Term Loan (other than the first which shall commence
on its Utilisation Date) shall commence on the expiry of its preceding
Interest Period.
(d) Subject to the following provisions of this Clause 10, each Interest Period
will be one, two, three or six months or any other period agreed by the
relevant Borrower and the Agent.
(e) If the Borrower fails to select an Interest Period for a Term Loan in
accordance with paragraph (b) above, that Interest Period will, subject to
the other provisions of this Clause
10, be three months.
10.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period shall instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if
there is not).
10.3 COINCIDENCE WITH FINAL MATURITY DATES
If an Interest Period for a Loan would otherwise overrun the relevant Final
Maturity Date, it will be shortened so that it ends on that Final Maturity
Date.
10.4 OTHER ADJUSTMENTS
The Agent (after consultation with the Banks) and the Company may enter
into such other arrangements as they may agree for the adjustment of
Interest Periods and the consolidation and/or splitting of Loans.
10.5 NOTIFICATION
The Agent shall notify the relevant Borrower and the Banks of the duration
of each Interest Period promptly after ascertaining its duration.
11. INTEREST
11.1 INTEREST RATE
The rate of interest on each Loan for each of its Interest Periods is the
rate per annum determined by the Agent to be the aggregate of the
applicable:
(a) Margin;
(b) LIBOR or, in the case of a Loan in euros, EURIBOR; and
(c) Mandatory Cost.
11.2 DUE DATES
Except as otherwise provided in this Agreement, accrued interest on each
Loan is payable by the relevant Borrower on the last day of each Interest
Period for that Loan and also, if the Interest Period is longer than six
months, on the dates falling at six monthly intervals after the first day
of that Interest Period.
11.3 DEFAULT INTEREST
(a) (i) If an Obligor fails to pay any amount payable by it under the Finance
Documents, it shall forthwith on demand by the Agent pay interest on
the overdue amount from the due date up to the date of actual payment,
as well after as before judgment, at a rate (the "DEFAULT RATE")
determined by the Agent to be one per cent. per annum above, subject
to sub-paragraph (ii) below, 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 such successive
Interest Periods of such duration as the Agent may determine having
due regard to the likely date for payment of the overdue amount (each
a "DESIGNATED INTEREST PERIOD").
(ii) If the overdue amount is a principal amount of a Loan and it becomes
due and payable prior to the last day of an Interest Period for that
Loan, then:
(1) the first Designated Interest Period for that overdue sum will be
the unexpired portion of that Interest Period; and
(2) the rate of interest on the overdue amount for that first
Designated Interest Period will be one per cent per annum above
the rate on the overdue amount under Clause 11.1 (Interest rate)
immediately before the due date.
After the expiry of the first Designated Interest Period for that
overdue amount, the rate on the overdue amount will be calculated in
accordance with sub-paragraph (i) above.
(b) The default rate will be determined by the Agent on each Business Day or
the first day of, or two Business Days before the first day of, the
relevant Designated Interest Period, as appropriate.
(c) If, for any Designated Interest Period, LIBOR cannot be determined, the
rate of interest applicable to any overdue amount shall be the aggregate of
one per cent. per annum, the applicable Margin and the rate per annum
determined by the Agent to be the arithmetic mean (rounded upwards to the
nearest four decimal places) of the rates notified by each Reference Bank
to the Agent before the last day of the Designated Interest Period to be
those which express as a percentage rate per annum the cost to it of
funding from whatever source it may reasonably select its portion of the
overdue amount for the Designated Interest Period.
(d) Default interest will be compounded at the end of each Designated Interest
Period.
11.4 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify each relevant Party of the determination of
a rate of interest under this Agreement.
11.5 ADJUSTMENT OF THE MARGIN AND ACCEPTANCE COMMISSION RATE
(a) After the Merger Date, the Company shall deliver to the Agent no later than
30 days after:
(i) in the case of the second and final financial quarters of the Group,
the publication of its interim or preliminary results (as
appropriate);
(ii) the end of the first and third financial quarters of the Group;
(iii) a Relevant Disposal (as defined in Clause 9.5(d) (Mandatory
prepayment or cancellation following disposal)) if the Net Proceeds of
that Relevant Disposal exceed U.S.$50,000,000 (or its equivalent);
(iv) any equity issue to persons (other than members of the Group) by any
member of the Group which is used to permanently reduce Net Debt or is
earmarked to permanently reduce Net Debt; or
(v) the date of an acquisition funded by an equity issue to persons (other
than members of the Group) by any member of the Group,
a Margin Certificate signed by an authorised signatory of the Company for
the purposes of calculating whether the Margin or the Acceptance Commission
Rate is to be adjusted in accordance with this Clause 11.5. In the case of
a Margin Certificate under paragraph (iii)-(v), the Company may opt not to
send a Margin Certificate if the Relevant Disposal, equity issue or
acquisition occurs within thirty days of the end of a financial quarter. A
Margin Certificate delivered under sub-paragraphs (ii) - (v) above shall be
based on the financial information relating to the Ratio Period ending on
the most recent financial quarter of the Group, but adjusted to reflect the
pro forma effect of the Relevant Disposals and/or equity issues and/or
acquisitions which have occurred since the end of that Ratio Period.
(b) Following delivery of the first Margin Certificate, the Margin and
Acceptance Commission Rate for the Tranche B Facility will be adjusted as
appropriate by reference to the ratio of Net Debt to EBITDA for the
relevant Ratio Period as set out in the most recent Margin Certificate as
follows:
NET DEBT: EBITDA MARGIN/ACCEPTANCE COMMISSION RATE
(PER CENT. PER ANNUM)
Above 3:1 0.95
less than or equal to 3:1 but greater 0.85
than 2.5:1
less than or equal to 2.5:1 but greater 0.70
than or equal to 2:1
less than 2:1 0.55
(c) Subject to paragraph (d) below, the adjustment (if any) specified in
paragraph (b) above will apply in the case of each subsequent Utilisation
under the Tranche B Facility from its Utilisation Date.
(d) Notwithstanding paragraph (c) above, if the accounts of the Company
delivered under Clause 21.2 (Information) for the relevant period show a
different ratio of Net Debt to EBITDA than that in the corresponding Margin
Certificate, then the Company shall deliver a revised Margin Certificate
which will be used to determine the relevant Margin. If this would result
in a different Margin, then the different Margin will apply from the date
it would have applied if the initial Margin Certificate had shown the same
ratio as the revised Margin Certificate. If necessary, the Company will
promptly pay such amount as the Agent may require to correct the difference
or, as the case may be, the Agent will deduct the amount of any overpayment
of Margin by a Borrower from the next interest payment due from that
Borrower.
12. ALTERNATIVE CURRENCIES
12.1 SELECTION
(a) A Borrower may select the currency of a Loan in the relevant Request.
(b) The currency of each Loan must be a Base Currency or an Alternative
Currency.
(c) The Agent shall notify each Bank and the relevant Borrower of the Original
Currency Amount of each Loan denominated in an Alternative Currency and the
applicable Agent's Spot Rate of Exchange promptly after they are
ascertained.
12.2 REVOCATION OF CURRENCY
If, before 9.30 a.m. on any Rate Fixing Day for a Loan denominated in an
Alternative Currency (other than euros, Sterling or Dollars), the Agent
receives notice from a Bank that:
(a) it is impracticable for that Bank to fund its participation in the
Loan in the relevant Alternative Currency during that Interest Period
in the ordinary course of business in the London interbank market;
and/or
(b) the use of the proposed Alternative Currency would contravene any law
or regulation,
the Agent shall give notice to the relevant Borrower and to the Banks to
that effect before 11.00 a.m. on that day. In this event:
(i) the Borrower and the Banks may agree that the drawdown will not be
made; or
(ii) in the absence of agreement, that Bank's participation in the Loan (or
if more than one Bank is similarly affected, those Banks'
participations in the Loan) shall be treated as a separate Loan
denominated in the relevant Base Currency during that Interest Period.
13. AMOUNT OF ALTERNATIVE CURRENCIES
13.1 TERM LOANS
A Term Loan is to be denominated in the same currency until the Final
Maturity Date for the Tranche A Facility.
13.2 SAME ALTERNATIVE CURRENCY
If a Term Loan is to be continued during its next Interest Period in the
same Alternative Currency as that in which it is denominated during its
current Interest Period, no adjustment need be made to the amount of that
Term Loan.
13.3 NOTIFICATION
The Agent shall notify the Banks and the relevant Borrower of Alternative
Currency amounts (and the applicable Agent's Spot Rate of Exchange)
promptly after they are ascertained.
14. PAYMENTS
14.1 PLACE
All payments by an Obligor or a Bank under the Finance Documents shall be
made to the Agent to its account at such office or bank:
(a) in the principal financial centre of the country of the relevant
currency (other than euros); or
(b) in the case of euros, in the principal financial centre of a
Participating Member State or London,
as it may notify to that Obligor or Bank for this purpose. Notwithstanding
the above, all payments by the Company to the Arrangers under Clauses 24
(Fees) and 25 (Expenses) shall be made direct to the Arrangers in the
manner agreed by the Arrangers and the Company. A payment by an Obligor
under the Finance Documents to the Agent in accordance with this Clause
constitutes a good discharge of that Obligor's obligations.
14.2 FUNDS
Payments under the Finance Documents to the Agent shall be made for value
on the due date in such funds as the Agent may specify to the Party
concerned as being customary at the time for the settlement of transactions
in the relevant currency in the place for payment.
14.3 DISTRIBUTION
(a) Each payment received by the Agent under the Finance Documents for another
Party shall, subject to paragraphs (b) and (c) below, be made available by
the Agent to that Party by payment (on the date and in the currency and
funds of receipt) to its account with such office or bank:
(i) in the principal financial centre of the country of the relevant
currency (other than euros); or
(ii) in the case of euros, in the principal financial centre of a
Participating Member State or London,
as it may notify to the Agent for this purpose by not less than five
Business Days' prior notice.
(b) If the relevant Obligor agrees, the Agent may apply any amount received by
it for an 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 the purchase of any amount of any currency to be
so applied.
(c) 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 Party until
it has established that it has actually received that sum. The Agent may,
however, assume that the sum has been paid to it in accordance with this
Agreement, and, in reliance on that assumption, make available to that
Party a corresponding amount. If the sum has not been made available but
the Agent has paid a corresponding amount to another Party, that Party
shall forthwith on demand by the Agent refund the corresponding amount
together with interest on that amount from the date of payment to the date
of receipt, calculated at a rate determined by the Agent to reflect its
cost
of funds.
14.4 CURRENCY
(a) A repayment or prepayment of a Loan or any part of a Loan is payable in the
currency in which the Loan is denominated on its due date.
(b) Interest is payable in the currency in which the relevant amount in respect
of which it is payable is denominated.
(c) Amounts payable in respect of costs, expenses and taxes and the like are
payable in the currency in which they are incurred.
(d) Any other amount payable under the Finance Documents is, except as
otherwise provided in this Agreement, payable in euros.
(e) (i) All Loans requested in the currency of a Participating Member State
shall, subject to the terms of this Agreement, be made in euros; and
(ii) payments by the Agent to the Banks in the currency of a Participating
Member State shall be made in euros.
14.5 SET-OFF AND COUNTERCLAIM
All payments made by an Obligor under the Finance Documents shall be made
without set-off or counterclaim.
14.6 NON-BUSINESS DAYS
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment shall instead be 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 under
this Agreement interest is payable on that principal at the rate payable on
the original due date.
14.7 PARTIAL PAYMENTS
(a) If the Agent receives a payment insufficient to discharge all the amounts
then due and payable by the Obligors under the Finance Documents, the Agent
shall apply that payment towards the obligations of the Obligors 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 under the Finance Documents;
(ii) SECONDLY, in or towards payment of any commitment fee due under Clause
24.3 (Commitment fee) but unpaid;
(iii) THIRDLY, in or towards payment pro rata of any accrued interest due
but unpaid under this Agreement;
(iv) FOURTHLY, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
(v) FIFTHLY, 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 all the Banks, vary the order set out in
sub-paragraphs (a)(ii) to (v) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by an
Obligor.
15. TAXES
15.1 GROSS-UP
All payments by an Obligor under the Finance Documents shall be made
without any deduction and free and clear of and without any deduction for
or on account of any Relevant Taxes, except to the extent that the Obligor
is required by law to make payment subject to any Relevant Taxes. If any
Relevant Tax, or amounts in respect of Relevant Tax, must be deducted from
any amounts payable or paid by an Obligor, or paid or payable by the Agent
to a Bank, under the Finance Documents, the Obligor shall pay such
additional amounts as may be necessary to ensure that the relevant Bank
receives a net amount equal to the full amount which it would have received
had payment not been made subject to Relevant Tax.
15.2 TAX RECEIPTS
All Relevant Taxes required by law to be deducted by an Obligor from any
amounts paid or payable under the Finance Documents shall be paid by the
relevant Obligor when due and the Obligor shall, within 30 days of the
payment being made, deliver to the Agent for the relevant Bank appropriate
evidence that the payment has been duly remitted to the appropriate
authority.
15.3 QUALIFYING BANKS
(a) (i) Subject to paragraph (b) below, if a Bank is not or ceases to be a
Qualifying Bank, no Obligor incorporated in the U.K. will be liable to
pay to that Bank under Clause 15.1 (Gross-up), any amount in respect
of taxes levied or imposed by the U.K. or any taxing authority of or
in the U.K. in excess of the amount it would have been obliged to pay
if that Bank had been, or had not ceased to be, a Qualifying Bank; or
(ii) No Obligor incorporated in the U.K. will be liable to pay to a Tax
Treaty Bank under Clause 15.1 (Gross-up) any amount in respect of
taxes levied or imposed in the U.K. or any taxing authority of or in
the U.K. in excess of the amount it would have been obliged to pay if
the Financial Intermediaries and Claims Office of the Inland Revenue
had determined that it was entitled to receive payments of interest
under this Agreement without deduction or withholding in respect of
any Tax.
(b) Paragraph (a)(i) above does not apply if a Bank ceases to be a Qualifying
Bank as a result of the introduction of, change in, or any change in the
interpretation, administration or application of, any law or regulation or
any practice or concession of the U.K. Inland Revenue occurring after the
date of this Agreement.
(c) (i) Each Bank represents and warrants to each Obligor incorporated in the
U.K. that it is a Qualifying Bank. Subject to sub-paragraph (iii)
below, this representation and warranty shall be deemed to be repeated
by each Bank on each date on which it participates in the making of a
Loan and on each date on which any payment of interest in respect of
any Loan is due to be made to it pursuant to this Agreement.
(ii) If the Income and Corporation Taxes Act 1988 is amended or repealed or
there is any change in its interpretation, the Agent may, after
consultation with the Company, amend this representation to reflect
the amendment or repeal of that Act or change in interpretation.
(iii) If the Income and Corporation Taxes Act 1988 is amended or repealed,
or there is a change in interpretation, in a manner which requires an
amendment to the representation under sub-paragraph (i) above, no Bank
is obliged to make the representation unless and until the
representation is amended in a manner acceptable to the Bank.
(d) Each Finance Party shall cooperate with the relevant Obligor and the Agent
in respect of any application to the relevant revenue authorities by the
completion and execution (as soon as reasonably practicable following a
request from the Obligor or the Agent) of such certificates, claim forms or
other documentation as:
(i) the Finance Party is reasonably able to complete and execute without
incurring any significant administrative burden on its part; and
(ii) the Obligor or the Agent reasonably requests for the purpose of
enabling the Obligor or the Agent to obtain authorisation from the
relevant revenue authorities to make interest payments in full without
deduction or withholding of Tax.
(e) No additional amount shall be payable pursuant to Clause 15.1 (Gross-up) in
respect of any deduction or withholding for or on account of Tax which
would not have been required to be deducted or withheld if the person to
whom that payment was made had complied with the obligations assumed by it
under paragraph (d) above.
15.4 REIMBURSEMENT OF TAX CREDITS
If:
(a) an Obligor pays any additional amount (a "TAX PAYMENT") under Clause
15.1 (Gross-up); and
(b) a Bank effectively obtains a refund of Tax, or credit against Tax on
its overall net income, by reason of that Tax Payment (a "TAX
CREDIT"); and
(c) that Bank is able to identify such Tax Credit as being attributable to
the Tax Payment,
then the Bank shall reimburse to the relevant Obligor such proportion of
such Tax Credit as will leave the Bank, after that reimbursement, in no
better or worse position than it would have been in if such Tax Payment had
not been required. Each Bank shall use its reasonable
endeavours to claim any Tax Credit which may be due to it unless to do so
might be prejudicial to it. No Bank is obliged to disclose any information
regarding its tax affairs or computations to any Obligor.
16. MARKET DISRUPTION
16.1 ABSENCE OF QUOTATIONS
If LIBOR or EURIBOR is to be determined by reference to the Reference Banks
but a Reference Bank does not supply an offered rate by 11.30 a.m. (local
time) on the relevant Rate Fixing Day, the applicable LIBOR or EURIBOR
shall, subject to Clause 16.2 (Market disruption), be determined on the
basis of the quotations of the remaining Reference Banks.
16.2 MARKET DISRUPTION
If:
(a) LIBOR or EURIBOR is to be determined by reference to the Reference
Banks but no, or only one, Reference Bank supplies a rate by 11.30
a.m. (local time) on the Rate Fixing Day or the Agent otherwise
determines that adequate and fair means do not exist for ascertaining
LIBOR or EURIBOR; or
(b) the Agent receives notification from Banks whose participations in a
Loan exceed 50 per cent. of that Loan that, in their opinion, by
reason of factors affecting the relevant interbank market generally:
(i) matching deposits may not be available to them in the relevant
interbank market in the ordinary course of business to fund their
participations in that Loan for the relevant Interest Period; or
(ii) the cost to them of matching deposits in the relevant interbank
market would be in excess of the relevant LIBOR or EURIBOR, as
appropriate, for the relevant Interest Period,
the Agent shall promptly notify the relevant Borrower and the Banks of the
fact and that this Clause 16 is in operation.
16.3 ALTERNATIVE BASIS
If a notification under Clause 16.2 (Market disruption) applies:
(a) (i) in the case of a Loan which has not been made, and unless the
relevant Borrower notifies the Agent to the contrary before close
of business on the day it received the notification under Clause
16.2 (Market disruption), the Loan shall still be made but it
shall be denominated (at the option of the Agent) in euros,
Sterling or Dollars (or a combination thereof), shall have an
Interest Period of one month and the interest payable on that
Loan shall be determined in accordance with this Clause 16.3; and
(ii) in the case of a Term Loan which has been made, the Loan shall
continue but it shall have an Interest Period of one month and
the interest payable on that
Loan shall be determined in accordance with this Clause 16.3;
(b) within five Business Days of receipt of the notification for a Loan under
Clause 16.2 (Market disruption), the Company and the Agent shall enter into
negotiations for a period of not more than 30 days with a view to agreeing
an alternative basis for determining the rate of interest and/or funding
applicable to that Loan;
(c) any alternative basis agreed under paragraph (b) above shall be, with the
prior consent of all the Banks, binding on all the Parties;
(d) if no alternative basis is agreed each Bank shall (through the Agent)
certify on or before 10.00 a.m. on the last day of the Interest Period (in
respect of a Loan in Sterling) or 10.00 a.m. on the second Business Day
before the last day of the Interest Period (in respect of a Loan in euros
or an Alternative Currency other than Sterling) to which the notification
relates an alternative basis for maintaining its participation in that
Loan;
(e) any alternative basis under paragraph (b) or (d) above may include an
alternative method of fixing the interest rate, alternative Interest
Periods or alternative currencies but it must reflect the cost to each Bank
of funding its participation in the Loan from whatever sources it may
select in order to provide the relevant Borrower with funds on as economic
a basis as is practicable (having regard to the sources then known to the
Bank) plus the applicable Margin plus any applicable Mandatory Cost;
(f) each alternative basis so certified shall be binding on the Obligors and
each certifying Bank and treated as part of this Agreement; and
(g) the Agent and the Company shall consult in good faith following any
significant change in market conditions with a view to returning to the
normal provisions of this Agreement.
16.4 BILLS
(a) If, in relation to any Bills:
(i) the Agent determines that adequate and fair means do not exist for
ascertaining the applicable EBDR; or
(ii) the Agent determines that the Bills do not comply with the then
current Bank of England regulations for Sterling bankers' acceptances,
the Agent shall promptly notify the Company and the relevant Banks of the
fact that this Clause 16.4 is in operation.
(b) After any notification under paragraph (a) above:
(i) the relevant Bills shall not be accepted; and
(ii) in the case of sub-paragraph (a)(i) above, no further Requests for
Bills may be delivered until the Agent notifies the Company that it is
once again able to determine
the EBDR.
17. INCREASED COSTS
17.1 INCREASED COSTS
(a) Subject to Clause 17.2 (Exceptions), the Company shall within 14 days of
demand by a Bank pay to that Bank the amount of any increased cost incurred
by it or its Holding Company as a result of:
(i) the introduction of, or any change in, or any change in the
interpretation or application of any law or regulation; or
(ii) compliance with any regulation made after the date of this Agreement,
including any law or regulation relating to taxation, or reserve asset,
special deposit, cash ratio, liquidity or capital adequacy requirements or
any other form of banking or monetary control.
(b) In this Agreement "INCREASED COST" means:
(i) an additional cost incurred by a Bank or its Holding Company as a
result of having entered into, or performing, maintaining or funding
its obligations under, this Agreement; or
(ii) that portion of an additional cost incurred by a Bank or its Holding
Company in making, funding or maintaining all or any advances
comprised in a class of advances formed by or including that Bank's
participations in the Loans made or to be made under this Agreement as
is attributable to that Bank making, funding or maintaining those
participations; or
(iii) a reduction in any amount payable to a Bank or its Holding Company or
the effective return to a Bank or its Holding Company under this
Agreement or (to the extent that it is attributable to this Agreement)
on its capital.
(c) Each Bank shall notify the Company promptly upon it becoming aware of any
increased cost incurred (or which is reasonably likely to be incurred) by
it or its Holding Company.
17.2 EXCEPTIONS
Clause 17.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the payment of the Mandatory Cost; or
(b) referred to in Clause 15 (Taxes); or
(c) attributable to tax on the overall net income of a Bank or its Holding
Company; or
(d) which is referable to wilful default by a Bank or its Holding Company.
17.3 ECB COST
The Company shall within 14 days of demand by a Bank pay to that Bank
the amount of the cost of compliance by it with the reserve asset
requirements of the European Central Bank which is referable to this
Agreement.
18. ILLEGALITY
If it is or becomes unlawful in any jurisdiction for a Bank to give effect
to any of its obligations as contemplated by this Agreement or to fund or
maintain its participation in any Utilisation, then:
(a) that Bank may notify the Company through the Agent accordingly; and
(b) (i) each Borrower shall forthwith or (if later) on the latest
date(s) permitted by the relevant law prepay the participations
of that Bank in all the Loans made to it;
(ii) each Borrower's obligations under Clause 8.3 (Payments of Bills)
in respect of Bills accepted by that Bank shall immediately or
(if later) on the latest date(s) permitted by the relevant law
become due for performance and that Borrower shall immediately
perform those obligations; and
(iii) the Commitments of that Bank shall forthwith or (if later) on
the latest date(s) permitted by the relevant law be cancelled.
19. GUARANTEE
19.1 GUARANTEE
Each Guarantor irrevocably and unconditionally:
(a) as principal obligor guarantees to each Finance Party prompt
performance by each Borrower of all its obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever a Borrower does not
pay any amount when due under or in connection with any Finance
Document, the relevant Guarantor shall within 5 Business Days of
demand by the Agent pay that amount as if that Guarantor instead of
the relevant Borrower were expressed to be the principal obligor; and
(c) indemnifies as primary obligor each Finance Party on demand against
any loss or liability suffered by it if any obligation guaranteed by
that Guarantor is or becomes unenforceable, invalid or illegal.
19.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by the Borrowers under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
19.3 REINSTATEMENT
(a) Where any discharge (whether in respect of the obligations of any Obligor
or any security for those obligations or otherwise) is made in whole or in
part or any arrangement is made on the faith of any payment, security or
other disposition which is avoided or must be restored on insolvency,
liquidation or otherwise without limitation, the liability of a Guarantor
under this Clause 19 shall continue as if the discharge or arrangement had
not occurred.
(b) Each Finance Party may concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
restoration if it has received legal advice to this effect.
19.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 19 will not be affected
by an act, omission, matter or thing which, but for this provision, would
reduce, release or prejudice any of its obligations under this Clause 19 or
prejudice or diminish those obligations in whole or in part, including
(whether or not known to it or any Finance Party):
(a) any time or waiver granted to, or composition with, any Obligor or
other person;
(b) 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;
(c) any incapacity or lack of powers, authority or legal personality of or
dissolution or change in the members or status of an Obligor or any
other person;
(d) any variation (however fundamental) or replacement of a Finance
Document or any other document or security so that references to that
Finance Document in this Clause 19 shall include each variation or
replacement;
(e) any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document or any other document or
security, to the intent that the Company's obligations under this
Clause 19 shall remain in full force and its guarantee be construed
accordingly, as if there were no unenforceability, illegality or
invalidity; or
(f) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any Obligor under a
Finance Document resulting from any insolvency, liquidation or
dissolution proceedings or from any law, regulation or order so that
each such obligation shall for the purposes of each Guarantor's
obligations under this Clause 19 be construed as if there were no such
circumstance.
19.5 IMMEDIATE RECOURSE
Each 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 that Guarantor under this Clause 19.
19.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Borrowers 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 no Guarantor shall be entitled to the
benefit of the same; and
(b) hold in a suspense account any moneys received from a Guarantor or on
account of that Guarantor's liability under this Clause 19, and
interest will accrue on those moneys at the rate payable by the
relevant Borrower on the corresponding amount outstanding under this
Agreement.
19.7 NON-COMPETITION
Until all amounts which may be or become payable by the Borrowers under or
in connection with the Finance Documents have been irrevocably paid in
full, no Guarantor shall, after a claim has been made or by virtue of any
payment or performance by it under this Clause 19:
(a) be subrogated to any rights, security or moneys held, received or
receivable by any Finance Party (or any trustee or agent on its
behalf) or be entitled to any right of contribution or indemnity in
respect of any payment made or moneys received on account of that
Guarantor's liability under this Clause 19;
(b) claim, rank, prove or vote as a creditor of any Obligor or its estate
in competition with any Finance Party (or any trustee or agent on its
behalf); or
(c) receive, claim or have the benefit of any payment, distribution or
security from or on account of any Obligor, or exercise any right of
set-off as against any Obligor,
unless the Agent otherwise directs. Each Guarantor shall hold in trust for
and forthwith pay or transfer to the Agent for the Finance Parties any
payment or distribution or benefit of security received by it contrary to
this Clause 19.7 or as directed by the Agent.
19.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other security now or subsequently held by any Finance Party.
20. REPRESENTATIONS AND WARRANTIES
20.1 REPRESENTATIONS AND WARRANTIES
(a) Each Obligor makes the representations and warranties set out in this
Clause 20.2 (Status) to 20.6 (Consents) inclusive to each Finance Party on
the date of this Agreement.
(b) The Company makes the representations and warranties set out in this Clause
20.7 (Accounts) to Clause 20.10 (No default) inclusive to each Finance
Party on the date of this Agreement.
20.2 STATUS
It is a limited liability company, duly incorporated and validly existing
under the laws of its jurisdiction of incorporation.
20.3 POWERS AND AUTHORITY
It has the corporate power to enter into and perform its obligations under
the Finance Documents to which it is a party and has taken all necessary
corporate action to authorise the entry into and performance of its
obligations under those Finance Documents.
20.4 LEGAL VALIDITY
This Agreement constitutes, and each other Finance Document to which it is
a party (when executed in accordance with the terms of this Agreement) will
constitute, its legal, valid, binding and enforceable obligation (subject
to the qualifications as to matters of law only expressed in any legal
opinion delivered to the Agent pursuant to this Agreement).
20.5 NON-CONFLICT
The entry into and performance of each Finance Document does not and will
not conflict with:
(a) any applicable law or regulation or any applicable official or
judicial order in the jurisdiction of its incorporation;
(b) its constitutional documents; or
(c) any document to which it is a party or which is binding upon it or any
of its assets.
20.6 CONSENTS
All applicable material authorisations required in the jurisdiction of its
incorporation by it in connection with the entry into, performance,
validity and enforceability of each Finance Document to which it is a party
and the transactions contemplated by each such Finance Document have been
obtained or effected and are in (or will at the relevant time be) full
force and effect.
20.7 ACCOUNTS
The audited consolidated accounts of the Company most recently delivered to
the Agent (which, at the date of this Agreement, are the audited
consolidated accounts for the financial year of the Group ended 31st
December, 1998):
(a) have been prepared in accordance with accounting principles and
standards generally accepted in the U.K. and consistently applied or
(if not consistently applied) are accompanied by details of the
inconsistencies; and
(b) give a true and fair view of consolidated financial condition of the
Company as at the date to which they were drawn up.
20.8 LITIGATION
Save as disclosed to the Agent at the date of this Agreement, no
litigation, arbitration or administrative proceedings has been commenced
or, to its knowledge, is threatened or pending against any member of the
Group which would be reasonably likely to have a Material Adverse Effect.
20.9 FINANCIAL CONDITION
There has been no material adverse change, as at the date of this
Agreement, in the consolidated financial condition of the Company taken as
a whole from that shown in the audited consolidated accounts of the Company
for the year ended 31st December, 1998.
20.10 NO DEFAULT
No Event of Default or (unless this representation is being repeated or
deemed to be repeated on the date of a Request or a Utilisation Date in
respect of a Rollover Utilisation) Potential Event of Default has occurred
and is continuing.
20.11 REPETITION
The representations set out in this Clause 20 shall survive the execution
of this Agreement and (unless the representation or warranty is
specifically expressed to be given only at the date of this Agreement)
shall be deemed to be repeated on each Utilisation Date by the Company and
on the first day of each Interest Period, with reference to the facts and
circumstances then subsisting, as if made at each such time.
21. UNDERTAKINGS
21.1 DURATION
The undertakings in this Clause 21 remain in force from the date of this
Agreement for so long as any amount is or may be outstanding under this
Agreement or any Commitment is in force, except that Clauses 21.7 (Negative
pledge), 21.8 (Disposals) and 21.12 (Environmental Laws) to 21.14
(Insurance) inclusive will not apply to the Target or any of its
Subsidiaries during the Clean-up Period.
21.2 INFORMATION
The Company shall supply to the Agent in sufficient copies for all the
Banks in respect of the items referred to in paragraphs (a) and (b) below
and in sufficient copies for all the Banks in respect of the items referred
to in paragraphs (c) and (d) below if the Agent so requests:
(a) as soon as practicable (and in any event within 180 days after the
close of each of its financial years), the audited consolidated
accounts of the Company and the annual accounts of each Obligor for
that year;
(b) as soon as practicable (and in any event within 120 days of the end of
the first half of
each of its financial years), the financial information relating to
the Company and its Subsidiaries for that half-year in the form
required to be produced by the London Stock Exchange and in
substantially the same form as previously provided under this
Agreement or (if not) with details of the changes;
(c) all notices or other documents despatched by the Company to the
Company's shareholders (or any class thereof) as soon as practicable
after the same are despatched; and
(d) as soon as practicable, such further available information regarding
the financial condition and operations of the Company or the Group
which is material for evaluation of any Obligor's ability to perform
its obligations under the Finance Documents, as the Agent may
reasonably request.
21.3 NOTIFICATION OF DEFAULT
The Company shall notify the Agent of any Event of Default and of any other
event which with the giving of notice by the Agent and subsequent lapse of
time would be reasonably likely to become an Event of Default promptly upon
becoming aware of its occurrence.
21.4 COMPLIANCE CERTIFICATES
The Company shall, as soon as practicable and in any event within 180 days
of the end of each of its financial years and within 120 days of the end of
the first half of each of its financial years, supply the Agent with a
Compliance Certificate which must be signed by:
(a) if requested by the Agent in the case of a Compliance Certificate as
at the end of its financial year, its auditors; or
(b) in any other case, an authorised signatory of the Company.
21.5 CONSENTS
The Company shall obtain and promptly renew from time to time, and will
promptly upon the request of the Agent furnish certified copies to the
Agent of, all such material authorisations as may be required under any
applicable law or regulation to enable any Obligor to perform its
obligations under any Finance Document.
21.6 PARI PASSU RANKING
Each Obligor undertakes that its obligations under the Finance Documents
shall rank at least pari passu with all of its other present and future
unsecured obligations other than those obligations which are mandatorily
preferred by law and not by reason of contract.
21.7 NEGATIVE PLEDGE
No Obligor shall, and the Company shall not permit any member of the Group
to, create or permit to subsist any Encumbrance on the whole or any part of
their respective present or future assets to secure any of their respective
Borrowed Monies, except for the following:
(a) Encumbrances created with the prior consent of the Majority Banks or
which the
Majority Banks agree should not be taken into account;
(b) any Encumbrance subsisting over the assets of any company prior to the
date of such company becoming a Subsidiary of the Company, but only to
the extent that the maximum aggregate principal amount of Borrowed
Monies capable of being secured by the Encumbrance at that date is not
subsequently increased;
(c) any Encumbrance over any assets (or documents of title thereto)
acquired by the Company or any such Subsidiary as security for, or for
indebtedness incurred to finance or refinance, all or part of the
acquisition price or the development, redevelopment, modification or
improvement thereof;
(d) any Encumbrance over any assets (or documents of title thereto) which
are acquired by the Company or any such Subsidiary subject to such
Encumbrance;
(e) in connection with any specific contract for the sale, lease or other
disposal of goods, any Encumbrance on the interest of the Company or
any such Subsidiary in:
(i) any contract for such sale, lease or other disposal including the
Company's or any such Subsidiary's interest in the consideration
receivable thereunder; or
(ii) such underlying goods; or
(iii) all other rights, interests, documents and things made, held,
arising or created in connection with any of the foregoing
including, without limiting the generality of the foregoing,
bills of exchange or other negotiable instruments, policies,
letters of credit, guarantees, indemnities or Encumbrances to
secure any of the foregoing;
(f) any other Encumbrance over any assets of the Company or any such
Subsidiary so long as the lower of the aggregate amount of Borrowed
Monies secured by such Encumbrances and the book value of the assets
subject to the Encumbrance(s) does not exceed, when aggregated with
the book value of any other assets the subject of Encumbrances
permitted under this paragraph (f), 15 per cent. (15%) of Net Assets;
(g) any Encumbrance created in substitution for an Encumbrance otherwise
permitted above provided that the value of the assets subject to any
such Encumbrance created in substitution is equal to or less than the
value of the assets the subject of the Encumbrance being discharged as
certified to the Agent by an independent professional valuer; and
(h) any Encumbrance on any asset if simultaneously with the creation of
the Encumbrance the obligations of each Obligor under the Finance
Documents are secured by a comparable Encumbrance.
21.8 DISPOSALS
No Obligor shall, and the Company shall procure that no member of the Group
will, either in a single transaction or in a series of transactions,
whether related or not and whether voluntarily or involuntarily, sell,
transfer, lease or otherwise dispose of all or a substantial
part of its respective assets, except that the following disposals shall
not be taken into account:
(a) disposals (including the discounting of bills or notes) made in the
ordinary course of business of the disposing entity;
(b) disposals from a member of the Group to another member of the Group;
(c) disposals of cash raised or borrowed for the purposes for which it was
raised or borrowed;
(d) disposals of investments listed or dealt in on any securities exchange
or over-the-counter market (not being investments in any member of the
Group);
(e) disposals of property in exchange for (or sale of assets for cash and
the application within 12 months of such amounts in the acquisition
of) other property comparable or superior as to type, value and
quality;
(f) disposals on arm's length terms (including as to consideration);
(g) disposals where at least 90 per cent. of the Net Proceeds (as defined
in Clause 9.5 (Mandatory prepayment or cancellation following
disposal)) are used to prepay the Loans under the Tranche A Facility
in accordance with Clause 9.5 (Mandatory prepayment or cancellation
following disposal or refinancing);
(h) disposals of obsolete assets for cash; or
(i) disposals, in addition to those permitted under sub-paragraphs (a) to
(h) (both inclusive) above, during any financial year of the Group
where the aggregate book value of the property or assets disposed of
in that financial year does not exceed 10 per cent. (10%) of Net
Assets.
21.9 FINANCIAL COVENANTS
The Company shall procure that:-
(a) the ratio of EBITA to Net Interest Payable is not, at the end of each
Ratio Period of the Group ending on or before 30th June, 2001, less
than 2.5 to 1 and, at the end of each subsequent Ratio Period of the
Group, is not less than 3.0 to 1;
(b) the ratio of Net Debt to EBITDA is not, at the end of each Ratio
Period of the Group ending on or before 30th June, 2001, more than 3.5
to 1 and, at the end of each subsequent Ratio Period of the Group, is
not more than 3 to 1; and
(c) the aggregate of External Net Borrowings do not at any time exceed 20
per cent. of Net Assets.
21.10 HEDGING
(a) The Company shall ensure that, during the period commencing no later than
three months
after the Merger Date to at least the second anniversary of the date
of this Agreement:
(i) the interest rate exposure on at least L400,000,000 of the
Borrowed Monies of the Group will be hedged; and
(ii) such other short term hedging arrangements as are in its opinion
commercially prudent have been entered into.
(b) Borrowed Monies will be hedged for the purpose of this Clause 21.10 if the
interest on those Borrowed Monies is on a fixed rate basis or on a floating
rate basis but covered by any interest rate swap, cap, collar or other
interest rate protection arrangement.
21.11 RUSSIAN JV
The Company shall not, and shall procure that no other member of the Group
will, increase the amount of its Support to the Russian JV provided after
the date of this Agreement by more than U.S.$90,000,000 in aggregate
without the prior consent of the Majority Banks. "SUPPORT" for this purpose
means any equity investment, subordinated loan or guarantee, indemnity or
other assurance against financial loss or any other similar liability in
respect of any outstanding loan to the Russian JV which is provided or
entered into after the date of this Agreement.
21.12 ENVIRONMENTAL LAWS
The Company shall, and the Company shall procure that each member of the
Group will, comply with and carry out its business in accordance with all
Environmental Laws necessary for the conduct of its business where any
failure to comply or carry out its business in accordance with such
Environmental Laws would have a Material Adverse Effect.
21.13 COMPLIANCE WITH LAWS
The Company shall, and the Company shall procure that each member of the
Group will, comply with and carry out its business in accordance with all
laws necessary for the conduct of its business where any failure to comply
or carry out its business in accordance with that law would have a Material
Adverse Effect.
21.14 INSURANCE
Each Obligor shall, and the Company shall procure that each of its
Subsidiaries will, insure and keep insured its assets with underwriters or
insurance companies or self-insure to such extent and against such risks as
companies engaged in businesses similar to those of the Group normally
insure and where failure to do so would be reasonably likely to have a
Material Adverse Effect.
21.15 ACQUISITIONS
During the period from the date of this Agreement to the later of the date
falling six months after the Merger Date and the date of the publication of
the Company's preliminary results for the year ended 31st December, 2000,
no Obligor shall, and the Company shall procure that no other member of the
Group will, acquire any assets or business or make any investment other
than:
(a) the Merger; or
(b) an acquisition or investment which does not require the prior approval
of the Company's shareholders in a general meeting; or
(c) an acquisition or investment made with the consent of the Majority
Banks.
21.16 REFINANCING TARGET'S EXISTING FACILITIES
The Company shall ensure that after the Merger Date:
(a) there are always sufficient funds available under the Facilities to
refinance the Target's Existing Facilities;
(b) those facilities will be refinanced as soon as practicable after the
Merger Date and in any event prior to the last day of the Clean up
Period or, if it would avoid breakage costs which in the Company's
opinion (acting reasonably) are material, the date falling 6 months
after the Merger Date;
(c) there are no roll-overs under the Target Existing Facilities; and
(d) the undrawn elements of the Target Existing Facilities are cancelled
as soon as practicable after the Merger Date.
21.17 MERGER
(a) The Company will not, and shall procure that no member of the Group
will, issue any press release or other publicity in relation to the
Merger which makes reference to the Facilities or to any Finance Party
(without the consent of the Majority Banks, such consent not to be
unreasonably withheld or delayed) unless the publicity is required by
law (in which case the Company shall notify the Agent and the Banks of
such requirement as soon as reasonably practicable upon becoming aware
of it).
(b) The Company shall, upon request by the Agent, keep the Agent informed
as to the status and progress of the Merger.
22. DEFAULT
22.1 EVENTS OF DEFAULT
Each of the events set out below is an Event of Default (unless it occurs
in relation to the Target or any of its Subsidiaries during the Clean-up
Period in respect of paragraphs (b), (c) or (d) below):
(a) NON-PAYMENT: any Obligor shall fail to pay when due any amount payable
by it under the Finance Documents and, if caused by technical or
administrative error and capable of remedy, such default remains
unremedied for five Business Days after notice thereof shall have been
received by the Company from the Agent requiring the default to be
remedied; or
(b) BREACH OF OBLIGATIONS: any Obligor shall fail in any respect which
(except in the case of Clauses 21.7 (Negative pledge) and 21.9
(Financial covenants)) is material in the context of the Finance
Documents to comply with any other provision of the Finance Documents
and, except in the case of Clause 21.8 (Disposals) and 21.9 (Financial
covenants), such failure (if capable of remedy) shall continue
unremedied for a period of twenty-one days after the Company shall
have received notice from the Agent requiring the default to be
remedied; or
(c) MISREPRESENTATION: any representation made or deemed to be made by any
Obligor in the Finance Documents shall prove to be untrue in any
material and adverse respect on the date as of which it is made or
deemed to be made and the same (if capable of remedy) shall continue
unremedied for a period of twenty-one days after the Company has
received written notice of the same from the Agent requiring the same
to be remedied; or
(d) CROSS-ACCELERATION: any Borrowed Monies of any member of the Group at
any time becomes prematurely due and payable as a result of an event
of default (howsoever described) under any contract or document
relating to such Borrowed Monies (after the expiry of any applicable
grace period) and remains unpaid, or any Borrowed Monies of any member
of the Group is not paid when due (after the expiry of any applicable
grace period) and remains unpaid, or any guarantee of Borrowed Monies
by a member of the Group is not honoured when called upon (after the
expiry of any applicable grace period) and remains unpaid, provided
that any such event shall not be an Event of Default if:-
(i) payment of the relevant Borrowed Monies is being contested in
good faith and in accordance with legal advice; or
(ii) the relevant amount of Borrowed Monies remaining unpaid is in
aggregate L20,000,000 or less;
however, there will be excluded from the definition of Borrowed Monies
for the purposes of this paragraph (d) only for a period of six months
commencing on the date on which a company becomes a Subsidiary of the
Company, Borrowed Monies of any company (other than the Target or any
of its Subsidiaries) becoming a Subsidiary of the Company after the
date of this Agreement and outstanding on the date it becomes a
Subsidiary of the Company, but only if, in the case of those Borrowed
Monies becoming prematurely due and payable as a result of an event of
default (howsoever described) under any contract or document relating
to such Borrowed Monies (after the expiry of any applicable grace
period), the Company notifies the Agent and confirms that the Group
has adequate funds to refinance those Borrowed Monies; or
(e) LEGAL PROCESS: a distress or other execution is levied or sued out
upon or against all or a substantial part of the assets of any Obligor
or Principal Subsidiary and is not discharged within thirty days of
having been so levied or sued out; or
(f) INSOLVENCY: any Obligor or Principal Subsidiary makes a general
assignment for the benefit of creditors, is deemed to be unable to pay
its debts as they fall due within the meaning of Section 123(l)(e) of
the Insolvency Xxx 0000, or admits in writing its
inability to pay its lawful debts as they mature; or
(g) APPOINTMENT OF RECEIVERS AND MANAGERS: an encumbrancer takes
possession or a receiver, administrator or other similar officer is
appointed of all or a substantial part of the assets of any Obligor or
Principal Subsidiary and is not removed, discharged or paid out within
fourteen days; or
(h) WINDING-UP: any order is made or effective resolution passed for the
winding-up or dissolution of any Obligor or Principal Subsidiary
otherwise than:
(i) a winding up or dissolution for the purpose of an amalgamation or
reconstruction on terms approved by the Majority Banks (such
approval not to be unreasonably withheld or delayed); and
(ii) in the case of a winding-up or dissolution of a Principal
Subsidiary on a solvent basis; or
(i) REPUDIATION OF AGREEMENT: any Obligor repudiates this Agreement or
does or causes to be done any act or thing clearly evidencing an
intention to repudiate this Agreement; or
(j) CHANGE OF CONTROL: at any time any single person or group of persons
acting in concert (as defined in the City Code on Takeovers and
Mergers) acquires control of the Company (as defined in section 416 of
the Income and Corporation Taxes Act 1988); or
(k) MATERIAL ADVERSE CHANGE: any material adverse change in the financial
condition of the Group occurs which would have a material adverse
effect on the ability of the Company to perform its payment
obligations under the Finance Documents.
22.2 ACCELERATION
If any such event as is mentioned in Clause 22.1 (Events of Default) occurs
and at any time thereafter if any such event shall then be continuing, the
Agent shall, if so directed by the Majority Banks, by notice to the
Company:
(a) declare that the Facilities and the Commitments shall be cancelled
forthwith, whereupon the same shall be so cancelled forthwith; and/or
(b) declare all or part of the Loans immediately due and payable,
whereupon the same shall become immediately due and payable together
with all interest accrued thereon and all other amounts payable under
the Finance Documents to the Finance Parties; and/or
(c) declare that each Borrower's obligations under Clause 8.3 (Payment of
Bills) in respect of all outstanding Bills are immediately due and
payable, whereupon they shall become immediately due and payable.
23. THE AGENT AND THE ARRANGERS
23.1 APPOINTMENT AND DUTIES OF THE AGENT
(a) Each Finance Party (other than the Agent) irrevocably appoints the
Agent to act as its agent under and in connection with the Finance
Documents.
(b) Each Party appointing the Agent irrevocably authorizes the Agent on
its behalf to:
(i) perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in
connection with the Finance Documents, together with any other
incidental rights, powers and discretions; and
(ii) execute each Finance Document expressed to be executed by the
Agent on that Party's behalf.
(c) The Agent has only those duties which are expressly specified in the
Finance Documents. Those duties are solely of a mechanical and
administrative nature.
23.2 ROLE OF THE ARRANGERS
Except as specifically provided in the Finance Documents, no Arranger has
any obligations of any kind to any other Party under or in connection with
any Finance Document.
23.3 RELATIONSHIP
The relationship between the Agent and the other Finance Parties is that of
agent and principal only. Except as contemplated by the Finance Documents,
nothing in this Agreement constitutes the Agent as trustee or fiduciary for
any other Party or any other person and the Agent need not hold in trust
any moneys paid to it for a Party or be liable to account for interest on
those moneys.
23.4 MAJORITY BANKS' INSTRUCTIONS
(a) The Agent will be fully protected if it acts in accordance with the
instructions of the Majority Banks in connection with the exercise of any
right, power or discretion or any matter not expressly provided for in the
Finance Documents. Any such instructions given by the Majority Banks will
be binding on all the Banks. In the absence of such instructions, the Agent
may act as it considers to be in the best interests of all the Banks.
(b) The Agent is not authorized to act on behalf of a Bank (without first
obtaining that Bank's consent) in any legal or arbitration proceedings
relating to any Finance Document.
23.5 DELEGATION
The Agent may act under the Finance Documents through its personnel and
agents.
23.6 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor any Arranger is responsible to any other Party for:
(a) the execution, genuineness, validity, enforceability or sufficiency of
any Finance Document or any other document;
(b) the collectability of amounts payable under any Finance Document; or
(c) the accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document (including, without limitation,
any Information Memorandum).
23.7 DEFAULT
(a) The Agent is not obliged to monitor or enquire as to whether or not a
Default has occurred. The Agent will not be deemed to have knowledge of the
occurrence of a Default. However, if the Agent receives notice from a Party
referring to this Agreement, describing the Default and stating that the
event is a Default, it shall promptly notify the Banks.
(b) The Agent may require the receipt of security satisfactory to it, whether
by way of payment in advance or otherwise, against any liability or loss
which it will or may incur in taking any proceedings or action arising out
of or in connection with any Finance Document before it commences those
proceedings or takes that action.
23.8 EXONERATION
(a) Without limiting paragraph (b) below, the Agent will not be liable to any
other Finance Party for any action taken or not 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 (including gross negligence or
wilful misconduct) by that officer, employee or agent in relation to any
Finance Document.
23.9 RELIANCE
The Agent may:
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of, the
proper person;
(b) rely on any statement made by a director or employee of any person
regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional advisers
selected by it (including those in the Agent's employment and those
representing a Party other than the Agent).
23.10 CREDIT APPROVAL AND APPRAISAL
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Bank confirms that it:
(a) has made its own independent investigation and assessment of the
financial condition
and affairs of each Obligor and its related entities in connection
with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Agent or any
Arranger in connection with any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities while any
amount is or may be outstanding under the Finance Documents or any
Commitment is in force.
23.11 INFORMATION
(a) The Agent shall promptly forward to the person concerned the original or a
copy of any document which is delivered to the Agent by a Party for that
person.
(b) The Agent shall promptly supply a Bank with a copy of each document
received by the Agent under Clause 4 (Conditions precedent) or 30.5
(Additional Guarantors) upon the request and at the expense of that Bank.
(c) Except where this Agreement specifically provides otherwise, the Agent is
not obliged to review or check the accuracy or completeness of any document
it forwards to another Party.
(d) Except as provided above, the Agent has no duty:
(i) either initially or on a continuing basis to provide any Bank with any
credit or other information concerning the financial condition or
affairs of any Obligor or any related entity of any Obligor whether
coming into its possession before, on or after the date of this
Agreement; or
(ii) unless specifically requested to do so by a Bank in accordance with a
Finance Document, to request any certificates or other documents from
any Obligor.
23.12 THE AGENT AND THE ARRANGERS INDIVIDUALLY
(a) If it is also a Bank, the Agent and each Arranger has the same rights and
powers under this Agreement as any other Bank and may exercise those rights
and powers as though it were not the Agent or an Arranger.
(b) The Agent and each Arranger may:
(i) carry on any business with an Obligor or its related entities;
(ii) act as agent or trustee for, or in relation to any financing
involving, an Obligor or its related entities; and
(iii) retain any profits or remuneration in connection with its activities
under this Agreement or in relation to any of the foregoing.
(c) Each Obligor irrevocably authorizes the Agent to disclose to the other
Finance Parties any information which, in the opinion of the Agent, is
received by it in its capacity as the Agent.
(d) The Agent may deduct from any amount received by it for the Banks pro rata
any unpaid
fees, costs and expenses of the Agent incurred by it in connection with the
Finance Documents.
23.13 INDEMNITIES
(a) Without limiting the liability of any Obligor under the Finance Documents,
each Bank shall forthwith on demand indemnify the Agent for that Bank's
proportion of any liability or loss incurred by the Agent in any way
relating to or arising out of its acting as the Agent, except to the extent
that the liability or loss arises directly from the Agent's gross
negligence or wilful misconduct.
(b) A Bank's proportion of the liability or loss set out in paragraph (a) above
will be the proportion which its participation in the Utilisations (if any)
bears to the Original Currency Amount of all the Utilisations on the date
of the demand. However, if there is no Utilisation outstanding on the date
of demand, then the proportion will be the proportion which its Commitments
bears to the Total Commitments at the date of demand or, if the Total
Commitments have then been cancelled, it bore to the Total Commitments
immediately before being cancelled. For this purpose, if there are
Utilisations or Commitments outstanding under both Tranche A and Tranche B
at the same time, the Original Currency of all Utilisations or Commitments
under Tranche A will be translated into euros at the Agent's Spot Rate of
Exchange on the date of determination.
23.14 COMPLIANCE
(a) The Agent may refrain from doing anything which might, in its opinion,
constitute a breach of any law or regulation or be otherwise actionable at
the suit of any person, and may do anything which, in its opinion, is
necessary or desirable to comply with any law or regulation of any
jurisdiction.
(b) Without limiting paragraph (a) above, the Agent need not disclose any
information relating to any Obligor or any of its related entities if the
disclosure might, in the opinion of the Agent, constitute a breach of any
law or regulation or any duty of secrecy or confidentiality or be otherwise
actionable at the suit of any person.
23.15 CONFIDENTIAL INFORMATION
(a) In acting as Agent for the Banks, the Capital Markets unit of the Agent
shall be treated as a separate entity from any other of the divisions of
the Agent or its Subsidiaries and, without detracting from the generality
of the foregoing, in the event that any of the Agent's divisions (including
its Capital Markets unit) or similar units or Subsidiaries should act for
the Company or any member of the Group in any capacity whether as bankers
or otherwise in relation to any other matter, any information given by the
Company or member of the Group to such divisions, similar units or
Subsidiaries shall be treated as confidential and the Agent shall as
between itself and the Banks not be obliged to disclose the same to any
Bank or any other person.
(b) Notwithstanding anything to the contrary expressed or implied herein and
without prejudice to the generality of paragraph (a) above, the Agent shall
as between itself and the Banks not be obliged to disclose to any Bank or
other person any information supplied by the Company or member of the Group
to it in its capacity as Agent for the Banks which is identified by the
Company or that member of the Group at the time of supply as being
confidential and supplied solely for the purpose of evaluating in
consultation with the Agent whether any waiver or amendment might be
required to any of the provisions contained herein, provided that nothing
in this Clause 23.15 shall apply to any information supplied by the Company
pursuant to Clause 21.2(a)-(c) (Information).
(c) For the purposes of this Agreement the Agent shall be deemed not to have
any actual knowledge or actual notice of the contents of any information
obtained by it or supplied to it by or on behalf of the Company or any
member of the Group other than the contents of information obtained or
supplied to it as Agent for the Banks under this Agreement and which
information the Agent is not obliged to keep confidential pursuant to
paragraph (a) above.
23.16 RESIGNATION OF THE AGENT
(a) Notwithstanding its irrevocable appointment, the Agent may resign by giving
notice to the Banks and the Company, in which case the Agent may forthwith
appoint one of its Affiliates as successor Agent or, failing that, the
Majority Banks may (with the prior consent of the Company) appoint a
successor Agent.
(b) If the appointment of a successor Agent is to be made by the Majority Banks
but they have not, within 30 days after notice of resignation, appointed a
successor Agent which accepts the appointment, the Agent may (with the
prior consent of the Company) appoint a successor Agent.
(c) The resignation of the Agent and the appointment of any successor Agent
will both become effective only upon the successor Agent notifying all the
Parties that it accepts its appointment. On giving the notification, the
successor Agent will succeed to the position of the Agent and the term
"AGENT" will mean the 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 the Agent under this Agreement.
(e) Upon its resignation becoming effective, this Clause 23 shall continue to
benefit the retiring Agent in respect of any action taken or not taken by
it under or in connection with the Finance Documents while it was the
Agent, and, subject to paragraph (d) above, it shall have no further
obligations under any Finance Document.
(f) The Majority Banks may, by notice to the Agent, require it to resign in
accordance with paragraph (a) above. In this event, the Agent shall resign
in accordance with paragraph (a) above but it shall not be entitled to
appoint one of its Affiliates as successor Agent.
23.17 BANKS
(a) The Agent may treat each Bank as a Bank, entitled to payments under this
Agreement and as acting through its Facility Office(s) until it has
received not less than five Business Days' prior notice from that Bank to
the contrary.
(b) The Agent may at any time, and shall if requested to do so by the Company
or the Majority Banks, convene a meeting of the Banks.
24. FEES
24.1 ARRANGEMENT FEE
The Company shall pay to the Arrangers an arrangement fee (comprising
underwriting and syndication fees) in the amounts and on the dates agreed
in the Fee Letter between the Arrangers and the Company.
24.2 AGENT'S FEE
The Company shall pay to the Agent for its own account an agency fee in the
amount and on the dates agreed in the Fee Letter between the Agent and the
Company.
24.3 COMMITMENT FEE
(a) The Company shall during the period from (and including) the date of this
Agreement to (but excluding) the Merger Date pay to the Agent for each Bank
a commitment fee computed at the rate of 0.30 per cent. per annum on the
undrawn, uncancelled amount of that Bank's Tranche A Commitment and
computed at the rate of 0.40 per cent. per annum on the undrawn,
uncancelled amount of that Bank's Tranche B Commitment.
(b) The Company shall during the period from (and including) the Merger Date to
(but excluding) the last day of the relevant Commitment Period pay to the
Agent for each Bank a commitment fee computed at the rate of 0.30 per cent.
per annum on the undrawn, uncancelled amount of that Bank's Tranche A
Commitment and computed at the rate equal to 50 per cent. of the Margin
which would be applicable to a Loan under the Tranche B Facility if drawn
on that day on the undrawn, uncancelled amount of that Bank's Tranche B
Commitment.
(c) Commitment fee in respect of the Tranche A Facility is payable in U.S.
Dollars and in respect of the Tranche B Facility is payable in euros.
(d) For the purpose of calculating commitment fee, Loans are taken at their
Original Currency Amount.
(d) Accrued commitment fee is payable quarterly in arrear, with the first
payment being payable three months after the date of this Agreement.
Accrued commitment fee shall also be payable to the Agent for the relevant
Bank on the cancelled amount of its Commitment at the time the cancellation
comes into effect.
24.4 VAT
Any fee referred to in this Clause 24 is exclusive of any value added tax
or any other tax which might be chargeable in connection with that fee. If
any value added tax or other tax is so chargeable, it shall be paid by the
Company at the same time as it pays the relevant fee.
25. EXPENSES
25.1 INITIAL AND SPECIAL COSTS
The Company shall within 30 days of demand pay the Arrangers the amount of
all reasonable costs and expenses (including reasonable legal fees and any
applicable value added tax) incurred by them in connection with the
negotiation, preparation, printing and execution of this Agreement and the
syndication of the Facilities up to the limit agreed between the Arrangers
and the Company.
25.2 ENFORCEMENT COSTS
The Company shall within 14 days of demand pay to each Finance Party the
amount of all reasonable costs and expenses (including legal fees and any
applicable value added tax) incurred by it in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document.
26. STAMP DUTIES
The Company shall pay and forthwith on demand indemnify each Finance Party
against any liability it incurs in respect of any stamp, registration and
similar tax which is or becomes payable:
(a) in the jurisdiction of incorporation of any Obligor in connection with
the entry into or performance of any Finance Document; or
(b) anywhere in connection with the enforcement of any Finance Document,
including any liability which results from any failure to pay or any delay
in paying such tax.
27. INDEMNITIES
27.1 CURRENCY INDEMNITY
(a) If a Finance Party receives an amount in respect of a Obligor's liability
under the Finance Documents or if that liability is converted into a claim,
proof, judgment or order in a currency other than the currency (the
"CONTRACTUAL CURRENCY") in which the amount is expressed to be payable
under the relevant Finance Document:
(i) that Obligor shall indemnify that Finance Party as an independent
obligation against any loss or liability arising out of or as a result
of the conversion;
(ii) if the amount received by that Finance Party, when converted into the
contractual currency at a market rate in the usual course of its
business is less than the amount owed in the contractual currency, the
Obligor concerned shall forthwith on demand pay to that Finance Party
an amount in the contractual currency equal to the deficit; and
(iii) the Obligor shall forthwith on demand pay to the Finance Party
concerned any exchange costs and taxes payable in connection with any
such conversion.
(b) Each Obligor waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency other than that in which
it is expressed to be payable.
27.2 OTHER INDEMNITIES
(a) The Company shall indemnify each Finance Party against any loss or
liability which that Finance Party incurs as a consequence of:
(i) the occurrence of any Event of Default;
(ii) the operation of Clause 22.2 (Acceleration); or
(iii) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment or (other than by reason of negligence or default
by any Finance Party) a Loan not being made after the Borrower has
delivered a Request.
The Company's liability in each case includes any loss (other than loss of
margin) or expense on account of funds borrowed, contracted for or utilised
to fund any amount payable under any Finance Document, any amount repaid or
prepaid or any Loan.
(b) If a Bank receives or recovers any payment of principal of a Loan or of an
overdue amount other than on the last day of an Interest Period relative to
that Loan or amount so received or recovered, the Bank shall calculate the
difference between:
(i) the additional interest which would have been payable on the principal
so received or recovered had it been received or recovered on the last
day of the relevant Interest Period; and
(ii) the amount of interest which, in the reasonable opinion of the Bank,
would have been payable to the Bank on the last day of that Interest
Period in respect of the principal so received or recovered if the
principal so received or recovered had been placed on deposit by the
Bank earning interest at the rate quoted by the Bank to the relevant
Borrower to be that at which money can be deposited by that Bank with
a prime bank for a period starting on the Business Day following the
date of receipt or recovery and ending on the last day of that
Interest Period.
If (i) is greater than (ii) then the relevant Borrower shall, within five
Business Days of a demand from the relevant Bank, pay to that Bank an
amount equal to the difference.
28. EVIDENCE AND CALCULATIONS
28.1 ACCOUNTS
Accounts maintained by a Finance Party in connection with this Agreement
are prima facie evidence of the matters to which they relate.
28.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount
under the Finance Documents must be accompanied by a calculation in
reasonable detail and any applicable invoices and is prima facie evidence
of the matters to which it relates.
28.3 CALCULATIONS
Interest and the fee payable under Clause 24.3 (Commitment fee) accrue from
day to day and are calculated on the basis of the actual number of days
elapsed and a year of 360 days, or, in
the case of interest payable on an amount denominated in Sterling or unless
market practice otherwise dictates, 365 days.
29. AMENDMENTS AND WAIVERS
29.1 PROCEDURE
(a) Subject to Clause 29.3 (Exceptions), any term of the Finance Documents may
be amended or waived with the agreement of the Company and the Majority
Banks. The Agent may effect, on behalf of any Finance Party, an amendment
or waiver permitted under this Clause.
(b) The Agent shall promptly notify the other Parties of any amendment or
waiver effected under paragraph (a) above, and any such amendment or waiver
shall be binding on all the Parties.
29.2 CHANGE OF CURRENCY
If a change in any currency of a country occurs, this Agreement will be
amended to the extent the Agent and the Company agree is necessary to
reflect the change in currency and to put each Finance Party in the same
position, so far as possible, that it would have been in if no change in
currency had occurred.
29.3 EXCEPTIONS
(a) An amendment or waiver which relates to:
(i) the definition of "MAJORITY BANKS" in Clause 1.1 (Definitions);
(ii) an extension of the date (including any Repayment Date) for, or a
decrease in an amount or a change in the currency of, any payment to
that Bank under the Finance Documents (including the Margin, the
Acceptance Commission Rate and any fee payable under Clause 24.3
(Commitment fee));
(iii) an increase in a Bank's Commitment;
(iv) a term of a Finance Document which expressly requires the consent of
all the Banks; or
(v) Clause 2.3 (Nature of a Finance Party's rights and obligations),
Clause 30.2 (Transfers by Banks), Clause 33 (Pro rata sharing) or this
Clause 29,
may not be effected without the agreement of all the Banks.
(b) An amendment or waiver which relates to the rights and/or obligations of
the Agent may not be effected without the agreement of the Agent.
29.4 WAIVERS AND REMEDIES CUMULATIVE
The rights of each Party under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general law;
and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
30. CHANGES TO THE PARTIES
30.1 TRANSFERS BY OBLIGORS
No Obligor may assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under the Finance Documents.
30.2 TRANSFERS BY BANKS
(a) A Bank (the "EXISTING BANK") may, subject to paragraph (b) below, at any
time assign, transfer or novate any of its Commitments and/or any of its
rights and/or obligations under this Agreement to another bank or financial
institution which is a Qualifying Bank (the "NEW BANK").
(b) (i) A transfer of part of a Commitment must be in, and must result in the
Existing Bank retaining, a minimum Original Currency Amount of at
least U.S.$10,000,000 or euro 10,000,000 (as appropriate). For the
avoidance of doubt this condition does not apply to a transfer of the
whole of a Commitment.
(ii) The prior consent of the Company is required for any assignment,
transfer or novation under paragraph (a) above to a new Bank which is
not a Qualifying Bank.
(iii) For the period from the date of this Agreement to the date falling 30
days from the date on which the Arrangers have confirmed to the
Company that the primary syndication process has been completed, a
Bank may only assign, transfer or novate part of one of its
Commitments if it assigns, transfers or novates at the same time a pro
rata proportion of its other Commitment.
(c) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with Clause 30.3 (Procedure
for novations); or
(ii) the New Bank confirms to the Agent and the Company that it undertakes
to be bound by the terms of this Agreement as a Bank in form and
substance satisfactory to the Agent. On the transfer becoming
effective in this manner the Existing Bank shall be relieved of its
obligations under this Agreement to the extent that they are
transferred to the New Bank.
(d) If a Bank gives the Company prior notice, a Bank may sub-contract an
obligation to a person if that Bank remains liable under this Agreement for
that obligation.
(e) On each occasion an Existing Bank assigns, transfers or novates any of its
Commitments and/or any of its rights and/or obligations under this
Agreement (otherwise than pursuant to a Syndication Agreement), the New
Bank shall, on the date the assignment, transfer and/or
novation takes effect, pay to the Agent for its own account a fee of
L1,000.
(f) An Existing Bank is not responsible to a New Bank for:
(i) the execution, genuineness, validity, enforceability or sufficiency of
any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance Document; or
(iii) the accuracy of any statements (whether written or oral) made in or
in connection with any Finance Document.
(g) Each New Bank confirms to the Existing Bank and the other Finance Parties
that it:
(i) has made its own independent investigation and assessment of the
financial condition and affairs of each Obligor and its related
entities in connection with its participation in this Agreement and
has not relied exclusively on any information provided to it by the
Existing Bank in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities while any
amount is or may be outstanding under this Agreement or any Commitment
is in force.
(h) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the rights and/or
obligations assigned, transferred or novated under this Clause 30; or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by any Borrower of its obligations under this
Agreement or otherwise.
(i) Any reference in this Agreement to a Bank includes a New Bank but excludes
a Bank if no amount is or may be owed to or by it under this Agreement and
its Commitments have been cancelled or reduced to nil.
30.3 PROCEDURE FOR NOVATIONS
(a) A novation is effected if:
(i) the Existing Bank and the New Bank deliver to the Agent a duly
completed certificate, substantially in the form of Part I of Schedule
5 (a "NOVATION CERTIFICATE"); and
(ii) the Agent executes it.
(b) Each Party (other than the Existing Bank and the New Bank) irrevocably
authorises the Agent to execute any duly completed Novation Certificate on
its behalf.
(c) To the extent that they are expressed to be the subject of the novation in
the Novation Certificate:
(i) the Existing Bank and the other Parties (the "EXISTING PARTIES") will
be released from their obligations to each other (the "DISCHARGED
OBLIGATIONS");
(ii) the New Bank and the existing Parties will assume obligations towards
each other which differ from the discharged obligations only insofar
as they are owed to or assumed by the New Bank instead of the Existing
Bank;
(iii) the rights of the Existing Bank against the existing Parties and vice
versa (the "DISCHARGED RIGHTS") will be cancelled; and
(iv) the New Bank and the existing Parties will acquire rights against each
other which differ from the discharged rights only insofar as they are
exercisable by or against the New Bank instead of the Existing Bank,
all on the date of execution of the Novation Certificate by the Agent or,
if later, the date specified in the Novation Certificate.
30.4 ADDITIONAL BORROWERS
(a) If the Company wishes one of its Subsidiaries (incorporated in a country,
or in a jurisdiction within a country, which is a member of the
Organisation for Economic Co-operation and Development) to become an
Additional Borrower, then it may (after prior consultation with the Agent)
deliver to the Agent a Borrower Accession Agreement.
(b) On delivery of a Borrower Accession Agreement, executed by the relevant
Subsidiary and the Company, the Subsidiary concerned will become an
Additional Borrower.
(c) Delivery of a Borrower Accession Agreement, executed by the relevant
Subsidiary and the Company, constitutes confirmation by that Subsidiary and
the Company that the representations and warranties set out in Clauses 20.2
(Status) to 20.6 (Consents) are correct on the date of the Borrower
Accession Agreement, as if made by them with reference to the facts and
circumstances then existing.
30.5 ADDITIONAL GUARANTORS
(a) If the Company wishes one of its Subsidiaries to become an Additional
Guarantor, then it may (with, except in the case of Rexam Inc. and the
Target, the prior agreement of the Agent acting on instructions of the
Majority Banks) deliver to the Agent the documents listed in Part III of
Schedule 2.
(b) On delivery of a Guarantor Accession Agreement, executed by the relevant
Subsidiary and the Company, the Subsidiary concerned will become an
Additional Guarantor. An Additional Guarantor need only give a guarantee to
extent it is permitted to do so under applicable law and, notwithstanding
the definition of Guarantor Accession Agreement in Clause 1.1
(Definitions), may change the form of Guarantor Accession Agreement to
reflect any applicable limit on its liability.
(c) Delivery of a Guarantor Accession Agreement, executed by the relevant
Subsidiary and the Company, constitutes confirmation by that Subsidiary and
the Company that the
representations and warranties set out in Clauses 20.2 (Status) to 20.6
(Consents) are correct on the date of the Guarantor Accession Agreement, as
if made by them with reference to the facts and circumstances then
existing.
30.6 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be a Bank, the Agent shall (in
consultation with the Company) appoint another Bank or an Affiliate of a
Bank to replace that Reference Bank.
30.7 REGISTER
The Agent shall keep a register of all the Parties and shall supply any
other Party (at that Party's expense) with a copy of the register on
request.
30.8 CESSATION OF OBLIGORS
If:-
(a) no amount is owed under the Finance Documents by a Borrower (other
than the Company), the Company may by notice to the Agent designate
that that Borrower will cease to be a Borrower for the purposes of
this Agreement. Without prejudice to any accrued right which a Finance
Party may have against that Borrower and notwithstanding any other
term of this Agreement, that Borrower shall cease to be a Borrower for
the purposes of this Agreement on the date specified in the notice;
and
(b) no Default is outstanding or would result, the Company may by notice
to the Agent designate that a Guarantor (other than the Company) will
cease to be a Guarantor for the purposes of this Agreement. Without
prejudice to any accrued right which a Finance Party may have against
that Guarantor and notwithstanding any other term of this Agreement,
that Guarantor shall cease to be a Guarantor for the purposes of this
Agreement on the date specified in the notice.
30.9 INCREASED COSTS ETC.
(a) If:-
(i) a Bank assigns, transfers or novates any of its Commitments and/or
rights and/or obligations under the Finance Documents or changes its
Facility Office, with or without the prior consent of the Company; and
(ii) as a result of circumstances existing at the date the assignment,
transfer, novation or change occurs, an Obligor would be obliged to
make a payment to the New Bank or Bank acting through its new Facility
Office under Clause 15 (Taxes) or Clause 17 (Increased costs) or
Clause 18 (Illegality),
then, notwithstanding the provisions of Clause 15 (Taxes), 17 (Increased
costs) or 18 (Illegality), the relevant New Bank or Bank acting through its
new Facility Office is only entitled to receive payment under those Clauses
from an Obligor in respect of those circumstances to the same extent as the
relevant Existing Bank or Bank acting through its previous Facility Office
would have been if the assignment, transfer, novation or change had
not occurred.
(b) For the purposes of paragraph (a) above, "circumstances existing at the
date the assignment transfer, novation or change occurs" includes any law
or regulation which at the date the assignment, transfer, novation or
change occurs is reasonably likely to be implemented after that date.
31. DISCLOSURE OF INFORMATION
(a) A Bank may disclose to one of its Affiliates or any person with whom it is
proposing to enter, or has entered into, any kind of transfer,
participation or other agreement in relation to this Agreement:
(i) a copy of any Finance Document; and
(ii) any information which that Bank has acquired under or in connection
with any Finance Document,
but only if the recipient of the information has agreed with the Company to
keep that information confidential on the terms of paragraph (b) below.
(b) Each Finance Party shall keep confidential and shall not, without the prior
consent of the Company, use any information (other than information which
is publicly available other than as a result of a breach by that Finance
Party of this paragraph (b)) supplied by or on behalf of any Obligor under
or in connection with the Finance Documents otherwise than in connection
with the Finance Documents. However, the restriction set out in this
paragraph (b) shall not apply to, and each Finance Party shall be entitled
to disclose, information:-
(i) in connection with any legal proceedings arising out of or in
connection with a Finance Document; or
(ii) if required to do so by an order of a court of competent jurisdiction
whether under any procedure for discovering documents or otherwise; or
(iii) pursuant to any law or regulation in accordance with which that
Finance Party is required or accustomed to act; or
(iv) to a governmental, banking, taxation or other regulatory authority of
any competent jurisdiction; or
(v) to its accountants or legal advisers.
32. SET-OFF
Except to the extent that an Encumbrance is created, a Finance Party may,
if an Event of Default is then outstanding, set off any matured obligation
owed by an Obligor under the Finance Documents (to the extent beneficially
owned by that Finance Party) against any obligation (whether or not
matured) 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.
If either obligation is unliquidated or unascertained, the Finance Party
may set off in an amount estimated by it in good faith to be the amount of
that obligation.
33. PRO RATA SHARING
33.1 REDISTRIBUTION
If any amount owing by an Obligor under this Agreement to a Finance Party
(the "RECOVERING FINANCE PARTY") is discharged by payment, set-off or any
other manner other than through the Agent in accordance with Clause 14
(Payments) (a "RECOVERY"), then:
(a) the recovering Finance Party shall, within three Business Days, notify
details of the recovery to the Agent;
(b) the Agent shall determine whether the recovery is in excess of the
amount which the recovering Finance Party would have received had the
recovery been received by the Agent and distributed in accordance with
Clause 14 (Payments);
(c) subject to Clause 33.3 (Exceptions), the recovering Finance Party
shall within three Business Days of demand by the Agent pay to the
Agent an amount (the "REDISTRIBUTION") equal to the excess;
(d) the Agent shall treat the redistribution as if it were a payment by
the Obligor concerned under Clause 14 (Payments) and shall pay the
redistribution to the Finance Parties (other than the recovering
Finance Party) in accordance with Clause 14.7 (Partial payments); and
(e) after payment of the full redistribution, the recovering Finance Party
will be subrogated to the portion of the claims paid under paragraph
(d) above and that Obligor will owe the recovering Finance Party a
debt which is equal to the redistribution, immediately payable and of
the type originally discharged.
33.2 REVERSAL OF REDISTRIBUTION
If under Clause 33.1 (Redistribution):
(a) a recovering Finance Party must subsequently return a recovery, or an
amount measured by reference to a recovery, to an Obligor; and
(b) the recovering Finance Party has paid a redistribution in relation to
that recovery,
each Finance Party shall, within three Business Days of demand by the
recovering Finance Party through the Agent, reimburse the recovering
Finance Party all or the appropriate portion of the redistribution paid to
that Finance Party together with interest on the amount to be returned to
the recovering Finance Party for the period whilst it held the
re-distribution. Thereupon, the subrogation in Clause 33.1(e)
(Redistribution) will operate in reverse to the extent of the
reimbursement.
33.3 EXCEPTIONS
(a) A recovering Finance Party need not pay a redistribution to the extent that
it would not, after the payment, have a valid claim against the Obligor
concerned in the amount of the redistribution pursuant to Clause 33.1(e)
(Redistribution).
(b) A recovering Finance Party is not obliged to share with any other Finance
Party any amount which the recovering Finance Party has received or
recovered as a result of taking legal proceedings, if the other Finance
Party had an opportunity to participate in those legal proceedings but did
not do so or did not take separate legal proceedings.
34. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any other provision
of the Finance Documents; or
(b) the validity or enforceability in other jurisdictions of that or any other
provision of the Finance Documents.
35. 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.
36. NOTICES
36.1 GIVING OF NOTICES
All notices or other communications under or in connection with this
Agreement shall be given in writing and, unless otherwise stated, may be
made by letter or facsimile. Any such notice will be deemed to be given as
follows:
(a) if by letter, when delivered personally or on actual receipt; and
(b) if by facsimile, when received in legible form.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will only
be deemed to be given on the next working day in that place.
36.2 ADDRESSES FOR NOTICES
(a) The address and facsimile number of each Party (other than the Company and
the Agent) for all notices under or in connection with the Finance
Documents are:
(i) those notified by that Party for this purpose to the Agent on or
before the date it becomes a Party; or
(ii) any other notified by that Party for this purpose to the Agent by not
less than five
Business Days' notice.
(b) The address and facsimile number of the Obligors are:
Rexam PLC
0 Xxxxxxxx
Xxxxxx
XX0X 0XX
Facsimile no: 0207 227 4109
For the attention of: The Treasurer
or such other as the Company may notify to the Agent by not less than five
Business Days' notice.
(c) The address and facsimile number of the Agent are:
Lloyds TSB Bank PLC
Xxxx Xxxxx
Xxxx Xxxxxx
Xxxxxxx XX0 0XX
Facsimile no: 0117 923 3367
For the attention of: Loans Administration
or such other as the Agent may notify to the other Parties by not less than
five Business Days' notice.
(d) All notices from or to an Obligor shall be sent through the Agent.
(e) The Agent shall, promptly upon request from any Party, give to that Party
the address or facsimile number of any other Party applicable at the time
for the purposes of this Clause.
(f) Each Obligor (other than the Company) irrevocably appoints the Company to
act as its agent for the purpose of executing, giving and receiving any
document (including a Finance Document), notice or other communication in
connection with this Agreement.
37. LANGUAGE
(a) Any notice given under or in connection with any Finance Document shall be
in English.
(b) All other documents provided under or in connection with any Finance
Document shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified English translation and,
in this case, the English translation shall prevail unless the
document is a statutory or other official document.
38. JURISDICTION
38.1 SUBMISSION
For the benefit of each Finance Party, each Obligor agrees that the courts
of England have jurisdiction to settle any disputes in connection with any
Finance Document and accordingly submits to the jurisdiction of the English
courts.
38.2 SERVICE OF PROCESS
Without prejudice to any other mode of service, each Obligor (other than an
Obligor incorporated in England and Wales):
(a) irrevocably appoints the Company as its agent for service of process
in relation to any proceedings before the English courts in connection
with any Finance Document;
(b) agrees that failure by a process agent to notify the relevant Obligor
of the process will not invalidate the proceedings concerned; and
(c) consents to the service of process relating to any such proceedings by
prepaid posting of a copy of the process to its address for the time
being applying under Clause 36.2 (Addresses for notices).
38.3 FORUM CONVENIENCE AND ENFORCEMENT ABROAD
Each Obligor:
(a) waives objection to the English courts on grounds of inconvenient
forum or otherwise as regards proceedings in connection with a Finance
Document; and
(b) agrees that a judgment or order of an English court in connection with
a Finance Document is conclusive and binding on it and may be enforced
against it in the courts of any other jurisdiction.
38.4 NON-EXCLUSIVITY
Nothing in this Clause 38 limits the right of a Finance Party to bring
proceedings against an Obligor in connection with any Finance Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
39. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
SCHEDULE 1
BANKS AND COMMITMENTS
PART I
BANKS AND COMMITMENTS - TRANCHE A FACILITY
BANKS COMMITMENTS
U.S.$
ABN AMRO BANK N.V. 228,571,429
BANQUE NATIONALE DE PARIS, LONDON BRANCH 228,571,429
CREDIT SUISSE FIRST BOSTON, LONDON BRANCH 228,571,429
CITIBANK, N.A. 228,571,429
HSBC BANK plc 228,571,428
LLOYDS TSB BANK plc 228,571,428
WESTDEUTSCHE LANDESBANK GIROZENTRALE 228,571,428
Total Tranche A U.S.$1,600,000,000
Commitments
PART II
BANKS AND COMMITMENTS - TRANCHE B FACILITY
BANKS COMMITMENTS
EURO
ABN AMRO BANK N.V. 285,714,285
BANQUE NATIONALE DE PARIS, LONDON BRANCH 285,714,285
CREDIT SUISSE FIRST BOSTON, LONDON BRANCH 285,714,286
CITIBANK, N.A. 285,714,286
HSBC BANK plc 285,714,286
LLOYDS TSB BANK plc 285,714,286
WESTDEUTSCHE LANDESBANK GIROZENTRALE 285,714,286
Total Tranche B euro 2,000,000,000
Commitments
------------------------------------------------------------
SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
PART I
TO BE DELIVERED ON OR ABOUT SIGNING
1. A copy of the memorandum and articles of association and certificate of
incorporation of the Company.
2. A copy of a resolution of a duly authorised committee of the board of
directors of the Company, approving the terms of, and the transactions
contemplated by, this Agreement, together with a copy of a resolution of
the board of directors of the Company establishing the committee.
3. A specimen of the signature of each person authorized by resolution
referred to in paragraph 2 above to sign this Agreement and to sign and/or
despatch all documents and notices (including Requests) to be signed and/or
despatched by it under or in connection with this Agreement.
4. A certificate of an authorized signatory of the Company confirming that the
execution by the Company of each Finance Document to which it is a party
and the performance by it of its obligations under each such Finance
Document are within its corporate powers and have been duly approved by all
necessary corporate action.
5. A certificate of an authorized signatory of the Company certifying that
each copy document specified in Part I of this Schedule 2 is correct,
complete and in full force and effect as at a date no earlier than the date
of this Agreement.
6. A legal opinion of Xxxxxxxx Chance, legal advisers to the Arrangers and the
Agent, addressed to the Finance Parties.
PART II
TO BE DELIVERED BEFORE THE FIRST UTILISATION
1. The Merger Agreement.
2. The stockholders agreement dated on or about the date of this Agreement
between the Company and various shareholders of the Target.
3. The Press Release.
4. The circular to shareholders of the Company relating to the Merger.
5. Evidence that the Existing Facilities:
(i) have been, or will on the first Utilisation Date be, cancelled in
full; and
(ii) will within one month of the first Utilisation Date be, repaid in
full.
6. Confirmation from the Company that the date of the acceptance for payment
of shares of common stock of the Target pursuant to and subject to the
conditions of tender offer made by a subsidiary of the Company for the
Target in order to effect the Merger (the "OFFER") has occurred by, or will
occur on, the first Utilisation Date.
7. Confirmation from the Company that its shareholders have approved the
acquisition of the Target.
8. Confirmation from the Company that a majority of all of the outstanding
shares of common stock of the Target have been accepted for payment
pursuant to the terms of the Offer.
9. Confirmation from the Company that:
(i) the EU Anti-trust Clearance has been obtained; and
(ii) any waiting period (and any extension thereof) applicable to the
Merger under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976
(as amended) shall have been terminated or shall have expired.
PART III
TO BE DELIVERED BY AN ADDITIONAL GUARANTOR
(a) A Guarantor Accession Agreement, duly executed as a deed by the Additional
Guarantor and the Company.
(b) A copy of the constitutional documents of the Additional Guarantor.
(c) A copy of a resolution of the board of directors of the Additional
Guarantor approving the terms of, and the transactions contemplated by, the
Guarantor Accession Agreement.
(d) A specimen of the signature of each person authorised to sign the Guarantor
Accession Agreement and to sign and/or despatch all documents to be signed
and/or despatched by it under or in connection with this Agreement.
(e) A legal opinion of lawyers in the jurisdiction of incorporation of the
Additional Guarantor, acceptable to the Agent, addressed to the Finance
Parties.
(f) A certificate of an authorised signatory of the Additional Guarantor
certifying that each copy document specified in Part III of this Schedule 2
is correct, complete and in full force and effect as at a date no earlier
than the date of the Guarantor Accession Agreement.
SCHEDULE 3
CALCULATION OF THE MANDATORY COST
(a) The Mandatory Cost for a Loan for its Interest Period or each of its
Interest Periods, as appropriate, is the rate determined by the Agent to be
equal to the arithmetic mean (rounded upward, if necessary, to four decimal
places) of the respective rates notified by each of the Reference Banks to
the Agent and calculated in accordance with the following formulae:
In relation to a Loan denominated in Sterling:
BY + S(Y-Z) + F X 0.01% PER ANNUM = Mandatory Cost 100-(B + S)
in relation to any other Loan:
F X 0.01% PER ANNUM = Mandatory Cost
---------
300
where on the day of application of the formula:
B is the percentage of the Reference Bank's eligible liabilities (in
excess of any stated minimum) which the Bank of England requires the
Reference Bank to hold on a non-interest-bearing deposit account in
accordance with its cash ratio requirements;
Y is LIBOR as appropriate for the relevant Interest Period;
S is the percentage of the Reference Bank's eligible liabilities which
the Bank of England requires the Reference Bank to place as a special
deposit;
Z is the interest rate per annum allowed by the Bank of England on
special deposits; and
F is the charge payable by the Reference Bank to the Financial Services
Authority under paragraph 2.02 or 2.03 (as appropriate) of the Fees
Regulations (but where for this purpose, the figure in paragraph 2.02b
and 2.03b will be deemed to be zero) expressed in pounds per L1
million of the fee base of the Reference Bank.
(b) For the purposes of this Schedule 3:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given
to them at the time of application of the formula by the Bank of
England; and
(ii) "FEE BASE" has the meaning given to it in the Fees Regulations;
(iii) "FEES REGULATIONS" means the Banking Supervision (Fees) Regulations
1998 and/or any other regulations governing the payment of fees for
banking supervision.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not
as percentages, e.g. if B = 0.5% and Y = 15%, BY is calculated as 0.5 x 15.
(d) If a Reference Bank does not supply a rate to the Agent, the applicable
Mandatory Cost will be determined on the basis of the rate(s) supplied by
the remaining Reference Banks.
(e) (i) The formula is applied on the first day of the relevant Interest
Period.
(ii) Each rate calculated in accordance with the formula is, if necessary,
rounded upward to four decimal places.
(f) If the Agent determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Agent (after consultation with
the Banks) shall notify the Company of the manner in which the Mandatory
Cost will subsequently be calculated. The manner of calculation so notified
by the Agent must not place the Banks in a better or worse position than
they had prior to the change of circumstances and shall, in the absence of
manifest error, be binding on all the Parties.
SCHEDULE 4
FORM OF REQUEST
To: LLOYDS TSB BANK plc as Agent
From: [BORROWER]
Date: [ ]
REXAM PLC - US$1,600,000,000 AND EURO 2,000,000,000 CREDIT AGREEMENT
DATED , 2000
1. We wish to utilise the [Tranche A Facility/the Tranche B Facility* by way
of Loans/Bills*] as follows:
(a) Utilisation Date: [ ]
(b) Amount of currency: [ ]
(c) [First]** Interest Period/Term: [ ]
(d) Payment instructions: [ ].
2. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Request.
By:
[BORROWER]
Authorized Signatory
* Delete as applicable
** Include only for Term Loans
SCHEDULE 5
FORMS OF ACCESSION DOCUMENTS
PART I
NOVATION CERTIFICATE
To: LLOYDS TSB BANK plc as Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
REXAM PLC - US$1,600,000,000 AND EURO 2,000,000,000 CREDIT AGREEMENT
DATED , 2000
We refer to Clause 30.3 (Procedure for novations).
1. We [ ] (the "EXISTING BANK") and [ ] (the "NEW BANK") agree to the Existing
Bank and the New Bank novating all or part of the Existing Bank's
Commitments, rights and obligations referred to in the Schedule in
accordance with Clause 30.3 (Procedure for novations).
2. The specified date for the purposes of Clause 30.3(c) (Procedure for
novations) is [date of novation].
3. The Facility Office and address for notices of the New Bank for the
purposes of Clause 36.2 (Addresses for notices) are set out in the
Schedule.
4. This Novation Certificate is governed by English law.
THE SCHEDULE
COMMITMENTS/RIGHTS AND OBLIGATIONS TO BE NOVATED
[insert relevant details].
[Existing Bank] [New Bank]
By: By:
Date: Date:
[NEW BANK]
[Facility Office Address for notices]
LLOYDS TSB BANK plc
By:
Date:
PART II
BORROWER ACCESSION AGREEMENT
To: LLOYDS TSB BANK plc as Agent
From: [PROPOSED BORROWER] and REXAM PLC Date: [ ]
REXAM PLC - US$1,600,000,000 AND EURO 2,000,000,000 CREDIT AGREEMENT
DATED , 2000 (THE "CREDIT AGREEMENT")
We refer to Clause 30.4 (Additional Borrowers).
We, [name of company] of [Registered Office] (Registered no. [ ]), agree to
become an Additional Borrower and to be bound by the terms of the Credit
Agreement as an Additional Borrower in accordance with Clause 30.4 (Additional
Borrowers).
Our address for notices for the purposes of Clause 36.2 (Addresses for notices)
is:
[
]
We, [name of company] and Rexam PLC, confirm that the representations and
warranties set out in Clauses 20.2 (Status) to 20.6 (Consents) are correct on
the date of this Agreement.
This Agreement is governed by English law.
By:
[PROPOSED BORROWER]
Authorized Signatory
By:
REXAM PLC
Authorized Signatory
PART III
GUARANTOR ACCESSION AGREEMENT
To: LLOYDS TSB BANK plc as Agent
From: [PROPOSED GUARANTOR] and REXAM PLC Date: [ ]
REXAM PLC - US$1,600,000,000 AND EURO 2,000,000,000 CREDIT AGREEMENT
DATED , 2000 (THE "CREDIT AGREEMENT")
We refer to Clause 30.5 (Additional Guarantors).
We, [name of company] of [Registered Office] (Registered no. [ ]), agree to
become an Additional Guarantor and to be bound by the terms of the Credit
Agreement as an Additional Guarantor in accordance with Clause 30.5 (Additional
Guarantors).
Our address for notices for the purposes of Clause 36.2 (Addresses for notices)
is:
[
]
We, [name of company] and Rexam PLC, confirm that the representations and
warranties set out in Clauses 20.2 (Status) to 20.6 (Consents) are correct on
the date of this Agreement.
This Agreement is governed by English law.
By:
[PROPOSED GUARANTOR]
Authorized Signatory
By:
REXAM PLC
Authorized Signatory
SCHEDULE 6
FORM OF XXXX
FACE OF XXXX
No. for L .............................
.....................................
To
On .......................pay against this Xxxx of Exchange to our order
the sum of ............................ for value received against [ ].
Accepted by:
For and on behalf of For and on behalf of
[BANK] [BORROWER]
................................ ................................
Authorised Signatory Authorised Signatory
REVERSE OF XXXX
For and on behalf of
[BORROWER]
................................
Authorised Signatory
SCHEDULE 7
FORM OF COMPLIANCE CERTIFICATE
To: LLOYDS TSB BANK plc as Agent
From: REXAM PLC/AUDITORS
Date: [ ]
REXAM PLC - US$1,600,000,000 AND EURO 2,000,000,000 CREDIT AGREEMENT
DATED , 2000 (THE "CREDIT AGREEMENT")
This is a Compliance Certificate (as defined in the Credit Agreement).
We confirm that:-
(i) as at [ ] (the "relevant date"), EBITA was [ ], and Net Interest Payable
was [ ]; therefore, the ratio of EBITA to Net Interest Payable was [ ]; the
minimum ratio permitted under Clause 21.9(a) (Financial covenants) is [ ];
(ii) as at the relevant date, Net Debt was L[ ] and EBITDA was L[ ]; therefore
the ratio of Net Debt to EBITDA was [ ]:1; the maximum ratio permitted
under Clause 21.9(b) (Financial covenants) is [ ]:1; and
(iii) as at the relevant date, External Net Borrowings was [ ] and Net Assets
was L[ ]; therefore, the percentage of External Net Borrowings to Net
Assets was [ ]%; the maximum percentage permitted under Clause 21.9(c)
(Financial covenants) is 20%.
By:
REXAM PLC/AUDITORS
Authorised Signatory
SCHEDULE 8
FORM OF MARGIN CERTIFICATE
To: LLOYDS TSB BANK plc as Agent
From: REXAM PLC
Date: [ ]
REXAM PLC - US$1,600,000,000 AND EURO 2,000,000,000 CREDIT AGREEMENT
DATED , 2000 (THE "CREDIT AGREEMENT")
This is a Margin Certificate (as defined in the Credit Agreement).
We confirm that:-
(i) as at [ ], the ratio of Net Debt to EBITDA was [ ] to 1 and was therefore
within the following range [ ]; and
(ii) accordingly the applicable Margin for the Tranche B Facility is, in
accordance with Clause 11.5 (Adjustment of the Margin and Acceptance
Commission Rate), [ ] per cent. per annum and the applicable commitment fee
for the Total Tranche B Commitments is, in accordance with Clause 24.3
(Commitment fee), [ ] per cent. per annum.
By:
REXAM PLC
Authorised signatory
SCHEDULE 9
FORM OF POWER OF ATTORNEY FOR BILLS
To: LLOYDS TSB BANK plc
[ ], 200[ ]
Dear Sirs,
POWER OF ATTORNEY
1. We refer to the facility agreement (the "AGREEMENT") dated , 2000 whereby a
US$1,600,000,000 and euro 2,000,000,000 credit facility was made available
to Rexam PLC by a group of banks on whose behalf you act as agent. Terms
defined in the Agreement shall have the same meaning herein.
2. The Agreement envisages that the relevant Borrower shall ensure upon
delivery of any Request for a Utilisation by means of Bills that the Agent
has a sufficient stock of blank signed Bills to enable it to proceed with
such Utilisation.
3. Notwithstanding the foregoing, we hereby appoint you our true and lawful
attorney for and in our name and on our behalf to do or execute all or any
of the acts and things set out below upon receipt of a Request from us:
(a) to draw a Xxxx or Bills on our behalf; and
(b) to sign each requested Xxxx as drawer on our behalf and, if
appropriate, to endorse on our behalf an appropriate number of Bills
for appropriate amounts (in accordance with the terms of the
Agreement) drawn upon you such endorsement to be at your sole
discretion a blank endorsement or a special endorsement (as such
expressions are defined in the Bills of Exchange Act 1882) to the
order of the party with whom you have arranged discounting of such
Xxxx or Bills,
PROVIDED ALWAYS that the aforesaid signature and endorsement shall be
executed in your name as our agent by the signature of two of your
authorised signatories.
4. We hereby ratify and confirm and agree to ratify and confirm everything you
shall do or purport to do by virtue of this Power of Attorney including
anything done between the time of revocation of this Power of Attorney and
the time of that revocation becoming known to you. We hereby agree to
notify you promptly of any such revocation.
5. We hereby authorise and empower you to acknowledge in our name and as our
act and deed this Power of Attorney and to do any and every other act and
thing whatsoever which may be requisite or proper for authenticating and
giving full effect to this Power of Attorney according to the laws of
England.
6. This Power of Attorney shall be governed by and construed in accordance
with English law.
Signed as a deed by )
[Name of Borrower] )
acting by its Director )
* .............................. ) ** ......................... Director
and its Director/Secretary ) **.......................... Director/Secretary
*.............................. )
SIGNATORIES
COMPANY
REXAM PLC
By: XXXXXXX XXXXXXXX
ARRANGERS AND BANKS
ABN AMRO BANK N.V.
By: XXXX XXXXX XXXX XXXXXXX
BANQUE NATIONALE DE PARIS
By: XXXXX XXXXXXX
BANQUE NATIONALE DE PARIS, LONDON BRANCH
By: XXXXX XXXXXXX XXXXXXX X XXXXXX
CITIBANK, N.A.
By: XXXXX X XXXXXX
CREDIT SUISSE FIRST BOSTON
By: XXXXX XXXXX
CREDIT SUISSE FIRST BOSTON, LONDON BRANCH
By: XXXXX XXXXX
HSBC BANK plc
By: XXXXXXX G LACK
HSBC INVESTMENT BANK plc
By: M T XXXXXXX
ARRANGERS AND BANKS (CONTINUED)
LLOYDS TSB BANK plc
By: XXXXXXXX FEAST
LLOYDS TSB CAPITAL MARKETS
By: XXXXX XXXXXXXX
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: XXXXXX XXXXXXXXX
AGENT
LLOYDS TSB BANK plc
By: XXXXXXXXX XXXXX
