EXHIBIT 4.39
CONFORMED COPY
CREDIT AGREEMENT
DATED 5TH MARCH, 2003
US$450,000,000
CREDIT FACILITY
FOR
XXXXX (CHEMICALS) LIMITED
arranged by
ABN AMRO BANK N.V.
BARCLAYS CAPITAL
and
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
XXXXX & OVERY
London
CONTENTS
CLAUSE PAGE
1. Interpretation...................................................... 1
2. Facility............................................................ 13
3. Purpose............................................................. 15
4. Conditions precedent................................................ 15
5. Utilisation......................................................... 16
6. Optional Currencies................................................. 17
7. Repayment........................................................... 19
8. Prepayment and cancellation......................................... 20
9. Interest............................................................ 24
10. Terms............................................................... 26
11. Market disruption................................................... 27
12. Taxes............................................................... 28
13. Increased Costs..................................................... 30
14. Mitigation.......................................................... 31
15. Payments............................................................ 32
16. Guarantee and indemnity............................................. 34
17. Representations..................................................... 36
18. Information covenants............................................... 40
19. Financial covenants................................................. 42
20. General covenants................................................... 46
21. Default............................................................. 53
22. The Administrative Parties.......................................... 57
23. Evidence and calculations........................................... 61
24. Fees................................................................ 61
25. Indemnities and Break Costs......................................... 62
26. Expenses............................................................ 63
27. Amendments and waivers.............................................. 64
28. Changes to the Parties.............................................. 65
29. Disclosure of information........................................... 68
30. Set-off............................................................. 69
31. Pro Rata Sharing.................................................... 69
32. Severability........................................................ 70
33. Counterparts........................................................ 71
34. Notices............................................................. 71
35. Language............................................................ 72
36. Governing law....................................................... 73
37. Enforcement......................................................... 73
SCHEDULES
1. Original Parties.........................................................
2. Conditions precedent documents...........................................
3. Form of Request..........................................................
4. Calculation of the Mandatory Cost........................................
5. Form of Transfer Certificate.............................................
6. Form of Compliance Certificate...........................................
7. Form of Accession Agreement..............................................
8. Form of Resignation Request..............................................
9. Form of Extension Request................................................
Signatories.................................................................. 74
THIS AGREEMENT is dated 5th March, 2003 and is made BETWEEN:
(1) XXXXX (CHEMICALS) LIMITED (registered in the Republic of Ireland with
registered number 113259) (the BORROWER);
(2) XXXXX HOLDINGS PLC (registered in Northern Ireland with registered
number NI025836) (the PARENT);
(3) THE COMPANIES LISTED in Schedule 1 (Original Parties) as original
guarantors (in this capacity the ORIGINAL GUARANTORS);
(4) ABN AMRO BANK N.V., BARCLAYS CAPITAL and THE GOVERNOR AND COMPANY OF
THE BANK OF IRELAND as mandated lead arrangers (in this capacity the
ARRANGERS);
(5) THE FINANCIAL INSTITUTIONS listed in the Schedule 1 (Original Parties)
as original lenders (the ORIGINAL LENDERS); and
(6) THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND as facility agent (in
this capacity the FACILITY AGENT).
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
ACCESSION AGREEMENT means a letter, substantially in the form of
Schedule 7 (Form of Accession Agreement).
ACQUISITION means the Xxx Xxxxx Acquisition, the Pfizer HRT Acquisition
or the Pfizer OC Acquisition.
ACQUISITION AGREEMENTS means the Xxx Lilly Acquisition Agreements, the
Pfizer HRT Acquisition Agreements and the Pfizer OC Acquisition
Agreements.
ACQUISITION DOCUMENTS means the Xxx Xxxxx Acquisition Documents, the
Pfizer HRT Acquisition Documents and the Pfizer OC Acquisition
Documents.
ADDITIONAL GUARANTOR means a member of the Group which becomes a
Guarantor after the date of this Agreement.
ADMINISTRATIVE PARTY means an Arranger or the Facility Agent.
AFFILIATE means a Subsidiary or a Holding Company of a person or any
other Subsidiary of that Holding Company.
AVAILABILITY PERIOD means:
(a) in relation to Facility A, the period from and including the
date of this Agreement to the Facility A Final Maturity Date;
and
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(b) in relation to Facility B and Facility C, the period from and
including the date of this Agreement to and including 120 days
after the date of this Agreement.
BREAK COSTS means the amount (if any) which a Lender is entitled to
receive under Clause 25.3 (Break Costs) as compensation if any part of
a Loan or overdue amount is prepaid.
BUSINESS DAY means a day (other than a Saturday or a Sunday) on which
banks are open for general business in London, Belfast and:
(a) if on that day a payment in or a purchase of a currency (other
than Euro) is to be made, the principal financial centre of
the country of that currency; or
(b) if on that day a payment in or a purchase of Euro is to be
made, which is also a TARGET Day.
CIRCULAR means the circular issued (or to be issued) to the
shareholders of the Parent relating to the Pfizer HRT Acquisition and
the Pfizer OC Acquisition.
COMMITMENT means a Facility A Commitment, a Facility B Commitment or a
Facility C Commitment.
COMPLIANCE CERTIFICATE means a certificate substantially in the form of
Schedule 6 (Form of Compliance Certificate) setting out, among other
things, calculations of the financial covenants.
DEFAULT means:
(a) an Event of Default; or
(b) an event specified in Clause 21 (Default) which would be (with
the expiry of a grace period, the giving of notice or the
making of any determination under the Finance Documents or any
combination of them) an Event of Default.
XXX XXXXX means Xxx Xxxxx and Company, a company organised and existing
under the laws of the State of Indiana with offices located at Xxxxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx, 00000 XXX.
XXX XXXXX ACQUISITION means the acquisition of the Xxx Lilly Assets by
the Borrower under the Xxx Xxxxx Acquisition Documents.
XXX LILLY ACQUISITION AGREEMENTS means the Xxx Xxxxx Transfer Agreement
and the Xxx Lilly Manufacturing Agreement.
XXX XXXXX ACQUISITION DOCUMENTS means the Xxx Lilly Acquisition
Agreements and all other documents referred to in the Xxx Xxxxx
Acquisition Agreements or relating to the Xxx Lilly Acquisition.
XXX XXXXX ASSETS means the rights and other assets assigned or
transferred to, or assumed or acquired by, the Borrower under the Xxx
Lilly Transfer Agreement.
XXX XXXXX MANUFACTURING AGREEMENT means the manufacturing agreement
entered into by the Borrower and Xxx Lilly on 7th December, 2002 for
the manufacturing of the women's healthcare product known as Sarafem.
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XXX XXXXX TRANSFER AGREEMENT means the assignment, transfer and
assumption agreement entered into by the Borrower and Xxx Lilly on 7th
December, 2002 in connection with the sale and purchase of the US sales
and marketing rights relating to the women's healthcare product known
as Sarafem.
EURIBOR means for a Term of any Loan or overdue amount in Euro:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for that Term of that Loan or
overdue amount, the arithmetic mean (rounded upward to four
decimal places) of the rates as supplied to the Facility Agent
at its request quoted by the Reference Banks to leading banks
in the European interbank market,
as of 11.00 a.m. (Brussels time) on the Rate Fixing Day for the
offering of deposits in Euro for a period comparable to that Term.
EURO means the single currency of the Participating Member States.
EVENT OF DEFAULT means an event specified as such in this Agreement.
EXTENSION OPTION means the Borrower's option to request an extension to
the Facility A Final Maturity Date under Clause 2.3 (Extension Option).
EXTENSION REQUEST means a request made by the Borrower to exercise the
Extension Option, substantially in the form of Schedule 9 (Form of
Extension Request).
FACILITY means Facility A, Facility B or Facility C.
FACILITY A means the facility referred to in Clause 2.1(a)
(Facilities).
FACILITY A COMMITMENT means:
(a) in relation to an Original Lender, the amount in US Dollars
set opposite the name of that Original Lender in Schedule 1
(Original Parties) under the heading FACILITY A COMMITMENTS
and the amount of any other Facility A Commitment it acquires;
and
(b) in relation to a Lender which becomes a Lender after the date
of this Agreement, the amount of Facility A Commitment
acquired by it under Clause 28 (Changes to the Parties),
to the extent not cancelled, reduced or transferred under this
Agreement.
FACILITY A LOAN means a Loan made or to be made under Facility A.
FACILITY A FINAL MATURITY DATE means:
(a) the date falling a year less a day after the date of this
Agreement, or if that is not a Business Day, the immediately
preceding Business Day; or
(b) such later date as may be agreed under Clause 2.3 (Extension
Option).
FACILITY B means the facility referred to in Clause 2.1(b)
(Facilities).
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FACILITY B COMMITMENT means:
(a) in relation to an Original Lender, the amount in US Dollars
set opposite the name of that Original Lender in Schedule 1
(Original Parties) under the heading FACILITY B COMMITMENTS
and the amount of any other Facility B Commitment it acquires;
and
(b) in relation to a Lender which becomes a Lender after the date
of this Agreement, the amount of Facility B Commitment
acquired by it under Clause 28 (Changes to the Parties),
to the extent not cancelled, reduced or transferred under this
Agreement.
FACILITY B FINAL MATURITY DATE means the third anniversary of the date
of this Agreement or, if that is not a Business Day, the immediately
preceding Business Day.
FACILITY B LOAN means a Loan made or to be made under Facility B.
FACILITY C means the facility referred to in Clause 2.1(c)
(Facilities).
FACILITY C COMMITMENTS means:
(a) in relation to an Original Lender, the amount in US Dollars
set opposite the name of that Original Lender in Schedule 1
(Original Parties) under the heading FACILITY C COMMITMENTS
and the amount of any other Facility C Commitment it acquires;
and
(b) in relation to a Lender which becomes a Lender after the date
of this Agreement, the amount of Facility C Commitment
acquired by it under Clause 28 (Changes to the Parties),
to the extent not cancelled, reduced or transferred under this
Agreement.
FACILITY C FINAL MATURITY DATE means the fifth anniversary of the date
of this Agreement or, if that is not a Business Day, the immediately
preceding Business Day.
FACILITY C LOAN means a Loan made or to be made under Facility C.
FACILITY OFFICE means the office(s) notified by a Lender to the
Facility Agent:
(a) on or before the date it becomes a Lender; or
(b) by not less than five Business Days' notice,
as the office(s) through which it will perform its obligations under
this Agreement.
FEE LETTER means any letter entered into by reference to this Agreement
between one or more Administrative Parties and the Borrower setting out
the amount of certain fees referred to in this Agreement.
FINAL MATURITY DATE means the Facility A Final Maturity Date, the
Facility B Final Maturity Date or the Facility C Final Maturity Date.
FINANCE DOCUMENT means:
(a) this Agreement;
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(b) a Fee Letter;
(c) a Transfer Certificate;
(d) an Accession Agreement; or
(e) any other document designated as such by the Facility Agent
and the Parent.
FINANCE PARTY means a Lender or an Administrative Party.
FINANCIAL INDEBTEDNESS means (without double counting) any indebtedness
for or in respect of:
(a) moneys borrowed;
(b) any acceptance credit;
(c) any bond, note, debenture, loan stock or other similar
instrument;
(d) any redeemable preference share which can be redeemed prior to
a Final Maturity Date;
(e) any finance, capital lease or hire purchase agreement required
by generally accepted accounting principles and practices in
the relevant jurisdiction to be treated as a finance or
capital lease;
(f) receivables sold or discounted (otherwise than on a
non-recourse basis);
(g) the acquisition cost of any asset to the extent payable after
its acquisition or possession by the party liable where the
deferred payment is arranged primarily as a method of raising
finance or financing the acquisition of that asset;
(h) any derivative transaction protecting against or benefiting
from fluctuations in any rate or price (and, except for
non-payment of an amount, the then xxxx to market value of the
derivative transaction will be used to calculate its amount);
(i) any other transaction (including any forward sale or purchase
agreement) which has the commercial effect of a borrowing;
(j) any counter-indemnity obligation in respect of any guarantee,
indemnity, bond, letter of credit or any other instrument
issued by a bank or financial institution; or
(k) any guarantee, indemnity or similar assurance against
financial loss of any person in respect of any item referred
to in paragraphs (a) to (j) above.
GROUP means the Parent and its Subsidiaries.
GUARANTOR means an Original Guarantor or an Additional Guarantor.
HOLDING COMPANY means in relation to a person, an entity of which that
person is a Subsidiary.
IBOR means:
(a) in relation to Euro, EURIBOR; or
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(b) in relation to any other currency, LIBOR.
INCREASED COST means:
(a) an additional or increased cost;
(b) a reduction in the rate of return from a Facility or on its
overall capital; or
(c) a reduction of an amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates but only to the extent attributable to that Finance Party
having entered into its Commitment or funding or performing its
obligations under any Finance Document.
INTELLECTUAL PROPERTY RIGHTS MEANS:
(a) any know-how, patent, trade xxxx, service xxxx, design,
business name, domain name, topographical or similar right;
(b) any copyright, data base or other intellectual property right;
or
(c) any interest in the above,
in each case whether registered or not and includes any related
application.
LENDER means:
(a) an Original Lender; or
(b) any person which becomes a Lender after the date of this
Agreement.
LIBOR means for a Term of any Loan or overdue amount:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the relevant currency or
Term of that Loan or overdue amount, the arithmetic mean
(rounded upward to four decimal places) of the rates, as
supplied to the Facility Agent at its request, quoted by the
Reference Banks to leading banks in the London interbank
market,
as of 11.00 a.m. on the Rate Fixing Day for the offering of deposits in
the currency of that Loan or overdue amount for a period comparable to
that Term.
LOAN means, unless otherwise stated in this Agreement, the principal
amount of each borrowing under this Agreement or the principal amount
outstanding of that borrowing.
MAJORITY LENDERS means, at any time, Lenders:
(a) whose share in the outstanding Loans and whose undrawn
Commitments then aggregate 66.67 per cent. or more of the
aggregate of all the outstanding Loans and the undrawn
Commitments of all the Lenders;
(b) if there is no Loan then outstanding, whose undrawn
Commitments then aggregate 66.67 per cent. or more of the
Total Commitments; or
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(c) if there is no Loan then outstanding and the Total Commitments
have been reduced to zero, whose Commitments aggregated 66.67
per cent. or more of the Total Commitments immediately before
the reduction.
MANDATORY COST means the cost of complying with certain regulatory
requirements, expressed as a percentage rate per annum and calculated
by the Facility Agent under Schedule 4 (Calculation of the Mandatory
Cost).
MARGIN has the meaning given to it in Clause 9.5 (Margin).
MATERIAL ADVERSE EFFECT means:
(a) a material adverse effect on the business or financial
condition of the Group taken as a whole;
(b) a material adverse effect on the ability of the Parent to
perform its obligations under Clause 19 (Financial covenants)
or of any Obligor to perform any of its payment obligations or
other material obligations under any Finance Document, taking
into account resources lawfully available to it, without
breaching the terms of this Agreement, from other members of
the Group; or
(c) an effect on the validity or enforceability of any Finance
Document which is reasonably considered by the Majority
Lenders to be materially adverse to their interests under the
Finance Documents.
MATERIAL SUBSIDIARY means, at any time, the Borrower and any other
Subsidiary of the Parent whose gross assets or revenues (excluding
intra-Group items) equal or exceed, or have since the date of this
Agreement equalled or exceeded, 5 per cent. of the gross assets or
revenues of the Group.
For this purpose:
(a) the gross assets or revenues of a Subsidiary of the Parent
will be determined from its financial statements (consolidated
if it has Subsidiaries) upon which the latest audited
financial statements of the Group have been based;
(b) if a Subsidiary of the Parent becomes a member of the Group
after the date on which the latest audited financial
statements of the Group have been prepared, the gross assets
or revenues of that Subsidiary will be determined from its
latest financial statements;
(c) the gross assets or revenues of the Group will be determined
from its latest audited financial statements, adjusted (where
appropriate) to reflect the gross assets or revenues of any
company or business subsequently acquired or disposed of; and
(d) if a Material Subsidiary disposes of all or substantially all
of its assets to another Subsidiary of the Parent, the other
Subsidiary (if it is not already) will immediately become a
Material Subsidiary.
MATURITY DATE means the last day of a Term of a Loan.
OBLIGOR means the Borrower or a Guarantor.
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ORIGINAL FINANCIAL STATEMENTS means the audited consolidated financial
statements of the Parent for the year ended 30th September, 2002.
ORIGINAL OBLIGOR means the Borrower or an Original Guarantor.
PARTICIPATING MEMBER STATE means a member state of the European
Communities that adopts or has adopted the Euro as its lawful currency
under the legislation of the European Union for European Monetary
Union.
PARTY means a party to this Agreement.
PFIZER means Pfizer, Inc.
PFIZER HRT ACQUISITION means the acquisition of the Pfizer HRT Assets
by the Borrower under the Pfizer HRT Acquisition Documents.
PFIZER HRT ACQUISITION AGREEMENTS means the Pfizer HRT Sale & Purchase
Agreement and:
(a) a transitional services agreement; and
(b) a transitional intellectual property licence agreement,
each entered into in connection with the Pfizer HRT Sale & Purchase
Agreement, and any other document designated as a Pfizer HRT
Acquisition Agreement by the Parent and the Facility Agent.
PFIZER HRT ACQUISITION DOCUMENTS means the Pfizer HRT Acquisition
Agreements and all other documents referred to in the Pfizer HRT
Acquisition Agreements or relating to the Pfizer HRT Acquisition.
PFIZER HRT ASSETS has the meaning given to the term "Purchased Assets"
in the Pfizer HRT Sale & Purchase Agreement.
PFIZER HRT LOAN means a Term Loan designated as such in the relevant
Request.
PFIZER HRT SALE & PURCHASE AGREEMENT means the sale and purchase
agreement entered into (or to be entered into) by the Borrower, the
Parent, Pfizer and others on or about the date of this Agreement in
connection with the sale and purchase of certain intellectual property
rights relating to the hormone replacement therapy product known as
femhrt.
PFIZER OC ACQUISITION means the acquisition of the Pfizer OC Assets by
the Borrower under the Pfizer OC Acquisition Documents.
PFIZER OC ACQUISITION AGREEMENTS means the Pfizer OC Sale & Purchase
Agreement and:
(a) a transitional services agreement;
(b) a transitional intellectual property licence agreement; and
(c) an oral contraceptives transitional supply agreement,
8
each entered into in connection with the Pfizer OC Sale & Purchase
Agreement, and any other document designated as a Pfizer OC Acquisition
Agreement by the Parent and the Facility Agent.
PFIZER OC ACQUISITION DOCUMENTS means the Pfizer OC Acquisition
Agreements and all other documents referred to in the Pfizer OC
Acquisition Agreements or relating to the Pfizer OC Acquisition.
PFIZER OC ASSETS has the meaning given to the term "Purchased Assets"
in the Pfizer OC Sale and Purchase Agreement.
PFIZER OC LOAN means a Term Loan designated as such in the relevant
Request.
PFIZER OC SALE & PURCHASE AGREEMENT means the sale and purchase
agreement entered into (or to be entered into) by the Borrower, the
Parent, Pfizer and others on or about the date of this Agreement in
connection with the sale and purchase of certain intellectual property
rights relating to the oral contraceptive products known as Estrostep
and Loestrin.
PRO RATA SHARE means:
(a) for the purpose of determining a Lender's share in a
utilisation of a Facility, the proportion which its Commitment
under the relevant Facility bears to the Total Facility A
Commitments, the Total Facility B Commitments or the Total
Facility C Commitments, as the case may be; and
(b) for any other purpose on a particular date:
(i) the proportion which a Lender's share of the Loans
and undrawn Commitments (if any) bears to the
aggregate of all the Loans and the undrawn Total
Commitments;
(ii) if there is no Loan outstanding on that date, the
proportion which its Commitment bears to the Total
Commitments on that date;
(iii) if the Total Commitments have been cancelled, the
proportion which its Commitment bore to the Total
Commitments immediately before being cancelled; or
(iv) where the term is used in relation to a Facility, the
proportions listed in sub-paragraphs (i) to (iii)
above but applied only to the Loans and Commitments
for that Facility.
For the purpose of sub-paragraph (iv) above, in the case of
dispute, the Facility Agent will determine whether the term in
any case relates to a particular Facility.
RATE FIXING DAY means:
(a) the first day of a Term for a Loan denominated in Sterling;
(b) the second TARGET Day before the first day of a Term for a
Loan denominated in Euro; or
(c) the second Business Day before the first day of a Term for a
Loan denominated in any other currency,
9
or such other day as the Facility Agent determines is generally treated
as the rate fixing day by market practice in the relevant interbank
market.
REFERENCE BANKS means the Facility Agent, ABN AMRO Bank N.V., Barclays
Bank PLC and any other bank or financial institution appointed as such
by the Facility Agent under this Agreement.
REPAYMENT INSTALMENT means each instalment for repayment of a Term
Loan.
REPEATING REPRESENTATIONS means the representations which are deemed to
be repeated under this Agreement.
REQUEST means a request for a Loan, substantially in the form of
Schedule 3 (Form of Request).
ROLLOVER LOAN means, unless provided to the contrary in this Agreement,
a Facility A Loan:
(a) to be made on the same day that a maturing Facility A Loan is
due to be repaid;
(b) the amount of which, together with any other Rollover Loan
relating to the same maturing Facility A Loan, is equal to or
less than the maturing Facility A Loan;
(c) in the same currency as the maturing Facility A Loan; and
(d) to be made for the purpose of refinancing a maturing Facility
A Loan.
SALE & PURCHASE AGREEMENT means the Xxx Xxxxx Transfer Agreement, the
Pfizer HRT Sale & Purchase Agreement or the Pfizer OC Sale & Purchase
Agreement.
SCREEN RATE means:
(a) for LIBOR, the British Bankers Association Interest Settlement
Rate (if any); and
(b) for EURIBOR, the percentage rate per annum determined by the
Banking Federation of the European Union,
for the relevant currency and Term displayed on the appropriate page of
the Reuters screen selected by the Facility Agent. If the relevant page
is replaced or the service ceases to be available, the Facility Agent
(after consultation with the Parent and the Lenders) may specify
another page or service displaying the appropriate rate.
SECURITY INTEREST means any mortgage, pledge, lien, charge, assignment,
hypothecation or security interest or any other agreement or
arrangement having a substantially similar effect.
STERLING AND (POUND) mean the currency of the UK.
SUBSIDIARY means an entity of which a person has direct or indirect
control or owns directly or indirectly more than 50% of the voting
capital or similar right of ownership and CONTROL for this purpose
means the power to direct the management and the policies of the entity
whether through the ownership of voting capital, the power to appoint a
majority of directors, by contract or otherwise.
TARGET ASSETS means the Pfizer HRT Assets or the Pfizer OC Assets.
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TARGET DAY means a day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer payment system 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 related penalty or interest).
TAX DEDUCTION means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
TAX PAYMENT means a payment made by an Obligor to a Finance Party in
any way relating to a Tax Deduction or under any indemnity given by
that Obligor in respect of Tax under any Finance Document.
TERM means each period determined under this Agreement by reference to
which interest on a Loan or an overdue amount is calculated.
TERM LOAN means a Facility B Loan or a Facility C Loan.
TOTAL COMMITMENTS means the Total Facility A Commitments, Total
Facility B Commitments and Total Facility C Commitments.
TOTAL FACILITY A COMMITMENTS means the aggregate of the Facility A
Commitments, being US$100,000,000 at the date of this Agreement.
TOTAL FACILITY B COMMITMENTS means the aggregate of the Facility B
Commitments, being US$250,000,000 at the date of this Agreement.
TOTAL FACILITY C COMMITMENTS means the aggregate Facility C Commitments
being US$100,000,000 at the date of this Agreement.
TRANSACTION DOCUMENT means:
(a) a Finance Document;
(b) an Acquisition Document; or
(c) any other document designated as such by the Facility Agent
and the Parent.
TRANSFER CERTIFICATE means a certificate substantially in the form of
Schedule 5 (Form of Transfer Certificate), or any other form agreed
between the Facility Agent and the Parent.
UK means the United Kingdom.
US DOLLARS and US$ mean the currency of the United States of America.
UTILISATION DATE means each date on which a Facility is utilised.
XXXXXX XXXXXXXX BONDS means the 12 5/8% senior loan notes, repayable in
2008, issued by Xxxxxx Xxxxxxxx Inc. in February 2000.
XXXXXX XXXXXXXX COMPANIES means Xxxxxx Xxxxxxxx PLC, Xxxxxx Xxxxxxxx
(Bermuda) Limited, Xxxxxx Xxxxxxxx Inc., and Xxxxxx Xxxxxxxx
Laboratories Ireland Limited.
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1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a reference
to:
(i) an AMENDMENT includes a supplement, novation, restatement or
re-enactment and AMENDED will be construed accordingly;
ASSETS includes present and future properties, revenues and
rights of every description;
an AUTHORISATION includes an authorisation, consent, approval,
resolution, licence, exemption, filing, registration or
notarisation;
BARCLAYS CAPITAL is to the investment banking division of
Barclays Bank PLC;
DISPOSAL means a sale, transfer, grant, lease, licence or
other disposal, whether voluntary or involuntary, and DISPOSE
will be construed accordingly;
INDEBTEDNESS includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money;
a PERSON includes any individual, company, corporation,
unincorporated association or body (including a partnership,
trust, joint venture or consortium), government, state,
agency, organisation or other entity whether or not having
separate legal personality;
a REGULATION includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law but, if not having the force of law, being of a
type with which any person to which it applies is accustomed
to comply) of any governmental, inter-governmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(ii) a currency is a reference to the lawful currency for the time
being of the relevant country;
(iii) a Default being OUTSTANDING means that it has not been
remedied or waived;
(iv) a provision of law is a reference to that provision as
extended, applied, amended or re-enacted and includes any
subordinate legislation;
(v) a Clause, a Subclause or a Schedule is a reference to a clause
or subclause of, or a schedule to, this Agreement;
(vi) a person includes its successors in title, permitted assigns
and permitted transferees;
(vii) a Transaction Document or another document is a reference to
that Transaction Document or other document as amended; and
(viii) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a reference to a MONTH or MONTHS
is a reference to a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month
or the calendar month in which it is to end, except that:
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(i) if the numerically corresponding day is not a Business Day,
the period will end on the next Business Day in that month (if
there is one) or the preceding Business Day (if there is not);
(ii) if there is no numerically corresponding day in that month,
that period will end on the last Business Day in that month;
and
(iii) notwithstanding sub-paragraph (i) above, a period which
commences on the last Business Day of a month will end on the
last Business Day in the next month or the calendar month in
which it is to end, as appropriate.
(c) Unless expressly provided to the contrary in a Finance Document, a
person who is not a party to a Finance Document may not enforce any of
its terms under the Contracts (Rights of Third Parties) Xxx 0000 and
notwithstanding any term of any Finance Document, the consent of no
third party is required for any variation (including any release or
compromise of any liability) or termination of any Finance Document.
(d) Unless the contrary intention appears:
(i) a reference to a Party will not include that Party if it has
ceased to be a Party under this Agreement;
(ii) a word or expression used in any other Finance Document or in
any notice given in connection with any Finance Document has
the same meaning in that Finance Document or notice as in this
Agreement; and
(iii) any obligation of an Obligor under the Finance Documents which
is not a payment obligation remains in force for so long as
any payment obligation of an Obligor is or may be outstanding
under the Finance Documents.
(e) The headings in this Agreement do not affect its interpretation.
(f) A reference in this Agreement to an English legal term for any
provision of law, regulation, action, remedy, method of judicial
proceeding, legal document, legal status, court, official or any legal
concept or thing shall, in respect of any jurisdiction other than
England and Wales, include a reference to what most nearly approximates
in that other jurisdiction to that English legal term.
2. FACILITY
2.1 FACILITIES
Subject to the terms of this Agreement, the Lenders make available to
the Borrower:
(a) a multicurrency revolving credit facility with an extension
option in an aggregate amount equal to the Total Facility A
Commitments;
(b) a term loan facility in an aggregate amount equal to the Total
Facility B Commitments; and
(c) a term loan facility in an aggregate amount equal to the Total
Facility C Commitments.
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2.2 NATURE OF A FINANCE PARTY'S RIGHTS AND OBLIGATIONS
Unless otherwise agreed by all the Finance Parties:
(a) the obligations of a Finance Party under the Finance Documents
are several;
(b) failure by a Finance Party to perform its obligations does not
affect the obligations of any other Party under the Finance
Documents;
(c) no Finance Party is responsible for the obligations of any
other Finance Party under the Finance Documents;
(d) the rights of a Finance Party under the Finance Documents are
separate and independent rights;
(e) a debt arising under the Finance Documents to a Finance Party
is a separate and independent debt; and
(f) a Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
2.3 EXTENSION OPTION
(a) The Borrower may request the exercise of the Extension Option by
submitting an Extension Request to the Facility Agent.
(b) An Extension Request shall not be valid unless:
(i) it is delivered to the Facility Agent on a day falling no more
than 60 days nor less than 30 days prior to the relevant
Facility A Final Maturity Date;
(ii) it specifies a date (the EXTENSION DATE) which is no more than
a year less a day after the relevant Facility A Final Maturity
Date; and
(iii) it does not (and would not) cause paragraph (c) to be
contravened.
(c) The Extension Option may be exercised no more than four times.
(d) Upon receipt of a valid Extension Request, the Facility Agent shall
promptly notify each Lender which has a Facility A Commitment. Each
such Lender shall have the right, in its absolute discretion, to accept
or decline any Extension Request. Each such Lender must notify the
Facility Agent, no later than close of business on the date falling 15
days before the relevant Facility A Final Maturity Date, whether or not
it accepts the Extension Request.
(e) If there are any Extending Lenders, then:
(i) on and from the relevant Facility A Final Maturity Date
(subject to any further operation of this Clause), the
Facility A Final Maturity Date shall be extended to the
Extension Date; and
(ii) on the relevant Facility A Final Maturity Date:
(A) the Facility A Commitment of each Non-extending
Lender shall be cancelled automatically; and
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(B) the Borrower must pay to each Extending Lender an
extension fee, calculated at the rate specified in
the Extension Request or at such other rate as may be
agreed between the Borrower and all the Extending
Lenders, on the Facility A Commitment of that
Extending Lender at the close of business on the
relevant Facility A Final Maturity Date.
(f) An Extension Request is irrevocable and may not be withdrawn.
(g) In this Clause:
(i) the RELEVANT FACILITY A FINAL MATURITY DATE means the Facility
A Final Maturity Date in effect on the date of an Extension
Request; and
(ii) an EXTENDING LENDER means a Lender which notifies the Facility
Agent, on or before close of business on the date falling 15
days before the relevant Facility A Final Maturity Date, that
it accepts an Extension Request; and
(iii) a NON-EXTENDING LENDER shall mean a Lender which has a
Facility A Commitment at the date of an Extension Request but
is not an Extending Lender.
3. PURPOSE
3.1 FACILITY A LOANS
Each Facility A Loan may only be used for the general corporate and
working capital purposes of the Group (but not for any purpose for
which a Term Loan may be used).
3.2 TERM LOANS
(a) Each Pfizer HRT Loan may only be used for the consideration payable for
the Pfizer HRT Acquisition and/or the reasonable costs and expenses of,
and incidental to, the Pfizer HRT Acquisition.
(b) Each Pfizer OC Loan may only be used for the consideration payable for
the Pfizer OC Acquisition and/or the reasonable costs and expenses of,
and incidental to, the Pfizer OC Acquisition.
3.3 NO OBLIGATION TO MONITOR
No Finance Party is bound to monitor or verify the utilisation of any
Facility.
4. CONDITIONS PRECEDENT
4.1 CONDITIONS PRECEDENT DOCUMENTS
(a) A Request may not be given until the Facility Agent has notified the
Parent and the Lenders that it has received, or waived receipt of:
(i) all of the documents and evidence set out in Part 1 of
Schedule 2 (Conditions precedent documents); and
(ii) in the case of a Request for a Pfizer HRT Loan, all of the
documents and evidence set out in Part 2 of Schedule 2
(Conditions precedent documents); and
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(iii) in the case of a Request for a Pfizer OC Loan, all of the
documents and evidence set out in Part 3 of Schedule 2
(Conditions precedent documents),
in each case in form and substance satisfactory to the Facility Agent.
(b) The Facility Agent must give any notification required under paragraph
(a) above promptly upon being satisfied as to the form and substance of
the relevant documents and evidence.
4.2 FURTHER CONDITIONS PRECEDENT
The obligations of each Lender to participate in any Loan are subject
to the further conditions precedent that on both the date of the
Request and the Utilisation Date for that Loan:
(a) the Repeating Representations are correct in all material
respects; and
(b) no Default or, in the case of a Rollover Loan, no Event of
Default is outstanding or would result from the Loan.
4.3 MAXIMUM NUMBER
Unless the Facility Agent agrees, a Request may not be given if, as a
result there would be outstanding more than ten Facility A Loans, three
Facility B Loans or three Facility C Loans.
5. UTILISATION
5.1 GIVING OF REQUESTS
(a) The Borrower may borrow a Loan by giving to the Facility Agent a duly
completed Request.
(b) Unless the Facility Agent otherwise agrees, the latest time for receipt
by the Facility Agent of a duly completed Request is 11.00 a.m. one
Business Day before the Rate Fixing Day for the proposed borrowing.
(c) Each Request is irrevocable.
5.2 COMPLETION OF REQUESTS
A Request for a Loan will not be regarded as having been duly completed
unless:
(a) the Utilisation Date is a Business Day falling within the
Availability Period;
(b) it identifies the Facility under which the Loan is to be
borrowed and, if the Loan is to be a Term Loan, identifies
whether it is to be a Pfizer HRT Loan or a Pfizer OC Loan;
(c) the amount of the Loan requested is:
(i) (A) in the case of a Facility A Loan, a minimum
of US$10,000,000 or its equivalent in
accordance with Clause 6 (Optional
Currencies); or
(B) in the case of a Term Loan, a minimum of
US$20,000,000,
and in either case an integral multiple of 5,000,000
units of the requested currency;
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(ii) the maximum undrawn amount available under this
Agreement for Loans under the Facility on the
proposed Utilisation Date; or
(iii) such other amount as the Facility Agent may agree;
and
(d) the proposed currency and Term comply with this Agreement.
Only one Loan may be requested in a Request.
5.3 ADVANCE OF LOAN
(a) The Facility Agent must promptly notify each Lender of the details of
the requested Loan and the amount of its share in that Loan.
(b) The amount of each Lender's share of the Loan will be its Pro Rata
Share on the proposed Utilisation Date.
(c) No Lender is obliged to participate in a Loan if, as a result, the
Loans under the relevant Facility would exceed the Total Commitments
for that Facility.
(d) If the conditions set out in this Agreement have been met, each Lender
must make its share in the Loan available to the Facility Agent for the
Borrower on the Utilisation Date.
6. OPTIONAL CURRENCIES
6.1 GENERAL
In this Clause:
AGENT'S SPOT RATE OF EXCHANGE means the Facility Agent's spot rate of
exchange for the purchase of the relevant currency in the London
foreign exchange market with US Dollars at or about 11.00 a.m. on a
particular day.
OPTIONAL CURRENCY means any currency (other than US Dollars) in which a
Facility A Loan may be denominated under this Agreement.
US DOLLAR AMOUNT of a Loan or part of a Loan means:
(a) if the Loan is denominated in US Dollars, its amount; or
(b) if the Loan is denominated in an Optional Currency, its
equivalent in US Dollars calculated on the basis of the
Agent's Spot Rate of Exchange one Business Day before the Rate
Fixing Day for that Term.
6.2 SELECTION
(a) The currency of each Term Loan must be US Dollars.
(b) The Borrower must select the currency of a Facility A Loan in its
Request.
(c) Unless the Facility Agent otherwise agrees, the Loans may not be
denominated at any one time in more than three currencies.
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6.3 CONDITIONS RELATING TO OPTIONAL CURRENCIES
(a) A Facility A Loan may be denominated in an Optional Currency for a Term
if:
(i) that Optional Currency is readily available in the amount
required and freely convertible into US Dollars in the
relevant interbank market on the Rate Fixing Day and the first
day of that Term; and
(ii) that Optional Currency is Euro or Sterling or has been
previously approved by the Facility Agent (acting on the
instructions of all the Lenders).
(b) If the Facility Agent has received a request from the Parent for a
currency to be approved as an Optional Currency, the Facility Agent
must, within five Business Days, confirm to the Parent whether or not
the Lenders have given their approval.
6.4 REVOCATION OF CURRENCY
(a) Notwithstanding any other term of this Agreement, if before 9.30 a.m.
on any Rate Fixing Day for a Facility A Loan the Facility Agent
receives notice from a Lender that:
(i) the Optional Currency requested is not readily available to it
in the relevant interbank market in the amount and for the
period required; or
(ii) participating in a Loan in the proposed Optional Currency
could reasonably be expected to contravene any law or
regulation applicable to it,
the Facility Agent must give notice to the Borrower to that effect
promptly and in any event before 11.00 a.m. on that day.
(b) In this event:
(i) that Lender must participate in the Facility A Loan in US
Dollars; and
(ii) the share of that Lender in the Facility A Loan and any other
similarly affected Lender(s) will be treated as a separate
Facility A Loan denominated in US Dollars during that Term.
(c) Any part of a Facility A Loan treated as a separate Facility A Loan
under this Subclause will not be taken into account for the purposes of
any limit on the number of Facility A Loans or currencies outstanding
at any one time.
(d) A Facility A Loan will still be treated as a Rollover Loan if it is not
denominated in the same currency as the maturing Facility A Loan by
reason only of the operation of this Subclause.
6.5 OPTIONAL CURRENCY EQUIVALENTS
(a) The equivalent in US Dollars of a Facility A Loan or part of a
Facility A Loan in an Optional Currency for the purposes of
calculating:
(b) whether any limit under this Agreement has been exceeded;
(c) the amount of a Facility A Loan;
(d) the share of a Lender in a Facility A Loan;
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(e) the amount of any repayment of a Facility A Loan; or
(f) the undrawn amount of a Lender's Commitment,
is its US Dollar Amount.
6.6 NOTIFICATION
The Facility Agent must notify the relevant Lenders and the Borrower of
each relevant US Dollar Amount (and the applicable Agent's Spot Rate of
Exchange) promptly after they are ascertained.
7. REPAYMENT
(a) The Borrower must repay each Facility A Loan in full on its Maturity
Date. Subject to the other terms of this Agreement, any amount of a
Facility A Loan repaid under this paragraph may be re-borrowed.
(b) On each date set out in the table below (or, if any such date is not a
Business Day, the immediately preceding Business Day) (each a REPAYMENT
INSTALMENT DATE), the Borrower must repay Facility B Loans and Facility
C Loans of an amount equal, in each case, to:
(i) (A) the aggregate amount of Loans outstanding under that
Facility at the close of business at the end of the relevant
Availability Period multiplied by (B) the proportion set out
for that Facility alongside that Repayment Instalment Date;
less
(ii) the aggregate amount of Loans under the relevant Facility
which have been prepaid under Clause 8.4 (Voluntary
prepayment) prior to that Repayment Instalment Date (but the
prepayment of which has not already been taken into account
for the purposes of this Clause)
or, if lower, the amount of Loans under the relevant Facility which are
outstanding on that Repayment Instalment Date.
PROPORTION OF PROPORTION OF
REPAYMENT DATE FACILITY B LOANS FACILITY C LOANS
6 months after the date of this Agreement 1/6 1/10
12 months after the date of this Agreement 1/6 1/10
18 months after the date of this Agreement 1/6 1/10
24 months after the date of this Agreement 1/6 1/10
30 months after the date of this Agreement 1/6 1/10
36 months after the date of this Agreement 1/6 1/10
42 months after the date of this Agreement 1/10
48 months after the date of this Agreement 1/10
54 months after the date of this Agreement 1/10
60 months after the date of this Agreement 1/10
No amount of a Term Loan which is repaid may be re-borrowed.
19
(c) Except as expressly set out above the Borrower's obligations under
paragraphs (a) and (b) above will not be affected by any repayment or
prepayment made under Clause 8 (Prepayment and Cancellation).
8. PREPAYMENT AND CANCELLATION
8.1 MANDATORY PREPAYMENT - ILLEGALITY
(a) A Lender must notify the Parent promptly if it becomes aware that it is
unlawful in any jurisdiction for that Lender to perform any of its
obligations under a Finance Document or to fund or maintain its share
in any Loan.
(b) After notification under paragraph (a) above:
(i) the Borrower must repay or prepay the share of that Lender in
each Loan made to it on the date specified in paragraph (c)
below; and
(ii) the Commitment of that Lender will be immediately cancelled.
(c) The date for repayment or prepayment of a Lender's share in a Loan will
be:
(i) the Business Day following receipt by the Parent of notice
from the Lender under paragraph (a) above; or
(ii) if later, the latest date allowed by the relevant law.
8.2 MANDATORY PREPAYMENT - CHANGE OF CONTROL
(a) The Parent must promptly notify the Facility Agent if it becomes aware
of any person or group of persons acting in concert gaining control of
the Parent.
(b) After notification under paragraph (a) above, if the Majority Lenders
so require, the Facility Agent must, by notice to the Parent:
(i) immediately cancel the Total Commitments; and
(ii) declare all outstanding Loans, together with accrued interest
and all other amounts accrued under the Finance Documents, to
be due and payable on a day falling no earlier than 30 days
after that notice.
Any such notice will take effect in accordance with its terms.
(c) In paragraph (a) above:
CONTROL means the power to direct the management and policies of an
entity, whether through the ownership of voting capital, the power to
appoint a majority of directors, by contract or otherwise; and
ACTING IN CONCERT has the meaning given to it in the City Code on
Takeovers and Mergers.
8.3 MANDATORY PREPAYMENT - FUNDRAISING AND DISPOSALS
(a) In this Clause:
FUNDRAISING means:
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(i) any public issue or public offering of debt Securities or
convertible Securities for a cash or part-cash consideration;
and
(ii) any private placement of debt Securities or convertible
Securities for a cash or part-cash consideration,
but does not, for the avoidance of doubt, include any other issue or
placing of equity Securities.
PREPAYMENT DATE means:
(i) in relation to the Proceeds of a Fundraising or Relevant
Disposal, other than those specified in paragraph (ii) below,
the date falling five Business Days after any member of the
Group receives those Proceeds, or such later date as the
Majority Lenders may agree in relation to those Proceeds but
not, unless all the Lenders agree, later than the date falling
15 Business Days after the receipt of those proceeds; and
(ii) in relation to Proceeds which were intended to be re-invested
in the business of the Group in accordance with paragraph (2)
of the definition of "Proceeds" but were not so re-invested
within the time period allowed under that paragraph, the first
Business Day after the expiry of that time period.
PROCEEDS means, in respect of a Relevant Disposal or Fundraising by a
member of the Group, the gross consideration received by that member of
the Group for that Relevant Disposal or Fundraising less:
(i) all Taxes;
(ii) all commission, costs, fees and expenses (including
professional fees) directly incurred in respect of that
Relevant Disposal or Fundraising; and
(iii) in the case of a Relevant Disposal:
(A) such amount as the Parent determines, acting
reasonably, to be the amount of costs and taxes
incurred by the Group which are fairly attributable
to up-streaming the consideration for the Relevant
Disposal to the Borrower or making any distributions
in connection therewith;
(B) any amount required to be paid by any member of the
Group to the proprietor of any Intellectual Property
Rights related to the assets the subject of the
Relevant Disposal, where that payment is required to
enable those Intellectual Property Rights to be
transferred with those assets to the extent necessary
to facilitate the Relevant Disposal; and
(C) any reorganisation and/or restructuring costs
acceptable to the Majority Lenders (acting
reasonably) and associated with the Relevant
Disposal,
(that gross consideration less the amounts referred to at paragraphs
(i) to (iii) above being the NET PROCEEDS), but not, in the case of a
Relevant Disposal:
(1) the first US$5,000,000 (or equivalent) of the net proceeds in
respect of all Relevant Disposals in any financial year of the
Parent; or
21
(2) the first US$50,000,000 (or equivalent) of the net proceeds of
all Relevant Disposals since the date of this Agreement, where
those net proceeds are intended to be re-invested in the
business of the Group within six months of the date of the
Relevant Disposal.
RELEVANT DISPOSAL means any disposal other than:
(i) a disposal to another member of the Group; or
(ii) a disposal of stock in the ordinary course of trading.
SECURITIES includes bonds, notes, debentures, loan stock and similar
instruments (whether bearer or registered and whether or not
transferable).
(b) The Parent must notify the Facility Agent promptly if any member of the
Group receives the Proceeds of any Fundraising or enters into any
Relevant Disposal. The notification must specify the date on which the
Proceeds of the Fundraising were received or the Relevant Disposal
entered into (as appropriate) and the amount of the Proceeds.
(c) On the Prepayment Date in relation to any Proceeds:
(i) an amount equal to those Proceeds shall be applied towards
cancellation of:
(A) first, the Total Facility C Commitments; and
(B) secondly, but only if the Total Facility C
Commitments have been cancelled in full, the Total
Facility B Commitments; and
(ii) the Parent must ensure that sufficient Term Loans are repaid
so that immediately following the cancellation contemplated by
sub-paragraph (i) above, the aggregate principal amount of the
Term Loans outstanding under each of Facility B and Facility C
does not exceed the Total Commitments (as so cancelled) under
that Facility.
8.4 VOLUNTARY PREPAYMENT
(a) The Borrower may, by giving not less than five Business Days' prior
notice to the Facility Agent, prepay any Loan at any time in whole or
in part.
(b) A prepayment of part of a Loan must be in a minimum amount of
US$20,000,000 (or the equivalent in accordance with Clause 6 (Optional
Currencies)), and an integral multiple of 5,000,000 of the relevant
currency.
(c) Any prepayment of part of a Facility A Loan will be applied against the
share of each Lender in that Facility A Loan pro rata.
(d) No Facility B Loan may be prepaid under this Clause while any Facility
C Loan is outstanding.
8.5 AUTOMATIC CANCELLATION
The Commitment of each Lender will be automatically cancelled at the
close of business on the last day of the Availability Period.
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8.6 VOLUNTARY CANCELLATION
(a) The Borrower may, by giving not less than five Business Days' prior
notice to the Facility Agent, cancel the unutilised amount of the Total
Commitments in whole or in part.
(b) Partial cancellation of the Total Commitments must be in a minimum
amount of US$20,000,000 and an integral multiple of US$5,000,000.
(c) Any cancellation in part of any of the Total Commitments will be
applied against the relevant Commitment of each Lender pro rata.
(d) No Facility B Commitment may be cancelled under this Clause while any
Facility C Commitment is outstanding.
8.7 INVOLUNTARY PREPAYMENT AND CANCELLATION
(a) If the Borrower is, or will be, required to pay to a Lender a Tax
Payment or an Increased Cost, the Parent may, while the requirement
continues, give notice to the Facility Agent requesting prepayment and
cancellation in respect of that Lender.
(b) After notification under paragraph (a) above:
(i) the Borrower must repay or prepay that Lender's share in each
Loan made to it on the date specified in paragraph (c) below;
and
(ii) the Commitment of that Lender will be immediately cancelled.
(c) The date for repayment or prepayment of a Lender's share in a Loan will
be the last day of the Term for that Loan or, if earlier, the date
specified by the Parent in its notification.
8.8 RE-BORROWING OF LOANS
Any voluntary prepayment of a Facility A Loan may be re-borrowed on the
terms of this Agreement. Any mandatory or involuntary prepayment of a
Facility A Loan, and any prepayment of a Term Loan, may not be
re-borrowed.
8.9 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable and must specify the relevant date(s) and the affected
Loans and Commitments. The Facility Agent must notify the Lenders
promptly of receipt of any such notice.
(b) All prepayments under this Agreement must be made with accrued interest
on the amount prepaid. No premium or penalty is payable in respect of
any prepayment except for Break Costs.
(c) The Majority Lenders may agree a shorter notice period for a voluntary
prepayment or a voluntary cancellation.
(d) No prepayment or cancellation is allowed except in accordance with the
express terms of this Agreement.
(e) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
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9. INTEREST
9.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each day of its Term is the
percentage rate per annum equal to the aggregate of the applicable:
(a) Margin;
(b) IBOR on the applicable Rate Fixing Day; and
(c) Mandatory Cost.
9.2 PAYMENT OF INTEREST
Except where it is provided to the contrary in this Agreement, the
Borrower must pay accrued interest on each Loan made to it on the last
day of each Term and also, if the Term is longer than three months, on
the dates falling at three-monthly intervals after the first day of
that Term.
9.3 INTEREST ON OVERDUE AMOUNTS
(a) If an Obligor fails to pay any amount payable by it under the Finance
Documents, it must immediately on demand by the Facility Agent pay
interest on the overdue amount from its due date up to the date of
actual payment, both before, on and after judgment.
(b) Interest on an overdue amount is payable at a rate determined by the
Facility Agent to be one per cent. per annum above the rate which would
have been payable if the overdue amount had, during the period of
non-payment, constituted a Loan in the currency of the overdue amount.
For this purpose, the Facility Agent may (acting reasonably):
(i) select successive Terms of any duration of up to three months;
and
(ii) determine the appropriate Rate Fixing Day for that Term.
(c) Notwithstanding paragraph (b) above, if the overdue amount is a
principal amount of a Loan and becomes due and payable prior to the
last day of its current Term, then:
(i) the first Term for that overdue amount will be the unexpired
portion of that Term; and
(ii) the rate of interest on the overdue amount for that first Term
will be one per cent. per annum above the rate then payable on
that Loan.
After the expiry of the first Term for that overdue amount, the rate on
the overdue amount will be calculated in accordance with paragraph (b)
above.
(d) Interest (if unpaid) on an overdue amount will be compounded with that
overdue amount at the end of each of its Terms but will remain
immediately due and payable.
9.4 NOTIFICATION OF RATES OF INTEREST
The Facility Agent must promptly notify each relevant Party of the
determination of a rate of interest under this Agreement.
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9.5 MARGIN
(a) In this Clause:
CONSOLIDATED TOTAL NET DEBT and CONSOLIDATED EBITDA have the meanings
given in Clause 19 (Financial covenants) and will be determined from
the relevant Compliance Certificate.
MARGIN RESET DATE means:
(i) the date falling five Business Days after the delivery under
this Agreement of the Compliance Certificate in respect of the
Measurement Period ending on or after the first anniversary of
the date of this Agreement; and
(ii) each subsequent date falling five Business Days after the
delivery of a Compliance Certificate in respect of a
Measurement Period.
MARGIN PERIOD means:
(i) the period from (and including) the date of this Agreement to
(but excluding) the first Margin Reset Date (the FIRST MARGIN
PERIOD); and
(ii) each subsequent period from (and including) a Margin Reset
Date to (but excluding) the next Margin Reset Date.
MEASUREMENT PERIOD has the meaning given in Clause 19 (Financial
covenants).
(b) For the first Margin Period, the Margin shall be 1.25 per cent. per
annum.
(c) The applicable Margin for each Margin Period other than the first
Margin Period will be determined in accordance with the following
table:
APPLICABLE MARGIN
RATIO OF CONSOLIDATED TOTAL NET DEBT TO CONSOLIDATED EBITDA (PER CENT. PER ANNUM)
More than or equal to 2.0:1 1.25
More than or equal to 1.5:1 but less than 2.0:1 1.00
Less than 1.5:1 0.75
(d) Except as provided below, the Margin applicable on the first day of a
Term of a Loan will apply to that Loan throughout that Term.
(e) If the Margin has been determined under this Subclause in reliance on a
Compliance Certificate but the subsequent audited consolidated
financial statements of the Parent indicate a different ratio of
Consolidated Total Net Debt to Consolidated EBITDA, the Margin will
instead be that calculated by reference to the relevant audited
consolidated financial statements. If, in this event, any amount of
interest or commitment fee has been paid by the Borrower on the basis
of the Compliance Certificate, the Borrower must immediately pay to the
Facility Agent any shortfall in the amount which would have been paid
to the Lenders if the Margin had been calculated by reference to the
relevant audited consolidated financial statements.
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(f) Notwithstanding any other provision of this Subclause, for as long as
an Event of Default is outstanding the Margin applicable to each Loan
will be 1.25 per cent. per annum.
10. TERMS
10.1 SELECTION - FACILITY A LOANS
(a) Each Facility A Loan has one Term only.
(b) The Borrower must select the Term for a Facility A Loan in the relevant
Request.
(c) Subject to the following provisions of this Clause, each Term for a
Facility A Loan will be one, two, three or six months or any other
period agreed by the Borrower and the Lenders.
10.2 SELECTION - TERM LOANS
(a) Each Term Loan has successive Terms.
(b) The Borrower must select the first Term for a Term Loan in the relevant
Request and each subsequent Term in an irrevocable notice received by
the Facility Agent not later than 11.00 a.m. one Business Day before
the Rate Fixing Day for that Term. Each Term for a Term Loan will start
on its Utilisation Date or on the expiry of its preceding Term.
(c) If the Borrower fails to select a Term for an outstanding Term Loan
under paragraph (b) above, that Term will, subject to the other
provisions of this Clause, be three months.
(d) Subject to the following provisions of this Clause, each Term for a
Term Loan will be one, two, three or six months or any other period
agreed by the Borrower and the Lenders.
10.3 CONSOLIDATION - TERM LOANS
Unless the Borrower otherwise requests, a Term for a Term Loan will end
on the same day as the current Term for any other Term Loan denominated
in the same currency as that Term Loan. On the last day of those Terms,
those Term Loans will be consolidated and treated as one term Loan.
10.4 COINCIDENCE WITH REPAYMENT INSTALMENT DATES
(a) The Borrower may select any Term (of less than three months) for a Term
Loan (and may redesignate any Term Loan as two Term Loans) to ensure
that the amount of the Term Loans with a Term ending on a date for
repayment of a Repayment Instalment is not less than the Repayment
Instalment due on that date.
(b) If the Borrower fails to make a selection in the circumstances
envisaged in paragraph (a) above, the Facility Agent may, prior to the
Rate Fixing Day for the relevant Term, shorten any Term for a Term Loan
(and may designate any Term Loan as two Term Loans) to achieve the same
end.
10.5 NO OVERRUNNING
(a) If a Term for a Facility A Loan would otherwise overrun the Facility A
Final Maturity Date applicable on the Utilisation Date of that Facility
A Loan, it will be shortened so that it ends on the Facility A Final
Maturity Date.
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(b) If a Term for a Term Loan would otherwise overrun the Final Maturity
Date for the relevant Facility, it will be shortened so that it ends on
that Final Maturity Date.
10.6 OTHER ADJUSTMENTS
The Facility Agent and the Borrower may enter into such other
arrangements as they may agree for the adjustment of Terms and the
consolidation and/or splitting of Loans.
10.7 NOTIFICATION
The Facility Agent must notify the Borrower and the Lenders of the
duration of each Term promptly after ascertaining its duration.
11. MARKET DISRUPTION
11.1 FAILURE OF A REFERENCE BANK TO SUPPLY A RATE
If an IBOR is to be calculated by reference to the Reference Banks but
a Reference Bank does not supply a rate by 12.00 noon (local time) on a
Rate Fixing Day, the applicable IBOR will, subject as provided below,
be calculated on the basis of the rates of the remaining Reference
Banks.
11.2 MARKET DISRUPTION
(a) In this Clause, each of the following events is a MARKET DISRUPTION
EVENT:
(i) an IBOR is to be calculated by reference to the Reference
Banks but no, or only one, Reference Bank supplies a rate by
12.00 noon (local time) on the Rate Fixing Day; or
(ii) the Facility Agent receives by close of business on the Rate
Fixing Day notification from Lenders whose shares in the
relevant Loan exceed 30 per cent. of that Loan that the cost
to them of obtaining matching deposits in the relevant
interbank market is in excess of IBOR for the relevant Term.
(b) The Facility Agent must promptly notify the Parent and the Lenders of a
market disruption event.
(c) After notification under paragraph (b) above, except as provided below,
the rate of interest on each Lender's share in the affected Loan for
the relevant Term will be the aggregate of the applicable:
(i) Margin;
(ii) 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 Term, to be that which expresses as a
percentage rate per annum the cost to that Lender of funding
its share in that Loan from whatever source it may reasonably
select; and
(iii) Mandatory Cost.
11.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a market disruption event occurs and the Facility Agent or the
Parent so requires, the Parent and the Facility Agent must enter into
negotiations for a period of not more than 30 days with
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a view to agreeing an alternative basis for determining the rate of
interest and/or funding for the affected Loan and any future Loan.
(b) Any alternative basis agreed will be, with the prior consent of all the
Lenders, binding on all the Parties.
12. TAXES
12.1 GENERAL
In this Clause:
EXEMPT LENDER means a Lender which is entitled, under the domestic law
of the Republic of Ireland, to receive payments of interest free of any
deduction or withholding for or on account of Tax from companies
incorporated and resident for tax purposes in the Republic of Ireland.
QUALIFYING LENDER means a Lender which is:
(a) an Exempt Lender; or
(b) a Treaty Lender.
TAX CREDIT means a credit against any Tax or any relief or remission
for Tax (or its repayment).
TREATY LENDER means a Lender which is, on the date a payment of
interest falls due under this Agreement:
(a) resident (as defined in the appropriate double taxation
agreement) in a country with which the Republic of Ireland has
a double taxation agreement giving residents of that country a
full exemption from taxation on interest imposed by the
Republic of Ireland; and
(b) does not carry on a business in the Republic of Ireland
through a permanent establishment with which the payment is
effectively connected.
12.2 TAX GROSS-UP
(a) Each Obligor must make all payments to be made by it under the Finance
Documents without any Tax Deduction, unless a Tax Deduction is required
by law.
(b) If:
(i) a Lender is not, or ceases to be, a Qualifying Lender; or
(ii) an Obligor or a Lender is aware that an Obligor must make a
Tax Deduction (or that there is a change in the rate or the
basis of a Tax Deduction),
it must promptly notify the Facility Agent. The Facility Agent must
then promptly notify, in the case of sub-paragraph (i) the Parent, and
in the case of sub-paragraph (ii) the Parent or the applicable Lender,
as the case may be.
(c) Except as provided below, if a Tax Deduction is required by law to be
made by an Obligor or the Facility Agent, the amount of the payment due
from the Obligor will be increased to an
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amount which (after making the Tax Deduction) leaves an amount
equal to the payment which would have been due if no Tax
Deduction had been required.
(d) Except as provided below, an Obligor resident for tax purposes
in the Republic of Ireland is not required to make an
increased payment under paragraph (c) above to a Lender that
is not, or has ceased to be, a Qualifying Lender in excess of
the amount that the Obligor would have had to pay had the
Lender been, or not ceased to be, a Qualifying Lender.
(e) Paragraph (d) above will not apply if the Lender has ceased to
be a Qualifying Lender by reason of any change after the date
it became a Lender under this Agreement in (or in the
interpretation, administration, or application of) any law or
double taxation agreement or any published practice or
concession of any relevant taxing authority.
(f) An Obligor resident for tax purposes in the Republic of
Ireland is not required to make an increased payment to a
Lender under paragraph (c) above if that Lender is a Treaty
Lender and the Obligor making the payment is able to
demonstrate that the Tax Deduction would not have been
required if the Lender had complied with its obligations under
paragraph (i) below.
(g) If an Obligor is required to make a Tax Deduction, that
Obligor must make the minimum Tax Deduction and must make any
payment required in connection with that Tax Deduction within
the time allowed by law.
(h) Within 30 days of making either a Tax Deduction or a payment
required in connection with a Tax Deduction, the Obligor
making that Tax Deduction or payment must deliver to the
Facility Agent for the relevant Finance Party evidence
satisfactory to that Finance Party (acting reasonably) that
the Tax Deduction has been made or (as applicable) the
appropriate payment has been paid to the relevant taxing
authority.
(i) A Lender must co-operate with each Obligor by using its
reasonable endeavours to complete any procedural formalities
necessary for that Obligor to obtain authorisation to make
that payment without a Tax Deduction.
12.3 TAX INDEMNITY
(a) Except as provided below, the Borrower must indemnify a
Finance Party against any loss or liability which that Finance
Party (in its absolute discretion) determines will be or has
been suffered (directly or indirectly) by that Finance Party
for or on account of Tax in relation to a payment received or
receivable (or any payment deemed to be received or
receivable) under a Finance Document.
(b) Paragraph (a) above does not apply to any Tax assessed on a
Finance Party under the laws of the jurisdiction in which:
(i) that Finance Party is incorporated or, if different,
the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax
purposes; or
(ii) that Finance Party's Facility Office is located in
respect of amounts received or receivable in that
jurisdiction,
if that Tax is imposed on or calculated by reference to the
net income received or receivable by that Finance Party.
However, any payment deemed to be received or receivable,
including any amount treated as income but not actually
received by the Finance Party, such as a Tax Deduction, will
not be treated as net income received or receivable for this
purpose.
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(c) A Finance Party making, or intending to make, a claim under paragraph
(a) above must promptly notify the Parent of the event which will give,
or has given, rise to the claim.
12.4 TAX CREDIT
If an Obligor makes a Tax Payment and the relevant Finance Party (in
its absolute discretion) determines that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) it has obtained, used and retained that Tax Credit,
the Finance Party must pay an amount to the Obligor which that Finance
Party determines (in its absolute discretion) will leave it (after that
payment) in the same after-tax position as it would have been in if the
Tax Payment had not been made by the Obligor.
12.5 STAMP TAXES
The Borrower must pay and indemnify each Finance Party against any
stamp duty, registration or other similar Tax payable in connection
with the entry into, performance or enforcement of any Finance
Document, except for any such Tax payable in connection with a Transfer
Certificate.
12.6 VALUE ADDED TAXES
(a) Any amount (including costs and expenses) payable under a Finance
Document by an Obligor is exclusive of any value added tax or any other
Tax of a similar nature which might be chargeable in connection with
that amount. If any such Tax is chargeable, the Obligor must pay to the
Finance Party (in addition to and at the same time as paying that
amount) an amount equal to the amount of that Tax. The relevant Finance
Party must, where appropriate, issue a valid VAT invoice to the
relevant Obligor.
(b) The obligation of any Obligor under any Finance Document to reimburse
any Finance Party in respect of any costs and expenses will be reduced
to the extent that the relevant costs and expenses include any value
added tax or any other Tax of a similar nature in respect of which the
Finance Party determines (acting reasonably) that it is entitled to a
repayment or a credit.
13. INCREASED COSTS
13.1 INCREASED COSTS
Except as provided below in this Clause, the Borrower must pay to a
Finance Party the amount of any Increased Cost incurred by that Finance
Party or any of its Affiliates as a result of:
(a) the introduction of, or any change in, or any change in the
interpretation or application of, any law or regulation; or
(b) compliance with any law or regulation,
made after the date of this Agreement.
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13.2 EXCEPTIONS
The Borrower need not make any payment for an Increased Cost to the
extent that the Increased Cost is:
(a) compensated for under another Clause or would have been but
for an exception to that Clause;
(b) a tax on the overall net income of a Finance Party or any of
its Affiliates; or
(c) attributable to a Finance Party or its Affiliate wilfully
failing to comply with any law or regulation.
13.3 CLAIMS
A Finance Party intending to make a claim for an Increased Cost must
notify the Borrower promptly of the circumstances giving rise to, and
the amount of, the claim.
14. MITIGATION
14.1 MITIGATION
(a) Each Finance Party must, in consultation with the Parent, take all
reasonable steps to mitigate any circumstances which arise and which
result or would result in:
(i) any Tax Payment or Increased Cost being payable to that
Finance Party;
(ii) that Finance Party being able to exercise any right of
prepayment and/or cancellation under this Agreement by reason
of any illegality; or
(iii) that Finance Party incurring any cost of complying with the
minimum reserve requirements of the European Central Bank,
including transferring its rights and obligations under the Finance
Documents to an Affiliate or changing its Facility Office.
(b) The Borrower must indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of any
step taken by it under this Subclause.
(c) A Finance Party is not obliged to take any step under this Subclause
if, in the opinion of that Finance Party (acting reasonably), to do so
might be prejudicial to it.
14.2 CONDUCT OF BUSINESS BY A FINANCE PARTY
No term 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 in respect of
Tax or the extent, order and manner of any claim; or
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(c) oblige any Finance Party to disclose any information relating
to its affairs (Tax or otherwise) or any computation in
respect of Tax.
15. PAYMENTS
15.1 PLACE
Unless a Finance Document specifies that payments under it are to be
made in another manner, all payments by a Party (other than the
Facility Agent) under the Finance Documents must be made to the
Facility Agent to its account at such office or bank:
(a) in the principal financial centre of the country of the
relevant currency; or
(b) in the case of Euro, in the principal financial centre of a
Participating Member State or London,
as it may notify to that Party for this purpose by not less than five
Business Days' prior notice.
15.2 FUNDS
Payments under the Finance Documents to the Facility Agent must be made
for value on the due date at such times and in such funds as the
Facility Agent may specify to the Party concerned as being customary at
the time for the settlement of transactions in the relevant currency in
the place for payment.
15.3 DISTRIBUTION
(a) Each payment received by the Facility Agent under the Finance Documents
for another Party must, except as provided below, be made available by
the Facility Agent to that Party by payment (as soon as practicable
after receipt) to its account with such office or bank:
(i) in the principal financial centre of the country of the
relevant currency; or
(ii) in the case of Euro, in the principal financial centre of a
Participating Member State or London,
as it may notify to the Facility Agent for this purpose by not less
than five Business Days' prior notice.
(b) The Facility Agent may apply any amount received by it for an Obligor
in or towards payment (as soon as practicable after receipt) of any
amount due from that Obligor under the Finance Documents or in or
towards the purchase of any amount of any currency to be so applied.
(c) Where a sum is paid to the Facility Agent under this Agreement for
another Party, the Facility Agent is not obliged to pay that sum to
that Party until it has established that it has actually received it.
However, the Facility Agent may assume that the sum has been paid to
it, and, in reliance on that assumption, make available to that Party a
corresponding amount. If it transpires that the sum has not been
received by the Facility Agent, that Party must immediately on demand
by the Facility Agent refund any corresponding amount made available to
it together with interest on that amount from the date of payment to
the date of receipt by the Facility Agent at a rate calculated by the
Facility Agent to reflect its cost of funds.
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15.4 CURRENCY
(a) Unless a Finance Document specifies that payments under it are to be
made in a different manner, the currency of each amount payable under
the Finance Documents is determined under this Clause.
(b) Interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
(c) A repayment or prepayment of any principal amount is payable in the
currency in which that principal amount is denominated on its due date.
(d) Amounts payable in respect of costs, expenses or taxes are payable in
the currency in which they are incurred.
(e) Each other amount payable under the Finance Documents is payable in US
Dollars.
15.5 NO SET-OFF OR COUNTERCLAIM
All payments made by an Obligor under the Finance Documents must be
made without set-off or counterclaim.
15.6 BUSINESS DAYS
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment will instead be the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not) or whatever day the Facility
Agent determines is market practice.
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on that principal at the rate
payable on the original due date.
15.7 PARTIAL PAYMENTS
(a) If any Administrative Party receives a payment insufficient to
discharge all the amounts then due and payable by the Obligors under
the Finance Documents, the Administrative Party must apply that payment
towards the obligations of the Obligors under the Finance Documents in
the following order:
(i) FIRST, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Administrative Parties under the
Finance Documents;
(ii) SECONDLY, in or towards payment pro rata of any accrued
interest or fee due but unpaid under this Agreement;
(iii) THIRDLY, in or towards payment pro rata of any principal
amount due but unpaid under this Agreement; and
(iv) FOURTHLY, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
(b) The Facility Agent must, if so directed by all the Lenders, vary the
order set out in sub-paragraphs (a)(ii) to (iv) above.
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(c) This Subclause will override any appropriation made by an Obligor.
15.8 TIMING OF PAYMENTS
If a Finance Document does not provide for when a particular payment is
due, that payment will be due within three Business Days of demand by
the relevant Finance Party.
16. GUARANTEE AND INDEMNITY
16.1 GUARANTEE AND INDEMNITY
Each Guarantor jointly and severally and irrevocably and
unconditionally:
(a) guarantees to each Finance Party punctual performance by the
Borrower of all its payment obligations under the Finance
Documents;
(b) undertakes with each Finance Party that, whenever the Borrower
does not pay any amount when due under any Finance Document,
that Guarantor must immediately on demand by the Facility
Agent pay that amount as if it were the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against
any 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 loss or liability under
this indemnity will be equal to the amount the Finance Party
would otherwise have been entitled to recover. In this
paragraph, a reference to an OBLIGATION includes anything
which would be an obligation but for its unenforceability,
invalidity or illegality.
16.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the Borrower under the Finance
Documents, regardless of any intermediate payment or discharge in whole
or in part.
16.3 REINSTATEMENT
(a) If any discharge (whether in respect of the obligations of any Obligor
or any security for those obligations or otherwise) or arrangement is
made in whole or in part on the faith of any payment, security or other
disposition which is avoided or must be restored on insolvency,
liquidation or otherwise without limitation, the liability of each
Guarantor under this Clause will continue as if the discharge or
arrangement had not occurred.
(b) Each Finance Party may concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
restoration.
16.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause will not be
affected by any act, omission or thing which, but for this provision,
would reduce, release or prejudice any of its obligations under this
Clause (whether or not known to it or any Finance Party). This
includes:
(a) any time or waiver granted to, or composition with, any
person;
(b) any release of any person under the terms of any composition
or arrangement;
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(c) the taking, variation, compromise, exchange, extension or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, any
person;
(d) 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;
(e) any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or
status of any person;
(f) any amendment (however fundamental) of a Finance Document or
any other document or security;
(g) any unenforceability, illegality, invalidity or
non-provability of any obligation of any person under any
Finance Document or any other document or security; or
(h) any insolvency or similar proceedings.
16.5 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 right or security or claim payment from
any person before claiming from that Guarantor under this Clause.
16.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors under
the Finance Documents have been irrevocably paid in full, each Finance
Party (or any trustee or agent on its behalf) may:
(a) without affecting the liability of any Guarantor under this
Clause:
(i) 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
(ii) apply and enforce them in such manner and order as it
sees fit (whether against those amounts or
otherwise); and
(b) hold in an interest-bearing suspense account any moneys
received from any Guarantor or on account of that Guarantor's
liability under this Clause.
16.7 NON-COMPETITION
Unless:
(a) all amounts which may be or become payable by the Obligors
under the Finance Documents have been irrevocably paid in
full; or
(b) the Facility Agent otherwise directs,
no Guarantor will, after a claim has been made or by virtue of any
payment or performance by it under this Clause:
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(i) be subrogated to any rights, security or moneys held, received
or receivable by any Finance Party (or any trustee or agent on
its behalf);
(ii) be entitled to any right of contribution or indemnity in
respect of any payment made or moneys received on account of
that Guarantor's liability under this Clause;
(iii) claim, rank, prove or vote as a creditor of any Obligor or its
estate in competition with any Finance Party (or any trustee
or agent on its behalf); or
(iv) receive, claim or have the benefit of any payment,
distribution or security from or on account of any Obligor, or
exercise any right of set-off as against any Obligor.
Each Guarantor must hold in trust for and immediately pay or transfer
to the Facility Agent for the Finance Parties any payment or
distribution or benefit of security received by it contrary to this
Clause or in accordance with any directions given by the Facility Agent
under this Clause.
16.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by
any other security now or subsequently held by any Finance Party.
17. REPRESENTATIONS
17.1 REPRESENTATIONS
Each representation set out in this Clause is made to each Finance
Party. Unless a representation so states, each representation is made
by each Obligor.
17.2 STATUS
(a) It is a limited liability company, duly incorporated and validly
existing under the laws of its jurisdiction of incorporation.
(b) It and each of its Subsidiaries has the power to own its assets and
carry on its business as it is being conducted.
17.3 POWERS AND AUTHORITY
It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into and performance of, the Transaction
Documents to which it is or will be a party and the transactions
contemplated by those Transaction Documents.
17.4 LEGAL VALIDITY
Subject to any general principles of law limiting its obligations and
referred to in any legal opinion required under this Agreement, each
Transaction Document to which it is a party is its legally binding,
valid and enforceable obligation.
17.5 NON-CONFLICT
The entry into and performance by it of, and the transactions
contemplated by, the Transaction Documents do not conflict with:
36
(a) any law or regulation applicable to it;
(b) its or any of its Subsidiaries' constitutional documents; or
(c) any document which is binding upon it or any of its
Subsidiaries or any of its or its Subsidiaries' assets in a
manner or to an extent which is reasonably likely to have a
Material Adverse Effect.
17.6 NO DEFAULT
(a) No Default is outstanding.
(b) No Event of Default is outstanding or will result from the execution
of, or the performance of any transaction contemplated by, any
Transaction Document.
(c) No other event is outstanding which constitutes a default under any
document which is binding on it or any of its Subsidiaries or any of
its or its Subsidiaries' assets to an extent or in a manner which is
reasonably likely to have a Material Adverse Effect.
17.7 AUTHORISATIONS
All authorisations required by it in connection with the entry into,
performance, validity and enforceability of, and the transactions
contemplated by, the Transaction Documents have been obtained or
effected (as appropriate) and are in full force and effect, the failure
to obtain or effect which is reasonably likely to have a Material
Adverse Effect.
17.8 FINANCIAL STATEMENTS
Its audited financial statements most recently delivered to the
Facility Agent (which, in the case of the Parent at the date of this
Agreement, are the Original Financial Statements):
(a) have been prepared in accordance with accounting principles
and practices generally accepted in its jurisdiction of
incorporation, consistently applied, except as disclosed to
the contrary in those financial statements; and
(b) fairly represent its financial condition (consolidated, if
applicable) as at the date to which they were drawn up.
17.9 NO MATERIAL ADVERSE CHANGE
In the case of the Parent only, there has been no material adverse
change in the consolidated financial condition or the business of the
Parent since the date to which the Original Financial Statements were
drawn up.
17.10 LITIGATION
Other than as disclosed in the latest draft of the Circular delivered
to the Facility Agent prior to the date of this Agreement, no
litigation, arbitration or administrative proceedings are current or,
to its knowledge, pending or threatened, which, if adversely
determined, are reasonably likely to have a Material Adverse Effect.
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17.11 TAXES ON PAYMENTS
As at the date of this Agreement, all amounts payable by it under the
Finance Documents may be made without any Tax Deduction.
17.12 STAMP DUTIES
As at the date of this Agreement, no stamp or registration duty or
similar Tax or charge is payable in its jurisdiction of incorporation
in respect of any Finance Document.
17.13 INFORMATION
(a) In this Subclause:
DUE DILIGENCE REPORT means the Patents Report and the Working Capital
Report.
INFORMATION means all factual information furnished by any member of
the Group to a Report Provider (except for information related to any
Target Assets or Xxx Xxxxx Assets which was originally provided by Xxx
Lilly, Pfizer or their respective advisers under a Sale & Purchase
Agreement) for the purposes of the Due Diligence Report prepared by
that Report Provider.
INFORMATION MEMORANDUM means the information memorandum prepared on
behalf of, and approved by, the Parent in connection with this
Agreement.
PATENTS REPORT means the patents report referred to in Part 1 of
Schedule 2 (Conditions precedent documents) under the heading "Due
diligence documents" as updated by any supplementary report in form and
substance satisfactory to the Facility Agent.
WORKING CAPITAL REPORT means the working capital report referred to in
Part 1 of Schedule 2 (Conditions precedent documents) under the heading
"Due diligence documents".
REPORT PROVIDER means each firm which prepared a Due Diligence Report.
(b) In the case of the Parent only:
(i) to the best of the Parent's knowledge and belief, the factual
information contained in each Due Diligence Report was true
and accurate in all material respects at the date of that Due
Diligence Report or (as appropriate) as at the date at which
it is stated to be given;
(ii) the Information Memorandum and the Information were true and
accurate in all material respects at their date or (as
appropriate) the date when they were stated to be given;
(iii) no information is omitted from any Information, the
Information Memorandum or, to the best of the Parent's
knowledge and belief, any Due Diligence Report which, if
disclosed, would make that Information, the Information
Memorandum or that Due Diligence Report untrue or misleading
in any material respect as at its date or (as appropriate) the
date at which it is stated to be given; and
(iv) nothing has occurred since the date of any Information or the
Information Memorandum or, to the best of the Parent's
knowledge and belief, the date of the
38
Patents Report which, if disclosed, would make that
Information, the Information Memorandum or the Patents Report
untrue or misleading in any material respect.
(v) all financial projections contained in any Information or the
Information Memorandum and, to the best of the Parent's
knowledge and belief, the Due Diligence Reports, were prepared
on the basis of recent and accurate historical information and
on reasonable assumptions;
(vi) each expression of opinion or intention attributed to any
member of the Group in any Due Diligence Report or the
Information Memorandum is correctly attributed, was made after
careful consideration and enquiry and is believed by the
Parent to be reasonable.
17.14 ACQUISITION DOCUMENTS
In the case of the Parent only, at the date of this Agreement:
(a) to the best of the Parent's knowledge, no representation or
warranty given by any party in any Acquisition Agreement is
untrue or misleading in any material respect; and
(b) the Acquisition Agreements contain all the material terms of
the Acquisitions.
17.15 JURISDICTION AND GOVERNING LAW
(a) Its:
(i) irrevocable submission under this Agreement to the
jurisdiction of the courts of England; and
(ii) agreement that this Agreement is governed by English law,
are legal, valid and binding under the laws of its jurisdiction of
incorporation.
(b) Any judgment obtained in England will be recognised and be enforceable
by the courts of its jurisdiction of incorporation.
17.16 TIMES FOR MAKING REPRESENTATIONS
(a) The representations set out in this Clause are made by each Original
Obligor on the date of this Agreement.
(b) Each of the representations set out in Clauses 17.2 (Status) to 17.5
(Non-conflict), 17.6(b) and (c) (No default), 17.7 (Authorisations),
17.8 (Financial statements) and 17.15 (Jurisdiction and governing law)
is deemed to be repeated by:
(i) each Additional Guarantor and the Borrower on the date that
Additional Guarantor becomes an Additional Guarantor; and
(ii) each Obligor on the date of each Request and Extension Request
and on the first day of each Term.
39
(c) Each of the representations set out in Clause 17.13 (Information) is
deemed to be repeated by each Obligor on the date (as notified by the
Facility Agent to the Parent) on which the general syndication of the
Facilities is completed.
(d) Each of the representations set out in Clause 17.14 (Acquisition
Documents) is deemed to be repeated by the Parent on the date on which
an Acquisition is completed, in respect of that Acquisition.
(e) When a representation is repeated, it is applied to the circumstances
existing at the time of repetition.
18. INFORMATION COVENANTS
18.1 FINANCIAL STATEMENTS
(a) The Parent must supply to the Facility Agent in sufficient copies for
all the Lenders:
(i) its audited consolidated financial statements for each of its
financial years;
(ii) the audited unconsolidated financial statements of each other
Obligor for each of its financial years; and
(iii) its interim financial statements for each quarter of each of
its financial years and the first half of each of its
financial years.
(b) All financial statements must be supplied as soon as they are available
and:
(i) in the case of the Parent's audited consolidated financial
statements, within 120 days;
(ii) in the case of the audited unconsolidated financial statements
of each other Obligor, within 6 months; and
(iii) in the case of the Parent's interim quarterly and half-yearly
financial statements, within 60 days,
of the end of the relevant financial period.
(c) The Parent's obligation to supply its audited consolidated accounts
under this Clause continues for as long as any amount could be payable
under Clause 9.5(e) (Margin).
18.2 FORM OF FINANCIAL STATEMENTS
(a) The Parent must ensure that each set of financial statements supplied
under this Agreement gives (if audited) a true and fair view of, or (if
unaudited) fairly represents, the financial condition (consolidated or
otherwise) of the relevant person as at the date to which those
financial statements were drawn up.
(b) The Parent must notify the Facility Agent of any change to the basis on
which its audited consolidated financial statements are prepared.
(c) If requested by the Facility Agent (acting on the instructions of the
Majority Lenders), the Parent must supply to the Facility Agent:
(i) a full description of any change notified under paragraph (b)
above; and
40
(ii) sufficient information to enable the Finance Parties to make a
proper comparison between the financial position shown by the
set of financial statements prepared on the changed basis and
its most recent audited consolidated financial statements
delivered to the Facility Agent under this Agreement.
(d) If requested by the Facility Agent (acting on the instructions of the
Majority Lenders) the Parent must enter into discussions for a period
of not more than 30 days with a view to agreeing any amendments
required to be made to this Agreement to place the Obligors and the
Lenders in the same position as they would have been in if the change
had not happened. Any agreement between the Parent and the Facility
Agent will be, with the prior consent of the Majority Lenders, binding
on all the Parties.
(e) If no agreement is reached under paragraph (d) above on the required
amendments to this Agreement, the Parent must supply with each set of
its financial statements another set of its financial statements
prepared on the same basis as the Original Financial Statements.
18.3 COMPLIANCE CERTIFICATE
(a) The Parent must supply to the Facility Agent a Compliance Certificate
with each set of its financial statements sent to the Facility Agent
under this Agreement.
(b) A Compliance Certificate must be signed by two directors of the Parent.
18.4 INFORMATION - MISCELLANEOUS
The Parent must supply to the Facility Agent, in sufficient copies for
all the Lenders if the Facility Agent so requests:
(a) copies of all documents despatched by the Parent to its
shareholders or its creditors generally (or any class of
either of them) 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 could reasonably
be expected, if adversely determined, to have a Material
Adverse Effect;
(c) promptly upon becoming aware of them, details of any claim or
potential claim in an amount of L1,000,000 or more made by or
against a member of the Group under an Acquisition Document;
(d) promptly on request, a list of the then current Material
Subsidiaries; and
(e) promptly on request, such further information regarding the
financial condition and operations of the Group as any Finance
Party through the Facility Agent may reasonably request.
18.5 NOTIFICATION OF DEFAULT
(a) Unless the Facility Agent has already been so notified by another
Obligor, each Obligor must notify the Facility Agent of any Default
(and the steps, if any, being taken to remedy it) promptly upon
becoming aware of its occurrence.
(b) Promptly on request by the Facility Agent, the Parent must supply to
the Facility Agent a certificate, signed by two of its authorised
signatories on its behalf, certifying that no Default
41
is outstanding or, if a Default is outstanding, specifying the Default
and the steps, if any, being taken to remedy it.
18.6 YEAR END
The Parent must not change its financial year end.
19. FINANCIAL COVENANTS
19.1 DEFINITIONS
In this Clause:
CONSOLIDATED CASH AND CASH EQUIVALENTS means, at any time:
(a) cash in hand or on deposit with any acceptable bank;
(b) certificates of deposit, maturing within one year after the
relevant date of calculation, issued by an acceptable bank;
(c) any investment in marketable obligations issued or guaranteed
by the government of the United States of America or the UK or
by an instrumentality or agency of the government of the
United States of America or the UK having an equivalent credit
rating;
(d) open market commercial paper:
(i) for which a recognised trading market exists;
(ii) issued in the United States of America or the UK;
(iii) which matures within one year after its issue; and
(iv) which has a credit rating of either A-1 by Standard &
Poor's or FitchIBCA or P-1 by Xxxxx'x;
(e) Sterling bills of exchange eligible for rediscount at the Bank
of England and accepted by an acceptable bank; or
(f) any other instrument, security or investment approved by the
Majority Lenders,
in each case, to which any member of the Group is beneficially entitled
at that time and which is capable of being applied against Consolidated
Total Borrowings. An ACCEPTABLE BANK for this purpose is a commercial
bank or trust company which has a rating of A or higher by Standard &
Poor's or FitchIBCA or A2 or higher by Xxxxx'x or a comparable rating
from a nationally recognised credit rating agency for its long-term
debt obligations or has been approved by the Majority Lenders.
CONSOLIDATED EBIT means the consolidated net pre-taxation profits of
the Group for a Measurement Period, adjusted by:
(a) adding back Consolidated Net Interest Expenses;
(b) taking no account of any exceptional item;
42
(c) excluding any amount attributable to minority interests; and
(d) taking no account of any revaluation of an asset or any loss
or gain over book value arising on the disposal of an asset
(otherwise than in the ordinary course of trading) by a member
of the Group during that Measurement Period.
CONSOLIDATED EBITDA means the consolidated net pre-taxation profits of
the Group for a Measurement Period, adjusted by:
(a) adding back Consolidated Net Interest Expenses;
(b) taking no account of any exceptional item;
(c) excluding any amount attributable to minority interests;
(d) adding back depreciation and amortisation; and
(e) taking no account of any revaluation of an asset or any loss
or gain over book value arising on the disposal of an asset
(otherwise than in the ordinary course of trading) by a member
of the Group during that Measurement Period.
CONSOLIDATED INTEREST PAYABLE means all interest and other financing
charges (whether, in each case, paid, payable or capitalised), incurred
by the Group during a Measurement Period.
CONSOLIDATED INTEREST RECEIVABLE means all interest and other financing
charges received or receivable by the Group during a Measurement
Period.
CONSOLIDATED NET INTEREST EXPENSES means Consolidated Interest Payable
less Consolidated Interest Receivable during the relevant Measurement
Period.
CONSOLIDATED NET WORTH means at any time the aggregate of:
(a) the amount paid up or credited as paid up on the issued share
capital of the Parent; and
(b) the amount standing to the credit of the consolidated capital
and revenue reserves of the Group,
based on the latest published audited consolidated balance sheet of the
Parent (THE LATEST BALANCE SHEET) but adjusted by:
(i) adding any amount standing to the credit of the profit and
loss account of the Group for the period ending on the date of
the latest balance sheet to the extent not included in
sub-paragraph (b) above;
(ii) deducting any dividend or other distribution declared,
recommended or made by any member of the Group;
(iii) deducting any amount standing to the debit of the profit and
loss account of the Group for the period ending on the date of
the latest balance sheet;
(iv) deducting any amount attributable to an upward revaluation of
assets after the date of the Original Financial Statements or,
in the case of assets of a company which
43
becomes a member of the Group after that date, the date on
which that company becomes a member of the Group;
(v) reflecting any variation in the amount of the issued share
capital of the Parent and the consolidated capital and revenue
reserves of the Group after the date of the latest balance
sheet;
(vi) reflecting any variation in the interest of the Parent in any
other member of the Group since the date of the latest balance
sheet;
(vii) excluding any amount attributable to deferred taxation; and
(viii) excluding any amount attributable to minority interests.
CONSOLIDATED TOTAL BORROWINGS means, in respect of the Group, at any
time the aggregate of the following:
(a) the outstanding principal amount of any moneys borrowed;
(b) the outstanding principal amount of any acceptance under any
acceptance credit;
(c) the outstanding principal amount of any bond, note, debenture,
loan stock or other similar instrument;
(d) the capitalised element of indebtedness under a finance or
capital lease;
(e) the outstanding principal amount of all moneys owing in
connection with the sale or discounting of receivables
(otherwise than on a non-recourse basis);
(f) the outstanding principal amount of any indebtedness arising
from any deferred payment agreements arranged primarily as a
method of raising finance or financing the acquisition of an
asset;
(g) any fixed or minimum premium payable on the repayment or
redemption of any instrument referred to in paragraph (c)
above;
(h) the outstanding principal amount of any indebtedness arising
in connection with any other transaction (including any
forward sale or purchase agreement) which has the commercial
effect of a borrowing; and
(i) the outstanding principal amount of any indebtedness of any
person of a type referred to in paragraphs (a) to (h) above
which is the subject of a guarantee, indemnity or similar
assurance against financial loss given by a member of the
Group.
CONSOLIDATED TOTAL NET DEBT means at any time Consolidated Total
Borrowings less Consolidated Cash and Cash Equivalents.
MEASUREMENT PERIOD means each period of 12 months ending on the last
day of a financial year or half-year of the Parent.
MINIMUM CONSOLIDATED NET WORTH means:
(a) for any financial year of the Parent ending on or before 30th
September, 2004, US$900,000,000; and
44
(b) for any subsequent financial year of the Parent:
(i) the Minimum Consolidated Net Worth applicable to the
previous financial year of the Parent; plus
(ii) if positive, 50 per cent. of the amount of profit
(after deduction of dividends) shown in the
consolidated profit and loss account of the Group for
that financial year.
19.2 INTERPRETATION
(a) Except as provided to the contrary in this Agreement, an accounting
term used in this Clause is to be construed in accordance with the
principles applied in connection with the Original Financial
Statements.
(b) Any amount in a currency other than US Dollars is to be taken into
account at its US Dollar equivalent calculated on the basis of the
relevant rates of exchange used by the Parent in, or in connection
with, its financial statements for the relevant period.
(c) No item must be credited or deducted more than once in any calculation
under this Clause.
19.3 GEARING
(a) The Parent must ensure that the ratio of Consolidated Total Net Debt at
the end of each Measurement Period to Consolidated EBITDA for that
Measurement Period does not exceed:
(i) for any Measurement Period ending on or before 31st March,
2004, 3.0:1;
(ii) for any Measurement Period ending after 31st March, 2004 but
on or before 30th September, 2004, 2.75:1; and
(iii) for any subsequent Measurement Period, 2.5:1.
(b) For the purposes of this Clause 19.3 (Gearing), in calculating
Consolidated EBITDA for any Measurement Period during which any Target
Assets or Xxx Xxxxx Assets were acquired by the Group, the consolidated
net pre-taxation profits of the Group attributable to those Target
Assets or Xxx Lilly Assets will be included on an annualised basis (by
dividing the amount of those profits by the number of days from (and
including) the acquisition of those Target Assets or Xxx Xxxxx Assets
to (and including) the last day of the Measurement Period and
multiplying by the number of days in the Measurement Period).
19.4 INTEREST COVER
The Parent must ensure that the ratio of Consolidated EBIT to
Consolidated Net Interest Expenses is not, for each Measurement Period,
less than:
(a) for any Measurement Period ending on or before 30th September,
2004, 5.0:1; and
(b) for any subsequent Measurement Period, 7.0:1.
45
19.5 CONSOLIDATED NET WORTH
The Parent must ensure that Consolidated Net Worth is not, at the end
of each Measurement Period less than the Minimum Consolidated Net Worth
applicable to the financial year of the Parent in which that
Measurement Period ends.
19.6 GUARANTOR COVER
(a) The Parent must ensure that within 30 days of any member of the Group
becoming a Material Subsidiary (or, in the case of a Xxxxxx Xxxxxxxx
Company which is a Material Subsidiary, within 30 days of this
paragraph applying to that Material Subsidiary), that member of the
Group becomes an Additional Guarantor (unless the Facility Agent,
acting reasonably, is satisfied that it would be unlawful for that
Group Company to become an Additional Guarantor).
(b) Paragraph (a) does not apply to any Xxxxxx Xxxxxxxx Company while any
Xxxxxx Xxxxxxxx Bonds are outstanding.
20. GENERAL COVENANTS
20.1 GENERAL
Each Obligor agrees to be bound by the covenants set out in this Clause
relating to it and, where the covenant is expressed to apply to each
member of the Group, each Obligor must ensure that each of its
Subsidiaries performs that covenant.
20.2 AUTHORISATIONS
Each Obligor must promptly obtain, maintain and comply with the terms
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 except where failure to do so could not
reasonably be expected to have a Material Adverse Effect.
20.3 COMPLIANCE WITH LAWS
Each member of the Group must comply in all respects with all laws to
which it is subject (including without limitation Tax laws) where
failure to do so could reasonably be expected to have a Material
Adverse Effect.
20.4 PARI PASSU RANKING
Each Obligor must ensure that its payment obligations under the Finance
Documents rank at least pari passu with all its other present and
future unsubordinated and unsecured payment obligations, except for
obligations mandatorily preferred by law applying to companies
generally.
20.5 NEGATIVE PLEDGE
(a) Except as provided below, no member of the Group may create or allow to
exist any Security Interest on any of its assets.
(b) Paragraph (a) does not apply to:
(i) any lien arising by operation of law and in the ordinary
course of trading; and
46
(ii) any title transfer or retention arrangement entered into by a
member of the Group in relation to its purchases of goods,
products or supplies in the ordinary course of trading;
(iii) any Security Interest comprising a netting or set-off
arrangement entered into by a member of the Group in the
ordinary course of its banking arrangements for the purpose of
netting debit and credit balances;
(iv) any Security Interest on an asset, or an asset of any person,
acquired by a member of the Group after the date of this
Agreement but only for the period of 120 days from the date of
acquisition and to the extent that the principal amount
secured by that Security Interest has not been incurred or
increased in contemplation of, or since, the acquisition;
(v) any Security Interest over goods and products, or over the
documents or insurance policies relating to such goods and
products, arising in the ordinary course of trading in
connection with letters of credit and similar transactions,
provided such Security Interest secures only so much of the
acquisition cost or selling price (and amounts incidental
thereto) of those goods and products which is required to be
paid within 180 days after the date upon which the same was
first incurred;
(vi) set-off rights in the ordinary course of trading;
(vii) any Security Interest created in substitution for any of the
above Security Interests, but only:
(A) if the Security Interest is over the same asset;
(B) if the principal amount secured does not exceed the
principal amount secured by the Security Interest
which it replaced; and
(C) if the Security Interest which is replaced was only
permitted to be outstanding for a certain period of
time, to the extent the new Security Interest is not
outstanding for any greater period; and
(viii) any Security Interest securing indebtedness the amount of
which (when aggregated with the amount of any other
indebtedness which has the benefit of a Security Interest not
allowed under the preceding sub-paragraphs) does not exceed
US$10,000,000 or its equivalent at any time.
(c) No member of the Group may:
(i) sell, transfer or otherwise dispose of any of its assets on
terms where it is or may be leased to or re-acquired or
acquired by a member of the Group or any of its related
entities; or
(ii) sell, transfer or otherwise dispose of any of its receivables
on recourse terms,
in circumstances where the transaction is entered into primarily as a
method of raising Financial Indebtedness or of financing the
acquisition of an asset, except for transactions falling within Clause
20.7(b)(viii) (Financial Indebtedness).
47
20.6 DISPOSALS
(a) Except as provided below, no member of the Group may, either in a
single transaction or in a series of transactions and whether related
or not, dispose of all or any part of its assets.
(b) Except as provided below, paragraph (a) does not apply to any disposal:
(i) of Intellectual Property Rights in the ordinary course of
trading of the disposing entity;
(ii) of assets other than Intellectual Property Rights made in the
ordinary course of business of the disposing entity;
(iii) of assets in exchange for other assets comparable or superior
as to type, value and quality;
(iv) where:
(A) the proceeds of the disposal are used within six
months of that disposal for the purchase (free from
any Security Interest) of an asset to replace
directly the asset the subject of that disposal where
the purchased asset has a market value at least equal
to the value of the asset which is subject to the
disposal; and
(B) prior to the disposal, the Parent has notified the
Facility Agent that the proceeds are to be so used;
(v) of an asset which is obsolete for the purpose for which such
an asset is normally utilised;
(vi) to an Obligor, or by a member of the Group which is not an
Obligor, to another such member of the Group;
(vii) of cash or cash equivalents on terms not otherwise prohibited
by this Agreement; or
(viii) where the higher of the market value or consideration
receivable (when aggregated with the higher of the market
value or consideration for any other disposal not allowed
under the preceding sub-paragraphs) does not exceed
US$20,000,000 or its equivalent in any financial year of the
Parent.
(c) Paragraph (b) does not permit any disposal of any Target Assets or Xxx
Lilly Assets.
20.7 FINANCIAL INDEBTEDNESS
(a) Except as provided below, no member of the Group may incur any
Financial Indebtedness.
(b) Paragraph (a) does not apply to:
(i) Financial Indebtedness incurred under the Finance Documents;
(ii) Financial Indebtedness under the Xxxxxx Xxxxxxxx Bonds;
48
(iii) Financial Indebtedness of any person acquired by a member of
the Group which is incurred under arrangements in existence at
the date of acquisition, but only for a period of three months
from the date of acquisition;
(iv) any derivative transaction protecting against or benefiting
from fluctuations in any rate or price entered into in the
ordinary course of business;
(v) Financial Indebtedness owing by any member of the Group to
another member of the Group;
(vi) Financial Indebtedness owing by an Obligor;
(vii) Financial Indebtedness under guarantees in favour of a bank or
other financial institution to facilitate the operation of
bank accounts of members of the Group maintained with such
bank or financial institution on a net balance basis;
(viii) Financial Indebtedness under finance or capital leases of
vehicles, plant, equipment or computers, up to a maximum
aggregate capital value for all items so leased by members of
the Group of US$2,000,000 at any time; or
(ix) Financial Indebtedness which in aggregate does not exceed
US$15,000,000 or its equivalent at any time.
20.8 CHANGE OF BUSINESS
The Parent must ensure that no material change is made to the general
nature of the business of the Group as a whole from that carried on at
the date of this Agreement.
20.9 MERGERS
(a) Without the consent of the Majority Lenders, neither the Borrower nor
the Parent may enter into any amalgamation, demerger, merger or
reconstruction.
(b) No other Material Subsidiary may enter into any amalgamation, demerger,
merger or reconstruction, except for one:
(i) on a solvent basis;
(ii) to which the only parties are members of the Group;
(iii) under which either the relevant Material Subsidiary is the
survivor, or the Facility Agent is satisfied (acting on the
instructions of the Majority Lenders) that the surviving
entity assumes (by operation of law or otherwise) all
obligations of the relevant Material Subsidiary (including, if
it is an Obligor, its obligations under the Finance
Documents).
20.10 ACQUISITIONS
(a) Except as provided below, no member of the Group may make any
acquisition or investment.
(b) Paragraph (a) does not apply to:
(i) the Pfizer HRT Acquisition or the Pfizer OC Acquisition;
49
(ii) acquisitions or investments made in the ordinary course of
trade;
(iii) the acquisition of the business, shares or securities of
another member of the Group;
(iv) acquisitions where the consideration (when aggregated with the
consideration of any other acquisition not allowed under the
preceding sub-paragraphs) does not exceed US$30,000,000 or its
equivalent in any financial year of the Parent.
20.11 THE ACQUISITION DOCUMENTS
(a) Each member of the Group must take all commercially reasonable and
practical steps to preserve and enforce its rights under the
Acquisition Documents.
(b) No member of the Group may permit or effect any variation, novation,
amendment to, or waiver or termination of, any Acquisition Document
(other than where the effect of the same is not material).
(c) The Parent must promptly supply to the Facility Agent a copy of any
variation, novation, amendment or waiver relating to an Acquisition
Agreement.
20.12 LOANS
No member of the Group may be the creditor in respect of any Financial
Indebtedness, other than:
(a) credit allowed by the relevant company in the normal course of its
trading activities; or
(b) Financial Indebtedness owing by another member of the Group.
20.13 INTELLECTUAL PROPERTY RIGHTS
Except as provided below, each member of the Group must:
(a) make any registration and pay any fee or other amount which is
necessary to keep the Target Assets (following their
acquisition by a member of the Group), the Xxx Lilly Assets
and all other Intellectual Property Rights which are material
to the business of a member of the Group, in force;
(b) record its interest in the Target Assets, the Xxx Xxxxx Assets
and those other Intellectual Property Rights in any relevant
registries or with any relevant governmental or other official
body;
(c) take such steps as are necessary and commercially reasonable
(including the institution of legal proceedings) to prevent
third parties infringing the Target Assets (following their
acquisition by a member of the Group), the Xxx Lilly Assets
and those other Intellectual Property Rights; and
(d) not enter into licence arrangements in respect of the Target
Assets, the Xxx Xxxxx Assets or those other Intellectual
Property Rights, other than:
(i) licence arrangements entered into with members of the
Group for so long as they remain members of the
Group; and
50
(ii) licence arrangements entered into on normal
commercial terms and in the ordinary course of its
business.
20.14 PENSION SCHEMES
(a) In this Subclause:
CODE means the United States Internal Revenue Code of 1986.
ERISA means the United States Employee Retirement Income Security Act
of 1974.
ERISA AFFILIATE means any person treated as a single employer with the
Borrower for the purpose of section 414 of the Code.
MULTIEMPLOYER PLAN means an employee benefit plan within the meaning of
section 4001(a) (3) of ERISA with respect to which the Borrower or any
ERISA Affiliate has, or at any time in the past five years had, an
obligation to contribute.
PLAN means an employee benefit plan as defined in section 3(3) of ERISA
maintained by the Borrower or any ERISA Affiliate.
REPORTABLE EVENT means:
(a) with respect to any Plan, an event specified as such in
section 4043 of ERISA or regulations under that section, other
than an event in relation to which the requirement to give
notice of that event is waived by any regulation;
(b) with respect to any Plan, an "accumulated funding deficiency"
under section 412 of the Code or section 302 of ERISA, whether
or not there has been any waiver of notice or waiver of the
minimum funding standard under section 412 of the Code; or
(c) a withdrawal by the Borrower or an ERISA Affiliate from a
Multiemployer Plan, or any Multiemployer Plan being in
"reorganization" or "insolvent" (as such terms are defined,
respectively, in sections 4241 and 4245 or ERISA), and, in
each case, such event is reasonably likely to have a Material
Adverse Effect.
(b) Each member of the Group must ensure that all present and future
funding of its occupational pension schemes is maintained as required
by all applicable law.
(c) Each Obligor must promptly upon becoming aware of it notify the
Facility Agent of:
(i) any Reportable Event; and
(ii) the termination of or withdrawal from, or any circumstances
reasonably likely to result in the termination of or
withdrawal from, any Plan subject to Title IV of ERISA.
(d) Each of the Borrowers and its ERISA Affiliates must ensure that no
event or condition exists at any time in relation to a Plan which is
reasonably likely to result in the imposition of a Security Interest on
any of its assets or which is reasonably likely to have a Material
Adverse Effect.
51
20.15 ENVIRONMENTAL MATTERS
(a) In this Subclause:
ENVIRONMENTAL APPROVAL means any authorisation required by an
Environmental Law.
ENVIRONMENTAL CLAIM means any claim by any person in connection with:
(i) a breach, or alleged breach, of an Environmental Law;
(ii) any accident, fire, explosion or other event of any type
involving an emission or substance which is capable of causing
harm to any living organism or the environment; or
(iii) any other environmental contamination.
ENVIRONMENTAL LAW means any law or regulation concerning:
(i) the protection of health and safety;
(ii) the environment; or
(iii) any emission or substance which is capable of causing harm to
any living organism or the environment.
(b) Each member of the Group must ensure that it is, and has been, in
compliance with all Environmental Law and Environmental Approvals
applicable to it, where failure to do so is reasonably likely to have a
Material Adverse Effect or result in any liability for a Finance Party.
(c) Each Obligor must promptly upon becoming aware notify the Facility
Agent of:
(i) any Environmental Claim current, or to its knowledge, pending
or threatened; or
(ii) any circumstances reasonably likely to result in an
Environmental Claim,
which, if substantiated, is reasonably likely to either have a Material
Adverse Effect or result in any liability for a Finance Party.
20.16 INSURANCE
Each member of the Group must insure its business and assets with
insurance companies to such an extent and against such risks as
companies engaged in a similar business normally insure.
20.17 CRIMINAL DAMAGE CLAIMS
(a) The Parent must inform the Facility Agent as soon as reasonably
practicable if any act of terrorism affects any material asset of any
member of the Group.
(b) The Parent and each Material Subsidiary must:
(i) lodge and diligently pursue any claim, in relation to any
material damage to any of its material assets, for
compensation under the Criminal Damage (Northern Ireland)
52
Order 1977 (or any successor scheme in respect of criminal
damage to property in Northern Ireland) within all applicable
time periods; and
(ii) keep the Facility Agent advised as to the progress of any such
claim.
21. DEFAULT
21.1 EVENTS OF DEFAULT
(a) Each of the events set out in this Clause is an Event of Default.
(b) In this Clause:
MATERIAL GROUP MEMBER means an Obligor or a Material Subsidiary; and
PERMITTED TRANSACTION means:
(i) an intra-Group re-organisation of a Material Subsidiary (other
than the Borrower) on a solvent basis; or
(ii) any other transaction agreed by the Majority Lenders.
21.2 NON-PAYMENT
An Obligor does not pay on the due date any amount payable by it under
the Finance Documents in the manner required under the Finance
Documents, unless the non-payment:
(a) is caused by technical or administrative error; and
(b) is remedied within three Business Days of the due date.
21.3 BREACH OF OTHER OBLIGATIONS
(a) The Parent does not comply with any term of Clause 19 (Financial
covenants);
(b) an Obligor does not comply with any term of Clause 20.5 (Negative
pledge), Clause 20.6 (Disposals) or Clause 20.7 (Financial
Indebtedness), unless the non-compliance:
(i) is capable of remedy; and
(ii) is remedied within 7 days of the earlier of the Facility Agent
giving notice and the Obligor becoming aware of the
non-compliance; or
(c) an Obligor does not comply with any other term of the Finance Documents
not already referred to in this Clause, unless the non-compliance:
(i) is capable of remedy; and
(ii) is remedied within 14 days of the earlier of the Facility
Agent giving notice and the Obligor becoming aware of the
non-compliance.
21.4 MISREPRESENTATION
A representation made or repeated by an Obligor in any Finance Document
or in any document delivered by or on behalf of any Obligor under any
Finance Document is incorrect
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in any material respect when made or deemed to be repeated unless the
circumstances giving rise to the misrepresentation:
(a) are capable of remedy; and
(b) are remedied within 14 days of the earlier of the Facility
Agent giving notice and the Obligor becoming aware of the
misrepresentation.
21.5 CROSS-DEFAULT
Any of the following occurs in respect of a member of the Group:
(a) any of its Financial Indebtedness is not paid when due (after
the expiry of any originally applicable grace period);
(b) any of its Financial Indebtedness:
(i) becomes prematurely due and payable;
(ii) is placed on demand; or
(iii) is capable of being declared by a creditor to be
prematurely due and payable or being placed on
demand,
in each case, as a result of an event of default (howsoever
described); or
(c) any commitment for its Financial Indebtedness is cancelled or
suspended as a result of an event of default (howsoever
described),
unless the aggregate amount of Financial Indebtedness falling within
paragraphs (a) to (c) above is less than US$10,000,000 or its
equivalent.
21.6 INSOLVENCY
Any of the following occurs in respect of a Material Group Member:
(a) it is, or is deemed for the purposes of any law to be, unable
to pay its debts as they fall due or insolvent;
(b) it admits its inability to pay its debts as they fall due;
(c) it suspends making payments on any of its debts or makes a
public announcement or an announcement to any relevant
creditors that it intends to do so;
(d) by reason of actual or anticipated financial difficulties, it
begins negotiations with its creditors generally, or any class
of them, for the rescheduling of any of its indebtedness; or
(e) a moratorium is declared in respect of any of its
indebtedness.
If a moratorium occurs in respect of any Material Group Member, the
ending of the moratorium will not remedy any Event of Default caused by
the moratorium.
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21.7 INSOLVENCY PROCEEDINGS
(a) Except as provided below, any of the following occurs in respect of a
Material Group Member:
(i) any step is taken with a view to a composition, assignment or
similar arrangement with any of its creditors;
(ii) a meeting of it is convened for the purpose of considering any
resolution for (or to petition for) its winding-up,
administration, examination or dissolution or any such
resolution is passed;
(iii) any person presents a petition for its winding-up,
administration, examination or dissolution;
(iv) an order for its winding-up, administration, examination or
dissolution is made;
(v) any liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver,
administrator, examiner or similar officer is appointed in
respect of it or any of its assets;
(vi) its directors or other officers request the appointment of a
liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver,
administrator, examiner or similar officer;
(vii) any step is taken in relation to the enforcement of any
Security over any assets of any member of the Group, and the
aggregate value of assets so effected since the date of this
Agreement is US$1,000,000 or more; or
(viii) any other analogous step or procedure is taken in any
jurisdiction.
(b) Paragraph (a) does not apply to:
(i) any step or procedure which is part of a Permitted
Transaction; or
(ii) a petition for winding-up presented by a creditor which is
being contested in good faith and with due diligence and is
discharged or struck out within 21 days.
21.8 CREDITORS' PROCESS
Any attachment, sequestration, distress, execution or analogous event
affects all or a material part of the assets of a member of the Group
and is not discharged within 14 days, if the aggregate value of all
assets so affected since the date of this Agreement is US$10,000,000 or
more.
21.9 CESSATION OF BUSINESS
A member of the Group ceases, or threatens to cease, to carry on
business except:
(a) as part of a Permitted Transaction; or
(b) as a result of any disposal allowed under this Agreement.
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21.10 EFFECTIVENESS OF FINANCE DOCUMENTS
(a) It is or becomes unlawful for the Parent to perform its obligations
under Clause 19 (Financial covenants) or for any Obligor to perform its
payment obligations or other material obligations under any Finance
Document.
(b) Any obligations of an Obligor under the Finance Documents are not
effective or are alleged by an Obligor to be ineffective for any
reason.
(c) An Obligor repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.
21.11 OWNERSHIP OF THE OBLIGORS
An Obligor (other than the Parent) is not or ceases to be a
wholly-owned Subsidiary of the Parent.
21.12 ACQUISITION AGREEMENTS
The rights of the Borrower under any Acquisition Agreement, having
become unconditional, become conditional, are revoked or (other than as
a result of the completion of the relevant Acquisition) terminate.
21.13 AUDIT QUALIFICATION
The auditors of the Parent qualify, in any material respect, their
opinion on the audited consolidated financial statements of the Parent.
21.14 LITIGATION
Any litigation, arbitration or administrative proceedings are current
which, if adversely determined, could reasonably be expected to have a
Material Adverse Effect.
21.15 MATERIAL ADVERSE CHANGE
Any event or series of events occurs which, in the opinion of the
Majority Lenders, is reasonably likely to have a Material Adverse
Effect.
21.16 ACCELERATION
If an Event of Default is outstanding, the Facility Agent may, and must
if so instructed by the Majority Lenders, by notice to the Parent:
(a) cancel the Total Commitments; and/or
(b) declare that all or part of any amounts outstanding under the
Finance Documents are:
(i) immediately due and payable; and/or
(ii) payable on demand by the Facility Agent acting on the
instructions of the Majority Lenders.
Any notice given under this Subclause will take effect in accordance
with its terms.
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22. THE ADMINISTRATIVE PARTIES
22.1 APPOINTMENT AND DUTIES OF THE FACILITY AGENT
(a) Each Finance Party (other than the Facility Agent) irrevocably appoints
the Facility Agent to act as its agent under the Finance Documents.
(b) Each Finance Party irrevocably authorises the Facility Agent to:
(i) perform the duties and to exercise the rights, powers and
discretions that are specifically given to it under the
Finance Documents, together with any other incidental rights,
powers and discretions; and
(ii) execute each Finance Document expressed to be executed by the
Facility Agent.
(c) The Facility Agent has only those duties which are expressly specified
in the Finance Documents. Those duties are solely of a mechanical and
administrative nature.
22.2 ROLE OF THE ARRANGERS
Except as specifically provided in the Finance Documents, no Arranger
has any obligations of any kind to any other Party in connection with
any Finance Document.
22.3 NO FIDUCIARY DUTIES
Except as specifically provided in a Finance Document, nothing in the
Finance Documents makes an Administrative Party a trustee or fiduciary
for any other Party or any other person. No Administrative Party need
hold in trust any moneys paid to it for a Party or be liable to account
for interest on those moneys.
22.4 INDIVIDUAL POSITION OF AN ADMINISTRATIVE PARTY
(a) If it is also a Lender, each Administrative Party has the same rights
and powers under the Finance Documents as any other Lender and may
exercise those rights and powers as though it were not an
Administrative Party.
(b) Each Administrative Party may:
(i) carry on any business with any member of the Group (including
acting as an agent or a trustee for any other financing); and
(ii) retain any profits or remuneration it receives under the
Finance Documents or in relation to any other business it
carries on with any member of the Group.
22.5 RELIANCE
(a) The Facility Agent may:
(i) rely on any notice or document believed by it to be genuine
and correct and to have been signed by, or with the authority
of, the proper person;
(ii) rely on any statement made by any person regarding any matters
which may reasonably be assumed to be within his knowledge or
within his power to verify;
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(iii) engage, pay for and rely on professional advisers selected by
it (including those representing a Party other than the
Facility Agent); and
(iv) act under the Finance Documents through its personnel and
agents.
(b) The Facility Agent may assume (unless it has received notice to the
contrary in its capacity as Facility Agent) that any right, power,
authority or discretion vested in any Party or the Majority Lenders has
not been exercised.
22.6 MAJORITY LENDERS' INSTRUCTIONS
(a) The Facility Agent is fully protected if it acts on the instructions of
the Majority Lenders in the exercise of any right, power or discretion
or any matter not expressly provided for in the Finance Documents. Any
such instructions given by the Majority Lenders will be binding on all
the Lenders. In the absence of instructions, the Facility Agent may
(but shall not be obliged to) act as it considers to be in the best
interests of all the Lenders.
(b) The Facility Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lender's consent) in any legal or
arbitration proceedings in connection with any Finance Document.
(c) The Facility Agent may require the receipt of security satisfactory to
it, whether by way of payment in advance or otherwise, against any
liability or loss which it may incur in complying with the instructions
of the Majority Lenders or all of the Lenders.
22.7 RESPONSIBILITY
(a) No Administrative Party is responsible to any other Finance Party for
the legality, validity, effectiveness, enforceability, adequacy,
accuracy or completeness of:
(i) any Finance Document, any documents referred to in Clause
17.13 (Information) or any other document; or
(ii) any statement or information (whether written or oral) made in
or supplied in connection with any Finance Document.
(b) 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 that it:
(i) has made, and will continue to make, its own independent
appraisal of all risks arising under or in connection with the
Finance Documents (including the financial condition and
affairs of each Obligor and its related entities and the
nature and extent of any recourse against any Party or its
assets); and
(ii) has not relied on any information provided to it by any
Administrative Party in connection with any Finance Document.
22.8 EXCLUSION OF LIABILITY
(a) The Facility Agent is not liable or responsible to any other Finance
Party for any action taken or not taken by it in connection with any
Finance Document, unless directly caused by its gross negligence or
wilful misconduct. The Facility Agent is not liable or responsible for
any delay (or any related consequences) in crediting an account as
required under the Finance Documents, if the Facility Agent has taken
all necessary steps as soon as reasonably
58
practicable to comply with the regulations or operating procedures of
any recognised clearing or settlement system used by the Facility Agent
for that purpose.
(b) No Party may take any proceedings against any officer, employee or
agent of the Facility Agent in respect of any claim it might have
against the Facility Agent or in respect of any act or omission of any
kind by that officer, employee or agent in connection with any Finance
Document. Any officer, employee or agent of the Facility Agent may rely
on this Subclause and enforce its terms under the Contracts (Rights of
Third Parties) Xxx 0000.
22.9 DEFAULT
(a) The Facility Agent is not obliged to monitor or enquire whether a
Default has occurred. The Facility Agent is not deemed to have
knowledge of the occurrence of a Default.
(b) If the Facility Agent:
(i) receives notice from a Party referring to this Agreement,
describing a Default and stating that the event is a Default;
or
(ii) is actually aware of the non-payment of any principal or
interest or any fee payable to a Lender under this Agreement,
it must promptly notify the Lenders.
22.10 INFORMATION
(a) The Facility Agent must promptly forward to the person concerned the
original or a copy of any document which is delivered to the Facility
Agent by a Party for that person.
(b) Except where a Finance Document specifically provides otherwise, the
Facility Agent is not obliged to review or check the adequacy, accuracy
or completeness of any document it forwards to another Party.
(c) Except as provided above, the Facility Agent has no duty:
(i) either initially or on a continuing basis to provide any
Lender with any credit or other information concerning the
risks arising under or in connection with the Finance
Documents (including any information relating to the financial
condition or affairs of any Obligor or its related entities or
the nature or extent of recourse against any Party or its
assets) whether coming into its possession before, on or after
the date of this Agreement; or
(ii) unless specifically requested to do so by a Lender in
accordance with a Finance Document, to request any certificate
or other document from any Obligor.
(d) In acting as the Facility Agent, the agency division of the Facility
Agent is treated as a separate entity from its other divisions and
departments. Any information acquired by the Facility Agent which, in
its opinion, is acquired by it otherwise than in its capacity as the
Facility Agent may be treated as confidential by the Facility Agent and
will not be treated as information possessed by the Facility Agent in
its capacity as such.
(e) The Facility Agent is not obliged to disclose to any person any
confidential information supplied to it by a member of the Group solely
for the purpose of evaluating whether any waiver or amendment is
required to any term of the Finance Documents.
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(f) Each Obligor irrevocably authorises the Facility Agent to disclose to
the other Finance Parties any information which, in its opinion, is
received by it in its capacity as the Facility Agent.
22.11 INDEMNITIES
(a) Without limiting the liability of any Obligor under the Finance
Documents, each Lender must indemnify the Facility Agent for that
Lender's Pro Rata Share of any loss or liability incurred by the
Facility Agent in acting as the Facility Agent, except to the extent
that the loss or liability is caused by the Facility Agent's gross
negligence or wilful misconduct.
(b) The Facility Agent may deduct from any amount received by it for a
Lender any amount due to the Facility Agent from that Lender under a
Finance Document but unpaid.
22.12 COMPLIANCE
The Facility Agent may refrain from doing anything (including
disclosing any information) which might, in its opinion, constitute a
breach of any law or regulation or be otherwise actionable at the suit
of any person, and may do anything which, in its opinion, is necessary
or desirable to comply with any law or regulation.
22.13 RESIGNATION OF THE FACILITY AGENT
(a) The Facility Agent may resign and appoint any of its Affiliates as
successor Facility Agent by giving notice to the Lenders and the
Parent.
(b) Alternatively, the Facility Agent may resign by giving notice to the
other Finance Parties and to the Parent, in which case the Majority
Lenders may appoint a successor Facility Agent.
(c) If no successor Facility Agent has been appointed under paragraph (b)
above within 30 days after notice of resignation was given, the
Facility Agent may appoint a successor Facility Agent.
(d) The person(s) appointing a successor Facility Agent must, if
practicable, consult with the Parent prior to the appointment. Any
successor Facility Agent must have an office in the UK or the Republic
of Ireland.
(e) The resignation of the Facility Agent and the appointment of any
successor Facility Agent will both become effective only when the
successor Facility Agent notifies all the Parties that it accepts its
appointment. On giving the notification, the successor Facility Agent
will succeed to the position of the Facility Agent and the term
FACILITY AGENT will mean the successor Facility Agent.
(f) The retiring Facility Agent must, at its own cost, make available to
the successor Facility Agent such documents and records and provide
such assistance as the successor Facility Agent may reasonably request
for the purposes of performing its functions as the Facility Agent
under the Finance Documents.
(g) Upon its resignation becoming effective, this Clause will continue to
benefit the retiring Facility Agent in respect of any action taken or
not taken by it in connection with the Finance Documents while it was
the Facility Agent, and, subject to paragraph (f) above, it will have
no further obligations under any Finance Document.
(h) The Majority Lenders may, by notice to the Facility Agent, require it
to resign under paragraph (b) above.
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22.14 RELATIONSHIP WITH LENDERS
(a) The Facility Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and as acting through its Facility
Office(s) until it has received not less than five Business Days' prior
notice from that Lender to the contrary.
(b) The Facility Agent may at any time, and must if requested to do so by
the Majority Lenders, convene a meeting of the Lenders.
(c) The Facility Agent must keep a register of all the Parties and supply
any other Party with a copy of the register on request. The register
will include each Lender's Facility Office(s) and contact details for
the purposes of this Agreement.
22.15 NOTICE PERIOD
Where this Agreement specifies a minimum period of notice to be given
to the Facility Agent, the Facility Agent may, at its discretion,
accept a shorter notice period.
23. EVIDENCE AND CALCULATIONS
23.1 ACCOUNTS
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they relate
for the purpose of any litigation or arbitration proceedings.
23.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or
amount under the Finance Documents will be, in the absence of manifest
error, conclusive evidence of the matters to which it relates.
23.3 CALCULATIONS
Any interest or fee accruing under this Agreement accrues from day to
day and is calculated on the basis of the actual number of days elapsed
and a year of 360 or 365 days or otherwise, depending on what the
Facility Agent determines is market practice.
24. FEES
24.1 FACILITY AGENT'S FEE
The Borrower must pay to the Facility Agent for its own account an
agency fee in the manner agreed in the Fee Letter between the Facility
Agent and the Borrower.
24.2 ARRANGEMENT FEES
The Borrower must pay to the Arrangers for their own account
arrangement fees in the manner agreed in the Fee Letter between the
Arrangers and the Borrower.
24.3 COMMITMENT FEE
(a) The Borrower must pay a commitment fee computed on the undrawn,
uncancelled amount of each Lender's Commitment.
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(b) The rate of commitment fee is:
(i) in relation to Facility A, 30 per cent. of the applicable
Margin; and
(ii) in relation to Facility B and Facility C, 40 per cent. of the
applicable Margin.
(c) Accrued commitment fee is payable quarterly in arrear. Accrued commitment
fee in respect of each Facility is also payable to the Facility Agent for a
Lender on the date that Lender's Commitment in that Facility is cancelled in
full.
25. INDEMNITIES AND BREAK COSTS
25.1 CURRENCY INDEMNITY
(a) The Borrower must, as an independent obligation, indemnify each Finance
Party against any loss or liability which that Finance Party incurs as
a consequence of:
(i) that Finance Party receiving an amount in respect of an
Obligor's liability under the Finance Documents; or
(ii) that liability being converted into a claim, proof, judgment
or order,
in a currency other than the currency in which the amount is expressed
to be payable under the relevant Finance Document.
(b) Unless otherwise required by law, each Obligor waives any right it may
have in any jurisdiction to pay any amount under the Finance Documents
in a currency other than that in which it is expressed to be payable.
25.2 OTHER INDEMNITIES
(a) The Borrower must indemnify each Finance Party against any loss or
liability which that Finance Party incurs as a consequence of:
(i) the occurrence of any Event of Default or the circumstances
giving rise to an Event of Default;
(ii) any failure by an Obligor to pay any amount due under a
Finance Document on its due date, including any resulting from
any distribution or redistribution of any amount among the
Lenders under this Agreement;
(iii) (other than by reason of negligence or default by that Finance
Party) a Loan not being made after a Request has been
delivered for that Loan; or
(iv) a Loan (or part of a Loan) not being prepaid in accordance
with a notice of prepayment.
The Borrower's liability in each case includes any loss or expense on
account of funds borrowed, contracted for or utilised to fund any
amount payable under any Finance Document, any amount repaid or prepaid
or any Loan.
(b) The Borrower must indemnify the Facility Agent against any loss or
liability incurred by the Facility Agent as a result of:
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(i) investigating any event which the Facility Agent reasonably
believes to be a Default; or
(ii) acting or relying on any notice which the Facility Agent
reasonably believes to be genuine, correct and appropriately
authorised.
25.3 BREAK COSTS
(a) The Borrower must pay to each Lender its Break Costs.
(b) Break Costs are the amount (if any) determined by the relevant Lender
by which:
(i) the interest which that Lender would have received for the
period from the date of receipt of any part of its share in a
Loan or an overdue amount to the last day of the applicable
Term for that Loan or overdue amount if the principal or
overdue amount received had been paid on the last day of that
Term;
exceeds
(ii) the amount which that Lender would be able to obtain by
placing an amount equal to the amount received by it on
deposit with a leading bank in the appropriate interbank
market for a period starting on the Business Day following
receipt and ending on the last day of the applicable Term.
(c) Each Lender must supply to the Facility Agent for the Borrower details
of the amount of any Break Costs claimed by it under this Subclause.
26. EXPENSES
26.1 INITIAL COSTS
The Borrower must pay to each Administrative Party the amount of all
costs and expenses (including legal fees) reasonably incurred by it in
connection with the negotiation, preparation, printing, execution and
syndication of the Finance Documents.
26.2 SUBSEQUENT COSTS
The Borrower must pay to the Facility Agent the amount of all costs and
expenses (including legal fees) reasonably incurred by it in connection
with:
(a) the negotiation, preparation, printing and execution of any
Finance Document (other than a Transfer Certificate) executed
after the date of this Agreement; and
(b) any amendment, waiver or consent requested by or on behalf of
an Obligor or specifically allowed by this Agreement.
26.3 ENFORCEMENT COSTS
The Borrower must pay to each Finance Party the amount of all costs and
expenses (including legal fees) incurred by it in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document.
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27. AMENDMENTS AND WAIVERS
27.1 PROCEDURE
(a) Except as provided in this Clause, any term of the Finance Documents
may be amended or waived with the agreement of the Parent and the
Majority Lenders. The Facility Agent may effect, on behalf of any
Finance Party, an amendment or waiver allowed under this Clause.
(b) The Facility Agent must promptly notify the other Parties of any
amendment or waiver effected by it under paragraph (a) above. Any such
amendment or waiver is binding on all the Parties.
27.2 EXCEPTIONS
(a) An amendment or waiver which relates to:
(i) the definition of MAJORITY LENDERS in Clause 1.1
(Definitions);
(ii) an extension of the date of payment of any amount to a Lender
under the Finance Documents;
(iii) a reduction in the applicable Margin or a reduction in the
amount of any payment of principal, interest, fee or other
amount payable to a Lender under the Finance Documents;
(iv) an increase in, or an extension of, a Commitment or the Total
Commitments;
(v) a release of an Obligor other than as contemplated by this
Agreement;
(vi) a term of a Finance Document which expressly requires the
consent of each Lender;
(vii) the right of a Lender to assign or transfer its rights or
obligations under the Finance Documents; or
(viii) this Clause,
may only be made with the consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations of an
Administrative Party may only be made with the consent of that
Administrative Party.
(c) An amendment or waiver which relates to the rights or obligations of
the Facility A Lenders, the Facility B Lenders or the Facility C
Lenders, and not to the rights or obligations of the Lenders generally,
may only be made with the consent of the Facility A Lenders, Facility B
Lenders or Facility C Lenders (as appropriate).
27.3 CHANGE OF CURRENCY
If a change in any currency of a country occurs (including where there
is more than one currency or currency unit recognised at the same time
as the lawful currency of a country), the Finance Documents will be
amended to the extent the Facility Agent (acting reasonably and after
consultation with the Parent) determines is necessary to reflect the
change.
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27.4 WAIVERS AND REMEDIES CUMULATIVE
The rights of each Finance Party under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general law;
and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any right is not a waiver of
that right.
28. CHANGES TO THE PARTIES
28.1 ASSIGNMENTS AND TRANSFERS BY OBLIGORS
No Obligor may assign or transfer any of its rights and obligations
under the Finance Documents without the prior consent of all the
Lenders.
28.2 ASSIGNMENTS AND TRANSFERS BY LENDERS
(a) In this Subclause, the SUCCESSFUL COMPLETION OF SYNDICATION has the
meaning given in the mandate letter dated 19th February 2003 and made
between the Arrangers, the Borrower and others.
(b) A Lender (the EXISTING LENDER) may, subject to the following provisions
of this Subclause, at any time assign or transfer (including by way of
novation) any of its rights and obligations under this Agreement to any
other person (the NEW LENDER).
(c) Unless the Parent and the Facility Agent otherwise agree, after the
successful completion of syndication a transfer of part of a Commitment
or rights and obligations under this Agreement by the Existing Lender
must be in a minimum amount of US$10,000,000.
(d) The consent of the Parent is required for any assignment or transfer
unless:
(i) the New Lender is another Lender or an Affiliate of a Lender;
(ii) the successful completion of syndication has not occurred (in
which circumstances the Arrangers must consult with the Parent
about the identity of the New Lender);
(iii) a Default is outstanding; or
(iv) in relation to a transfer of a Facility B Commitment or a
Facility C Commitment, the relevant Availability Period has
ended or the relevant Facility has been drawn in full.
(e) If it is required, the consent of the Parent must not be unreasonably
withheld or delayed. The Parent will be deemed to have given its
consent five Business Days after the Parent is given notice of a
request for its consent, unless it is expressly refused by the Parent
within that time.
(f) The Parent may not withhold its consent solely because the assignment
or transfer might increase the Mandatory Cost.
(g) A transfer of obligations will be effective only if either:
65
(i) the obligations are novated in accordance with the following
provisions of this Clause; or
(ii) the New Lender confirms to the Facility Agent and the Parent
in form and substance satisfactory to the Facility Agent that
it is bound by the terms of this Agreement as a Lender. On the
transfer becoming effective in this manner the Existing Lender
will be released from its obligations under this Agreement to
the extent that they are transferred to the New Lender.
(h) Unless the Facility Agent otherwise agrees, the New Lender must pay to
the Facility Agent for its own account, on or before the date any
assignment or transfer occurs, a fee of US$1,500.
(i) Any reference in this Agreement to a Lender includes a New Lender but
excludes a Lender if no amount is or may be owed to or by it under this
Agreement.
28.3 PROCEDURE FOR TRANSFER BY WAY OF NOVATIONS
(a) In this Subclause:
TRANSFER DATE means, for a Transfer Certificate, the later of:
(i) the proposed Transfer Date specified in that Transfer
Certificate; and
(ii) the date on which the Facility Agent executes that Transfer
Certificate.
(b) A novation is effected if:
(i) the Existing Lender and the New Lender deliver to the Facility
Agent a duly completed Transfer Certificate; and
(ii) the Facility Agent executes it.
The Facility Agent must execute as soon as reasonably practicable a
Transfer Certificate delivered to it and which appears on its face to
be in order.
(c) Each Party (other than the Existing Lender and the New Lender)
irrevocably authorises the Facility Agent to execute any duly completed
Transfer Certificate on its behalf.
(d) On the Transfer Date:
(i) the New Lender will assume the rights and obligations of the
Existing Lender expressed to be the subject of the novation in
the Transfer Certificate in substitution for the Existing
Lender; and
(ii) the Existing Lender will be released from those obligations
and cease to have those rights.
28.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDER
(a) Unless expressly agreed to the contrary, an Existing Lender is not
responsible to a New Lender for the legality, validity, adequacy,
accuracy, completeness or performance of:
(i) any Finance Document or any other document; or
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(ii) any statement or information (whether written or oral) made in
or supplied in connection with any Finance 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 will continue to make, its own independent
appraisal of all risks arising under or in connection with the
Finance Documents (including the financial condition and
affairs of each Obligor and its related entities and the
nature or extent of any recourse against any Party or its
assets) in connection with its participation in this
Agreement; and
(ii) has not relied exclusively on any information supplied to it
by the Existing Lender in connection with any Finance
Document.
(c) Nothing in any Finance Document requires 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; or
(ii) support any losses incurred by the New Lender by reason of the
non-performance by any Obligor of its obligations under any
Finance Document or otherwise.
28.5 COSTS RESULTING FROM CHANGE OF LENDER OR FACILITY OFFICE
If:
(a) a Lender assigns or transfers any of its rights and
obligations under the Finance Documents or changes its
Facility Office; and
(b) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor would be
obliged to pay a Tax Payment or an Increased Cost,
then, unless the assignment, transfer or change is made by a Lender to
mitigate any circumstances giving rise to the Tax Payment, Increased
Cost or a right to be prepaid and/or cancelled by reason of illegality,
the Obligor need only pay that Tax Payment or Increased Cost to the
same extent that it would have been obliged to if no assignment,
transfer or change had occurred.
28.6 ADDITIONAL GUARANTORS
(a) The Parent may (following consultation with the Facility Agent) request
that one of its wholly-owned Subsidiaries becomes an Additional
Guarantor, by delivering to the Facility Agent the relevant documents
and evidence listed in Part 4 of Schedule 2 (Conditions precedent
documents).
(b) The relevant Subsidiary will become an Additional Guarantor when the
Facility Agent notifies the other Finance Parties and the Parent that
it has received, or waived receipt of, all of the documents and
evidence referred to in paragraph (a) above in form and substance
satisfactory to it. The Facility Agent must give this notification as
soon as reasonably practicable.
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(c) Delivery of an Accession Agreement, executed by the relevant Subsidiary
and the Parent, to the Facility Agent constitutes confirmation by that
Subsidiary and the Parent that the Repeating Representations are then
correct.
28.7 RESIGNATION OF A GUARANTOR
(a) In this Subclause, RESIGNATION REQUEST means a letter substantially in
the form of Schedule 8 (Form of Resignation Request), with such
amendments as the Facility Agent may approve or reasonably require.
(b) The Parent may request that a Guarantor (other than the Parent) ceases
to be a Guarantor by giving to the Facility Agent a duly completed
Resignation Request.
(c) The Facility Agent must accept a Resignation Request and notify the
Parent and the Lenders of its acceptance if:
(i) the Majority Lenders have consented to the Resignation
Request;
(ii) it is not actually aware that a Default is outstanding or
would result from the acceptance of the Resignation Request;
and
(iii) no amount owed by that Guarantor under this Agreement is
outstanding.
(d) The Guarantor will cease to be a Guarantor when the Facility Agent
gives the notification referred to in paragraph (c) above.
(e) A Guarantor may also cease to be a Guarantor in any other manner
approved by the Majority Lenders.
28.8 CHANGES TO THE REFERENCE BANKS
(a) 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 must (in consultation with the Parent) appoint another Lender or
an Affiliate of a Lender to replace that Reference Bank.
(b) If at any time there are more than two Lenders, but only two Reference
Banks, the Facility Agent may (in consultation with the Parent) appoint
another Lender or an Affiliate of a Lender as an additional Reference
Bank.
29. DISCLOSURE OF INFORMATION
(a) Each Finance Party must keep confidential any information supplied to
it by or on behalf of any Obligor in connection with the Finance
Documents. However, a Finance Party is entitled to disclose
information:
(i) which is publicly available, other than as a result of a
breach by that Finance Party of this Clause;
(ii) in connection with any legal or arbitration proceedings;
(iii) if required to do so under any law or regulation;
(iv) to a governmental, banking, taxation or other regulatory
authority;
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(v) to its professional advisers;
(vi) to another Obligor;
(vii) to the extent allowed under paragraph (b) below; or
(viii) with the agreement of the relevant Obligor.
(b) A Finance Party may disclose to an Affiliate or any person with whom it
may enter, or has entered into, any kind of transfer, participation or
other agreement in relation to this Agreement (a PARTICIPANT):
(i) a copy of any Finance Document; and
(ii) any information which that Finance Party has acquired under or
in connection with any Finance Document.
However, before a participant may receive any confidential information,
it must agree with the relevant Finance Party to keep that information
confidential on the terms of paragraph (a) above.
(c) This Clause supersedes any previous confidentiality undertaking given
by a Finance Party in connection with this Agreement prior to it
becoming a Party.
30. SET-OFF
A Finance Party may set off any matured obligation owed to it by an
Obligor under the Finance Documents (to the extent beneficially owned
by that Finance Party) against any obligation (whether or not matured)
owed by that Finance Party to that Obligor, regardless of the place of
payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the Finance Party may convert
either obligation at a market rate of exchange in its usual course of
business for the purpose of the set-off.
31. PRO RATA SHARING
31.1 REDISTRIBUTION
If any amount owing by an Obligor under this Agreement to a Lender (the
RECOVERING LENDER) is discharged by payment, set-off or any other
manner other than through the Facility Agent under this Agreement (a
RECOVERY), then:
(a) the recovering Lender must, within three Business Days, supply
details of the recovery to the Facility Agent;
(b) the Facility Agent must calculate whether the recovery is in
excess of the amount which the recovering Lender would have
received if the recovery had been received by the Facility
Agent under this Agreement; and
(c) the recovering Lender must pay to the Facility Agent an amount
equal to the excess (the REDISTRIBUTION).
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31.2 EFFECT OF REDISTRIBUTION
(a) The Facility Agent must treat a redistribution as if it were a payment
by the relevant Obligor under this Agreement and distribute it among
the Lenders, other than the recovering Lender, accordingly.
(b) When the Facility Agent makes a distribution under paragraph (a) above,
the recovering Lender will be subrogated to the rights of the Finance
Parties which have shared in that redistribution.
(c) If and to the extent that the recovering Lender is not able to rely on
any rights of subrogation under paragraph (b) above, the relevant
Obligor will owe the recovering Lender a debt which is equal to the
redistribution, immediately payable and of the type originally
discharged.
(d) If:
(i) a recovering Lender must subsequently return a recovery, or an
amount measured by reference to a recovery, to an Obligor; and
(ii) the recovering Lender has paid a redistribution in relation to
that recovery,
each Finance Party must reimburse the recovering Lender all or the
appropriate portion of the redistribution paid to that Finance Party,
together with interest for the period while it held the
re-distribution. In this event, the subrogation in paragraph (b) above
will operate in reverse to the extent of the reimbursement.
31.3 EXCEPTIONS
Notwithstanding any other term of this Clause, a recovering Lender need
not pay a redistribution to the extent that:
(a) it would not, after the payment, have a valid claim against
the relevant Obligor in the amount of the redistribution; or
(b) it would be sharing with another Finance Party any amount
which the recovering Lender has received or recovered as a
result of legal or arbitration proceedings, where:
(i) the recovering Lender notified the Facility Agent of
those proceedings; and
(ii) the other Finance Party had an opportunity to
participate in those proceedings but did not do so or
did not take separate legal or arbitration
proceedings as soon as reasonably practicable after
receiving notice of them.
32. SEVERABILITY
If a term of a Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction
of any other term of the Finance Documents; or
(b) the legality, validity or enforceability in other
jurisdictions of that or any other term of the Finance
Documents.
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33. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts.
This has the same effect as if the signatures on the counterparts were
on a single copy of the Finance Document.
34. NOTICES
34.1 IN WRITING
(a) Any communication in connection with a Finance Document must be in
writing and, unless otherwise stated, may be given:
(i) in person or by post, fax, e-mail or any other electronic
communication approved by the Facility Agent; or
(ii) if between the Facility Agent and a Lender and the Facility
Agent and the Lender agree, by e-mail or other electronic
communication.
(b) A Request may only be given by post or by fax.
(c) For the purpose of the Finance Documents, an electronic communication
will be treated as being in writing.
(d) Unless it is agreed to the contrary, any consent or agreement required
under a Finance Document must be given in writing.
34.2 CONTACT DETAILS
(a) Except as provided below, the contact details of each Party for all
communications in connection with the Finance Documents are those
notified by that Party for this purpose to the Facility Agent on or
before the date it becomes a Party.
(b) The contact details of the Parent for this purpose are:
Address: 0 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxxx
of Ireland
Fax number: 000 000 000 00
E-mail: xxxxxxxx.xxxxxxx@xxxxxxxx.xxx
Attention: Xxxxxxxx Xxxxxxx
(c) The contact details of the Borrower for this purpose are:
Address: Seagoe Industrial Estate, Xxxxxxxxx, Xxxxxx Xxxxxx,
Xxxxxxxx Xxxxxxx XX00 0XX
Fax number: 000 000 000 00
E-mail: xxxxx.xxxxx@xxxxxxxx.xxx
Attention: Xxxxx Xxxxx
(d) The contact details of the Facility Agent for this purpose are:
Address: Bank of Ireland Corporate Banking,
Block B, Bank of Ireland
Head Office, Xxxxx Xxxxxx Xxxxxx
Xxxxxx 0, Xxxxxxx
Fax number: 00 000 0 000 0000
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E-mail: xxxxxx.xxxxxxxx@xxxxxxx.xxx, xxxxxxx.xxxxxxx@xxxxxxx.xxx
Attention: Xxxxxx XxXxxxxx, Xxxxxxx Xxxxxxx
(e) Any Party may change its contact details by giving five Business Days'
notice to the Facility Agent or (in the case of the Facility Agent) to
the other Parties.
(f) Where a Party nominates a particular department or officer to receive a
communication, a communication will not be effective if it fails to
specify that department or officer.
34.3 EFFECTIVENESS
(a) Except as provided below, any communication in connection with a
Finance Document will be deemed to be given as follows:
(i) if delivered in person, at the time of delivery;
(ii) if posted, five days after being deposited in the post,
postage prepaid, in a correctly addressed envelope;
(iii) if by fax, when received in legible form; and
(iv) if by e-mail or any other electronic communication, when
received in legible form.
(b) A communication given under paragraph (a) above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place.
(c) A communication to the Facility Agent will only be effective on actual
receipt by it.
34.4 OBLIGORS
(a) All communications under the Finance Documents to or from an Obligor
must be sent through the Facility Agent.
(b) All communications under the Finance Documents to or from an Obligor
(other than the Parent) must be sent through the Parent.
(c) Each Obligor (other than the Parent) irrevocably appoints the Parent to
act as its agent:
(i) to give and receive all communications under the Finance
Documents;
(ii) to supply all information concerning itself to any Finance
Party; and
(iii) to sign all documents under or in connection with the Finance
Documents.
(d) Any communication given to the Parent in connection with a Finance
Document will be deemed to have been given also to the other Obligors.
(e) The Facility Agent may assume that any communication made by the Parent
is made with the consent of each other Obligor.
35. LANGUAGE
(a) Any notice given in connection with a Finance Document must be in
English.
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(b) Any other document provided in connection with a Finance Document must
be:
(i) in English; or
(ii) (unless the Facility Agent otherwise agrees) accompanied by a
certified English translation. In this case, the English
translation prevails unless the document is a statutory or
other official document.
36. GOVERNING LAW
This Agreement is governed by English law.
37. ENFORCEMENT
37.1 JURISDICTION
(a) The English courts have exclusive jurisdiction to settle any dispute in
connection with any Finance Document.
(b) The English courts are the most appropriate and convenient courts to
settle any such dispute and each Obligor waives objection to those
courts on the grounds of inconvenient forum or otherwise in relation to
proceedings in connection with any Finance Document.
(c) This Clause is for the benefit of the Finance Parties only. To the
extent allowed by law, a Finance Party may take:
(i) proceedings in any other court; and
(ii) concurrent proceedings in any number of jurisdictions.
37.2 SERVICE OF PROCESS
(a) Each Obligor not incorporated in England and Wales irrevocably appoints
Xxxxx Xxxxxx Ltd of Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX
as its agent under the Finance Documents for service of process in any
proceedings before the English courts.
(b) If any person appointed as process agent is unable for any reason to
act as agent for service of process, the Parent (on behalf of all the
Obligors) must immediately appoint another agent on terms acceptable to
the Facility Agent. Failing this, the Facility Agent may appoint
another agent for this purpose.
(c) Each Obligor agrees that failure by a process agent to notify it of any
process will not invalidate the relevant proceedings.
(d) This Clause does not affect any other method of service allowed by law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
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SIGNATORIES
BORROWER
XXXXX (CHEMICALS) LIMITED
By: XXXXXXXX XXXXXXX
PARENT
XXXXX HOLDINGS PLC
By: XXXXXXXX XXXXXXX
ORIGINAL GUARANTORS
XXXXX HOLDINGS PLC
By: XXXXXXXX XXXXXXX
XXXXX (UK) LIMITED
By: XXXXXXXX XXXXXXX
XXXXX LIMITED
By: XXXXXXXX XXXXXXX
ARRANGERS
ABN AMRO BANK N.V.
By: XXXXX XXXXXXXX XXXXX XXXXXX
BARCLAYS CAPITAL
(the investment banking division of Barclays Bank PLC)
By: XXXXX XXXXXXXX
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THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
By: XXXXXXX XXXXXXX XXXXXX XXXXXXXX
(Senior Manager) (Director)
ORIGINAL LENDERS
ABN AMRO BANK N.V.
By: XXXXX XXXXXXXX XXXXX XXXXXX
BARCLAYS BANK PLC
By: XXXXX XXXXXXXX XXXXX XXXXXX
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
By: XXXXXXX XXXXXXX XXXXXX XXXXXXXX
(Senior Manager) (Director)
FACILITY AGENT
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
By: XXXXXXX XXXXXXX XXXXXX XXXXXXXX
(Senior Manager) (Director)
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