Note: This is a copy of the executed loan agreement entered into by HeidelbergCement AG in connection with the envisaged acquisition of all shares in Hanson plc. Certain sections of the document which are commercially sensitive but in the opinion of...
Exhibit
4
Execution
Copy
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Note:
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This
is a copy of the executed loan agreement entered into by HeidelbergCement
AG in connection with the envisaged acquisition of all shares in
Xxxxxx
plc. Certain sections of the document which are commercially sensitive
but
in the opinion of HeidelbergCement AG not relevant for evaluating
the
Transaction have been deleted before publication of the document.
These
sections are market with "n n n"
|
GBP
8,750,000,000 and EUR 3,400,000,000
dated
14
May 2007
for
arranged
by
DEUTSCHE
BANK AG and THE ROYAL BANK OF SCOTLAND PLC
with
THE
ROYAL
BANK OF SCOTLAND PLC
acting
as
Agent
_____________________________________________________
MULTICURRENCY
TERM AND REVOLVING FACILITIES
AGREEMENT
INCORPORATING
A EURO SWINGLINE FACILITY
______________________________________________________
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THIS
AGREEMENT is dated 14 May 2007 and made between:
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(1)
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HEIDELBERGCEMENT
AG (the "Company" or the
"Guarantor");
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(2)
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THE
SUBSIDIARIES of the Company listed in Part I of Schedule 1
(The Original Parties) as original borrowers (together with the
Company the "Original
Borrowers");
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(3)
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DEUTSCHE
BANK AG and THE ROYAL BANK OF SCOTLAND PLC as mandated lead
arrangers (whether acting individually or together the
"Arranger");
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(4)
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THE
FINANCIAL INSTITUTIONS listed in Part II of Schedule 1
(The Original Parties) as lenders (the "Original
Lenders");
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(5)
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THE
ROYAL BANK OF SCOTLAND PLC as agent of the other Finance Parties
(the "Agent"); and
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(6)
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DEUTSCHE
BANK AG and THE ROYAL BANK OF SCOTLAND PLC as ancillary lenders
(the "Ancillary
Lenders").
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IT
IS AGREED as follows:
SECTION
1
INTERPRETATION
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1.1
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Definition
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In
this Agreement:
"Accession
Letter" means a document substantially in the form set out in Schedule
6 (Form of Accession Letter).
"Acquisition"
means the acquisition by the Company and BidCo of up to 100% of the issued
share
capital of Target.
"Acquisition
Closing" means the date on which first Utilisation occurs to fund the
Acquisition pursuant to the Offer or the Scheme.
"Additional
Borrower" means a company which becomes an Additional Borrower in
accordance with Clause 29 (Changes to the Obligors).
"Additional
Cost Rate" has the meaning given to it in Schedule 4 (Mandatory
Cost formulae).
"Affiliate"
means, in relation to any person, a Subsidiary of that person or a Holding
Company of that person or any other Subsidiary of that Holding
Company.
"Agent's
Spot Rate of Exchange" means the Agent's spot rate of exchange for the
purchase of the relevant currency with the Base Currency in the London foreign
exchange market at or about 11:00 a.m. on a particular day.
"Ancillary
Commencement Date" means, in relation to the Ancillary Facility, the
date on which the Ancillary Facility is first made available, which date shall
be a Business Day within the Availability Period for Facility B.
"Ancillary
Commitment" means, in relation to an Ancillary Lender and an Ancillary
Facility, the maximum Base Currency Amount which that Ancillary Lender has
agreed (whether or not subject to satisfaction of conditions precedent) to
make
available from time to time under an Ancillary Facility and which has been
authorised as such under Clause 10 (Ancillary Facility), to the extent
that amount is not cancelled or reduced under this Agreement or the Ancillary
Documents relating to the Ancillary Facility.
"Ancillary
Document" means each document relating to or evidencing the terms of
the Ancillary Facility.
"Ancillary
Facility" means the ancillary facility made available by the Ancillary
Lenders in accordance with Clause 10 (Ancillary Facility).
"Ancillary
Lender" means Deutsche Bank AG and The Royal Bank of Scotland pic,
acting through one of their branches.
"Ancillary
Outstandings" means, at any time, in relation to an Ancillary Lender
and an Ancillary Facility the aggregate of the equivalents (as calculated by
that Ancillary Lender) in the Base Currency of the face amount of each guarantee
under that Ancillary Facility, in each case as determined by such Ancillary
Lender in accordance with the relevant Ancillary Document or normal banking
practice.
"Applicable
GAAP" means, in the case of the consolidated financial statements of
the Group, IFRS, and in the case of the unconsolidated financial statements
of
any Obligor, accounting principles generally accepted in its jurisdiction of
incorporation.
"Assignment
Certificate" means a certificate substantially in the form set out in
Schedule 17 (Form of Assignment Certificate) or any other form
satisfactory to the Agent.
"Assignment
Date" means, in relation to an assignment pursuant to Clause 28.2
(Conditions of assignment or assignment and transfer by assumption of
contract (Vertragsübernahme)), the later of:
(a) the
proposed Assignment Date specified in the Assignment Certificate;
and
(b) the
date on which the Agent accepts the Assignment Certificate.
"Authorisation"
means an authorisation, consent, approval, resolution, licence, exemption,
filing, notarisation or registration.
"Availability
Period" means:
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(a)
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in
relation to a Term Facility the period from and including the date
of this
Agreement and ending on the earlier
of:
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(i)
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in
the case of an Acquisition to be made inter alia by way of a
Scheme:
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(A)
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the
date on which the Scheme lapses or is withdrawn or the
shareholders of
the Target fail (on a vote) to approve the
implementation of the Scheme (other than any vote for adjournment
of a
shareholder meeting) unless (in each case) an Offer Conversion Notice
has
been served or is served within 2 Business Days of such event pursuant
to
Clause 3.3 (Conversion from Scheme to
Offer);
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(B)
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the
date falling 15 days after the Scheme Date;
and
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(C)
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31
March 2008,
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or
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in
the case of an Acquisition to be made inter alia by way of an
Offer:
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(A)
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the
date on which the Offer lapses or is withdrawn;
and
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(B)
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31
March 2008;
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and
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(ii)
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close
of business on the date which is three months after the date of this
Agreement unless the Press Release has been issued on or prior to
such
date in accordance with paragraph (h) of Clause 26.15
(Acquisition-related
undertakings).
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In
addition, Facility C will be available until the date which is 364 days after
the date of this Agreement for any purpose set out in sub-paragraph (a)(iii)
to
(v) of Clause 3.1 (Purpose).
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(b)
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in
relation to the Revolving Facility, the period from and including
the date
of this Agreement to and including the Termination Date in relation
to the
Revolving Facility.
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"Available
Ancillary Commitment" means in relation to the Ancillary Facility, an
Ancillary Lender's Ancillary Commitment less the Ancillary Outstandings in
relation to the Ancillary Facility.
"Available
Commitment" means, in relation to a Facility, a Lender's Commitment
under that Facility minus (subject to Clause 10.7 (Affiliates of Lenders as
Ancillary Lenders) and as set out below):
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(a)
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the
Base Currency Amount of its participation in any outstanding Loans
under
that Facility and, in the case of Facility B only, the Base Currency
Amount of the aggregate of its Ancillary Commitments;
and
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(b)
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in
relation to any proposed Utilisation, the Base Currency Amount of
its
participation in any Loans that are due to be made under that Facility
on
or before the proposed Utilisation Date and, in the case of Facility
B
only, the Base Currency Amount of its Ancillary Commitment in relation
to
any new Ancillary Facility that is due to be made available on or
before
the proposed Utilisation Date.
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For
the
purposes of calculating a Lender's Available Commitment in relation to any
proposed Utilisation under the Revolving Facility only, that Lender's
participation in any Revolving Facility Loans that are due to be repaid or
prepaid on or before the proposed Utilisation Date shall not be deducted from
a
Lender's Commitment under that Facility.
"Available
Euro Swingline Commitment" of a Euro Swingline Lender means (but
without limiting Clause 7.4 (Relationship with Revolving Facility))
that Lender's Euro Swingline Commitment minus:
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(a)
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the
Base Currency Amount of its participation in any outstanding Euro
Swingline Loans; and
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(b)
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in
relation to any proposed Utilisation under the Euro Swingline Facility,
the Base Currency Amount of its participation in any Euro Swingline
Loans
that are due to be made under the Euro Swingline Facility on or before
the
proposed Utilisation Date.
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For
the
purposes of calculating a Euro Swingline Lender's Available Euro Swingline
Commitment in relation to any proposed Utilisation of the Euro Swingline
Facility, that Lender's participation in any Euro Swingline Loans that are
due
to be repaid or prepaid on or before the proposed Utilisation Date shall not
be
deducted from a Euro Swingline Lender's Euro Swingline Commitment.
"Available
Euro Swingline Facility" means the aggregate for the time being of each
Euro Swingline Lender's Available Euro Swingline Commitment.
"Available
Facility" means, in relation to a Facility, the aggregate for the time
being of each Lender's Available Commitment in respect of that
Facility.
"Base
Currency" means EUR provided that with respect to
Facility A and Facility B until the relevant Base Currency Redenomination Date
only, "Base Currency" means GBP.
"Base
Currency Amount" means:
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(a)
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in
relation to a Loan, the amount specified in the Utilisation Request
delivered by a Borrower for that Loan (or, if the amount requested
is not
denominated in the Base Currency, that amount converted into the
Base
Currency at the Agent's Spot Rate of Exchange on the date which is
three
Business Days before the Utilisation Date or, if later, on the date
the
Agent receives the Utilisation Request);
and
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(b)
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in
relation to an Ancillary Commitment, the amount specified as such
in the
notice delivered to the Agent by the Company pursuant to Clause 10.2
(Availability) (or, if the amount specified is not denominated in
the Base Currency, that amount converted into the Base Currency at
the
Agent's Spot Rate of Exchange on the date which is three Business
Days
before the Ancillary Commencement Date for the Ancillary Facility
or, if
later, the date the Agent receives the notice of the Ancillary Commitment
in accordance with the terms of this
Agreement),
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adjusted
to reflect any repayment (other than, in relation to any Term Facility, a
repayment arising from a change of currency), prepayment, consolidation or
division of the Loan or (as the case may be) cancellation or reduction of the
Ancillary Facility.
"Base
Currency Redenomination Date" means each date notified by the Company
to the Agent in accordance with Clause 2.2 (Base Currency
Redonomination) with effect from which it wishes to change the Base
Currency for Facility A and/or Facility B from GBP to EUR, which date must
be no
later than the date which is 30 days after Acquisition Closing.
"BidCo"
means Lehigh UK Limited, a limited liability company wholly-owned directly
by
the Company and established under the laws of England.
"Borrower"
means an Original Borrower or an Additional Borrower unless it has ceased to
be
a Borrower in accordance with Clause 29 (Changes to the
Obligors).
"Break
Costs" means the amount (if any) by which:
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(a)
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the
interest (excluding the Margin) which a Lender should have received
for
the period from the date of receipt of all or any part of its
participation in a Loan or Unpaid Sum to the last day of the current
Interest Period in respect of that Loan or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last day of that Interest
Period;
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exceeds:
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(b)
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the
amount which that Lender would be able to obtain by placing an amount
equal to the principal amount or Unpaid Sum received by it on deposit
with
a leading bank in the European interbank market for a period starting
on
the Business Day following receipt or recovery and ending on the
last day
of the current Interest Period.
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"Business
Day" means a day (other than a Saturday or Sunday) on which banks are
open for general business in London and Frankfurt am Main and:
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(a)
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(in
relation to any date for payment or purchase of euro) any TARGET
Day;
or
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(b)
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(in
relation to any date for payment or purchase of a currency other
than
euro) the principal financial centre of the country of that
currency.
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"Certain
Funds Period" means the period commencing on the date of this Agreement
and ending on the earlier of (i) the last day of the Availability Period of
the
Term Facilities (ignoring for this purpose the extended Availability Period
of
Facility C) and (ii) the earlier of 31 March 2008 and the date on which the
Offer or Scheme lapses or is withdrawn (unless an Offer Conversion Notice has
been served or is served within 2 Business Days of such lapse or withdrawal
pursuant to Clause 3.3 (Conversion from Scheme to Offer)).
"Certain
Funds Purpose" means the purpose set out in paragraph (a)(i), (ii) (but
only to the extent it relates to the DB Facility), (iii) (but only to the extent
it relates to the Existing 2004 Facility) and (vii) of Clause 3.1
(Purpose).
"Certain
Funds Utilisation" means a Utilisation made or to be made under a Term
Facility during the Certain Funds Period where such Utilisation is to be made
solely for a Certain Funds Purpose.
"Clean-Up
Date" means the date falling six months after the Acquisition
Closing.
"Clean-Up
Default" means a Default referred to in Clauses 27.3 (Other
obligations) (but only insofar as that Clause relates to a Clean-Up
Undertaking), Clause 27.4 (Misrepresentation) (but only where it
relates to a Clean-up Representation), Clause 27.5 (Cross-default),
Clause 27.8 (Creditors' process) and Clause 27.12 (Adverse
Judgement).
"Clean-Up
Representation" means any of the representations and warranties
provided for in this Agreement except for the representations in Clause 23.13
(No proceedings pending or threatened), paragraph (b) of Clause 23.5
(Validity and admissibility in evidence), Clause 23.11 (Financial
Statements), Clause 23.14 (Environmental laws and licences) and
Clause 23.15 (Environmental Releases).
"Clean-Up
Undertaking" means any of the undertakings specified in Clauses 26.3
(Negative pledge), 26.4 (Disposals), 26.10
(Guarantees), 26.11 (Loans out), 26.13 (Acquisitions)
and 26.12 (Subsidiary Financial Indebtedness).
"Commitment"
means a Facility A Commitment, a Facility B Commitment, a Facility C Commitment,
a Revolving Facility Commitment or a Euro Swingline Commitment.
"Compliance
Certificate" means a certificate substantially in the form set out in
Schedule 8 (Form of Compliance Certificate).
"Confidentiality
Undertaking" means a confidentiality undertaking substantially in the
form as set out in Schedule 10 (Form of Confidentiality Undertaking) or
in any other form agreed between the Company and the Agent.
"Court
Orders" means the court orders of the High Court of Justice sanctioning
the Scheme or the Reduction, as the case may be (both of which may be contained
in the same court order).
"DB
Facility" means the bilateral facility made available pursuant to a
facility agreement between the Company and Deutsche Bank Luxembourg S.A. dated
23 April 2007.
"Default"
means an Event of Default or any event or circumstance specified in Clause
27
(Events of Default) which would (with the expiry of a grace period, the
giving of notice, the making of any determination under the Finance Documents
or
any combination of any of the foregoing) be an Event of Default.
"Dutch
Borrower" means a Borrower incorporated in The
Netherlands.
"Dutch
FSA" means the Financial Supervision Act (Wet op het financieel
toezicht) including any and all subordinate decrees and regulations issued
pursuant thereto.
"Environmental
Claim" means any claim, proceeding or investigation by any person in
respect of any Environmental Law.
"Environmental
Law" means all laws, regulations and administrative acts of any
relevant jurisdiction which:
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(a)
|
have
as a purpose or effect the protection of, and/or prevention of harm
or
damage to, the environment;
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(b)
|
provide
remedies or compensation for harm or damage to the environment;
or
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(c)
|
relate
to Hazardous Substances or health and safety
matters.
|
"Environmental Licence" means any
authorisation required at any time under
Environmental Law.
"EURIBOR" means
in relation to any Loan in euro:
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(a)
|
the
applicable Screen Rate; or
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(b)
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(if
no Screen Rate is available for the Interest Period of that Loan)
the
arithmetic mean of the rates (rounded upwards to four decimal places)
as
supplied to the Agent at its request quoted by the Reference Banks
to
leading banks in the European interbank
market;
|
as
of the
Specified Time on the Quotation Day for the offering of deposits in euro for
a
period comparable to the Interest Period of the relevant Loan.
"Euro
Swingline Commitment" means:
|
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(a)
|
in
relation to a Euro Swingline Lender on the date of this Agreement,
the
amount in euro set opposite its name under the heading "Euro Swingline
Commitment" in Part II B of Schedule 1 (The Original Parties) and
the amount of
any other Euro Swingline Commitment transferred
to it under this Agreement;
and
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|
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(b)
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in
relation to any other Euro Swingline Lender, the amount of any
Euro Swingline Commitment transferred to it under this
Agreement,
|
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Euro
Swingline Facility" means the euro swingline loan facility made
available under this Agreement as described in Clause 8 (Euro Swingline
Loans).
"Euro
Swingline Lender" means:
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(a)
|
an
Original Lender listed in Part II B of Schedule 1 (The Original
Parties) as a euro swingline lender;
or
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(b)
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any
other person that becomes a Euro Swingline Lender after the date
of this
Agreement in accordance with Clause 28 (Changes to Lenders) which
in each case has not ceased to be a Party in accordance with the
terms of
this Agreement.
|
"Euro
Swingline Loan" means a loan made or to be made under the Euro
Swingline Facility or the principal amount outstanding for the time being of
that loan.
"Euro
Swingline Rate" means, in relation to a Euro Swingline Loan, the
percentage rate per annum which is the aggregate of:
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(a)
|
the
arithmetic mean of the rates (rounded upwards to four decimal places)
as
supplied to the Agent at its request quoted by the Reference Banks
to
leading banks in the European interbank market as of 11.00 a.m. London
time on the Utilisation Date for that Euro Swingline Loan for the
offering
of deposits in euro for a period comparable to the Interest Period
for the
relevant Euro Swingline Loan and for settlement on that
day;
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(b)
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the
applicable Margin for the Revolving Facility;
and
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(c)
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Mandatory
Cost (if any).
|
For
the
purposes of this definition of "Euro Swingline Rate", the
Reference Banks are the Reference Banks defined in Clause 1.1
(Definitions) in relation to EURIBOR.
"Event
of Default" means any event or circumstance specified as such in Clause
27 (Events of Default).
"Existing
2004 Facility" means the EUR 600,000,000 facilities agreement entered
into on 8 December 2004 (as amended and restated from time to time) between,
inter alia, HeidelbergCement AG and The Royal Bank of Scotland plc as
agent.
"Facility"
means Facility A, Facility B, Facility C, the Revolving Facility or the Euro
Swingline Facility.
"Facility
A" means the term loan facility made available under this Agreement
as
described in paragraph (a) of Clause 2 (The Facilities).
"Facility
A Commitment" means:
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(a)
|
in
relation to an Original Lender, until (and including) the applicable
Base
Currency Redenomination Date, the amount in the Base Currency set
opposite
its name under the heading "Facility A Commitment" in Part IIA of
Schedule
1 (The Original Parties) and, thereafter, the amount in the Base
Currency calculated at the Agent's Spot Rate of Exchange on the date
three
Business Date prior to the Base Currency Redenomination Date, and
the
amount of any other Facility A Commitment transferred to it under
this
Agreement; and
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(b)
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in
relation to any other Lender, the amount in the Base Currency of
any
Facility A Commitment transferred to it under this
Agreement,
|
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility
A Loan" means a loan made or to be made under Facility A or the
principal amount outstanding for the time being of that loan.
"Facility
B" means the term loan facility made available under this Agreement
as
described in paragraph (b) of Clause 2 (The Facilities).
"Facility
B Commitment" means:
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(a)
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in
relation to an Original Lender, until (and including) the applicable
Base
Currency Redenomination Date the amount in the Base Currency set
opposite
its name under the heading "Facility B Commitment" in Part IIA of
Schedule
1 (The Original Parties) and, thereafter, the amount in the Base
Currency calculated at the Agent's Spot Rate of Exchange on the date
three
Business Date prior to the Base Currency Redenomination Date, and
the
amount of any other Facility B Commitment transferred to it under
this
Agreement; and
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(b)
|
in
relation to any other Lender, the amount in the Base Currency of
any
Facility B Commitment transferred to it under this
Agreement,
|
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility
B Loan" means a loan made or to be made under Facility B or the
principal amount outstanding for the time being of that loan.
"Facility
C" means the term loan facility made available under this Agreement
as
described in paragraph (c) of Clause 2 (Facilities).
"Facility
C Commitment" means:
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(a)
|
in
relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Facility C Commitment" in Part
IIA of
Schedule 1 (The Original Parties) and the amount of any other
Facility C Commitment transferred to it under this Agreement;
and
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|
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(b)
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in
relation to any other Lender, the amount in the Base Currency of
any
Facility C Commitment transferred to it under this
Agreement,
|
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility
C Loan" means a loan made or to be made under Facility C or the
principal amount outstanding for the time being of that loan.
"Facility
C Repayment Date" means each of the dates specified in Clause 11.1
(Repayment of Term Loans) as Repayment Dates, but if any such date is
not a Business Day, then that Repayment Date shall be deemed to be the
immediately succeeding Business Day.
"Facility
C Repayment Instalment" means each instalment for repayment of the
Facility C Loans referred to in Clause 11.1 (Repayment of Term
Loans).
"Facility
Office" means the office or offices notified by a Lender to the Agent
in writing on or before the date it becomes a Lender (or, following that date,
by not less than five Business Days' written notice) as the office or offices
through which it will perform its obligations under this Agreement.
"Fee
Letter" means:
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(a)
|
any
letter or letters dated 13 April 2006 and/or dated on or about the
date of
this Agreement between the Arranger and the Company (or the Agent
and the
Company) setting out any of the fees referred to in Clause 16
(Fees); and
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(b)
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any
agreement setting out fees payable to the Ancillary Lenders referred
to in
Clause 16.5 (Interest, commission and fees on Ancillary
Facility) of this Agreement or any other Finance
Document.
|
"Finance
Document" means this Agreement, the Mandate Letter, any Fee Letter, any
Ancillary Document, any transfer agreement, any Accession Letter, any
Resignation Letter, any compliance certificate and any other document designated
as a "Finance Document" by the Agent and the Company.
"Finance
Party" means the Agent, the Arranger or a Lender or any Ancillary
Lender.
"Finance
Subsidiary" means a member of the Group (other than the Company) whose
sole purpose is to raise finance for the Group, which does not own any material
assets other than loans to other members of the Group and credit balances in
bank accounts and which does not have any equity interests in any
person.
"Financial
Advisor" has the meaning given to such term in Clause 4.1 (Initial
Conditions Precedent).
"Financial
Indebtedness" means (without double counting) any indebtedness for
or in respect of:
|
|
(a)
|
moneys
borrowed;
|
|
|
(b)
|
any
amount raised by acceptance under any acceptance credit
facility;
|
|
|
(c)
|
any
amount raised pursuant to any note purchase facility or the issue
of
bonds, notes, debentures, loan stock or any similar
instrument;
|
|
|
(d)
|
the
amount of any liability in respect of any lease which would, in accordance
with Applicable GAAP, be treated as a finance or capital
lease;
|
|
|
(e)
|
receivables
sold or discounted (other than any receivables to the extent they
are sold
on a non recourse basis);
|
|
|
(f)
|
any
advance or deferred purchase agreement where the advance or deferred
payment is arranged primarily as a method of raising finance, in
each case
except where the payment is advanced or deferred for not more than
120
days;
|
|
|
(g)
|
any
derivative transaction entered into in connection with protection
against
or benefit from fluctuation in any interest or currency exchange
rate
(and, when calculating the value of any such derivative transaction,
only
the marked to market value shall be taken into
account);
|
|
|
(h)
|
any
counter-indemnity obligation in respect of a guarantee, indemnity,
bond,
standby or documentary letter of credit or any other similar instrument
issued by a bank or financial
institution;
|
|
|
(i)
|
the
amount of any liability in respect of any guarantee or indemnity
for any
of the items referred to in paragraphs (a) to (h)
above.
|
For
the
avoidance of doubt, any liability under any guarantee and/or indemnity given
for
the benefit of a purchaser in connection with any disposal (whether by way
of
sale or otherwise) permitted under this Agreement shall not constitute Financial
Indebtedness.
"German
Entity" has the meaning given to it in Clause 27.6
(Insolvency)
"Group" means
the Company and its fully-consolidated Subsidiaries from time to
time.
"Group
Structure Chart" means the group structure chart in the agreed
form.
"Guarantee" has
the meaning given to it in Clause 26.10 (Guarantees).
"Hazardous
Substance" means any waste, pollutant,
contaminant or other substance that may reasonably be expected to be harmful
to
human health or other life or the environment or that may reasonably be expected
to make the use or ownership of any affected land or property materially more
costly.
"Holding
Company" means, in relation to an entity, any
other entity in respect of which it is a Subsidiary.
"IFRS" means
international accounting standards within the meaning of the IAS Regulation
1606/2002 to the extent applicable to the relevant financial
statements.
"Implementation
Agreement" means an agreement setting out the terms on which the Scheme
will be implemented.
"Information
Memorandum" means the document in the form
approved by the Company concerning the Group which, at the Company's request
and
on its behalf, was prepared in relation to this transaction and distributed
by
the Arranger to selected financial institutions.
"Initial
Margin Application Period" means the period from the date of this
Agreement up to and including the date falling five Business Days after the
date
on which the first Compliance Certificate is delivered which pertains to a
Relevant Period, but no earlier than the Acquisition Closing or the date the
Offer or Scheme lapses or is withdrawn.
"Interest
Period" means (subject to paragraph (a)(vi) of
Clause 7.2 (Completion of a Utilisation Request for Euro Swingline
Loans)), in relation to a Loan, each period determined in accordance with
Clause 14 (Interest Periods) and, in relation to an Unpaid Sum, each
period determined in accordance with Clause 13.3 (Default interest and lump
sum damages).
"ITA"
means the Income Tax Xxx 0000.
"Legal
Reservations" means any matters which are set out as qualifications or
reservations as to matters of law of general application in any legal opinion
delivered to the Agent under Clause 4.1 (Initial Conditions Precedent)
or Clause 29 (Changes to the Obligors).
"Lender" means:
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|
(a)
|
any
Original Lender; and
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|
|
(b)
|
any
bank, financial institution, trust, fund or other entity which has
become
a Party in accordance with Clause 28 (Changes to the
Lenders),
|
which
in
each case has not ceased to be a Party in accordance with the terms of this
Agreement.
"LIBOR"
means, in relation to any Loan:
|
|
(a)
|
the
applicable Screen Rate; or
|
|
|
(b)
|
(if
no Screen Rate is available for the currency or Interest Period of
that
Loan) the arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Agent at its request quoted by the Reference
Banks to leading banks in the European interbank market, as of the
Specified Time on the Quotation Day for the offering of deposits
in the
currency of that Loan and for a period comparable to the Interest
Period
for that Loan.
|
"Loan"
means a Term Loan, a Revolving Facility Loan or a Euro Swingline
Loan.
"Loan
Note" means any loan note issued in accordance with the arrangements
for any loan note alternative in the Scheme or, as the case may be, the
Offer.
"Major
Default" means any circumstances constituting an Event of Default under
any of Clause 27.1 (Non-Payment); Clause 27.3 (Other
obligations) insofar as it relates to a breach of any Major Undertaking;
Clause 27.4 (Misrepresentation) insofar as it relates to a breach of
any Major Representation; Clause 27.6 (Insolvency), Clause 27.7
(Winding-up), Clause 27.10 (Unlawfulness) or Clause 27.11
(Repudiation), in each case insofar as they relate to an Obligor, Bidco
or, where the relevant provision under Clause 23 (Representations),
Clause 26 (General Undertakings) or Clause 27 (Events of
Default) is not restricted to an Obligor or Bidco, n n n
"Major
Representation" means a representation or warranty other than with
respect to any member of the Target Group under any of Clause 23.1
(Status) (but, with respect to paragraph (b) thereof, only insofar as
it relates to an Obligor, Bidco or n n n)
to
paragraph (a) of Clause 23.5 (Validity and admissibility in evidence)
inclusive (other than paragraph (c) of Clause 23.3 (Non-conflict with other
obligations)) and Clause 23.18 (Acquisition-related representations and
warranties).
"Major
Undertaking" means an undertaking under any of Clause 26.3
(Negative pledge) to Clause 26.6 (Change of business)
inclusive, Clause 26.10 (Guarantees), Clause 26.11 (Loans
out), Clause 26.14 (Ownership of Borrowers (other than the
Company)) and paragraphs (a), (b), (c), (f), or (h) of Clause 26.15
(Acquisition-related undertakings).
"Majority
Lenders" means:
|
|
(a)
|
if
there are no Loans
then outstanding, a Lender or Lenders whose
Commitments aggregate more than 662/3%
of the Total
Commitments (or, if the Total Commitments have been reduced to zero,
aggregated more than 662/3%
of the Total
Commitments immediately prior to the reduction);
or
|
|
|
(b)
|
at
any other time, a Lender or Lenders whose participations in the Loans
then
outstanding aggregate more than 662/3%
of all the
Loans then outstanding.
|
"Mandate
Letter" means the letter dated 13 April 2007 between the Arranger, the
Company and others.
"Mandatory
Cost" means the percentage rate per annum calculated by the Agent in
accordance with Schedule 4 (Mandatory Cost formulae).
"Margin"
means n n n
"Material
Adverse Effect" means a material adverse effect on:
|
|
(a)
|
the
ability of an Obligor to perform its payment obligations under the
Finance
Documents; or
|
|
|
(b)
|
the
validity or enforceability of the Finance Documents or the rights
or
remedies of any Finance Party under the Finance
Documents.
|
"Material
Company" means, at any time, a member of the Group (other than the
Company):
|
|
(a)
|
whose
turnover exceeds n n n of
the consolidated turnover of the Group as determined from the most
recent
audited or, in the case of half-yearly financial statements, unaudited
consolidated financial statements of the Group and the most recent
audited
(if available) or unaudited (if audited statements are not available)
unconsolidated financial statements of such member of the
Group;
|
|
|
(b)
|
whose
total assets exceed n n n
of the consolidated total assets of the Group as determined from
the most
recent audited or, in the case of half-yearly financial statements,
unaudited consolidated financial statements of the Group and the
most
recent audited (if available) or unaudited (if audited statements
are not
available) unconsolidated financial statements of such member of
the
Group;
|
|
|
(c)
|
which
has acquired all or substantially all of the assets of a Material
Company;
or
|
|
|
(d)
|
which
is nominated by the Company (and notified to the Agent in writing)
to
ensure that the aggregated total assets and turnover (disregarding
for
purposes of this calculation all intra-group items and
participations/shareholdings in other members of the Group) of all
Material Companies and the Company represent no less than n n n
of the consolidated total assets and consolidated turnover of the
Group;
and
|
|
|
(e)
|
prior
to the date of delivery of the first financial statements pursuant
to
paragraphs (a)(i), (b)(i) or (c)(i) of Clause 24.1 (Financial
Statements) following the Acquisition Closing, any member of the
Group listed as a Material Company in Schedule 18 (List of Material
Companies).
|
The
determinations relevant for the purposes of paragraph (d) above shall be made
by
reference to the latest consolidated audited (if available) or unaudited (if
audited financial statements are not available) financial statements of that
member of the Group (adjusted to reflect the exclusion of intra-group items
and
participations/shareholdings in other members of the Group) and the latest
audited consolidated financial statements of the Group.
A
report
by the auditors of the Company that a member of the Group is or is not a
Material Company shall, in the absence of manifest error, be conclusive and
binding on all Parties.
"Minor
Company" means any member of the Group which is not an Obligor or a
Material Company and is not directly or indirectly fully-owned by the Company
and with respect to which, due to statutory documents or contractual
arrangements with other shareholders in place, no member of the Group (as the
case may be acting jointly with another member of the Group) has the legal
ability to give instructions to the management board required to ensure
compliance with the terms of this Agreement without the consent of any other
shareholder in such member of the Group which is not a member of the
Group.
"Month" means
a period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that:
|
|
(a)
|
(subject
to paragraph (c) below) if the numerically corresponding day is not
a
Business Day, that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one, or
if there
is not, on the immediately preceding Business
Day;
|
|
|
(b)
|
if
there is no numerically corresponding day in the calendar month in
which
that period is to end, that period shall end on the last Business
Day in
that calendar month; and
|
|
|
(c)
|
if
an Interest Period begins on the last Business Day of a calendar
month,
that Interest Period shall end on the last Business Day in the calendar
month in which that Interest Period is to
end.
|
The
above
rules will only apply to the last Month of any period.
"Obligor"
means a Borrower or a Guarantor.
"Offer"
means, if there is an Offer Press Release, the offer proposed to be made by
BidCo, substantially on the terms set out in the Offer Press Release, to acquire
the whole of the issued share capital of Target, as such offer may from time
to
time be amended, added to, revised, renewed or waived as permitted in accordance
with the terms of this Agreement.
"Offer
Conversion Notice" has the meaning given to such term in Clause 3.3
(Conversion from Scheme to Offer).
"Offer
Document" means the offer document issued or to be issued by BidCo to
the shareholders of the Target in respect of the Offer.
"Offer
Press Release" means the press release (if any) made by or on behalf of
BidCo announcing a firm intention to make the Offer.
"Optional
Currency" means a currency (other than the Base Currency) which
complies with the conditions set out in Clause 4.3 (Conditions relating to
Optional Currencies).
"Original
Financial Statements" means:
|
|
(a)
|
in
relation to the Company, its audited unconsolidated financial statements
and the audited consolidated financial statements of the Group for
the
financial year ended 2006;
|
|
|
(b)
|
in
relation to Target, its consolidated audited financial statements
for its
financial year ended 2006;
|
|
|
(c)
|
in
relation to each Original Obligor other than the Company, its audited
financial statements for its financial year ended
2006.
|
"Original
Obligor" means an Original Borrower or the Guarantor.
"Overall
Commitment" of a Lender means:
|
|
(a)
|
its
Revolving Facility Commitment; or
|
|
|
(b)
|
in
the case of a Euro Swingline Lender which does not have a Revolving
Facility Commitment, the Revolving Facility Commitment of a Lender
which
is its Affiliate.
|
"Participating
Member State" means any member state of the European Communities that
adopts or has adopted the euro as its lawful currency in accordance with
legislation of the European Community relating to Economic and Monetary
Union.
"Panel" means
the Panel on Takeovers and Mergers.
"Party" means
a party to this Agreement.
"Permitted
Acquisition" means any acquisition:
|
|
(a)
|
made
pursuant to or in connection with the
Acquisition;
|
|
|
(b)
|
of
participations in members of the
Group;
|
|
|
(c)
|
by
a member of the Group from another member of the
Group;
|
|
|
(d)
|
not
permitted by the preceding paragraphs provided that n n n;
or
|
|
|
(e)
|
made
with the prior consent of the Majority
Lenders.
|
"Permitted
Disposals" means disposals:
|
|
(a)
|
made
in the ordinary course of business of the disposing
entity;
|
|
|
(b)
|
for
cash and on arm's length terms where the Net Disposal Proceeds resulting
from such disposal are applied in prepayment of Term Loans (or, following
repayment in full of the Term Loans, in cancellation (and, if required
in
order to be able to cancel, prepayment) of the Revolving Facility
and, as
applicable, the Euro Swingline Facility) in accordance with the provisions
of this Agreement;
|
|
|
(c)
|
which
constitute a disposal of money for purposes not otherwise prohibited
by
this Agreement;
|
|
|
(d)
|
which
constitute a disposal of obsolete or redundant
assets;
|
|
|
(e)
|
made
in the course of a solvent liquidation (other than of an Obligor)
or any
transaction permitted under Clause 26.5 (Merger) below, involving
any member of the Group and not otherwise prohibited under this
Agreement;
|
|
|
(f)
|
made
by a member of the Group to another member of the
Group;
|
|
|
(g)
|
pursuant
to a lease (Vermietung) of assets not required for the business
of the lessor;
|
|
|
(h)
|
in
exchange for other assets similar or superior in value and
type;
|
|
| (i) | required by law or any governmental authority or agency; |
|
|
(j)
|
of
receivables on arm's length terms and a non-recourse basis in connection
with factoring or securitisation arrangements, provided that the
aggregate
amount of receivables so sold by any member of the Group and outstanding
to the relevant third parties does not exceed EUR n n n
(or its equivalent) in aggregate at any
time;
|
|
|
(k)
|
which
constitute a sale and lease-back of assets on arm's length terms,
provided that the consideration in respect of such
disposals does not exceed EUR n n n
(or its equivalent) in aggregate over the lifetime of this
Agreement;
|
|
|
(1)
|
pursuant
to and/or in connection with the funding of special purpose vehicles
or
trusts assuming the obligation to fulfil pension obligations of any
member
of the Group (commonly referred to as contractual trust arrangements)
and/or pursuant to or in connection with pension fund arrangements,
provided that the aggregate book value of assets disposed
of in reliance on this paragraph may not at any time prior to repayment
in
full of Facility A and Facility B exceed EUR n n n
(or its equivalent) and, thereafter, EUR n n n
(or its equivalent);
|
|
|
(m)
|
required
by any relevant anti-trust authority to be made in connection with
the
Acquisition;
|
|
|
(n)
|
made
with the prior consent of the Majority Lenders;
or
|
|
|
(o)
|
on
arm's length terms and for fair market value of assets by a member
of the
Group which, when aggregated with previous disposals (other than
disposals
permitted under paragraphs (a) to (n) above) do not represent a material
part of the Company s total consolidated assets in any financial
year of
the Company,
|
provided
that prior to the date on which the Offer or Scheme lapses or is
withdrawn (unless an Offer Conversion Notice has been served or is served within
2 Business Days of such lapse or withdrawal pursuant to Clause 3.3
(Conversion from Scheme to Offer)) this definition of Permitted
Disposal shall not operate to allow any disposal of Target Shares.
"Permitted
Financial Indebtedness" means:
|
|
(a)
|
Financial
Indebtedness listed in Schedule 13 (Existing Financial
Indebtedness) up to the amount outstanding on the date of this
Agreement;
|
|
|
(b)
|
Financial
Indebtedness owed by a member of the Group to another member of the
Group;
|
|
|
(c)
|
Financial
Indebtedness incurred by any entity (including, without limitation,
the
members of the Target Group) which becomes a member of the Group
after the
date of this Agreement, where:
|
|
|
(i)
|
such
Financial Indebtedness was incurred prior to the date on which such
entity
became a member of the Group;
|
|
|
(ii)
|
the
principal amount of such Financial Indebtedness has not been increased
in
contemplation of such entity becoming or since such entity became
a member
of the Group; and
|
|
|
(iii)
|
such
Financial Indebtedness is discharged within six months after the
date on
which such entity became a member of the Group, provided
that no such discharge shall be required (i) if and to the extent
the principal amount of such Financial Indebtedness does not, when
aggregated with the principal amount of all other Financial Indebtedness
then outstanding in reliance on this sub-paragraph, exceed an amount
corresponding to 20% of the Financial Indebtedness of the Group as
determined from the most recent consolidated financial statements
of the
Group and (ii) no principal payment is due under such Financial
Indebtedness on or prior to the Termination Date for Facility
C;
|
|
|
(d)
|
Financial
Indebtedness under any bonds issued by a member of the Target Group
which
are outstanding at the Acquisition
Closing;
|
|
|
(e)
|
Financial
Indebtedness incurred under the Finance
Documents;
|
|
|
(f)
|
Financial
Indebtedness in respect of current accounts payable and accrued expenses
incurred in the ordinary course of business of the relevant member
of the
Group;
|
|
|
(g)
|
Financial
Indebtedness incurred with the prior consent of the Majority
Lenders;
|
|
|
(h)
|
Financial
Indebtedness incurred with respect to loans from employees extended
in
connection with customary profit sharing
schemes;
|
|
|
(i)
|
Financial
Indebtedness incurred under bank guarantees to be issued to any insurer
of
any member of the Group (other than the
Company);
|
|
|
(j)
|
Financial
Indebtedness incurred by BidCo, the Company or Heidelberg Cement
Finance
B.V. under any bank guarantees to be issued in support of the liability
of
BidCo under the Loan Notes;
|
|
|
(k)
|
Financial
Indebtedness incurred by BidCo under the Loan Notes;
or
|
|
|
(1)
|
Financial
Indebtedness which does not (when aggregated with the amount of any
other
Financial Indebtedness of any member of the Group (other than the
Company
or any Finance Subsidiary) not otherwise permitted under the above
paragraphs) exceed at any time EUR n n n
(or its
equivalent).
|
"Permitted
Guarantees" means:
|
|
(a)
|
existing
Guarantees listed in Schedule 14 (Existing
Guarantees);
|
|
|
(b)
|
Guarantees
granted pursuant to or in connection with hedging instruments entered
into
in the ordinary course of business;
|
|
|
(c)
|
Guarantees
granted pursuant to or in connection with the Finance Documents or
the
Acquisition;
|
|
|
(d)
|
Guarantees
granted in the ordinary course of
business;
|
|
|
(e)
|
Guarantees
granted by a member of the Group to secure obligations of another
member
of the Group (other than a guarantee by a member of the Group (other
than
the Company or any Finance Subsidiary) to secure Financial Indebtedness
of
the Company or any Finance
Subsidiary);
|
|
|
(f)
|
any
Guarantee given for the benefit of a purchaser in connection with
any
disposal (whether by way of sale or otherwise) permitted under this
Agreement;
|
|
|
(g)
|
Guarantees
granted to a lessor or seller of real property to be used for the
extraction of raw materials to secure payment of lease or purchase
price
instalments falling due depending on the progress of such extraction,
provided that the aggregate principal amount secured by such Guarantees
does not exceed EUR n n n
(or its equivalent) at any time;
|
|
|
(h)
|
Guarantees
granted to secure obligations of any Permitted Joint Venture in a
principal amount which when aggregated with the principal amount
guaranteed by all other such guarantees and loans or credits granted
in
accordance with paragraph (f) of the definition of Permitted Loans
does
not exceed EUR n n n
(or its equivalent) at any time; or
|
|
|
(i)
|
any
other Guarantee, provided that the aggregate maximum
potential liability arising under all Guarantees granted in reliance
on
this paragraph does not at any time exceed EUR n n n
(or its equivalent) and, when aggregated with loans or credits granted
in
accordance with paragraph (h) of the definition of Permitted Loans,
does
not exceed EUR n n n
(or its equivalent) at any time.
|
"Permitted
Joint Venture" means a joint venture which is not a member of the Group
and in respect of which a members of the Group (a) own together at least 25.1%
of the ordinary voting capital and (b) together with one or more other
shareholder(s) of such joint venture, has joint control over the joint venture,
whether by way of shareholding, voting rights, agreement or otherwise. The
terms
"joint venture" and "joint control" shall have
the meaning attributed to them in IAS 31 as in effect on the date of this
Agreement.
"Permitted
Liquidation" has the meaning given to it in Clause 27.7
(Winding-up).
"Permitted
Loans" means:
|
|
(a)
|
existing
loans and/or credit listed in Schedule 15 (Existing
Loans);
|
|
|
(b)
|
trade
credit extended on normal commercial terms and in the ordinary course
of
trading activities of the lending
entity;
|
|
|
(c)
|
any
loan granted by a member of the Group to any of its employees or
directors;
|
|
|
(d)
|
any
loan or credit with a term of not more than 12 months resulting from
deferred payments for Permitted
Disposals;
|
|
|
(e)
|
any
loan or credit with a term of not more than 12 months resulting from
advanced payments for Permitted
Acquisitions;
|
|
|
(f)
|
any
loan or credit extended to Permitted Joint Ventures in an amount
which
when aggregated with any other such loans or credits and any principal
amount guaranteed pursuant to Permitted Guarantees paragraph (h)
of the
definition of Permitted Guarantees does not exceed EUR n n n
(or its equivalent) at any time;
|
|
|
(g)
|
any
loan or credit granted with the prior consent of the Majority Lenders;
or
|
|
|
(h)
|
any
loan or credit granted by a member of the Group which when aggregated
with
the amount of any other loan or credit not otherwise permitted under
the
above paragraphs does not at any time exceed EUR n n n
(or its equivalent) and, when aggregated with any principal amount
guaranteed pursuant to paragraph (i) of the definition of Permitted
Guarantees does not exceed EUR n n n
(or its equivalent) at any time.
|
"Permitted
Security" means:
|
|
(a)
|
existing
Security listed in Schedule 9 (Existing Security) securing
Financial Indebtedness outstanding on the date of this Agreement
(or any
refinancing thereof, subject to no increase of the principal amount
secured);
|
|
|
(b)
|
any
Security created to secure Financial Indebtedness owed to a member
of the
Group (other than loans from a Finance Subsidiary to any member of
the
Group);
|
|
|
(c)
|
any
Security arising by operation of law (or by agreement having the
same
effect) and in the ordinary course of business and not due to a
default;
|
|
|
(d)
|
any
Security over or affecting any asset acquired by a member of the
Group
after the date of this Agreement,
if:
|
|
|
(i)
|
such
Security was not created in contemplation of the acquisition of that
asset
by such member of the Group;
|
|
|
(ii)
|
the
principal amount secured has not been increased in contemplation
of or
since the acquisition of that asset by such member of the Group;
and
|
|
|
(iii)
|
the
Security is removed or discharged within six months of the date of
acquisition of such asset;
|
|
|
(e)
|
any
Security over or affecting any asset of any entity which becomes
a member
of the Group after the date of this Agreement (including, without
limitation, the Target and its Subsidiaries), where the Security
was
created prior to the date on which the relevant entity became a member
of
the Group (or thereafter due to an obligation to create such Security
assumed prior to the date on which such entity became a member of
the
Group), if:
|
|
|
(i)
|
the
Security was not created or the obligation to create such Security
was not
assumed in contemplation of such entity becoming a member of the
Group;
|
|
|
(ii)
|
the
principal amount secured has not been increased in contemplation
of such
entity becoming, or since such entity became, a member of the Group;
and
|
|
|
(iii)
|
the
Security is removed or discharged within six months after the date
such
entity became a member of the Group, provided that no
such discharge shall be required if and to the extent the principal
amount
of the Financial Indebtedness secured by such Security does not,
when
aggregated with the principal amount of any other Financial Indebtedness
secured by Security outstanding in reliance on this sub-paragraph,
exceed
an amount corresponding to n n n
of the consolidated total assets of the Group, calculated on the
basis of
the consolidated financial statements of the Group as of 31 December
2006;
|
|
|
(f)
|
any
Security arising in connection with conditional sale or retention
of title
arrangements entered into in the ordinary course of
business;
|
|
|
(g)
|
any
Security arising under general business conditions in the ordinary
course
of business, including without
limitation:
|
|
|
(i)
|
under
the general business conditions of any bank or financial institution
with
which a member of the Group maintains a banking relationship in the
ordinary course of business;
|
|
|
(ii)
|
the
right to call for margin; and
|
|
|
(iii)
|
in
respect of hedging activities in the Group's ordinary course of business,
including in particular in respect of energy and
commodities;
|
|
|
(h)
|
any
Security arising pursuant to or in connection with
any:
|
|
|
(i)
|
cash
management arrangements;
|
|
|
(ii)
|
securities
transactions; or
|
|
|
(iii)
|
framework/master
agreements relating to derivatives
transactions,
|
in
each
case made with a bank or financial institution in the ordinary course of the
relevant member of the Group's treasury activities;
|
|
(i)
|
any
Security created or subsisting over any asset held in any securities
depositary or any clearing house pursuant to the standard terms and
procedures of the relevant securities depositary or clearing house
applicable in the normal course of
trading;
|
|
|
(j)
|
any
Security arising pursuant to or in connection with any securities
lending
transactions (including without limitation repurchase transactions)
entered into in the ordinary course of treasury activities in the
context
of the Group taken as a whole;
|
|
|
(k)
|
any
Security created or subsisting in order to comply with the requirements
of
section 8a of the German Altersteilzeitgesetz and of section 7d
of the German Social Security Code (Sozialgesetzbuch
IV);
|
|
|
(1)
|
any
Security created or subsisting over cash deposited in escrow in connection
with Permitted Acquisitions;
|
|
|
(m)
|
any
Security created or subsisting with the prior consent of the Majority
Lenders;
|
|
|
(n)
|
any
Security created or subsisting over any cash securing the liability
of
BidCo under the Loan Notes and/or under any guarantee issued by or
on
behalf of Bidco as permitted under paragraph (c) of the definition
of
Permitted Guarantees or paragraph (j) of the definition of Permitted
Financial Indebtedness;
|
|
|
(o)
|
any
other Security created or outstanding not permitted under the preceding
paragraphs, but only if and to the extent the aggregate principal
amount
secured by all Security created or outstanding in reliance to this
paragraph does not at any time exceed EUR n n n
(or its equivalent).
|
"Permitted
Transaction" means a Permitted Transformation, a Permitted Disposal or
a Permitted Liquidation.
"Permitted
Transformation" means:
|
|
(a)
|
any
Transformation involving members of the Group only;
or
|
|
|
(b)
|
any
other Transformation implemented with the prior consent of the Majority
Lenders.
|
"Press
Release" means an Offer Press Release or a Scheme Press
Release.
"Qualifying
Lender" has the meaning given to it in Clause 17 (Tax gross-up and
indemnities).
"Quotation
Day" means, in relation to any period for which an interest rate is to
be determined:
|
|
(a)
|
(if
the currency is euro) two TARGET Days before the first day of that
period;
|
|
|
(b)
|
(if
the currency is domestic sterling) the first day of that period;
or
|
|
|
(c)
|
(for
any other currency) two Business Days before the first day of that
period,
|
unless
market practice differs in the European interbank market for a currency, in
which case the Quotation Day for that currency will be determined by the Agent
in accordance with market practice in the European interbank market (and if
quotations would normally be given by leading banks in the European interbank
market on more than one day, the Quotation Day will be the last of those
days).
"Reduction"
has the meaning given to such term in the definition of "Scheme
Date".
"Reference
Banks" means Deutsche Bank Luxembourg S.A, The Royal Bank of Scotland
pic and such other bank agreed between the Agent and the Company or such other
banks as may be appointed by the Agent in consultation with the
Company.
"Relevant
Period" means each period of twelve months ending on the last day of
the Company's financial year and each period of twelve months ending on the
last
day of the first half of the Company's financial year.
"Repeated
Representations" means each of the representations set out in Clauses
23.1 (Status) to 23.5 (Validity and admissibility in
evidence), Clause 23.9 (No default), Clause 23.11 (Financial
Statements), Clause 23.12 (Pari passu ranking), Clause 23.13
(No proceedings pending or threatened), Clause 23.14 (Environmental
laws and licences) and Clause 23.15 (Environmental
releases).
"Resignation
Letter" means a letter substantially in the form set out in Schedule 7
(Form of Resignation Letter).
"Revolving
Facility" means the revolving loan facility made available under this
Agreement as described in paragraph (d) of Clause 2 (The
Facilities).
"Revolving
Facility Commitment" means:
|
|
(a)
|
in
relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Revolving Facility Commitment"
in
Part IIA of Schedule 1 (The Original Parties) and the amount of
any other Revolving Facility Commitment transferred to it under this
Agreement; and
|
|
|
(b)
|
in
relation to any other Lender, the amount in the Base Currency of
any
Revolving Facility Commitment transferred to it under this
Agreement,
|
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Revolving
Facility Loan" means a loan made or to be made under the Revolving
Facility or the principal amount outstanding for the time being of that
loan.
"Rollover
Loan" means one or more Revolving Facility Loans:
|
|
(a)
|
made
or to be made on the same day that a maturing Revolving Facility
Loan is
due to be repaid;
|
|
|
(b)
|
the
aggregate amount of which is equal to or less than the maturing Revolving
Facility Loan;
|
|
|
(c)
|
in
the same currency as the maturing Revolving Facility Loan (unless
it arose
as a result of the operation of Clause 9.2 (Unavailability of a
currency)); and
|
|
|
(d)
|
made
or to be made to the same Borrower for the purpose of refinancing
a
maturing Revolving Facility Loan.
|
"Scheme"
means the scheme of arrangement under section 425 of the Companies Xxx 0000
which is or may be proposed by the Target to its shareholders pursuant to which
BidCo will become the only shareholder of the Target.
"Scheme
Date" means the date on which an office copy of the Court Orders
sanctioning the Scheme and the reduction of share capital of the Target under
Section 137 of the Companies Xxx 0000 provided for by the Scheme (the
"Reduction") are delivered to the Registrar of Companies and
the issue by the Registrar of Companies of a certificate under Section 138
of
the Companies Xxx 0000 in relation to the Reduction or the last date on which
any of the foregoing occur if occurring on different dates.
"Scheme
Document" means the document to be sent to the shareholders of the
Target containing the details of the Scheme and convening a court approved
meeting of the shareholders of the Target to seek their approval of the
Scheme.
"Scheme
Press Release" means the press release to be made by or on behalf of
BidCo and the Target announcing a firm intention to implement the Acquisition
pursuant to the Scheme.
"Screen
Rate" means:
|
|
(a)
|
in
relation to EURIBOR, the percentage rate per annum determined by
the
Banking Federation of the European Union for the relevant period;
and
|
|
|
(b)
|
in
relation to LIBOR, the British Bankers' Association Interest Settlement
Rate for the relevant currency and
period,
|
displayed
on the appropriate page of the Reuters screen. 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
Lenders.
"Security"
means a mortgage, charge, pledge, lien or other in rem security interest
(dingliche Sicherheit) securing any obligation of any person or any
other agreement or arrangement having a similar effect where one of the reasons
behind such agreement or arrangement is to secure any obligation of any
person.
"Selection
Notice" means a notice substantially in the form set out in Part II of
Schedule 3 (Requests) given in accordance with Clause 14 (Interest
Periods) or as the case may be, Clause 9 (Optional Currencies) in
relation to Facility A, Facility B or Facility C.
"Specified
Disposals Letter" means the letter from the Company to the Arrangers
dated 4 May 2007 identifying certain assets of the Group which may be disposed
of.
"Specified
Time" means a time determined in accordance with Schedule 11
(Timetables).
"Subsidiary"
means in relation to any person, an entity which is controlled directly or
indirectly by that person and, for these purposes, "control"
means:
|
|
(a)
|
the
direct or indirect ownership of a majority of the voting share capital
of
such entity;
|
|
|
(b)
|
having
the right to appoint a majority of the board of directors or supervisory
board (or like board and in any case to the extent elected by the
shareholders) of such entity; or
|
|
|
(c)
|
having
the power to direct the management or policies of the entity, whether
by
contract or otherwise.
|
"Syndication
Date" means the date on which the Arranger notifies the Company that a
successful general syndication has occurred and the relevant Lenders become
party to this Agreement.
"Takeover
Code" means The City Code on Takeover and Mergers.
"Target"
means Xxxxxx plc, a public limited company established in England and Wales
and
listed in London on the Official List of the London Stock Exchange.
"TARGET"
means Trans-European Automated Real-time Gross Settlement Express Transfer
payment system.
"TARGET
Day" means any day on which TARGET is open for the settlement of
payments in euro.
"Target
Group" means the Target and its Subsidiaries from time to time but
excluding for the purposes of Clause 27.16 (Clean-up Period) any member
of the Group which at the date it became a member of the Group was not a member
of the Target Group and which is contributed to the Target or any of its
Subsidiaries.
"Target
Shares" means all of the shares of the Target and all warranties and
options in respect of the share capital of the Target.
"Tax"
means any tax, levy, impost, duty or other charge or withholding of a similar
nature (including any penalty or interest payable in connection with any failure
to pay or any delay in paying any of the same).
"Term
Facility" means Facility A, Facility B or Facility C.
"Term
Loan" means a Facility A Loan, a Facility B Loan or a Facility C
Loan.
"Termination
Date" means:
|
|
(a)
|
in
relation to Facility A, the date falling two years after the date
of this
Agreement;
|
|
|
(b)
|
in
relation to Facility B, the date falling three years after the date
of
this Agreement;
|
|
|
(c)
|
in
relation to Facility C, 30 December 2011;
and
|
|
|
(d)
|
in
relation to the Revolving Facility, the date falling five years after
the
date of this Agreement.
|
"Total
Commitments" means the aggregate of the Total Facility A Commitments,
the Total Facility B Commitments, the Total Facility C Commitments and the
Total
Revolving Facility Commitments.
"Total
Euro Swingline Commitments" means the aggregate of the Euro Swingline
Commitments, being EUR 500,000,000 at the date of this Agreement.
"Total
Facility A Commitments" means the aggregate of the Facility A
Commitments, being GBP 5,330,000,000 at the date of this Agreement.
"Total
Facility B Commitments" means the aggregate of the Facility B
Commitments, being GBP 3,420,000,000 at the date of this Agreement.
"Total
Facility C Commitments" means the aggregate of the Facility C
Commitments, being EUR 2,400,000,000 at the date of this Agreement.
"Total
Revolving Facility Commitments" means the aggregate of the Revolving
Facility Commitments, being EUR 1,000,000,000 at the date of this
Agreement.
"Transfer
Certificate" means a certificate substantially in the form set out in
Schedule 5 (Form of Transfer Certificate) or any other form agreed
between the Agent and the Company.
"Transaction
Costs" means any costs, fees, expenses or taxes incurred by the
Company, BidCo and/or any other member of the Group in connection with or for
the purposes of the Acquisition and its financing.
"Transfer
Date" means, in relation to an assignment and transfer by way of
assumption of contract (Vertragsübernahme) pursuant to Clause 28.5
(Procedure for assignment and transfer by way of assumption of contract
(Vertragsübernahme)), the later of:
|
|
(a)
|
the
proposed Transfer Date specified in the Transfer Certificate;
and
|
|
|
(b)
|
the
date on which the Agent accepts the Transfer
Certificate.
|
"Transformation"
has the meaning given to it in Clause 26.5 (Merger).
"Unconditional
Date" means the date on which the Offer has become unconditional in all
respects.
"Unpaid
Sum" means any sum due and payable but unpaid by an Obligor under the
Finance Documents.
"Utilisation"
means a utilisation of a Facility.
"Utilisation
Date" means the date of a Utilisation, being the date on which the
relevant Loan is to be made.
"Utilisation
Request" means:
|
|
(a)
|
in
the case of a Utilisation of Facility A, Facility B or Facility C
or the
Revolving Facility a notice substantially in the form set out in
Part I A
of Schedule 3 (Requests);
and
|
|
|
(b)
|
in
the case of a Utilisation of the Euro Swingline Facility a notice
substantially in the form set out in Part IB of Schedule 3
(Requests).
|
"VAT"
means value added tax as provided for in the Value Added Tax Act
(Umsatzsteuergesetz) and any other tax of a similar
nature.
|
1.2
|
Construction
|
|
|
(a)
|
Unless
a contrary indication appears any reference in this Agreement
to:
|
|
|
(i)
|
the
"Agent", the "Arranger", any
"Finance Party", any "Lender", any
"Obligor" or any "Party" shall be
construed so as to include its successors in title, permitted assigns
and
permitted transferees;
|
|
|
(ii)
|
"assets"
includes present and future properties, revenues and rights of every
description;
|
|
|
(iii)
|
"director"
includes any statutory legal representative(s) (organschaftlicher
Vertreter) of a person pursuant to the laws of its jurisdiction of
incorporation, including but not limited to, in relation to a person
incorporated or established in Germany, a managing director
(Geschäftsführer)
or member of the board of directors (Vorstand) provided
that "director" in relation to a Dutch Borrower
means a managing director (bestuurder) and "board of
directors" means its managing board
(Bestuur);
|
|
|
(iv)
|
a
"Finance Document" or any other agreement or instrument
is a reference to that Finance Document or other agreement or instrument
as amended, novated, supplemented, extended, replaced or
restated;
|
|
|
(v)
|
"Group"
includes all entities which are a Subsidiary of the Company and would
need
to be consolidated if financial statements had to be prepared by
the
Company at such date;
|
|
|
(vi)
|
"indebtedness"
includes any obligation (whether incurred as principal or as surety)
for
the payment or repayment of money, whether present or future, actual
or
contingent;
|
|
|
(vii)
|
an
"Interest Period" includes each period determined under
this Agreement by reference to which interest on a Euro Swingline
Loan is
calculated;
|
|
|
(viii)
|
a
"Lender" includes a Euro Swingline Lender unless the
context otherwise requires;
|
|
|
(ix)
|
a
"person" includes any individual, firm, company,
corporation, government, state or agency of a state or any association,
trust, joint venture, consortium or partnership (whether or not having
separate legal personality);
|
|
|
(x)
|
a
"regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the force
of law)
of any governmental, intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other authority or
organisation;
|
|
|
(xi)
|
a
provision of law is a reference to that provision as amended or
re-enacted; and
|
|
|
(xii)
|
a
time of day is a reference to London
time.
|
|
|
(b)
|
Where
the Company undertakes to "procure" or "ensure" compliance with any
term
of any Finance Document by any Subsidiary which is a Minor Company,
the
Company shall be deemed to have complied with its obligations to
"procure"
or "ensure" compliance if it has exercised diligently the voting,
control,
direction or similar rights available to it with a view to "procure"
or
"ensure" such compliance.
|
|
|
(c)
|
Section,
Clause and Schedule headings are for ease of reference
only.
|
|
|
(d)
|
Unless
a contrary indication appears, a term used in any other Finance Document
or in any notice given under or in connection with any Finance Document
has the same meaning in that Finance Document or notice as in this
Agreement.
|
|
|
(e)
|
A
Borrower providing "cash cover" for an Ancillary Facility
means a Borrower paying an amount in the currency of the Ancillary
Facility to an interest-bearing account in the name of the Borrower
and
the following conditions being met:
|
|
|
(i)
|
the
account is with the relevant Ancillary Lender (or its
Affiliate);
|
|
|
(ii)
|
until
no amount is or may be outstanding under that Ancillary Facility,
withdrawals from the account may only be made to pay a Finance Party
amounts due and payable to it under this Agreement in respect of
that
Ancillary Facility; and
|
|
|
(iii)
|
the
Borrower has executed a security document over that account, in form
and
substance satisfactory to the Ancillary Lender with which that account
is
held, creating a first ranking security interest over that
account.
|
|
|
(f)
|
A
Default (including an Event of Default) is "continuing"
if it has not been remedied or
waived.
|
|
|
(g)
|
A
Borrower "repaying" or "prepaying"
Ancillary Outstandings means:
|
|
|
(i)
|
that
Borrower providing cash cover in respect of the Ancillary
Outstandings;
|
|
|
(ii)
|
the
maximum amount payable under the Ancillary Facility being reduced
or
cancelled in accordance with its terms;
or
|
|
|
(iii)
|
the
Ancillary Lender being satisfied that it has no further liability
under
the Ancillary Facility,
|
and
the
amount by which Ancillary Outstandings are repaid or prepaid under paragraphs
(g)(i) and (g)(ii) above is the amount of the relevant cash cover or
reduction.
|
|
(h)
|
An
amount borrowed includes any amount utilised under an Ancillary
Facility.
|
|
|
(i)
|
Any
certificates, certifications or other confirmation to be provided
by any
director of any member of the Group shall be provided without personal
liability except in the case of fraud or wilful
misconduct.
|
|
1.3
|
Dutch
Terms
|
| In this Agreement, where it relates to a Dutch entity, a reference to: |
|
|
(a)
|
a
necessary action to authorise, where applicable, includes without
limitation:
|
|
|
(i)
|
any
action required to comply with the Dutch Works Council Act (Wet op de
ondernemingsraden); and
|
|
|
(ii)
|
obtaining
unconditional positive advice (advies) from each competent works
council;
|
|
|
(b)
|
a
winding-up, administration or dissolution includes a Dutch entity
being:
|
|
|
(i)
|
declared
bankrupt (failliet
verklaard);
|
|
|
(ii)
|
dissolved
(ontbonden);
|
|
|
(c)
|
a
moratorium includes surseance van betaling and granted a moratorium
includes surseance
verleend;
|
|
|
(d)
|
a
trustee in bankruptcy includes a
curator;
|
|
|
(e)
|
an
administrator includes a
bewindvoerder;
|
|
|
(f)
|
a
receiver or an administrative
receiver does not include a curator
or bewindvoerder; and
|
|
|
(g)
|
an
attachment includes a
beslag.
|
|
1.4
|
Currency
Symbols and Definitions
|
| "EUR" and "euro" denote the single currency unit of the Participating Member States, "$" and "dollars" denote the lawful currency of the United States of America, "£" , "GBP" and "sterling" denote the lawful currency of the United Kingdom and "JPY", "¥" and "yen" denote the lawful currency of Japan. |
|
1.5
|
This
Agreement is made in the English language. For the avoidance of doubt,
the
English language version of this Agreement shall prevail over any
translation of this Agreement. However, where a German translation
of a
word or phrase appears in the text of this Agreement, the German
translation of such word or phrase shall
prevail.
|
SECTION
2
THE
FACILITIES
|
2.1
|
The
Facilities
|
| Subject to the terms of this Agreement, the Lenders make available: |
|
|
(a)
|
a
multicurrency term loan facility in an aggregate amount equal to
the Total
Facility A Commitments;
|
|
|
(b)
|
a
multicurrency term loan facility in an aggregate amount equal to
the Total
Facility B Commitments;
|
|
|
(c)
|
a
multicurrency term loan facility in an aggregate amount (in the Base
Currency) which is equal to the Total Facility C Commitments;
and
|
|
|
(d)
|
a
multicurrency revolving loan facility in an aggregate amount equal
to the
Total Revolving Facility
Commitments.
|
The
Term
Facilities will be available to HeidelbergCement AG and HeidelbergCement Finance
B.V. and the Revolving Facility will be available to all Borrowers,
provided that Facility A will, for drawings to be made for the
purpose set out in paragraph (a)(viii) of Clause 3.1 (Purpose), only be
available to HeidelbergCement AG.
In
addition, subject to the terms of this Agreement and the Ancillary Documents,
an
Ancillary Lender may make available an Ancillary Facility to HeidelbergCement
AG
or HeidelbergCement Finance B.V. in place of part of its Commitment under
Facility B.
|
2.2
|
Base
Currency Redenomination
|
|
|
(a)
|
Any
request from the Company to the Agent requesting the occurrence of
a Base
Currency Redenomination Date must:
|
|
|
(i)
|
be
delivered in writing no later than the date which is five Business
Days
prior to the proposed Base Currency Redenomination
Date;
|
|
|
(ii)
|
be
countersigned by the Financial Advisor;
and
|
|
|
(iii)
|
relate
to the whole of Facility A and/or the whole of Facility
B.
|
|
|
(b)
|
The
Agent shall determine on the date which is three Business Days prior
to
the relevant Base Currency Redenomination Date (i) the Base Currency
Amount
(for the new Base Currency applicable after that Base Currency
Redenomination Date) for all Facility A Loans and/or Facility B Loans
and
(ii) the Facility A Commitment and/or Facility B Commitment of each
Lender
under Facility A and/or Facility B as of that Base Currency Redenomination
Date.
|
|
2.3
|
Finance
Parties' rights and
obligations
|
|
|
(a)
|
The
obligations of each Finance Party under the Finance Documents are
several
and do not constitute a joint obligation (Ausschluβ
der gesamtschuldnerischen Haftung). Failure by a Finance Party to
perform its obligations under the Finance Documents does not affect
the
obligations of any other Party under the Finance Documents. No Finance
Party is responsible for the obligations of any other Finance Party
under
the Finance Documents.
|
|
|
(b)
|
The
rights of each Finance Party under or in connection with the Finance
Documents are separate and independent rights and do not constitute
a
joint creditorship (Ausschluβ
der Gesamtgläubigerschaft) and any debt arising under the Finance
Documents to a Finance Party from an Obligor shall, except as otherwise
set out in this Agreement or any other Finance Document, be a separate
and
independent debt (Ausschluβ
der gesamtschuldnerischen
Haftung).
|
|
|
(c)
|
A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance
Documents.
|
|
3.
|
|
3.1
|
Purpose
|
|
|
(a)
|
Each
Borrower shall apply all amounts borrowed by it under the Term Facilities
in or towards:
|
|
|
(i)
|
directly
and/or indirectly financing the payment of cash consideration due
to the
shareholders of Target in respect of the acquisition by BidCo of
up to
100% of the issued share capital of Target by way of a Scheme or
an Offer
(whether in relation to the maximum cash consideration payable in
respect
of any Offer or Scheme, any additional Target Shares which may have
to be
acquired as a result of conversion rights, warrants or options, any
parallel cash offers the Takeover Code may require to be made in
respect
of other classes of Target securities (if any) and any consideration
required to squeeze out non-assenting minority shareholders in Target
under the compulsory acquisition procedures under Part 28 of the
Companies
Act 2006);
|
|
|
(ii)
|
on
the Acquisition Closing, refinancing of Financial Indebtedness incurred
by
the Company to fund open market purchases outside the Scheme or Offer
(including the DB Facility);
|
|
|
(iii)
|
refinancing
existing Financial Indebtedness of the Group in an amount of up to
EUR
n n n;
|
|
|
(iv)
|
refinancing
certain existing Financial Indebtedness of Target and its Subsidiaries
in
an aggregate amount of up to EUR n n n;
|
|
|
(v)
|
funding,
as the case may be, of n n n;
|
|
|
(vi)
|
payment
of Transaction Costs;
|
|
|
(vii)
|
funding
payments under or to cash collateralise the Loan Notes;
and
|
|
|
(viii)
|
prior
to the Acquisition Closing, in the case of Facility A only and
only up to
EUR n n n
(or its equivalent in GBP) to finance or refinance the consideration
payable to Target's shareholders in respect of on or off-market
purchases
of shares of Target, including the refinancing of Financial Indebtedness
incurred by the Company to finance such
consideration.
|
|
|
(b)
|
Each
Borrower shall apply all amounts borrowed by it under Revolving Facility
towards the general corporate and working capital purposes of the
Group
(including, for the avoidance of doubt, payment of Transaction Costs
and
refinancing of existing working capital
lines).
|
|
3.2
|
Monitoring
|
| No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement. |
|
3.3
|
Conversion
from Scheme to Offer
|
| At any time before the Scheme Date, the Company may give written notice to the Agent (an "Offer Conversion Notice") that it will withdraw the Scheme and/or launch an Offer instead provided that if an Offer is launched the terms of this Agreement applicable to an Offer are complied with and provided further that the terms of any Offer made after the issue of an Offer Conversion Notice must not (save as permitted under this Agreement) deviate materially from the terms set out in the Scheme Press Release save to the extent required to take into account the Acquisition being made by way of an Offer rather than a Scheme. Any such Offer Conversion Notice shall be irrevocable. |
|
4.1
|
Initial
conditions precedent
|
|
|
(a)
|
Save
as set out in paragraph (b) below, no Borrower may deliver a Utilisation
Request unless the Agent has received all of the documents and other
evidence listed in Part I and, except for the delivery of the respective
Utilisation Requests, Part II of Schedule 2 (Conditions
precedent) which, unless otherwise set out therein, must be in form
and substance satisfactory to the Agent, provided that
the Lenders will only be obliged to comply with Clause 5.4 (Lender's
participation) in relation to any Utilisation if the Utilisation
Requests specified in Part II of Schedule 2 (Conditions
precedent) have been submitted no later than on the Specified Time
applicable to such Utilisation. The Agent shall notify the Company
(with a
copy to be sent to the financial advisor appointed by the Company
in
connection with the Acquisition and notified to the Agent, the
"Financial Advisor")) and the Lenders promptly upon being
so satisfied or upon receipt, as applicable. At any time upon request
of
the Company the Agent will confirm to the Company (with a copy to
the
Financial Advisor) which of the documents and other evidence listed
in
Part I and II of Schedule 2 (Conditions Precedent) it has
received, where applicable, in form and substance satisfactory to
it.
|
|
|
(b)
|
In
relation to any Utilisations to be made for the purpose set out in
paragraph (a)(viii) of Clause 3.1 (Purpose) the Company may not
deliver a Utilisation Request unless the Agent has received all of
the
documents and other evidence listed in Part I and in paragraph (a)
under
the heading "Other documents and evidence" of Part II of Schedule
2
(Conditions precedent) which must be in form and substance
satisfactory to the Agent. The Agent shall notify the Company and
the
Lenders promptly upon being so
satisfied.
|
|
4.2
|
Further
conditions precedent
|
|
|
(a)
|
The
Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) in relation to a Utilisation (other than one to which
Clause 4.5 (Utilisations during the Certain Funds Period)
applies) if on the date of the Utilisation Request and on the proposed
Utilisation Date:
|
|
|
(i)
|
in
the case of a Rollover Loan, no Event of Default is continuing
or would
result from the proposed Loan and, in the case of any other Loan,
no
Default is continuing or would result from the proposed Loan;
and
|
|
|
(ii)
|
the
Repeated Representations made by each Obligor are true in all
material
respects.
|
|
|
(b)
|
The
Lenders will only be obliged to comply with Clause 9.3 (Change of
currency) if, on the first day of an Interest Period, no Default is
continuing or would result from the change of currency and the Repeated
Representations made by each Obligor are true in all material
respects.
|
|
4.3
|
Conditions
relating to Optional
Currencies
|
|
|
(a)
|
A
currency (other than USD, GBP or JPY which are committed Optional
Currencies) will constitute an Optional Currency in relation to a
Loan
if:
|
|
|
(i)
|
it
is readily available in the amount required and freely convertible
into
the Base Currency in the European interbank market on the Quotation
Day
and the Utilisation Date for that Loan;
and
|
|
|
(ii)
|
it
has been approved by the Agent (acting on the instructions of all
the
Lenders) on or prior to receipt by the Agent of the relevant Utilisation
Request or Selection Notice for that
Loan.
|
|
|
(b)
|
If
the Agent has received a written request from the Company for a currency
to be approved under paragraph (a)(ii) above, the Agent will confirm
to
the Company by the Specified Time:
|
|
|
(i)
|
whether
or not the Lenders have granted their approval;
and
|
|
|
(ii)
|
if
approval has been granted, the minimum amount for any subsequent
Utilisation in that currency.
|
|
4.4
|
Maximum
number of Loans
|
|
|
(a)
|
A
Borrower may not deliver a Utilisation Request if as a result of
the
proposed Utilisation:
|
|
|
(i)
|
16
or more Term Loans would be outstanding;
or
|
|
|
(ii)
|
16
or more Revolving Facility Loans would be
outstanding.
|
|
|
(b)
|
A
Borrower may not request that a Term Loan be divided if, as a result
of
the proposed division, 16 or more Term Loans would be
outstanding.
|
|
|
(c)
|
Any
Loan made by a single Lender under Clause 9.2 (Unavailability of a
currency) shall not be taken into account in this Clause
4.4.
|
|
4.5
|
Utilisations
during the Certain Funds
Period
|
|
|
(a)
|
Subject
to Clause 4.1 (Initial conditions precedent), during the Certain
Funds Period, the Lenders will in any event be obliged to comply
with
Clause 5.4 (Lenders' participation) in relation to a Certain
Funds Utilisation, except where on the date of the Utilisation Request
and/or on the proposed Utilisation
Date:
|
|
|
(i)
|
a
Major Default is continuing or would result from the proposed Utilisation;
or
|
|
|
(ii)
|
any
of the Major Representations is not true in all material
respects.
|
|
|
(b)
|
During
the Certain Funds Period (save in circumstances where (i) pursuant
to
paragraph (a) above, a Lender is not obliged to comply with Clause
5.4
(Lenders' participation) and/or (ii) Clause 12.1
(Illegality) applies), none of the Finance Parties shall be
entitled to:
|
|
|
(i)
|
cancel
any of its Commitments to the extent to do so would prevent or limit
the
making of a Certain Funds
Utilisation;
|
|
|
(ii)
|
rescind,
terminate or cancel this Agreement or any of the Facilities or exercise
any similar right or remedy or make or enforce any claim under the
Finance
Documents it may have to the extent to do so would prevent or limit
the
making of a Certain Funds
Utilisation;
|
|
|
(iii)
|
refuse
to participate in the making of a Certain Funds Utilisation;
or
|
|
|
(iv)
|
exercise
any right to set-off or counterclaim in respect of a Utilisation
to the
extent that to do so would prevent or limit the making of a Certain
Funds
Utilisation; or
|
|
|
(v)
|
cancel,
accelerate under Clause 27 (Events of Default) or cause repayment
or
prepayment of any amounts owing hereunder or under any other Finance
Document to the extent to do so would prevent or limit the making
of a
Certain Funds Utilisation,
|
provided
that immediately upon the expiry of the Certain Funds Period all such
rights, remedies and entitlements shall be available to the Finance Parties
notwithstanding that they may not have been used or been available for use
during the Certain Funds Period.
SECTION
3
UTILISATION
|
5.1
|
Delivery
of a Utilisation Request
|
| A Borrower may utilise a Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time. |
|
5.2
|
Completion
of a Utilisation Request
|
|
|
(a)
|
Each
Utilisation Request is irrevocable and will not be regarded as having
been
duly completed unless:
|
|
|
(i)
|
it
identifies the Facility to be
utilised;
|
|
|
(ii)
|
the
proposed Utilisation Date is a Business Day within the Availability
Period
applicable to that Facility;
|
|
|
(iii)
|
the
currency and amount of the Utilisation comply with Clause 5.3
(Currency and amount); and
|
|
|
(iv)
|
the
proposed Interest Period complies with Clause 14 (Interest
Periods).
|
|
|
(b)
|
Only
one Loan may be requested in each Utilisation
Request.
|
|
5.3
|
Currency
and amount
|
|
|
(a)
|
The
currency specified in a Utilisation Request must be the Base Currency
or
an Optional Currency.
|
|
|
(b)
|
The
amount of the proposed Loan must
be:
|
|
|
(i)
|
if
the currency selected is the Base Currency, a minimum of euro 15,000,000
for each Term Facility (other than for Facility A and Facility B
prior to
the relevant Base Currency Redenomination Date where the minimum
amount
shall be GBP 10,000,000) and euro 10,000,000 for the Revolving Facility
or
in either case, if less, the Available Facility;
or
|
|
|
(ii)
|
if
the currency selected is GBP, a minimum of GBP 10,000,000 for each
Term
Facility and GBP 10,000,000 for the Revolving Facility or in either
case,
if less, the Available Facility;
|
|
|
(iii)
|
if
the currency selected is USD, a minimum of USD 20,000,000 for each
Term
Facility and USD 10,000,000 for the Revolving Facility or in either
case,
if less, the Available Facility;
|
|
|
(iv)
|
if
the currency selected is JPY, a minimum amount of JPY 250,000,000
for each
Term Facility and JPY 100,000,000 for the Revolving Facility or in
either
case, if less, the Available
Facility;
|
|
|
(v)
|
if
the currency selected is an Optional Currency other than GBP, USD
and JPY,
the minimum amount specified by the Agent pursuant to paragraph (b)(ii)
of
Clause 4.3 (Conditions relating to Optional Currencies) or, if
less, the Available Facility; and
|
|
|
(vi)
|
in
any event such that its Base Currency Amount is less than or equal
to the
Available Facility.
|
-38-
|
|
(a)
|
If
the conditions set out in this Agreement have been met, each Lender
shall
make its participation in each Loan available by the Utilisation
Date
through its Facility Office.
|
|
|
(b)
|
The
amount of each Lender's participation in each Loan will be equal
to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to making the
Loan.
|
|
|
(c)
|
The
Agent shall determine the Base Currency Amount of each Loan which
is to be
made in an Optional Currency and shall notify each Lender of the
amount,
currency and the Base Currency Amount of each Loan and the amount
of its
participation in that Loan, in each case by the Specified
Time.
|
|
|
(a)
|
Facility
B and Facility C may only be utilised after Facility A has been drawn
in
full and Facility C may only be utilised after Facility B has been
drawn
in full, provided that Facility C may be utilised prior
to the utilisation of Facility B in full for the purpose of refinancing
the Existing 2004 Facility and the DB
Facility.
|
Further,
Facility C shall only be utilised for a purpose other than refinancing of the
Existing 2004 Facility and DB Facility if the aforementioned Existing 2004
Facility and DB Facility have been repaid on or before the proposed Utilisation
Date for that Facility C Loan to be made.
Finally,
prior to the end of the Certain Funds Period, any Utilisation under Facility
A
may only be applied towards a purpose set out in paragraph (a)(i) and (viii)
of
Clause 3.1 (Purpose).
|
|
(b)
|
Prior
to the end of the Certain Funds Period, the Borrowers may deliver
Utilisation Requests for Facility B Loans to be made for any purpose
other
than as described in paragraph (a)(i) of Clause 3.1 (Purpose)
only up to an aggregate amount of the sum of GBP n n n
plus the Own Liquidity Amount, unless such Utilisation Request is
countersigned by the Financial
Advisor.
|
In
this
paragraph (b) "Own Liquidity Amount" means the amount (in GBP
calculated as of any settlement date) applied in any settlement of the purchase
price due to the Target's shareholders pursuant to the Offer or, as the case
may
be, Scheme which was not funded under the Facilities, as notified by the Company
to the Agent, such notification to be countersigned by the Financial
Advisor.
|
|
(c)
|
The
maximum aggregate amount of the Ancillary Commitments of the
Ancillary Lenders shall not at any time exceed the lower of GBP
300,000,000 and the aggregate amount of Loan Notes issued or certain
to be
issued by Bidco and/or the Company.
|
|
6.1
|
General
|
|
|
(a)
|
Clause
4.2 (Further conditions precedent) and 4.3 (Conditions
relating to Optional
Currencies);
|
|
|
(b)
|
Clause
5 (Utilisation - Loans);
|
|
|
(c)
|
Clause
9 (Optional currencies);
|
|
|
(d)
|
Clause
13 (Interest) as it applies to the calculation of interest on a
Loan but not default interest on an overdue amount;
and
|
|
|
(e)
|
Clause
14 (Interest Periods),
|
|
|
do
not apply to Euro Swingline Loans.
|
Subject
to the terms of this Agreement, the Euro Swingline Lenders referred to in
paragraph (e) of Clause 7.3 (Euro Swingline Lenders' participation)
make available to the Borrowers a euro swingline loan facility in an aggregate
amount equal to the Total Euro Swingline Commitments.
|
6.3
|
Each
Borrower shall apply all amounts borrowed by it under the Euro Swingline
Facility towards refinancing any note or other instrument maturing under a
euro
commercial paper programme. A Euro Swingline Loan may not be applied in
repayment or prepayment of another Euro Swingline Loan.
|
7.1
|
Delivery
of a Utilisation Request for Euro Swingline
Loans
|
A
Borrower may utilise the Euro Swingline Facility by delivery to the Agent of
a
duly completed Utilisation Request not later than the Specified
Time.
|
7.2
|
Completion
of a Utilisation Request for Euro Swingline
Loans
|
|
|
(a)
|
Each
Utilisation Request for a Euro Swingline Loan is irrevocable and
will not
be regarded as having been duly completed
unless:
|
|
|
(i)
|
it
identifies the Borrower;
|
|
|
(ii)
|
it
specifies that it is for a Euro Swingline
Loan;
|
|
|
(iii)
|
the
proposed Utilisation Date is a Business Day within the Availability
Period
applicable to the Revolving
Facility;
|
|
|
(iv)
|
the
Euro Swingline Loan is denominated in
euro;
|
|
|
(v)
|
the
amount of the proposed Euro Swingline Loan is an amount whose Base
Currency Amount is not more than the Available Euro Swingline Facility
and
is a minimum of euro 25,000,000 or, if less, the Available Euro Swingline
Facility; and
|
|
|
(vi)
|
the
proposed Interest Period:
|
|
|
(A)
|
does
not overrun the Termination Date applicable to the Revolving
Facility;
|
|
|
(B)
|
is
a period of not more than five TARGET Days;
and
|
|
|
(C)
|
ends
on a Business Day.
|
|
|
(b)
|
Only
one Euro Swingline Loan may be requested in each Utilisation
Request.
|
|
7.3
|
Euro
Swingline Lenders'
participation
|
|
|
(a)
|
If
the conditions set out in this Agreement have been met, each Euro
Swingline Lender shall make its participation in each Euro Swingline
Loan
available through its Facility Office in any Participating Member
State or
London.
|
|
|
(b)
|
The
Euro Swingline Lenders will only be obliged to comply with paragraph
(a)
above if on the date of the Utilisation Request and on the proposed
Utilisation Date:
|
|
|
(i)
|
no
Default is continuing or would result from the proposed Utilisation;
and
|
|
|
(ii)
|
the
Repeated Representations to be made by each Obligor are true in all
material respects.
|
|
|
(c)
|
Subject
to paragraph (c) below, the amount of each Euro Swingline Lender's
participation in each Euro Swingline Loan will be equal to the proportion
borne by its Available Euro Swingline Commitment to the Available
Euro
Swingline Facility immediately prior to making the Euro Swingline
Loan,
adjusted to take account of any limit applying under Clause 7.4
(Relationship with the Revolving
Facility).
|
|
|
(d)
|
The
Agent shall determine the Base Currency Amount of each Euro Swingline
Loan
and notify each Euro Swingline Lender of the amount of each Euro
Swingline
Loan and its participation in that Euro Swingline Loan in each case
by the
Specified Time.
|
|
|
(e)
|
In
case a Euro Swingline Lender is unable to participate in a Euro Swingline
Loan as contemplated in paragraph (a) above due to banks not being
generally open for business in the financial centre in which the
relevant
Facility Office is situated on the day on which the requested Euro
Swingline Loan is to be made, such Euro Swingline Lender or the relevant
Lender of which it is an Affiliate (each a "Non-Operating
Bank") shall not be required to participate in the relevant
Euro
Swingline Loan. Following receipt of a Utilisation Request
relating to a Euro Swingling Loan, the Agent (who shall incur no
liability
whatsoever towards any party to this Agreement regarding the accuracy
of
any such determination) shall determine in respect of each Euro Swingline
Lender or the relevant Lender of which it is an Affiliate and which
is not
a Non-Operating Bank (each an "Operating Banks" and
together with each other Operating Bank on such day, the
"Operating Bank") the proportion which the Available Euro
Swingline Commitment of such Operating Bank bears to the aggregate
amount
of all Available Euro Swingline Commitments of all Operating Banks
at such
time and notify the Operating Banks thereof. Each Operating Bank
shall
then participate in such Euro Swingline Loan in the proportion determined
by the Agent in respect of such Operating Bank pursuant to the preceding
sentence.
|
|
7.4
|
Relationship
with the Revolving
Facility
|
|
|
(a)
|
This
subclause applies when a Euro Swingline Loan is outstanding or is
to be
borrowed.
|
|
|
(b)
|
The
Revolving Facility may be used by way of Euro Swingline Loans. The
Euro
Swingline Facility is not independent of the Revolving
Facility.
|
|
|
(c)
|
Notwithstanding
any other term of this Agreement a Lender is only obliged to participate
in a Revolving Facility Loan or a Euro Swingline Loan to the extent
that
it would not result in the Base Currency Amount of its participation
(and
that of a Lender which is its Affiliate) in the Revolving Facility
Loans
and Euro Swingline Loans exceeding its Overall
Commitment.
|
|
|
(d)
|
Where,
but for the operation of paragraph (c) above, the Base Currency Amount
of
a Lender's participation (and that of a Lender which is its Affiliate)
in
the Revolving Facility Loans and Euro Swingline Loans would have
exceeded
its Overall Commitment, the excess will be apportioned among the
other
Lenders participating in the relevant Loan
pro rata according to their
relevant Commitments. This calculation will be applied as often as
necessary until the Loan is apportioned among the relevant Lenders
in a
manner consistent with paragraph (c)
above.
|
|
8.1
|
Repayment
of Euro Swingline Loans
|
|
|
(a)
|
Each
Borrower that has drawn a Euro Swingline Loan shall repay that Euro
Swingline Loan on the last day of its Interest
Period.
|
|
|
(b)
|
If
a Euro Swingline Loan is not repaid in full on its due date, the
Agent
shall (if requested to do so in writing by any affected Euro Swingline
Lender) set a date (the "Loss Sharing Date") on which
payments shall be made between the Lenders to re-distribute the unpaid
amount between them. The Agent shall give at least three Business
Days
notice to each affected Lender of the Loss Sharing Date and notify
it of
the amounts to be paid or received by
it.
|
|
|
(c)
|
On
the Loss Sharing Date each Lender must pay to the Agent its Proportion
of
the Unpaid Amount minus its (or its Affiliate's) Unpaid Swingline
Participation (if any). If this produces a negative figure for a
Lender no
amount need be paid by that Lender.
|
The
"Proportion" of a Lender means the proportion borne
by:
|
|
(i)
|
its
Revolving Facility Commitment (or, if the Total Revolving Facility
Commitments are then zero, its Revolving Facility Commitment immediately
prior to their reduction to zero) minus the Base Currency Amount
of its
participation (or that of a Lender which is its Affiliate) in any
outstanding Revolving Facility Loans and Euro Swingline Loans (but
ignoring its (or its Affiliate's) participation in the unpaid Euro
Swingline Loan): to
|
|
|
(ii)
|
the
Total Revolving Facility Commitments (or, if the Total Revolving
Facility
Commitments are then zero, the Total Revolving Facility Commitments
immediately prior to their reduction to zero) minus any outstanding
Revolving Facility Loans and Euro Swingline Loans (but ignoring the
unpaid
Euro Swingline Loan).
|
The
"Unpaid Amount" means, in relation to a Euro Swingline Loan,
any principal not repaid and/or any interest accrued but unpaid on that Euro
Swingline Loan calculated from the Utilisation Date to the Loss Sharing
Date.
The
"Unpaid Swingline Participation" of a Lender means that part of
the Unpaid Amount (if any) owed to that Lender (or its Affiliate) (before any
re-distribution under this Clause 8.1 (Repayment of Euro Swingline
Loans)).
|
|
(d)
|
Out
of the funds received by the Agent pursuant to sub-clause (c) the
Agent
shall pay to each Euro Swingline Lender an amount equal to the Shortfall
(if any) of that Euro Swingline Lender
where:
|
The
"Shortfall" of a Euro Swingline Lender is an amount equal to
its Unpaid Swingline Participation minus its (or its Affiliate's) Proportion
of
the Unpaid Amount.
|
|
(e)
|
If
the amount actually received by the Agent from the Lenders is insufficient
to pay the full amount of the Shortfall of all Euro Swingline Lenders
then
the amount actually received will be distributed amongst the Euro
Swingline Lenders pro rata to the Shortfall of each Euro
Swingline Lender.
|
|
|
(f)
|
|
|
|
(i)
|
Upon
a payment under this Clause 8.1, the paying Lender will be subrogated
to
the rights of the Euro Swingline Lenders which have shared in the
payment
received.
|
|
|
(ii)
|
If
and to the extent the paying Lender is not able to rely on its rights
under sub-paragraph (i) above, the relevant Borrower shall be liable
to
the paying Lender for a debt equal to the amount the paying Lender
has
paid under this paragraph.
|
|
|
(iii)
|
Any
payment under this paragraph does not reduce the obligations in aggregate
of any Obligor.
|
|
|
(a)
|
The
Borrower to which a Euro Swingline Loan has been made may prepay
at any
time the whole of that Euro Swingline
Loan.
|
|
|
(b)
|
Unless
a contrary indication appears in this Agreement, any part of the
Euro
Swingline Facility which is prepaid may be reborrowed in accordance
with
the terms of this Agreement.
|
|
8.3
|
|
|
(a)
|
The
rate of interest on each Euro Swingline Loan for its Interest Period
is
the Euro Swingline Rate.
|
|
|
(b)
|
The
Agent shall promptly notify the Euro Swingline Lenders and the relevant
Borrower of the Euro Swingline Rate applicable to a Euro Swingline
Loan.
|
|
|
(c)
|
Each
Borrower shall pay accrued interest on each Euro Swingline Loan made
to it
on the last day of its Interest
Period.
|
|
8.4
|
|
|
(a)
|
Each
Euro Swingline Loan has one Interest Period
only.
|
|
|
(b)
|
The
Interest Period for a Euro Swingline Loan must be selected in the
relevant
Utilisation Request.
|
|
|
(a)
|
The
Agent may perform its duties in respect of the Euro Swingline Facility
through an Affiliate acting as its
agent.
|
|
|
(b)
|
Notwithstanding
any other term of this Agreement and without limiting the liability
of any
Obligor under the Finance Documents, each Lender shall (in proportion
to
its share of the Total Revolving Facility Commitments or, if the
Total
Revolving Facility Commitments are then zero, to its share of the
Total
Revolving Facility Commitments immediately prior to their reduction
to
zero) pay to or indemnify the Agent, within three Business Days of
demand,
for or against any cost, loss or liability incurred by the Agent
or its
Affiliate (other than by reason of the Agent's or the Affiliate's
gross
negligence or wilful misconduct) in acting as Agent for the Euro
Swingline
Facility under the Finance Documents (unless the Agent or its Affiliate
has been reimbursed by an Obligor pursuant to a Finance
Document).
|
|
9.1
|
Selection
of currency
|
|
|
(a)
|
A
Borrower (or the Company on behalf of a Borrower) shall select the
currency of a Loan:
|
|
|
(i)
|
(in
the case of an initial Utilisation) in a Utilisation Request;
and
|
|
|
(ii)
|
(afterwards
in relation to a Term Loan made to it) in a Selection
Notice.
|
|
|
(b)
|
If
a Borrower (or the Company on behalf of a Borrower) fails to issue
a
Selection Notice in relation to a Term Loan, that Loan will remain
denominated for its next Interest Period in the same currency in
which it
is then outstanding.
|
|
|
(c)
|
If
a Borrower (or the Company on behalf of a Borrower) issues a Selection
Notice requesting a change of currency, which it may do so on up
to 5
occasions, and the first day of the requested Interest Period is
not a
Business Day for the new currency, the Agent shall promptly notify
the
Borrower and the Lenders and the Term Loan will remain in the existing
currency (with Interest Periods running from one Business Day until
the
next Business Day) until the next day which is a Business Day for
both
currencies, on which day the requested Interest Period will
begin.
|
|
|
(d)
|
At
no time may there be more than 5 different Optional Currencies outstanding
under the Facilities.
|
If
before
the Specified Time on any Quotation Day:
|
|
(a)
|
a
Lender notifies the Agent that the Optional Currency requested is
not
readily available to it in the amount required;
or
|
|
|
(b)
|
a
Lender notifies the Agent that compliance with its obligation to
participate in a Loan in the proposed Optional Currency would contravene
a
law or regulation applicable to it,
|
the
Agent
will give notice to the relevant Borrower to that effect by the Specified Time
on that day. In this event, any Lender that gives notice pursuant to this Clause
9.2 will be required to participate in the Loan in the Base Currency (in an
amount equal to that Lender's proportion of the Base Currency Amount or, in
respect of a Rollover Loan, an amount equal to that Lender's proportion of
the
Base Currency Amount of the Rollover Loan that is due to be made) and its
participation will be treated as a separate Loan denominated in the Base
Currency during that Interest Period.
|
|
(a)
|
If
a Term Loan is to be denominated in different currencies during two
successive Interest Periods:
|
|
|
(i)
|
if
the currency for the second Interest Period is an Optional Currency,
the
amount of that Loan in that Optional Currency will be calculated
by the
Agent as the amount of that Optional Currency equal to the Base Currency
Amount of that Loan at the Agent's Spot Rate of Exchange at the Specified
Time;
|
|
|
(ii)
|
if
the currency for the second Interest Period is the Base Currency,
the
amount of that Loan will be equal to the Base Currency
Amount;
|
|
|
(iii)
|
(unless
the Agent and the Borrower agree otherwise in accordance with paragraph
(b) below) the Borrower that has borrowed the Loan shall repay it
on the
last day of the first Interest Period in the currency in which it
was
denominated for that Interest Period;
and
|
|
|
(iv)
|
(subject
to Clause 4.2 (Further conditions precedent)) the Lenders shall
re-advance that Loan in the new currency in accordance with Clause
9.5
(Agent's calculations).
|
|
|
(b)
|
If
the Agent and the Borrower that has borrowed the Term Loan agree,
the
Agent shall:
|
|
|
(i)
|
apply
the amount paid to it by the Lenders pursuant to paragraph (a)(iv)
above
(or so much of that amount as is necessary) in or towards purchase
of an
amount in the currency in which that Facility A Loan is outstanding
for
the first Interest Period; and
|
|
|
(ii)
|
use
the amount it purchases in or towards satisfaction of the relevant
Borrower's obligations under paragraph (a)(iii)
above.
|
|
|
(c)
|
If
the amount purchased by the Agent pursuant to paragraph (b)(i) above
is
less than the amount required to be repaid by the relevant Borrower,
the
Agent shall promptly notify that Borrower and that Borrower shall,
on the
last day of the first Interest Period, pay an amount to the Agent
(in the
currency of the outstanding Term Loan for the first Interest Period)
equal
to the difference.
|
|
|
(d)
|
If
any part of the amount paid to the Agent by the Lenders pursuant
to
paragraph (a)(iv) above is not needed to purchase the amount required
to
be repaid by the relevant Borrower, the Agent shall promptly notify
that
Borrower and pay that Borrower, on the last day of the first Interest
Period that part of that amount (in the new
currency).
|
|
|
(a)
|
If
a Term Loan is to be denominated in the same Optional Currency during
two
successive Interest Periods, the Agent shall calculate the amount
of that
Term Loan in the Optional Currency for the second of those Interest
Periods (by calculating the amount of Optional Currency equal to
the Base
Currency Amount of that Term Loan at the Agent's Spot Rate of Exchange
at
the Specified Time) and (subject to paragraph (b)
below):
|
|
|
(i)
|
if
the amount calculated is less than the existing amount of that Term
Loan
in the Optional Currency during the first Interest Period, promptly
notify
the Borrower that has borrowed that Term Loan and that Borrower shall
pay,
on the last day of the first Interest Period, an amount equal to
the
difference; or
|
|
|
(ii)
|
if
the amount calculated is more than the existing amount of that Term
Loan
in the Optional Currency during the first Interest Period, promptly
notify
each Lender and, if no Default is continuing and the relevant Borrower
has
not instructed the Agent otherwise, each Lender shall, on the last
day of
the first Interest Period, pay its participation in an amount equal
to the
difference.
|
|
|
(b)
|
If
the calculation made by the Agent pursuant to paragraph (a) above
shows
that the amount of the Term Loan in the Optional Currency for the
second
of those Interest Periods converted into the Base Currency at the
Agent's
Spot Rate of Exchange at the Specified Time has increased or decreased
by
less than 5 per cent. compared to its Base Currency Amount (taking
into
account any payments made pursuant to (a) above), no notification
shall be
made by the Agent and no payment shall be required under paragraph
(a)
above.
|
|
|
(a)
|
All
calculations made by the Agent pursuant to this Clause 9 will take
into
account any repayment, prepayment, consolidation or division of Term
Loans
to be made on the last day of the first Interest
Period.
|
|
|
(b)
|
Each
Lender's participation in a Loan will, subject to paragraph (a) above,
be
determined in accordance with
paragraph (b) of
Clause 5.4 (Lenders'
participation).
|
|
10.1
|
Type
of Facility
|
An
Ancillary Facility may only be utilised by way of guarantee facility to secure
Financial Indebtedness of Bidco or the Company under the Loan
Notes.
|
10.2
|
Availability
|
|
|
(a)
|
The
Company and any Ancillary Lender agree that the relevant Ancillary
Lender
will provide the Ancillary Facility on a bilateral basis in place
of part
of that Ancillary Lender's unutilised Facility B Commitment (which
shall
(except for the purpose of determining the Majority Lenders) be reduced
by
the amount of the Ancillary Commitment under the Ancillary
Facility).
|
|
|
(b)
|
An
Ancillary Facility shall not be made available unless, not later
than 3
Business Days prior to the Ancillary Commencement Date for that Ancillary
Facility, the Agent has received from the
Company:
|
|
|
(i)
|
a
notice in writing requesting the establishment of that Ancillary
Facility
and specifying:
|
|
|
(A)
|
the
proposed Borrower(s) which may use the Ancillary
Facility;
|
|
|
(B)
|
the
proposed Ancillary Commencement Date and expiry date of the Ancillary
Facility;
|
|
|
(C)
|
the
proposed Ancillary Lender;
|
|
|
(D)
|
the
proposed Ancillary Commitment, the maximum amount of the Ancillary
Facility; and
|
|
|
(E)
|
the
proposed currency of the Ancillary Facility (if not denominated in
the
Base Currency);
|
|
|
(ii)
|
a
copy of the proposed Ancillary Document;
and
|
|
|
(iii)
|
any
other information which the Agent may reasonably request in connection
with an Ancillary Facility.
|
The
Agent
shall promptly notify the Company, the Ancillary Lender and the other Lenders
of
the establishment of an Ancillary Facility.
No
amendment or waiver of a term of any Ancillary Facility shall require the
consent of any Finance Party other than the relevant Ancillary Lender unless
such amendment or waiver itself relates to or gives rise to a matter which
would
require an amendment of or under this Agreement (including, for the avoidance
of
doubt, under this Clause). In such a case, the provisions of this Agreement
with
regard to amendments and waivers will apply.
|
|
(c)
|
Subject
to compliance with paragraph (b)
above:
|
|
|
(i)
|
the
Lender concerned will become an Ancillary Lender;
and
|
|
|
(ii)
|
the
Ancillary Facility will be
available,
|
with
effect from the date agreed by the Company and the Ancillary
Lender.
|
|
(a)
|
Except
as provided below, the terms of the Ancillary Facility will be those
agreed by the Ancillary Lender and the
Company.
|
|
|
(b)
|
However,
those terms:
|
|
|
(i)
|
must
be based upon normal commercial terms at that time (except as varied
by
this Agreement);
|
|
|
(ii)
|
may
allow only the Company or HeidelbergCement Finance B.V. to use the
Ancillary Facility;
|
|
|
(iii)
|
may
not allow the Ancillary Outstandings to exceed the Ancillary
Commitment;
|
|
|
(iv)
|
may
not allow the Ancillary Commitment of a Lender to exceed the Available
Commitment with respect to Facility B of that Lender;
and
|
|
|
(v)
|
must
require that the Ancillary Commitment is reduced to nil, and that
all
Ancillary Outstandings are repaid (or cash cover provided in respect
of
all the Ancillary Outstandings) not later than the Termination Date
for
Facility B (or such earlier date as the Facility B Commitment of
the
Ancillary Lender (or its Affiliate) is reduced to
zero).
|
|
|
(c)
|
If
there is any inconsistency between any term of the Ancillary Facility
and
any term of this Agreement, this Agreement shall prevail except for
(i)
Clause 36.3 (Day count convention) which shall not prevail for
the purposes of calculating fees, interest or commission relating
to the
Ancillary Facility.
|
|
|
(d)
|
Interest,
commission and fees on the Ancillary Facility are dealt with in Clause
16.5 (Interest, commission and fees on Ancillary
Facility).
|
|
|
(a)
|
An
Ancillary Facility shall cease to be available on the Termination
Date in
relation to Facility B or such earlier date on which its expiry date
occurs or on which it is cancelled in accordance with the terms of
this
Agreement.
|
|
|
(b)
|
If
an Ancillary Facility expires in accordance with its terms the Ancillary
Commitment of the Ancillary Lender shall be reduced to zero (and
its
Facility B Commitment shall be increased
accordingly).
|
|
|
(c)
|
No
Ancillary Lender may demand repayment or prepayment of any amounts
or
demand cash cover for any liabilities made available or incurred
by it
under its Ancillary Facility
unless:
|
|
|
(i)
|
the
Total Facility B Commitments have been cancelled in full, or all
outstanding Loans under Facility B have become due and payable
in
accordance with the terms of this Agreement, or the Agent has declared
all
outstanding Loans under Facility B immediately due and payable,
or the
expiry date of the Ancillary Facility occurs;
or
|
|
|
(ii)
|
it
becomes unlawful in any applicable jurisdiction for the Ancillary
Lender
to perform any of its obligations as contemplated by this Agreement
or to
fund, issue or maintain its participation in its Ancillary Facility;
or
|
|
|
(iii)
|
the
Ancillary Outstandings (if any) under the Ancillary Facility can
be
refinanced by a Facility B Loan and the Ancillary Lender gives sufficient
notice to enable a Facility B Loan to be made to refinance those
Ancillary
Outstandings.
|
|
|
(d)
|
For
the purposes of determining whether or not the Ancillary Outstandings
under the Ancillary Facility mentioned in paragraph (c)(iii) above
can be
refinanced by a Utilisation of Facility
B:
|
|
|
(i)
|
the
Facility B Commitment of the Ancillary Lender will be increased by
the
amount of its Ancillary Commitment;
and
|
|
|
(ii)
|
the
Utilisation may (so long as paragraph (c)(i) above does not apply)
be made
irrespective of whether a Default is outstanding or any other applicable
condition precedent is not satisfied (but only to the extent that
the
proceeds are applied in refinancing those Ancillary Outstandings)
and
irrespective of whether Clause 4.4 (Maximum number of Loans) or
paragraph (a)(iii) of Clause 5.2 (Completion of a Utilisation
Request) applies.
|
|
|
(e)
|
On the making of
a Utilisation of
Facility B to refinance Ancillary
Outstandings:
|
|
|
(i)
|
each
Lender will participate in that Utilisation in an amount (as determined
by
the Agent) which will result as nearly as possible in the aggregate
amount
of its participation in Facility B Loans then outstanding bearing
the same
proportion to the aggregate amount of the Facility B Loans then
outstanding as its Facility B Commitment bears to the Total Facility
B
Commitments; and
|
| (ii) | the relevant Ancillary Facility shall be cancelled. |
Each
Borrower and each Ancillary Lender agrees with and for the benefit of each
Lender that the Ancillary Outstandings under any Ancillary Facility provided
by
that Ancillary Lender shall not exceed the Ancillary Commitment applicable
to
that Ancillary Facility.
|
10.6
|
Information
|
Each
Borrower and each Ancillary Lender shall, promptly upon request by the Agent,
supply the Agent with any information relating to the operation of an Ancillary
Facility (including the Ancillary Outstandings) as the Agent may reasonably
request from time to time. Each Borrower consents to all such information being
released to the Agent and the other Finance Parties.
|
10.7
|
Affiliates
of Lenders as Ancillary
Lenders
|
|
10.8
|
Facility
B Commitment amounts
|
Notwithstanding
any other term of this Agreement, each Lender shall ensure that at all times
its
Facility B Commitment is not less than:
|
|
(a)
|
the
Ancillary Commitment of its Affiliate;
or
|
|
|
(b)
|
its
Ancillary Commitment.
|
SECTION
4
REPAYMENT,
PREPAYMENT AND CANCELLATION
|
11.
|
|
11.1
|
Repayment
of Term Loans
|
|
|
(a)
|
Each
Borrower shall repay the Facility A Loans made to it in full on the
applicable Termination Date.
|
|
|
(b)
|
Each
Borrower shall repay the aggregate Facility B Loans made to it in
full on
the applicable Termination Date.
|
|
|
(c)
|
The
Borrowers under Facility C shall repay the Facility C Loans in instalments
by repaying on each Facility C Repayment Date an amount equal or
equivalent to the amount set out in the Base Currency opposite that
Facility C Repayment Date below: n n n
|
provided
that:
|
|
(i)
|
no
Facility C Repayment Instalment to be repaid in any Optional Currency
shall exceed the balance of Facility C Loans outstanding in that
Optional
Currency;
|
|
|
(ii)
|
for
Facility C Loans outstanding in an Optional Currency on the relevant
Facility C Repayment Date, the amount to be repaid in the relevant
Optional Currency shall be calculated by converting the relevant
repayment
amount stated in the Base Currency above opposite that relevant Facility
C
Repayment Date into the relevant Optional Currency at the Agent's
Spot
Rate of Exchange on the date which is three Business Days before
the
relevant Facility C Repayment Date;
and
|
|
|
(iii)
|
if,
in relation to a Facility C Repayment Date, the aggregate amount
of
Facility C Loans made to the Borrowers exceeds the respective Facility
C
Repayment Instalment to be repaid by the Borrower, the Company may,
if it
give the Agent no less than three Business Days' (or such shorter
period
as the Majority Lenders may agree) prior notice, select which of
those
Facility C Loans will be wholly or partially repaid by which Borrowers
so
that the relevant Facility C Repayment Instalment is repaid on the
relevant Facility C Repayment Date in
full.
|
|
|
(d)
|
No
Borrower may reborrow any part of a Term Facility which is
repaid.
|
|
11.2
|
Repayment
of Revolving Facility
Loans
|
Each
Borrower which has drawn a Revolving Facility Loan shall repay that Loan on
the
last day of its Interest Period.
|
12.1
|
Illegality
|
If,
at
any time, it is or will become unlawful in any applicable jurisdiction for
a
Lender to perform any of its obligations as contemplated by this Agreement
or to
fund or maintain its participation in any Loan:
|
|
(a)
|
that Lender shall promptly
notify the
Agent upon becoming aware of that
event;
|
|
|
(b)
|
upon
the Agent notifying the Company, the Commitment of that Lender will
be
immediately cancelled; and
|
|
|
(c)
|
each
Borrower shall repay that Lender's participation in the Loans made
to that
Borrower on the last day of the Interest Period for each Loan occurring
after the Agent has notified the Company or, if earlier, the date
specified by the Lender in the notice delivered to the Agent (being
no
earlier than the last day of any applicable grace period permitted
by
law).
|
|
12.2
|
Change
of control
|
Subject
in the case of paragraph (ii) and (iii) below to Clause 4.5 (Utilisations
during the Certain Funds Period), if any person or group of persons acting
in concert other than a permitted holder gains control of the
Company:
|
|
(i)
|
the
Company shall promptly notify the Agent upon becoming aware of that
event;
|
|
|
(ii)
|
a
Lender shall not be obliged to fund a Utilisation (except for a Rollover
Loan);
|
|
|
(iii)
|
if
a Lender so requires and notifies the Agent within 30 days of being
informed by the Agent of the event, the Agent shall, by not less
than 30
days notice to the Company, cancel the Commitment of that Lender
and
declare the participation of that Lender in all outstanding Loans
and all
Ancillary Outstandings, together with accrued interest and all other
amounts accrued under the Finance Documents, immediately due and
payable,
at which time the Commitment of that Lender will be cancelled and
all such
outstanding amounts will become immediately due and
payable.
|
|
|
(iv)
|
For
the purpose of this Clause 12.2 "control" means the
control over more than 50 per cent, (i) of the issued share capital
of the
Company, or (ii) of the voting rights in the shares of the Company,
by
contract or otherwise.
|
|
|
(v)
|
For
the purpose of this Clause 12.2, "acting in concert"
shall have the meaning given so such term in Section 2(5) of the
German
Securities Acquisition and Takeover Act (Wertpapiererwerbs- und
Übernahmegesetz).
|
|
|
(vi)
|
For
the purpose of this Clause 12.2, "permitted holder" means
n n n
|
|
12.3
|
Net
Disposal Proceeds and Net Financing
Proceeds
|
|
|
(a)
|
For
the purposes of this Clause 12.3 and Clause 12.4 (Application of
mandatory prepayments):
|
"CM
Financing" means any issue of any bond, private placement, equity or
convertible instruments in the international or domestic debt capital markets
(excluding commercial paper) by a member of the Group, but excluding any such
financing which individually does not exceed EUR 100,000,000 (or its equivalent)
and (when aggregated with other financings that do not individually exceed
EUR
100,000,000 (or its equivalent) does not exceed in aggregate EUR 250,000,000
(or
its equivalent) in any financial year of the Company.
"Disposal"
means a sale, lease, licence, transfer, loan or other disposal by a person
of
any asset, undertaking or business (whether by a voluntary or involuntary single
transaction or series of transactions).
"Hybrid
Debt" means any hybrid instrument which the Company confirms in writing
to the Agent has received at least 50% equity credit from each of Standard
&
Poor's, Xxxxx'x and Fitch.
"MTN
Financing" means any issue of medium term notes issued under the any
existing or future MTN programme of the Company, the volume of which shall
be
increased to EUR n n n.
"Net
Disposal Proceeds" means the cash consideration received by any member
of the Group for any Specified Disposal and any disposal of Target Shares made
by any member of the Group and after deducting all taxes, non-recurring
fees, commission, costs and expenses in each case properly and reasonably
incurred by members of the Group in connection with such Disposal.
"Net
Financing Proceeds" means the cash consideration received by any member
of the Group from any Hybrid Debt, CM Financing and/or MTN Financing, in each
case after deducting all taxes, non-recurring fees, commission, costs and
expenses in each case properly and reasonably incurred by members of the Group
in connection with such financing.
"Net
Proceeds" means
|
|
(i)
|
Net
Disposal Proceeds; and/or
|
|
|
(ii)
|
Net
Financing Proceeds.
|
"Specified
Disposal" means the Disposal by a member of the Group to a person who
is not a member of the Group of: n n n
|
|
(b)
|
Subject
to paragraph (c) and (d) below, the Company shall ensure that the
Borrowers prepay Utilisations in the amount equal to the Net Proceeds
at
the times and in the order of application contemplated by Clause
12.4
(Application of mandatory prepayments). The obligation to prepay
the Facilities from
|
|
|
|
Specified
Disposals as set out in paragraph (i) to [error] of the definition of
Specified Disposal in paragraph (a) above shall cease to apply
once at
least EUR n n nhave
been prepaid or cancelled from or as a result of the Net Disposal
Proceeds
of such Specified Disposals or from the Net Financing Proceeds
of any
Hybrid Debt.
|
|
|
(c)
|
The
Company shall prepay Utilisations, together with accrued interest
and all
other amounts due under the Finance Documents, in an amount equal
to Net
Disposal Proceeds resulting from any disposal of Target Shares to
a person
which is not a member of the Group.
|
|
|
(d)
|
The
obligation of the Company to ensure that the Borrowers prepay Utilisations
as set out in paragraph (b) above shall be reduced by an amount equal
to
the amount of any voluntary prepayment made pursuant to Clause 12.8
(Voluntary Prepayment of Term Loans), provided
that:
|
|
|
(i)
|
the
Borrower making that voluntary prepayment stated in its notice of
prepayment that such voluntary prepayment is made in anticipation
of
certain Net Proceeds to be specified therein which are expected to
be
received by any member of the
Group;
|
|
|
(ii)
|
the
voluntary prepayment has been applied in accordance with Clause 12.4
(Application of mandatory
prepayments);
|
|
|
(iii)
|
and
the Company evidences (as the case may be following at any time after
the
voluntary prepayment has been made) that the Net Proceeds specified
in the
relevant prepayment have been
received,
|
|
|
in
which case such voluntary prepayment shall for all purposes of this
Agreement be treated as a prepayment from such Net
Proceeds.
|
|
12.4
|
Application
of mandatory prepayments
|
|
|
(a)
|
A
prepayment made under paragraph (b) or (c) of Clause 12.3 (Net
Disposal Proceeds and Net Financing Proceeds) shall be applied in the
following order:
|
|
|
(i)
|
first,
in prepayment of Facility A as contemplated in paragraphs (b) to
(e)
inclusive below;
|
|
|
(ii)
|
secondly,
in prepayment of Facility B as contemplated in paragraphs (b) to
(e)
inclusive below;
|
|
|
(iii)
|
thirdly,
in prepayment of Facility C as contemplated in paragraphs (b) to
(e)
inclusive below;
|
|
|
(iv)
|
fourthly,
in cancellation of Available Commitments under the Revolving Facility
(and
the Available Commitment of the Lenders under the Revolving Facility
will
be cancelled rateably);
|
|
|
(v)
|
fifthly,
in prepayment of Revolving Facility Loans and, thereafter, Euro Swingline
Loans and cancellation of Revolving Facility Commitments;
and
|
|
|
(vi)
|
then,
in repayment and cancellation of the Ancillary Outstandings and Ancillary
Commitments.
|
|
|
(b)
|
Unless
the Company makes an election under paragraph (d) below, the Borrowers
shall prepay Loans promptly upon receipt of those
proceeds.
|
|
|
(c)
|
A
prepayment under Clause 12.3 (Net Disposal Proceeds and Net Financing
Proceeds) shall prepay the Facility C Loans by reducing the relevant
Facility C Repayment Instalment for each Facility C Repayment Date
falling
after the date of prepayment pro
rata.
|
|
|
(d)
|
Subject
to paragraph (e) below, the Company may elect that any prepayment
under
Clause 12.3 (Net Disposal Proceeds and Net Financing Proceeds) be
applied in prepayment of a Loan on the last day of the Interest Period
relating to that Loan. If the Company makes that election then a
proportion of the Loan equal to the amount of the relevant prepayment
will
be due and payable on the last day of its Interest
Period.
|
|
|
(e)
|
If
the Company has made an election under paragraph (d) above but an
Event of
Default has occurred and is continuing, that election shall no longer
apply and a proportion of the Loan in respect of which the election
was
made equal to the amount of the relevant prepayment shall be immediately
due and payable (unless the Majority Lenders otherwise agree in
writing).
|
|
12.5
|
Mandatory
Cancellation
|
The
Company shall cancel Facility A and, following the cancellation in full of
Facility A, Facility B in an amount equal to the Net Financing Proceeds and/or
Net Disposal Proceeds received by any member of the Group from a Specified
Disposal referred to paragraph (i) to (iv) of that definition, in each case
no
later than on the date of delivery of the first Utilisation Request to fund
the
acquisition of Target Shares pursuant to the Offer or the Scheme (which shall
be
delivered no earlier than 3 Business Days prior to the relevant Utilisation
Date), promptly following receipt thereof, provided that prior
to the end of the Certain Funds Period such cancellation notice shall only
be
effective if it is countersigned by the Financial Advisor and provided
further that should the countersignature by the Financial Advisor not
be obtained the prepayment requirement under Clause 12.3 (Net Disposal
Proceeds and Net Financing Proceeds) shall apply provided
that the payment obligation shall be deferred (gestundet)
until the day which is ten Business Days after the last day of the Certain
Funds
Period. Any cancellation under this Clause 12.5 shall reduce the Commitments
of
the Lenders under the Facility or Facilities rateably.
|
12.6
|
Restrictions
on Upstream Payments
|
If:
|
|
(a)
|
there
is a requirement to make a mandatory prepayment from Net Proceeds
pursuant
to paragraph (b) of Clause 12.3 (Net Disposal Proceeds and Net
Financing Proceeds);
|
|
|
(b)
|
the
relevant member of the Group which received the sums pursuant to
the
relevant event giving rise to the mandatory prepayment (the
"Receiving Entity") is neither the Borrower (or one of
the Borrowers) nor the Holding Company (or one of the Holding Companies)
of the relevant Borrower(s);
|
|
|
(c)
|
having
used their best endeavours to make such sums available or to make
them
available without incurring a Relevant Tax Liability, the Receiving
Entity
(and any intermediate members of the Group) are not legally able
to make
any upstream or cross-stream payments or such payments would result
in any
member of the Group incurring a Relevant Tax Liability of or in respect
of
some or all of such sum which are necessary in order to make the
sums
received pursuant to the relevant event giving rise to the mandatory
prepayment available to the relevant
Borrower(s);
|
|
|
(d)
|
the
Company, having used its best endeavours to fund the prepayment from
other
resources available to the Group, is unable to procure the funding
of such
prepayment; and
|
|
|
(e)
|
the
Agent has received a certificate signed by the chief financial officer
or
two directors of
the Company stating the circumstances and details of
the impediment to prepayment or the Relevant Tax
Liability,
|
then,
until such time that the impediment to prepayment no longer applies or no
Relevant Tax Liability would be triggered, such prepayment shall be made in
an
amount equal to the aggregate of the amount the relevant member of the Group
is
legally able to pay and without incurring such Relevant Tax Liability and the
amount the Company is able to procure from other resources available to the
Group. The Company shall continue to use its best endeavours to procure that
the
prepayment which (but for this Clause 12.6) would have been due is
made.
In
this
Clause 12.6 "Relevant Tax Liability" means a material tax
liability which would not have been incurred absent the making of upstream
or
cross-stream payments (taking into account future tax savings resulting
therefrom and not taking into account tax liabilities that would have been
incurred otherwise but at a later point in time) and as a result of which it
seems economically unreasonable and - taking into account the legitimate
interests of the Lenders - inappropriate to make the relevant mandatory
prepayment.
|
12.7
|
Voluntary
cancellation
|
|
|
(a)
|
Subject
to paragraph (b) below, the Company may at any time following the
Acquisition Closing, or following a notice from the Company to the
Agent
that it will not pursue with an Offer or Scheme any further if it
gives
the Agent not less than three Business Days' (or such shorter period
as
the Majority Lenders may agree) prior notice, cancel the whole or
any part
(being a minimum amount and integral multiple of EUR 25,000,000)
of an
Available Facility. Any cancellation under this Clause 12.7 shall
reduce
the Commitments of the Lenders under the Facility or Facilities as
directed by the Company rateably. Any cancellation of Commitments
under
the Revolving Facility shall not result in a pro rata
cancellation of the Euro Swingline Facility, provided
that the Available Commitment under the Euro Swingline Facility
at no time exceeds the Available Commitment under the Revolving
Facility.
|
|
|
(b)
|
Prior
to the end of the Certain Funds Period, no notice may be given under
paragraph (a) above unless such notice has been countersigned by
the
Financial Advisor.
|
|
12.8
|
Voluntary
prepayment of Term Loans
|
|
|
(a)
|
A
Borrower to which a Term Loan has been made may, if it gives the
Agent not
less than three Business Days' (or such shorter period as the Majority
Lenders may agree) prior notice, prepay the whole or any part of
any Term
Loan (but, if in part, being an amount that reduces the Base Currency
Amount of that Term Loan by a minimum amount of EUR 25,000,000 or,
with
respect to Facility A Loans or Facility B Loans prior to the Base
Currency
Redenomiation Date, GBP
16,000,000).
|
|
|
(b)
|
A
Term Loan may only be prepaid after the last day of the Availability
Period (or, if earlier, the day on which the applicable Available
Facility
is zero).
|
|
|
(c)
|
Any
prepayment under this Clause 12.8 shall satisfy the obligations under
Clause 11.1 (Repayment of Term Loans) in the order determined by
the Company.
|
|
12.9
|
Voluntary
Prepayment of Revolving Facility
Loans
|
The
Borrower to which a Revolving Facility Loan has been made may, if it gives
the
Agent not less than three Business Days' (or such shorter period as the Majority
Lenders may agree) prior notice, prepay the whole or any part of a Revolving
Facility Loan (but if in part, being an amount that reduces the Base Currency
Amount of the Revolving Facility Loan by a minimum amount and integral multiple
of EUR 25,000,000).
|
12.10
|
Right
of repayment and cancellation in relation to a single
Lender
|
|
|
(a)
|
If:
|
|
|
(i)
|
any
sum payable to any Lender by an Obligor is required to be increased
under
paragraph (c) of Clause 17.2 (Tax gross-up);
or
|
|
|
(ii)
|
any
Lender claims indemnification from the Company under Clause 17.3
(Tax
indemnity) or Clause 18.1 (Increased
costs),
|
the
Company may, whilst the circumstance giving rise to the requirement for
indemnification continues give the Agent notice of cancellation of the
Commitment of that Lender and its intention to procure the repayment of that
Lender's participation in the Loans.
|
|
(b)
|
On
receipt of a notice referred to in paragraph (a) above, the Commitment
of
that Lender shall immediately be reduced to
zero.
|
|
|
(c)
|
On
the last day of each Interest Period which ends after the Company
has
given notice under paragraph (a) above (or, if earlier, the date
specified
by the Company in that notice), each Borrower to which a Loan is
outstanding shall repay that Lender's participation in that
Loan.
|
|
12.11
|
Restrictions
|
|
|
(a)
|
Any
notice of cancellation or prepayment given by any Party under this
Clause
12 shall be irrevocable and, unless a contrary indication appears
in this
Agreement, shall specify the date or dates upon which the relevant
cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
|
|
|
(b)
|
Any
prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty.
|
|
|
(c)
|
No
Borrower may reborrow any part of a Term Facility which is
prepaid.
|
|
|
(d)
|
Unless
a contrary indication appears in this Agreement, any part of Revolving
Facility which is prepaid may be reborrowed in accordance with the
terms
of this Agreement.
|
|
|
(e)
|
The
Borrowers shall not repay or prepay all or any part of the Loans
or cancel
all or any part of the Commitments except at the times and in the
manner
expressly provided for in this
Agreement.
|
|
|
(f)
|
No
amount of the Total Commitments cancelled under this Agreement may
be
subsequently reinstated.
|
|
|
(g)
|
If
the Agent receives a notice under this Clause 12 it shall promptly
forward
a copy of that notice to either the Company or the affected Lender,
as
appropriate.
|
|
|
(h)
|
The
Agent shall notify the Lenders as soon as possible of any proposed
prepayment of any Loan under Clause 12.2 (Change of Control) or
Clause 12.3 (Net Disposal Proceeds and Net Financing Proceeds).
Each Lender who (or whose Affiliate) has subscribed for a capital
increase
in the Company or on whose (or on whose Affiliate's) account such
capital
increase has been subscribed may, if it gives the Agent no less than
3
Business Days prior notice, elect to waive all or a specified part
of its
share of that prepayment. In such case the remaining proceeds form
such
mandatory prepayments shall be applied between the other Lenders
in
accordance with Clause 33.5 (Partial
Payments).
|
Each
Lender that elects to make use of this right (an "Electing
Lender") shall be entitled to a preferential treatment on any such
future mandatory prepayment such that prior to any payment being made to any
other Lender the Agent shall first pay to each Electing Lender an amount equal
to the amount required to put each Electing Lender in the same position as
any
other Lender. If there is more than one Electing Lender any payment shall be
pro rata. The rights of any Electing Lender under this paragraph (h)
are personal rights and must not be assigned and/or transferred to any other
person.
|
12.12
|
Automatic
Cancellation
|
Any
Commitment will be automatically cancelled at the close of business on the
last
day of any Availability Period applicable to the relevant Facility.
SECTION
5
COSTS
OF UTILISATION
|
13.
|
|
13.1
|
Calculation
of interest
|
The
rate
of interest on each Loan for each Interest Period is the percentage rate per
annum which is the aggregate of the applicable:
|
|
(a)
|
Margin;
|
|
|
(b)
|
EURIBOR
or, (in relation to any Loans in an Optional Currency) LIBOR;
and
|
|
|
(c)
|
Mandatory
Cost, if any.
|
|
13.2
|
Payment
of interest
|
The
Borrower to which a Loan has been made shall pay accrued interest on that Loan
on the last day of each Interest Period (and, if the Interest Period is longer
than six Months, on the dates falling at six monthly intervals after the first
day of the Interest Period).
|
13.3
|
Default
interest and lump sum
damages
|
|
|
(a)
|
If
an Obligor fails to pay any amount (other than interest) payable
by it
under a Finance Document on its due date, subject to paragraph (b)
below,
interest shall accrue on the overdue amount from the due date up
to the
date of actual payment (both before and after judgment) at a rate
which is
one per cent higher than the rate which would have been payable if the
overdue amount had, during the period of non-payment, constituted
a Loan
in the currency of the overdue amount for successive Interest Periods,
each of a duration selected by the Agent (acting reasonably). If
an
Obligor fails to pay interest payable by it under the Finance
Documents on its due date, lump sum damages
(pauschalierter Schadensersatz) shall accrue on the overdue
amount from the due date up to the date of actual payment (both before
and
after judgment) at a rate which, subject to paragraph (b) below,
is one
per cent higher than the rate which would have been payable if the
overdue
amount had, during the period of non-payment, constituted a Loan
in the
currency of the overdue amount for successive Interest Periods, each
of a
duration selected by the Agent (acting reasonably). In the case of
lump
sum damages, the relevant Obligor shall be free to prove that no
damages
have arisen or that damages have not arisen in the asserted amount
and any
Finance Party shall be entitled to prove that further damages have
arisen.
Any interest or lump sum accruing under this Clause 13.3 shall be
immediately payable by the Obligor on demand by the
Agent.
|
|
|
(b)
|
If
any overdue amount consists of all or part of a Loan which became
due on a
day which was not the last day of an Interest Period relating to
that
Loan:
|
|
|
(i)
|
the
first Interest Period for that overdue amount shall have a duration
equal
to the unexpired portion of the current Interest Period relating
to that
Loan; and
|
|
|
(ii)
|
the
rate of interest applying to the overdue amount during that first
Interest
Period shall be one per cent. higher than the rate which would
have
applied if the overdue amount had not become
due.
|
|
13.4
|
Notification
of rates of interest
|
The
Agent
shall promptly notify the Lenders and the relevant Borrower of the determination
of a rate of interest under this Agreement.
|
14.
|
|
14.1
|
Selection
of Interest Periods
|
|
|
(a)
|
A
Borrower (or the Company on behalf of a Borrower) may select an Interest
Period for a Loan in the Utilisation Request for that Loan or (if
the Loan
is a Term Loan and has already been borrowed) in a Selection
Notice.
|
|
|
(b)
|
Each
Selection Notice for a Term Loan is irrevocable and must be delivered
to
the Agent by the Borrower (or the Company on behalf of a Borrower)
to
which that Term Loan was made not later than the Specified
Time.
|
|
|
(c)
|
If
a Borrower (or the Company on behalf of a Borrower) fails to deliver
a
Selection Notice to the Agent in accordance with paragraph (b) above,
the
relevant Interest Period will, subject to Clause 14.2 (Changes to
Interest Periods), be one
Month.
|
|
|
(d)
|
Subject
to this Clause 14, a Borrower (or the Company on behalf of a Borrower)
may
select an Interest Period of one, two, three or six Months or any
other
period agreed between the Company and the Agent (acting on the
instructions of all the Lenders). In addition a Borrower (or the
Company
on its behalf) may select an Interest Period of (in relation to Facility
C) less than one Month, if necessary to ensure that there are sufficient
Facility C Loans (with an aggregate Base Currency Amount equal to
or
greater than the Repayment Instalment) which have an Interest Period
ending on a Facility C Repayment Date for the Borrowers to make the
Facility C Repayment Instalment due on that
date.
|
|
|
(e)
|
An
Interest Period for a Loan shall not extend beyond the Termination
Date
applicable to its Facility.
|
|
|
(f)
|
Each
Interest Period for a Term Loan shall start on the Utilisation Date
or (if
already made) on the last day of its preceding Interest
Period.
|
|
|
(g)
|
A
Revolving Facility Loan has one Interest Period
only.
|
|
|
(h)
|
Prior
to the Syndication Date, Interest Periods shall be one Month or such
other
period as the Agent and the Borrower (or the Company on its behalf)
may
agree and any Interest Period which would otherwise end during the
Month
preceding or extend beyond the Syndication Date shall end on the
Syndication Date.
|
|
14.2
|
Changes
to Interest Periods
|
|
|
(a)
|
Prior
to determining the interest rate for a Facility C Loan, the Agent
may
shorten an Interest Period for any Facility C Loan to ensure there
are
sufficient Facility C Loans (with an aggregate Base Currency Amount
equal
to or greater than the Facility C Repayment Instalment) which have
an
Interest Period ending on a Facility C Repayment Date for the Borrowers
to
make the Facility C Repayment Instalment due on that
date.
|
|
|
(b)
|
If
the Agent makes any change to an Interest Period referred to in this
Clause 14.2, it shall promptly notify the Company and the
Lenders.
|
|
14.3
|
Non-Business
Days
|
If
an
Interest Period would otherwise end on a day which is not a Business Day, that
Interest Period will instead end on the next Business Day in that calendar
month
(if there is one) or the preceding Business Day (if there is not).
|
14.4
|
Consolidation
and division of Term Loans
|
|
|
(a)
|
Subject
to paragraph (b) below, if two or more Interest
Periods:
|
|
|
(i)
|
relate
to the same Term Loans made to the same Borrower and in the same
currency;
and
|
|
|
(ii)
|
end
on the same date,
|
those
Term Loans will, unless that Borrower (or the Company on its behalf) specifies
to the contrary in the Selection Notice for the next Interest Period, be
consolidated into, and treated as, a single Term Loan on the last day of the
Interest Period.
|
|
(b)
|
Subject
to Clause 4.4 (Maximum number of Loans) and Clause 5.3
(Currency and amount), if a Borrower (or the Company on its
behalf) requests in a Selection Notice that a Term Loan be divided
into
two or more Term Loans, that Term Loan will, on the last day of its
Interest Period, be so divided with Base Currency Amounts specified
in
that Selection Notice, being an aggregate Base Currency Amount equal
to
the Base Currency Amount of the Term Loan immediately before its
division.
|
|
15.1
|
Absence
of quotations
|
Subject
to Clause 15.2 (Market disruption), if EURIBOR or, if applicable, LIBOR
is to be determined by reference to the Reference Banks but a Reference Bank
does not supply a quotation by the Specified Time on the Quotation Day, the
applicable EURIBOR or LIBOR shall be determined on the basis of the quotations
of the remaining Reference Banks.
|
15.2
|
Market
disruption
|
|
|
(a)
|
If
a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then the rate of interest on each Lender's share of that
Loan for
the Interest Period shall be the percentage rate per annum which
is the
sum of:
|
|
|
(i)
|
the
Margin;
|
|
|
(ii)
|
the
rate notified to the Agent by that Lender as soon as practicable
and in
any event before interest is due to be paid in respect of that Interest
Period, to be that which expresses as a percentage rate per annum
the cost
to that Lender of funding its participation in that Loan from whatever
source it may reasonably select;
and
|
|
|
(iii)
|
the
Mandatory Cost, if any, applicable to that Lender's participation
in the
Loan.
|
|
|
(b)
|
In
this Agreement "Market Disruption Event"
means:
|
|
|
(i)
|
at
or about noon on the Quotation Day for the relevant Interest Period
the
Screen Rate is not available and none or only one of the Reference
Banks
supplies a rate to the Agent to determine EURIBOR or, if applicable,
LIBOR
for the relevant currency and the relevant Interest Period;
or
|
|
|
(ii)
|
before
close of business in London on the Quotation Day for the relevant
Interest
Period, the Agent receives notifications from a Lender or Lenders
(whose
participations in a Loan exceed 50 per cent. of that Loan) that the
cost
to it of obtaining matching deposits in the European interbank market
would be in excess of EURIBOR or, if applicable,
LIBOR.
|
|
15.3
|
Alternative
basis of interest or
funding
|
|
|
(a)
|
If
a Market Disruption Event occurs and the Agent or the Company so
requires,
the Agent and the Company shall enter into negotiations (for a period
of
not more than thirty days) with a view to agreeing a substitute basis
for
determining the rate of interest.
|
|
|
(b)
|
Any
alternative basis agreed pursuant to paragraph (a) above shall, with
the
prior consent of all the Lenders and the Company, be binding on all
Parties.
|
|
15.4
|
Break
Costs
|
|
|
(a)
|
Each
Borrower shall, within three Business Days of demand by a Finance
Party,
pay to that Finance Party its Break Costs attributable to all or
any part
of a Loan or Unpaid Sum being paid by that Borrower on a day other
than
the last day of an Interest Period for that Loan or Unpaid
Sum.
|
|
|
(b)
|
Each
Lender shall, as soon as reasonably practicable after a demand by
the
Agent, provide a certificate confirming the amount of its Break Costs
for
any Interest Period in which they
accrue.
|
|
16.
|
|
16.1
|
Ticking
fee
|
|
|
(a)
|
From
the date of this Agreement until the earlier of the Acquisition
Closing
and the date the Offer or Scheme is finally abandoned or finally
lapses,
the Company shall pay to the Agent (for the account of each Lender)
a fee
in the Base Currency computed at the rate of n n n per
cent. per annum on the aggregate of the daily amount of that the
Lender's
Available Commitments under the
Facilities.
|
|
|
(b)
|
The
accrued ticking fee will become due and payable on the last day of
each
successive period of three months ending prior to Acquisition Closing,
or,
if earlier, the date of Acquisition Closing or within five Business
Days
after the date the Offer or Scheme is finally abandoned or finally
lapses.
|
|
16.2
|
Commitment
fee
|
|
|
(a)
|
Following
Acquisition Closing, the Company shall pay to the Agent (for the
account
of each Lender) a fee in the Base Currency computed at the rate of
n n n per
cent. of the Margin then applicable with respect to the relevant
Facility
on amount of on that Lender's Available Commitment under the Facilities
for the relevant Availability
Period.
|
|
|
(b)
|
The
accrued commitment fee is payable on the last day of each successive
period of three Months which ends during the relevant Availability
Period,
on the last day of the relevant Availability Period and, if cancelled
in
full, on the cancelled amount of the relevant Lender's Commitment
at the
time the cancellation is effective.
|
|
16.3
|
Up-front
fee
|
The
Company shall pay to the Arranger an arrangement fee in the amount and at the
times agreed in a Fee Letter.
|
16.4
|
Agency
fee
|
The
Company shall pay to the Agent (for its own account) an agency fee in the amount
and at the times agreed in a Fee Letter.
|
16.5
|
Interest,
commission and fees on Ancillary
Facility
|
The
rate
and time of payment of interest, commission, fees and any other remuneration
in
respect of the Ancillary Facility shall be determined by agreement between
the
Ancillary Lender and the Borrower of the Ancillary Facility based upon normal
market rates and terms.
SECTION
6
ADDITIONAL
PAYMENT OBLIGATIONS
|
17.1
|
Definitions
|
|
|
(a)
|
In
this Agreement:
|
"German
Borrower" means a Borrower subject to limited or unlimited tax
liability in Germany.
"Protected
Party" means a Finance Party which is or will be subject to any
liability, or required to make any payment, for or on account of Tax in relation
to a sum received or receivable (or any sum deemed for the purposes of Tax
to be
received or receivable) under a Finance Document.
"Qualifying
Lender" means:
|
|
(i)
|
in
respect of interest payable by a German Borrower, any Lender lending
through a permanent establishment (Betriebsstätte) in Germany
with which such Lender's participation in any Loans is effectively
connected in Germany or which is a Treaty
Lender;
|
|
|
(ii)
|
in
respect of interest payable by a UK Borrower, a Lender (other than
a
Lender within sub-paragraph (C) below) which is beneficially entitled
to
interest payable to that Lender in respect of an advance under a
Finance
Document and is:
|
|
|
(A)
|
a
Lender:
|
|
|
(1)
|
which
is a bank (as defined for the purpose of section 879 of the ITA)
making an
advance under a Finance Document;
or
|
| (2) | in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made, |
and
which
is within the charge to United Kingdom corporation tax as respects any payments
of interest made in respect of that advance; or
|
|
(B)
|
a
Treaty Lender; or
|
|
|
(C)
|
a
building society (as defined for the purpose of section 880 of the
ITA) in
respect of an advance made by that building
society.
|
|
|
(iii)
|
in
respect of any other Borrower, a Lender which is beneficially entitled
to
interest payable to that Lender in respect of an advance under a
Finance
Document and is:
|
|
|
(A)
|
lending
through a Facility Office in the jurisdiction of incorporation of
the
relevant Borrower; or
|
|
|
(B)
|
a
Treaty Lender.
|
"Tax
Credit" means a credit against, relief or remission for, or repayment
of any Tax.
"Tax
Deduction" means a deduction, charges or withholding for or on account
of Tax from a payment under a Finance Document.
"Tax
Payment" means either the increase in a payment made by an Obligor to a
Finance Party under Clause 17.2 (Tax gross-up) or a payment under
Clause 17.3 (Tax indemnity).
"Treaty
Lender" means a Lender which:
|
|
(i)
|
is
treated as a resident of a Treaty State for the purposes of the Treaty;
and
|
|
|
(ii)
|
does
not carry on a business in the jurisdiction of incorporation of the
relevant Borrower through a permanent establishment or a permanent
representative with which that Lender's participation in the Loan
is
effectively connected.
|
|
|
(i)
|
is
entitled under the provisions of the Treaty with the jurisdiction
of
incorporation of the Borrower to receive payments of interest from
a
person resident in such jurisdiction without incurring a tax liability
including any Tax Deduction (subject to completion of any necessary
procedural formalities); and
|
|
|
(ii)
|
is
lending through a Facility Office in the Treaty
State.
|
"Treaty
State" means a jurisdiction having a double taxation agreement (a
"Treaty") with the jurisdiction of incorporation of the
relevant Borrower which makes provision for full exemption from tax imposed
by
the jurisdiction of incorporation of the relevant Borrower on
interest.
"UK
Borrower" means a Borrower which is incorporated in the United
Kingdom.
|
17.2
|
Tax
gross-up
|
|
|
(a)
|
Each
Obligor shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by
law.
|
|
|
(b)
|
The
Company shall promptly upon becoming aware that an Obligor must make
a Tax
Deduction (or that there is any change in the rate or the basis of
a Tax
Deduction) notify the Agent accordingly. Similarly, a Lender shall
notify
the Agent and the Company on becoming so aware in respect of a payment
payable to that Lender. If the Agent receives such notification from
a
Lender it shall promptly notify the Company and that
Obligor.
|
|
|
(c)
|
If
a Tax Deduction is required by law to be made by an Obligor, the
amount of
the payment due from that Obligor shall be increased to an amount
which
(after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been
required.
|
|
|
(d)
|
An
Obligor is not required to make an increased payment to a Lender
under
paragraph (c) above for a Tax Deduction in respect of tax imposed
by the
jurisdiction in which the relevant Obligor is resident for tax purposes
from a payment of interest on a Loan, if on the date on which the
payment
falls due:
|
|
|
(i)
|
the
payment could have been made to the relevant Lender without a Tax
Deduction if it was a Qualifying Lender, but on that date that Lender
is
not or has ceased to be a Qualifying Lender other than as a result
of any
change after the date it became a Lender under this Agreement in
(or in
the interpretation, administration, or application of) any law or
Treaty,
or any published practice or concession of any relevant taxing authority;
or
|
|
|
(ii)
|
the
relevant Lender is a Treaty Lender and the Obligor making the payment
is
able to demonstrate that the payment could have been made to the
Lender
without the Tax Deduction had that Lender complied with its obligations
under paragraph (g) below.
|
|
|
(e)
|
If
an Obligor is required to make a Tax Deduction, that Obligor shall
make
that Tax Deduction and any payment required in connection with that
Tax
Deduction within the time allowed and in the minimum amount required
by
law.
|
|
|
(f)
|
Within
thirty days of making either a Tax Deduction or any payment required
in
connection with that Tax Deduction, the Obligor making that Tax Deduction
shall deliver to the Agent for the Finance Party entitled to the
payment
certificates evidencing to that Finance Party's reasonable satisfaction
that the Tax Deduction has been made or (as applicable) any appropriate
payment paid to the relevant taxing
authority.
|
|
|
(g)
|
A
Treaty Lender and each Obligor which makes a payment to which that
Treaty
Lender is entitled shall co-operate in completing any procedural
formalities necessary for that Obligor to obtain authorisation to
make
that payment without a Tax
Deduction.
|
|
17.3
|
Tax
indemnity
|
|
|
(a)
|
The
Company shall (within five Business Days of demand by the Agent)
pay to a
Protected Party an amount equal to the loss, liability or cost which
that
Protected Party determines (acting reasonably) will be or has been
(directly or indirectly) suffered for or on account of Tax by that
Protected Party in respect of a Finance
Document.
|
|
|
(b)
|
Paragraph
(a) above shall not apply:
|
|
|
(i)
|
with
respect to any Tax assessed on a Finance
Party:
|
|
|
(A)
|
under
the law of the jurisdiction in which that Finance Party is incorporated
or, if different, the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax purposes;
or
|
|
|
(B)
|
under
the law of the jurisdiction in which that Finance Party's Facility
Office is located in respect of
amounts received or receivable in that
jurisdiction,
|
if
that
Tax is imposed on or calculated by reference to the net income received or
receivable (but not any sum deemed to be received or receivable) by that Finance
Party; or
|
|
(ii)
|
to
the extent a loss, liability or
cost:
|
|
|
(A)
|
is
compensated for by an increased payment under Clause 17.2 (Tax
gross-up), or
|
|
|
(B)
|
would
have been compensated for by an increased payment under Clause 17.2
(Tax gross-up) but was not so compensated solely because one of
the exclusions in paragraph (d) of Clause 17.2 (Tax gross-up)
applied.
|
|
|
(c)
|
A
Protected Party making, or intending to make a claim under paragraph
(a)
above shall promptly notify the Agent of the event which will give,
or has
given, rise to the claim, following which the Agent shall notify
the
Company.
|
|
|
(d)
|
A
Protected Party shall, on receiving a payment from an Obligor under
this
Clause 17.3, promptly notify the
Agent.
|
|
17.4
|
Tax
Credit
|
If
an
Obligor makes a Tax Payment and the relevant Finance Party determines (acting
reasonably) that:
|
|
(a)
|
a
Tax Credit is attributable either to an increased payment of which
that
Tax Payment forms part, or to that Tax Payment;
and
|
|
|
(b)
|
that
Finance Party has obtained, utilised and retained that Tax Credit
(directly or on an affiliated group
basis),
|
the
Finance Party shall pay an amount to the Obligor which that Finance Party
determines (acting reasonably) will leave it (after that payment) in the same
after-Tax position as it would have been in had the Tax Payment not been
required to be made by the Obligor.
|
17.5
|
Stamp
taxes
|
The
Company shall pay and, within five Business Days of demand, indemnify each
Finance Party against any cost, loss or liability that Finance Party incurs
in
relation to all stamp duty, registration and other similar Taxes payable in
respect of any Finance Document.
|
17.6
|
Value
added tax
|
|
|
(a)
|
All
amounts set out, or expressed to be payable under a Finance Document
by
any Party to a Finance Party which (in whole or in part) constitute
the
consideration for VAT purposes shall be deemed to be exclusive of
any VAT
which is chargeable on such supply, and accordingly, subject to paragraph
(c) below, if VAT is chargeable on any supply made by any Finance
Party to
any Party under a Finance Document, that Party shall pay to the Finance
Party (in addition to and at the same time as paying the consideration)
an
amount equal to the amount of the VAT owing and payable by such Finance
Party (and such Finance Party shall promptly provide an appropriate
VAT
invoice to such Party). Should the reverse charge method apply, the
Borrowers shall not deduct any VAT from the amount which constitutes
the
consideration for VAT purposes
|
|
|
(b)
|
If
VAT is chargeable on any supply made by any Finance Party (the
"Supplier") to any other Finance Party (the
"Recipient") under a Finance Document, and any Party (the
"Relevant Parry") is required by the terms of any Finance
Document to pay an amount equal to the consideration for such supply
to
the Supplier (rather than being required to reimburse the Recipient
in
respect of that consideration), such Party shall also pay to the
Supplier
(in addition to and at the same time as paying such amount) an amount
equal to the amount of such VAT. The Recipient will promptly pay
to the
Relevant Party an amount equal to any credit or repayment from the
relevant tax authority which relates to the VAT chargeable on that
supply.
|
|
|
(c)
|
Where
a Finance Document requires any Party to reimburse a Finance Party
for any
costs or expenses, that Party shall also at the same time pay and
indemnify the Finance Party against all VAT incurred by the Finance
Party
in respect of the costs or expenses to the extent that neither the
Finance
Party nor any other member of any group of which it is a member for
VAT
purposes is entitled to credit or repayment from the relevant tax
authority in respect of the VAT.
|
|
17.7
|
Tax
Certificate
|
|
|
(a)
|
For
the purpose of this Clause 17.7 and if expressly taken reference
to this
Clause,
|
"Tax
Certificate" means a letter substantially in the form and the German
language as required in the official standard letter (a draft of which is
attached as Schedule 16 (Tax confirmation)) for the purpose of Section
8a of the German Corporate Income Tax Act (Körperschaftsteuergesetz)
("CITA") issued by the German Federal Ministry of Finance to
the credit committee of the German banking association (dated 20 October 2005,
docket nr. IV B 7 – S 2742a – 43/05) specifying, in particular, any security
interests or guarantees which have been granted for the respective Loan or,
in
case the official standard letter is amended by the German tax authorities
(or
by law), a letter in the form and language of such an amended standard
letter;
"Decrees"
means the decrees issued by the German Federal Ministry of Finance dated 15
July
2004, docket nr. IV A 2 – S 2742a – 20/04 and 22 July 2005, docket nr. IV B 7 –
S 2742a – 31/05 regarding the application of Section 8a of the
CITA;
"Major
Shareholder" means a shareholder holding directly or indirectly more
than 25 % of the shares in any German Borrower; and "Affiliated
Party" means any person or entity related to a Major Shareholder within
the meaning of sec 1 para 2 of the German Foreign Tax Act (Auβensteuergesetz)
other than the respective German Borrower itself.
|
|
(b)
|
For
the purpose of providing evidence to the German tax authorities of
the
absence of any detrimental recourse situation in connection with
the tax
circulars issued by the German Federal Ministry of Finance
(Bundesfinanzministerium) on 15 July 2004 (IV A2 – S 2242a –
20/40) and on 22 July 2005 (IV B 7 – S 2742a v 31/05), each Lender
undertakes at the request of any German Borrower to issue (through
the
Agent) within a reasonable period of time to any German Borrower
a
complete Tax Certificate, in case of each Original Lender, after
the
signing of this Agreement, in the case of any Lender other than an
Original Lender, after the date on which such person becomes a Lender
and,
in the case of any Original Lender and any other Lender, after any
amendment to this Agreement or as required by any administrative
pronouncement or guidelines issued by the German tax
authorities.
|
|
|
(c)
|
Upon
request of any German Borrower, the Lenders shall send (through the
Agent)
within a reasonable period of time after having received the relating
request an updated Tax Certificate to such German Borrower. The same
shall
apply if the German tax authorities amend or change their official
standard tax certificate (as specified in the letter to the credit
committee of the German banking association dated 20 October 2005,
docket
nr. IV B 7 – S 2742a – 43/05). Any such request shall have attached a
completed draft Tax Certificate and shall expressly confirm that
to the
German Borrower's best knowledge the draft Tax Certificate is accurate
and
that the Lenders are released from any applicable confidentiality
obligations for the purposes of issuing the Tax Certificate. Upon
request
such German Borrower will forward to the Lenders through the Agent
such
information which may be reasonably required by the Lenders to enable
the
Lenders to issue the Tax
Certificate.
|
|
|
(d)
|
The
Tax Certificate shall only include factual but not legal statements
(unless otherwise determined by the relevant Lender in its absolute
discretion). The Tax Certificate shall furthermore not contain any
statements that the Lenders are not permitted to issue by law,
administrative rule or regulation of the jurisdiction the relevant
Lender
or Affiliate is subject to.
|
|
|
(e)
|
The
Lenders agree to issue (through the Agent) the Tax Certificate (except
for
such Lenders prohibited by law, administrative rule or regulation
of the
jurisdiction the relevant Lender or Affiliate is subject to) within
a
reasonable period of time. Any costs and expenses reasonably incurred
at
the level of the Agent or any Lender in connection with the issuance
of
the Tax Certificate will be borne by the relevant German Borrower
requesting the Tax Certificate.
|
|
|
(f)
|
Each
German Borrower confirms to each Lender that the Lenders issue the
respective Tax Certificate solely for providing evidence to the German
tax
authorities of the absence of any back-to-back-financing pursuant
to the
Decree dated 20 October 2005 to Section 8a of the German Corporate
Income
Tax Act (Körperschaftsteuergesetz) and
that the Lenders are
not responsible for examining the tax position of
the German Borrowers or for achieving any certain tax treatment of
the
German Borrowers. Furthermore, each German Borrower confirms to each
Lender that this confirmation is not given for the German Borrowers
to
rely on, but only for delivery to the competent tax authorities and
that,
therefore, no German Borrower will raise any claims against a Lender
in
connection with, a (correct or incorrect) Tax Certificate, unless
such
claims are based on gross negligence or wilful misconduct on the
part of
such Lender. Each of the German Borrower agrees to indemnify each
Lender
with respect to any potential claims that might be made against that
Lender with respect to a Tax Certificate issued by it, unless such
claims
are based on gross negligence or wilful misconduct on the part of
such
Lender. The execution of the Tax Certificate shall only be descriptive
by
nature and shall not amend any Finance Document or waive any rights
any
Finance Party may have thereunder.
|
|
|
(g)
|
It
is the common understanding of the Parties that no Finance Party
is
providing any legal and/or tax advice to any other Party with respect
to
this Agreement, in particular with respect to the application of
Section
8a German Corporate Income Tax Act (Körperschaftsteuergesetz) and
the interpretation of the above Decree, and that it is the responsibility
of each Party, in particular each German Borrower, to consult its
own
legal/tax advisers.
|
|
18.
|
|
18.1
|
Increased
costs
|
|
|
(a)
|
Subject
to Clause 18.3 (Exceptions) the Company shall, for any Interest
Period beginning after the day on which the Agent has notified the
Company
in accordance with paragraph (a) of Clause 18.2 (Increased cost
claims), pay for the account of a Finance Party the amount of any
Increased Costs incurred by that Finance Party or any of its Affiliates
as
a result of (i) the introduction of or any change in (or in the
interpretation, administration or application by any competent authority
of) any law or regulation or (ii) compliance with any law or regulation
made after the date of this Agreement. The amount of the Increased
Costs
shall become due and payable within three Business Days of a demand
by the
Agent.
|
|
|
(b)
|
In
this Agreement "Increased Costs"
means:
|
|
|
(i)
|
a
reduction in the rate of return from the Facility or on a Finance
Party's
(or its Affiliate's) overall
capital;
|
|
|
(ii)
|
an
additional or increased cost; or
|
|
|
(iii)
|
a
reduction of any amount due and payable under any Finance
Document,
|
which
is
incurred or suffered by a Finance Party or any of its Affiliates to the extent
that it is attributable to that Finance Party having entered into its Commitment
or an Ancillary Commitment or funding or performing its obligations under any
Finance Document.
|
18.2
|
Increased
cost claims
|
|
|
(a)
|
A
Finance Party intending to make a claim pursuant to Clause 18.1
(Increased costs) shall notify the Agent of the event giving rise
to the claim, following which the Agent shall promptly notify the
Company.
|
|
|
(b)
|
Each
Finance Party shall, as soon as practicable after a demand by the
Agent,
provide a certificate confirming the amount of its Increased Costs
and
setting out its calculation in reasonable
detail.
|
18.3 Exceptions
|
|
(a)
|
Clause
18.1 (Increased costs) does not apply to the extent any Increased
Cost is:
|
|
|
(i)
|
attributable
to a Tax Deduction required by law to be made by an
Obligor;
|
|
|
(ii)
|
compensated
for by Clause 17.3 (Tax indemnity) (or would have been
compensated for under Clause 17.3 (Tax indemnity) but was not so
compensated solely because any of the exclusions in paragraph (b)
of
Clause 17.3 (Tax indemnity)
applied);
|
|
|
(iii)
|
compensated
for by the payment of the Mandatory
Cost;
|
|
|
(iv)
|
attributable
to the wilful breach by the relevant Finance Party or its Affiliates
of
any law or regulation; or
|
|
|
(v)
|
attributable
to the implementation or application of or compliance with the
"International Convergence of Capital Measurement and Capital Standards,
a
Revised Framework" published by the Basel Committee on Banking Supervision
in June 2004 in the form existing on the date of this Agreement
("Basel II") or any other law or regulation which
implements Basel II (whether such implementation, application or
compliance is by a government, regulator, Finance Party or any of
its
Affiliates).
|
|
|
(b)
|
In
this Clause 18.3, a reference to a "Tax Deduction" has
the same meaning given to the term in Clause 17.1
(Definitions).
|
|
19.1
|
Currency
indemnity
|
|
|
(a)
|
If
any sum due from an Obligor under the Finance Documents (a
"Sum"), or any order, judgment or award given or made
in
relation to a Sum, has to be converted from the currency (the
"First Currency") in which that Sum is payable into
another currency (the "Second Currency") for the purpose
of:
|
|
|
(i)
|
making
or filing a claim or proof against that
Obligor;
|
|
|
(ii)
|
obtaining
or enforcing an order, judgment or award in relation to any litigation
or
arbitration proceedings,
|
that
Obligor shall as an independent obligation, within three Business Days of
demand, indemnify each Finance Party to whom that Sum is due against any cost,
loss or liability arising out of or as a result of the conversion including
any
discrepancy between (A) the rate of exchange used to convert that Sum from
the
First Currency into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
|
|
(b)
|
Each
Obligor waives any right it may have in any jurisdiction to pay any
amount
under the Finance Documents in a currency or currency unit other
than that
in which it is expressed to be
payable.
|
|
19.2
|
Other
indemnities
|
The
Company shall (or shall procure that an Obligor will), within three Business
Days of demand, indemnify each Finance Party against any cost, loss or liability
incurred by that Finance Party (acting reasonably) as a result of:
|
|
(a)
|
the
occurrence of any Event of Default;
|
|
|
(b)
|
a
failure by an Obligor to pay any amount due under a Finance Document
on
its due date, including without limitation, any cost, loss or liability
arising as a result of Clause 32 (Sharing among the Finance
Parties);
|
|
|
(c)
|
funding,
or making arrangements to fund, its participation in a Loan requested
by a
Borrower in a Utilisation Request but not made by reason of the operation
of any one or more of the provisions of this Agreement (other than
by
reason of default or negligence by that Finance Party alone);
or
|
|
|
(d)
|
a
Loan (or part of a Loan) not being prepaid in accordance with a notice
of
prepayment given by a Borrower or the
Company.
|
The
Company shall promptly indemnify the Agent within ten Business Days upon receipt
of appropriate evidence with respect to the claimed amounts against any cost,
loss or liability incurred by the Agent (acting reasonably) as a result
of:
|
|
(a)
|
investigating
any event which it reasonably believes is a Default;
or
|
|
|
(b)
|
acting
or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately
authorised.
|
|
20.1
|
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 pursuant to, or cancelled pursuant
to, any of Clause 12.1 (Illegality), Clause 17 (Tax gross-up
and indemnities), Clause 18 (Increased costs) or paragraph 3
of Schedule 4 (Mandatory Cost formulae) including (but not
limited to) transferring its rights and obligations under the Finance
Documents to another Affiliate or Facility
Office.
|
|
|
(b)
|
Paragraph
(a) above does not in any way limit the obligations of any Obligor
under
the Finance Documents.
|
|
20.2
|
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 20.1
(Mitigation).
|
|
|
(b)
|
A
Finance Party is not obliged to take any steps under Clause 20.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to
it.
|
|
21.1
|
The
Company shall promptly on demand pay the Agent and the Arranger the amount
of
all external expenses (including legal fees up to the amount agreed reasonable
travel expenses, printing and publicity costs and VAT) reasonably incurred
by
any of them in connection with the negotiation, preparation, printing, execution
and syndication of:
|
|
(a)
|
this
Agreement and any other documents referred to in this Agreement up
to the
amount agreed; and
|
|
|
(b)
|
any
other Finance Documents executed after the date of this
Agreement.
|
|
21.2
|
If
(a) an
Obligor requests an amendment, waiver or consent or (b) an amendment is required
pursuant to Clause 33.9 (Change of currency), the Company shall, within
ten Business Days upon receipt of a reasonably detailed invoice, reimburse
the
Agent for the amount of all external costs and expenses (including legal fees)
reasonably incurred by the Agent in responding to, evaluating, negotiating
or
complying with that request or requirement.
|
21.3
|
Enforcement
costs
|
The
Company shall, within ten Business Days upon receipt of a reasonably detailed
invoice, 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.
SECTION
7
GUARANTEE
|
22.1
|
Guarantee
(Garantie) and indemnity
(Ausfallhaftung)
|
The
Guarantor irrevocably and unconditionally:
|
|
(a)
|
guarantees
(garantiert) by way of an independent payment obligation
(selbständiges Zahlungsversprechen) to each Finance Party to pay
to that Finance Party within five Business Days of receipt by it
of a
written demand by a Finance Party (or the Agent on its behalf) the
amount
of principal, interest, costs, expenses or other amount demanded
in that
demand, which demand shall state that the sum demanded by that Finance
Party under or in connection with the Finance Documents has not been
fully
and irrevocably paid by any other Borrower;
and
|
|
|
(b)
|
undertakes
vis-à-vis each Finance Party to indemnify (schadloshalten) that
Finance Party immediately within five Business Days of a written
demand
against any cost, loss or liability suffered by that Finance Party
if any
obligation of any other Borrower under or in connection with any
Finance
Document or any obligation guaranteed by it is or becomes unenforceable,
invalid or illegal. The amount of the cost, loss or liability shall
be
equal to the amount which that Finance Party would otherwise have
been
entitled to recover (Ersatz des positiven
Interesses).
|
|
22.2
|
Continuing
and independent guarantee and
indemnity
|
|
|
(a)
|
This
guarantee and indemnity is independent and separate from the obligations
of any Borrower and is a continuing guarantee and indemnity which
will
extend to the ultimate balance of sums payable by any Borrower under
the
Finance Documents, regardless of any intermediate payment or discharge
in
whole or in part.
|
|
|
(b)
|
The
guarantee and indemnity shall extend to any additional obligations
of a
Borrower resulting from any amendment, novation, supplement, extension,
restatement or replacement of any Finance Documents, including without
limitation any extension of or increase in any facility or the addition
of
a new facility under any Finance
Document.
|
|
22.3
|
Reinstatement
|
If
any
payment by any Borrower or any discharge given by a Finance Party (whether
in
respect of the obligations of any Borrower or any security for those obligations
or otherwise) is avoided or reduced as a result of insolvency or any similar
event:
|
|
(a)
|
the
liability of each Borrower shall continue as if the payment, discharge,
avoidance or reduction had not occurred;
and
|
|
|
(b)
|
each
Finance Party shall be entitled to recover the value or amount of
that
security or payment from each Borrower, as if the payment, discharge,
avoidance or reduction had not
occurred.
|
|
22.4
|
No
defences
|
|
|
(a)
|
The
obligations of the Guarantor under this Clause 22 will not be affected
by
an act, omission, matter or thing which relates to the principal
obligation (or purported obligation) of any Borrower and which would
reduce, release or prejudice any of its obligations under this Clause
22,
including any personal defences of any Borrower (Einreden des
Hauptschuldners) or any right of revocation (Anfechtung) or
set-off (Aufrechnung) of any
Borrower.
|
|
|
(b)
|
The
obligations of the Guarantor under this Clause 22 are independent
from any
other security or guarantee which may have been or will be given
to the
Finance Parties. In particular, the obligations of the Guarantor
under
this Clause 22 will not be affected by any of the
following:
|
|
|
(i)
|
the
release of, or any time (Stundung), waiver or consent granted to,
any Borrower from or in respect of its obligations under or in connection
with any Finance Document;
|
|
|
(ii)
|
the
taking, variation, compromise, exchange, renewal or release of, or
refusal
or neglect to perfect, take up or enforce, any rights against, or
security
over assets of, any Borrower or any other person or any failure to
realise
the full value of any security;
|
|
|
(iii)
|
any
incapacity or lack of power, authority or legal personality of or
dissolution or a deterioration of the financial condition of any
other
Borrower; or
|
|
|
(iv)
|
any
unenforceability, illegality or invalidity of any obligation of any
other
Borrower under any Finance
Document.
|
|
|
(c)
|
For
the avoidance of doubt this guarantee and indemnity does not constitute
a
guarantee upon first demand (Garantie auf erstes Anfordern) and
nothing in this Clause 22 shall preclude any defences that the Guarantor
(in its capacity as Guarantor only) may have against a Finance Party
that
the guarantee and indemnity does not constitute its legal, valid,
binding
or enforceable obligations.
|
|
22.5
|
Immediate
recourse
|
No
Finance Party will be required to proceed against or enforce any other rights
or
security or claim payment from any person before claiming from the Guarantor
under this Clause 22. This applies irrespective of any law or any provision
of a
Finance Document to the contrary.
|
22.6
|
Appropriations
|
Until
all
amounts which may be or become payable by any Borrower under or in connection
with the Finance Documents have been irrevocably paid in full, each Finance
Party may:
|
|
(a)
|
refrain
from applying or enforcing any other moneys, security or rights held
or
received by that Finance Party in respect of those amounts, or apply
and
enforce the same in such manner and order as it sees fit (whether
against
those amounts or otherwise) and no Guarantor shall be entitled to
the
benefit of the same; and
|
|
|
(b)
|
hold
in an interest-bearing suspense account any moneys received from
the
Guarantor or on account of the Guarantor's liability under this Clause
22.
|
|
22.7
|
Deferral
of Guarantor's rights
|
Until
all
amounts which may be or become payable by any Borrower under or in connection
with the Finance Documents have been irrevocably paid in full and unless the
Agent otherwise directs, the Guarantor will not exercise any rights which it
may
have by reason of performance by it of its obligations under the Finance
Documents:
|
|
(a)
|
to
be indemnified by any Borrower;
|
|
|
(b)
|
to
claim any contribution from any other guarantor of any Borrower's
obligations under the Finance Documents;
and/or
|
|
|
(c)
|
to
take the benefit (in whole or in part and whether by way of legal
subrogation or otherwise) of any rights of the Finance Parties under
the
Finance Documents or of any other guarantee or security taken pursuant
to,
or in connection with, the Finance Documents by any Finance
Party.
|
If
the
Guarantor receives any benefit, payment or distribution in relation to such
rights it shall hold that benefit, payment or distribution to the extent
necessary to enable all amounts which may be or become payable to the Finance
Parties by a Borrower under or in connection with the Finance Documents to
be
repaid in full on trust for the Finance Parties and shall promptly pay or
transfer the same to the Agent or as the Agent may direct for application in
accordance with Clause 33 (Payment mechanics) of this
Agreement.
|
22.8
|
Additional
security
|
This
guarantee is in addition to and is not in any way prejudiced by any other
guarantee or security subsequently held by any Finance Party.
SECTION
8
REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT
|
23.
|
Each
Obligor on behalf of itself (and in the case of the Company and where set out
expressly, on behalf of each Material Company or each other member of the Group)
makes the representations and warranties set out in this Clause 23 to each
Finance Party on the date of this Agreement.
|
23.1
|
Status
|
|
|
(a)
|
It
is a stock corporation, limited liability company or partnership
with
limited liability, duly incorporated or in the case of a partnership,
established and validly existing under the law of its jurisdiction
of
incorporation.
|
|
|
(b)
|
It
and each of its Material Companies has the power to own its assets
and
carry on its business as it is being
conducted.
|
|
23.2
|
Binding
obligations
|
The
obligations expressed to be assumed by it in each Finance Document are, subject
to the Legal Reservations, legal, valid, binding and enforceable
obligations.
|
23.3
|
Non-conflict
with other obligations
|
The
entry
into and performance by it of, and the transactions contemplated by, the Finance
Documents do not and will not conflict with:
|
|
(a)
|
any
law or regulation applicable to it in its relevant jurisdiction of
incorporation;
|
|
|
(b)
|
its
constitutional documents; or
|
|
|
(c)
|
any
agreement, mortgage, bond or instrument to which it is a party or
which is
binding upon it or any of its assets to an extent or in a manner
which has
a Material Adverse Effect.
|
|
23.4
|
Power
and authority
|
It
has
the power to enter into, perform and deliver, and has taken all necessary action
to authorise its entry into, performance and delivery of, the Finance Documents
to which it is a party and the transactions contemplated by those Finance
Documents.
|
23.5
|
Validity
and admissibility in
evidence
|
|
|
(a)
|
All
Authorisations required or
desirable:
|
|
|
(i)
|
to
enable it lawfully to enter into, exercise its rights and comply
with its
obligations in the Finance Documents to which it is a party;
and
|
|
|
(ii)
|
to
make the Finance Documents to which it is a party admissible in evidence
in its jurisdiction of
incorporation,
|
have
been
obtained or effected and are in full force and effect.
|
|
(b)
|
All
Authorisations necessary for the conduct of the business of a member
of
the Group as carried on at the date of this Agreement have been obtained
or effected and are in full force and effect, except where failure
to
obtain or effect those Authorisations is not reasonably likely to
have a
Material Adverse Effect.
|
|
23.6
|
Governing
law and enforcement
|
Subject
to the Legal Reservations:
|
|
(a)
|
the
choice of German law as the governing law of the Finance Documents
will be
recognised and enforced in its jurisdiction of incorporation;
and
|
|
|
(b)
|
any
judgment obtained in Germany in relation to a Finance Document will
be
recognised and enforced in its jurisdiction of
incorporation.
|
|
23.7
|
Deduction
of Tax
|
It
is not
required to make any deduction for or on account of Tax from any payment it
may
make under any Finance Document to a Qualifying Lender (in the case of a Treaty
Lender on the assumption that the relevant treaty formalities have been complied
with).
|
23.8
|
No
filing or stamp taxes
|
Under
the
law of its jurisdiction of incorporation it is not necessary that the Finance
Documents be filed, recorded or enrolled with any court or other authority
in
that jurisdiction or that any stamp, registration or similar tax be paid on
or
in relation to the Finance Documents or the transactions contemplated by the
Finance Documents.
|
23.9
|
No
default
|
|
|
(a)
|
No
Event of Default is continuing or might reasonably be expected to
result
from the making of any Utilisation.
|
|
|
(b)
|
No
other event or circumstance is outstanding which constitutes a default
under any other agreement or instrument which is binding on it or
(in the
case of the Company only) any of its Subsidiaries which might have
a
Material Adverse Effect.
|
|
23.10
|
No
misleading information
|
|
|
(a)
|
The
factual information provided in the Information Memorandum and all
other
written factual information designated by the Company to fall within
the
scope of this Clause 23.10 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.
|
|
|
(b)
|
The
financial projections contained in the Information Memorandum have
been
prepared on the basis of recent historical information and on the
basis of
reasonable assumptions.
|
|
|
(c)
|
So
far as the Company is aware, nothing has occurred and no information
been
omitted from the Information Memorandum that results in the information
contained in the Information Memorandum being untrue or misleading
in any
material respect.
|
|
|
(d)
|
The
Company is not aware of any fact or circumstance that has not been
disclosed or is not otherwise publicly available to any of the Finance
Parties prior to the making (including the repetition) of this
representation which might, if disclosed, have adversely affected
the
decision of a person acting as a prudent businessman in considering
whether to provide finance to any of the Obligors upon the terms
of this
Agreement.
|
|
23.11
|
Financial
statements
|
Its
most
recent audited financial statements delivered pursuant to Clause 24.1
(Financial Statements):
|
|
(a)
|
were
prepared in accordance with Applicable GAAP consistently applied
unless
otherwise disclosed therein;
|
|
|
(b)
|
disclose
all liabilities (contingent or otherwise) and all unrealised or
anticipated losses required to be disclosed in accordance with Applicable
GAAP; and
|
|
|
(c)
|
save
as disclosed therein, give a true and fair view of its financial
condition
and operations (consolidated in the case of the Company's audited
consolidated financial statements) during the relevant financial
year.
|
|
23.12
|
Pari
passu ranking
|
Its
payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to
companies generally.
|
23.13
|
No
proceedings pending or
threatened
|
No
action
or administrative proceedings of or before any court, arbitral body or
governmental authority or agency which are reasonably likely to be adversely
determined, have been started or credibly threatened against any member of
the
Group and which if adversely determined, might reasonably be expected to have
a
Material Adverse Effect.
|
23.14
|
Environmental
laws and licences
|
It
and
(in the case of the Company only) each other member of the Group
has:
|
|
(a)
|
complied
with all Environmental Laws to which it may be
subject;
|
|
|
(b)
|
obtained
all Environmental Licences required or desirable in connection with
its
business; and
|
|
|
(c)
|
complied
with the terms of those Environmental
Licences,
|
in
each
case where failure to do so would be reasonably likely to have a Material
Adverse Effect.
|
23.15
|
Environmental
Releases
|
No:
|
|
(a)
|
real
property currently or previously owned, leased or occupied by it
or (in
the case of the Company only) any of its Subsidiaries is contaminated
with
any Hazardous Substance; and
|
|
|
(b)
|
discharge,
release, leaching, migration or escape of any Hazardous Substance
into the
environment has occurred or is occurring on, under or from that real
property, in each case in circumstances where this would be reasonably
likely to have a Material Adverse
Effect.
|
|
23.16
|
No
material adverse change
|
There
has
been no material adverse change in the assets, business or financial condition
of the Company or the Group taken as whole since the date of the Original
Financial Statements.
|
23.17
|
Material
Companies
|
The
list
of Material Companies attached as Schedule 18 (List of Material
Companies) is accurate in all material respects.
|
23.18
|
Acquisition-related
representations and
warranties
|
The
Offer
Document or, as applicable, the Scheme Document contains all the material terms
of the Offer or Scheme.
|
23.19
|
Repetition
|
|
|
(a)
|
The
Repeated Representations shall be made by the Company on its own
behalf
and on behalf of the other Obligors (under a power of attorney
(Vollmacht) granted to it by the Obligors pursuant to
paragraph (d) below) (by reference to the facts and circumstances
then existing) on:
|
|
|
(i)
|
the
Syndication Date, the date of each Utilisation Request and Selection
Notice; and
|
|
|
(ii)
|
in
the case of an Additional Borrower, the day on which it becomes (or
it is
proposed that it becomes) an Additional
Borrower.
|
|
|
(b)
|
In
addition the representations in Clause 23.10 (No misleading
information) and Clause 23.11 (Financial statements) will be
deemed to be repeated by each relevant Obligor by reference to the
facts
and circumstances then existing on the Syndication
Date.
|
|
|
(c)
|
In
addition, the representation in Clause 23.18 (Acquisition-related
representations and warranties) will be made by the Company on the
date of the first Utilisation Request funding the acquisition of
Target
Shares pursuant to the Offer or
Scheme.
|
|
|
(d)
|
Each
Obligor (other than the Company) hereby empowers (bevollmächtigt)
the Company to make the Repeated Representations on its behalf as
its
attorney (Stellvertreter). Each Obligor (other than the Company)
hereby relieves the Company from the restrictions pursuant to section
181
of the Civil Code (Bürgerliches Gesetzbuch) for the purpose of
making the Repeated Representations on its behalf as attorney
(Stellvertreter).
|
The
undertakings in this Clause 24 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.
|
24.1
|
Financial
statements
|
The
Company shall supply to the Agent in sufficient copies for all the
Lenders:
|
|
(a)
|
as
soon as the same become available, but in any event within 120 days
after
the end of each of its financial
years:
|
|
|
(i)
|
its
audited unconsolidated financial statements and its audited consolidated
financial statements for that financial year;
and
|
|
|
(ii)
|
the
audited (if available) or unaudited (if audited financial statements
are
not available) financial statements of each Obligor for that financial
year; and
|
|
|
(b)
|
as
soon as the same become available, but in any event within 60 days
after
the end of each half of each of its financial
years:
|
|
|
(i)
|
its
unaudited consolidated financial statements and the consolidated
financial
statements of the Group for that financial half year;
and
|
|
|
(ii)
|
the
unaudited unconsolidated financial statements of each Obligor for
that
financial half year.
|
|
|
(c)
|
as
soon as the same become available, but in any event within 60 days
after
the end of the first and third quarter of its financial
years:
|
|
|
(i)
|
its
unaudited consolidated financial statements for that financial quarter;
and
|
|
|
(ii)
|
the
unaudited unconsolidated financial statements of each Obligor for
that
financial quarter.
|
|
24.2
|
Compliance
Certificate
|
|
|
(a)
|
The
Company shall supply to the Agent, with each set of financial statements
delivered pursuant to paragraph (a)(i) or (b)(i) of Clause 24.1
(Financial statements), a Compliance Certificate setting out (in
reasonable detail) computations as to compliance with Clause 25
(Financial covenants) and for the purpose of determining the
Margin as set out in the definition of "Margin" as at the date at
which
those financial statements were drawn
up.
|
|
|
(b)
|
Each
Compliance Certificate shall be accompanied by a list of Material
Companies as of the date at which those financial statements were
drawn
up, setting out the Company's (or other Group member's) stake in
such
Material Company, its net turnover (excluding intra-group turnover),
its
share of the total consolidated net turnover of the group, its total
assets (excluding intra-group assets/transactions) and its share
of the
total consolidated assets of the
Group.
|
|
|
(c)
|
Each
Compliance Certificate shall be signed by two directors of the Company
(or
a director and a procurist (Prokurist) of the Company) and, if
required to be delivered with the financial statements delivered
pursuant
to paragraph (a)(i) of Clause 24.1 (Financial statements), shall
be reported on by the Company's
auditors.
|
|
24.3
|
Requirements
as to financial statements
|
|
|
(a)
|
Each
set of financial statements delivered by the Company pursuant to
Clause
24.1 (Financial statements) shall be certified by two directors
of the relevant company as fairly representing its financial condition
as
at the date at which those financial statements were drawn
up.
|
|
|
(b)
|
|
|
(i)
|
The
Company shall procure that each set of financial statements of an
Obligor
delivered pursuant to Clause 24.1 (Financial statements) is
prepared using GAAP and accounting practices and financial reference
periods consistent with those applied in the preparation of the Original
Financial Statements for that Obligor unless, in relation to any
set of
financial statements, it notifies the Agent that there has been a
change
in Applicable GAAP or the accounting practices or reference periods
which
would be material in the context of the definition of "Material
Company", the undertakings in this Clause 24 or the financial
covenants in Clause 25 (Financial covenants), and its auditors
(or, if appropriate, the auditors of the Obligor) deliver to the
Agent:
|
|
|
(A)
|
a
description of any change necessary for those financial statements
to
reflect the Applicable GAAP, accounting practices and reference periods
upon which that Obligor's Original Financial Statements were prepared;
and
|
|
|
(B)
|
sufficient
information, in form and substance as may be reasonably required
by the
Agent, to enable the Lenders to determine whether Clause 25 (Financial
covenants) has been complied with, to determine the Margin as set out
in the definition of "Margin" and make an accurate
comparison between the financial position indicated in those financial
statements and that Obligor's Original Financial
Statements.
|
|
|
(ii)
|
If
the Company notifies the Agent of a change in accordance with paragraph
(i) above then the Company and Agent shall enter into negotiations
in good
faith for a period of not more than 30 days with a view to agreeing
any
amendments to this Agreement which may be necessary to put the Company
and
the Finance Parties in the same position they would have been in
had the
change not occurred and if any amendments are agreed they shall take
effect and be binding on each of the Parties in accordance with their
terms.
|
Any
reference in this Agreement to "those financial statements" shall be construed
as a reference to those financial statements as adjusted to reflect the basis
upon which the Original Financial Statements were prepared.
If
no
such agreement is reached within such 30 day period, the Company shall supply
with each set of its consolidated Financial Statements another set of
consolidated Financial Statements prepared on the same basis as its original
Financial Statements.
|
24.4
|
Budget
|
|
|
(a)
|
The
Company shall supply to the Agent in sufficient copies for all the
Lenders, as soon as the same become available but in any event within
two
months after the beginning of each of its Financial Years, a Budget
for
that financial year and the following two financial
years.
|
|
|
(b)
|
The
Company shall ensure that each
Budget:
|
|
|
(i)
|
is
in the same form as the business plan delivered pursuant to Schedule
2
(Conditions Precedent) Part I item 4(a)(iv) and includes a
projected consolidated profit and loss, balance sheet and cashflow
statement for the Group, projected financial covenant
calculations;
|
|
|
(ii)
|
is
prepared in accordance with the Accounting Principles and the accounting
practices and financial reference periods applied to financial statements
under Clause 24.1 (Financial statements);
and
|
|
|
(iii)
|
has
been approved by the board of directors of the
Company.
|
|
24.5
|
Information:
miscellaneous
|
|
|
The
Company shall supply to the Agent (in sufficient copies for all the
Lenders, if the Agent so requests):
|
|
|
(a)
|
all
material statements and documents despatched by the Company to its
shareholders (or any class of them) generally or its creditors generally
at the same time as they are dispatched unless such information is
available on the website of the Company notified to the
Agent;
|
|
|
(b)
|
if
not publicly available, details of any announcement from Xxxxx'x,
Standard
& Poor or Fitch of any change in its ratings or ratings outlook of
the
long-term unsecured debt of the Company or of the rating of the Facilities
(if any);
|
|
|
(c)
|
promptly
upon becoming aware thereof, identification of any asset sold as
a
Specified Disposal, the expected date of the Disposal and expected
Net
Disposal Proceeds resulting from such Disposal and the envisaged
date of
mandatory prepayment of Net Disposal
Proceeds;
|
|
|
(d)
|
promptly
upon becoming aware of them, reasonable details of any action or
administrative proceeding of or before any court, board of arbitration
or
governmental authority or agency which is current, credibly threatened
or
pending against any member of the Group which in each case is reasonably
likely to be adversely determined and which, if so determined, would
be
reasonably likely to have a Material Adverse
Effect;
|
|
|
(e)
|
promptly,
such further information regarding the financial condition of any
member
of the Group as any Finance Party (through the Agent) may reasonably
request in line with customary banking and regulatory requirements
(including, without limitation, all information and documents as
may be
required under sections 13, 13(a) and 18 of the German Banking Act
(Gesetz über das Kreditwesen KWG));
and
|
|
|
(f)
|
a
copy of any announcement that a member of the Group is required to
make
prior to the Acquisition Closing in connection with on or off-market
purchases of Target Shares.
|
|
24.6
|
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 (unless
that
Obligor is aware that a notification has already been provided by another
Obligor).
|
24.7
|
Use
of websites
|
|
|
(a)
|
The
Company may satisfy its obligation under this Agreement to deliver
any
information in relation to those Lenders (the "Website
Lenders") who accept this method of communication by posting this
information onto an electronic website designated by the Company
and the
Agent (the "Designated Website")
if:
|
|
|
(i)
|
the
Agent expressly agrees (after consultation with each of the Lenders)
that
it will accept communication of the information by this
method;
|
|
|
(ii)
|
both
the Company and the Agent are aware of the address of and any relevant
password specifications for the Designated Website;
and
|
|
|
(iii)
|
the
information is in a format previously agreed between the Company
and the
Agent.
|
If
any
Lender (a "Paper Form Lender") does not agree to the delivery
of information electronically then the Agent shall notify the Company
accordingly and the Company shall supply the information to the Agent (in
sufficient copies for each Paper Form Lender) in paper form. In any event the
Company shall supply the Agent with at least one copy in paper form of any
information required to be provided by it.
|
|
(b)
|
The
Agent shall supply each Website Lender with the address of and any
relevant password specifications for the Designated Website following
designation of that website by the Company and the
Agent.
|
|
|
(c)
|
The
Company shall promptly upon becoming aware of its occurrence notify
the
Agent if:
|
|
|
(i)
|
the
Designated Website cannot be accessed due to technical
failure;
|
|
|
(ii)
|
the
password specifications for the Designated Website
change;
|
|
|
(iii)
|
any
new information which is required to be provided under this Agreement
is
posted onto the Designated Website;
|
|
|
(iv)
|
any
existing information which has been provided under this Agreement
and
posted onto the Designated Website is amended;
or
|
|
|
(v)
|
the
Company becomes aware that the Designated Website or any information
posted onto the Designated Website is or has been infected by any
electronic virus or similar
software.
|
If
the
Company notifies the Agent under paragraph (c)(i) or paragraph (c)(v) above,
all
information to be provided by the Company under this Agreement after the date
of
that notice shall be supplied in paper form unless and until the Agent and
each
Website Lender is satisfied that the circumstances giving rise to the
notification are no longer continuing.
|
|
(d)
|
Any
Website Lender may request, through the Agent, one paper copy of
any
information required to be provided under this Agreement which is
posted
onto the Designated Website. The Company shall comply with any such
request within ten Business Days.
|
|
24.8
|
"Know
your customer" checks
|
|
|
(a)
|
If:
|
|
|
(i)
|
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation made after the date of this
Agreement;
|
|
|
(ii)
|
any
change in the status of an Obligor or the composition of the shareholders
of an Obligor after the date of this Agreement;
or
|
|
|
(iii)
|
a
proposed assignment or transfer by a Lender of any of its rights
and
obligations under this Agreement to a party that is not a Lender
prior to
such assignment or transfer,
|
obliges
the Agent or any Lender (or, in the case of paragraph (iii) above, any
prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information
is
not already available to it, each Obligor shall promptly upon the request of
the
Agent or any Lender supply, or procure the supply of, such documentation and
other evidence as is reasonably requested by the Agent (for itself or on behalf
of any Lender) or any Lender (for itself or, in the case of the event described
in paragraph (iii) above, on behalf of any prospective new Lender) in order
for
the Agent, such Lender or, in the case of the event described in paragraph
(iii)
above, any prospective new Lender to carry out and be satisfied it has complied
with all necessary "know your customer" or other similar checks under all
applicable laws and regulations pursuant to the transactions contemplated in
the
Finance Documents.
|
|
(b)
|
Each
Lender shall promptly upon the request of the Agent supply, or procure
the
supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself) in order for the Agent to carry
out
and be satisfied it has complied with all necessary "know your customer"
or other similar checks under all applicable laws and regulations
pursuant
to the transactions contemplated in the Finance
Documents.
|
|
|
(c)
|
The
Company shall, by not less than ten Business Days' prior written
notice to
the Agent, notify the Agent (which shall promptly notify the Lenders)
of
its intention to request that one of its Subsidiaries becomes an
Additional Borrower pursuant to Clause 29 (Changes to the
Obligors).
|
|
|
(d)
|
Following
the giving of any notice pursuant to paragraph (c) above, if the
accession
of such Additional Borrower obliges the Agent or any Lender to comply
with
"know your customer" or similar identification procedures in circumstances
where the necessary information is not already available to it, the
Company shall promptly upon the request of the Agent or any Lender
supply,
or procure the supply of, such documentation and other evidence as
is
reasonably requested by the Agent (for itself or on behalf of any
Lender)
or any Lender (for itself or on behalf of any prospective new Lender)
in
order for the Agent or such Lender or any prospective new Lender
to carry
out and be satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and
regulations pursuant to the accession of such member of the Group
to this
Agreement as an Additional
Borrower.
|
|
25.1
|
Financial
definitions
|
In
this
Clause 25:
n n n
|
25.2
|
Financial
condition
|
The
Company shall ensure that:
n n n
|
25.3
|
Financial
testing
|
|
|
(a)
|
Subject
to paragraph (b) below, the financial covenants set out in Clause
25.2
(Financial condition) shall be tested as of the last day of each
Relevant Period by reference to each of the financial statements
delivered
pursuant to paragraph (a)(i) and (b)(i) of Clause 24.1 (Financial
Statements) and/or each Compliance Certificate delivered pursuant to
Clause 24.2 (Compliance
Certificate).
|
|
|
(b)
|
In
respect of EBITDA and Consolidated Net Finance Charges for each of
the
Relevant Periods ending an a date which is less than 12 months after
the
Acquisition Closing, the amount thereof shall be calculated by reference
to EBITDA and Consolidated Net Finance Charges as disclosed in the
financial statements provided that the EBITDA and
Consolidated Net Finance Charges with respect of the part of any
Relevant
Period falling prior to the Acquisition Closing shall be included
on a
pro forma basis as if the Acquisition had been made on the first
day of the Relevant Period.
|
The
undertakings in this Clause 26 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.
|
26.1
|
Authorisations
|
Each
Obligor shall promptly obtain, comply with and do all that is necessary to
maintain in full force and effect any Authorisation required under any law
or
regulation of its jurisdiction of incorporation to enable it to perform its
obligations under the Finance Documents.
|
26.2
|
Compliance
with laws
|
|
|
(a)
|
Each
Obligor shall comply in all material respects with all applicable
laws and
regulations to which it may be subject, if failure so to comply would
materially impair its ability to perform its obligations under the
Finance
Documents.
|
|
|
(b)
|
The
Company shall procure that its Subsidiaries (other than an Obligor
will)
comply in all respects with all applicable laws and regulations where
failure to do so is reasonably likely to have a Material Adverse
Effect.
|
|
26.3
|
Negative
pledge
|
No
Obligor shall (and the Company shall ensure that no other Material Company
will)
create or permit to subsist any Security for or in respect of Financial
Indebtedness over any of its assets other than Permitted Security.
|
26.4
|
Disposals
|
No
Obligor shall (and the Company shall ensure that no other member of the Group
will), enter into a single transaction or a series of transactions (whether
related or not) to sell, lease, transfer or otherwise dispose of all or any
part
of its assets other than pursuant to a Permitted Disposal.
|
26.5
|
Merger
|
The
Company shall not enter into any transformation (Umwandlung) within the
meaning of the German Transformation Act (Umwandlungsgesetz), any
similar transaction effected otherwise than in reliance on the provisions of
the
German Transformation Act or, in each case, any similar transaction under the
laws of any jurisdiction other than Germany (each such transformation or similar
transaction, a "Transformation"), other than pursuant to a
Permitted Transformation.
|
26.6
|
Change
of business
|
The
Company shall ensure that no substantial change is made to the general nature
of
the business of the Company or the Group taken as a whole from that carried
on
at the date of this Agreement.
|
26.7
|
Insurance
|
Each
Obligor shall (and the Company shall ensure that each member of the Group will)
maintain insurances on and in relation to its business and assets with reputable
underwriters or insurance companies in accordance with Group practice existing
as of the date of this Agreement, save where failure to do so could not
reasonably be expected to have a Material Adverse Effect.
|
26.8
|
Environmental
compliance
|
Each
Obligor shall (and the Company shall ensure that each other member of the Group
will):
|
|
(a)
|
comply
in all material respects with all Environmental Laws to which it
is
subject;
|
|
|
(b)
|
obtain
all Environmental Licences required in connection with its business;
and
|
|
|
(c)
|
comply
with the terms of all those Environmental
Licences,
|
in
each
case where failure to do so is reasonably likely to have a Material Adverse
Effect.
|
26.9
|
Environmental
claims
|
The
Company shall promptly notify the Agent of any claim made against, or any notice
or other communication received by, any member of the Group in respect of any
actual or alleged breach of or liability under any Environmental Law which,
if
substantiated, is reasonably likely to have a Material Adverse
Effect.
|
26.10
|
Guarantees
|
No
Obligor shall (and the Company shall ensure that no other member of the Group
will) grant any guarantee (excluding for the avoidance of doubt letters of
comfort without funding undertaking (weiche Patronatserklärungen)) or
other similar assurance in respect of obligations of third parties which could
result in a payment claim by the beneficiary against the grantor thereof in
respect of obligations of third parties (each, a "Guarantee")
to any person not a member of the Group, other than Permitted
Guarantees.
|
26.11
|
Loans
out
|
No
Obligor shall (and the Company shall procure that no other member of the Group
will) grant any loans or extend any credit to any person which is not a member
of the Group, other than Permitted Loans.
|
26.12
|
Subsidiary
Financial Indebtedness
|
The
Company shall ensure that no other member of the Group other than
HeidelbergCement Finance B.V. and any other Finance Subsidiary incurs any
Financial Indebtedness other than Permitted Financial Indebtedness.
|
26.13
|
Acquisitions
|
Until
all
Facility A Loans and Facility B Loans have been repaid or prepaid and the
Available Commitment in relation to Facility A and Facility B is zero, no
Obligor shall (and the Company shall procure that no member of the Group
will):
|
|
(a)
|
acquire
the whole or any part of any business, or any participation in any
business (whether in the form of an asset or share deal);
or
|
|
|
(b)
|
enter
into or acquire any shares, stocks, securities or other interests
in a
joint venture, in each case,
|
other
than pursuant to any Permitted Acquisition.
|
26.14
|
Ownership
of Borrowers (other than the
Company)
|
The
Company shall ensure that each Borrower (other than the Company) is, during
the
lifetime of the Facilities (but only if and for so long as it remains a Borrower
thereunder), a member of the Group.
|
26.15
|
Acquisition-related
undertakings
|
The
Company shall and shall procure that BidCo (and, in relation to paragraph (c)
and (f), any member of the Group (other than a member of the Target Group))
will:
|
|
(a)
|
comply
in all material respects with all laws and regulations relevant in
the
context of the Offer or Scheme, including the Takeover
Code;
|
|
|
(b)
|
not
without the consent of the Agent (acting on the instructions of the
Majority Lenders) agree to amend, waive, revise, withdraw or agree
to
decide not to enforce in whole or in part any term or condition of
the
Offer or Scheme save (i) where such amendment, waiver, revision,
withdrawal or non-enforcement could not be reasonably expected to
be
material or prejudicial to the interests of the Lenders, (ii) as
required
by the Takeover Code or the Takeover Panel, (iii) is pursuant to
an Offer
Conversion Notice served in accordance with Clause 3.3 (Conversion
from Scheme to Offer) or (iv) where the Takeover Panel does not
permit the relevant terms and conditions to be
invoked;
|
|
|
(c)
|
ensure
that nothing is done to oblige Bidco to make a Rule 9
offer;
|
|
|
(d)
|
keep
the Agent reasonably informed as to the progress of the Offer or
Scheme
and any material developments in relation to the Offer or
Scheme;
|
|
|
(e)
|
promptly
supply to the Agent copies of all documents, notices or announcements
received or issued by it or any other information in its possession
in
relation to the Offer or Scheme which it is permitted to make available
to
the Agent;
|
|
|
(f)
|
except
with the prior consent of the Arrangers or if the excess is funded
by way
of additional equity raised by the Company, (i) not agree to any
increase
in the purchase price per Target Share and (ii) not take any other
action
that would result in the Offer or Scheme having to be made at a price
in
each case above the amount separately agreed between the Arranger
and the
Company;
|
|
|
(g)
|
unless
required by any law or regulation (including the Takeover Code),
the
London Stock Exchange or the Panel, not make any statement or announcement
(other than the Offer or Scheme, the Press Release or the Offer Document
or Scheme Document) containing any information or statement concerning
the
Finance Documents or Finance Parties without the prior approval of
the
Arranger; and
|
|
|
(h)
|
issue
the Press Release within 3 months of the date of this
Agreement.
|
|
26.16
|
Material
Companies
|
The
Company shall ensure that the aggregated total assets and turnover of all
Material Companies and the Company equal at least n n n%
of
the total assets and consolidated turnover of (i) prior to the delivery of
the
first financial statements pursuant to paragraphs (a)(i), (b)(i) or (c)(i)
of
Clause 24.1 (Financial Statements) following the Acquisition Closing
the Group excluding the Target Group and, (ii) thereafter the Group, to be
tested semi-annually as of 30 June and 31 December of any year.
|
26.17
|
Cash
Management
|
The
Company shall use its best efforts to procure that cash reserves available
to
any member of the Target Group, unless the financial officer (or equivalent
officer) determines (acting reasonably) that it is necessary to hold such cash
reserves in the Target Group, are used to repay Financial Indebtedness of the
members of the Target Group and, thereafter, of other members of the
Group.
|
26.18
|
Replacement
of DB Facility
|
The
Company shall repay all amounts outstanding under the DB Facility by
Utilisations under Facility A within five Business Days of the date that it
and/or any other member of the Group acquires 3 per cent. or more of the Target
Shares. On such date the Company shall cancel the DB Facility.
|
|
(a)
|
Each
of the events or circumstances set out in this Clause 27 is an Event
of
Default (save as for Clause 27.15 (Acceleration) and Clause 27.16
(Clean-Up Period).
|
|
|
(b)
|
Without
prejudice to the provisions of this Agreement, section 490(1) of
the Civil
Code (Bürgerliches Gesetzbuch) shall not
apply.
|
|
27.1
|
Non-payment
|
An
Obligor fails to pay:
|
|
(a)
|
any
amount due from it in respect of principal or interest under this
Agreement on the due date and at the place and in the currency in
which it
is expressed to be payable, unless such failure to pay is caused
by
technical or administrative failure or error and payment is made
within 3
Business Days after its due date;
or
|
|
|
(b)
|
any
other amount due under any Finance Document within 10 Business Days
after
its due date.
|
|
27.2
|
Financial
covenants
|
Any
requirement of Clause 25 (Financial covenants) is not
satisfied.
|
27.3
|
Other
obligations
|
|
|
(a)
|
An
Obligor does not:
|
|
|
(i)
|
comply
with or perform any obligation expressed to be assumed by it under
this
Agreement other than under Clause 27.1 (Non-payment) and Clause
25 (Financial Covenants) referred to above;
or
|
|
|
(ii)
|
comply
with any other material provision of any Finance
Document.
|
|
|
(b)
|
No
Event of Default under paragraph (a) above will occur if the failure
to
comply is capable of remedy and is remedied within 15 Business Days
of the
Agent giving notice to the Company.
|
|
27.4
|
Misrepresentation
|
Any
representation or statement made or deemed to be made by or on behalf of an
Obligor in the Finance Documents or any other document delivered by or on behalf
of any Obligor under or in connection with any Finance Document is or proves
to
have been incorrect or misleading in any material respect when made or, if
in
order for a Repeating Representation which is not a Major Representation not
to
be incorrect or misleading in any material respect, such representation is
made
subject to disclosures and would have been incorrect or misleading in any
material respect if it had been made without such disclosure and, in each case
if capable of remedy, is not remedied within 15 Business Days after the Agent
has given notice thereof to the Company.
|
27.5
|
Cross
default
|
|
|
(a)
|
Any
Financial Indebtedness of (i) any Obligor, (ii) any Material Company
or
(iii) or any other member of the Group (other than a Minor Company)
(in
each case other than under the Finance Documents) is not paid when
due nor
within any originally applicable grace
period.
|
|
|
(b)
|
Any
Financial Indebtedness of (i) any Obligor, (ii) any Material Company
or
(iii) any other member of the Group (other than a Minor company)
(in each
case other than under the Finance Documents) is declared to be or
otherwise becomes due and payable prior to its specified maturity
as a
result of an event of default (however
described).
|
|
|
(c)
|
Any
creditor of any Financial Indebtedness of (i) any Obligor, (ii) any
Material Company or (iii) any other member of the Group (other than
a
Minor Company) becomes entitled to declare any Financial Indebtedness
of
any member of the Group due and payable prior to its specified maturity
as
a result of an event of default (however
described).
|
|
|
(d)
|
No
Event of Default will occur under this Clause 27.5 if the aggregate
amount
of Financial Indebtedness or commitment for Financial Indebtedness
falling
within paragraphs (a) to (d) above is less than EUR n n n
(or its equivalent in any other currency or
currencies).
|
|
27.6
|
Insolvency
|
|
|
(a)
|
Any
Obligor or Material Company incorporated under the laws of Germany
or
incorporated in another jurisdiction but having its centre of main
interests for the purposes of the European Regulation on Insolvency
Proceedings (EC Council Regulation 1346/2000 of 29 May 2000) in Germany
(each, a "German Entity") generally suspends making
payments on its debts or announces an intention to do so, is over-indebted
(überschuldet) or unable to pay its debts as they fall due
(zahlungsunfähig), due to imminent illiquidity commences
negotiations with any or more of its creditors with a view to the
general
readjustment or rescheduling of its indebtedness or makes a general
assignment for the benefit of or a composition with its creditors
or, for
any of the reasons set out in sections 17-19 of the German Insolvency
Code
(Insolvenzordnung), files for insolvency (Antrag auf
Eröffnung eines Insolvenzverfahrens), or the board of directors
(Geschäftsführung) of a German Entity is required by law
to file for insolvency.
|
|
|
(b)
|
The
competent court takes any of the actions set out in section 21 of
the
German Insolvency Code (Insolvenzordnung) or institutes
insolvency proceedings against a German Entity (Eröffnung eines
Insolvenzverfahrens).
|
|
|
(c)
|
Any
event analogous to any of the events referred to in paragraphs (a)
and (b)
above occurs in any jurisdiction other than Germany with respect
to an
Obligor or a Material Company which is not a German
Entity.
|
|
27.7
|
Winding-up
|
|
|
(a)
|
Any
(i) Obligor, (ii) Material Company or (iii) other member of the Group
(other than a Minor Company) takes any corporate action, or other
steps
are taken or legal proceedings are started, for the winding-up of
the
business or assets of any such Obligor, Material Company, or other
member
of the Group (other than a Minor Company) or for the appointment
of a
receiver, administrator, administrative receiver, trustee or similar
officer of any of them or of any of their respective business or
assets.
|
|
|
(b)
|
Paragraph
(a) above shall not apply to:
|
|
|
(i)
|
any
solvent liquidation of any Material Company or other member of the
Group
which is not an Obligor; or
|
|
|
(ii)
|
any
winding-up resulting from the implementation of any transaction
contemplated in the German Transformation Act (Umwandlungsgesetz)
or any similar transaction effected otherwise than in reliance on
the
provisions of the German Transformation Act or, in each case, any
similar
transaction under the laws of any jurisdiction other than
Germany,
|
|
|
(c)
|
not
otherwise prohibited under this
Agreement,
|
(each,
a
"Permitted Liquidation").
|
27.8
|
Creditors'
process
|
Any
attachment (Pfändung), sequestration (Zwangsverwaltung),
distress (Beschlagnahme), and/or other execution
(Zwangsvollstreckung) legal process (other than any prejudgment
attachment (Arrest) or other execution legal process in respect of
provisional relief (einstweiliger Rechtsschutz)) in relation to, when
aggregated with each other, obligations of at least EUR n n n
(or
its equivalent) affects any asset or assets of an Obligor or Material Company
and is not discharged within 30 Business Days.
|
27.9
|
Ownership
of the Borrower
|
A
Borrower (other than the Company) is not or ceases to be a member of the
Group.
|
27.10
|
Unlawfulness
|
It
is or
becomes unlawful for an Obligor to perform any of its obligations under the
Finance Documents to which it is a party.
|
27.11
|
Repudiation
|
|
|
(a)
|
An
Obligor repudiates a Finance
Document.
|
|
|
(b)
|
The
validity or enforceability of the Finance Documents are adversely
affected
in a material way.
|
|
27.12
|
Adverse
Judgement
|
An
enforceable judgment and/or order for the payment of an amount exceeding
(individually or when aggregated with other judgment(s) and/or order(s) EUR
n n n
(or
its equivalent) is rendered against an Obligor and/or Material Company and
such
judgments or orders remain(s) unsatisfied or no other steps preventing
enforcement (Abwendung der Zwangsvollstreckung) have been successfully
taken within 30 Business Days thereafter.
|
27.13
|
Equity
Injection
|
The
Company had not received no later than on the Acquisition Closing additional
equity in the amount of at least EUR 500,000,000 from shareholders (or any
of
them) by way of cash capital increase.
|
27.14
|
Cessation
of Business
|
Any
Obligor ceases to carry on the business it carries on at the date of signing
of
this Agreement, other than under or in connection with a Permitted
Transaction.
|
27.15
|
Acceleration
|
Subject
to the provisions of this Agreement relating to the Certain Funds Period and
the
Clean-up Period, on and at any time after the occurrence of an Event of Default
which is continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice to the Company:
|
|
(a)
|
cancel
the Total Commitments and/or Ancillary Commitments, at which time
they
shall immediately be cancelled;
|
|
|
(b)
|
declare
that all or part of the Loans, together with accrued interest, and
all
other amounts accrued or outstanding under the Finance Documents
be
immediately due and payable, at which time they shall become immediately
due and payable;
|
|
|
(c)
|
declare
that all or part of the Loans be payable on demand, at which time
they
shall immediately become payable on demand by the Agent on the
instructions of the Majority
Lenders;
|
|
|
(d)
|
declare
all or any part of the amounts (or cash cover in relation to those
amounts) outstanding under the Ancillary Facility to be immediately
due
and payable at which time they shall become immediately due and payable;
and/or
|
|
|
(e)
|
declare
that all or any part of the amounts (or cash cover in relation to
those
amounts) outstanding under the Ancillary Facility be payable on demand,
at
which time they shall immediately become payable on demand by the
Agent on
the instructions of the Majority
Lenders.
|
|
27.16
|
Notwithstanding
any other provision of any Finance Document:
|
|
(a)
|
any
breach of a Clean-Up Representation or a Clean-Up Undertaking;
or
|
|
|
(b)
|
any
Event of Default constituting a Clean-Up
Default,
|
will
be
deemed not to be a breach of representation or warranty, a breach of covenant
or
a Default (as the case may be) if:
|
|
(i)
|
it
would have been (if it were not for this provision) a breach of
representation or warranty, a breach of covenant or a Default only
by
reason of circumstances relating exclusively to any member of the
Target
Group (or any obligation to procure or ensure in relation to a member
of
the Target Group);
|
|
|
(ii)
|
the
circumstances giving rise to it have not been procured by or approved
by
any member of the Group (other than a member of the Target
Group);
|
|
|
(iii)
|
it
does not have a Material Adverse
Effect;
|
|
|
(iv)
|
it
does not affect, as from the Acquisition Closing, the Company's ownership
of the shares to be acquired pursuant to the
Acquisition;
|
|
|
(v)
|
it
has been notified to the Agent by the Company promptly upon its becoming
aware thereof; and
|
|
|
(vi)
|
(where
the Default is capable of being remedied), the Company after having
become
aware of such breach or Default has had or is having such commercially
and
legally reasonable steps taken in respect of such breach or Default
to
remedy it as are open to any members of the
Group.
|
If
the
relevant circumstances are continuing on or after the Clean-up Date, there
shall
be a breach of representation or warranty, breach of covenant or Default, as
the
case may be notwithstanding the above (and without prejudice to the rights
and
remedies of the Finance Parties).
SECTION
9
CHANGES
TO PARTIES
|
28.1
|
Assignments
and transfers by the
Lenders
|
|
|
(a)
|
Subject
to this Clause 28, a Lender (the "Existing Lender")
may:
|
|
|
(i)
|
assign
any of its rights; or
|
|
|
(ii)
|
assign
and transfer by assumption of contract (Vertragsübernahme) any of
its rights and obligations,
|
under
this Agreement to another bank or financial institution (the "New
Lender").
|
|
(b)
|
An
assignment of part of any rights or an assignment and transfer by
assumption of contract (Vertragsübernahme) of part of any rights
and obligations under this Agreement by the Existing Lender must
be in a
minimum amount of EUR 10,000,000 (net of any
retransfer).
|
|
28.2
|
Conditions
of assignment or assignment and transfer by assumption of contract
(Vertragsübernahme)
|
|
|
(a)
|
The
prior written consent of the Company is required for an assignment
or an
assignment and transfer by assumption of contract
(Vertragsübernahme) by an Existing Lender, unless the assignment
or assignment and transfer by assumption of contract
(Vertragsübernahme) is to another Lender or an Affiliate of a
Lender or unless an Event of Default has occurred and is
continuing.
|
|
|
(b)
|
The
consent of the Company to an assignment or assignment and transfer
by
assumption of contract (Vertragsübernahme) must not be
unreasonably withheld or delayed. The Company will be deemed to have
given
its consent five Business Days after the request of the Existing
Lender
has become effective in accordance with Clause 35 (Notices)
unless consent is expressly refused by the Company within that
time.
|
|
|
(c)
|
An
assignment will only be effective upon acceptance by the Agent of
an
otherwise duly completed Assignment Certificate delivered to it by
the
Existing Lender and the New Lender. The Agent shall, subject to the
following sentence, as soon as reasonably practical after receipt
by it of
a duly completed Assignment Certificate appearing on its face to
comply
with the terms of this Agreement and delivered in accordance with
the
terms of this Agreement, accept that Assignment Certificate. The
Agent
shall only be obliged to accept an Assignment Certificate delivered
to it
by the Existing Lender and the New Lender once it is satisfied it
has
complied with all necessary "know your customer" or other similar
checks
under all applicable laws and regulations in relation to the assignment
to
such New Lender.
|
|
|
(d)
|
An
assignment and transfer by assumption of contract
(Vertragsübernahme) will only be effective if the procedure set
out in Clause 28.5 (Procedure for assignment and transfer by
assumption of contract (Vertragsübernahme) is complied
with.
|
|
|
(e)
|
If:
|
|
|
(i)
|
a
Lender assigns or assigns and transfers by assumption of contract
(Vertragsübernahme) any of its rights or obligations under the
Finance Documents or changes its Facility Office;
and
|
|
|
(ii)
|
as
a result of circumstances existing at the date the assignment, assignment
and transfer by assumption of contract (Vertragsübernahme) or
change occurs, an Obligor would be obliged to make a payment to the
New
Lender or Lender acting through its new Facility Office under Clause
17
(Tax gross-up and indemnities) or Clause 18 (Increased
costs),
|
then
the
New Lender or Lender acting through its new Facility Office is only entitled
to
receive payment under those Clauses to the same extent as the Existing Lender
or
Lender acting through its previous Facility Office would have been if the
assignment, assignment and transfer by assumption of contract
(Vertragsübernahme) or change had not occurred, provided
that this Clause 28.2(e) shall not prevent an Obligor from being
required to pay an increased amount under Clause 17 (Tax gross-up and
indemnities) to a Lender which is a Qualifying Lender under paragraph (ii)
of that definition (subject to the completion of procedural formalities where
such Qualifying Lender is a Treaty Lender).
|
|
(f)
|
Notwithstanding
any other term of this Agreement, each Lender shall ensure that at
all
times its Overall Commitment is not less
than:
|
|
|
(i)
|
its
Euro Swingline Commitment; or
|
|
|
(ii)
|
if
it does not have a Euro Swingline Commitment, the Euro Swingline
Commitment of a Lender which is its
Affiliate.
|
|
28.3
|
|
|
|
Each
Lender changing its Facility Office and each New Lender shall,
on the date
upon which the change of the Facility Office or an assignment or
assignment and transfer by assumption of contract
(Vertragsübernahme) takes effect, pay to the Agent (for its own
account) a fee of EUR n n n.
|
|
|
(a)
|
Unless
expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New
Lender
for:
|
|
|
(i)
|
the
legality, validity, effectiveness, adequacy or enforceability of
the
Finance Documents or any other
documents;
|
|
|
(ii)
|
the
financial condition of any Obligor;
|
|
|
(iii)
|
the
performance and observance by any Obligor of its obligations under
the
Finance Documents or any other documents;
or
|
|
|
(iv)
|
the
accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or any other
document,
|
|
|
and
any representations or warranties implied by law are
excluded.
|
|
|
(b)
|
Each
New Lender confirms to the Existing Lender and the other Finance
Parties
that it:
|
|
|
(i)
|
has
made (and shall continue to make) its own independent investigation
and
assessment of the financial condition and affairs of 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 Lender 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 whilst any amount is or may
be
outstanding under the Finance Documents or any Commitment is in
force.
|
|
|
(c)
|
Nothing
in any Finance Document obliges an Existing Lender
to:
|
|
|
(i)
|
accept
a re-assignment or a re-assignment and re-transfer by assumption
of
contract (Vertragsübernahme) from a New Lender of any of the
rights and obligations assigned or assigned and transferred by assumption
of contract (Vertragsübernahme) under this Clause 28;
or
|
|
|
(ii)
|
support
any losses directly or indirectly incurred by the New Lender by reason
of
the non-performance by any Obligor of its obligations under the Finance
Documents or otherwise.
|
|
28.5
|
Procedure
for assignment and transfer by assumption of contract
(Vertragsübernahme)
|
|
|
(a)
|
Subject
to the conditions set out in Clause 28.2 (Conditions of assignment or
assignment and transfer by assumption of contract
(Vertragsübernahme)) an assignment and transfer by assumption of
contract (Vertragsübernahme) is effected in accordance with
paragraph (c) below when the Agent accepts an otherwise duly completed
Transfer Certificate delivered to it by the Existing Lender and the
New
Lender. The Agent shall, subject to paragraph (b) below, as soon
as
reasonably practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of this
Agreement and delivered in accordance with the terms of this Agreement,
accept that Transfer Certificate.
|
|
|
(b)
|
The
Agent shall only be obliged to accept a Transfer Certificate delivered
to
it by the Existing Lender and the New Lender once it is satisfied
it has
complied with all necessary "know your customer" or other similar
checks
under all applicable laws and regulations in relation to the transfer
to
such New Lender.
|
|
|
(c)
|
On
the Transfer Date:
|
|
|
(i)
|
to
the extent that in the Transfer Certificate the Existing Lender seeks
to
assign and transfer by assumption of contract (Vertragsübernahme)
its rights and obligations under the Finance Documents each of the
Obligors and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents and their
respective rights against one another under the Finance Documents
shall be
cancelled (being the "Discharged Rights and
Obligations");
|
|
|
(ii)
|
each
of the Obligors and the New Lender shall assume obligations towards
one
another and/or acquire rights against one another which differ from
the
Discharged Rights and Obligations only insofar as that Obligor and
the New
Lender have assumed and/or acquired the same in place of that Obligor
and
the Existing Lender;
|
|
|
(iii)
|
the
Agent, the Arranger, the New Lender and the other Lenders and any
relevant
Ancillary Lender shall acquire the same rights and assume the same
obligations between themselves as they would have acquired and assumed
had
the New Lender been an Original Lender with the rights and/or obligations
acquired or assumed by it as a result of the assignment and transfer
by
assumption of contract (Vertragsübernahme) and to that extent the
Agent, the Arranger and any relevant Ancillary Lender and the Existing
Lender shall each be released from further obligations to each other
under
the Finance Documents; and
|
|
|
(iv)
|
the
New Lender shall become a Party as a
"Lender".
|
The
Agent
shall promptly after it has executed a Transfer Certificate or an Assignment
Certificate, send to the Company a copy of that Transfer Certificate or
Assignment Certificate.
|
|
(a)
|
Each
Finance Party must keep confidential any information supplied to
it by or
on behalf of any member of the Group in connection with the Finance
Documents. However, a Finance Party is entitled to disclose
information:
|
|
|
(i)
|
which
is publicly available, other than as a result of a breach by that
Finance
Party of this Clause;
|
|
|
(ii)
|
in
connection with any legal or arbitration
proceedings;
|
| (iii) | if required to do so under any law or regulation; |
|
|
(iv)
|
to
its Affiliates and its and their respective officers, employees,
auditors
and professional advisers;
|
|
|
(v)
|
to
the extent allowed under paragraph (b) below;
or
|
|
|
(vi)
|
with
the prior agreement of the Company.
|
|
|
(b)
|
Any
Lender may disclose to any of its Affiliates and any other
person:
|
|
|
(i)
|
to
(or through) whom that Lender assigns or assigns and transfers by
assumption of contract (Vertragsübernahme) (or may potentially
assign or assign and transfer by assumption of contract
(Vertragsübernahme)) all or any of its rights and obligations
under this Agreement;
|
|
|
(ii)
|
with
(or through) whom that Lender enters into (or may potentially enter
into)
any sub-participation in relation to, or any other transaction under
which
payments are to be made by reference to, this Agreement or any Obligor;
or
|
|
|
(iii)
|
to
whom, and to the extent that, information is required to be disclosed
by
any applicable law or regulation,
|
any
information about any Obligor, the Group and the Finance Documents as that
Lender shall consider appropriate if, in relation to sub-paragraphs (i) and
(ii)
above, the person to whom the information is to be given has entered into a
Confidentiality Undertaking. Any Lender may also disclose the size and term
of
the Facilities and the name of each of the Obligors to any investor or potential
investor in a securitization (or similar transaction of broadly equivalent
economic effect) of that Lender's rights or obligations under the Finance
Documents.
|
29.1
|
Assignments
and transfers by Obligors
|
No
Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
|
29.2
|
Additional
Borrowers
|
|
|
(a)
|
Subject
to compliance with the provisions of paragraphs (c) and (d) of Clause
24.8
("Know your customer" checks), the Company may request that any
other member of the Group becomes an Additional Borrower
(Vertragsbeitritt). That other member of the Group shall become
an Additional Borrower if:
|
|
|
(i)
|
it
is Bidco or all the Lenders approve the addition of that other member
of
the Group (such approval not to be unreasonably withheld or
delayed);
|
|
|
(ii)
|
the
Company delivers to the Agent a duly completed and executed Accession
Letter;
|
|
|
(iii)
|
the
Company confirms that no Default is continuing or would occur as
a result
of that member of the Group becoming an Additional Borrower;
and
|
|
|
(iv)
|
the
Agent has received all of the documents and other evidence listed
in Part
III of Schedule 2 (Conditions precedent) in relation to that
Additional Borrower, each in form and substance satisfactory to the
Agent.
|
|
|
(b)
|
The
Agent shall notify the Company and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory
to it)
all the documents and other evidence listed in Part III of Schedule
2
(Conditions precedent).
|
|
29.3
|
Resignation
of a Borrower
|
|
|
(a)
|
The
Company may request that a Borrower (other than the Company) ceases
to be
a Borrower by delivering to the Agent a Resignation
Letter.
|
|
|
(b)
|
The
Agent shall accept a Resignation Letter and notify the Company and
the
Lenders of its acceptance if such Borrower is under no actual or
contingent obligations as a Borrower under any Finance
Documents,
|
at
which
time that entity shall cease to be a Borrower and shall have no further rights
or obligations under the Finance Documents.
|
29.4
|
Repetition
of Representations
|
|
Delivery
of an Accession Letter constitutes confirmation by the relevant member
of
the Group that the Repeated Representations are true and correct
in
relation to it as at the date of delivery as if made by reference
to the
facts and circumstances then
existing.
|
SECTION
10
THE
FINANCE PARTIES
|
30.1
|
Appointment
of the Agent
|
|
|
(a)
|
Each
other Finance Party appoints the Agent to act as its agent and attorney
(Stellvertreter) under and in connection with the Finance
Documents.
|
|
|
(b)
|
Each
other Finance Party authorises the Agent to exercise the rights,
powers,
authorities and discretions specifically given to the Agent under
or in
connection with the Finance Documents together with any other incidental
rights, powers, authorities and
discretions.
|
|
|
(c)
|
Each
other Finance Party hereby relieves the Agent from the restrictions
pursuant to section 181 Civil Code (Bürgerliches Gesetzbuch) and
similar restrictions applicable to it pursuant to any other applicable
law, in each case to the extent legally possible to such Finance
Party. A
Finance Party which is barred by its constitutional documents or
by-laws
from granting such exemption shall notify the Agent
accordingly.
|
|
30.2
|
Duties
of the Agent
|
|
|
(a)
|
The
Agent shall promptly forward to a Party the original or a copy of
any
document which is delivered to the Agent for that Party by any other
Party.
|
|
|
(b)
|
Except
where a Finance Document specifically provides otherwise, the Agent
is not
obliged to review or check the adequacy, accuracy or completeness
of any
document it forwards to another
Party.
|
|
|
(c)
|
If
the Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described
is a
Default, it shall promptly notify the other Finance
Parties.
|
|
|
(d)
|
If
the Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than
the
Agent or the Arranger) under this Agreement it shall promptly notify
the
other Finance Parties.
|
|
|
(e)
|
The
Agent's duties under the Finance Documents are solely mechanical
and
administrative in nature.
|
|
30.3
|
Role
of the Arranger
|
Except
as
specifically provided in the Finance Documents, the Arranger has no obligations
of any kind to any other Party under or in connection with any Finance
Document.
30.4 No
fiduciary duties
|
|
(a)
|
Nothing
in this Agreement constitutes the Agent or the Arranger as a trustee
(Treuhänder) of any other person. Neither of the Agent nor the
Arranger have any financial or commercial duty of care
(Vermögensfürsorgepflicht) for any
person.
|
|
|
(b)
|
Neither
the Agent nor the Arranger or any Ancillary Lender shall be bound
to
account to any Lender for any sum or the profit element of any sum
received by it for its own account.
|
|
30.5
|
Business
with the Group
|
The
Agent, the Arranger and each Ancillary Lender may accept deposits from, lend
money to and generally engage in any kind of banking or other business with
any
member of the Group.
|
30.6
|
Rights
and discretions of the
Agent
|
|
|
(a)
|
The
Agent may rely on:
|
|
|
(i)
|
any
representation, notice or document believed by it to be genuine,
correct
and appropriately authorised (including, without limitation, any
countersignature by the Financial Advisor);
and
|
|
|
(ii)
|
any
statement made by a director, authorised signatory or employee of
any
person regarding any matters which may reasonably be assumed to be
within
his knowledge or within his power to
verify.
|
|
|
(b)
|
The
Agent may assume (unless it has received notice to the contrary in
its
capacity as agent for the Lenders)
that:
|
|
|
(i)
|
no
Default has occurred (unless it has actual knowledge of a Default
arising
under Clause 27.1
(Non-payment));
|
|
|
(ii)
|
any
right, power, authority or discretion vested in any Party or the
Majority
Lenders has not been exercised; and
|
|
|
(iii)
|
any
notice or request made by the Company (other than a Utilisation Request
or
Selection Notice) is made on behalf of and with the consent and knowledge
of all the Obligors.
|
|
|
(c)
|
The
Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other
experts.
|
|
|
(d)
|
The
Agent may act in relation to the Finance Documents through its personnel
and agents.
|
|
|
(e)
|
The
Agent may disclose to any other Party any information it reasonably
believes it has received as agent under this
Agreement.
|
|
|
(f)
|
Notwithstanding
any other provision of any Finance Document to the contrary, neither
the
Agent nor the Arranger is obliged to do or omit to do anything if
it would
or might in its reasonable opinion constitute a breach of any law
or
regulation or a breach of a fiduciary duty or duty of
confidentiality.
|
|
30.7
|
Majority
Lenders' instructions
|
|
|
(a)
|
Unless
a contrary indication appears in a Finance Document, the Agent shall
(i)
exercise any right, power, authority or discretion vested in it as
Agent
in accordance with any instructions given to it by the Majority Lenders
(or, if so instructed by the Majority Lenders, refrain from exercising
any
right, power, authority or discretion vested in it as Agent) and
(ii) not
be liable for any act (or omission) if it acts (or refrains from
taking
any action) in accordance with an instruction of the Majority
Lenders.
|
|
|
(b)
|
Unless
a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders will be binding on all the Finance
Parties.
|
|
|
(c)
|
The
Agent may refrain from acting in accordance with the instructions
of the
Majority Lenders (or, if appropriate, the Lenders) until it has received
such security as it may require for any cost, loss or liability (together
with any associated VAT) which it may incur in complying with the
instructions.
|
|
|
(d)
|
In
the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the
Lenders.
|
|
|
(e)
|
The
Agent is not authorised to act on behalf of a Lender (without first
obtaining that Lender's consent) in any legal or arbitration proceedings
relating to any Finance Document.
|
|
30.8
|
Responsibility
for documentation
|
Neither
the Agent nor the Arranger or any Ancillary Lender is responsible
for:
|
|
(a)
|
the
adequacy, accuracy and/or completeness of any information (whether
oral or
written) provided by the Agent, the Arranger, an Ancillary Lender,
an
Obligor or any other person given in or in connection with any Finance
Document, the Information Memorandum or the transactions contemplated
by
the Finance Documents; or
|
|
|
(b)
|
the
legality, validity, effectiveness, adequacy or enforceability of
any
Finance Document or any other agreement, arrangement or document
entered
into, made or executed in anticipation of or in connection with any
Finance Document.
|
|
30.9
|
Exclusion
of liability
|
|
|
(a)
|
Without
limiting paragraph (b) below, none of the Agent or any Ancillary
Lender
will not be liable for any action taken by it under or in connection
with
any Finance Document, unless directly caused by its gross negligence
or
wilful misconduct.
|
|
|
(b)
|
No
Party (other than the Agent or an Ancillary Lender) 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 an Ancillary Lender
or in
respect of any act or omission of any kind by that officer, employee
or
agent in relation to any Finance Document and any officer, employee
or
agent of the Agent and any Ancillary Lender may rely on this Clause
pursuant to section 328 para 1 Civil Code (Bürgerliches
Gesetzbuch) (echter berechtigender Vertrag zugunsten
Dritter).
|
|
|
(c)
|
The
Agent will not be liable for any delay (or any related consequences)
in
crediting an account with an amount required under the Finance Documents
to be paid by the Agent if the Agent has taken all necessary steps
as soon
as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used by
the
Agent for that purpose.
|
|
|
(d)
|
Nothing
in this Agreement shall oblige the Agent or the Arranger to carry
out any
"know your customer" or other checks in relation to any person on
behalf
of any Lender and each Lender confirms to the Agent and the Arranger
that
it is solely responsible for any such checks it is required to carry
out
and that it may not rely on any statement in relation to such checks
made
by the Agent or the Arranger.
|
|
30.10
|
Lenders'
indemnity to the Agent
|
Each
Lender shall (in proportion to its share of the Total Commitments or, if the
Total Commitments are then zero, to its share of the Total Commitments
immediately prior to their reduction to zero) indemnify the Agent, within three
Business Days of demand, against any cost, loss or liability incurred by the
Agent (otherwise than by reason of the Agent's gross negligence or wilful
misconduct) in acting as Agent under the Finance Documents (unless the Agent
has
been reimbursed by an Obligor pursuant to a Finance Document).
|
30.11
|
Resignation
of the Agent
|
|
|
(a)
|
The
Agent may resign and appoint one of its Affiliates acting through
an
office London, Luxembourg or Germany as successor by giving notice
to the
other Finance Parties and the
Company.
|
|
|
(b)
|
Alternatively
the Agent may resign by giving notice to the other Finance Parties
and the
Company, in which case the Majority Lenders (after consultation with
the
Company) may appoint a successor
Agent.
|
|
|
(c)
|
If
the Majority Lenders have not appointed a successor Agent in accordance
with paragraph (b) above within 30 days after notice of resignation
was
given, the Agent (after consultation with the Company) may appoint
a
successor Agent acting through an office in London, Luxembourg or
Germany).
|
|
|
(d)
|
The
retiring Agent shall, at its own cost, make available to the successor
Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing
its
functions as Agent under the Finance
Documents.
|
|
|
(e)
|
The
Agent's resignation notice shall only take effect upon the appointment
of
a successor.
|
|
|
(f)
|
Upon
the appointment of a successor, the retiring Agent shall be discharged
from any further obligation in respect of the Finance Documents but
shall
remain entitled to the benefit of this Clause 30. Its successor and
each
of the other Parties shall have the same rights and obligations amongst
themselves as they would have had if such successor had been an original
Party.
|
|
|
(g)
|
After
consultation with the Company, the Majority Lenders may, by notice
to the
Agent, require it to resign in accordance with paragraph (b) above.
In
this event, the Agent shall resign in accordance with paragraph (b)
above.
|
|
30.12
|
| (a) |
In
action as agent for the Finance Parties, the Agent shall be regarded
as
acting through its agency division which shall be treated as a separate
entity from any other of its divisions or
departments.
|
|
|
(b)
|
If
information is received by another division or department of the
Agent, it
may be treated as confidential to that division or department and
the
Agent shall not be deemed to have notice of
it.
|
|
|
(a)
|
The
Agent may treat each Lender as a Lender, entitled to payments under
this
Agreement and acting through its Facility Office unless it has received
not less than five Business Days prior notice from that Lender to
the
contrary in accordance with the terms of this
Agreement.
|
|
|
(b)
|
Each
Lender shall supply the Agent with any information required by the
Agent
in order to calculate the Mandatory Cost in accordance with Schedule
4
(Mandatory Cost formulae).
|
Without
affecting the responsibility of any Obligor for information supplied by it
or on
its behalf in connection with any Finance Document, each Lender and Ancillary
Lender confirms to the Agent, the Arranger and each Ancillary Lender that it
has
been, and will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection with
any
Finance Document including but not limited to:
|
|
(a)
|
the
financial condition, status and nature of each member of the
Group;
|
|
|
(b)
|
the
legality, validity, effectiveness, adequacy or enforceability of
any
Finance Document and any other agreement, arrangement or document
entered
into, made or executed in anticipation of, under or in connection
with any
Finance Document;
|
|
|
(c)
|
whether
that Lender has recourse, and the nature and extent of that recourse,
against any Party or any of its respective assets under or in connection
with any Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document entered
into,
made or executed in anticipation of, under or in connection with
any
Finance Document; and
|
|
|
(d)
|
the
adequacy, accuracy and/or completeness of the Information Memorandum
and
any other information provided by the Agent, any Party or by any
other
person under or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement, arrangement
or document entered into, made or executed in anticipation of, under
or in
connection with any Finance
Document.
|
|
30.15
|
If
a
Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which
it
is an Affiliate) ceases to be a Lender, the Agent shall (in consultation with
the Company) appoint another Lender or an Affiliate of a Lender to replace
that
Reference Bank.
|
30.16
|
Deduction from amounts
payable by the
Agent
|
If
any
Party owes an amount to the Agent under the Finance Documents the Agent may,
after giving notice to that Party, deduct an amount not exceeding that amount
from any payment to that Party which the Agent would otherwise be obliged to
make under the Finance Documents and apply the amount deducted in or towards
satisfaction of the amount owed. For the purposes of the Finance Documents
that
Party shall be regarded as having received any amount so deducted.
No
provision of this Agreement will:
|
|
(a)
|
interfere
with the right of any Finance Party to arrange its affairs (tax or
otherwise) in whatever manner it thinks
fit;
|
|
|
(b)
|
oblige
any Finance Party to investigate or claim any credit, relief, remission
or
repayment available to it or the extent, order and manner of any
claim;
or
|
|
|
(c)
|
oblige
any Finance Party to disclose any information relating to its affairs
(tax
or otherwise) or any computations in respect of
Tax.
|
|
32.1
|
Payments
to Finance Parties
|
If
a
Finance Party (a "Recovering Finance Party") receives or
recovers any amount from an Obligor other than in accordance with Clause 33
(Payment mechanics) and applies that amount to a payment due under the
Finance Documents then:
|
|
(a)
|
the
Recovering Finance Party shall, within three Business Days, notify
details
of the receipt or recovery, to the
Agent;
|
|
|
(b)
|
the
Agent shall determine whether the receipt or recovery is in excess
of the
amount the Recovering Finance Party would have been paid had the
receipt
or recovery been received or made by the Agent and distributed in
accordance with Clause 33 (Payment mechanics), without taking
account of any Tax which would be imposed on the Agent in relation
to the
receipt, recovery or distribution;
and
|
|
|
(c)
|
the
Recovering Finance Party shall, within three Business Days of demand
by
the Agent, pay to the Agent an amount (the "Sharing
Payment") equal to such receipt or recovery less any amount which
the Agent determines may be retained by the Recovering Finance Party
as
its share of any payment to be made, in accordance with Clause 33.5
(Partial payments).
|
32.2 Redistribution
of payments
The
Agent
shall treat the Sharing Payment as if it had been paid by the relevant Obligor
and distribute it between the Finance Parties (other than the Recovering Finance
Party) in accordance with Clause 33.5 (Partial payments).
32.3 Recovering
Finance Party's rights
|
|
(a)
|
On
a distribution by the Agent under Clause 32.2 (Redistribution of
payments), the Recovering Finance Party shall be entitled to receive
by way of assignment the rights of the Finance Parties to the extent
they
have shared in the redistribution.
|
|
|
(b)
|
If
and to the extent that the Recovering Finance Party is not able to
rely on
its rights under paragraph (a) above, the relevant Obligor shall
be liable
to the Recovering Finance Party for a debt equal to the Sharing Payment
which is immediately due and
payable.
|
32.4 Reversal
of redistribution
If
any
part of the Sharing Payment received or recovered by a Recovering Finance Party
becomes repayable and is repaid by that Recovering Finance Party,
then:
|
|
(a)
|
each
Finance Party which has received a share of the relevant Sharing
Payment
pursuant to Clause 32.2 (Redistribution of payments) shall, upon
request of the Agent, pay to the Agent for account of that Recovering
Finance Party an amount equal to the appropriate part of its share
of the
Sharing Payment (together with an amount as is necessary to reimburse
that
Recovering Finance Party for its proportion of any interest on the
Sharing
Payment which that Recovering Finance Party is required to pay);
and
|
|
|
(b)
|
that
Recovering Finance Party's rights of assignment in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable
to the reimbursing Finance Party for the amount so reimbursed and
the
Recovering Finance Party shall re-assign any claims assigned to it
pursuant to paragraph (a) of Clause 32.3 (Recovering Finance Party's
rights).
|
32.5 Exceptions
|
|
(a)
|
This
Clause 32 shall not apply to the extent that the Recovering Finance
Party
would not, after making any payment pursuant to this Clause, have
a valid
and enforceable claim against the relevant
Obligor.
|
|
|
(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 or arbitration proceedings,
if:
|
|
|
(i)
|
it
notified that other Finance Party of the legal or arbitration proceedings;
and
|
|
|
(ii)
|
that
other Finance Party had an opportunity to participate in those legal
or
arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal
or
arbitration proceedings.
|
|
32.6
|
Ancillary
Lenders
|
|
|
(a)
|
This
Clause 32 shall not apply to any of Deutsche Bank AG or The Royal
Bank of
Scotland plc in their capacity as an Ancillary Lender at any time
prior to
service of notice under Clause 27.15
(Acceleration).
|
|
|
(b)
|
Following
service of notice under Clause 27.15 (Acceleration), this Clause
32 shall apply, in mutatis mutandis application, in respect of
the distribution of payments by any Obligor amongst the Lenders (including
the Ancillary Lenders).
|
SECTION
11
ADMINISTRATION
|
33.1
|
Payments
to the Agent
|
|
|
(a)
|
On
each date on which an Obligor or a Lender is required to make a payment
under a Finance Document, that Obligor or Lender shall make the same
available to the Agent (unless a contrary indication appears in a
Finance
Document) for value on the due date at the time and in such funds
specified by the Agent as being customary at the time for settlement
of
transactions in the relevant currency in the place of payment and
in any
case in good time to allow the Agent to make available such amount
to the
Party entitled to receive payment in accordance with this Agreement
on the
due date for such payment. Irrevocably crediting of such payment
on to the
Agent's account shall discharge the relevant Obligors payment
obligation.
|
|
|
(b)
|
Payment
shall be made to such account in the principal financial centre of
the
country of that currency (or, in relation to euro, in a principal
financial centre in a Participating Member State or London) with
such bank
as the Agent specifies.
|
|
33.2
|
Distributions
by the Agent
|
Each
payment received by the Agent under the Finance Documents for another Party
shall, subject to Clause 33.3 (Distributions to an Obligor), Clause
33.4 (Clawback) and Clause 30.16 (Deduction from amounts payable by
the Agent) be made available by the Agent as soon as practicable after
receipt to the Party entitled to receive payment in accordance with this
Agreement (in the case of a Lender, for the account of its Facility Office),
to
such account as that Party may notify to the Agent by not less than five
Business Days' notice with a bank in the principal financial centre of the
country of that currency (or, in relation to euro, in the principal financial
centre of a Participating Member State or London).
|
33.3
|
Distributions
to an Obligor
|
The
Agent
may (with the consent of the Obligor or in accordance with Clause 34
(Set-off)) apply any amount received by it for that Obligor in or
towards payment (on the date and in the currency and funds of receipt) of any
amount due from that Obligor under the Finance Documents or in or towards
purchase of any amount of any currency to be so applied.
|
33.4
|
Clawback
|
|
|
(a)
|
Where
a sum is to be paid to the Agent under the Finance Documents for
another
Party, the Agent is not obliged to pay that sum to that other Party
(or to
enter into or perform any related exchange contract) until it has
been
able to establish to its satisfaction that it has actually received
that
sum.
|
|
|
(b)
|
If
the Agent pays an amount to another Party and it proves to be the
case
that the Agent had not actually received that amount, then the Party
to
whom that amount (or the proceeds of any related exchange contract)
was
paid by the Agent shall on demand refund the same to the Agent together
with interest on that amount from the date of payment to the date
of
receipt by the Agent, calculated by the Agent to reflect its cost
of
funds.
|
33.5 Partial
payments
|
|
(a)
|
If
the Agent receives a payment that is insufficient to discharge all
the
amounts then due and payable by an Obligor under the Finance Documents,
the Agent shall apply that payment towards the obligations of that
Obligor
under the Finance Documents in the following
order:
|
|
|
(i)
|
first,
in or towards payment pro rata of any unpaid fees, costs and
expenses of the Agent and the Arranger under the Finance
Documents;
|
|
|
(ii)
|
secondly,
in or towards payment pro rata of any accrued interest, fee or
commission due but unpaid under this
Agreement;
|
|
|
(iii)
|
thirdly,
in or towards payment pro rata of any principal due but unpaid
under this Agreement; and
|
|
|
(iv)
|
fourthly,
in or towards payment pro rata of any other sum due but unpaid
under the Finance Documents.
|
|
|
(b)
|
The
Agent shall, if so directed by the Majority Lenders, vary the order
set
out in paragraphs (a)(ii) to (iv)
above.
|
|
|
(c)
|
Paragraphs
(a) and (b) above will override any appropriation made by an
Obligor.
|
|
33.6
|
No
set-off by Obligors
|
All
payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for) set-off
or counterclaim unless the counterclaim is undisputed or has been confirmed
in a
final non-appealable judgment.
|
33.7
|
Business
Days
|
|
|
(a)
|
Any
payment which is due to be made on a day that is not a Business Day
shall
be made on the next Business Day in the same calendar month (if there
is
one) or the preceding Business Day (if there is
not).
|
|
|
(b)
|
During
any extension of the due date for payment of any principal or Unpaid
Sum
under this Agreement interest is payable on the principal or Unpaid
Sum at
the rate payable on the original due
date.
|
|
33.8
|
Currency
of account
|
|
|
(a)
|
Subject
to paragraphs (b) to (e) below, the Base Currency is the currency
of
account and payment for any sum due from an Obligor under any Finance
Document.
|
|
|
(b)
|
A
repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum
shall
be made in the currency in which that Loan or Unpaid Sum is denominated
on
its due date.
|
|
|
(c)
|
Each
payment of interest shall be made in the currency in which the sum
in
respect of which the interest is payable was denominated when that
interest accrued.
|
|
|
(d)
|
Each
payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are
incurred.
|
|
|
(e)
|
Any
amount expressed to be payable in a currency other than the Base
Currency
shall be paid in that other
currency.
|
|
33.9
|
Change
of currency
|
|
|
(a)
|
Unless
otherwise prohibited by law, if more than one currency or currency
unit
are at the same time recognised by the central bank of any country
as the
lawful currency of that country,
then:
|
|
|
(i)
|
any
reference in the Finance Documents to, and any obligations arising
under
the Finance Documents in, the currency of that country shall be translated
into, or paid in, the currency or currency unit of that country designated
by the Agent (after consultation with the Company);
and
|
|
|
(ii)
|
any
translation from one currency or currency unit to another shall be
at the
official rate of exchange recognised by the central bank for the
conversion of that currency or currency unit into the other, rounded
up or
down by the Agent (acting
reasonably).
|
|
|
(b)
|
If
a change in any currency of a country occurs, this Agreement will,
to the
extent the Agent (acting reasonably and after consultation with the
Company) specifies to be necessary, be amended to comply with any
generally accepted conventions and market practice in the European
interbank market and otherwise to reflect the change in
currency.
|
|
34.
|
Subject
to Clause 4.5 (Utilisations during the Certain Funds Period), a Finance Party
may set off any matured obligation due from an Obligor under the Finance
Documents against any satisfiable (erfüllbar) obligation within the
meaning of section 387 Civil Code (Bürgerliches Gesetzbuch) 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.
|
35.
|
|
35.1
|
Communications
in writing
|
Any
communication to be made under or in connection with the Finance Documents
shall
be made in writing and, unless otherwise stated, may be made by fax or
letter.
|
35.2
|
Addresses
|
| The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is: |
|
|
(a)
|
in
the case of the Company, that identified with its name
below;
|
|
|
(b)
|
in
the case of each Lender, Ancillary Lender or any other Obligor, that
notified in writing to the Agent on or prior to the date on which
it
becomes a Party; and
|
|
|
(c)
|
in
the case of the Agent, that identified with its name
below,
|
or
any
substitute address or fax number or department or officer as the Party may
notify to the Agent (or the Agent may notify to the other Parties, if a change
is made by the Agent) by not less than five Business Days' notice.
|
35.3
|
Delivery
|
|
|
(a)
|
Any
communication or document made or delivered by one person to another
under
or in connection with the Finance Documents will only be effective
when
received (zugegangen), in
particular:
|
|
|
(i)
|
if
by way of fax, when received in legible form;
or
|
|
|
(ii)
|
if
by way of letter, when it has been left at the relevant address or
five
Business Days after being deposited in the post postage prepaid in
an
envelope addressed to it at that
address,
|
and,
if a
particular department or officer is specified as part of its address details
provided under Clause 35.2 (Addresses), if addressed to that department
or officer.
|
|
(b)
|
Any
communication or document to be made or delivered to the Agent will
be
effective only when actually received by the Agent and then only
if it is
expressly marked for the attention of the department or officer identified
with the Agent's signature below (or any substitute department or
officer
as the Agent shall specify for this
purpose).
|
|
|
(c)
|
All
notices from or to an Obligor shall be sent through the
Agent.
|
|
|
(d)
|
Any
communication or document by the Finance Parties or the Obligors
may be
made or delivered to the Company for its own account and for the
account
of the Obligors. For that purpose each Obligor appoints the Company
as its
agent of receipt
(Empfangsvertreter).
|
|
35.4
|
Notification
of address and fax number
|
Promptly
upon receipt of notification of an address or fax number or change of address
or
fax number pursuant to Clause 35.2 (Addresses) or changing its own
address or fax number, the Agent shall notify the other Parties.
|
|
(a)
|
Any
communication to be made between the Agent and a Lender under or
in
connection with the Finance Documents may be made by electronic mail
or
other electronic means, if the Agent and the relevant
Lender:
|
|
|
(i)
|
agree
that, unless and until notified to the contrary, this is to be an
accepted
form of communication;
|
|
|
(ii)
|
notify
each other in writing of their electronic mail address and/or any
other
information required to enable the sending and receipt of information
by
that means; and
|
|
|
(iii)
|
notify
each other of any change to their address or any other such information
supplied by them.
|
|
|
(b)
|
Any
electronic communication made between the Agent and a Lender will
be
effective only when actually received in readable form and in the
case of
any electronic communication made by a Lender to the Agent only if
it is
addressed in such a manner as the Agent shall specify for this
purpose.
|
|
35.6
|
|
|
(a)
|
Any
notice given under or in connection with any Finance Document must
be in
English.
|
|
|
(b)
|
All
other documents provided under or in connection with any Finance
Document
must be:
|
|
|
(i)
|
in
English; or
|
|
|
(ii)
|
if
not in English (with respect to any document other than any corporate
documents referred to in Schedule 2 (Conditions Precedent) in the
original language) and accompanied by a English translation (certified
if
so required by the Agent), it being understood that the Finance Parties
can rely on the correctness of any translation delivered by or on
behalf
of any member of the Group without any further
investigation.
|
|
36.1
|
Accounts
|
| In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie (Beweis des ersten Anscheins) evidence of the matters to which they relate. |
|
36.2
|
Certificates and
Determinations
|
|
|
(a)
|
The
Finance Parties make the certifications or determinations of a rate
or
amount under any Finance Document in the exercise of their unilateral
right to specify performance (einseitiges
Leistungsbestimmungsrecht) which they will exercise with reasonable
discretion (billiges
Ermessen).
|
|
|
(b)
|
The
Parties agree not to dispute in any legal proceeding the correctness
of
the determinations and certifications of a rate or amount made by
a
Finance Party under any Finance Document unless the determinations
or
certifications are inaccurate on their face or fraud can be
shown.
|
|
36.3
|
Day
count convention
|
Any
interest, commission or fee accruing under a Finance Document will accrue from
day to day and is calculated on the basis of the actual number of days elapsed
and a year of 360 days or, in any case where the practice in the European
interbank market differs, in accordance with that market practice.
The
Parties agree that should at any time, any provisions of this Agreement be
or
become void (nichtig), invalid or due to any reason ineffective
(unwirksam) this will indisputably (unwiderlegbar) not affect
the validity or effectiveness of the remaining provisions and this Agreement
will remain valid and effective, save for the void, invalid or ineffective
provisions, without any Party having to argue (darlegen) and prove
(beweisen) the Parties intent to uphold this Agreement even without the
void, invalid or ineffective provisions.
The
void,
invalid or ineffective provision shall be deemed replaced by such valid and
effective provision that in legal and economic terms comes closest to what
the
Parties intended or would have intended in accordance with the purpose of this
Agreement if they had considered the point at the time of conclusion of this
Agreement.
No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise or the exercise of any other right or remedy.
The
rights and remedies provided in this Agreement are cumulative and not exclusive
of any rights or remedies provided by law.
|
39.1
|
|
|
(a)
|
Subject
to Clause 39.2 (Exceptions) any term of the Finance Documents may
be amended or waived only with the consent of the Majority Lenders
and the
Obligors and any such amendment or waiver will be binding on all
Parties.
|
|
|
(b)
|
The
Agent may effect, on behalf of any Finance Party, any amendment or
waiver
permitted by this Clause.
|
|
39.2
|
|
|
(a)
|
An
amendment or waiver that has the effect of changing or which relates
to:
|
|
|
(i)
|
the
definition of "Majority Lenders" in Clause 1.1
(Definitions);
|
|
|
(ii)
|
an
extension to the date of payment of any amount under the Finance
Documents;
|
|
|
(iii)
|
a
reduction in the Margin or a reduction in the amount of any payment
of
principal, interest, fees or commission
payable;
|
-114-
|
|
(iv)
|
an
increase in or an extension of any
Commitment;
|
|
|
(v)
|
a
change to the Borrowers other than in accordance with Clause 29
(Changes to the Obligors);
|
|
|
(vi)
|
any
provision which expressly requires the consent of all the
Lenders;
|
|
|
(vii)
|
Clause
2.3 (Finance Parties' rights and obligations), Clause 28
(Changes to the Lenders) or this Clause
39,
|
|
|
shall
not be made without the prior consent of all the
Lenders.
|
|
|
(b)
|
An
amendment or waiver which relates to the rights or obligations of
the
Agent, the Arranger or any Ancillary Lender may not be effected without
the consent of the Agent, the Arranger or that Ancillary Lender as
the
case may be.
|
|
|
(c)
|
Any
amendment or waiver which relates to the rights or obligations applicable
to a particular Facility and which does not adversely affect the
rights or
interests of Lenders in respect of other Facilities shall only require
the
consent of the Majority Lenders as if references in this clause to
"Lenders" were only to Lenders participating in that
Facility.
|
|
|
(a)
|
If
at any time any Lender becomes a Non-Consenting Lender (as defined
in
paragraph (c) below) then the Company may, on ten Business Days'
prior
written notice to the Agent and such Lender, replace such Lender
by
requiring such Lender to (and such Lender shall) transfer pursuant
to
Clause 28 (Changes to the Lenders) all (and not part only) of its
rights and obligations under this Agreement to a Lender or other
bank or
financial institution, or other entity unrelated to and not affiliated
with any member of the Group (a "Replacement Lender")
selected by the Company, which confirms its willingness to assume
and does
assume all the obligations of the transferring Lender (including
the
assumption of the transferring Lender's participations on the same
basis
as the transferring Lender) for a purchase price in cash payable
at the
time of transfer equal to the outstanding principal amount of such
Lender's participation in the outstanding Loans and all accrued interest
and/or Break Costs and other amounts payable in relation thereto
under the
Finance Documents.
|
|
|
(b)
|
The
replacement of a Lender pursuant to this Clause shall be subject
to the
following conditions:
|
|
|
(i)
|
the
Company shall have no right to replace the Agent (in such
capacity);
|
|
|
(ii)
|
neither
the Agent nor the Lender shall have any obligation to the Company
to find
a Replacement Lender;
|
|
|
(iii)
|
in
the event of a replacement of a Non-Consenting Lender such replacement
must take place no later than 30 Business Days after the date the
Non-Consenting Lender notifies the Company and the Agent of its failure
or
refusal to agree to any consent, waiver or amendment to the Finance
Documents requested by the Company;
and
|
|
|
(iv)
|
in
no event shall the Lender replaced under this paragraph (b) be required
to
pay or surrender to such Replacement Lender any of the fees received
by
such Lender pursuant to the Finance
Documents.
|
|
|
(c)
|
In
the event that:
|
|
|
(i)
|
the
Company or the Agent (at the request of the Company) has requested
the
Lenders to consent to a waiver or amendment of any provisions of
the
Finance Documents;
|
|
|
(ii)
|
the
waiver or amendment in question requires the consent of all the Lenders;
and
|
|
|
(iii)
|
Lenders
whose Commitments aggregate more than 85 per cent. of the Total
Commitments (or, if the Total Commitments have been reduced to zero,
aggregated more than 85 per cent of the Total Commitments prior to
that
reduction) have consented to such waver or
amendment,
|
then
any
Lender who does not and continues not to agree to such waiver or amendment
shall
be deemed a "Non-Consenting Lender".
Each
Borrower confirms that in entering into this Agreement it is acting for its
own
account and that it and its Subsidiaries will be the sole economic beneficiaries
of the funds within the meaning of section 8 of the Money Laundering Act
(Geldwäschegesetz).
SECTION
12
GOVERNING
LAW AND ENFORCEMENT
|
41.
|
This
Agreement is governed by German law.
|
42.
|
|
42.1
|
Jurisdiction
|
|
|
(a)
|
The
courts of Frankfurt am Main, Germany have exclusive jurisdiction
to settle
any dispute arising out of or in connection with this Agreement (including
a dispute regarding the existence, validity or termination of this
Agreement) (a
"Dispute").
|
|
|
(b)
|
The
Parties agree that the courts of Frankfurt am Main, Germany are the
most
appropriate and convenient courts to settle Disputes and accordingly
no
Party will argue to the contrary.
|
|
|
(c)
|
This
Clause 42.1 is for the benefit of the Finance Parties only. As a
result,
no Finance Party shall be prevented from taking proceedings relating
to a
Dispute in any other courts with jurisdiction. To the extent allowed
by
law, the Finance Parties may take concurrent proceedings in any number
of
jurisdictions.
|
|
42.2
|
Service
of process
|
|
|
(a)
|
Without
prejudice to any other mode of service allowed under any relevant
law,
each Obligor (other than an Obligor incorporated in
Germany):
|
|
|
(i)
|
irrevocably
appoints the Company (the "Process Agent") as its agent
for service of process in relation to any proceedings before the
German
courts in connection with any Finance
Document;
|
|
|
(ii)
|
agrees
that failure by a Process Agent to notify the relevant Obligor of
the
process will not invalidate the proceedings concerned;
and
|
|
|
(iii)
|
undertakes
to deliver to the Process Agent without undue delay upon execution
of this
Agreement a process agent appointment letter (the "Process Agent
Appointment Letter") substantially in the form of Schedule 12
(Form of Process Agent Appointment Letter) and to send a copy of
the executed Process Agent Appointment Letter to the
Agent.
|
|
|
(b)
|
The
Process Agent hereby acknowledges the appointment. The Process Agent
shall
ensure that documents to be served to an Obligor may validly be served
by
delivery to the Process Agent. In particular, the Process Agent shall
notify the Agent of any change of address, accept any documents delivered
to it on behalf of an Obligor and fulfil any requirements of section
171
Code of Civil Procedure (Zivilprozessordnung), in particular
present the original Process Agent Appointment Letter to any person
effecting the service of process as required pursuant to section
171
sentence 2 Code of Civil Procedure
(Zivilprozessordnung).
|
|
43.
|
|
43.1
|
The
Parties to this Agreement may choose to conclude this Agreement by
an
exchange of signed signature page(s), transmitted by means of
telecommunication (telekommunikative Übermittlung) by way of fax
or attached as an electronic photocopy (pdf., tif., etc.) to electronic
mail.
|
|
43.2
|
If
the Parties to this Agreement choose to conclude this Agreement in
accordance with sub-clause 43.1 above, they will transmit the signed
signature page(s) of this Agreement to Xxx. Xxxxxxx Xxxxxxxxxx/Xxx.
Xxxx
Xxxxxxxxxx, Xxxxxxxx Chance Partnerschaftsgesellschaft (the
"Recipient"). The Agreement will be considered concluded
once the Recipient has actually received the signed signature page(s)
(Zugang der Unterschriftsseite(n)) from all Parties to this
Agreement and at the time of the receipt of the last outstanding
signature
page(s).
|
|
43.3
|
For
the purposes of this Clause 43 only, the Parties to this Agreement
appoint
the Recipient as agent of receipt (Empfangsvertreter) and
expressly allow (gestatten) the Recipient to collect the signed
signature page(s) from all and for all Parties to this Agreement.
For the
avoidance of doubt, the Recipient will have no further duties connected
with its position as Recipient. In particular, the Recipient may
assume
the conformity to the authentic original(s) of the signature page(s)
transmitted to it by means of telecommunication, the genuineness
of all
signatures on the original signature page(s) and the signing authority
of
the signatories.
|
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
The
Original Parties
Part
I
|
Name
of Original Borrowers
|
Registration
number (or equivalent, if any)
|
|
Local
court (Amtsgericht) of Mannheim, HRB 330082
|
|
|
HeidelbergCement
Finance B.V.,
with
official seat in 's-Hertogenbosch, The Netherlands
|
The
Netherlands, Chamber of Commerce and Industry, 33232885
|
|
Name
of Guarantor
|
Registration
number (or equivalent, if any)
|
|
Local
court (Amtsgericht) of Xxxxxxxx, XXX 000000
|
|
Part
IIA
|
Name
of Original Lender
|
Facility A
Commitment
(GBP)
|
Facility B
Commitment
(GBP)
|
Facility C
Commitment
(EUR)
|
Revolving
Facility
Commitment
(EUR)
|
|
Deutsche
Bank Luxembourg S.A.
|
1,809,567,901
|
1,161,111,111
|
814,814,815
|
339,506,173
|
|
The
Royal Bank of Scotland plc, Niederlassung Frankfurt
|
3,520,432,099
|
2,258,888,889
|
1,585,185,185
|
660,493,827
|
|
Total
|
5,330,000,000
|
3,420,000,000
|
2,400,000,000
|
1,000,000,000
|
Part
II B
|
Name
of Original Euro Swingline Lender
|
Euro
Swingline Commitment
(EUR)
|
|
Deutsche
Bank Luxembourg S.A.
|
169,753,086
|
|
The
Royal Bank of Scotland plc, Niederlassung Frankfurt
|
330,246,914
|
Conditions
Precedent
Part
I
|
1.
|
Original
Obligors
|
|
|
(a)
|
In
relation to the Company an up-to-date commercial register extract
(Handelsregisterauszug) of recent date and its up-to-date
articles of association
(Satzung).
|
|
|
(b)
|
A
copy of the articles of association (statuten) and deed of
incorporation (oprichtingsakte) of each Dutch Borrower, as well
as an extract (uittreksel) from the relevant Chamber of Commerce
(Xxxxx van Koophandel) of such Dutch
Borrower(s).
|
|
|
(c)
|
A
specimen of the signature of each member of the board of managing
directors of each Dutch Borrower which will sign this Agreement on
behalf
of such Dutch Borrower(s).
|
|
|
(d)
|
A
specimen of the signature of each person authorised to execute any
Finance
Document and other documents and notices (including, if relevant,
any
Utilisation Request and Selection Notice) to be signed and/or despatched
by it under or in connection with the Finance Documents to which
it is a
party.
|
|
|
(e)
|
A
certificate of an authorised signatory of the relevant Original Obligor
certifying that each copy document relating to it specified in this
Part I
of this Schedule 2 is correct, complete and in full force and effect
as at
a date no earlier than the date of this
Agreement.
|
|
2.
|
Legal
opinions
|
|
|
(a)
|
A
legal opinion of Xxxxxxxx Chance, legal advisers to the Arranger
and the
Agent in Germany and The Netherlands, substantially in the form
distributed to the Original Lenders prior to signing this Agreement
(other
than as the legal matters covered by the Borrower's counsel pursuant
to
paragraph (b) below).
|
|
|
(b)
|
A
legal opinion of Hengeler Xxxxxxx, legal adviser to the Company in
Germany
confirming that all German Obligors are duly authorised and validly
executed the relevant Finance Document to which they are a
party.
|
|
|
(c)
|
A
draft legal opinion of De Brauw Blackstone Westbroek, legal adviser
to the
Company in the Netherlands, confirming that each Dutch Borrower is
duly
authorised and validly executed the relevant Finance Document to
which it
is a party.
|
|
3.
|
Finance
Documents
|
The
Fee
Letters executed by the Company.
|
4.
|
Financial
information
|
|
|
(a)
|
Copies
of:
|
|
|
(i)
|
the
Original Financial Statements;
|
|
|
(ii)
|
(if
and to the extent prepared and available to the Company) the most
recent
(i) unaudited quarterly consolidated, (ii) audited annual consolidated
and
(iii) audited annual unconsolidated financial statements of Target;
and
|
|
|
(iii)
|
the
agreed business plan.
|
|
|
(b)
|
Evidence
that the outcome of the rating assessment services is that the long-term
unsecured debt of the Company (under the scenario presented by the
Company) would be rated at least Baa3, respectively BBB- by Xxxxx'x
and
Fitch.
|
|
5.
|
Corporate
information
|
|
|
(a)
|
The
Group Structure Chart which shows the Group before the
Acquisition.
|
|
|
(b)
|
The
Specified Disposals Letter executed by the
Company.
|
Part
II
Acquisition
Documents
|
(a)
|
A
Certificate of the Company in the agreed form (signed by two directors)
certifying that:
|
|
|
(i)
|
no
breach of paragraphs (a), (b), (c), (f) and/or (h) of Clause 26.15
(Acquisition-related undertakings) has
occurred;
|
|
|
(ii)
|
the
Offer Document or, as applicable, the Scheme Document contains all
the
material terms of the Offer or
Scheme;
|
|
|
(iii)
|
the
amounts to be drawn under the Term Facilities (together with the
amount of
any cash of any member of the Group to be used for that purpose,
if any)
are sufficient to pay the purchase price for the Target Shares or
the
amount due under the Scheme;
|
|
|
(iv)
|
the
first utilisation(s) (other than for purposes set out in paragraph
(a)(viii) of Clause 3.1 (Purpose)) will be applied in accordance
with Clause 3.1 (Purpose);
and
|
|
|
(v)
|
the
Unconditional Date or, as applicable, the Scheme Date has
occurred.
|
|
(b)
|
The
final draft Press Release setting out, that the Offer or Scheme has
been
initially recommended by the board of Target, and in the case of
an Offer
with a minimum acceptance threshold of
75%.
|
|
(c)
|
A
copy of the Offer Document or Scheme Document (as the case may be)
which,
provided that, save as permitted under this Agreement, it
does not deviate materially from the relevant draft Press Release
provided
prior to the delivery of the first Utilisation Request to fund the
acquisition of the Target Shares pursuant to the Offer or Scheme,
is not
required to be in form and substance satisfactory to the
Agent.
|
|
(d)
|
Any
Press Release issued after the delivery of an Offer Conversion Notice
(which, provided it does not (save to the extent permitted under
this
Agreement) deviate materially from the terms set out in the Scheme
Press
Release save to the extent required to take into account the Acquisition
being made by way of an Offer rather than a Scheme, is not required
to be
in form or substance satisfactory to the
Agent).
|
|
(e)
|
A
copy of the inter-company loan from HeidelbergCement Finance B.V.
to Bidco
pursuant to which the proceeds of the relevant part of the Term Facilities
will be on lent to Bidco.
|
Other
documents and evidence
|
(a)
|
Evidence
that all fees, costs and expenses then due from the Company pursuant
to
Clause 16 (Fees) and Clause 21 (Costs and Expenses) have
been paid or will be paid on or by the relevant Utilisation
Date.
|
|
(b)
|
Evidence
of the prior or simultaneous cancellation and full repayment (except
as
provided below) of the following
facilities:
|
|
|
(i)
|
the
Existing 2004 Facility (as amended from time to time);
and
|
|
|
(ii)
|
the
DB Facility,
|
it
being
understood that this evidence shall be deemed to have been provided in form
and
substance satisfactory to the Agent upon receipt by the Agent of the
following:
|
|
(1)
|
in
relation to the Existing 2004 Facility, a copy of a duly executed
prepayment and cancellation notice in the agreed form and delivery
of a
duly executed Utilisation Request for any amount outstanding thereunder
on
the proposed Utilisation Date for the first utilisation to fund the
Offer
or, as the case may be, Scheme; and
|
|
|
(2)
|
in
relation to the DB Facility delivery of a duly executed Utilisation
Request for an amount equal to the amount notified to the Agent by
Deutsche Bank Luxembourg S.A. as being the amount outstanding on
the
proposed Utilisation Date for the first utilisation to fund the Offer
or,
as the case may be, Scheme.
|
|
(c)
|
The
following in relation to a Scheme (which are not required to be in
form
and substance to the satisfaction of the
Agent):
|
|
|
(i)
|
a
certified copy of the shareholder resolution approving the
Scheme;
|
|
|
(ii)
|
a
certified copy of the Implementation
Agreement;
|
|
|
(iii)
|
a
certified copy of the Court Order sanctioning the
Scheme;
|
|
|
(iv)
|
a
certified copy of the Court Order sanctioning the
Reduction;
|
|
|
(v)
|
evidence
that the Court Order sanctioning the Scheme and the Reduction has
been
filed with, and registered by, the Registrar of Companies for England
and
Wales; and
|
|
|
(vi)
|
a
certified copy of the certificate issued by the Registrar of Companies
under Section 138 of the Companies Xxx 0000 in relation to the
Reduction.
|
|
(d)
|
A
copy of the executed legal opinion by De Brauw Blackstone Westbroek
referred to in item 2(c) of Part I of this Schedule 2 which, if it
does
not deviate from the draft delivered pursuant to item 2(c) of Part
I of
this Schedule 2, does not have to be in form and substance satisfactory
to
the Agent.
|
Part III
delivered
by an Additional Borrower
|
1.
|
An
Accession Letter, duly executed by the Additional Borrower and the
Company.
|
|
2.
|
In
relation to an Additional Borrower incorporated or established in
Germany
an up-to-date commercial register extract (Handelsregisterauszug)
of recent date, its up-to-date articles of association (Satzung)
or partnership agreement (Gesellschqftsvertrag), copies of any
by-laws as well as a list of shareholders (Gesellschafterliste)
(if applicable). In relation to an Additional Borrower incorporated
in a
jurisdiction than other than Germany a copy of its constitutional
documents.
|
|
3.
|
In
relation to an Additional Borrower incorporated or established in
Germany
a copy of a resolution signed by all the holders of the issued shares
in
such Additional Borrower and/or if applicable a copy of a resolution
of
the supervisory board (Aufsichtsrat) and/or if applicable the
advisory board (Beirat) of such Additional Borrower approving the
terms of, and the transactions contemplated by the Finance Documents.
In
relation to an Additional Borrower incorporated in a jurisdiction
other
than Germany a copy of a resolution signed by all the holders of
the
issued shares in each such Additional Borrower, approving the terms
of,
and the transactions contemplated by the Finance
Documents.
|
|
4.
|
A
copy of a resolution of the board of directors of the Additional
Borrower:
|
|
|
(a)
|
approving
the terms of, and the transactions contemplated by, the Accession
Letter
and the Finance Documents and resolving that it execute the Accession
Letter;
|
|
|
(b)
|
authorising
a specified person or persons to execute the Accession Letter on
its
behalf; and
|
|
|
(c)
|
authorising
a specified person or persons, on its behalf, to sign and/or despatch
all
other documents and notices (including, any Utilisation Request or
Selection Notice) to be signed and/or despatched by it under or in
connection with the Finance
Documents.
|
|
5.
|
A
specimen of the signature of each person authorised to execute any
Finance
Document and other documents and notices (including, if relevant,
any
Utilisation Request and Selection Notice) to be singed and/or despatched
by it under or in connection with the Finance Documents to which
it is a
party by the resolution referred to in paragraph 3
above.
|
|
6.
|
A
certificate of the Additional Borrower (signed by a director) confirming
that borrowing the Total Commitments would not cause any borrowing
limit
binding on it to be exceeded.
|
|
7.
|
A
certificate of an authorised signatory of the Additional Borrower
certifying that each copy document listed in this Part III of Schedule
2
is correct, complete and in full force and effect as at a date no
earlier
than the date of the Accession
Letter.
|
|
8.
|
A
copy of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection
with
the entry into and performance of the transactions contemplated by
the
Accession Letter or for the validity and enforceability of any Finance
Document.
|
|
9.
|
If
available, the latest audited financial statements of the Additional
Borrower.
|
|
10.
|
A
legal opinion of Xxxxxxxx Chance, legal advisers to the Arranger
and the
Agent in Germany.
|
|
11.
|
A
legal opinion of Hengeler Xxxxxxx, legal advisers to the Company
in
Germany.
|
|
12.
|
If
the Additional Borrower is incorporated in a jurisdiction other than
Germany, a legal opinion of the legal advisers to the Arranger and
the
Agent in the jurisdiction in which the Additional Borrower is
incorporated.
|
|
13.
|
If
the proposed Additional Borrower is incorporated in a jurisdiction
other
than Germany, evidence that the process agent specified in Clause
42.2
(Service of process), if not an Obligor, has accepted its
appointment in relation to the proposed Additional Borrower together
with
a copy of the executed Process Agent Appointment Letter in relation
to the
proposed Additional Borrower.
|
|
14.
|
Either
(i) a letter from the Company to the Agent (attaching supporting
advice
from the Company's English solicitors) confirming that no Additional
Borrower is prohibited by Section 151 of the Companies Xxx 0000 from
entering into the Finance Documents and/or (ii) evidence that each
Additional Borrower has done all that is necessary (including, without
limitation, by re-registering as a private company) to follow the
procedures set out in Sections 155 to 158 of the Companies Xxx 0000
in
order to enable each Additional Borrower to enter into the Finance
Documents and perform its obligations under the Finance
Documents.
|
Requests
Part
IA
Utilisation
Request - Term and
Revolving Facility Loans
From: [name
of relevant Borrower]
To: [Agent]
Dated:
Dear
Sirs
|
HeidelbergCement
AG –
[ ]
Facility Agreement
dated
[ ]
(the "Agreement")
|
|
1.
|
We
refer to the Agreement. This is a Utilisation
Request. Terms defined in the Agreement have the same meaning
in this Utilisation Request unless given a different meaning
in this
Utilisation Request.
|
|
2.
|
We
wish to borrow a Loan on the following
terms:
|
|
Proposed
Utilisation Date:
|
[
] (or, if that is not a Business Day, the next Business
Day)
|
|
|
Facility
to be utilised:
|
[Facility
[A]/[B]/[C]/[Revolving Facility] *
|
|
|
Currency
of Loan:
|
[
]
|
|
|
Amount:
|
[
] or, if less, the Available Facility
|
|
|
Interest
Period:
|
[
]
|
|
|
3.
|
[We
confirm that no Major Default is continuing and the Major Representations
are true and correct in all material
respects]*
|
|
4.
|
[We
confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Utilisation
Request.]*
|
|
5.
|
Without
prejudice to Clause 4.5 (Utilisations during the Certain Funds
Period), the Company confirms to each Finance Party that each of the
Repeated Representations is true and correct as at the date hereof
as if
made by reference to the facts and circumstances existing on the
date
hereof [with the exception of the following Repeating Representations
which are incorrect for the reasons set out below: [list any such
representation and related disclosure in reasonable
detail].
|
|
6.
|
[The
Company confirms to each Finance Party that the Offer Document or,
as
applicable, Scheme Document contains all material terms of the Offer
or
Scheme.]*
|
|
7.
|
The
proceeds of this Loan should be credited to
[account].
|
|
8.
|
This
Utilisation Request is irrevocable.
|
Yours
faithfully
………………………………………..
authorised
signatory for
[name
of relevant Borrower]
………………………………………..
authorised
signatory for
[name
of relevant Company]1
*
delete
as appropriate
Part
I B
Utilisation
Request - Euro Swingline
Loans
From: [name
of relevant Borrower]
To: [Agent]
Dated:
Dear
Sirs
|
HeidelbergCement
AG –
[ ]
Facility Agreement
dated
[ ]
(the "Agreement")
|
|
1.
|
We
refer to the Agreement. This is a Utilisation
Request. Terms defined in the Agreement have the same meaning
in this Utilisation Request unless given a different meaning in
this
Utilisation Request.
|
|
2.
|
We
wish to borrow a Euro Swingline Loan on the following
terms:
|
|
Proposed
Utilisation Date:
|
[
] (or, if that is not a [Euro Swingline Business Day], the
next [Euro Swingline Business Day])
|
|
|
Facility
to be utilised:
|
Euro
Swingline Facility
|
|
|
Amount:
|
Euro
[ ] or, if less, the Available Euro Swingline
Facility
|
|
|
Interest
Period:
|
[
]
|
|
|
3.
|
We
confirm that each condition specified in Clause 7.3(b) (Euro Swingline
Lenders' participation) is satisfied on the date of this Utilisation
Request.
|
|
4.
|
The
proceeds of this Euro Swingline Loan should be credited to
[account].
|
|
5.
|
This
Utilisation Request is irrevocable.
|
Yours
faithfully
………………………………………..
authorised
signatory for
[name
of relevant Borrower]
Part
II
Applicable
to a Term Loan
From: [Company
on behalf of/[name of relevant
Borrower]
To: [Agent]
Dated:
Dear
Sirs
|
HeidelbergCement
AG –
[ ]
Facility Agreement
dated
[ ]
(the "Agreement")
|
|
1.
|
We
refer to the Agreement. This is a Selection Notice. Terms defined
in the
Agreement have the same meaning in this Selection Notice unless
given a
different meaning in this Selection
Notice.
|
|
2.
|
We
refer to the following Facility A/B/C Loan[s] in [identify
currency] with an Interest Period ending on
[ ]*.
|
|
3.
|
[We
request that the above Facility A/B/C Loan[s] be divided into
[ ] Facility A/B/C Loans with the
following Base Currency Amounts and Interest
Periods:]**
|
or
[We
request that the next Interest Period for the above Facility A/B/C Loan[s]
is
[ ]].***
|
4.
|
We
request that the above Facility A/B/C Loan[s] [is]/[are] [denominated
in
the same currency for the next Interest Period]/[denominated in the
following currencies:
[ ]. As
this results in a change of currency we confirm that each condition
specified in Clause 4.2 (Further conditions precedent) is
satisfied on the date of this Selection Notice. The proceeds of any
change
in currency should be credited to
[account].].
|
|
5.
|
The
Company confirms to each Finance Party that each of the Repeated
Representations is true and correct as at the date hereof as if made
by
reference to the facts and circumstances existing on the date
hereof.
|
|
6.
|
This
Selection Notice is irrevocable.
|
-130-
Yours
faithfully
…………………………..
authorised
signatory for
[Company
on behalf of/[name of relevant Borrower]
Mandatory
Cost Formulae
|
1.
|
The
Mandatory Cost is an addition to the interest rate to compensate
Lenders
for the cost of compliance with (a) the requirements of the Bank
of
England and/or the Financial Services Authority (or, in either case,
any
other authority which replaces all or any of its functions) or (b)
the
requirements of the European Central
Bank.
|
|
2.
|
On
the first day of each Interest Period (or as soon as possible thereafter)
the Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Lender, in accordance
with the paragraphs set out below. The Mandatory Cost will be calculated
by the Agent as a weighted average of the Lenders' Additional Cost
Rates
(weighted in proportion to the percentage participation of each Lender
in
the relevant Loan) and will be expressed as a percentage rate per
annum.
|
|
3.
|
The
Additional Cost Rate for any Lender lending from a Facility Office
in a
Participating Member State will be the percentage notified by that
Lender
to the Agent. This percentage will be certified by that Lender in
its
notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender's participation in all
Loans
made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made
from
that Facility Office.
|
|
4.
|
The
Additional Cost Rate for any Lender lending from a Facility Office
in the
United Kingdom will be calculated by the Agent as
follows:
|
(a) in
relation to a sterling Loan:
|
AB + C(B
– D) + E x 0.01
|
per
cent. per annum
|
|
100
– (A + C)
|
(b) in
relation to a Loan in any currency other than sterling:
|
E x 0.01
|
per
cent. per annum.
|
|
300
|
Where:
|
|
A
|
is
the percentage of Eligible Liabilities (assuming these to be in excess
of
any stated minimum) which that Lender is from time to time required
to
maintain as an interest free cash ratio deposit with the Bank of
England
to comply with cash ratio
requirements.
|
|
|
B
|
is
the percentage rate of interest (excluding the Margin and the Mandatory
Cost and, if the Loan is an Unpaid Sum, the additional rate of interest
specified in paragraph (a) of Clause 13.3 (Default interest and lump
sum damages)) payable for the relevant Interest Period on the
Loan.
|
|
|
C
|
is
the percentage (if any) of Eligible Liabilities which that Lender
is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
|
|
|
D
|
is
the percentage rate per annum payable by the Bank of England to the
Agent
on interest bearing Special
Deposits.
|
|
|
E
|
is
designed to compensate Lenders for amounts payable under the Fees
Rules
and is calculated by the Agent as being the average of the most recent
rates of charge supplied by the Reference Banks to the Agent pursuant
to
paragraph 7 below and expressed in pounds per
£1,000,000.
|
|
5.
|
For
the purposes of this Schedule:
|
|
|
(a)
|
|
|
(b)
|
"Fees
Rules" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force
from
time to time in respect of the payment of fees for the acceptance
of
deposits;
|
|
|
(c)
|
"Fee
Tariffs" means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee
or zero
rated fee required pursuant to the Fees Rules but taking into account
any
applicable discount rate); and
|
|
|
(d)
|
"Tariff
Base" has the meaning given to it in, and will be calculated
in
accordance with, the Fees Rules.
|
|
6.
|
In
application of the above formulae, A, B, C and D will be included
in the
formulae as percentages (i.e. 5 per cent, will be included in the
formula
as 5 and not as 0.05). A negative result obtained by subtracting
D from B
shall be taken as zero. The resulting figures shall be rounded to
four
decimal places.
|
|
7.
|
If
requested by the Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to
the
Agent, the rate of charge payable by that Reference Bank to the Financial
Services Authority pursuant to the Fees Rules in respect of the relevant
financial year of the Financial Services Authority (calculated for
this
purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed
in pounds per £1,000,000 of the Tariff Base of that Reference
Bank.
|
|
8.
|
Each
Lender shall supply any information required by the Agent for the
purpose
of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information on
or prior
to the date on which it becomes a
Lender:
|
|
|
(a)
|
the
jurisdiction of its Facility Office;
and
|
|
|
(b)
|
any
other information that the Agent may reasonably require for such
purpose.
|
Each
Lender shall promptly notify the Agent of any change to the information provided
by it pursuant to this paragraph.
|
|
9.
|
The
percentages of each Lender for the purpose of A and C above and the
rates
of charge of each Reference Bank for the purpose of E above shall
be
determined by the Agent based upon the information supplied to it
pursuant
to paragraphs 7 and 8 above and on the assumption that, unless a
Lender
notifies the Agent to the contrary, each Lender's obligations in
relation
to cash ratio deposits and Special Deposits 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.
|
|
|
10.
|
The
Agent shall have no liability to any person if such determination
results
in an Additional Cost Rate which over or under compensates any Lender
and
shall be entitled to assume that the information provided by any
Lender or
Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and
correct
in all respects.
|
|
|
11.
|
The
Agent shall distribute the additional amounts received as a result
of the
Mandatory Cost to the Lenders on the basis of the Additional Cost
Rate for
each Lender based on the information provided by each Lender and
each
Reference Bank pursuant to paragraphs 3, 7 and 8
above.
|
|
|
12.
|
Any
determination by the Agent pursuant to this Schedule in relation
to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable
to a Lender shall, in the absence of manifest error, be conclusive
and
binding on all Parties.
|
|
|
13.
|
The
Agent may from time to time, after consultation with the Company
and the
Lenders, determine and notify to all Parties any amendments which
are
required to be made to this Schedule in order to comply with any
change in
law, regulation or any requirements from time to time imposed by
the Bank
of England, the Financial Services Authority or the European Central
Bank
(or, in any case, any other authority which replaces all or any of
its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all
Parties.
|
Form
of Transfer Certificate
|
To:
|
[ ]
as Agent
|
|
From:
|
[The
Existing Lender] (the "Existing Lender") and [The New
Lender] (the "New
Lender")
|
Dated:
HeidelbergCement
AG – [ ] Facility
Agreement
dated
[ ] (the
"Agreement")
|
1.
|
We
refer to the Agreement. This is a Transfer Certificate. Terms defined
in
the Agreement have the same meaning in this Transfer Certificate
unless
given a different meaning in this Transfer
Certificate.
|
|
2.
|
We
refer to Clause 28.5 (Procedure for assignment and transfer by
assumption of contract
(Vertragsübernahme)):
|
|
|
(a)
|
The
Existing Lender and the New Lender agree to the Existing Lender assigning
and transferring to the New Lender by assumption of contract
(Vertragsübernahme) all or part of the Existing Lender's
Commitment, rights and obligations referred to in the Schedule in
accordance with Clause 28.5 (Procedure for assignment and transfer by
assumption of contract
(Vertragsübernahme)).
|
|
|
(b)
|
The
proposed Transfer Date is
[ ].
|
|
|
(c)
|
The
Facility Office and address, fax number and attention details for
notices
of the New Lender for the purposes of Clause 35.2 (Addresses) are
set out in the Schedule.
|
|
3.
|
The
New Lender expressly acknowledges the limitations on the Existing
Lender's
obligations set out in paragraph (c) of Clause 28.4 (Limitation of
responsibility of Existing
Lenders).
|
|
4.
|
The
New Lender expressly confirms that it [can/cannot] exempt the Agent
from
the restrictions pursuant to section 181 Civil Code (Bürgerliches
Gesetzbuch) and similar restrictions applicable to it pursuant to any
other applicable law as provided for in paragraph (c) of Clause 30.1
(Appointment of the
Agent).
|
|
5.
|
The
New Lender confirms that it assumes the same obligations to the other
Finance Parties as it would have been subject to if the New Lender
would
have been an Original Lender.
|
|
6.
|
This
Transfer Certificate may be executed in any number of counterparts
and
this has the same effect as if the signatures on the counterparts
were on
a single copy of this Transfer
Certificate.
|
|
7.
|
This
Transfer Certificate is governed by German
law.
|
THE
SCHEDULE
Commitment/rights
and obligations to be transferred
[insert
relevant details]
[Facility
Office address, fax number and attention details for notices and account details
for payments,]
|
[Existing
Lender]
|
[New
Lender]
|
|
By:
|
By:
|
|
This
Transfer Certificate is accepted by the Agent and the Transfer Date
is
confirmed as
[
].
|
|
| [Agent] | |
| By: |
Form
of Accession Letter
|
To:
|
[ ]
as Agent
|
|
From:
|
[Subsidiary]
and HeidelbergCement AG
|
Dated:
Dear
Sirs
HeidelbergCement
AG – [ ] Facility
Agreement
dated
[ ] (the
"Agreement")
|
1.
|
We
refer to the Agreement. This is an Accession Letter. Terms defined
in the
Agreement have the same meaning in this Accession Letter unless given
a
different meaning in this Accession
Letter.
|
|
2.
|
[Subsidiary]
agrees to become an Additional Borrower and to be bound by the terms
of
the Agreement as an Additional Borrower pursuant to
Clause [29.2 (Additional Borrowers)] of the
Agreement. [Subsidiary] is a company duly incorporated under the
laws of [name of relevant
jurisdiction].
|
|
3.
|
We
confirm to each Finance Party that each of the Repeated Representations
is
true and correct in relation to us as at the date hereof as if made
by
reference to the facts and circumstances existing on the date
hereof.
|
|
4.
|
[Subsidiary's]
administrative details are as
follows:
|
Address:
Fax
No:
Attention:
|
5.
|
This
Accession Letter is governed by German
law.
|
|
HeidelbergCement
AG
|
[Subsidiary]
|
|
By:
|
By:
|
Form
of Resignation Letter
|
To:
|
[ ]
as Agent
|
|
From:
|
[resigning
Borrower] and HeidelbergCement AG
|
Dated:
Dear
Sirs
HeidelbergCement
AG – [ ] Facility
Agreement
dated
[ ] (the
"Agreement")
|
1.
|
We
refer to the Agreement. This is a Resignation Letter. Terms defined
in the
Agreement have the same meaning in this Resignation Letter unless
given a
different meaning in this Resignation
Letter.
|
|
2.
|
Pursuant
to [Clause 29.3 (Resignation of a Borrower)] we request that
[resigning Borrower] be released from its obligations as a
Borrower under the Agreement.
|
|
3.
|
We
confirm that:
|
(a) no
Default is continuing or would result from the acceptance of this request;
and
(b) [ ]*
|
4.
|
This
Resignation Letter is governed by German
law.
|
|
HeidelbergCement
AG
|
[Subsidiary]
|
|
By:
|
By:
|
|
|
_________________________________________________________________________________________
|
|
*
|
Insert
any other conditions required by the Facility
Agreement.
|
Form
of Compliance Certificate
|
To:
|
[ ]
as Agent
|
|
From:
|
HeidelbergCement
AG
|
|
Dated:
|
|
Dear
Sirs
HeidelbergCement
AG – [ ] Facility
Agreement
dated
[ ] (the "
Agreement")
|
1.
|
We
refer to the Agreement. This is a Compliance Certificate. Terms defined
in
the Agreement have the same meaning when used in this Compliance
Certificate unless given a different meaning in this Compliance
Certificate.
|
|
2.
|
We
confirm that:
|
|
|
[insert
details of financial covenants and whether the Company is in compliance
with those covenants]
|
|
3.
|
We
confirm that the ratio of Group's Net Debt/EBITDA is [·]:1
and that,
therefore, the Margin for Facility A should be [·],
for
Facility B should be [·]
for Facility
C should be [·]
and for the
Revolving Facility should be [·].
|
|
4.
|
[We
confirm that no Default is
continuing.]*
|
|
5.
|
We
confirm that the following companies constitute Material Companies
for the
purpose of this Agreement: [·]
|
| Signed: | |||
|
Director
of
Company
|
Director
of
Company
|
||
[insert
applicable certification language]
………………………………………….
for
and
on behalf of
[name
of auditors of the Company]
|
|
_________________________________________________________________________________________
|
|
*
|
If
this statement cannot be made, the certificate should identify any
Default
that is continuing and the steps, if any, being taken to remedy
it.
|
Existing
Security
n n n
Form
of Confidentiality
Undertaking
Form
of Confidentiality Undertaking
|
To:
|
[insert
name of Potential Lender]
|
|
Re:
|
GBP
8,750,000,000 and EUR 3,400,000,000 facilities agreement in connection
with the acquisition of the shares of Run plc (the
"Facilities")
|
Dear
Sirs
We
understand that you are considering participating in the Facilities. In
consideration of us agreeing to make available to you certain information,
by
your signature of a copy of this letter you agree as follows:
You
undertake:
|
|
(a)
|
to
keep the Confidential Information confidential and not to disclose
it to
anyone except as provided for by paragraph 2 below and to ensure
that the
Confidential Information is protected with security measures and
a degree
of care that would apply to your own confidential
information;
|
|
|
(b)
|
to
keep confidential and not disclose to anyone except as provided for
by
paragraph 2 below the fact that the Confidential Information has
been made
available or that discussions or negotiations are taking place or
have
taken place between us in connection with the
Facilities;
|
|
|
(c)
|
to
use the Confidential Information only for the Permitted Purpose;
and
|
|
|
(d)
|
to
use all reasonable endeavours to ensure that any person to whom you
pass
any Confidential Information (unless disclosed under paragraph 2(b)
below)
acknowledges and complies with the provisions of this letter as if
that
person were also a party to it.
|
We
agree
that you may disclose Confidential Information and those matters referred to
in
paragraph l(b) above:
|
|
(a)
|
to
members of the Participant Group and their officers, directors, employees
and professional advisers to the extent necessary for the Permitted
Purpose and to any auditors of members of the Participant
Group;
|
|
|
(b)
|
(i)
where requested or required by any court of competent jurisdiction
or any
competent judicial, governmental, supervisory or regulatory body,
(ii)
where required by the rules of any stock exchange on which the shares
or
other securities of any member of the Participant Group are listed
or
(iii) where required by the laws or regulations of any country with
jurisdiction over the affairs of any member of the Participant Group;
or
|
|
|
(c)
|
with
the prior written consent of us and the
Company.
|
|
You
agree (to the extent permitted by law and except where disclosure
is to be
made to any competent supervisory or regulatory body during the ordinary
course of its supervisory or regulatory function over you) to inform
us of
the full circumstances of any disclosure under paragraph 2(b) or
upon
becoming aware that Confidential Information has been disclosed in
breach
of this letter.
|
|
If
we so request in writing, you shall return all Confidential Information
supplied to you by us and destroy or permanently erase (to the extent
technically practicable) all copies of Confidential Information made
by
you and use all reasonable endeavours to ensure that anyone to whom
you
have supplied any Confidential Information destroys or permanently
erases
(to the extent technically practicable) such Confidential Information
and
any copies made by them, in each case save to the extent that you
or the
recipients are required to retain any such Confidential Information
by any
applicable law, rule or regulation or by any competent judicial,
governmental, supervisory or regulatory body or in accordance with
internal policy, or where the Confidential Information has been disclosed
under paragraph 2(b) above.
|
|
The
obligations in this letter are continuing and, in particular, shall
survive the termination of any discussions or negotiations between
you and
us. Notwithstanding the previous sentence, the obligations in this
letter
shall cease on the earlier of (a) the date you become a party to
or
otherwise acquire (by assignment or otherwise) a direct interest
in the
Facilities and (b) twelve months after you have returned all Confidential
Information supplied to you by us and destroyed or permanently erased
(to
the extent technically practicable) all copies of Confidential Information
made by you (other than any such Confidential Information or copies
which
have been disclosed under paragraph 2 above (other than sub-paragraph
2
(a)) or which, pursuant to paragraph 4 above, are not required to be
returned or destroyed)[ and (c) in any event [ ] months from the
date of
this letter].
|
|
6.
|
No
Representation; Consequences of Breach,
etc
|
| You acknowledge and agree that: |
|
|
(a)
|
neither
we nor any of our officers, employees or advisers (each a
"Relevant Person")
|
|
|
(i)
|
make
any representation or warranty, express or implied, as to, or assume
any
responsibility for, the accuracy, reliability or completeness of
any of
the Confidential Information or any other information supplied by
us or
any member of the Group or the assumptions on which it is based,
or
|
|
|
(ii)
|
shall
be under any obligation to update or correct any inaccuracy in the
Confidential Information or any other information supplied by us
or any
member of the Group or be otherwise liable to you or any other person
in
respect to the Confidential Information or any such information;
and
|
|
|
(b)
|
we
or members of the Group may be irreparably harmed by the breach of
the
terms of this letter and damages may not be an adequate remedy; each
Relevant Person or member of the Group may be granted an injunction
or
specific performance for any threatened or actual breach of the provisions
of this letter by you.
|
|
7.
|
No
Waiver; Amendments, etc
|
|
This
letter sets out the full extent of your obligations of confidentiality
owed to us in relation to the information the subject of this letter.
No
failure or delay in exercising any right, power or privilege under
this
letter will operate as a waiver thereof nor will any single or partial
exercise of any right, power or privilege preclude any further exercise
thereof or the exercise of any other right, power or privileges under
this
letter. The terms of this letter and your obligations under this
letter
may only be amended or modified by written agreement between
us.
|
|
8.
|
Inside
Information
|
|
You
acknowledge that some or all of the Confidential Information is or
may be
price-sensitive information and that the use of such information
may be
regulated or prohibited by applicable legislation including securities
law
relating to insider dealing and market abuse and you undertake not
to use
any Confidential Information for any unlawful
purpose.
|
|
9.
|
Nature
of Undertakings
|
| The undertakings given by you under this letter are given to us and (without implying any fiduciary obligations on our part) are also given for the benefit of the Company. |
|
(B)
|
NO
FRONT RUNNING
UNDERTAKING
|
| You acknowledge and agree that: |
|
|
(a)
|
you
will not, and you will procure that no other member of the Participant
Group will engage in any Front
Running;
|
|
|
(b)
|
if
you or any other member of the Participant Group engages in any Front
Running we may suffer loss or damage [and your position in future
financings with us and the Borrower may be
prejudiced];*
|
|
|
(c)
|
if
you or any other member of the Participant Group engages in any
Front Running we retain the right not to allocate to you a commitment
under the Facilities];
|
|
|
(d)
|
[you
confirm that neither you nor any other member of the Participant
Group has engaged in any Front
Running.]*
|
[When
you
sign the Facility Agreement and any transfer document under the Facility
Agreement (in the case of any transfer document, only if signed within
[three/six] months after [the date of signing of the Facility Agreement]/[the
close of primary syndication]), you will, if we so request, confirm to us in
writing that neither you nor any other member of the Participant Group has
breached the terms of this Part B of this letter.]*
[Any
arrangement, front-end or similar fee which may be payable to you in connection
with the Facilities] is only payable on condition that neither you nor any
other
member of the Participant Group has breached the terms of this Part B of this
letter. This condition is in addition to any other conditions agreed between
us
in relation to your entitlement to any such fee.]*
|
10.
|
Third
Party Rights
|
|
|
(a)
|
Subject
to paragraph 6 and paragraph 9 the terms of this letter may be enforced
and relied upon only by you and us and the operation of the Contracts
(Rights of Third Parties) Xxx 0000 is
excluded.
|
|
|
(b)
|
Notwithstanding
any provisions of this letter, the parties to this letter do not
require
the consent of any Relevant Person or any member of the Group to
rescind
or vary this letter at any time.
|
|
11.
|
Governing
Law and Jurisdiction
|
This
letter (including the agreement constituted by your acknowledgement of its
terms) shall be governed by and construed in accordance with the laws of England
and the parties submit to the non-exclusive jurisdiction of the English
courts.
|
|
_________________________________________________________________________________________
|
|
*
|
Optional.
|
|
12.
|
Definitions
|
In
this
letter (including the acknowledgement set out below):
"close
of primary syndication" means the time we notify the parties
participating as lenders of record in primary syndication as to the allocation
of commitments relating to the Facilities.
"Arranger
Group" means us, each of our holding companies and subsidiaries and
each subsidiary of each of our holding companies and each of our or their
directors, officers and employees (including any sales and trading teams)
provided that when used in this letter in respect of an
Arranger it applies severally only in respect of that Arranger, each of that
Arranger's holding companies and subsidiaries, each subsidiary of each of its
holding companies and each director, officer and employee (including any sales
and trading teams) of that Arranger or any of the foregoing and not, for the
avoidance of doubt, those of another Arranger.
"Confidential
Information" means any information relating to the Company, the Group,
and the Facilities provided to you by us or any of our affiliates or advisers,
in whatever form, and includes information given orally and any document,
electronic file or any other way of representing or recording information which
contains or is derived or copied from such information but excludes information
that (a) is or becomes public knowledge other than as a direct or indirect
result of any breach of this letter or (b) is known by you before the date
the
information is disclosed to you by us or any of our affiliates or advisers
or is
lawfully obtained by you after that date, other than from a source which is
connected with the Group and which, in either case, as far as you are aware,
has
not been obtained in violation of, and is not otherwise subject to, any
obligation of confidentiality.
The
"Facility Agreement" means the facility agreement to be entered
into in relation to the Facilities.
A
"Facility Interest" means a legal, beneficial or economic
interest acquired or to be acquired expressly and specifically in or in relation
to the Facilities, whether as initial lender or by way of assignment, transfer,
novation, sub-participation (whether disclosed, undisclosed, risk or funded)
or
any other similar method.
"Front
Running" means undertaking any of the following activities prior to the
close of primary syndication which is intended to or is reasonably likely to
encourage any person to take a Facility Interest except as a lender of record
in
primary syndication:
|
|
(a)
|
communication
with any person or the disclosure of any information to any person
in
relation to a Facility Interest;
[or]
|
|
|
(b)
|
making
a price (whether firm or indicative) with a view to buying or selling
a
Facility Interest; [or]
|
|
|
(c)
|
[entering
into (or agreeing to enter into) any agreement, option or other
arrangement, whether legally binding or not, giving rise to the assumption
of any risk or participation in any exposure in relation to a Facility
Interest],
|
excluding
where any of the foregoing is:
|
|
(i)
|
made
to or entered into by you with another member of the Participant
Group (in
the case of the undertaking made by you in this letter) or by us
with
another member of the Arranger Group (in the case of the undertaking
made
by us in this letter); or
|
|
|
(ii)
|
an
act of a member of the Participant Group (in the case of the undertaking
made by you in this letter) or the Arranger Group (in the case of
the
undertaking made by us in this letter) who in each case is operating
on
the public side of an information barrier unless such person is acting
on
the instructions of a person who has received Confidential Information
and
is aware of the proposed Facility.
|
"Group"
means the Company and each of its affiliated companies as contemplated in
Section 15 of the Stock Corporation Act (Aktiengesetz).
"Participant
Group" means you, each of your holding companies and subsidiaries and
each subsidiary of each of your holding companies and where such term is used
in
Part B of this letter and the definition of "Front Running"
each of your or their directors, officers and employees (including any sales
and
trading teams).
"Permitted
Purpose" means considering and evaluating whether to enter into the
Facilities.
Please
acknowledge your agreement to the above by signing and returning the enclosed
copy.
Yours
faithfully
…………………………………
For
and
on behalf of
[Existing
Lender]
To: [Existing
Lender]
The
Company
We
acknowledge and agree to the above:
…………………………………
For
and
on behalf of
[Potential
Lender]
Timetables
|
Loans
in euro
|
Loans
in domestic sterling
|
Loans
in other currencies
|
|
|
Agent
confirms to Company if a currency is approved as an Optional Currency
in
accordance with Clause 4.3(b) (Conditions relating to Optional
Currencies)
|
–
|
–
|
U-4
|
|
Delivery
of a duly completed Utilisation Request (Clause 5.1 (Delivery of a
Utilisation Request) or a Selection Notice (Clause 14.1
(Selection of Interest Periods))
|
U-3
9.30am
|
U-1
9.30am
|
U-3
9.30am
|
|
Agent
determines (in relation to a Utilisation) the Base Currency Amount
of the
Loan, if required under Clause 5.4 (Lenders'
participation)
|
U-3
noon
|
U-1
noon
|
U-3
noon
|
|
Agent
notifies the Lenders of the Loan in accordance with Clause 5.4
(Lenders' participation)
|
U-3
3.00pm
|
U-1
3.00pm
|
U-3
3.00pm
|
|
Agent
receives a notification from a Lender under Clause 9.2 (Unavailability
of a currency)
|
Quotation
Day
10.00am
|
Quotation
Day
10.00am
|
Quotation
Day
10.00am
|
|
Agent
gives notice in accordance with Clause 9.2 (Unavailability of a
currency)
|
Quotation
Day
10.30am
|
Quotation
Day
10.30am
|
Quotation
Day
10.30am
|
|
Agent
determines amount of the Term Loan in Optional Currency in accordance
with
Clause 9.3 (Change of currency)
|
U-3
11.00am
|
Quotation
Day
11.00am
|
Quotation
Day
11.00am
|
|
Agent
determines amount of the Term Loan in Optional Currency in accordance
with
Clause 9.4(a) (Same Optional Currency during successive Interest
Periods)
|
Quotation
Day
11.00am
|
Quotation
Day
11.00am
|
Quotation
Day
11.00am
|
|
Agent
calculates the amount of the Term Loan in Optional Currency converted
into
the Base Currency in accordance with Clause 9.4(b) (Same Optional
Currency during
|
U-3
|
U-3
|
U-3
|
| successive Interest Periods) |
|
EURIBOR
or LIBOR is fixed
|
Quotation
Day as of 11:00 a.m. Brussels time in respect of EURIBOR and as
of 11:00
a.m. London time in respect of LIBOR
|
Quotation
Day as of 11:00 a.m.
|
Quotation
Day as of 11:00 a.m.
|
|
Delivery
of a duly completed Utilisation Request for a Euro Swingline Loan
(Clause
7.1 (Delivery of a Utilisation Request for Euro Swingline
Loans))
|
U
9.30am
London
time
|
|
Agent
determines the Euro Swingline rate for the Euro Swingline Loan and
notifies the Euro Swingline Lenders and the relevant Borrower under
Clause
8.3 (Interest)
|
U
11.00am
London
time
|
|
Agent
determines (in relation to a Utilisation) the Base Currency Amount
of the
Euro Swingline Loan, if required under Clause 7.3 (Euro Swingline
Lenders' participation) and notifies each Euro Swingline Lender of
the amount of its participation in the Euro Swingline Loan under
Clause
7.3 (Euro Swingline Lenders' participation)
|
U
noon
London
time
|
"U"
=
date of utilisation or, if applicable, in the case of a Term Loan that has
already been borrowed, the first day of the relevant Interest Period for that
Loan
"U
- X" =
Business Days prior to date of utilisation
Form
of Process Agent Appointment Letter
To: [ ]
as process agent
From: [Obligor]
Date: Dear
Sirs
[Company]
[·] Facility
Agreement
dated
[·] (the
"Agreement")
We
refer
to the Agreement and hereby irrevocably appoint you as our agent for service
of
process in relation to any proceeding before any German court in connection
with
the above mentioned Agreement.
Exisiting
Financial Indebtedness
n n n
ExistingGuarantees
n n n
Existing
Loans
n n n
Tax
Confirmation
[ON
LETTERHEAD OF LENDER]
To/An: Borrower
HeidelbergCement
AG – [ ] Facility
Agreement
dated
[ ] (the
"Agreement")
|
Confirmation
Letter for submission to the revenue office for the purposes of § 8 a
XXxX
|
Xxxxxxxxxxxxx
xxx Vorlage beim Finanzamt für Zwecke des § 0x XXxX
|
|||
|
[Xxxxx],
[Date]
|
||||
|
Dear
Sirs :
|
Sehr
geehrte Damen und Xxxxxx,
|
|||
|
We
refer to the EUR [·]
facility
agreement dated
[ ] 2007
between, amongst others, [·].
|
wir
beziehen uns auf den Darlehensvertrag ber Kreditfazilitäten
in
Höhe
von EUR [·]
vom
[ ] 2007
zwischen, unter anderem, [·].
|
|||
|
Save
as defined in this letter, terms defined in the Agreement shall have
the
same meaning in this letter.
|
Begriffe,
die im Darlehensvertrag definiert sind, haben in dieser Bescheinigung
dieselbe Bedeutung, es sei denn, sie sind in dieser Bescheinigung
gesondert definiert.
|
|||
|
You
have asked us to provide a confirmation letter to be presented at
the tax
office for the purpose of Sec 8a of the German Corporate Income Tax
Act
(KStG).
|
Sie
xxxxxx uns gebeten, zur Vorlage beim Finanzamt für Zwecke des § 0x XXxX
xxxx Xxxxxxxxxxxxx auszustellen.
|
|||
|
In
that regard, we hereby confirm that in respect of the
Facility:
|
Hierzu
erklären
wir,
dass uns bezüglich der unter dem Darlehensvertrag eingeräumten
Kreditlinie:
|
|||
|
¨
|
no
security on capital claims has been
provided
to us by other persons than the Borrowers. ii)
|
¨
|
keine
Sicherheiten an Kapitalforderungen von
anderen
Personen als dem Kreditnehmer gewährt wurden. ii)
|
|
| o |
the
security listed below has been provided to us by persons other than
the
Borrowers:
|
o |
die
nachfolgend aufgeführen Sicherheiten von anderen Personen als dem
Kreditnehmer gewährt
wurden:
|
||
|
1.
|
Rights
in rem
|
1.
|
Dingliche
Sicherheiten
|
||
|
Pledge
(e.g. of deposits)
|
Pfandrechte
(z.B. an Einlagen)
|
||||
|
Assignment for security purposes (e.g.
assignment of receivables)
|
Sicherungsabtretungen
(z.B. Einzelabtretung von Forderungen)
|
||||
|
2.
|
Personal
security (e.g. suretyship guarantee, co-assumption of
debt)
|
2.
|
Personalsicherheiten
(z.B. Bürgschaft, Garantie, Schuldmitübernahme)
|
||
|
connected
with:
|
verbunden
mit folgenden/r:
|
||||
|
rights
in rem/restriction on disposal (e.g. over
deposits)
|
dinglichen
Sicherheiten (z.B. an Einlagen)
|
||||
|
assignment
for security (e.g. assignment of receivable or pool of
receivables)
|
Sicherungsabtretungen
(z.B. Einzelabtretungen von Forderungen, Global-/Mantelabtretung
von
Forderungen)
|
||||
|
submission
to immediate enforcement into all assets or particular
assets
|
Unterwerfung
unter die sofortige Zwangsvollstreckung mit dem gesamten Vermögen oder
hinsichtlich einzelner Vermögensgegenstände
|
||||
|
agreed
restrictions on disposal
|
vereinbarten
Verfügungsbeschränkungen
|
||||
|
other
arrangements, e.g. pledge under general terms and conditions. iii)
|
sonstigen
Vereinbarungen (z.B. Pfandrechte unter AllgemeinenGeschäftsbedingungen) iii)
|
||||
|
3.
|
Security
in the form described above which was waived during the term of the
loan
|
3.
|
Sicherheiten
der oben genannten Art, auf die während
des
bestehenden Darlehensverhältnisses verzichtet wurde.
|
|
|
other
comments (did any person (other than the Borrower) grant security
without
releasing the Lender from Banking secret?)
|
Sonstige
Anmerkungen (hat insbesondere eine andere Person als der Kreditnehmer
Sicherheiten bestellt ohne den Kreditgeber von den Beschränkungen des
Bankgeheimnisses zu befreien?)
|
|||
|
The
confirmation letter contains only information known by the persons
at the
Lender involved in the financing referred to above.
|
Die
Bescheinigung enthält nur solche Angaben, die dem bei dem unterzeichnenden
Kreditgeber mit vorgenannten Finanzierung vertrauten Personenkreis
bekannt
sind.
|
|||
|
By
issuing this Confirmation Letter, for legal reasons, the Lender does
not
provide any tax advice. In particular, the Lender does not guarantee
that
any tax consequences that is sought by means of this confirmation
letter
is achieved.
|
Der
unterzeichnende Kreditgeber übernimmt mit dieser Erklärung
–
bereits aus rechtlichen Xxxxxxx – keine Beratung in steuerlichen
Angelegenheiten. Insbesondere steht der unterzeichnende Kreditgeber
nicht
für einen steuerlichen Erfolg ein, der mit dieser Bescheinigung angestrebt
wird.
|
|||
|
The
German version of this confirmation shall be binding.
|
Die
Deutsche Fassung dieser Bestätigung
ist
bindend.
|
|||
|
With
kind regards,
[LENDER]
|
Mit
freundlichen Grüßen
[KREDITGEBER]
|
|||
|
ii)
|
The
list of securities granted by third parties must be supplied and
the
grantors of the securities must be named regardless of whether not
merely
short-term deposits or not merely short-term other capital claims
within
the meaning of marginal note 20 of the FMoF letter of 15 July 2004
on sec.
8a of the German Corporate Income Tax Act (Federal Tax Gazette 2004
I, p.
593) are involved. Furthermore, this information must be provided
regardless of whether the security depends on the fulfilment of a
condition (e.g. security is provided or the debt secured fells due)
or on
the expiration of a period.
|
ii)
|
Die
Aufzählung der von Dritten gewährten Sicherheiten und die namentliche
Auflistung der Sicherheitengeber erfolgt unabhängig davon, ob es sich
dabei um nicht nur kurzfristige Einlagen Oder nicht nur kurzfristige
sonstige Kapitalforderungen i.S.d. Rdnr. 20 des BMF-Schreibens vom
15.
Juli 2004 zu § 0x XXxX (XXxXx. I 2004 S. 593) handelt. Sie erfolgt xxxxxx
unabhängig davon, ob die Sicherheit vom Eintritt einer Bedingung (z.B.
dem
Sicherungsfell Oder der Fälligkeit der gesicherten Xxxxxx) oder dem Ablauf
einer Xxxxx abhängig ist.
|
|
|
iii)
|
All
the securities and trust relationships granted for the loan must
also be
included (e.g. encumbrance of real property, mortgage, letter of
responsibility, assignment as security)
|
iii)
|
Einzufügen
sind xxxxxx sämtliche für das Darlehen/den Kredit bestellten Sicherheiten
und Treuhandverhältnisse (z.B. Grundschuld, Hypothek, Patronatserklärung,
Sicherungsübereignung).
|
Form
of Assignment Certificate
|
To:
|
[
|
]
as Agent
|
|
From:
|
[The
Existing Lender] (the "Existing Lender") and [The New
Lender] (the "New
Lender")
|
|
Dated:
|
|
HeidelbergCement
AG – [ ] Facility
Agreement
dated
[ ] (the
"Agreement")
|
1.
|
We
refer to the Agreement. This is an Assignment Certificate. Terms
defined
in the Agreement have the same meaning in this Assignment Certificate
unless given a different meaning in this Assignment
Certificate.
|
|
2.
|
We
refer to Clause 28.5 (Procedure for assignment and transfer by
assumption of contract (Vertragsübernahme)) of the
Agreement:
|
|
|
(a)
|
The
Existing Lender and the New Lender agree to the Existing Lender assigning
all or part of the Existing Lender's rights referred to in the
Schedule.
|
|
|
(b)
|
The
proposed Assignment Date is
[ ].
|
|
|
(c)
|
The
Facility Office and address, fax number and attention details for
notices
of the New Lender for the purposes of Clause 35.2 (Addresses) of
the Agreement are set out in the
Schedule.
|
|
3.
|
The
New Lender confirms that it will assume the same obligations to the
other
Finance Parties as it would have been subject to if the New Lender
would
have been an Original Lender to the extent such obligations relate
to the
assigned claims including, without limitation, any obligations under
Clause 32 (Sharing among the Finance Parties) of the
Agreement.
|
|
4.
|
The
New Lender expressly acknowledges the limitations on the Existing
Lender's
obligations set out in paragraph (c) of Clause 28.4 (Limitation of
responsibility of Existing Lenders) of the
Agreement.
|
|
5.
|
The
New Lender confirms that it assumes the same obligations to the other
Finance Parties as it would have been subject to if the New Lender
would
have been an Original Lender.
|
|
6.
|
This
Assignment Certificate may be executed in any number of counterparts
and
this has the same effect as if the signatures on the counterparts
were on
a single copy of this Transfer
Certificate.
|
|
7.
|
This
Assignment Certificate is governed by German
law.
|
THE
SCHEDULE
Rights
to be assigned
[insert
relevant details]
[Facility
Office address, fax number and attention details for notices and account details
for payments,]
|
[Existing
Lender]
|
[New
Lender]
|
|
By:
|
By:
|
| This Assignment Certificate is accepted by the Agent on [ ]. | |
| [Agent] | |
| By: | |
List
of Material Companies
n n n
SIGNATURES
THE
COMPANY
HEIDELBERGCEMENT
AG
By:
|
Address:
|
Xxxxxxxx
Xxxxxxx 0
00000
Xxxxxxxxxx
Xxxxxxx
|
|
Fax:
|
x00
0000 000 000
|
THE
ORIGINAL BORROWERS
HEIDELBERGCEMENT
AG
By:
|
Address:
|
Xxxxxxxx
Xxxxxxx 0
00000
Xxxxxxxxxx
Xxxxxxx
|
|
Fax:
|
x00
0000 000 000
|
HEIDELBERGCEMENT
FINANCE B.V
By:
|
Address:
|
Xxxx
Xxxxxxxxxx 0
0000
XX'x-Xxxxxxxxxxxxx
The
Netherlands
|
|
Fax:
|
x00
0000 00 000
|
THE
GUARANTOR
HEIDELBERGCEMENT
AG
By:
|
Address:
|
Xxxxxxxx
Xxxxxxx 0
00000
Xxxxxxxxxx
Xxxxxxx
|
|
Fax:
|
x00
0000 000 000
|
THE
ARRANGER
DEUTSCHE
BANK AG
By:
|
Address:
|
Global
Banking – Loan Capital Markets Frankfurt
Große
Xxxxxxxxxxxxx 00-00 (0. xxxxx)
00000
Xxxxxxxxx xx Xxxx
Xxxxxxx
|
|
Fax:
|
x00
00 000 00000
|
THE
ROYAL
BANK OF SCOTLAND PLC
By:
|
Address:
|
000
Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
|
|
Fax:
|
x00
00 0000 0000
|
|
Attn:
|
Xxxxxxxxx
Xxxxxx/Xxxx Xxxxx
|
THE
AGENT
THE
ROYAL
BANK OF SCOTLAND PLC
By:
|
Address:
|
000
Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
|
|
Fax:
|
x00
00 0000 0000
|
| Attn: |
Syndicated
Loans Agency
Attention of Xxxxxx
Xxxxxxx
|
THE
ORIGINAL LENDERS
THE
ROYAL
BANK OF SCOTLAND PLC, NIEDERLASSUNG FRANKFURT
By:
|
Address:
|
Xxxxxxxxxxxxxx 00
00000
Xxxxxxxxx xx Xxxx
Xxxxxxx
|
|
Fax:
|
x00
00 00000 000
|
|
Attn:
|
Xxxxxx
Xxxxxx/Xxx X'Xxxxxxxx
|
DEUTSCHE
BANK LUXEMBOURG S.A.
By:
|
Address:
|
0,
Xxxxxxxxx Xxxxxx Xxxxxxxx
X-000
Xxxxxxxxxx
|
|
Fax:
|
x000
00000 00000
|
THE
ANCILLARY LENDERS
DEUTSCHE
BANK AG
By:
|
Address:
|
Global
Banking – Loan Capital Markets Frankfurt
Große
Xxxxxxxxxxxxx 00-00 (0. xxxxx)
00000
Xxxxxxxxx xx Xxxx
Xxxxxxx
|
|
Fax:
|
x00
00 000 00000
|
THE
ROYAL
BANK OF SCOTLAND PLC
By:
|
Address:
|
Xxxxxxxxxxxxxx
00
00000
Xxxxxxxxx xx Xxxx
Xxxxxxx
|
|
Fax:
|
x00
00 00000 000
|
|
Attn:
|
Xxxxxx
Xxxxxx/Xxx X'Xxxxxxxx
|
-163-