Exhibit 4.16
THIS AGREEMENT is dated 28th March, 2003 between:
(1) ADECCO SA (the "Company") and ADECCO REINSURANCE COMPANY, LIMITED (the "LC
Borrower") as borrowers;
(2) ADECCO SA as guarantor (in this capacity, the "Guarantor");
(3) BANC OF AMERICA SECURITIES LIMITED, THE ROYAL BANK OF SCOTLAND plc and SG
INVESTMENT BANKING as joint mandated lead arrangers (each an "MLA" and
together the "MLAs");
(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the "Banks");
(5) THE ROYAL BANK OF SCOTLAND plc as agent for the Finance Parties (in this
capacity the "Agent"); and
(6) BANK OF AMERICA N.A. as issuing bank.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement:
"Accession Agreement"
means an accession agreement substantially in the form of Schedule 7 (Form
of Accession Agreement).
"Adecco CC"
means Adecco Coordination Center SA.
"Advance"
means a cash advance made by a Bank under this Agreement.
"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
Optional Currency in the London foreign exchange market with euros at or
about 11.00 a.m. on a particular day.
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"Approved Bank"
means a financial institution which (i) qualifies as a bank pursuant to the
laws of the jurisdiction of the place of its registered office, provided
that it has a genuine banking activity as per explanatory notes no.
S-02.128 (1.2000) of the Swiss Federal Tax Administration and, (ii) is a
company within the meaning of article 2, paragraph 2, 1 DEG. of the Belgian
Income Tax Code (1992).
"Availability Period"
means the period from and including the Signing Date up to the Final
Maturity Date.
"Belgian Reservations"
means the reservations contained in paragraphs ( a) to ( h) of the opinion
provided pursuant to paragraph 7 of Part II of Schedule 2 (Adecco CC
Conditions Precedent Documents) to this Agreement.
"Beneficiary"
means any beneficiary of an LC approved by the Borrowers' Agent, and
accepted by the Agent and the Issuing Bank, such acceptance not to be
unreasonably withheld or delayed, subject to the application of the Agent's
and Issuing Bank's standard procedures in considering the acceptance of a
beneficiary.
"Bermudan Reservations"
means the reservations contained in paragraphs ( a) to ( l) of the opinion
provided pursuant to paragraph 7(d) of Part I of Schedule 2 (Initial
Conditions Precedent Documents) to this Agreement.
"Borrowers"
means, subject to Clause 29.6 (New Borrower) and Clause 29.7 (Resignation
of Adecco CC), each of the Company, Adecco CC and, where the context
applies, the LC Borrower.
"Borrowers' Agent"
means the Company or such other member of the Group as is nominated by the
Company with the previous consent of the Agent.
"Break Costs"
means the amount (if any) by which:
(a) the interest which a Bank should have received for the period from the
date of receipt of all or any part of its participation in an Advance
to the last day of the current Term in respect of that Advance, had
the principal amount received been paid on the last day of that Term;
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exceeds:
(b) the amount which that Bank would be able to obtain by placing an
amount equal to the principal amount received by it on deposit with a
leading bank in the London or (in the case of euros) European
interbank market for a period starting on the Business Day following
receipt or recovery and ending on the last day of the current Term.
"Business Day"
means a day (other than a Saturday or a Sunday) on which banks are open for
general interbank business in London, Zurich and Brussels and:
(a) in relation to a payment date for an Optional Currency, the principal
financial centre of the country of that Optional Currency; and
(b) in relation to a payment day for euros, a TARGET Day.
"Commitment"
means;
(a) in respect of a Bank, which is a Bank on the date of this Agreement,
the amount in euros set opposite the name of that Bank in Schedule 1
and the amount of any other Bank's Commitment acquired by it under
Clause 29 (Changes to the Parties); or
(b) in relation to a Bank which becomes a Bank after the date of this
Agreement, the amount of any other Bank's Commitment acquired by it
under Clause 29 (Changes to the Parties),
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Consolidated Interest Expenses"
means, in relation to any period, the aggregate, calculated on a
consolidated basis, of all interest, fees, commissions and other costs,
expenses or charges (including without limitation, the interest element of
any hire payments under Finance Leases) accruing due from members of the
Group during such a period in respect of Financial Indebtedness.
"Default"
means an Event of Default or an event which, with the giving of notice,
lapse of time, determination of materiality or fulfilment of any other
applicable condition (or any combination of the foregoing), would
constitute an Event of Default.
"Drawdown Date"
means the date for the making of the relevant Advance.
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"EBIT"
means, in relation to any period, consolidated profits of the Group from
continuing operations before Consolidated Interest Expenses and taxes on
income and profits during that period.
"EBITDA"
means, in relation to any period, EBIT after adding back depreciation and
amortisation charged during that period.
"EURIBOR"
means in relation to any Advance in euros:
(a) the applicable Screen Rate; or
(b) if the applicable Screen Rate is not 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 the 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 Term.
"euro", "euros" and "(euro)"
means the single currency of the Participating Member States.
"Event of Default"
means an event specified as such in Clause 20.1 (Events of Default).
"Existing Facility"
means the facility made available on the terms of a facility agreement
dated 27th January, 2000 and made between, inter alia, Adecco SA as a
borrower, Bank of America International Limited and Societe Generale as
arrangers and Bank of America International Limited as agent, as amended
and restated on 24th January, 2001.
"Existing LCs"
means each of the following letters of credit:
(a) LC No. 972069 dated 17th February, 1998 in the sum of US$60,078,000.00
(as increased and with approximately US$113,885,265.00 outstanding) in
favour of National Union Fire Insurance Company of Pittsburgh; and
(b) LC No. 972999 dated 3rd March, 1998 in the sum of US$5,300,000.00
(with approximately US$905,000.00 outstanding) in favour of The
Travelers Indemnity.
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"Facility"
means the facility made available under this Agreement as referred to in
Clause 2.1 (Facility).
"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 the letter dated 18th February, 2003 between Bank of America, N.A.,
Banc of America Securities Limited, The Royal Bank of Scotland plc, Societe
Generale, SG Investment Banking and the Borrowers' Agent setting out the
amount of various fees referred to in Clause 22 (Fees) and any subsequent
letter relating to any such fees.
"Final Maturity Date"
means the day which is five years from the Signing Date or if that date is
not a Business Day, the preceding Business Day.
"Finance Document"
means this Agreement, the Fee Letter, a Novation Certificate, an LC or any
other document designated as such by both the Agent and the Borrowers'
Agent.
"Finance Lease"
means a lease or hire purchase arrangement which constitutes a capital
lease under GAAP.
"Finance Party"
means an MLA, a Bank, the Agent or the Issuing Bank.
"Financial Indebtedness"
means, in relation to any period, the aggregate of (but without including
any item more than once):
(a) all principal amounts outstanding under this Agreement and other loan
facilities;
(b) amounts raised by acceptance under any acceptance credit facility;
(c) all monies raised under any note purchase facility or by the issue of
notes, bonds, debentures or other securities;
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(d) rental payments under Finance Leases to the extent capitalised under
GAAP;
(e) the amount of any liability in respect of any part of the purchase
price for any property or services the payment of which is agreed to
be deferred for a period in excess of 180 days, but excluding all
Financial Indebtedness under this paragraph (e) which in aggregate
totals not more than euro 20,000,000;
(f) amounts raised under any other transaction having the commercial
effect of a borrowing entered into by any person in order to finance
its operations or capital requirements; and
(g) the amounts raised pursuant to securitisation or other sales of
receivables by any member of the Group,
but excluding Indebtedness referred to in any of (a) to (g) above
outstanding to another member of the Group.
"Financial Officer"
means the relevant Obligor's Chief Financial Officer, its Corporate
Treasurer or its Corporate Controller and in the case of Adecco CC and the
LC Borrower any board member.
"GAAP"
means:
(a) in relation to the Company, US GAAP or, on and following the time of
the production of the first set of consolidated financial statements
of the Group following the time at which it has determined to produce
its financial statements in accordance with IAS (as notified to the
Agent by the Company), IAS; and
(b) in relation to any other Obligor, US GAAP, IAS or the generally
accepted accounting principles in its state of incorporation as in
force from time to time.
"Group"
means the Company and its Subsidiaries from time to time.
"Holding Company"
means, in relation to a person, an entity to which that person is a
Subsidiary.
"IAS"
means the International Accounting Standard referred to in Regulation (EC)
No.1606/2002 of the European Parliament and of the Council of 19th July,
2002 on the application of international accounting standards.
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"Indebtedness"
means any obligation (whether incurred as principal or as surety) for the
payment or repayment of money whether present or future, actual or
contingent.
"Information Memorandum"
means the document concerning the Company which, at its request and on its
behalf, was prepared in relation to this transaction and distributed by the
MLAs to selected banks in February, 2003.
"Issuing Bank"
means Bank of America N.A., or such other Bank willing to act as Issuing
Bank as may be agreed from time to time between the Borrowers' Agent, the
Issuing Bank, the Agent and that Bank.
"LC"
means the Existing LCs and each standby letter of credit issued or to be
issued by the Issuing Bank to a Beneficiary in accordance with the terms of
this Agreement substantially in a form agreed between the Borrowers' Agent,
the Agent and the Issuing Bank. The Agent and Issuing Bank shall act
reasonably in agreeing the form of standby letter of credit, subject to the
application of their standard procedure in agreeing a form of standby
letter of credit.
"LIBOR"
means in relation to any Advance:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the currency or period of that
Advance, the rates (rounded upward to four decimal places) as supplied
to the Agent at its request quoted by the Reference Banks to leading
banks in the London interbank market,
at or about 11.00 a.m. on the applicable Rate Fixing Day for the offering
of deposits in the currency of the relevant Advance for a period comparable
to the Term for that Advance.
"Majority Banks"
means, at any time, Banks:
(a) whose participations in the Utilisations then outstanding aggregate
more than 662/3 per cent. of all the Utilisations then outstanding; or
(b) if there are no Utilisations then outstanding, whose Commitments then
aggregate more than 662/3 per cent. of the Total Commitments; or
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(c) if there are no Utilisations then outstanding and the Total
Commitments have been reduced to nil, whose Commitments aggregated
more than 662/3 per cent. of the Total Commitments immediately before
the reduction.
"Mandatory Cost"
means the percentage rate per annum calculated by the Agent in accordance
with Schedule 5 (Mandatory Cost Formulae).
"Margin"
means at any time the percentage rate per annum determined at such time to
be the Margin for Advances in accordance with Clause 10.5 (Calculation of
Margin and utilisation fee).
"Margin Certificate"
has the meaning given to that term in Clause 10.5(c) (Calculation of Margin
and utilisation fee).
"Maturity Date"
means in relation to a Utilisation, the last day of the Term of that
Utilisation.
"Net Consolidated Financial Debt"
means at any time, the aggregate Financial Indebtedness, on a consolidated
basis, of the Group minus cash or cash equivalents recognised under GAAP
held by any member of the Group at that time.
"New York Business Day"
means a day (other than a Saturday or Sunday) on which banks are open for
business in New York.
"Novation Certificate"
has the meaning given to it in Clause 29.3 (Procedure for novations).
"Obligor"
means the Borrower's Agent, a Borrower or the Guarantor (but shall exclude
Adecco CC before it becomes a Borrower under Clause 29.6 (New Borrower) and
should it cease to be a Borrower under Clause 29.7 (Resignation of Adecco
CC)).
"Optional Currency"
means in relation to any Advance or proposed Advance:
(a) any currency approved by the Banks; and
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(b) any currency (other than euros) which for the time being is freely
transferable and convertible into euros.
"Original Euro Amount"
in relation to a Utilisation means:
(a) if that Utilisation is denominated in euros, the amount of that
Utilisation; or
(b) if that Utilisation is denominated in an Optional Currency, the
equivalent in euros of the amount of that Utilisation at the Agent's
Spot Rate of Exchange three Business Days before its Utilisation Date,
and save that, in the case of an LC with a Term of more than 12 months
, the Original Euro Amount will be updated to the equivalent in euros
of the amount of that LC at the Agent's Spot Rate of Exchange on each
anniversary of the issuance of that LC.
The Original Euro Amount of the Existing LCs will be calculated at the
Agent's Spot Rate of Exchange on the Signing Date.
"Original Financial Statements"
means the audited consolidated financial statements of the Group for the
financial year ended 31st December, 2002.
"Participating Member State"
means a member state of the European Communities that adopts the euro as
its currency in accordance with legislation of the European Union relating
to Economic and Monetary Union.
"Party"
means a party to this Agreement.
"Permitted Security Interest"
means any Security Interest:
(a) referred to in Schedule 6 (Schedule of Security Interests) and any
other Security Interest created or outstanding with the prior written
consent of the Majority Banks provided that, unless permitted by any
other exception below, the aggregate principal amount secured by such
Security Interest will not be increased without such further consent;
(b) that attaches to receivables, the underlying contract generating such
receivables, the collections in respect thereof and the benefit of any
insurances covering such contracts, pursuant to a securitisation or
sale of receivables in respect of which an amount at least equal to
the sale proceeds of such receivables is treated as Financial
Indebtedness for the purpose of this Agreement;
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(c) over receivables of any one or more members of the Group in a maximum
aggregate amount of the greater of (i) euro 75,000,000 (or its
equivalent in other currencies) and (ii) 5 per cent. of outstanding
gross receivables as required to be included in the Company's
consolidated financial statements to secure Financial Indebtedness
incurred by members of the Group;
(d) arising solely by operation of law and either for so long as it
remains unenforceable or otherwise is discharged within 30 days, or
arising by virtue of a banker's right of set-off or combination of
accounts arising by operation of law or any rights of set-off arising
in the normal course of business and the aggregate amount of which is
not material or netting arrangements arising in the ordinary course of
banking business for cash management purposes, whether arising by
operation of law or contract;
(e) over any security deposits required in respect of leased premises;
(f) arising under any retention of title arrangements entered into in the
ordinary course of trading;
(g) over goods or documents of title to goods arising in the ordinary
course of documentary credit transactions;
(h) on assets acquired after the Signing Date, or on assets of a body
corporate which becomes a Subsidiary of the Company by acquisition
after the Signing Date, provided that:
(i) any such Security Interest is in existence prior to such
acquisition and is not created in contemplation of such
acquisition; and
(ii) the amounts secured by such Security Interest does not exceed, at
any time, the amount secured by it as at the date of acquisition
or agreed to be secured by it (in accordance with the original
terms on which such Security Interest was created) as at the date
of acquisition;
(i) over any assets to secure Indebtedness of any member of the Group
where the lender has no right of recovery of such Indebtedness against
the general assets and undertaking of such member of the Group but has
a limited right of recourse only against the asset acquired with the
proceeds of such Indebtedness;
(j) created in favour of a plaintiff or defendant in any action, or the
court or tribunal before which such action is brought, as security for
costs or expenses where any member of the Group is prosecuting or
defending such action in the bona fide interests of that member and
any other member of the Group;
(k) pursuant to any order of attachment, distraint, garnishee order or
injunction restraining disposal of assets or similar legal process
arising in connection with legal proceedings;
(l) created or outstanding on or over any assets of any member of the
Group provided that the aggregate principal amount so secured under
this paragraph (l) shall not at any time exceed euro 35,000,000 or its
equivalent in other currencies;
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(m) created pursuant to any arrangements to satisfy the mandatory
requirements of a government or governmental agency applicable to the
licensing or regulation of employment agencies or staffing services
businesses; and
(n) securing Indebtedness incurred to refinance other Indebtedness
permitted to be secured under paragraphs (a) to (l) above inclusive or
this paragraph (n) provided that the aggregate principal amount of the
Indebtedness secured by such Security Interest is not increased and
such Security Interest does not extend to any assets other than those
which are subject to the Security Interest securing the refinanced
Indebtedness.
"Principal Subsidiary"
means each of Adecco Career Staff Limited (Japan), Adecco Travail
Temporaire SASU, Adecco UK Limited, Adecco USA, Inc., Adecco Societa di
Fornitura di Lavoro Temporaneo SPA and Xxxx XXXX, and any operating
Subsidiary of the Company whose net revenues, at any time, represent 5% or
more of the consolidated net revenues of the Company's Group at any time,
and for this purpose:
(a) the net revenues of any such Subsidiary shall be ascertained by
reference to:
(i) the financial statements of such Subsidiary at the date to which
the last audited consolidated financial statements of the Group
have been prepared; or
(ii) if such body corporate becomes a Subsidiary of the Company after
that date, the latest financial statements of such Subsidiary
adjusted to take into account subsequent acquisitions and
disposals or other changes in circumstances;
(b) the consolidated net revenues of the Group shall be ascertained by
reference to the Original Financial Statements until the date of first
delivery of the audited consolidated financial statements of the
Company pursuant to Clause 19.2 (Financial Information) and,
thereafter, shall be ascertained by reference to the latest audited
consolidated financial statements of the Company delivered pursuant to
Clause 19.2 (Financial Information); and
(c) once a body corporate has become a Principal Subsidiary, it shall be
considered to be one until it has been demonstrated to the reasonable
satisfaction of the Agent that it has ceased to be a Principal
Subsidiary, a written report from the Company's auditors to this
effect being sufficient for this purpose.
Provided that the Agent shall be entitled to seek information from the
Company on the consolidated net revenues of any Subsidiary of the Company
and, if following review thereof, the Agent is reasonably of the opinion
that a particular Subsidiary is a Principal Subsidiary as defined above,
such Subsidiary shall thenceforth be a Principal Subsidiary.
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"Proportion"
means, in relation to each LC and each Bank, the proportion which the
Commitment of that Bank bears to the Total Commitments.
"Rate Fixing Day"
means:
(a) the second Business Day before the Utilisation Date for an Advance; or
(b) in the case of an Advance in euros, the second TARGET Day before the
Utilisation Date for an Advance,
or, in each case, such other day on which it is market practice in the
relevant interbank market for leading banks to give quotations for deposits
in the relevant currency for delivery on the first day of the relevant Term
of the Advance, as determined by the Agent.
"Reference Banks"
means, subject to Clause 29.4 (Reference Banks), Bank of America N.A.,
Societe Generale, and The Royal Bank of Scotland plc.
"Request"
means a request made by a Borrower for a Utilisation, substantially in the
form of Schedule 3 (Form of Request).
"Requested Amount"
means the Original Euro Amount of a Utilisation requested in a Request.
"Reservations"
means the principle that equitable remedies are remedies which may be
granted or refused at the discretion of the court, the limitation of
enforcement by laws relating to bankruptcy, insolvency, liquidation,
reorganisation, court schemes, moratoria, administration and other laws
generally affecting the rights of creditors, the time barring of claims
under the Limitation Acts, the possibility that an undertaking to assume
liability for or to indemnify a person against non-payment of UK stamp duty
may be void, defences of set-off or counterclaim and similar principles,
rights and defences under the laws of any jurisdiction in which relevant
obligations may have to be performed.
"Screen Rate"
means:
(a) in relation to LIBOR, the British Bankers Association Interest
Settlement Rate for the relevant currency and period; and
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(b) in relation to EURIBOR, the percentage rate per annum determined by
the Banking Federation of European Union for the relevant period,
displayed on Telerate 3750 in the case of LIBOR and Telerate 248 in the
case of EURIBOR. If the agreed page is replaced or service ceases to be
available, the Agent may specify another page or service displaying the
appropriate rate after consultation with the Company and the Banks.
"Security Interest"
means any mortgage, pledge, lien, charge, assignment, hypothecation or
security interest or any other agreement or arrangement having the effect
of conferring security or any other type of preferential arrangement
(including title transfer and retention arrangements and arrangements
whereby sums deposited with a financial institution are conditioned as to
maturity so as to achieve quasi-security through set-off) having a similar
effect.
"SESTA"
means the Swiss Federal Act on Stock Exchanges and Securities Trading of
24th March, 1995.
"Signing Date"
means the date of this Agreement.
"Sterling" or "(pound)"
means the lawful currency for the time being of the United Kingdom.
"Subsidiary"
means, in relation to a company or corporation, any company or corporation:
(a) which is controlled, directly or indirectly, by the first-mentioned
company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first mentioned company or
corporation; or
(c) which is a subsidiary of another subsidiary of the first-mentioned
company or corporation
and, for these purposes, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to
direct its affairs and/or to control the composition of its board of
directors or equivalent body.
"Swiss Franc"
means the lawful currency for the time being of Switzerland.
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"Swiss Reservations"
means the reservations contained in paragraphs (a) to (g) of the opinion
provided pursuant to paragraph 7(c) of Part I of Schedule 2 (Initial
Conditions Precedent Documents) of this Agreement.
"TARGET Day"
means a day on which the Trans-European Automated Real-time Gross
settlement Express Transfer (TARGET) System is operating.
"Tax(es)"
includes any present or future tax, levy, impost, duty, charge, fee,
deduction or withholding of any similar nature (including any penalty or
interest payable in connection with any failure to pay or any delay in
paying any of the same).
"Term"
means the period selected by a Borrower in a Request for which the relevant
Utilisation is to be outstanding.
"Total Commitments"
means the aggregate for the time being of the Commitments being euro
580,000,000 at the Signing Date.
"US GAAP"
means generally accepted accounting principles in the United States of
America from time to time.
"US Dollars" or "US$"
means the lawful currency for the time being of the United States of
America.
"Utilisation"
means an Advance and an LC in each case which is the subject of a Request
by a Borrower.
"Utilisation Date"
means:
(a) in the case of an Advance, the date for the making of the relevant
Advance; and
(b) in the case of an LC, the date for issuance of the relevant LC.
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"VAT"
means value added tax as provided for in the Value Added Tax Xxx 0000 and
any other tax of a similar nature.
"Winding up"
of a person includes the reorganisation, administration, dissolution or
liquidation of that person, and any equivalent or analogous procedure under
the law of any jurisdiction in which that person is incorporated, domiciled
or resident or carries on business or has assets.
1.2 Construction
(a) In this Agreement, unless the contrary intention appears, a reference to:
(i) the "Agent" shall be construed so as to include its and any subsequent
successors, transferees and assigns in accordance with their
respective interests;
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 "authorisation" includes an authorisation, consent, approval,
resolution, licence, exemption, filing, registration or notarisation;
a "Bank" shall be construed so as to include its and any subsequent
successors, transferees and assigns in accordance with their
respective interests;
"control" means the power to direct the management and policies of an
entity, whether through the ownership of voting capital, by contract
or otherwise;
"European interbank market" means the interbank market for euro
operating in Participating Member States.
a "material adverse effect" means a material adverse effect in the
business or financial condition of the Company or any member of the
Group which would be likely to have a material and adverse effect on
the ability of each Obligor to meet its obligations under any of the
Finance Documents;
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
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(2) if a Term commences on the last Business Day of a calendar month,
that Term shall end on the last Business Day in the calendar
month in which it is to end;
"outstanding" in relation to a Default or Event of Default means that
the Default or Event of Default has not been remedied or waived;
a "person" includes any individual, unincorporated association or body
of persons (including a partnership, joint venture or consortium),
government, state, agency, international organisation or other entity;
a "principal amount" in relation to an LC is a reference to the
maximum amount which is expressed to be capable of being demanded
under the LC ignoring the aggregate of any cash cover held in relation
to the LC;
a "regulation" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of any
governmental, inter-governmental or supranational body, agency,
department or regulatory, self-regulatory or other authority or
organisation;
a "Screen" or "page" on a Screen in the definition of "LIBOR" and
"EURIBOR" includes any replacement screen or page nominated by the
British Bankers Association as the information vendor for the purpose
of displaying British Bankers Association Interest Settlement Rates
for deposits in various currencies;
(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 person includes its successors, transferees and assigns;
(v) a Finance Document or another document is a reference to that Finance
Document or other document as amended; and
(vi) a time of day is a reference to London time.
(b) Unless the contrary intention appears:
(i) an LC being "repaid" or "prepaid," and any derivation thereof means:
(A) providing the Agent (for the Issuing Bank) with cash cover in US
Dollars; or
(B) reducing (in accordance with the terms of this Agreement and the
relevant LC) the amount that may be demanded under the relevant
LC (or by that amount automatically reducing in accordance with
the terms of the relevant LC);
(C) cancelling the LC by returning the original to the Issuing Bank
for cancellation together with written confirmation (in form and
substance
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reasonably satisfactory to the Issuing Bank) from the relevant
Beneficiary that the Issuing Bank (as appropriate) has no further
liability under the LC;
(ii) "cash cover" being provided in respect of an LC at any time, means
paying an amount in US Dollars equal to the outstanding amount of that
LC at that time into an account with the Issuing Bank at its London
branch in the name of the LC Borrower which shall bear interest at the
Issuing Bank's usual market rate and from which withdrawals may only
be made:
(A) to pay the Issuing Bank or any Bank amounts due and payable to it
under this Agreement following any payment made by it under that
LC; and
(B) to pay (through the Agent) any amount demanded under the relevant
LC by the Beneficiary of that LC;
(iii) an amount "outstanding" at any time under or in respect of an LC, is
a reference to the principal amount of that LC less:
(A) the aggregate amount of cash cover held in relation to the LC at
that time, but for the avoidance of doubt, when calculating Net
Consolidated Financial Debt cash cover in respect of an LC shall
not be double-counted; and
(B) (save to the extent that this is taken into account in the
express provisions of the LC) the aggregate of all payments made
by the Issuing Bank under demands made under the relevant LC on
or prior to that time,
and each provision of this Agreement which requires reference to the
concept contained in this paragraph (iii) shall be construed
accordingly; and
(iv) the "participation" of a Bank in an LC for the purposes of Clause 2.2
(Overall facility limit), is a reference to that Bank's Proportion of
the Original Euro Amount of the relevant Utilisation and for the
purposes of this paragraph (iv), disregarding, in the case of the
Issuing Bank (if it is also a Bank), any amount by which the face
amount of the relevant LC exceeds its Bank's Proportion of that face
amount.
(c) 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.
(d) The index to and the headings in this Agreement are for convenience only
and are to be ignored in construing this Agreement.
(e) Unless expressly provided to the contrary in a Finance Document, a person
who is not a party to a Finance Document may not enforce any of its terms
under the Contracts (Rights of Third Parties) Xxx 0000 and, notwithstanding
any term of any Finance Document, no consent of any third party is required
for any variation (including any release or compromise of any liability) or
termination of that Finance Document.
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2. THE FACILITY
2.1 Facility
The Xxxxx xxxxx to the Borrowers a committed euro 580,000,000 multicurrency
revolving credit facility, under which the Banks will, when requested by a
Borrower, (other than the LC Borrower) make cash advances in euros or
Optional Currencies to that Borrower on a revolving basis or when requested
by the LC Borrower, issue LCs (up to an aggregate outstanding amount of
euro 150,000,000) denominated in US Dollars subject to the terms of this
Agreement.
2.2 Overall facility limit
The aggregate Original Euro Amount of all outstanding Utilisations shall
not at any time exceed the Total Commitments.
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.
2.4 Change of currency
(a) Subject always to Clause 12.4 (Currency) if more than one currency or
currency unit are at the same time recognised by the central bank of any
country as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations arising
under the Finance Documents in, the currency of that country shall be
translated into, or paid in, the currency or currency unit of that
country designated by the Agent and after consultation with the
Company; and
(ii) any translation from one currency or currency unit to another shall be
at the official conversion rate recognised by the central bank for the
conversion of that currency or currency unit into the other, rounded
up or down by the Agent acting reasonably.
(b) If a change in any currency of a country occurs, this Agreement will be
amended to the extent the Agent acting reasonably and after consultation
with the Company specifies to be necessary to reflect the change in
currency and to put the Banks in the same position, so far as possible,
that they would have been in if no change in currency had occurred.
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2.5 Number of Requests and Utilisations
(a) Each Request must specify one Utilisation only, but a Borrower may, subject
to the other terms of this Agreement, deliver more than one Request on one
day.
(b) Unless otherwise agreed by the Agent, no more than 15 Utilisations, of
which no more than 10 may be Advances, and five different currencies may be
outstanding at any time.
(c) A Utilisation made by a Bank under Clause 11.2(ii)(1) (Revocation of
currency) shall not be taken into account as a Utilisation in calculating
the maximum number of Utilisations.
(d) Each Request in respect of an LC shall be accompanied by the agreed form of
LC.
2.6 Borrowers' Agent
Each Obligor irrevocably authorises and instructs the Borrowers' Agent to
give and receive as agent on its behalf all notices (including Requests)
and sign all documents in connection with the Finance Documents on its
behalf and take such other action as may be necessary or desirable under or
in connection with the Finance Documents and confirms that it will be bound
by any action taken by the Borrowers' Agent under or in connection with the
Finance Documents.
2.7 Actions of Borrowers' Agent
The respective liabilities of each of the Obligors under the Finance
Documents shall not be in any way affected by:
(a) any irregularity (or purported irregularity) in any act done by or any
failure (or purported failure) by the Borrowers' Agent;
(b) the Borrowers' Agent acting (or purporting to act) in any respect
outside any authority conferred upon it by any Obligor; or
the failure (or purported failure) by or inability (or purported inability)
of the Borrowers' Agent to inform any Obligor of receipt by it of any
notification under this Agreement.
3. PURPOSE
(a) Each Utilisation will be applied for general corporate purposes including
the refinancing of the Advances outstanding under the Existing Facility.
(b) Without affecting the obligations of any Obligor in any way, no Bank is
bound to monitor or verify the application of any Advance.
4. CONDITIONS PRECEDENT
4.1 Documentary conditions precedent
No Borrower may deliver a Request until the Agent has notified the Company
and the Banks that it has received all of the documents set out in Part I
of Schedule 2 (Initial Conditions Precedent Documents) in form and
substance satisfactory to the Agent.
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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:
(i) the representations and warranties in Clause 18 (Representations
and Warranties) to be repeated on those dates are correct and
will be correct immediately after the Utilisation is made; and
(ii) no Default is outstanding or is likely to result from the
Utilisation; and
(b) the making of the Utilisation would not cause Clause 2.1 (Facility)
and Clause 2.2 (Overall facility limit) to be contravened.
5. ADVANCES
5.1 Receipt of Requests
(a) Any Borrower (other than the LC Borrower) may borrow Advances under the
Facility if the Agent receives, not later than 11.00 a.m. three Business
Days before the proposed Drawdown Date, a duly completed Request. Each
Request is irrevocable.
(b) For the avoidance of doubt, the LC Borrower may not make a Request for any
Advance under the Facility.
5.2 Completion of Requests for Advances
A Request for an Advance will not be regarded as having been duly completed
unless:
(a) the Drawdown Date is a Business Day falling during the Availability
Period;
(b) if the currency selected is euro, the amount of the Advance is:
(i) a minimum of euro 10,000,000 in integral multiples of euro
5,000,000;
(ii) the balance of the undrawn Total Commitments (taken into account
as repaid, Advances due to be repaid and LC Utilisations due to
mature on or before the proposed Drawdown Date); or
(iii) such other amount as the Agent may agree;
(c) if the currency selected is not euro, the amount of the Advance is:
(i) an integral multiple of 5,000,000 and a minimum of 10,000,000 of
the largest currency unit of that Optional Currency, but at least
the equivalent of euro 10,000,000;
21
(ii) the balance of the undrawn Total Commitments (taking into account
as repaid, Advances due to be repaid and LC Utilisations due to
mature on or before the proposed Drawdown Date); or
(iii) such other amount as the Agent may agree;
(d) the amount selected under paragraphs (b) and (c) above does not cause
Clause 2.1 (Facility) and Clause 2.2 (Overall facility limit) to be
contravened;
(e) the currency selected complies with Clause 11 (Optional Currencies);
(f) only one Term for each separate Advance is specified which:
(i) does not overrun the Availability Period; and
(ii) is a period of one, two, three or six months (or such other
period as the relevant Borrower and the Agent (with the prior
consent of all of the Banks) may previously have agreed for the
purposes of such Advances); and
(g) the payment instructions comply with Clause 12 (Payments).
5.3 Amount of each Bank's Participation
The Original Euro Amount of a Bank's participation in each Advance will be
the proportion of the Requested Amount which its Commitment bears to the
Total Commitments on the date of receipt of the relevant Request.
5.4 Notification of the Banks
The Agent shall promptly notify each Bank no later than the close of
business three Business Days before the proposed Drawdown Date of the
details of the requested Advance and the amount of its participation in the
Advance.
5.5 Payment Proceeds
Subject to the terms of this Agreement, each Bank shall make its
participation in the Advance available to the Agent for the relevant
Borrower in the currency in which it is to be borrowed, on the relevant
Drawdown Date.
5.6 Amount of Optional Currencies
If an Advance is to be made in an Optional Currency, the amount of the
Advance will be determined by converting into that Optional Currency, the
Original Euro Amount of that Advance on the basis of the Agent's Spot Rate
of Exchange on the day which is three Business Days prior to the proposed
Drawdown Date.
22
5.7 Automatic Request
A Request for an Advance under any Facility in an amount greater than the
remaining balance under that Facility shall be deemed to be a Request for
the amount of the remaining balance of that Facility.
6. LETTERS OF CREDIT
6.1 Delivery of Requests for LCs
The LC Borrower may request a Utilisation by way of an LC by delivery to
the Agent of the relevant Request no later than 11.00 a.m. five Business
Days before the proposed Utilisation Date or such shorter period as may be
agreed by the Agent and the Issuing Bank.
6.2 Completion of Requests
A Request for an LC will not be regarded as being duly completed unless:
(a) the Utilisation Date is a Business Day falling on or before the Final
Maturity Date;
(b) the Request specifies:
(i) the Requested Amount;
(ii) the Beneficiary; and
(iii) the expiry date of the LC, which shall not be later than the
Final Maturity Date;
(c) following the issue of the LC which is the subject of the Request, the
aggregate Original Euro Amount of all LCs outstanding shall not exceed
euro 150,000,000 or such other amount agreed from time to time between
the Borrowers' Agent and the Issuing Bank;
(d) the form of the proposed LC is attached to the Request, in a form
previously agreed between the LC Borrower, the Agent and the Issuing
Bank;
(e) details are provided for the delivery of the proposed LC to the
Beneficiary or, as the case may be, the LC Borrower on its Utilisation
Date; and
(f) the LC shall be denominated in US$.
6.3 Notification of the Banks
The Agent shall promptly notify each Bank and the Issuing Bank of the
details of the requested Utilisation and the amount of its participation in
the Utilisation.
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6.4 Amount of each Bank's participation in a Utilisation
The amount of each Bank's participation in a Utilisation by way of an LC
will be the proportion of such Utilisation which its Commitment bears to
the Total Commitments on the date of receipt of the relevant Request.
6.5 Issue of LC
Subject to the terms of this Agreement, the Issuing Bank shall issue and
deliver the relevant LC to the relevant Beneficiary or, as the case may be,
the LC Borrower on the relevant Utilisation Date.
6.6 Existing LCs
(a) The Existing LCs shall be deemed to be outstanding Utilisations under this
Agreement on and from the date on which the Agent provides its notification
to the Banks under Clause 4.1 (Documentary conditions precedent). The Agent
shall promptly notify each Bank of the details of the Existing LCs and the
amount of its participation in the Existing LCs on that date.
(b) For the avoidance of doubt, the LC Borrower will not be required to
complete or deliver a Request with respect to the Existing LCs. The
Existing LCs will be deemed issued and delivered in accordance with Clause
6.5 (Issue of LC).
(c)
6.7 Extension of LCs
An extension or amendment agreed between the Agent, Issuing Bank, LC
Borrower and Beneficiary to an LC issued or deemed issued in accordance
with this Clause 6 shall not constitute the issuance of a new LC.
6.8 Notification of changes to LCs
To enable the Agent to monitor the LC Utilisations, the Issuing Bank will,
as it becomes aware, notify the Agent of any matters arising affecting the
LCs including, without limitation, payments made, demands received, cash
cover received and termination.
The Agent and the Issuing Bank will consult each other about the LCs
generally.
7. INDEMNITY IN RELATION TO LCS
7.1 Indemnity
The LC Borrower unconditionally and irrevocably:
(a) authorises and directs the Issuing Bank to pay the amount of any
demand made under or purporting to be made under and in accordance
with an LC issued on its behalf without requiring investigation or
confirmation from the LC Borrower;
24
(b) undertakes to reimburse the Issuing Bank on demand the amount required
to satisfy any amount demanded under an LC and in the currency in
which the LC is denominated together with interest at the rate
specified in Clause 10.3 (Default interest) below from the date such
payment is made by the Issuing Bank until the date of reimbursement in
full by the LC Borrower provided that the relevant demand or
document(s) presented appear on their face to be in order except to
the extent that payment is made as a result of the Issuing Bank's
gross negligence or wilful misconduct, including without limit, wilful
failure to pay under the LC after the presentation to it of documents
strictly complying with the terms and conditions of the LC;
(c) undertakes to keep the Issuing Bank indemnified against all
liabilities, costs, losses, damages, demands, expenses or actions
which the Issuing Bank may suffer or incur or which may be made
against the Issuing Bank under or in connection with an LC, except to
the extent that the liability or loss arises directly from the Issuing
Bank's gross negligence or wilful misconduct, including without limit,
wilful failure to pay under the LC after the presentation to it of
documents strictly complying with the terms and conditions of the LC;
(d) confirms that the Issuing Bank shall be entitled to pay any demand
which appears on its face to be in order and agrees that in respect of
an LC the Issuing Bank deals in documents only and that the Issuing
Bank is not concerned with the legality of the claim or any underlying
transaction or any set-off, counterclaim or defence as between the LC
Borrower and any other person. This Clause 7.1 shall apply in respect
of amounts so paid without regard to any other condition, the
sufficiency, accuracy or genuineness of any such request or demand or
any certificate or statement in connection therewith or any incapacity
of or limitation upon the powers of any person signing or issuing such
request, demand or certificate. The Issuing Bank shall not be obliged
to enquire as to any such matters and may assume that any such
request, demand, certificate or statement is correct and properly
made. If the Issuing Bank, in accordance with the foregoing, pays any
demand which is not legally payable such amount shall nevertheless be
regarded as having been properly paid for the purposes of this
Agreement; and
(e) agrees that the obligations of the LC Borrower under this Clause 7.1
shall not be affected by any act, omission, matter or thing which but
for this provision might operate to release or otherwise exonerate the
LC Borrower from its obligations under this Agreement in whole or in
part, including without limitation and whether or not known to such
counterparty:
(i) any time or waiver granted to or composition with the Issuing
Bank, any Beneficiary or any other person;
(ii) any taking, variation, compromise, renewal or release of, or
refusal or neglect to perfect or enforce, any rights, remedies or
securities available to the Issuing Bank or any other person or
arising under any LC; or
(iii) any variation of any LC made with the consent of the LC
Borrower, counterparty and the Issuing Bank so that references in
this Agreement to such LC shall include each such variation.
25
7.2 Notification of demand
If a Beneficiary makes a demand under an LC in accordance with its terms,
the Issuing Bank shall promptly notify the Agent, who shall promptly notify
the LC Borrower, of the demand specifying:
(a) the latest date on which payment may be made in respect of the demand
(the "Demand Date");
(b) the amount of the demand (the "Demand Amount"); and
(c) the details of the Issuing Bank's account to which payment is to be
made.
7.3 Repayment
(a) If the LC Borrower fails to reimburse the Issuing Bank as required in
Clause 7.1(b) (Indemnity), by the Demand Date, the Issuing Bank shall
promptly notify the Agent who shall promptly notify each Bank of the Demand
Date, the Demand Amount and the amount of each Bank's pro rata share in the
Demand Amount (which shall be the proportion of the Demand Amount which
each Bank's Commitment bears to the Total Commitments) (the "Pro Rata
Share"). In such event, the Company shall be deemed to have requested an
Advance to be drawn on the Demand Date in an amount equal to the Demand
Amount for a Term of one month, or as otherwise agreed by the Agent, at the
rate of interest for Advances determined in accordance with Clause 10.1
(Interest rate for all Advances), without regard to the minimum and
multiples for Advances as specified in Clause 5.2(b) (Completion of
Requests for Advances), but subject to the balance of the undrawn Total
Commitments (taking into account as repaid, Advances due to be repaid and
outstanding LCs (other than the LC in question) due to mature on or before
the Demand Date) and Clause 4.2 (Further conditions precedent) and Clause
5.2(d) (Completion of Requests for Advances).
(b) Each Bank shall upon any notice pursuant to Clause 7.3(a) make funds
available to the Agent for the account of the Issuing Bank in an amount
equal to its Pro Rata Share of the Demand Amount not later than 1.00pm, New
York time, on the Business Day specified as such in such notice by the
agent, whereupon, subject to the provisions of Clause 7.3(c), each Bank
that makes funds available shall be deemed to have made an Advance to the
Company in such amount. The Agent shall remit the funds so received to the
Issuing Bank.
(c) With respect to a Demand Amount that is not fully refinanced by an Advance
because the conditions set out in Clause 4.2 (Further conditions precedent)
and Clause 5.2(d) (Completion of Requests for Advances) cannot be satisfied
or for any other reason, provided that the relevant demand or document(s)
presented appear on their face to be in order except to the extent that
payment is made as a result of the Issuing Bank's gross negligence or
wilful misconduct, including without limit, wilful failure to pay under the
LC after the presentation to it of documents strictly complying with the
terms and conditions of the LC the LC Borrower shall be deemed to have
incurred from the Issuing Bank a Utilisation in the amount of the Demand
Amount that is not so refinanced, which Utilisation shall be due and
payable on demand (together with interest specified in Clause 10.3 (Default
interest) from the date the Demand Amount was paid by the Issuing Bank to
the Beneficiary until the date of reimbursement in full by the LC Borrower.
In such event, each Bank's payment to the Agent
26
for the Account of the Issuing Bank pursuant to paragraph (b) shall be
deemed payment in respect of its participation in such Utilisation.
(d) Until each Bank funds its Pro Rata Share pursuant to paragraph (b), to
reimburse the Issuing Bank for any amount drawn under an LC, interest in
respect of such Bank's Pro Rata Share of such amount shall be solely for
the account of the Issuing Bank.
(e) Each Bank's obligation to make an Advance to reimburse the Issuing Bank for
amounts drawn under an LC, as contemplated by this Clause 7.3, shall be
absolute and unconditional and shall not be affected by any circumstance,
including but not limited to, any set-off or counterclaim, or the
occurrence or continuance of an Event of Default. Any such reimbursement
shall not relieve or otherwise impair the obligation of the LC Borrower to
reimburse the Issuing Bank for the amount of any payment made by the
Issuing Bank under an LC, together with interest as provided in this Clause
7 provided that the relevant demand or document(s) presented appear on
their face to be in order except to the extent that payment is made as a
result of the Issuing Bank's gross negligence or wilful misconduct,
including without limit, wilful failure to pay under the LC after the
presentation to it of documents strictly complying with the terms and
conditions of the LC.
(f) If any Bank fails to make available to the Agent for the account of the
Issuing Bank any amount required to be paid by such Bank pursuant to the
foregoing provisions by the time specified in paragraph (b), the Issuing
Bank shall be entitled to recover from such Bank (acting through the
Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is
immediately available to the Issuing Bank at a rate per annum equal to the
Federal Funds Rate from time to time in effect.
7.4 Certificate
A certificate in writing signed by one of the Agent's officers and
certifying the total amounts, whether principal, interest, commission, fees
or otherwise owing with respect to an LC shall, save for manifest error, be
prima facie evidence of the matters so certified.
7.5 Continuing Indemnity
The indemnity in this Clause 7 shall be a continuing indemnity, shall
extend to the ultimate balance of all amounts expressed to be payable by
the LC Borrower under the Finance Documents whether principal, interest,
commission, fees or otherwise outstanding under or in relation to an LC and
shall continue in full force and effect notwithstanding any intermediate
payment in whole or in part of amounts, whether principal, interest,
commission, fees or otherwise outstanding under or in relation to an LC.
7.6 Preservation of rights
No invalidity or unenforceability of all or any part of this Clause 7 shall
affect any rights of indemnity or otherwise which the Banks would or may
have in the absence of or in addition to this Clause 7.
27
7.7 Rights of subrogation
Until all amounts which may be or become payable by the LC Borrower under
or in connection with the Finance Documents have been irrevocably paid in
full, the LC Borrower shall not, after a claim has been made or by virtue
of any payment or performance by it under this Clause 7 be subrogated to
any rights, security or moneys held, received or receivable by the Agent
(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 the LC Borrower's liability under this Clause 7.
7.8 Additional Security
The obligations of the LC Borrower under this Clause 7 are in addition to
and are not in any way prejudiced by any collateral or other security now
or subsequently held by any Finance Party.
7.9 Banks' indemnity
Each Bank undertakes by way of continuing indemnity to indemnify and hold
harmless the Issuing Bank from and against all liabilities, costs, losses,
damages and expenses which the Issuing Bank may incur (including as a
result of a default by the LC Borrower under Clause 7.1 (Indemnity)) as a
result of the issue of LCs in the proportion of any such liability, cost,
loss, damage or expense so incurred which that Bank's Commitment bears to
the Total Commitments except to the extent that the liability or loss
arises directly from the Issuing Bank's gross negligence or wilful
misconduct, including without limit, wilful failure to pay under the LC
after the presentation to it of documents strictly complying with the terms
and conditions of the LC.
7.10 Repayment under LCs
If, under the terms of an LC, the relevant Beneficiary repays to the
Issuing Bank all or part of any amount paid by the Issuing Bank to the
relevant Beneficiary in respect of such LC then the Issuing Bank shall
forthwith utilise such amount repaid to repay all amounts due and payable
under this Agreement and any surplus shall be paid to the Borrower or other
person entitled to it.
7.11 The Borrower's counter-indemnity to Banks and Banks' right of subrogation
(a) If any Bank makes any payment to the Issuing Bank in accordance with Clause
7.9 (Banks' indemnity):
(i) the LC Borrower shall forthwith on demand:
(A) reimburse that Bank in full the amount required to satisfy in
full the amount so paid by that Bank; and
(B) indemnify that Bank against all liabilities, costs and losses
that Bank may incur as a result of its entering into the
indemnity set out in Clause 7.9 (Banks' indemnity),
28
except in each case to the extent that the liability or loss
arises directly from the Issuing Bank's gross negligence or
wilful misconduct, including without limit, wilful failure to pay
under the LC after the presentation to it of documents strictly
complying with the terms and conditions of the LC; and
(ii) each Obligor acknowledges and agrees that such Bank shall immediately
be subrogated to the rights of the Issuing Bank against the Obligors
under the Finance Documents to the extent of the relevant payment).
(b) If the LC Borrower has reimbursed the Issuing Bank under Clause 7.1
(Indemnity) in respect of all or part of any amount paid by the Borrower to
the relevant Bank in respect of any amount paid under Clause 7.11(a)(i)
then the Issuing Bank shall forthwith utilise such amount repaid to repay
such Bank and following any such payment all amounts due and payable under
this Agreement and any surplus shall be paid to the LC Borrower or other
person entitled to it.
8. REPAYMENT
8.1 Repayment of Advances
The Borrowers shall repay each Advance in full on its Maturity Date to the
Agent for distribution to the Banks, but since the Facility is available on
a revolving basis, amounts repaid may be reborrowed subject to the terms of
this Agreement. No Advances may be outstanding after the Final Maturity
Date.
8.2 Repayment of LCs
All outstanding LCs must be repaid by no later than the Final Maturity
Date.
9. PREPAYMENT AND CANCELLATION
9.1 Automatic cancellation
The Commitment of each Bank shall be automatically cancelled at the close
of business in London on the Final Maturity Date.
9.2 Voluntary cancellation
The Borrowers' Agent may, by giving not less than 30 days' prior written
notice (or such shorter period as the Majority Banks may agree) to the
Agent, cancel the unutilised portion of the Total Commitments in whole or
in part (but, if in part, in a minimum of euro 10,000,000 and an integral
multiple of euro 5,000,000). Any cancellation in part shall be applied
against the Commitment of each Bank pro rata.
9.3 Mandatory prepayment - change of control
(a) For the purposes of this Clause 9.3:
Key Shareholder means X X Xxxxxx A.G. and Xxxxx Finance S.A. or either of
them.
29
A change of control event is any event which would trigger a requirement
under SESTA for a person or persons to make a mandatory offer for the
listed share capital of the Company regardless of any waiver to the
contrary in the constitutional documents of the Company. Notwithstanding
any provision of SESTA to the contrary, for the purposes of this definition
the following will not be regarded as a change of control event:
(i) the reacquisition of control by either or both of X X Xxxxxx A.G. or
Xxxxx Finance S.A. and their respective connected persons;
(ii) the reacquisition or subsequent sharing of control by the Key
Shareholders (or either of them) and their respective connected
persons, with a third party provided that the third party:
(A) could not itself have control of the Company (in the absence of
its arrangement with the Key Shareholders or any connected
person);
(B) does not have the ability to exercise the voting rights attached
to the shares held by the Key Shareholders or those connected
persons with whom control is shared without the agreement of the
relevant Key Shareholders or those connected persons; and
(C) does not hold more shares or voting rights than any Key
Shareholders and its related connected persons with whom control
is shared,
and for the purposes of (i) and (ii) above control means the ability to
exercise one third of the voting rights attaching to the shares of the
relevant company.
A connected person in relation to a Key Shareholder means Xx. Xxxxx Xxxxxx
(in relation to X X Xxxxxx A.G. and Mr. Foriel-Destezet (in relation to
Xxxxx Finance SA), a member of their immediate families (meaning spouse and
children) or trusts for the benefit of any member of their immediate
families or any companies controlled by them or by members of their
immediate families and for the purposes of this paragraph controlled shall
mean the ability to exercise direct or indirect control over the relevant
company's affairs.
(b) The Company must promptly notify the Agent of any change of control event.
(c) After a change of control event, if the Majority Banks so require, the
Agent must, by at least 30 days notice (to be given within six months from
the date of notifications given by the Company under (b) above) to the
Company:
(i) cancel the Total Commitments;
(ii) declare all outstanding Advances, together with accrued interest and
all other amounts accrued under the Finance Documents, to be
immediately due and payable; and
(iii) declare all LCs to be immediately repayable.
Any such notice will take effect in accordance with its terms.
30
(d) After a change of control event, if an individual Bank so requires, the
Facility Agent must, by at least 30 days' notice (to be given within six
months from the date of notifications given by the Company under (b) above)
to the Company:
(i) cancel the Commitments of the relevant Bank; and
(ii) declare the outstanding Advances, in relation to the relevant Bank,
together with any accrued interest and all other amounts accrued under
the Finance Documents in relation to that Bank, to be immediately due
and payable.
(iii) declare the relevant Bank's participation in all outstanding LCs to
be immediately repayable.
Any such notice will take effect in accordance with its terms.
9.4 Voluntary prepayment
(a) The Borrowers' Agent may, by giving not less than 30 days' prior written
notice (or such shorter period as the Majority Banks may agree) to the
Agent, prepay the whole or any part of any Advance (but, if in part, in a
minimum Original Euro Amount of euro 10,000,000 and an integral multiple of
euro 5,000,000 or, the equivalent if in an Optional Currency.
(b) Any voluntary prepayment made under paragraph (a) above will be applied
against all the Advances pro rata (or against such Advances as the
Borrowers' Agent may designate in the notice of prepayment and pro rata
between such Advances).
9.5 LC prepayment
If at any time the aggregate Original Euro Amount of the outstanding LCs
exceeds the amount permitted under Clause 2.1 (being euro 150,000,000) the
LC Borrower shall, upon notice from the Agent, promptly repay the amount of
the excess.
9.6 Additional right of prepayment and cancellation
If any Borrower is required to pay or is notified by any Bank in writing
that it will be required to pay any amount to a Bank under Clause 13
(Taxes) or Clause 15 (Increased Costs), or if circumstances exist such that
a Borrower will be required to pay any amount to a Bank under Clause 13
(Taxes) or Clause 15 (Increased Costs), without prejudice to the
obligations of any Obligor under those Clauses, the Borrowers' Agent may,
whilst the circumstances giving rise or which will give rise to the
requirement to continue, serve a notice of prepayment or cancellation on
that Bank through the Agent. On the date falling five Business Days after
the date of service of the notice:
(a) each Borrower shall prepay that Bank's participation in all the
Advances and LCs; and
(b) the Bank's Commitment shall be permanently cancelled.
31
9.7 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, together with any Break Costs but
otherwise without premium or penalty.
(c) No prepayment or cancellation is permitted except in accordance with the
express terms of this Agreement.
(d) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
10. INTEREST
10.1 Interest rate for all Advances
The rate of interest on each Advance for its Term is the rate per annum
determined by the Agent to be the aggregate of:
(i) the applicable Margin;
(ii) (A) LIBOR (in the case of an advance denominated in a currency other
than euros);
(B) EURIBOR (in the case of an advance denominated in euros); and
(iii) the Mandatory Cost.
10.2 Due Dates
Except as otherwise provided in this Agreement, accrued interest on each
Advance is payable by the relevant Borrower in the case of an Advance on
its Maturity Date and also, if the Term of the Advance is longer than six
months, on the dates falling at six-monthly intervals after its Drawdown
Date for so long as the Term is outstanding.
10.3 Default interest
(a) If a Borrower 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 judgement, at a rate (the "default rate") determined by the
Agent, to be one per cent. per annum above the rate which would have been
payable if the overdue amount had, during the period of non-payment,
constituted an Advance at the highest Margin shown in Clause 10.5
(Calculation of Margin and utilisation fee) in the currency of the overdue
amount for such successive Term of such duration as the Agent may determine
(each a "Designated Term").
32
(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 Term, as appropriate.
(c) If the Agent determines that deposits in the currency of the overdue amount
are not at the relevant time being made available by the Reference Banks to
leading banks in the London (or, as the case may be, in the European)
interbank market, the default rate will be determined by reference to the
cost of funds to the Agent from whatever sources it may select.
(d) Default interest will be compounded at the end of each Designated Term.
10.4 Notification of rate of interest
The Agent shall promptly notify each relevant Party of the determination of
a rate of interest under this Agreement.
10.5 Calculation of Margin and utilisation fee
(a) Subject to the following provisions of this Clause 10.5, the Margin for an
Advance will be 0.50 per cent. per annum, and the utilisation fee referred
to in Clause 22.4 (Utilisation fee) will be 0.050 per cent. per annum.
(b) On and from the end of the first financial quarter of the Group to end
after the date of this Agreement, the Margin for all Advances and the
utilisation fee will, if necessary, be adjusted (upwards or downwards) as
provided for in paragraphs (c) and (d) below, to the percentage rates per
annum specified in Columns 2 and Columns 3 respectively set opposite the
range into which the Net Consolidated Financial Debt to EBITDA ratio falls,
as shown in the Margin Certificate delivered under Clause 19.2 (Financial
information).
(c) For the purposes of this Clause 10.5, a "Margin Certificate" means a
certificate, signed by one of the Company's Financial Officers relating to
the end of each quarter of the Group's financial years and by the auditors
(if so required by the Agent or if not so required, by one of the Company's
Financial Officers) in respect of a Margin Certificate relating to the end
of each of the Group's financial years confirming the ratio of Net
Consolidated Financial Debt to EBITDA ratio for the relevant period. For
the purposes of calculating EBITDA at the end of any given quarter, the
EBITDA for the four consecutive quarters of the Group's financial year
ending at the end of that first mentioned quarter will be used.
---------------------------------------------------------------------------------------------------
Margin/Commission
---------------------------------------------------------------------------------------------------
Range of
Net Consolidated Financial Debt to Margin (% p.a.) Margin (% p.a.) Utilisation fee
EBITDA ratios Years 1-3 Years 4 & 5 (% p.a.)
---------------------------------------------------------------------------------------------------
below 2:1 0.45 0.50 0.025
---------------------------------------------------------------------------------------------------
equal to or higher than 2:1 and lower than
2.5:1 0.50 0.55 0.050
---------------------------------------------------------------------------------------------------
equal to or higher than 2.5:1 and lower
than 3:1 0.55 0.60 0.075
---------------------------------------------------------------------------------------------------
33
(d) Any adjustment to the Margin and the utilisation fee (whether upwards or
downwards) in accordance with paragraphs (b) and (c) above will only apply
to the Term of any Advance commencing following receipt of the relevant
consolidated financial statements of the Group and the related Margin
Certificate.
(e) Notwithstanding the provisions of (a) to (d) above, if an Event of Default
occurs the applicable Margin and utilisation fee shall with immediate
effect be 0.60 per cent. per annum and 0.075 per cent. per annum
respectively for as long as an Event of Default continues.
(f) For the purposes of the table above, reference to Years 1-3 means the
period starting on the Signing Date and ending on the third anniversary of
the Signing Date and reference to Years 4-5 means the period starting on
the date one day after the third anniversary of the Signing Date and ending
on the Final Maturity Date.
(g) The ratios and calculations referred to in this Clause 10.5 shall be
produced on the basis of the accounting policies as referred to in Clause
19.5 (Accounting policies).
10.6 LC fee
(a) The Borrowers' Agent will pay, in respect of each LC, a fee at an annual
rate equal to the applicable Margin on the Utilisation Date of the LC, such
fee to be payable from the Utilisation Date of that LC on the principal
outstanding amount of that LC from time to time.
(b) The fee in respect of each LC accrues on a daily basis and is payable
quarterly in arrear with the payments being made on the same dates as those
specified for the payment of commitment fees under Clause 22.2 (Commitment
fee). Each Bank shall be entitled to receive its Proportion of all LC fees
payable by the Borrowers' Agent.
10.7 Fronting fee
(a) The Borrowers' Agent will pay to the Agent (for the account of the Issuing
Bank) a fronting fee in respect of each LC at a rate equal to 0.10 per
cent. per annum, such fee to be payable from the Utilisation Date of that
LC and to be calculated on the principal outstanding amount of that LC from
time to time.
(b) Fronting fee in respect of each LC accrues on a daily basis and is payable
quarterly in arrear with the payments being made on the same dates as those
specified for the payment of commitment fees under Clause 22.2 (Commitment
fee).
10.8 Other Adjustments
The Agent and a Borrower may enter into such other arrangements as they may
agree for the consolidation and/or splitting of Advances made to a
Borrower.
11. OPTIONAL CURRENCIES
11.1 Selection
(a) A Borrower shall select the currency of a Utilisation in the relevant
Request.
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(b) The currency of each Utilisation must be euros, Swiss Francs, US Dollars or
another Optional Currency.
(c) The currency of each LC must be US Dollars.
(d) No Borrower may choose a currency if as a result the Utilisations would be
denominated at any one time in more than five currencies.
(e) The Agent shall notify each Bank of the currency and the Original Euro
Amount of each Utilisation and the applicable Agent's Spot Rate of
Exchange, as applicable, promptly after they are ascertained.
11.2 Revocation of currency
If before 9.30 a.m. on any Rate Fixing Day, the Agent receives notice from
a Bank that:
(a) it is impracticable for the Bank to fund its participation in the
relevant Advance in the relevant Optional Currency during its Term in
the ordinary course of business in the London or (in the case of
euros) European interbank market; and/or
(b) the compliance with its obligations to participate in an Advance in
the proposed Optional Currency would contravene any law or regulation
applicable to it,
the Agent shall give notice to the relevant Borrower and to the Banks to
that effect before 11.00 a.m. Brussels time on that day. In this event:
(i) the relevant Borrower and the Banks may agree that the drawdown will
not be made; or
(ii) in the absence of agreement:
(1) that Banks' participation in the Advance (or, if more than one
Bank is similarly affected, those Banks' participations in the
Advance) shall be treated as a separate Advance denominated in
euros during the relevant Term; and
(2) in the definition of "LIBOR" and "EURIBOR" (insofar as it applies
to that Advance) in Clause 1.1 (Definitions):
(A) there shall be substituted for the time "11.00 a.m." the
time "1.00 p.m."; and
(B) paragraph (b) of the definition of LIBOR and EURIBOR shall
apply.
12. PAYMENTS
12.1 Place of payment
All payments by a Borrower or a Bank under the Finance Documents shall be
made to the Agent to its account at such office or bank in the principal
financial centre of a country of the relevant currency or in the case of
euros, in the principal financial centre of a Participating
35
Member State, in Stockholm or in London as it may notify to that Borrower
or Bank for this purpose. Notwithstanding the above, all payments by the
Company to the MLAs under Clause 23 (Expenses) shall be made direct to the
MLAs in the manner agreed by the MLAs and the Borrowers' Agent.
12.2 Funds
Payments under the Finance Documents to the Agent shall be made for value
on the due date at such times and 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.
12.3 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 in the principal
financial centre of a country of the relevant currency or in the case of
euros, in the principal financial centre of a Participating Member State,
in Stockholm or in London as it may notify to the Agent for this purpose by
not less than five Business Days' prior notice.
(b) The Agent may apply any amount received by it for a Borrower in or towards
payment (on the date and in the currency and funds of receipt) of any
amount due from a Borrower 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.
12.4 Currency
(a) A repayment or prepayment of a Utilisation is payable in the currency in
which the Utilisation 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, 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.
36
12.5 Set-off and counterclaim
All payments made by a Borrower under the Finance Documents shall be made
without set-off or counterclaim.
12.6 Non-Business Days
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, or as the case may be, a New York Business Day, the due date
for that payment shall instead be the next Business Day or as the case may
be, New York Business Day, in the same calendar month (if there is one) or
the preceding Business Day or as the case may be, New York 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.
12.7 Partial payments
(a) If the Agent receives a payment insufficient to discharge all the amounts
then due and payable by the Borrowers under the Finance Documents, the
Agent shall apply that payment towards the obligations of the Borrowers
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 pro rata of any accrued interest due
but unpaid under this Agreement;
(iii) thirdly, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) The Agent shall, if so directed by all the Banks, vary the order set out in
sub-paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by a
Borrower.
13. TAXES
13.1 Gross up
(a) All payments by an Obligor under the Finance Documents shall be made in
full without any deduction or withholding whatsoever and free and clear of
and without any deduction or withholding for or on account of any Taxes,
except to the extent that the Obligor is required by law to make payment
subject to any Taxes. Subject to paragraph (b) below, if any Taxes or
amounts in respect of Taxes must be deducted or withheld, or any other
deductions or withholdings must be made, from any amounts payable or paid
by an Obligor, or paid or
37
payable by the Agent to a Finance Party, under the Finance Documents, the
Obligor shall pay such additional amounts as may be necessary to ensure
that the relevant Bank receives and retains (after any deduction or
withholding in respect of such additional amount) a net amount equal to the
full amount which it would have received had payment not been made subject
to Tax or any other deduction or withholding.
(b) An Obligor is not obliged to pay any additional amounts pursuant to
paragraph (a) above in respect of (i) any deduction or withholding which
would not have been required if the relevant Finance Party had completed a
declaration, claim, exemption or other form which it is able to complete;
or (ii) any voluntary change by a Finance Party in the Facility Office.
13.2 Indemnity
Each Obligor shall:
(a) pay when due all Taxes required by law to be deducted or withheld by
it from any amounts paid or payable under the Finance Documents;
(b) within 30 days of the payment being made, deliver to the Agent for the
relevant Finance Party evidence satisfactory to that Finance Party
(including all relevant Tax receipts or certified copies thereof) that
the payment has been duly remitted to the appropriate authority; and
(c) within 5 Business Days of a demand made by the Agent on behalf of a
Finance Party identifying the circumstances giving rise to a claim
indemnify each Finance Party against any loss or liability or cost
which that Finance Party incurs as a consequence of the payment or
non-payment of those Taxes (other than for the avoidance of doubt any
additional amount payable pursuant to Clause 13.1(a) (Gross up) or in
respect of which an Obligor is not liable to make any payment pursuant
to Clause 13.1(a) (Gross up) by virtue of Clause 13.1(b) (Gross up).
13.3 Tax Credit
If any Obligor pays any increased amount pursuant to this Clause 13 and any
Finance Party effectively obtains a refund of Tax or credit against Tax by
reason of that payment, and if the Finance Party is able to identify that
refund or credit as being attributable to that payment having regard to its
other activities, then such Finance Party shall reimburse to the Obligor
such amount as it shall determine (any such determination being conclusive)
to be the proportion of that refund or credit as would leave the Finance
Party after that reimbursement in no better or worse position than it would
have been if that payment had not been required. Neither the Agent nor any
of the Banks shall be obliged to arrange their tax affairs in any
particular manner or to disclose any confidential information regarding
their tax affairs or computations to the Borrower.
13.4 Avoidance of Swiss Withholding Tax
In order to avoid that Swiss withholding tax may become applicable on
interest payments under this Agreement, the Company undertakes that:
38
(a) the number of persons who are not Approved Banks to whom the Company
owes the aggregate of its interest-bearing borrowed money (other than
bond issues which are subject to Swiss withholding tax) is not more
than 20; and
(b) it is and will be in compliance with explanatory note S-02.122(4.99)
of the Swiss Federal Tax Administration and any change or amendment
thereof which has an impact on the Company's obligation in respect of
Swiss withholding tax under this Agreement.
14. MARKET DISRUPTION
14.1 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. on a
Rate Fixing Day, the applicable LIBOR or EURIBOR shall, subject to Clause
14.2 (Market disruption), be determined on the basis of the quotations of
the remaining Reference Banks.
14.2 Market disruption
If, in relation to any proposed Advance:
(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. 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) before the close of business on the Rate Fixing Date the Agent
receives notification from Banks whose participations in an Advance
exceed 35 per cent. of that Advance that the cost to them of obtaining
matching deposits in the London or (in the case of euro) European
interbank market would be in excess of LIBOR or EURIBOR, as
appropriate, for the relevant Term,
the Agent shall promptly notify the Obligor and the Banks of the fact and
that this Clause 14 is in operation.
14.3 Substitute basis
(a) After any notification under Clause 14.2 (Market disruption) the relevant
Advance shall not be made. However, within five Business Days of receipt of
the notification, the Obligor and the Agent shall enter into negotiations
for a period of not more than 30 days with a view to agreeing a substitute
basis for determining the rate of interest and/or funding applicable to
that and (to the extent required) any future Advance. Any substitute basis
agreed shall be, with the prior consent of all the Banks, binding on all
the Parties.
(b) During any period when a substitute basis is in force, the Agent and the
Company shall consult not less frequently than once every 30 days with a
view to reverting to the other provisions of this Agreement as soon as
practicable.
39
(c) Where an Advance is not made pursuant to Clause 14.3(a), and where such
Advance would have been applied in repaying any outstanding Advances
maturing on the proposed date for such Advance, the three day period
referred to in Clause 20.2 (Non-payment) shall be treated as applicable,
notwithstanding the absence of technical malfunction or administrative
error, but extended to 30 days to the extent that the Borrower fails to
repay such outstanding Advances on such date.
15. INCREASED COSTS
15.1 Increased costs
(a) Subject to Clause 15.2 (Exceptions), the Borrowers' Agent shall within 5
Business Days following a demand by a Finance Party in accordance with
Clause 15.3 (Notification) pay to that Finance Party the amount of any
increased cost incurred by it or any Holding Company (which, for the
purposes of this Clause 15.1, means any company or entity (if any) within
the consolidated supervision of which such Finance Party is included) of
such Finance Party 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 by a competent
authority charged with that function; or
(ii) compliance with any regulation made after the Signing Date by a
central bank, monetary, regulatory or other similar authority,
(including any law or regulation relating to taxation, change in currency
of a country 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 Finance Party or any Holding Company
of such Finance Party as a result of it having entered into, or
performing, maintaining or funding its obligations under, any Finance
Document; or
(ii) that portion of an additional cost incurred by a Finance Party or any
Holding Company of such Finance Party in making, funding or
maintaining all or any advances comprised in a class of advances
formed by or including that Finance Party's participations in the
Advances made or to be made under this Agreement as is attributable to
that Finance Party making, funding or maintaining those
participations; or
(iii) a reduction in any amount payable to a Finance Party or any Holding
Company of such Finance Party or in the effective return to a Finance
Party or any of its Affiliates under this Agreement or (to the extent
that it is attributable to this Agreement) on its capital; or
(iv) the amount of any payment made by a Finance Party or any Holding
Company of such Finance Party, or the amount of any interest or other
return foregone by a Finance Party or any of its Affiliates,
calculated by reference to any amount received
40
or receivable by that Finance Party or any of its Affiliates from any
other Party under this Agreement.
15.2 Exceptions
Clause 15.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the payment of the Mandatory Cost;
(b) compensated for by the operation of Clause 13 (Taxes) or not required
to be compensated for by reason of Clause 13.1(b) (Gross up) or 13.2
(Indemnity);
(c) attributable to any change in the rate of, or change in the basis of
calculating, Tax on the overall net income of a Bank (or the overall
net income of a division or branch of the Bank) imposed in the
jurisdiction in which (i) its principal office or Facility Office is
for the time being situate, (ii) it is incorporated, or (iii) it is
treated as resident for Tax purposes;
(d) attributable to the wilful breach by a Bank or Affiliate of any law or
regulation applicable to it;
(e) arising from a request or requirement relating to the maintenance of
capital made by way of implementation of the paper entitled
"International Convergence of Capital Measurement and Capital
Standards" dated July 1988 and prepared by the Basle Committee on
Banking Regulations and Supervision, as amended in 1991, in the manner
in which it is being implemented as at the Signing Date; or
(f) attributable to a voluntary change by any Finance Party of the
Facility Office.
15.3 Notification
If any Finance Party intends to make a claim under Clause 15.1 (Increased
costs) then and in every such case it shall notify the Borrowers' Agent
through the Agent of the claim and the circumstances giving rise to the
claim promptly on becoming aware of those circumstances including, in
reasonable detail, particulars of the circumstances and accompanied by a
certificate specifying the amount of compensation claimed and setting out
the calculation of the amount in reasonable detail. Nothing in this Clause
15.3 shall oblige any Finance Party (or any Holding Company in or Affiliate
to such Finance Party) to disclose any confidential information relating to
the organisation of its affairs.
16. ILLEGALITY
If it is or becomes unlawful in any jurisdiction for a Finance Party 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 Finance Party may notify the relevant Obligor through the Agent
accordingly; and
41
(b) (i) each Borrower shall, no earlier than three Business Days prior to
the latest permitted lawful date for payment, prepay the
participations of that Finance Party in all the Utilisations made
to it; and
(ii) the Commitment of that Finance Party shall forthwith be
cancelled.
17. GUARANTEE
17.1 Guarantee
The Company irrevocably and unconditionally:
(a) guarantees to each Finance Party prompt performance by each other
Obligor of all their obligations under the Finance Documents;
(b) undertakes with each Finance Party that whenever any other Obligor
does not pay any amount when due under or in connection with any
Finance Document, the Company shall forthwith on demand by the Agent
pay that amount as if the Company instead of the other Obligors were
expressed to be the principal obligor; and
(c) indemnifies each Finance Party on demand against any loss or liability
suffered by it if any obligation guaranteed by the Company is or
becomes unenforceable, invalid or illegal.
17.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by each other Obligor under the Finance
Documents, regardless of any intermediate payment or discharge in whole or
in part.
17.3 Reinstatement
(a) Where any discharge (whether in respect of the obligations of each other
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
the Company under this Clause 17 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.
17.4 Waiver of defences
The obligations of the Company under this Clause 17 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 17 or
prejudice or diminish those obligations in whole or in part, including
(whether or not known to it or any Finance Party):
42
(a) any time or waiver granted to, or composition with, each other Obligor
or any other person;
(b) the release of each other Obligor or any other person under the terms
of any composition or arrangement with any creditor of any member of
the Group;
(c) the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights against,
or security over assets of, each other Obligor or any other person or
any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise the
full value of any security;
(d) any incapacity or lack of powers, authority or legal personality of or
dissolution or change in the members or status of each other Obligor
or any other person;
(e) 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 17 shall include each variation or
replacement;
(f) 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 17 shall remain in full force and its guarantee be construed
accordingly, as if there were no unenforceability, illegality or
invalidity; or
(g) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of each other 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 the Company's
obligations under this Clause 17 be construed as if there were no such
circumstance.
17.5 Immediate recourse
The Company waives any right it may have of first requiring any Finance
Party (or any trustee or agent on its behalf) to proceed against or enforce
any other rights or security or claim payment from any person before
claiming from the Company under this Clause 17.
17.6 Appropriations
Until all amounts which may be or become payable by each other Obligor
under or in connection with the Finance Documents have been irrevocably
paid in full, each Finance Party (or any trustee or agent on its behalf)
may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or agent
on its behalf) in respect of those amounts, or apply and enforce the
same in such manner and order as it sees fit (whether against those
amounts or otherwise) and the Company shall not be entitled to the
benefit of the same; and
43
(b) hold in an interest-bearing suspense account any moneys received from
the Guarantor or on account of the Guarantor liability under this
Clause 17.
17.7 Non-competition
Until all amounts which may be or become payable by each other Obligor
under or in connection with the Finance Documents have been irrevocably
paid in full, the Guarantor shall not, after a claim has been made which
has not been satisfied in full or by virtue of any payment or performance
by it under this Clause 17:
(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 the
Company's liability under this Clause 17;
(b) claim, rank, prove or vote as a creditor of each other 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 each other Obligor, or exercise any
right of set-off as against the other Obligors,
unless the Agent otherwise directs. The Guarantor shall hold in trust for
and forthwith pay or transfer to the Agent for the Finance Parties or as
directed by the Agent any payment or distribution or benefit of security
received by it contrary to this Clause 17.7 or as directed by the Agent.
17.8 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.
18. REPRESENTATIONS AND WARRANTIES
18.1 Representations and warranties
Each Obligor makes the representations and warranties set out in this
Clause 18 to each Finance Party (but in the case of an Obligor other than
the Company, only in respect of itself).
18.2 Status
Each of them is a company, duly incorporated and validly existing under the
laws of the jurisdiction of its incorporation and has power and authority
to own its assets and to conduct the business which it conducts and/or
proposes to conduct.
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18.3 Powers and authority
Each of them has the power to enter into and perform, and has taken all
necessary action to authorize the entry into, performance and delivery of,
the Finance Documents to which it is or will be a party and the
transactions contemplated by those Finance Documents.
18.4 Legal validity
Subject to the Reservations, Belgian Reservations, Bermudan Reservations
and Swiss Reservations each Finance Document to which it is or will be a
party constitutes, or when executed in accordance with its terms will
constitute, its legal, valid and binding obligation enforceable in
accordance with its terms.
18.5 Authorizations
All authorizations required in connection with the entry into, performance,
validity and enforceability of, and the transactions contemplated by, the
Finance Documents have been obtained or effected (as appropriate) and are
in full force and effect.
18.6 Pari passu ranking
Its obligations under the Finance Documents rank and will rank at least
pari passu with all its other unsecured obligations except for obligations
mandatorily preferred by law applying to companies generally.
18.7 Taxes on payments
All amounts payable by each Obligor under the Finance Documents may be made
free and clear of and without deduction or withholding for or on account of
any tax under the laws of its jurisdiction of incorporation in force as at
the date hereof.
18.8 Stamp duties
At the date hereof no stamp or registration duty or similar taxes or
charges are payable in its jurisdiction of incorporation in respect of any
Finance Document.
18.9 Immunity
(a) The execution by each Obligor of each Finance Document constitutes, and its
exercise of its rights and performance of its obligations under each
Finance Document will constitute, private and commercial acts done and
performed for private and commercial purposes; and
(b) no Obligor will be entitled to claim immunity from suit, execution,
attachment or other legal process in any proceedings taken in the
jurisdiction of its incorporation in relation to any Finance Document.
18.10 Jurisdiction/governing law
(a) Each Obligor's:
45
(i) irrevocable submission under Clause 38 (Jurisdiction) to the
jurisdiction of the courts of England;
(ii) agreement that this Agreement is governed by English law; and
(iii) agreement not to claim any immunity to which it or its assets may be
entitled,
are legal, valid and binding under the laws of its jurisdiction of
incorporation; and
(b) Subject to the Swiss Reservations, the Bermudan Reservations or the Belgian
Reservations (as the case may be) any judgment obtained in England will be
recognised and be enforceable by the courts of its jurisdiction of
incorporation.
18.11 Non-conflict
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not and will not:
(a) conflict with any applicable law or regulation or judicial or official
order; or
(b) conflict with the constitutional documents of any Obligor; or
(c) conflict with any document which is binding upon any Obligor or any
asset of any Obligor.
18.12 No default
(a) No Default is outstanding or is likely to result from the making of any
Utilisation; and
(b) no other event is outstanding which constitutes a default under any
document which is binding on the Obligors or any Principal Subsidiary or
any asset of any Obligor or any Principal Subsidiary to an extent or in a
manner which might have a material adverse effect.
18.13 Litigation
No litigation, arbitration or administrative proceedings (other than
proceedings where the Obligor has proven to the satisfaction of the Agent
that such proceedings are being contested in good faith and in the
competent forum) are, to its knowledge, current or pending or threatened,
which is likely to, if adversely determined, have a material adverse
effect.
18.14 Financial Statements
The Original Financial Statements were prepared in accordance with US GAAP
consistently applied unless expressly disclosed to the contrary, and truly
and fairly present the financial condition and operations of the Group as
at the date on which they were prepared. For the purposes of any repetition
of this representation and warranty each Obligor's Financial Statements
delivered pursuant to Clause 19.2 (Financial information) were prepared in
accordance with GAAP and give (in conjunction with any notes thereto) a
true and fair view of the financial condition of the Group as at the date
as of which they were prepared and of the results of the Group's operations
during the period thereby covered.
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18.15 No Material Adverse Change
Since the date of preparation of the Original Financial Statements, there
has been no material adverse change in the business or financial condition
of the Company or any member of the Group which would be likely to have a
material and adverse effect on the ability of an Obligor to meet its
payment obligations hereunder or to comply with the financial covenants in
Clause 19.6 (Financial condition of the Group) below.
18.16 Full Disclosure
The factual information contained in the Information Memorandum and all of
the other written information supplied by an Obligor to any Finance Party
in connection herewith was true and accurate in all material respects as at
the date it was provided or as at the date (if any) at which it is stated,
all opinions and financial projections of or supplied by such Obligor
therein are based on fair and reasonable assumptions and it is not aware of
any material facts or circumstances that have not been disclosed to the
Finance Parties, the MLAs and the Banks and which might, if disclosed, be
reasonably expected to adversely affect the decision of a person
considering whether or not to provide finance to the Obligors on the terms
set out in this Agreement.
18.17 Existing Security
Save as permitted under Clause 19.12 (Negative pledge) no Security
Interests exist on or over all or any of the present or future revenues or
assets of any member of the Group save as disclosed in Schedule 6 (Schedule
of Security Interests).
18.18 No Obligation to Create Security
An Obligor's execution of this Agreement and its exercise of its rights and
performance of its obligations hereunder will not result in the existence
of nor oblige any member of the Group to create any Security Interest over
all or any of its present or future revenues or assets.
18.19 Winding-up
No meeting has been convened for Winding-up any Obligor nor any Principal
Subsidiary, no step is intended by any of them and, as far as any of them
is aware, no petition, application or the like is outstanding for
Winding-up any Obligor nor any Principal Subsidiary (except for the purpose
of a solvent amalgamation or reconstruction on terms, in the case of an
Obligor or Principal Subsidiary, approved by the Majority Banks, such
approval not to be unreasonably withheld or delayed).
18.20 Times for making representations and warranties
(a) The representations and warranties set out in this Clause 18 (other than
those set out in Clauses 18.7 (Taxes on payments), 18.8 (Stamp duties),
18.16 (Full Disclosure) and 18.19 (Winding-up) are made by each Obligor on
the Signing Date, and are deemed to be made again by each Obligor on the
date of each Request, on each Utilisation Date and on the first day of each
Term.
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(b) On each occasion when the representation and warranty set out in Clause
18.15 (No Material Adverse Change) is repeated in accordance with Clause
18.20(a), it is made by reference to the latest consolidated financial
statements of the Group which have been delivered to the Agent pursuant to
Clause 19.2 (Financial information).
19. UNDERTAKINGS
19.1 Duration
The undertakings in this Clause 19 remain in force from the Signing Date
for so long as any amount is or may be outstanding under this Agreement or
any Commitment is in force.
19.2 Financial information
The Company shall supply to the Agent in sufficient copies for all the
Banks:
(a) as soon as the same are available (and in any event within 120 days of
the end of each of its financial years):
(i) in the case of the Company, the consolidated financial statements
of the Group for that financial year; and
(ii) in the case of each other Obligor, the financial statements of
such Obligor for that financial year,
(b) as soon as the same are available (and in any event within 90 days of
the end of each quarter of each of its financial years):
(i) in the case of the Company, its consolidated financial statements
of the Group for such period;
(ii) the financial statements of each other Obligor for such period;
(iii) a statement confirming the Company's Principal Subsidiaries at
that date; and
(iv) the Margin Certificate.
In the case of sub-paragraphs (b)(i) and (ii) above such financial
statements shall include at least a balance sheet as at the end of,
and a profit and loss account for the financial year to date.
19.3 Information - miscellaneous
Each Obligor shall supply to the Agent:
(a) (in the case of the Company only) all documents despatched by it to
its shareholders (or any class of them) or by it to its creditors
generally or to any holders of listed debt securities issued by the
Company at the same time as they are despatched;
48
(b) promptly upon becoming aware of them, details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending, and which might, if adversely determined, have
a material adverse effect; and
(c) promptly, such further information in the possession or control of a
Principal Subsidiary or an Obligor regarding its business and
financial condition and operations as the Agent or any Bank through
the Agent may reasonably request;
19.4 Requirements as to financial statements
Each Obligor shall ensure that:
(a) each set of financial statements delivered by it under Clause 19.2
(Financial information) is prepared in accordance with GAAP;
(b) each set of financial statements delivered by it under Clause 19.2
(Financial information) is certified by a Financial Officer of such
Obligor as giving a true and fair view of its financial condition as
at the end of the period to which those financial statements relate
and of the results of the Group's operations during such period; and
(c) each set of financial statements delivered by it under Clause 19.2(a)
(Financial information) has been audited by an internationally
recognised firm of independent auditors licensed to practise in the
jurisdiction of incorporation of such Obligor.
19.5 Accounting policies
Each Obligor shall ensure that each set of financial statements delivered
to the Agent under Clause 19.2 (Financial information) is prepared in
accordance with GAAP but where there have been one or more changes in any
accounting policies, practices, procedures or reference period from those
used in the preparation of the Original Financial Statements, the Company
shall notify the Agent and provide:
(a) a description of the changes and the adjustments which would be
required to be made to those financial statements in order to cause
them to use the accounting policies, practices, procedures and
reference period upon which the Original Financial Statements were
prepared; and
(b) sufficient information, in such detail and format as may be reasonably
required by the Agent, to enable the Banks to make an accurate
comparison between the financial position indicated by those financial
statements and the Original Financial Statements,
to enable the ratios referred to in Clause 19.6 (Financial Condition of the
Group) (and as used in Clause 9.2 (Margin)) to be tested on the basis of
the accounting policies, practices, procedures and reference period upon
which the Original Financial Statements were based.
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19.6 Financial condition of the Group
At all times, the consolidated financial condition of the Group, as
evidenced by financial statements and supplemental further information
prepared in accordance with the provisions of Clause 19.5 (Accounting
policies), shall be such that:
(i) the ratio of EBITDA to Consolidated Interest Expenses shall be not
less than 5:1, in respect of any four consecutive quarters of the
Company;
(ii) the ratio of Net Consolidated Financial Debt at the end of any
financial quarter of the Company to EBITDA for the four consecutive
quarters of the Company ending at the end of such first mentioned
quarter shall be equal to or less than 3.0:1.
For the purpose of testing the ratios referred to in this Clause 19.6, each
Obligor will deliver to the Agent, at the time it delivers the quarterly
statements requested under Clause 19.2 (Financial information), a
certificate of any one of its Financial Officers:
(a) setting out the ratios and a brief description of the method of
computation, together with such information as is required to support
such certificate and computation; and
(b) confirming that no Default is outstanding, or if a Default is
outstanding specifying the Default and the steps, if any being taken
to remedy it.
The ratios referred to in this Clause 19.6 shall be tested on the basis of
accounts produced using the accounting policies, practices, procedures and
reference period upon which the Original Financial Statements were
prepared.
19.7 Accounting terms
All accounting expressions which are not otherwise defined herein shall be
construed in accordance with GAAP as adopted by the Company for the
purposes of preparing its consolidated financial statements.
19.8 Notification of Default
Each Obligor shall notify the Agent of any Default (and the steps, if any,
being taken to remedy it) promptly upon becoming aware of its occurrence.
19.9 Compliance certificates
Each Obligor shall supply to the Agent promptly if the Agent so requests in
writing, a certificate signed by one of its Financial Officers on its
behalf certifying that no Default is outstanding or, if a Default is
outstanding, specifying the Default and the steps, if any, being taken to
remedy it.
19.10 Authorisations
Each Obligor shall promptly:
(a) obtain, maintain and comply with the terms of; and
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(b) supply certified copies to the Agent of,
any authorisation required under any law or regulation to enable it to
perform its obligations under, or for the validity or enforceability of,
any Finance Document.
19.11 Pari passu ranking
Each Obligor shall procure that its obligations under the Finance Documents
do and will rank at least pari passu with all its other present and future
unsecured and unsubordinated obligations, except for obligations
mandatorily preferred by law applying to companies generally.
19.12 Negative pledge
No Obligor shall, and the Company shall procure that no other member of the
Group will, without the prior consent of the Majority Banks, such consent
not to be unreasonably withheld, create or permit to subsist any Security
Interest (other than Permitted Security Interests) on any of its present or
future revenues or assets.
19.13 Disposals
(a) No Obligor shall, and the Company shall procure that no other member of the
Group will, without the prior written consent of the Agent acting on the
instructions of the Majority Banks, either in a single transaction or in a
series of transactions, whether related or not and whether voluntarily or
involuntarily, sell, transfer, grant or lease or otherwise dispose of all
or any substantial part of its assets.
(b) Paragraph (a) does not apply to:
(a) disposals made in the ordinary course of business of the disposing
entity for market value on an arm's length basis;
(b) disposals from any member of the Group to any other member of the
Group;
(c) disposals of property or assets (excluding receivables) in exchange
for other property or assets of a comparable type in value, made in
the ordinary course of business;
(d) the sale, transfer, loan or disposal in the ordinary course of trading
of obsolete plant or machinery;
(e) the creation by an Obligor or any member of the Group of a Permitted
Security Interest;
(f) disposals of cash raised or borrowed for the purpose for which it was
raised or borrowed;
(g) the repayment of any monies borrowed and the payment of any dividend
or distribution;
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(h) a distribution of surplus assets of a member of the Group in
liquidation or winding-up not involving insolvency;
(i) the application of cash in the acquisition of assets or services in
the ordinary course of trading of an Obligor or the relevant member of
the Group;
(j) the disposal of receivables under receivables financing arrangements
or securitisation arrangements, on commercial terms;
(k) disposals of property or assets otherwise than as permitted by
paragraphs (a) to (j) of this Clause 19.13 during the term of this
Agreement so long as the aggregate book value of all such property or
assets does not exceed 10 per cent. of the Total Consolidated Assets
as shown in the latest audited consolidated financial statements of
the Group,
Provided that:
(i) an Obligor shall ensure that it provides to the Banks information
setting out changes in the structure of the Group and the transfer,
sale or disposal of property or assets by an Obligor or any Principal
Subsidiary to any of its own subsidiaries where the book value of the
relevant assets is equal to or greater than euro 15,000,000 such
information to be provided with the quarterly financial statements to
be delivered under Clause 19.2 (Financial information), and
(ii) none of the above exceptions shall apply to the disposal by any person
of a Principal Subsidiary to any person other than a member of the
Group.
19.14 Change of business
The Company will ensure that the business of the Group, taken as a whole,
will continue to be principally that of the provision of general staffing
services, consultancy and staff outsourcing services and all related
services.
19.15 Loans and Guarantees
The Company shall ensure that no member of the Group shall, without the
prior written consent of the Majority Banks (such consent not to be
unreasonably withheld or delayed):
(a) make any loans or grant any credit (save for credit in the ordinary
course of business) other than:
(i) to another member of the Group;
(ii) to employees in the ordinary course of business;
(iii) loans of assets permitted by Clause 19.13 (Disposals) above;
(iv) loans made in connection with and to facilitate the acquisition
of any business or company on arm's length terms and which are
repayable within twelve months;
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(v) loans made by subsidiaries acquired after the date hereof which
have committed, prior to the date of their acquisition, to make
such Indebtedness;
(vi) representing any deferred purchase price on any permitted sale of
assets by any member of the Group;
(vii) making loans or the grant of credit by any member of the Group
and not falling within (i) to (v) above, up to an aggregate
amount of euro 15,000,000 (or its equivalent in any other
currencies);
(b) give any guarantee or indemnity to or for the benefit of any person
other than:
(i) in the ordinary course of business;
(ii) for the benefit of another member of the Group;
(iii) any guarantee or indemnity in connection with and to facilitate
a disposal permitted by Clause 19.13 (Disposals) above or an
acquisition by any member of the Group of a business or a
company; or
(iv) any other guarantee or indemnity provided that the aggregate of
the contingent liability of each member of the Group under all
such guarantees and indemnities taken together shall not at any
time exceed euro 15,000,000 (or its equivalent in any other
currencies).
19.16 Insurance
Each Obligor shall, and the Company shall procure that each other member of
the Group will maintain insurance with financially sound and reputable
insurers with respect to its assets of an insurable nature against such
risks and in such amounts as are normally maintained by persons carrying on
the same or a similar class of business.
19.17 Maintenance of status
Each Obligor will and the Company shall procure that each Principal
Subsidiary will:
(a) do all such things as are necessary to maintain its corporate
existence (except where there is a merger, consolidation,
reconstruction or amalgamation with another member of the Group in the
context of a solvent transaction); and
(b) ensure that it has the right and is duly qualified to conduct its
business as it is conducted in all applicable jurisdictions, where
failure to do so would have a material adverse effect.
20. DEFAULT
20.1 Events of Default
Each of the events set out in this Clause 20 is an Event of Default
(whether or not caused by any reason whatsoever outside the control of any
Borrower or any other person).
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20.2 Non-payment
An Obligor does not pay any amount of principal or interest on the due date
(or, where its failure is due solely to technical malfunction or
administrative error, within three Business Days of being due) or fails to
pay any other amount payable hereunder within five Business Days of being
due by it under the Finance Documents at the place and in the currency in
which it is expressed to be payable.
20.3 Breach of other obligations
An Obligor does not comply with:
(a) the undertakings contained in Clauses 19.2 (Financial information) to
Clause 19.5 (Accounting policies) (inclusive) and 19.7 (Accounting
Terms) to 19.17 (Maintenance of status) (inclusive) and such failure
to comply is not remedied within ten days; or
(b) the undertaking contained in Clause 19.6 (Financial condition of the
Group); or
(c) any other obligation under this Agreement and such failure is not
remedied within 30 days of the Agent giving notice to the Borrowers'
Agent or 30 days of the Borrowers' Agent having become aware of such
failure.
20.4 Misrepresentation
A representation, warranty or statement made or repeated in or in
connection with any Finance Document or in any document delivered by or on
behalf of any Borrower under or in connection with any Finance Document is
incorrect in any material respect when made or deemed to be made or
repeated.
20.5 Cross-default
(a) Any Financial Indebtedness of any Obligor or Principal Subsidiary is not
paid when due or within any applicable grace period; or
(b) any Financial Indebtedness of any Obligor or Principal Subsidiary becomes
prematurely due and payable or is placed on demand as a result of an event
of default (howsoever described) under the document relating to that
Financial Indebtedness; or
(c) any commitment for, or underwriting of, any Financial Indebtedness of any
Obligor or Principal Subsidiary is cancelled or suspended as a result of an
event of default (howsoever described) under the document relating to that
Financial Indebtedness,
provided that in the case of the events listed in (a) to (c) above;
(i) no Event of Default will occur under this Clause 20.5 if the aggregate
amount of Financial Indebtedness or commitment for Financial
Indebtedness falling within paragraphs (a) to (c) above (without
taking into account any sum more than once in whatever capacity owed
or by whom) is less than euro 15,000,000 (or its equivalent in any
other currency or currencies); and
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(ii) for the purposes of this Clause 20.5, if any member of the Group
disputes any Financial Indebtedness that is owing to any person
pursuant to the terms of an agreement relating to the acquisition of
any business or company by a member of the Group, on the basis of a
bona fide claim by the member of the Group against such person (and
where the Borrower has demonstrated to the Agent's reasonably
satisfaction that its claim is bona fide) the Indebtedness
(representing deferred purchase price or additional consideration) in
respect of such acquisition shall not constitute Financial
Indebtedness (to the extent that it would otherwise do so) unless and
until the merits of the claim have been adjudicated upon (unless
subject to appeal) or the claim is dropped or settled.
20.6 Insolvency
(a) A Borrower or any Principal Subsidiary is, or is deemed for the purposes of
any law to be, unable to pay its debts as they fall due or to be insolvent,
or admits inability to pay its debts as they fall due; or
(b) a Borrower or any Principal Subsidiary suspends making payments on all or
any class of its debts or announces an intention to do so, or a moratorium
is declared in respect of any of its indebtedness; or
(c) a Borrower or any Principal Subsidiary, by reason of financial
difficulties, begins negotiations with one or more of its creditors with a
view to the readjustment or rescheduling of any of its indebtedness.
20.7 Insolvency proceedings
(a) Any step (including petition, proposal or convening a meeting) is taken
with a view to a composition, assignment or arrangement with any creditors
of any Obligor or Principal Subsidiary; or
(b) a meeting of any Obligor or Principal Subsidiary is convened for the
purpose of considering any resolution for (or to petition for) its
winding-up or for its administration or any such resolution is passed; or
(c) any person presents a petition for the winding-up or for the administration
of any Obligor or Principal Subsidiary; or
(d) an order for the winding-up or administration of any Obligor or Principal
Subsidiary is made; or
(e) any other step (including petition, proposal or convening a meeting) is
taken with a view to the rehabilitation, administration, custodianship,
liquidation, winding-up or dissolution of any Obligor or Principal
Subsidiary or any other insolvency proceedings involving any Obligor or
Principal Subsidiary and including, in the case of a Swiss Obligor,
bankruptcy proceedings (Konkursverfahren), reorganisation proceedings
(Nachlassverfahren), and the postponement of the declaration of bankruptcy
in accordance with art. 725a of the Swiss Federal Code of Obligations,
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(excluding orders which are frivolous or vexatious and which are withdrawn
or stayed within 21 days).
20.8 Appointment of receivers and managers
(a) Any liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or the like is
appointed in respect of any Obligor or Principal Subsidiary or any
substantial part of its assets; or
(b) the directors of any Obligor or Principal Subsidiary requests the
appointment of a liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver, administrator or the
like; or
(c) any other steps are taken to enforce any Security Interest over any part of
the assets with a value of euro 10,000,000 or more of any Obligor or
Principal Subsidiary.
20.9 Creditors' process
Any execution or distress is levied against, or an encumbrancer takes
possession of, the whole or any material part of, the property, undertaking
or assets of the Borrower or any Principal Subsidiary and any such action
is not lifted or discharged within 14 days.
20.10 Analogous proceedings
There occurs, in relation to any Obligor or Principal Subsidiary, any event
anywhere which, in the opinion of the Majority Banks, appears to correspond
with any of those mentioned in Clauses 20.6 (Insolvency) to 20.9
(Creditors' process) (inclusive).
20.11 Cessation of business
An Obligor or Principal Subsidiary ceases, or threatens to cease, to carry
on all or a substantial part of its business, other than as a result of a
merger, amalgamation, consolidation, reconstruction, transfer or sale
within the Group.
20.12 Unlawfulness
It is or becomes unlawful for any Obligor to perform any of its material
obligations under the Finance Documents.
20.13 Guarantee
The guarantee of the Company is not effective or is alleged by any Obligor
to be ineffective for any reason.
20.14 Ownership of the Obligors
An Obligor (other than the Company) is not or ceases to be a Subsidiary of
the Company.
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20.15 Material adverse change
Any circumstances arise which are likely to have, in the reasonable opinion
(formed after consultation with the Company where practicable) of the
Majority Banks a material and adverse effect on the ability of an Obligor
to meet its payment obligations or comply with the undertaking in Clause
19.6 (Financial condition of the Group).
20.16 Acceleration
On and at any time after the occurrence of an Event of Default the Agent
may, and shall if so directed by the Majority Banks, by notice to the
Obligors:
(a) cancel the Total Commitments; and/or
(b) demand that all or part of the Utilisations, together with accrued
interest and all other amounts accrued under the Finance Documents be
immediately due and payable, whereupon they shall become immediately
due and payable; and/or
(c) demand that all or part of the Utilisations be payable on demand,
whereupon they shall immediately become payable on demand by the Agent
acting on the instructions of the Majority Banks,
provided that the Agent shall not proceed to give such notice if, prior to
that time, the Event of Default has, to the satisfaction of the Agent, been
waived or remedied.
21. THE AGENT AND THE MLAS
21.1 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 this
Agreement. Those duties are solely of a mechanical and administrative
nature.
21.2 Role of the MLAs
Except as specifically provided in this Agreement, the MLAs have no
obligations of any kind to any other Party under or in connection with any
Finance Document.
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21.3 Relationship
The relationship between the Agent and the other Finance Parties is that of
agent and principal only. 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.
21.4 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.
21.5 Delegation
The Agent may act under the Finance Documents through its personnel and
agents.
21.6 Responsibility for documentation
Neither the Agent nor any MLA 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 the Information
Memorandum).
21.7 Default
(a) The Agent is not obliged to monitor or enquire as to whether or not a
Default has occurred. Except for a Default under Clause 20.2 (Non-payment),
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.
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21.8 Exoneration
(a) Without limiting paragraph (b) below, the Agent will not be liable to any
other 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.
21.9 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).
21.10 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 the MLAs 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.
21.11 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), 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.
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(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 of its related entities, whether coming into
its possession before, on or after the Signing Date; 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.
21.12 The Agent and the MLAs individually
(a) If it is also a Bank, each of the Agent and the MLAs have 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 the MLAs.
(b) Each of the Agent and MLAs 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) In acting as the Agent the agency division of the Agent will be treated as
a separate entity from its other divisions and departments. Any information
acquired by the Agent which, in its opinion, is acquired by it otherwise
than in its capacity as the Agent may be treated as confidential by the
Agent and will not be deemed to be information possessed by the Agent in
its capacity as such.
(d) 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.
(e) 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.
21.13 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 save 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 the Original Euro Amount of its participation
in the Advances (if any) bear to all the Advances on the date of the
demand. However, if there are no Advances
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outstanding on the date of demand, then the proportion will be the
proportion which its Commitment bears to the Total Commitments at the date
of demand or, if the Total Commitments have then been cancelled, bore to
the Total Commitments immediately before being cancelled.
21.14 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.
21.15 Resignation of the Agent
(a) Notwithstanding its irrevocable appointment, the Agent may resign by giving
notice to the Banks and the Borrowers' Agent, in which case the Agent may
forthwith appoint one of its Affiliates as successor Agent or, failing
that, the Majority Banks may 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 retiring Agent may
appoint a successor Agent.
(c) The resignation of the retiring 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 21 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.
21.16 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'
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prior notice from that Bank to the contrary. Each Bank, on the date on
which it becomes a party to this Agreement, represents to the Agent and the
Borrowers that it is an Approved Bank.
(b) The Agent may at any time, and shall if requested to do so by the Majority
Banks, convene a meeting of the Banks.
21.17 Extraordinary management time and resources
The Company shall within five Business Days of demand pay the Agent for the
cost of utilising its management time or other resources in connection
with:
(a) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf of an
Obligor and relating to a Finance Document or a document referred to
in any Finance Document; or
(b) the occurrence of a Default; or
(c) the enforcement of, or the preservation of any rights under, any
Finance Document.
Any amount payable to the Agent under this Clause 21 will be calculated on
the basis of such reasonable daily or hourly rates as the Agent may notify
to the Company, and is in addition to any fee paid or payable to the Agent
under Clause 22 (Fees).
22. FEES
22.1 Agent's fee
The Borrowers' Agent shall pay to the Agent for its own account an agency
fee in the amount and on the dates agreed in the Fee Letter. The agency fee
is payable annually in advance.
22.2 Commitment fee
(a) The Borrowers' Agent shall pay in euros to the Agent for distribution to
each Bank pro rata to the proportion its Commitment bears to the Total
Commitments from time to time a commitment fee computed at a rate of 45 per
cent. per annum of the applicable Margin per annum for the time being
(calculated in accordance with Clause 10.5 (Calculation of Margin and
utilisation fee) on the undrawn, uncancelled, reduced amount of that Bank's
Commitment during the Availability Period.
For this purpose Utilisations are taken at their Original Euro Amount.
(b) The commitment fee referred to in (a) above shall be calculated and accrue
from the Signing Date and shall be payable quarterly in arrears. Accrued
commitment fee shall also be payable to the Agent for the relevant Bank(s)
on the cancelled amount of its Commitment at the time the cancellation
comes into effect.
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22.3 Management fee
The Borrowers' Agent shall pay to the Agent for distribution to the MLAs a
management fee as stated in the Fee Letter.
22.4 Utilisation fee
(a) Each Obligor shall pay to the Agent in euros, for distribution to each Bank
a utilisation fee on the Original Euro Amount of all Utilisations
outstanding on each day during any quarter in which the utilisation fee is
payable in accordance with Clause 22.4(b) at the rate per annum specified
in Clause 10.5 (Margin and utilisation fee) above.
(b) The utilisation fee is calculated and accrues from the Signing Date and
shall be payable in respect of each quarter during which the total
aggregate amount of Utilisations exceeds 50 per cent. of Total Commitments
quarterly in arrears on the same date that the Commitment Fee referred to
in Clause 22.2(b) (Commitment fee) above is paid. Accrued utilisation fee
is also payable to the Agent for the relevant Banks on the Final Maturity
Date.
22.5 VAT
Any fee referred to in this Clause 22 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
relevant Obligor at the same time as it pays the relevant fee.
23. EXPENSES
23.1 Initial and special costs
The Borrowers' Agent shall within 5 Business Days following demand pay the
Agent and the MLAs the amount of all costs and expenses (including legal
fees) incurred by either of them in connection with:
(a) the negotiation, preparation, printing, execution and syndication of:
(i) this Agreement and any other documents referred to in this
Agreement; and
(ii) any other Finance Document (other than a Novation Certificate)
executed after the Signing Date; and
(b) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf of an
Obligor or, in the case of Clause 2.4 (Change of currency), the Agent,
and relating to a Finance Document or a document referred to in any
Finance Document.
23.2 Enforcement costs
The Borrowers' Agent shall within 5 Business Days following demand pay to
each Finance Party the amount of all costs and expenses (including legal
fees) incurred by it in connection with the enforcement of, or the
preservation of any rights under, any Finance Document.
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24. STAMP DUTIES
The Borrowers' Agent shall pay, and within 5 Business Days of demand
indemnify each Finance Party against any liability it incurs in respect of,
any stamp, registration and similar tax which is or becomes payable in
connection with the entry into, performance or enforcement of any Finance
Document.
25. INDEMNITIES
25.1 Currency indemnity
(a) If a Finance Party receives an amount in respect of an 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) that 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.
25.2 Other indemnities
The Company shall forthwith on demand (but payment to be made within 5
Business Days of demand) indemnify each Finance Party against any loss or
liability which that Finance Party incurs as a consequence of:
(a) the occurrence of any Default;
(b) a change in currency of a country or the operation of Clause 2.4
(Change of currency), Clause 20.16 (Acceleration) or Clause 32 (Pro
Rata Sharing);
(c) a failure by an Obligor to pay any sum due under a Finance Document on
its due date or any principal amount on a date otherwise than on the
Maturity Date of the Designated Term (as defined in Clause 10.3
(Default interest)) provided that in the case of a prepayment made in
accordance with Clause 9.4 (Voluntary prepayment) or Clause 9.5
(Additional right of prepayment and cancellation) it is agreed that
the Break Costs shall satisfy in full any claim that would otherwise
be made in respect of those prepayments under this paragraph (c); or
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(d) a Utilisation (or part of a Utilisation) not being prepaid in
accordance with a notice of prepayment or (other than by reason of
negligence or default by that Finance Party) a Utilisation not being
made after a Borrower has delivered a Request for that Utilisation.
The Obligor's liability in each case includes any loss of Margin or other
loss 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 Utilisation.
26. MITIGATION BY THE BANKS
26.1 Mitigation
(a) Each Finance Party shall, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under, or cancelled pursuant to, any
of Clause 13 (Taxes), Clause 15 (Increased Costs) and Clause 16
(Illegality) including (but not limited to) transferring its rights and
obligations under the Finance Documents to another Affiliate or Facility
Office (which steps will include the transfer of its rights, benefits and
obligations under the Finance Documents to another financial institution
acceptable to the Company and willing to participate in the Facility).
(b) Paragraph (a) above does not in any way limit the obligations of any
Obligor under the Finance Documents.
26.2 Limitation of Liability
(a) The Company shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it
under Clause 26.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 26.1
(Mitigation) if, in the opinion of that Finance Party (acting reasonably),
to do so might be prejudicial to it.
27. EVIDENCE AND CALCULATIONS
27.1 Accounts
Accounts maintained by a Finance Party in connection with the Finance
Documents are prima facie evidence of the matters to which they relate.
27.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or amount
under the Finance Documents is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
27.3 Calculations
Interest (including any applicable Mandatory Cost) and the fees payable
under Clause 22.2 (Commitment fee), Clause 22.4 (Utilisation fee), Clause
10.6 (LC fee) and Clause 10.7
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(Fronting 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 where market
practice otherwise dictates, 365 days.
28. AMENDMENTS AND WAIVERS
28.1 Procedure
(a) Subject to Clause 28.2 (Exceptions), any term of the Finance Documents may
be amended or waived with the agreement of the Borrowers' Agent and the
Majority Banks. The Agent may effect, on behalf of any Finance Party, an
amendment or waiver permitted under this Clause 28.
(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.
28.2 Exceptions
(a) An amendment or waiver not agreed by a Bank and which relates to:
(i) the definition of "Majority Banks" in Clause 1.1 (Definitions);
(ii) an extension of the 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 and any fee payable under Clause 22.2
(Commitment fee), Clause 22.4 (Utilisation fee), Clause 10.6 (LC fee)
and Clause 10.7 (Fronting fee));
(iii) an increase in that Bank's Commitment;
(iv) a term of a Finance Document which expressly requires the consent of
that Bank;
(v) Clause 2.3 (Nature of Finance Party's rights and obligations), Clause
29.2 (Transfers by Banks), Clause 32 (Pro Rata Sharing) or this Clause
28; or
(vi) any release of the Company's liabilities under Clause 17 (Guarantee),
is not binding on that Bank.
(b) An amendment or waiver which affects the rights and/or obligations of the
Agent, as the case may be, Issuing Bank, may not be effected without the
agreement of the Agent, or as the case may be, Issuing Bank.
28.3 Waivers and remedies cumulative
The rights of each Finance 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.
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Delay in exercising or non-exercise of any such right is not a waiver of
that right.
29. CHANGES TO THE PARTIES
29.1 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.
29.2 Transfers by Banks
(a) A Bank (the "Existing Bank") may, subject to paragraph (c) below, at any
time assign, transfer or novate any of its Commitment and/or rights and/or
obligations under this Agreement to an Approved Bank (the "New Bank").
(b) Any Bank which ceases to be an Approved Bank must notify the Agent of that
fact and, as soon as reasonably practicable, transfer its Commitment and
participations under this Agreement, unless the Borrowers and the Majority
Banks agree otherwise.
(c) (i) A transfer of part of a Commitment must be in a minimum amount of at
least euro 5,000,000;
(ii) Except where an Event of Default has occurred which is continuing and
which has been notified as a default to the Borrowers' Agent, the
prior consent of the Borrowers' Agent is required for any such
assignment, transfer or novation, unless the New Bank is another Bank
or an Affiliate of a Bank. However, the prior consent of the
Borrowers' Agent must not be unreasonably withheld or delayed and will
be deemed to have been given if, within five days of receipt by the
Borrowers' Agent of an application for consent, it has not been
expressly refused;
(iii) The consent of the Issuing Bank is required for any assignment or
transfer of any Bank's rights and obligations under the LC Facility,
such consent not to be unreasonably withheld or delayed; and
(iv) The assignment, transfer or novation is to an Approved Bank.
(d) A transfer of obligations will be effective only if either:
(i) (A) the obligations are novated in accordance with Clause 29.3
(Procedure for novations); or
(B) the New Bank confirms to the Agent and the Obligors 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; and
(ii) the New Bank represents to the other Banks and to the Borrowers that
it is an Approved Bank.
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(e) Subject to (f) below, nothing in this Agreement restricts the ability of a
Bank to sub-contract an obligation if that Bank remains liable under this
Agreement for that obligation.
(f) Banks must not transfer or grant any sub-participation to an institution
which is not an Approved Bank.
(g) On each occasion an Existing Bank assigns, transfers or novates any of its
Commitment and/or any of its rights and/or obligations under this
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 euro
1000.
(h) 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.
(i) 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.
(j) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the Commitment and/or
rights and/or obligations assigned, transferred or novated under this
Clause 29.2; or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by any Obligor of its obligations under the Finance
Documents or otherwise.
(k) 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 Commitment has been cancelled or reduced to nil.
(l) If:
(i) a Bank assigns or transfer or novates any of its rights or obligations
under the Finance Documents; and
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(ii) as a result of circumstances existing at the date of the assignment,
transfer, novation or change, an Obligor would be obliged to make a
payment to the New Bank or Bank acting through its new Facility Office
under Clause 13 (Taxes) or Clause 15 (Increased Costs),
then the New Bank is only entitled to receive payment under those clauses
to the same extent as the Existing Bank at the date of such assignment or
transfer would have been if the assignment, transfer, novation or change
had not occurred.
29.3 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 Schedule 4 (Form
of Novation Certificate) (a "Novation Certificate"); and
(ii) the Agent executes it.
(b) Each Party (other than the Existing Bank and the New Bank) irrevocably
authorizes 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.
29.4 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 Borrowers' Agent) appoint another Bank or an
Affiliate of a Bank to replace that Reference Bank.
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29.5 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.
29.6 New Borrower
(a) If the Company wishes Adecco CC to become a Borrower, then it may deliver
to the Agent the relevant documents and evidence listed in Part II of
Schedule 2 (Adecco CC Conditions Precedent Documents).
(b) Adecco CC will become a Borrower when the Agent notifies the other Finance
Parties and the Company that it has received all of the documents and
evidence referred to in paragraph (a) above in form and substance
satisfactory to it. The Agent must give this notification as soon as
reasonably practicable.
(c) Delivery of an Accession Agreement, executed by Adecco CC and the Company,
to the Agent constitutes confirmation by Adecco CC and the Company that the
Repeating Representations with respect to the Company, and the
representations in Clauses 18.2 to 18.15 and 18.17 to 18.19 with respect to
Adecco CC, are then correct and such representations will be deemed to be
made again on the date on which Adecco CC becomes a Borrower under this
Agreement.
29.7 Resignation of Adecco CC
(a) The Borrower's Agent may request that Adecco CC ceases to be a Borrower by
delivering to the Agent a resignation letter in the form set out in
Schedule 8 (Form of Resignation Letter) (a "Resignation Letter");
(b) The Agent shall accept a Resignation Letter and notify the Borrowers' Agent
and the Banks of its acceptance if:
(i) no Default is continuing or would result from the acceptance of the
Resignation Letter (and the Borrowers' Agent has confirmed this is the
case); and
(ii) Adecco CC is under no actual or contingent obligations as a Borrower
under any Finance Documents (and the Borrowers' Agent has confirmed
that this is the case);
whereupon Adecco CC shall cease to be a Borrower and shall have no further
rights or obligations under the Finance Documents.
30. DISCLOSURE OF INFORMATION
A Bank may disclose on a confidential basis to any 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:
(a) a copy of any Finance Document; and
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(b) any information which that Bank has acquired under or in connection
with any Finance Document.
31. SET-OFF
A Finance Party may set off any matured obligation owed by an Obligor under
the Finance Documents (to the extent beneficially owned by that Finance
Party) against any matured obligation owed by that Finance Party to that
Obligor, regardless of the place of payment, booking branch or currency of
either obligation. If the obligations are in different currencies, the
Finance Party may convert either obligation at a market rate of exchange in
its usual course of business for the purpose of the set-off. 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.
32. PRO RATA SHARING
32.1 Redistribution
If any amount owing by an Obligor under the Finance Documents 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 12
(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 12 (Payments);
(c) subject to Clause 32.3 (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 12 (Payments) and shall pay the
redistribution to the Finance Parties (other than the recovering
Finance Party) in accordance with Clause 12.7 (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.
32.2 Reversal of redistribution
If under Clause 32.1 (Redistribution):
(a) a recovering Finance Party must subsequently return a recovery, or an
amount measured by reference to a recovery, to an Obligor; and
71
(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 32.1(e)
(Redistribution) will operate in reverse to the extent of the
reimbursement.
32.3 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 32.1(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.
33. VAT
(a) All payments made by an Obligor under the Finance Documents are calculated
without regard to VAT. If any such payment constitutes the whole or any
part of the consideration for a taxable or deemed taxable supply (whether
that supply is taxable pursuant to the exercise of an option or otherwise)
by the Agent or a Bank, the amount of that payment shall be increased by an
amount equal to the amount of VAT which is chargeable in respect of the
taxable supply in question.
(b) No payment or other consideration to be made or furnished by the Agent or a
Bank, to an Obligor pursuant to or in connection with the Finance Documents
or any transaction or document contemplated therein may be increased or
added to by reference to (or as a result of any increase in the rate of)
any VAT which shall be or may become chargeable in respect of any taxable
supply.
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 legality, validity or enforceability in that jurisdiction of any
other provision of the Finance Documents; or
(b) the legality, validity or enforceability in other jurisdictions of
that or any other provision of the Finance Documents.
72
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 the Finance
Documents shall be given in writing and, unless otherwise stated, may be
made by letter, telex or facsimile. Any such notice will be deemed to be
given as follows:
(a) if by letter, when delivered personally or on actual receipt;
(b) if by telex, when despatched, but only if, at the time of
transmission, the correct answerback appears at the start and at the
end of the sender's copy of the notice; and
(c) 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. A copy of any
notice to an Obligor (other than the Company) is to be sent to the Company
in accordance with the provisions of this Clause 36.1.
36.2 Addresses for notices
(a) The address, telex number and facsimile number of each Party (other than
the Obligor 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, telex number and facsimile number of the Obligors are:
Adecco SA
c/o Adecco Management and Consulting SA
Xxxxxxxxxxxxxxx 00
0000 Xxxxxxxxxx
Xxxxxxxxxxx
Attn: Xxxxxxx Xxxxxx
Fax No: 00 00 00 00 0000
73
Adecco Reinsurance Company Limited
c/x Xxxxx Management Services (Bermuda) Ltd.
Xxxxxxxx Xxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxxx XX00
Xxxxxxx
Attn: Xxxxxxx Xxxxxxxx
Fax No. x0 000 000 0000
or such other as the relevant Obligor may notify to the Agent, by not less
than five Business Days' notice.
(c) The address, telex number and facsimile number of the Agent are:
The Royal Bank of Scotland plc
Corporate Banking Operations - Loans Administration
2.5 Xxxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Attention: Xxxxx Xxxx
Fax No: x00 000 000 0000
or such other as the Agent may notify to the other Parties by not less than
five Business Days' notice.
(d) The address, telex number and facsimile number of the Issuing Bank are:
Bank of America N.A.
000 X. Xxxxxxx Xxxxxx
Xxx Xxxxxxx
Xxxxxxxxxx 00000-0000
XXX
Attention: Xxxxxxxx Xxxxxxx
Fax No: x0 000 000 0000
or such other as the Issuing Bank may notify to the other parties by not
less than five Business Days' notice.
(e) All notices from or to an Obligor shall be sent through the Agent.
(f) The Agent shall, promptly upon request from any Party, give to that Party
the address, telex number or facsimile number of any other Party applicable
at the time for the purposes of this Clause 36.
37. LANGUAGE
(a) Any notice given under or in connection with any Finance Document shall be
in English.
74
(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 Party, each other Party agrees that the courts of
England have jurisdiction to settle any disputes in connection with any
Finance Document and accordingly irrevocably submits to the jurisdiction of
the English courts.
38.2 Service of process
Without prejudice to any other mode of service, each Obligor:
(a) irrevocably appoints Adecco UK Limited of Xxxxxx Xxxxx, Xxxxxxx Xxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxx XX0 0XX Attn: The Company Secretary 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;
(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); and
(d) agrees that if the appointment of any person mentioned in paragraph
(a) above ceases to be effective, the relevant Obligor shall
immediately appoint a further person in England to accept service of
process on its behalf in England and, failing such appointment within
15 days, the Agent is entitled to appoint such a person by notice to
the Obligors.
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.
75
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. WAIVER OF IMMUNITY
Each Obligor irrevocably and unconditionally:
(a) agrees that if a Finance Party brings proceedings against it or its
assets in relation to a Finance Document, no immunity from those
proceedings (including, without limitation, suit, attachment prior to
judgment, other attachment, the obtaining of judgment, execution or
other enforcement) will be claimed by or on behalf of itself or with
respect to its assets; and
(b) waives any such right of immunity which it or its assets now has or
may subsequently acquire.
40. 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.
76
SCHEDULE 1
BANKS AND COMMITMENTS
Commitments
Banks --------------
-----
Bank of America, N.A. 50,000,000.00
The Royal Bank of Scotland plc 50,000,000.00
Societe Generale 50,000,000.00
Bank Brussels Xxxxxxx, Brussels, Xxxxxx Xxxxxx 38,000,000.00
Credit Agricole Indosuez 21,111,111.11
Caisse Regionale de Credit Agricole Mutuel de Paris et d'Ile de France 16,888,888.89
Credit Lyonnais 38,000,000.00
Credit Suisse First Boston, London branch 38,000,000.00
Deutsche Bank Luxembourg S.A. 38,000,000.00
Fortis Bank SA 38,000,000.00
Natexis Banques Populaires 38,000,000.00
ABN AMRO N.V., Niederlassung Deutschland 18,000,000.00
Banco Bilbao Vizcaya Argentaria, S.A. 18,000,000.00
Banca Commerciale Italiana (France) S.A. Gruppo Intesa 18,000,000.00
Banca Nazionale del Lavoro S.p.A., London branch 18,000,000.00
BNP Paribas (Suisse) SA 18,000,000.00
CCF 18,000,000.00
Mellon Bank, N.A. 18,000,000.00
Nordea Bank Sweden AB (publ) 18,000,000.00
Xxxxxxx Xxxxx International Bank 10,000,000.00
Lyonnaise de Banque 10,000,000.00
TOTAL 580,000,000.00
77
SCHEDULE 2
CONDITIONS PRECEDENT
PART I
INITIAL CONDITIONS PRECEDENT DOCUMENTS
1. A copy of the constitutional documents of each Obligor.
2. A copy of a resolution of the board of directors of each Obligor approving
the terms of, and the transactions contemplated by, this Agreement.
3. A specimen of the signature of each person authorised to sign this
Agreement on behalf of each Obligor and to sign and/or despatch all
documents and notices to be signed and/or despatched by each Obligor under
or in connection with this Agreement.
4. Evidence that the process agents referred to in Clause 38.2 (Service of
process) has/have accepted its/their appointment(s) under that Clause.
5. A copy of any other authorisation or other document, opinion or assurance
which the Agent considers to be necessary in connection with the entry into
and performance of, and the transactions contemplated by, any Finance
Document or for the validity and enforceability of any Finance Document.
6. A certificate of an authorised signatory of the Obligor certifying that
each copy document delivered under this Part I of Schedule 2 is correct,
complete and in full force and effect as at a date no earlier than the
Signing Date.
7. (a) A legal opinion of Xxxxxx Xxxxxxxxx the Company's General Counsel,
addressed to the Finance Parties;
(b) a legal opinion of Xxxxx & Overy, legal advisers in England to the
MLAs and the Agent, substantially in the form distributed to the Banks
prior to the Signing Date, addressed to the Finance Parties;
(c) a legal opinion of Xxxxxxxx Xxxxx & Xxxx, legal advisers in
Switzerland to the MLAs and the Agent substantially in the form
distributed to the Banks prior to the Signing Date, addressed to the
Finance Parties; and
(d) a legal opinion of Xxxxxxx, Xxxxxxxx & Xxxxx, legal advisors in
Bermuda to the MLAs and the Agent substantially in the form
distributed to the Banks prior to the Signing Date, addressed to the
Finance Parties.
78
8. Evidence that the Existing Facility will be prepaid and cancelled in full
from the proceeds at the first drawing on the first Utilisation Date (save
for the incorporation of the Existing LCs in accordance with Clause 6.6
(Existing LCs)).
9. Evidence that all fees and expenses then due and payable from the
Borrowers' Agent under the Finance Documents have been or will be paid by
the first Utilisation Date.
79
SCHEDULE 2
PART II
ADECCO CC CONDITIONS PRECEDENT DOCUMENTS
1. An Accession Agreement, duly executed by the Company and Adecco CC.
2. A copy of the constitutional documents of Adecco CC, including a copy of
the memorandum and articles of association, or by-laws as the case may be,
and certificate of incorporation.
3. A copy of a resolution of the board of directors of Adecco CC approving the
terms of, and the transactions contemplated by, the Accession Agreement.
4. A specimen of the signature of each person authorised on behalf of Adecco
CC to execute or witness the execution of any Finance Document or to sign
or send any document or notice in connection with any Finance Document.
5. A certificate of an authorised signatory of Adecco CC certifying that each
copy document specified in this Part II of Schedule 2 is correct, complete
and in full force and effect as at a date no earlier than the date of the
Accession Agreement.
6. A legal opinion of Xxxxx & Overy, London, as to English law, legal advisers
to the Agent in England, addressed to the Finance Parties.
7. A legal opinion of Xxxxx & Xxxxx, Belgium, as to Belgian law, legal
advisers in Belgium, addressed to the Finance Parties.
8. Evidence that all expenses due and payable from the Company under this
Agreement in respect of the Accession Agreement have been paid.
9. A copy of any other authorisation or other document, opinion or assurance
which the Agent considers to be necessary in connection with the entry into
and performance of, and the transactions contemplated by, the Accession
Agreement or for the validity and enforceability of any Finance Document.
10. Evidence that the process agent referred to in Clause 38.2 (Service of
process) has accepted its appointment under that Clause with respect to
Adecco CC.
80
SCHEDULE 3
FORM OF REQUEST
To: [THE ROYAL BANK OF SCOTLAND plc as Agent]
From: [BORROWER]
Date: [_____]
ADECCO SA EURO 580,000,000 Credit Agreement dated [DATE]
1. We wish to utilise the Facility by way of Advances as follows:
(a) Utilisation Date:
(b) Requested Amount/Currency
(c) Term: [_____]
(d) Purpose:
(e) Payment Instructions:
2. We wish the Issuing Bank to issue an LC on our behalf with the following
specifications:
(a) Utilisation Date: [_____]
(b) Amount: [_____]
(c) Expiry Date: [_____]
(d) Name and address of the Beneficiary: [_____]
(e) Place of delivery of the LC: [_____]
3. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Request and this Utilisation
would not cause any borrowing limit binding on us to be exceeded.
81
By:
------------------------------
[BORROWER]
Authorised Signatory
82
SCHEDULE 4
FORM OF NOVATION CERTIFICATE
To: THE ROYAL BANK OF SCOTLAND plc as Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [_____]
ADECCO SA EURO 580,000,000 Credit Agreement dated [DATE]
We refer to Clause 29.3 (Procedure for novations).
1. We [_____] (the "Existing Bank") and [_____] (the "New Bank") agree to the
Existing Bank and the New Bank novating the Existing Bank's Commitment (or
part) and/or rights and obligations referred to in the Schedule in
accordance with Clause 29.3 (Procedure for novations).
2. The specified date for the purposes of Clause 29.3(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. Each New Bank warrants that it is an Approved Bank as at the date it
executed this Certificate.
5. This Novation Certificate is governed by English law.
THE SCHEDULE
Commitment/Rights and obligations to be novated
[Insert relevant details]
[Existing Bank] [New Bank]
By: By:
------------------------------- -------------------------------
Date: Date:
[New Bank]
[Facility Office Address for notices]
[AGENT]
By:
-------------------------------
Date:
83
SCHEDULE 5
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate Banks
for the cost of compliance with (a) the requirements of the Bank of England
and/or the Financial Services Authority (or, in either case, any other
authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Term (or as soon as possible thereafter) the Agent
shall calculate, as a percentage rate, a rate (the "Additional Cost Rate")
for each Bank, in accordance with the paragraphs set out below. The
Mandatory Cost will be calculated by the Agent as a weighted average of the
Additional Cost Rates (weighted in proportion to the percentage
participation of each Bank in the relevant Utilisation) and will be
expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Bank lending from a Facility Office in a
Participating Member State will be the percentage notified by that Bank to
the Agent as the cost of complying with the minimum reserve requirements of
the European Central Bank.
4. The Additional Cost Rate for any Bank lending from a Facility Office in the
United Kingdom will be calculated by the Agent as follows:
(a) in relation to a Sterling Utilisation:
AB + C(B-D) + E * 0.01
---------------------- per cent. per annum
100-(A+C)
(b) in relation to a Utilisation in any currency other than sterling:
E * 0.01
-------- per cent. per annum.
300
Where:
A is the percentage of that Lender's Eligible Liabilities (in excess of
any stated minimum) which the Bank of England requires it to hold on a
non-interest-bearing deposit account in accordance with its h cash
ratio requirements.
B is LIBOR for that Term.
C is the percentage (if any) of Eligible Liabilities which that Bank is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
84
D is the percentage rate per annum payable by the Bank of England to the
Agent on interest bearing Special Deposits.
E is the rate of charge payable by that Bank to the Financial Services
Authority pursuant to the Fees Regulations (but, for this purpose,
ignoring any minimum fee required pursuant to the Fees Regulations)
and expressed in pounds per (pound)1,000,000 of the Fee Base of that
Bank.
5. For the purposes of this Schedule 5:
(a) "Eligible Liabilities" and "Special Deposits" have the meanings given
to them from time to time by the Bank of England;
(b) "Fees Regulations" means The Financial Services Banking Supervision
(Fees) Regulations 2001 or such other law or regulation as may be in
force from time to time in respect of the payment of fees for banking
supervision; and
(c) "Fee Base" has the meaning given to it, and will be calculated in
accordance with, the Fees Regulations.
6. In application of the above formulae, A, B, C and D will be included in the
formulae as figures and not percentages, e.g. if A = 0.5% and B = 15%, AB
is calculated as 0.5 x 15. A negative result obtained by subtracting D from
B shall be taken as zero. The resulting figures shall be rounded to four
decimal places.
7. Each Bank shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but without
limitation, each Bank shall supply the following information in writing on
or prior to the date on which it becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of its Facility
Office; and
(b) any other information that the Agent may reasonably require for such
purpose.
Each Bank shall promptly notify the Agent in writing of any change to the
information provided by it pursuant to this paragraph.
8. The percentages or rates of charge of each Bank for the purpose of A, C and
E above shall be determined by the Agent based upon the information
supplied to it pursuant to paragraph 7 above and on the assumption that,
unless a Bank notifies the Agent to the contrary, each Bank's obligations
in relation to cash ratio deposits, Special Deposits and the Fees
Regulations are the same as those of a typical bank from its jurisdiction
of incorporation with a Facility Office in the same jurisdiction as its
Facility Office.
9. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any Bank
and shall be entitled to assume that the
85
information provided by any Bank pursuant to paragraphs 3 and 7 above is
true and correct in all respects.
10. The Agent shall distribute the additional amounts received as a result of
the Mandatory Cost to the Banks on the basis of the Additional Cost Rate
for each Bank based on the information provided by each Bank pursuant to
paragraphs 3 and 7 above.
11. Any determination by the Agent pursuant to this Schedule 5 in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Bank shall, in the absence of manifest error, be conclusive and
binding on all Parties.
12. The Agent may from time to time, after consultation with the Company and
the Banks, determine and notify to all Parties any amendments which are
required to be made to this Schedule 5 in order to comply with any change
in law, regulation or any requirements from time to time imposed by the
Bank of England, the Financial Services Authority or the European Central
Bank (or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all Parties.
86
SCHEDULE 6
SCHEDULE OF SECURITY INTERESTS
----------------------------------------------------------------------------------------------------------------
No. Maximum
Company Principal Amount
Granting Secured (whether
Security utilised or not) Type of Secured Assets Security Holder
----------------------------------------------------------------------------------------------------------------
1. Roevin Technical Cdn$1,000,000 (i) All assets except real Royal Bank of Canada
People Limited property
(Canada)
(ii) General Assignment of Book
Debts
----------------------------------------------------------------------------------------------------------------
2. Adecco Colombia US$80,000 Personal Guarantee of General Banco de Bogota
Manager
US$80,000 Personal Guarantee of General Banco de Occidente
Manager
----------------------------------------------------------------------------------------------------------------
3. Secad Limited US$ 400,000,000 First priority security Adecco Coordination Center
interest in and to receivables SA
of several Adecco US group
companies sold to Secad Limited
to secure repayment of funds
provided by the Security
Holders to Secad Limited to
acquire such receivables.
(limited recourse)
----------------------------------------------------------------------------------------------------------------
4. Adecco Top Service BRL 4.000.000 Guaranteed by invoices (accounts Banco Bradesco SA
RH S.A. receivable). Agreement dated
Feb'2003.
----------------------------------------------------------------------------------------------------------------
5. Adecco Top Service BRL 850.000 Guaranteed by promissory notes. Banco Itau SA
RH S.A. Agreement dated Feb'2003.
----------------------------------------------------------------------------------------------------------------
6. Roevin Management 80% of discountable Fixed and Floating charge over Royal Bank of Scotland
Services together book debts up to a Book Debts Commercial Services
with Xxxxxxxx Xxxxx maximum of
(pound)9,000,000.
----------------------------------------------------------------------------------------------------------------
87
----------------------------------------------------------------------------------------------------------------
Maximum
Company Principal Amount
Granting Secured (whether
No. Security utilised or not) Type of Secured Assets Security Holder
----------------------------------------------------------------------------------------------------------------
7. Roevin Management (pound)800,000. Standard Charge over all monies Royal Bank of Scotland
Services together and property created 21/02/92
with Xxxxxxxx Xxxxx
and Professional &
Technical Services
----------------------------------------------------------------------------------------------------------------
8. Adecco Personnel SGD 230,959 Pledged against Fixed deposits United Overseas Bank
Pte Ltd Limited
----------------------------------------------------------------------------------------------------------------
9. Adecco Personnel SGD 25,085 Pledged against Fixed deposit DBS Bank Ltd
Pte Ltd
----------------------------------------------------------------------------------------------------------------
10. jobpilot AG (euro) 401.635,84 Guaranty and indemnity dated IBM UK Financial Services
15th November 2000 in Ltd.
favour of IBM UK
Financial Services Ltd.
guaranteeing the obligations of
Intellicruit Ltd. as lessee
under a hardware leasing
agreement dated 15th November
2000 with IBM IBM UK
Financial Services Ltd. as
lessor for hardware leasing of
Intellicruit Ltd.
----------------------------------------------------------------------------------------------------------------
11. jobpilot AG (euro) 50.660,06 Guaranty and Indemnity dated Xxxxxx Ltd.
November 2001 in favour of
Xxxxxx Ltd. guaranteeing the
obligations of Intellicruit Ltd.
as tenant under a rental
agreement dated November 2001
with Xxxxxx Ltd as Landlord for
office premises in Richmond UK
----------------------------------------------------------------------------------------------------------------
88
----------------------------------------------------------------------------------------------------------------
Maximum
Company Principal Amount
Granting Secured (whether
No. Security utilised or not) Type of Secured Assets Security Holder
----------------------------------------------------------------------------------------------------------------
12. jobpilot AG (euro) 462.000 Leasing of ATG Software Package Disko Leasing GmbH
- cash deposit on a blocked bank
account to secure leasing
payments. Periodically amounts
can be withdrawn with the
consent of Disko Leasing
----------------------------------------------------------------------------------------------------------------
13. Adecco Norge AS NOK 30.000.000.- Pledge of Receivables Den Norske Bank
----------------------------------------------------------------------------------------------------------------
14. Adecco Nederland (euro) 18.100.000 Pledge of Receivables ING Bank Nederland
Beheer B.V.(and
subsidiaries)
(together with
Ajilon Professional
Staffing BV)
----------------------------------------------------------------------------------------------------------------
89
SCHEDULE 7
FORM OF ACCESSION AGREEMENT
To: THE ROYAL BANK OF SCOTLAND plc as Agent
From: ADECCO SA AND ADECCO COORDINATION CENTER SA
Date: [___________]
ADECCO S.A. - EUR580,000,000 credit agreement
dated [__________], 2003 (the "Facility Agreement")
We refer to the Facility Agreement. This is an Accession Agreement.
Adecco Coordination Center S.A. of Xxxxxxxxxxxx 00, X-0000 Xxxxxx, Xxxxxxx
agrees to become a Borrower and to be bound by the terms of the Facility
Agreement as a Borrower.
This Accession Agreement is governed by English law.
Each of us agrees that the Courts of England have jurisdiction to settle any
disputes in connection with this Accession Agreement and, accordingly,
irrecovably submits to the jurisdiction of the English Court.
ADECCO S.A.
By:
ADECCO COORDINATION CENTER S.A.
By:
90
SCHEDULE 8
FORM OF RESIGNATION LETTER
To: THE ROYAL BANK OF SCOTLAND plc as Agent
From: ADECCO SA AND ADECCO COORDINATION CENTER SA
Dated:
Dear Sirs
Adecco S.A. - US$ 580,000,000 credit agreement
dated [_________] (the "Facility Agreement")
1. Pursuant to Clause 29.7 (Resignation of Adecco CC), we request that Adecco
CC be released from its obligations as a Borrower under the Facility
Agreement.
2. We confirm that:
(a) no Default is continuing or would result from the acceptance of this
request; and
(b) Adecco CC is under no actual or contingent obligations as a Borrower
under any Finance Documents.
3. This letter is governed by English law.
Adecco S.A. Adecco Coordination Center SA
By: By:
--------------------------- --------------------------
91
SIGNATORIES
Guarantor
ADECCO SA
By: XXXXXX XXXXXX XXXXX XXXXX
Borrowers
ADECCO SA
By: XXXXXX XXXXXX XXXXX XXXXX
ADECCO REINSURANCE COMPANY LIMITED
By: XXXXXX XXXXXX XXXXX XXXXX
Mandated Lead Arrangers
BANC OF AMERICA SECURITIES LIMITED
By: XXXXXXX X. XXXXXXX
SG INVESTMENT BANKING
By: XXXXXXXX XXXXXXX
THE ROYAL BANK OF SCOTLAND plc
By: XXXXXXX X. WAX
92
Banks:
ABN AMRO N.V., Niederlassung Deutschland
By: XXXXXXX X. WAX (by Power of Attorney)
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
By: XXXX XXXXX XXXXXXXX XXXXXXXX XXXXXXX-TABERNERO
BANCA COMMERCIALE ITALIANA (FRANCE) S.A. GRUPPO INTESA
By: XXXXXXX X. WAX (by Power of Attorney)
BANCA NAZIONALE DEL LAVORO S.P.A., LONDON BRANCH
By: XXXXXXX X. WAX (by Power of Attorney)
BANK BRUSSELS XXXXXXX, BRUSSELS, XXXXXX XXXXXX
By: XXXXXXX X. WAX (by Power of Attorney)
BANK OF AMERICA N.A.
By: XXXXXXX X. XXXXXXX
BNP PARIBAS (SUISSE) SA
By: XXXXXXX X. WAX (by Power of Attorney)
CAISSE REGIONALE DE CREDIT AGRICOLE MUTUEL DE PARIS ET D'ILE DE FRANCE
By: XXXXXXX X. WAX (by Power of Attorney)
CCF
By: XXXXXXX X. WAX (by Power of Attorney)
93
CREDIT AGRICOLE INDOSUEZ
By: XXXXXXX X. XXXXXXX (by Power of Attorney)
CREDIT LYONNAIS
By: XXXXXXX X. XXXXXXX (by Power of Attorney)
CREDIT SUISSE FIRST BOSTON, LONDON BRANCH
By: XXXXXXX X. XXXXXXX (by Power of Attorney)
DEUTSCHE BANK LUXEMBOURG S.A.
By: XXXXXXX X. XXXXXXX (by Power of Attorney)
FORTIS BANK SA
By: XXXXXXX X. XXXXXXX (by Power of Attorney)
XXXXXXX SACHS INTERNATIONAL BANK
By: XXXX XXXXXX
LYONNAISE DE BANQUE
By: XXXXXXX X. XXXXXXX (by Power of Attorney)
MELLON BANK, N.A.
By: XXXXXXX X. XXXXXXX (by Power of Attorney)
NATEXIS BANQUES POPULAIRES
By: XXXXXXX X. XXXXXXX (by Power of Attorney)
NORDEA BANK SWEDEN AB (PUBL)
By: XXXXXXX X. XXXXXXX (by Power of Attorney)
00
XXX XXXXX XXXX XX XXXXXXXX plc
By: XXXXXXX X. WAX
SOCIETE GENERALE
By: XXXXXXXX XXXXXXX
Agent
THE ROYAL BANK OF SCOTLAND plc
By: XXXXXXX X. WAX
Issuing Bank
BANK OF AMERICA N.A.
By: XXXXXXX X. XXXXXXX
CONFORMED COPY
FACILITY AGREEMENT
DATED 28TH MARCH, 2003
EURO 580,000,000
REVOLVING CREDIT FACILITY
for
ADECCO SA
arranged by
BANC OF AMERICA SECURITIES LIMITED
THE ROYAL BANK OF SCOTLAND plc
and
SG INVESTMENT BANKING
as Mandated Lead Arrangers
THE ROYAL BANK OF SCOTLAND plc
as Agent
Xxxxx & Overy
London
newchange
BK:1037576.5
INDEX
Clause Page
----
1. Interpretation..........................................................1
2. The Facility...........................................................18
3. Purpose................................................................19
4. Conditions Precedent...................................................19
5. Advances...............................................................20
6. Letters of Credit......................................................22
7. Indemnity in Relation to LCs...........................................23
8. Repayment..............................................................28
9. Prepayment and Cancellation............................................28
10. Interest...............................................................31
11. Optional Currencies....................................................33
12. Payments...............................................................34
13. Taxes..................................................................36
14. Market Disruption......................................................38
15. Increased Costs........................................................39
16. Illegality.............................................................40
17. Guarantee..............................................................41
18. Representations and Warranties.........................................43
19. Undertakings...........................................................47
20. Default................................................................52
21. The Agent and the MLAs.................................................56
22. Fees...................................................................61
23. Expenses...............................................................62
24. Stamp Duties...........................................................63
25. Indemnities............................................................63
26. Mitigation by the Banks................................................64
27. Evidence and Calculations..............................................64
28. Amendments and Waivers.................................................65
29. Changes to the Parties.................................................66
30. Disclosure of Information..............................................69
31. Set-off................................................................70
32. Pro Rata Sharing.......................................................70
33. VAT....................................................................71
34. Severability...........................................................71
35. Counterparts...........................................................72
36. Notices................................................................72
37. Language...............................................................73
38. Jurisdiction...........................................................74
39. Waiver of Immunity.....................................................75
40. Governing Law..........................................................75
Schedules
1. Banks and Commitments..................................................76
2. Conditions Precedent Documents.........................................77
Part I - Initial Conditions Precedent Documents..............................77
Part II - Adecco CC Conditions Precedent Documents...........................79
3. Form of Request........................................................80
4. Form of Novation Certificate...........................................82
5. Mandatory Cost Formulae................................................83
6. Schedule of Security Interests.........................................86
7. Form of Accession Agreement............................................89
8. Form of Resignation Letter.............................................90
Signatories..................................................................91
