Contract
Exhibit
C
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EURO
1,500,000,000
Dated
16 August 2006
for
KONINKLIJKE
KPN N.V.
with
ABN
AMRO BANK N.V.
BANC
OF AMERICA SECURITIES LIMITED
BNP
PARIBAS
CITIGROUP
GLOBAL MARKETS LIMITED
COÖPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
CREDIT
SUISSE
DEUTSCHE
BANK AG
FORTIS
BANK (NEDERLAND) N.V.
HVB
BANQUE LUXEMBOURG SOCIÉTÉ
ANONYME
ING
BANK N.V.
J.P.
XXXXXX PLC
and
THE
ROYAL BANK OF SCOTLAND PLC
as
Mandated Lead Arrangers
and
with
ABN
AMRO BANK N.V.
acting
as Facility Agent
ABN
AMRO BANK N.V.
acting
as Euro Swingline Agent
and
ABN
AMRO BANK N.V.
acting
as Dollar Swingline Agent
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Clause
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Page
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THIS AGREEMENT is dated 16
August 2006 and made between:
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(1)
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KONINKLIJKE KPN N.V.
having its seat (statutaire zetel) in The Hague, The Netherlands
(the “Company”);
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(2)
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KONINKLIJKE KPN N.V.
having its seat (statutaire zetel) in The Hague, The Netherlands,
as guarantor (the “Original
Guarantor”);
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(3)
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ABN AMRO BANK N.V., BANC OF
AMERICA SECURITIES LIMITED, BNP PARIBAS, CITIGROUP GLOBAL MARKETS LIMITED,
COÖPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., CREDIT SUISSE, DEUTSCHE BANK AG,
FORTIS BANK (NEDERLAND) N.V., HVB BANQUE LUXEMBOURG SOCIÉTÉ ANONYME, ING
BANK N.V., X.X. XXXXXX PLC and THE ROYAL BANK OF SCOTLAND PLC as
mandated lead arrangers (the “Mandated Lead
Arrangers”);
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(4)
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THE FINANCIAL INSTITUTIONS
listed in Schedule 1 (The Original Lenders) as lenders and swingline
lenders (the “Original
Lenders”);
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(5)
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ABN AMRO BANK N.V. as
facility agent (the “Facility
Agent”);
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(6)
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ABN AMRO BANK N.V. as
euro swingline agent (the “Euro Swingline Agent);
and
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(7)
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ABN AMRO BANK N.V. as
dollar swingline agent (the “Dollar Swingline
Agent”).
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IT IS AGREED as
follows:
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1.1
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Definitions
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In
this Agreement:
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“Accession Letter” means
a document substantially in the form set out in Schedule 7 (Form of Accession Letter).
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“Additional Borrower”
means a company which becomes an Additional Borrower in accordance with
Clause 24 (Changes to the Obligors).
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“Additional Guarantor”
means a company which becomes an Additional Guarantor in accordance with
Clause 24 (Changes to the Obligors).
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“Additional Obligor”
means an Additional Borrower or Additional Guarantor.
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“Advance” means an
advance made or to be made under the Facility (including, unless the
context otherwise requires, any Swingline Advance) or the principal amount
outstanding for the time being of that
advance.
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“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.
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“Agents” means the Euro
Swingline Agent, the Dollar Swingline Agent and the Facility Agent,
and “Agent” means, as the
context may require, any of them.
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“Agent’s Spot Rate of
Exchange” means the Facility Agent’s spot rate of exchange for the
purchase of the relevant currency with the Base Currency in its local
foreign exchange market at or about 11:00 a.m. on a particular
day.
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“Authorisation” means an
authorisation, consent, approval, resolution, licence, exemption, filing
or registration.
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“Available Commitment”
means a Lender’s Commitment minus:
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(a)
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the
Base Currency Amount of its participation in any outstanding Advances;
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 Advances that are due to be made on or before the
proposed Utilisation
Date,
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other
than, in either case, the Base Currency Amount of that Lender’s participation in
any Advances that are due to be repaid or prepaid on or before the proposed
Utilisation Date.
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“Available Facility”
means the aggregate for the time being of each Lender’s Available
Commitment.
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“Available Swingline
Commitment” means a Swingline Lender’s Swingline Commitment
minus:
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(a)
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the
Base Currency Amount of its participation in any outstanding Swingline
Advances; and
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(b)
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in
relation to any proposed Utilisation by way of a Swingline Advance, the
Base Currency Amount of its participation in any Swingline Advances that
are due to be made on or before the proposed Utilisation
Date,
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other
than, in either case, that Swingline Lender’s participation in any Swingline
Advances that are due to be repaid or prepaid on or before the proposed
Utilisation Date.
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“Available Swingline
Facility” means the aggregate for the time being of each Swingline
Lender’s Available Swingline Commitment.
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“Availability Period”
means the period from and including the date of this Agreement to and
including the date falling one week prior to the Termination
Date.
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“Base Currency” means
euro.
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“Base Currency Amount”
means, in relation to an Advance, the amount specified in the Utilisation
Request delivered by a Borrower for that Advance (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 3 Business Days before the Utilisation Date (or, if later, on the
date the Facility Agent receives the Utilisation Request) adjusted to
reflect any repayment or prepayment of the
Advance.
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“Borrower” means the
Company or an Additional Borrower unless it has ceased to be a Borrower in
accordance with Clause 24 (Changes to the
Obligors).
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“Borrowings”
means:
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(a)
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any
indebtedness for moneys borrowed and debit balances at banks and other
financial institutions;
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(b)
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any
indebtedness raised by acceptance under any credit facility opened by a
bank or other financial institution;
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(c)
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any
indebtedness under any bonds, notes, debentures, loan stock or other
security;
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(d)
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any
payment obligations under any lease which would, in accordance with IFRS
(as used in the Company’s most recent audited annual consolidated
financial statements from time to time), be treated as a finance or
capital lease;
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(e)
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any
derivative transaction entered into in connection with protection against
or fluctuation in any rate or price (and when calculating the value of any
derivative transaction, only the marked to market value shall be taken
into account);
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(f)
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proceeds
raised under any Securitisation Transaction;
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(g)
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receivables
sold or discounted (other than any receivables to the extent they are sold
on a non-recourse basis) and which would, in accordance with IFRS (as used
in the Company’s most recent audited annual consolidated financial
statements from time to time), be treated as a
borrowing;
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(h)
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any
amount of any liability under an advance or deferred purchase agreement if
the agreement is in respect of the supply of assets or services and
payment is due more than 180 days past the period customarily allowed by
the relevant supplier for deferred payment but only in circumstances where
the aggregate outstanding liability to any supplier or provider (including
their respective affiliates) exceeds euro 50,000,000;
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(i)
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any
indebtedness in respect of an arrangement pursuant to which a person has
the right to reacquire an asset sold or otherwise disposed of by that
person (whether following the exercise of an option or otherwise) and
which would, in accordance with IFRS (as used in the Company’s most recent
audited annual consolidated financial statements from time to time), be
treated as a borrowing;
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(j)
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any
shares which are redeemable (other than for ordinary shares) by holders
thereof (other than any Specified Preference Shares which have been
outstanding for less than 2 years from their date of
issue);
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(k)
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any
indebtedness having the commercial effect of a borrowing and which would,
in accordance with IFRS (as used in the Company’s most recent audited
annual consolidated financial statements from time to time), be treated as
a borrowing; and
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(l)
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any
indebtedness (actual or contingent) under any guarantee, indemnity and/or
other form of assurance against financial loss by any Group Company in
respect of any indebtedness of any person of a type referred to in
paragraphs (a) to (k)
above.
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“Break Costs” means the
amount (if any) by which:
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(a)
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the
interest which a Lender should have received for the period from the date
of receipt of all or any part of its participation in an Advance or Unpaid
Sum to the last day of the current Interest Period in respect of that
Advance 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 Relevant Interbank Market for a period starting on
the Business Day following receipt or recovery and ending on the last day
of the current Interest
Period,
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excluding
any Margin or other loss of profit.
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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 The Netherlands
and:
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(a)
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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;
or
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(b)
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(in
relation to any date for payment or purchase of euro) any TARGET
Day.
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“Cash-backed Borrowings”
means Borrowings under equipment leases to the extent matched by cash
balances or other forms of defeasance instrument (but only to the extent
such instruments are cash-backed) held by or for the benefit of the
relevant Group Companies which are the lessees under such leases or other
Group Companies and which are only available for application against those
Borrowings.
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“Commitment”
means:
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(a)
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in
relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading “Commitment” in Schedule
1 (The Original
Lenders) and the aggregate amount of any other Commitments
transferred to it under this Agreement; and
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(b)
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in
relation to any other Lender, the aggregate amount of any Commitments
transferred to it under this
Agreement,
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to
the extent not cancelled, reduced or transferred by it under this
Agreement (and, in the case of a Swingline Lender, its Commitment shall
include its Swingline
Commitment).
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“Default” means an Event
of Default or an event which, with the giving of notice, lapse of time,
determination of materiality or fulfilment of any other applicable
condition (or any combination of any of the foregoing) would constitute an
Event of Default.
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“DNB” means the Dutch
Central Bank (De Nederlandsche Bank
N.V.)
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“Dollar Swingline
Advance” means any Swingline Advance denominated in dollars.
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(a)
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the
Prime Rate; and
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(b)
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the
Federal Funds Rate plus 0.50 per cent. per
annum.
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“Dutch Borrower” means
the Company and any Additional Borrower which is incorporated or
established in The Netherlands.
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“EURIBOR” means, in
relation to any Advance in euro:
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(a)
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the
applicable Screen Rate; or
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(b)
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(if
no Screen Rate is available for the period of that Advance, and in the
case of any Euro Swingline Advance) the arithmetic mean of the per annum
rates (rounded upwards to four decimal places) as supplied to the Facility
Agent at its request quoted by the Reference Banks to leading banks in the
European Interbank Market,
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as
of the Specified Time on the Quotation Day (or, in the case of a Euro
Swingline Advance, on the Utilisation Date for that Advance) for the
offering of deposits in euro for a period comparable to the Interest
Period of the relevant Advance.
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“European Interbank
Market” means the interbank market for euro operating in
Europe.
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“Euro Swingline Advance”
means any Swingline Advance denominated in Euros.
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“Euro Swingline Rate”
means, at any time, the aggregate
of:
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(a)
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EURIBOR;
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(b)
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Margin;
and
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(c)
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Mandatory
Costs, if any.
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“Event of Default” means
any event or circumstance specified as such in Clause 22 (Events of
Default).
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“Exemption Regulation”
means the exemption regulation dated 26 June 2002 of the Ministry of
Finance of the Netherlands (as amended from time to time), as promulgated
in connection with the Dutch Act on the Supervision of Credit Institutions
1992 (Wet toezicht
kredietwezen 1992).
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“Executive Officer” means
a member of the board of management of the Company.
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“Facility” means the euro
1,500,000,000 loan facility made available to the Company under this
Agreement as described in Clause 2.1 (The Facility)
incorporating the Swingline Facility.
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“Facility Office”
means:
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(a)
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in
relation to a Lender (other than in such Lender’s capacity as a Swingline
Lender) the office(s) notified by a Lender to the Facility
Agent:
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(i)
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on
or before the date it becomes a Lender; or
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(ii)
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by
not less than five Business Days’
notice,
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as
the office(s) through which it will perform its obligations under this
Agreement; and
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(b)
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in
relation to a Swingline Lender in respect of Dollar Swingline Advances
(unless otherwise stated in Part 2 of Schedule 1 (The Swingline
Lenders)), its office in the United States of America in the same
time zone as New York City or, in respect of Euro Swingline Advances its
office in London or a Participating Member State in each case notified by
a Swingline Lender to the Facility
Agent:
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(i)
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on
or before the date it becomes a Swingline Lender; or
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(ii)
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by
not less than five Business Days’
notice,
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as
the office(s) through which it will perform its obligations under this
Agreement.
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“Federal Funds Rate”
means, for any period, a fluctuating interest rate per annum equal for
each day during such period to:
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(a)
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the
weighted average of the rate on overnight federal funds transactions with
members of the United States Federal Reserve System arranged by federal
funds brokers as published for such day (or, if such day is not a New York
Business Day, for the next preceding New York Business Day) by the Federal
Reserve Bank of New York; or
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(b)
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if
such rate is not so published for any day which is a New York Business
Day, the average of the quotations for such transactions received by the
Dollar Swingline Agent from three federal funds brokers of recognised
standing selected by it.
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“Fee Letter” means any
letter or letters between the Mandated Lead Arrangers and the Company or
an Agent and the Company setting out any of the fees referred to in Clause
12 (Fees).
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“Finance Document” means
this Agreement, any Fee Letter, any Accession Letter and any other
document designated as such by the Facility Agent and the
Company.
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“Finance Party” means any
of the Agents, the Mandated Lead Arrangers and the
Lenders.
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“Group” means the Company
and its Subsidiaries from time to time and “Group Company” means any
one of them.
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“Guarantor” means the
Original Guarantor or an Additional Guarantor unless it has ceased to be a
Guarantor in accordance with Clause 24 (Changes to the
Obligors).
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“Holding Company” means,
in relation to a company or corporation, any other company or corporation
in respect of which it is a Subsidiary.
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“IFRS” means
international accounting standards and related interpretations issued,
adopted or amended from time to time by the International Accounting
Standards Board and adopted by the European Commission pursuant to EC
Regulation No. 1606/2002 of the European Parliament and of the Council of
19 July 2002.
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“Interest Period” means,
in relation to an Advance, each period determined in accordance with
Clause 10 (Interest
Periods) and, in relation to an Unpaid Sum, each period determined
in accordance with Clause 9.3 (Default
interest).
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“Lender”
means:
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(a)
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any
Original Lender; and
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(b)
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any
bank or financial institution which has become a Party as a Lender in
accordance with Clause 23 (Changes to the
Lenders),
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which
in each case has not ceased to be a Party in accordance with the terms of
this Agreement.
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“LIBOR” means, in
relation to any Advance (other than an Advance in
euro):
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(a)
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the
applicable Screen Rate; or
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(b)
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(if
no Screen Rate is available for the currency or period of that Advance)
the arithmetic mean of the per annum rates (rounded upwards to four
decimal places) as supplied to the Facility Agent at its request quoted by
the Reference Banks to leading banks in the London Interbank
Market,
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as
of the Specified Time on the Quotation Day for the offering of deposits in
the currency of that Advance and for a period comparable to the Interest
Period for that Advance.
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“London Interbank Market”
means the interbank market operating in London.
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“Majority Lenders”
means:
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(a)
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until
the Total Commitments have been reduced to zero, a Lender or Lenders whose
Commitments aggregate more than 66⅔% of the Total Commitments (or, if the
Total Commitments have been reduced to zero and there are no Advances then
outstanding, aggregated more than 66⅔% of the Total Commitments
immediately prior to the reduction); or
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(b)
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at
any other time, a Lender or Lenders whose participations in the Advances
then outstanding aggregate more than 66⅔% of all the Advances then
outstanding.
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“Mandatory Cost” means
the percentage rate per annum calculated by the Facility Agent in
accordance with Schedule 6 (Mandatory Cost
Formulae).
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“Margin” means, for the
period from and including the date of this Agreement to and including the
fifth anniversary of this Agreement, 0.175% per annum and thereafter 0.20%
per annum.
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“Material Adverse Effect”
means a material adverse effect on the ability of the Obligors taken as a
whole to perform their payment obligations under this
Agreement.
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“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:
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(a)
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(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;
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(b)
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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
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(c)
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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.
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The
above rules will only apply to the last Month of any
period.
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“New York Business Day”
means a day on which federal funds transactions are carried on in New York
City.
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“Obligor” means a
Borrower or a Guarantor.
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“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).
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“Original Facility
Agreement” means the euro 1.5 billion credit agreement dated 17
August 2004 between, inter alia,
the Company as borrower, ABN AMRO Bank N.V., Banc of America Securities
Limited, BNP Paribas, Citigroup Global Markets Limited, Coöperatieve
Centrale Raiffeisen-Boerenleenbank B.A., Credit Suisse First Boston,
Deutsche Bank AG, Fortis Bank (Nederland) N.V., HVB Banque Luxembourg
Societe Anonyme, ING Bank N.V., X.X. Xxxxxx PLC and The Royal Bank of
Scotland plc as Mandated Lead Arrangers, ABN AMRO Bank N.V. as Facility
Agent, Euro Swingline Agent and Dollar Swingline Agent and the financial
institutions referred to therein as lenders.
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“Original Group Financial
Statements” means the audited consolidated financial statements of
the Group for the year ended 31 December 2005.
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“Outstandings” means the
aggregate of the Base Currency Amount from time to time of each of the
outstanding Advances.
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“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 Union relating to European Monetary
Union.
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“Party” means a party to
this Agreement and includes its successors in title, permitted assigns and
permitted transferees.
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“PMP” means a
“professional market party” within the meaning of the Exemption
Regulation.
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“Policy Guidelines” means
the 2005 DNB’s Policy Guidelines (issued in relation to the Exemption
Regulation) dated 29 December 2004 (Beleidsregel 2005
kernbegrippen markttoetreding en handhaving Wtk 1992) (as amended
from time to time).
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“Prime Rate” means, in
respect of any Dollar Swingline Advance, for any day, the rate per annum
which is the prime rate of the Dollar Swingline Agent in New York City, as
publicly announced from time to time, in force on such
date.
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“Principal Subsidiary”
means any Subsidiary of the Company whose total assets or revenues
calculated from the then latest audited financial statements of that
Subsidiary represent not less than ten per cent. (10%) of total assets or
revenues of the Group calculated from the then latest audited consolidated
financial statements of the Group.
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“Project Borrower” means
any person which incurs a Project Borrowing.
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“Project Borrowing” means
any Borrowing to finance or refinance a
project:
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(a)
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which
is incurred or issued by a single purpose company or other single purpose
legal entity (whether or not a Group Company) whose principal assets and
business together with the principal assets and business of its
wholly-owned Subsidiaries are constituted by that project and whose
liabilities in respect of the Borrowing concerned are not directly or
indirectly the subject of a guarantee, indemnity or any other form of
assurance, undertaking or support from any other Group Company
except:
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(i)
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upstream
guarantees given by wholly owned Subsidiaries of that single purpose
company (or other single purpose legal entity);
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(ii)
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Security
over (1) the shares or other right of ownership in that company or entity
or (2) Borrowings of that company or entity from Group Companies;
or
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(iii)
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as
expressly referred to in paragraph (b)(iii) below;
or
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(b)
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in
respect of which the person or persons making such Borrowing available to
the relevant borrower (whether or not a Group Company) have no recourse
whatsoever to any Group Company for the repayment of or payment of any sum
relating to such Borrowing other
than:
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(i)
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recourse
to the borrower for amounts limited to the aggregate cash flow or net cash
flow (other than historic cash flow or historic net cash flow except to
the extent that this has funded cash collateral or other collateral that
can be used to repay that Borrowing without enforcement action by such
person or persons) from such project; and/or
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(ii)
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recourse
to the borrower for the purpose only of enabling amounts to be claimed in
respect of that Borrowing in an enforcement of any Security given by the
borrower over the assets comprised in the project to secure that Borrowing
or any recourse referred to in (iii) below, provided
that:
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(1)
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the
extent of such recourse to the borrower is limited solely to the amount of
any recoveries made on any such enforcement; and
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(2)
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such
person or persons are not entitled, by virtue of any right or claim
arising out of or in connection with such Borrowing, to commence
proceedings for the winding up or dissolution of the borrower or to
appoint or procure the appointment of any receiver, trustee or similar
person or official in respect of the borrower or any of its assets (save
for the assets the subject of such Security);
and/or
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(iii)
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recourse
to such borrower generally, or directly or indirectly to a Group Company
under any form of completion guarantee, assurance or undertaking, which
recourse is limited to a claim for damages (other than liquidated damages
and damages required to be calculated in a specified way) for breach of an
obligation (not being a payment obligation or an obligation to procure
payment by another or an obligation to comply or to procure compliance by
another with any financial ratios or other test of financial condition) by
the person against whom such recourse is available;
or
|
|
(c)
|
which
the Majority Lenders shall have agreed in writing to treat as a Project
Borrowing for the purposes of the Finance
Documents.
|
|
“Quotation Day” means, in
relation to any period for which an interest rate is to be determined
(other than in respect of a Swingline
Advance):
|
|
(a)
|
(if
the currency is sterling) the first day of that period;
|
|
|
(b)
|
(if
the currency is euro) two TARGET Days before the first day of that period;
or
|
|
|
(c)
|
(for
any other currency) two Business Days (which for these purposes only shall
mean a day on which banks are open for general business in London) before
the first day of that period,
|
|
unless
market practice differs in the Relevant Interbank Market for a currency,
in which case the Quotation Day for that currency will be determined by
the Facility Agent in accordance with market practice in the Relevant
Interbank Market (and if quotations would normally be given by leading
banks in the Relevant Interbank Market on more than one day, the Quotation
Day will be the last of those
days).
|
|
“Reference Banks” means
ABN AMRO Bank N.V. (London Branch), Citibank, N.A. (London Branch) and
Deutsche Bank Luxembourg, S.A. and/or such offices of such other banks as
may be appointed by the Facility Agent and the Company.
|
|
|
“Relevant Interbank
Market” means:
|
|
(a)
|
in
relation to euro, the European Interbank Market; or
|
|
|
(b)
|
in
relation to any other currency, the London Interbank
Market.
|
|
“Repeating
Representations” means each of the representations referred to in
Clause 19.11(b) (Times
for making representations and warranties).
|
|
|
“Rollover Advance” means
one or more Advances (other than Swingline
Advances):
|
|
(a)
|
made
or to be made on the same day that a maturing Advance is due to be
repaid;
|
|
|
(b)
|
the
aggregate amount of which is equal to or less than the maturing
Advance;
|
|
|
(c)
|
in
the same currency as the maturing Advance (unless it arose as a result of
the operation of Clause 6.2 (Unavailability of a
currency)); and
|
|
|
(d)
|
made
or to be made to a Borrower for the purpose of refinancing a maturing
Advance previously drawn by such
Borrower.
|
|
“Screen Rate”
means:
|
|
(a)
|
in
relation to LIBOR, the British Bankers Association Interest Settlement
Rate for the relevant currency and period; and
|
|
|
(b)
|
in
relation to EURIBOR, the percentage rate per annum determined by the
Banking Federation of the European Union for the relevant
period,
|
|
displayed
on the appropriate page of the Reuters screen. If the agreed page is
replaced or service ceases to be available, the Facility Agent may specify
another page or service displaying the appropriate rate after consultation
with the Company and the Lenders.
|
|
“Securitisation
Transaction” means any transaction under which Borrowings are
raised by any person in circumstances where the creditor(s) in respect of
such Borrowings:
|
|
(a)
|
have
recourse to receivables or other identified assets or to a loan secured on
receivables or such other assets of that person; and
|
|
|
(b)
|
are
special purpose vehicles established for the purpose of issuing securities
backed by those receivables and assets or
loans.
|
|
“Security” means any
mortgage, charge, assignment by way of security or subject to a proviso
for redemption, pledge, hypothecation, lien or other security
interest.
|
|
|
“Specified Preference
Shares” means any B preference shares of twenty four eurocent (euro
0.24) that may be issued in the future to the Foundation Preference Shares
BKPN (Stichting
Preferente Aandelen B KPN).
|
|
|
“Specified Time” means a
time determined in accordance with Schedule 5 (Timetables).
|
|
|
“Subordinated
Indebtedness” means any indebtedness of the Company with terms (in
the case of a public issue, standard for the market or, in any other case,
acceptable to the Majority Lenders) as to maturity, payment of interest,
principal, early repayment events and other rights on default and
insolvency, subordinate to those of the Finance Parties under the Finance
Documents.
|
|
“Subsidiary” means an
entity from time to time of which another person (and/or one or more of
its subsidiaries) either (a) by having beneficial ownership, directly or
indirectly of more than 50 per cent. of the issued share capital of such
entity; or (b) pursuant to an agreement with other persons, entitled to
vote or otherwise, can:
|
|
(a)
|
exercise
solely or jointly more than 50 per cent. of the voting rights attached to
the issued share capital of such entity at a general meeting of such
entity; or
|
|
|
(b)
|
appoint
or dismiss solely or jointly, more than 50 per cent. of the board of
directors or of the supervisory board members of such entity, if all
persons entitled to vote were to cast their
vote.
|
|
“Swingline Advance” means
any advance made or to be made under the Swingline Facility pursuant to a
Utilisation Request under Clause 5.5 (Delivery of a Utilisation
Request for a Swingline Advance).
|
|
|
“Swingline Agent” means
the Euro Swingline Agent or the Dollar Swingline Agent, as
appropriate.
|
|
|
“Swingline Commitment”
means:
|
|
(a)
|
in
relation to an Original Lender which is a Swingline Lender, the amount set
opposite its name under the heading “Swingline Commitment” in Part 2 of
Schedule 1 (The Swingline Lenders)
and the amount of any other Swingline Commitment transferred to it under
this Agreement; and
|
|
|
(b)
|
in
relation to any other Swingline Lender, the amount of any Swingline
Commitment transferred to it under this
Agreement,
|
|
to
the extent not cancelled, reduced or transferred by it under this
Agreement.
|
|
“Swingline Facility”
means the swingline facility forming part of the Facility as described in
Clause 2.1 (The
Facility).
|
|
|
“Swingline Lender”
means:
|
|
(a)
|
any
Original Lender whose name is set out in Part 2 of Schedule 1 (The Swingline Lenders);
and
|
|
|
(b)
|
any
bank or financial institution which has become a Party as a Lender in
accordance with Clause 23 (Changes to the Lenders)
and to whom a Swingline Commitment has been transferred, which in each
case has not ceased to have a Swingline
Commitment.
|
|
which
in each case has not ceased to have a Swingline
Commitment.
|
|
“TARGET” means the
Trans-European Automated Real-time Gross Settlement Express Transfer
payment system.
|
|
|
“TARGET Day” means any
day on which TARGET is open for the settlement of payments in
euro.
|
|
“Tax” means any tax,
levy, impost, duty or other charge or withholding of a similar nature
(including any penalty or interest payable in connection with any failure
to pay or any delay in paying any of the same).
|
|
|
“Termination Date” means
the seventh anniversary of the date of this Agreement.
|
|
|
“Total Commitments” means
the aggregate of the Commitments, being euro 1,500,000,000 at the date of
this Agreement.
|
|
|
“Total Outstandings”
means the aggregate from time to time of the
Outstandings.
|
|
|
“Total Swingline
Commitments” means the aggregate of the Swingline Commitments,
being euro 500,000,000 at the date of this Agreement.
|
|
|
“Transfer Certificate”
means a certificate substantially in the form set out in Schedule 4 (Form of Transfer
Certificate) or any other form agreed between the Facility Agent
and the Company.
|
|
|
“Transfer Date” means, in
relation to a transfer, the later
of:
|
|
(a)
|
the
proposed Transfer Date specified in the Transfer Certificate;
and
|
|
|
(b)
|
the
date on which the Facility Agent executes the Transfer
Certificate.
|
|
“Unpaid Sum” means any
sum due and payable but unpaid by an Obligor under the Finance
Documents.
|
|
|
“Utilisation” means a
utilisation of the Facility.
|
|
|
“Utilisation Date” means
the date of a Utilisation, being the date on which an Advance is to be
made.
|
|
|
“Utilisation Request”
means a notice substantially in the form set out in Schedule 3 (Utilisation
Request).
|
|
|
“VAT” means value added
tax as provided for in the Value Added Tax Xxx 0000 and any other tax of a
similar nature.
|
|
|
“Verifiable PMP” means a
PMP whose status as such may be determined on the basis
of:
|
|
(i)
|
its
entry in a public register (including on-line registers available on the
internet) of DNB;
|
||
|
(ii)
|
its
rating as provided by a rating agency approved by DNB and as it appears
from any public register and/or written statement of such rating
agency;
|
||
|
(iii)
|
its
balance sheet, as confirmed by an auditor’s statement showing a value of
its assets as per the last day of the preceding calendar year of at least
euro 500,000,000 (or such other amount and/or at such other time as may be
required pursuant to the Exemption Regulation); or
|
||
|
(iv)
|
a
public register published by a regulator other than
DNB.
|
|
1.2
|
Construction
|
|
(a)
|
Unless
a contrary indication appears a reference in this Agreement
to:
|
|
(i)
|
“assets” includes present
and future properties, revenues and rights of every
description;
|
||
|
(ii)
|
a
“Finance Document”
or any other agreement or instrument is a reference to that Finance
Document or other agreement or instrument as amended or
novated;
|
||
|
(iii)
|
“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;
|
||
|
(iv)
|
“know your customer
requirements” are the identification checks that a Finance Party
requests in order to meet its obligations under any applicable law or
regulation to identify a person who is (or is to become) its
customer;
|
||
|
(v)
|
a
“person” includes
any person, firm, company, corporation, government, state or agency of a
state or any association, bank, financial institution, fund, incorporated
association, trust or partnership (whether or not having separate legal
personality) or two or more of the foregoing;
|
||
|
(vi)
|
a
“regulation”
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law but being binding) of any
governmental, intergovernmental or supranational body, agency, department
or regulatory, self-regulatory or other authority or
organisation;
|
||
|
(vii)
|
a
provision of law is a reference to that provision as amended or
re-enacted; and
|
||
|
(viii)
|
unless
a contrary indication appears, a time of day is a reference to London
time.
|
|
(b)
|
Where
there is a reference in this Agreement to any amount, limit or threshold
specified in euro, in ascertaining whether or not that amount, limit or
threshold has been attained, broken or achieved, as the case may be, a
non-euro amount shall be counted on the basis of the equivalent in euro of
that amount using the Agent’s Spot Rate of Exchange.
|
|
|
(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
Default (including an Event of Default) is “continuing” if it has
not been remedied or waived.
|
|
1.3
|
Currency Symbols and
Definitions
|
|
“euro” denotes the single
currency unit of the European Union as constituted by the Treaty of Rome
(as amended), “$
and “dollars”
denote the lawful currency of the United States of America and “£” and “sterling” denote the
lawful currency of the United
Kingdom.
|
|
1.4
|
Third Party
Rights
|
|
A
person who is not a Party has no right under the Contract (Rights of Third
Parties) Xxx 0000 to enforce any term of this
Agreement.
|
|
2.
|
|
2.1
|
The
Facility
|
|
Subject
to the terms of this Agreement, the Lenders make available to the Borrower
a multicurrency revolving credit facility in a maximum aggregate amount of
euro 1,500,000,000 (the “Facility”), including by way of a sub-limit to
the Facility a revolving swingline facility (the “Swingline Facility”) available in dollars
and euros in a maximum aggregate amount of euro
500,000,000.
|
|
2.2
|
Lenders’ rights and
obligations
|
|
(a)
|
The
obligations of each Lender under the Finance Documents are several.
Failure by a Lender to perform its obligations under the Finance Documents
does not affect the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations of any
other Finance Party under the Finance Documents.
|
|
|
(b)
|
The
rights of each Lender under or in connection with the Finance Documents
are separate and independent rights and any debt arising under the Finance
Documents to a Lender from an Obligor shall be a separate and independent
debt.
|
|
|
(c)
|
A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance Documents provided that if a Lender commences
proceedings in respect of any such rights it shall notify the Facility
Agent as soon as practicable thereafter and the Facility Agent shall
notify the other Lenders
accordingly.
|
|
2.3
|
Obligors’
representative
|
|
Each
Obligor irrevocably authorises the Company to give and receive as
representative on its behalf all notices (including Utilisation Requests)
and sign all documents in connection with the Finance Documents on its
behalf and take such other action as may be necessary or desirable under
or in connection with the Finance Documents on its behalf and confirms
that it will be bound by any action taken by the Company under or in
connection with the Finance
Documents.
|
|
2.4
|
Actions of
Company
|
|
The
respective liabilities of each of the Obligors under the Finance Documents
shall not be in any way affected
by:
|
|
(a)
|
any
irregularity (or purported irregularity) in any act done by or any failure
(or purported failure) by the Company; or
|
|
|
(b)
|
the
Company acting (or purporting to act) in any respect outside any authority
conferred upon it by any Obligor; or
|
|
|
(c)
|
the
failure (or purported failure) by, or inability (or purported inability)
of, the Company to inform any Obligor of receipt by it of any notification
under a Finance Document.
|
|
3.
|
|
3.1
|
Purpose
|
|
Each
Borrower shall apply all amounts borrowed by it under the Facility for the
purpose of refinancing existing indebtedness of Group Companies, for
general corporate purposes and for working capital purposes of the
Group.
|
|
3.2
|
Monitoring
|
|
No
Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this
Agreement.
|
|
4.1
|
Initial conditions
precedent
|
|
No
Borrower may deliver a Utilisation Request unless the Facility Agent has
received all of the documents and other evidence listed in Schedule 2 Part
1 (Conditions Precedent) in form and substance
reasonably satisfactory to the Facility Agent. The Facility 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), and the Swingline Lenders will only be obliged to
comply with Clause 5.8 (Swingline Lenders’
participation), if on the date of the Utilisation Request and on
the proposed Utilisation
Date:
|
|
(i)
|
except
in the case of a Rollover
Advance:
|
|
(1)
|
no
Default is continuing or would result from the proposed Advance;
and
|
|||
|
(2)
|
the
Repeating Representations to be made by each Obligor are true in all
material respects,
|
|
(ii)
|
in
the case of a Rollover Advance, no notice has been given by the Facility
Agent under Clause 22.13
(Acceleration).
|
|
(b)
|
An
Advance will not be made if it would result
in
|
|
(i)
|
the
Base Currency Amount of all Advances exceeding the Total Commitments;
or
|
||
|
(ii)
|
the
Base Currency Amount of all Swingline Advances exceeding the Total
Swingline Commitments.
|
|
4.3
|
Conditions relating to Optional
Currencies
|
|
(a)
|
A
currency will constitute an Optional Currency in relation to an Advance
if:
|
|
(i)
|
it
is readily available in the amount required and freely convertible into
the Base Currency in the Relevant Interbank Market on the Quotation Day
and the Utilisation Date for that Advance;
and
|
|
(ii)
|
it
is dollars or sterling or has been approved by the Facility Agent (acting
on the instructions of all the Lenders) on or prior to receipt by the
Facility Agent of the relevant Utilisation Request for that
Loan.
|
|
(b)
|
If
the Facility Agent has received a written request from the Company for a
currency to be approved under paragraph (a)(ii) above, the Facility Agent
will, as soon as reasonably practicable, confirm to the
Company:
|
|
(i)
|
whether
or not the Lenders have granted their approval;
and
|
|
(ii)
|
if
approval has been granted, the minimum amount (and, if required, integral
multiples) for any subsequent Utilisation in that
currency.
|
|
4.4
|
Maximum number of
Advances
|
|
(a)
|
A
Borrower may not deliver a Utilisation Request if, as a result of the
proposed Utilisation, more than 10 Advances (other than Swingline
Advances) would be outstanding or, in the case of Swingline Advances if,
as a result of the proposed Utilisation, more than 10 Swingline Advances
would be outstanding.
|
|
|
(b)
|
Any
Advance made by a single Lender under Clause 6.2 (Unavailability of a
currency) shall not be taken into account in this Clause
4.4.
|
|
5.
|
|
5.1
|
Delivery of a Utilisation
Request
|
|
A
Borrower may utilise the Facility (other than for the purpose of drawing
Swingline Advances, which may be drawn in accordance with Clause 5.5
(Delivery of a Utilisation Request for a Swingline Advance)) by delivery
to the Facility Agent of a duly completed Utilisation Request not later
than the Specified Time.
|
|
5.2
|
Completion of a Utilisation
Request
|
|
(a)
|
Each
Utilisation Request delivered to the Facility Agent pursuant to Clause 5.1
(Delivery of a
Utilisation Request) is irrevocable and will not be regarded as
having been duly completed
unless:
|
|
(i)
|
the
proposed Utilisation Date is a Business Day within the Availability
Period;
|
||
|
(ii)
|
the
currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);
and
|
||
|
(iii)
|
the
proposed Interest Period complies with Clause 10 (Interest
Periods).
|
|
(b)
|
Only
one Advance may be requested in each Utilisation Request delivered to the
Facility Agent pursuant to Clause 5.1 (Delivery of a Utilisation
Request).
|
|
5.3
|
Currency and
amount
|
|
(a)
|
The
currency specified in a Utilisation Request delivered to the Facility
Agent pursuant to Clause 5.1 (Delivery of a Utilisation
Request) must be the Base Currency or an Optional
Currency.
|
|
|
(b)
|
The
amount of the proposed Advance must be an amount which
is:
|
|
(i)
|
if
the currency selected is the Base Currency, a minimum of euro 25,000,000
(or, if less, the remainder of the Available Facility);
or
|
||
|
(ii)
|
if
the currency selected is dollars, a minimum of $25,000,000 (or, as the
case may be, an amount whose Base Currency Amount is equal to the
remainder of the Available Facility);
|
||
|
(iii)
|
if
the currency selected is sterling, a minimum of £15,000,000 (or, as the
case may be, an amount whose Base Currency Amount is equal to the
remainder of the Available Facility); or
|
||
|
(iv)
|
if
the currency selected is an Optional Currency (other than dollars or
sterling), in such minimum amount as the Facility Agent and the Company
may agree.
|
|
(c)
|
The
Base Currency Amount of the proposed Advance must be equal to or less than
the amount of the Available
Facility.
|
|
5.4
|
Lenders’
participation
|
|
(a)
|
If
the conditions set out in this Agreement have been met, each Lender shall,
on the relevant Utilisation Date, make its participation in each Advance
(not being a Swingline Advance) available through its Facility
Office.
|
|
|
(b)
|
The
amount of each Lender’s participation in each Advance (not being a
Swingline Advance) will be equal to the proportion borne by its Available
Commitment to the Available Facility immediately prior to making the
Advance.
|
|
|
(c)
|
The
Facility Agent shall notify each Lender of the amount, currency and the
Base Currency Amount of each Advance at the Specified
Time.
|
|
5.5
|
Delivery of a Utilisation
Request for a Swingline
Advance
|
|
The
Company may utilise the Swingline Facility by delivery (in the case of a
Euro Swingline Advance) to the Euro Swingline Agent or (in the case of a
Dollar Swingline Advance) to the Dollar Swingline Agent, in each case with
a copy to the Facility Agent, of a duly completed Utilisation Request not
later than the Specified Time.
|
|
5.6
|
Completion of a Utilisation
Request for a Swingline
Advance
|
|
(a)
|
Each
Utilisation Request delivered pursuant to Clause 5.5 (Delivery of a Utilisation
Request for a Swingline Advance) is irrevocable and will not be
regarded as having been duly completed
unless:
|
|
(i)
|
the
proposed Utilisation Date is a Business Day (in the case of a Euro
Swingline Advance) or a day (other than a Saturday or a Sunday) on which
banks are open for general business in New York City (in the case of a
Dollar Swingline Advance) within the Availability
Period;
|
||
|
(ii)
|
the
currency and amount of the Utilisation comply with Clause 5.7 (Currency and amount of
Swingline Advances); and
|
||
|
(iii)
|
the
proposed Interest Period complies with Clause 10 (Interest
Periods).
|
|
(b)
|
Only
one Swingline Advance may be requested in each Utilisation Request
delivered pursuant to Clause 5.5 (Delivery of a Utilisation
Request for a Swingline
Advance).
|
|
5.7
|
Currency and amount of
Swingline Advances
|
|
(a)
|
The
currency specified in a Utilisation Request delivered pursuant to Clause
5.5 (Delivery of a
Utilisation Request for a Swingline Advance) must be euro or
dollars.
|
|
|
(b)
|
The
amount of the proposed Swingline Advance must be, in the case of a Euro
Swingline Advance, a minimum of euro 10,000,000 or, if less, the Available
Swingline Facility or, in the case of a Dollar Swingline Advance,
$10,000,000 or, if less, an amount whose Base Currency Amount is equal to
the Available Swingline Facility.
|
|
|
(c)
|
The
Base Currency Amount of the proposed Swingline Advance must be equal to or
less than the amount of the Available Swingline
Facility.
|
|
5.8
|
Swingline Lenders’
participation
|
|
(a)
|
If
the conditions set out in this Agreement have been met, each Swingline
Lender shall, on the relevant Utilisation Date, make its participation in
each Swingline Advance available through its relevant Facility
Office.
|
|
|
(b)
|
The
amount of each Swingline Lender’s participation in each Swingline Advance
will be equal to the proportion borne by its Available Swingline
Commitment to the Available Swingline Facility immediately prior to making
the Swingline Advance.
|
|
|
(c)
|
The
relevant Swingline Agent shall notify each relevant Swingline Lender of
the amount, currency and the Base Currency Amount of each Swingline
Advance at the Specified Time and shall promptly notify the Facility Agent
of each Swingline Advance made under the Swingline
Facility.
|
|
5.9
|
Automatic
Advance
|
|
(a)
|
In
the event that the Company does not repay a Swingline Advance in full on
the last day of its Interest Period, on the Business Day immediately
following such day, the Company shall, unless all the Lenders (including,
for the avoidance of doubt, the Swingline Lenders) agree otherwise, be
deemed to have served a Utilisation Request for an Advance (not being a
Swingline Advance) in the amount and currency of such Swingline Advance
and with an Interest Period of 1 week and such Advance shall be made in
accordance with Clause 5.4 (Lenders’ participation)
and the proceeds thereof applied in repayment of the said Swingline
Advance.
|
|
|
(b)
|
Clause
4.2(a) (Further
conditions precedent) shall not apply to any Advance to which this
Clause 5.9 refers.
|
|
5.10
|
Use of Swingline
Advance
|
|
The
Company may not use the proceeds of any Swingline Advance to repay, in
whole or in part, any other Swingline Advance. The proceeds of any
non-Swingline Advance (other than an Advance requested before the date of
a Swingline Advance) made hereunder shall first be applied in repayment of
any Swingline Advance (together with any accrued interest thereon), and
the Facility Agent shall pay such portion of any such Advance to be made
hereunder to the Swingline Lenders as is necessary to repay each
outstanding Swingline Advance (together with any accrued interest
thereon).
|
|
5.11
|
Relationship with
Facility
|
|
(a)
|
This
Clause applies when a Swingline Advance is outstanding or is to be
borrowed.
|
|
|
(b)
|
The
Swingline Facility is not independent of the Facility.
|
|
|
(c)
|
Notwithstanding
any other term of this Agreement a Lender is only obliged to participate
in an Advance to the extent that it would not result in its share in the
Base Currency Amounts of all Advances and that of a Lender which is its
Affiliate exceeding its Overall Commitment.
|
|
|
(d)
|
For
this purpose, “Overall
Commitment” of a Lender
means:
|
|
(i)
|
its
Commitment; or
|
|
(ii)
|
in
the case of a Swingline Lender which does not have a Commitment, the
Commitment of a Lender which is its
Affiliate.
|
|
(e)
|
Where,
but for the operation of paragraph (c) above, a Lender’s share in the
Advances and that of a Lender which is its Affiliate would have exceeded
its Overall Commitment, the excess will be apportioned among the other
Lenders participating in the relevant Advance pro rata according to their
relevant Commitments. This calculation will be applied as often as
necessary until the Advance is apportioned among the relevant Lenders in a
manner consistent with paragraph (c) above.
|
|
|
(f)
|
The
Swingline Commitments must not at any time exceed the Commitments and, if
necessary, the Swingline Commitments will be automatically reduced to
achieve this.
|
|
5.12
|
Conditions of assignment or
transfer
|
|
Notwithstanding
any other term of this Agreement, each Lender must ensure that at all
times its Overall Commitment is not less
than:
|
|
(a)
|
its
Swingline Commitment; or
|
|
|
(b)
|
if
it does not have a Swingline Commitment, the Swingline Commitment of a
Lender which is its Affiliate.
|
|
5.13
|
Affiliate Facility
Offices
|
|
(a)
|
A
Lender (the “Primary
Lender”) may fulfil its obligations to participate in or make any
Advance to any Borrower in a particular country through an Affiliate of
that Primary Lender if:
|
|
(i)
|
such
Affiliate is specified in this Agreement as a Lender by appearing under
the name of the Primary Lender in Schedule 1 and executing this Agreement;
or
|
||
|
(ii)
|
such
Affiliate becomes a Lender by means of executing a Transfer
Certificate.
|
|
(b)
|
An
Affiliate of a Primary Lender referred to in this Clause 5.13 shall not
have any Commitment or Swingline Commitment, but the Commitment and/or
Swingline Commitment of the relevant Primary Lender shall be reduced to
the extent of the Base Currency Amounts of Advances (or Swingline
Advances) made available by that Affiliate. Accordingly, the Primary
Lender and the relevant Affiliate shall be treated as having a single
Commitment and (if applicable) Swingline Commitment and a single vote but
for all other purposes shall be treated as separate
Lenders.
|
|
|
(c)
|
A
Lender which has an Affiliate appearing under its name in Schedule 1 and
executing this Agreement (or, as the case may be, appearing in a Transfer
Certificate) will remain liable for the relevant obligations under the
Finance Documents in the event that the Affiliate fails to perform
them.
|
|
6.1
|
Selection of
currency
|
|
A
Borrower (or the Company on behalf of a Borrower) shall select the
currency of an Advance in a Utilisation
Request.
|
|
6.2
|
Unavailability of a
currency
|
|
If
before the Specified Time on any Quotation
Day:
|
|
(a)
|
the
Facility Agent has received notice from a Lender that it is impracticable
for that Lender to fund its participation in the relevant Advance in the
proposed Optional Currency during its Interest Period in the ordinary
course of business in the European Interbank Market; or
|
|
|
(b)
|
a
Lender notifies the Facility Agent that compliance with its obligation to
participate in an Advance in the proposed Optional Currency (other than
dollars) would contravene a law or regulation applicable to
it,
|
|
the
Facility Agent will give notice to the relevant Borrower to that effect by
the Specified Time on that day. In this event, any Lender that gives
notice pursuant to this Clause 6.2 will be required to participate in the
Advance in the Base Currency (in an amount equal to that Lender’s
proportion of the Base Currency Amount or, in respect of a Rollover
Advance, an amount equal to that Lender’s proportion of the Base Currency
Amount of the maturing Advance that is due to be repaid) and its
participation will be treated as a separate Advance denominated in the
Base Currency during that Interest
Period.
|
|
6.3
|
Participation in an
Advance
|
|
Each
Lender’s participation in an Advance (other than a Swingline Advance) will
be determined in accordance with paragraph (b) of Clause 5.4 (Lenders’ participation)
or, in the case of a Swingline Advance, in accordance with paragraph (b)
of Clause 5.8 (Swingline
Lenders’ participation).
|
|
6.4
|
Notification
|
|
The
Facility Agent shall notify the Lenders and the Company of Optional
Currency amounts (and the applicable Agent’s Spot Rate of Exchange)
promptly after they are
ascertained.
|
|
7.
|
|
Each
Borrower which has drawn an Advance shall repay that Advance on the last
day of its Interest Period.
|
|
8.1
|
Illegality
|
|
If
it becomes unlawful in any jurisdiction for a Lender to perform any of its
obligations as contemplated by this Agreement or to fund its participation
in any Advance:
|
|
(a)
|
that
Lender shall promptly notify the Facility Agent upon becoming aware of
that event;
|
|
|
(b)
|
upon
the Facility Agent notifying the Company, the Commitment of that Lender
will be immediately cancelled; and
|
|
|
(c)
|
each
Borrower shall, to the extent required and within the applicable grace
period permitted by law or if no such period is allowed, immediately,
repay that Lender’s participation in the Advances made to that Borrower on
the last day of the Interest Period for each Advance occurring after the
Facility Agent has notified the Company or, if earlier, the date specified
by the Lender in the notice delivered to the Facility
Agent.
|
|
8.2
|
Mandatory Prepayment on Change
of Control
|
|
(a)
|
If
at any time any single person or group of persons acting in concert (other
than, directly or indirectly, the State of The Netherlands) acquires
control of the Company or acquires more than 50 per cent. of the equity
share capital of the Company, then the Company will promptly upon becoming
aware thereof notify the Facility Agent who shall inform the Lenders
thereof. For this purpose, “control” means the power
to appoint or dismiss the management and the supervisory board of the
relevant entity, whether through the ownership of voting capital, the
provisions of the constitutional documents of the entity or otherwise, and
“acting in
concert” means, a group of persons who, pursuant to an agreement or
understanding (whether formal or informal), actively co-operate, through
the acquisition by any of them, either directly or indirectly, of shares
in the Company, to obtain or consolidate control of the
Company.
|
|
|
(b)
|
The
Facility Agent will, if instructed to do so by the Majority Lenders, by
notice to the Company given no earlier than 30 days and no later than 60
days after the notification under paragraph (a)
above:
|
|
(i)
|
call
for prepayment of all Advances on such date as it may specify in such
notice (being no earlier than five Business Days after the date of such
notice) whereupon all the Advances will become due and payable on such
date together with Break Costs (as notified to the Company by the Facility
Agent); and
|
|
(ii)
|
declare
that the Total Commitments shall be cancelled, whereupon the Total
Commitments shall be cancelled and the Commitment of each Lender shall be
cancelled and reduced to
zero.
|
|
8.3
|
Voluntary
cancellation
|
|
The
Company may, if it gives the Facility Agent not less than 3 Business Days’
(or such shorter period as the Majority Lenders may agree) prior notice,
cancel the whole or any part (being a minimum amount of euro 25,000,000)
of the Available Facility. Any cancellation in part under this Clause 8.3
will be applied against the Commitment of each Lender pro
rata.
|
|
8.4
|
Voluntary
Prepayment
|
|
The
Borrower to which an Advance has been made may, if it gives the Facility
Agent not less than 3 Business Days’ (in the case of any Advance other
than a Swingline Advance) or 1 day’s (in the case of any Swingline
Advance) or, such shorter period as the Majority Lenders may agree, prior
notice, prepay the whole or (other than in the case of a Swingline
Advance) any part of an Advance (but if in part, being an amount that
reduces the Base Currency Amount of the Advance by a minimum amount of
euro 25,000,000). Any prepayment in part under this Clause 8.4 will be
applied against the participations of each Lender in the relevant Advance
pro rata.
|
|
8.5
|
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
Clause 13 (Tax
Gross-up); or
|
||
|
(ii)
|
any
Lender claims indemnification from the Company under Clause 14.1 (Increased
costs),
|
|
the
Company may, whilst the circumstance giving rise to the requirement or
indemnification continues, give the Facility Agent notice of cancellation
of the Commitment of that Lender and its intention to procure the
repayment of that Lender’s participation in the
Advances.
|
|
(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 in respect of an Advance 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 an Advance is outstanding shall repay that Lender’s participation
in that Advance.
|
|
8.6
|
Restrictions
|
|
(a)
|
Any
notice of cancellation or prepayment given by any Party under this Clause
8 shall be irrevocable and, unless a contrary indication appears in this
Agreement, shall specify the date or dates upon which the relevant
cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
|
|
| (b) |
Any
prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without
premium or
penalty. |
|
(c)
|
Unless
a contrary indication appears in this Agreement, any part of a Facility
which is prepaid may be reborrowed in accordance with the terms of this
Agreement.
|
|
|
(d)
|
The
Borrowers shall not repay or prepay all or any part of the Advances or
cancel all or any part of the Commitments except at the times and in the
manner expressly provided for in this Agreement.
|
|
|
(e)
|
No
amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated.
|
|
|
(f)
|
If
the Facility Agent receives a notice under this Clause 8 it shall promptly
notify either the Company or the affected Lender, as
appropriate.
|
|
9.
|
|
9.1
|
Calculation of
interest
|
|
(a)
|
The
rate of interest on each Advance (other than a Swingline Advance) for each
Interest Period is the percentage rate per annum which is the aggregate of
the applicable:
|
|
(i)
|
Margin;
|
||
|
(ii)
|
LIBOR
or, in relation to any Advance in euro, EURIBOR; and
|
||
|
(iii)
|
Mandatory
Cost, if any.
|
|
(b)
|
The
rate of interest on each Swingline Advance for each Interest Period shall
accrue from day to day and is the percentage rate per annum determined by
the Euro Swingline Agent (in the case of any Euro Swingline Advance) to be
the Euro Swingline Rate or by the Dollar Swingline Agent (in the case of
any Dollar Swingline Advance) to be the Dollar Swingline
Rate.
|
|
9.2
|
Payment of
interest
|
|
The
Borrower to which an Advance has been made shall pay accrued interest on
that Advance 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).
|
|
9.3
|
Default
interest
|
|
(a)
|
If
an Obligor fails to pay any amount payable by it under a Finance Document
on its due date, interest shall accrue on the overdue amount from the due
date up to the date of actual payment (both before and after judgment) at
a rate 1.00 per cent. higher than the rate which would have been payable
if the overdue amount had, during the period of non-payment, constituted
an Advance in the currency of the overdue amount for successive Interest
Periods, each of a duration selected by the Facility Agent (acting
reasonably). Any interest accruing under this Clause 9.3 shall be
immediately payable by the Borrower on demand by the Facility
Agent.
|
|
|
(b)
|
Default
interest (if unpaid) arising on an overdue amount will be compounded with
the overdue amount at the end of each Interest Period applicable to that
overdue amount but will remain immediately due and
payable.
|
|
9.4
|
Notification of rates of
interest
|
|
The
Facility Agent shall promptly notify the Lenders and the relevant Borrower
of the determination of a rate of interest under this
Agreement.
|
|
10.
|
|
10.1
|
Selection of Interest
Periods
|
|
(a)
|
A
Borrower (or the Company on behalf of a Borrower) may select an Interest
Period for an Advance in the Utilisation Request for that
Advance.
|
|
(b)
|
Subject
to this Clause 10, a Borrower (or the Company) may select an Interest
Period of:
|
|
(i)
|
in
relation to any Advance (other than a Swingline Advance), 1, 2 or 3 weeks,
1, 2, 3 or 6 Months or any period longer than 6 Months agreed between the
Company and the Facility Agent (acting on the instructions of all the
Lenders) or any period shorter than 6 Months agreed between the Company
and the Facility Agent or ending on the Termination Date;
or
|
||
|
(ii)
|
in
relation to any Swingline Advance, a period not exceeding seven Business
Days.
|
|
(c)
|
An
Interest Period for an Advance shall not extend beyond, as applicable, the
Termination Date relating to the Lenders participating in that
Advance.
|
|
|
(d)
|
Each
Interest Period for an Advance shall start on the Utilisation
Date.
|
|
|
(e)
|
Each
Advance has one Interest Period
only.
|
|
10.2
|
Non-Business
Days
|
|
If
an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period will instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if
there is not).
|
|
11.1
|
Absence of
quotations
|
|
Subject
to Clause 11.2 (Market
disruption), if LIBOR or EURIBOR 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 LIBOR or EURIBOR
shall be determined on the basis of the quotations of the remaining
Reference Banks.
|
|
11.2
|
Market
disruption
|
|
(a)
|
If
a Market Disruption Event occurs in relation to an Advance (other than a
Swingline Advance) for any Interest Period, then the rate of interest on
each Lender’s share of that Advance for the Interest Period shall be the
rate per annum which is the sum of:
|
|
(i)
|
the
Margin;
|
||
|
(ii)
|
the
rate notified to the Facility 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 Advance from
whatever source it may reasonably select with a view to providing funding
at the lowest reasonably practicable rate; and
|
||
|
(iii)
|
the
Mandatory Cost, if any, applicable to that Lender’s participation in the
Advance.
|
|
(b)
|
In
this Agreement “Market
Disruption Event” means in relation to an Advance (not being a
Swingline Advance):
|
|
(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 Facility Agent to determine LIBOR or, if
applicable, EURIBOR for the relevant currency and period;
or
|
||
|
(ii)
|
the
Facility Agent (after consultation with the Reference Banks) shall have
determined (which determination shall be conclusive and binding upon all
Parties) that by reason of circumstances affecting the Relevant Interbank
Market generally, adequate and fair means do not exist for ascertaining
EURIBOR or, as the case may be, LIBOR applicable to an Advance for the
relevant Interest Period or EURIBOR or, as the case may be, LIBOR does not
adequately represent the cost of funding to the
Lenders,
|
|
provided that the
Company and the Lenders (through the Facility Agent) may agree that, if
not already drawn, the Advances concerned shall not be borrowed (subject
to the provisions of paragraph (c) of Clause 15.2 (Other
Indemnities)).
|
|
11.3
|
Alternative basis of interest
or funding
|
|
(a)
|
If
a Market Disruption Event occurs and the Facility Agent or the Borrower so
requires, the Facility Agent and the Borrower 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.
|
|
11.4
|
Break
Costs
|
|
(a)
|
Each
Borrower shall, within 5 Business Days of demand by a Finance Party, pay
to that Finance Party its Break Costs attributable to all or any part of
an Advance or Unpaid Sum being paid by that Borrower on a day other than
the last day of an Interest Period for that Advance or Unpaid
Sum.
|
|
|
(b)
|
Any
demand made by a Finance Party pursuant to paragraph (a) above shall be
accompanied by a certificate confirming the amount of its Break Costs for
the relevant Interest Period.
|
|
12.
|
|
12.1
|
Commitment
fee
|
|
(a)
|
The
Company shall pay to the Facility Agent (for the account of each Lender) a
fee in the Base Currency on that Lender’s Available Commitment for the
Availability Period, at the rate per annum for each day of each relevant
period referred to in paragraph (b) below which is equal to 30 per cent.
of the Margin applicable at such time.
|
|
|
(b)
|
The
accrued commitment fee is payable on the last day of each successive
period of three Months commencing from the date of this Agreement and on
the last day of the Availability Period applicable to a Lender and on the
cancelled amount of the relevant Lender’s Commitment at the time the
cancellation is effective.
|
|
12.2
|
Utilisation
Fee
|
|
(a)
|
The
Company shall pay to the Facility Agent (for the account of the Lenders
pro rata to their Outstandings) a utilisation fee computed at the rate of
0.025 per cent. per annum on the Total Outstandings for each day that the
Total Outstandings are in an amount exceeding 50 per cent. of the Total
Commitments.
|
|
|
(b)
|
The
accrued utilisation fee is payable on the last day of each successive
period of three Months commencing from the date of this Agreement and on
the Termination Date.
|
|
12.3
|
Arrangement
Fee
|
|
The
Company shall pay to the Mandated Lead Arrangers fees in the amounts and
at the times agreed in a Fee
Letter.
|
|
12.4
|
Agency
fees
|
|
(a)
|
The
Company shall pay to the Facility Agent (for its own account) an agency
fee in the amount and at the times agreed in a Fee
Letter.
|
|
|
(b)
|
The
Company shall pay to the Euro Swingline Agent (for its own account) an
agency fee in the amount and at the times agreed in a Fee
Letter.
|
|
|
(c)
|
The
Company shall pay to the Dollar Swingline Agent (for its own account) an
agency fee in the amount and at the times agreed in a Fee
Letter.
|
|
13.
|
|
13.1
|
Gross-up
|
|
(a)
|
All
payments by an Obligor under the Finance Documents shall be made free and
clear of and without deduction for or on account of any taxes, except to
the extent that the Obligor is required by law to make payment subject to
any tax, or amount in respect of tax (“applicable tax”). If any
applicable tax must be deducted from any amounts payable or paid by an
Obligor, or paid or payable by the Facility Agent to a Lender, under the
Finance Documents, then the relevant Obligor shall pay such additional
amounts as may be necessary to ensure that the relevant Lender receives
and retains free of any liability a net amount equal to the full amount
which it would have received had payment not been made subject to
applicable tax.
|
|
|
(b)
|
An
Obligor is not obliged to pay any additional amount under paragraph (a)
above in respect of any deduction which has occurred solely as a result of
a change in Facility Office or other transfer by the Lender concerned and
arises on the date of such change or transfer.
|
|
|
(c)
|
The
Lender shall, at the written request of an Obligor, co-operate with the
Obligor and use its best efforts to complete any declaration, claim,
exemption or other form (or provide other evidence of eligibility)
necessary for the Obligor to obtain authorisation to make payments without
a tax deduction.
|
|
13.2
|
Tax
receipts
|
|
All
taxes required by law to be deducted or withheld by an Obligor from any
amounts paid or payable under the Finance Documents shall be paid in full
by the relevant Obligor when due and the Obligor shall, within 15 days of
the payment being made, deliver to the Facility Agent for the relevant
Lender evidence satisfactory to that Lender (including copies of all
relevant tax receipts) that the payment has been duly remitted to the
appropriate authority.
|
|
13.3
|
Tax
Credit
|
|
(a)
|
If
an Obligor makes a payment pursuant to Clause 13.1 (Gross-up) for the
account of any Lender and such Lender has received or been granted a
credit against, or relief or remission or repayment of, any tax paid or
payable by it (a “Tax
Credit”) which is attributable to that payment or the corresponding
payment under the Finance Document such Lender shall, to the extent that
it can do so without prejudice to the retention of the amount of such
credit, relief, remission or repayment, pay to the Obligor such amount as
the Lender shall have reasonably determined to be attributable to such
payments and which will leave the Lender (after such payment) in no better
or worse position than it would have been if the Obligor had not been
required to make any deduction or withholding.
|
|
|
(b)
|
Nothing
in this Clause 13.3 shall interfere with the right of a Lender to arrange
its tax affairs in whatever manner it thinks fit and without limiting the
foregoing no Lender shall be under any obligation to claim a Tax Credit or
to claim a Tax Credit in priority to any other claims, relief, credit or
deduction available to it. No Lender shall be obliged to disclose any
information relating to its tax affairs or any computations in respect
thereof.
|
|
13.4
|
Stamp
taxes
|
|
The
relevant Obligor shall pay and, promptly on 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.
|
|
13.5
|
Value added
tax
|
|
(a)
|
All
consideration payable under a Finance Document by an Obligor to a Finance
Party shall be deemed to be exclusive of any VAT. If VAT is chargeable,
the relevant Obligor 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.
|
|
|
(b)
|
Where
a Finance Document requires an Obligor to reimburse a Finance Party for
any costs or expenses, that Obligor shall also at the same time pay and
indemnify that Finance Party against all VAT incurred by that Finance
Party in respect of the costs or expenses save to the extent that that
Finance Party is entitled to repayment or credit in respect of the
VAT.
|
|
14.
|
|
14.1
|
Increased
costs
|
|
(a)
|
Subject
to Clause 14.3 (Exceptions) the
relevant Obligor shall, immediately on demand by the Facility Agent, pay
for the account of a Finance Party the amount of any Increased Costs
incurred by that Finance Party as a result of (i) the introduction of or
any change in (or in the interpretation or application of) any law or
regulation or (ii) compliance with any law or regulation made after the
date of this Agreement.
|
|
|
(b)
|
In
this Agreement “Increased
Costs” means:
|
|
(i)
|
a
reduction in the rate of return from the Facilities or on a Finance
Party’s (or any of its Holding Companies’) overall
capital;
|
||
|
(ii)
|
an
additional or increased cost (including any loss, liability or cost for or
on account of Tax); 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 Holding Companies to the extent that
it is attributable to that Finance Party having entered into its Commitment or
funding or performing its obligations under any Finance Document.
|
14.2
|
Increased cost
claims
|
|
(a)
|
A
Finance Party intending to make a claim pursuant to Clause 14.1 (Increased costs) shall
notify the Facility Agent of the event giving rise to the claim, following
which the Facility Agent shall promptly notify the relevant
Obligor.
|
|
|
(b)
|
Each
Finance Party shall, together with any demand made pursuant to paragraph
(a) above, provide a certificate confirming the amount of its Increased
Costs with full supporting details (which certificate shall constitute
prima facie non-binding evidence of the matters to which it
relates).
|
|
14.3
|
Exceptions
|
|
Clause
14.1 (Increased
costs) does not apply to the extent any Increased Cost
is:
|
|
(a)
|
attributable
to any Tax or amounts in respect of Tax which must be deducted from any
amounts payable or paid by an Obligor or paid or payable by the Facility
Agent to a Lender under the Finance Documents or compensated for by the
operation of Clause 13.1 (Gross-up);
|
|
|
(b)
|
compensated
for by the payment of the Mandatory Cost; or
|
|
|
(c)
|
attributable
to the breach by the relevant Finance Party or its Holding Companies of
any law or regulation; or
|
|
|
(d)
|
attributable
to any Tax on the overall net income, profits or gains of a division or
branch of the Lender or any of its Holding Companies imposed in the
jurisdiction in which its principal office or Facility Office is for the
time being situate.
|
|
15.1
|
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 5 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.
|
|
15.2
|
Other
indemnities
|
|
The
Company shall (or shall procure that an Obligor will), indemnify each
Finance Party within 5 Business Days of demand against any cost, loss or
liability incurred by that Finance Party 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 27 (Sharing among the
Lenders);
|
|
|
(c)
|
funding,
or making arrangements to fund, its participation in an Advance requested
by the relevant 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 a Finance Party or any
employee or agent of, or other person instructed by, such Finance
Party);
|
|
|
(d)
|
an
Advance (or part of an Advance) not being prepaid in accordance with a
notice of prepayment given by a Borrower or the Company;
or
|
|
|
(e)
|
any
representation, warranty or statement given by a Dutch Borrower in Clause
19.12(b) (Professional
Market Party Representations) being incorrect when made or deemed
to be made, provided that this Clause 15.2(e) shall not apply to any
Lender or New Lender which makes a misrepresentation under Clause 19.12(a)
(Professional Market
Party
Representations).
|
|
15.3
|
Indemnity to the Facility
Agent
|
|
The
Company shall within 5 Business Days of demand indemnify the Facility
Agent against any cost, loss or liability incurred by the Facility Agent
(acting reasonably) as a result of:
|
|
(a)
|
investigating
any event which it reasonably believes is a Default; or
|
|
|
(b)
|
entering
into or performing any foreign exchange contract for the purposes of
Clause 6 (Optional
Currencies); or
|
|
|
(c)
|
acting
or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately
authorised.
|
|
16.1
|
Mitigation
|
|
(a)
|
Each
Finance Party shall, in consultation with the Company, take all reasonable
steps to mitigate any circumstances which arise and which would result in
any amount becoming payable under, or cancelled pursuant to, any of Clause
8.1 (Illegality),
Clause 13 (Tax
gross-up) or Clause 14 (Increased costs) including (but not limited
to) transferring its rights and obligations under the Finance Documents to
another Affiliate or Facility Office and, in such circumstances a Lender
will, at the request of the Company but subject to the Company
indemnifying it for the costs of so doing, transfer 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.
|
|
16.2
|
Limitation of
liability
|
|
(a)
|
The
Borrower 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 16.1 (Mitigation).
|
|
(b)
|
A
Finance Party is not obliged to take any steps under Clause 16.1 (Mitigation) if, in the
bona fide written opinion of that Finance Party, to do so would or would
be likely to have a material adverse effect upon its business, operation
or financial condition or would involve it in any unlawful activity or any
activity that is contrary to any request, guidance or directive of any
competent authority (whether or not having the force of law) or (unless
indemnified to its satisfaction) would involve it in any significant
expense or Tax
disadvantage.
|
|
17.1
|
Transaction
expenses
|
|
The
Company shall within 5 Business Days of demand pay to the Facility Agent
and the Mandated Lead Arrangers the amount of all out-of-pocket costs and
expenses (including legal fees) reasonably incurred by any of them in
connection with the negotiation, preparation, printing and execution
of:
|
|
(a)
|
this
Agreement and any other documents referred to in this Agreement;
and
|
|
|
(b)
|
any
other Finance Documents executed after the date of this
Agreement.
|
|
17.2
|
Amendment
costs
|
|
If
(a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 28.9 (Change of currency), or
(c) any other matter, not of an ordinary administrative nature, arises out
of or in connection with a Finance Document which, in the reasonable
opinion of the Facility Agent, is attributable to an Obligor, the Company
shall, within 5 Business Days of demand, reimburse the Facility Agent for
the amount of all out-of- pocket costs and expenses (including legal fees)
reasonably incurred by the Facility Agent and, if applicable, the Mandated
Lead Arrangers in responding to, evaluating, negotiating or complying with
that request, requirement or other
matter.
|
|
17.3
|
Enforcement
costs
|
|
The
Company shall within 5 Business Days of demand, pay to each Finance Party
the amount of all costs and expenses (including legal fees) properly
incurred by that Finance Party in connection with the enforcement of, or
the preservation of any rights under, any Finance Document or in
investigating any possible Default of which an Obligor or the Majority
Lenders have given notice.
|
|
18.
|
GUARANTEE AND
INDEMNITY
|
|
18.1
|
Guarantee and
indemnity
|
|
Each
Guarantor irrevocably and unconditionally jointly and
severally:
|
|
(a)
|
guarantees
to each Finance Party punctual performance by each Borrower of all that
Borrower’s obligations under the Finance Documents;
|
|
|
(b)
|
undertakes
with each Finance Party that whenever a Borrower does not pay any amount
when due under or in connection with any Finance Document, the Guarantor
shall immediately on demand pay that amount as if it was the principal
obligor; and
|
|
|
(c)
|
indemnifies
each Finance Party immediately on demand against any cost, loss or
liability suffered by that Finance Party if any obligation guaranteed by
it is or becomes unenforceable, invalid or illegal. The amount of the
cost, loss or liability shall be equal to the amount which that Finance
Party would otherwise have been entitled to
recover.
|
|
18.2
|
Continuing
guarantee
|
|
This
guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in
part.
|
|
18.3
|
Reinstatement
|
|
If
any payment by an Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security for
those obligations or otherwise) is avoided or reduced as a result of (or
must be restored on) insolvency or any similar
event:
|
|
(a)
|
the
liability of each Obligor shall continue as if the payment, discharge,
avoidance or reduction had not occurred (but only to the extent that such
payment, security or other disposition is avoided or required to be
restored); and
|
|
|
(b)
|
each
Finance Party shall be entitled to recover the value or amount of that
security or payment from each Obligor, as if the payment, discharge,
avoidance or reduction had not
occurred.
|
|
18.4
|
Waiver of
defences
|
|
The
obligations of each Guarantor under this Clause 18 will not be affected by
an act, omission, matter or thing which, but for this Clause, would
reduce, release or prejudice any of its obligations under this Clause 18
or prejudice or diminish those obligations in whole or in part (without
limitation and whether or not known to it or any Finance Party)
including:
|
|
(a)
|
any
time, waiver or consent granted to, or composition with, any Obligor or
other person;
|
|
|
(b)
|
the
release of any other Obligor or any other person under the terms of any
composition or arrangement with any creditor of any member of the
Group;
|
|
(c)
|
the
taking, variation, compromise, exchange, renewal or release of, or refusal
or neglect to perfect, take up or enforce, any rights against, or security
over assets of, any Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any
security;
|
|
|
(d)
|
any
incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of an Obligor or any other
person;
|
|
|
(e)
|
any
amendment (however fundamental) or replacement of a Finance Document or
any other document or security;
|
|
|
(f)
|
any
unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document or any other document or security to the intent
that each Guarantor’s obligations under this Clause 18 shall remain in
full force and its guarantee be construed accordingly, as if there were no
unenforceability, illegality or invalidity; or
|
|
|
(g)
|
any
insolvency or similar
proceedings.
|
|
18.5
|
Immediate
recourse
|
|
Each
Guarantor waives any right it may have of first requiring any Finance
Party (or any trustee or agent on its behalf) to proceed against or
enforce any other rights or security or claim payment from any person
before claiming from that Guarantor under this Clause 18. This waiver
applies irrespective of any law or any provision of a Finance Document to
the contrary.
|
|
18.6
|
Appropriations
|
|
Until
all amounts which may be or become payable by the Obligors under or in
connection with the Finance Documents have been irrevocably paid in full,
each Finance Party (or any trustee or agent on its behalf)
may:
|
|
(a)
|
refrain
from applying or enforcing any other moneys, security or rights held or
received by that Finance Party (or any trustee or agent on its behalf) in
respect of those amounts, or apply and enforce the same in such manner and
order as it sees fit (whether against those amounts or otherwise) and no
Guarantor shall be entitled to the benefit of the same;
and
|
|
|
(b)
|
hold
in an interest-bearing suspense account any moneys received from any
Guarantor or on account of any Guarantor’s liability under this Clause
18.
|
|
18.7
|
Deferral of Guarantors’
rights
|
|
Until
all amounts which may be or become payable by the Obligors under or in
connection with the Finance Documents have been irrevocably paid in full
and unless the Facility Agent otherwise directs, no Guarantor will
exercise any rights which it may have by reason of performance by it of
its obligations under the Finance
Documents:
|
|
(a)
|
to
be indemnified by an Obligor;
|
|
|
(b)
|
to
claim any contribution from any other guarantor of any Obligor’s
obligations under the Finance Documents;
and/or
|
|
(c)
|
to
take the benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Finance Parties under the Finance
Documents or of any other guarantee or security taken pursuant to, or in
connection with, the Finance Documents by any Finance
Party.
|
|
18.8
|
Additional
security
|
|
This
guarantee is in addition to and is not in any way prejudiced by any other
guarantee or security now or subsequently held by any Finance
Party.
|
|
19.1
|
Representations and
warranties
|
|
Each
Obligor makes the representations and warranties set out in Clauses 19.2
(Status) to 19.10 (Information) to each Finance
Party.
|
|
19.2
|
Status
|
|
(a)
|
It
is, in the case of the Company, a public limited liability company (naamloze vennootschap),
duly incorporated and validly existing under the laws of The
Netherlands;
|
|
|
(b)
|
it
is, in the case of any Obligor other than the Company, a limited liability
company, duly incorporated and validly existing under the laws of the
jurisdiction of its incorporation; and
|
|
|
(c)
|
it
has the power to own its assets and carry on its business as it is being
conducted.
|
|
19.3
|
Powers and
authority
|
|
It
has the power to enter into and perform, and has taken all necessary
action to authorise the entry into, performance and delivery of, the
Finance Documents to which it is or will be a party and the transactions
contemplated by those Finance
Documents.
|
|
19.4
|
Legal
validity
|
|
Each
Finance Document to which it is or will be a party constitutes, or when
executed in accordance with its terms will constitute, its legal, valid
and binding obligation enforceable in accordance with its
terms.
|
|
19.5
|
Non-conflict
|
|
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 or judicial or official order of The Netherlands or the
jurisdiction of its incorporation or any other relevant jurisdiction;
or
|
|
|
(b)
|
the
constitutional documents of any Obligor; or
|
|
|
(c)
|
any
document which is binding upon any Group Company or any asset of any
member of the Group Company,
|
|
(in
the case of paragraph (c) only) to an extent or in a manner which is
reasonably likely to have a Material Adverse
Effect
|
|
19.6
|
No
default
|
|
(a)
|
No
Default is outstanding or is reasonably likely to result from the making
of any Advance; and
|
|
|
(b)
|
no
other event is outstanding which constitutes (or, with the giving of
notice, lapse of time, determination of materiality or the fulfilment of
any other applicable condition or any combination of the foregoing, is
reasonably likely to constitute) a default under any document which is
binding on any Group Company or any asset of any Group Company to an
extent or in a manner which is reasonably likely to have a Material
Adverse Effect.
|
|
19.7
|
Authorisations
|
|
All
Authorisations required in connection with the entry into, performance,
validity and enforceability of, and the transactions contemplated by, the
Finance Documents have been obtained or effected (as appropriate) and are
in full force and effect.
|
|
19.8
|
Financial
Statements
|
|
(a)
|
The
audited consolidated financial statements of the Group most recently
delivered to the Facility Agent (which, at the date of this Agreement, are
the Original Group Financial
Statements):
|
|
(i)
|
have
(subject to Clause 20.2 (Basis of Preparation of
Financial Statements) been prepared in accordance with IFRS;
and
|
||
|
(ii)
|
fairly
represent the consolidated financial condition of the Group as at the date
to which they were drawn up.
|
|
(b)
|
There
has been no material adverse change in the consolidated financial
condition of the Group since the date to which the Original Group
Financial Statements were drawn up which would be reasonably likely to
have a Material Adverse Effect.
|
|
|
(c)
|
The
audited financial statements of each Obligor most recently delivered to
the Facility Agent:
|
|
(i)
|
have
been prepared in accordance with accounting principles and practices
generally accepted in the jurisdiction of its incorporation consistently
applied; and
|
||
|
(ii)
|
fairly
represent its financial condition as at the date to which they were drawn
up.
|
|
19.9
|
Litigation
|
|
No
litigation, arbitration or administrative proceedings in relation to any
Group Company are current or, to its knowledge, pending or threatened,
which would, in the opinion of the members of the board of management
(raad van
bestuur) of the Company, have a Material Adverse
Effect.
|
|
19.10
|
Information
|
|
To
the best of its knowledge and belief, the factual written information
(other than that obtained from public sources) in relation to this
Agreement and the Facility provided by the Company was correct in all
material respects as at its date and did not omit to state a material fact
necessary to make such factual information not misleading in any material
respect and all projections supplied by any member of the Group were made
in good faith and based on opinions and assumptions considered to be
reasonable at the time of supply.
|
|
19.11
|
Times for making
representations and
warranties
|
|
The
representations and warranties set out in this Clause
19:
|
|
(a)
|
other
than in the case of Clauses 19.6 (No default), 19.8(b)
(Financial
Statements), 19.9 (Litigation), 19.10
(Information) and
19.12 (Professional
Market Party
Representations):
|
|
(i)
|
in
the case of the Company, are made by the Company on the date of this
Agreement and on the date each Accession Letter is executed;
and
|
||
|
(ii)
|
in
the case of an Additional Obligor, will be deemed to be made by that
Additional Obligor on the date it executes an Accession
Letter;
|
|
(b)
|
are,
other than in the case of Clauses 19.6 (No Default), 19.8(b)
(Financial
Statements), 19.9 (Litigation), 19.10
(Information) and
19.12 (Professional
Market Party Representations), deemed to be repeated by each
Borrower on:
|
|
(i)
|
the
date of each Utilisation Request; and
|
||
|
(ii)
|
the
first day of each Interest Period;
and
|
|
(c)
|
in
the case of Clauses 19.6 (No default), 19.8(b)
(Financial
Statements), 19.9 (Litigation), and 19.10
(Information),
are made by the Company on the date of this Agreement;
|
|
|
(d)
|
in
the case of Clause 19.12 (Professional Market Party
Representations) are made by the parties specified in that clause
at the times specified in that clause;
|
|
|
(e)
|
are
made by the Company (in respect of Clause 19.8(a) (Financial Statements))
and each Obligor (in respect of Clause 19.8(c) (Financial Statements))
on the date upon which the financial statements referred to therein are
delivered pursuant to Clause 20.1 (Financial
Information),
|
|
in
each case with reference to the facts and circumstances then
existing.
|
|
19.12
|
Professional Market Party
Representations
|
|
(a)
|
(i)
|
Each
Lender which is a party to this Agreement on the date hereof represents
and warrants to each Party on the date hereof that it is a PMP;
and
|
|
(ii)
|
if
on the date on which a New Lender becomes a Lender, it is a requirement of
Dutch law that such New Lender is a PMP, such New Lender represents and
warrants to each Party on the date on which it becomes a party to this
Agreement as a Lender that it is a
PMP;
|
|
and
each such Lender or New Lender acknowledges that each of the Finance
Parties and each Dutch Borrower relies upon such representations and
warranties.
|
|
(b)
|
Each
Dutch Borrower:
|
|
(i)
|
represents
and warrants to the Finance Parties on the date of this Agreement that it
has independently verified the status of each person which is a Lender on
the date hereof and that each such Lender is a PMP;
and
|
|
(ii)
|
if
on the date on which a New Lender becomes a Lender under a Finance
Document, it is a requirement of Dutch law that such New Lender is a PMP,
represents and warrants to the Finance Parties on the date on which each
such New Lender becomes a party to a Finance Document as a Lender that it
has independently verified the status of such New Lender, that each such
Lender is a PMP on such
date.
|
|
The
undertakings in this Clause 20 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.
|
|
20.1
|
Financial
Information
|
|
The
Company shall supply to the Facility Agent in sufficient copies for all
the Lenders:
|
|
(a)
|
as
soon as the same are available (and in any event within 120 days of the
end of each of its financial
years):
|
|
(i)
|
the
audited consolidated financial statements of the Group for that financial
year; and
|
||
|
(ii)
|
the
audited financial statements of each Obligor for that financial
year;
|
|
(b)
|
(i)
|
as
soon as the same are available (and in any event within 90 days of the end
of the first half year of each financial year) its consolidated interim
report and accounts for that financial period and its interim report and
accounts for that financial period;
and
|
|
(ii)
|
to
the extent that the Company prepares them, as soon as the same are
available (and in any event within 90 days of the end of each of the first
three financial quarters of each of its financial years) its consolidated
interim report and accounts for that financial quarter and its interim
report and accounts for that financial quarter;
and
|
|
(c)
|
together
with the consolidated financial statements specified in paragraphs (a) and
(b) above, a certificate signed by one of its Executive Officers on its
behalf certifying that no Default is outstanding or, if a Default is
outstanding, specifying the Default and the steps, if any, being taken to
remedy it and identifying each of its Principal
Subsidiaries.
|
|
20.2
|
Basis of Preparation of
Financial Statements
|
|
The
Company shall procure that:
|
|
(a)
|
each
set of its financial statements and those of the Group are prepared using
IFRS (in the case of annual financial statements) or in a manner
consistent with IFRS (in the case of other financial statements, reports
and accounts); and
|
|
|
(b)
|
each
set of financial statements of any other Obligor are prepared in
accordance with accounting principles and practices generally accepted in
the jurisdiction of its incorporation consistently
applied.
|
|
20.3
|
Information -
Miscellaneous
|
|
The
Company shall supply to the Facility
Agent:
|
|
(a)
|
all
documents (excluding documents despatched only to another member of the
Group) despatched by the Company to its shareholders (or any class of
them) or all its bank lenders generally, holders of its debt securities
generally, its trade creditors generally or its creditors generally at the
same time as they are despatched;
|
|
|
(b)
|
promptly
upon becoming aware of them, details of any litigation, arbitration or
administrative proceedings which are current, threatened or pending, and
which would, if adversely determined, have a Material Adverse Effect;
and
|
|
|
(c)
|
promptly,
such further information in the possession or control of any Group Company
regarding its financial condition as any Finance Party through the
Facility Agent may reasonably request and which is material in the context
of this Agreement,
|
|
in
sufficient copies for all of the Lenders, if the Facility Agent so
requests.
|
|
20.4
|
Use of
websites
|
|
(a)
|
Except
as provided below, the Company may deliver any information under the
Finance Documents (other than a Utilisation Request) to a Lender by
posting it on to an electronic website
if:
|
|
(i)
|
the
Facility Agent and the Company agree;
|
||
|
(ii)
|
the
Company and the Facility Agent designate an electronic website for this
purpose;
|
||
|
(iii)
|
both
the Company and the Facility Agent are aware of the address of and any
relevant password for the website; and
|
||
|
(iv)
|
the
information posted is in a format agreed between the Company and the
Facility Agent.
|
|
The
Facility Agent must supply each relevant Lender with the address of and
any relevant password for the
website.
|
|
(b)
|
Notwithstanding
the above, the Company must supply to the Facility Agent in paper form a
copy of any information posted on the website together with sufficient
copies for each Lender:
|
|
(i)
|
if
requested by the Facility Agent; and
|
||
|
(ii)
|
if
required by any applicable governmental
requirement,
|
|
in
each case within ten Business Days of receipt of such
request.
|
|
(c)
|
The
Company must promptly upon becoming aware of its occurrence, notify the
Facility Agent if:
|
|
(ii)
|
the
website or any information on the website is infected by any electronic
virus or similar software;
|
||
|
(iii)
|
the
relevant password for the website is changed; or
|
||
|
(iv)
|
any
information to be supplied under this Agreement is posted on the website
or amended after being
posted.
|
|
If
the circumstances in paragraphs (i) or (ii) above occur, the Company must
supply any information required under this Agreement in paper
form.
|
|
20.5
|
Know your customer
requirements
|
|
(a)
|
Subject
to paragraph (b) below, each Obligor must promptly on the request of any
Finance Party supply to that Finance Party any documentation or other
evidence which is reasonably requested by that Finance Party (whether for
itself, on behalf of any Finance Party or any prospective new Lender) to
enable a Finance Party or prospective new Lender to carry out and be
satisfied with the results of all applicable know your customer
requirements.
|
|
|
(b)
|
An
Obligor is only required to supply any information under paragraph (a)
above, if the necessary information is not already available to the
relevant Finance Party and the requirement arises as a result
of:
|
|
(i)
|
the
introduction of 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 (other than a change in the composition of the shareholders
of an Obligor which is listed on a public stock exchange to the extent
such change does not constitute a change of “control” (as defined in
Clause 8.2 (Mandatory
Prepayment on Change of Control))) after the date of this
Agreement; or
|
||
|
(iii)
|
a
proposed assignment or transfer by the Lender of any of its rights and/or
obligations under this Agreement to a person that (A) is not a Lender
before that assignment or transfer and (B) is a permitted assignee or
transferee under Clause 23.2 (Conditions of assignment or
transfer).
|
|
(c)
|
Each
Lender must promptly on the request of the Facility Agent supply or
procure the supply of to the Facility Agent any documentation or other
evidence which is reasonably required by the Facility Agent to carry out
and be satisfied with the results of all know your customer requirements
or other checks on Lenders or prospective new Lenders pursuant to the
transactions contemplated in the Finance Documents.
|
|
|
(d)
|
The
Company shall, by not less than 10 Business Days’ prior written notice to
the Facility Agent, notify the Facility Agent (which shall promptly notify
the other Finance Parties) of its intention to request that one of its
Subsidiaries becomes an Additional Obligor pursuant to Clause 24 (Changes to the
Obligors).
|
|
(e)
|
Following
the giving of any notice pursuant to paragraph (d) above, if the accession
of such Additional Obligor obliges the Facility Agent or any other Finance
Party to comply with know your customer requirements 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
Facility Agent (for itself or on behalf of any other Finance Party) or any
Finance Party (for itself or on behalf of any other Finance Party or any
prospective new Lender) in order for the Facility Agent or such Finance
Party or any prospective new Lender to carry out and be satisfied it has
complied with all necessary know your customer requirements or other
checks in relation to any relevant person pursuant to the accession of
such Subsidiary to this Agreement as an Additional
Obligor.
|
|
The
undertakings in this Clause 21 will remain in force from the date of this
Agreement for so long as any amount is or may be outstanding under the
Finance Documents or any Commitment is in
force.
|
|
21.1
|
Notification of
Default
|
|
The
Company shall notify the Facility Agent of any Default (and the steps, if
any, being taken to remedy it) promptly upon becoming aware of
it.
|
|
21.2
|
Authorisations
|
|
Each
Obligor shall promptly:
|
|
(a)
|
obtain,
maintain and comply with the terms of; and
|
|
|
(b)
|
if
requested, supply certified copies to the Facility Agent
of,
|
|
any
Authorisation required under any law or regulation to enable it to perform
its obligations under, or for the validity or enforceability of, any
Finance Document.
|
|
21.3
|
Pari passu
ranking
|
|
Each
Obligor shall procure that its obligations under the Finance Documents do
and will rank at least pari passu with all its other present and future
unsecured, unsubordinated obligations, except for obligations which from
time to time are mandatorily preferred by law applying to companies
generally.
|
|
21.4
|
Negative
pledge
|
|
(a)
|
Each
Obligor shall not, and the Company shall procure that no Group Company
will, create or permit to subsist any Security over all or any of its
assets in respect of Borrowings.
|
|
|
(b)
|
Paragraph
(a) does not apply to:
|
|
(i)
|
any
Security created or subsisting with the prior written consent of the
Majority Lenders;
|
|
(ii)
|
any
lien or rights of set-off arising by operation of law or in the ordinary
course of business;
|
||
|
(iii)
|
any
Security over any assets of a Group Company existing at the time that
company becomes a Group Company provided
that:
|
|
(A)
|
the
company is not a Group Company at the date of this
Agreement;
|
|||
|
(B)
|
the
Security is not created in contemplation of that company becoming a Group
Company;
|
|||
|
(C)
|
the
Security remains confined to the asset(s) it covered at the date the
company became a Group Company; and
|
|||
|
(D)
|
to
the extent that the amount secured has been increased, such Security shall
not fall within this sub-paragraph
(iii);
|
|
(iv)
|
any
Security arising pursuant to a Cash-backed Borrowing;
|
||
|
(v)
|
any
Security referred to in paragraph (a)(ii) of the definition of “Project
Borrowing” in Clause 1.1 (Definitions) or any
Security over the assets of a Project Borrower created by such Project
Borrower, provided that this paragraph (v) shall not permit any Security
to be created by or subsist over all or any of the assets of the
Company;
|
||
|
(vi)
|
any
netting or set-off arrangement entered into by any Group Company in the
ordinary course of its banking arrangements for the purpose of netting
debit and credit balances;
|
||
|
(vii)
|
any
netting or set-off arrangement entered into by any Group Company in
connection with any Borrowing specified in paragraph (e) of the definition
thereof, in connection with the netting of transactions across a single
master agreement (or any equivalent) and the close-out or termination of
any transaction thereunder, but excluding for the avoidance of doubt the
granting of any collateral or credit or cash support in relation
thereto;
|
||
|
(viii)
|
any
Security over or affecting any asset acquired by a Group Company after the
date of this Agreement provided
that:
|
|
(A)
|
the
Security was not created in contemplation of the acquisition of that asset
by a Group Company; and
|
|||
|
(B)
|
to
the extent that the principal amount secured since the acquisition of that
asset by a Group Company has been increased, such Security shall not fall
within this sub-paragraph
(viii);
|
|
(ix)
|
any
title transfer, conditional sale or retention of title arrangement entered
into by any Group Company in the ordinary course of
business;
|
||
|
(x)
|
any
Security created by SNT Group NV or any of its
Subsidiaries;
|
|
(xi)
|
any
Security (a “substitute
Security”) which replaces any other Security permitted under
sub-paragraphs (i) to (viii) (inclusive) above (an “existing Security”) to
the extent that the Security secures an amount not exceeding the principal
amount secured by such existing Security at the time it is replaced provided that (1) the
existing Security to be replaced is released and all amounts secured
thereby are paid or otherwise discharged in full at or prior to the time
of such substitute Security being created or arising and (2) such
substitute Security does not extend to cover assets not previously subject
to that existing Security; or
|
||
|
(xii)
|
any
other Security created or outstanding, but only if the aggregate principal
amount of Borrowings secured by all Security created or outstanding under
this exception on or over any assets of any member of the Group, when
taken together with the aggregate principal amount of unsecured Borrowings
pursuant to Clause 21.7(1) (Subsidiary Borrowings)
does not at any time exceed euro
2,600,000,000.
|
|
(c)
|
The
Company shall supply to the Facility Agent, within 5 Business Days of a
request by the Facility Agent, a certificate signed by an Executive
Officer certifying:
|
|
(i)
|
the
amount of the aggregate Borrowings secured by all Security falling within
Paragraph (b)(xii) above; and
|
||
|
(ii)
|
the
amount of the aggregate Borrowings falling within Paragraph (1) of Clause
21.7 (Subsidiary
Borrowings),
|
|
as
at the date of the Facility Agent’s
request.
|
|
21.5
|
Disposals
|
|
(a)
|
No
Obligor shall, and the Company shall procure that no other Group Company
shall, either in a single transaction or in a series of transactions,
whether related or not and whether voluntarily or involuntarily, sell,
transfer, grant or lease or otherwise dispose of any of its
assets.
|
|
|
(b)
|
Paragraph
(a) does not apply to:
|
|
(i)
|
a
disposal on arm’s length terms and for fair market
value;
|
||
|
(ii)
|
a
disposal of obsolete or waste assets;
|
||
|
(iii)
|
disposals
of assets in exchange for other assets comparable or superior as to type,
value and quality;
|
||
|
(iv)
|
a
disposal made in the ordinary course of business of the disposing
entity;
|
||
|
(v)
|
any
disposal or series of related disposals by Group Companies realising net
disposal proceeds of euro 50,000,000 or less or its equivalent in any
other currency (provided
that the aggregate net disposal proceeds of all disposals permitted
under this paragraph (b)(v) shall not exceed euro
250,000,000);
|
||
|
(vi)
|
payments
of dividends;
|
|
(vii)
|
any
disposal between two or more Group Companies (excluding disposals to SNT
Group N.V. which are not made on arm’s length terms and for fair market
value); or
|
||
|
(viii)
|
disposals
with the prior written consent of the Majority
Lenders.
|
|
21.6
|
Merger
|
|
The
Company shall not enter into any statutory merger (juridische fusie) without the prior written
consent of the Majority Lenders.
|
|
21.7
|
Subsidiary
Borrowings
|
|
No
Group Company (other than the Company), will incur or have outstanding any
Borrowings other than:
|
|
(a)
|
any
Borrowings, provided
that the Total Commitments are cancelled in an amount (net of
taxes, fees, costs and expenses) equal to the principal amount of such
Borrowings promptly upon their incurrence and Advances thereupon are
prepaid to the extent that the Total Outstandings would otherwise exceed
the Total Commitments as reduced thereby);
|
|
|
(b)
|
Borrowings
which constitute a Project Borrowing;
|
|
|
(c)
|
Borrowings
created with the prior written consent of the Majority
Lenders;
|
|
|
(d)
|
Borrowings
owed by an Additional Guarantor;
|
|
|
(e)
|
Borrowings
under this Agreement;
|
|
|
(f)
|
Borrowings
owed to another Group Company;
|
|
|
(g)
|
Borrowings
of any Subsidiary of the Company which operates only as a finance company
for the Group to the extent that the proceeds of such Borrowings are
on-lent to a Guarantor;
|
|
|
(h)
|
Cash-backed
Borrowings;
|
|
|
(i)
|
Borrowings
under cash pooling arrangements in the Group’s ordinary banking
arrangements, to the extent matched by cash balances held by members of
the Group which are treated as available for netting against those
Borrowings;
|
|
|
(j)
|
for
a period of 12 months after the date on which a Subsidiary becomes a Group
Company, Borrowings of that Subsidiary to the extent that such Borrowings
are outstanding at the time that Subsidiary becomes a Group Company and
were not created in contemplation of that Subsidiary becoming a Group
Company;
|
|
|
(k)
|
Borrowings
owed by SNT Group NV (or any of its Subsidiaries); or
|
|
|
(1)
|
any
other Borrowings, provided that the
aggregate principal amount of any such Borrowings which are unsecured,
when taken together with the aggregate outstanding principal amount of
Borrowings secured by Security created by Obligors pursuant to Clause
21.4(b) (xii) (Negative
pledge), does not exceed euro 2,600,000,000 (or its equivalent in
other currencies) at any time.
|
|
21.8
|
Change of
business
|
|
The
Company shall procure that no substantial change is made to the general
nature of the business of the Group taken as a whole from that carried on
at the date of this Agreement.
|
|
21.9
|
Ownership of each Additional
Borrower
|
|
The
Company will procure that (for as long as it is a Borrower) each
Additional Borrower remains its
Subsidiary.
|
|
22.1
|
Events of
Default
|
|
Each
of the events set out in Clauses 22.2 (Non-payment) to 22.12 (Repudiation) (inclusive) is an Event of
Default.
|
|
22.2
|
Non-payment
|
|
An
Obligor does not pay on the due date any amount payable by it under the
Finance Documents at the place at and in the currency in which it is
expressed to be payable and (if caused by technical or administrative
error) the default is not remedied within 3 Business Days of notice to the
Company by the Facility Agent advising that the payment has not been
made.
|
|
22.3
|
Breach of other
obligations
|
|
An
Obligor does not comply with any provision of the Finance Documents (other
than those referred to in Clause 22.2 (Non-Payment) and such failure (if capable of
remedy before the expiry of such period) continues unremedied for a period
of 30 days from the date on which the Facility Agent gives notice to the
Company requiring the same to be
remedied.
|
|
22.4
|
Misrepresentation
|
|
A
representation, warranty or statement made or repeated by an Obligor in or
in connection with any Finance Document or in any document delivered by or
on behalf of an Obligor under or in connection with any Finance Document
(other than any representation and warranty made pursuant to Clause
19.12(b) (Professional Market Party
Representations) but
without prejudice to the other rights of the Finance Parties under this
Agreement or under applicable law and without prejudice to any other Event
of Default which may occur by reason of any representation and warranty
set out in Clause 19.12(b) (Professional Market Party
Representations) being
incorrect in any material respect when made or deemed to be made or
repeated otherwise by reason of a Lender not being a PMP) is incorrect in
any material respect when made or deemed to be made or
repeated.
|
|
22.5
|
Cross-acceleration
|
|
(a)
|
Any
Borrowings of any Obligor or Principal Subsidiary are not paid when due or
within any applicable grace period provided in the documentation therefor;
or
|
|
|
(b)
|
any
Borrowings of any Obligor or Principal Subsidiary become prematurely due
and payable as a result of an event of default (howsoever described) under
the document relating to those
Borrowings,
|
|
except
that this Clause 22.5 shall not apply to Borrowings of the Obligors and
the Principal Subsidiaries the principal or settlement amounts of which
are in aggregate euro 50,000,000 or
less.
|
|
22.6
|
Insolvency
|
|
(a)
|
Any
Obligor or Principal Subsidiary is, or is deemed for the purposes of any
law to be, unable to pay its debts or admits inability to pay its debts as
they fall due;
|
|
|
(b)
|
Any
Obligor or Principal Subsidiary suspends making payments on all or any
class of its debts or announces an intention to do so, or a moratorium is
declared in respect of any of its indebtedness; or
|
|
|
(c)
|
Any
Obligor or Principal Subsidiary by reason of financial difficulties,
begins negotiations with one or more of its creditors with a view to the
readjustment or rescheduling of any of its
indebtedness.
|
|
22.7
|
Compositions
etc
|
|
Any
Obligor or Principal Subsidiary enters into any composition, scheme of
arrangement, compromise or arrangement involving such Obligor or Principal
Subsidiary and their respective creditors generally (other than for the
purposes of reconstruction or amalgamation upon terms and within such
period as may previously have been approved in writing by the Majority
Lenders).
|
|
22.8
|
Insolvency
proceedings
|
|
(a)
|
Any
Obligor or Principal Subsidiary is adjudicated bankrupt (failliet) or insolvent
or obtains a suspension of payments (surseance van betaling) or consents
to the filing of a bankruptcy proceeding against it or files a petition
seeking reorganisation under any bankruptcy or other similar law or a
receiver, administrator (bewindvoerder),
liquidator (curator), trustee or assignee in bankruptcy or insolvency of
it or of all or a material part of its assets is appointed;
or
|
|
|
(b)
|
bankruptcy
or insolvency proceedings are instituted against any Obligor or Principal
Subsidiary which are not dismissed or stayed within 30 days of being
instituted; or
|
|
|
(c)
|
an
order is made by any competent court, an effective resolution is passed,
any Obligor or Principal Subsidiary applies, or any other person makes an
uncontested application, for the dissolution, winding-up or liquidation of
any Obligor or Principal Subsidiary (including “ontbinding” and “vereffening”) except
for the purposes of an amalgamation, merger or consolidation of any
Obligor or Principal Subsidiary with any other legal entity upon terms and
within such period as may previously have been approved in writing by the
Majority Lenders.
|
|
22.9
|
Creditors’
process
|
|
Any
attachment, sequestration, distress or execution affects the whole or a
substantial part of the assets of any Obligor or Principal Subsidiary and
is not discharged within 28 days.
|
|
22.10
|
Analogous
proceedings
|
|
There
occurs, in relation to any Obligor or Principal Subsidiary incorporated
outside The Netherlands, any event anywhere which, in the opinion of the
Majority Lenders, appears to correspond with any of those mentioned in
Clauses 22.6 (Insolvency) to 22.9
(Creditors’ process)
(inclusive).
|
|
22.11
|
Unlawfulness
|
|
It
is or becomes unlawful for any Obligor to perform any of its obligations
under the Finance Documents.
|
|
22.12
|
Repudiation
|
|
Any
Obligor repudiates a Finance
Document.
|
|
22.13
|
Acceleration
|
|
On
and at any time after the occurrence of an Event of Default which is
continuing the Facility Agent may, and shall if so directed by the
Majority Lenders, by notice to the
Company:
|
|
(a)
|
cancel
the Total Commitments whereupon they shall immediately be
cancelled;
|
|
|
(b)
|
declare
that all or part of the Advances, together with accrued interest, and all
other amounts accrued under the Finance Documents be immediately due and
payable, whereupon they shall become immediately due and
payable;
|
|
|
(c)
|
declare
that all or part of the Advances be payable on demand, whereupon they
shall immediately become payable on demand by the Facility Agent on the
instructions of the Majority Lenders; and/or
|
|
|
(d)
|
declare
all or part of an Advance payable on the expiry of a term specified by the
Agent (on the instructions of the Majority Lenders) converted into the
Base Currency (with no right to redenominate) at the Agent’s Spot Rate of
Exchange on the date of such
declaration.
|
|
23.1
|
Assignments and transfers by
the Lenders
|
|
Subject
to this Clause 23, a Lender (the “Existing Lender”)
may:
|
|
(a)
|
assign
all or part of its rights; or
|
|
|
(b)
|
transfer
by novation all or part of its rights and
obligations,
|
|
| to any bank or financial institution (the “New Lender”). |
|
23.2
|
Conditions of assignment or
transfer
|
|
(a)
|
An
assignment or transfer by a Lender which is also a Swingline Lender
of:
|
|
(i)
|
its
Swingline Commitment shall only be made if there is a simultaneous
assignment or transfer of its Commitment in an equal amount;
or
|
||
|
(ii)
|
part
of its Commitment shall only be effective if after such assignment or
transfer such Lender’s Swingline Commitment does not exceed its
Commitment.
|
|
(b)
|
The
consent of the Company is required for an assignment or transfer by a
Lender, unless:
|
|
(i)
|
an
Event of Default under Clause 22.2 (Non-Payment) or Clauses
22.6 (Insolvency) to 22.10 (Analogous Proceedings) has occurred
and is continuing; or
|
||
|
(ii)
|
the
New Lender is:
|
|
(A)
|
another
Lender; or
|
|||
|
(B)
|
an
Affiliate of a Lender and a Verifiable
PMP.
|
|
(c)
|
The
consent of the Company to an assignment or transfer must not be
unreasonably withheld or delayed. The Company will be deemed to have given
its consent 10 Business Days after the Lender has requested it unless
consent is expressly refused by the Company within that
time.
|
|
|
(d)
|
The
consent of the Company to an assignment or transfer must not be withheld
solely because the assignment or transfer may result in an increase to the
Mandatory Cost.
|
|
|
(e)
|
The
Facility Agent is not obliged to execute a Transfer Certificate or
otherwise give effect to an assignment or transfer until it has completed
all know your customer requirements to its satisfaction. The Facility
Agent must promptly notify the Existing Lender and the New Lender if there
are any such requirements.
|
|
|
(f)
|
An
assignment will only be effective on (i) the performance by the Facility
Agent of all necessary know your customer requirements or other similar
checks under all applicable laws and regulations in relation to such
assignment to a New Lender, the completion of which the Facility Agent
shall promptly notify to the Lender and the New Lender; and (ii) receipt
by the Facility Agent and the Company of written confirmation from the New
Lender (in form and substance satisfactory to the Facility Agent) that the
New Lender will assume the same obligations to the other Finance Parties
and the Obligors as it would have been under if it was an Original
Lender.
|
|
|
(g)
|
A
transfer will only be effective if it is carried out in accordance with
the procedure set out in Clause 23.5 (Procedure for
transfer).
|
|
|
(h)
|
If:
|
|
(i)
|
a
Lender assigns or transfers any of its rights or obligations under the
Finance Documents or changes its Facility Office; and
|
||
|
(ii)
|
as
a result of circumstances existing at the date the assignment, transfer or
change occurs, an Obligor would be obliged to make a payment to the New
Lender or Lender acting through its new Facility Office under Clause 13
(Tax gross-up) or
Clause 14 (Increased
costs),
|
|
then
the New Lender or Lender acting through its new Facility Office is only
entitled to receive payment under those Clauses to the same extent as the
Existing Lender or Lender acting through its previous Facility Office
would have been if the assignment, transfer or change had not
occurred.
|
|
(i)
|
For
so long as it is a requirement of Dutch law that each Lender is a PMP any
proposed New Lender shall provide the Dutch Borrowers, through the
Facility Agent, with information in respect of itself with a view to
enabling the Dutch Borrowers to verify its PMP status at least 10 Business
Days prior to the proposed Transfer Date in relation to any assignment or
transfer pursuant to which it would become a New Lender
hereunder.
|
|
23.3
|
Assignment or transfer
fee
|
|
The
New Lender shall, on the date upon which an assignment or transfer takes
effect, pay to the Facility Agent (for its own account) a fee of euro
2,000.
|
|
23.4
|
Limitation of responsibility of
Existing Lenders
|
|
(a)
|
Unless
expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender
for:
|
|
(i)
|
the
legality, validity, effectiveness, adequacy or enforceability of the
Finance Documents or any other documents;
|
||
|
(ii)
|
the
financial condition of any 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-transfer from a New Lender of any of the rights and obligations
assigned or transferred under this Clause 23; or
|
||
|
(ii)
|
support
any losses directly or indirectly incurred by the New Lender by reason of
the non-performance by each Obligor of its obligations under the Finance
Documents or otherwise.
|
|
23.5
|
Procedure for
transfer
|
|
(a)
|
Subject
to the conditions set out in Clause 23.2 (Conditions of assignment or
transfer) a transfer is effected in accordance with paragraph (b)
below when the Facility Agent executes an otherwise duly completed
Transfer Certificate delivered to it by the Existing Lender and the New
Lender. The Facility Agent shall, 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, execute that Transfer
Certificate.
|
|
|
(b)
|
On
the Transfer Date:
|
|
(i)
|
to
the extent that in the Transfer Certificate the Existing Lender seeks to
transfer by novation its rights and obligations under the Finance
Documents each of the Obligors and the Existing Lender shall be released
from further obligations towards one another under the Finance Documents
and their respective rights against one another shall be cancelled (being
the “Discharged Rights and Obligations”);
|
||
|
(ii)
|
each
of the Obligors and the New Lender shall assume obligations towards one
another and/or acquire rights against one another which differ from the
Discharged Rights and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of that Obligor and
the Existing Lender;
|
||
|
(iii)
|
the
Agents, the Mandated Lead Arrangers, the New Lender and other Lenders
shall acquire the same rights and assume the same obligations between
themselves as they would have acquired and assumed had the New Lender been
an Original Lender with the rights and/or obligations acquired or assumed
by it as a result of the transfer and to that extent each Agent, the
Mandated Lead Arrangers and the Existing Lender shall each be released
from further obligations to each other under this Agreement;
and
|
|
(iv)
|
the
New Lender shall become a Party as a
“Lender”.
|
|
23.6
|
Confidentiality
|
|
Each
Finance Party hereby severally undertakes to each Obligor that it will
keep confidential and that it will not make use of for any purposes
(otherwise than for the purposes of the Finance Documents), any of the
Finance Documents or other documents relating to this Agreement and all of
the information acquired by such Finance Party under or in connection with
any Finance Document, other than any such document or information which
has become generally available to the public otherwise than by disclosure
by any Finance Party, provided that each
Finance Party shall be entitled to make disclosure of the
same:
|
|
(a)
|
to
its auditors, accountants, legal counsel and tax advisers, to any other
professional advisers appointed to act in connection with the Finance
Documents or to its Affiliates provided that such
information is disclosed only to such person if and to the extent
necessary for his activities and each such person will be informed of the
confidential nature of the information and the provisions of this
Agreement;
|
|
|
(b)
|
(whether
or not the relevant assignment, transfer, substitution, sub-participation
or other arrangement is made) to any proposed assignee, transferee or
substitute of, or proposed party to any proposed sub-participation (or
party to any actual sub-participation) or other arrangement with, any
Lender permitted pursuant to this Agreement, provided that before any
such disclosure (except with respect to the disclosure of this Clause
24.6 (Confidentiality), such assignee, transferee,
substitute or other party expressly undertakes to the Facility Agent and
the Company in writing to be bound by this Clause 23.6
(Confidentiality) irrespective of whether such
assignment, transfer, substitution or other arrangement shall
proceed;
|
|
|
(c)
|
to
any other third party where the Company has previously agreed in writing
that disclosure may be made to that third party;
|
|
|
(d)
|
to
any banking or other regulatory or examining authorities (whether
governmental or otherwise) where such disclosure is formally requested by
them and with whose requests that Finance Party has to comply (or with
whose requests banks in the relevant jurisdiction are accustomed to
complying);
|
|
|
(e)
|
pursuant
to subpoena or other legal process, or in connection with any action, suit
or proceeding relating to any of the Finance Documents;
|
|
|
(f)
|
pursuant
to any law or regulation having the force of law; and
|
|
|
(g)
|
to
any Group Company.
|
|
24.1
|
Assignments and transfer by
Obligors
|
|
No
Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance
Documents.
|
|
24.2
|
Additional
Borrowers
|
|
(a)
|
Subject
to compliance with the provisions of paragraphs (d) and (e) of Clause
20.5 (Know your customer
requirements) the Company
may request that any of its Subsidiaries becomes an Additional Borrower.
That Subsidiary shall become an Additional Borrower
if:
|
|
(i)
|
it
is incorporated in The Netherlands or, in the case of a Subsidiary
incorporated outside of The Netherlands, all the Lenders approve the
addition of that Subsidiary;
|
||
|
(ii)
|
the
Company delivers to the Facility 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 Subsidiary becoming an Additional Borrower; and
|
||
|
(iv)
|
the
Facility Agent has received all of the documents and other evidence listed
in Part II of Schedule 2 (Conditions Precedent) in relation to that Additional
Borrower, each in form and substance satisfactory to the Facility
Agent.
|
|
(b)
|
If
the accession of an Additional Borrower requires any Finance Party to
carry out know your customer requirements in circumstances where the
necessary information is not already available to it, the Company must
promptly on request by any Finance Party supply to that Finance Party any
documentation or other evidence which is reasonably requested by that
Finance Party (whether for itself, on behalf of any Finance Party or any
prospective new Lender) to enable a Finance Party or prospective new
Lender to carry out and be satisfied with the results of all applicable
know your customer requirements.
|
|
|
(c)
|
The
Facility 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 II of Schedule
2 (Conditions Precedent).
|
|
24.3
|
Resignation of a
Borrower
|
|
The
Company may request that a Borrower (other than the Company) in respect of
which no Advance is outstanding hereunder (including any other amounts in
relation thereto) ceases to be a Borrower by entering into a supplemental
agreement to this Agreement in such form as the Facility Agent may
reasonably require which shall discharge that Borrower’s obligations
hereunder.
|
|
24.4
|
Additional
Guarantors
|
|
(a)
|
Subject
to compliance with the provisions of paragraphs (d) and (e) of Clause
20.5 (Know your customer requirements) the
Company may request that any of its Subsidiaries becomes an Additional
Guarantor. That Subsidiary shall become an Additional Guarantor
if:
|
|
(i)
|
the
Company delivers to the Facility Agent a duly completed and executed
Accession Letter; and
|
||
|
(ii)
|
the
Facility Agent has received all of the documents and other evidence listed
in Part II of Schedule 2 (Conditions Precedent) in relation to that Additional
Guarantor, each in form and substance satisfactory to the Facility
Agent.
|
|
(b)
|
If
the accession of an Additional Guarantor requires any Finance Party to
carry out know your customer requirements in circumstances where the
necessary information is not already available to it, the Company must
promptly on request by any Finance Party supply to that Finance Party any
documentation or other evidence which is reasonably requested by that
Finance Party (whether for itself, on behalf of any Finance Party or any
prospective new Lender) to enable a Finance Party or prospective new
Lender to carry out and be satisfied with the results of all applicable
know your customer requirements.
|
|
|
(c)
|
The
Facility 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 II of Schedule
2 (Conditions Precedent)
|
|
24.5
|
Repetition of
Representations
|
|
Delivery
of an Accession Letter constitutes confirmation by the relevant Subsidiary
that the representations to be made by that Subsidiary in accordance with
Clause 19.11 (Times for making representations and
warranties)
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.
|
|
25.1
|
Appointment of the Facility
Agent
|
|
(a)
|
Each
of the Mandated Lead Arrangers and the Lenders appoints each Agent to act
as its agent under and in connection with the Finance
Documents.
|
|
|
(b)
|
Each
of the Mandated Lead Arrangers and the Lenders authorises each Agent to
exercise the rights, powers, authorities and discretions specifically
given to such Agent under or in connection with the Finance Documents
together with any other incidental rights, powers, authorities and
discretions.
|
|
|
(c)
|
Unless
the Company agrees otherwise, the Euro Swingline Agent shall act out of an
office in the European Union and the Dollar Swingline Agent shall act out
of an office in a member state of the United States of
America.
|
|
25.2
|
Duties of the
Agents
|
|
(a)
|
Each
Agent shall promptly forward to a Party the original or a copy of any
document which is delivered to that Agent for that Party by any other
Party.
|
|
|
(b)
|
If
the Facility Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the
Lenders.
|
|
|
(c)
|
The
Facility Agent shall promptly notify the Lenders of any Default arising
under Clause 22.2 (Non-payment).
|
|
|
(d)
|
Each
Agent’s duties under the Finance Documents are solely mechanical and
administrative in nature.
|
|
25.3
|
Role of the Mandated Lead
Arrangers
|
|
Except
as specifically provided in the Finance Documents, the Mandated Lead
Arrangers have no obligations of any kind to any other Party under or in
connection with any Finance
Document.
|
|
25.4
|
No fiduciary
duties
|
|
(a)
|
Nothing
in this Agreement constitutes an Agent or a Mandated Lead Arranger as a
trustee or fiduciary of any other person.
|
|
|
(b)
|
No
Agent nor any Mandated Lead Arranger 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.
|
|
|
25.5
|
Business with the
Group
|
|
Each
Agent and each Mandated Lead Arranger may accept deposits from, lend money
to and generally engage in any kind of banking or other business with any
Group Company.
|
|
25.6
|
Rights and discretions of the
Agents
|
|
(a)
|
Each
Agent may rely on:
|
|
(i)
|
any
representation, notice or document believed by it to be genuine, correct
and appropriately authorised; and
|
||
|
(ii)
|
any
statement made by a director, authorised signatory or employee of any
person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to
verify.
|
|
(b)
|
Each
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 22.2 (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 is made on behalf of and with the
consent and knowledge of all the
Obligors.
|
|
(c)
|
Each
Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other
experts.
|
|
|
(d)
|
Each
Agent may act in relation to the Finance Documents through its personnel
and agents.
|
|
25.7
|
Majority Lenders’
instructions
|
|
(a)
|
Unless
a contrary indication appears in a Finance Document, each Agent shall (a)
act in accordance with any instructions given to it by the Majority
Lenders (or, if so instructed by the Majority Lenders, refrain from acting
or exercising any right, power, authority or discretion vested in it as
Agent) and (b) not be liable for any act (or omission) if it acts (or
refrains from taking any action) in accordance with such an instruction of
the Majority Lenders.
|
|
|
(b)
|
Unless
a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders will be binding on all the Finance
Parties.
|
|
|
(c)
|
Each
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) each Agent may act (or refrain from taking
action) as it considers to be in the best interest of the
Lenders.
|
|
|
(e)
|
No
Agent is authorised to act on behalf of a Lender (without first obtaining
that Lender’s prior written consent) in any legal or arbitration
proceedings relating to any Finance
Document.
|
|
25.8
|
Responsibility for
documentation
|
|
No
Agent nor any Mandated Lead
Arranger:
|
|
(a)
|
is
responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by an Agent, a Mandated
Lead Arranger, an Obligor or any other person given in or in connection
with any Finance Document or any information delivered to an Agent or any
Mandated Lead Arranger; or
|
|
|
(b)
|
is
responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement, arrangement
or document entered into, made or executed in anticipation of or in
connection with any Finance
Document.
|
|
25.9
|
Exclusion of
liability
|
|
(a)
|
Without
limiting paragraph (b) below, no Agent will be liable for any action taken
by it under or in connection with any Finance Document, unless directly
caused by its gross negligence or wilful misconduct.
|
|
|
(b)
|
No
Party may take any proceedings against any officer, employee or agent of
an Agent in respect of any claim it might have against such Agent or in
respect of any act or omission of any kind by that officer, employee or
agent in relation to any Finance Document and any officer, employee or
agent of such Agent may rely on this Clause.
|
|
|
(c)
|
No
Agent will 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 such Agent if that 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 such
Agent for that purpose.
|
|
|
(d)
|
Nothing
in this Agreement will oblige any Agent to satisfy any know your customer
requirement in relation to the identity of any person on behalf of any
Finance Party.
|
|
|
(e)
|
Each
Finance Party confirms to each Agent that it is solely responsible for any
know your customer requirements it is required to carry out and that it
may not rely on any statement in relation to those requirements made by
any other person.
|
|
25.10
|
Lenders’ indemnity to the
Agents
|
|
The
Lenders shall (in proportion to their Commitments or, if the Total
Commitments are then zero, to their Commitments immediately prior to their
reduction to zero) severally indemnify each Agent, within three Business
Days of demand, against any cost, loss or liability incurred by such Agent
(otherwise than by reason of such Agent’s negligence or wilful misconduct)
in acting as Agent under the Finance Documents (unless such Agent has been
reimbursed by an Obligor pursuant to a Finance
Document).
|
|
25.11
|
Resignation of an
Agent
|
|
(a)
|
An
Agent may resign and appoint one of its Affiliates as successor by giving
notice to the Lenders and the Company provided that any
successor to the Euro Swingline Agent shall act out of an office in a
member state of the European Union whose currency is the euro or London,
England and that any successor to the Dollar Swingline Agent shall act out
of an office in New York.
|
|
|
(b)
|
Alternatively
an Agent may resign by giving notice to the Lenders and the Company, in
which case the Majority Lenders (after consultation with the Company) may
appoint a successor Agent.
|
|
|
(c)
|
If
the Majority Lenders have not appointed a successor Agent in accordance
with paragraph (b) above within 30 days after notice of resignation was
given, the resigning Agent may appoint a successor
Agent.
|
|
|
(d)
|
A
successor Agent may only be appointed with the approval of the Company
(such approval not to be unreasonably withheld or
delayed).
|
|
|
(e)
|
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.
|
|
|
(f)
|
Such
Agent’s resignation notice shall only take effect upon the appointment of
a successor.
|
|
|
(g)
|
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 25. 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.
|
|
|
(h)
|
After
consultation with the Company, the Majority Lenders may, by notice to an
Agent, require it to resign in accordance with paragraph (b) above. In
this event, such Agent shall resign in accordance with paragraph (b)
above.
|
|
25.12
|
Confidentiality
|
|
(a)
|
In
acting as agent for the Finance Parties, each 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 an Agent, it
may be treated as confidential to that division or department and such
Agent shall not be deemed to have notice of it.
|
|
|
(c)
|
Notwithstanding
any other provision of any Finance Document to the contrary, no Agent nor
any Mandated Lead Arranger is obliged to disclose to any other person (i)
any confidential information or (ii) any other information if the
disclosure would or might in its reasonable opinion constitute a breach of
any law or a breach of a fiduciary
duty.
|
|
25.13
|
Relationship with the
Lenders
|
|
(a)
|
Each
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 5 Business Days prior notice from that Lender to the
contrary in accordance with the terms of this
Agreement.
|
|
|
(b)
|
Each
Lender shall supply each Agent with any information required by such Agent
in order to calculate the Mandatory Cost in accordance with Schedule
6 (Mandatory Cost Formulae).
|
|
25.14
|
Credit appraisal by the
Lenders
|
|
Without
affecting the responsibility of any Obligor for information supplied by it
or on its behalf in connection with any Finance Document, each Lender
confirms to each Agent and each Mandated Lead Arranger 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 Group
Company;
|
|
|
(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 any information provided by an
Agent, any other 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.
|
|
25.15
|
Reference
Banks
|
|
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 Facility Agent shall
with the consent of the Company appoint another Lender or an Affiliate of
a Lender to replace that Reference
Bank.
|
|
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.
|
|
27.1
|
Payments to
Lenders
|
|
If
a Lender (a “Recovering Lender”) receives or recovers any
amount from a Borrower other than in accordance with Clause 28 (Payment mechanics) and applies that amount to a
payment due under the Finance Documents
then:
|
|
(a)
|
the
Recovering Lender shall, within 3 Business Days, notify details of the
receipt or recovery, to the Facility Agent;
|
|
|
(b)
|
the
Facility Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Lender would have been paid had the
receipt or recovery been received or made by the Facility Agent and
distributed in accordance with Clause 28 (Payment mechanics), without taking account of any
Tax which would be imposed on the Facility Agent in relation to the
receipt, recovery or distribution; and
|
|
|
(c)
|
the
Recovering Lender shall, within three Business Days of demand by the
Facility Agent, pay to the Facility Agent an amount (the
“Sharing Payment”) equal to such receipt or
recovery less any amount which the Facility Agent determines may be
retained by the Recovering Lender as its share of any payment to be made,
in accordance with Clause 28.5 (Partial payments).
|
|
27.2
|
Redistribution of
payments
|
|
The
Facility Agent shall treat the Sharing Payment as if it had been paid by a
Borrower and distribute it between the Finance Parties (other than the
Recovering Lender) in accordance with Clause 28.5
(Partial payments).
|
|
27.3
|
Recovering Lender’s
rights
|
|
(a)
|
On
a distribution by the Facility Agent under Clause 27.2
(Redistribution of payments), the Recovering Lender will be
subrogated to the rights of the Finance Parties which have shared in the
redistribution.
|
|
|
(b)
|
If
and to the extent that the Recovering Lender is not able to rely on its
rights under paragraph (a) above, the relevant Borrower shall be liable to
the Recovering Lender for a debt equal to the Sharing Payment which is
immediately due and
payable.
|
|
27.4
|
Reversal of
redistribution
|
|
If
any part of the Sharing Payment received or recovered by a Recovering
Lender becomes repayable and is repaid by that Recovering Lender,
then:
|
|
(a)
|
each
Lender which has received a share of the relevant Sharing Payment pursuant
to Clause 27.2 (Redistribution of payments) shall, upon request of the
Facility Agent, pay to the Facility Agent for the account of that
Recovering Lender an amount equal to its share of the Sharing Payment
(together with an amount as is necessary to reimburse that Recovering
Lender for its proportion of any interest on the Sharing Payment which
that Recovering Lender is required to pay); and
|
|
|
(b)
|
that
Recovering Lender’s rights of subrogation in respect of any reimbursement
shall be cancelled and the relevant Borrower will be liable to the
reimbursing Lender for the amount so
reimbursed.
|
|
27.5
|
Exceptions
|
|
(a)
|
This
Clause 27 shall not apply to the extent that the Recovering Lender would
not, after making any payment pursuant to this Clause, have a valid and
enforceable claim against the relevant Obligor.
|
|
|
(b)
|
A
Recovering Lender is not obliged to share with any other Lender any amount
which the Recovering Lender has received or recovered as a result of
taking legal or arbitration proceedings,
if:
|
|
(i)
|
it
notified the other Lenders of the legal or arbitration proceedings;
and
|
||
|
(ii)
|
the
other Lenders had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably
practicable having received notice or did not take separate legal or
arbitration proceedings.
|
|
28.1
|
Payments to the
Agents
|
|
(a)
|
For
the purpose of this Clause 28 a reference to the “Relevant Agent”
means:
|
|
(i)
|
in
relation to payments under the Swingline Facility, (in relation to Euro
Swingline Advances) the Euro Swingline Agent and (in relation to Dollar
Swingline Advances) the Dollar Swingline Agent; and
|
||
|
(ii)
|
for
all other payments, the Facility
Agent.
|
|
(b)
|
On
each date on which an Obligor or a Lender is required to make a payment
under a Finance Document, that Obligor or, as the case may be, such Lender
shall make the same available to the Relevant 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 Relevant Agent as being customary
at the time for settlement of transactions in the relevant currency in the
place of payment.
|
|
|
(c)
|
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 Relevant Agent specifies.
|
|
28.2
|
Distributions by the
Agents
|
|
Each payment received by an
Agent under the Finance Documents for another Party shall, subject to
Clause 28.3 (Distributions to an Obligor) and Clause 28.4
(Clawback) be made available by such 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 such Agent by not less than 5 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).
|
|
28.3
|
Distributions to an
Obligor
|
|
An Agent may (with the
consent of the relevant Obligor or in accordance with Clause 29
(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.
|
|
28.4
|
Clawback
|
|
(a)
|
Where
a sum is to be paid to an Agent under the Finance Documents for another
Party, such 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 absolute satisfaction that it has actually
received that sum.
|
|
|
(b)
|
If
an Agent pays an amount to another Party and it proves to be the case that
such 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
such Agent shall on demand refund the same to such Agent together with
interest on that amount from the date of payment to the date of receipt by
such Agent, calculated by such Agent to reflect its cost of
funds..
|
|
28.5
|
Partial
payments
|
|
(a)
|
If
an Agent receives a payment that is insufficient to discharge all the
amounts then due and payable by any Obligor under the Finance Documents,
such Agent shall apply that payment towards the obligations of the
relevant 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 Agents and the Mandated Lead
Arrangers under the Finance Documents;
|
||
|
(ii)
|
secondly, in or towards payment pro rata
of any accrued interest or commission due but unpaid under this
Agreement;
|
||
|
(iii)
|
thirdly, in or towards payment pro rata
of any principal due but unpaid under this Agreement;
and
|
||
|
(iv)
|
fourthly, in or towards payment pro rata
of any other sum due but unpaid under the Finance
Documents.
|
|
(b)
|
Such
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.
|
|
28.6
|
No set-off by
Obligor
|
|
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.
|
|
28.7
|
Business
Days
|
|
(a)
|
Any
payment which is due to be made on a day that is not a Business Day shall
be made on the next Business Day in the same calendar month (if there is
one) or the preceding Business Day (if there is not).
|
|
|
(b)
|
During
any extension of the due date for payment of any principal or an Unpaid
Sum under this Agreement interest is payable on the principal at the rate
payable on the original due date.
|
|
28.8
|
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 an Advance or Unpaid Sum or a part of an Advance or Unpaid
Sum shall be made in the currency in which that Advance 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.
|
|
28.9
|
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 Facility 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 Facility Agent (acting
reasonably).
|
|
(b)
|
If
a change in any currency of a country occurs, this Agreement will, to the
extent the Facility 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.
|
|
29.
|
|
Following
the occurrence of an Event of Default a Finance Party may set off any
matured obligation due from an Obligor under the Finance Documents (to the
extent beneficially owned by that Finance Party) against any matured
obligation owed by that Finance Party to that Obligor, regardless of the
place of payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the Finance Party may convert
either obligation at a market rate of exchange in its usual course of
business for the purpose of the
set-off.
|
|
30.
|
|
30.1
|
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 or, except in the case of a Utilisation Request, to the extent
that the relevant Party has specified such address pursuant to Clause
30.2 (Addresses) by e-mail, and in the case of
the notification of rates of interest by the Facility Agent pursuant to
Clause 9.4 (Notification of Rates of Interest) and in the case of the delivery
of any document by the Facility Agent pursuant to paragraph (a) of Clause
25.2 (Duties of the
Facility Agent), the Facility Agent may refer the
relevant Party or Parties (by fax or letter (or if so specified) e-mail)
to a web site and to the location of the relevant information on such web
site in discharge or such notification or delivery
obligation.
|
|
30.2
|
Addresses
|
|
(a)
|
The
address and fax number, and (if so specified) e-mail address, and, where
appropriate, web site (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:
|
|
(i)
|
in
the case of the Company, that identified in Clause
30.2(b);
|
||
|
(ii)
|
in
the case of each Lender, that notified in writing to the Facility Agent on
or prior to the date on which it becomes a Party; and
|
||
|
(iii)
|
in
the case of each Agent, that identified in Clause
30.2(b),
|
|
or
any substitute address, fax number, e-mail address, web site or department
or officer as the Party may notify to the Facility Agent (or the Facility
Agent may notify to the other Parties, if a change is made by the Facility
Agent) by not less than 5 Business Days’ prior written
notice.
|
|
(b)
|
For
the purposes of Clause 30.2(a), the relevant details are as
follows:
|
|
(i)
|
the
Company:
|
|
Koninklijke
KPN N.V.
Xxxxxxxxx
00
0000
XX’x-Xxxxxxxxxx
Xxx
Xxxxxxxxxxx
|
|||
|
Attn:
Tel:
Fax:
|
X X
Boogaerdt
x00
00 000 0000
+
00 00 000 0000
|
||
|
(ii)
|
the
Facility Agent:
|
|
ABN
AMRO Bank N.V.
000
Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
|
|
For
Credit matters:
|
|
Attn:
Tel:
Fax:
e-mail:
|
Xxxxxx
Vollenhoven
+
44 20 7678 5228
+
44 20 7678 8727
xxxxxx.xxxxxxxxxxx@xx.xxxxxxx.xxx
|
|
For
Administrative matters:
|
|
Attn:
Tel:
Fax:
e-mail:
|
Xxxx
Xxxxxx
+
44 20 7678 5054
+
44 20 7678 6021
xxxx.xxxxxx@xx.xxxxxxx.xxx
|
|
(iii)
|
the
Euro Swingline Agent:
|
|
ABN
AMRO Bank N.V.
000
Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
|
|||
|
Attn:
Tel:
Fax:
email:
|
Xxxx
Xxxxxx
+
44 20 7678 5054
+
44 20 7678 6021
xxxx.xxxxxx@xx.xxxxxxx.xxx
|
||
|
(iv)
|
the
Dollar Swingline Agent:
|
|
ABN
AMRO Bank N.V.
Commercial
Lendings Services
000
Xxxx Xxxxxxx Xx., Xxxxx 0000
Xxxxxxx,
XX 00000
U.S.A.
|
|||
|
Attn:
Tel:
Fax:
email:
|
Xxxxx
Xxxxxxx / Xxxxx Xxxxx
x0
000 000-0000
x0
000 000-0000
Xxxxx.xxxxxxx@xx.xxxxxxx.xxx
|
||
|
30.3
|
Delivery
|
|
(a)
|
Any
communication or document made or delivered by one person to another under
or in connection with the Finance Documents will only be
effective:
|
|
(i)
|
if
by way of fax or e-mail, when received in legible form;
or
|
||
|
(ii)
|
if
by way of letter, when it has been left at the relevant address or 5
Business Days after being deposited in the post postage prepaid in an
envelope addressed to it at that address; or
|
||
|
(iii)
|
where
reference in such communication is to a web site, when the delivery of the
letter, fax or, as the case may be e-mail referring the addressee to such
web site is effective;
|
|
and,
if a particular department or officer is specified as part of its address
details provided under Clause 30.2 (Addresses), if addressed
to that department or officer.
|
|
(b)
|
Any
communication or document to be made or delivered to an Agent will be
effective only when actually received by such Agent and then only if it is
expressly marked for the attention of the department or officer identified
in Clause 30.2 (or any substitute department or officer as that Agent
shall specify for this purpose).
|
|
|
(c)
|
All
notices from or to an Obligor shall be sent through the Facility Agent or,
as the case may be, the relevant Swingline Agent.
|
|
|
(d)
|
Any
communication or document made or delivered to the Company in accordance
with this Clause will be deemed to have been made or delivered to each of
the Obligors.
|
|
|
(e)
|
Any
document to be delivered pursuant to Clause 4.1 (Initial conditions precedent) shall
be delivered in the original form or in the form of a certified copy of
the original form and any Utilisation Request shall be confirmed by
letter, although failure to do so shall not invalidate the original
request.
|
|
30.4
|
Notification of address and fax
number
|
|
Promptly
upon receipt of notification of an address, fax number, e-mail or change
of address, e-mail or fax number pursuant to Clause 30.2
(Addresses) or changing its own address or
fax number, the Facility Agent shall notify the other
Parties.
|
|
30.5
|
English
language
|
|
(a)
|
Any
notice given under or in connection with any Finance Document must be in
English.
|
|
|
(b)
|
All
other documents provided under or in connection with any Finance Document
must be:
|
|
(i)
|
in
English; or
|
||
|
(ii)
|
if
not in English, and if so required by the Facility Agent, accompanied by a
certified English translation and, in this case, the English translation
will prevail unless the document is a constitutional, statutory or other
official document.
|
|
31.
|
|
31.1
|
Accounts
|
|
In
any litigation or arbitration proceedings arising out of or in connection
with a Finance Document, the entries made in the accounts maintained by a
Finance Party are prima
facie evidence of the matters to which they
relate.
|
|
31.2
|
Certificates and
Determinations
|
|
Any
certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error, prima facie evidence of
the matters to which it relates.
|
|
31.3
|
Day count
convention
|
|
Any
interest, commission or fee accruing under a Finance Document will accrue
from day to day and is calculated on the basis of the actual number of
days elapsed and a year of 360 days or, in any case where the practice in
the Relevant Interbank Market differs, in accordance with that market
practice.
|
|
If,
at any time, any provision of the Finance Documents is or becomes illegal,
invalid or unenforceable in any respect under any law of any jurisdiction,
neither the legality, validity or enforceability of the remaining
provisions nor the legality, validity or enforceability of such provision
under the law of any other jurisdiction will in any way be affected or
impaired.
|
|
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.
|
|
34.1
|
Required
consents
|
|
(a)
|
Subject
to Clause 34.2 (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
Facility Agent may effect (and is hereby so authorised by each Finance
Party), on behalf of any Finance Party, any amendment or waiver permitted
by this Clause.
|
|
34.2
|
Exceptions
|
|
(a)
|
An
amendment or waiver that has the effect of changing or which relates
to:
|
|
(i)
|
the
definition of “Majority Lenders” in Clause 1.1 (Definitions);
|
||
|
(ii)
|
an
extension to the date of payment of any amount under the Finance
Documents;
|
||
|
(iii)
|
a
reduction in the Margin or the amount of any payment of principal,
interest, fees or commission payable;
|
||
|
(iv)
|
an
increase in or extension in duration of a Commitment;
|
||
|
(v)
|
a change
to the Borrowers or Guarantors other than in accordance with Clause
24 (Changes to Obligors);
|
||
|
(vi)
|
any
provision which expressly requires the consent of all the Lenders;
or
|
||
|
(vii)
|
Clause
2.2 (Lenders’ rights and obligations), Clause 18
(Guarantee and Indemnity), Clause 23
(Changes to the Lenders), Clause 27
(Sharing Among the Lenders) or this Clause
34,
|
|
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 any
Agent or Mandated Lead Arranger may not be effected without the consent of
such Agent or Mandated Lead
Arranger.
|
|
35.
|
|
Each
Finance Document may be executed in any number of counterparts, and this
has the same effect as if the signatures on the counterparts were on a
single copy of the Finance
Document.
|
|
36.
|
|
This
Agreement is governed by English
law.
|
|
37.
|
|
(a)
|
The
courts of England have non-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).
|
|
|
(b)
|
Service
of Process
|
|
|
Without
prejudice to any other mode of service allowed under any relevant law,
each Obligor (other than an Obligor incorporated in England and
Wales):
|
|
(i)
|
irrevocably
appoints Fleetside Legal Representative Services Limited (whose registered
office at the date of this Agreement is 9 Xxxxxxxxx, Xxxxxx, XX0X 0XX) as
its agent for service of process in relation to any proceedings before the
English courts in connection with any Finance Document;
and
|
||
|
(ii)
|
agrees
that failure by a process agent to notify the relevant Obligor of the
process will not invalidate the proceedings
concerned.
|
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
The
Lenders
The
Original Lenders
|
Name
|
Commitment
|
|
(euro)
|
|
|
ABN
AMRO Bank N.V.
|
125,000,000
|
|
Bank
of America, N.A.
|
125,000,000
|
|
BNP
Paribas
|
125,000,000
|
|
Citibank
International PLC, London
|
125,000,000
|
|
Coöperatieve
Centrale Raiffeisen-Boerenleenbank b.a.
|
125,000,000
|
|
Credit
Suisse
|
125,000,000
|
|
Deutsche
Bank Luxembourg S.A.
|
125,000,000
|
|
Fortis
Bank (Nederland) N.V.
|
125,000,000
|
|
HVB
Banque Luxembourg Société Anonyme
|
125,000,000
|
|
ING
Bank N.V.
|
125,000,000
|
|
JPMorgan
Chase Bank, N.A.
|
125,000,000
|
|
The
Royal Bank of Scotland plc
|
125,000,000
|
|
Total
|
euro
1,500,000,000
|
The
Swingline Lenders
|
Name
|
Swingline
Commitment (euro)
|
|
ABN
AMRO Bank N.V.
|
41,666,666.67
|
|
Bank
of America, N.A.
|
41,666,666.67
|
|
BNP
Paribas
|
41,666,666.67
|
|
Citibank
International PLC, (and for the purposes of Dollar Swingline
Advances only, Citibank, N.A., New York)
|
41,666,666.67
|
|
Coöperatieve
Centrale Raiffeisen-Boerenleenbank b.a.
|
41,666,666.67
|
|
Credit
Suisse (and for the purposes of Dollar Swingline Advances only,
Credit Suisse acting through its Cayman Islands branch)
|
41,666,666.67
|
|
Deutsche
Bank Luxembourg S.A.
|
41,666,666.67
|
|
Fortis
Bank (Nederland) N.V. (and for the puposes of Dollar Swingline
Advances only, Fortis Capital Corp.)
|
41,666,666.67
|
|
HVB
Banque Luxembourg Société Anonyme
|
41,666,666.66
|
|
ING
Bank N.V. (and for the purposes of Dollar Swingline Advances
only, ING Bank N.V., Dublin branch)
|
41,666,666.66
|
|
JPMorgan
Chase Bank, N.A. (and for the purposes of Dollar Swingline
Advances only, JPMorgan Chase Bank, N.A., New
York,
International Facility (IBF))
|
41,666,666.66
|
|
The
Royal Bank of Scotland plc
|
41,666,666.66
|
|
Total
|
euro
500,000,000
|
Conditions
Precedent
Conditions
Precedent
|
1.
|
A
copy of the Articles of Association of the Company.
|
|
2.
|
An
excerpt of the registration of the Company in the Trade Register of the
applicable Chamber of Commerce in the
Netherlands.
|
|
3.
|
(a)
|
A
copy of a resolution of the board of management of the
Company:
|
|
(i)
|
approving
the terms of, and the transactions contemplated by, the Finance Documents
to which it is a party and resolving that it execute the Finance Documents
to which it is a party;
|
||
|
(ii)
|
showing
that the board of management considered the giving of the guarantee in
Clause 18 (Guarantee and indemnity) to be for the commercial
benefit of the Company;
|
||
|
(iii)
|
authorising
a specified person or persons to execute the Finance Documents to which it
is a party on its behalf; and
|
||
|
(iv)
|
authorising
a specified person or persons, on its behalf, to sign and/or despatch all
other documents and notices (including Utilisation Requests) to be signed
and/or despatched by it under or in connection with the Finance
Documents;
|
|
(b)
|
a
specimen of the signature of each person authorised by the resolution
referred to in paragraph (a) above or authorised by a sub power of
attorney (ondervolmacht) acceptable to the Facility
Agent; and
|
|
|
(c)
|
a
certificate of the Company (signed by a director
(statutair directeur) of the Company) certifying that
each copy document specified in Part 1 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.
|
|
4.
|
A
certificate of the Company (signed by a director
(statutair directeur) of the Company) confirming that
borrowing and guaranteeing all or any part of the Total Commitments would
not cause any borrowing, guaranteeing or similar limit binding on any
Obligor to be exceeded.
|
|
5.
|
Legal
opinions of Xxxxxxxx Chance, Dutch and English legal advisers to the
Mandated Lead Arrangers and the Facility Agent, addressed to the Finance
Parties.
|
|
6.
|
Evidence
that the process agent referred to in Clause 37(b)
(Service of process) has accepted its
appointment.
|
|
7.
|
A
copy of any other Authorisation or other document, opinion or assurance
which the Facility Agent considers to be necessary or desirable (if it has
notified the Company accordingly) in connection with the entry into and
performance of the transactions contemplated by any Finance Document or
for the validity and enforceability of any Finance
Document.
|
|
8.
|
Evidence
satisfactory to the Facility Agent that the Original Facility Agreement
has been prepaid and cancelled in full on or prior to the date
hereof.
|
|
9.
|
A
copy of a resolution by the supervisory board of the Company confirming
the approval of the entering into, execution and performance of this
Agreement.
|
Conditions
precedent required to be delivered by an Additional Obligor
|
1.
|
An
Accession Letter, duly executed by the Additional Obligor and the
Company.
|
|
2.
|
A
copy of the constitutional documents of the Additional Obligor and, in the
case of an Additional Obligor incorporated in The Netherlands, an excerpt
of the registration of the Additional Obligor in the Trade Register of the
applicable Chamber of Commerce in The Netherlands.
|
|
3.
|
If
applicable in the relevant jurisdiction, a copy of a resolution of the
board of directors or, as the case may be, board of management of the
Additional Obligor (and of any other corporate bodies that need to
authorise any of the
following):
|
|
(i)
|
approving
the terms of, and the transactions contemplated by, the Accession Letter
and the Finance Documents and resolving that it execute the Accession
Letter;
|
|
|
(ii)
|
authorising
a specified person or persons to execute the Accession Letter on its
behalf; and
|
|
|
(iii)
|
authorising
a specified person or persons, on its behalf, to sign and/or despatch all
other documents and notices (including, in relation to an Additional
Borrower, Utilisation Requests) to be signed and/or despatched by it under
or in connection with the Finance
Documents.
|
|
4.
|
A
certificate of a director of the Additional Obligor confirming that the
borrowing or guaranteeing, as appropriate, of the Total Commitments in
full would not cause any borrowing guaranteeing or similar limit binding
on it to be exceeded.
|
|
5.
|
A
copy of any other authorisation or other document, opinion or assurance
which the Facility Agent (acting reasonably) considers to be necessary in
connection with the entry into and performance of, and the transactions
contemplated by, the Accession Letter or for the validity and
enforceability of any Finance Document.
|
|
6.
|
A
specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
|
|
7.
|
If
available, the latest audited accounts of the Additional
Obligor.
|
|
8.
|
A
certificate of an authorised signatory of the Additional Obligor
certifying that each copy document specified in Part 2 of this Schedule 2
is correct, complete and in full force and effect as at a date no earlier
than the date of the Accession Letter.
|
|
9.
|
A
legal opinion of English legal advisers to the Facility Agent, addressed
to the Finance Parties.
|
|
10.
|
If
the Additional Obligor is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the Mandated
Lead Arrangers and the Facility Agent in the jurisdiction in which the
Additional Obligor is incorporated and addressed to the Finance
Parties.
|
|
11.
|
If
the proposed Additional Obligor is incorporated in a jurisdiction other
than England and Wales, evidence that the process agent specified in
Clause 37(b) (Service of process) has accepted its appointment in
relation to the proposed Additional Obligor.
|
|
12.
|
If
applicable in the case of an Additional Guarantor, a copy of a resolution
signed by all the holders of the issued shares of that Additional
Guarantor, approving the terms of, and the transactions contemplated by,
the Finance Documents to which the Additional Guarantor is a
party.
|
Utilisation
Request
|
From:
|
[Borrower]
|
|
To:
|
[Facility Agent]
|
|
Dated:
|
Dear
Sirs
Koninklijke
KPN N.V. – euro
1,500,000,000 Credit Agreement
dated
16 August 2006 (the “Credit Agreement”)
|
1.
|
Words
and expressions defined in the Credit Agreement have the same meaning when
used herein.
|
|
2.
|
We
wish to borrow an [Advance/Swingline Advance] on the following
terms:
|
|
Proposed
Utilisation Date:
|
[ ]
|
||
|
Currency
of Advance:
|
[
]
|
||
|
Amount:
|
[
]
|
||
|
Interest
Period:
|
[ ]
|
|
3.
|
We
confirm that each condition specified in Clause 4.2
(Further conditions precedent) is
satisfied.
|
|
4.
|
The
proceeds of this Advance should be credited to [account].
|
|
5.
|
This
Utilisation Request is
irrevocable.
|
|
Yours
faithfully
|
|
..........................................................
|
|
authorised
signatory for
|
|
[Koninklijke
KPN N.V.]/[Additional
Borrower]
|
Form
of Transfer Certificate
|
To:
|
[ ]
as Facility Agent
|
|
From:
|
[The Existing Lender] (the “Existing Lender”)
and [The New Lender] (the “New
Lender”)
|
|
Dated:
|
Koninklijke
KPN N.V. – euro
1,500,000,000 Credit Agreement
dated
16 August 2006 (the “Credit Agreement”)
|
1.
|
Words
and expressions defined in the Credit Agreement have the same meaning when
used herein.
|
|
2.
|
We
refer to Clause 23.5 (Procedure for transfer) of the Credit
Agreement:
|
|
(a)
|
The
Existing Lender and the New Lender agree to the Existing Lender and the
New Lender transferring by novation all or part of the Existing Lender’s
Commitment, rights and obligations referred to in the Schedule in
accordance with Clause 23.5 (Procedure for transfer).
|
|
|
(b)
|
The
proposed Transfer Date is
[ ].
|
|
|
(c)
|
The
Facility Office and address, fax number and attention details for notices
of the New Lender for the purposes of Clause 30.2
(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 23.4
(Limitation of responsibility of
Existing Lenders).
|
|
4.
|
The
New Lender confirms on the date on which it becomes a party to the
Agreement that it is a PMP.1
|
|
5.
|
This
Transfer Certificate is governed by English
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 Facility Agent and the Transfer Date is confirmed
as [ ].
|
[Facility
Agent]
|
|
By:
|
Timetables
|
Advances
in euro
|
Advances
in
sterling
and
dollars
|
Advances
in
other
currencies
|
|
|
Delivery
of a duly completed Utilisation Request (Clause 5.1
(Delivery of a Utilisation Request))
|
4.30p.m.
London time, 3 Business Days prior to the proposed Utilisation
Date
|
4.30p.m.
London time, 3 Business Days prior to the proposed Utilisation
Date
|
4.30p.m.
London time, 3 Business Days prior to the proposed Utilisation
Date
|
|
Facility
Agent determines (in relation to a Utilisation) the Base Currency Amount
of the Advance, if required under Clause 5.4 (Lenders’ participation)
|
N/A
|
4.30p.m.
London time, 3 Business Days prior to the proposed Utilisation
Date
|
4.30p.m.
London time, 3 Business Days prior to the proposed Utilisation
Date
|
|
Facility
Agent notifies the Lenders of the Advance in accordance with Clause
5.4 (Lenders’ participation)
|
Promptly
upon receipt from the Borrower
|
Promptly
upon receipt from the Borrower
|
Promptly
upon receipt from the Borrower
|
|
Delivery
of a duly completed Utilisation Request (Clause 5.5
(Delivery of a Utilisation Request for a
Swingline Advance))
|
Prior
to 10.30 a.m. Brussels time on the proposed Utilisation
Date
|
Prior
to 11.00 a.m. New York time on the proposed Utilisation
Date
|
N/A
|
|
Swingline
Agent notifies each Swingline Lender of the amount, currency and the Base
Currency Amount of each Swingline Advance (Clause 5.8(c)
(Swingline Lenders’ Participation))
|
Promptly
upon receipt from the Borrower
|
Promptly
upon receipt from the Borrower
|
N/A
|
|
Facility
Agent receives a notification from a Lender under Clause 6.2
(Unavailability of a currency)
|
N/A
|
N/A
|
Quotation
Day as of 9 a.m. London time
|
|
Facility
Agent gives notice in accordance with Clause 6.2
(Unavailability of a currency)
|
N/A
|
N/A
|
Upon
receipt of notification from the Lenders
|
|
LIBOR
or EURIBOR is fixed
|
Quotation
Day as of 10 a.m. London time in respect of EURIBOR
|
Quotation
Day as of 11 a.m. London time
|
Quotation
Day as of 11 a.m. London
time
|
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 Facility 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 Advance)
calculated by the Facility Agent 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 Facility Agent. This percentage will be certified by that Lender in
its notice to the Facility Agent to be its reasonable determination of the
cost (expressed as a percentage of that Lender’s participation in all
Advances made from that Facility Office) of complying with minimum reserve
requirements of the European Central Bank in respect of Advances 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 Facility Agent as
follows:
|
|
(a)
|
in
relation to a domestic sterling
Advance:
|
|
|
|
AB+C(B–D)+E
x
0.01
|
per
cent. per annum
|
|
|
100 – (A + C)
|
|
(b)
|
in
relation to an Advance in any currency other than domestic
sterling:
|
|
|
|
E × 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 the Facility Agent 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 Advance is an Unpaid Sum, the additional rate
of interest specified in paragraph (a) of Clause 9.3
(Default Interest)) payable for the relevant
Interest Period on the Advance.
|
|
|
C
|
is
the percentage (if any) of Eligible Liabilities which the Facility Agent
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
Facility Agent on interest bearing Special Deposits.
|
|
|
E
|
is
designed to compensate the Facility Agent for amounts payable under the
Fees Rules and is calculated by the Facility Agent as being the average of
the most recent rates of charge supplied by the Reference Banks to the
Facility Agent pursuant to paragraph 7 below and expressed in pounds per
£1,000,000.
|
|
5.
|
For
the purposes of this
Schedule:
|
|
(a)
|
“Eligible Liabilities”
and “Special
Deposits” have the meanings given to them from time to time under
or pursuant to the Bank of England Act 1998 or (as may be appropriate) by
the Bank of England;
|
|
|
(b)
|
“Fees Rules” means the
rules on 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, 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
Facility 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 Facility 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 Facility Agent may reasonably require for such
purpose.
|
|
Each
Lender shall promptly notify the Facility 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 Facility 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 Facility 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
Facility 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
Facility 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 Facility 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
Facility 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 Accession Letter
|
To:
|
[ ]
as Facility Agent
|
|
From:
|
[Subsidiary] and Koninklijke KPN
N.V.
|
|
Dated:
|
Dear
Sirs
Koninklijke
KPN N.V. – euro
1,500,000,000 Facility Agreement
dated
16 August 2006 (the “Facility Agreement”)
|
1.
|
[Subsidiary] agrees to become an
Additional [Borrower/Guarantor] and to be bound by the terms of the
Facility Agreement as an Additional [Borrower/Guarantor] pursuant to
Clause 24 (Changes to the Obligors) of the Facility Agreement. [Subsidiary] is a company duly incorporated
under the laws of [name of relevant jurisdiction].
|
|
2.
|
[Subsidiary’s] administrative details are as
follows:
|
|
Address:
|
|
|
Fax
No:
|
|
|
Attention:
|
|
|
3.
|
This
letter is governed by English law.
|
|
[This
Guarantor Accession letter is entered into by
deed.]
|
|
Koninklijke
KPN N.V.
|
[Subsidiary]
|
- 87
-
SIGNATURES
|
The
Company
|
|
|
KONINKLIJKE
KPN N.V.
|
|
|
By:
|
XXXXXXXXX
XXXXXXXX MERKUN
|
|
The
Original Guarantor
|
|
|
KONINKLIJKE
KPN N.V.
|
|
|
By:
|
XXXXXXXXX
XXXXXXXX MERKUN
|
|
The
Mandated Lead Arrangers
|
|
|
ABN
AMRO BANK N.V.
|
|
|
By:
|
X.
X. XX XXXX
|
|
C.
E. STROOMENBERGH
|
|
|
BANC
OF AMERICA SECURITIES LIMITED
|
|
|
By:
|
XXXXX
XXXXXXXX
|
|
BNP
PARIBAS
|
|
|
By:
|
P.
VAN DER VELDEN
|
|
MATIJN
VAN WENT
|
|
|
CITIGROUP
GLOBAL MARKETS LIMITED
|
|
|
By:
|
XXXX
XXXXX
|
|
COÖPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
|
|
|
By:
|
XX
XXXXX
|
|
SANDER
MUTSAERS
|
|
|
CREDIT
SUISSE
|
|
|
By:
|
XXXX
XXXXXXX
|
|
XXXXXXX
XXXXXXX
|
|
|
DEUTSCHE
BANK AG
|
|
|
By:
|
XXXXXXX
XXXXXX
|
|
XXXXX
XXXXXXXXXX
|
|
|
FORTIS
BANK (NEDERLAND) N.V.
|
|
|
By:
|
M.
S. M. DENIE
|
|
X.
X. XXXXXXXXX
|
|
|
HVB
BANQUE LUXEMBOURG SOCIÉTÉ ANONYME
|
|
|
By:
|
XXXXXX
XXXXXX
|
|
XXXXXX
XXXXXXXX
|
|
|
ING
BANK N.V.
|
|
|
By:
|
X.
X. XXXXXXXXXXX
|
|
X.
X. XXXX
|
|
|
X.X.
XXXXXX PLC
|
|
|
By:
|
XXXX
BLACKBOROUGH
|
|
THE
ROYAL BANK OF SCOTLAND PLC
|
|
|
By:
|
XXXX
XXXX
|
|
The
Original Lenders
|
|
|
ABN
AMRO BANK N.V.
|
|
|
By:
|
X.
X. XX XXXX
|
|
C.
E. STROOMENBERGH
|
|
|
BANK
OF AMERICA, N.A.
|
|
|
By:
|
XXXXX
XXXXXXXXX
|
|
BNP
PARIBAS
|
|
|
By:
|
P.
VAN DER VELDEN
|
|
MATIJN
VAN WENT
|
|
|
CITIBANK
INTERNATIONAL PLC, LONDON
|
|
|
By:
|
XXXX
XXXXX
|
|
COÖPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
|
|
|
By:
|
XX
XXXXX
|
|
SANDER
MUTSAERS
|
|
|
CREDIT
SUISSE
|
|
|
By:
|
XXXX
XXXXXXX
|
|
XXXXXXX
XXXXXXX
|
|
|
DEUTSCHE
BANK LUXEMBOURG S.A.
|
|
|
By:
|
XXXXXX
XXXX-XXXXXX
|
|
XXXXXX
XXXXXX-XXXXXX
|
|
|
FORTIS
BANK (NEDERLAND) N.V.
|
|
|
By:
|
M.
S. M. DENIE
|
|
X.
X. XXXXXXXXX
|
|
|
HVB
BANQUE LUXEMBOURG SOCIÉTÉ ANONYME
|
|
|
By:
|
XXXXXX
XXXXXX
|
|
XXXXXX
XXXXXXXX
|
|
|
ING
BANK N.V.
|
|
|
By:
|
X.
X. XXXXXXXXXXX
|
|
X.
X. XXXX
|
|
|
JPMORGAN
CHASE BANK, N.A.
|
|
|
By:
|
XXXX
BLACKBOROUGH
|
|
THE
ROYAL BANK OF SCOTLAND PLC
|
|
|
By:
|
XXXX
XXXX
|
|
The
Swingline Lenders
|
|
|
ABN
AMRO BANK N.V.
|
|
|
By:
|
X.
X. XX XXXX
|
|
C.
E. STROOMENBERGH
|
|
|
BANK
OF AMERICA, N.A.
|
|
|
By:
|
XXXXX
XXXXXXXXX
|
|
BNP
PARIBAS
|
|
|
By:
|
P.
VAN DER VELDEN
|
|
MATIJN
VAN WENT
|
|
|
CITIBANK
INTERNATIONAL PLC
|
|
|
By:
|
XXXX
XXXXX
|
|
CITIBANK,
N.A., NEW YORK for the purposes of Dollar Swingline Advances
Only
|
|
|
By:
|
XXXXXX
X. XXXXXXXX
|
|
COÖPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
|
|
|
By:
|
XX
XXXXX
|
|
SANDER
MUTSAERS
|
|
|
CREDIT
SUISSE
|
|
|
By:
|
XXXX
XXXXXXX
|
|
XXXXXXX
XXXXXXX
|
|
|
CREDIT
SUISSE acting through its CAYMAN ISLANDS BRANCH for the purposes of Dollar
Swingline Advances only
|
|
|
By:
|
XXXXX
XXXX-XXXXXXXXXX
|
|
XXXX
XXXXXXXXX
|
|
|
DEUTSCHE
BANK LUXEMBOURG S.A.
|
|
|
By:
|
XXXXXX
XXXX-XXXXXX
|
|
XXXXXX
XXXXXX-XXXXXX
|
|
|
FORTIS
BANK (NEDERLAND) N.V.
|
|
|
By:
|
M.
S. M. DENIE
|
|
X.
X. XXXXXXXXX
|
|
|
FORTIS
CAPITAL CORP. for the purposes of Dollar Swingline Advances
only
|
|
|
By:
|
XXXXXXXXX
XXXXXX-ALLEGRA
|
|
XXXXXX
XXXXX
|
|
|
HVB
BANQUE LUXEMBOURG SOCIÉTÉ ANONYME
|
|
|
By:
|
XXXXXX
XXXXXX
|
|
XXXXXX
XXXXXXXX
|
|
|
ING
BANK N.V.
|
|
|
By:
|
X.
X. XXXXXXXXXXX
|
|
X.
X. XXXX
|
|
|
ING
BANK N.V., DUBLIN BRANCH for the purposes of Dollar Swingline Advances
only
|
|
|
By:
|
XXXXXXX
XXXXX
|
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XXXXX
XXXXX
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JPMORGAN
CHASE BANK, N.A.
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By:
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XXXX
BLACKBOROUGH
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JPMORGAN
CHASE BANK, N.A., NEW YORK, INTERNATIONAL FACILITY (IBF) for the purposes
of Dollar Swingline Advances only
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By:
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XXXX
BLACKBOROUGH
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THE
ROYAL BANK OF SCOTLAND PLC
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By:
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XXXX
XXXX
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The
Facility Agent
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ABN
AMRO BANK N.V.
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By:
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X.
X. XXXXXX
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S.G.
BEEDLESTON
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The
Euro Swingline Agent
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ABN
AMRO BANK N.V.
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By:
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X.
X. XXXXXX
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S.G.
BEEDLESTON
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The
Dollar Swingline Agent
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ABN
AMRO BANK N.V.
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By:
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X.
X. XXXXXX
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S.G.
BEEDLESTON
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