Exhibit 10.18
CONFORMED COPY
(Incorporating amendments made pursuant to an
amendment
agreement dated 10 March 2004 and a second amendment deed
dated 28 June 2004)
23
December 2003
€730,000,000
SENIOR FACILITIES AGREEMENT
Between
BUHRMANN N.V.
as Parent
BUHRMANN US INC.
as Borrower
THE ORIGINAL GUARANTORS NAMED HEREIN
as Original Guarantors
DEUTSCHE BANK AG LONDON
ABN AMRO BANK N.V.
as Arrangers
DEUTSCHE BANK AG LONDON
as Agent
DEUTSCHE BANK AG LONDON
as Security Trustee
and
THE LENDERS
London
TABLE OF CONTENTS
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PART I - SUPPLEMENTARY SECURITY TRUSTEE PROVISIONS
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PART II - APPOINTMENT AND RETIREMENT OF SECURITY TRUSTEE
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SCHEDULE 6 ASSOCIATED
COSTS RATE
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PART I - FORM OF ACCESSION NOTICE
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PART II - ACCESSION DOCUMENTS
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PART I - FORM OF AUDITORS’ CONFIRMATION
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PART II - FORM OF DIRECTORS’ COMPLIANCE CERTIFICATE
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SCHEDULE 9 GROUP STRUCTURE
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SCHEDULE 10
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PART I - EXISTING LIENS
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PART II - EXISTING INDEBTEDNESS
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PART III - NON-GUARANTOR SUBSIDIARIES
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PART IV - EXISTING PROCEEDINGS
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PART V - PLANS
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PART VI - MATERIAL SUBSIDIARIES
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PART VII - EXISTING INVESTMENTS
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SCHEDULE 11 FORM OF L/C
BANK ACCESSION CERTIFICATE
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iii
THIS
AGREEMENT is
dated 23 December 2003 and made between:
(1) BUHRMANN N.V. (the “Parent”);
(2) BUHRMANN US INC. (the “Borrower”);
(3) THE ORIGINAL GUARANTORS
NAMED IN PART II OF SCHEDULE 1 (together with the Parent, the “Original Guarantors” and each an “Original Guarantor”);
(4) DEUTSCHE BANK AG
LONDON and ABN AMRO BANK N.V. (each an “Arranger” and together, the “Arrangers”);
(5) DEUTSCHE BANK AG
LONDON (as agent
for and on behalf of the Finance Parties, the “Agent”);
(6) DEUTSCHE BANK AG
LONDON (as security
trustee for and on behalf of the Finance Parties, the “Security Trustee”); and
(7) THE LENDERS (as defined below).
1.1 Definitions
In this Agreement
the following terms have the meanings set out below.
“Acceding Guarantor” means any member of the
Group which has complied with the requirements of Clause 27 (Accession of New Guarantors).
“Accession Notice”means a duly completed notice of accession in the form of
Part I of Schedule 7 (Form of Accession Notice).
“Act”means
the Companies Act 1985.
“Additional C Facility Commitments” means,
at any time, the aggregate of the Additional C1 Facility Commitments and the
Additional C2 Facility Commitments.
“Additional C1 Facility” means the term loan
facility agreement granted to the Borrower pursuant to Clause 2.1(f)(i) (The Facilities).
“Additional C1 Facility Advance” means an
advance (as from time to time reduced by repayment) made or to be made by the
C1 Facility Lenders under the Additional C1 Facility.
“Additional C1 Facility Commitment”means, in relation to a C1 Facility Lender
at any time, and save as otherwise provided in this Agreement, the amount set
opposite its name in the relevant column of Section A of Part I of
Schedule 1 (Lenders and Commitments) or as
specified in the Transfer Certificate pursuant to which such Lender becomes a
party to this Agreement.
“Additional C2 Facility” means the term loan
facility granted to the Borrower pursuant to Clause 2.1(g)(i) (The Facilities).
4
“Additional C2 Facility Advance” means an
advance (as from time to time reduced by repayment) made or to be made by the
C2 Facility Lenders under the Additional C2 Facility.
“Additional C2 Facility Commitment”means, in relation to a C2 Facility Lender
at any time, and save as otherwise provided in this Agreement, the amount set
opposite its name in the relevant column of Section A of Part I of
Schedule 1 (Lenders and Commitments) or as
specified in the Transfer Certificate pursuant to which such Lender becomes a
party to this Agreement.
“Additional Security Documents” means all
mortgages, pledge agreements, security agreements and other security documents
entered into from time to time pursuant to Clauses 25.7 (Additional Security and Further Assurances),
25.8 (Stock Pledges in Non-U.S. Subsidiaries
of the Borrower Which Are Not Guarantors) and/or 26.12 (Limitation on Creation of Subsidiaries),
as each such document may be amended, modified or supplemented from time to
time in accordance with the terms hereof and thereof.
“Adjusted Consolidated EBITDA” means, for
any period, Consolidated EBITDA for such period, adjusted by excluding
therefrom (to the extent otherwise included therein) any amounts attributable
to CEAL and any of its Subsidiaries, so long as CEAL is a Non-Wholly Owned
Subsidiary.
“Adjusted Consolidated Net Income” means,
for any period, Consolidated Net Income for such period plus, without
duplication, the sum of the amount of all net non-cash charges (including,
without limitation, depreciation, amortisation, deferred tax expense and
non-cash interest expense) and net non-cash losses which were included in
arriving at Consolidated Net Income for such period, less the amount of all net
non-cash gains and non-cash credits which were included in arriving at
Consolidated Net Income for such period.
“Adjusted Consolidated Tangible Assets”
means, at any time, the Consolidated Tangible Assets at such time, adjusted by
excluding therefrom (to the extent otherwise reflected therein) any amounts
attributable to (a) CEAL and any of its Subsidiaries, so long as CEAL is a
Non-Wholly Owned Subsidiary and (b) any Receivables Subsidiary.
“Adjusted Consolidated Working Capital”
means, at any time, Consolidated Current Assets (but excluding therefrom all
cash and Cash Equivalents) less Consolidated Current Liabilities at such time.
“Advance”means,
save as otherwise provided in this Agreement, a Revolving Facility Advance, an
A Facility Advance, a B1 Facility Advance, a B2 Facility Advance, a C1 Facility
Advance, a C2 Facility Advance, a Swingline Facility Advance or an Incremental
Term Facility Advance as the context may require.
“A Facility”means the term loan facility granted to the Borrower pursuant
to Clause 2.1(c) (The Facilities).
“A Facility Advance”means an advance (as from time to time
reduced by repayment) made or to be made by the A Facility Lenders under the A
Facility or arising in respect of the A Facility under Clause 15.3 (Division of Term Facility Advances).
“A Facility Commitment”means, in relation to an A Facility Lender
at any time, and save as otherwise provided in this Agreement, the amount set
opposite its name in the relevant
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column of
Section A of Part I of Schedule 1 (Lenders and
Commitments) or as specified in the Transfer Certificate pursuant to
which such Lender becomes a party to this Agreement.
“A Facility Lender”means a person which:
(a) is named opposite the
column relating to the A Facility (with a positive amount) in Section A of
Part I of Schedule 1 (Lenders and Commitments);
or
(b) has become a party to
this Agreement in accordance with the provisions of Clause 39 (Assignments and Transfers),
which in each case has not ceased to be a party to
this Agreement in accordance with the terms of this Agreement.
“A Facility Margin”means, in relation to A Facility Advances,
2.50 per cent. per annum.
“A Facility Outstandings”means, at any time, the aggregate principal
amount of the A Facility Advances outstanding under this Agreement.
“A Facility Repayment Date” has the meaning
ascribed to that term in Clause 10.1 (Repayment
of A Facility Outstandings).
“Affiliate” means, with respect to any
person, any other person directly or indirectly controlling (including, but not
limited to, all directors and officers of such person), controlled by, or under
direct or indirect common control with, such person. A person shall be deemed to control another
person if such person possesses, directly or indirectly, the power (a) to vote
10 per cent. or more of the securities having ordinary voting power for the
election of directors of such corporation or (b) to direct or cause the
direction of the management and policies of such other person, whether through
the ownership of voting securities, by contract or otherwise, provided that
neither the Agent nor any Lender (nor, in each case, any affiliate thereof)
shall be considered an Affiliate of the Parent or any subsidiary thereof.
“Affiliate Debt”
means any Indebtedness (including, without limitation, any Intercompany
Existing Indebtedness), whether now existing or hereafter incurred, owed by (a)
the Parent to any of its Subsidiaries or Affiliates (b) any Subsidiaries of the
Parent to the Parent or any of its Subsidiaries or Affiliates or (c) any
Affiliate of the Parent to the Parent or any of its Subsidiaries.
“Agent’s Spot Rate of Exchange”means, in relation to two currencies, the
Agent’s spot rate of exchange for the purchase of the first-mentioned currency
with the second-mentioned currency in the London foreign exchange market at or
about 11a.m. on a particular day.
“Agreed Business Plan” means the business
plan for the Group prepared by or on behalf of the Parent in the agreed form.
“Alternate Currency Incremental Term Facility Advance”
means each Incremental Term Facility Advance denominated in an Optional
Currency.
“Applicable Currency” means, for any Tranche
of Incremental Term Facility Advances, the currency (in euros or in an Optional
Currency) for such Tranche designated in the Incremental Term Facility
Commitment Agreement for such Tranche.
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“Applicable Excess Cash Flow Percentage”
means, (a) so long as a Default or an Event of Default exists on the respective
Excess Cash Flow Payment Date, 100 per cent. and (b) so long as no Default or
Event of Default exists on the respective Excess Cash Flow Payment Date, 50 per
cent. where the Consolidated Leverage Ratio on the last day of the respective
Excess Cash Flow Payment Period is equal to or greater than 2.50:1.00 and zero
where the Consolidated Leverage Ratio on the last day of the respective Excess
Cash Flow Payment Period is less than 2.50:1.00.
“Applicable Margin” means:
(a) with respect to the A Facility, the
C Facilities and the Revolving Facility, the A Facility Margin, the C
Facilities Margin and the Revolving Facility Margin, respectively. From and after each day of delivery of any
certificate delivered in accordance with the following sentence indicating an
entitlement to a different margin than the A Facility Margin, the C Facilities
Margin or the Revolving Facility Margin, as the context may require, (each, a “Start Date”) to and including the
applicable End Date described below, the Applicable Margin shall (subject to
any adjustment pursuant to the immediately succeeding paragraph) be that set
forth below opposite the Consolidated Leverage Ratio indicated to have been
achieved in any certificate delivered in accordance with the following
sentence:
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Consolidated
Leverage Ratio
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Applicable Margin for
A Facility, Revolving
Facility and Euro
Swingline Facility
Advances
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Applicable Margin for
Dollar Swingline
Facility Advances
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Applicable Margin for
C Facilities
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Greater than 3.50:1.00
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2.500 per cent.
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1.500 per cent.
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2.50 per cent
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Greater than 3.00:1.00 but less than or
equal to 3.50:1.00
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2.250 per cent.
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1.250 per cent.
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2.50 per cent
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Greater than 2.50:1:00 but less than or
equal to 3.00:1.00
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2.000 per cent.
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1.000 per cent.
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2.25 per cent
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Greater than 2.00:1.00 but less than or
equal to 2.50:1.00
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1.750 per cent.
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0.750 per cent
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2.25 per cent
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Less than or equal to 2.00:1.00
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1.500 per cent.
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0.500 per cent.
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2.25 per cent
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The Consolidated Leverage Ratio shall be determined based on the
delivery of a certificate of the Parent by an Authorised Representative of the
Parent to the Agent (with a copy to be sent by the Agent to each Lender),
within 50 days of the last day of any fiscal quarter of the Parent, which
certificate shall set forth the calculation of the Consolidated Leverage Ratio
as at the last day of the Test Period ended immediately prior to the relevant
Start Date (but determined on a Pro Forma Basis to give effect to any €5 Million
Permitted Acquisition and any €5 Million Asset Sale effected on or prior to the
date of delivery of such certificate) and the Applicable Margins which shall be
thereafter applicable (until same are changed or cease to apply in accordance
7
with the following sentences).
The Applicable Margins so determined shall apply, except as set forth in
the succeeding sentence, from the Start Date to the earlier of (i) the date on
which the next certificate is delivered to the Agent, (ii) the date which is 50
days following the last day of the Test Period in which the previous Start Date
occurred (the “End Date”), at
which time, if no certificate has been delivered to the Agent indicating an
entitlement to an Applicable Margin other than those described in the first
sentence of this paragraph (a) (and thus commencing a new Start Date), the
Applicable Margins shall be the A Facility Margin, the C Facilities Margin and
the Revolving Facility Margin (as applicable); and
(b) with respect to each Tranche of the
Incremental Term Facility Outstandings, that percentage set forth in, or
calculated in accordance with, Clause 7 (Uncommitted
Incremental Facilities) and the relevant Incremental Term Facility
Commitment Agreement provided that, if at any time, the Applicable Margin
relating to any Incremental Term Facility Outstandings exceeds by more than
0.50 per cent. the Applicable Margin relating to the C Facilities at such time,
the Applicable Margin relating to the C Facilities shall be automatically
increased to a percentage which is 0.50 per cent. below the Applicable Margin
relating to the Incremental Term Facility Outstandings.
“Asset Sale”
means any sale (including pursuant to sale-leaseback transactions (other than a
sale-leaseback transaction where the Parent or any of its Subsidiaries played a
primary financial role in the development of the relevant asset)), transfer or
other disposition by the Parent or any of its Subsidiaries to any person other
than the Parent or any Wholly-Owned Subsidiary of the Parent of any asset or
Property (including, without limitation, any Equity Interests or other
securities of another person, but excluding the sale by the Parent of its own
share capital) of the Parent or such Subsidiary other than (a) sales, transfers
or other dispositions of inventory made in the ordinary course of business, (b)
sales, transfers or other dispositions of assets pursuant to paragraphs (c)(i)
(obsolete equipment), (f) (inventory), (g) (overdue receivables) and (h) (condemned property) of Clause 26.2 (Consolidation, Merger, Purchase or Sale of Assets,
etc.), (c) sales or liquidations of Cash Equivalents, (d) sales of
Receivables Facility Assets pursuant to any Permitted Receivables Transaction,
(e) operating leases or subleases of any property by the Parent and its
Subsidiaries in the ordinary course of business, (f) the licensing of
intellectual property in the ordinary course of business, (g) any Sale In Lieu
of Liquidation and (h) any single sale of assets (or series of related sales of
assets) which generates Net Sale Proceeds of less than €250,000 (or its
equivalent in other currencies).
“Associated Costs Rate”means, in relation to any Advance or
Unpaid Sum, the rate determined in accordance with Schedule 6 (Associated Costs Rate).
“Authorisation”means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
“Authorised Representative” means, with
respect to (i) delivering Utilisation Requests and similar notices, any person
or persons that has or have been authorised by the board of directors of the
Borrower to deliver such notices pursuant to this Agreement and that has or
have appropriate signature cards on file with the Agent, (ii) delivering financial
information and officer’s certificates pursuant to this Agreement, the chief
financial officer, any treasurer or other financial officer of the Borrower or
the Parent and (iii) any other matter in
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connection with any
Finance Document, any officer (or a person or persons so designated by any two
officers) of the Parent or the Borrower.
“Available Additional C1 Facility Commitment”means, in relation to a C1 Facility
Lender, at any time and save as otherwise provided in this Agreement, its
Additional C1 Facility Commitment at such time adjusted to take account of:
(a) any cancellation or reduction of it
or any transfer by such C1 Facility Lender or any transfer to it, in each case,
pursuant to the terms of this Agreement; and
(b) in the case of any proposed Advance,
the Euro Amount of any Additional C1 Facility Advance which, pursuant to any
other Utilisation Request is to be made on or before the proposed Utilisation
Date,
less the Euro
Amount of its share of the Additional C1 Facility Advances made under this
Agreement, provided always that such amount shall not be less than zero.
“Available Additional C2 Facility Commitment”means, in relation to a C2 Facility
Lender, at any time and save as otherwise provided in this Agreement, its
Additional C2 Facility Commitment at such time adjusted to take account of:
(a) any cancellation or reduction of it
or any transfer by such C2 Facility Lender or any transfer to it, in each case,
pursuant to the terms of this Agreement; and
(b) in the case of any proposed Advance,
the Euro Amount of any Additional C2 Facility Advance which, pursuant to any
other Utilisation Request is to be made on or before the proposed Utilisation
Date,
less the Euro
Amount of its share of the Additional C2 Facility Advances made under this
Agreement, provided always that such amount shall not be less than zero.
“Available A Facility Commitment”means, in relation to an A Facility
Lender, at any time and save as otherwise provided in this Agreement, its A
Facility Commitment at such time adjusted to take account of:
(a) any cancellation or reduction of it
or any transfer by such an A Facility Lender or any transfer to it, in each
case, pursuant to the terms of this Agreement; and
(b) in the case of any proposed Advance,
the Euro Amount of any A Facility Advance which, pursuant to any other
Utilisation Request is to be made on or before the proposed Utilisation Date,
less the Euro
Amount of its share of the A Facility Advances made under this Agreement,
provided always that such amount shall not be less than zero.
“Available B1 Facility Commitment”means, in relation to a B1 Facility
Lender, at any time and save as otherwise provided in this Agreement, its B1
Facility Commitment at such time adjusted to take account of:
(a) any cancellation or reduction of it
or any transfer by such B1 Facility Lender or any transfer to it, in each case,
pursuant to the terms of this Agreement; and
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(b) in the case of any proposed Advance,
the Euro Amount of any B1 Facility Advance which, pursuant to any other
Utilisation Request is to be made on or before the proposed Utilisation Date,
less the Euro
Amount of its share of the B1 Facility Advances made under this Agreement,
provided always that such amount shall not be less than zero.
“Available B2 Facility Commitment”means, in relation to a B2 Facility
Lender, at any time and save as otherwise provided in this Agreement, its B2
Facility Commitment at such time adjusted to take account of:
(a) any cancellation or reduction of it
or any transfer by such B2 Facility Lender or any transfer to it, in each case,
pursuant to the terms of this Agreement; and
(b) in the case of any proposed Advance,
the Euro Amount of any B2 Facility Advance which, pursuant to any other
Utilisation Request is to be made on or before the proposed Utilisation Date,
less the Euro
Amount of its share of the B2 Facility Advances made under this Agreement,
provided always that such amount shall not be less than zero.
“Available
Commitment”means, in
relation to a Lender, the aggregate amount of its Available Revolving Facility
Commitment, its Available Term Facility Commitments and, subject to Clause 7 (Uncommitted Incremental Facilities) and
the relevant Incremental Facility Commitment Agreement, its Available
Incremental Term Facility Commitment or, in the context of a particular
Facility, its Available A Facility Commitment, its Available B1 Facility
Commitment, its Available B2 Facility Commitment, its Available Additional C1
Facility Commitment, its Available Additional C2 Facility Commitment, its
Available Revolving Facility Commitment, its Available Swingline
Facility Commitment or
its Available Incremental Term Facility Commitment, as the context may require.
“Available Facility”means, in relation to a Facility, at any
time, the aggregate amount of the Available Commitments in respect of that
Facility at that time.
“Available Incremental Term Facility Commitment”means, in relation to a Lender, at any
time and save as otherwise provided in this Agreement, its Incremental Term
Facility Commitment at such time adjusted to take account of:
(a) any cancellation or reduction of it
or any transfer by such Lender or any transfer to it, in each case, pursuant to
the terms of this Agreement; and
(b) in the case of any proposed Advance,
the Euro Amount of any Incremental Term Facility Advance which, pursuant to any
other Incremental Term Facility Commitment Agreement is to be made on or before
the proposed Utilisation Date,
less the Euro
Amount of its share of the Incremental Term Facility Advances made under this
Agreement and the relevant Incremental Term Facility Commitment Agreement,
provided always that such amount shall not be less than zero.
“Available Liquidity” means, at any time, an
amount equal to the Available Revolving Facility.
10
“Available Revolving Facility”means, at any time, the aggregate amount
of the Available Revolving Facility Commitments.
“Available Revolving Facility Commitment”means, in relation to a Revolving Facility
Lender, at any time and save as otherwise provided in this Agreement, its
Revolving Facility Commitment, adjusted to take account of:
(a) any cancellation or reduction of it
or any transfer by such Revolving Facility Lender or any transfer to it, in
each case, pursuant to the terms of this Agreement; and
(b) in the case of any proposed
Utilisation, the Euro Amount of (i) any Revolving Facility Advance and/or
Documentary Credit and/or any Swingline Facility Advance which pursuant to any
other Utilisation Request is to be made, or as the case may be, issued and (ii)
any Revolving Facility Advance and/or Documentary Credit and/or any Swingline
Facility Advance which is due to be repaid or expire (as the case may be), in
each case, on or before the proposed Utilisation Date,
less the Euro
Amount of its participation in the Swingline Facility Outstandings and the
Revolving Facility Outstandings at such time provided always that such amount
shall not be less than zero.
“Available Swingline
Facility”means, at any
time, the aggregate amount of the Available Swingline Facility Commitments.
“Available Swingline
Facility Commitment”means,
in relation to a Swingline Facility Lender, at any time and save as otherwise
provided in this Agreement its Swingline Facility Commitment, adjusted to take
account of:
(a) any cancellation or
reduction of it or any transfer by such Swingline Facility Lender or any
transfer to it, in each case, pursuant to the terms of this Agreement; and
(b) in the case of any
proposed Utilisation, the Euro Amount of (A) any Swingline Facility Advance
which pursuant to any other Utilisation Request is to be made and (B) any
Swingline Facility Advance which is due to be repaid, in each case, on or
before the proposed Utilisation Date,
less the Euro Amount of
its participation in the Swingline Facility Outstandings at such time,
provided always that such
amount shall not be less than zero.
“Available Term Facility Commitment”means, in relation to a Lender, the
aggregate amount of its Available A Facility Commitment, its Available B1
Facility Commitment, its Available B2 Facility Commitment, its Available
Additional C1 Facility Commitment and its Available Additional C2 Facility
Commitment.
“BBA LIBOR” means in relation to an Optional
Currency, the British Bankers’ Association Interest Settlement Rate for the
relevant currency and specified period.
“B Facilities” means the B1 Facility and the
B2 Facility and “B Facility” means
any of them as the context may require from time to time.
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“B Facility Advances” means the B1 Facility
Advances and the B2 Facility Advances.
“B Facility Commitments” means, at any time,
the aggregate of the B1 Facility Commitments and the B2 Facility Commitments.
“B Facility Lenders” means the B1 Facility
Lenders and the B2 Facility Lenders and “B Facility Lender” means any of them
as the context may require from time to time.
“B Facility Outstandings” means the B1
Facility Outstandings and the B2 Facility Outstandings.
“B1 Facility”means the term loan facility granted to the Borrower pursuant
to Clause 2.1(d) (The Facilities).
“B1 Facility Advance”means an advance (as from time to time
reduced by repayment) made or to be made by the B1 Facility Lenders under the
B1 Facility or arising in respect of the B1 Facility under Clause 15.3 (Division of Term Facility Advances).
“B1 Facility Commitment”means, in relation to a B1 Facility Lender
at any time, and save as otherwise provided in this Agreement, the amount set
opposite its name in the relevant column of Section A of Part I of
Schedule 1 (Lenders and Commitments) or as
specified in the Transfer Certificate pursuant to which such Lender becomes a
party to this Agreement.
“B1 Facility
Conversion” has the meaning ascribed to that term in Clause
2.1(f)(i) (The Facilities).
“B1 Facility Lender”means a person which:
(a) is named opposite the column
relating to the B1 Facility (with a positive amount) in Section A of Part
I of Schedule 1 (Lenders and Commitments);
or
(b) has become a party to
this Agreement in accordance with the provisions of Clause 39 (Assignments and Transfers),
which in each case has not ceased to be a party to
this Agreement in accordance with the terms of this Agreement.
“B1 Facility Outstandings”means, at any time, the aggregate
principal amount of the B1 Facility Advances outstanding under this Agreement.
“B2 Facility”means the term loan facility granted to the Borrower pursuant
to Clause 2.1(e) (The Facilities).
“B2 Facility Advance”means an advance (as from time to time
reduced by repayment) made or to be made by the B2 Facility Lenders under the
B2 Facility or arising in respect of the B2 Facility under Clause 15.3 (Division of Term Facility Advances).
“B2 Facility Commitment”means, in relation to a B2 Facility Lender
at any time, and save as otherwise provided in this Agreement, the amount set
opposite its name in the relevant column of Section A of Part I of
Schedule 1 (Lenders and Commitments) or as
specified in the Transfer Certificate pursuant to which such Lender becomes a
party to this Agreement.
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“B2 Facility Conversion” has the meaning
ascribed to that term in Clause 2.1(g)(i) (The
Facilities).
“B2 Facility Lender”means a person which:
(a) is named opposite the
column relating to the B2 Facility (with a positive amount) in Section A
of Part I of Schedule 1 (Lenders and Commitments);
or
(b) has become a party to
this Agreement in accordance with the provisions of Clause 39 (Assignments and Transfers),
which in each case has not ceased to be a party to
this Agreement in accordance with the terms of this Agreement.
“B2 Facility Outstandings” means, at any
time, the aggregate principal amount of the B2 Facility Advances outstanding
under this Agreement.
“Bankruptcy Code”means Title 11 of the United States Code entitled
“Bankruptcy” as now or hereafter in effect, or any successor to it.
“Belgian Guarantor” means each of the
parties as set out in Part II of Schedule 1 (Original Guarantors) named as Belgian Guarantors and any
Acceding Guarantor incorporated in the Kingdom of Belgium.
“Beneficiary”means, in relation to a Documentary Credit, the beneficiary
of it.
“Break Costs”means the amount (if any) by which:
(a) the interest which a Lender should
have received for the period from the date of receipt of all or any part of its
participation in an Advance or Unpaid Sum to the last day of the current
Interest Period or Term in respect of that Advance or Unpaid Sum, had the
principal amount of such Advance or Unpaid Sum received been paid on the last
day of that Interest Period or Term,
exceeds:
(b) the amount which that Lender would
be able to obtain by placing an amount equal to the principal amount of such
Advance or Unpaid Sum received or recovered by it on deposit with a leading
bank in the Relevant Interbank Market for a period starting on the Business Day
following such receipt or recovery and ending on the last day of the current
Interest Period or Term.
“Business Day”means a day (other than a Saturday or Sunday) on which (a)
banks generally are open for business in London and (b) if such reference
relates to a date for the payment or purchase of any sum denominated in:
(i) euro (A) is a TARGET Day and (B) is
a day on which banks generally are open for business in the financial centre
selected by the Agent for receipt of payments in euro; or
(ii) an Optional Currency, banks
generally are open for business in the principal financial centre of the
country of such Optional Currency.
13
“C Facilities” means the C1 Facility and the
C2 Facility and “C Facility” means
any of them as the context may require from time to time.
“C Facilities Margin”means, in relation to the C Facility
Advances, [2.50]per cent. per annum.
“C Facilities Repayment Date” has the
meaning ascribed to it in Clause 10.3 (Repayment
of C Facility Outstandings).
“C Facility Advances” means the C1 Facility
Advances and the C2 Facility Advances.
“C Facility Lenders” means the C1 Facility
Lenders and the C2 Facility Lenders and “C
Facility Lender” means any of them as the context may require from
time to time.
“C Facility Outstandings” means the C1
Facility Outstandings and the C2 Facility Outstandings.
“C1 Facility”has the meaning ascribed to that term in Clause 2.1(f) (i)(The Facilities).
“C1 Facility Advance”means any Converted C1 Facility Advance or
Additional C1 Facility Advance (and, for
the avoidance of doubt, shall include the consolidated C1 Facility Advance
pursuant to the simultaneous conversion of B1 Facility Advances and incurrence
of Additional C1 Facility Advances on the Second Amendment Effective Date) or
any advance arising in respect of the C1 Facility under Clause 15.3 (Division of Term Facility Advances), in each case as from
time to time reduced by repayment.
“C1 Facility Lender”means a person which:
(a) is a Consenting B1
Facility Lender; or
(b) is named
opposite the column relating to the Additional C1 Facility (with a positive
amount) in Section A of Part I of Schedule 1 (Lenders and Commitments); or
(c) has become a party to
this Agreement in accordance with the provisions of Clause 39 (Assignments and Transfers),
which in each case has not ceased to be a party to
this Agreement in accordance with the terms of this Agreement.
“C1 Facility Outstandings”means, at any time, the aggregate
principal amount of the C1 Facility Advances outstanding under this Agreement.
“C2 Facility”has the meaning ascribed to that term in Clause 2.1(g)(i) (The Facilities).
“C2 Facility Advance”means any Converted C2 Facility Advance or
Additional C2 Facility Advance (and, for the avoidance of doubt, shall include
the consolidated C2 Facility Advance pursuant to the simultaneous conversion of
B2 Facility Advances and incurrence of Additional C2 Facility Advances on the
Second Amendment Effective Date) or any advance arising in respect of the C2
Facility under Clause 15.3 (Division of Term Facility
Advances), in each case as from time to time reduced by repayment.
14
“C2 Facility Lender”means a person which:
(a) is a Consenting B2
Facility Lender; or
(b) is named opposite the
column relating to the Additional C2 Facility (with a positive amount) in
Section A of Part I of Schedule 1 (Lenders
and Commitments); or
(c) has become a party to
this Agreement in accordance with the provisions of Clause 39 (Assignments and Transfers),
which in each case has not ceased to be a party to
this Agreement in accordance with the terms of this Agreement.
“C2 Facility Outstandings” means, at any
time, the aggregate principal amount of the C2 Facility Advances outstanding
under this Agreement.
“Capital Expenditures”
means, with respect to any person, all expenditures by such person which is
required to be treated as capital expenditure in accordance with GAAP.
“Capitalised Lease” of a person means any lease of Property by such person
as lessee which would be capitalised on a balance sheet of such person prepared
in accordance with GAAP.
“Capitalised Lease Obligations”
of any person means all rental obligations which, under GAAP, are required to
be capitalised on the books of such person, in each case taken at the amount
thereof accounted for as indebtedness in accordance with GAAP.
“Cash”means
any credit balances on any deposit, savings or current account with a bank and
cash in hand held in the ordinary course of business.
“Cash Equivalents” means:
(a) Cash;
(b) securities issued or directly fully
guaranteed or insured by the governments of the United States, The Netherlands,
the United Kingdom, France, Switzerland, Germany or Australia or any agency or
instrumentality thereof (provided that the full faith and credit of the
respective such government is pledged in support thereof) having maturities of
not more than six months from the date of acquisition;
(c) certificates of deposit and time
deposits with maturities of six months or less from the date of acquisition,
bankers’ acceptances with maturities not exceeding six months and overnight
bank deposits, in each case with any commercial bank incorporated in the United
States or commercial bank of a foreign country recognised by the United States,
in each case having capital and surplus in excess of €500,000,000 (or the
foreign currency equivalent thereof) and has outstanding debt which is rated
“A” (or similar equivalent thereof) or higher by at least one nationally
recognised statistical rating organisation (as defined under Rule 436 under the
Securities Act) or any money-market fund sponsored by a registered broker
dealer or mutual fund distributor;
(d) repurchase obligations with a term
of not more than seven days for underlying securities of the types described in
(b) and (c) above entered into with any financial institution meeting the
qualifications specified in (c) above; and
15
(e) commercial paper having one of the
two highest ratings obtainable from S&P or Moody’s and in each case
maturing within six months after the date of acquisition.
Furthermore, with
respect to Subsidiaries of the Parent which are not organised in one or more
Qualified Jurisdictions, Cash Equivalents shall include bank deposits (and
investments pursuant to operating account agreements) maintained with various
local banks in the ordinary course of business consistent with past practice of
the Parent’s Subsidiaries.
“CEAL” means Corporate Express Australia
Limited, a corporation incorporated in Australia.
“CEAL Exception Conditions” means, in
relation to the CEAL Group at any time:
(a) each member of the CEAL Group is a Non-Wholly
Owned Subsidiary of the Parent; and
(b) no member of the CEAL Group has incurred any
Indebtedness which directly or indirectly guarantees or supports any obligation
of the Group (other than members of the CEAL Group).
“CEAL Group”
means CEAL and its Subsidiaries.
“CEXP” means Corporate Express, Inc., a
Colorado Corporation.
“Change of Control” means:
(a) any person or “group” (within the
meaning of Sections 13(d) and 14(d) under the Securities Exchange Act, as in
effect on the Effective Date), other than as a result of the ownership of
Parent Preference Shares A and Parent Preference Shares B by the respective
Permitted Holders thereof, shall (i) have acquired beneficial ownership of 35
per cent. or more on a fully diluted basis of the voting and/or economic
interest in the Parent’s share capital or (ii) obtained the power (whether or
not exercised) to elect a majority of the Parent’s directors;
(b) the board of directors of the Parent
shall cease to consist of a majority of Continuing Directors;
(c) any “change of control” or similar
event under, and as defined in, the Senior Subordinated Note Indenture, the
Senior Subordinated Convertible Bond Agency Agreement, the documentation
relating to any Permitted Subordinated Indebtedness or any Permitted
Refinancing Indebtedness or any issue of Parent Preferred Stock (including,
without limitation, each of the Parent Preference Shares A, the Parent
Preference Shares B and the Parent Preference Shares C), in each case to the
extent then outstanding, shall occur; or
(d) the Parent shall at any time cease
to own beneficially and of record, directly or indirectly through one or more
Wholly-Owned Subsidiaries of the Parent, free and clear of all Liens (other
than those created pursuant to the Finance Documents), other encumbrances, or
voting agreements, restrictions or trusts of any kind, 100 per cent. of the outstanding
Equity Interests of the Borrower on a fully diluted basis and shares
representing the right to elect a majority of the directors of the Borrower.
16
“Code” means the U.S. Internal Revenue Code
of 1986, as amended from time to time, and the cases and applicable regulations
and rulings promulgated or issued thereunder.
Section references to the Code are to the Code, as in effect as at
the Effective Date and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
“Collateral” means all property (whether
real or personal, movable or immovable) with respect to which any security
interests have been granted (or purported to be granted) pursuant to any Security
Document (including any Additional Security Document).
“Commitment”means, in relation to a Lender, its A Facility Commitment,
its B1 Facility Commitment, B2 Facility Commitment, its Additional C1 Facility
Commitment, its Additional C2 Facility Commitment, its Revolving Facility
Commitment, its Swingline Facility Commitment and/or, subject to Clause 7 (Uncommitted Incremental Facilities) its
Incremental Revolving Facility Commitment and/or its Incremental Term Facility
Commitment, as the context may require.
“Commitment Letter”means the letter dated 13
November 2003 from the Arrangers to the Parent and the Borrower with
respect to arranging the Facilities.
“Compliance Certificate”means a certificate substantially in the
form set out in Part I of Schedule 8 (Form of Auditors’
Confirmation) (or such other similar form as the Agent shall agree
with the Parent and the relevant auditors) or Part II of Schedule 8 (Form of Directors’ Compliance Certificate) as appropriate.
“Consenting B Facility Lender” means a
Consenting B1 Facility Lender or a Consenting B2 Facility Lender, as the
context may require, and “Consenting B
Facility Lenders” means all of them.
“Consenting B1 Facility Lender” means a B1
Facility Lender that has executed and delivered the Second Amendment Deed (or
that has authorised the Agent to execute and deliver the Second Amendment Deed
on its behalf) on or before the Second Amendment Effective Date.
“Consenting B2 Facility Lender” means a B2
Facility Lender that has executed and delivered the Second Amendment Deed (or
that has authorised the Agent to execute and deliver the Second Amendment Deed
on its behalf) on or before the Second Amendment Effective Date.
“Consolidated Current Assets”
means, at any time, the current assets of the Parent and its Consolidated
Subsidiaries at such time determined on a consolidated basis.
“Consolidated Current Liabilities” means, at
any time, the consolidated current liabilities of the Parent and its
Consolidated Subsidiaries at such time, but excluding (i) the current portion
of any Indebtedness under this Agreement, of any Permitted Receivables
Transaction Indebtedness and of any other long-term Indebtedness which would
otherwise be included therein, (ii) accrued but unpaid interest with respect to
the Indebtedness and (iii) the current portion of Indebtedness constituting
Capitalised Lease Obligations.
“Consolidated EBITDA” means, for any
applicable computation period, Consolidated Net Income for such period from
continuing operations, notwithstanding that same may not
17
constitute
continuing operations plus, in each case to the extent deducted in determining
Consolidated Net Income for such period, (a) taxes accrued during such period,
plus (b) interest expense accrued during such period, plus (c) amortisation and
depreciation expenses for such period. Such calculation shall exclude the effect on such Consolidated Net
Income of:
(i) non-cash extraordinary, non-cash unusual and
non-cash non-recurring gains, losses and charges occurring during such period;
(ii) non-recurring charges related to assimilation
of persons acquired, and the expenses of, Permitted Acquisitions, including
expenses incurred in connection with the retirement of Indebtedness of persons
so acquired;
(iii) the write-off of debt financing fees associated
with terminated credit facilities;
(iv) any non-cash pre-acquisition write-offs or
similar charges incurred by a person acquired pursuant to a Permitted
Acquisition that as the result of a pooling of interest are included in the
Parent’s consolidated financial statements for the period;
(v) any non-cash write-offs or similar non-cash
charges which are recorded following a Permitted Acquisition in the Parent’s
consolidated financial statements with respect to an acquired person’s assets
to the extent such amounts were accounted for in the first twelve months
following the date such acquisition was consummated;
(vi) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time after the Initial Borrowing Date;
(vii) any profits (or adding back losses)
attributable to minority interests in the Group;
(viii) until the fiscal year ending 31
December 2004, any contribution attributable (on a basis satisfactory to
the Agent) to the Paper Merchant Division;
(ix) one-time charges (including, without
limitation, restructuring charges and any upfront fees related to these
Facilities, the refinancing of the Senior Subordinated Notes and the issue of
the Senior Subordinated Convertible Bonds) occurring during such period to the
extent not already included above; and
(x) for the fiscal year ended 31 December 2003
only any cash extraordinary and/or exceptional gains or losses,
provided that
Consolidated EBITDA for any period shall be reduced by the aggregate amount of
all cash payments made during such period in respect of any amounts previously
excluded pursuant to sub-paragraphs (i), (iv), (v), (vii), (viii) and (ix) of
this sentence, whether in such period or a prior period.
“Consolidated EBITDAR” means, for any
period, Consolidated EBITDA for such period, adjusted by adding thereto the
amount of all rent and lease expense included as a component of Consolidated
Fixed Charges for such period pursuant to sub-paragraph (ii) of the definition
thereof and which was deducted in arriving at Consolidated Net Income (and not
already added back in determining Consolidated EBITDA) for such period.
18
“Consolidated Fixed Charge Coverage Ratio”
for any period, means the ratio of Consolidated EBITDAR to Consolidated Fixed
Charges for such period.
“Consolidated Fixed Charges” means, for any
period, the sum, without duplication, of (i) Consolidated Interest Expense
for such period, (ii) the amount of all rent expense of, and lease
payments expensed by, the Parent and its Subsidiaries with respect to Real
Property (including land, buildings, improvements and fixtures, including
Leaseholds) and vehicles, determined on a consolidated basis for such period,
(iii) the amount of all Capital Expenditures made by the Parent and its
Subsidiaries determined on a consolidated basis for such period (other than
Capital Expenditures to the extent made pursuant to Clause 24.1(b) (Capital Expenditures)), (iv) all Dividends
(excluding dividends paid-in-kind through the issuance of additional shares of
share capital of the Parent) actually paid by the Parent in relation to the
Parent Preference Shares A and the Parent Common Stock during such period and
(v) the scheduled principal amount of all amortisation payments with respect to
the Term Facilities for such period (as determined on the first day of the
respective period).
“Consolidated Indebtedness” means, as at any
date of determination, the aggregate stated balance sheet amount of all
Indebtedness of the Parent and its Subsidiaries (excluding (i) all Contingent
Obligations other than Contingent Obligations which are required, in accordance
with GAAP, to be reflected on the consolidated balance sheet of the Parent and
its Subsidiaries and (ii) obligations under any Hedging Agreements and Other
Hedging Agreements or other similar types of agreements) on a consolidated basis
as determined in accordance with GAAP, provided that notwithstanding any
contrary treatment pursuant to GAAP, (a) the aggregate amount of guarantees or
letters of credit issued in support of Indebtedness of persons which are not
Subsidiaries of the Parent shall at all times be included as a component of
Consolidated Indebtedness and (b) the amount of Permitted Receivables
Transaction Outstandings at any time shall be included as a component of
Consolidated Indebtedness.
“Consolidated Interest Coverage Ratio”
means, for any period, the ratio of Consolidated EBITDA to Consolidated
Interest Expense for such period.
“Consolidated Interest Expense” means, for
any period, the total consolidated interest expense of the Parent and its
Consolidated Subsidiaries for such period plus, without duplication, that
portion of Capitalised Lease Obligations of the Parent and its Consolidated
Subsidiaries representing the interest factor for such period excluding (to the
extent included in total consolidated interest expense) upfront fees relating
to these Facilities or the refinancing of the Senior Subordinated Notes. Notwithstanding
anything to the contrary contained above, to the extent Consolidated Interest
Expense for any period does not already include all Receivables Facility
Financing Costs for such period, the amount of such Receivables Facility
Financing Costs shall be added to (and form part of) Consolidated Interest
Expense. Notwithstanding anything to the
contrary contained above, to the extent any Test Period begins before the
Initial Borrowing Date, Consolidated Interest Expense as calculated above for
each such period shall instead be deemed to be for a period as set out in
column 1 below and for an amount equal to the product of such number of times
as set out in column 2 below and the Consolidated Interest Expense as
calculated above.
19
|
Column
1 - Deemed Test Period
|
|
Column 2 - Multiplier
|
|
For the period
beginning on 1 January 2004 and ending on 31 March 2004.
|
|
4
|
|
For the period
beginning on 1 January 2004 and ending on 30 June 2004.
|
|
2
|
|
For the period
beginning on 1 January 2004 and ending on 30 September 2004.
|
|
1.33
|
“Consolidated Leverage Ratio” means, on any
date, the ratio of (i) Consolidated Indebtedness on such date to (ii)
Consolidated EBITDA for the period of four consecutive fiscal quarters most
recently ended on or prior to such date, in each case taken as one accounting
period, provided that (x) to the extent any €5 Million Permitted Acquisition or
any €5 Million Asset Sale (for purposes of the Consolidated Leverage Ratio) has
occurred during the relevant Test Period, Consolidated EBITDA shall be
determined for the respective Test Period on a Pro Forma Basis for such
occurrences and (y) for the purpose of calculating the Consolidated Leverage
Ratio, freely available cash balances of the Group held with a Lender in an
aggregate amount not to exceed €50,000,000 shall be deducted from the amount of
Consolidated Indebtedness.
“Consolidated Net Income” means, for any
period, the net income (or loss) of the Parent and its Consolidated
Subsidiaries for such period, determined on a consolidated basis (after any
deduction for minority interests), provided that (a) in determining
Consolidated Net Income, the net income of any person which is not a
Subsidiary of the
Parent or is accounted for by the Parent by the equity method of accounting
shall be included only to the extent of the payment of cash dividends or cash
distributions by such other person to the Parent or a Subsidiary thereof during
such period, (b) the net income of any Subsidiary of the Parent shall be
excluded to the extent that the declaration or payment of cash dividends or
similar distributions by that Subsidiary of that net income is not at the date
of determination permitted by operation of its charter or any agreement,
instrument or law applicable to such Subsidiary, (c) the net income (or loss)
of any other person acquired by such specified person or a Subsidiary of such
person in a pooling of interests transaction for any period prior to the date
of such acquisition shall be excluded and (d) after tax gains and losses from
Asset Sales (without regard to the exceptions in (d) or (e) in the proviso of
the definition thereof) or abandonments or reserves relating thereto shall be
excluded.
“Consolidated Net Income Available to Common”
means, for any period, Consolidated Net Income for such period less (to the
extent same have not already been deducted in determining such Consolidated Net
Income) the amount of all Dividends (excluding Dividend paid pursuant to Clause
26.3(f) (Restricted Payments) to
the extent representing a return of the issue price rather than the payment of
accrued dividends thereon) paid or accrued (whether or not paid, and including
amounts attributable to dividends paid-in-kind) during the respective period
with respect to Preferred Stock (including, without limitation, all such
amounts attributable to the Parent Preference Shares A, the Parent Preference
Shares B (after any issuance thereof), the Parent Preference Shares C and any
other Preferred Stock of Parent (from time to time issued).
20
“Consolidated Subsidiaries” means, as to any
person, all Subsidiaries of such person which are consolidated with such person
for financial reporting purposes in accordance with GAAP.
“Consolidated Tangible Assets” means, at any
time, the total consolidated assets of the Parent and its Consolidated
Subsidiaries as same would be shown on a consolidated balance sheet of the
Parent prepared in accordance with GAAP, provided that all intangible assets
(in any event including good will) shall be excluded in making such
determinations.
“Contingent Obligation” means, as to any
person, any obligation of such person guaranteeing or intended to guarantee any
Indebtedness, leases or dividends (“primary
obligations”) of any other person (the “primary obligor”) in any manner, whether directly or indirectly
or to otherwise assure or hold harmless the holder of such primary
obligation against loss in respect thereof, provided, however, that the term
Contingent Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Contingent Obligation shall
be deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such person is required to perform thereunder) as
determined by such person in good faith.
“Continuing Director” means a director who
is either a member of the Supervisory Board of the Parent on the Initial
Borrowing Date or who became a member of the Supervisory Board of the Parent
subsequent to the Initial Borrowing Date and whose election, or nomination for
election by the Parent’s shareholders, was duly approved by a majority of the Continuing
Directors then on the Supervisory Board of the Parent.
“Converted C1 Facility” has the meaning
ascribed to that term in Clause 2.1(f)(i) (The
Facilities).
“Converted C1 Facility Advance” has the
meaning ascribed to that term in Clause 2.1(f) (i)(The Facilities).
“Converted C2 Facility” has the meaning
ascribed to that term in Clause 2.1(g)(i) (The
Facilities).
“Converted C2 Facility Advance” has the
meaning ascribed to that term in Clause 2.1(g) (i) (The Facilities).
“Default”means
an Event of Default or any event or circumstance which (with the passage of
time, the expiry of a grace period, the giving of notice, the making of any
determination under any of the Finance Documents or any combination of any of
the foregoing) would be an Event of Default.
“Defaulting Lender”
means any Lender with respect to which a Lender Default is in effect.
“Dividend” means, with respect to any
person, that such person has declared or paid a dividend (excluding dividends
paid by the Parent in the Parent Common Stock and Parent Preferred Stock) or
returned any equity capital to its stockholders, partners or members or
authorised or made any other distribution, payment or delivery of property
(other than ordinary share capital of such person) or cash to its stockholders,
partners or members as such, or redeemed, retired, purchased or otherwise
acquired, directly or indirectly, for a
21
consideration any
shares of any class of its share capital or any partnership or membership
interests outstanding (or any options or warrants issued by such person with
respect to its share capital or other Equity Interests), or set aside any funds
for any of the foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for a consideration any shares of
any class of the share capital or any partnership or membership interests of
such person outstanding (or any options or warrants issued by such person with
respect to its share capital or other Equity Interests).
“Documentary Credit”means a letter of credit, bank guarantee
or other documentary credit issued or to be issued by an L/C Bank pursuant to
Clause 4.1 (Conditions to Utilisation) or assumed in
accordance with Clause 5.12 (Assumption of
Existing Documentary Credits) and, where relevant, issued in
conformity with Uniform Customs and Practice for Documentary Credits (1993
Revision) ICC Publication No. 500.
“Dollar Swingline Facility Advance” means an
advance denominated in dollars as from time to time reduced by repayment made
or to be made by the Swingline Facility Lenders under the Swingline Facility.
“Dollar Swingline Facility Outstandings”
means, at any time, the aggregate principal amount of the Dollar Swingline
Facility Advances outstanding under this Agreement.
“Double Taxation Treaty”means in relation to a payment of interest
on an Advance made to a particular Borrower, any convention or agreement
between the government of the Relevant Tax Jurisdiction of the Borrower and any
other government for the avoidance of double taxation with respect to taxes on
income and capital gains which makes provision in relation to interest.
“Dutch GAAP” means generally accepted
accounting principles in The Netherlands.
“Dutch Guarantor” means each of the parties
as set out in Part II of Schedule 1 (Original
Guarantors) named as Dutch Guarantors and any Acceding Guarantor
incorporated in The Netherlands.
“Effective Date”
means the date of this Agreement.
“Eligible Institution” means and includes a
commercial bank, a finance company, an insurance company, a financial
institution, fund or other person which regularly lends, or purchases
interests, in loans or extensions of credit of the types made pursuant to this
Agreement, but in any event excluding the Parent and its Subsidiaries and
Affiliates.
“EMU Legislation”
means the legislative measures of the European Union for the introduction of
changeover to or operation of the euro in one or more member states being in
part legislative measures to implement the third stage of the European Monetary
Union.
“End Date”
has the meaning ascribed to that term in the definition of “Applicable Margin”.
“Environment”means living organisms including the ecological systems of
which they form part and the following media:
(a) air (including air within natural or
man-made structures, whether above or below ground);
22
(b) water (including territorial,
coastal and inland waters, water under or within land and water in drains and
sewers); and
(c) land (including land under water).
“Environmental Claims” means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives, claims, liens,
notices of non-compliance or violation, investigations or proceedings pursuant
to or under any Environmental Law or any permit issued, or any approval given,
under any such Environmental Law or Environmental Licence.
“Environmental Law” means all laws and regulations of any relevant jurisdiction
which:
(a) have as a purpose or effect the
protection of, and/or prevention of harm or damage to, the Environment;
(b) provide remedies or compensation for
harm or damage to the Environment; and
(c) relate to Hazardous Materials or
health or safety matters.
“Environmental Licence” means any
Authorisations required at any time under Environmental Law.
“Equity Interests”
means, in relation to any person, any and all shares, interests, rights to
purchase, warrants, options, participation or other equivalents of or interest
in (however designated) equity of such person, including any preferred stock,
any limited or general partnership interest and any limited liability company
membership interest.
“ERISA” means the U.S. Employee Retirement
Income Security Act of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
Section references to ERISA are to ERISA, as in effect as at the
Effective Date and any subsequent provisions of ERISA, amendatory thereof, supplemental
thereto or substituted therefor.
“ERISA Affiliate”
means each person (as defined in Section 3(9) of ERISA) which together
with the Parent or a Subsidiary of the Parent would be deemed to be a “single
employer” (i) within the meaning of Section 414(b), (c), (m) or (o) of the
Code or (ii) as a result of the Parent or a Subsidiary of the Parent being or
having been a general partner of such person.
“EURIBOR”means,
in relation to any amount owed by an Obligor under this Agreement in euro on
which interest for a given period is to accrue:
(a) the rate per annum for deposits in
euro which appears on the Relevant Page for such period at or about 11.00 am
(Brussels time) on the Quotation Date for such period; or
(b) if no such rate is displayed and the
Agent shall not have selected an alternative service on which such rate is
displayed, the arithmetic mean (rounded upwards, if not already such a
multiple, to 4 decimal places) of the rates (as notified to the Agent) at which
each of the Reference Banks was offering to prime banks in the European
interbank market deposits in euro for such period at or about 11.00 am
(Brussels time) on the Quotation Date for such period.
23
“Euro Amount”means:
(a) in relation to an Advance, (i) if
such Advance is denominated in euro, the amount of such Advance or (ii) if such
Advance is denominated in a currency other than euro, the equivalent in euro of
such Advance, as the amount specified in the Utilisation Request for that
Advance as adjusted, if necessary, in accordance with the terms of this
Agreement and to reflect any repayment, consolidation or division of that
Advance;
(b) in relation to a Documentary Credit,
(i) if such Documentary Credit is denominated in euro, the Outstanding L/C
Amount in relation to it at such time or (ii) if such Documentary Credit is not
denominated in euro, the equivalent in euro of the Outstanding L/C Amount at
such time, calculated as at the later of (A) the date which falls 2 Business
Days before its issue date or any renewal date or (B) the date of any
revaluation pursuant to Clause 5.3 (Revaluation of Documentary
Credits); and
(c) in relation to any Outstandings, the
aggregate of the Euro Amounts (calculated in accordance with paragraphs (a) and
(b) above) of each outstanding Advance and/or Outstanding L/C Amount, made
under the relevant Facility or Facilities (as the case may be), (i) if such
Outstandings are denominated in euro, the aggregate amount in euro of it at
such time or (ii) if such Outstandings are not denominated in euro, the
equivalent in euro of the aggregate amount of it at such time.
“Euro Swingline Facility Advance”means an advance denominated in euro as
from time to time reduced by repayment made or to be made by the Swingline
Facility Lenders under the Swingline Facility.
“Euro Swingline Facility Outstanding”means, at any time, the aggregate
principal amount of the Euro Swingline Facility Advances outstanding under this
Agreement.
“Europcenter” means Buhrmann Europcenter
N.V., a corporation organised under the laws of the Kingdom of Belgium.
“Event of Default”means any of the events or circumstances described as such in
Clause 28 (Events of Default).
“Excess Cash Flow” means, for any period,
the amount (if any) by which:
(a) the sum of:
(i) Adjusted Consolidated
Net Income (excluding any amounts of Consolidated Net Income attributable to
CEAL and its Subsidiaries but including any cash Dividends actually received
from CEAL only) for such period; and
(ii) the decrease, if any,
in Adjusted Consolidated Working Capital (excluding any decrease in Adjusted
Consolidated Working Capital attributable to CEAL and its Subsidiaries) from
the first day to the last day of such period,
24
exceeds:
(b) the sum of:
(i) the aggregate amount
of all Capital Expenditures made by the Parent and its Subsidiaries during such
period (other than Capital Expenditures to the extent financed with existing
moneys);
(ii) the
aggregate amount of all Permitted Acquisitions made by the Parent and its
Subsidiaries during such period (other than Permitted Acquisitions to the
extent financed with existing moneys);
(iii) the aggregate
amount of permanent principal payments of Indebtedness for borrowed money of
the Parent and its Subsidiaries during such period (other than, without double
counting, (A) repayments to the extent made with existing moneys, (B)
repayments of the Borrower’s 12¼ per cent. Senior Subordinated Notes due 2009
to the extent made with cash on the consolidated balance sheet of the Parent
and its Subsidiaries and (C) repayments of Outstandings, unless such repayments
of Outstandings were (1) required as a result of a Scheduled Repayment and paid
with internally generated funds or (2) made as a voluntary prepayment with
internally generated funds (but in the case of a voluntary prepayment of the
Revolving Facility, only to the extent accompanied by a voluntary reduction to
the Revolving Facility Commitments));
(iv) the increase,
if any, in Adjusted Consolidated Working Capital (excluding any increase in
Adjusted Consolidated Working Capital attributable to CEAL and its
Subsidiaries) from the first day to the last day of such period;
(v) the
aggregate amount of cash Dividends paid by the Parent during such period
pursuant to paragraph (g) of Clause 26.3 (Restricted
Payments), as the case may be;
(vi) the net
amount of Investments (i.e., the amount invested during the respective period,
net of any returns on investments previously made pursuant to said sections
during said period) pursuant to Clause 26.5(g)(ii) and/or (n) (Advances, Investments and Loans); and
(vii) one-time
charges (including, without limitation, restructuring charges and any upfront
fees related to these Facilities, the refinancing of the Senior Subordinated
Notes and the issue of the Senior Subordinated Convertible Bonds) occurring
during such period to the extent not already included above.
For the purposes of this definition only:
(A) “existing moneys” means equity proceeds,
share capital, Asset Sales proceeds, insurance proceeds and/or Indebtedness;
and
(B) in calculating Adjusted
Consolidated Working Capital, any amounts expressed in currencies other than
euros shall be converted into euros (as shown on Reuters ECB page 37 or, if
same does not provide such exchange rate, on such other basis as may be
satisfactory to the Agent) for the exchange of such currency into euros for the
last day of the fiscal year of the Parent.
25
“Excess Cash Flow Payment Date” means the
date occurring 105 days after the last day of each fiscal year of the Parent,
with the first Excess Cash Flow Payment Date to occur on the 105th
day after the last day of the fiscal year of the Parent ending closest to 31
December, 2004.
“Excess Cash Flow Payment Period” means,
with respect to the repayment required on each Excess Cash Flow Payment Date,
the immediately preceding fiscal year of the Parent.
“Existing Credit Agreement” means the Credit
Agreement dated 26 October 1999 between, inter alios, the Parent, the
Borrower, the banks and financial institutions named therein and the Bankers
Trust Company as administrative agent as amended, modified or supplemented from
time to time.
“Existing Documentary Credit” means each
letter of credit, bank guarantee or other documentary credit as set out in
Section C of Part II of Schedule 10 (Existing
Indebtedness) each as issued pursuant to or existing under the
Existing Credit Agreement and outstanding on the Initial Borrowing Date.
“Existing Indebtedness”means all Third Party Existing
Indebtedness and all Intercompany Existing Indebtedness existing as at the
Effective Date each as set out in Part II of Schedule 10 (Existing Indebtedness).
“Existing Lien”means the list of Liens existing as at the Effective Date set
out in Part I of Schedule 10 (Existing Liens).
“Expiry Date”means, in relation to any Documentary Credit granted under
this Agreement, the date stated in it to be its expiry date or the latest date
on which demand may be made under it.
“Facilities”means the Term Facilities, the Revolving Facility, the
Swingline Facility and (subject to Clause 7 (Uncommitted
Incremental Facilities)) the Incremental Revolving Facility and the
Incremental Term Facility granted to the Borrower in this Agreement, and “Facility” means any of them as the context
may require.
“Facilities Obligations” means all amounts
owing to the Finance Parties pursuant to the terms of this Agreement or any
other Finance Document.
“Facility Office”means:
(a) in relation to the Agent, the office
identified with its signature below or such other office as it may, from time
to time select for performance of its agency function under this Agreement; and
(b) in relation to a Lender, the office
from time to time designated by it to the Agent for the purposes of this
Agreement (or, in the case of a Transferee, at the end of the Transfer
Certificate to which it is a party as Transferee) or such other office as such
Lender may from time to time select.
“Fair Market
Value” means, with respect to any
asset, the price at which a willing buyer, not an Affiliate of the seller, and
a willing seller who does not have to sell, would agree to purchase and sell
such asset, as determined in good faith by the board of directors or other
governing body or, pursuant to a specific delegation of authority by such board
of directors or
26
governing body, a
designated senior executive officer, of the Parent or the Subsidiary of the
Parent selling such asset.
“Federal Funds Rate” means in relation to
any day, the rate per annum equal to:
(a) the weighted average of the rates on
overnight Federal Funds transactions with members of the US Federal Reserve
System arranged by Federal Funds brokers, as published for that day (or, if
that day is not a New York Business Day, for the immediately preceding New York
Business Day) by the Federal Reserve Bank of New York; or
(b) if a rate is not published for that
day or immediately preceding New York Business Day, the average of the
quotations for that day on those transactions received by the Agent from three
Federal Funds brokers of recognised standing selected by the Agent.
“Fee Letters”means the fee letters referred to in Clauses 17.2 (Underwriting Fee) and 17.3 (Agency Fee).
“€5 Million Asset Sale” means any Asset Sale
where the aggregate consideration (taking the Fair Market Value of any non-cash
consideration) received by the Parent and its Subsidiaries in connection
therewith is equal to or in excess of €5,000,000 (or its equivalent in other
currencies).
“€5 Million Permitted Acquisition” means
each Permitted Acquisition where the aggregate consideration paid (or which may
be paid) in connection therewith (including any deferred compensation
arrangements, the principal amount of Seller Debt and/or Permitted Acquired
Debt and the Fair Market Value of all Equity Interests in the Parent issued as
consideration in connection therewith) exceeds €5,000,000 (or its equivalent in
other currencies).
“Final Maturity Date” means:
(a) in respect of the Revolving Facility
and the Incremental Revolving Facility, the date falling 60 months after the
date of this Agreement;
(b) in respect of the A Facility,
subject to Clause 10.1 (Repayment of A
Facility Outstandings), the date falling 72 months after the date of
this Agreement;
(c) in respect of the B Facilities,
subject to Clause 10.2 (Repayment of B
Facility Outstandings), the date falling 84 months after the date of
this Agreement;
(d) in respect of the C Facilities,
subject to Clause 10.3 (Repayment of C
Facility Outstandings), the date falling 84 months after the date of
this Agreement; and
(e) in respect of the Incremental Term
Facility, the Incremental Term Facility Maturity Date.
“Finance Documents”means:
(a) this Agreement, any Documentary
Credit, any Accession Notices, Transfer Certificates and the Fee Letters;
(b) any Incremental Facility Commitment
Agreement;
27
(c) the Security Documents;
(d) the Intercreditor Deed;
(e) the Hedging Agreements;
(f) any Additional Security Document;
and
(g) any other agreement or document
designated a “Finance Document” in
writing by the Parent and the Agent.
“Finance Parties”means the Agent, the Arrangers, the Security Trustee, the Lenders
and each Hedge Counterparty to a Hedging Agreement and “Finance Party” means any of them.
“GAAP”means
in relation to any financial statement to be delivered in accordance with this
Agreement generally accepted accounting principles in The Netherlands
“Group”means
the Parent, the Borrower, and all other Subsidiaries of the Parent from time to
time.
“Group Business”means the business as conducted by the Parent and its
Subsidiaries on the date of this Agreement and any logical extensions or
related ancillary businesses thereto (including business functions incidental
to such business).
“Group Structure Chart”means the group structure chart set out in
Schedule 9 (Group Structure).
“Guarantee”means the guarantee contained in Clause 30 (Guarantee and Indemnity).
“Guarantors”means the Original Guarantors and any Acceding Guarantors and
“Guarantor” means any one of them,
as the context requires.
“Hazardous Materials” means (a) any
petroleum or petroleum products, radioactive materials, asbestos in any form
that is friable, urea formaldehyde foam insulation, transformers or other
equipment that contains dielectric fluid containing levels of polychlorinated
biphenyls, and radon gas, (b) any chemicals, materials or substances
defined as or included in the definition of “hazardous substances”, “hazardous
waste”, “hazardous materials”, “extremely hazardous substances”, “restricted
hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, or
“pollutants”, or words of similar import, under any applicable Environmental
Law and (c) any other chemical, material or substance, the Release of
which is prohibited, limited or regulated by any governmental authority.
“Hedge Counterparty”means each party other than a member of
the Group to a Hedging Agreement or, as the case may be, an Other Hedging
Agreement and “Hedge Counterparties”
means all such parties.
“Hedging Agreement”means any agreement entered into in
connection with Clause 25.12 (Interest Rate
Protection) between a member of the Group and a Lender in respect of
an interest rate swap, currency swap, forward foreign exchange transaction,
cap, floor, collar or option transaction or any other treasury transaction or
any combination of it or any other transaction entered into in connection with
protection against or benefit from fluctuation in any currency, rate or price.
28
“Hedging Letter”means the letter dated on or about the date of this Agreement
from the Agent to the Parent setting out the agreed hedging policy in respect
of the Term Facilities (other than the Incremental Term Facility).
“Holding Company”means a company or corporation of which another company or
corporation is a Subsidiary.
“Increased Cost”means:
(a) any reduction in the rate of return
from a Facility or on a Finance Party’s (or an Affiliate’s) overall capital;
(b) any additional or increased cost; or
(c) any reduction of any amount due and
payable under any Finance Document,
which is incurred
or suffered by a Finance Party or any of its Affiliates to the extent that it
is attributable to that Finance Party having agreed to make available its
Commitment or having funded or performed its obligations under any Finance
Document.
“Incremental Facility Commitment Agreement”
means an Incremental Revolving Facility Commitment Agreement or an Incremental
Term Facility Commitment Agreement, as the context may require.
“Incremental Revolving Facility”means, subject to Clause 7 (Uncommitted Incremental Facilities), the
uncommitted revolving credit facility as may be granted to the Borrower
pursuant to Clause 2.1(h) (The Facilities).
“Incremental Revolving Facility Commitment”means, in relation to an Incremental
Revolving Facility Lender at any time, and save as otherwise provided in this
Agreement, any commitment to make Utilisations provided by such Incremental
Revolving Facility Lender pursuant to Clause 7 (Uncommitted Incremental Facilities), in such amount as
agreed to by such Incremental Revolving Facility Lender in the respective
Incremental Revolving Facility Commitment Agreement.
“Incremental Revolving Facility Commitment Agreement”
means each incremental revolving facility commitment agreement in the form set
out in Part IV of Schedule 4 (Form of
Incremental Revolving Facility Commitment Agreement).
“Incremental Revolving Facility Lender” has
the meaning ascribed to that term in Clause 7.2(b) (Incremental Revolving Facility Commitment Agreement).
“Incremental Term Facility”means, subject to Clause 7 (Uncommitted Incremental Facilities), the
uncommitted term loan facility as may be granted to the Borrower pursuant to
Clause 2.1(i) (The Facilities).
“Incremental Term Facility Advance”means an advance (as from time to time
reduced by repayment) made or to be made by one or more of the Lenders under
the Incremental Term Facility or arising in respect of the Incremental Term
Facility.
“Incremental Term Facility Commitment”means, in relation to a Lender at any
time, and save as otherwise provided in this Agreement, any commitment to make
Incremental Term
29
Facility Advances
provided by such Lender pursuant to Clause 7 (Uncommitted
Incremental Facilities), in such amount as agreed to by such Lender
in the respective Incremental Term Facility Commitment Agreement.
“Incremental Term Facility Commitment Agreement”
means each incremental term facility commitment agreement in the form set out
in Part III of Schedule 4 (Form of
Incremental Term Facility Commitment Agreement).
“Incremental Term Facility Lender” has the
meaning ascribed to that term in Clause 7.1(b) (Incremental Term Facility Commitment Agreement).
“Incremental Term Facility Maturity Date”
means, for any Tranche of Incremental Term Facility, the final maturity date
specified for such Tranche of Incremental Term Facility in the relevant
Incremental Term Facility Commitment Agreement relating thereto, provided that
the final maturity date for all Incremental Term Facility Advances of a given
Tranche shall be the same date.
“Incremental Term Facility Outstandings”means, at any time, the aggregate
principal amount of the Incremental Term Facility Advances outstanding under
this Agreement.
“Incremental Term Facility Repayment Date”
has the meaning ascribed to that term in Clause 10.4 (Repayment of Incremental Term Facility Outstandings).
“Incremental Term Facility Scheduled Repayment”
has the meaning ascribed to that term in Clause 10.4 (Repayment of Incremental Term Facility Outstandings).
“Incremental Term Facility Utilisation Date”
shall mean, with respect to each Tranche of Incremental Term Facility, each
date on which Incremental Term Facility Advances of such Tranche are incurred
pursuant to Clause 4.2 (Conditions to
Utilisation of Incremental Term Facility) and as otherwise permitted
by Clause 7 (Uncommitted Incremental
Facilities).
“Indebtedness” means, as to any person,
without duplication:
(a) all indebtedness of such person for
borrowed money or for the deferred purchase price of property or services;
(b) the maximum amount available to be
drawn under all letters of credit (excluding trade letters of credit), bankers’
acceptances and similar obligations issued for the account of such person and
all unpaid drawings in respect of such letters of credit (excluding trade
letters of credit), bankers’ acceptances and similar obligations;
(c) the aggregate amount required to be
capitalised under leases under which such person is the lessee;
(d) all obligations of such person to
pay a specified purchase price for goods or services, whether or not delivered
or accepted, i.e., take-or-pay and similar obligations;
(e) all Contingent Obligations of such
person;
(f) all obligations under any Hedging
Agreement or Other Hedging Agreement or under any similar type of agreement;
and
30
(g) the amount of Permitted Receivables
Transaction Outstandings from time to time.
Notwithstanding
anything to the contrary contained above or elsewhere in this Agreement,
Indebtedness shall not include trade payables and accrued expenses incurred by
any person in accordance with customary practices and in the ordinary course of
business of such person.
“Indebtedness to be Refinanced” means all
Indebtedness of the Parent and its Subsidiaries outstanding immediately before
the consummation of the Transaction (including, without limitation,
Indebtedness referred to in Clause 2.2(a) (Purpose)
which is to be repaid or refinanced on the Initial Borrowing Date, including
any such Indebtedness which is not permitted to remain outstanding after the
Initial Borrowing Date pursuant to Clause 26.4 (Indebtedness) or as set out in paragraph 11 of Part I of
Schedule 3 (Conditions Precedent to
First Utilisation).
“Indemnifying Lender”has the meaning ascribed to that term in
Clause 5.1(b) (Issue of Documentary Credits).
“Information Memorandum”means the document dated
November 2003 concerning the Obligors which, at the request of the Parent
and on its behalf, was prepared in relation to this transaction and distributed
by the Arrangers to selected banks and other institutions during
November and December 2003 for the purposes of syndication of the
Facilities.
“Initial Borrowing Date” means the date
falling on the first Utilisation of the Facilities.
“Instructing Group” means Lenders, the sum
of whose Term Facility Outstandings (or, if prior to the occurrence of the
Utilisations on the Initial Borrowing Date, whose Term Facility Commitments),
Incremental Revolving Facility Commitments, Incremental Term Facility
Commitments and Revolving Facility Commitments (or after the termination
thereof, the Incremental Revolving Facility Outstandings, the Incremental Term
Facility Outstandings and the Revolving Facility Outstandings) as of any date
of determination represent greater than 50 per cent. of the sum of all Term
Facility Outstandings (or, if prior to the occurrence of the Utilisations on
the Initial Borrowing Date, whose Term Facility Commitments) and the sum of all
Incremental Revolving Facility Commitments, Incremental Term Commitments and
Revolving Facility Commitments of all Lenders at such time (or after the
termination thereof, the sum of the then total Incremental Revolving Facility
Outstandings, Incremental Term Facility Outstandings and Revolving Facility
Outstandings of all Lenders at such time).
“Instructing Group’s
Satisfaction” means, in relation to any documentation being
satisfactory to the Instructing Group as contained in the definitions of
“Permitted Receivables Transaction” and “Permitted Subordinated Indebtedness”,
such documentation shall be deemed satisfactory and approved by the Instructing
Group so long as (a) the relevant documentation (in substantially final form
which has been approved by the Agent) is distributed to the Lenders at least 5
Business Days prior to the entering into of such documentation, (b) the
Instructing Group does not object thereto within such 5 Business Days and (c)
the Agent approves the final form of the documentation relating thereto.
“Intellectual Property Rights”means any patent, trade mark, service
mark, registered design, trade name or copyright or any license to use any of
the same.
31
“Intercompany Existing Indebtedness” means
the list of Indebtedness existing on the Effective Date set out in
Section B (Intercompany Existing
Indebtedness) of Part II of Schedule 10 (Existing Indebtedness).
“Intercompany Loan” means each intercompany
loan or advance between or among the Parent and its Subsidiaries or between or
among Subsidiaries of the Parent.
“Intercreditor Deed” means the intercreditor
deed dated on or about the date of this
Agreement between the Parent, the Borrower, the Agent, the Security
Trustee, the Lenders, the Original Guarantors and certain other parties.
“Interest Period”means, save as otherwise provided in this Agreement, any of
those periods mentioned in Clause 15.1 (Interest Periods for Term
Facility Advances).
“Investments” has the meaning ascribed to
that term in Clause 26.5 (Advances,
Investments and Loans).
“Law”means:
(a) common or customary law;
(b) any constitution, decree, judgment,
legislation, order, ordinance, regulation, statute, treaty or other legislative
measure in any jurisdiction; and
(c) any present or future directive,
regulation, practice, concession or requirement which has the force of law and
which is issued by any governmental body, agency or department or any central
bank or other fiscal, monetary, regulatory, self-regulatory or other authority
or agency.
“L/C Bank”means Deutsche Bank AG London (and/or affiliates of Deutsche Bank AG
London (including, without limitation, Deutsche Bank Trust Company Americas)
designated by it to act as such with respect to any Documentary Credit) or any
other Lender which has been appointed as L/C Bank in accordance with Clause
5.11 (Appointment and Change of L/C Bank) or
assumed its role as issuer under any Existing Documentary Credits in accordance
with Clause 5.12 (Assumption of Existing
Documentary Credits) and which has not resigned in accordance with
paragraph (c) of Clause 5.11 (Appointment
and Change of L/C Bank).
“L/C Bank Accession Certificate”means a duly completed accession
certificate in the form set out in Schedule 11 (Form of L/C
Bank Accession Certificate).
“L/C Proportion”means, in relation to a Lender in respect of any Documentary
Credit (save as otherwise provided in this Agreement and taking into account
Clauses 21 (Replacement and Mitigation)
and 39 (Assignments and Transfers))
the proportion (expressed as a percentage) borne by such Lender’s Available
Revolving Facility Commitment to the Available Revolving Facility immediately
prior to the issue of such Documentary Credit.
“Leaseholds” of any person, means all the
right, title and interest of such person as lessee or licensee in, to and under
leases or licenses of land, improvements and/or fixtures.
“Legal Opinions”means the legal opinions set out in paragraph 8 of Part 1 of
Schedule 3 (Conditions Precedent to First Utilisation).
32
“Lender”means
an A Facility Lender, a B1 Facility Lender, a B2 Facility Lender, a C1 Facility
Lender, a C2 Facility Lender, a Revolving Facility Lender, a Dollar Swingline
Facility Lender, a Euro Swingline Facility Lender, an Incremental Revolving
Facility Lender or an Incremental Term Facility Lender, as the context may
require and “Lenders” means all of
them.
“Lender Default”
means (i) a failure or refusal (which has not been retracted) of a Lender to
fund its portion of any participating interest required to be purchased by such
Lender pursuant to Clause 6.6 (Purchase of
Swingline Participations) or (ii) a Lender having notified in
writing the Parent, the Borrower and/or the Agent that it does not intend to
comply with its obligations under Clause 6 (Swingline
Facilities) in circumstances which would be contrary to the terms of
this Agreement.
“LIBOR”means,
in relation to any amount owed by an Obligor under this Agreement in a currency
other than euro on which interest for a given period is to accrue:
(a) the rate per annum which appears on
the Relevant Page for such period at or about 11.00 am on the Quotation
Date for such period; or
(b) if no such rate is displayed and the
Agent shall not have selected an alternative service on which such rate is
displayed, the arithmetic mean (rounded upwards, if not already such a
multiple, to the nearest 4 decimal places) of the rates (as notified to the
Agent) at which each of the Reference Banks was offering to prime banks in the
London interbank market deposits in the relevant currency for such period at or
about 11.00 am on the Quotation Date for such period.
“Lien” means any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
“Luxembourg Guarantor” means each of the
parties as set out in Part II of Schedule 1 (Original Guarantors) named as Luxembourg Guarantors and any
Acceding Guarantor incorporated in Luxembourg.
“Majority Lenders” of (i) any Facility
(other than the B1 Facility, the B2
Facility, the C1 Facility or the C2 Facility) means those Lenders which would
constitute the Instructing Group under, and as defined in, this Agreement if
all outstanding Facilities Obligations of the other Facilities under this
Agreement were repaid in full and all Commitments, if any, with respect thereto
were terminated, (ii) the B1 Facility or the B2 Facility means those Lenders
which would constitute the Instructing Group under, and as defined in, this
Agreement, if all outstanding Facilities Obligations of the other Facilities
under this Agreement (other than both of the B Facilities) were repaid in full
and all commitments, if any, with respect thereto were terminated or (iii) the
C1 Facility or the C2 Facility means those Lenders which would constitute the
Instructing Group under, and as defined in, this Agreement, if all outstanding
Facilities Obligations of the other Facilities under this Agreement (other than
both of the C Facilities) were repaid in full and all commitments, if any, with
respect thereto were terminated.
33
“Margin Regulations” means and shall include
each of Regulation T, Regulation U and Regulation X.
“Margin Stock” shall have the meaning
provided in Regulation U.
“Material Adverse Effect” means (a) any
material adverse condition or material adverse change in or affecting the
business, assets, liabilities, results of operations, financial condition or
prospects of the Parent and its Subsidiaries taken as a whole, or (b) a
material adverse effect (i) on the rights or remedies of any of the Finance
Parties hereunder or under any other Finance Document or (ii) on the ability of
any Obligor to perform its obligations hereunder to any of the Finance Parties.
“Material Subsidiary” means, at any time, a
member of the Group:
(a) organised under the laws of a
Qualified Jurisdiction; and
(b) whose revenues, consolidated EBITDA
or assets (on a consolidated basis if it has Subsidiaries) represent at least 5
per cent. of the revenues, Consolidated EBITDA or assets of the Group,
and all such
Subsidiaries shall collectively represent at least 66-2/3 per cent. of consolidated
revenues, the Consolidated EBITDA and consolidated assets of the Group, as
determined by reference to the latest annual audited financial statements for
the time being of the Group delivered under paragraph (c) (Annual Financial Statements) of Clause
23.1 (Information Covenants) or,
if the company concerned becomes a Subsidiary of the Parent after the end of
the fiscal year to which such annual audited financial statements of the Group
relate, then the latest management accounts of the Group delivered under
paragraph (a) (Monthly Reports)
of Clause 23.1 (Information Covenants)
which include such company, but so that a certificate of the auditors of the
Group that a Subsidiary of the Parent is or is not a Material Subsidiary (in
accordance with this definition) at any time shall be conclusive.
“Member State” means a member of the
European Community.
“Moody’s” means Moody’s Investors Service,
Inc.
“Multiemployer Plan” means:
(a) any plan, as defined in
Section 4001(a)(3) of ERISA, which is maintained or contributed to (or to
which there is an obligation to contribute to) by the Parent or a Subsidiary of
the Parent or an ERISA Affiliate and that is subject to Title IV of ERISA; and
(b) each such plan which, during the
five year period immediately following the latest date on which the Parent, a
Subsidiary of the Parent or an ERISA Affiliate maintained, contributed to or
had an obligation to contribute to such plan, if the Parent, any Subsidiary of
the Parent or any ERISA Affiliate could reasonably incur any liability under
such plan.
“Necessary Authorisations”means all Authorisations (including any
competition and other clearances necessary in relation to the Environmental
Licences) of any person including any government or other regulatory authority
required by applicable Law to enable it to:
34
(a) lawfully enter into and perform its
obligations under the Finance Documents to which it is party;
(b) ensure the legality, validity,
enforceability or admissibility in evidence in England and, if different, its
jurisdiction of incorporation, of such Finance Documents to which it is party;
and
(c) carry on in all material respects
its business from time to time.
“Net Cash Proceeds” means, of any event, the
gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from such event, net of reasonable transaction costs
received from any such event.
“Net Sale Proceeds” means, for any sale of
assets, the gross cash proceeds (including any cash received by way of deferred
payment pursuant to a promissory note, receivable or otherwise, but only as and
when received) received from such sale of assets, net of (a) reasonable
transaction costs, (b) payments of unassumed liabilities relating to the assets
sold at the time of, or within 90 days after, the date of such sale, (c) the
amount of such gross cash proceeds required to be used to permanently repay any
Indebtedness (other than Indebtedness of the Lenders pursuant to this
Agreement) which is secured by the respective assets which were sold, and (d)
the estimated marginal increase in taxes which will be payable by the Parent
and its Subsidiaries with respect to the fiscal year in which the sale occurs
as a result of such sale.
“New York Business Day” means a day (other
than a Saturday or a Sunday) on which banks are open for general business in
New York City.
“Non-Consenting B Facility Lender” means a
Non-Consenting B1 Facility Lender or a Non-Consenting B2 Facility Lender, as
the context may require, and “Non-Consenting
B Facility Lenders” means all of them.
“Non-Consenting B1 Facility Lender” means
each B1 Facility Lender that is not a Consenting B1 Facility Lender.
“Non-Consenting B2 Facility Lender” means
each B2 Facility Lender that is not a Consenting B2 Facility Lender.
“Non-Guarantor Subsidiaries” means
(a) on the Initial Borrowing Date, the Borrower and each Subsidiary of the
Parent listed in Part III of Schedule 10 (Non-Guarantor
Subsidiaries) and (b) after the Initial Borrowing Date, any
Subsidiary of the Parent which is not at such time a Guarantor.
“Non-Material Subsidiary” means, at any
time, a member of the Group which is not a Material Subsidiary.
“Non-U.S. Pension Plan”means any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by any member of the Group for
the benefit of employees of any member of the Group residing outside the United
States of America, which plan, fund or other similar program provides, or
results in, retirement income, a deferral of income in contemplation of
35
retirement or
payments to be made upon termination of employment, and which plan is not
subject to ERISA or the Code.
“Non-U.S. Subsidiary” means (a) in the case
of the Parent, each Subsidiary of the Parent which is not a U.S. Subsidiary of
the Parent and (b) in the case of the Borrower, each Subsidiary of the Borrower
which is not a U.S. Subsidiary of the Borrower.
“Non-Wholly Owned Subsidiary” means each
Subsidiary of the Parent which is not a Wholly-Owned Subsidiary of the Parent.
“Obligors”means the Parent, the Borrower, the Guarantors and any party (other
than a Finance Party) to a Security Document and “Obligor” means any of them.
“Obligors’ Agent”means the Parent in its capacity as agent for the Obligors,
pursuant to Clause 31.17 (Obligors’ Agent).
“Optional Currency”means:
(a) in relation to any B1 Facility
Advance,any C1 Facility Advance
and any Incremental Term Facility Advance, dollars; and
(b) in relation to any Revolving
Facility Advance, dollars and any other currency except euro which:
(i) is readily available to banks in the
London interbank market, and is freely convertible into euro on the Quotation
Date and the Utilisation Date for the relevant Advance; and
(ii) has been approved by the Agent
(acting on the instructions of all the Lenders) on or prior to receipt by the
Agent of the relevant UtilisationRequest.
“Original Financial Statements”means:
(a) in relation to the Parent, its
audited consolidated financial statements for its financial year ending 31
December 2002;
(b) in relation to any Acceding
Guarantor, its financial statements delivered pursuant to paragraph 1(d) of
Part II of Schedule 7 (Accession Documents); and
(c) the Pro Forma Financial Statements.
“Original Obligors”means the Parent, the Borrower and the
Original Guarantors.
“Other Hedging Agreement” means:
(a) any agreement entered into between a
member of the Group and a bank or financial institution (other than a Lender)
in respect of any interest rate swap, currency swap, foreign exchange contracts,
cap, floor, collar or optional transaction or any other treasury transaction or
any combination of it or any other transaction entered into in connection with
protection against or benefit from fluctuating in any rate or price (an “Other Interest Hedging Agreement”); and
36
(b) any agreement entered into between a
member of the Group and a bank or financial institution (other than a Lender)
in respect of any currency swap agreements, commodity agreements or other
similar agreements or arrangements designed to protect against fluctuations in
currency or commodity values (an “Other
Currency/Commodity Hedging Agreement”).
“Outstanding L/C Amount”means:
(a) each sum paid or payable by an L/C
Bank to a Beneficiary pursuant to the terms of a Documentary Credit; and
(b) all liabilities, costs (including,
without limitation, any costs incurred in funding any amount which falls due
from an L/C Bank under a Documentary Credit), claims, losses and expenses which
an L/C Bank (or any of the Indemnifying Lenders) incurs or sustains in
connection with a Documentary Credit,
in each case which
has not been reimbursed or in respect of which cash cover has not been provided
by or on behalf of the Borrower.
“Outstandings”means, at any time, the Term Facility Outstandings, the
Revolving Facility Outstandings, the Dollar Swingline Facility Outstandings,
the Euro Swingline Facility Outstandings and any Incremental Term Facility
Outstandings.
“Paper Merchant Division” means the former
paper merchant division of the Group Business sold to PaperlinX Limited
pursuant to a sale and purchase agreement dated 8 September 2003 between
the Parent and PaperlinX Limited.
“Parent Common Stock” means, as at the
Effective Date, the 250,000,000 ordinary shares of €1.20 par value per share of
the Parent and any further such shares as may be permitted by this Agreement.
“Parent Preference Shares A” means, as at
the Effective Date, the 59,940,000 ordinary shares of €1.20 par value per share
of the Parent and any further such shares as may be permitted by this
Agreement.
“Parent Preference
Shares B” means, as at the Effective Date, the 305,000,000 ordinary
shares of €1.20 par value per share of the Parent and any further such shares
as may be permitted by this Agreement.
“Parent Preference Shares C” means, as at
the Effective Date, the 60,000 ordinary shares of €1.20 par value per share of
the Parent and any further such shares as may be permitted by this Agreement.
“Parent Preferred Stock” means,
collectively, the Parent Preference Shares A, the Parent Preference Shares B
and the Parent Preference Shares C and, after the issuance thereof, any other
Preferred Stock of the Parent.
“Participating Member State”means any member of the European Community
that at the relevant time has adopted the euro as its lawful currency in
accordance with EMU Legislation.
37
“PBGC” means the Pension Benefit Guaranty
Corporation established pursuant to Section 4002 of ERISA, or any
successor thereto.
“Permitted Acquired Debt” means Indebtedness
of any Subsidiary of the Parent acquired pursuant to a Permitted Acquisition,
which Indebtedness existed at the time of the consummation of such Permitted
Acquisition and was not created in contemplation thereof (and the provisions of
which were not altered in contemplation thereof), so long as (i) the Parent and
its Subsidiaries have no liability with respect to any such Indebtedness and
(ii) any Liens securing such Indebtedness apply only to assets of the
Subsidiary so acquired (and so long as additional assets of such Subsidiary are
not granted as security following, or in contemplation of, the respective
Permitted Acquisition).
“Permitted
Acquisition” means, subject to the Permitted Acquisition Conditions,
the acquisition by the Parent or a Wholly-Owned Subsidiary thereof of:
(a) assets constituting
part of or an entire business, division or product line of any person not
already a Subsidiary of the Parent;
(b) Equity Interests of any
person not already a Subsidiary of the Parent so that, immediately after giving
effect to such acquisition, such person shall constitute a Wholly-Owned
Subsidiary; or
(c) Equity Interests of any
person not already a Subsidiary of the Parent so that, immediately after giving
effect to such acquisition, if such person does not then become a Wholly-Owned
Subsidiary of the Parent, the consideration paid for such acquisition does not
exceed €20,000,000 (or its equivalent in other currencies),
provided that (i) one or more of the acquisitions
referred to in (a) above may be made in any fiscal year of the Parent of those
Equity Interests which would cause the respective person to be a Subsidiary,
but not a Wholly Owned Subsidiary and (ii) the aggregate consideration paid
(determined in accordance with paragraph (a) of the definition of Permitted
Acquisition Conditions) for all such acquisitions during any fiscal year of the
Parent does not (A) in the event the Consolidated Leverage Ratio (on a Pro
Forma Basis) is greater than 3.75:1.00, exceed €25,000,000 and (B) in the event
the Consolidated Leverage Ratio (on a Pro Forma Basis) is less than or equal to
3.75:1.00, exceed €100,000,000.
“Permitted
Acquisition Conditions” means, in relation to any Permitted
Acquisition:
(a) the consideration paid
for such acquisition consists solely of Parent Common Stock, Qualified
Preferred Stock, cash and/or, in the case of the acquisition of a Wholly-Owned
Subsidiary, the issuance of Seller Debt and/or the assumption of Permitted
Acquired Debt in accordance with the requirements of this Agreement;
(b) the assets acquired or
the business of the person whose stock is acquired, shall fall within the
definition of Group Business and the respective Permitted Acquisition shall be
effected in accordance with the relevant requirements of Clause 25.2 (Conduct of Business);
(c) the respective
Permitted Acquisition shall be effected by the Parent or a Wholly-Owned
Subsidiary thereof;
38
(d) the Borrower shall have
demonstrated compliance on a Pro Forma Basis with the financial covenants in
Clause 24 (Financial Condition),
inclusive;
(e) at the date of the
declaration of the respective Permitted Acquisition (and if such Permitted
Acquisition is consummated within 30 days of such declaration) the Borrower
shall have Available Liquidity of at least €50,000,000;
(f) the Borrower in good
faith determines that the Parent and its Subsidiaries taken as a whole are not
likely to assume or become liable for material increased contingent liabilities
as a result of such acquisition;
(g) in the case of each
Permitted Acquisition where the aggregate consideration is in excess of
€5,000,000 (or its equivalent in other currencies), the Parent delivers to the
Agent at the time of the consummation of the respective Permitted Acquisition
an officer’s certificate in form, scope and substance reasonably satisfactory
to the Agent certifying that the foregoing conditions have been satisfied and showing
compliance with the requirements of paragraphs (d) and (e) above; and
(h) no Default or Event of
Default shall exist at the time of the consummation of the respective Permitted
Acquisition or immediately after giving effect thereto,
provided that the Parent or its Wholly-Owned
Subsidiaries may consummate one or more Permitted Acquisitions in any fiscal
year of the Parent without complying with paragraphs (d) and (e) above (and the
officer’s certificate, if any, required to be delivered pursuant to paragraph
(g) above shall not be required to certify compliance with such conditions), so
long as the aggregate consideration paid for all Permitted Acquisitions
effected pursuant to this proviso during any fiscal year of the Parent does not
exceed €15,000,000 (or its equivalent in other currencies).
“Permitted Holder” shall mean (a) with
respect to the Parent Preference Shares A, Stichting A so long as the
Stichting A Continuing Directors shall not cease to constitute a majority of
the executive committee of Stichting A and (b) with respect to the Parent
Preference Shares B, Stichting B so long as the Stichting B Continuing
Directors shall not cease to constitute a majority of the executive committee
of Stichting B.
“Permitted Liens” has the meaning ascribed
to that term in Clause 26.1 (Liens).
“Permitted Receivables Facility” means the
€800,000,000 Asset-Backed Euro Medium Term Note Programme entered into by
Silver Funding Limited more particularly described in the Offering Circular
dated 18 July 2002 or such other facility in form and substance similar to
the aforesaid programme pursuant to which a Permitted Receivables Transaction
is provided.
“Permitted Receivables Facility Documentation”
means all documentation evidencing, or relating to, any Permitted Receivables
Facility or Permitted Receivables Transaction.
“Permitted Receivables Transaction” means,
from time to time, a transaction (or series of transactions) evidenced by a
receivables purchase agreement and related documentation entered into after the
Initial Borrowing Date and providing for the sale or transfer of Receivables
Facility Assets by one or more Receivables Sellers to a Receivables Subsidiary,
and further providing for the sale or transfer of Receivables Facility Assets
by the
39
Receivables
Subsidiary to one or more purchasers of interests therein, provided that (a)
such agreement and the documents and instruments entered into in connection
therewith shall be in form and substance reasonably satisfactory to the Agent
and the Instructing Group’s Satisfaction, (b) the Parent shall have provided
the Agent and the Lenders with not less than 15 days’ prior notice of its
intent to enter into such receivables purchase agreement and (c) 100 per
cent. of the Permitted Receivables Transaction Proceeds received by the Parent
or any of its Subsidiaries shall be applied in accordance with paragraph (e) (Permitted Receivables Transactions) of
Clause 13.1 (Repayment from Net Proceeds).
“Permitted Receivables Transaction Outstandings”
means at any time, the aggregate amount of cash paid to the Parent and/or its
Subsidiaries in respect of the Receivables Facility Assets sold or transferred
by them pursuant to one or more Permitted Receivables Transactions, in each
case to the extent the respective receivables have not yet been repaid by the
respective account debtor or repurchased by Receivables Sellers (it being the
intent of the parties that the amount of Permitted Receivables Transaction
Outstandings at any time outstanding approximate as closely as possible the
principal amount of Indebtedness which would be outstanding at such time under
the Permitted Receivables Facilities then in effect if same were structured as
a secured lending agreement rather than a purchase agreement).
“Permitted Receivables Transaction Proceeds”
means all proceeds received by the Parent and its Subsidiaries from time to
time as a result of sales or transfers of Receivables Facility Assets pursuant
to one or more Permitted Receivables Transactions.
“Permitted
Refinancing Indebtedness” means any Indebtedness of the Parent or
any of its Subsidiaries issued in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund (collectively,
to “Refinance”):
(a) Third Party Existing
Indebtedness described in Section A (Third
Party Existing Indebtedness) of Part II of Schedule 10 (Existing Indebtedness) (or previous
refinancings thereof constituting Permitted Refinancing Indebtedness); or
(b) outstanding Senior
Subordinated Notes so long as the Permitted Refinancing Indebtedness shall be
permitted to be outstanding in accordance with the requirements of Clause
26.4(l) (Indebtedness),
provided that:
(i) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount (or accreted value, if applicable) and
related redemption fees of the Indebtedness so Refinanced;
(ii) the Permitted
Refinancing Indebtedness shall not have (A) a Weighted Average Life to Maturity
that is less than the Weighted Average Life to Maturity of the Indebtedness
being Refinanced or (B) a final maturity earlier than the final maturity of the
Indebtedness being Refinanced;
(iii) in the case of Permitted
Subordinated Indebtedness, it shall be subordinated in right of payment to the
Facilities Obligations on terms at least as favorable to the Lenders as those
contained in the documentation governing the
40
Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
(iv) no Permitted Refinancing
Indebtedness shall have different obligors, or greater guarantees or security,
than the Indebtedness being Refinanced; and
(v) in no event shall any
Permitted Refinancing Indebtedness be secured (A) in the case of Permitted
Refinancing Indebtedness described in paragraph (a), by any share, stock or
other Equity Interest subject or purported to be subject to a Security Document
(whether equally and ratably with, or junior to, the Finance Parties or
otherwise) or (B) in the case of any Permitted Refinancing Indebtedness
described in paragraph (b), by any assets whatsoever.
“Permitted Subordinated Indebtedness” means:
(a) the Senior Subordinated
Notes;
(b) the Senior Subordinated
Convertible Bonds; and
(c) any general unsecured
subordinated Indebtedness for borrowed money incurred by any member of the
Group after the Initial Borrowing Date, all of the terms and conditions of
which and the documentation therefor, shall be in form and substance reasonably
satisfactory to the Agent and to the Instructing Group’s Satisfaction,
provided, that in any event, unless the Instructing Group otherwise expressly
consents in writing prior to the incurrence thereof:
(i) no such Indebtedness
shall be secured by any asset of the Parent or any of its Subsidiaries;
(ii) no such Indebtedness
shall be guaranteed except by the Parent or any other Guarantor on a
subordinated basis on substantially the same terms as the Senior Subordinated
Notes and/or the Senior Subordinated Convertible Bonds are guaranteed;
(iii) such Indebtedness shall
have substantially the same (or, from the perspective of the Lenders, more
favorable) subordination provisions as are contained in the Senior Subordinated
Note Indenture and/or the Senior Subordinated Convertible Bonds;
(iv) no such Indebtedness
shall have any maturity or required repayment (other than as a result of change
of control or asset sale provisions approved by the Instructing Group) prior to
the first anniversary of the Final Maturity Date of the C Facility as same is
in effect on the date of incurrence of such Indebtedness; and
(v) Utilisations from time
to time pursuant to this Agreement, in an aggregate outstanding amount at any
time equal to the sum of the Term Facility Outstandings on the date of
incurrence of such Permitted Subordinated Indebtedness and in an amount equal
to the total Revolving Facility Commitments and total A Facility Commitments as
then in effect, shall be permitted without complying with any financial tests.
41
Notwithstanding the above sub-paragraphs (i) to (v),
such Indebtedness shall be permitted to bear interest at then current market
rates (as reasonably determined by the Agent).
The
incurrence of Permitted Subordinated Indebtedness shall be deemed to be a
representation and warranty by the Parent that all conditions thereto have been
satisfied in all material respects and that same is permitted in accordance
with the terms of this Agreement, which representation and warranty shall be
deemed to be a representation and warranty for all purposes hereunder,
including, without limitation, Clauses 4.1 (Conditions
to Utilisation), 4.2 (Conditions
to Utilisation of Incremental Term Facility) and 6.2 (General Conditions to Utilisation of Swingline
Facility Advances).
“Permitted Subordinated Indebtedness Documents” means all
indentures, securities purchase agreements, note agreements and/or other documents
and agreements entered into in connection with any Permitted Subordinated
Indebtedness.
“Plan” means (i) any single-employer plan, as defined in
Section 4001(a)(15) of ERISA, which is maintained or contributed to by (or to
which there is an obligation to contribute to by), the Parent or a Subsidiary
of the Parent or an ERISA Affiliate and that is subject to Title IV of ERISA
and (ii) each such plan which, during the five year period immediately
following the latest date on which the Parent, a Subsidiary of the Parent or an
ERISA Affiliate maintained, contributed to or had an obligation to contribute
to such plan, if, for purposes of this clause (ii), the Parent, any Subsidiary
of the Parent or any ERISA Affiliate could reasonably incur any liability under
such plan.
“Pledge Agreements” means each of the documents specified in
paragraph 2 of Section A, paragraph 3 of Section B, paragraph 2 of Section C,
paragraph 1 of Section D and paragraph 1 of Section E in Part III of Schedule 3
(Security Documents).
“Preferred Equity Financing” means the $350,000,000 gross
proceeds received by the Parent from the issuance of Parent Preference Shares C
to the Preferred Equity Investors.
“Preferred Equity Financing Documents” means the Stock Purchase
Agreement, made as of 3 September 1999, among the Parent and the Preferred
Equity Investors and all other agreements, documents and instruments relating
to the Preferred Equity Financing.
“Preferred Equity Investors” means, collectively, Apollo
Management, L.P. and Bain Capital, Inc. (or their respective affiliates
reasonably satisfactory to the Agent).
“Preferred Stock” as applied to the share capital of any
person, means share capital of such person (other than ordinary share capital
of such person) of any class or classes (however designed) that ranks prior, as
to the payment of dividends or as to the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding up of such person,
to any other class of share capital of such person.
“Prime Lending Rate” means the rate which Deutsche Bank AG, New
York Branch announces from time to time as its prime lending rate, such rate to
change from time to time. The Prime
Lending Rate is a reference rate and does not necessarily represent the lowest
or the best rate actually charged to any customer. Deutsche Bank AG, New York Branch may make
commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate.
42
“Pro Forma Basis” means, as to any person, for any events which
occur subsequent to the commencement of a period for which the financial effect
of such event is being calculated, and giving effect to the event for which
such calculation is being made, such calculation as will give pro forma effect
to such event as if same had occurred at the beginning of such period of
calculation, and:
(a) for purposes of the foregoing calculation, the
transaction giving rise to the need to calculate the pro forma effect to any of
the following events shall be assumed to have occurred on the first day of the
four consecutive fiscal quarter period last ended before the occurrence of the
respective event for which such pro forma effect is being determined (the “Reference Period”); and
(b) in making any determination with respect to the
incurrence or assumption of any Indebtedness during the Reference Period or
subsequent to the Reference Period and on or prior to the date of the
transaction referenced in paragraph (a) above (the “Transaction Date”), (i) all Indebtedness (including
Indebtedness incurred or assumed and for which the financial effect is being
calculated, whether incurred under this Agreement or otherwise, but excluding
normal fluctuations in revolving indebtedness incurred for working capital
purposes and not to finance any acquisition) incurred or permanently repaid
during the Reference Period shall be deemed to have been incurred or repaid at
the beginning of such period, (ii) Consolidated Interest Expense of such person
attributable to interest or dividends on any Indebtedness, as the case may be,
bearing floating interest rates should be computed on a pro forma basis as if
the rate in effect on the Transaction Date had been the applicable rate for the
entire period and (iii) Consolidated Interest Expense will be increased or
reduced by the net cost (including amortisation of discount) or benefit (after
giving effect to amortisation of discount) associated with the Hedging
Agreements and the Other Interest Hedging Agreements, which will remain in
effect for the twelve-month period after the Transaction Date and which shall
have the effect of fixing the interest rate on the date of computation; and
(c) in making any determination of Consolidated
EBITDA, pro forma effect shall be given to any €5 Million Permitted Acquisition
and any €5 Million Asset Sale, in each case which occurred during the Reference
Period or subsequent to the Reference Period and prior to the Transaction Date,
as if such Permitted Acquisition, Asset Sale or other transaction, as the case
may be, occurred on the first day of the Reference Period.
All pro forma determinations
required above shall be made, to the extent possible, in accordance with
Regulation S-X. For purposes of this
definition, whenever pro forma effect is to be given to any occurrence or
event, the pro forma calculation shall be determined in good faith by a
responsible financial or accounting officer of the Parent.
“Pro Forma Financial Statements”means, after taking into account the effect of the
Transaction (including the incurrence of all Indebtedness), the pro forma
consolidated balance sheet of the Group as of 31 December 2003 with the related
pro forma consolidated statements of income and cash flow of the Group for the
period covered thereby in the form and showing the information agreed between
the Parent and the Agent (acting on the instructions of an Instructing Group).
43
“Projections” means the detailed projected consolidated financial
statements of the Parent and its Subsidiaries after giving effect to the
Transaction as delivered in accordance with paragraph (d) (Projections) of Clause 23.1 (Information Covenants).
“Property” of a person, means any and all property, whether
real, personal, tangible, intangible or mixed, of such person, or other assets
owned, leased, or operated by such person.
“Proportion”in
relation to a Lender, means:
(a) in relation to an Advance to be made under this
Agreement, the proportion borne by such Lender’s Available Commitment in
respect of the relevant Facility to the relevant Available Facility;
(b) in relation to an Advance or Advances
outstanding under this Agreement, the proportion borne by such Lender’s share
of the Euro Amount of such Advance or Advances to the total Euro Amount
thereof;
(c) if paragraph (a) above does not apply and there
are no Outstandings, the proportion borne by the aggregate of such Lender’s
Available Commitment to the Available Facilities (or if the Available
Facilities are then zero, by its Available Commitment to the Available
Facilities immediately prior to their reduction to zero); and
(d) if paragraph (b) above does not apply and there
are any Outstandings, the proportion borne by such Lender’s share of the Euro
Amount of the Outstandings to the Euro Amount of all the Outstandings for the
time being.
“Protected Party”means
a Finance Party or any Affiliate of a Finance Party which is or will be,
subject to any Tax Liability in relation to any amount payable under or in
relation to a Finance Document.
“Qualified Guarantor” means each Material Subsidiary which is a
Wholly-Owned Subsidiary of the Parent, organised under the laws of a Qualified
Jurisdiction, in each case which has acceded to this Agreement as a Guarantor
and executed the required Security Documents in accordance with the
requirements of Clause 25.7 (Additional
Security and Further Assurances), provided that any Qualified
Guarantor shall cease to constitute same at such time, if any, as such
Subsidiary ceases to be a Wholly-Owned Subsidiary of the Parent or ceases to be
a Material Subsidiary.
“Qualified Jurisdictions” means and includes the United States,
The Netherlands, England and Wales, Belgium, Luxembourg and Australia, in each
case including any states, provinces, other similar local units therein or any
additional jurisdictions so long as the Agent is reasonably satisfied with the
respective jurisdiction requested to be so added. The parties hereto further agree that, in the
discretion of the Agent, as a condition to the addition of any jurisdiction to
the list of Qualified Jurisdictions, the Agent may (but shall not be required
to) request the consent of the Instructing Group to such addition and, in such
event, the Agent shall be entitled to wait for such consent before adding the
respective jurisdiction to the list of Qualified Jurisdictions.
“Qualified Obligors” means the Parent, the Borrower and each
other Obligor which is (a) a Material Subsidiary and (b) a Wholly-Owned
Subsidiary of the Parent or the Borrower,
44
organised under the laws of a
Qualified Jurisdiction, in each case which has acceded to the Agreement in
accordance with Clause 27 (Accession of New
Guarantors) and executed the required Security Documents in
accordance with the requirements of Clause 25.7 (Additional Security and Further Assurances) provided that
any Qualified Obligor shall cease to constitute the same at such time, if any,
as such Obligor ceases to be a Wholly-Owned Subsidiary (other than the Parent)
of the Parent or the Borrower or ceases to be a Material Subsidiary.
“Qualified Preferred Stock” means any preferred stock of the
Parent so long as the terms of any such preferred stock:
(a) do not contain any mandatory put, redemption,
repayment, sinking fund or other similar provision, except upon the occurrence
of a change of control (the definition of which shall be no more restrictive
than that set forth in the Senior Subordinated Note Indenture) so long as the terms
thereof do not require any such redemption or other action unless (and until)
all Facilities Obligations have been paid in full in cash and the aggregate
amount of the Commitments and all Documentary Credits have been terminated or
the requisite consents under this Agreement have been obtained to permit such
redemption or other action;
(b) do not require the cash payment of
dividends to the extent that the payment thereof would not be permitted at such
time pursuant to this Agreement (and refinancings, replacements or extensions
hereof);
(c) do not contain any operating or
financial maintenance covenants;
(d) do not grant the holders thereof any
voting rights (prior to the conversion into Parent Common Stock, if applicable)
except for (i) voting rights required to be granted to such holders under
applicable law and (ii) limited customary voting rights on fundamental matters
such as mergers, consolidations, sales of all or substantially all of the
assets of the Parent, or liquidations involving the Parent; and
(e) are otherwise reasonably satisfactory to the
Agent.
Qualified Preferred Stock may
only be exchangeable into Parent Common Stock or additional Qualified Preferred
Stock.
“Quotation Date”means,
in relation to any currency and any period for which an interest rate is to be
determined:
(a) in the case of an Advance (other
than a Swingline Advance):
(i) if the relevant currency is euro, 2 TARGET Days
before the first day of that period; and
(ii) if the relevant currency is dollars or an Optional
Currency, 2 Business Days before the first day of that period; and
(b) in the case of a Swingline Advance, the first day of the Term of such
Advance,
provided that if market
practice differs in the Relevant Interbank Market for a currency, the Quotation
Date for that currency will be determined by the Agent in accordance with
market
45
practice in the Relevant
Interbank Market (and if quotations would normally be given by leading banks in
the Relevant Interbank Market on more than one day, the Quotation Date will be
the last of those days).
“Real Property” of any person, means all the right, title and
interest of such person in and to land, improvements and fixtures, including
Leaseholds.
“Receivables Facility Assets” means all accounts receivable of
any Receivables Sellers (other than any Receivables Subsidiary) which are
transferred to the Receivables Subsidiary pursuant to a Permitted Receivables
Transaction, and any assets directly related thereto.
“Receivables Facility Financing Costs” means, for any period,
the total consolidated interest and fee expense of the Parent and its
Subsidiaries which would have existed for such period pursuant to a Permitted
Receivables Transaction if same were structured as a secured lending
arrangement rather than as a facility for the sale of Receivables Facility
Assets.
“Receivables Sellers”
at any time, means the Parent and any of its Subsidiaries which is, at such
time, a person which is selling or transferring Receivables Facility Assets to
a Receivables Subsidiary pursuant to a Permitted Receivables Transaction.
“Receivables Subsidiary”
means a Wholly-Owned Subsidiary of the Parent which engages in no activities
other than in connection with the financing of accounts receivable and which is
designated (as provided below) as a Receivables Subsidiary (a) no portion of
the Indebtedness or any other obligations (contingent or otherwise) of which,
(i) is guaranteed by the Parent or any other Subsidiary of the Parent
(excluding guarantees of obligations (other than the principal of, and interest
on, Indebtedness) pursuant to Standard Securitisation Undertakings), (ii) is
recourse to or obligates the Parent or any other Subsidiary of the Parent in
any way other than pursuant to Standard Securitisation Undertakings, or (iii)
subjects any property or asset of the Parent or any other Subsidiary of the
Parent, directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitisation Undertakings, (b) with
which neither the Parent nor any of its Subsidiaries has any contract,
agreement, arrangement or understanding (other than pursuant to the Permitted
Receivables Facility Documents (including with respect to fees payable in the
ordinary course of business in connection with the servicing of accounts
receivable and related assets)) on terms less favorable to the Parent or such
Subsidiary than those that might be obtained at the time from persons that are
not Affiliates of the Parent and (c) to which neither the Parent nor any other
Subsidiary of the Parent has any obligation to maintain or preserve such
entity’s financial condition or cause such entity to achieve certain levels of
operating results. Any such designation
shall be evidenced to the Agent by filing with the Agent an officer’s
certificate of the Borrower certifying that, to the best of such officer’s
knowledge and belief after consultation with counsel, such designation complied
with the foregoing conditions.
“Recovery Event”
means the receipt by the Parent or any of its Subsidiaries of any insurance or
condemnation proceeds payable (i) by reason of theft, physical destruction or
damage or any other similar event with respect to any properties or assets of
the Parent or any of its Subsidiaries, (whether under any policy of
insurance required to be maintained under Clause 23.3 (Insurance) or otherwise) and (ii) by
reason of any condemnation, taking, seizing or similar event with respect to
any properties or assets of the Parent or any of its Subsidiaries.
“Reference Banks”means
the principal London offices of Deutsche Bank AG, ABN AMRO Bank N.V., ING Bank
N.V. and Coöperative Centrale Raiffeisen-Boerenleenbank B.A. or
46
such other bank or banks as
may be appointed as such by the Agent after consultation with the Parent.
“Reference Period”
has the meaning ascribed to it in the definition of “Pro Forma Basis”.
“Refinance” has the meaning ascribed to that term in the
definition of “Permitted Refinancing
Indebtedness” and “Refinancings”,
“Refinances” and “Refinanced” shall be construed accordingly.
“Regulation S-X” means U.S. Regulation S-X promulgated by the
SEC.
“Regulation T” means U.S. Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
“Regulation U” means U.S. Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
“Regulation X” means U.S. Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
“Release” means the disposing, discharging, injecting,
spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying,
pouring or migrating, into or upon any land or water or air, or otherwise
entering into the environment.
“Relevant Interbank Market”means,
in relation to euro, the European interbank market and, in relation to any
Optional Currency, the London interbank market.
“Relevant Interbank Rate” means:
(a) in relation to an Advance (other
than a Euro Swingline Facility Advance) denominated in euros, EURIBOR; or
(b) in relation to an Advance (other than a Dollar
Swingline Facility Advance) denominated in an Optional Currency, LIBOR; or
(c) in relation to a Euro Swingline
Facility Advance denominated in euros, LIBOR; or
(d) in relation to a Dollar Swingline
Facility Advance, Federal Funds Rate.
“Relevant Page”means
the page of the Reuters or Telerate screen on which is displayed in relation to
EURIBOR, the European interbank offered rates for euro and, in relation to
LIBOR, BBA LIBOR for the relevant currency, or, if such page or service shall
cease to be available, such other page or service which displays the European
interbank offered rates for euro or the London interbank offered rates for the
relevant currency as the Agent, after consultation with the Lenders and the
Parent, shall select.
“Renewal Request”means,
in relation to a Documentary Credit, a Utilisation Request therefor, in respect
of which the proposed Utilisation Date stated in it is the Expiry Date of an
existing Documentary Credit and the proposed Euro Amount is the same or less
than the Euro Amount of that existing Documentary Credit.
47
“Repayment Date” means:
(a) in relation to any Revolving Facility Advance,
Dollar Swingline Facility Advance and Euro Swingline Facility Advance, the last
day of the Term or, if earlier, the Final Maturity Date of the Revolving
Facility;
(b) in respect of the Term Facility Outstandings,
each of the A Facility Repayment Dates, the C Facilities Repayment Dates; and
(c) in respect of the Incremental Term Facility
Outstandings, each of the Incremental Term Facility Repayment Dates,
provided that if any such day
is not a Business Day in the relevant jurisdiction for payment, the Repayment
Date will be the next succeeding Business Day in the then current calendar
month (if there is one) or the preceding Business Day (if there is not).
“Repeating Representations” means the representations and
warranties set out in Clauses 22.1 (Due
Organisation), 22.4 (No Immunity),
22.5 (Governing Law and Judgments),
22.6 (All Actions Taken), 22.8 (Binding Obligations), 22.9 (No Winding-up), 22.11 (No Material
Proceedings), in relation to circumstances as at the date of the
Information Memorandum, 22.15 (Information
Memorandum), 22.16 (Projections),
22.17 (Indebtedness and Liens),
22.19 (Power and Authority),
paragraph (b) of Clause 22.20 (Structure),
22.23 (Intellectual Property),
22.24 (Ownership of Assets),
22.28 (Security), 22.29 (Investment Company Act), 22.30 (Margin Stock), 22.31 (Public Utility Holding Company Act) and
22.35 (Benefits of Subordination Provisions).
“Replaced Lender” has the meaning ascribed to that term in
Clause 21.1 (Replacement of Lenders).
“Replacement Lender” has the meaning ascribed to that term in
Clause 21.1 (Replacement of Lenders).
“Reportable Event” means an event described in Section 4043(c)
of ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
..22, .23, .25, .27, .28 or .29 of PBGC Regulation Section 4043.
“Reporting Company” means a company required to file Form 10-K
Reports and Form 10-Q Reports under the Securities Exchange Act.
“Restricted Payment” means (i) the authorisation,
declaration or payment of any Dividend with respect to the Parent or any of its
Subsidiaries and (ii) the making of any payment on, or with respect to,
any Affiliate Debt.
“Revolving Facility”means
the revolving loan facility (including the documentary credit facility and, where
appropriate, the Swingline Facility) granted to the Borrower pursuant to Clause
2.1(a) (The Facilities).
“Revolving Facility Advance”means
an advance (including a Rollover Advance but excluding a Documentary Credit) as
from time to time reduced by repayment made or to be made by the Lenders under
the Revolving Facility.
“Revolving Facility Commitment”means, in relation to a Lender at any time, and save as
otherwise provided in this Agreement, the amount set opposite its name in the
relevant
48
column of Part I of Schedule 1
(Lenders and Commitments) (as the same
may be increased from time to time pursuant to Clause 7.2 (Incremental Revolving Facility))or as specified in the Transfer
Certificate pursuant to which such Lender becomes a party to this Agreement.
“Revolving Facility Lender”means a person (including each L/C Bank)
which:
(a) is named opposite the
column relating to the Revolving Facility (with a positive amount) in Section A
of Part I of Schedule 1 (Lenders and Commitments);
or
(b) has become a party to
this Agreement in accordance with the provisions of Clause 39 (Assignments and Transfers),
which
in each case has not ceased to be a party to this Agreement in accordance with
the terms of this Agreement and which, unless the context otherwise requires,
includes a Swingline Facility Lender.
“Revolving Facility Margin”means,
in relation to Revolving Facility Advances, Dollar Swingline Facility Advances
and Euro Swingline Facility Advances, 2.50 per cent. per annum.
“Revolving Facility Outstandings”means, at any time, the aggregate outstanding amount of each
Revolving Facility Advance and of each Outstanding L/C Amount.
“Rollover Advance”means
a Rollover Advance as defined in Clause 9.2 (Rollover
Advances).
“S&P” means Standard & Poor’s Ratings Group.
“Sale In Lieu of Liquidation” means any transaction whereby a
Wholly-Owned Subsidiary of the Parent (other than the Borrower and Europcenter)
or a Wholly-Owned Subsidiary of the Borrower (with such Subsidiary being herein
called the “Subject Subsidiary”)
is sold in accordance with the following requirements:
(a) before the sale of the Subject Subsidiary, all
assets (other than cash and Cash Equivalents) and liabilities of the Subject Subsidiary
are sold or otherwise transferred to the immediate parent of the respective
Subject Subsidiary (which parent must also be the Parent or a Wholly-Owned
Subsidiary thereof) in return for which the Subject Subsidiary shall receive
Cash Equivalents (or an in-house bank balance representing an amount owed to it
by the respective purchaser) equal to the fair market value of the assets (net
of liabilities) transferred (as determined by the Parent in good faith);
(b) if there is an intercompany bank balance as
described in paragraph (a) above, same shall be converted into Cash Equivalents
by the repayment of same (which payment may, but shall not be required to be,
made with proceeds of Revolving Facility Advances drawn hereunder in accordance
with the terms and conditions hereof); and
(c) after the occurrence of the steps described in
paragraph (a) above and, if applicable, paragraph (b) above, the Subject
Subsidiary shall be sold (to a person other than the Parent or a Subsidiary or
Affiliate thereof) for cash in an amount not less than the amount of Cash
Equivalents held by the Subject Subsidiary less an arms’ length fee deemed
reasonable by the Parent in connection with the respective Sale in Lieu of
Liquidation.
49
“Scheduled Repayment” means each scheduled repayment (a) in
relation to the Revolving Facility Outstandings, as set out in and calculated
in accordance with Clause 9 (Repayment of
Revolving and Swingline Facility Outstandings) and (b) in relation
to the Term Facility Outstandings, as set out in and calculated in accordance
with Clause 10 (Repayment of Term Facility
Outstandings).
“Scheduled Repayment Dates” means, in relation to the Term
Facilities, the A Facility Repayment Dates, the C Facilities Repayment Dates
and the Incremental Term Facility Repayment Dates.
“SEC” means the Securities Exchange Commission or successors
thereof.
“Second Amendment Deed”
means the Second Amendment Deed dated 28 June 2004 between the Obligors’ Agent,
the Guarantors, the Agent, the Security Trustee, the Consenting B Facility
Lenders and the C Facility Lenders.
“Second Amendment Effective
Date” has the meaning ascribed to that term in the Second Amendment
Deed.
“Secured Obligations” means all present and future liabilities
(whether actual or contingent and whether owed jointly or severally or in any
capacity whatsoever) of the Obligors (or any one or more of them) to the
Finance Parties (or any one or more of them) under or in connection with any of
them under any or all of the Finance Documents, together with all costs,
charges and expenses incurred by any Finance Party in connection with the
protection, preservation or enforcement of its rights under the Finance
Documents provided that no such obligation or liability shall be included in
the definition of “Secured Obligations” to the extent that, if it were so
included, the Security (or any part thereof) created by any provision of the
Security Documents would be unlawful or prohibited by any applicable law.
“Securities Act” means the U.S. Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
“Securities Exchange Act” means the U.S. Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Security”means a
mortgage, charge, pledge, Lien or encumbrance or other security interest
securing any obligation of any person or any other agreement or arrangement
having a similar effect.
“Security Documents”means:
(a) each of the documents listed in Part III of
Schedule 3 (Security Documents)
and the Additional Security Documents;
(b) any other document (executed at any time)
conferring or evidencing any Lien, guarantee or other assurance against
financial loss for, or in respect of, any of the obligations of the Obligors
under this Agreement; and
(c) any other document executed at any time
pursuant to any covenant in any of the Security Documents referred to in
paragraph (a) or (b) above.
50
“Seller Debt” means Indebtedness issued as consideration in
connection with one or more Permitted Acquisitions so long as (a) no person,
other than the respective Subsidiary acquired pursuant to the Permitted
Acquisition, has any liability with respect to such Indebtedness and (b) the
terms of such Indebtedness do not otherwise cause a violation of this
Agreement.
“Senior Indebtedness” means, in relation to any member of the
Group at any time, the aggregate amount of Indebtedness incurred in connection
with the Finance Documents and the Permitted Receivables Transactions.
“Senior Subordinated Convertible Bond Agency Agreement” means
the agency agreement dated 18 December 2003 between the Parent as issuer and
Deutsche Bank AG as fiscal and paying and conversion agent.
“Senior Subordinated Convertible Bond Documents” means the
Senior Subordinated Convertible Bond Agency Agreement, the Senior Subordinated
Convertible Bonds Subscription Agreement, the Senior Subordinated Convertible
Bond Offering Circular, the Senior Subordinated Convertible Bonds and each
other agreement, document or instrument relating to any issuance of Senior
Subordinated Convertible Bonds.
“Senior Subordinated Convertible Bond Offering Circular” means
the Offering Memorandum dated 16 December 2003, prepared in connection with the
offering of the Senior Subordinated Convertible Bonds.
“Senior Subordinated Convertible Bonds” means any convertible
bonds issued in the form of bonds under, and as defined in, the Senior
Subordinated Convertible Bonds Subscription Agreement.
“Senior Subordinated Convertible Bonds Subscription Agreement”
means that certain Subscription Agreement dated 14 November 2003, relating to
the 2 per cent. Guaranteed Subordinated Convertible Bonds due 2010 described therein,
among the Parent, Deutsche Bank AG London and ABN AMRO Rothschild as joint lead
managers, as same may be amended, modified or supplemented from time to time in
accordance with the requirements of this Agreement.
“Senior Subordinated Notes Purchase Agreement” means that
certain Purchase Agreement, dated as of 26 October 1999, relating to the 12¼
per cent. Senior Subordinated Notes due 2009 described therein, among the
Parent, the Borrower, Deutsche Bank Securities Inc., Paribas Corporation and
ABN AMRO Incorporated, as same may be amended, modified or supplemented from
time to time in accordance with the requirements of this Agreement.
“Senior Subordinated Note Documents” means each Senior
Subordinated Note Indenture,Senior
Subordinated Notes Purchase Agreement, the Senior Subordinated Notes and each
other agreement, document or instrument relating to any issuance of Senior
Subordinated Notes.
“Senior Subordinated Note Indenture” means any Indenture
entered into with respect to Senior Subordinated Notes issued from time to time
by the Borrower, provided that any Indenture relating to any Senior
Subordinated Notes constituting Permitted Refinancing Indebtedness shall meet
the requirements contained in the definition of Permitted Refinancing Indebtedness.
51
“Senior Subordinated Notes” means the Borrower’s Senior
Subordinated Notes, issued in accordance with the requirements of the Senior
Subordinated Note Documents. The term
“Senior Subordinated Notes” shall also include any “exchange notes” issued in
respect of such outstanding Senior Subordinated Notes in accordance with the
requirements of the relevant Senior Subordinated Note Documents, so long as in
respect of outstanding Senior Subordinated Notes, such “exchange notes” are
substantially identical to the Senior Subordinated Notes in respect of which
same were issued and so long as the issuance of such “exchange notes” does not
result in any increase to the principal amount of Senior Subordinated Notes
outstanding.
“Shareholders’ Agreements” means all agreements (including,
without limitation, shareholders’ agreements, subscription agreements and
registration rights agreements) entered into by the Parent or any of its
Subsidiaries governing the terms and relative rights of its share capital and
any agreements entered into by shareholders relating to any such entity with
respect to its share capital.
“Shares”means the
ordinary share capital of the Parent.
“Sharing Event” means:
(a) the occurrence of any Event of
Default with respect to any of the Obligors pursuant to any of Clauses 28.6 (Insolvency), 28.7 (Winding-up), 28.8 (Execution or Distress) or 28.9 (Similar Events);
(b) the declaration of the termination
of any Revolving Facility Commitments, or the acceleration of the maturity of
any Advances, in each case pursuant to Clause 28.16 (Acceleration); or
(c) the failure of the Borrower (which
continues unremedied for at least 5 Business Days) to pay any principal of, or
interest on, Revolving Facility Advances or any Outstanding L/C Amount on the
relevant Final Maturity Date.
“Standard Securitisation Undertakings” means representations,
warranties, covenants and indemnities entered into by the Parent or any
Subsidiary thereof in connection with a Permitted Receivables Transaction which
are reasonably customary in an accounts receivable transaction.
“Start Date” has the meaning ascribed to that term in the
definition of “Applicable Margin”.
“Stichting A” means Stichting Administratiekantoor van
Preferente Aandelen Buhrmann N.V. and its successors.
“Stichting A Continuing Director” means a member of the
executive committee of Stichting A on the Initial Borrowing Date or who became
a member of such executive committee subsequent to the Initial Borrowing Date
and who was appointed by a majority of the Stichting A Continuing Directors
then on the executive committee of Stichting A.
“Stichting B” means Stichting van Preferente Aandelen Buhrmann
N.V. and its successors.
“Stichting B Continuing Director” means a member of the
executive committee of Stichting B on the Initial Borrowing Date or who became
a member of such executive
52
committee subsequent to the
Initial Borrowing Date and who was appointed by a majority of the
Stichting B Continuing Directors then on the executive committee of
Stichting B.
“Subsidiary” means, as to any person, (i) any corporation more
than 50 per cent. of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such person and/or
one or more Subsidiaries of such person and (ii) any partnership, limited
liability company, association, joint venture or other entity in which such
person and/or one or more Subsidiaries of such person has more than a 50 per
cent. Equity Interest at the time.
“Supermajority Lenders” of (i) any Facility (other than the B1
Facility, the B2 Facility, the C1 Facility or the C2 Facility) means those
Lenders which would constitute the Instructing Group under, and as defined in,
this Agreement if (x) all outstanding Facilities Obligations of the other
Facilities under this Agreement were repaid in full and all Commitments, if
any, with respect thereto were terminated and (y) the percentage “50%”
contained therein were changed to “662/3 %”, (ii) the B1
Facility or the B2 Facility means those Lenders which would constitute the
Instructing Group under, and as defined in, this Agreement if (x) all
outstanding Facilities Obligations of the other Facilities under this Agreement
(other than both of the B Facilities) were repaid in full and all Commitments,
if any, with respect thereto were terminated and (y) the percentage “50%”
contained therein were changed to “662/3 %” or
(iii) the C1 Facility or the C2 Facility means those Lenders which would
constitute the Instructing Group under, and as defined in, this Agreement if
(x) all outstanding Facilities Obligations of the other Facilities under this
Agreement (other than both of the C Facilities) were repaid in full and all Commitments,
if any, with respect thereto were terminated and (y) the percentage “50%”
contained therein were changed to “662/3 %”.
“Swingline Facility” means the swingline facility forming part
of the Revolving Facility and granted to the Borrower pursuant to Clause 2.1(b)
(The Facilities).
“Swingline Facility Advance” means a Dollar Swingline Facility
Advance or a Euro Swingline Facility Advance, as the context may require.
“Swingline Facility Commitment”means, in relation to a Swingline Facility Lender at any
time, and save as otherwise provided in this Agreement, the amount set opposite
its name in the relevant column of Section B of Part I of Schedule 1 (Lenders and Commitments) or as specified
in the Transfer Certificate pursuant to which such Lender becomes a party to
this Agreement.
“Swingline Facility Lender”means a person which:
(a) is named in Section B of Part I of Schedule
1 (Lenders and Commitments); or
(b) has become a party to
this Agreement in accordance with the provisions of Clause 39 (Assignments and Transfers),
which
in each case includes any affiliate designated by such Swingline Facility
Lender to act as such with respect to all or any part of the Swingline Facility
Advances and which has not ceased to be a party to this Agreement in accordance
with the terms of this Agreement and “Swingline
Facility Lenders” means all of them.
53
“Swingline Facility Outstandings” means the
Dollar Swingline Facility Outstandings and the Euro Swingline Facility
Outstandings.
“Syndication Date”means
31 March 2004 or such later date as may be agreed between the Arrangers and the
Parent or such earlier date specified by the Arrangers (and notified to the
Agent and the Parent) as the day on which primary syndication of the Facilities
is completed.
“TARGET Day”means
any 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 Credit”means
a credit against, relief or remission for, or repayment of any tax.
“Tax Deduction”means
a deduction or withholding for or on account of tax from a payment made or to
be made under a Finance Document (but, for clarity, shall not include any tax
imposed on or measured by the net income or net profits of a Lender pursuant to
the laws and the jurisdiction (or any political subdivision therein) in which
the principal office of such Lender or the applicable lending office of such
Lender for the Finance Documents and the Transaction (or relevant part thereof)
is located, other than such tax imposed on gross-up payments covered by Clause
18 (Taxes)).
“Taxes Act”means
the Income and Corporation Taxes Act 1988.
“Tax Liability”has
the meaning set out in paragraph (e) of Clause 18.2 (Tax
Indemnity).
“Tax Payment”means
the increase in any payment made by an Obligor to a Finance Party under
paragraph (c) of Clause 18.1 (Tax Gross-up) or
any amount payable under paragraph (d) of Clause 18.1 (Tax Gross-up) or under Clause 18.2 (Tax Indemnity).
“Tax Sharing Agreements” means all tax sharing, tax allocation
and other similar agreements entered into by the Parent or any of its
Subsidiaries.
“Term”means:
(a) in relation to a Revolving Facility Advance, a
Dollar Swingline Facility Advance, a Euro Swingline Facility Advance, the
period for which such Advance is borrowed as specified in the relevant
Utilisation Request; and
(b) in relation to any Documentary Credit, the
period from the date of its issue until its Expiry Date.
“Term Facilities”means
the A Facility, the B Facilities, the C Facilities and, subject to Clause 7 (Uncommitted Incremental Facilities), the
Incremental Term Facility and “Term Facility”
means any of them as the context may require from time to time.
“Term Facility Advance”means
any A Facility Advance, B Facility Advance, C Facility Advance and, subject to
Clause 7 (Uncommitted Incremental Facilities),
Incremental Term Facility Advance and “Term
Facility Advances” shall be construed accordingly.
“Term Facility Commitments” means, at any time, the aggregate
of the A Facility Commitments, the B Facility Commitments, the Additional C
Facility Commitments and, subject to Clause 7 (Uncommitted
Incremental Facilities), the Incremental Term Facility Commitments.
54
“Term Facility Outstandings”means,
at any time, the aggregate of the A Facility Outstandings, the B Facility
Outstandings, the C Facility Outstandings and, subject to Clause 7 (Uncommitted Incremental Facilities), the
Incremental Term Facility Outstandings at such time.
“Termination Date”means:
(a) in relation to the Revolving Facility, the
Swingline Facility and the Incremental Revolving Facility, the date which is 30
days prior to the Final Maturity Date in respect of the Revolving Facility;
(b) in relation to each Term Facility (other than
the Additional C1 Facility, the Additional C2 Facility and the Incremental Term
Facility), the earlier of the day which is:
(i) 31 January 2004; and
(ii) the first Business Day on which the Available
Commitment of each of the Lenders in respect of the relevant Term Facility is
zero;
(c) in relation to the Additional C1
Facility and the Additional C2 Facility, the earlier of the day which is:
(i) 31 July 2004; and
(ii) the Second Amendment Effective Date;
and
(d) in relation to any Tranche of the Incremental
Term Facility, the last date by which Incremental Term Facility Advances under
such Tranche may be incurred under this Agreement, which date shall be set out
in the relevant Incremental Term Facility Commitment Agreement but no later
than the earlier of (i) 30 September 2010 and (ii) the Final Maturity Date of
the C Facilities.
“Termination Event” means, with respect to a Plan which is
subject to Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the
Parent, any Subsidiary of the Parent or any ERISA Affiliate from such Plan
during a plan year in which the Parent, any Subsidiary of the Parent or any
ERISA Affiliate was a “substantial employer” as defined in Section 4001(a)(2)
of ERISA or was deemed such under Section 4062(e) of ERISA, (c) the termination
of such Plan, the filing of a notice of intent to terminate such Plan or the
treatment of an amendment of such Plan as a termination under Section 4041 of
ERISA (other than a standard termination under Section 4041(b) of ERISA), (d)
the institution by the PBGC of proceedings to terminate such Plan or (e) any
event or condition which might constitute grounds under Section 4042 of ERISA
for the termination of, or appointment of a trustee to administer, such Plan.
“Test Period” means, for any determination, the four
consecutive fiscal quarters of the Parent then last ended (taken as one
accounting period).
“Third Party Existing Indebtedness” means the list of
Indebtedness existing on the Effective Date set out in Section A (Third Party Existing Indebtedness) of Part
II of Schedule 10 (Existing Indebtedness).
55
“Tranche” means the Revolving Facility, the A Facility, the B1
Facility, the B2 Facility, the C1 Facility and the C2 Facility utilised in
making Advances. In addition, and
notwithstanding the foregoing, any Incremental Term Facility Advances extended
after the Syndication Date shall, to the extent provided in Clause 7.1(c) (Constitution of each Tranche of Incremental Term
Facility), be made pursuant to one or more additional Tranches which
shall be designated pursuant to the respective Incremental Term Facility
Commitment Agreement in accordance with the relevant requirements specified in
Clause 7.1(c) (Constitution of each Tranche
of Incremental Term Facility).
“Transaction” means the entering into of the Finance Documents
and the incurrence of the Outstandings and the payment of all fees and expenses
in connection with the foregoing.
“Transaction Date” has the meaning ascribed to that term in the
definition of “Pro Forma Basis”.
“Transfer Certificate”means
a duly completed deed of transfer and accession in the form set out in Schedule
2 (Form of Transfer Certificate) and signed
by a Lender and a Transferee whereby such Lender seeks to procure the transfer
to such Transferee of all or a part of such Lender’s rights, benefits and
obligations under this Agreement as contemplated in Clause 39 (Assignments and Transfers) and under the Intercreditor Deed.
“Transfer Date”means,
in relation to any Transfer Certificate, the date for the making of the
transfer as specified in such Transfer Certificate.
“Transferee”means
a bank or other institution to which a Lender seeks to transfer all or part of
its rights, benefits and obligations under this Agreement pursuant to and in
accordance with Clause 39 (Assignments and Transfers).
“Trust Property” means:
(a) any rights, interests or other property and the
proceeds thereof from time to time assigned, transferred, mortgaged, charged,
or pledged to and/or otherwise vested in the Security Trustee under, pursuant
to or in connection with this Agreement or any Security Document to which the
Security Trustee is a party;
(b) any security interest from time to time
constituted by or pursuant to or evidenced by any Security Document to which
the Security Trustee is a party;
(c) any representation, obligation, covenant,
warranty or other contractual provision in favour of the Security Trustee
(other than any made or granted solely for its own benefit) made or granted in
or pursuant to any of the Security Documents to which the Security Trustee is a
party;
(d) any sum which is received or recovered by the
Security Trustee under, pursuant to or in connection with any of the Finance
Documents or the exercise of any of the Security Trustee’s powers under or in
connection therewith and which is held by the Security Trustee upon trust on
the terms of this Agreement or any Security Document to which the Security
Trustee is a party;
(e) all income and other sums at any time received
or receivable by the Security Trustee in respect of Trust Property (or any part
thereof); or
56
(f) any sum which is received or recovered by the
Security Trustee under, pursuant to or in connection with Clause 32.7 (Parallel Debt).
“UCC” means the U.S. Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
“Unavailable Revolving Facility Amount” means such amount from
time to time not applied in accordance with (A), (B) and/or (C) as referred to
in paragraph (b) (Asset Sale) of
Clause 13.1 (Repayment from Net Proceeds)
pending application during any 360 day period referred to therein.
“Unfunded Current Liability” of any Plan, means the amount, if
any, by which the actuarial present value of the accumulated plan benefits
under the Plan, as of the close of its most recent plan year, determined in
accordance with Statement of Financial Accounting Standards No. 87 and based
upon the actuarial assumptions used by the Plan’s actuary in the most recent
annual valuation of the Plan, exceeds the fair market value of the assets
thereof, determined in accordance with Section 412 of the Code, allocable to
such liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions).
“Unpaid Sum” means any sum due and payable by an Obligor under
any Finance Document but unpaid.
“U.S. Guarantor” means each of the parties as set out in Part
II of Schedule 1 (Original Guarantors)
named as U.S. Guarantors and any Acceding Guarantor incorporated in the United
States of America.
“U.S. Lender” means, in relation to a payment of interest on a
participation in an Advance to the Borrower, a Lender which is created or
organised under the laws of the United States of America or of any state
thereof and, if the Lender is a trust, is a “United States Person” within the
meaning of Section 7701(a)(30)(E) of the Code.
“U.S. Person” shall mean any person organised under the laws of
the United States or any state or territory thereof.
“U.S. Subsidiary” means (a) in relation to the Parent, each
Subsidiary of the Parent that is incorporated under the laws of the United
States or any State or territory thereof and (b) in relation to the Borrower,
each Subsidiary of the Borrower that is incorporated under the laws of the
United States or any State or territory thereof.
“Utilisation”means
the utilisation of a Facility under this Agreement whether by way of an Advance
or the issue of a Documentary Credit.
“Utilisation Date”means,
in relation to an Advance, the date on which such Advance is (or is requested)
to be made and, in relation to a Documentary Credit, the date on which such
Documentary Credit is to be issued under this Agreement.
“Utilisation Request”means
a duly completed notice (a) in the case of an Advance (other than a Swingline
Facility Advance) and/or a Documentary Credit in the form set out in Part I of
Schedule 4 (Form of Utilisation Request
(Term Facilities and Revolving Facility)), or (b) in the case of a
Swingline Facility Advance, in the form set out in Part II of Schedule 4 (Form of Utilisation Request (Swingline Facility)).
57
“Waivable Mandatory Repayment” has the
meaning ascribed to that term in paragraph (c) (Waivable Mandatory Repayment) of Clause 13.3 (Application of Mandatory Prepayments).
“Waivable Voluntary Repayment” has the
meaning ascribed to that term in paragraph (b) (Waivable Voluntary Repayment) of Clause 12.3 (Application of Voluntary Prepayments).
“Weighted Average Life to Maturity” means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining instalment or other required payment of principal including payment
at final maturity, in respect thereof, by (ii) the number of years (calculated
to the nearest one-twelfth) which will elapse between such date and the making
of such payment.
“Wholly-Owned Non-U.S. Subsidiary” means (a) in relation to the
Parent, each Non-U.S. Subsidiary of the Parent that is also a Wholly-Owned
Subsidiary of the Parent and (b) in relation to the Borrower, each Non-U.S.
Subsidiary of the Borrower that is also a Wholly-Owned Subsidiary of the
Borrower.
“Wholly-Owned Subsidiary” means, as to any person, (a) any
corporation 100 per cent. of whose share capital (other than directors’
qualifying shares and other nominal amounts of shares required by applicable
law to be held by persons (other than directors)) is at the time owned by such
person and/or one or more Wholly-Owned Subsidiaries of such person and (b) any
partnership, limited liability company, association, joint venture or other
entity in which such person and/or one or more Wholly-Owned Subsidiaries of
such person has a 100 per cent. Equity Interest at such time.
“Wholly-Owned U.S. Subsidiary” means (a) in relation to the
Parent, each U.S. Subsidiary of the Parent that is also a Wholly-Owned
Subsidiary of the Parent and (b) in relation to the Borrower, each U.S.
Subsidiary of the Borrower that is also a Wholly-Owned Subsidiary of the
Borrower.
1.2 Accounting Expressions
All accounting expressions
which are not otherwise defined in this Agreement shall be construed in
accordance with Dutch GAAP.
1.3 Construction
Unless a contrary indication
appears, any reference in this Agreement to:
the “Agent”, an “Arranger”,
the “Security
Trustee”, a “Hedge Counterparty”, the “L/C Bank”,
an “A Facility Lender”, a “B1 Facility Lender”, a “B2 Facility Lender”, a “C1 Facility Lender”, a “C2 Facility Lender”, a “Revolving Facility Lender”, a “Dollar Swingline Facility Lender”, a “Euro Swingline Facility Lender”, an “Incremental Revolving
Facility Lender” or an “Incremental Term Facility Lender” shall be construed so as to
include their respective and any subsequent successors, Transferees and
permitted assigns in accordance with their respective interests;
“agreed form”means,
in relation to any document, in the form agreed and initialled for
identification by the Arrangers and the Parent prior to the Initial Borrowing
Date;
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“continuing”in
relation to an Event of Default or a Default shall be construed as meaning that
(a) the circumstances constituting such Event of Default or Default continue
and (b) neither the Agent (being duly authorised to do so) nor the Lenders have
waived such of its or their rights under this Agreement as arise as a result of
that event;
“determines”or “determined” means a determination made in
the absolute discretion of the person making the determination;
the “equivalent”on any given date in one currency (the “first currency”) of an amount denominated
in another currency (the “second currency”)
is, unless otherwise agreed, a reference to the amount of the first currency
which could be purchased with the second currency at the Agent’s Spot Rate of
Exchange for the purchase of the first currency with the second currency;
“indebtedness” includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money, whether present
or future, actual or contingent (including interest and other charges relating
to it);
“month”is a
reference to a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next succeeding calendar month save that,
where any such period would otherwise end on a day which is not a Business Day,
it shall end on the next succeeding Business Day, unless that day falls in the
calendar month succeeding that in which it would otherwise have ended, in which
case it shall end on the immediately preceding Business Day provided that, if a
period starts on the last Business Day in a calendar month or if there is no
numerically corresponding day in the month in which that period ends, that
period shall end on the last Business Day in that later month (and references
to “months” shall be construed
accordingly);
a “person” shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any association
or partnership (whether or not having separate legal personality) of two or
more of the foregoing;
“regulation” includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of any
governmental, intergovernmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation.
“tax”shall be
construed so as to include all present and future taxes, charges, imposts,
duties, levies, deductions or withholdings of any kind whatsoever, or any
amount payable to any governmental authority on account of or as security for
any of the foregoing, by whomsoever on whomsoever and wherever imposed, levied,
collected, withheld or assessed together with any penalties, additions, fines,
surcharges or interest relating to it; and “taxes”and “taxation”shall be construed accordingly;
“VAT”shall be
construed as value added tax as provided for in the Value Added Tax Act 1994
and legislation (or purported legislation and whether delegated or otherwise)
supplemental to that Act or in any primary or secondary legislation promulgated
by the European Community or European Union or any official body or agency of
the European Community or European Union, and any tax similar or equivalent to
value added tax imposed by any country other than the United Kingdom and any
similar or turnover tax replacing or introduced in addition to any of the same;
and
59
the “winding-up”, “dissolution” or “administration”
of a company or corporation shall be construed so as to include any equivalent
or analogous proceedings under the Law of the jurisdiction in which such
company or corporation is incorporated or any jurisdiction in which such
company or corporation carries on business, including the seeking of
liquidation, winding-up, reorganisation, dissolution, administration,
arrangement, adjustment, protection from creditors or relief of debtors.
1.4 Currency
“€” and “euro”
denote the lawful currency of each Participating Member State, “£” and “sterling”
denote the lawful currency of the United Kingdom and “$” and “dollar”
denote the lawful currency of the United States of America.
1.5 Statutes
Any reference in this
Agreement to a statute or a statutory provision (including any reference to the
Board of Governors of the Federal Reserve System of the United States) shall,
save where a contrary intention is specified, be construed as a reference to
such statute or statutory provision as the same shall have been, or may be,
amended or re-enacted.
1.6 Time
Any reference in this
Agreement to a time shall, unless otherwise specified, be construed as a
reference to London time.
1.7 References to Agreements
Unless otherwise stated, any
reference in this Agreement to any agreement or document (including any
reference to this Agreement) shall be construed as a reference to:
(a) such
agreement or document as amended, varied, novated, supplemented, extended,
renewed, refinanced or replaced from time to time;
(b) any
other agreement or document whereby such agreement or document is so amended,
varied, supplemented or novated; and
(c) any
other agreement or document entered into pursuant to or in accordance with any
such agreement or document.
1.8 Documentary Credits
Any reference in this
Agreement to:
(a) an
amount borrowed includes any amount utilised by way of Documentary Credit;
(b) a
Lender funding its participation in a Utilisation includes an Indemnifying
Lender participating in a Documentary Credit;
(c) amounts
outstanding under this Agreement include amounts outstanding under, or in
relation to, any Documentary Credit;
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(d) an
outstanding amount of a Documentary Credit at any time is the maximum amount
that is or may be payable by the Borrower in respect of that Documentary Credit
at that time;
(e) the
Borrower “repaying” a Documentary Credit means:
(i) the
Borrower providing cash cover for that Documentary Credit;
(ii) the
maximum amount payable under the Documentary Credit being reduced in accordance
with its terms; or
(iii) the L/C
Bank being satisfied that it has no further liability under that Documentary
Credit,
and that the amount
by which a Documentary Credit is repaid under sub-paragraphs (e)(i) and (e)(ii)
above is the amount of the relevant cash cover or reduction; and
(f) the
Borrower providing “cash cover”for a Documentary Credit means the Borrower paying an amount (x) at
any time prior to the occurrence of a Sharing Event in the currency of the
Documentary Credit and (y) at any time on or after the occurrence of a Sharing
Event, in euros, to an interest-bearing account in the name of the Borrower and
the following conditions are met:
(i) the
account is with the Agent (if the cash cover is to be provided for all the
Indemnifying Lenders) or with an Indemnifying Lender or the L/C Bank (if the
cash cover is to be provided for that Indemnifying Lender or the L/C Bank, as
the case may be);
(ii) withdrawals
from the account may only be made to pay a Finance Party amounts due and
payable to it under this Agreement in respect of that Documentary Credit until
no amount is or may be outstanding under that Documentary Credit; and
(iii) the
Borrower has executed a security document over that account, in form and
substance satisfactory to the Agent or the Finance Party with which that
account is held, creating a first ranking security interest over that account,
or on such other
terms as may be satisfactory to the Agent, the relevant Indemnifying Lender or
the L/C Bank.
2.1 The Facilities
(a) The
Revolving Facility Lenders grant to the Borrower, upon the terms and subject to
the conditions of this Agreement, a revolving loan facility in a maximum
aggregate amount of €255,000,000 (the “Revolving
Facility”) or its equivalent from time to time in
Optional Currencies.
(b) The
Swingline Facility Lenders grant to the Borrower, upon the terms and subject to
the conditions of this Agreement, a swingline facility (being part of the
Revolving
61
Facility)
in a maximum aggregate Euro Amount of €85,000,000 (the “Swingline Facility”).
(c) The A
Facility Lenders grant to the Borrower upon the terms and subject to the
conditions of this Agreement, a term loan facility in a maximum aggregate
amount of €120,000,000 (the “A Facility”).
(d) The B1
Facility Lenders grant to the Borrower upon the terms and subject to the
conditions of this Agreement, a term loan facility in a maximum aggregate
amount of €305,000,000 (the “B1 Facility”) or its equivalent from time to time in Optional Currencies (it
being agreed that the equivalent in dollars on the Initial Borrowing Date is an
amount equal to $380,000,000).
(e) The B2
Facility Lenders grant to the Borrower upon the terms and subject to the
conditions of this Agreement, a term loan facility in a maximum aggregate
amount of €50,000,000 (the “B2 Facility”).
(f) (i) Each
Consenting B1 Facility Lender severally agrees to convert (the “B1 Facility Conversion”),
on the Second Amendment Effective Date, its Proportion of all B1 Facility
Advances outstanding on the Second Amendment Effective Date (immediately prior
to giving effect thereto) into an equivalent amount of new advances hereunder
owing by the Borrower (each such advance, a “Converted
C1 Facility Advance”, and the aggregate of all such
Consenting B1 Facility Lenders’ Proportions converted, the “Converted C1 Facility”). The Lenders with Additional C1 Facility
Commitments grant to the Borrower on the Second Amendment Effective Date, upon
the terms and subject to the conditions of this Agreement, a term loan facility
in a maximum aggregate amount equal to the B1 Facility Outstandings of the
Non-Consenting B1 Facility Lenders on the Second Amendment Effective Date
(immediately prior to giving effect thereto) (the “Additional
C1 Facility” and, together with the Converted C1
Facility, the “C1 Facility”).
(ii) (A) Each Converted C1
Facility Advance shall be subject to the same Interest Period (and LIBOR) as
the B1 Facility Advance from which it was converted, (B) the Additional C1
Facility shall be initially drawn down by way of a single Additional C1
Facility Advance which shall be added to (and thereafter be deemed to
constitute a part of) each Converted C1 Facility Advance on a pro rata basis (based on the relative
sizes of the various such Converted C1 Facility Advances), and (C) in
connection with the B1 Facility Conversion and the incurrence of the Additional
C1 Facility Advance pursuant to paragraph (B) above, the Agent shall (and is
hereby authorised to) take all appropriate actions to ensure that all Lenders
with outstanding C1 Facility Advances (after giving effect to the B1 Facility
Conversion and the incurrence of the Additional C1 Facility Advance pursuant to
paragraph (B) above) participate in each C1 Facility Advance on a pro rata basis (based on the aggregate
amount of their Converted C1 Facility Advances and Additional C1 Facility
Commitments as in effect on the Second Amendment Effective Date).
(iii) In connection with the
B1 Facility Conversion and the incurrence of the Additional C1 Facility Advance
pursuant to paragraph (ii)(B) above, the Lenders and the Borrower hereby agree
that, notwithstanding anything to the
62
contrary contained in this Agreement, (A) if requested
by any Lenders participating in the Additional C1 Facility Advance which “match
funds” the Borrower shall pay to such Lender such amounts necessary, as
reasonably determined by such Lender, to compensate such Lenders for
participating in such Additional C1 Facility Advance in the middle of an
existing Interest Period (rather than at the beginning of the respective
Interest Period, based upon the rates then applicable thereto), and (B) the
Borrower shall be obligated to pay to the respective Non-Consenting B1 Facility
Lenders breakage or other costs as contemplated by Clause 33.2 (Break Costs) (if any) incurred in
connection with the B1 Facility Conversion and/or the actions taken pursuant to
paragraph (ii) above of this Clause 2.1(f).
(g) (i) Each
Consenting B2 Facility Lender severally agrees to convert (the “B2 Facility Conversion”),
on the Second Amendment Effective Date, its Proportion of all B2 Facility
Advances outstanding on the Second Amendment Effective Date (immediately prior
to giving effect thereto) into an equivalent amount of new advances hereunder
owing by the Borrower (each such advance, a “Converted
C2 Facility Advance”, and the aggregate of all such
Consenting B2 Facility Lenders’ Proportions converted, the “Converted C2 Facility”). The Lenders with Additional C2 Facility
Commitments grant to the Borrower on the Second Amendment Effective Date, upon
the terms and subject to the conditions of this Agreement, a term loan facility
in a maximum aggregate amount equal to the B2 Facility Outstandings of the
Non-Consenting B2 Facility Lenders on the Second Amendment Effective Date
(immediately prior to giving effect thereto) (the “Additional
C2 Facility” and, together with the Converted C2
Facility, the “C2 Facility”).
(ii) (A) Each Converted C2
Facility Advance shall be subject to the same Interest Period (and EURIBOR) as
the B2 Facility Advance from which it was converted, (B) the Additional C2
Facility shall be initially drawn down by way of a single Additional C2
Facility Advance which shall be added to (and thereafter be deemed to
constitute a part of) each such Converted C2 Facility Advance on a pro rata basis (based on the relative
sizes of the various such Converted C2 Facility Advances), and (C) in
connection with the B2 Facility Conversion and the incurrence of the Additional
C2 Facility Advance pursuant to paragraph (B) above, the Agent shall (and is
hereby authorised to) take all appropriate actions to ensure that all Lenders
with outstanding C2 Facility Advances (after giving effect to the B2 Facility
Conversion and the incurrence of the Additional C2 Facility Advance pursuant to
paragraph (B)) participate in each C2 Facility Advance on a pro rata basis (based on the aggregate
amount of their Converted C2 Facility Advances and Additional C2 Facility
Commitments as in effect on the Second Amendment Effective Date).
(iii) In connection with the
B2 Facility Conversion and the incurrence of the Additional C2 Facility Advance
pursuant to paragraph (ii)(B) above, the Lenders and the Borrower hereby agree
that, notwithstanding anything to the contrary contained in this Agreement, (A)
if requested by any Lenders participating in the Additional C2 Facility Advance
which “match funds” the Borrower shall pay to such Lenders such amounts
necessary, as reasonably determined by such Lenders, to compensate such Lenders
for participating in
63
such Additional C2 Facility Advance in the middle of
an existing Interest Period (rather than at the beginning of the respective
Interest Period, based upon the rates then applicable thereto), and (B) the
Borrower shall be obligated to pay to the respective Non-Consenting B2 Facility
Lenders breakage or other costs as contemplated by Clause 33.2 (Break Costs) (if any) incurred in
connection with the B2 Facility Conversion and/or the actions taken pursuant to
paragraph (ii) above of this Clause 2.1(g).
(h) The
Incremental Revolving Facility Lenders grant to the Borrower upon the terms and
subject to the conditions of this Agreement (including, without limitation,
Clause 7 (Uncommitted Incremental Facilities),
and relevant Incremental Revolving Facility Commitment Agreements, a revolving
loan facility in a maximum aggregate amount of €65,000,000 (the “Incremental Revolving Facility”) or its equivalent from time to time in Optional Currencies.
(i) The
Incremental Term Facility Lenders grant to the Borrower upon the terms and
subject to the conditions of this Agreement (including, without limitation,
Clause 7 (Uncommitted Incremental Facilities),
and relevant Incremental Term Facility Commitment Agreements, a term loan
facility in a maximum aggregate amount equal to the euro equivalent of
$372,000,000 (the “Incremental
Term Facility”) or its equivalent from time to time
in Optional Currencies.
2.2 Purpose
(a) The A
Facility and the B Facilities are intended to finance, in whole, the Existing
Credit Agreement including any fees and expenses in relation thereto.
(b) The
Revolving Facility and the Incremental Revolving Facility are intended to
finance the general working capital requirements and the general corporate
purposes of the Group and may be utilised by way of Revolving Facility Advances
or Documentary Credits.
(c) The
Additional C1 Facility shall be used on the Second Amendment Effective Date to
repay each Non-Consenting B1 Facility Lender’s Proportion of all outstanding B1
Facility Advances, together with accrued but unpaid interest thereon.
(d) The
Additional C2 Facility shall be used on the Second Amendment Effective Date to
repay each Non-Consenting B2 Facility Lender’s Proportion of all outstanding B2
Facility Advances, together with accrued but unpaid interest thereon.
(e) The
Swingline Facility is intended to finance the general working capital
requirements and general corporate purposes of the Group.
(f) The
Incremental Term Facility is intended to finance Permitted Acquisitions and the
redemption or repurchase of the Senior Subordinated Notes (including, without
limitation, any related redemption or repurchase fees).
(g) The
Borrower shall apply all amounts borrowed under this Agreement in or towards
satisfaction of the purposes referred to in paragraphs (a), (b), (c), (d), (e)
and (f) and none of the Finance Parties shall be obliged to concern themselves
with such application.
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2.3 Several Obligations
The obligations of each Finance
Party under this Agreement are several and the failure by a Finance Party to
perform any of its obligations under this Agreement shall not affect the
obligations of any of the other parties to this Agreement towards any other
party to this Agreement nor shall any other party be liable for the failure by
such Finance Party to perform its obligations under this Agreement.
2.4 Several Rights
The rights of each Finance
Party are several and any debt arising under this Agreement at any time from an
Obligor to any Finance Party to this Agreement shall be a separate and
independent debt. Each Finance Party
may, except as otherwise stated in this Agreement, separately enforce its
rights under this Agreement.
3.1 Conditions Precedent
The obligations of the Finance
Parties under this Agreement shall be conditional upon the Agent having
confirmed to the Parent that it has received the documents listed in Part I of
Schedule 3 (Conditions Precedent to First Utilisation)
and that each is satisfactory, in form and substance, to the Agent acting
reasonably. The Agent shall notify the
Parent and the Lenders promptly upon being so satisfied.
3.2 Conditions Subsequent
The Parent shall procure (and
each relevant Obligor shall ensure) that:
(a) as
soon as practicable after the Initial Borrowing Date under this Agreement and
in any event by no later than 31 January 2004 there shall have been delivered to
the Agent each of the documents listed in Section A of Part IV of Schedule 3 (Conditions Subsequent Documents); and
(b) within
3 months after the Initial Borrowing Date there shall have been delivered to
the Agent each of the documents listed in Section B of Part IV of Schedule 3 (Conditions Subsequent Documents),
each
in form and substance satisfactory to the Agent. The Agent shall notify the Parent and the
Lenders promptly upon being so satisfied.
4.1 Conditions to Utilisation
Save as otherwise provided in
this Agreement, an Advance (other than a Swingline Facility Advance or an Incremental
Term Facility Advance) will be made by the Lenders to the Borrower or a
Documentary Credit will be issued by an L/C Bank at the Borrower’s request if:
65
(a) the
Agent has received from the Borrower a duly completed Utilisation Request
stating whether the proposed Utilisation is to be by way of Advance or
Documentary Credit not later than 9.30 a.m. on a day which is:
(i) no
more than 10 nor less than 2 Business Days prior to the proposed Utilisation
Date for such Advance; or
(ii) no
more than 10 nor less than 4 Business Days prior to the proposed Utilisation
Date for such Documentary Credit,
receipt of which
shall oblige the Borrower to borrow the amount requested on the date stated
upon the terms and subject to the conditions contained in this Agreement
provided that no Utilisation Request under the Revolving Facility shall be made
prior to the first Utilisation Request under the Term Facilities;
(b) the
proposed Utilisation Date is a Business Day for the proposed currency of the
Advance or Documentary Credit, as the case may be, which is or precedes the
relevant Termination Date;
(c) in the
case of a Utilisation by way of an A Facility Advance, the proposed Euro Amount
of such Advance is equal to €120,000,000;
(d) in the
case of a Utilisation by way of a B1 Facility Advance, the proposed Euro Amount
of such Advance is equal to €305,000,000 (it being agreed that the equivalent
in dollars is an amount equal to $380,000,000);
(e) in the
case of a Utilisation by way of a B2 Facility Advance, the proposed Euro Amount
of such Advance is equal to €50,000,000;
(f) in
the case of a Utilisation by way of a Revolving Facility Advance, the proposed
Euro Amount of such Advance is (i) equal to the amount of the corresponding
Available Revolving Facility (minus the Unavailable Revolving Facility Amount
(if any)) or (ii) less than such amount but equal to, or an integral multiple
of, €1,000,000;
(g) in the
case of a Utilisation by way of Documentary Credit, the proposed Euro Amount of
such Documentary Credit is equal to or less than the amount of the Available
Revolving Facility (minus the Unavailable Revolving Facility Amount (if any));
(h) in the
case of a Utilisation by way of a Revolving Facility Advance, (i) at any time
prior to the Syndication Date, immediately after the making of such Advance
there will be no more than 3 Revolving Facility Advances outstanding and (ii)
at any time after the Syndication Date, immediately after the making of such
Advance there will be no more than 10 Revolving Facility Advances (for the
avoidance of doubt not including any Swingline Facility Advances) outstanding;
(i) in
the case of a Utilisation by way of a Documentary Credit, the proposed Term of
the Documentary Credit is a period not exceeding 364 days, ending on or before
the Termination Date in respect of the Revolving Facility;
(j) in
the case of a Utilisation by way of a Revolving Facility Advance, the proposed
Term of such Revolving Facility Advance is a period of one week, two weeks, or
1, 2, 3 or 6 months or such other period as the Agent may agree, and ends on or
before the
66
Final
Maturity Date of the Revolving Facility provided that, save as the Agent may
otherwise agree, prior to the Syndication Date the Term of each Revolving
Facility Advance shall be 1 week or 1 month (or, such duration as is necessary
to ensure that such Term ends on the Syndication Date);
(k) in the
case of a Utilisation by way of an Advance other than a Rollover Advance, the
interest rate applicable to such Advance’s first Interest Period or Term (as
the case may be) will not have to be determined under Clause 16 (Market Disruption and Alternative Interest Rates);
(l) in the case of a Utilisation
by way of a Documentary Credit, the L/C Bank and the Agent have each approved
the terms of such Documentary Credit (which, unless the Agent and the L/C Bank
otherwise agree in writing, shall be in such form customarily used by the L/C
Bank or in such other form as has been approved by the L/C Bank and shall
specify the purpose of its issue, the name and address of the Beneficiary of
it, the Beneficiary’s receiving bank account and its Expiry Date);
(m) in the
case of any Utilisation:
(i) in
the case of a Rollover Advance or a Documentary Credit which is being renewed
pursuant to Clause 5.2 (Renewal of
Documentary Credits), no Event of Default is continuing or would
result from the proposed Rollover Advance or the renewal of that Documentary
Credit and, in the case of any other Utilisation, no Default is continuing or
would result from the proposed Utilisation; and
(ii) save
in the case of a Rollover Advance, the Repeating Representations made by each
Obligor are true and correct in all material respects on the relevant
Utilisation Date by reference to the circumstances then existing; and
(n) in
relation to the first Utilisation requested under this Agreement, the Agent is
reasonably satisfied that the Parent will comply with its obligations under
Clause 3.2 (Conditions Subsequent).
4.2 Conditions to Utilisation of Incremental Term Facility
(a) Conditions
to Incremental Term Facility Commitments: Subject
to and upon the terms and conditions set forth in Clause 7 (Uncommitted Incremental Facilities) and
the relevant Incremental Term Facility Commitment Agreement, each Lender with
an Incremental Term Facility Commitment for a given Tranche of Incremental Term
Facility Advances severally agrees, at any time and from time to time on and
after the date that such Incremental Term Facility Commitment is obtained
pursuant to Clause 7 (Uncommitted
Incremental Facilities) and prior to the relevant Termination Date
for such Tranche of Incremental Term Facility Advances, to make a term loan or
term loans (each an “Incremental
Term Facility Advance” and, collectively, the “Incremental Term Facility Advances”) to the Borrower for such Tranche.
Such Incremental Term Facility Advances:
(i) shall
be incurred on an Incremental Term Facility Utilisation Date;
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(ii) shall
be denominated in the Applicable Currency for such Tranche of Incremental Term
Facility Advances;
(iii) shall,
if an Alternate Currency Incremental Term Facility Advance, at the option of
the Borrower, be incurred and maintained in one or more borrowings of Alternate
Currency Incremental Term Facility Advances under such Tranche; and
(iv) shall
not exceed for any such Incremental Term Facility Lender at the time of any
incurrence thereof, that aggregate principal amount which equals the
Incremental Term Facility Commitment of such Incremental Term Facility Lender
for such Tranche at such time (before giving effect to any reduction thereof at
such time pursuant to paragraph (c) of this Clause 4.2).
(b) Utilisation
Request: Save as otherwise provided in this
Agreement and/or the relevant Incremental Term Facility Commitment Agreement,
an Incremental Term Facility Advance will be made by the Lenders to the
Borrower at the Borrower’s request if the Agent has received at any time after
the Syndication Date from the Borrower a duly completed Utilisation Request in
relation to an Incremental Term Facility Advance not later than 10.00 a.m. on a
day which is no more than 10 nor less than 3 Business Days prior to the
proposed Utilisation Date for such Advance stating:
(i) the
aggregate principal amount of such Advance (stated in the Applicable Currency,
as the case may be);
(ii) the
Incremental Term Facility Utilisation Date;
(iii) in the
case of an Alternate Currency Incremental Term Facility Advance, the Optional
Currency; and
(iv) whether
such Advance constitutes part of the C Facilities or Incremental Term Facility,
receipt of which
shall oblige the Borrower to borrow the amount requested on the date stated
upon the terms and subject to the conditions contained in this Agreement and
the relevant Incremental Term Facility Commitment Agreement.
(c) Reduction
of Incremental Term Facility Commitment: The total
Incremental Term Facility Commitments under a given Tranche shall (i) be
permanently reduced on each Incremental Term Facility Utilisation Date in
respect of such Tranche in an amount equal to the aggregate principal amount of
Incremental Term Facility Advances of such Tranche incurred on each such date,
(ii) terminate in its entirety to the extent not theretofore terminated on the
Termination Date for such Tranche of Incremental Term Facility Advances (after
giving effect to any Incremental Term Facility Advances of such Tranche to be
made on such date) and (iii) prior to the termination of the total Incremental
Term Facility Commitment in respect of such Tranche, be permanently reduced
from time to time to the extent required by Clause 13.3 (Application of Mandatory Prepayments).
(d) Application
of Reduction of Incremental Term Facility Commitment: Each reduction to, and/or termination of the total Incremental Term
Facility Commitment
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under
a given Tranche pursuant to this Clause 4.2 shall be applied proportionately
and permanently to reduce, and/or terminate the Incremental Term Facility
Commitment of each Lender with such a Commitment under such Tranche provided
that any mandatory reduction to the Incremental Term Facility Commitments
pursuant to Clause 13.3 (Application of
Mandatory Prepayments) shall be applied proportionately and
permanently to reduce the Incremental Term Facility Commitments of all Lenders
for all Tranches on a pro rata basis
(based on the then remaining amounts of such Incremental Term Facility
Commitments).
4.3 Lenders’ Participations
Each Lender will participate
through its Facility Office in each Advance made pursuant to Clause 4.1 (Conditions to Utilisation), the relevant Incremental
Revolving Facility Commitment Agreement and the relevant Incremental Term
Facility Commitment Agreement in its respective Proportion.
5.1 Issue of Documentary Credits
(a) Each
L/C Bank shall issue Documentary Credits pursuant to Clause 4.1 (Conditions to Utilisation) by:
(i) completing
the issue date and the proposed Expiry Date of any Documentary Credit to be
issued by it; and
(ii) executing
and delivering such Documentary Credit to the relevant Beneficiary on the
relevant Utilisation Date.
(b) Each
Lender having a Revolving Facility Commitment (an “Indemnifying
Lender”) will participate in each Documentary
Credit in an amount equal to its L/C Proportion.
(c) The
Agent shall notify the L/C Bank and each Indemnifying Lender of the details of
any requested Documentary Credit (including the Euro Amount of it, and, if such
Documentary Credit is not to be denominated in euro, the Optional Currency in
which it will be denominated and the amount of it) and its participation in
that Documentary Credit.
5.2 Renewal of Documentary Credits
(a) The
Borrower may request that a Documentary Credit issued on its behalf be renewed
by delivering to the Agent a Renewal Request which complies with Clause 4.1 (Conditions to Utilisation).
(b) The
terms of each renewed Documentary Credit shall be the same as those of the
relevant Documentary Credit immediately prior to its renewal, except that (as
stated in the Renewal Request therefor):
(i) its
amount may be less than the amount of such Documentary Credit immediately prior
to its renewal; and
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(ii) its
Term shall start on the date which was the Expiry Date of that Documentary
Credit immediately prior to its renewal, and shall end on the proposed Expiry
Date specified in the Renewal Request.
(c) If the
conditions set out in this Agreement have been met, the L/C Bank shall amend
and re-issue a Documentary Credit pursuant to a Renewal Request.
5.3 Revaluation of Documentary Credits
(a) If any
Documentary Credit is denominated in an Optional Currency and has a Term of
more than 6 months, the Agent shall at monthly intervals after the date of such
Documentary Credit recalculate the Euro Amount of that Documentary Credit by
notionally converting into euro the outstanding amount of that Documentary
Credit on the basis of the Agent’s Spot Rate of Exchange on the date of
calculation.
(b) The
Borrower shall, if requested by the Agent within 2 Business Days of any
calculation under paragraph (a) above, ensure that on the last day of the Term
of the next maturing Revolving Facility Advance sufficient Revolving Facility
Outstandings are repaid to prevent the Euro Amount of the Revolving Facility
Outstandings exceeding the aggregate amount of all of the Revolving Facility
Commitments adjusted to reflect any cancellations or reductions, following any
adjustment under paragraph (a) above.
5.4 Immediately Payable
If a Documentary Credit or any
amount outstanding under a Documentary Credit is expressed to be immediately
payable, the Borrower shall repay that amount immediately.
5.5 Claims under a Documentary Credit
(a) The
Borrower irrevocably and unconditionally authorises the L/C Bank to pay any
claim made or purported to be made under a Documentary Credit requested by it
and which appears on its face to be in order (a “claim”).
(b) The
Borrower shall within 3 Business Days of demand pay to the Agent for the L/C
Bank an amount equal to the amount of any claim.
(c) The
Borrower acknowledges that the L/C Bank:
(i) is
not obliged to carry out any investigation or seek any confirmation from any
other person before paying a claim; and
(ii) deals
in documents only and will not be concerned with the legality of a claim or any
underlying transaction or any available set-off, counterclaim or other defence
of any person.
(d) The
obligations of the Borrower under this Clause will not be affected by:
(i) the
sufficiency, accuracy or genuineness of any claim or any other document; or
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(ii) any
incapacity of, or limitation on the powers of, any person signing a claim or
other document.
5.6 Documentary Credit Indemnities
(a) The
Borrower shall immediately on demand indemnify the L/C Bank against any cost,
loss or liability incurred by the L/C Bank (otherwise than by reason of the L/C
Bank’s gross negligence or wilful misconduct) in acting as the L/C Bank under
any Documentary Credit requested by the Borrower.
(b) Without
limiting the obligation of the Borrower under paragraph (a) above, each
Indemnifying Lender shall (according to its L/C Proportion) immediately on
demand indemnify the L/C Bank against any cost, loss or liability incurred by
the L/C Bank (otherwise than by reason of the L/C Bank’s gross negligence or
wilful misconduct) in acting as the L/C Bank under any Documentary Credit
(unless the L/C Bank has been reimbursed by an Obligor pursuant to a Finance
Document).
(c) If any
Indemnifying Lender is not permitted (by its constitutional documents or any
applicable Law) to comply with paragraph (b) above, then that Indemnifying
Lender will not be obliged to comply with paragraph (b) and shall instead be
deemed to have taken, on the date the relevant Documentary Credit is issued (or
if later, on the date that Indemnifying Lender’s participation in the Documentary
Credit is transferred or assigned to that Indemnifying Lender in accordance
with the terms of this Agreement), an undivided interest and participation in
the Documentary Credit in an amount equal to its L/C Proportion of that
Documentary Credit. On receipt of demand
from the Agent, that Indemnifying Lender shall pay to the Agent (for the
account of the L/C Bank) an amount equal to its L/C Proportion of the amount
demanded under paragraph (b) above.
(d) The
Borrower shall immediately on demand reimburse any Indemnifying Lender for any
payment it makes to the L/C Bank under this Clause 5.6 in respect of that
Documentary Credit.
(e) The
obligations of each Indemnifying Lender under this Clause 5.6 are continuing
obligations and will extend to the ultimate balance of sums payable by that
Indemnifying Lender in respect of any Documentary Credit, regardless of any
intermediate payment or discharge in whole or in part.
(f) The
obligations of any Indemnifying Lender under this Clause 5.6 will not be affected
by any act, omission, matter or thing which, but for this Clause 5.6 would
reduce, release or prejudice any of its obligations under this Clause 5.6
(without limitation and whether or not known to it or any other person)
including:
(i) any
time, waiver or consent granted to, or composition with, any Obligor, any
beneficiary under a Documentary Credit or other person;
(ii) the
release of any Obligor or any other person under the terms of any composition
or arrangement with any creditor or any member of the Group;
(iii) the
taking, variation, compromise, exchange, renewal or release of, or refusal or
neglect to perfect, take up or enforce, any rights against, or security over
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assets
of, any Obligor, any beneficiary under a Documentary Credit or other person or
any non-presentation or non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full value of any
security;
(iv) any
incapacity or lack of power, authority or legal personality of or dissolution
or change in the members or status of an Obligor, any beneficiary under a
Documentary Credit or any other person;
(v) any
amendment (however fundamental) or replacement of a Finance Document, any
Documentary Credit or any other document or security;
(vi) any
unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document, any Documentary Credit or any other document or
security; or
(vii) any
insolvency or similar proceedings.
5.7 Rights of Contribution
No Obligor will be entitled to
any right of contribution or indemnity from any Finance Party in respect of any
payment it may make under this Clause 5 (Documentary Credits).
5.8 Role of the L/C Bank
(a) Nothing
in this Agreement constitutes the L/C Bank as a trustee or fiduciary of any
other person.
(b) The
L/C Bank shall not be bound to account to any Lender for any sum or the profit
element of any sum received by it for its own account.
(c) The
L/C Bank may accept deposits from, lend money to and generally engage in any
kind of banking or other business with any member of the Group.
(d) The
L/C Bank may rely on:
(i) any
representation, notice or document believed by it to be genuine, correct and
appropriately authorised; and
(ii) any
statement made by a director, authorised signatory or employee of any person
regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify.
(e) The
L/C Bank may engage, pay for and rely on the advice or services of any lawyers,
accountants, surveyors or other experts.
(f) The
L/C Bank may act in relation to the Finance Documents through its personnel and
agents.
(g) The
L/C Bank is not responsible for:
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(i) the
adequacy, accuracy and/or completeness of any information (whether oral or
written) supplied by the L/C Bank, the Agent, the Arrangers, an Obligor or any
other person given in or in connection with any Finance Document; or
(ii) the
legality, validity, effectiveness, adequacy or enforceability of any Finance
Document or any other agreement, arrangement or document entered into, made or
executed in anticipation of or in connection with any Finance Document.
5.9 Exclusion of Liability
(a) Without
limiting paragraph (b) below, the L/C Bank will not be liable for any action
taken by it under or in connection with any Finance Document, unless directly
caused by its gross negligence or wilful misconduct.
(b) No
Finance Party (other than the L/C Bank) may take any proceedings against any
officer, employee or agent of the L/C Bank in respect of any claim it might
have against the L/C Bank or in respect of any act or omission of any kind by
that officer, employee or agent in relation to any Finance Document.
5.10 Credit Appraisal by the Indemnifying Lenders
Without affecting the
responsibility of any Obligor for information supplied by it or on its behalf
in connection with any Finance Document, each Indemnifying Lender confirms to
the L/C Bank that it has been, and will continue to be, solely responsible for
making its own independent appraisal and investigation of the risks arising
under or in connection with any Finance Document, including but not limited to,
those listed in paragraphs (a) to (d) of Clause 31.15 (Credit
Appraisal by the Lenders).
5.11 Appointment and Change of L/C Bank
(a) The
Agent, with the prior approval of the relevant Lender, the Parent and an
Instructing Group, may designate any Lender with a Revolving Facility
Commitment as an L/C Bank or as a replacement therefor, but not with respect to
Documentary Credits already issued by any other L/C Bank.
(b) Any
Lender so designated shall become an L/C Bank under this Agreement by
delivering to the Agent an executed L/C Bank Accession Certificate.
(c) An L/C
Bank may resign as issuer of further Documentary Credits at any time on or
after the first anniversary of the Initial Borrowing Date under this Agreement
or if later, the first anniversary of the date of its appointment as L/C Bank
under this Agreement by giving not less than 3 months’ prior written notice to
the Agent and the Parent to expire on or after such first anniversary if (i)
the Parent and an Instructing Group consent to it or so require, (ii) there is,
in the reasonable opinion of the L/C Bank, an actual or potential conflict of
interest in it continuing to act as L/C Bank, or (iii) its Revolving Facility
Commitment is reduced to zero.
(d) If the
L/C Bank does so resign and no replacement is appointed, any Documentary Credit
to be issued in accordance with the terms of this Agreement will be issued by
the Agent on behalf of the Lenders with Revolving Facility Commitments
severally in an amount reflecting their respective L/C Proportions at the date
of issue thereof.
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5.12 Assumption of Existing Documentary Credits
Each of the Existing
Documentary Credits (including any extension or renewal thereof) shall
constitute a Documentary Credit issued for the purposes of Clause 4.1 (Conditions to Utilisation) on the Initial
Borrowing Date and the respective issuer thereof shall constitute the “L/C
Bank” for the purposes of this Agreement.
6.1 Conditions to Utilisation of Swingline Facilities
Save as otherwise provided in
this Agreement, a Swingline Facility Advance will be made by the respective
Swingline Facility Lenders to the Borrower at the Borrower’s request if:
(a) the
Agent has received from the Borrower a duly completed Utilisation Request
stating whether the proposed Swingline Facility Advance is a Dollar Swingline
Facility Advance or a Euro Swingline Facility Advance:
(i) in
the case of a Dollar Swingline Facility Advance, not later than 12.00 p.m. (New
York time) on the proposed Utilisation Date for such Advance; or
(ii) in the
case of a Euro Swingline Facility Advance, not later than 12.00 p.m. (London
time) on the proposed Utilisation Date for such Advance,
receipt of which
shall oblige the Borrower to borrow the amount requested on the date stated
upon the terms and subject to the conditions contained in this Agreement
provided that no Utilisation Request under the Swingline Facility shall be made
prior to the first Utilisation Request under the Term Facilities;
(b) the
proposed Utilisation Date is a Business Day for the proposed Swingline Facility
Advance which is or precedes the relevant Termination Date;
(c) the
proposed Euro Amount of such Swingline Facility Advance is (i) equal to the
amount of the corresponding Available Swingline Facility or (ii) less than such
amount but equal to, or an integral multiple of (A) in the case of a Dollar
Swingline Advance, $100,000 and (B) in the case of a Euro Swingline Advance,
€100,000;
(d) the
aggregate amount of Revolving Facility Outstandings and Swingline Facility
Outstandings would not, immediately after making such Swingline Facility
Advance, exceed the aggregate Revolving Facility Commitments of the Revolving
Facility Lenders;
(e) the proposed Term of the Swingline
Facility Advance requested is a period not exceeding 3 months ending on or
before the Final Maturity Date in respect of the Revolving Facility;
(f) the
Utilisation Request is sent to the Agent at the address referred to in Clause
42 (Notices and Delivery of Information)
and confirmed by a telephone call to the telephone number referred to in Clause
42 (Notices and Delivery of Information); and
(g) Without
in any way limiting the obligation of the Borrower set out in paragraph (f)
above, the Agent may act without liability upon the basis of a telephone call
of such
74
Utilisation
believed by the Agent in good faith to be from an Authorised Representative of
the Borrower prior to receipt of the Utilisation Request. In each such case, the Borrower hereby waives
the right to dispute the Agent’s record of the terms of such telephone call in
the absence of manifest error.
6.2 General Conditions to Utilisation of Swingline Facility Advances
If
the Borrower requests a Swingline Facility Advance in accordance with
Clause 6.1 (Conditions to Utilisation
of Swingline Facilities); and, on the proposed date for the making
of such Swingline Facility Advance:
(a) neither
of the events mentioned in Clause 16.1 (Market Disruption)
shall have occurred;
(b) the
Euro Amount of such Swingline Facility Advance does not exceed either the
Available Swingline Facility or the Available Revolving Facility;
(c) there
would not, immediately after the making of such Advance, be more than 10 Euro
Swingline Facility Advances outstanding; and
(d) on and
as of the proposed date for the making of such Advance:
(i) no
Default is continuing or would result from the making of such Advance;
(ii) no
Lender Default exists (unless the Swingline Facility Lenders have entered into
arrangements satisfactory to them to eliminate the Swingline Facility Lenders’
risk with respect to the Defaulting Lender’s or Lenders’ participation in such
Swingline Facility Advance); and
(iii) the
Repeated Representations made by each Obligor are true in all material respects
on the relevant Utilisation Date by reference to the circumstances then
existing,
then,
save as otherwise provided herein, such Swingline Facility Advance will be made
in accordance with the provisions hereof.
6.3 Completion of a Utilisation Request for Swingline Facility Advances
Each
Utilisation Request for a Swingline Facility Advance is irrevocable and only
one Swingline Facility Advance may be requested in each Utilisation Request.
6.4 Swingline Facility Lender’s Participation
(a) Each
Swingline Facility Lender will participate through its Facility Office in each
Swingline Facility Advance made pursuant to this Clause 6 in its
respective Proportion immediately prior to the making of that Advance.
(b) The
Agent shall promptly notify each Swingline Facility Lender of the amount,
currency and Euro Amount of each Swingline Facility Advance upon receipt of a
Utilisation Request.
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6.5 Reduction of Available Commitment
If
a Swingline Facility Lender’s Swingline Facility Commitment is reduced in
accordance with the terms hereof after the Agent has received the Utilisation
Request for a Swingline Facility Advance and such reduction was not taken into
account in the Available Swingline Facility, then both the Euro Amount of the
relevant Swingline Facility Advance and the amount of that Swingline Facility
Advance made or to be made shall be reduced accordingly.
6.6 Purchase of Swingline Participations
(a) On any
Business Day a Swingline Lender may, in its sole discretion, by written notice
given to the Agent (and to the other Swingline Facility Lenders) require the
Revolving Facility Lenders to acquire participations on such Business Day in
all or a portion of the Swingline Facility Outstandings. Such notice shall specify the aggregate
amount of such Swingline Facility Outstandings in which the Revolving Facility
Lenders will participate. Promptly upon
receipt of such notice, the Agent shall give notice thereof to each Revolving
Facility Lender, specifying in such notice each such Revolving Facility
Lender’s Proportion of such Swingline Facility Outstandings. Each Revolving Facility Lender hereby absolutely
and unconditionally agrees, upon receipt of notice as provided above, to pay to
the Agent for the account of the applicable Swingline Facility Lenders, such
Revolving Facility Lender’s Proportion of such Swingline Facility Outstandings.
(b) Each
Revolving Facility Lender acknowledges and agrees that its respective
obligation to acquire participations in Swingline Facility Outstandings
pursuant to this Clause 6.6 is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and continuance
of any Default or Event of Default or reduction or termination of the
Commitments and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
Each Revolving Facility Lender shall comply with its obligations under
this Clause 6.6 by wire transfer of immediately available funds in the same
manner as provided in Clause 35 (Payments)
and the Agent shall promptly pay to the applicable Swingline Facility Lender
the amount so received by it from each such Revolving Facility Lender.
(c) The
Agent shall promptly notify the applicable Borrower of any participations in
any Swingline Facility Outstandings acquired pursuant to this Clause 6.6 and
thereafter payments in respect of such Swingline Facility Outstandings shall be
made to the Agent and not to the applicable Swingline Facility Lender. Any amounts received by a Swingline Facility
Lender from the applicable Borrower (or other party on behalf of such Borrower)
in respect of any Swingline Facility Outstandings after receipt by such
Swingline Facility Lender of the proceeds of a sale of participations therein
shall be promptly remitted to the Agent; any such amounts received by the Agent
shall be promptly remitted by the Agent to the Revolving Facility Lenders that
shall have made their payments pursuant to this Clause 6.6 and to such
Swingline Facility Lender, as their interests may appear; provided that any
such payment so remitted shall be repaid to such Swingline Facility Lender or
to the Agent, as applicable, if and to the extent such payment is required to
be refunded to the applicable Borrower.
The purchase of participations in Swingline Facility Outstandings
pursuant to this Clause 6.6 shall not relieve the applicable Borrower of any
Default in the payment thereof.
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6.7 Consequences of a Swingline Facility Advance not being repaid
(a) If a
Swingline Facility Advance is not repaid on its due date, each Revolving
Facility Lender must pay to the Agent for the account of the Swingline Facility
Lenders an amount calculated as described below within three Business Days of
demand by the Agent.
(b) The
amount (if any) required to be paid by a Revolving Facility Lender is the
proportion of the Swingline Facility Advance not repaid which the Revolving
Facility Commitment of that Revolving Facility Lender bears to the aggregate
amount of the Revolving Facility Commitments less the amount of its
participation, before any adjustment under this Clause 6.7, in the unpaid
amount of the Swingline Facility Advance together with any interest accrued and
unpaid on that amount from the date on which such Swingline Facility Advance
was made to the date of payment by that Revolving Facility Lender. If this produces a negative figure for a
Revolving Facility Lender, no amount need be paid by that Revolving Facility
Lender.
(c) On a
payment under this Clause 6.7, the paying Revolving Facility Lender will be
subrogated to the rights of the Swingline Facility Lenders which have shared in
the payment received.
(d) If and
to the extent the paying Revolving Facility Lender is not able to rely on its
rights under paragraph (c) above, the Borrower shall be liable to the paying
Revolving Facility Lender for a debt equal to the amount the paying Revolving
Facility Lender has paid under this Clause 6.7 and the Borrower’s liability to
the Swingline Facility Lenders will be reduced accordingly.
(e) Any
payment under this Clause 6.7 does not reduce the obligations in aggregate of
the Borrower.
7.1 Incremental Term Facility
(a) Incremental
Term Facility Commitments
(i) The
Borrower shall have the right, in consultation and coordination with the Agent
as to all of the matters set forth below in this Clause 7.1, but without
requiring the consent of any of the Lenders, to request at any time and from
time to time after the Syndication Date and prior to the relevant Termination
Date for the respective Tranche of Incremental Term Facility Advances that one or
more Lenders or one or more Eligible Institutions provide to the Borrower
Incremental Term Facility Commitments under such Tranche of Incremental Term
Facility as designated in the respective Incremental Term Facility Commitment
Agreement and, subject to the terms and conditions contained in this Agreement
and in the respective Incremental Term Facility Commitment Agreement, make
Incremental Term Facility Advances pursuant thereto, so long as:
(A) no Default or Event of
Default then exists or would result therefrom and all of the Repeating
Representations contained herein and in the
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other Finance Documents are true and correct in all
material respects at such time (unless stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date);
(B) the Borrower and its
Subsidiaries will be in compliance with Clause 24 (Financial Condition) on a Pro Forma Basis
after giving effect to each incurrence of Incremental Term Facility Advances
and the application of the proceeds therefrom; and
(C) on or before the date of
each Incremental Term Facility Commitment Agreement, the Borrower shall have
delivered to the Agent a certificate of the Authorised Representative of the
Borrower certifying (A) which provisions (if any) of the Permitted Subordinated
Indebtedness Documents the respective incurrence of Incremental Term Facility
Advances will be allowed under and demonstrating in reasonable detail that the
full amount of such Incremental Term Facility Advances may be incurred in
accordance with, and will not violate the provisions of, the Permitted
Subordinated Indebtedness Document, (B) the ratio of Senior Indebtedness to
Consolidated EBITDA is less than 3.00:1.00 (based on the most recently
delivered Compliance Certificate in accordance with paragraph (e) (Officer’s Certificates) of Clause 23.1 (Information Covenants)) and (C) the
purpose of the use of the proceeds of such Tranche of Incremental Term
Facility.
(ii) Furthermore,
it is understood and agreed that:
(A) no Lender shall be
obligated to provide an Incremental Term Facility Commitment, and until such
time, if any, as such Lender has agreed in its sole discretion to provide an
Incremental Term Facility Commitment and executed and delivered to the Borrower
and the Agent an Incremental Term Facility Commitment Agreement as provided in
paragraph (b) (Incremental Term Facility
Commitment Agreement) of this Clause 7.1, such Lender shall not be
obligated to fund any Incremental Term Facility Advances;
(B) any Lender (including
Eligible Institutions) may so provide an Incremental Term Facility Commitment
without the consent of the Agent or any other Lender;
(C) each Tranche of
Incremental Term Facility Commitments shall be made available to the Borrower;
(D) the amount of each
Tranche of Incremental Term Facility Commitments shall be in a minimum
aggregate amount for all Lenders which provide an Incremental Term Facility
Commitment under such Tranche of Incremental Term Facility Advances of at least
$50,000,000 (or the Euro Amount thereof as determined at the time that
Incremental Term Facility Commitments are obtained);
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(E) the aggregate amount of
all Incremental Term Facility Commitments permitted to be provided pursuant to
this Clause 7.1 shall not exceed $372,000,000 (or the Euro Amount thereof as
determined at the time that such Incremental Term Facility Commitments are
obtained) (it being understood and agreed, however, to the extent that
any such Incremental Term Facility Commitments are obtained but later expire,
terminate or are voluntarily reduced in each case without being utilised, the
amount of such Incremental Term Facility Commitments so expired, terminated or
voluntarily reduced may again be available to be obtained under this Clause 7.1
within the limits set forth herein);
(F) the up-front fees and,
if applicable, any unutilised commitment fees and/or other fees, payable in
respect of each Incremental Term Facility Commitment shall be separately agreed
to by the Borrower and each Incremental Term Facility Lender;
(G) each Tranche of the
Incremental Term Facility shall have (i) a Final Maturity Date of no earlier
than the Final Maturity Date of the C Facilities and (ii) a Weighted Average
Life to Maturity of no less than the Weighted Average Life to Maturity as then
remaining for the C Facilities;
(H) any
Incremental Term Facility Advance being incurred under any single Incremental
Term Facility Commitment Agreement shall be used for Permitted Acquisitions
and/or the redemption or repurchase of the Senior Subordinated Notes
(including, without limitation, any related redemption or repurchase fees). The date of the consummation of a Permitted
Acquisition (as well as the date on which any Indebtedness assumed as part of
such Permitted Acquisition is to be refinanced) or, as the case may be, the
date of the redemption of the Senior Subordinated Notes being prepaid with the
proceeds of such Incremental Term Facility Advance, shall occur no later than
10 Business Days after the date of the incurrence of such Incremental Term
Facility Advance;
(I) each Incremental Term
Facility Commitment Agreement shall specifically designate, with the approval
of the Agent, that the Tranche of the Incremental Term Facility Commitments
being provided thereunder shall be a new Tranche which shall exist separately
from any existing Tranche of the Incremental Term Facility, Incremental Term
Facility Commitments or other Term Facility Advance, unless the requirements of
paragraph (c) (Constitution of each Tranche
of Incremental Term Facility) of this Clause 7.1 are satisfied in
which case such Tranche shall be added on to an existing Tranche of the
Incremental Term Facility (or Incremental Term Facility Commitments) or another
C Facility Advance in accordance with paragraph (c) (Constitution of each Tranche of Incremental Term Facility)
of this Clause 7.1;
(J) all Incremental Term
Facility Advances (and all interest, fees and other amounts payable thereon)
shall be obligations under this Agreement
79
and the other applicable Finance Documents and shall
be secured by the Security Documents, on a pari
passu basis with all other Term Facility Outstandings; and
(K) each Lender agreeing to
provide an Incremental Term Facility Commitment pursuant to an Incremental Term
Facility Commitment Agreement shall, subject to the satisfaction of the
relevant conditions set forth in this Agreement, make Incremental Term Facility
Advances under the Tranche specified in such Incremental Term Facility
Commitment Agreement as provided in Clause 4.2 (Conditions to Utilisation of Incremental Term Facility) and
such Advances shall thereafter be deemed to be Incremental Term Facility
Advances under such Tranche for all purposes of this Agreement and the other
applicable Finance Documents.
(b) Incremental
Term Facility Commitment Agreement
At the time of the provision of Incremental Term
Facility Commitments pursuant to this Clause 7, the Borrower, each other
Obligor, the Agent and each such Lender or other Eligible Institution which
agrees to provide an Incremental Term Facility Commitment (each, an “Incremental Term Facility Lender”) shall
execute and deliver to the Borrower and the Agent an Incremental Term Facility
Commitment Agreement, appropriately completed (with the effectiveness of the
Incremental Term Facility Commitment provided therein to occur on the date set
forth in such Incremental Term Facility Commitment Agreement, which date in any
event shall be no earlier than the date on which all fees required to be paid
in connection therewith at the time of such effectiveness shall have been paid,
all conditions set forth in this Clause 7 shall have been satisfied and all
other conditions precedent that may be set forth in such Incremental Term
Facility Commitment Agreement shall have been satisfied). In addition on or prior to the effective date
of the respective Incremental Term Facility Commitment Agreement:
(i) the
Parent, the Borrower and its Subsidiaries shall have delivered such technical
amendments, modifications and/or supplements to the respective Security
Documents as are reasonably requested by the Agent to ensure that the
additional Facilities Obligations to be incurred pursuant to the Incremental
Term Facility Commitments are secured by, and entitled to the benefits of, the
Security Documents (to the extent required by the terms of this Agreement), and
each of the Lenders hereby agrees to, and authorises the Security Trustee to
enter into, any such technical amendments, modifications and/or supplements;
(ii) the
Agent shall have received an opinion or opinions, in form and substance reasonably
satisfactory to the Agent, from counsel reasonably satisfactory to the Agent
and dated such date, covering such of the matters set forth in the opinions of
counsel delivered to the Agent on the Initial Borrowing Date pursuant to Clause
3.1 (Conditions Precedent) as may
be reasonably requested by the Agent, and such other matters incident to the
transactions contemplated thereby as the Agent may reasonably request;
80
(iii) the
Borrower and the other Obligors shall have delivered to the Agent such other
officers’ certificates, resolutions and evidence of good standing as the Agent
shall reasonably request; and
(iv) in
addition to the applicable conditions precedent set forth in Part I of
Schedule 3 (Conditions Precedent to
First Utilisation), the Agent shall have received from the
Authorised Representative of the Borrower a certificate certifying that the
conditions set forth in paragraphs (a)(i)(A), (B) and (C) of Clause 7.1 (Incremental Term Facility) have been
satisfied (together with calculations demonstrating same (where applicable) in
reasonable detail and copies of the certificate set forth in such paragraph
(a)(i)(C)) of Clause 7.1 (Incremental Term
Facility).
The Agent shall promptly
notify each Lender as to the effectiveness of each Incremental Term Facility
Commitment Agreement and, at such time, Part I of Schedule 1 (Lenders and Commitments) shall be deemed modified to reflect
the Incremental Term Facility Commitments of such Incremental Term Facility
Lenders.
(c) Constitution of each Tranche of Incremental Term
Facility
Notwithstanding
anything to the contrary contained above in this Clause 7.1, the Incremental
Term Facility Commitments provided by an Incremental Term Facility Lender or
Incremental Term Facility Lenders, as the case may be, pursuant to each
Incremental Term Facility Commitment Agreement shall constitute a new Tranche,
which shall be separate and distinct from the existing Tranches pursuant to
this Agreement provided that, with the consent of the Agent, the parties to a
given Incremental Term Facility Commitment Agreement may specify therein that
the respective Incremental Term Facility Advance made pursuant thereto shall
constitute part of, and be added to, an existing Tranche of Incremental Term
Facility Advances or to the C1 Facility Advances or C2 Facility Advances, in
either case so long as the following requirements are satisfied:
(i) the
Incremental Term Facility Advances to be made pursuant to such Incremental Term
Facility Commitment Agreement shall be made to the Borrower, shall be
denominated in the same currency, shall have the same Final Maturity Date and
shall have the same Applicable Margins as the Facility to which the new Incremental
Term Facility Advances are being added;
(ii) the
new Incremental Term Facility Advances shall have the same scheduled repayment
dates as then remain with respect to the Tranche to which such new Incremental
Term Facility Advances are being added (with the amount of each repayment
applicable to such new Incremental Term Facility Advances to be the same (on a
proportionate basis) as is theretofore applicable to the Tranche to which such
new Incremental Term Facility Advances are being added, thereby increasing the
amount of each then remaining repayment of the respective Tranche
proportionately); and
(iii) on the
date of the making of such new Incremental Term Facility Advances, and
notwithstanding anything to the contrary set forth in Clause 15 (Interest on Term Facility Advances), such
new Incremental Term Facility Advance shall be added to (and form part of) the
Term Facility Outstandings of the
81
respective Tranche on a pro rata
basis (based on the relative sizes of the various Term Facility Outstandings),
so that each Lender will participate proportionately in each then Term Facility
Outstandings of the respective Tranche, and so that the existing Lenders with
respect to such Tranche continue to have the same participation (by amount) in
each borrowing as they had before the making of the new Incremental Term
Facility Advances of such Tranche.
7.2 Incremental Revolving Facility
(a) Incremental Revolving Facility Commitments
(i) The
Borrower shall have the right, in consultation and coordination with the Agent
as to all of the matters set forth below in this Clause 7.2, but without
requiring the consent of any of the Lenders, to request at any time and from
time to time after the Syndication Date and prior to the Termination Date for
the Incremental Revolving Facility that one or more Lenders or one or more
Eligible Institutions provide to the Borrower Incremental Revolving Facility
Commitments under the Incremental Revolving Facility as designated in the
respective Incremental Revolving Facility Commitment Agreement and, subject to
the terms and conditions contained in this Agreement and in the respective
Incremental Revolving Facility Commitment Agreement, make Utilisations pursuant
thereto, so long as no Default or Event of Default then exists or would result
therefrom and all of the Repeating Representations contained herein and in the
other Finance Documents are true and correct in all material respects at such
time (unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date).
(ii) Furthermore,
it is understood and agreed that:
(A) no Lender shall be
obligated to provide an Incremental Revolving Facility Commitment, and until
such time, if any, as such Lender has agreed in its sole discretion to provide
an Incremental Revolving Facility Commitment and executed and delivered to the
Borrower and the Agent an Incremental Revolving Facility Commitment Agreement
as provided in paragraph (b) (Incremental
Revolving Facility Commitment Agreement) of this Clause 7.2, such
Lender shall not be obligated to provide any Incremental Revolving Facility;
(B) any Lender (including
Eligible Institutions) may so provide an Incremental Revolving Facility
Commitment without the consent of the Agent or any other Lender;
(C) each of the Incremental
Revolving Facility Commitments shall be made available to the Borrower;
(D) each provision of Incremental
Revolving Facility Commitments shall be in a minimum aggregate amount for all
Lenders of €10,000,000 and in integral multiples of €5,000,000;
82
(E) the aggregate amount of
all Incremental Revolving Facility Commitments permitted to be provided
pursuant to this Clause 7.2 shall not exceed €65,000,000;
(F) the up-front fees and,
if applicable, any unutilised commitment fees and/or other fees, payable in
respect of each Incremental Revolving Facility Commitment shall be separately
agreed to by the Borrower and each Incremental Revolving Facility Lender; and
(G) all Utilisations under
the Incremental Revolving Facility Commitments (and all interest, fees and
other amounts payable thereon) shall be Facilities Obligations under this
Agreement and the other applicable Finance Documents and shall be secured by
the Security Documents, on a pari
passu basis with all other Revolving Facility Outstandings.
(b) Incremental Revolving Facility Commitment
Agreement
At the time of the
provision of Incremental Revolving Facility Commitments pursuant to this
Clause 7, the Borrower, each other Obligor, the Agent and each such Lender
or other Eligible Institution which agrees to provide an Incremental Revolving
Facility Commitment (each, an “Incremental Revolving
Facility Lender”) shall execute and deliver to the Borrower and the
Agent an Incremental Revolving Facility Commitment Agreement, appropriately
completed (with the effectiveness of the Incremental Revolving Facility
Commitment provided therein to occur on the date set forth in such Incremental
Revolving Facility Commitment Agreement, which date in any event shall be no
earlier than the date on which all fees required to be paid in connection
therewith at the time of such effectiveness shall have been paid, all
conditions set forth in this Clause 7.2 shall have been satisfied and all other
conditions precedent that may be set forth in such Incremental Revolving
Facility Commitment Agreement shall have been satisfied). The Agent shall promptly notify each Lender
as to the effectiveness of each Incremental Revolving Facility Commitment
Agreement and at such time, (i) the Revolving Facility shall be increased by
the aggregate amount of such Incremental Revolving Facility Commitments, (ii)
Section A of Part I of Schedule 1 (Lenders
and Commitments) shall be deemed modified to reflect the revised
Revolving Facility Lenders. In addition
on or prior to the effective date of the respective Incremental Revolving
Facility Commitment Agreement:
(i) the
Parent, the Borrower and its Subsidiaries shall have delivered such technical
amendments, modifications and/or supplements to the respective Security
Documents as are reasonably requested by the Agent to ensure that the
additional Facilities Obligations to be incurred pursuant to the Incremental
Revolving Facility Commitments are secured by, and entitled to the benefits of,
the Security Documents (to the extent required by the terms of this Agreement),
and each of the Lenders hereby agrees to, and authorises the Security Trustee
to enter into, any such technical amendments, modifications and/or supplements;
(ii) the
Agent shall have received an opinion or opinions, in form and substance
reasonably satisfactory to the Agent, from counsel reasonably satisfactory to the
Agent and dated such date, covering such of the matters set forth in the
opinions of counsel delivered to the Agent on the Initial Borrowing Date
83
pursuant to Clause 3.1 (Conditions Precedent) as may be reasonably
requested by the Agent, and such other matters incident to the transactions
contemplated thereby as the Agent may reasonably request;
(iii) the
Borrower and the other Obligors shall have delivered to the Agent such other
officers’ certificates, resolutions and evidence of good standing as the Agent
shall reasonably request; and
(iv) in
addition to the applicable conditions precedent set forth in Part I of
Schedule 3 (Conditions Precedent to
First Utilisation), the Agent shall have received from the
Authorised Representative of the Borrower a certificate certifying that the
conditions set forth in paragraphs (a)(i) (Incremental
Revolving Facility Commitments) of this Clause 7.2 have been
satisfied.
(c) Constitution of Incremental Revolving Facility
At the time of any
provision of Incremental Revolving Facility Commitments pursuant to this Clause
7.2, the Borrower shall, in coordination with the Agent, repay outstanding
Revolving Facility Advances of certain of the Revolving Facility Lenders, and
incur additional Revolving Facility Advances from certain other Revolving
Facility Lenders (including the Incremental Revolving Facility Lenders), in
each case to the extent necessary so that all of the Revolving Facility Lenders
participate in each Utilisation under the Revolving Facility pro rata
on the basis of their respective Revolving Facility Commitments (after giving
effect to any increase in the Revolving Facility pursuant to this Clause 7.2
and with the Borrower being obligated to pay to the respective Revolving
Facility Lenders any costs of the type referred to in Clause 33 (Borrower’s Indemnities) in connection with
any such repayment and/or Utilisation.
8.1 Selection of Currency
The Borrower (or
the Parent on its behalf) shall select the currency of an Advance made to it
(which shall be euro or an Optional Currency) in the Utilisation Request
relating to the relevant Advance provided that an A Facility Advance shall be
made in euro, a B1 Facility Advance and a C1 Facility Advance shall be made in
dollars and a B2 Facility Advance and a C2 Facility Advance shall be made in
euro.
8.2 No Change of Currency
Once utilised, no
Term Facility Advance shall be outstanding in any currency other than the
currency in which it was first utilised.
9.1 Repayment of Revolving Facility Advances
Each Borrower shall
(subject to Clause 9.2 (Rollover Advances))
repay the full amount of each Revolving Facility Advance and Swingline Facility
Advance made to it on the Repayment Date, provided that if such Repayment Date
is not a Business Day in the relevant
84
jurisdiction for
payment, payment shall instead be made on the next succeeding Business Day.
9.2 Rollover Advances
Without prejudice
to the Borrower’s obligation to repay the full amount of each Revolving
Facility Advance on the applicable Repayment Date, where, on the same day on
which the Borrower is due to repay a Revolving Facility Advance (a “Maturing Advance”) the Borrower has also
requested that a Revolving Facility Advance in the same currency as the
Maturing Advance be made to it (a “Rollover
Advance”), subject to the Lenders being obliged to make such
Rollover Advance under Clause 4.1 (Conditions to Utilisation),
the amount to be so repaid and the amount to be so drawn down shall be netted
off against each other so that the amount which the Borrower is actually
required to repay or, as the case may be, the amount which the Lenders are
actually required to advance to the Borrower, shall be the net amount remaining
after such netting off provided that the Borrower shall not be permitted to
rollover any Advances denominated in an Optional Currency to the extent that
such Advance, when notionally converted into euros at the Agent’s Spot Rate of
Exchange on the Quotation Date for the next Term and aggregated with the Euro
Amount of all other Revolving Facility Outstandings would result in the
aggregate amount of all Revolving Commitments being exceeded by an amount
greater than 5 per cent.
9.3 Cash Collateralisation of Documentary Credits
In relation to any
unexpired Documentary Credit, the Borrower may give the Agent not less than 3
Business Days’ prior written notice of its intention to repay a Documentary
Credit issued to it, and, having given such notice, shall procure that the
relevant Outstanding L/C Amount in respect of such Documentary Credit is
reduced to zero and repaid in full by providing cash cover therefor (in
accordance with Clause 5 (Documentary Credits))
or by reducing the Outstanding L/C Amount of such Documentary Credit or by
cancelling such Documentary Credit and returning the original to the L/C Bank
or the Agent on behalf of the Lenders.
10.1 Repayment of A Facility Outstandings
The Borrower shall
make such repayments as may be necessary to ensure that on each of the dates
set out in the table below (each an “A
Facility Repayment Date”) the aggregate Euro Amount of the A
Facility Outstandings (as at the close of business in London on the Termination
Date relating to the A Facility) is reduced by an amount equal to the
percentage of such A Facility Outstandings set out in the table below provided
that the final Repayment Date shall be the Final Maturity Date for the A
Facility and the aggregate amount of all A Facility Outstandings shall be
repayable on such A Facility Repayment Date.
|
Repayment
Dates
|
|
Percentage of A Facility Outstandings
Repayable
|
|
|
|
|
|
31
March 2004
|
|
1.625 per cent.
|
|
|
|
|
|
30 June 2004
|
|
1.625 per cent.
|
85
|
Repayment
Dates
|
|
Percentage of A Facility Outstandings
Repayable
|
|
|
|
|
|
30
September 2004
|
|
1.625 per cent.
|
|
|
|
|
|
31
December 2004
|
|
1.625 per cent.
|
|
|
|
|
|
31
March 2005
|
|
3.375 per cent.
|
|
|
|
|
|
30 June 2005
|
|
3.375 per cent.
|
|
|
|
|
|
30
September 2005
|
|
3.375 per cent.
|
|
|
|
|
|
31
December 2005
|
|
3.375 per cent.
|
|
|
|
|
|
31
March 2006
|
|
3.375 per cent.
|
|
|
|
|
|
30 June 2006
|
|
3.375 per cent.
|
|
|
|
|
|
30
September 2006
|
|
3.375 per cent.
|
|
|
|
|
|
31
December 2006
|
|
3.375 per cent.
|
|
|
|
|
|
31
March 2007
|
|
5.5 per cent.
|
|
|
|
|
|
30 June 2007
|
|
5.5 per cent.
|
|
|
|
|
|
30
September 2007
|
|
5.5 per cent.
|
|
|
|
|
|
31
December 2007
|
|
5.5 per cent.
|
|
|
|
|
|
31
March 2008
|
|
5.5 per cent.
|
|
|
|
|
|
30 June 2008
|
|
5.5 per cent.
|
|
|
|
|
|
30
September 2008
|
|
5.5 per cent.
|
|
|
|
|
|
31
December 2008
|
|
5.5 per cent.
|
|
|
|
|
|
31
March 2009
|
|
5.625 per cent.
|
|
|
|
|
|
30 June 2009
|
|
5.625 per cent.
|
|
|
|
|
|
30
September 2009
|
|
5.625 per cent.
|
|
|
|
|
|
31
December 2009
|
|
5.625 per cent.
|
Provided that in
the event the Senior Subordinated Notes are not Refinanced on or before 1
November 2008, the Final Maturity Date with respect to the A Facility
shall be 1 May 2009 and on and from 1 November 2008 the A Facility
Repayment Dates and the percentage of the A Facility Outstandings payable on
such dates shall be as follows:
86
|
Repayment
Dates
|
|
Percentage of A Facility Outstandings
|
|
|
|
|
|
31
December 2008
|
|
9.00 per cent.
|
|
|
|
|
|
31
March 2009
|
|
9.00 per cent.
|
|
|
|
|
|
1 May 2009
|
|
10 per cent.
|
10.2 [Intentionally deleted]
10.3 Repayment of C Facility Outstandings
The Borrower shall
make such repayments as may be necessary to ensure that on each of the dates
set out in the table below (each a “C
Facilities Repayment Date”) the aggregate Euro Amount of the C1
Facility Outstandings (as at the close of business in London on the Second
Amendment Effective Date and the aggregate amount of the C2 Facility
Outstandings (as at the close of business in London on the Second Amendment
Effective Date) are each reduced by an amount equal to the percentage of such C
Facility Outstandings set out in the table below provided that the final
Repayment Date shall be the Final Maturity Date for the C Facilities and the
aggregate amount of all C Facility Outstandings shall be repayable on such C
Facilities Repayment Date.
|
Repayment
Dates
|
|
Percentage of C Facility Outstandings
Repayable
|
|
|
|
|
|
30
September 2004
|
|
0.25 per cent.
|
|
|
|
|
|
31
December 2004
|
|
0.25 per cent.
|
|
|
|
|
|
31
March 2005
|
|
0.25 per cent.
|
|
|
|
|
|
30 June 2005
|
|
0.25 per cent.
|
|
|
|
|
|
30
September 2005
|
|
0.25 per cent.
|
|
|
|
|
|
31
December 2005
|
|
0.25 per cent.
|
|
|
|
|
|
31
March 2006
|
|
0.25 per cent.
|
|
|
|
|
|
30 June 2006
|
|
0.25 per cent.
|
|
|
|
|
|
30
September 2006
|
|
0.25 per cent.
|
|
|
|
|
|
31
December 2006
|
|
0.25 per cent.
|
|
|
|
|
|
31
March 2007
|
|
0.25 per cent.
|
|
|
|
|
|
30 June 2007
|
|
0.25 per cent.
|
|
|
|
|
|
30
September 2007
|
|
0.25 per cent.
|
|
|
|
|
|
31
December 2007
|
|
0.25 per cent.
|
87
|
Repayment
Dates
|
|
Percentage of C Facility Outstandings
Repayable
|
|
|
|
|
|
31
March 2008
|
|
0.25 per cent.
|
|
|
|
|
|
30 June 2008
|
|
0.25 per cent.
|
|
|
|
|
|
30
September 2008
|
|
0.25 per cent.
|
|
|
|
|
|
31
December 2008
|
|
0.25 per cent.
|
|
|
|
|
|
31
March 2009
|
|
0.25 per cent.
|
|
|
|
|
|
30 June 2009
|
|
0.25 per cent.
|
|
|
|
|
|
30
September 2009
|
|
0.25 per cent.
|
|
|
|
|
|
31
December 2009
|
|
0.25 per cent.
|
|
|
|
|
|
31
March 2010
|
|
23.5 per cent.
|
|
|
|
|
|
30 June 2010
|
|
23.5 per cent.
|
|
|
|
|
|
30
September 2010
|
|
23.5 per cent.
|
|
|
|
|
|
31
December 2010
|
|
24.0 per cent.
|
Provided that:
(a) in the event the Senior Subordinated
Notes are not Refinanced on or before 1 November 2008, the Final Maturity
Date with respect to the C Facilities shall be 1 May 2009 and on and from 1
November 2008 the C Facilities Repayment Dates and the percentage of the
C1 Facility Outstandings and C2 Facility Outstandings payable on such dates
shall be as follows:
|
Repayment
Dates
|
|
Percentage of C Facility Outstandings
|
|
|
|
|
|
31
December 2008
|
|
0.25 per cent.
|
|
|
|
|
|
31
March 2009
|
|
47.75 per cent.
|
|
|
|
|
|
1 May 2009
|
|
47.75 per cent.
|
(b) in the event the Senior
Subordinated Notes have been Refinanced on or before 1 November 2008 and
any of the Parent Preference Shares C remain outstanding as at 1
October 2009, the Final
Maturity Date with respect to the C Facilities shall be 30 April 2010 and
on and from 1 October 2009 the C Facilities Repayment Dates and the
percentage of the C1 Facility Outstandings and C2 Facility Outstandings payable
on such dates shall be as follows:
88
|
Repayment
Dates
|
|
Percentage of C Facility Outstandings
|
|
|
|
|
|
31
December 2009
|
|
0.25 per cent.
|
|
|
|
|
|
31
March 2010
|
|
47.25 per cent.
|
|
|
|
|
|
1 May 2010
|
|
47.25 per cent.
|
10.4 Repayment of Incremental Term Facility Outstandings
The Borrower shall
be required to make, with respect to each Tranche of Incremental Tern Facility
Advances, to the extent then outstanding, scheduled amortisation payments of
such Tranche of Incremental Term Facility Advances on the dates (the “Incremental Term Facility Repayment Dates”)
and in the principal amounts set forth in the respective Incremental Term
Facility Commitment Agreement (each such repayment, as the same may be reduced
as provided in Clauses 12 (Voluntary
Prepayment) and 13 (Mandatory
Prepayment), an “Incremental Term
Facility Scheduled Repayment”).
10.5 No Reborrowing of Term Facility Advances
No Borrower may
reborrow any part of any Term Facility which is repaid (including, for the
avoidance of doubt, any part of the B1 Facility which is converted into C1
Facility Advances pursuant to the B1 Facility Conversion or any part of the B2
Facility which is converted into C2 Facility Advances pursuant to the B2
Facility Conversion).
11.1 Voluntary Cancellation
(a) Subject
to Clause 11.2 (Restriction), the Borrower may,
by giving to the Agent not less than 3 Business Days’ prior written notice to
that effect, cancel the whole or any part (being a minimum amount of €1,000,000 and an integral multiple of €1,000,000) of any Available Facility and
any such cancellation shall permanently reduce the relevant Available
Commitments of the Lenders proportionately.
(b) In the
event of certain refusals by a Lender as provided in Clause 45.7 (Replacement of non-Instructing Group Lender)
to consent to certain proposed changes, waivers, discharges or terminations
with respect to this Agreement which have been approved by the Instructing
Group, the Borrower may, subject to the applicable requirements of Clause 45.7
(Replacement of non-Instructing Group Lender),
upon five Business Days’ written notice by the Borrower to the
Agent (which notice the Agent shall promptly transmit to each of the Lenders)
terminate all or, as the case may be, any Commitment, if any, of such Lender,
so long as:
(i) the
Outstandings with respect to such Commitment being cancelled, together with
accrued and unpaid interest, fees and all other amounts, owing to such Lender
(excluding amounts owing in respect of Outstandings of any other Facility
maintained by such Lender which are not being repaid pursuant to Clause 45.7 (Replacement of non-Instructing Group Lender))
are repaid concurrently with the effectiveness of such termination (at which
time Part I of Schedule 1 (Lenders and
Commitments) shall be deemed modified to reflect such changed
amounts); and
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(ii) after
giving effect to such termination (and other adjustments to each Lender’s
Proportion of the Revolving Facility Commitment and/or related L/C Proportion
of the remaining Lenders as contemplated below), none of the Revolving Facility
Outstandings of any remaining Lender shall exceed its Revolving Facility
Commitment.
(c) After
giving effect to the termination of the Commitments of any Lender pursuant to
the provisions of paragraph (b) above, unless the respective Lender continues
to have Term Facility Outstandings or other Commitments (if any) hereunder,
such Lender shall no longer constitute a “Lender” for purposes of this
Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Clauses 18 (Taxes), 19 (Increased Costs), 33 (Borrower’s Indemnities),
37 (Sharing Among the Finance Parties) and
40 (Costs and Expenses)), which shall
survive as to such repaid Lender.
(d) Immediately
after the Revolving Facility Commitment of any Lender is terminated pursuant to
paragraph (b) above, there shall occur automatic consequential adjustments (as
determined by the Agent) in each Lender’s Proportion of Revolving Facility
Commitments (and as a result thereof in the related L/C Proportions) of the
remaining Revolving Facility Lenders.
11.2 Restriction
The Borrower may
not give a notice of cancellation pursuant to Clause 11.1 (Voluntary
Cancellation) in respect of any amount of the Available Term
Facilities required to refinance, in full, the Existing Credit Agreement.
11.3 Notice of Cancellation
Any notice of
cancellation given by the Borrower pursuant to Clause 11.1 (Voluntary Cancellation) shall be irrevocable and shall
specify the date upon which such cancellation is to be made and the amount of
such cancellation.
11.4 Cancellation of Available Commitments
On each Termination
Date any Available Commitments in respect of the Facility to which such
Termination Date relates shall automatically be cancelled and the Commitment of
each Lender in relation to such Facility shall automatically be reduced to
zero.
12.1 Voluntary Prepayment
(a) The
Borrower shall, if it (or the Parent on its behalf) has given to the Agent not
less than 3 Business Days’ prior written notice to that effect, repay an
Advance in whole or in part (but if in part, in an amount that reduces the Euro
Amount of the relevant Advance by a minimum amount of €1,000,000 and an
integral multiple of €1,000,000) together with accrued interest on the amount repaid without
premium or penalty but subject to the payment of any Break Costs.
(b) In the
event of certain refusals by a Lender as provided in Clause 45.7 (Replacement of non-Instructing Group Lender)
to consent to certain proposed changes, waivers,
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discharges or terminations with respect to this
Agreement which have been approved by the Instructing Group, the Borrower may,
upon five Business Days’ written notice by an Authorised Representative of the
Borrower to the Agent (which notice the Agent shall promptly transmit to each
of the Lenders) repay all Outstandings, together with accrued and unpaid
interest, fees, and other amounts owing to such Lender (or owing to such Lender
with respect to each Facility which gave rise to the need to obtain such
Lender’s individual consent) in accordance with, and subject to the
requirements of, Clause 45.7 (Replacement of
non-Instructing Group Lender) so long as:
(i) in
the case of the repayment of Revolving Facility Outstandings of any Lender
pursuant to this paragraph (b), the Revolving Facility Commitment of such
Lender (if any), is terminated concurrently with such repayment (at which time
Part I of Schedule 1 (Lenders and
Commitments) shall be deemed modified to reflect the changed
Revolving Facility Commitments); and
(ii) in the
case of the repayment of any Term Facility Outstandings of any Lender pursuant
to this paragraph (b), the Term Facility Commitment of such Lender (if any) is
terminated concurrently with such repayment (at which time Part I of
Schedule 1 (Lenders and Commitments)
shall be deemed modified to reflect the changed Term Facility Commitments).
12.2 Right of Prepayment and Cancellation in relation to a single Lender
If any Lender is
owed any amounts as set out in paragraph (b) of Clause 21.1 (Replacement of Lenders), the Borrower shall
have the rights as set out in Clause 21.1 (Replacement
of Lenders).
12.3 Application of Voluntary Prepayments
(a) Order
of Application:
Any repayment made pursuant to paragraph (a) of Clause 12.1 (Voluntary Prepayment) in respect of a Term Facility Advance
shall, subject to the provisions of paragraph (b) (Waivable Voluntary Repayment) of this Clause 12.3, be
applied either:
(i) to
the prepayment of A Facility Advances, B1 Facility Advances, B2 Facility
Advances, C1 Facility Advances, C2 Facility Advances and any Incremental Term
Facility Advances pro rata to the respective Term Facility Outstandings; in
relation to each Facility such prepayment shall be applied against all
remaining Scheduled Repayments of such Facility pro rata to the respective amounts
of such Scheduled Repayments; or
(ii) if the
Borrower so elects, in the following order:
(A) first to the prepayment,
in direct order of maturity, of Scheduled Repayments of Term Facilities which
will be due within 15 months after the date of the respective voluntary
prepayment, applied in respect of each Scheduled Repayment Date to repay in
full all Scheduled Repayments of all Term Facilities due on such Scheduled
Repayment Date or, if the prepayment is insufficient to make such repayment in
full in respect of a Scheduled Repayment Date, to the
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Scheduled Repayments for
each Facility due on such Scheduled Prepayment Date pro rata
to the relative amounts of such Scheduled Repayments; and
(B) second, to the
prepayment of A Facility Advances, B1 Facility Advances, B2 Facility Advances,
C1 Facility Advances, C2 Facility Advances and any Incremental Term Facility
Advances pro rata to the relevant Term Facility Outstandings (as reduced by the
prepayments referred to in paragraph (A) above); in relation to each Facility
such prepayment shall be applied against all remaining Scheduled Repayments of
such Facility pro rata to the respective amounts of such Scheduled Repayments.
(b) Waivable
Voluntary Repayment: In relation to any repayment made pursuant to
Clause 12.1 (Voluntary Prepayment)
in respect of a Term Facility Advance and without prejudice to paragraph (a)
above, which is required to be applied to C Facility Advances, if on or prior
to the date of the respective voluntary repayment pursuant to this Clause 12,
the Borrower has given the Agent written notification that it has elected to
give each Lender with C Facility Outstandings the right to waive such Lender’s
rights to receive such repayment (the “Waivable
Voluntary Repayment”) the Agent shall notify such
Lenders of such receipt and the amount of the repayments to be applied to each
such Lender’s Proportion of C Facility Outstandings, provided that in no
event shall the aggregate amount of any Waivable Voluntary Repayment exceed the
aggregate principal amount of Term Facility Outstandings (excluding C Facility
Outstandings) after giving effect to any applications of payments (other than
any reallocation of the respective Waivable Voluntary Repayment pursuant to
this sub-paragraph (b)) to such other Term Facility Outstandings as a result of
the repayments then being made pursuant to this Clause 12.
Waive
Mechanics: In the
event any Lender with C Facility Outstandings desires to waive its right to receive
any such Waivable Voluntary Repayment in whole or in part, such Lender shall so
advise the Agent no later than 5:00 p.m. five Business Days after the date of
such notice from the Agent which notice shall also include the amount the
Lender desires to receive with respect to its C Facility Outstandings. If the Lender does not reply to the Agent
within such five Business Day period, it will be deemed acceptance of the total
payment. If the Lender does not specify
an amount it wishes to receive, it will be deemed acceptance of 100 per cent.
of the total payment. In the event that
any such Lender waives its rights to any such Waivable Voluntary Repayment, the
Agent shall apply 100 per cent. of the amount so waived by such Lenders to:
(x) repay the Term
Facility Outstandings (excluding the C Facility Outstandings) in accordance
with sub-paragraph (a) above; and
(y) to the extent in excess
of the amount to be applied pursuant to preceding clause (x), to reduce the
Available Revolving Facility on a pro rata basis
based on the relative amounts of the Available Revolving Facility and the
Revolving Facility Outstandings (in each case as in effect before giving effect
to such reduction).
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Cash
Collateral: If the
Borrower elects to give the notice described above in this sub-paragraph (b)
with respect to any voluntary repayment, the amount of the respective Waivable
Voluntary Repayment shall be deposited with the Agent on the date the voluntary
repayment is otherwise made pursuant to sub-paragraph (a) above (and held by
the Agent as cash collateral for the C Facility Outstandings and, but only to
the extent Lenders with C Facility Outstandings waive their right to receive
their share of the Waivable Voluntary Repayment, for the benefit of all Lenders
in a cash collateral account which shall permit the investment thereof in Cash
Equivalents reasonably satisfactory to the Agent until the proceeds are applied
to the applicable Outstandings) and the respective repayment shall not be
required to be made until the seventh Business Day occurring after the date the
respective repayment would otherwise have been required to be made.
Partial
Waiver of Repayment:
Notwithstanding anything to the contrary contained above, if one or more
Lenders holding C Facility Outstandings waives its right to receive all or any
part of any Waivable Voluntary Repayment, but less than all the Lenders holding
the respective C Facility Outstandings waive in full their right to receive 100
per cent. of the total payment otherwise required with respect to the
respective C Facility Outstandings, then of the amount actually applied to the
repayment of the respective C Facility Outstandings of Lenders which have
waived in part, but not in full, their right to receive 100 per cent. of such
repayment, such amount shall be applied to each C Facility Advance of the
respective C Facility Outstandings on a pro rata basis
(so that each Lender holding C Facility Outstandings shall, after giving effect
to the application of the respective repayment, maintain the same percentage
(as determined for such Lender, but not the same percentage as the other
Lenders hold and not the same percentage held by such Lender prior to
repayment) of each C Facility Advance which remains outstanding after giving
effect to such application). For the
avoidance of doubt any amount to be applied in accordance with this paragraph
shall only apply to such portion (if any) of the C Facility Outstandings which
such C Facility Lender has not waived.
12.4 Release from Obligation to make Advances
A Lender for whose
account a repayment is to be made under Clause 12.2 (Right of
Prepayment and Cancellation in relation to a single Lender) shall
not be obliged to participate in the making of Advances (including Revolving
Facility Advances) or in the issue or counter-guarantee in respect of
Documentary Credits on or after the date upon which the Agent receives the
relevant notice of intention to repay such Lender’s share of the Outstandings,
on which date all of such Lender’s Available Commitments shall be cancelled and
all of its Commitments shall be reduced to zero.
12.5 Notice of Repayment
Any notice of
repayment given by the Borrower or the Parent, as the case may be, pursuant to
Clauses 12.1 (Voluntary Prepayment) or 12.2 (Right of Prepayment and Cancellation in relation to a single Lender)
shall be irrevocable, shall specify the date upon which such repayment is to be
made and the amount of such repayment and shall oblige the Borrower to make
such repayment on such date.
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12.6 Restrictions on Repayment
No Obligor shall
repay all or any part of any Advance
(including, at any time, a Revolving Facility Advance) except at the
times and in the manner expressly provided for in this Agreement.
12.7 Cancellation upon Repayment
No amount repaid
under this Agreement may subsequently be reborrowed other than any amount of a
Revolving Facility Advance or, as the case may be, a Swingline Facility Advance
repaid in accordance with Clause 9.1 (Repayment of Revolving
Facility Advances) and upon any repayment (other than in respect of
a Revolving Facility Advance, as aforesaid) the availability of the relevant
Facility shall be reduced by an amount corresponding to the amount of such
repayment and the Available Commitment of each Lender in relation to that
Facility shall be cancelled in an amount equal to such Lender’s Proportion of
the amount repaid. In the event the
proceeds of any repayment applied in accordance with Clauses 12 (Voluntary Prepayment) and 13 (Mandatory Prepayment) exceeds the amount
of Term Facility Outstandings at such time, any such excess shall be applied to
permanently reduce the Available Revolving Facility.
13.1 Repayment from Net Proceeds
(a) Equity
Issue: The Parent shall procure that on each date
on which the Parent or any of its Subsidiaries (other than a member of the CEAL
Group to which the CEAL Exception Conditions apply) receives any net cash
proceeds from any sale or issuance of Preferred Stock or common equity of (or
cash capital contributions to) the Parent or any of its Subsidiaries an amount
equal to 50 per cent. of the Net Cash Proceeds of the respective equity
issuance or capital contribution shall be applied in accordance with Clause
13.3 (Application of Mandatory Prepayments),
other than in relation to:
(i) the
issuances of the Parent Common Stock in accordance with any employee incentive
plan of the Parent and its Subsidiaries (including as a result of the exercise
of any options with respect thereto) in an aggregate amount not to exceed
€30,000,000 in any fiscal year of the Parent;
(ii) the
equity contributions to any Subsidiary of the Parent made by the Parent or any
other Subsidiary of the Parent;
(iii) the
issuance of shares specifically for the Refinancing of the Senior Subordinated
Notes and/or the Parent Preferred Stock; and
(iv) the
issuance of the Parent Common Stock in an aggregate amount not to exceed
€3,000,000 in any fiscal year of the Parent.
(b) Asset
Sale: The Parent shall procure that on each date
upon which the Parent or any of its Subsidiaries (other than a member of the
CEAL Group to which the CEAL Exception Conditions apply) receives Net Sale
Proceeds from any Asset Sale (including, for the avoidance of doubt, in
relation to any sale, lease or disposal of CEAL or all or substantially all of
the assets of the CEAL Group), an amount equal to 100 per cent. of the Net Sale
Proceeds from such Asset Sale shall be applied in
94
accordance with Clause 13.3 (Application of Mandatory Prepayments),
provided that (save in respect of any Asset Sale in relation to any sale, lease
or disposal of CEAL or all or substantially all of the assets of the CEAL
Group), so long as no Default or Event of Default then exists:
(i) if
the Consolidated Leverage Ratio is greater than 3.75:1.00 on the date of the
respective Asset Sale (before giving effect to any application of proceeds
thereof), up to €15,000,000; or
(ii) if the
Consolidated Leverage Ratio is less than or equal to 3.75:1.00 on the date of
the respective Asset Sale (before giving effect to any application of the
proceeds thereof), up to €50,000,000 (it being understood and agreed that if
this sub-paragraph (ii) is applicable on the date of any Asset Sale but
subsequently ceases to apply, the Net Sale Proceeds of Asset Sales previously
made when this sub-paragraph (ii) was applicable shall be permitted to be
utilised as provided in this sub-paragraph (ii) and shall also be taken into
account in determining whether additional Net Cash Proceeds of Asset Sales may
be retained pursuant to sub-paragraph (i)),
of the Net Sale Proceeds of Asset Sales (other than in relation
to any sale, lease or disposal of CEAL or all or substantially all of the
assets of the CEAL Group) effected in accordance with Clause 26.2 (Consolidation, Merger, Purchase or Sale of Assets,
etc.) shall not be required to be applied in accordance with Clause
13.3 (Application of Mandatory Prepayments)
on the date of the receipt thereof to the extent that such Net Sale Proceeds
shall be used (A) to effect Permitted Acquisitions, (B) to purchase replacement
equipment and/or (C) make additional Capital Expenditures, in each case in
accordance with the requirements of this Agreement, within 360 days following
such date and if all or any portion of such Net Sale Proceeds not so required
to be applied are not so utilised within 360 days after the date of the receipt
of such Net Sale Proceeds, then such remaining portion shall be applied on the
date falling 360 days after the date of receipt of such Net Sale Proceeds in
accordance with the requirements of this paragraph (b).
Concurrently with each
delivery of financial statements pursuant to paragraph (b) (Quarterly Financial Statements) or (c) (Annual Financial Statements) of Clause 23.1 (Information Covenants), the Parent shall also deliver a
certificate setting forth in reasonable detail the calculation of:
(1) the dates and amount of
Net Sale Proceeds for each Assets Sale which occurred during the respective
fiscal quarter or year, which Net Sale Proceeds were not applied to repay
principal of Term Facility Outstandings (or to reduce Commitments) pursuant to
this paragraph (b));
(2) the amount of Net Sale
Proceeds from Asset Sales previously effected (identifying the date of the
respective Asset Sales) applied during the respective fiscal quarter or year
pursuant to this paragraph (b); and
(3) any amount of Net Sale
Proceeds in respect of which the 360 day period referenced above has lapsed
during the respective fiscal quarter or year without the Net Sale Proceeds
having been applied as contemplated by this paragraph (b).
95
Notwithstanding anything
to the contrary above, in cases where the amount required to be repaid on any
date pursuant to the immediately preceding sentence would be less then
€1,000,000, the Borrower may defer the respective required repayment until the first
date upon which the aggregate amount which would be required to be applied
pursuant to this paragraph (b) would equal or exceed €1,000,000.
(c) Indebtedness: The Parent shall procure that on each date on which the Parent or
any of its Subsidiaries (other than a member of the CEAL Group to which the
CEAL Exception Conditions apply) receives any cash proceeds from any incurrence
of Indebtedness (other than Indebtedness permitted in accordance with Clause
26.4 (Indebtedness) as in effect
on the Effective Date (“Permitted
Effective Date Indebtedness”) and Indebtedness
under any Finance Document) for borrowed money, an amount equal to 100 per
cent. of the Net Cash Proceeds of such Indebtedness shall be applied in
accordance with Clause 13.3 (Application of
Mandatory Prepayments).
Notwithstanding anything
to the contrary in this paragraph (c), if at the time of any incurrence of
Indebtedness by the Parent or any of its Subsidiaries (other than a member of
the CEAL Group to which the CEAL Exception Conditions apply) for borrowed money
pursuant to Clause 26.4(c) (Indebtedness)
or after giving effect thereto, the Consolidated Leverage Ratio is (or would
be) greater than 3.75:1.00, the Parent and its Subsidiaries shall apply all
cash proceeds (if any) received from such incurrence of Indebtedness (including
any Permitted Effective Date Indebtedness but excluding Indebtedness under any
Finance Document) for borrowed money pursuant to Clause 26.4(c) (Indebtedness) in accordance with Clause
13.3 (Application of Mandatory Prepayments)
(other than unsecured Indebtedness of Subsidiaries of the Parent (which are not
Subsidiaries of the Borrower) in an aggregate principal not to exceed
€50,000,000, provided that such Indebtedness (i) is incurred by such Subsidiary
of the Parent from local banks to fund ongoing operations of such Subsidiary
and (ii) does not have a final maturity date later than one year from the date
of the incurrence thereof).
(d) Insurance
Claims: The Parent shall procure that within 10
days following each date on which the Parent or any of its Subsidiaries (other
than a member of the CEAL Group to which the CEAL Exception Conditions apply)
receives any proceeds from any Recovery Event, an amount equal to 100 per cent.
of the proceeds of such Recovery Event (net of reasonable costs including,
without limitation, legal costs and expenses, and taxes incurred in connection
with such Recovery Event) shall be applied in accordance with Clause 13.3 (Application of Mandatory Prepayments),
provided that:
(i) any
net proceeds from Recovery Events received by the Parent and/or its
Subsidiaries during any fiscal year of the Parent equal to or less than €10,000,000
shall be excluded; and
(ii) if the
net proceeds from Recovery Events received by the Parent and its Subsidiaries
when aggregated with the net proceeds received from any other Recovery Events
during any fiscal year of the Parent are greater than €10,000,000, then so long
as no Default or Event of Default then exists and to the extent that:
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(A) the
amount of such proceeds which are in excess of €10,000,000, together with other
cash available to the Parent and permitted to be spent by it on Capital
Expenditures during the relevant period pursuant to Clause 24.1 (Capital Expenditures) (without regard to
Clause 24.1(c)(i) (Capital Expenditures)
in the case of such other cash), equals 100 per cent. of the cost of
replacement or restoration of the properties or assets in respect of which such
proceeds were paid as determined by the Parent in good faith;
(B) the
Parent has delivered to the Agent a certificate on or prior to the date the
payment would otherwise be required pursuant to this Clause 13.1(d) certifying
its determination as required by sub-paragraph (A); and
(C) the
Parent has delivered to the Agent such evidence as the Agent may reasonably
request in form, scope and substance reasonably satisfactory to the Agent
establishing that the Parent reasonably expects to have sufficient resources
available to it (including, without limitation, cash, revenues and insurance
proceeds, such that the Parent and its Subsidiaries can reasonably be expected
to satisfy all obligations of the Parent and its Subsidiaries without any
unreasonable delay or extension thereof) for the period from the date of the
event giving rise to the Recovery Event and continuing through the completion
of the replacement or restoration of respective properties or assets,
then the entire amount of the proceeds of
such Recovery Event shall be deposited with the Agent pursuant to a cash
collateral arrangement reasonably satisfactory to the Agent and the Parent
whereby such proceeds shall be disbursed to the Parent or its order from time
to time as needed to pay actual costs incurred by it in connection with the
replacement or restoration of the respective properties or assets (pursuant to
such reasonable certification requirements as may be established by the Agent),
provided further that at any time while an Event of Default has
occurred and is continuing, the Instructing Group may direct the Agent (in
which case the Agent shall, and is hereby authorised by the Parent and the
Borrower to, follow said directions) to apply any proceeds then on deposit in
such collateral account to the repayment of the Outstandings hereunder in the
same manner as proceeds would be applied pursuant to Clause 6.3 (Application of Proceeds) of the
Intercreditor Deed and provided further, that if any portion of such proceeds
is not required to be applied as required by the Instructing Group and such
proceeds are either (aa) not so used or committed to be so used within one year
after the date of the respective Recovery Event, such proceeds shall be applied
on the first anniversary date of the respective Recovery Event or (bb) if
committed to be used within one year after the date of receipt of such proceeds
and not so used within two years after the date of the respective Recovery
Event, such proceeds shall be applied on the second anniversary date of the
respective Recovery Event, in each case in accordance with the requirements of
Clause 13.3 (Application of Mandatory
Prepayments).
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(e) Permitted
Receivables Transactions: On each date upon which
the Parent or any of its Subsidiaries (other than a member of the CEAL Group to
which the CEAL Exception Conditions apply) receives Permitted Receivables
Transaction Proceeds (but excluding in any event proceeds of subsequent sales
of Receivables Facility Assets pursuant to a Permitted Receivables Transaction
after the initial sale of Receivables Facility Assets has occurred thereunder
except to the extent the respective sale increases the Permitted Receivables
Transaction Outstandings to an amount in excess of the previous highest amount
of Permitted Receivables Transaction Outstandings theretofore in effect), the
Borrower shall be required to apply in accordance with Clause 13.3 (Application of Mandatory Prepayments):
(i) in
the event the Consolidated Leverage Ratio is greater than 3.75:1.00, an amount
equal to 100 per cent. of such Permitted Receivables Transaction Proceeds; and
(ii) in the
event the Consolidated Leverage Ratio is less than or equal to 3.75:1.00, an
amount equal to 50 per cent. of such Permitted Receivables Transaction
Proceeds, so long as (A) no Default or Event of Default exists at the time of
receipt by the Parent or any of its Subsidiaries, as the case may be, of the
respective Permitted Receivables Transaction Proceeds and (B) the aggregate
amounts that would be retained after any application in accordance with this
sub-paragraph (ii) does not exceed €150,000,000.
Notwithstanding anything
to the contrary contained in this paragraph (e), in cases where the amount
required to be repaid on any date would be less then €1,000,000, the Borrower
may defer the respective required repayment until the first date upon which the
aggregate amount which would (but for this sentence) be required to be applied
pursuant to this paragraph (e) (giving effect to the receipt of proceeds on
such date, together with any such proceeds received prior to such date which
have not yet been applied pursuant to this paragraph (e) and any receipts
thereafter) would equal or exceed €1,000,000.
13.2 Repayment from Excess Cash Flow
The Parent shall
procure that on each Excess Cash Flow Payment Date, an amount equal to the
Applicable Excess Cash Flow Percentage of Excess Cash Flow (other than any
amounts from Excess Cash Flow previously applied in accordance with Clause 12.3
(Application of Voluntary Prepayments))
for the relevant Excess Cash Flow Payment Period shall be applied in accordance
with Clause 13.3 (Application of Mandatory Prepayments).
13.3 Application of Mandatory Prepayments
(a) Order
of Application
Each amount referred to
in Clause 13.1 (Repayment from Net Proceeds) or
Clause 13.2 (Repayment from Excess Cash Flow)
shall, subject to the provisions of paragraph (b) of Clause 13.3 (Bond Offerings) and to the provisions of paragraph
(c) (Waivable Mandatory Repayment) of this
Clause 13.3, be applied:
(i) first,
to the prepayment of A Facility Advances, B1 Facility Advances, B2 Facility
Advances, C1 Facility Advances, C2 Facility Advances and any
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Incremental Term Facility Advances pro rata
to the respective Term Facility Outstandings; in relation to each Facility such
prepayment shall be applied either:
(A) against all
remaining Scheduled Repayments of such Facility pro rata to the respective
amounts of such Scheduled Repayments; or
(B) if the Borrower so
elects, in the following order:
(I) first, to the
prepayment, in direct order of maturity of Scheduled Repayments for such
Facility which will be due within 15 months after the date of mandatory
prepayment; and
(II) thereafter, to the
prepayment of all remaining Scheduled Repayments of such Facility pro rata to
the respective amounts of such Scheduled Repayments; and
(ii) second,
to repay Revolving Facility Outstandings with a corresponding permanent
reduction in Revolving Facility Commitments.
(b) Bond
Offerings: Notwithstanding the provisions of
paragraphs (a) above, the first €70,000,000 of Net Cash Proceeds referred to in
paragraph (c) (Indebtedness) of
Clause 13.1 (Repayment from Net Proceeds)
received from any incurrence of Indebtedness relating to any issuance of bonds
by the Parent or any of its Subsidiaries at any time during the period ending
on the date falling 6 months after the Effective Date shall, subject to the
provisions of paragraph (c) of this Clause 13.3, be applied:
(i) first,
to the prepayment of B1 Facility Advances, B2 Facility Advances, C1 Facility
Advances and C2 Facility Advances, pro rata to the respective B Facility
Outstandings and C Facility Outstandings and against all remaining Scheduled
Repayments of each such Facility pro rata to the respective amounts of such
Scheduled Repayments; and
(ii) second,
to the prepayment of A Facility Advances, B1 Facility Advances, B2 Facility
Advances, C1 Facility Advances and C2 Facility Advances, pro rata to the
respective Term Facility Outstandings; in relation to each Facility such
prepayment shall be applied against all remaining Scheduled Repayments of such
Facility pro rata to the respective amounts of such Scheduled Repayments.
(c) Waivable
Mandatory Repayment: In relation to any repayment made pursuant to
Clause13.1 (Repayment from Net Proceeds) or Clause
13.2 (Repayment from Excess Cash Flow)
which is required to be applied to C Facility Advances, if on or prior to the
date of such repayment pursuant to this Clause 13, the Borrower has given the
Agent written notification that it has elected to give each Lender with C
Facility Outstandings the right to waive such Lender’s rights to receive such
repayment (the “Waivable Mandatory
Repayment”) the Agent shall notify such Lenders of
such receipt and the amount of the repayments to be applied to each such
Lender’s Proportion of C Facility Outstandings, provided that in no event shall
the aggregate amount of any Waivable Mandatory Repayment exceed the sum of (x)
the aggregate
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principal amount of Term Facility
Outstandings (excluding C Facility Outstandings) after giving effect to any
applications of payments (other than any reallocation of the respective
Waivable Mandatory Repayment pursuant to this paragraph (c)) to such other Term
Facility Outstandings as a result of the repayments then being made pursuant to
this Clause 13 and (y) the Available Revolving Facility as same will be in
effect after giving effect to any reductions thereto (other than as a result of
any reallocation of the respective Waivable Mandatory Repayment pursuant to
this Clause 13) concurrently being made.
Waiver
Mechanics: In the
event any such Lender with C Facility Outstandings desires to waive such
Lender’s right to receive any such Waivable Mandatory Repayment in whole or in
part, such Lender shall so advise the Agent no later than 5:00 p.m. five
Business Days after the date of such notice from the Agent which notice shall
also include the amount the Lender desires to receive with respect to its C
Facility Outstandings. If the Lender
does not reply to the Agent within such five Business Day period, it will be
deemed acceptance of the total payment.
If the Lender does not specify an amount it wishes to receive, it will be
deemed acceptance of 100 per cent. of the total payment. In the event that any such Lender waives such
Lender’s rights to any such Waivable Mandatory Repayment, the Agent shall apply
100 per cent. of the amount so waived by such Lenders to (x) repay the Term
Facility Outstandings (excluding the C Facility Outstandings) in accordance
with paragraph (a) above and (y) to the extent in excess of the amount to be
applied pursuant to preceding clause (x), to reduce the Available Revolving
Facility on a pro rata basis based on the
relative amounts of the Available Revolving Facility and the Revolving Facility
Outstandings (in each case as in effect before giving effect to such
reduction).
Cash Collateral: If the
Borrower elects to give the notice described above in this paragraph (c) with
respect to any such repayment, the amount of the respective Waivable Mandatory
Repayment shall be deposited with the Agent on the date such repayment is
otherwise made pursuant to paragraph (a) above (and held by the Agent as cash
collateral for the C Facility Outstandings and, but only to the extent Lenders
with C Facility Outstandings waive their right to receive their share of the
Waivable Mandatory Repayment, for the benefit of all Lenders in a cash
collateral account which shall permit the investment thereof in Cash
Equivalents reasonably satisfactory to the Agent until the proceeds are applied
to the applicable Outstandings) and the respective repayment shall not be
required to be made until the seventh Business Day occurring after the date the
respective repayment would otherwise have been required to be made.
Partial Waiver of Repayment:
Notwithstanding anything to the contrary contained above, if one or more
Lenders holding C Facility Outstandings waives its right to receive all or any
part of any Waivable Mandatory Repayment, but less than all the Lenders holding
the respective C Facility Outstandings waive in full their right to receive 100
per cent. of the total payment otherwise required with respect to the respective
C Facility Outstandings, then of the amount actually applied to the repayment
of the respective C Facility Outstandings of Lenders which have waived in part,
but not in full, their right to receive 100 per cent. of such repayment, such
amount shall be applied to each C Facility Advance of the respective C Facility
Outstandings, on a pro rata basis
(so that each Lender holding C Facility Outstandings shall, after giving effect
to the application of the respective repayment,
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maintain the same percentage (as determined for such Lender, but not the
same percentage as the other Lenders hold and not the same percentage held by
such Lender prior to repayment) of each C Facility Advance which remains
outstanding after giving effect to such application). For the avoidance of doubt any amount
to be applied in accordance with this paragraph shall only apply to such
portion (if any) of the C Facility Outstandings which such C Facility Lender
has not waived.
(d) Revolving
Facility:
Any repayment of any Revolving Facility Outstandings under this
Agreement shall be applied first against Revolving Facility Advances and when
all Revolving Facility Advances have been repaid in full, to provide cash
collateral in respect of any Outstanding L/C Amounts.
14.1 Interest Payment Date for Revolving Facility Advances
On each Repayment
Date (and, if the Term of any Revolving Facility Advance exceeds 3 months, on
the expiry of each period of 3 months during such Term) the Borrower shall pay
accrued interest on each Revolving Facility Advance made to it.
14.2 Interest Rate for Revolving Facility Advances
The rate of
interest applicable to each Revolving Facility Advance during its Term shall be
the rate per annum which is the sum of the Applicable Margin for the Revolving
Facility, the Associated Costs Rate for such Advance at such time and EURIBOR
or, in relation to any Revolving Facility Advance denominated in an Optional
Currency, LIBOR, for the relevant Term.
14.3 Interest Rate for Swingline Facility Advances
The rate of
interest applicable to each Swingline Facility Advance during its Term shall be
the rate per annum which is the sum of the Associated Costs Rate for such
Advance at such time and:
(a) in
relation to a Dollar Swingline Facility Advance, the sum of the Applicable
Margin for Dollar Swingline Facility Advances and the higher of (i) the Prime
Lending Rate at such time and (ii) the sum of 0.50 per cent. and the Federal
Funds Rate at such time; and
(b) in
relation to a Euro Swingline Facility Advance, the sum of the Applicable Margin
for Euro Swingline Facility Advances and EURIBOR at such time,
for the relevant Term.
14.4 Applicable Margin Ratchet for Revolving Facility Advances after
Event of Default
Upon the occurrence
of any Event of Default, the Applicable Margin for the Revolving Facility and
the Swingline Facility shall revert to the Revolving Facility Margin so long as
such Event of Default is continuing.
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15.1 Interest Periods for Term Facility Advances
The period for
which a Term Facility Advance is outstanding shall be divided into successive
periods (each an “Interest Period”) each of which
(other than the first) shall start on the last day of the preceding such period
and any Interest Period which begins during or at the same time as any other
Interest Period in respect of a Term Facility Advance made under the same Term
Facility shall end at the same time as that other Interest Period.
15.2 Duration
The duration of
each Interest Period shall, save as otherwise provided in this Agreement, be 1,
2, 3 or 6 months, in each case as the Authorised Representative of the Borrower
may by not less than three Business Days’ prior notice to the Agent select or
such other period as the Lenders may agree, provided that:
(a) if the
Borrower (or the Parent) fails to give such notice of selection in relation to
an Interest Period, the duration of that Interest Period shall, subject to the
other provisions of this Clause 15, be 1 month;
(b) prior
to the Syndication Date, unless the Agent otherwise specifies, the duration of
each Interest Period shall be 1 month (or, if less, such duration necessary to
ensure that such Interest Period ends on the Syndication Date); and
(c) any
Interest Period that would otherwise end during the month preceding or extend
beyond a Repayment Date relating to the relevant Term Facility Outstandings
shall be of such duration that it shall end on that Repayment Date if necessary
to ensure that there are Advances under the relevant Facility with Interest
Periods ending on the relevant Repayment Date in a sufficient aggregate amount
to make the repayment due on that Repayment Date.
15.3 Division of Term Facility Advances
Subject to the requirements of Clause 15.2 (Duration) the Borrower may, by not less than 5 Business
Days’ prior notice to the Agent, direct that any Term Facility Advance borrowed
by it shall, at the beginning of the next Interest Period relating to it, be
divided into (and thereafter, save as otherwise provided in this Agreement, be
treated in all respects as) two or more Advances in such amounts (equal in
aggregate to the Euro Amount of the Term Facility Advance being so divided) as
shall be specified by the Borrower in such notice provided that the Borrower
shall not be entitled to make such a direction if any Term Facility Advance
thereby coming into existence would have a Euro Amount of less than €1,000,000.
15.4 Payment of Interest for Term Facility Advances
On the last day of
each Interest Period (or if such day is not a Business Day, on the immediately
succeeding Business Day in the then current calendar month (if there is one) or
the preceding Business Day (if there is not)), and if the relevant Interest
Period exceeds 3 months, on the expiry of each 3 month period during that
Interest Period, the Borrower shall pay accrued interest on the Term Facility
Advance to which such Interest Period relates.
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15.5 Interest Rate for Term Facility Advances
The rate of
interest applicable to a Term Facility Advance at any time during an Interest
Period relating to it shall be the rate per annum which is the sum of the
Applicable Margin for the relevant Term Facilities, the Associated Costs Rate
for such Advance at such time and EURIBOR or, in relation to any Term Facility
Advance then denominated in an Optional Currency, LIBOR, for such Interest
Period.
15.6 Applicable Margin Ratchet for Term Facility Advances after Event of
Default
Upon the occurrence of any Event of Default, the
Applicable Margin with respect to the A Facility shall revert to the A Facility
Margin so long as the Event of Default is continuing.
16.1 Market Disruption
If, in relation to
any Interest Period or Term:
(a) the
Relevant Interbank Rate is to be determined by reference to the Reference Banks
or Federal Funds brokers, as the case may be, and, at or about 11.00 a.m. on
the Quotation Date for such Interest Period or Term, none or only one of the
Reference Banks or Federal Funds brokers, as the case may be, supplies a rate
for the purpose of determining the Relevant Interbank Rate for the relevant
period; or
(b) before
the close of business in London on the Quotation Date for such Interest Period
or Term (or in relation to a Swingline Advance, before 1:00 p.m. on any day),
the Agent has been notified by a Lender or each of a group of Lenders to whom
in aggregate 35 per cent. or more of the relevant Advance is owed (or, in the
case of an undrawn Advance, if made, would be owed) that the cost to it of
obtaining matching deposits for the relevant Advance in the Relevant Interbank
Market would be in excess of the Relevant Interbank Rate,
then the Agent
shall notify the Parent and the Lenders of such event and, notwithstanding
anything to the contrary in this Agreement, Clause 16.2 (Substitute
Interest Period and Interest Rate) shall apply (if the relevant
Advance is a Term Facility Advance which is already outstanding or a Rollover
Advance). If either paragraph (a) or (b)
applies to a proposed Advance other than a Rollover Advance, such Advance shall
not be made.
16.2 Substitute Interest Period and Interest Rate
(a) If
paragraph (a) of Clause 16.1 (Market Disruption)
applies (i) to an Advance (other than a Swingline Advance), the duration of the
relevant Interest Period or Term shall be 1 month, (ii) to a Swingline Advance,
the duration of the relevant Term shall be 5 Business Days or (iii) in each
case, if less, such that it shall end on the next succeeding Repayment Date.
(b) If
either paragraph of Clause 16.1 (Market Disruption)
applies to an Advance, the rate of interest applicable to each Lender’s portion
of such Advance during the relevant Interest Period or Term shall (subject to
any agreement reached pursuant to Clause 16.3 (Alternative
Rate)) be the rate per annum which is the sum of:
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(i) the
Applicable Margin;
(ii) the
rate per annum notified to the Agent by such Lender before the last day of such
Interest Period or Term to be that which expresses as a percentage rate per
annum the cost to such Lender of funding from whatever sources it may select
its portion of such Advance during such Interest Period or Term; and
(iii) the
Associated Costs Rate, if any, applicable to such Lender’s participation in the
relevant Advance.
16.3 Alternative Rate
If:
(a) Clause
16.1 (Market Disruption) applies; or
(b) by
reason of circumstances affecting the Relevant Interbank Market during any
period of 3 consecutive Business Days, the Relevant Interbank Rate (as
appropriate) is not available to prime banks in the Relevant Interbank Market,
then, if the Agent
or the Parent so requires, the Agent and the Parent shall enter into
negotiations with a view to agreeing an alternative basis within one month:
(i) for
determining the rate of interest from time to time applicable to Advances;
and/or
(ii) upon
which the Advances may be maintained (whether in euro or some other currency)
thereafter,
and any such
alternative basis that is agreed shall take effect in accordance with its terms
and be binding on each party to this Agreement, provided that the Agent may not
agree any such alternative basis without the prior consent of each Lender.
17.1 Commitment Fees
The Borrower shall
pay to the Agent for the account of each Arranger (with respect to the period
from the date of the Commitment Letter) and each Lender (with respect to the
period from the Effective Date), a commitment commission on the aggregate
amount of such Lender’s Available Commitment (if any) in respect of each
Facility, from day to day during the period beginning on the date of the
Commitment Letter and ending on the relevant Termination Date, such commitment
commission to be calculated at the applicable percentage rate per annum set out
below and payable on the Initial Borrowing Date and thereafter in arrear on the
last day of each successive period of 3 months which ends during such period
and on the Termination Date for the relevant Facility.
|
Facility
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|
Percentage Rate
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|
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|
Revolving
|
|
0.75 per cent.
|
|
|
|
|
|
A
|
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0.50 per cent.
|
|
|
|
|
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B
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0.50 per cent.
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|
|
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C
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0.50 per cent.
|
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For the purposes of this Clause 17.1, Available
Commitment shall include the commitment of the Arrangers under the Commitment
Letter (it being agreed that the undrawn and uncancelled commitment under the
Commitment Letter is for an amount not exceeding €730,000,000).
17.2 Underwriting Fee
The Borrower shall
pay to the Arrangers the fees specified in the letter dated on or about the date of the Commitment Letter from the
Arrangers to the Parent and the Borrower at the times and in the amounts
specified in such letter.
17.3 Agency Fee
The Borrower shall
pay to the Agent for its own account the fees specified in the letter dated on or about the date of the Commitment
Letter from the Agent to the Parent and the Borrower at the times and in
the amounts specified in such letter.
17.4 Incremental Facility Fee
The Borrower shall
pay to the relevant Incremental Revolving Facility Lender or Incremental Term
Facility Lender, as the case may be, for its own account the fees agreed between
the Borrower and the relevant Lender at the times and in the amount specified
in the relevant Incremental Facility Commitment Agreement.
17.5 Documentary Credit Fee
The Borrower shall,
in respect of each Documentary Credit, pay to the Agent for the account of each
Indemnifying Lender (for distribution in proportion to each Indemnifying
Lender’s L/C Proportion of such Documentary Credit) a documentary credit fee
(a) at any time prior to the occurrence of a Sharing Event, in the currency in
which the relevant Documentary Credit is denominated and (b) at any time on or
after the occurrence of a Sharing Event, in euros, at a rate 0.25 per cent. per
annum applied on the Outstanding L/C Amount in relation to such Documentary
Credit. Such documentary credit fee
shall be paid in arrear on the last Business Day of each March, June,
September and December which begins during the Term of the relevant
Documentary Credit and on the relevant Expiry Date. Accrued Documentary Credit fees shall also be
payable on the cancelled amount of any Revolving Facility Commitment at the
time such cancellation is effective, if the Revolving Facility Commitment is
cancelled in full and a Documentary Credit is repaid in full.
17.6 L/C Bank Fee
The Borrower shall
pay to the L/C Bank a fronting fee (a) at any time prior to the occurrence of a
Sharing Event, in the currency in which the relevant Documentary Credit is
denominated and (b) at any time on or after the occurrence of a Sharing Event,
in euros, at a rate 0.25 per cent. per annum applied on the Outstanding L/C
Amount in relation to such Documentary Credit provided that in no event shall
such fronting fee be less than €500 (or its equivalent). Such fronting fee shall be paid in arrear on
the last Business Day of each March, June,
105
September and
December which begins during the Term of the relevant Documentary Credit
and on the relevant Expiry Date. Accrued
fronting fees shall also be payable on the cancelled amount of any Revolving
Facility Commitment at the time such cancellation is effective, if the
Revolving Facility Commitment is cancelled in full and a Documentary Credit is
repaid in full.
18.1 Tax Gross-up
(a) Except
as provided in paragraph (c) below, each payment made by an Obligor under a
Finance Document shall be made by it without reduction for any Tax
Deduction. In the event of a Tax
Deduction, the amount of the payment due shall, unless paragraph (c) below applies,
be increased to an amount so that, after the required Tax Deduction is made,
the payee receives an amount equal to the amount it would have received had no
Tax Deduction been required.
(b) If a
Tax Deduction is required by Law to be made by the Agent or the Security
Trustee from any payment to any Finance Party which represents an amount or
amounts received from an Obligor, that Obligor shall, unless paragraph (c)
below applies, pay directly to that Finance Party an amount which, after making
the required Tax Deduction enables the payee of that amount to receive an
amount equal to the payment which it would have received if no Tax Deduction
had been required.
(c) An
Obligor is not required to make a Tax Payment to a Lender under paragraphs (a)
or (b) above for a Tax Deduction in respect of any payment to that Lender under
the Finance Documents where that Lender has not provided forms required to be
provided under paragraph (e) or (f) hereof with respect to that payment.
(d) An
Obligor shall timely deposit any Tax Deduction it makes to the relevant taxing
authority. Within 45 days, the Obligor
making that Tax Deduction shall deliver to the Agent for the Finance Party
entitled to the payment to which such Tax Deduction or payment relates a
certification of receipt of payment by the relevant taxing authority or other
evidence which is reasonably satisfactory to that Finance Party that the Tax
Deduction or other payment has been made to the relevant tax authority.
(e) Each
Lender (other than a U.S. Lender) shall deliver to the Borrower and the Parent
on or before the Initial Borrowing Date (if sooner, the date of the first
payment, to such Lender under any of the Finance Documents) two accurate and
complete original signed copies of:
(i) a
duly completed United States of America Internal Revenue Service Form W-8BEN
(or such Form as may replace it) relating to exemption from withholding in
respect of payments made by the Borrower to that Lender under the Finance
Documents:
(A) claiming that Lender’s entitlement to the
United States federal “portfolio interest exemption” in relation to payment of
interest on participations in Advances to the Borrower; or
106
(B) certifying that that Lender is entitled to a
complete exemption from the United States taxation under a Double Taxation
Treaty; or
(ii) a duly
completed United States of America Internal Revenue Service Form W-8ECI (or
such Form as may replace it) certifying that the payments made by the Borrower
to that Lender under the Finance Documents are effectively connected with the
conduct by that Lender of a trade or business within the United States of
America.
(f) Each
Lender agrees that when a lapse in time or change in circumstances renders the
previous certification obsolete or inaccurate in any material respect, it will
deliver to the Borrower and the Parent two new accurate and complete original
signed copies of the relevant Internal Revenue Service Form referred to above
or any alternative certification specified above and such other forms as may be
required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under the Finance Documents, or it shall immediately notify
the Borrower and the Agent of its inability to deliver any such Form or
certification, in which case such Lender shall not be required to provide forms
described in this paragraph (f).
18.2 Tax Indemnity
The Obligors agree jointly and severally to indemnify
and hold harmless each Lender in respect of any taxes that are described in the
definition of “Tax Deduction” and taxes imposed on or measured by the net
income or net profits of such Lender in respect of the amounts paid pursuant to
paragraphs (a) and (b) of Clause 18.1 (Tax
Gross-Up) and this Clause 18.2.
18.3 Tax Credit
(a) If an
Obligor makes a Tax Payment and the relevant Finance Party determines that:
(i) a Tax
Credit is attributable to that Tax Payment; and
(ii) that
Finance Party has obtained, utilised and retained that Tax Credit,
the Finance Party shall (subject to paragraph (b) below and to the
extent that such Finance Party can do so without prejudicing the availability
and/or the amount of the Tax Credit and the right of that Finance Party to obtain
any other benefit, relief or allowance which may be available to it) pay to the
Obligor such amount which that Finance Party determines will leave it (after
that payment) in the same after-tax position as it would have been in had the
Tax Payment not been made by the Obligor.
(b) (i) Each
Finance Party shall have an absolute discretion, consistent with the policies
of such Finance Party, as to the time at which and the order and manner in
which it realises or utilises any Tax Credits and shall not be obliged to
arrange its business or its tax affairs in any particular way in order to be
eligible for any credit or refund or similar benefit.
(ii) No Finance Party shall be obliged to
disclose to any other person any information regarding its business, tax affairs
or tax computations (including its tax returns).
107
(iii) If a Finance Party has made a
payment to an Obligor pursuant to this Clause 18.3 on account of a Tax Credit
and such Tax Credit is subsequently reduced or disallowed that Obligor shall,
on demand, pay to that Finance Party the amount which that Finance Party
determines will put it (after that payment is received) in the same after-tax
position as it would have been in had no such payment been made to that
Obligor.
(c) No
Finance Party shall be obliged to make any payment under this Clause 18.3 if,
by doing so, it would contravene the terms of any applicable Law or any notice,
direction or requirement of any governmental or regulatory authority (whether
or not having the force of law).
19.1 Increased Costs
Subject to Clause
19.3 (Exceptions), the Parent shall within 5
Business Days of a written demand by the Agent, pay for the account of a
Finance Party the amount of any Increased Cost incurred by that Finance Party
or any of its Affiliates as a result (direct or indirect) of:
(a) the
introduction or implementation of or any change in (or in the interpretation,
administration or application of) any Law of any central bank, including the
European Central Bank, the Financial Services Authority or any other fiscal,
monetary, regulatory or other authority;
(b) compliance
with any Law made after the date of this Agreement; or
(c) the
implementation of economic or monetary union by any Member State which is not
already a Participating Member State.
19.2 Increased Costs Claims
(a) A
Finance Party intending to make a claim pursuant to Clause 19.1 (Increased Costs) shall notify the Agent of the event giving
rise to the claim, following which the Agent shall promptly notify the Parent.
(b) Each
Finance Party shall, as soon as practicable after a demand by the Agent,
provide a certificate confirming the amount of its Increased Costs although
failure to give such certificate shall not release or diminish the Borrower’s
obligations to pay the Increased Costs.
19.3 Exceptions
Clause 19.1 (Increased Costs) does not apply to the
extent any Increased Cost is:
(a) attributable
to a Tax Deduction to the extent a payment is required to be made by Obligor
under Clause 18 (Taxes) or other
tax imposed on a Lender that the Lender is not otherwise entitled to have
reimbursed under this Agreement or any of the other Finance Documents;
108
(b) compensated
for by Clause 18.2 (Tax Indemnity)
(or would have been compensated for by Clause 18.2 (Tax
Indemnity) but was
not so compensated solely because Clause 18.2 (Tax
Indemnity) applied);
(c) compensated
for by the payment of the Associated Costs Rate; or
(d) attributable
to the wilful breach by the relevant Finance Party or any of its Affiliates of
any Law or regulation.
If it becomes
unlawful in any relevant jurisdiction for a Lender to perform any of its
obligations as contemplated by this Agreement or to fund or maintain its
participation in any Advance or to issue a Documentary Credit:
(a) that
Lender shall promptly notify the Agent upon becoming aware of that event;
(b) upon
the Agent notifying the Parent, the Available Commitments of that Lender will
immediately be cancelled and its Commitments reduced to zero and such Lender
shall not thereafter be obliged to participate in any Advance or issue or
guarantee any Documentary Credit; and
(c) the
Borrower shall repay that Lender’s participation in the Advances made to the
Borrower on the last day of the current Interest Period or Term for each
Advance occurring after the Agent has notified the Parent or, if earlier, the
date specified by the Lender in the notice delivered to the Agent (being no
earlier than the last day of any applicable grace period permitted by Law) and,
if applicable, shall promptly reduce that Lender’s L/C Proportion of the
Outstanding L/C Amount in respect of any outstanding Documentary Credit issued
by it to zero, together with accrued interest and all other amounts owing to
that Lender under the Finance Documents.
21.1 Replacement of Lenders
If any Lender:
(a) refuses
to consent to certain proposed changes, waivers, discharges or terminations
with respect to this Agreement which have been approved by the Instructing
Group as (and to the extent) provided in Clause 45.7 (Replacement of non-Instructing Group Lender);
or
(b) is
owed any amounts under any of Clauses 18 (Taxes),
19.1 (Increased Costs) or 20 (Illegality) in a material amount in excess
of those being generally charged by the other Lenders,
the Borrower shall
have the right, in accordance with the requirements of Clause 39.3 (Assignments or Transfers by Lenders), to
replace such Lender (the “Replaced Lender”)
with one or more Eligible Institution or Eligible Institutions (collectively,
the “Replacement Lender”), each of
whom shall be reasonably acceptable to the Agent or, in the case of a
replacement as provided in Clause 45.7 (Replacement
of non-Instructing Group Lender) where the consent of the respective
Lender is required with respect to less than all its
109
Outstandings or
Commitments, at the option of the Borrower, to replace only the Commitments
and/or Outstandings of such Lender in respect of each Facility where the
consent of such Lender would otherwise be individually required, with identical
Commitments and/or Outstandings of the respective Facility provided by the
Replacement Lender, provided that:
(i) at the time of any replacement
pursuant to this Clause 21.1, the Replacement Lender and the Replaced Lender
shall enter into one or more Transfer Certificate(s) pursuant to Clause 39.5 (Transfer Certificate) (and with all fees
payable pursuant to Clause 39.5 (Transfer
Certificate) to be paid by the Replacement Lender) pursuant to which
the Replacement Lender shall acquire all the Commitments and all Outstandings
(or, in the case of the replacement of less than all Commitments and
Outstandings of the respective Replaced Lender, all the Commitments and all
Outstandings relating to the Facility with respect to which such Lender is
being replaced) of, and all participations in all then Outstanding L/C Amounts
where the respective Lender is being replaced by, the Replacement Lender and,
in connection therewith, shall pay to (x) the Replaced Lender in respect
thereof an amount equal to the sum (in the relevant currency or currencies) of
(A) an amount equal to the principal of, and all accrued interest on, all then
Outstandings of the respective Replaced Lender under each Facility with respect
to which such Replaced Lender is being replaced, (B) all unpaid amounts (the “Unpaid L/Cs”) under Clause 5.5(b) (Claims under a Documentary Credit) with
respect to which the respective Replaced Lender is being replaced, in each case
that have been funded by (and not reimbursed to) such Replaced Lender at such
time, together with all then unpaid interest with respect thereto at such time
and (C) an amount equal to all accrued, but theretofore unpaid, fees owing to
the Replaced Lender (but only with respect to the relevant Facility or
Facilities, in the case of the replacement of less than all Outstandings then
held by the respective Replaced Lender) pursuant to Clause 17 (Commissions and Fees) and (y) in the case
of the replacement of any Revolving Facility Commitment, the respective L/C
Bank amounts equal to such Replaced Lender’s Proportion of any Unpaid L/Cs
evidenced by such Commitments (which at such time remain Unpaid L/Cs) with
respect to Documentary Credits issued by such L/C Bank to the extent such
amount was not theretofore funded by such Replaced Lender, without duplication;
and
(ii) all obligations of the Borrower
owing to the Replaced Lender in respect of each Facility where such Replaced
Lender is being replaced (other than those specifically described in clause (i)
above in respect of which the assignment purchase price has been, or is
concurrently being, paid) shall be paid in full to such Replaced Lender
concurrently with such replacement.
Upon the execution
of the respective Transfer Certificate(s), the payment of amounts referred to
in sub-paragraphs (i) and (ii) above and recordation of the transfer by the
Agent, (x) the Replacement Lender shall become a Lender hereunder and, unless
the respective Replaced Lender continues to have Term Facility Outstandings or
any Commitment hereunder, the Replaced Lender shall cease to constitute a
Lender hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Clauses 18 (Taxes), 19.1 (Increased Costs), 33 (Borrower’s
Indemnities), 37 (Sharing Among
the Finance Parties) and 40 (Costs
and Expenses)), which shall survive as to such Replaced Lender and
(y) in the case of the replacement of any Revolving Facility Commitment
pursuant to this Clause 21.1, the respective Proportions of the Lenders
relating to the
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Revolving Facility
shall be automatically adjusted at such time to give effect to such
replacement.
21.2 Mitigation
Each Finance Party
shall, if requested by and in consultation with the Parent, take all reasonable
steps to mitigate any circumstances which arise and which would result in any
amount becoming payable under, or pursuant to, or cancelled pursuant to, any of
Clause 18 (Taxes), Clause 19 (Increased Costs) or Clause 20 (Illegality) including (but not limited to)
transferring its rights and obligations under the Finance Documents to another
Affiliate or Facility Office.
21.3 Limitation of Liability
(a) The
Borrower shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it
under Clauses 21.1 (Replacement of Lenders)
and 21.2 (Mitigation).
(b) A
Finance Party is not obliged to take any steps under Clauses 21.1 (Replacement of Lenders) and 21.2 (Mitigation) if, in the opinion of that
Finance Party (acting reasonably), to do so might in any way be prejudicial to
it.
Each Obligor (in
the case of the Parent, both in respect of itself and each member of the Group
and in the case of the other Obligors in respect of itself) makes the
representations and warranties set out in this Clause 22 to each Finance Party
on the date of this Agreement.
22.1 Due Organisation
(a) It is
a corporation duly incorporated under the laws of its jurisdiction of
incorporation with power to enter into those of the Finance Documents to which
it is party and to exercise its rights and perform its obligations under them
and all corporate and other action required to authorise its execution of those
of the Finance Documents to which it is party and its performance of its
obligations under them has been duly taken.
(b) It is
duly qualified and is authorised to do business and, in jurisdictions having a
concept of good standing, is in good standing in each jurisdiction where the
ownership, leasing or operation of its property or the conduct of its business
requires such qualifications.
22.2 No Deduction
Under the laws of its place of incorporation or, if
different, residence in force at the date of this Agreement, it will not be
required to make any deduction for or withholding on account of tax from any
payment it may make under any of the Finance Documents to which it is party to
any party that is a Finance Party on the date of this Agreement.
22.3 Claims Pari Passu
Under the laws of its jurisdiction of incorporation,
and, if different, England and Wales, in force at the date of this Agreement,
the claims of the Finance Parties against it under the
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Finance Documents to which it is party rank and will
rank at least pari passu with the claims of all
its unsecured creditors save those whose claims are preferred by any
bankruptcy, insolvency, liquidation or similar laws of general application.
22.4 No Immunity
In any legal proceedings taken in its jurisdiction of
incorporation and, if different, England and Wales in relation to any of the
Finance Documents to which it is party it will not be entitled to claim for
itself or any of its assets immunity from suit, execution, attachment or other
legal process.
22.5 Governing Law and Judgments
In any legal proceedings taken in its jurisdiction of
incorporation in relation to any of the Finance Documents to which it is party,
the choice of law expressed in such documents to be the governing law of it and
any judgment obtained in such jurisdiction will be recognised and enforced.
22.6 All Actions Taken
All acts, conditions and things required to be done,
fulfilled and performed by it in order:
(a) to
ensure that the obligations expressed to be assumed by it in the Finance
Documents to which it is party are legal, valid and binding; and
(b) to
make the Finance Documents to which it is party admissible in evidence in its
jurisdiction of incorporation and, if different, England and Wales,
have been done, fulfilled and performed.
22.7 No Filing or Stamp Taxes
Under the laws of its place of incorporation and, if
different, England and Wales, in force at the date of this Agreement, it is not
necessary that any of the Finance Documents to which it is party be filed,
recorded or enrolled with any court or other authority in such jurisdiction or
that any stamp, registration or similar tax be paid on or in relation to any of
them other than those filings which are necessary to perfect the Security
created pursuant to the Security Documents and save as stated in the
reservations and qualifications expressed in the Legal Opinions.
22.8 Binding Obligations
The obligations expressed to be assumed by it in the
Finance Documents to which it is party, are legal, valid and binding and
enforceable against it in accordance with the terms thereof and no limit on its
powers will be exceeded as a result of the borrowings, grant of security or
giving of guarantees contemplated by such Finance Documents or the performance
by it of any of its obligations thereunder.
22.9 No Winding-up
No member of the Group has taken any corporate action
nor have any other steps been taken or legal proceedings been started or (to
the best of its knowledge and belief) threatened
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against any member of the Group, for its winding-up,
dissolution, administration or for the appointment of a receiver,
administrator, administrative receiver, conservator, custodian, trustee or
similar officer of it or of any or all of its assets or revenues save for any
solvent winding-up or reorganisation.
22.10 No Default
(a) No
Default is continuing or might reasonably be expected to result from the making
of any Advance or the issuing of any Documentary Credit.
(b) No
other event or circumstance is outstanding or has occurred which constitutes or
would (with the passage of time, the giving of notice, the making of any
determination or any combination of the foregoing) constitute a default under
any agreement or instrument which is binding on it or any of its Subsidiaries
or to which its (or its Subsidiaries’) assets are subject which is reasonably
likely to have a Material Adverse Effect.
22.11 No Material Proceedings
(a) No
litigation, arbitration, action or administrative proceeding of or before any
court, arbitral body, or agency which would or is reasonably likely to have a
Material Adverse Effect has been started or, to the best of its knowledge, is
threatened or is pending against it or any member of the Group, other than
litigation action or administrative proceedings commenced prior to the date of
this Agreement, full details of which have been provided in writing to the
Agent prior to the date of this Agreement and which are set out in Part IV of
Schedule 10 (Existing Proceedings).
(b) No
labour disputes are current or, to the best of its knowledge, threatened
against it or any member of the Group which would or is reasonably likely to
have a Material Adverse Effect.
22.12 Original Financial Statements
Its Original Financial Statements (other than the Pro
Forma Financial Statements) were prepared in accordance with GAAP and
consistently applied (unless and to the extent expressly disclosed to the Agent
in writing to the contrary before the date of this Agreement) and in the case of audited financial
statements present a true and fair view of, or (in the case of unaudited
financial statements) fairly present, the consolidated financial position of
such Obligor or, as the case may be, the Group at the date as of which they
were prepared and/or (as appropriate) the results of operations and changes in
financial position during the period for which they were prepared.
22.13 No Material Adverse Effect
Since publication of its Original Financial Statements
there has been no material adverse change in its business or financial
condition or, in the case of the Parent, of any member of the Group or the
Group (taken as a whole) and no event or series of events has occurred, in each
case which has or which is reasonably likely to have a Material Adverse Effect.
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22.14 No Undisclosed Liabilities
As at the date as of which its Original Financial
Statements were prepared, neither it, its Subsidiaries nor, as the case may be,
any member of the Group had any material liabilities (contingent or otherwise)
which were not disclosed thereby (or by the notes thereto) or reserved against
therein and the Group had no material unrealised or anticipated losses arising
from commitments entered into by it which were not so disclosed or reserved
against.
22.15 Information Memorandum
In the case of the Parent only:
(a) to the
best of its knowledge and belief having made all reasonable and proper
enquiries, all statements of fact relating to the assets, financial condition
and operations of the Group contained in the Information Memorandum and the
Agreed Business Plan are true, complete and accurate in all material respects
as at their respective dates;
(b) the
opinions and views expressed in the Information Memorandum and the Agreed
Business Plan represent the honestly held opinions and views of the Parent and
were arrived at after careful consideration and were based on reasonable
grounds as at their respective dates;
(c) all
projections and forecasts contained in the Information Memorandum and the
Agreed Business Plan are based upon assumptions (including, without limitation,
assumptions as to the future performance of the business, inflation, price
increases and efficiency gains) which the Parent has carefully considered and
considers to be fair and reasonable as at their respective dates; and
(d) the
Information Memorandum and the Agreed Business Plan did not omit to disclose or
take into account any matter known to the Parent after due and careful enquiry where
failure to disclose or take into account such matter would result in the
Information Memorandum and the Agreed Business Plan being misleading in any
material respect as at the date thereof.
22.16 Projections
In the case of the Parent only:
(a) to the
best of its knowledge and belief having made all reasonable and proper
enquiries, all statements of fact relating to the assets, financial condition
and operations of the Group contained in the current Projections are true,
complete and accurate in all material respects as at their respective dates;
(b) the
opinions and views expressed in the current Projections represent the honestly
held opinions and views of the Parent and were arrived at after careful
consideration and were based on reasonable grounds as at their respective
dates;
(c) all
projections and forecasts contained in the current Projections are based upon
assumptions (including, without limitation, assumptions as to the future
performance of the business, inflation, price increases and efficiency gains)
which the Parent has
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carefully considered and considers to be fair
and reasonable as at their respective dates; and
(d) the
current Projections did not omit to disclose or take into account any matter
known to the Parent after due and careful enquiry where failure to disclose or
take into account such matter would result in the current Projections being
misleading in any material respect as at the date thereof.
22.17 Indebtedness and Liens
(a) Save
as permitted under Clause 26.4 (Indebtedness),
neither it nor any member of the Group has incurred any Indebtedness.
(b) Save
as permitted under Clause 26.1 (Liens), no Lien
exists over all or any of the present or future revenues or assets of any
member of the Group.
22.18 Execution of Finance Documents
Its execution of the Finance Documents to which it is
party and its exercise of its rights and performance of its obligations
thereunder do not and will not conflict:
(a) with
any agreement, mortgage, bond or other instrument or treaty which is binding
upon it, any of its Subsidiaries or any of the assets of any of its
Subsidiaries or, except as provided in the Security Documents, result in a
requirement for the creation of any Lien over any such asset, in each case, in
any way;
(b) with
its or any of its Subsidiaries’ constitutional documents; or
(c) with
any applicable Law or regulation.
22.19 Power and Authority
It has the power and authority to enter into, perform
and deliver, and has taken all necessary action to authorise the entry into,
performance and delivery of, the Finance Documents to which it is a party and
the transactions contemplated by those Finance Documents.
22.20 Structure
(a) The
Group Structure Chart is a complete and accurate representation of the
structure of the Group.
(b) Each
Obligor other than the Parent is a wholly-owned Subsidiary of the Parent.
22.21 Environmental Matters
(a) It
has, to the best of its knowledge and belief:
(i) complied
with all Environmental Laws to which it may be subject;
(ii) obtained
all Environmental Licences required or desirable in connection with its
business; and
(iii) complied
with the terms of all such Environmental Licences,
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in each case where
failure to do so would or would be reasonably likely to have a Material Adverse
Effect.
(b) There
is no Environmental Claim pending or threatened against it, and to the best of
its knowledge and belief there are no past or present acts, omissions, events
or circumstances which could form the basis of any Environmental Claim against
it, which would or would be reasonably likely to have a Material Adverse
Effect.
(c) No:
(i) property
currently or previously owned, leased, occupied or controlled by it is
contaminated with any Hazardous Materials; and
(ii) discharge,
release, leaking, migration or escape of any Hazardous Materials into the
Environment has occurred or is occurring on, under or from that property,
in each case to the best
of its knowledge and belief in circumstances where the same would or would be
reasonably likely to have a Material Adverse Effect.
22.22 Necessary Authorisations
The Necessary Authorisations required by it, are in
full force and effect, and it is in compliance with the material provisions of
each such Necessary Authorisation relating to it and, to the best of its
knowledge, none of the Necessary Authorisations relating to it are the subject
of any pending or threatened proceedings or revocation.
22.23 Intellectual Property
(a) The
Intellectual Property Rights owned by or licensed to it are all the material
Intellectual Property Rights required by it in order to carry out, maintain and
operate its business, properties and assets, and so far as it is aware, it does
not infringe, in any way any Intellectual Property Rights of any third party
save, in each case, where the failure to own or license the relevant
Intellectual Property Rights or any infringement thereof will not have a
Material Adverse Effect.
(b) So far
as it is aware, it and each of its Subsidiaries has taken all reasonable formal
and procedural actions (including payment of fees) required to maintain any
registered Intellectual Property Rights owned by it, which are material in the
context of the Group Business or which are required by it (or such Subsidiary)
in order for it (or such Subsidiary) to carry on its (or such Subsidiary’s)
business in all material respects as contemplated in the Agreed Business Plan,
in full force and effect.
22.24 Ownership of Assets
Save to the extent disposed of without breaching the
terms of any of the Finance Documents with effect from and after the Initial
Borrowing Date and save where the contrary would not have nor would be
reasonably likely to have a Material Adverse Effect, it and each of its
Subsidiaries has good title to or valid leases or licences of or is otherwise
entitled to use and permit other members of the Group to use all assets
necessary to conduct the Group Business taken as a whole as it is conducted at
the Initial Borrowing Date.
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22.25 Payment of Taxes
(a) There
is no tax audit now pending or threatened in writing by any tax authority that
may result in a material tax liability.
(b) It:
(i) has
paid all material taxes imposed upon it or its assets within the time period
allowed therefor without incurring tax penalties or creating any Lien;
(ii) is not
overdue in the filing of any material tax returns and such tax returns are accurate
and complete in all material respects;
(iii) has no
claims which are being, or are reasonably likely to be, asserted against it
with respect to taxes; and
(iv) has not
entered into an agreement or waiver or been requested to enter into an
agreement or waiver extending any statute limitations with respect to any
material tax liability,
except to
the extent that the same are being contested in good faith on the basis of
appropriate professional advice and for which adequate reserves have been
established on the books and records of the relevant Obligor.
22.26 Non-U.S. Pension Plans
(a) Any
Non- U.S. Pension Plan operated by it for the benefit of any member of the
Group and/or any of its employees is funded substantially in accordance with
the governing provisions of such scheme and all applicable laws based on the
actuarial assumptions used in the most recent valuation of such Non-U.S.
Pension Plan and such Non-U.S. Pension Plan does not have any material
liability in respect of any such plan and there are no circumstances that would
reasonably be likely to give rise to a Material Adverse Effect.
(b) It is
in compliance in all material respects with all applicable laws and contracts
relating to any Non-U.S. Pension Plan operated by it or in which it participates
except where such failure to comply would not be reasonably likely to result in
a Material Adverse Effect.
22.27 Compliance with ERISA
(a) Part V
of Schedule 10 (Plans) sets
out each Plan.
(b) Each
of the following statements is accurate and true except where such statement,
aggregated with all other such statements, is not reasonably likely to have a
Material Adverse Effect:
(i) each
Plan (and each related trust, insurance contract or fund, if any) is in
compliance with its terms and with all applicable laws, including without
limitation ERISA and the Code;
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(ii) each
Plan (and each related trust, if any) which is intended to be qualified under
section 401(a) of the Code has received a determination letter from the
Internal Revenue Service to the effect that it meets the requirements of
sections 401(a) and 501(a) of the Code;
(iii) no
Reportable Event has occurred in relation to a Plan during the five-year period
immediately preceding each Advance;
(iv) no
Multiemployer Plan (as defined in section 4001(a)(3) of ERISA) is
insolvent or in reorganisation;
(v) no
Plan has an Unfunded Current Liability;
(vi) no Plan
which is subject to section 412 of the Code or section 302 of ERISA
has an accumulated funding deficiency (within the meaning of such sections of
the Code or ERISA) or during the five-year period immediately preceding each
Advance has applied for or received a waiver of an accumulated funding
deficiency or an extension of any amortisation period, within the meaning of
section 412 of the Code or section 303 or 304 of ERISA;
(vii) during
the five-year period immediately preceding each Advance, all contributions
required to be made with respect to a Plan or Multiemployer Plan have been
timely made or accrued or otherwise properly reserved on its balance sheet
within the time limit therefor;
(viii) neither
it nor any other member of the Group nor any ERISA Affiliate has incurred
during the five-year period immediately preceding the Initial Borrowing Date
any liability (including any indirect, contingent or secondary liability) to or
on account of a Plan or Multiemployer Plan pursuant to section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
section 401(a)(29), 4971 or 4975 of the Code or is reasonably likely to
incur any such liability under any of the foregoing sections with respect to
any Plan or Mutliemployer Plan;
(ix) no
condition exists which presents a risk to it or any other member of the Group
or any ERISA Affiliate of incurring a liability to or on account of a Plan or
Multiemployer Plan pursuant to the foregoing provisions of ERISA and the Code;
(x) no
proceedings instituted to terminate, or appoint a trustee to administer, any
Plan which is subject to Title IV of ERISA are pending;
(xi) no
action, suit, proceeding, hearing, audit or investigation with respect to the
administration, operation or the investment of assets of any Plan (other than
routine claims for benefits) is pending, or, to the best of its knowledge,
reasonably expected or threatened;
(xii) each
group health plan (as defined in section 607(1) of ERISA or
section 4980B(g)(2) of the Code) which covers or has covered employees or
former employees of any member of the Group or any ERISA Affiliate has at all
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times been operated in compliance with the
provisions of Part 6 of subtitle B of Title I of ERISA and section 4980B
of the Code; and
(xiii) no lien
imposed under the Code or ERISA on its assets or the assets of any other member
of the Group or any ERISA Affiliate exists or is reasonably likely to arise on
account of any Plan or Multiemployer Plan.
(c) Using
actuarial assumptions and computation methods consistent with Part 1 of
subtitle E of Title IV of ERISA, the aggregate liabilities of any member of the
Group and any ERISA Affiliate to all Multiemployer Plans in the event of a
complete withdrawal therefrom, as of the close of the most recent fiscal year
of each such Multiemployer Plan ended prior to the date of the most recent
Advance, would not be reasonably expected to result in a Material Adverse
Effect.
(d) The
Parent and its Subsidiaries do not maintain or contribute to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) which provides
benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) or any Plan the obligations with respect to which
is reasonably likely to result in a Material Adverse Effect.
22.28 Security
It is the legal and beneficial owner of all assets and
other property which it purports to charge, mortgage, pledge, assign or
otherwise secure pursuant to each Security Document and those Security
Documents to which it is a party create and give rise to valid and effective
Security having the ranking expressed in those Security Documents.
22.29 Investment Company Act
In the case of the Borrower only, neither it nor any
of its Subsidiaries is an “investment company” or a company “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940.
22.30 Margin Stock
No Advance will be used to purchase or carry any
Margin Stock (as defined in Regulation U of the Board of Governors of the
Federal Reserve System) or to extend credit for the purpose of purchasing or
carrying any Margin Stock. Neither the
making of any Advance nor the use of the proceeds of it will violate or be
inconsistent with the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
22.31 Public Utility Holding Company Act
Neither the Borrower nor any of its Subsidiaries is a
“holding company” or a “subsidiary company” of a “holding company” or an
“affiliate” of a “holding company” or of a “subsidiary company” of a “holding
company” within the meaning of the Public Utility Holding Company Act of 1935.
22.32 Insurance
On the Initial Borrowing Date, each member of the
Group is adequately insured for the purposes of its business with reputable
underwriters or insurance companies against such
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risks and to such extent as is usual for prudent
companies carrying on such a business (including, but not limited to, loss of
earnings, business interruption and directors’ and officers’ liability).
22.33 Labour Relations
(a) Neither
it nor any other member of the Group is engaged in any unfair labour practice
which might, either individually or in aggregate, have a Material Adverse
Effect.
(b) There
is (i) no unfair labour practice complaint pending against it or any other
member of the Group, or to its knowledge, threatened against any of them,
before the National Labor Relations Board (or any non-U.S. equivalent of it),
and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is pending against it or any other member of
the Group or, to its knowledge, threatened against any of them, (ii) no
material strike, labour dispute, slowdown or stoppage pending against it or any
other member of the Group or, to its knowledge, threatened against it or any
other member of the Group, and (iii) no union representation question with
respect to its employees or the employees of any other member of the Group,
except (with respect to any matter specified in this paragraph (b), either
individually or in the aggregate) such as will not have a Material Adverse
Effect.
22.34 Subsidiaries
Part VI of Schedule 10 (Material Subsidiaries) correctly sets out
all the Material Subsidiaries as at the Effective Date.
22.35 Benefits of Subordination Provisions
(a) The
subordination provisions contained in the Senior Subordinated Notes and in the
other Senior Subordinated Note Documents are enforceable against the respective
Obligors party thereto and the holders of the Senior Subordinated Notes, and
all Secured Obligations are within the definition of “Senior Debt” or
“Guarantor Senior Debt”, as the case may be, included in such subordination
provisions.
(b) The
subordination provisions contained in the Senior Subordinated Convertible Bonds
and in the other Senior Subordinated Convertible Bond Documents are enforceable
against the respective Obligors party thereto and the holders of the Senior
Subordinated Convertible Bonds, and all Secured Obligations are within the
definition of “Senior Debt” or “Guarantor Senior Debt”, as the case may be,
included in such subordination provisions.
(c) On and
after the execution and delivery thereof, the subordination provisions
contained in any agreement or instrument relating to Permitted Subordinated
Indebtedness will be enforceable against the debtor thereunder and the holders
of such Indebtedness.
22.36 Repetition
Each Repeating
Representation is deemed to be made by each Obligor making such Repeating
Representation on the date of this Agreement in relation to itself and its
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Subsidiaries and by the Parent
in relation to itself and the other members of the Group by reference to the
facts and circumstances then existing on:
(a) each
Utilisation Date and on the first day of each Interest Period or, as the case
may be, Term; and
(b) in the
case of any Acceding Guarantor on the day the same becomes (or if earlier, is
required to have become) an Acceding Guarantor.
Each Obligor hereby covenants
and agrees that on and after the Initial Borrowing Date and until the aggregate
amount of all the Commitments and all Documentary Credits have terminated and
the Secured Obligations, together with interest, fees and all other obligations
incurred hereunder and thereunder (other than indemnity and other similar obligations
that are not then due and payable), are paid in full:
23.1 Information Covenants
Each Obligor will maintain,
for itself and each of its Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and the Borrower will furnish to the
Agent (with a sufficient number of copies for each of the Agent and Lenders):
(a) Monthly
Reports: Within 35 days (or 50 days in
the case of the last fiscal month of any fiscal quarter of the Parent) after
the end of each fiscal month of the Parent, the unaudited accounts of the Group
for that fiscal month (showing line items for revenues, net sales, gross
profit, operating profit and depreciation and amortisation), in each case on a
consolidated basis for the respective fiscal month and for the elapsed portion
of the fiscal year ended with the last day of such fiscal month, in each case
setting forth comparative figures for the related month in the previous fiscal
year and the comparable figures for such fiscal month as set forth in the
respective Projections delivered pursuant to paragraph (d) (Projections) below, all of which
statements shall be in form reasonably satisfactory to the Agent provided that
(i) in the event the Consolidated Leverage Ratio is less than or equal to
3.00:1.00, no such accounts need be furnished and (ii) in the event the
Consolidated Leverage Ratio is greater than 3.00:1.00, the above accounts shall
be, or continue to be, furnished as abovementioned from the next most recent
month end falling closest to the date of the relevant Compliance Certificate
setting out such Consolidated Leverage Ratio.
(b) Quarterly
Financial Statements: Within 50 days
after the close of each of the first three quarterly accounting periods in each
fiscal year of the Parent:
(i) the
unaudited consolidated quarterly financial statements of the Group for that
quarterly accounting period and for the elapsed portion of the fiscal year
ended with the last day of such quarterly accounting period including data of
the Parent and its Consolidated Subsidiaries compiled by segment relating to
net sales, operating results, operating result margins, invested capital and
return on capital employed, in each case, setting forth comparative figures for
the related periods in the prior fiscal year and the Projections relating to
such quarterly accounting period; and
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(ii) management’s
discussion and analysis of the important operational and financial developments
during the fiscal quarter and year-to-date periods, and in the event the Parent
is a Reporting Company under the Securities Exchange Act, the furnishing of the
Parent’s Form 10-Q Report filed with the SEC for such quarterly accounting
period,
all of which shall
be certified by an Authorised Representative of the Parent, subject to normal
year-end audit adjustments.
(c) Annual
Financial Statements: Within 95 days
after the close of each fiscal year of the Parent:
(i) the
audited consolidated financial statements of the Parent and its Consolidated
Subsidiaries as at the end of such fiscal year setting forth comparative
figures for the preceding fiscal year and the projected figures for such fiscal
year as set forth in the respective Projections and certified (with an
unqualified audit report) by PricewaterhouseCoopers, Ernst & Young, KPMG,
Deloitte & Touche or such other independent certified public accountants of
recognised national standing reasonably acceptable to the Agent, together with
a Compliance Certificate of such accounting firm stating that in the course of
its regular audit of the financial statements of the Parent and its
Subsidiaries, which audit was conducted in accordance with generally accepted
auditing standards, such accounting firm obtained no knowledge insofar as related
to accounting matters of any Default or Event of Default which has occurred and
is continuing or, if in the opinion of such accounting firm such a Default or
Event of Default has occurred and is continuing, a statement as to the nature
thereof and including data of the Parent and its Consolidated Subsidiaries
compiled by segment relating to net sales, operating results, operating result
margins, invested capital and return on capital employed; and
(ii) management’s
discussions and analysis of the important operational and financial
developments during such fiscal year, and in the event the Parent is a
Reporting Company under the Securities Exchange Act, the furnishing of the
Parent’s Form 10-K Report filed with the SEC for such annual accounting periods,
all of which shall
be certified by an Authorised Representative of the Parent, subject to normal
year-end audit adjustments.
(d) Projections: No later than (i) ten days
after the completion thereof and (ii) 95 days after the close of each fiscal
year for the Parent and its Subsidiaries, updated projections (from the
Projections contained in the Information Memorandum) prepared on a quarterly
basis for the immediately succeeding two fiscal years commencing at the close
of the fiscal year referenced above, all prepared in a manner consistent with
the Projections (prepared for the purposes of the Information Memorandum) and
which in any event shall (A) provide consolidated line items consistent with
those which will be reported in the monthly reports referenced in paragraph (a)
(Monthly Reports) and (B) contain
information broken down by segment, by quarter, as is provided in the
Projections. All Projections delivered
pursuant to this paragraph (d) shall be in form, scope and substance reasonably
satisfactory to the Agent acting reasonably and with at least the same level of
detail as
122
provided
in the Information Memorandum. The
Parent shall further provide to the Agent, promptly upon becoming aware, details
of any material changes in the Projections from time to time.
(e) Officer’s
Certificates:
At the time of the delivery of the financial statements provided for in
Clauses 23.1(a) (Monthly Reports),
(b) (Quarterly Financial Statements)
and (c) (Annual Financial Statements)
a Compliance Certificate of an Authorised Representative of the Parent to the
effect that, to the best of such Authorised Representative’s knowledge, no
Default or Event of Default has occurred and is continuing or, if any Default or
Event of Default has occurred and is continuing, specifying the nature and
extent thereof, which certificate shall, in the case of any such financial
statements delivered pursuant to Clauses 23.1(b) (Quarterly Financial Statements) and (c) (Annual Financial Statements), set forth
the calculations required to establish whether the Parent was in compliance
with the provisions of Clauses 24 (Financial
Condition), 25.2 (Conduct of
Business), 25.7 (Additional
Security and Further Assurances), 26.2 (Consolidation, Merger, Purchase or Sale of Assets, etc.),
26.3 (Restricted Payments), 26.4
(Indebtedness), 26.5 (Advances, Investments and Loans) and 26.13
(Assets and EBITDA Attributable to Qualified
Obligors)) at the end of such fiscal quarter or year, as the case
may be.
(f) Notice
of Default or Litigation: After an officer of any Obligor obtains
knowledge thereof, (i) promptly and in any event within three Business Days
give notice of the occurrence of any event which constitutes a Default or an
Event of Default and (ii) promptly and in any event within five Business Days
give notice of any litigation or governmental investigation or proceeding
pending (A) against the Parent or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect, (B) with respect to
any Indebtedness which is individually in excess of €15,000,000 (or its
equivalent in other currencies) of the Parent or any of its Subsidiaries or
(C) with respect to any Finance Document.
(g) Other
Reports and Filings: Promptly, copies of all other financial
information, reports, proxy materials and other information, if any, which the
Parent or any of its Subsidiaries shall file with the SEC or deliver to holders
of its Indebtedness (with an outstanding principal amount in excess of
€25,000,000 (or its equivalent in other currencies)) pursuant to the terms of
the documentation governing such Indebtedness (or any trustee, agent or other
representative therefor).
(h) New
Subsidiaries; Etc:
As soon as practicable and in any event within 50 days after the close
of each of the first three fiscal quarters of each fiscal year of the Parent
and within 95 days after the close of each fiscal year of the Parent:
(i) a
list showing each Subsidiary of the Parent established, created or acquired
during the respective fiscal quarter or year, and each Subsidiary which has had
any Equity Interests transferred during the respective fiscal quarter or year
(in each case describing in reasonable detail the respective transfer of Equity
Interests), in each case naming the direct owner of all Equity Interests in
such Subsidiary and describing such Equity Interests in reasonable detail, and
certifying that each such Subsidiary, and each Obligor which owns any Equity
Interests therein, has taken all actions, if any, required pursuant to Clause
25.7 (Additional Security and Further
Assurance) and the relevant Security
123
Documents
and certifying the Parent’s compliance with the provisions of Clause 25.2 (Conduct of Business); and
(ii) a list
of Material Subsidiaries stating that the Subsidiaries so listed constitute
Material Subsidiaries and certifying that such person has acceded or will in
accordance with Clause 25.7 (Additional
Security and Further Assurances) accede as a Guarantor.
(i) Annual
Meetings with Lenders: At the request of the Agent, the Parent
shall, within 120 days after the close of each fiscal year (beginning with the
fiscal year ending in 2003) of the Parent, hold a meeting, at a time and place
selected by the Parent and acceptable to the Agent, with all of the Lenders
(then available) to review the financial results of the previous fiscal year
and the financial condition of the Parent and its Subsidiaries and the budgets
presented for the current fiscal year of the Parent and its Subsidiaries.
(j) Other
Information:
From time to time, such other information or documents (financial or
otherwise) with respect to the Parent or its Subsidiaries as the Agent (whether
acting on its own or at the request of any Lender) may reasonably request in
writing.
23.2 Books, Records and Inspections
Each
Obligor shall (and the Parent shall procure that each member of the Group
will), at reasonable times, on reasonable prior notice and to a reasonable
extent subject only to the provision of any confidentiality undertaking
required by such Obligor (acting reasonably), afford (a) at any time before a
Default or Event of Default has occurred, and is continuing, the Agent or any
professional adviser to the Agent or representative of the Agent or (b) at any
time after a Default or Event of Default has occurred or is continuing, any
Finance Party, any professional advisor to such Finance Party, or
representative of such Finance Party (an “Inspecting
Party”) access to, and permit such Inspecting Party to inspect or
observe, such part of the Group Business as is owned or operated by such
Obligor and to have access to books, records, accounts, documents, computer
programmes, data or other information in the possession of or available to such
Obligor or member of the Group and to take such copies as may be considered
appropriate by such Inspecting Party.
23.3 Insurance
The
Parent shall (if so requested by the Agent) supply the Agent with copies of all
material insurance policies or certificates of insurance in respect thereof or
(in the absence of the same) such other evidence of the existence of such
policies as may be reasonably acceptable to the Agent and shall, in any event,
notify the Agent of any material changes to its insurance cover made from time
to time.
23.4 ERISA
(a) As
soon as possible and, in any event, within 15 days after the Parent, any
Subsidiary of the Parent or any ERISA Affiliate knows or has reason to know of
the occurrence of any of the following, the Parent will deliver to the Agent a
certificate of the chief financial officer or treasurer of the Parent setting
forth details as to such occurrence and the action, if any, that the Parent,
such Subsidiary or such ERISA Affiliate is
124
required
or proposes to take, together with any notices required or proposed to be given
to or filed with or by the Parent, such Subsidiary, such ERISA Affiliate, the
PBGC, a Plan or Multiemployer Plan participant or the Plan administrator with
respect thereto:
(i) that
a Reportable Event has occurred;
(ii) that a
contributing sponsor (as defined in section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA is subject to the advance reporting requirement of
PBGC Regulation section 4043.61 (without regard to subparagraph (b)(1)
thereof), and an event described in subsection .62 (unless such reporting
requirement is waived), .63, .64, .65, .66, .67 or .68 of PBGC Regulation
Section 4043 is reasonably expected to occur with respect to such Plan within
the following 30 days;
(iii) that an
accumulated funding deficiency (within the meaning of section 412 of the Code
or section 302 of ERISA) has been incurred or an application is reasonably
likely to be or has been made to the Secretary of the Treasury for a waiver or
modification of the minimum funding standard (including any required instalment
payments) or an extension of any amortisation period under section 412 of the
Code or section 303 or 304 of ERISA with respect to a Plan or Multiemployer
Plan;
(iv) that a
contribution required to be made by the Parent or a Subsidiary or an ERISA
Affiliate to a Plan or Multiemployer Plan or Non-U.S. Pension Plan has not been
timely made except where any such failure to make a timely contribution is not
reasonably likely to result in a material liability;
(v) that
a Plan or Multiemployer Plan has been or is reasonably likely to be terminated
(other than a standard termination pursuant to section 4041(b) of ERISA),
reorganised, partitioned or declared insolvent under Title IV of ERISA;
(vi) that a
Plan or Multiemployer Plan has an Unfunded Current Liability giving rise to a
lien under ERISA or the Code;
(vii) that
proceedings are reasonably likely to be or have been instituted to terminate or
appoint a trustee to administer a Multi Employer Plan;
(viii) that a
proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan;
(ix) that
the Parent, any Subsidiary of the Parent or any ERISA Affiliate is reasonably
likely to incur a material liability (including any indirect, contingent, or
secondary liability) to or on account of the termination of or withdrawal from
a Plan or Multiemployer Plan or otherwise under section 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or with respect to a Plan or otherwise under
section 401(a)(29), 4971, 4975 or 4980 of the Code or section 409 or 502(i) or
502(l) of ERISA or with respect to a group health plan (as defined in section
607(1) of ERISA or section 4980B(g)(2) of the Code) under section 4980B of the
Code; or
125
(x) that
the Parent or any Subsidiary of the Parent is reasonably likely to incur a
liability that, when aggregated with all other such liabilities, will exceed
$5,000,000 pursuant to any employee welfare benefit plan (as defined in Section
3(1) of ERISA) that provides benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or pursuant to any
Plan or Non-U.S. Pension Plan in addition to any liability existing on the
Effective Date pursuant to any such welfare or pension plan or plans.
(b) The
Parent will deliver to the Agent copies of any records, documents or other
information that must be furnished to the PBGC with respect to any Plan
pursuant to Section 4010 of ERISA.
(c) The
Parent will deliver to the Agent a complete copy of the annual report (Form
5500) of each Plan (including, to the extent required, the related financial
and actuarial statements and opinions and other supporting statements,
certifications, schedules and information) required to be filed with the
Internal Revenue Service.
(d) In
addition to any certificates or notices delivered to the Agent pursuant to
paragraph (a) above copies of annual reports and any records, documents or
other information required to be furnished to the PBGC or any other government
agency, and any material notices received by the Parent, any Subsidiary of the
Parent or any ERISA Affiliate (i) from any government agency with respect to
any Plan or Non-U.S. Pension Plan or (ii) received from any government agency
or plan administrator or sponsor or trustee with respect to any Multiemployer
Plan, shall be delivered to the Agent no later than 15 days after the date such
notice has been received by the Parent, such Subsidiary or such ERISA
Affiliate, as applicable.
23.5 “Know Your Client Checks”
Each Acceding Guarantor or
existing Obligor shall promptly upon the request of the Agent or any Lender
(and in any event within 90 days of such request) and each Lender shall
promptly upon the request of the Agent supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the Agent (for
itself or on behalf of any Lender) or any Lender (for itself or on behalf of
any prospective new Lender) in order for the Agent, such Lender or any
prospective new Lender to carry out and be satisfied with the results of all
necessary “know your client” or other checks in relation to the identity of any
person that it is required to carry out in relation to the transactions
contemplated in the Finance Documents.
24.1 Capital Expenditures
(a) The
Parent and the Borrower will not permit any of its Subsidiaries (other than a
member of the CEAL Group to which the CEAL Exception Conditions apply) to, make
any Capital Expenditures, except that the Parent and its Subsidiaries may make
Capital Expenditures (in each fiscal year of the Parent, a “Capital Expenditure Allowance”) in aggregate not exceeding for any fiscal year of the Parent
(beginning with its fiscal year ended closest to 31 December 2004) the amount
(as adjusted as provided in paragraph (c)) set forth below opposite such fiscal
year:
126
|
Fiscal Year of Parent
Ended In
|
|
Amount
|
|
|
|
|
|
|
|
2004
|
|
€
|
92,000,000
|
|
|
|
|
|
|
|
2005
|
|
€
|
96,000,000
|
|
|
|
|
|
|
|
2006
|
|
€
|
108,000,000
|
|
|
|
|
|
|
|
2007
|
|
€
|
120,000,000
|
|
|
|
|
|
|
|
2008
|
|
€
|
124,000,000
|
|
|
|
|
|
|
|
2009
|
|
€
|
128,000,000
|
|
|
|
|
|
|
|
2010
|
|
€
|
132,000,000
|
|
provided that, in any fiscal year of the
Parent, up to 25 per cent. of the unutilised amount of the Capital Expenditure
Allowance for such fiscal year may be carried forward to the following fiscal
year and aggregated with the Capital Expenditure Allowance of that following
fiscal year, such aggregated amount being the Capital Expenditure Allowance for
that following fiscal year.
(b) In
addition to the Capital Expenditures Allowances permitted pursuant to paragraph
(a) above, the Parent and its Subsidiaries may make additional Capital
Expenditures as follows:
(i) the
reinvestment of proceeds of Recovery Events that are not required to be applied
to prepay the Outstandings pursuant to paragraph (d) (Insurance Claims) of Clause 13.1 (Repayment from Net Proceeds); and
(ii) the
reinvestment of Net Sale Proceeds from asset sales pursuant to the first
proviso to paragraph (b) (Asset Sale)
of Clause 13.1 (Repayment from Net Proceeds).
(c) At the
time any €5 Million Permitted Acquisition is consummated, the respective
Capital Expenditure Allowances shall be deemed automatically adjusted on a
prospective basis as follows:
(i) for
each fiscal year which begins and ends after the date on which a €5 Million
Permitted Acquisition has been consummated, the Capital Expenditure Allowance
for that fiscal year shall be increased by an amount equal to 110 per cent. of
the Capital Expenditures actually made by the entity being acquired pursuant to
the respective €5 Million Permitted Acquisition for the twelve months prior to
the date of the consummation of the respective €5 Million Permitted
Acquisition; and
(ii) for
each fiscal year of the Parent during which a €5 Million Permitted Acquisition
is being consummated, the Capital Expenditure Allowance for that fiscal year
shall be increased by an amount equal to the product of (x) the
127
amount
of the increase for a given fiscal year of the Parent beginning and ending
after the date which the respective €5 Million Permitted Acquisition was
consummated as provided in sub-paragraph (i) above and (y) a fraction the
numerator of which is the number of days remaining in the fiscal year of the
Parent during which the respective €5 Million Permitted Acquisition was
consummated and the denominator of which is 365 or 366, as the case may be.
24.2 Ratios
(a) Consolidated
Interest Coverage Ratio.
The Parent and the Borrower
agree that it will not permit the Consolidated Interest Coverage Ratio for any
Test Period, in each case taken as one accounting period, ended on the last day
of a fiscal quarter of the Parent described below to be less than the amount
set forth opposite such fiscal quarter below:
|
Fiscal Quarter Ended Closest To
|
|
Ratio
|
|
|
|
|
|
31 March 2004
|
|
2.40:1.00
|
|
30 June 2004
|
|
2.40:1.00
|
|
30 September 2004
|
|
2.40:1.00
|
|
31 December 2004
|
|
2.40:1.00
|
|
|
|
|
|
31 March 2005
|
|
2.40:1.00
|
|
30 June 2005
|
|
2.45:1.00
|
|
30 September 2005
|
|
2.55:1.00
|
|
31 December 2005
|
|
2.65:1.00
|
|
|
|
|
|
31 March 2006
|
|
2.75:1.00
|
|
30 June 2006
|
|
2.90:1.00
|
|
30 September 2006
|
|
3.05:1.00
|
|
31 December 2006
|
|
3.20:1.00
|
|
|
|
|
|
31 March 2007
|
|
3.30:1.00
|
|
30 June 2007
|
|
3.35:1.00
|
|
30 September 2007
|
|
3.45:1.00
|
|
31 December 2007
|
|
3.50:1.00
|
|
|
|
|
|
31 March 2008 and thereafter.
|
|
3.50:1.00
|
(b) Consolidated
Fixed Charge Coverage Ratio
The Parent and the Borrower
agree that it will not permit the Consolidated Fixed Charge Coverage Ratio for
any Test Period, in each case taken as one accounting period, ended on the last
day of any fiscal quarter of the Parent described below to be less than the
amount set forth opposite such fiscal quarter below:
128
|
Fiscal Quarter Ended Closest To
|
|
Ratio
|
|
|
|
|
|
31 March 2004
|
|
1.05:1.00
|
|
30 June 2004
|
|
1.05:1.00
|
|
30 September 2004
|
|
1.05:1.00
|
|
31 December 2004
|
|
1.05:1.00
|
|
|
|
|
|
31 March 2005
|
|
1.05:1.00
|
|
30 June 2005
|
|
1.05:1.00
|
|
30 September 2005
|
|
1.05:1.00
|
|
31 December 2005
|
|
1.10:1.00
|
|
|
|
|
|
31 March 2006
|
|
1.10:1.00
|
|
30 June 2006
|
|
1.10:1.00
|
|
30 September 2006
|
|
1.15:1.00
|
|
31 December 2006
|
|
1.15:1.00
|
|
|
|
|
|
31 March 2007
|
|
1.15:1.00
|
|
30 June 2007
|
|
1.15:1.00
|
|
30 September 2007
|
|
1.15:1.00
|
|
31 December 2007
|
|
1.15:1.00
|
|
|
|
|
|
31 March 2008 and thereafter
|
|
1.15:1.00
|
(c) Maximum
Consolidated Leverage Ratio
The Parent and the Borrower
agree that it will not permit the Consolidated Leverage Ratio for any Test
Period ended on the last day of any fiscal quarter of the Parent described
below to be greater than the ratio set forth opposite such period below:
|
Fiscal Quarter Ended Closest To
|
|
Ratio
|
|
|
|
|
|
31
December 2003
|
|
4.45:1.00
|
|
31 March 2004
|
|
4.45:1.00
|
|
30 June 2004
|
|
4.45:1.00
|
|
30
September 2004
|
|
4.45:1.00
|
|
31 December 2004
|
|
4.45:1.00
|
|
|
|
|
|
31 March 2005
|
|
4.45:1.00
|
|
30 June 2005
|
|
4.35:1.00
|
|
30 September 2005
|
|
4.20:1.00
|
|
31 December 2005
|
|
4.10:1.00
|
|
|
|
|
|
31 March 2006
|
|
4.00:1.00
|
|
30 June 2006
|
|
3.90:1.00
|
|
30 September 2006
|
|
3.80:1.00
|
|
31 December 2006
|
|
3.70:1.00
|
|
|
|
|
|
31 March 2007
|
|
3.55:1.00
|
|
30 June 2007
|
|
3.45:1.00
|
|
30 September 2007
|
|
3.35:1.00
|
|
31 December 2007
|
|
3.25:1.00
|
|
|
|
|
|
31 March 2008 and thereafter
|
|
3.00:1.00
|
129
25.1 Use of Proceeds
The Borrower will, and will
cause each of its Subsidiaries to, use the proceeds of the Utilisations for the
purposes specified in Clause 2.2 (Purpose).
25.2 Conduct of Business
The Obligors shall, and will
procure that their respective Subsidiaries will from time to time
(directly or indirectly) engage in the Group Business and reasonable extensions
thereof.
25.3 Taxes
Each Obligor will, and will
procure each of its Subsidiaries to, file all material tax returns on time and
pay and discharge all material taxes and governmental charges payable by or
assessed upon it prior to the date on which the same became overdue and without
causing any Lien to be created, except those that are being contested in good
faith by appropriate proceedings and for which adequate reserves have been established
on the books and records of the relevant Obligor in accordance with GAAP.
25.4 Compliance with Laws
Each Obligor will, and will
procure each of its Subsidiaries to, comply with all applicable laws to which
it may be subject, if failure to comply with which would reasonably be expected
to have a Material Adverse Effect.
25.5 End of Fiscal Years; Fiscal Quarters
Each Obligor will ensure that
(a) each of its, and each of its Subsidiaries’, fiscal years (for accounting
and SEC disclosure purposes) end on 31 December and (b) itself, and each of its
Subsidiaries, maintain fiscal quarters consistent therewith.
25.6 Ranking of Claims
Each
Obligor shall ensure that at all times the claims of the Finance Parties
against it under the Finance Documents rank at least pari passu with the claims of all its unsecured creditors
save those whose claims are preferred by any bankruptcy, insolvency,
liquidation or similar laws of general application.
25.7 Additional Security and Further Assurances
(a) Each
Obligor shall, and the Parent shall procure that each member of the Group
shall, at its own expense, promptly take all such action as the Agent or the
Security Trustee
130
may
reasonably require for the purpose of perfecting or protecting any Finance
Party’s rights with respect to the Security intended to be created or evidenced
by the Security Documents.
(b) The
Parent shall procure that:
(i) any
Material Subsidiary (other than a member of the CEAL Group to which the CEAL
Exception Conditions apply) which has not entered into a Security Document over
all or substantially all of its assets; or
(ii) any
member of the Group (other than a member of the CEAL Group to which the CEAL
Exception Conditions apply) which owns or acquires an asset the fair market
value of which exceeds €5,000,000 (or its equivalent in other currencies) or
which is, in the opinion of the Agent (acting reasonably) material in the
context of the Group and which is not subject to a first priority security
interest in favour of the Security Trustee,
in each case to ensure that Clause 25.2 (Conduct of Business) and Clause 26.13 (Assets and EBITDA Attributable to Qualified Obligors)
are complied with,
shall (unless prohibited by Law or unless the Agent,
acting reasonably, is satisfied that the costs and time involved in effecting
the relevant Lien would be excessive in comparison with the benefit gained by
the Finance Parties as a result of that security interest being effected),
within 30 days after being required to do so by the Agent, accede as a
Guarantor (if not already a Guarantor in accordance with Clause 27 (Accession of New Guarantors)) and execute
such additional Security Documents in favour of the Security Trustee (in form
and substance satisfactory to the Security Trustee, but containing provisions
on substantially the same terms as any corresponding Security which is then
already in place over the relevant type of asset under the Security Documents)
as the Security Trustee may require.
(c) At any
time whilst there is a continuing Event of Default each Obligor shall execute
and deliver to the Security Trustee such additional Security Documents in such
form and in relation to such assets as the Security Trustee may require.
(d) The
Parent shall procure that, following the irrevocable payment and cancellation
in full of the Permitted Receivables Facility in existence as at the Initial
Borrowing Date, each of Buhrman Office Products Nederland BV, Buhrmann Silver
SA and Buhrmann Silver US LLC shall pledge all its receivables in favour of the
Security Trustee in form and substance reasonably satisfactory to the Agent
within 30 days after being required to do so by the Agent.
25.8 Stock Pledges in Non-U.S. Subsidiaries of the Borrower Which Are Not
Guarantors
(a) If
following a change (the “Deemed Dividend
Rule Change”) in Section 956 of the Code or the
regulations, rules, rulings, notices or other official pronouncements issued or
promulgated thereunder, counsel for the Parent reasonably acceptable to the
Agent does not within 45 days after a request from the Agent or the Instructing
Group deliver evidence, in form, scope and substance reasonably satisfactory to
the Agent, with respect to any Non-U.S. Subsidiary of the Borrower which has
share capital
131
owned
directly by the Borrower or one or more U.S. Subsidiaries of the Borrower and
which has not already had all of its stock pledged pursuant to the relevant
Pledge Agreements that a pledge of 66-2/3 per cent. or more of the total
combined voting power of all classes of share capital of such Non-U.S.
Subsidiary entitled to vote, would cause the undistributed earnings of such
Non-U.S. Subsidiary as determined for U.S. federal income tax purposes to be
treated as a deemed dividend to such Non-U.S. Subsidiary’s United States
shareholder for U.S. federal income tax purposes, then that portion of such
Non-U.S. Subsidiary’s outstanding share capital not theretofore pledged
pursuant to the relevant Pledge Agreements shall be pledged to the Security
Trustee for the benefit of the Finance Parties pursuant to the Pledge Agreement
set out in paragraph 2 of Section A of Part III of Schedule 3 (Security Documents) (or another pledge
agreement in substantially similar form, if needed), with all documents
delivered pursuant to this Clause 25.8 to be in form and substance reasonably
satisfactory to the Agent and the Instructing Group.
(b) Notwithstanding
anything to the contrary contained above, in the circumstances otherwise
contemplated above, the pledge specified above (so long as such Non-U.S.
Subsidiary does not accede as a Guarantor) shall not be required if, following
a Deemed Dividend Rule Change, the taking of the action otherwise required
above would result in other material negative tax consequences to the Parent
and/or its Subsidiaries, and so long as the Parent or the Borrower delivers
notification to the Agent to such effect (showing in reasonable detail the
material negative tax consequences which would result therefrom). It is understood and agreed that,
notwithstanding anything to the contrary contained above, the restrictions on
the percentage of voting stock of Non-U.S. Subsidiaries required to be pledged
shall not apply to (i) any Subsidiaries of the Parent which are not Non-U.S.
Subsidiaries of the Borrower and (ii) any Non-U.S. Subsidiaries of the Borrower
which are Guarantors or are Subsidiaries of a Non-U.S. Subsidiary of the
Borrower which is a Guarantor.
25.9 Necessary Authorisations
Each
Obligor shall (and the Parent shall procure that each member of the Group shall)
obtain, comply with and do all that is necessary to maintain in full force and
effect all Necessary Authorisations.
25.10 Insurance
Each
Obligor shall (and the Parent shall procure that each member of the Group
shall) effect and maintain insurances on and in relation to its business and
assets with reputable underwriters or insurance companies against such risks
(including, but not limited to, loss of earnings, business interruption,
directors’ and officers’ liability cover) and to such extent as is usual for
prudent companies carrying on a business such as that carried on by such member
of the Group.
25.11 Infringement of Intellectual Property
Each
Obligor shall (and the Parent shall procure that each member of the Group
will):
(a) notify
the Agent promptly of any infringement or suspected infringement or any
challenge to the validity of any of the present or future Intellectual Property
Rights owned, used or exploited by it which may come to its notice if the same
would be
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reasonably
likely to have a Material Adverse Effect and take all necessary steps
(including, without limitation, the institution of legal proceedings) to
prevent third parties infringing such Intellectual Property Rights to the
extent that failure to do so would be reasonably likely to have a Material
Adverse Effect;
(b) take
all necessary action to safeguard and maintain its rights, present and future,
in or relating to all Intellectual Property Rights owned, used or exploited by
it to the extent that failure to do so would be reasonably likely to have a
Material Adverse Effect (in each case including, without limitation, paying all
applicable renewal fees, licence fees and other outgoings); and
(c) not
enter into any licence or other agreement or arrangement in respect of
Intellectual Property Rights other than between members of the Group and/or on
normal arm’s length commercial terms and will comply with all licences to it of
any Intellectual Property Rights in each case to the extent that failure to do
so would be reasonably likely to have a Material Adverse Effect.
25.12 Interest Rate Protection
The
Borrower shall (or shall procure that a member of the Group shall):
(a) within
2 months of the Initial Borrowing Date enter into and maintain interest rate
hedging arrangements with Hedge Counterparties to limit the Group’s exposure to
adverse movements in interest rates and/or currency exchange in relation to the
Term Facilities (other than the Incremental Term Facility);
(b) ensure
that such arrangements are entered into in the form of Hedging Agreements or,
as the case may be, Other Hedging Agreement in accordance with the policy set
out in the Hedging Letter; and
(c) promptly
provide the Agent with certified true copies of each such Hedging Agreement or,
as the case may be, Other Hedging Agreement entered into which are necessary
for the Agent to monitor compliance with this Clause 25.12.
25.13 Non-U.S. Pension Plans
The
Parent shall ensure that all Non-U.S. Pension plans maintained by or for the
benefit of any member of the Group and/or any of its employees:
(a) are
maintained and operated in all material respects in accordance with all
applicable laws from time to time except where the failure to do so is not
reasonably likely to result in a Material Adverse Effect; and
(b) are
funded substantially in accordance with the governing provisions of such
schemes and all laws applicable thereto with any shortfall in funding advised
by actuaries of recognised standing being rectified in accordance with such
governing procedures and applicable laws except where the failure to do so is
not reasonably likely to result in a Material Adverse Effect.
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25.14 Regulation U
The
Parent shall ensure that on each UtilisationDate,
less than 25 per cent. of the value (as determined by any reasonable method) of
the assets of the Group taken as a whole will constitute Margin Stock (as
defined in Regulation U referred to below).
The Parent shall ensure that no Advance will be used to purchase or
carry any Margin Stock and neither the making of any Advance nor the use of the
proceeds of it will violate or be inconsistent with the provisions of
Regulations T, U or X of the Board of Governors of the Federal Reserve System
of the United States.
25.15 Ownership of Subsidiaries
(a) Notwithstanding
anything to the contrary contained in this Agreement, (i) the Parent shall at
all times own directly or indirectly (through one or more Wholly-Owned
Subsidiaries that are Obligors) 100 per cent. of the share capital of the
Borrower and (ii) the Borrower shall at all times own directly or indirectly
(through one or more Wholly-Owned U.S. Subsidiaries) 100 per cent. of the
capital stock of CEXP.
(b) The
Parent and the Borrower shall at all times own, directly or indirectly, 100 per
cent. of the share capital or other Equity Interests of each of their
respective Subsidiaries except to the extent:
(i) with
respect to Non-U.S. Subsidiaries, directors’ qualifying shares and other
nominal amounts of shares required by applicable law to be held by persons
(other than directors) are issued from time to time (so long as the respective
Subsidiary continues to constitute a Wholly-Owned Subsidiary of the Parent);
(ii) 100
per cent. of the share capital of any such Subsidiary is sold, transferred or
otherwise disposed of pursuant to a transaction permitted by Clause 26.2 (Consolidation, Merger, Purchase or Sale of Assets,
etc.);
(iii) less
than 100 per cent. of the share capital or other Equity Interests are acquired
in the respective Subsidiary pursuant to a Permitted Acquisition which meets
the criteria specified in the definition of Permitted Acquisition and Permitted
Acquisition Conditions; or
(iv) set
forth on Part VII of Schedule 10 (Existing
Investments).
(c) One or
more Obligors shall at all times directly own 100 per cent. of the outstanding
capital of each Receivables Subsidiary.
25.16 Financial Assistance and Fraudulent Conveyance
The Parent will ensure that
all payments and provision of guarantees, security and other assistance by and
between members of the Group have been and will be made in compliance with
applicable local laws and regulations concerning fraudulent conveyance,
financial assistance by a company for the acquisition of or subscription for
its own shares or the shares of its parent or any other company or concerning
the protection of shareholders’ capital.
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25.17 Tax Consolidation
The Parent will procure that
the Borrower and each of its subsidiaries organised under the laws of the
United States of America shall be included in a group that files a U.S. federal
consolidated income tax return as soon as practicable if it has not already
done so as at the Initial Borrowing Date.
26.1 Liens
Each Obligor will not, and
will not permit any of its Subsidiaries (other than a member of the CEAL
Group to which the CEAL Exception Conditions apply) to, create or permit to exist any Lien upon or
with respect to any of its respective property or assets, whether now owned or
hereafter acquired other than the following (Liens described below are herein
referred to as “Permitted Liens”):
(a) inchoate
Liens for taxes, assessments or governmental charges or levies on its property
if the same shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books;
(b) Liens
imposed by law and other similar Liens arising in the ordinary course of
business which (i) secure the payment of obligations not more than 90 days past
due, (ii) are being contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on
its books or (iii) in aggregate are immaterial;
(c) encumbrances
or charges against Real Property as are of a nature generally existing with
respect to properties of a similar character and which do not in any material
way affect or interfere with the use thereof in the business of such Obligor or
such Subsidiaries;
(d) Liens
existing on the date hereof which (i) are described in Part I of Schedule 10 (Existing Liens) or (ii) secure Capitalised
Lease Obligations described in Part I of Schedule 10 (Existing Liens), to the extent consisting
of lessors’ rights in property subject to Capitalised Leases, which Liens may
not be renewed, extended or granted to secure refunding or refinancing
Indebtedness, except (x) for renewals, extensions, refundings or refinancings
of Third Party Existing Indebtedness effected pursuant to Clause 26.4(b) (Indebtedness) and (y) so long as the
principal amount of the Indebtedness secured is not increased as a result of
such renewal, extension, refunding, or refinancing and the Liens do not extend
to property or assets not originally subject to the Liens securing the
respective issue of Third Party Existing Indebtedness as originally permitted
pursuant to this paragraph (d);
(e) Liens
created pursuant to the Finance Documents;
(f) Liens
in or upon Receivables Facility Assets sold or otherwise transferred pursuant
to a Permitted Receivables Transaction;
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(g) licenses,
sublicenses, leases or subleases granted to other persons in the ordinary
course of business not materially interfering with the conduct of the business
of the Parent and its Subsidiaries taken as a whole;
(h) Liens
upon assets of the Parent and its Subsidiaries subject to Capitalised Lease
Obligations to the extent permitted by Clause 26.4(c) (Indebtedness), provided that
(i) such Liens only serve to secure the payment of Indebtedness arising
under such Capitalised Lease Obligation and (ii) the Lien encumbering the asset
giving rise to the Capitalised Lease Obligation does not encumber any other
asset (other than proceeds thereof) of the Parent or any Subsidiary of the
Parent;
(i) Liens
placed upon assets used in the ordinary course of business of the Parent or any
of its Subsidiaries (other than any Receivables Subsidiary) (i) at the time of
acquisition thereof by the Parent or any such Subsidiary or within 120 days
thereafter in the case of property other than Real Property and (ii) within 180
days after the completion of the construction or substantial improvements in
the case of Real Property, in each case to secure Indebtedness incurred
pursuant to Clause 26.4(c) (Indebtedness)
to pay all or a portion of the purchase price thereof or the cost of the
substantial improvements thereto, provided that, in all events, the Lien
encumbering the assets so acquired does not encumber any other asset (other
than proceeds thereof) of the Parent or such Subsidiary;
(j) Liens
arising from precautionary UCC financing statement filings regarding operating
leases entered into by the Parent or any of its Subsidiaries (other than any
Receivables Subsidiary) in the ordinary course of business;
(k) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Parent or any of its
Subsidiaries in the ordinary course of business in accordance with the past
practices of the Parent and its Subsidiaries prior to the Initial Borrowing
Date;
(l) Liens
on assets of any Subsidiary of the Parent acquired as a result of a Permitted
Acquisition and securing only Permitted Acquired Debt of such Subsidiary;
(m) Liens
which may be deemed to exist as a result of the consummation of one or more
sale-leaseback transactions effected in accordance with the requirements of
paragraph (c) of Clause 26.2 (Consolidation,
Merger, Purchase or Sale of Assets, etc.);
(n) Liens
arising out of the existence of judgments or awards not constituting an Event
of Default under Clause 28.8 (Execution or
Distress), provided that no cash or property is deposited or
delivered to secure the respective judgment or award (or any appeal bond in
respect thereof), except as permitted by the following paragraph (o);
(o) Liens
(other than any Lien imposed by ERISA) (i) incurred or deposits made in the
ordinary course of business in connection with workers’ compensation,
unemployment insurance, old age pensions and other types of social security,
(ii) to secure the performance of tenders, statutory obligations (other than
excise taxes), surety, stay, customs and appeal bonds, statutory bonds, bids,
leases, government contracts, trade contracts, utility payments, performance
and return of money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money) or (iii) arising by virtue of
deposits made in the ordinary course of business
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and
consistent with past practice to secure the performance by the Parent and its
Subsidiaries of obligations arising under leases of Real Property, provided
that the aggregate amount of deposits at any time pursuant to sub-paragraph
(ii) and sub-paragraph (iii) shall not exceed €10,000,000 (or its equivalent in other currencies) in the aggregate;
(p) bankers’
liens, rights of setoff and other similar liens existing solely with respect to
cash and Cash Equivalents on deposit in one or more of the accounts described
below, in each case granted in the ordinary course of business in favour of the
bank or banks with which the accounts are maintained, securing amounts owing to
such bank with respect to cash management and operating account arrangements,
including those involving pooled accounts and netting arrangements; and
(q) Liens
not otherwise permitted by the foregoing clauses (a) through (p) to the extent
attaching to properties and assets (but not Equity Interests in any person)
with an aggregate fair value not in excess of, and securing liabilities not in
excess of, €35,000,000 (or its equivalent other currencies) in the aggregate at
any time outstanding.
In connection with the granting
of Liens of the type described in paragraphs (d), (f), (h), (i), (k), (l), (m)
and (q) of this Clause 26.1 by the Parent or any of its Subsidiaries, the Agent
and the Security Trustee shall be authorised, at the request of the Parent or
the Borrower, to take any actions deemed appropriate by it in connection
therewith (including, without limitation, by executing appropriate lien releases
or lien subordination agreements in favour of the holder or holders of such
Liens, in either case solely with respect to the assets subject to such Liens).
26.2 Consolidation, Merger, Purchase or Sale of Assets, etc.
Each Obligor will not, and
will not permit any of its Subsidiaries to enter into any transaction of merger
or consolidation, or convey, sell, lease or otherwise dispose of (or agree to
do any of the foregoing at any future time) all or any part of its property or
assets, or enter into any sale-leaseback transactions, or purchase or otherwise
acquire (in one or a series of related transactions) any part of the property
or assets (other than purchases or other acquisitions of inventory, materials,
equipment and intangible assets in the ordinary course of business) of any
person, except that:
(a) save
in respect of any sales, leases or disposals described in paragraph (c)(iii)
below, this Clause 26.2 does not apply to a member of the CEAL Group to which
the CEAL Exception Conditions apply;
(b) Capital
Expenditures by the Parent and its Subsidiaries (other than any Receivables
Subsidiary) shall be permitted to the extent permitted by Clause 24.1 (Capital Expenditures);
(c) each
of the Parent and its Subsidiaries (other than any Receivables Subsidiary) may:
(i) in
the ordinary course of business, sell, lease or otherwise dispose of any
equipment which, in the reasonable judgment of such person, is obsolete, worn
out or otherwise no longer used or useful in the conduct of such person’s
business;
137
(ii) so
long as no Default or Event of Default then exists or would result therefrom,
sell, lease or otherwise dispose of any other assets (other than the assets
described in sub-paragraph (iii) below), provided that:
(A) Fair Market
Value: each
such sale, lease or disposition shall be in an arm’s-length transaction and for
Fair Market Value;
(B) 75% Cash
Payment:
excluding asset sales the Fair Market Value of which, in the aggregate,
does not exceed €5,000,000 (or equivalent in other currencies) in any fiscal
year of the Parent, at least 75 per cent. of the consideration for all assets
sold, leased or otherwise disposed of pursuant to this sub-paragraph (ii) shall
be in the form of cash and paid at the time of closing of such sale, lease or
other disposition; and
(C) Cap Net Sale
Proceeds:
the aggregate Net Sale Proceeds of all assets subject to sales or other
dispositions pursuant to this sub-paragraph (ii) (for purposes of this proviso
only, excluding asset sales or other dispositions where the Net Sale Proceeds
therefrom are less than €500,000 (or its equivalent in other currencies)) shall
not exceed (x) in the event the Consolidated Leverage Ratio is greater than
3.75:1.00, €15,000,000 (or its equivalent in other currencies) in aggregate in
any fiscal year of the Parent and (y) in the event the Consolidated Leverage
Ratio is less than or equal to 3.75:1.00, €50,000,000 (or its equivalent in
other currencies) in aggregate in any fiscal year of the Parent,
provided
further, that in addition to the above sales, leases and dispositions, the
Parent and its Subsidiaries shall be permitted to effect one or more additional
sales or assets so long as (aa) each such sale shall be on an arm’s-length
transaction and for Fair Market Value, (bb) at least 90 per cent. of the
consideration for all such additional assets sold shall be in the form of cash
paid at the time of closing of the respective sale and (cc) the aggregate gross
sale proceeds of all such additional assets sold after the Initial Borrowing
Date shall not exceed €50,000,000 (or equivalent in other
currencies) in aggregate;
(iii) so long
as no Default or Event of Default then exists or would result therefrom, sell,
lease or otherwise dispose of CEAL or all or substantially all of the assets of
the CEAL Group, provided that:
(A) Fair Market
Value: any
such sale, lease or disposition shall be in an arm’s-length transaction and for
Fair Market Value;
(B) 75% Cash
Payment: at
least 75 per cent. of the consideration for all assets sold, leased or otherwise
disposed of pursuant to this sub-paragraph (iii) shall be in the form of cash
and paid at the time of closing of such sale, lease or other disposition; and
(C) Consolidated Leverage Ratio: the Consolidated Leverage
Ratio as set out in Clause 24.2(c) (Maximum
Consolidated Leverage Ratio) shall, at the time of such sale, lease
and/or disposition be complied with on a Pro Forma Basis.
138
provided
further that no sale-leaseback transactions shall be permitted to be made
pursuant to the foregoing provisions of this paragraph (c);
(d) Investments
may be made to the extent permitted by Clause 26.5 (Advances, Investments and Loans);
(e) each
of the Parent and its Subsidiaries (other than any Receivables Subsidiary) may
lease (as lessee) real or personal property in the ordinary course of business
(so long as any such lease does not create a Capitalised Lease Obligation
except to the extent permitted by Clause 26.4) (Indebtedness);
(f) each
of the Parent and its Subsidiaries (other than any Receivables Subsidiary) may
make sales or transfers of inventory in the ordinary course of business;
(g) each
of the Parent and its Subsidiaries (other than any Receivables Subsidiary) may
sell or discount, in each case without recourse and in the ordinary course of
business, overdue accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof
consistent with customary practice (and not as part of any bulk sale or
financing of receivables);
(h) transfers
of condemned property to the respective governmental authority or agency that
has condemned same (whether by deed in lieu of condemnation or otherwise), and
transfers of properties that have been subject to a casualty to the respective
insurer of such property as part of an insurance settlement, shall be
permitted;
(i) each
of the Parent and its Subsidiaries may license, sublicense or transfer
software, trademarks and other intellectual property which (i) do not
materially interfere with the business of the Parent and its Subsidiaries taken
as a whole and (ii) could not reasonably be expected to have a Material Adverse
Effect;
(j) so
long as no Default or Event of Default exists at the time of the respective
transfer of assets or immediately after giving effect thereto, (i) the Parent
and its Subsidiaries may transfer assets to the Parent or the Borrower or any
Wholly-Owned Subsidiary of either of them which is a Qualified Obligor at such
time, (ii) in the ordinary course of its business and consistent with past
practice, the Parent and its Subsidiaries may transfer inventory and equipment
to Wholly-Owned Subsidiaries of the Parent or the Borrower which are not
Qualified Obligors and which are not inactive Non-Material Subsidiaries and
(iii) any Wholly-Owned Subsidiary of the Parent or the Borrower which is
neither a Guarantor nor an inactive Non-Material Subsidiary may transfer assets
to any other Wholly-Owned Subsidiary of the Parent which is neither a Guarantor
nor an inactive Non-Material Subsidiary, in each case so long as (x) if the
respective transfer is being made to any Obligor, all actions needed to
maintain the perfection and priority of the security interests, if any, of the
Lenders in the assets so transferred are taken at the time of the respective
transfer and (y) the Parent reasonably determines that the transfer is not
reasonably likely to be adverse to the Lenders in any material respect,
provided always that in all cases, no such transfer shall result in the
reduction in the value of the Security subject to the Security Documents as at
the Initial Borrowing Date and/or would have a Material Adverse Effect;
139
(k) so
long as no Default or Event of Default exists at the time of the respective
transfer of assets or immediately after giving effect thereto, (i) any Non-U.S.
Subsidiary of the Parent which is a Wholly-Owned Subsidiary of the Parent may
merge with or into the Parent or any other Non-U.S. Subsidiary of the Parent
which is also a Wholly-Owned Subsidiary of the Parent and is a Qualified
Guarantor at such time (so long as (A) in the case of any such merger with or
into the Parent, the Parent is the survivor of such merger and (B) in the case
of any other such merger, the survivor is a Wholly-Owned Subsidiary of the
Parent which is a Qualified Guarantor), (ii) any Wholly-Owned U.S. Subsidiary
of the Parent may be merged into the Borrower (as long as the Borrower is the
surviving corporation of such merger as a Wholly-Owned Subsidiary of the
Parent) or any other Wholly-Owned U.S. Subsidiary of the Borrower which is a
Qualified Guarantor at such time (so long as the surviving company of such
merger remains a Wholly-Owned U.S. Subsidiary of the Borrower which is a
Qualified Guarantor) and (iii) any Non-Guarantor Subsidiary may merge with or
into any other Non-Guarantor Subsidiary, provided always that in all cases, no
such transfer shall result in the reduction in the value of the Security subject
to the Security Documents as at the Initial Borrowing Date and/or would have a
Material Adverse Effect;
(l) in
addition to transfers permitted above, and so long as no Default or Event of
Default exists at the time of the respective transfer or immediately after
giving effect thereto, the Obligors shall be permitted to transfer assets
(other than cash, Cash Equivalents and Equity Interests in any Obligor) to the
Parent or other Subsidiaries of the Parent so long as cash in an amount at
least equal to the Fair Market Value of the assets so transferred is received
by the respective transferor, provided always that in all cases, no such
transfer shall result in the reduction of the value of the Security subject to
the Security Documents as at the Initial Borrowing Date and/or would have a
Material Adverse Effect;
(m) so long
as no Default or Event of Default then exists (and would not exist immediately
after giving effect thereto), the Parent shall be permitted to repurchase
Equity Interests in Subsidiaries of the Parent which are not Wholly-Owned
Subsidiaries of the Parent (before giving effect to the respective purchase) at
prices not to exceed the Fair Market Value thereof, provided that, (i)
after giving effect to each purchase pursuant to this paragraph (m), the
financial covenants in Clause 24 (Financial
Condition) are in compliance on a Pro Forma Basis and (ii) at the
date of the declaration of each purchase (and if such purchase is consummated
within 30 days of such declaration) pursuant to this paragraph (m), the
Borrower shall have Available Liquidity of at least €50,000,000;
(n) inactive
Non-Material Subsidiaries of the Borrower or the Parent (excluding in any event
the Borrower) may be liquidated from time to time, so long as the Parent or the
Borrower, as the case may be, determines that such liquidation is not
reasonably likely to be adverse in any material respect (including, without
limitation, as a result of any assumption of liabilities) to the Parent or the
Borrower;
(o) sales,
contributions and other transfers by the Receivables Sellers of Receivables
Facility Assets to the respective Receivables Subsidiary and sales and other
transfers of Receivables Facility Assets by a Receivables Subsidiary to one or
more purchasers pursuant to the respective Permitted Receivables Facility, and
purchases and acquisitions of Receivables Facility Assets by the Receivables
Subsidiaries, in each
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case
pursuant to the terms of the respective Permitted Receivables Facility, shall
be permitted;
(p) so
long as no Default or Event of Default then exists, and so long as no Default
or Event of Default will exist after giving effect to the respective Permitted
Acquisition, the Parent and its Wholly-Owned Subsidiaries (other than any
Receivables Subsidiary) may from time to time make Permitted Acquisitions, so
long as the requirements contained in the definitions of “Permitted
Acquisition” and “Permitted Acquisition Conditions” are satisfied;
(q) to the
extent the Parent or any of its Subsidiaries acquires (but not pursuant to a
Permitted Acquisition) or constructs any Real Property or acquires (but not
pursuant to a Permitted Acquisition) any equipment, in each case after the
Initial Borrowing Date, then (i) in the case of Real Property, within 180 days
of the acquisition thereof (or in the case of Real Property being constructed
or upon which substantial improvements are being made, within 180 days after
the completion of such construction or substantial improvements) and (ii) in
the case of equipment, within 120 days of the acquisition thereof, the Parent
or the respective Subsidiary owning same may sell the respective Real Property
or equipment pursuant to a sale-leaseback transaction so long as (A) there
shall exist no Default or Event of Default (both before and after giving effect
thereto), (B) the sale is on an arm’s-length transaction and for Fair Market
Value, (C) at least 75 per cent. of the aggregate consideration therefor shall
be in the form of cash and is paid at the time of consummation of sale and (D) to
the extent Capitalised Lease Obligations result from the respective
sale-leaseback, such Capitalised Lease Obligations shall be permitted pursuant
to Clause 26.4 (Indebtedness);
(r) each
of the Parent and its Subsidiaries may sell or liquidate, in each case for cash
at fair market value (as reasonably determined by the Parent or the respective
Subsidiary), Cash Equivalents;
(s) so
long as no Default or Event of Default is then in existence (or shall exist
after giving effect thereto), the Parent and its Subsidiaries may effect one or
more Sales In Lieu of Liquidation in accordance with the definition thereof
contained herein; and
(t) acquisitions
for value of Senior Subordinated Notes and Senior Subordinated Convertible
Bonds may be made to the extent permitted by Clause 26.8(a)(iv) (Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and
Certain Other Agreements).
Notwithstanding anything to the
contrary contained above, in no event shall the Parent or any of its
Subsidiaries (x) sell, transfer or dispose of any Equity Interests in the
Borrower or any Subsidiary of the Parent which owns Equity Interests, in the
Borrower or (y) sell any Equity Interests in any other Subsidiary of the Parent
unless, in the case of this clause (y), the respective sale or disposition
meets the requirements of one or more of the paragraphs of this Clause 26.2
unless all Equity Interests in the respective Subsidiary owned by Parent and
its Subsidiaries are sold pursuant to the respective sale. Furthermore, the foregoing provisions of this
Clause 26.2 are subject to continued compliance by the Obligors and their
Subsidiaries with the requirements of Clauses 25.2 (Conduct of Business) and 26.13 (Assets and EBITDA Attributable to Qualified Obligors). To the extent the Instructing Group waive the
provisions of this Clause 26.2 with respect to the sale of any Collateral, or
any Collateral is sold as
141
permitted by this Clause 26.2,
such Collateral (unless sold to the Parent or a Subsidiary of the Parent) shall
be sold free and clear of the Liens created by the Security Documents, and the
Agent and Security Trustee shall be authorised to take any actions deemed appropriate
in order to effect the foregoing.
26.3 Restricted Payments
Each Obligor will not, and
will not permit any of its Subsidiaries to make any Restricted Payment, except
that:
(a) any
Subsidiary of the Borrower may pay Dividends to its shareholders, in each case
so long as the Borrower or any Subsidiary of the Borrower which owns an Equity
Interest in such Subsidiary receives a percentage of any such Dividends which
is at least equal to its percentage Equity Interest in the respective
Subsidiary paying the Dividend;
(b) any
Subsidiary of the Parent (other than the Borrower and its Subsidiaries if any
Default or Event of Default is then in existence) may declare and pay Dividends
or make distributions to the Parent or a Wholly-Owned Subsidiary of the Parent;
(c) payments
may be made from time to time with respect to Affiliate Debt permitted to be
incurred and remain outstanding in accordance with the terms of this Agreement,
in each case so long as (x) the respective payment is permitted to be made in
accordance with the terms of the Intercreditor Deed and (y) other than in the
case of payments made by any Non-U.S. Subsidiary of the Parent (which is not
also a Subsidiary of the Borrower) to the Parent and payments made by any
person to the Borrower (or to any person which then transmits such payments to
the Borrower or one or more other persons who immediately transmit such
payments to the Borrower), no Default or Event of Default then exists (both
before and after giving effect to the respective payment);
(d) the
Parent may (i) repurchase the Parent Common Stock and/or options to purchase
the Parent Common Stock held by or (ii) make payments pursuant to equity
appreciation rights agreements to, directors, executive officers, members of
management or employees of the Parent or any of its Subsidiaries upon the
death, disability, retirement or termination of such director, executive
officers, member of management or employee, so long as (A) no Default or Event
of Default then exists or would exist after giving effect thereto and (B) the
aggregate amount of cash expended by the Parent pursuant to this paragraph (d)
shall not exceed €10,000,000 in any fiscal year of the Parent plus the
net cash proceeds of Parent Common Stock sold to directors, executive officers,
members of management or employees of the Parent and its Subsidiaries in such
fiscal year;
(e) the
Parent may pay regularly accruing Dividends with respect to Parent Preference
Shares C through the issuance of additional shares of Parent Preference Shares
C in accordance with the terms of the Preferred Equity Financing Documents
governing same or from the proceeds (if any) of any Cumulative Excess Cash
Flow, provided that at the date of the declaration of payment of such Dividend
(and if such payment is made within 30 days of such declaration), after giving
effect to the payment of such Dividends, the Borrower shall have Available
Liquidity of at least €50,000,000. For
the purposes of this paragraph (e), “Cumulative
Excess Cash Flow” means, at any
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time,
as determined on each Excess Cash Flow Payment Date the aggregate amount of (i)
Excess Cash Flow after applying the provisions of Clause 13.3 (Application of Mandatory Prepayments) on
such Excess Cash Flow Payment Date and (ii) the aggregate Excess Cash Flow for
each previous Excess Cash Flow Payment Date not utilised during their
respective Excess Cash Flow Payment Period;
(f) if
any Parent Preference Shares B are issued after the Initial Borrowing Date in
accordance with the terms of the Parent’s Articles of Association as the terms
of the Parent Preference Shares B thereunder are in effect on the Initial
Borrowing Date or as thereafter amended in a manner no less favorable to the
Lenders, then at any time and from time to time thereafter, so long as no
Default or Event of Default then exists, and so long as no Default or Event of
Default will exist after giving effect to the respective redemption of Parent
Preference Shares B, the Parent may redeem its outstanding Preference Shares B,
at their issue price plus any accrued and unpaid dividends thereon, provided
that at the date of the declaration of the respective redemption of the Parent
Preference Shares B (and if such redemption is consummated within 30 days of
such declaration), after giving effect to the respective redemption, the
Borrower shall have Available Liquidity of at least €50,000,000; and
(g) so
long as no Default or Event of Default then exists, and so long as no Default
or Event of Default will exist after giving effect to the respective payment of
Dividends, the Parent may pay, during the first six months of any fiscal year
of the Parent regularly accruing Dividends based on the Parent’s Consolidated
Net Income for the immediately preceding fiscal year:
(i) with
respect to Parent Preference Shares A (so long as there is no increase to the
number of shares of outstanding Parent Preference Shares A after the Initial
Borrowing Date), in an aggregate amount not to exceed that amount determined in
accordance with the Articles of Association of the Parent (as in effect on the
Initial Borrowing Date or as thereafter amended in a manner no less favorable
to the Lenders) and the resolution of the Executive Board of the Parent
providing for the first issuance of Parent Preference Shares A, it being
understood and agreed that the aggregate amount of Dividends paid in respect of
the Parent Preference Shares A in each fiscal year of the Parent pursuant to
this sub-paragraph (i) shall not exceed €11,200,000 for the fiscal years ending
closest to 31 December 2003 through till 2008, and thereafter in such amount as
calculated in accordance with the Articles of Association of the Parent
(referred to as the “Applicable
Preference Share A Dividend”) provided that
to the extent the aggregate amount of Dividends paid pursuant to this
sub-paragraph (i) are less than the Applicable Preference Share A Dividend in
any fiscal year of the Parent (beginning with fiscal year 2006), the difference
between the amount paid in such fiscal year and the Applicable Preference Share
A Dividend, may be carried forward and used to pay Dividends in respect of the
Parent Preference Shares A in succeeding fiscal years;
(ii) with
respect to Parent Preference Shares B, if any, issued after the Initial
Borrowing Date in accordance with the terms of the Parent’s Articles of
Association as the terms of such Parent Preference Shares B thereunder are in
effect on the Initial Borrowing Date or as thereafter amended in a manner no
less favorable to the Lenders, in amounts determined in accordance with the
Articles of Association of the Parent (as in effect on the Initial Borrowing
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Date
or as thereafter amended in a manner no less favorable to the Lenders); and
(iii) with
respect to Parent Common Stock, provided that the aggregate amount of
all Dividends paid during any fiscal year of the Parent pursuant to this
sub-paragraph (iii) shall not exceed 35 per cent. of the Consolidated Net
Income Available to Common (calculated before deducting any non-cash
exceptionals accrued during such period) for the immediately preceding fiscal
year,
provided further, that (A) in
the case of each of foregoing sub-paragraphs (i), (ii) and (iii) (including the
provisos thereto), at the date of the declaration of the payment of such
Dividends (and if such payment is made within 30 days of such declaration),
after giving effect to the payment of such Dividends, the Borrower shall have
Available Liquidity of at least €50,000,000 and (B) in the case of the
foregoing sub-paragraph (iii) (including the provisos thereto), after giving
effect to the respective payment of Dividends, the Consolidated Leverage Ratio
shall be less than or equal to 3.75:1:00.
Notwithstanding
anything to the contrary contained above, in the case of Dividends to be paid
at any time pursuant to this paragraph (g), if on the date the payment and
amount of the respective Dividends are announced, so long as the respective
announcement is made within 90 days prior to the payment of the respective
Dividends, no Default or Event of Default then exists, and no Default or Event
of Default would exist if Dividends in the respective amount announced (when
added to any other amounts of Dividends announced but not yet paid) were paid
on such date (including, without limitation, pursuant to Clause 24.2(c) (Maximum Consolidated Leverage Ratio) after
giving effect to the incurrence of any Indebtedness needed to finance same) and
so long as the amount of Dividends to be paid complies with the requirements of
this paragraph (g), as the case may be, and so long as the Available Liquidity
requirements sets forth in said paragraphs would be satisfied if the Dividends
so announced (when added to any other amounts of Dividends announced but not
yet paid) were actually paid on the date of the respective announcement (after
giving effect thereto), then the respective Dividends (in the aggregate amounts
so announced) may be paid within 90 days after such announcement, so long as no
Default or Event of Default then exists or would exist after giving effect to
the payment of such Dividends, notwithstanding the failure to satisfy the
Available Liquidity requirements on the date the respective Dividends are
actually paid.
The foregoing provisions of
this Clause 26.3 shall in no event restrict or limit the ability of any Obligor
to make payments owing by them pursuant to the terms of any Finance Document.
26.4 Indebtedness
Each Obligor will not, and
will not permit any of its Subsidiaries(other than a member of the CEAL
Group to which the CEAL Exception Conditions apply (save in respect of
paragraph (q) below)) to, contract, create, incur, assume or suffer to exist
any Indebtedness, except:
(a) Indebtedness
incurred pursuant to this Agreement and the other Finance Documents;
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(b) Existing
Indebtedness outstanding on the Initial Borrowing Date, without giving effect
to any subsequent extension, renewal or refinancing thereof, except that
the Third Party Existing Indebtedness as set out in Section A of Part II of
Schedule 10 (Existing Indebtedness)
may be Refinanced, or successively Refinanced, through one or more issues of
Permitted Refinancing Indebtedness;
(c) Indebtedness
(including, without limitation, Indebtedness of such persons evidenced by
Capitalised Lease Obligations entered into in accordance with the relevant
requirements of Clause 26.8 (Limitation on
Voluntary Payments and Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-laws and Certain Other Agreements; etc.),
Indebtedness of such persons of the type described in Clause 26.1(i) (Liens), Permitted Acquired Debt and Seller
Debt and such other Indebtedness as is incurred pursuant to this paragraph (c))
of (i) the Parent, the Borrower and one or more Qualified Guarantors or (ii) in
the case of Permitted Acquired Debt only, the respective Subsidiary or
Subsidiaries acquired pursuant to such Permitted Acquisition, provided that:
(A) no Default or Event of
Default shall exist at the time of the incurrence of such Indebtedness and
immediately after giving effect thereto; and
(B) the aggregate principal
amount of Indebtedness at any time outstanding pursuant to this paragraph (c)
does not exceed €160,000,000 (or its equivalent in other currencies), of which
no more than €60,000,000 (or its equivalent in other currencies) shall at any
time outstanding constitute Indebtedness other than Permitted Subordinated
Indebtedness, with the balance required at all times to constitute Permitted
Subordinated Indebtedness;
(d) Indebtedness
under non-speculative Other Interest Hedging Agreements;
(e) Indebtedness
of any Guarantor owed to the Parent or any other Subsidiary of the Parent (not
an inactive Material Subsidiary), provided that (i) any such
Indebtedness (unless owed to the Borrower) shall be subordinated as, and to the
extent, required by the last sentence of this Clause 26.4 and (ii) at the first
time that any person other than the Parent or any Subsidiary of the Parent (not
an inactive Material Subsidiary) owns or holds any such Indebtedness or any
person other than the Borrower or (other than in the case of Indebtedness owed
by the Borrower) any Qualified Obligor holds a Lien in respect of such
Indebtedness, the debtor of such Indebtedness shall be deemed to have incurred
at such time Indebtedness not permitted by this paragraph (e);
(f) Indebtedness
of any Subsidiary of the Parent which is not a Guarantor owed to the Parent or
any other Subsidiary of the Parent, provided that (i) any such
Indebtedness owed to any Qualified Obligor shall (except as otherwise provided
in the Intercreditor Deed) be unsubordinated and (ii) at the first time
that any person other than the Parent or any Subsidiary thereof owns or holds
any such Indebtedness or any person (other than the Borrower or any Qualified
Obligor) holds a Lien in respect of such Indebtedness, the respective debtor
shall be deemed to have incurred at such time Indebtedness not permitted by
this paragraph (f);
(g) in
addition to any Indebtedness permitted by paragraph (f) above, Indebtedness of
the Parent or any Wholly-Owned Subsidiary of the Parent to the Parent or
another Wholly-Owned Subsidiary of the Parent constituting the purchase price
in respect of
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intercompany transfers of assets made in the
ordinary course of business to the extent not constituting Indebtedness for
borrowed money;
(h) Indebtedness
evidenced by Other Currency/Commodities Hedging Agreements entered into
pursuant to Clause 26.5(e) (Advances,
Investments and Loans);
(i) Indebtedness
of the Parent and its Subsidiaries under performance bonds, documentary credit
obligations to provide security for workers’ compensation claims and bank
overdrafts, in each case incurred in the ordinary course of business, provided
that any obligations arising in connection with such bank overdraft
Indebtedness is extinguished within five Business Days;
(j) Indebtedness
incurred by the Parent or any of its Subsidiaries arising from agreements
providing for indemnification related to sales of goods or adjustment of
purchase price or similar obligations in any case incurred in connection with
the disposition of any business, assets or Subsidiary of the Parent;
(k) accounts
payable to vendors for goods and services obtained in the normal course of
business and under customary terms and conditions;
(l) Indebtedness
of the Borrower, and subordinated guarantees thereof by the Parent and the
Guarantors, under the Senior Subordinated Notes, the other Senior Subordinated
Note Documents, the Senior Subordinated Convertible Bonds and the other Senior
Subordinated Convertible Bond Documents in an aggregate principal amount not to
exceed $350,000,000 and €114,819,000 (as (x) increased, as a result of the
issuance of any additional Senior Subordinated Notes to pay-in-kind any
regularly accruing interest on any outstanding Senior Subordinated Notes (or any
Permitted Refinancing Indebtedness, other than the Senior Subordinated Notes,
issued to refinance same) in accordance with the terms applicable to the Senior
Subordinated Notes and (y) reduced by any repayments of principal thereof
except for any such repayments to the extent made as a result of the issuance
of refinancing Senior Subordinated Notes in accordance with the definition of
Senior Subordinated Notes contained herein);
(m) Indebtedness
which may be deemed to exist pursuant to one or more Permitted Receivables
Transactions;
(n) obligations
incurred in the ordinary course of business in respect of bank overdrafts and
with respect to cash management and operating account arrangements, provided
that such arrangements are not the functional equivalent of extensions of
Indebtedness for borrowed money;
(o) additional
unsecured Indebtedness of the Parent or the Borrower consisting of (x)
unsecured guarantees by the Parent or the Borrower of obligations (which
guaranteed obligations do not themselves constitute Indebtedness) of one or
more Wholly-Owned Subsidiaries of the respective guarantor that are themselves
Qualified Obligors, and (y) unsecured guarantees by the Parent or the Borrower
of leases pursuant to which one or more Wholly-Owned Subsidiaries of the
respective guarantors that are themselves Qualified Obligors are the respective
lessee;
(p) unsecured
Indebtedness of Subsidiaries of the Parent (which are not Subsidiaries of the
Borrower) incurred from local banks which are supported by one or more
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Documentary Credit, provided that
Indebtedness shall be permitted to be incurred, and remain outstanding,
pursuant to this paragraph (p) only to the extent that the aggregate
outstanding principal amount thereof is at all times supported by a Documentary
Credit issued pursuant to this Agreement with a face amount equal to or greater
than the principal amount of the Indebtedness outstanding pursuant to this
paragraph (p); and
(q) Indebtedness
incurred by the members of the CEAL Group for the purposes of the day-to-day
running of its business provided that:
(i) no
Default or Event of Default shall exist at the time of the incurrence of each
Indebtedness and immediately after giving effect thereto;
(ii) the
Parent and its Subsidiaries will be in compliance with Clause 24 (Financial Condition) on a Pro Forma Basis
after giving effect to each incurrence of such Indebtedness; and
(iii) the
ratio of consolidated total net debt to consolidated EBITDA of the CEAL Group
shall not be equal to or greater than 2.00:1.00, both before and after the
incurrence of such Indebtedness.
Notwithstanding anything to
the contrary contained above or elsewhere in this Agreement, (y) in no event
shall the Parent or the Borrower permit any Subsidiary of the Parent other than
the Borrower or any Qualified Guarantor to incur any Indebtedness or any other
obligation having any element of recourse to any Obligor or to any of its
assets or property and (z) Affiliate Debt (excluding only Affiliate Debt where
each obligee and obligor (including any guarantors) thereof are Subsidiaries of
the Parent none of which are Obligors) shall only be permitted to be incurred
and to remain outstanding if each obligee and each obligor (including any
guarantors) with respect to such Affiliate Debt shall have become parties to
the Intercreditor Deed in accordance with the terms thereof.
26.5 Advances, Investments and Loans
Each Obligor will not, and
will not permit any of its Subsidiaries (other than a member of the CEAL
Group to which the CEAL Exception Conditions apply) to, directly or indirectly, lend money or
credit or make advances to any person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other person (all of the foregoing, “Investments”), except that the following
shall be permitted:
(a) the
Parent and its Subsidiaries may acquire and hold accounts receivables arising
in the ordinary course of business and owing to any of them;
(b) the
Parent and its Subsidiaries may acquire and hold Cash Equivalents, provided
that at any time there are Revolving Facility Outstandings and/or Swingline
Facility Outstandings, the aggregate amount of Cash Equivalents permitted to be
held by Parent and its Subsidiaries shall not exceed €50,000,000
(or its equivalent in other currencies) for any period of five (5) consecutive
Business Days;
(c) the
Parent and its Subsidiaries may make loans and advances in the ordinary course
of business to their respective employees so long as the aggregate principal
amount
147
thereof at any time outstanding (determined
without regard to any write-downs or write-offs of such loans and advances)
shall not exceed €10,000,000 (or its equivalent in other currencies);
(d) the
Parent and its Subsidiaries may enter into Other Interest Hedging Agreements to
the extent permitted in Clause 26.4(d) (Indebtedness);
(e) the
Parent and its Subsidiaries may enter into and perform their obligations under
Other Currency/Commodity Hedging Agreements entered into in the ordinary course
of business so long as any such Other Currency/Commodity Hedging Agreement is
not speculative in nature and is (i) related to income derived from foreign
sales or operations of the Parent or any Subsidiary or otherwise related to
purchases permitted hereunder from foreign suppliers, (ii) entered into to
protect the Parent and/or its Subsidiaries against fluctuations in the prices
of raw materials used in their businesses or (iii) entered into to protect the
Group’s exposure to adverse movements in foreign exchange in relation to the
Facilities and any Permitted Subordinated Indebtedness;
(f) loans
may be made as expressly permitted by paragraphs (e) and (f) of Clause 26.4 (Indebtedness);
(g) the
Parent and its Subsidiaries may (i) sell or transfer assets to the extent
permitted by Clause 26.2 (Consolidation,
Merger, Purchase or Sale of Assets, etc.), and may acquire non-cash
consideration in respect thereof to the extent permitted by Clause 26.2 (Consolidation, Merger, Purchase or Sale of Assets,
etc.) and (ii) repurchase Equity Interests in certain of its
Subsidiaries to the extent expressly permitted pursuant to Clause 26.2(m) (Consolidation, Merger, Purchase or Sale of Assets,
etc.);
(h) the
Parent may effect Permitted Acquisitions in accordance with the requirements of
Clause 26.2(p) (Consolidation, Merger,
Purchase or Sale of Assets, etc.) and an amount equal to the cash
consideration therefor may be contributed, loaned or advanced to, or invested
in, the respective person (which must be the Parent or a Wholly-Owned
Subsidiary thereof) making such Permitted Acquisition by the Parent or any of
its Wholly-Owned Subsidiaries so long as all amounts so invested are in fact
used within ten days of the respective payment to pay such consideration owing
in connection with the respective Permitted Acquisition (or if not so used, are
returned to the Parent or its respective Wholly-Owned Subsidiary at the end of
such five-day period);
(i) Investments
consisting of guarantees in existence on the Initial Borrowing Date as
disclosed in Clause 26.4 (Indebtedness)
or arising thereafter as a result of guarantees permitted pursuant to Clause
26.4 (Indebtedness);
(j) the
Parent and its Subsidiaries may, in the ordinary course of business, acquire
and own investments (including debt obligations) received in connection with
the bankruptcy or reorganisation of, or in settlement of delinquent obligations
of, their suppliers and customers;
(k) in
addition to Investments otherwise permitted above, the Parent and its
Subsidiaries may hold (i) their interests in their respective Subsidiaries and
(ii) Investments as are in effect on the Initial Borrowing Date which are set
out in Part VII of Schedule 10 (Existing Investments);
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(l) (i)
the Parent and the Qualified Obligors may make cash common equity contributions
to the capital of Wholly-Owned Subsidiaries of the Parent which are also
Qualified Obligors, provided that in the event that any Qualified
Obligor in which an investment is made pursuant to this paragraph (l) ceases to
constitute a Wholly-Owned Subsidiary of the Parent which is a Qualified
Obligor, any remaining Investment therein by the Parent or any of its
Subsidiaries will be required to be independently justified under another
clause of this Clause 26.5 and (ii) Wholly-Owned Subsidiaries may make cash
equity investments (including, for this purpose, preferred equity investments)
in Non-Guarantor Subsidiaries (A) to the extent all proceeds of such equity
investment are immediately thereafter used by such Non-Guarantor Subsidiary to
repay in cash outstanding Intercompany Loans in a like amount previously made
by a Qualified Obligor (and otherwise permitted hereunder) to such
Non-Guarantor Subsidiary and (B) so long as any Equity Interest issued as
consideration for such equity investment is promptly pledged to the Security
Trustee for the benefit of the Finance Parties to the extent required by Clause
25.7 (Additional Security and Further
Assurances)or any
Security Document;
(m) Non-Guarantor
Subsidiaries may make cash common equity contributions to the capital of other
Non-Guarantor Subsidiaries, provided that in the event that any
Non-Guarantor Subsidiary which has received a common equity contribution
pursuant to this paragraph (m) ceases to constitute a Subsidiary of the Parent,
any remaining Investment therein by the Parent or any of its Subsidiaries will
be required to be independently justified under another clause of this Clause
26.5; and
(n) so
long as no Default or Event of Default then exists or would exist after giving
effect thereto, the Parent and its Subsidiaries may make additional Investments
(which remain outstanding on any date of determination) (i) in the event that
the Consolidated Leverage Ratio is greater than 3.75:1.00, not exceeding in
aggregate €15,000,000 (or its equivalent in other currencies) and (ii) in the
event the Consolidated Leverage Ratio is less than or equal to 3.75:1.00, not
exceeding in aggregate €40,000,000 (or its equivalent in other currencies),
(and will remain so after the making of each Investment made pursuant to this
proviso), it being understood and agreed that, at any time (ii) above is not
applicable, Investments made pursuant thereto shall be permitted to remain
outstanding, but shall be taken into account in determining whether additional
Investments may be made pursuant to this paragraph (n) (without the benefits of
(ii) above)).
26.6 Transactions with Affiliates
Each Obligor will not, and
will not permit any of its Subsidiaries (other than a member of the CEAL
Group to which the CEAL Exception Conditions apply) to, enter into any transaction or series of
related transactions, with any Affiliate of the Parent or any of its
Subsidiaries, other than in the ordinary course of business and on terms and
conditions substantially as favorable to the Parent or such Subsidiary as would
reasonably be obtained by the Parent or such Subsidiary at that time in a comparable
arm’s-length transaction with a person other than an Affiliate, except that:
(a) Restricted Payments may be paid to the
extent provided in Clause 26.3 (Restricted
Payments);
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(b) loans may be made and
other transactions may be entered into between the Parent and its Subsidiaries
to the extent expressly permitted by Clauses 26.2 (Consolidation, Merger, Purchase or Sale of Assets, etc.),
26.4 (Indebtedness) and 26.5 (Advances, Investments and Loans);
(c) customary fees may be
paid to directors of the Parent and its Subsidiaries;
(d) the Parent and its
Subsidiaries may enter into employment arrangements with respect to the
procurement of services of their respective officers and employees in the ordinary
course of business, including executive compensation arrangements;
(e) the Transaction shall
be permitted;
(f) the Parent and its
Subsidiaries may enter into the transactions contemplated by the Permitted
Receivables Facility Documentation;
(g) the Parent and its
Subsidiaries may enter into Tax Sharing Agreements; and
(h) the Parent may issue
Parent Preference Shares B to the Permitted Holder thereof in accordance with
the terms of the Parent’s Articles of Association as the terms of the Parent Preference
Shares B thereunder are in effect on the Initial Borrowing Date or as
thereafter amended in a manner no less favorable to the Lenders.
In addition to the applicable
requirements provided above, any transaction or series of related transactions
(other than as described in sub-paragraphs (a) through (h) above and excluding
transactions between the Parent and/or one or more Wholly-Owned Subsidiaries of
the Parent) between or among the Parent and/or any of its Subsidiaries (other
than the members of the CEAL Group to which the CEAL Exception Conditions
apply), on the one hand, and any of their respective Affiliates, on the other
hand, with a value in excess of (A) €5,000,000 shall only be permitted if a
majority of the disinterested directors of the Parent approve the transaction
as meeting the standard set forth above in this Clause 26.6 and (B) €25,000,000
shall only be permitted if the parties thereto provide a fairness opinion from
a person, and in form, scope and substance, reasonably satisfactory to the
Agent.
26.7 Business
(a) The
Obligors will not, and will not permit any of their Subsidiaries to, engage
(directly or indirectly) in any business other than the Group Business and
reasonable extensions thereof, provided that, for a period not extending beyond
the date which occurs one year after the date the respective Permitted
Acquisition is consummated, any Subsidiary of the Parent which was acquired by
the Parent or any of its Wholly-Owned Subsidiaries (other than the Receivables
Subsidiary) pursuant to a Permitted Acquisition shall be permitted to engage in
a business other than the Group Business and reasonable extensions thereof to
the extent so engaged by it immediately prior to such Permitted Acquisition (so
long as such other business was not undertaken in contemplation of the
respective Permitted Acquisition).
(b) The
Parent will cause each Receivables Subsidiary to comply with the requirements
of Clause 26.11 (Receivables Subsidiary and
Permitted Receivables Facility).
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26.8 Limitation on Voluntary Payments and Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements; etc.
(a) Each
Obligor will not, and will not permit any of its Subsidiaries (other than a
member of the CEAL Group to which the CEAL Exception Conditions apply) to:
(i) amend
or modify, or permit the amendment or modification of, any provision of any
Preferred Equity Financing Documents or, after the incurrence or issuance
thereof, any Permitted Subordinated Indebtedness or Qualified Preferred Stock,
or of any agreement (including, without limitation, any purchase agreement,
indenture, loan agreement or security agreement) relating thereto other than
any amendments or modifications to any Preferred Equity Financing Documents,
any Permitted Subordinated Indebtedness or any Qualified Preferred Stock or of
any agreement relating thereto which do not in any way adversely affect the
interests of the Lenders;
(ii) after entering
into any Senior Subordinated Note Document or Senior Subordinated Convertible
Bond Document, amend or modify, or permit the amendment or modification of, any
provision of such Senior Subordinated Note Document or Senior Subordinated
Convertible Bond Document (except for immaterial modifications to the Senior
Subordinated Note Documents or Senior Subordinated Convertible Bond Documents,
which could not be adverse to the interests of the Lenders in any respect, and
which do not modify the subordination provisions applicable thereto);
(iii) after
entering into any Permitted Receivables Transaction, amend or modify, or permit
the amendment or modification of, any provision of the documentation relating
thereto, except for amendments or modifications which are not in any way
adverse to the interests of the Lenders or that are determined to be immaterial
by the Agent;
(iv) make
(or give any notice in respect of) any voluntary or optional payment or
prepayment on or redemption or acquisition for value of (including, without
limitation, by way of depositing with the trustee with respect thereto or any
person, money or securities before due for the purpose of paying when due),
exchange or purchase, redeem or acquire for value (whether as a result of a
change of control, the consummation of asset sales or otherwise) the Senior
Subordinated Notes (including, for the avoidance of doubt, any Senior
Subordinated Notes constituting Permitted Refinancing Indebtedness) and Senior
Subordinated Convertible Bonds (except for repayments, prepayments, redemptions
or acquisitions for value to the extent resulting from (1) the issuance of
replacement Senior Subordinated Notes and Senior Subordinated Convertible Bonds
and/or (2) the proceeds from the Incremental Term Facility) or, after the
incurrence or issuance thereof, any Permitted Subordinated Indebtedness;
(v) amend,
modify or change its certificate of incorporation (including, without
limitation, by the filing or modification of any certificate of designation)
articles of association or by-laws (or analogous organisational documents), or
any agreement entered into by it, with respect to its share capital (including
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any Shareholders’ Agreement), or enter into
any new agreement with respect to its share capital, other than any amendments,
modifications or changes pursuant to this sub-paragraph (v) or any such new
agreements pursuant to this sub-paragraph (v) which the Parent reasonably
concludes do not in any way adversely affect the interests of the Lenders,
provided that nothing in this sub-paragraph (v) shall prevent the Parent or any
of its Subsidiaries from amending its certificate of incorporation or by-laws
to permit the Parent to issue such share capital as is provided in Clause 26.9
(Limitation on Issuance of Share Capital)
or to permit the issuance of share capital otherwise permitted to be issued
pursuant to the terms of this Agreement; or
(vi) amend
or modify, or permit the amendment or modification of, the Intercreditor Deed
(except for the addition of parties thereto as contemplated by this Agreement
and the Intercreditor Deed).
(b) Neither
the Parent nor any of its Subsidiaries shall designate any Indebtedness, other
than the Facilities Obligations, as “Designated Senior Debt” for purposes of
the Senior Subordinated Notes, the other Senior Subordinated Note Documents,
the Senior Subordinated Convertible Bonds or the other Senior Subordinated
Convertible Bond Documents or, on and after the execution and delivery thereof,
in any agreement relating to Permitted Subordinated Indebtedness and Permitted
Refinancing Indebtedness.
26.9 Limitation on Issuance of Share Capital
(a) The
Parent shall not issue (i) any preferred stock (other than (x) Qualified
Preferred Stock, (y) Parent Preference Shares B in accordance with the
applicable provisions set forth in the Articles of Association of the Parent to
Stichting Preferente Aandelen Buhrmann N.V. and (z) Parent Preference
Shares C issued in accordance with the requirements of the Preferred
Equity Financing Documents and the issuance of additional shares of Parent
Preference Shares C in payment of regularly accruing dividends on
theretofore outstanding shares of Parent Preference Shares C) or any
options, warrants or rights to purchase preferred stock or (ii) any
redeemable (except at the option of the Parent) ordinary share capital unless,
in either case, all terms thereof are satisfactory to the Instructing Group in
their sole discretion.
(b) The
Borrower will not issue, and the Parent and the Borrower shall not permit any
of their Subsidiaries (other than a member of the CEAL Group to which the CEAL
Exception Conditions apply) to issue, any share capital (including by way of
sales of treasury stock) or any options or warrants to purchase, or securities
convertible into, share capital, except (i) for transfers and replacements of
then outstanding share capital, (ii) for stock splits, stock dividends and
additional issuances which do not decrease the direct or indirect, as the case
may be, percentage ownership of the Parent in any class of the share capital of
the Borrower or such Subsidiary, (iii) in the case of Non-U.S. Subsidiaries of
the Parent, to qualify directors to the extent required by applicable law and
(iv) Subsidiaries of the Parent formed after the Initial Borrowing Date may
issue share capital to the Parent or the respective Subsidiary of the Parent
which is to own such stock. All share
capital issued in accordance with this paragraph (b) shall, to the extent
required by the Security Documents, be delivered to the Security Trustee for
pledge pursuant to the Security Documents.
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26.10 ERISA Compliance
With respect to any Plan, the
Parent shall not, nor shall it permit any of its Subsidiaries (other
than a member of the CEAL Group to which the CEAL Exception Conditions apply) or ERISA Affiliates to:
(a) engage
in any “prohibited transaction” (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) for which a civil penalty pursuant to
Section 502(i) of ERISA or a tax pursuant to Section 4975 of the Code may
arise;
(b) incur
an “accumulated funding deficiency” (as such term is defined in Section 302 of
ERISA), whether or not waived, or permit any Unfunded Current Liability;
(c) permit
the occurrence of any Termination Event;
(d) except
as discussed in Part V of Schedule 10 (Plans),
be an “employer” (as such term is defined in Section 3(5) of ERISA) required to
contribute to any Multiemployer Plan or a “substantial employer” (as such term
is defined in Section 4001(a)(2) of ERISA) required to contribute to any
Multiemployer Plan; or
(e) permit
the establishment or amendment of any plan or fail to comply with the
applicable provisions of ERISA and the Code with respect to any Plan which
could result in liability to the Parent, any Subsidiary of the Parent or any
ERISA Affiliate,
in
each case which, individually or in the aggregate, is reasonably likely to
result in a Material Adverse Effect.
26.11 Receivables Subsidiary and Permitted Receivables Facility
(a) After
the establishment thereof, each Receivables Subsidiary shall engage in no
business activities other than the purchase, acquisition, sale and pledge of
receivables (or interest therein) and related Receivables Facility Assets
pursuant to Permitted Receivables Facility and borrowings thereunder and any
business activities reasonably incidental thereto, all in accordance with the
terms of the Permitted Receivables Facility, and shall have no assets or
liabilities other than Receivables Facility Assets, cash collections therefrom,
any investments of such cash collections and other assets and liabilities
reasonably incidental to the foregoing activities.
(b) The
Parent and its Subsidiaries shall not cause, permit or suffer to exist
(including as a result of actions taken by the respective receivables
purchasers) any termination of a Permitted Receivables Facility on any date
prior to the Final Maturity Date relating to the C Facility, except in the
event the Permitted Receivables Facility is repaid, refinanced or otherwise
replaced in accordance with the terms hereof by a replacement Permitted
Receivables Facility.
26.12 Limitation on Creation of Subsidiaries
(a) Except
as otherwise specifically provided in paragraph (b) below, the Parent will not,
and will not permit any of its Subsidiaries (other than a member of the CEAL
Group to which the CEAL Exception Conditions apply) to, establish, create or
acquire after the Initial Borrowing Date any Subsidiary, provided that the
Parent and its Wholly-Owned Subsidiaries shall be permitted to establish or
create Wholly-Owned
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Subsidiaries so long as (i) subject to
Clauses 25.7 (Additional Security and
Further Assurances) and 25.8 (Stock
Pledges in Non-U.S. Subsidiaries of the Borrower Which Are Not Guarantors),
the Equity Interests of each such new Wholly-Owned Subsidiary is pledged
pursuant to, and to the extent required by, the applicable Security Documents
and, if such Equity Interests constitute certificated stock, the certificates
representing such Equity Interests, together with stock or other powers duly
executed in blank, are delivered to the Security Trustee for the benefit of the
Finance Parties and (ii) to the extent such new Wholly-Owned Subsidiary is
required, in accordance with the applicable provisions of Clause 25.7 (Additional Security and Further Assurances),
to become a Guarantor, (A) such new Wholly-Owned Subsidiary executes and
delivers an Accession Notice and, in each case unless the Agent otherwise
agrees based on advice of local counsel, the Intercreditor Deed and such other
Security Documents as would have been entered into by the respective Subsidiary
if same had been an Original Guarantor, and takes all action in connection
therewith as would otherwise have been required to be taken if such new
Wholly-Owned Subsidiary had been an Original Obligor and (B) such new
Wholly-Owned Subsidiary, to the extent requested by an Agent or the Instructing
Group, takes all other actions required pursuant to Claus 25.7 (Additional Security and Further Assurances) (including, without limitation, to, at its
own expense, execute, acknowledge and deliver, or cause the execution, acknowledgment
and delivery of, and thereafter register, file or record in any appropriate
governmental office, any document or instrument reasonably deemed by the
Security Trustee to be necessary or desirable for the creation and perfection
of the Liens on its assets intended to be created pursuant to the applicable
Security Documents).
(b) In
addition to Subsidiaries of the Parent created pursuant to preceding clause
(a), the Parent and its Subsidiaries may establish, acquire or create, and make
Investments in, Non-Wholly Owned Subsidiaries after the Initial Borrowing Date
as a result of any Permitted Acquisition (subject to the limitations contained
in the definition thereof) and Investments expressly permitted to be made
pursuant to Clause 26.5 (Advances, Investments
and Loans), provided that, and other than in relation to a
member of the CEAL Group to which the CEAL Exception Conditions apply,
(i) each such Non-Wholly Owned Subsidiary shall not have been
wholly-owned, directly or indirectly, immediately prior to the consummation of
the respective Permitted Acquisition, (ii) all Equity Interests in each such
Non-Wholly Owned Subsidiary shall be pledged by the Obligors which own same to
the extent required by the relevant Security Document and (iii) any actions
required to be taken pursuant to Clause 25.7 (Additional
Security and Further Assurances) in connection with the
establishment, acquisition or creation of, or Investments in, the respective
Subsidiaries are taken in accordance with the requirements of said Clause 25.7
(Additional Security and Further Assurances).
26.13 Assets and EBITDA Attributable to Qualified Obligors
(a) Each
Obligor agrees that it shall not permit, for any Test Period ended after the
Initial Borrowing Date, that portion of Consolidated EBITDA for such Test
Period directly attributable to the Qualified Obligors (determined on a Pro
Forma Basis to include any Qualified Obligors which became such, or were
acquired, established or created, after the first day of the respective Test
Period) to be less than 66-2/3 per cent. of Adjusted Consolidated EBITDA for
such Test Period. For purposes of all
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determinations pursuant to the immediately
preceding sentence, the Consolidated EBITDA directly attributable to the
Qualified Obligors shall be that portion of Consolidated EBITDA directly
attributable to, and generated by, the Qualified Obligors, calculated by
excluding all amounts (including without limitation all amounts representing
earnings on investments or intercompany loans made to the persons hereinafter
described, as well as any Consolidated EBITDA directly attributable to such
persons) attributable to any person which is not a Qualified Obligor.
(b) Each
Obligor agrees that it shall not at any time permit that portion of
Consolidated Tangible Assets directly owned by the Qualified Obligors (and not
by their Subsidiaries or any other person who is not a Qualified Obligor) to be
less than 66-2/3 per cent. of Adjusted Consolidated Tangible Assets at such
time.
26.14 Accounting Policy
The
Parent agrees that it will not adopt any accounting policy or change the
consistency of application of its accounting principles from GAAP (a) unless
the revised policy and practice adopted from time to time is generally accepted
in The Netherlands and/or in accordance with International Accounting Standards
and (b) provided that prior to any revised policy and practice being adopted
the Parent will notify the Agent thereof and, if required by the Agent, will
either (i) negotiate in good faith with the Agent in order that the provisions
of Clause 24 (Financial Condition)
may be amended as may be necessary to grant to the Lenders protection
comparable to that granted on the Effective Date or (ii) provide either
financial statements on the same basis as before or provide financial
statements containing a statement reconciling the previous and the then current
accounting policy in order that the Agent may determine the financial condition
of the Group having regard to the terms of this Agreement.
(a) The
Parent will procure that from time to time, there is delivered to the Agent in
accordance with Clause 25.7 (Additional
Security and Further Assurances) in respect of a Subsidiary of the
Parent after the Effective Date, an Accession Notice duly executed by itself
and the relevant Subsidiary together with the documents set out in Part II of
Schedule 7 (Accession Documents), as required by
Clause 25.7 (Additional Security and Further
Assurances) and such other documents (including any new Security
Documents) as the Agent may reasonably require, in relation to such Subsidiary
all in form and substance satisfactory to the Agent.
(b) Upon
delivery of a duly executed Accession Notice to the Agent, the Subsidiary party
to it, the other Obligors and the Finance Parties, will assume such obligations
towards one another and/or acquire such rights against each other as they would
each have assumed or acquired had such Subsidiary been an original party to
this Agreement as an Original Guarantor, and such Subsidiary shall become a
party to this Agreement as an Acceding Guarantor.
Each of Clause 28.1 (Non-Payment) to
Clause 28.15 (Receivables Facility)
describes the circumstances which constitute an Event of Default for the
purposes of this Agreement.
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28.1 Non-Payment
An
Obligor fails to pay any sum due from it under any Finance Document at the
time, in the currency and in the manner specified in this Agreement (a) in the
case of any principal amount of any Utilisation, in such time, currency and
manner as so specified and (b) in any other case, in such time, currency and
manner as so specified unless failure to pay was due solely to technical or
administrative error in the transmission of funds and the relevant sum is paid
in full within 3 Business Days of the due date.
28.2 Covenants
(a) An
Obligor fails duly to perform or comply with any provision of Clause 26 (Negative Undertakings) (other than Clause
26.10 (ERISA Compliance));
(b) The
financial condition of the Group fails to comply with any provision of Clause
24 (Financial Condition) or any other
requirement of Clause 24 (Financial Condition)
is not satisfied.
28.3 Other Obligations
An
Obligor fails duly to perform or comply with any of the obligations expressed
to be assumed by it in any of the Finance Documents (other than any of those
referred to in Clauses 28.1 (Non-Payment)
and 28.2 (Covenants)) and such failure, if capable
of remedy, is not so remedied within 30
Business Days after written notice to the Parent from the Agent.
28.4 Misrepresentation
Any
representation or statement made or deemed to have been made by an Obligor in
any Finance Document or in any notice or other document, certificate or
statement delivered by it, pursuant to it or in connection therewith is or
proves to have been incorrect or misleading in any material respect when made
or deemed to have been made.
28.5 Cross Default
(a) Any
Primary Indebtedness of any member of the Group is not paid when due or within
any originally applicable grace period;
(b) Any
Primary Indebtedness of any member of the Group is declared (or is capable of
being declared) to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default (however described); or
(c) Any
commitment for any Primary Indebtedness of any member of the Group is cancelled
or suspended by a creditor of any member of the Group as a result of an event
of default (however described).
Provided
that no Event of Default will occur under this Clause 28.5 if the aggregate
amount of Primary Indebtedness and/or commitment for Primary Indebtedness
falling within paragraphs (a) to (c) above is less than €15,000,000 (or its equivalent in other
currencies).
For the purposes of this Clause 28.5 only, “Primary Indebtedness”
shall mean each of the items as set out in paragraphs (a), (b), (c), (d), (f)
and (g) of the definition of “Indebtedness”.
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28.6 Insolvency
Any
member of the Group is unable to pay its debts as they fall due, ceases or
suspends generally payment of its debts or announces an intention to do so, or
commences negotiations with, or makes a proposal to do so, any one or more of
its creditors (other than any of the Finance Parties) with a view to the
general readjustment or rescheduling of its Indebtedness or makes a general
assignment for the benefit of or a composition with its creditors or a
moratorium is declared in respect of the Indebtedness of any member of the
Group.
28.7 Winding-up
Any
member of the Group takes any corporate action or other steps are taken or
legal proceedings are started (other than legal proceedings of a frivolous or
vexatious nature which are being contested in good faith and are stayed or
discharged within 21 days) for its winding-up, dissolution, administration or
re-organisation or for the appointment of a liquidator, receiver,
administrator, administrative receiver, conservator, custodian, trustee or
similar officer of it or of any or all of its revenues and assets other than in
connection with an amalgamation or re-organisation on a solvent basis.
28.8 Execution or Distress
Any
execution, expropriation, attachment, sequestration or distress is levied
against, or an encumbrancer takes possession of, the whole or any part of, the
property, undertaking or assets of any member of the Group having an aggregate
value of more than €15,000,000 (or
its equivalent in other currencies) and the same is not discharged within 60 days.
28.9 Similar Events
Any
event occurs which, under the laws of any jurisdiction, has a similar or
analogous effect to any of those events mentioned in Clause 28.6 (Insolvency), 28.7 (Winding-up) or
Clause 28.8 (Execution or Distress).
28.10 Change of Control
(a) After
the Initial Borrowing Date, the Borrower ceases to be a Wholly-Owned Subsidiary
of Parent.
(b) There
is a Change of Control.
28.11 Repudiation
Any
Obligor repudiates any of the Finance Documents to which it is party or does or
causes to be done any act or thing evidencing an intention to repudiate any of
the Finance Documents to which it is party.
28.12 Illegality
At
any time it is or becomes unlawful for an Obligor to perform or comply with any
or all of its obligations under any of the Finance Documents to which it is
party or any of the obligations of an Obligor under any of the Finance
Documents to which it is party are not or cease to be legal, valid and binding.
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28.13 Qualifications of Financial Statements
The
auditors qualify their report on any audited consolidated financial statements
of the Group in any regard which, in the opinion of the Agent acting on the
instructions of an Instructing Group, is material in the context of the Finance
Documents and the transactions contemplated thereby.
28.14 Guarantee
The
Guarantee or any provision thereof shall cease to be in full force or effect as
to the relevant Guarantor (unless such Guarantor (other than the Parent) is no
longer a Subsidiary by virtue of a liquidation, sale, merger or consolidation
permitted by Clause 26.2 (Consolidation,
Merger, Purchase or Sale of Assets, etc.)), or any Guarantor or
person acting by or on behalf of such Guarantor shall deny or disaffirm such
Guarantor’s obligations under the Guarantee, or any Guarantor shall default in
the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to the Guarantee.
28.15 Receivables Facility
Any
default resulting in an early amortisation event or event permitting any
receivables purchaser or receivables purchasers to effect an early termination
of any Permitted Receivables Facility (or a portion thereof) shall have
occurred and be continuing (after giving effect to any legally valid written
waivers of such events adopted by the relevant receivables purchasers).
28.16 Acceleration
Upon the occurrence of an
Event of Default and while the same is continuing at any time thereafter, the
Agent may (and, if so instructed by an Instructing Group, shall) by written
notice to the Borrower:
(a) declare
all or any part of the Outstandings to be immediately due and payable
(whereupon the same shall become so payable together with accrued interest
thereon and any other sums then owed by any Obligor under the Finance
Documents) or declare all or any part of the Outstandings to be due and payable
on demand of the Agent; and/or
(b) require
the Borrower to procure that the Outstanding L/C Amount are promptly reduced to
zero and/or provide cash collateral therefore by deposit in such interest
bearing account as the Agent may specify, in an amount specified by the Agent
and in the currency of such Outstanding L/C Amount (whereupon the Parent shall
do so); and/or
(c) declare
that any unutilised portion of the Facilities shall be cancelled, whereupon the
same shall be cancelled and the corresponding Commitments of each Lender shall
be reduced to zero; and/or
(d) exercise
or direct the Security Trustee to exercise any rights and remedies (including
any right to demand cash collateral by deposit in such interest-bearing account
as the Agent may specify).
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28.17 Repayment on Demand
If, pursuant to paragraph (a)
of Clause 28.16 (Acceleration),
the Agent declares all or any part of the Outstandings to be due and payable on
demand of the Agent, then, and at any time thereafter, the Agent may (and, if
so instructed by an Instructing Group, shall) by written notice to the Parent:
(a) require
repayment of all or the relevant part of the Advances on such date as it may
specify in such notice (whereupon the same shall become due and payable on such
date together with accrued interest thereon and any other sums then owed by any
Obligor under the Finance Documents) or withdraw its declaration with effect
from such date as it may specify in such notice; and/or
(b) select
as the duration of any Interest Period or Term which begins whilst such
declaration remains in effect a period of 3 months or less.
28.18 Sharing Events: Special Sharing and Conversion Provisions Applicable
to Revolving Facility Lenders
(a) On the
date of the occurrence of a Sharing Event, automatically (and without the
taking of any action):
(i) all
then Revolving Facility Outstandings then maintained in, and all Outstanding
L/C Amounts owed in, one or more currencies other than euros shall be
automatically converted into Outstandings maintained in, or owing in, euros (in
an amount equal to the Euro Amount of the aggregate principal amount of the
respective Outstandings on the date such Sharing Event first occurred, which
such Outstandings shall continue to be owed by the Borrower and shall be
immediately due and payable on the date such Sharing Event has occurred); and
(ii) all
principal, accrued and unpaid interest and other amounts owing with respect to
such Outstandings or Documentary Credit (except in respect of Utilisations
which have not yet occurred) shall be immediately due and payable in euros,
taking the Euro Amount of such principal, accrued and unpaid interest and other
amounts.
The occurrence of any conversion of Revolving Facility
Advances as provided above in this Clause 28.18 shall be deemed to constitute,
for purposes of Clause 33.2 (Break Costs),
a prepayment of the respective Revolving Facility Outstandings before the last
day of any Term relating thereto.
(b) Upon
the occurrence of a Sharing Event, automatically (and without the taking of any
action):
(i) all
then Swingline Facility Outstandings then maintained in one or more currencies
other than euros shall be automatically converted into Swingline Facility
Outstandings maintained in euros (in an amount equal to the Euro Amount of the
aggregate principal amount of the respective Swingline Facility Outstandings on
the date such Sharing Event first occurred, which such Outstandings shall
continue to be owed by the Borrower and shall be
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immediately due and payable on the date such
Sharing Event has occurred); and
(ii) all
accrued and unpaid interest and other amounts owing with respect to such
Outstandings shall be immediately due and payable in euros, taking the Euro
Amount of such accrued and unpaid interest and other amounts.
(c) Upon
the occurrence of a Sharing Event, each Revolving Facility Lender shall (and
hereby unconditionally and irrevocably agrees to) purchase and sell (in each
case in euro) undivided participating interests in the Revolving Facility
Outstandings and Outstanding L/C Amounts, in such amounts so that each
Revolving Facility Lender shall have a share of each such Outstandings equal to
its Proportion of the Revolving Facility prior to the incurrence of such
Outstandings.
Upon
any such occurrence the Agent shall notify each Revolving Facility Lender and
shall specify the amount of euros required from such Revolving Facility Lender
in order to effect such purchases and sales in the amounts required above
(together with accrued interest with respect to the period for the last
interest payment date through the date of the Sharing Event plus any
additional amounts payable by the Borrower pursuant to Clause 18 (Taxes) in respect of such accrued but
unpaid interest), provided that, in the event that a Sharing Event shall
have occurred, each such Revolving Facility Lender shall be deemed to have
purchased, automatically and without request, such participating interests
(and, as a result thereof, shall be entitled to receive from, or shall owe to,
the other Revolving Facility Lenders the respective amounts owing as a result
of the purchases and sales of participations contemplated herein). Promptly upon receipt of such request, each
Revolving Facility Lender shall deliver to the Agent (in immediately available
funds in euros) the net amounts as specified by the Agent. The Agent shall promptly deliver the amounts
so received to the various Lenders in such amounts as are needed to effect the
purchases and sales of participations as provided above. Promptly following receipt thereof, each
Revolving Facility Lender which has sold participations in any of its Revolving
Facility Outstandings and Outstanding L/C Amounts (through the Agent) will
deliver to each Revolving Facility Lender (through the Agent) which has so
purchased a participating interest a participation certificate dated the date
of receipt of such funds and in such amount.
It is understood that the amount of funds delivered by each Revolving
Facility Lender shall be calculated on a net basis, giving effect to both the
sales and purchases of participations by the various Revolving Facility Lenders
as required above.
(d) Upon,
and after, the occurrence of a Sharing Event:
(i) no
further Utilisations shall be made or occur;
(ii) all
amounts from time to time accruing with respect to, and all amounts from time
to time payable on account of, the Revolving Facility Advances and Swingline
Facility Outstandings (including, without limitation, any interest and other
amounts which were accrued but unpaid on the date of such purchase) shall be
payable in euros as if each such Outstandings had originally been made in euros
and shall be distributed by the relevant Revolving Facility Lenders (or their
Affiliates) to the Agent for the account of the Revolving
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Facility
Lenders which made available such Facilities or are participating therein; and
(iii) the
Revolving Facility Commitments shall be automatically terminated.
Notwithstanding anything to the contrary
contained above, the failure of any Revolving Facility Lender to purchase its
participating interest as required above in any extensions of credit upon the
occurrence of a Sharing Event shall not relieve any other Revolving Facility
Lender of its obligation hereunder to purchase its participating interests in a
timely manner, but no Revolving Facility Lender shall be responsible for the
failure of any other Revolving Facility Lender to purchase the participating
interest to be purchased by such other Revolving Facility Lender on any date.
(e) If any
amount required to be paid by any Revolving Facility Lender pursuant to
paragraph (c) above is not paid to the Agent on the date upon which such
Revolving Facility Lender receives notice from the Agent of the amount of its
participations required to be purchased pursuant to paragraph (c) above, such
Revolving Facility Lender shall also pay to the Agent on demand an amount equal
to the product of (i) the amount so required to be paid by such Revolving
Facility Lender for the purchase of its participations, (ii) the daily average
rate which the Agent is offering overnight deposits in euro, during the period
from and including the date of request for payment to the date on which such
payment is immediately available to the Agent and (iii) a fraction the
numerator of which is the number of days that elapsed during such period and
the denominator of which is 360. If any
such amount required to be paid by any Revolving Facility Lender pursuant to
paragraph (c) is not in fact made available to the Agent within two Business
Days following the date upon which such Revolving Facility Lender receives
notice from the Agent as to the amount of participations required to be
purchased by it, the Agent shall be entitled to recover from such Revolving
Facility Lender on demand, such amount with interest thereon calculated from
such request date at the rate per annum applicable to Revolving
Facility Advances. A certificate of the
Agent submitted to any Revolving Facility Lender with respect to any amounts
payable under this Clause 28.18 shall be conclusive in the absence of manifest
error. Amounts payable by any Revolving
Facility Lender pursuant to this Clause 28.18 shall be paid to the Agent for
the account of the relevant Revolving Facility Lenders, provided that,
if the Agent (in its sole discretion) has elected to fund on behalf of such
Revolving Facility Lender the amounts owing to such Revolving Facility Lenders,
then the amounts shall be paid to the Agent for its own account.
(f) Whenever,
at any time after the relevant Revolving Facility Lenders have received from
any Revolving Facility Lenders purchases of participations pursuant to this
Clause 28.18, the various Revolving Facility Lenders receive any payment on
account thereof, such Revolving Facility Lenders will distribute to the Agent,
for the account of the various Revolving Facility Lenders participating
therein, such Revolving Facility Lenders’ participating interests in such
amounts (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such participations were outstanding) in like
funds as received, provided, however, that in the event that such
payment received by any Revolving Facility Lenders is required to be returned,
the Revolving Facility Lenders who received previous distributions in respect
of their participating interests therein will return to the respective
Revolving
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Facility
Lenders any portion thereof previously so distributed to them in like funds as
such payment is required to be returned by the respective Revolving Facility
Lenders.
(g) Each
Revolving Facility Lender’s obligation to purchase participating interests
pursuant to this Clause 28.18 shall be absolute and unconditional and shall not
be affected by any circumstance including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Revolving Facility
Lender may have against any other Revolving Facility Lender, the Parent, the
Borrower or any other person for any reason whatsoever, (ii) the occurrence or
continuance of an Event of Default, (iii) any adverse change in the condition
(financial or otherwise) of the Parent, the Borrower or any other person, (iv)
any breach of this Agreement by the Parent, the Borrower or any Lender or any
other person, or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(h) Notwithstanding
anything to the contrary contained elsewhere in this Agreement, upon any purchase
of participations as required above, each Revolving Facility Lender which has
purchased such participations shall be entitled to receive from the Borrower
any increased costs and indemnities (including, without limitation, pursuant to
Clauses 33 (Borrower’s Indemnities),
19 (Increased Costs) and 18 (Taxes)) directly from the Borrower to the
same extent as if it were the direct Lender as opposed to a participant
therein. The Borrower acknowledges and
agrees that, upon the occurrence of a Sharing Event and after giving effect to
the requirements of this Clause 28.18, increased taxes may be owing by it
pursuant to Clause 18 (Taxes),
which taxes shall be paid (to the extent provided in Clause 18 (Taxes)) by the Borrower, without any claim
that the increased taxes are not payable because same resulted from the
participations effected as otherwise required by this Clause 28.18.
29.1 Consequences of Non-Payment
If any sum due and
payable by an Obligor under this Agreement is not paid on the due date therefor
in accordance with the provisions of Clause 35 (Payments)
or if any sum due and payable by an Obligor pursuant to a judgment of any court
in connection with this Agreement is not paid on the date of such judgment, the
period beginning on such due date or, as the case may be, the date of such
judgment and ending on the Business Day which the obligation of such Obligor to
pay the Unpaid Sum is discharged shall be divided into successive periods, each
of which (other than the first) shall start on the last day of the preceding
such period (which shall be a Business Day) and the duration of each of which
shall (except as otherwise provided in this Clause 29) be selected by the
Agent.
29.2 Default Rate
During each such
period relating thereto as is mentioned in Clause 29.1 (Consequences
of Non-Payment) an Unpaid Sum shall bear interest at the rate
per annum which is the sum from time to time of 2 per cent., the Applicable
Margin (provided that if any Unpaid Sum is not directly referable to a
particular Facility the Applicable Margin shall be the B Facilities Margin), the Associated Costs Rate at such time and the Relevant Interbank Rate, on
the Quotation Date therefor, provided that:
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(a) if,
for any such period, the Relevant Interbank Rate, cannot be determined, the
rate of interest applicable to each Lender’s portion of such Unpaid Sum shall
be the rate per annum which is the sum of 2 per cent., the Applicable Margin,
and the Associated Costs Rate at such time and the rate per annum shall be that
notified to the Agent by such Lender as soon as practicable after the beginning
of such period as being that which expresses as a percentage rate per annum the
cost to such Lender of funding from whatever sources it may select its portion
of such Unpaid Sum during such period; and
(b) if
such Unpaid Sum is all or part of an Advance which became due and payable on a
day other than the last day of an Interest Period or Term relating thereto, the
first Interest Period applicable to it shall be of a duration equal to the
unexpired portion of that Interest Period or Term and the rate of interest
applicable thereto from time to time during such Interest Period shall be that
which exceeds by 2 per cent. the rate which would have been applicable to it
had it not so fallen due.
29.3 Maturity of Default Interest
Any interest which
shall have accrued under Clause 29.2 (Default Rate)
in respect of an Unpaid Sum shall be due and payable and shall be paid by the
Obligor owing such sum at the end of the period by reference to which it is
calculated or on such other dates as the Agent may specify by written notice to
such Obligor.
29.4 Construction of Unpaid Sum
Any Unpaid Sum
shall (for the purposes of this Clause 29 (Default
Interest), Clause 19 (Increased Costs),
Clause 33 (Borrower’s Indemnities) and Schedule 6 (Associated Costs Rate)) be treated as an advance and
accordingly in those provisions the term “Advance” includes any Unpaid Sum and
the term “Interest Period” and “Term”, in relation to an Unpaid Sum, includes
each such period relating thereto as is mentioned in Clause 29.1 (Consequences of Non-Payment).
30.1 Guarantee
Each Guarantor
irrevocably and unconditionally guarantees, jointly and severally, to each of
the Finance Parties the due and punctual payment by the Borrower of all sums
payable under each of the Finance Documents and agrees that promptly on demand
it will pay to the Agent each and every sum of money which the Borrower is at
any time liable to pay to any Finance Party under or pursuant to any Finance
Document which is due but unpaid.
30.2 Indemnity
Each Guarantor
irrevocably and unconditionally agrees, jointly and severally, as primary
obligor and not only as surety, to indemnify and hold harmless each Finance
Party on demand by the Agent from and against any loss incurred by such Finance
Party as a result of any of the obligations of the Borrower under or pursuant
to any Finance Document being or becoming void, voidable, unenforceable or ineffective
as against the Borrower for any reason whatsoever (whether or not known to that
Finance Party or any other person) the amount of
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such loss
being the amount which the Finance Party suffering it would otherwise have been
entitled to recover from the Borrower.
30.3 Continuing and Independent Obligations
The obligations of
each Guarantor under this Agreement shall constitute and be continuing
obligations which shall not be released or discharged by any intermediate
payment or settlement of all or any of the obligations of the Borrower under
the Finance Documents, shall continue in full force and effect until the
unconditional and irrevocable payment and discharge in full of all amounts
owing by the Borrower under each of the Finance Documents and are in addition
to and independent of, and shall not prejudice or merge with, any other
security (or right of set-off) which any Finance Party may at any time hold in
respect of such obligations or any of them.
30.4 New Accounts
If the Agent makes
demand of the Guarantors or any of them pursuant to this Clause 30:
(a) the
Agent may open a new account or accounts in respect of the liabilities of the
Borrower to which this guarantee relates or any of them (and if it does not do
so it shall be treated as if it had done so at the time it made such demand);
and
(b) thereafter
any amounts paid by the Borrower (or any other person) to the Agent in respect
of the liabilities of the Borrower under any of the Finance Documents shall be
credited (or be treated as having been credited) to a new account and not as
having been applied in or towards payment of such liabilities or any of them.
30.5 Avoidance of Payments
Where any release,
discharge or other arrangement in respect of any obligation of the Borrower, or
any Security any Finance Party may hold therefor, is given or made in reliance
on any payment or other disposition which is avoided or must be repaid (whether
in whole or in part) in an insolvency, liquidation or otherwise and whether or
not any Finance Party has conceded or compromised any claim that any such
payment or other disposition will or should be avoided or repaid (in whole or
in part), the provisions of this Clause 30 shall continue as if such release,
discharge or other arrangement had not been given or made.
30.6 Immediate Recourse
None of the Finance
Parties shall be obliged, before exercising or enforcing any of the rights
conferred upon them in respect of the Guarantors by this Agreement or by Law,
to seek to recover amounts due from the Borrower or to exercise or enforce any
other rights or Security any of them may have or hold in respect of any of the
obligations of the Borrower under any of the Finance Documents.
30.7 Waiver of Defences
Neither the
obligations of the Guarantors contained in this Agreement nor the rights,
powers and remedies conferred on the Finance Parties in respect of the
Guarantors by this Agreement or by Law shall be discharged, impaired or
otherwise affected by:
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(a) the
winding-up, dissolution, administration or re-organisation of the Borrower or
any other person or any change in the status, function, control or ownership of
the Borrower or any such person;
(b) any of
the obligations of the Borrower or any other person under any Finance Document
or any security held by any Finance Party therefor being or becoming illegal,
invalid, unenforceable or ineffective in any respect;
(c) any
time or other indulgence being granted to or agreed (i) to or with the Borrower
or any other person in respect of its obligations or (ii) in respect of any
security granted under any Finance Documents;
(d) any
amendment to, or any variation, waiver or release of, any obligation of, or any
security granted by, the Borrower or any other person under any Finance
Document;
(e) any
total or partial failure to take, or perfect, any security proposed to be taken
in respect of the obligations of the Borrower or any other person under the
Finance Documents;
(f) any
total or partial failure to realise the value of, or any release, discharge,
exchange or substitution of, any security held by any Finance Party in respect
of the Borrower’s obligations under any Finance Document; or
(g) any
other act, event or omission which might operate to discharge, impair or
otherwise affect any of the obligations of any of the Guarantors under this
Agreement or any of the rights, powers or remedies conferred upon the Finance
Parties or any of them by this Agreement or by Law.
30.8 No Competition
Any rights which
any Guarantor may at any time have by way of contribution or indemnity in
relation to any of the obligations of the Borrower under any of the Finance
Documents or to claim or prove as a creditor of the Borrower or any other
person or its estate in competition with the Finance Parties or any of them,
shall be exercised by such Guarantor only if and to the extent that the Agent
so requires and in such manner and upon such terms as the Agent may specify and
each Guarantor shall hold any moneys, rights or Security held or received by it
as a result of the exercise of any such rights on trust for the Agent for
application in or towards payment of any sums at any time owed by the Borrower
under any of the Finance Documents as if such moneys, rights or Security were
held or received by the Agent under this Agreement.
30.9 Appropriation
No Finance Party
shall be obliged to apply any sums held or received by it in respect of the
obligations of the Borrower under any of the Finance Documents in or towards
payment of amounts owing under any of the Finance Documents, and any such sum
may, in the relevant Finance Party’s discretion, be credited to a suspense or
impersonal account and held in such account pending the application from time
to time (as the relevant Finance Party may think fit) of such sums in or
towards the discharge of such liabilities owed to it under the Finance
Documents as such Finance Party may select.
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30.10 Limitation of Liabilities
Notwithstanding
that the guarantees of the Guarantors contained in this Clause 30 are
guarantees of the whole of each and every sum payable by the Borrower under
each of the Finance Documents, it is agreed and acknowledged that the maximum
amount recoverable from each Guarantor under Clauses 30.1 (Guarantee)
and 30.2 (Indemnity) shall be limited to the
extent set out in this Clause 30 or otherwise, as agreed by the Agent and set
out in an Accession Notice executed by an Acceding Guarantor; for this purpose,
any amount due to a Finance Party under a Finance Document in a currency other
than euro shall be converted into euro at the Agent’s Spot Rate of Exchange on
the date on which a demand is made pursuant to either or both of such Clauses.
30.11 Matters relating to U.S. law
Each U.S. Guarantor
hereby confirms that the Guarantee shall not constitute a fraudulent transfer
or conveyance for purposes of the United States Bankruptcy Code, the United
States Uniform Fraudulent Conveyance Act or any similar federal or state
law. To effectuate the foregoing
intention, each U.S. Guarantor hereby irrevocably agrees that the obligations
guaranteed by each such Guarantor shall be limited to such amount as will,
after giving effect to such maximum amount and all other (contingent or
otherwise) liabilities of such Guarantor that are relevant under such laws,
result in the obligations of such Guarantor in respect of such maximum amount
not constituting a fraudulent transfer or conveyance.
30.12 Matters relating to Dutch law
Each Dutch
Guarantor hereby confirms that the Guarantee and any other acts constituted by
any of the Finance Documents to which it is a party will not or is not intended
to constitute unlawful financial assistance within the meaning of Section
2.207c or 2.98c of the Dutch Civil Code which could be invoked by such Dutch
Guarantor. Such acts are deemed to be
restricted or not entered into, as appropriate, if and to the extent required
not to cause such unlawful financial assistance and this Agreement and the
relevant Finance Documents shall be construed accordingly.
30.13 Matters relating to Belgian law
Anything herein or
in the Finance Documents to the contrary notwithstanding, the maximum liability
of the Belgian Guarantor hereunder shall be limited to the highest of (a) the
Net Assets of the Belgian Guarantor at the date hereof, (b) the Net Assets of
the Belgian Guarantor at the date of the enforcement of such liability and (c)
the total of all amounts borrowed under the Finance Documents which have been
on-lent to the Belgian Guarantor. For these purposes, “Net Assets” shall have
the meaning given to such term (“l’actif net/netto-actief”) in Article 617 of
the Belgian Company Code.
30.14 Matters relating to Luxembourg law
Notwithstanding anything to the contrary in the
Guarantee, the payment undertaking of the Luxembourg Guarantor shall be limited
at any time to an aggregate amount not exceeding 85 per cent. of the greater of
the Luxembourg Guarantor’s own funds (“capitaux propres”) as mentioned in its
then most recently approved financial statements, or as mentioned in its last
filed financial statements.
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30.15 Matters relating to Australian law
Notwithstanding anything to the contrary contained
elsewhere in this Agreement (including without limitation in this Clause 30) or
any Finance Document, it is acknowledged and agreed that, in the case of the
pledge of Equity Interests in CEAL only, the aggregate amount secured by said
Equity Interests is, until such time as otherwise required by the immediately
succeeding sentence, limited to €10,000,000.
The purpose of this provision is to ensure that the Finance Parties
remain fully secured after the date of the pledge of Equity Interests. Notwithstanding anything to the contrary in
this Clause 30.15, if at any time, or from time to time, the Instructing Group
specify, by written notice to the Parent, Buhrmann International B.V. and the Security
Trustee, that the amount secured by the Equity Interests in CEAL be increased
to a specified amount, such increase shall automatically occur in accordance
with the share mortgage of CEAL between Buhrmann International BV and the
Security Trustee. In connection with any
notice given in accordance with the immediately preceding sentence, the Lenders
hereby agree that they shall not specify that the amount secured by the Equity
Interests in CEAL be increased above an amount which is equal to 120 per cent.
of the reasonable estimate (by the Instructing Group) of the maximum fair
market value of Equity Interest so pledged, in each case as reasonably
determined by the Instructing Group; provided that the Parent and its
Subsidiaries shall be bound by any determination of such maximum fair market
value by the Instructing Group and shall have no rights against any Finance
Party whatsoever for any error by the Instructing Group in arriving at such
amount. In connection with such
increase, the Parent shall, and shall cause its respective Subsidiaries to,
execute and deliver such modifications or supplements to the Security Documents
as may be requested by the Security Trustee to evidence the increase of the
amount so secured and shall pay all stamp tax (and any other amounts) owing in
connection with the increase in the amount secured. All actions required in accordance with this
Clause 30.15 shall be taken within 20 days after the Parent’s receipt of any
such specification. It is understood
that all stamp tax and other charges, expenses or duties payable in connection
with any of the actions taken as described above shall be for the joint and
several account of the Obligors. If for
any reason the Parent does not cause the actions required to be taken as described
above to be taken in accordance with any request from the Instructing Group,
the Instructing Group (or the Security Trustee at their direction) may (but
shall not be required to) take any such actions (and pay any stamp duties,
taxes or charges owing in connection therewith) and shall be entitled to
immediate reimbursement from the Obligors for any such amounts expended by
them.
31.1 Appointment of the Agent
Each of the other
Finance Parties appoints the Agent to act as its agent under and in connection
with the Finance Documents and authorises the Agent to exercise the rights,
powers, authorities and discretions specifically delegated to it under or in
connection with the Finance Documents together with any other incidental
rights, powers, authorities and discretions.
31.2 Duties of the Agent
(a) The
Agent shall promptly inform each Lender of the contents of any notice or
document received by it in its capacity as Agent from any of the Obligors under
this Agreement.
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(b) The
Agent shall promptly notify the Lenders of the occurrence of any Event of
Default or any default by an Obligor in the due performance of or compliance
with its obligations under any Finance Document upon becoming aware of the
same.
(c) If so
instructed by an Instructing Group, the Agent shall refrain from exercising any
power or discretion vested in it as agent under any Finance Document.
(d) The
duties of the Agent under the Finance Documents are, save to the extent
otherwise expressly provided, solely mechanical and administrative in nature.
31.3 Role of the Arrangers
Except as
specifically provided in the Finance Documents, the Arrangers shall have no
obligations of any kind to any other party under or in connection with any
Finance Document.
31.4 No Fiduciary Duties
(a) Nothing
in the Finance Documents constitutes the Agent or any of the Arrangers as a
trustee or fiduciary of any other person.
(b) Neither
the Agent nor any of the Arrangers shall be bound to account to any Lender for
any sum or the profit element of any sum received by it for its own account.
31.5 Business with the Group
The Agent and the
Arrangers may accept deposits from, lend money to and generally engage in any
kind of banking or other business with any member of the Group.
31.6 Discretion of the Agent
(a) The
Agent may rely on:
(i) any
representation, notice or document believed by it to be genuine, correct and
appropriately authorised; and
(ii) any
statement made by a director, authorised signatory or employee of any person
regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify.
(b) The
Agent may assume, unless it has received notice to the contrary in its capacity
as agent for the Lenders, that:
(i) no
Default has occurred;
(ii) any
right, power, authority or discretion vested in this Agreement upon any party,
the Lenders or an Instructing Group has not been exercised; and
(iii) any
notice or request made by the Parent is made on behalf of and with the consent
and knowledge of all the Obligors.
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(c) The
Agent may engage, pay for and rely on the advice or services of any lawyers,
accountants, surveyors or other experts.
(d) The
Agent may act in relation to the Finance Documents through its personnel and
agents.
(e) The
Agent may execute on behalf of any L/C Bank any Documentary Credit issued under
this Agreement.
31.7 Instructing Group’s Instructions
(a) Unless
a contrary indication appears in a Finance Document, the Agent shall
(i) act in accordance with any instructions given to it by an Instructing
Group (or, if so instructed by an Instructing Group, refrain from acting or
exercising any right, power, authority or discretion vested in it as Agent) and
(ii) shall not be liable for any act (or omission) if it acts (or refrains
from taking any action) in accordance with such an instruction of an
Instructing Group.
(b) Unless
a contrary indication appears in a Finance Document, any instructions given by
an Instructing Group will be binding on all the Finance Parties.
(c) The
Agent may refrain from acting in accordance with the instructions of an
Instructing Group (or, if appropriate, the Lenders) until it has or received
such security or collateral as it may require for any cost, loss or liability
which it may incur in complying with such instructions.
(d) In the
absence of instructions from an Instructing Group (or, if appropriate, the
Lenders), the Agent may act (or refrain from taking action) as it considers to
be in the best interest of the Lenders.
(e) The
Agent is not authorised to act on behalf of a Lender in any legal or
arbitration proceedings relating to any Finance Document without first obtaining
the Lender’s consent to do so.
31.8 No Responsibility
The Agent and the
Arrangers are not:
(a) responsible
for the adequacy, accuracy and/or completeness of any information (whether oral
or written) supplied by any Finance Party or an Obligor or any other person in
or in connection with any Finance Document, including the Information
Memorandum and the Agreed Business Plan; or
(b) responsible
for the legality, validity, effectiveness, adequacy or enforceability of any
Finance Document or any other agreement, arrangement or document entered into,
made or executed in anticipation of or in connection with any Finance Document.
31.9 Exclusion of Liability
(a) Without
limiting paragraph (b) of this Clause, the Agent will not be liable for any
action taken by it under or in connection with any Finance Document, unless
directly caused by its gross negligence or wilful misconduct.
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(b) Each
of the Lenders agrees that it will not take any proceedings, or assert or seek
to assert any claim, against any officer, employee or agent of the Agent in
respect of any claim it might have against the Agent or in respect of any act
or omission of any kind by that officer, employee or agent in relation to any
Finance Document and agrees that any officer, employee or agent of the Agent
may enforce this provision.
(c) The
Agent will not be liable for any delay (or any related consequences) in
crediting an account with an amount required under the Finance Documents to be
paid by it if it has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating procedures of any
recognised clearing or settlement system used by it for that purpose.
31.10 Lender’s Indemnity
Each Lender shall
(in its relevant Proportion (as determined at all times for these purposes in
accordance with paragraph (c) of the definition of “Proportion”), indemnify the
Agent from time to time on demand by the Agent against any cost, loss or
liability incurred by the Agent (otherwise than by reason of its gross
negligence or wilful misconduct) in acting as Agent under the Finance Documents
(unless it has been reimbursed therefor by an Obligor pursuant to the terms of
the Finance Documents).
31.11 Resignation
(a) The
Agent may resign and appoint one of its Affiliates acting through an office in
the United Kingdom as successor Agent by giving notice to the Lenders and the
Parent.
(b) Alternatively
the Agent may resign without having designated a successor as agent under
paragraph (a) above (and shall do so if so required by an Instructing Group) by
giving notice to the Lenders and the Parent, in which case an Instructing Group
(after consultation with the Parent) may appoint a successor Agent.
(c) If an
Instructing Group has not appointed a successor Agent in accordance with
paragraph (b) above within 30 days after notice of resignation was given, the
Agent (after consultation with the Parent) may appoint a successor Agent
(acting through an office in the United Kingdom).
(d) The
retiring Agent shall, at the Parent’s cost, make available to its successor
such documents and records and provide such assistance as its successor may
reasonably request for the purposes of performing its functions as Agent under
the Finance Documents.
(e) The
resignation notice of the Agent shall only take effect upon the appointment of
a successor Agent.
(f) Upon
the appointment of a successor, the retiring Agent shall be discharged from any
further obligation in respect of the Finance Documents but shall remain
entitled to the benefit of this Clause 31.
The Agent’s successor and each of the other parties to this Agreement
shall have the same rights and obligations amongst themselves as they would
have had if such successor Agent had been an original party as Agent.
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31.12 Confidentiality
(a) The
Agent (in acting as agent for the Finance Parties) shall be regarded as acting
through its respective agency division which in each case shall be treated as a
separate entity from any other of its divisions or departments.
(b) If
information is received by another division or department of the Agent, it may
be treated as confidential to that division or department and the Agent shall
not be deemed to have notice of it.
(c) Notwithstanding
any other provision of any Finance Document to the contrary, the Finance
Parties are not obliged to disclose to any other person (i) any confidential
information or (ii) any other information if the disclosure would, or might in
its reasonable opinion, constitute a breach of any Law.
31.13 Facility Office
The Agent may treat
each Lender as a Lender, entitled to payments under this Agreement and acting
through its Facility Office unless it has received not less than 5 Business
Days’ prior notice from that Lender to the contrary in accordance with the
terms of this Agreement.
31.14 Lenders’ Associated Costs Details
Each Lender shall
supply the Agent with any information required by the Agent in order to calculate
the Associated Costs Rate in accordance with Schedule 6 (Associated
Costs Rate).
31.15 Credit Appraisal by the Lenders
Without affecting
the responsibility of any Obligor for information supplied by it or on its
behalf in connection with any Finance Document, each Lender confirms to the
Agent and the Arrangers that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with any Finance Document including but
not limited to:
(a) the
financial condition, status and nature of each member of the Group;
(b) the
legality, validity, effectiveness, adequacy or enforceability of any Finance
Document and any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance Document;
(c) whether
that Lender has recourse, and the nature and extent of that recourse, against
any party or any of its respective assets under or in connection with any
Finance Document, the transactions contemplated by the Finance Documents or any
other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document; and
(d) the
adequacy, accuracy and/or completeness of the Information Memorandum and the
Agreed Business Plan and any other information provided by the Agent, the
Arrangers or by any other person under or in connection with any Finance
Document, the transactions contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document.
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31.16 Deduction from Amounts Payable by the Agent
If any party owes
an amount to the Agent under any Finance Document the Agent may, after giving
notice to that party, deduct an amount not exceeding that amount from any
payment to that party which the Agent would otherwise be obliged to make under
the Finance Documents and apply the amount deducted in or towards satisfaction
of the amount owed. For the purposes of
the Finance Documents that party shall be regarded as having received such
payment without any such deduction.
31.17 Obligors’ Agent
(a) Each
Obligor (other than the Parent) irrevocably authorises the Parent to act on its
behalf as its agent in relation to the Finance Documents and irrevocably
authorises:
(i) the
Parent on its behalf to supply all information concerning itself, its financial
condition and otherwise to the relevant persons contemplated under this
Agreement and to give all notices and instructions to execute on its behalf any
Finance Document and to enter into any agreement in connection with the Finance
Documents notwithstanding that the same may affect such Obligor, without
further reference to or the consent of such Obligor; and
(ii) each
Finance Party to give any notice, demand or other communication to be given to
or served on such Obligor pursuant to the Finance Documents to the Parent on
its behalf,
and in each such case such Obligor will be bound
thereby as though such Obligor itself had supplied such information, given such
notice and instructions, executed such Finance Document and agreement or
received any such notice, demand or other communication.
(b) Every
act, omission, agreement, undertaking, settlement, waiver, notice or other
communication given or made by the Obligors’ Agent under any Finance Document,
or in connection with this Agreement (whether or not known to any other Obligor
and whether occurring before or after such Obligor became an Obligor under this
Agreement), shall be binding for all purposes on all other Obligors as if the
other Obligors had expressly made, given or concurred with the same. In the event of any conflict between any
notices or other communications of the Obligors’ Agent and any other Obligor,
those of the Obligors’ Agent shall prevail.
31.18 Co-operation with the Agent
Each Lender and
each Obligor will co-operate with the Agent to complete any legal requirements
imposed on the Agent in connection with the performance of its duties under
this Agreement and shall supply any information requested by the Agent in
connection with the proper performance of those duties.
32.1 Declaration of Trust
To the extent the
Security Trustee does not hold the Trust Property on trust pursuant to the
terms of the Security Documents, and subject to the provisions of Clause 32.6 (Non-Trust
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Jurisdictions), the Security
Trustee hereby declares itself trustee of the Trust Property for the purpose of
securing the Secured Obligations on the terms and conditions set out in this
Agreement.
32.2 Rights, Duties, Powers, Discretions and Remuneration of the Security
Trustee
(a) The
Security Trustee shall have such rights, powers, authorities and discretions as
are conferred on it by this Agreement (including those set out in Part I of
Schedule 5 (Supplementary Security Trustee Provisions)
to this Agreement) and the Security Documents together with such rights, powers
and discretions as are reasonably incidental thereto.
(b) (i) The Security Trustee may, in its absolute discretion refrain from
taking any (or any further) action or exercising any right, power, authority or
discretion under or in respect of this Agreement or any Security Document until
it has received instructions from the Agent as to whether (and/or the way in
which) such action, right, power, authority or discretion is to be taken or
exercised.
(ii) The
Security Trustee shall act in accordance with any instructions from the Agent
in respect of this Agreement or any of the Security Documents provided that it
has been indemnified and/or provided with security to its satisfaction against
all actions, proceedings, claims and demands to which it may render itself
liable and all costs, charges, damages, expenses and liabilities which it may
incur by so doing.
(c) The
Security Trustee shall be entitled to such remuneration as it may from time to
time agree with the Parent and have approved by the Agent. The Security Trustee shall not by virtue of
receiving any such remuneration or other payment be deprived of any rights,
powers, privileges or immunities which a gratuitous trustee would have had in
relation to this Agreement or any of the Security Documents.
32.3 Indemnity to Security Trustee
Each Finance Party
hereby severally agrees to indemnify the Security Trustee on demand against any
action, charge, claim, cost, damage, demand, expense (including legal fees),
liability, loss or proceeding which may be brought, made or preferred against
or suffered, sustained or incurred by the Security Trustee in complying with
any instructions from the Finance Parties or otherwise sustained or incurred by
the Security Trustee in connection with this Agreement or any Finance Document
or its rights, powers, authorities, discretions, duties, obligations and
responsibilities under any such document except to the extent that the
liability or loss arises directly from the Security Trustee’s gross negligence,
breach of a Finance Document or wilful misconduct.
32.4 Appointment and Retirement of the Security Trustee
The appointment and
retirement of the Security Trustee shall be governed by the provisions set out
in Part II of Schedule 5 (Appointment and Retirement
of Security Trustee).
32.5 Release of Guarantees
The Security
Trustee shall and is hereby authorised by each of the Finance Parties (and to
the extent it may have any interest therein, every other party hereto) to
execute on behalf of itself
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and each
Finance Party and other party hereto where relevant, without the need for any
further referral to, or authority from, any Finance Party or other person, all
necessary releases of any guarantees or security given by any Obligor under any
Finance Document in relation to the disposal of any asset which is permitted
under or consented to in accordance with the relevant Finance Documents,
including without limitation any release of any guarantee or security given
under any Finance Document or any other document referred to therein where all
the shares in the capital of the party giving such guarantee or security are so
disposed of in accordance with the terms of and without any breach of the
Finance Documents.
32.6 Non-Trust Jurisdictions
It is hereby agreed
that, in relation to any jurisdiction the courts of which would not recognise
or give effect to the trusts expressed to be created by this Agreement, the
relationship of the Finance Parties to the Security Trustee shall be construed
as one of principal and agent but, to the extent permissible under the Laws of
such jurisdiction, all the other provisions of this Agreement shall have full
force and effect between the parties hereto.
32.7 Parallel Debt
(a) Each
Obligor (in this Clause, each a “Security Party” and together the “Security
Parties”) agrees, as primary obligor and not as a
surety, that promptly on demand of the Security Trustee it will pay to the
Security Trustee any Secured Obligation which is due and unpaid from time to
time in accordance with the Finance Documents (the “Parallel
Debt”) provided that:
(i) any
payment by a Security Party to the Security Trustee pursuant to this Clause
32.7 shall satisfy pro tanto the
amounts due and payable to the Finance Parties;
(ii) any
payment by a Security Party to the Finance Parties shall satisfy pro tanto the amounts due and payable to
the Security Trustee pursuant to this Clause 32.7; and
(iii) any
payment by a Security Party to the Security Trustee or the Finance Parties, as
the case may be, shall satisfy such Obligor’s obligation under this Clause 32.7
unless such payment is subsequently avoided or reduced by virtue of any
bankruptcy, insolvency, liquidation or similar laws.
(b) Each
Security Party, the Security Trustee and each Finance Party acknowledges that
the Parallel Debt is enforceable by the Security Trustee on its own
behalf. For the avoidance of doubt, each
of the parties hereto agree that this Clause 32.7 shall continue to apply
notwithstanding there has been a change in the Security Trustee in accordance
with Schedule 5 (Security Trustee Provisions).
(c) Neither
the obligations of the Security Parties contained in this Agreement nor the
rights, powers and remedies conferred on the Security Trustee and/or the
Finance Parties in respect of the Security Parties by this Agreement or by Law
shall be discharged, impaired or otherwise affected by:
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(i) the
winding-up, dissolution, administration or re-organisation of any Security
Party or any other person or any change in the status, function, control or
ownership of any Security Party or any such person;
(ii) any of
the obligations of any Security Party or any other person under any of the
Finance Documents or any security held by the Security Trustee and/or any
Finance Party therefor being or becoming illegal, invalid, unenforceable or
ineffective in any respect;
(iii) any time
or other indulgence being granted to or agreed (i) to or with any Security
Party or any other person in respect of its obligations or (ii) in respect of
any security granted under any of the Finance Documents;
(iv) any amendment
to, or any variation, waiver or release of, any obligation of, or any security
granted by, any Security Party or any other person under any of the Finance
Documents;
(v) any
total or partial failure to take, or perfect, any security proposed to be taken
in respect of the obligations of any Security Party or any other person under
any of the Finance Documents;
(vi) any
total or partial failure to realise the value of, or any release, discharge,
exchange or substitution of, any security held by the Security Trustee and/or
any Finance Party in respect of any Security Party’s obligations under any of
the Finance Documents; or
(vii) any
other act, event or omission which might operate to discharge, impair or
otherwise affect any of the obligations of any of the Security Parties under
this Agreement or any of the rights, powers or remedies conferred upon the
Security Trustee and/or any Finance Party or any of them by this Agreement, any
of the Finance Documents or by Law.
(d) For
the avoidance of doubt, the Parallel Debt of each Security Party shall be
deemed to constitute a single obligation of such Security Party.
33.1 General Indemnities
The Borrower
undertakes to indemnify:
(a) each
of the Finance Parties against any cost, claim, loss, expense (including legal
fees) or liability, which any of them may sustain or incur as a consequence of
the occurrence of any Default; and
(b) each
Lender against any loss it may suffer or incur as a result of (i) its funding
or making arrangements to fund its portion of an Advance or (ii) its issuing or
making arrangements to issue a Documentary Credit, in each case requested by
the Borrower under this Agreement but not made by reason of the operation of
any one or more of the provisions of this Agreement (save as a result of its
own gross negligence, breach of a Finance Document or wilful default).
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33.2 Break Costs
(a) The
Borrower shall, upon demand by a Finance Party, pay to that Finance Party its
Break Costs attributable to all or any part of any Advance or Unpaid Sum being
paid by the Borrower on a day other than the last day of an Interest Period or
Term for that Advance or Unpaid Sum.
(b) Each
Lender shall, as soon as reasonably practicable after a demand by the Agent,
provide a certificate confirming the amount of its Break Costs for any Interest
Period or Term in which they accrue.
34.1 Currency
Euro is the
currency of account and payment for each and every sum at any time due from any
Obligor under this Agreement provided that:
(a) each
repayment of any Outstandings or Unpaid Sum (or part of it) shall be made in
the currency in which those Outstandings or Unpaid Sum are denominated on their
due date;
(b) interest
shall be payable in the currency in which the sum in respect of which such
interest is payable was denominated when that interest accrued;
(c) each
payment in respect of costs and expenses shall be made in the currency in which
the same were incurred; and
(d) each
payment pursuant to Clause 18.2 (Tax Indemnity)
or Clause 19.1 (Increased Costs) shall be made in
the currency specified by the Finance Party claiming under it.
34.2 Currency Indemnity
If any sum due from
an Obligor under this Agreement or any order or judgment given or made in
relation to this Agreement has to be converted from the currency (the “first currency”) in which the same is
payable under this Agreement or under such order or judgment into another
currency (the “second currency”)
for the purpose of (a) making or filing a claim or proof against such
Obligor, (b) obtaining an order or judgment in any court or other tribunal
or (c) enforcing any order or judgment given or made in relation to this
Agreement, the Parent shall indemnify and hold harmless each of the persons to
whom such sum is due from and against any loss suffered or incurred as a result
of any discrepancy between (x) the rate of exchange used for such purpose
to convert the sum in question from the first currency into the second currency
and (y) the rate or rates of exchange at which such person may in the
ordinary course of business purchase the first currency with the second
currency upon receipt of a sum paid to it in satisfaction, in whole or in part,
of any such order, judgment, claim or proof.
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35.1 Payment to the Agent
On each date on
which this Agreement requires an amount to be paid by an Obligor or any of the
Lenders under this Agreement, such Obligor or, as the case may be, such Lender
shall make the same available to the Agent by payment in same day funds (or
such other funds as may for the time being be customary for the settlement of
transactions in the relevant currency) to such account or bank as the Agent may
have specified for this purpose and any such payment which is made for the
account of another person shall be made in time to enable the Agent to make
available such person’s portion of it to such other person in accordance with
Clause 35.2 (Same Day Funds).
35.2 Same Day Funds
Save as otherwise
provided in this Agreement, each payment received by the Agent for the account
of another person shall be made available by the Agent to such other person (in
the case of a Lender, for the account of its Facility Office) for value the
same day by transfer to such account of such person with such bank in a
Participating Member State or London (or for payments in Optional Currencies,
in the applicable financial centre) as such person shall have previously
notified to the Agent for this purpose.
35.3 Clear Payments
Any payment
required to be made by an Obligor under this Agreement shall be calculated
without reference to any set-off or counterclaim and shall be made free and
clear of, and without any deduction for or on account of, any set-off or
counterclaim.
35.4 Partial Payments
If the Agent
receives a payment that is insufficient to discharge all the amounts then due
and payable by an Obligor under the Finance Documents, the Agent shall, unless
otherwise instructed by an Instructing Group, apply that payment towards the
obligations of that Obligor under the Finance Documents in the following order:
(a) first,
in payment in or towards payment pro rata of any
unpaid fees, costs and expenses incurred by the Agent and the L/C Bank under
the Finance Documents;
(b) secondly,
in or towards payment pro rata of any
accrued interest or commission due but unpaid under any Finance Document;
(c) thirdly,
in or towards payment pro rata of any
principal due but unpaid under any Finance Document; and
(d) fourthly,
in or towards payment pro rata of any
other sum due but unpaid under the Finance Documents,
and such
application shall override any appropriation made by an Obligor.
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35.5 Indemnity
Where a sum is to
be paid under this Agreement to the Agent for the account of another person,
the Agent shall not be obliged to make the same available to that other person
(or to enter into or perform any exchange contract in connection therewith)
until it has been able to establish to its satisfaction that it has actually
received such sum, but if it does so and it proves to be the case that it had
not actually received such sum, then the person to whom such sum (or the
proceeds of such exchange contract) was (or were) so made available shall on
request refund the same to the Agent together with an amount sufficient to
indemnify and hold harmless the Agent from and against any cost or loss it may have
suffered or incurred by reason of its having paid out such sum (or the proceeds
of such exchange contract) prior to its having received such sum.
36.1 Right to Set-off
Each of the
Obligors authorises each Lender to apply any credit balance to which such
Obligor is entitled on any account of such Obligor with that Lender in
satisfaction of any sum due and payable from such Obligor to such Lender under
this Agreement but unpaid; for this purpose, each Lender is authorised to
purchase with the moneys standing to the credit of any such account such other
currencies as may be necessary to effect such application, provided that any
Finance Party may not apply any sums owed by such Finance Party to an Obligor
in connection with any supply of graphical systems, office products or services
directly relating to either of them to such Finance Party towards satisfaction
of any debt owed by such Obligor to that Finance Party or any other Finance
Party under the Finance Documents. Each
Finance Party and each Obligor undertakes not to enter into any arrangements
between each other in contravention of this Clause 36.1.
36.2 No Obligation
No Lender shall be
obliged to exercise any right given to it by Clause 36.1 (Right to
Set-Off).
37.1 Payments to Finance Parties
If a Finance Party
(a “Recovering Finance Party”)
receives or recovers any amount from an Obligor other than in accordance with
Clause 35 (Payments) and applies that amount to a
payment due under the Finance Documents then:
(a) the
Recovering Finance Party shall, within 3 Business Days, notify details of the
receipt or recovery to the Agent;
(b) the
Agent shall determine whether the receipt or recovery is in excess of the
amount the Recovering Finance Party would have been paid had the receipt or
recovery been received or made by the Agent and distributed in accordance with
Clause 35.4 (Partial Payments), without taking
account of any tax which would be imposed on the Agent in relation to the
receipt, recovery or distribution; and
(c) the
Recovering Finance Party shall, within 3 Business Days of demand by the Agent,
pay to the Agent an amount (the “Sharing Payment”) equal to such receipt or
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recovery
less any amount which the Agent determines may be retained by the Recovering
Finance Party as its share of any payment to be made, in accordance with Clause
35.4 (Partial Payments).
37.2 Redistribution of Payments
The Agent shall
treat the Sharing Payment as if it had been paid by the relevant Obligor and
distribute it between the Finance Parties (other than the Recovering Finance
Party) in accordance with Clause 35.4 (Partial Payments).
37.3 Recovering Finance Party’s Rights
(a) On a
distribution by the Agent under Clause 37.2 (Redistribution
of Payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the redistribution.
(b) If and
to the extent that the Recovering Finance Party is not able to rely on its
rights under paragraph (a) above, the relevant Obligor shall be liable to the
Recovering Finance Party for a debt equal to the Sharing Payment which is
immediately due and payable.
37.4 Reversal of Redistribution
If any part of the
Sharing Payment received or recovered by a Recovering Finance Party becomes
repayable and is repaid by that Recovering Finance Party, then:
(a) each
Finance Party which has received a share of the relevant Sharing Payment
pursuant to Clause 37.2 (Redistribution of Payments)shall, upon the request of the Agent, pay to the Agent for
account of that Recovering Finance Party an amount equal to its share of the
Sharing Payment (together with an amount as is necessary to reimburse that
Recovering Finance Party for its share of any interest on the Sharing Payment
which that Recovering Finance Party is required to pay); and
(b) that
Recovering Finance Party’s rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable to the
reimbursing Finance Party for the amount so reimbursed.
37.5 Exceptions
(a) This
Clause 37 shall not apply to the extent that the Recovering Finance Party would
not, after making any payment pursuant to this Clause, have a valid and
enforceable claim against the relevant Obligor.
(b) A
Recovering Finance Party is not obliged to share with any other Finance Party
under any amount which the Recovering Finance Party has received or recovered
as a result of taking legal or arbitration proceedings, if:
(i) it
notified such other Finance Party of the legal or arbitration proceedings; and
(ii) such
other Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably practicable
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having
received notice of it or did not take separate legal or arbitration
proceedings.
38.1 Day Count Convention
Interest and
commitment commission shall accrue from day to day and shall be calculated on
the basis of a year of 365 days (in the case of amounts denominated in
sterling) or 360 days (in the case of amounts denominated in other Optional
Currencies or euro) (as appropriate or, in any case where market practice
differs, in accordance with market practice) and the actual number of days
elapsed.
38.2 Reductions
Any repayment of
any Advance denominated in an Optional Currency shall reduce the amount of such
Advance by the amount of such Optional Currency repaid and shall reduce the
Euro Amount of such Advance proportionately.
38.3 Reference Banks
Save as otherwise
provided in this Agreement, on any occasion a Reference Bank or Lender fails to
supply the Agent with an interest rate quotation required of it under the
foregoing provisions of this Agreement, the rate for which such quotation was
required shall be determined from those quotations which are supplied to the
Agent.
38.4 Maintain Accounts
Each Lender shall
maintain in accordance with its usual practice accounts evidencing the amounts
from time to time lent by and owing to it under this Agreement.
38.5 Control Accounts
The Agent shall
maintain on its books a control account or accounts in which shall be recorded:
(a) the
amount and the Euro Amount of any Advance or Unpaid Sum and the face amount and
the Euro Amount of any Documentary Credit, and each Lender’s share in it;
(b) the
amount of all principal, interest and other sums due or to become due from each
of the Obligors to any of the Lenders under the Finance Documents and each
Lender’s share in it; and
(c) the
amount of any sum received or recovered by the Agent under this Agreement and
each Lender’s share in it.
38.6 Prima Facie Evidence
In any legal action
or proceeding arising out of or in connection with this Agreement, the entries
made in the accounts maintained pursuant to Clause 38.4 (Maintain Accounts) and
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Clause 38.5
(Control Accounts) shall be prima facie evidence
of the existence and amounts of the specified obligations of the Obligors.
38.7 Certificate of Finance Party
A certificate of a
Finance Party as to the amount for the time being required to indemnify it
against any Tax Liability pursuant to Clause 18.2 (Tax Indemnity) or any Increased Cost pursuant to Clause 19.1
(Increased Costs) shall be, save for
manifest error, final and conclusive evidence of the existence and amounts of
the specified obligations of the Parent.
38.8 Certificate of the Agent
A certificate of
the Agent as to the amount at any time due from the Borrower under this
Agreement (or the amount which, but for any of the obligations of the Borrower
under this Agreement being or becoming void, unenforceable or ineffective, at
any time, would have been due from the Borrower under this Agreement) shall, in
the absence of manifest error, be prima facie evidence
for the purposes of Clause 30 (Guarantee and Indemnity).
38.9 Certificate of L/C Bank
A certificate of an
L/C Bank as to the amount paid out or at any time due in respect of a
Documentary Credit shall, absent manifest error, be prima facie
evidence of the payment of such amounts or (as the case may be) of the amounts
outstanding in any legal action or proceedings arising in connection therewith.
38.10 Calculations in accordance with Dutch GAAP
All calculations
pursuant to Clause 24 (Financial Condition)
and Clause 26.13 (Assets and EBITDA
Attributable to Qualified Obligors) as well as all calculations of
Excess Cash Flow and the Consolidated Leverage Ratio (including, without
limitation, for purposes of determining the Applicable Margin) and all other
financial terms as same may be used in determining compliance with Clause 24 (Financial Condition) and Clause 26.13 (Assets and EBITDA Attributable to Qualified Obligors)
and calculations of Applicable Margin and Excess Cash Flow, shall be made in
accordance with Dutch GAAP, it being understood that, consistent therewith, all
amounts used in making such calculations shall be determined in euros,
converting all amounts in other currencies into euros in a manner consistent
with Dutch GAAP, except that, for the purposes of calculating the numerator
only of the Consolidated Leverage Ratio (including, without limitation, for
purposes of determining the Applicable Margin), any amounts expressed in
currencies other than euros shall be converted into euros (as shown on Reuters
ECB page 37 or, if same does not provide such exchange rates, on such other
basis as may be satisfactory to the Agent) for the exchange of such currency into
euros for the period of 30 consecutive days ended one Business Day prior to the
respective determination of the Consolidated Leverage Ratio.
39.1 Successors and Assignees
This Agreement
shall be binding upon and enure to the benefit of each party to this Agreement
and its or any subsequent successors, permitted assignees and Transferees.
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39.2 Assignment or Transfers by Obligors
None of the rights,
benefits and obligations of an Obligor under this Agreement shall be capable of
being assigned or transferred and each Obligor undertakes not to seek to assign
or transfer any of its rights, benefits and obligations under this Agreement
without the consent of all the Lenders.
39.3 Assignments or Transfers by Lenders
Any Lender may, at
any time, assign all or any of its rights and benefits under the Finance
Documents in accordance with Clause 39.4 (Assignments) or
transfer all or any of its rights, benefits and obligations under the Finance
Documents in accordance with Clause 39.5 (Transfer
Certificate) without the consent of any other party provided that
notwithstanding any other provision of this Agreement:
(a) (x)
all or a portion of its Commitments (and related outstanding Facilities
Obligations hereunder) and/or its Term Facility Outstandings may be transferred
to (i) its parent company and/or any affiliate of such Lender or another Lender
which is at least 50 per cent. owned by such Lender or its parent company, (ii)
one or more Lenders or (iii) in the case of any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is managed
or advised by the same investment advisor of such Lender or by an Affiliate of
such investment advisor or (y) all, or if less than all, a portion equal to at
least €1,000,000 in the aggregate for the assigning or transferring Lender(s),
of such Commitments (and related outstanding Obligations hereunder) and/or its
Term Facility Outstandings hereunder to one or more Eligible Institutions
(treating any fund that invests in bank loans and any other fund that invests
in bank loans and is managed or advised by the same investment advisor of such
fund or by an Affiliate of such investment advisor as a single Eligible
Institution), provided that, (i) at such time Part I of Schedule 1 (Lenders and Commitments) shall be deemed
modified to reflect the Commitments (and/or Term Facility Outstandings, as the
case may be) of such new Lender and of the existing Lenders, (ii) the consent
of each L/C Bank and each Swingline Facility Lender shall be required in
connection with any assignment or transfer of all or any portion of Revolving
Facility Commitments (which consents shall not be unreasonably withheld or
delayed), (iii) in the case of assignments or transfers pursuant to clause (y)
above, the consent of the Agent shall be required (which consent shall not be
unreasonably withheld or delayed) and, so long as no Default or Event of
Default then exists, the prior written consent of the Borrower shall be
required (which consent shall not be unreasonably withheld or delayed).
(b) At the
time of each assignment pursuant to this Clause 39.3 to a person which is not
already a Lender hereunder and which is not a U.S. Person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. federal income tax
purposes, the respective assignee or transferee Lender shall provide to the
Borrower and the Agent the appropriate Internal Revenue Service Forms (and, if
appropriate, the form specified in paragraph (e) of Clause 18.1 (Tax Gross-up)).
(c) To the
extent that an assignment pursuant to Clause 21.1 (Replacement of Lenders) and this Clause 39 would, at the
time of such assignment or transfer, result in increased costs under Clauses 18
(Taxes), 19.1 (Increased Costs) or 20 (Illegality) from those being charged by
the respective assigning or transferring Lender prior to
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such
assignment or transfer, then the Borrower shall not be obligated to pay such
increased costs (although the Borrower shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment or transfer).
At the time of any such assignment or transfer pursuant to this Clause
39.3, the assigning or transferring Lender shall furnish notice thereof to the
Agent.
(d) Nothing
in this Agreement shall prevent or prohibit any Lender from pledging or
assigning by way of security its Outstandings hereunder to a Federal Reserve
Lender in support of borrowings made by such Lender from such Federal Reserve
Lender and, with the consent of the Agent, any Lender which is a fund may
pledge or assign by way of security all or any portion of its Outstandings to a
trustee for the benefit of investors and in support of its obligation to such
investors. No pledge or assignment by
way of security pursuant to this paragraph (d) shall release the transferor
Lender from any of its obligations hereunder.
For the avoidance of doubt, a pledge shall not include a charge by way
of security.
39.4 Assignments
If any Lender
wishes to assign all or any of its rights and benefits under the Finance
Documents, unless and until the relevant assignee has agreed with the other
Finance Parties that it shall be under the same obligations towards each of
them as it would have been under if it had been an original party to the
Finance Documents as a Lender, such assignment shall not become effective and
the other Finance Parties shall not be obliged to recognise such assignee as
having the rights against each of them which it would have had if it had been
such a party to this Agreement.
39.5 Transfer Certificate
If any Lender
wishes to transfer all or any of its rights, benefits and/or obligations under
the Finance Documents, such transfer may be effected by novation through the
delivery to the Agent of a duly completed and duly executed Transfer
Certificate in which event, on the later of the Transfer Date specified in such
Transfer Certificate and the fifth Business Day after (or such earlier Business
Day endorsed by the Agent on such Transfer Certificate falling on or after) the
date of delivery of such Transfer Certificate to the Agent:
(a) to the
extent that in such Transfer Certificate the Lender party to it seeks to
transfer its rights, benefits and obligations under the Finance Documents, each
of the Obligors and such Lender shall be released from further obligations
towards one another under the Finance Documents and their respective rights against
one another shall be cancelled (such rights and obligations being referred to
in this Clause 39.5 as “discharged
rights and obligations”);
(b) each
of the Obligors and the Transferee party to it shall assume obligations towards
one another and/or acquire rights against one another which differ from the
discharged rights and obligations only insofar as such Obligor and such
Transferee have assumed and/or acquired the same in place of such Obligor and
such Lender;
(c) subject
to Clause 21.1 (Replacement of Lenders),
the other Finance Parties and the Transferee shall acquire the same rights and
benefits and assume the same obligations between themselves as they would have
acquired and assumed had such Transferee
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been
an original party to the Finance Documents as a Lender with the rights,
benefits and obligations acquired or assumed by it as a result of such
transfer; and
(d) such
Transferee shall become a party to this Agreement as a Lender.
39.6 Transfer Fee
On the date upon
which a transfer takes effect pursuant to Clause 39.5 (Transfer Certificate) the Transferee in respect of such
transfer shall pay to the Agent for its own account a transfer fee of €1,500
provided that this fee shall not be payable by any Lender party to this
Agreement on the date of this Agreement in respect of transfers made by such
Lender prior to the Syndication Date.
39.7 Sub-participations
Subject to Clause
46 (Third Party Rights) any
Lender may grant participations in its rights hereunder, such Lender shall
remain a “Lender” for all purposes hereunder (and may not otherwise transfer or
assign all or any portion of its Commitments hereunder except as provided in
Clause 39.3 (Assignments or Transfers by
Lenders)) and the participant shall not constitute a “Lender”
hereunder and provided that no Lender shall grant any participation under which
the participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Finance Document except to the extent such amendment or
waiver would:
(a) extend
the final scheduled maturity of any Facility or Documentary Credit (unless such
Documentary Credit is not extended beyond the Final Maturity Date of the
Revolving Facility) in which such participant is participating, or reduce the
rate or extend the time of payment of interest or fees thereon (except in
connection with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof, or increase the amount of
the participant’s participation over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default or of a
mandatory repayment of Term Facility Outstandings or a mandatory reduction in
the Available Revolving Facility shall not constitute a change in the terms of
such participation, and that an increase in any Commitment or Outstandings
shall be permitted without the consent of any participant if the participant’s
participation is not increased as a result thereof);
(b) consent
to the assignment or transfer by any Obligor of any of its rights and
obligations under this Agreement;
(c) release
all or substantially all of the Collateral under all of the Security Documents
(except as expressly provided in the Finance Documents) supporting the
Facilities Obligations hereunder in which such participant is participating.
In the case of
any such participation, the participant shall not have any rights under this
Agreement or any of the other Finance Documents (the participant’s rights
against such Lender in respect of such participation to be those set forth in
the agreement executed by such Lender in favour of the participant relating
thereto) and all amounts payable by the Borrower hereunder shall be determined
as if such Lender had not sold such participation, except that to the extent
that the participant may be required to be recognised as the owner (or
beneficial
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owner) for tax
purposes, such participant shall be considered as the Lender in applying any of
the provisions of the Finance Documents that involve such tax.
39.8 Disclosure of Information
(a) Subject
to the provisions of paragraph (b) below, each Lender agrees that it will treat
as confidential (in accordance with normal banking procedures) any information
with respect to the Parent or any of its Subsidiaries which is now or in the
future furnished pursuant to this Agreement or any other Finance Document, provided
that any Lender may disclose any such information:
(i) as has become generally available to the
public other than by virtue of a breach of this paragraph (a) by the respective
Lender;
(ii) as may be required or is reasonably
appropriate in any report, statement or testimony submitted to any municipal,
state, Federal or foreign regulatory body having or claiming to have
jurisdiction over such Lender or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation, the NAIC or similar organizations (whether in
the United States or elsewhere) or their successors;
(iii) as
may be required or reasonably appropriate in respect to any summons or subpoena
or in connection with any litigation;
(iv) in order to comply with any law, order,
regulation or ruling applicable to such Lender;
(v) to the Agent or the Security Trustee;
(vi) to such Lender’s Affiliates, employees,
auditors, advisors or counsel or to another Lender if the Lender or such
Lender’s holding or parent company in its sole discretion determines that any
such party should have access to such information, provided such persons
shall be subject to the provisions of this Clause 39.8 to the same extent as
such Lender; and
(vii) to
any prospective or actual transferee or participant or their respective
investment advisors in connection with any contemplated transfer,
participation, securitisation or hedge of any of the Commitments, any interest
therein by such Lender or any other transaction under which payments are to be
made by reference to any Finance Document or Obligor, provided that such
prospective transferee, participant or, as the case may be, investment advisor
agrees to be bound by the confidentiality provisions contained in this Clause
39.8.
(b) Each
Obligor hereby acknowledges and agrees that each Lender may share with any of
its affiliates any information related to the Parent or any of its Subsidiaries
(including, without limitation, any non-public customer information regarding
the creditworthiness of the Parent and its Subsidiaries), provided that
such Persons shall be subject to the provisions of this Clause 39.8 to the same
extent as such Lender.
(c) Notwithstanding anything in this Agreement, any
amendments to this Agreement, or any other document, agreement or understanding
relating to the transactions
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contemplated
by this Agreement, each party to this Agreement and its affiliates (and each
employee, representative, or other agent of such party or its affiliates) are
authorised to disclose to any and all persons, beginning immediately upon
commencement of discussions regarding the transactions contemplated by this
Agreement and without limitation of any kind, the U.S. federal, state or local
tax treatment and tax structure of such transactions, and all materials of any
kind (including opinions or other tax analyses) that are provided to such party
or its affiliates relating to such tax treatment and tax structure, except to
the extent that such disclosure is subject to restrictions reasonably necessary
to comply with securities laws. For
purposes of this authorisation, the “tax treatment” of a transaction means the
purported or claimed tax treatment of the transaction, and the “tax structure”
of a transaction means any fact that may be relevant to understanding the
purported or claimed tax treatment of the transaction. This paragraph is intended to reflect the
understanding of the parties that the transactions contemplated by this
Agreement have not been offered under “conditions of confidentiality”, as that phrase
is used in U.S. Treasury Regulations sections 1.601-4(b)(3) and 301.6111-2(c),
and in any state or local law or regulation incorporating all or part of such
sections, and shall be interpreted in a manner consistent therewith. Nothing herein is intended to imply that any
party or its affiliates (or any employee, representative, or other agent of
such party or its affiliates) has made or provided to, or for the benefit of,
any other party or its affiliates any oral or written statement as to any potential
U.S. federal, state or local tax consequences that are related to, or may
result from, the transactions contemplated by this Agreement. None of the parties provides accounting, tax
or legal advice, and each has consulted, or will consult, its own advisers
regarding its participation in such transactions.
39.9 Register
The Borrower hereby
designates the Agent to serve as the Borrower’s agent, solely for purposes of
this Clause 39.9, to maintain a register (the “Register”) on which it will record the Commitments from time
to time of each of the Lenders, the Advances made by each of the Lenders and
each repayment in respect of the principal amount of the Advances of each
Lender. Failure to make any such
recordation, or any error in such recordation, shall not affect the Borrower’s
obligations in respect of such Advances.
With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Advance made
pursuant to such Commitments shall be not be effective until such transfer is
recorded on the Register maintained by the Agent with respect to ownership of
such Commitments and Advances and prior to such recordation all amounts owing
to the transferor with respect to such Commitments and Advances shall remain
owing to the transferor. The
registration of assignment or transfer of all or part of any Commitments and
Advances shall be recorded by the Agent on the Register only upon the
acceptance by the Agent of a properly executed and delivered Transfer
Certificate pursuant to Clause 39.5 (Transfer
Certificate). The Borrower
agrees to indemnify the Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Agent in performing its duties under this Clause
39.9 except to the extent resulting from the gross negligence or wilful
misconduct of the Agent (as determined by a court of competent jurisdiction in
a final and non-appealable decision).
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40.1 Transaction Costs
The Parent shall,
from time to time on demand of the Agent, reimburse the Agent, the Security
Trustee and each of the Arrangers for all reasonable costs and expenses
(including legal fees) incurred by them in connection with the negotiation,
preparation and execution of the Finance Documents and the completion of the
transactions therein contemplated and primary syndication of the Facilities
(including publicity expenses).
40.2 Preservation and Enforcement Costs
The Parent shall,
from time to time on demand of the Agent, reimburse each Finance Party for all
costs and expenses (including legal fees) incurred in or in connection with the
preservation and/or enforcement of any of the rights of such Finance Party
under the Finance Documents.
40.3 Stamp Taxes
The Parent shall
pay (or cause the Borrower to pay) all stamp, registration, documentary and
other taxes (including any penalties, additions, fines, surcharges or interest
relating thereto) to which any of the Finance Documents or any judgment given
in connection therewith is or at any time may be subject and shall, from time
to time on demand of the Agent, indemnify the Finance Parties against any
liabilities, costs, claims and expenses resulting from any failure to pay or
any delay in paying those taxes. The
Agent shall be entitled (but not obliged) to pay those taxes (whether or not
they are its primary responsibility) and to the extent that it does so claim
under this Clause 40.3.
40.4 Compensation
The Parent shall,
from time to time on demand of the Agent (and without prejudice to the
provisions of Clause 40.2 (Preservation and
Enforcement Costs) and Clause 40.5 (Amendments
and Waivers)) compensate the Agent at such daily and/or hourly rates
as the Agent shall from time to time reasonably determine for all time expended
by the Agent, its directors, officers and employees, and for all costs and
expenses (including telephone, fax, copying, travel and personnel costs) they
may incur, in connection with the Agent’s taking such action as it may consider
appropriate in connection with:
(a) the
granting or proposed granting of any waiver or consent requested under any of
the Finance Documents by the Obligors or any of them;
(b) any
actual, potential or suspected breach by an Obligor of any of its obligations
under any of the Finance Documents;
(c) the
occurrence of any Default; or
(d) any
amendment or proposed amendment of any of the Finance Documents requested by the
Obligors or any of them.
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40.5 Amendments and Waivers
If an Obligor
requests any amendment or waiver in accordance with Clause 45 (Amendments), the relevant Obligor shall, on demand of the
Agent, reimburse the Finance Parties for all reasonable costs and expenses
(including legal fees) incurred by any of the Finance Parties in responding to
or complying with such request.
40.6 Management Time of the Agent
Any amount payable
to the Agent under this Clause 40 shall include the cost of utilising its
management time or other resources and will be calculated on the basis of such
reasonable daily or hourly rates as it may notify to the Parent and the
Lenders, and is in addition to any fee paid or payable to it under Clause 17 (Commissions and Fees).
40.7 Lenders’ Indemnity
If any Obligor
fails to perform any of its obligations under this Clause 40, each Lender shall
indemnify and hold harmless each of the Agent, the Arrangers and/or the
Security Trustee from and against its Proportion (as determined at all times
for these purposes in accordance with paragraph (c) of the definition of
“Proportion”) of any loss incurred by any of them as a result of such failure
and the relevant Obligor shall forthwith reimburse each Lender for any payment
made by it pursuant to this Clause.
40.8 Value Added Tax
(a) All
amounts expressed to be payable under any Finance Document by any Obligor to a
Finance Party shall be exclusive of any VAT.
If VAT is chargeable on any supply made by a Finance Party to any
Obligor under any Finance Document (whether that supply is taxable pursuant to
the exercise of an option or otherwise), that Obligor shall pay to that Finance
Party (in addition to and at the same time as paying that consideration) an
amount equal to the amount of the VAT as further consideration.
(b) No
payment or other consideration to be made or furnished to any Obligor pursuant
to or in connection with any Finance Document may be increased or added to by
reference to (or as a result of any increase in the rate of) any VAT which
shall be or may become chargeable in respect of any taxable supply.
(c) Where
a Finance Document requires any party to reimburse a Finance Party for any
costs or expenses, that party shall also pay any amount of those costs or
expenses incurred referable to VAT chargeable thereon.
40.9 Indemnity Payments
Where under any
Finance Document an Obligor has an obligation to indemnify or reimburse any
Protected Party in respect of any loss or payment, the calculation of the
amount payable by way of indemnity or reimbursement shall take account of the
likely tax treatment in the hands of that Protected Party (as determined by
that Protected Party) of the amount payable by way of indemnity or reimbursement
and of the loss or payment in respect of which that amount is payable.
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No failure to
exercise, nor any delay in exercising, on the part of the Finance Parties or
any of them, any right or remedy under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any other
right or remedy. The rights and remedies
provided in this Agreement are cumulative and not exclusive of any rights or
remedies provided by Law.
42.1 Writing
Each communication
to be made under any Finance Document shall be made in writing and, unless
otherwise stated, shall be made by fax, telex or letter.
42.2 Giving of Notice
Any communication
or document to be made or delivered by one person to another pursuant to any
Finance Document shall in the case of any person other than a Lender (unless that
other person has by 15 days’ written notice to the Agent specified another
address) be made or delivered to that other person at the address identified
with its signature below or, in the case of a Lender, at the address from time
to time designated by it to the Agent for the purpose of the Finance Documents
(or, in the case of a Transferee at the end of the Transfer Certificate to
which it is a party as Transferee) and shall be deemed to have been made or
delivered when despatched (in the case of any communication made by fax or
telex) or (in the case of any communication made by letter) when left at the
address or (as the case may be) 5 Business Days after being deposited in the
post postage prepaid in an envelope addressed to it at that address provided
that any communication or document to be made or delivered to the Agent shall
be effective only when received by the Agent and then only if the same is
expressly marked for the attention of the department or officer identified with
the Agent’s signature below (or such other department or officer as the Agent
shall from time to time specify for this purpose).
42.3 Use of Websites
(a) An
Obligor may satisfy its obligation under any Finance Document to which it is a
party to deliver any information in relation to those Lenders (the “Website Lenders”) who
accept this method of communication by posting this information onto an
electronic website designated by the Parent and the Agent (the “Designated Website”)
if:
(i) the
Agent expressly agrees (after consultation with each of the Lenders) that it
will accept communication of the information by this method;
(ii) both
the Parent and the Agent are aware of the address of, and any relevant password
specifications for, the Designated Website; and
(iii) the information
is in a format previously agreed between the Parent and the Agent.
If any Lender (a “Paper Form Lender”) does not agree to the
delivery of information electronically then the Agent shall notify the Parent
accordingly and the Parent shall supply
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the
information to the Agent (in sufficient copies for each Paper Form Lender) in
paper form. In any event, the Parent
shall supply the Agent with at least one copy in paper form of any information
required to be provided by it.
(b) The
Agent shall supply each Website Lender with the address of, and any relevant
password specifications for, the Designated Website following designation of
that website by the Parent and the Agent.
(c) The
Parent shall promptly upon becoming aware of its occurrence notify the Agent
if:
(i) the
Designated Website cannot be accessed due to technical failure;
(ii) the
password specifications for the Designated Website change;
(iii) any new
information which is required to be provided under this Agreement is posted
onto the Designated Website;
(iv) any
existing information which has been provided under this Agreement and posted
onto the Designated Website is amended; or
(v) the
Parent becomes aware that the Designated Website or any information posted onto
the Designated Website is or has been infected by any electronic virus or
similar software.
If the Parent notifies the Agent under paragraph
(c)(i) or paragraph (c)(v) above, all information to be provided by the Parent
under this Agreement after the date of that notice shall be supplied in paper
form unless and until the Agent and each Website Lender is satisfied that the
circumstances giving rise to the notification are no longer continuing.
(d) Any
Website Lender may request, through the Agent, one paper copy of any
information required to be provided under this Agreement which is posted onto
the Designated Website. The Parent shall
comply with any such request within 10 Business Days.
42.4 Electronic Communication
(a) Any
communication to be made between the Agent and a Lender under or in connection
with the Finance Documents may be made by electronic mail or other electronic
means, if the Agent and the relevant Lender:
(i) agree
that, unless and until notified to the contrary, this is to be an accepted form
of communication;
(ii) notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by that
means; and
(iii) notify
each other of any change to their address or any other such information
supplied by them.
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(b) Any
electronic communication made between the Agent and a Lender will be effective
only when actually received in readable form and in the case of any electronic
communication made by a Lender to the Agent only if it is addressed in such a
manner as the Agent shall specify for this purpose.
Each communication
and document made or delivered by one party to another pursuant to any of the
Finance Documents shall be in the English language or accompanied by a
translation of it into English certified (by an officer of the person making or
delivering the same) as being a true and accurate translation of it.
If, at any time,
any provision of this Agreement is or becomes illegal, invalid or unenforceable
in any respect under the Law of any jurisdiction, such illegality, invalidity
or unenforceability shall not affect:
(a) the legality,
validity or enforceability of the remaining provisions of this Agreement; or
(b) the
legality, validity or enforceability of such provision under the Law of any
other jurisdiction.
45.1 Amendments
Except as provided
in Clauses 45.2 (Consent), 45.3 (Technical Amendments) and 45.4 (Guarantees
and Security), the Agent, if it has the prior written consent of an
Instructing Group, and the Obligors affected thereby, may from time to time
agree in writing to amend this Agreement or to waive, prospectively or
retrospectively, any of the requirements of this Agreement and any amendments
or waivers so agreed shall be binding on all the Finance Parties and the
Obligors.
45.2 Consent
(a) An
amendment or waiver relating to the following matters shall not be made without
the prior written consent of all the Lenders:
(i) a
reduction in the proportion of any amount received or recovered (whether by way
of set-off, combination of accounts or otherwise) in respect of any amount due
from an Obligor under this Agreement to which any Lender is entitled;
(ii) a
decrease in any Applicable Margin for, or the principal amount of, any Advance,
any Documentary Credit or any interest payment, fees or other amounts due under
this Agreement to any Lender from an Obligor or any other party to this
Agreement (other than the result of any amendment or modification to Clause 24
(Financial Condition) where the
primary purpose of such amendment or modification (as determined in good faith
by the Parent and the Agent) was not to decrease the pricing pursuant to this
Agreement);
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(iii) any
change in the currency of account;
(iv) the
deferral of the date for payment of any principal, interest, fee or any other
amount due under this Agreement to any Lender from an Obligor or any other
party to this Agreement;
(v) the
deferral of any Final Maturity Date, any Termination Date or any Expiry Date;
(vi) any
reduction to the percentage set forth in the definition of Instructing Group as
included on the date of this Agreement (it being understood that, with the
consent of the Instructing Group, additional extensions of credit pursuant to
this Agreement may be included in the determination of Instructing Group on
substantially the same basis on the extensions of the Term Facilities and the
Revolving Facilities as at the Effective Date);
(vii) any
amendments, modifications or waiver of any provision to this Clause;
(viii) consent
to the assignment or transfer by the Parent or any other Obligor (other than to
another Obligor or another Wholly-Owned Subsidiary of the Parent which acceded
as an Acceding Guarantor) of any of its rights and obligations under this
Agreement; and
(ix) a
change to any provision which contemplates the need for the consent or approval
of all the Lenders.
(b) Notwithstanding
paragraph (a) above, an amendment or waiver relating to the following matters
shall not be made without the prior written consent of each Lender affected
thereby:
(i) any
increase in the Commitment of such Lender (it being understood that waivers or
modifications of conditions precedent, covenants, Defaults or Events of Default
or of a mandatory reduction in the Available Facility shall not constitute an
increase of the Commitment of any Lender, and that an increase in the available
portion of any Commitment of any Lender shall not constitute an increase in the
Commitment of such Lender);
(ii) in
relation to any Swingline Facility Lender every provision of Clause 6 (Swingline Facilities) or alter its rights
or obligations with respect to Swingline Facility Advances; and
(iii) in
relation to the L/C Bank every provision of Clause 5 (Documentary Credits) or alter its rights
or obligations with respect to any Documentary Credits issued by it.
(c) Notwithstanding
paragraph (a) above, an amendment or waiver relating to the following matters
shall not be made without the prior written consent of the Majority Lenders of
the respective Facility:
(i) any
amendment or waiver which would result in a Lender of such Facility being
allocated a lesser prepayment, repayment (or commitment reduction) as a result
of any alteration of the required application of any prepayments or
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repayments
(or commitment reductions), as between the various Facilities, pursuant to
Clauses 9 (Repayment of Revolving and
Swingline Facility Outstandings), 10 (Repayment of Term Facility Outstandings), 12 (Voluntary Prepayment) or 13 (Mandatory Prepayment) (although the
Instructing Group may (1) waive, in whole or in part, any such prepayment,
repayment or commitment reduction, so long as the application, as amongst the
various Facilities, of any such prepayment, repayment or commitment reduction
which is still required to be made is not altered and (2) agree to the
inclusion of additional extensions of credit made after the Initial Borrowing
Date (and not pursuant to Commitments as in effect on the Initial Borrowing
Date) on substantially the same basis as the other extensions of credit,
pursuant to Clauses 11.1 (Voluntary
Cancellation) and/or 12.1 (Voluntary
Prepayment); and
(ii) any
amendment to the definition of “Majority Lenders”; and
(d) Notwithstanding
paragraph (a) above, an amendment or waiver which would amend, modify or waive
any Scheduled Repayment applicable to the respective Facility shall not be made
without the prior written consent of the Supermajority Lenders of the
respective Facility (except that no such consent of the Supermajority Lenders
of the affected Facility shall be required in connection with any increase in
the Scheduled Repayments of such affected Facility (including, without
limitation, as a result of the making of additional Advances pursuant to a
given Facility which has the effect of increasing the Scheduled Repayments of
such affected Facility on a proportionate basis)).
45.3 Technical Amendments
Notwithstanding
Clause 45.1 (Amendments), the Agent may
determine administrative matters and make technical amendments arising out of
manifest errors on the face of this Agreement, where such amendments would not
prejudice or otherwise be adverse to the position of any Lender under this
Agreement, without reference to the Lenders.
45.4 Guarantees and Security
A waiver of
issuance or the release of any Guarantor from any of its obligations under
Clause 30 (Guarantee and Indemnity) other than in
accordance with the terms of this Agreement or a release of all or
substantially all of the Collateral subject to any Security under the Security
Documents other than in accordance with the terms of this Agreement shall
require prior written consent of all the Lenders.
45.5 Amendments affecting the Agent
Notwithstanding any
other provision of this Agreement, the Agent shall not be obliged to agree to any
amendment or waiver if the same would:
(i) amend
or waive any provision of Clauses 31 (Agent and Obligors’ Agent),
Clause 40 (Costs and Expenses) or this Clause 45;
or
(ii) otherwise
amend or waive any of the Agent’s rights under this Agreement or subject the
Agent to any additional obligations under this Agreement.
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45.6 Amendments affecting the Security Trustee
Notwithstanding any
other provision of this Agreement, the Security Trustee shall not be obliged to
agree to any amendment or waiver if the same would:
(i) amend
or waive any provision of Clauses 31 (Agent and Obligors’ Agent),
Clause 40 (Costs and Expenses) or this Clause 45;
or
(ii) otherwise
amend or waive any of the Security Trustee’s rights under this Agreement or
subject the Security Trustee to any additional obligations under this
Agreement.
45.7 Replacement of non-Instructing Group Lender
If, in connection
with any proposed change, waiver, discharge or termination to any of the provisions
of this Agreement as contemplated by paragraph (a) of Clause 45.2 (Consent), the consent of the Instructing
Group is obtained but the consent of one or more of such other Lenders whose
consent is required is not obtained, then the Borrower shall have the right (so
long as all non-consenting Lenders whose individual consent is required are
treated as described in either paragraphs (a) or (b) below) to either:
(a) replace
each such non-consenting Lender or Lenders (or, at the option of the Borrower
if the respective Lender’s consent is required with respect to less than all
Outstandings (or related Commitments), to replace only the respective
Commitments and/or Outstandings of the respective non-consenting Lender which
gave rise to the need to obtain such Lender’s individual consent) with one or
more members of the Instructing Group pursuant to Clause 21.1 (Replacement of Lenders) so long as at the
time of such replacement, each such member of the Instructing Group consents to
the proposed change, waiver, discharge or termination; or
(b) terminate
each Revolving Facility Commitment and/or Incremental Revolving Facility
Commitment of such non-consenting Lender’s Revolving Facility Commitment (if
such Lender’s consent is required as a result of its Revolving Facility
Commitment and/or Incremental Revolving Facility Commitment) and/or repay each
Term Facility Outstandings of such Lender which gave rise to the need to obtain
such Lender’s consent, in accordance with Clauses 11.1 (Voluntary Cancellation) and/or 12.1 (Voluntary Prepayment), provided
that, unless the Commitments terminated, and Outstandings repaid, pursuant to
this paragraph (b) are immediately replaced in full at such time through the
addition of new Lenders or the increase of the Commitments and/or Outstandings
of remaining lenders (who in each case must specifically consent thereto), then
in the case of any action pursuant to this paragraph (b) the Instructing Group
(determined both (x) before giving effect to the proposed action and (y) as if
the Outstandings and Commitments being terminated (and not replaced) were not
outstanding) shall specifically consent thereto,
for the avoidance
of doubt, the Borrower shall not have the right to replace a Lender, terminate
its Revolving Facility Commitment or repay its Outstandings solely as a result
of the exercise of such Lender’s rights (and the withholding of any required
consent by such Lender) pursuant to paragraph (b) of Clause 45.2 (Consent).
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(a) A
person which is not a party to this Agreement (a “third
party”) shall have no right to enforce any of its
provisions except that:
(i) this
shall not affect any right or remedy of a third party which it would have had
if the Contracts (Rights of Third Parties) Act 1999 had not come into effect;
and
(ii) each
of Clause 5.9 (Exclusion of Liability),
Clause 18.2 (Tax Indemnity),
Clause 19 (Increased Costs) and
Clause 31.9(b) (Exclusion of Liability)
shall be enforceable by any third party referred to in such clause as if such
third party were a party to this Agreement.
(b) The
parties to this Agreement may without the consent of any third party vary or
rescind this Agreement.
This Agreement may
be executed in any number of counterparts and all of such counterparts taken
together shall be deemed to constitute one and the same instrument.
This Agreement
shall be governed by, and construed in accordance with, English Law.
49.1 Courts of England
Each of the parties
to this Agreement irrevocably agrees for the benefit of each of the Finance
Parties that the courts of England shall have exclusive jurisdiction to hear
and determine any suit, action or proceedings, and to settle any disputes,
which may arise out of or in connection with this Agreement (respectively “Proceedings” and “Disputes”) and, for such purposes,
irrevocably submits to the jurisdiction of such courts.
49.2 Waiver
Each of the
Obligors irrevocably waives any objection which it might now or hereafter have
to Proceedings being brought or Disputes settled in the courts of England and
agrees not to claim that any such court is an inconvenient or inappropriate
forum.
49.3 Service of Process
Each of the Obligors
which is not incorporated in England agrees that the process by which any
Proceedings are begun may be served on it by being delivered in connection with
any Proceedings in England, to Buhrmann
UK Limited at Tameside Drive, Holford, Birmingham, West Midlands B6 7AY
or its registered office for the time being.
If the appointment of the person mentioned in this Clause 49.3 ceases to
be effective in respect of any of the Obligors the relevant Obligor shall
immediately appoint a further person in England to accept service of process on
its behalf in England and, failing such appointment within 15 days, the
Agent shall be entitled to appoint such person by notice to the relevant
Obligor. Nothing contained
195
in this
Agreement shall affect the right to serve process in any other manner permitted
by Law.
49.4 Proceedings in Other Jurisdictions
Nothing in Clause
49.1 (Courts of England) shall (and shall not
be construed so as to) limit the right of the Finance Parties or any of them to
take Proceedings against any of the Obligors in any other court of competent
jurisdiction nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other jurisdiction
(whether concurrently or not) if and to the extent permitted by applicable Law.
49.5 General Consent
Each of the
Obligors consents generally in respect of any Proceedings to the giving of any
relief or the issue of any process in connection with such Proceedings
including the making, enforcement or execution against any property whatsoever
(irrespective of its use or intended use) of any order or judgment which may be
made or given in such Proceedings.
49.6 Waiver of Immunity
To the extent that
any Obligor may in any jurisdiction claim for itself or its assets or revenues
immunity from suit, execution, attachment (whether in aid of execution, before
judgment or otherwise) or other legal process and to the extent that in any
such jurisdiction there may be attributed to itself, its assets or revenues
such immunity (whether or not claimed), such Obligor irrevocably agrees not to
claim, and irrevocably waives, such immunity to the full extent permitted by
the laws of such jurisdiction.
49.7 Waiver of Jury Trial
EACH OBLIGOR HEREBY
WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDINGS ANYWHER ARISING
OUT OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
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