Exhibit 99.(b)(1)
CONFORMED COPY
TERM AND REVOLVING FACILITIES AGREEMENT
(Euro) 1,720,000,000 and US$1,080,000,000
FACILITY AGREEMENT
dated 6 April 2001
for
SODEXHO ALLIANCE, S.A.
arranged by
CITIBANK INTERNATIONAL plc
GOLDMAN SACHS INTERNATIONAL
AND
SG INVESTMENT BANKING
with
SOCIETE GENERALE
acting as Agent
and
SOCIETE GENERALE
acting as Issuing Bank
LINKLATERS
& ALLIANCE
LINKLATERS
Ref: PHPS
CONTENTS
CLAUSE PAGE
SECTION 1
INTERPRETATION
1. Definitions and interpretation..................................... 1
SECTION 2
THE FACILITIES
2. The Facilities..................................................... 21
3. Purpose............................................................ 21
4. Conditions of Utilisation.......................................... 22
SECTION 3
UTILISATION
5. Utilisation - Loans................................................ 25
6. Utilisation - Letters of Credit.................................... 26
7. Letters of Credit.................................................. 31
8. Optional Currencies................................................ 36
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
9. Repayment.......................................................... 38
10. Prepayment and cancellation........................................ 39
SECTION 5
COSTS OF UTILISATION
11. Interest........................................................... 44
12. Interest Periods................................................... 46
13. Changes to the calculation of interest............................. 48
14. Fees............................................................... 49
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
15. Tax gross up and indemnities....................................... 50
16. Increased costs.................................................... 53
17. Other indemnities.................................................. 54
18. Mitigation by the Lenders.......................................... 55
19. Costs and expenses................................................. 55
SECTION 7
GUARANTEE
20. Guarantee and indemnity............................................ 57
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
21. Representations.................................................... 60
22. Information undertakings........................................... 64
23. Financial Covenants................................................ 68
24. General undertakings............................................... 70
25. Events of Default.................................................. 75
SECTION 9
CHANGES TO PARTIES
26. Changes to the Lenders........................................... 80
27. Changes to the Obligors.......................................... 84
SECTION 10
THE FINANCE PARTIES
28. Role of the Agent and the Arranger............................... 86
29. Conduct of business by the Finance Parties....................... 90
30. Sharing among the Lenders........................................ 90
SECTION 11
ADMINISTRATION
31. Payment mechanics................................................ 93
32. Set-off.......................................................... 95
33. Notices.......................................................... 95
34. Calculations and certificates.................................... 97
35. Partial invalidity............................................... 97
36. Remedies and waivers............................................. 97
37. Amendments and waivers........................................... 98
38. Counterparts..................................................... 98
SECTION 12
GOVERNING LAW AND ENFORCEMENT
39. Governing law.................................................... 99
40. Enforcement...................................................... 99
THE SCHEDULES
SCHEDULE PAGE
SCHEDULE 1 The Original Lenders....................................... 100
SCHEDULE 2 Conditions precedent....................................... 101
SCHEDULE 3 Requests................................................... 105
SCHEDULE 4 Mandatory Cost formulae.................................... 108
SCHEDULE 5 Form of Transfer Certificate............................... 111
SCHEDULE 6 Form of Accession Letter................................... 112
SCHEDULE 7 Form of Compliance Certificate............................. 113
SCHEDULE 8 LMA Form of Confidentiality Undertaking.................... 114
SCHEDULE 9 Timetables................................................. 119
SCHEDULE 10 Acquisition Financing Indemnity............................ 121
SCHEDULE 11 Form of TEG Letter......................................... 123
SCHEDULE 12 Material Subsidiaries...................................... 125
SCHEDULE 13 Form of Letter of Credit................................... 126
THIS AGREEMENT is dated 6 April 2001 and made between:
(1) SODEXHO ALLIANCE, S.A. (the "Company");
(2) CITIBANK INTERNATIONAL plc, GOLDMAN SACHS INTERNATIONAL and SG INVESTMENT
BANKING (whether acting individually or together, the "Arranger");
(3) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as lenders (the "Original
Lenders");
(4) SOCIETE GENERALE as agent of the Lenders (the "Agent"); and
(5) SOCIETE GENERALE as issuing bank of Letters of Credit (the "Issuing Bank").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. Definitions and interpretation
1.1 Definitions
In this Agreement:
"AA" means Albert Abela Corporation.
"AA Group" means AA and its Subsidiaries and "member of the AA Group" shall
be construed accordingly.
"AA Acquisition" means each proposed acquisition by an AA Bidco of the
relevant businesses of members of the AA Group pursuant to an AA
Acquisition Agreement.
"AA Acquisition Agreement" means each sale and purchase agreement and, if
applicable, attached schedules made between a member of the AA Group and an
AA Bidco in respect of the Wood Dining Services, Sogeres, Other Businesses
and Airline Catering businesses and, in each case, any amendments thereto
and in the case of the Sogeres acquisition, the related substitution
agreement.
"AA Acquisition Costs" means all costs, fees and expenses and all
registration and other similar Taxes incurred by or on behalf of the
Company or any other member of the Group in connection with the AA
Acquisitions and/or the Facilities.
"AA Bidcos" means the four French and/or US companies incorporated by the
Company for the purpose of carrying out the potential AA Acquisitions.
"Accession Letter" means a document substantially in the form set out in
Schedule 6 (Form of Accession Letter).
"Acquired Shares" means any of the Shares which are acquired pursuant to an
Offer and/or Market Purchases.
"Additional Borrower" means a company which becomes an Additional Borrower
in accordance with Clause 27 (Changes to the Obligors).
"Additional Guarantor" means a company which becomes an Additional
Guarantor in accordance with Clause 27 (Changes to the Obligors).
"Additional Obligor" means an Additional Borrower or an Additional
Guarantor.
"Adjusted Net Worth" means, at any time, the sum of:
(a) the amount of shareholders' funds ("capitaux propres") as shown in the
Group's then most recent consolidated balance sheet;
(b) the amount of minority interests ("interets minoritaires") as shown in the
Group's then most recent consolidated balance sheet; and
(c) the amount of goodwill arising on acquisitions ("ecarts de premiere
consolidation") which has been written off against reserves, minority
interests or amortised (but only to the extent that such write-off or
amortisation has been deducted in computing profit or reserves), such
amount to be calculated on a cumulative basis since 31 August 1994.
"Affiliate" means:
(a) in relation to any person, a Subsidiary of that person or a Holding Company
of that person or any other Subsidiary of that Holding Company; and
(b) for the purposes of this Agreement:
(i) Citibank International plc, Citicorp USA, Inc. and Citibank, N.A.
will be treated as Affiliates of each other;
(ii) Goldman Sachs Credit Partners, L.P. and Goldman Sachs International
Bank will be treated as Affiliates of each other; and
(iii) except, for the avoidance of doubt, for the purposes of Clause 24.12
(Transactions with Affiliates and shareholders), Bellon S.A. shall
not be treated as an Affiliate.
"Agent's Spot Rate of Exchange" means the Agent's spot rate of exchange for
the purchase of the relevant currency with the relevant Base Currency in
the London foreign exchange market at or about 11:00 a.m. on a particular
day.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing or registration.
"Availability Period" means:
(a) in relation to Facility A1, the period from and including the date of this
Agreement to and including the date which is 90 days after the date of this
Agreement, provided that up to Euro 200,000,000 only of Facility A1 shall
be available for drawing up to and including 30 November 2001;
(b) in relation to Facility A2, the period from and including the date of this
Agreement to and including the date which is 90 days after the date of this
Agreement;
(c) in relation to Facility B, the period from and including the date of this
Agreement to and including the date which is 90 days after the date of this
Agreement; and
(d) in relation to Facility C, the period from and including the date of this
Agreement to and including the Termination Date applicable to Facility C.
"Available Commitment" means, in relation to a Facility, a Lender's Commitment
under that Facility minus:
(a) the Base Currency Amount of its participation in any outstanding
Utilisations under that Facility; and
(b) in relation to any proposed Utilisation, the Base Currency Amount of its
participation in any Utilisations that are due to be made under that
Facility on or before the proposed Utilisation Date, other than, in
relation to Facility C only, that Lender's participation in any Facility C
Utilisations that are due to be repaid or prepaid on or before the proposed
Utilisation Date.
"Available Facility" means, in relation to a Facility, the aggregate for the
time being of each Lender's Available Commitment in respect of that Facility.
"Base Currency"
(a) in relation to Facility A and all Facility A Loans, euro; and
(b) in relation to Facility B and a Facility B Loan and Facility C and a
Facility C Loan or Letter of Credit, US Dollars.
"Base Currency Amount" means, in relation to a Utilisation, the amount specified
in the Utilisation Request delivered by a Borrower for that Utilisation (or, if
the amount requested is not denominated in the Base Currency relative to that
Utilisation, that amount converted into the Base Currency relative to that
Utilisation at the Agent's Spot Rate of Exchange on the date which is three
Business Days before the Utilisation Date or, if later, on the date the Agent
receives the Utilisation Request) adjusted to reflect any repayment, prepayment,
consolidation or division of that Utilisation.
"Board" means the Board of Governors of the Federal Reserve System of the United
States (or any successor).
"Borrower" means the Company or an Additional Borrower.
"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 a Loan or Unpaid
Sum to the last day of the current Interest Period in respect of that Loan
or Unpaid Sum had the principal amount or Unpaid Sum received been paid on
the last day of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by placing an amount
equal to the principal amount or Unpaid Sum received by it on deposit with
a leading bank in the Relevant Interbank Market for a period starting on
the Business Day following receipt or recovery and ending on the last day
of the current Interest Period.
"Business Day" means a day (other than a Saturday or Sunday) on which banks are
open for general business in London, New York and Paris and:
(a) (in relation to any date for payment or purchase of a currency other than
euro) the principal financial centre of the country of that currency; or
(b) (in relation to any date for payment or purchase of euro) any TARGET Day.
"Canadian Dollars" means the lawful currency for the time being of Canada.
"Clean-up Period" means the period of 3 months:
(a) in respect of an AA Acquisition, from and including the Company or the
relevant AA Bidco completing that AA Acquisition, being the date on which
the relevant business is transferred to the Company or, as the case may be,
an AA Bidco under the relevant Acquisition Agreement; and
(b) in respect of a Kodak Acquisition, from and including the Company or Kodak
Bidco gaining control of Kodak (with "control" having the meaning specified
in the definition of "Subsidiary").
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Commitment" means, in relation to a Lender at any time, the aggregate of its
Facility A1 Commitment, its Facility A2 Commitment, its Facility B Commitment
and its Facility C Commitment.
"Commitment Letter" means the letter dated 5 March 2001 from, inter alia, each
Arranger and Lender to the Company relating to the underwriting of the
Facilities on the terms set out in such letter.
"Compliance Certificate" means a certificate substantially in the form set out
in Schedule 7 (Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking substantially
in a recommended form of the LMA as set out in Schedule 9 (LMA Form of
Confidentiality Undertaking) or in any other form agreed between the Company and
the Agent.
"Default" means an Event of Default or any event or circumstance specified in
Clause 25 (Events of Default) which would (with the expiry of a grace period,
the giving of notice, the making of any determination under the Finance
Documents or any combination of any of the foregoing) be an Event of Default.
"EBITDA" means EBIT (as defined in Clause 23.2 (Definitions)) for the Group or
relevant member of the Group, as the case may be, plus depreciation and
amortisation plus or minus, as appropriate, changes in operating provisions as
determined in accordance with French GAAP.
"Environmental Approvals" means and includes (in relation to a person) any
permits, consents, licences, certificates, specifications, registrations and
other authorisations and approvals (including without limitation any conditions
which attach to the above) required under Environmental Laws to be obtained in
connection with the ownership, occupation, holding or use of any real property
or the conduct of business by that party at any real property.
"Environmental Claim" means any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, notices of non-compliance or
violation, investigations,
proceedings, consent orders or consent agreements relating in any way to any
Environmental Laws or Environmental Approvals.
"Environmental Laws" means and includes (in relation to any person) the
following;
(a) all European community, national, regional or local statutes, treaty codes,
or other laws or legislation (including, without limitation, those of the
United States) concerning health, safety or Environmental Matters which are
applicable to the business or to any real property owned, occupied, held or
used by that person and all rules, regulations, ordinances, orders,
notices, directives, circulars, codes of practice and guidance notes made
thereunder including any amendment, re-enactment or consolidation thereof
(whether or not applicable at the date hereof); and
(b) judicial and administrative interpretation of each of the foregoing.
"Environmental Matters" means and includes in relation to a person's business
and any real property owned, occupied, held or used by that person all matters
related to pollution or protection of the environment including, without
limitation, harm to the health of human beings, animals, and plants including
without limitation public and employee health and safety, noise, emissions,
discharges, and releases of Hazardous Substances into air, water, sewage systems
and land, and the manufacture, processing, distribution, use, treatment,
storage, disposal, transport and handling of Hazardous Substances.
"ERISA" means the Employee Retirement Income Security Act of 1974 and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any person that for the purposes of Title IV of ERISA is
a member of the controlled group of a US Material Subsidiary, or under common
control with a US Material Subsidiary, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means:
(a) (i) the occurrence of a reportable event, within the meaning of Section
4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC, or (ii)
the requirements of subsection (1) of Section 4043(b) of ERISA (taking into
account subsection (2) of such Section) are met with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a
Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with respect to
such Plan within the following 30 days;
(b) the application for a minimum funding waiver with respect to a Plan;
(c) the provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA in a distress
termination pursuant to ERISA Section 4041(c) (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of a US Obligor or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA;
(e) the withdrawal by a US Material Subsidiary or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA;
(f) the conditions for imposition of a lien under Section 302(f) of ERISA shall
have been met with respect to any Plan;
(g) the adoption of an amendment to a Plan requiring the provision of security
to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such Plan.
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the period of that Loan) the arithmetic
mean of the rates (rounded upwards to four decimal places) as supplied to
the Agent at its request quoted by the Reference Banks to leading banks in
the European Interbank market,
as of the Specified Time on the Quotation Day for the offering of deposits in
euro for a period comparable to the Interest Period of the relevant Loan.
"euro" or "EURO" means the single currency of the Participating Member States
and, for the avoidance of doubt, excludes National Currency Units.
"Event of Default" means any event or circumstance specified as such in Clause
25 (Events of Default).
"Facility" means Facility A, Facility B and/or, as the context may require,
Facility C.
"Facility A" means either or both of Facility A1 or Facility A2, as the case may
be.
"Facility A Loan" means a Facility A1 Loan or a Facility A2 Loan.
"Facility A1" means the term loan facility made available under this Agreement
as described in paragraph (a) of Clause 2.1 (The Facilities).
"Facility A1 Commitment" means:
(a) in relation to an Original Lender, the amount in the Base Currency relative
to Facility A1 set opposite its name under the heading "Facility A1
Commitment" in Part II of Schedule 1 (The Original Parties) and the amount
of any other Facility A1 Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount in the Base Currency relative
to Facility A1 of any Facility A1 Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
"Facility A1 Loan" means a loan made or to be made under Facility A1 or the
principal amount outstanding for the time being of that loan.
"Facility A1 Repayment Date" means the Termination Date applicable to Facility
A1.
"Facility A2" means the term loan facility made available under this Agreement
as described in paragraph (b) of Clause 2.1 (The Facilities).
"Facility A2 Commitment" means:
(a) in relation to an Original Lender, the amount in the Base Currency relative
to Facility A2 set opposite its name under the heading "Facility A2
Commitment" in Part II of Schedule 1 (The Original Parties) and the amount
of any other Facility A2 Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount in the Base Currency relative
to Facility A2 of any Facility A2 Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
"Facility A2 Loan" means a loan made or to be made under Facility A2 or the
principal amount outstanding for the time being of that loan.
"Facility A2 Repayment Date" means the Termination Date applicable to Facility
A2.
"Facility B" means the term loan facility made available under this Agreement as
described in paragraph (c) of Clause 2.1 (The Facilities).
"Facility B Commitment" means:
(a) in relation to an Original Lender, the amount in the Base Currency relative
to Facility B set opposite its name under the heading "Facility B
Commitment" in Part II of Schedule 1 (The Original Parties) and the amount
of any other Facility B Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount in the Base Currency relative
to Facility B of any Facility B Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
"Facility B Loan" means a loan made or to be made under Facility B or the
principal amount outstanding for the time being of that loan.
"Facility B Repayment Date" means each date specified in Clause 9.2 (Repayment
of Facility B Loans) for the payment of a Repayment Instalment.
"Facility C" means the revolving credit facility made available under this
Agreement as described in paragraph (d) of Clause 2.1 (The Facilities).
"Facility C Commitment" means:
(a) in relation to an Original Lender, the amount in the Base Currency relative
to Facility C set opposite its name under the heading "Facility C
Commitment" in Part II of Schedule 1 (The Original Parties) and the amount
of any other Facility C Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount in the Base Currency relative
to Facility C of any Facility C Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
"Facility C Loan" means a loan made or to be made under Facility C or the
principal amount outstanding for the time being of that loan.
"Facility C Utilisation" means a Facility C Loan or a Letter of Credit.
"Facility Office" means the office or offices notified by a Lender to the Agent
in writing on or before the date it becomes a Lender (or, following that date,
by not less than five Business Days' written notice) as the office or offices
through which it will perform its obligations under this Agreement.
"Fee Letter" means any letter or letters dated on or prior to the date of this
Agreement between the Arranger and the Company (or the Agent and the Company or
the Issuing Bank and the Company) setting out any of the fees referred to in
Clause 7.3(a) (Fees payable in respect of Letters of Credit) and Clause 14
(Fees).
"Finance Document" means this Agreement, any Syndication Agreement, the
Commitment Letter, any Fee Letter, any Accession Letter and any other document
designated as such by the Agent and the Company.
"Finance Party" means the Agent, the Arranger or a Lender.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit facility;
(c) any amount raised pursuant to any note purchase facility or the issue of
bonds, notes, debentures, loan stock or any similar instrument;
(d) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with French GAAP, be treated as a
finance or capital lease;
(e) receivables sold or discounted (other than any receivables to the extent
they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any forward sale
or purchase agreement) having the commercial effect of a borrowing;
(g) any derivative transaction entered into in connection with protection
against or benefit from fluctuation in any rate or price (and, when
calculating the value of any derivative transaction, only the marked to
market value shall be taken into account);
(h) shares which are expressed to be redeemable prior to the Termination Date
for Facility B and Facility C;
(i) any counter-indemnity obligation in respect of a guarantee, indemnity,
bond, standby or documentary letter of credit or any other instrument
issued by a bank or financial institution; and
(j) the amount of any liability in respect of any guarantee or indemnity for
any of the items referred to in paragraphs (a) to (i) above,
and for the avoidance of doubt no particular Financial Indebtedness shall be
taken into account more than once (so that, for example (i) a guarantee shall be
excluded to the extent the
Financial Indebtedness guaranteed thereby is already taken into account; (ii)
there shall be excluded any performance guarantee issued in favour of Spirit
Marine in respect of the contractual arrangements entered into by Spirit
Cruises; and (iii) there shall also be excluded, for the avoidance of doubt,
Financial Indebtedness of any person (not being a member of the Group) that is
guaranteed by a member of the Group which guarantee thereof is treated as
Financial Indebtedness).
"French GAAP" means generally accepted accounting principles, standards and
practices in France under the "Plan Comptable General" and "Code de Commerce".
"French Obligor" means an Obligor incorporated in France.
"Group" means the Company and its Subsidiaries for the time being.
"Guaranteed Investments" means, in relation to any member of the Group, amounts
invested by that member of the Group in order to finance on behalf of a
customer, whether by "credit-bail" or leasing transaction or other means, the
construction and/or installation of a facility to be utilised in connection with
an operating contract awarded to it or any other member of the Group on terms
which provide that the financing cost of the relevant investment is not to be
borne by the relevant member of the Group. Guaranteed Investments shall not
include amounts invested by the Company or its Subsidiaries:
(a) prior to 1 September 2000; or
(b) to the extent that the inclusion of such amounts would at any time cause
the aggregate amount of all the Guaranteed Investments of the Group (taken
together with those of its Subsidiaries) to exceed an amount equal to 5 per
cent. of the Group's annual consolidated sales in its most recent financial
year, as shown in its most recently delivered accounts delivered under
Clause 22.1 (Financial statements).
"Hazardous Substances" means and includes pollutants, contaminants and
hazardous, flammable and toxic substances, materials, and waste whether solid,
semi-solid, liquid or gaseous and whether or not such pollutant, contaminant,
substance, material or waste is referred to specifically in any of the
Environmental Laws.
"Guarantor" means the Company or an Additional Guarantor.
"Holding Company" means, in relation to a company or corporation, any other
company or corporation in respect of which it is a Subsidiary excluding, save
for the purpose of Clause 24.12 (Transactions with Affiliates and Shareholders),
Bellon S.A..
"Information Memorandum" means the document in the form approved by the Company
which, at the Company's request and on its behalf, is to be or was prepared in
relation to the syndication of the Facilities and distributed by the Arranger to
selected financial institutions.
"Insufficiency" means, with respect to any Plan, the amount, if any, of its
unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Period" means, in relation to a Loan, each period determined in
accordance with Clause 12 (Interest Periods) and, in relation to an Unpaid Sum,
each period determined in accordance with Clause 11.4 (Default interest).
"Internal Revenue Code" means the Internal Revenue Code of 1986 and the
regulations promulgated and rulings issued thereunder.
"Kodak" means Sodexho Marriott Services, Inc.
"Kodak Acquisition" means the acquisition by the Company or Kodak Bidco of
Shares, whether pursuant to a Recommended Offer, Non-Recommended Offer or
Market Purchases.
"Kodak Bidco" means the US company incorporated by the Company for the
purpose of carrying out the potential Kodak Acquisition.
"Kodak Existing Facility" means the existing US$620,000,000 syndicated term
facility between Kodak and the banks and financial institutions named
therein, dated as of 30 January 1998, as amended.
"Kodak Waiver" means a waiver by the banks and financial institutions party
to the Kodak Existing Facility (and who have the benefit of the guarantee
by the Company of the Kodak Existing Facility dated as of 27 March 1998)
due to the transactions contemplated in this Agreement.
"Lender" means:
(a) any Original Lender (provided that Citibank International plc and
Citicorp USA, Inc. shall be deemed to be a single Lender); and
(b) any bank, financial institution or other person which has become a
Party in accordance with Clause 26 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"Letter of Credit" means a letter of credit, substantially in the form set
out in Schedule 13 (Form of Letter of Credit) or in any other form
requested by SMO and agreed by the Agent and the Issuing Bank (in each case
within 2 Business Days from the receipt of the form of such letter of
credit from SMO).
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or period of that
Loan) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the London Interbank market,
as of the Specified Time on the Quotation Day for the offering of deposits
in the currency of that Loan and for a period comparable to the Interest
Period for that Loan.
"Loan" means a Facility A Loan, a Facility B Loan or a Facility C Loan.
"LMA" means the Loan Market Association.
"Majority Lenders" means:
(a) until the Total Commitments have been reduced to zero, a Lender or
Lenders whose Commitments aggregate more than 66 2/3% of the Total
Commitments (or, if the Total
Commitments have been reduced to zero and there are no Utilisations
then outstanding, aggregated more than 66 2/3% of the Total
Commitments immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose participations in the
Utilisations then outstanding aggregate more than 66 2/3% of all the
Utilisations then outstanding,
and, for the purpose of calculating the Total Commitments and Utilisations,
each Facility B Commitment and Facility C Commitment of a Lender shall be
taken into account in euro at the Agent's Spot Rate of Exchange for the
purchase of US Dollars with euro on the date (as determined by the Agent) a
Majority Lender determination is, or is required to be, made.
"Mandatory Cost" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost formulae).
"Margin" means, in relation to a Facility at any time, the basis points per
annum determined to be the Margin applicable to that Facility in accordance
with Clause 11.2 (Margin and adjustment).
"Market Purchases" means any purchase of Shares in Kodak in the open market
or by private treaty (not pursuant to an Offer).
"Material Adverse Effect" means a material adverse effect on:
(a) the financial condition or business of the Group taken as a whole;
or
(b) the ability of any Obligor to perform and comply with its payment
obligations under any Finance Document.
"Material Subsidiary" means, at any time, a Subsidiary of the Company:
(a) whose revenues (excluding intra-Group items) then accounts for at
least 5 per cent. of the consolidated revenues of the Group; or
(b) whose EBITDA (excluding intra-Group items) then accounts for at
least 5 per cent. of the consolidated EBITDA of the Group; or
(c) whose gross assets (excluding intra-Group items) then accounts for
at least 5 per cent. of the consolidated gross assets of the Group.
For this purpose:
(i) the revenues, EBITDA or gross assets of a Subsidiary of the Company
will be determined from its financial statements (on an
unconsolidated basis) upon which the latest audited financial
statements of the Group have been based;
(ii) if a Subsidiary of the Company becomes a member of the Group after
the date on which the latest audited financial statements of the
Group have been prepared, the revenues, EBITDA or gross assets of
that Subsidiary will be determined from its latest financial
statements;
(iii) the revenues, EBITDA or gross assets of the Group will be determined
from its latest audited or half yearly financial statements; and
(iv) if a Material Subsidiary disposes of all or substantially all of its
assets to another Subsidiary of the Company, it will immediately
cease to be a Material Subsidiary and the other Subsidiary (if it is
not already) will immediately become a Material Subsidiary; the
subsequent financial statements (audited or half yearly) of those
Subsidiaries and the Group will be used to determine whether those
Subsidiaries are Material Subsidiaries or not.
If there is a dispute as to whether or not a company is a Material
Subsidiary, a certificate of the auditors of the Company will be, in the
absence of manifest error, conclusive.
"Month" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month, except
that:
(a) if the numerically corresponding day is not a Business Day, that
period shall end on the next Business Day in that calendar month in
which that period is to end if there is one, or if there is not, on
the immediately preceding Business Day; and
(b) if there is no numerically corresponding day in the calendar month
in which that period is to end, that period shall end on the last
Business Day in that calendar month.
The above rules will only apply to the last Month of any period.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA which is a defined benefit plan within the meaning of
Section 3(35) of ERISA, to which a US Obligor or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of a US
Obligor or any ERISA Affiliate and at least one person other than that US
Obligor and the ERISA Affiliates or (b) was so maintained and in respect of
which a US Obligor or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"National Currency Unit" means a currency unit (other than euros) of a
Participating Member State.
"Negative Committee Announcement" means an announcement made by the Special
Committee that it has not reached agreement with the Company on the terms
of a Recommended Offer.
"Net Debt Proceeds" means the cash proceeds (net of commissions, VAT and
other equivalent Taxes and transaction costs) received by a member of the
Group as a result of issuing any note, bond, or other debt securities
(whether issued to the public or by means of private placement) by the
Company or any of its Subsidiaries in any of the capital markets of the
United States, Europe or Japan but excluding:
(a) any such debt securities issued in the ordinary course of their day
to day business with maturities of less than 6 months; and
(b) any such debt security issued after the date of this Agreement up to
a maximum aggregate amount for the Company and its Subsidiaries of
50,000,000 (or its equivalent in other currencies) outstanding at
any one time; and
(c) any such debt securities issued by Kodak or its Subsidiaries until the
earlier of (i) Kodak becoming a wholly-owned Subsidiary of the Company
and (ii) the Company otherwise being able to control the use of any
such proceeds received by Kodak or its Subsidiaries.
"Net Equity Proceeds" means the cash proceeds (net of commissions, VAT and
other equivalent Taxes and transaction costs) received by the Company as a
result of the issue by the Company in the international capital markets or
elsewhere (whether by public offer or private placement) of any share or
stock (including the proposed Rights Issue) or any other instrument
convertible into any share or stock provided that no such cash proceeds
shall constitute Net Equity Proceeds to the extent that such cash proceeds
also constitute Net Debt Proceeds and there shall be excluded from Net
Equity Proceeds cash proceeds relating to:
(a) stock options of the Company;
(b) the exercise of warrants existing as at the date of this Agreement;
and
(c) the proposed international share ownership plan for employees.
"Non-Recommended Offer" means an Offer made in the event that the Special
Committee does not recommend the Offer.
"Obligor" means a Borrower or a Guarantor.
"Offer" means an offer for all or part of the Shares that are not already
owned by the Company made or proposed to be made by or on behalf of the
Company or Kodak Bidco, as the case may be, substantially on the terms and
conditions set out in the Tender Offer Statement, as that offer may from
time to time be amended, extended, revised or waived without causing a
breach of this Agreement.
"Offer Costs" means all costs, fees and expenses (and Taxes on them) and
all registration and other similar Taxes incurred by or on behalf of the
Company or any other member of the Group in connection with the Offer
and/or the Facilities.
"Optional Currency" means a currency (other than, in relation to a
Facility, a Loan or a Letter of Credit, the Base Currency relative to that
Facility, Loan or Letter of Credit, as the case may be) which complies with
the conditions set out in Clause 4.3 (Conditions relating to Optional
Currencies).
"Original Financial Statements" means in relation to the Company, the
audited consolidated financial statements of the Group for the financial
year ended 31 August 2000.
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Union relating to European
Monetary Union.
"Party" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees.
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Positive Committee Announcement" means an announcement made by the Special
Committee that it has reached agreement with the Company on the terms of a
Recommended Offer.
"Qualifying Lender" has the meaning given to it in Clause 15 (Tax gross-up
and indemnities).
"Quotation Day" means, in relation to any period for which an interest rate
is to be determined:
(a) (if the currency is sterling) the first day of that period;
(b) (if the currency is euro) two TARGET Days before the first day of that
period; or
(c) (for any other currency) two Business Days before the first day of
that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the Relevant
Interbank Market (and if quotations for that currency and period would
normally be given by leading banks in the Relevant Interbank Market on more
than one day, the Quotation Day will be the last of those days).
"Rating" has the meaning ascribed thereto in Clause 11.2(g) (Margin and
adjustment).
"Recommended Offer" means an Offer which is recommended by the Special
Committee.
"Reference Banks" means, in relation to LIBOR, the principal London offices
of Citibank N.A., Societe Generale and HSBC Bank PLC and, in relation to
EURIBOR, the principal office in Brussels of Citibank International plc,
the principal office in Paris of Societe Generale and the principal office
in Paris of HSBC Bank PLC or such other banks as may be appointed by the
Agent in consultation with the Company.
"Regulation D" means Regulation D of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation T" means Regulation T of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Relevant Interbank Market" means in relation to euro, the European
Interbank market and, in relation to any other currency, the London
Interbank market.
"Repayment Instalment" means each instalment for repayment of the Facility
B Loans specified in Clause 9.2 (Repayment of Facility B Loans).
"Repeating Representations" means each of the representations set out in
Clause 21 other than those set out in Clauses 21.7 (Information
Memorandum), 21.8 (Financial statements), 21.13 (Material Subsidiaries),
21.14 (Insolvency), 21.15 (Tax liabilities) and, following the completion
of the Offer or, as the case may be, relevant AA Acquisition, 21.19 (The
Offer and AA Acquisitions).
"Reservations" means:
(a) the principle that equitable remedies are at the discretion of the
court;
(b) the limitation on enforcement by laws relating to insolvency,
liquidation, reorganisation, court schemes, moratoria, administration
and other laws affecting the rights of creditors generally;
(c) the time barring of claims; and
(d) similar principles and rights.
"Rights Issue" means the increase in share capital (augmentation de
capital) in respect of shares of the Company proposed to be carried out and
completed by the Company in connection with the Kodak Acquisition.
"Rollover Loan" means one or more Facility C Loans:
(a) made or to be made on the same day that one or more maturing Facility
C Loans is or are due to be repaid;
(b) the aggregate amount of which is equal to or less than the maturing
Facility C Loan(s) (unless it is more than the maturing Facility C
Loan(s) solely because it arose as a result of the operation of Clause
8.2 (Unavailability of a currency));
(c) in the same currency as the maturing Facility C Loan(s) (unless it
arose as a result of the operation of Clause 8.2 (Unavailability of a
currency)); and
(d) made or to be made to the same Borrower for the purpose of refinancing
the maturing Facility C Loan(s).
"S&P" means Standard & Poor's Corporation.
"Screen Rate" means:
(a) in relation to LIBOR, the British Bankers Association Interest
Settlement Rate for the relevant currency and period; and
(b) in relation to EURIBOR, the percentage rate per annum determined by
the Banking Federation of the European Union for the relevant period,
displayed on the appropriate page of the Telerate screen. If the agreed
page is replaced or service ceases to be available, the Agent may specify
another page or service displaying the appropriate rate after consultation
with the Company and the Lenders.
"Security" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"Selection Notice" means a notice substantially in the form set out in Part
II of Schedule 3 (Requests) given in accordance with Clause 12 (Interest
Periods) in relation to Facility A or Facility B.
"Shares" means all the issued shares of each class in the capital of Kodak
(including any issued while an Offer remains open for acceptance).
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of a US Obligor
or any ERISA Affiliate and no person other that US Obligor and the ERISA
Affiliates or (b) was so maintained and in respect of
which a US Obligor or any ERISA Affiliate could have liability under
Section 4069 of ERISA in the event such plan has been or were to be
terminated.
"SMO" means Sodexho Marriott Operations, Inc.
"SMO Credit Agreement" means the US$735,000,000 credit agreement dated as
of 30 January 1998 among SMO as borrower, the lenders party thereto, SMS as
parent guarantor, and Morgan Guaranty Trust Company of New York, as
documentation agent and administrative agent for the lender parties
thereto.
"SMO Drawn Debt" means:
(a) the amounts outstanding under the US$500,000,000 term loan facility
provided under the SMO Credit Agreement; and
(b) any outstandings under the SMO Revolving Facilities.
"SMO Guarantee" means the unlimited guarantee given or to be given by SMO
of all amounts due under this Agreement, by SMO acceding as an Additional
Guarantor to this Agreement, in the circumstances set out in Clause 27.3
(Additional Guarantors).
"SMO Revolving Facilities" means the US$235,000,000 revolving credit
facility of SMO provided under the SMO Credit Agreement.
"SMO Waiver" means a waiver by the banks and financial institutions party
to the SMO Credit Agreement due to the transactions contemplated in this
Agreement.
"Special Committee" means the committee of Kodak's board of directors
formed to consider the proposal made by the Company to Kodak's board of
directors in January 2001.
"Specified Time" means a time determined in accordance with Part I of
Schedule 9 (Timetables) for Loans and Part II of Schedule 9 (Timetables)
for Letters of Credit.
"Spirit Cruises" means Spirit Cruises Inc. of 5700 Lake Wright Drive, Ste
203, VA 32502 Norfolk, United States.
"Spirit Marine" means Spirit Marine of 5700 Lake Wright Drive, Ste 203, VA
32502 Norfolk, United States.
"Sterling" means the lawful currency for the time being in the United
Kingdom.
"Subsidiary" means, subject to Clause 1.4 (Kodak and SMO as Subsidiaries),
any company or corporation:
(a) which is controlled, directly or indirectly, by the first-mentioned
company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(c) which is a subsidiary of another subsidiary of the first-mentioned
company or corporation,
and, for these purposes, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to
control the composition of its board of directors or equivalent body or
similarly direct its affairs.
"Syndication Agreement" means each or any agreement to be entered into
between the Parties to novate rights and obligations under this Agreement
to persons becoming Parties as a result of the syndication of the
Facilities in each case in a form and substance acceptable to the Arranger
and the Company (each acting reasonably).
"Syndication Date" means the earlier of:
(a) the Arranger notifying the Company that syndication of the Facilities
has been completed; and
(b) 30 August 2001.
"TARGET" means Trans-European Automated Real-time Gross Settlement Express
Transfer payment system.
"TARGET Day" means any day on which TARGET is open for the settlement of
payments in euro.
"Tax" means any tax, levy, impost, duty or other charge or withholding of a
similar nature (including any penalty, interest payable or any other costs
which may be incurred in connection with any failure to pay or any delay in
paying any of the same) imposed by a governmental authority.
"Taxes Act" means the Income and Corporation Taxes Act 1988.
"Tender Offer Statement" means the tender offer statement filed, or to be
filed, with the Securities and Exchange Commission of the United States
setting out the terms and conditions on which the Offer is being made to
the holders of the Shares resident in the United States.
"Termination Date" means:
(a) in relation to Facility A1 and Facility A2, the date which, subject to
Clause 5.5 (Extension of Facility A1 and Facility A2), is 364 days
after the date of this Agreement; and
(b) in relation to Facility B and Facility C, the date which is five years
after the date of this Agreement.
"Total Commitments" means the aggregate of:
(a) the Total Facility A Commitments being (Euro)1,720,000,000 at the date
of this Agreement; and
(b) the Total Facility B Commitments and the Total Facility C Commitments,
being US$1,080,000,000 at the date of this Agreement.
"Total Facility A Commitments" means the aggregate of the Total Facility A1
Commitments and the Total Facility A2 Commitments, being
(Euro)1,720,000,000 at the date of this Agreement.
"Total Facility A1 Commitments" means the aggregate of the Facility A1
Commitments, being (Euro)670,000,000 at the date of this Agreement.
"Total Facility A2 Commitments" means the aggregate of the Facility A2
Commitments, being (Euro)1,050,000,000 at the date of this Agreement.
"Total Facility B Commitments" means the aggregate of the Facility B
Commitments, being US$930,000,000 at the date of this Agreement.
"Total Facility C Commitments" means the aggregate of the Facility C
Commitments, being US$150,000,000 at the date of this Agreement.
"Transfer Certificate" means a certificate substantially in one of the
forms set out in Schedule 5 (Form of Transfer Certificate) or any other
form agreed between the Agent and the Company.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate;
and
(b) the date on which the Agent executes the Transfer Certificate.
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under
the Finance Documents.
"US company" means a company incorporated in the United States.
"US Dollars" or "US$" means the lawful currency for the time being of the
United States.
"United States" means the United States of America.
"US GAAP" means the generally accepted accounting principles, standards and
practices in the United States.
"US Obligor" means an Obligor which is a US Person.
"US Material Subsidiary" means a Material Subsidiary which is a US Person.
"US Person" means a United States Person within the meaning of Code section
7701(a)(30).
"Utilisation" means a Loan or a Letter of Credit.
"Utilisation Date" means the date on which a Utilisation is made or is to
be made.
"Utilisation Request" means a notice substantially in the form set out in
Part I (or where applicable, Part III) of Schedule 3 (Requests).
"VAT" means value added tax as provided for in the Value Added Tax Act 1994
and any other tax of a similar nature.
"Waivers" means the Kodak Waiver and/or the SMO Waiver.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle E of
Title IV of ERISA.
1.2 Construction
(a) Any reference in this Agreement to:
(i) "assets" includes present and future properties, revenues and rights
of every description;
(ii) the "European interbank market" means the interbank market for euro
operating in Participating Member States;
(iii) a "Finance Document" or any other agreement or instrument is a
reference to that Finance Document or other agreement or instrument
as amended or novated;
(iv) "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;
(v) a "person" includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust or
partnership (whether or not having separate legal personality) or
two or more of the foregoing;
(vi) a "regulation" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of
any governmental, intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other authority or
organisation;
(vii) "syndication" shall include (unless the contrary intention appears)
a reference to each phase of primary syndication (being sub-
underwriting, general syndication or otherwise) on the basis set
out in the Commitment Letter and "launch of syndication" shall be
the date on which potential Lenders are invited to become a Lender.
(viii) a provision of law is a reference to that provision as amended or
re-enacted; and
(ix) unless a contrary indication appears, a time of day is a reference
to London time.
(b) Section, Clause and Schedule headings are for ease of reference only.
(c) Unless a contrary indication appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in this
Agreement.
(d) A Default (other than an Event of Default) is "continuing" if it has not
been remedied or waived and an Event of Default is "continuing" if it has
not been waived.
1.3 Third Party Rights
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the
benefit of any term of this Agreement.
1.4 Kodak and SMO as Subsidiaries
Notwithstanding that at the date of this Agreement Kodak and SMO may not
satisfy the requirements to qualify as a Subsidiary, as set out in the
definition thereof, each of Kodak and SMO shall be deemed to be a
Subsidiary (and consequently a member of the Group and Material Subsidiary
(to the extent it satisfies the criteria therefor)) under this Agreement
from the date of this Agreement other than in relation to the following
Clauses or, as specified below, parts of the following Clauses:
(a) Clause 21.15 (Tax liabilities);
(b) Clause 22.4(b) and (c) (Information: miscellaneous) provided that
Kodak and SMO shall be deemed to be a member of the Group as
specified in such Clauses to the extent the Company has actual
knowledge of such details or information, as the case may be, in
relation to Kodak or SMO;
(c) Clause 22.11 (Environment) provided that Kodak and SMO shall be
deemed to be a member of the Group as specified in such Clause to
the extent the Company has actual knowledge of such matters and the
Company (not Kodak or SMO) shall notify the Agent of the same:
(d) Clause 24.2 (Compliance with laws) and Clause 24.3(a) (Negative
pledge);
(e) The reference to Group in the first line of Clause 24.4
(Disposals);
(f) Clause 24.8 (Insurance), Clause 24.9 (The Offer), Clause 24.11
(Taxes) and Clause 24.12 (Transactions with Affiliates and
shareholders).
For the avoidance of doubt, Kodak and SMO shall be a Subsidiary (and
consequently a member of the Group and Material Subsidiary (to the extent
it satisfies the criteria therefor)) for each of the Clauses referred to in
(a) to (f) above, as soon as it satisfies the requirements of being a
"Subsidiary" as set out in that definition.
SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 The Facilities
Subject to the terms of this Agreement, the Lenders make available to:
(a) the Company and/or, following their accession under Clause 27.2
(Additional Borrowers), AA Bidcos, a multicurrency term loan
facility in an aggregate amount equal to the Total Facility A1
Commitments;
(b) the Company and/or, following its accession under Clause 27.2
(Additional Borrowers), Kodak Bidco, a multicurrency term loan
facility in an aggregate amount equal to the Total Facility A2
Commitments;
(c) to the Company and, following their accession under Clause 27.2
(Additional Borrowers), Kodak and/or SMO, a US Dollars term loan
facility in an aggregate amount equal to the Total Facility B
Commitments; and
(d) to SMO, following its accession under Clause 27.2 (Additional
Borrowers), a multicurrency revolving credit facility in an
aggregate amount equal to the Total Facility C Commitments.
2.2 Lenders' rights and obligations
(a) The obligations of each Lender under the Finance Documents are several.
Failure by a Lender to perform its obligations under the Finance Documents
does not affect the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations of any
other Finance Party under the Finance Documents.
(b) The rights of each Lender under or in connection with the Finance Documents
are separate and independent rights and any debt arising under the Finance
Documents to a Lender from an Obligor shall be a separate and independent
debt.
(c) A Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance Documents.
3. PURPOSE
3.1 Purpose
(a) The Company and/or AA Bidcos shall apply all amounts they borrow under
Facility A1 in or towards financing or refinancing:
(i) consideration payable by the Company and/or AA Bidcos for an AA
Acquisition under an AA Acquisition Agreement;
(ii) Financial Indebtedness existing within the AA group at the time of,
and which remains existing following, an AA Acquisition; and
(iii) AA Acquisition Costs.
(b) The Company and/or Kodak Bidco shall apply all amounts they borrow under
Facility A2 in or towards financing or refinancing:
(i) consideration payable by the Company and/or Kodak Bidco for the
acquisition by it of those Shares to be acquired by it pursuant to
an Offer (whether a Recommended Offer or a Non-Recommended Offer,
but in the case of a Non-Recommended Offer, only if it is launched
or publicly announced by 2 May 2001);
(ii) consideration payable by the Company and/or Kodak Bidco in relation
to (A) any merger of Kodak and Kodak Bidco in connection with the
Offer and (B) the cash-out of employee options on the Shares in
relation to the Offer;
(iii) consideration payable by the Company and/or Kodak Bidco in making
Market Purchases up to an aggregate maximum amount of not more than
(Euro)250,000,000 and provided that Market Purchases cannot be made
following the launch of a Non-Recommended Offer; and
(iv) Offer Costs.
(c) the Company, Kodak and/or SMO shall apply all amounts borrowed by it under
Facility B to refinance or repurchase the Kodak Existing Facility and the
SMO Drawn Debt provided that, for the avoidance of doubt, following a
reduction of the Total Facility B Commitments pursuant to Clause
10.5(b)(ii) (Waivers, cancellation and refinancing), Facility B may only be
used by the Company or Kodak to refinance or repurchase the Kodak Existing
Facility.
(d) SMO shall apply all amounts utilised by it under Facility C:
(i) to refinance SMO Drawn Debt to the extent not refinanced by amounts
borrowed under Facility B; and
(ii) to finance the working capital requirements (including letters of
credit) of SMO following the refinancing of all SMO Drawn Debt under
Facility B and/or Facility C and the cancellation in full of the
credit facilities provided under the SMO Credit Agreement.
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 Initial conditions precedent
(a) No Borrower may deliver a Utilisation Request unless the Agent has received
all of the documents and other evidence listed in Part 1A of Schedule 2
(Conditions Precedent) in form and substance satisfactory to the Agent.
(b) No Borrower (as applicable) may deliver a Utilisation Request for a
Utilisation of Facility A1 unless the Agent has received, in relation to
the AA Acquisition to be funded pursuant to such Utilisation Request, all
of the documents and other evidence listed in Part 1B of Schedule 2
(Conditions Precedent) in form and substance satisfactory to the Agent.
(c) No Borrower (as applicable) may deliver a Utilisation Request for a
Utilisation of Facility A2 unless the Agent has received, subject to the
following sentence, all of the documents and other
evidence listed in Part 1C of Schedule 2 (Conditions Precedent) in form and
substance satisfactory to the Agent. As regards a Utilisation of Facility
A2 for the purpose of making Market Purchases, to the extent not already
satisfied with regard to the making of an Offer, the Agent need only have
received the documents and other evidence listed in paragraphs (b), (d) and
(e) in Part 1C of Schedule 2 (Conditions Precedent) in form and substance
satisfactory to the Agent.
(d) The Agent shall, in each case, notify the Company and the Lenders promptly
upon being so satisfied.
4.2 Further conditions precedent
The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(i) in the case of a Rollover Loan, no Event of Default is continuing or
would result from the proposed Loan and, in the case of any other
Utilisation, no Default is continuing or would result from the
proposed Utilisation; and
(ii) the Repeating Representations to be made by each Obligor are true in
all material respects.
4.3 Conditions relating to Optional Currencies
(a) A currency will constitute an Optional Currency in relation to a
Utilisation if:
(i) it is readily available in the amount required and freely convertible
into the Base Currency relative to that Utilisation in the Relevant
Interbank Market on the Quotation Day and the Utilisation Date for
that Utilisation; and
(ii) in the case of Facility A1, it is US Dollars or Sterling, in the case
of Facility A2, it is US Dollars and, in the case of Facility C, it is
Canadian Dollars.
(b) Euro will only be made available in the euro unit.
4.4 Maximum number of Utilisations
(a) A Borrower may not deliver a Utilisation Request (as appropriate) if as a
result of the proposed Utilisation more than 20 Utilisations in aggregate
would be outstanding provided that up to 31 August 2001 there may be
additional Loans outstanding to the extent such additional Loans are drawn
for the same purpose and the same currency as an existing Loan, by the same
Borrower as for that existing Loan and provided that such additional Loan
has an Interest Period maturing at the same time as another Loan drawn
under the same Facility such that the same are consolidated into one Loan
at the end of the relevant Interest Period.
(b) A Borrower may not request that a Facility A Loan or Facility B Loan be
divided if, as a result of the proposed division, the provisions of
paragraph (a) above would be breached.
(c) Any Loan made by a single Lender under Clause 8.2 (Unavailability of a
currency) shall not be taken into account in this Clause 4.4.
4.5 Limit on timing and amount of Loans
(a) No more than (Euro)200,000,000 of Facility A1 may be drawn between the
period commencing the date falling 90 days after the date of this Agreement
and 30 November 2001 (the "Additional A1 Period"). If the undrawn amount of
the Total Facility A1 Commitments would, but for this
Clause, exceed (Euro)200,000,000 on the date falling 90 days after the date
of this Agreement, the Total Facility A1 Commitments shall be automatically
cancelled by the requisite amount on such date so that, if not already
utilised by such date, a maximum additional amount of (Euro)200,000,000
only may be drawn by the Company and/or AA Bidcos during the Additional A1
Period.
(b) If by 2 May 2001 an Offer has not been made, the amount available to be
utilised under Facility A2 shall be reduced to (Euro)250,000,000 and the
Total Facility A2 Commitments shall be automatically cancelled by the
requisite amount on such date.
(c) Facility B (subject to paragraph (d) below) and Facility C may only be
utilised following the drawing of Facility A2 and the subsequent
cancellation of any undrawn portion of Facility A2.
(d) Up to US$620,000,000 of Facility B may be drawn by the Company or Kodak for
the purpose of refinancing or repurchasing the Kodak Existing Facility if
Facility A1 has been drawn and up to US$930,000,000 of Facility B may be
drawn by the Company, Kodak or SMO (for the purposes specified in Clause
3.1(c) (Purpose)) if paragraph (c) above has been satisfied.
(e) Facility C may only be utilised after Facility B has been drawn in full or,
if drawn in part, any undrawn portion of Facility B has been cancelled and
provided that the SMO Drawn Debt has been (or is to be pursuant to Facility
C) refinanced in full and the SMO Credit Agreement has been cancelled in
full.
SECTION 3
UTILISATION
5. UTILISATION - LOANS
5.1 Delivery of a Utilisation Request
A Borrower may utilise a Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time.
5.2 Completion of a Utilisation Request
(a) Each Utilisation Request is irrevocable and will not be regarded as having
been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Business Day within the
Availability Period applicable to that Facility;
(iii) the currency and amount of the Utilisation comply with Clause 5.3
(Currency and amount);
(iv) the proposed Interest Period complies with Clause 12 (Interest
Periods);
(v) it specifies the account and bank (which must be in the principal
financial centre of the country of the currency of the Utilisation
or, in the case of euro, the principal financial centre of a
Participating Member State in which banks are open for general
business on that day or London) to which the proceeds of the
Utilisation are to be credited;
(vi) in the case of a requested Utilisation of Facility A1, the
Utilisation Request is accompanied by such documents and/or evidence
in form and substance satisfactory to the Agent as is applicable to
that relevant AA Acquisition or other purpose for which such
proceeds may be used as set out in Part 1B of Schedule 2 (Conditions
Precedent) to the extent the same have not previously been provided
pursuant to this Clause 5.2(vi) or Clause 4.1(b) (Initial Conditions
Precedent) in relation to that AA Acquisition or other permitted
purpose now proposed to be funded; and
(vii) in the case of a requested Utilisation of Facility A2, the
Utilisation Request is accompanied by a certificate of the Company
confirming how many shares and stock options have been bought to
date (whether pursuant to the Facilities or otherwise) since the
date of this Agreement and how many are to be acquired by way of the
proposed Loan the subject of the Utilisation Request.
(b) Only one Loan may be requested in each Utilisation Request.
5.3 Currency and amount
(a) The currency specified in a Utilisation Request must be in the Base
Currency relating to that Facility or an Optional Currency.
(b) The amount of the proposed Loan must be an amount which is not more than
the Available Facility and which is a minimum of, in the case of Facility
A, (Euro)5,000,000, and in the case of
Facility B and Facility C, US$5,000,000 or, in each case, the relevant
Optional Currency equivalent or, if less, the Available Facility.
5.4 Lenders' participation
(a) If the conditions set out in this Agreement have been met, each Lender
shall make its participation in each Loan available through its Facility
Office.
(b) The amount of each Lender's participation in each Loan will be equal to the
proportion borne by its Available Commitment to the Available Facility in
each case in respect of the relevant Facility immediately prior to making
the Loan.
(c) The Agent shall notify each Lender of the amount, currency and the Base
Currency Amount of each Loan by the Specified Time.
5.5 Extension of Facility A1 and Facility A2
(a) The Company shall be entitled on one occasion only to request an extension
of Facility A1 and/or Facility A2 for a period of one year by giving notice
to the Agent (an "Extension Request") not later than five Business Days
before the Termination Date applicable to Facility A1 and/or Facility A2,
as the case may be, specifying the Facility or Facilities to be extended.
The Extension Request shall be made in writing and shall be unconditional
and irrevocable. The Agent shall forward a copy of the Extension Request
(if any) to the Lenders as soon as practicable after receipt thereof. Upon
receipt of the Extension Request, subject to this Clause 5.5, the Facility
A1 Repayment Date and/or the Facility A2 Repayment Date, as the case may
be, for the amount extended (and the corresponding Termination Date) shall
be extended by one year provided that:
(i) no Extension Request may be delivered if there is a Default
continuing at such time, and the Facility A1 Repayment Date and
Facility A2 Repayment Date shall not be so extended if on the date
of such extension there is a Default continuing;
(ii) subject to paragraph (iv) below, no more than (Euro)500,000,000 in
aggregate may be extended under Facility A1 and/or Facility A2
pursuant to this Clause 5.5;
(iii) subject to paragraph (iv) below, no more than (Euro)375,000,000 may
be extended under Facility A1 pursuant to this Clause 5.5; and
(iv) no more than (Euro)250,000,000 in aggregate may be extended under
Facility A1 and/or Facility A2 pursuant to this Clause 5.5 if, by
the time the proposed extension is to take effect, the SMO Guarantee
has not been given and the conditions in Clause 27.3(d) (Additional
Guarantors) have not been satisfied.
(b) The Company shall pay to the Agent (on behalf of the Lenders) a fee of 10
basis points flat on the principal amount extended pursuant to this Clause
5.5 on the date on which it gives the Agent notice pursuant to paragraph
(a) above.
6. UTILISATION - LETTERS OF CREDIT
6.1 General
(a) In this Clause 6 and Clause 7 (Letters of Credit):
(i) "Affected Lender" means a Lender:
(A) whose long term unsecured unguaranteed debt credit rating (or, if
it does not have such a rating, that of its Parent) is BBB- or
less (S&P) or Baa3 or less (Moody's Investors' Services, Inc.);
or
(B) which, if neither it nor its Parent has a long term unsecured
unguaranteed debt credit rating, in the opinion of the Issuing
Bank, has suffered a material adverse change in its financial
condition; or
(C) which is subject to any insolvency, moratorium or rehabilitation
procedure or which seeks protection from, or begins negotiations
with, its creditors, with a view to the general readjustment or
rescheduling of its indebtedness.
In this definition, "Parent" means an entity of which the relevant
Lender is a Subsidiary;
(ii) "Available Letter of Credit Facility" means, in relation to Letters of
Credit available under Facility C, the Letter of Credit Sub-Limit or, if
less, the Available Facility for Facility C minus:
(A) the Base Currency Amount of any outstanding Letters of Credit;
and
(B) in relation to any proposed Letter of Credit, the Base Currency
Amount of any Letters of Credit that are due to be made on or
before the proposed Utilisation Date;
(iii) "L/C Proportion" means, in relation to a Lender in respect of any Letter
of Credit, the proportion (expressed as a percentage) borne by that
Lender's Available Commitment under Facility C to the Available Facility
for Facility C immediately prior to the issue of that Letter of Credit,
adjusted to reflect any assignment or transfer under this Agreement to
or by that Lender;
(iv) "Letter of Credit Sub-Limit" means US$75,000,000;
(v) "Maturity Date" means, for a Letter of Credit, the last day of its Term;
(vi) "Term" means each period determined under this Agreement for which the
Issuing Bank is under a liability under a Letter of Credit which cannot
extend beyond the Termination Date applicable to Facility C;
(vii) a Letter of Credit is "repaid" or "prepaid" if:
(A) SMO provides cash cover for that Letter of Credit;
(B) the maximum amount payable under the Letter of Credit is reduced
in accordance with its terms; or
(C) the Issuing Bank is satisfied that it has no further liability
under that Letter of Credit,
and the amount by which a Letter of Credit is repaid or prepaid under
sub-paragraphs (vii)(A) and (vii)(B) above is the amount of the relevant
cash cover or reduction; and
(viii) "cash cover" is provided for a Letter of Credit if SMO or, as the case
may be, an Affected Lender pays an amount in the currency of the Letter
of Credit to an interest-bearing account in the name of SMO or, as the
case may be, the Affected Lender and the following conditions are met:
(A) the account is with the Agent (if the cash cover is to be
provided for all the Lenders) or with a Lender (if not an
Affected Lender and if the cash cover is to be provided for that
Lender) or with the Issuing Bank (if the cash cover is to be
provided for an Affected Lender or for the Issuing Bank from an
Affected Lender);
(B) 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 Letter of Credit until no amount is or may be
outstanding under that Letter of Credit; and
(C) SMO or the Affected Lender, as the case may be, 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.
(b) Any reference in this Agreement to:
(i) a "Finance Party" includes the Issuing Bank;
(ii) the Interest Period of a Letter of Credit will be construed as a
reference to the Term of that Letter of Credit;
(iii) an amount borrowed includes any amount utilised by way of Letter of
Credit;
(iv) a Utilisation made or to be made by SMO includes a Letter of Credit
issued on its behalf;
(v) a Lender funding its participation in a Utilisation includes a Lender
participating in a Letter of Credit;
(vi) amounts outstanding under this Agreement include amounts outstanding
under any Letter of Credit; and
(vii) an outstanding amount of a Letter of Credit at any time is the
maximum amount that is or may be payable by SMO under or in respect
of that Letter of Credit at that time.
(c) Clause 5 (Utilisation - Loans) does not apply to a Utilisation by way of
Letter of Credit.
6.2 Facility C
Facility C may be utilised by way of Letters of Credit up to a maximum Base
Currency Amount equal to the Letter of Credit Sub-Limit or, if less, the
Total Facility C Commitments at the time of the relevant Utilisation.
Facility A or Facility B may not be utilised by way of Letters of Credit.
6.3 Delivery of a Utilisation Request for Letters of Credit
(a) SMO may request a Letter of Credit to be issued by delivery to the Agent of
a duly completed Utilisation Request in the form of Part III of Schedule 3
(Requests) not later than the Specified Time.
(b) The Agent shall (notwithstanding the provisions of Clause 6.6(d) (Issue of
Letters of Credit)) promptly notify the Issuing Bank of the receipt of, and
contents of, such Utilisation Request.
6.4 Completion of a Utilisation Request for Letters of Credit
Each Utilisation Request for a Letter of Credit is irrevocable and will not
be regarded as having been duly completed unless:
(a) it specifies that it is for a Letter of Credit;
(b) the proposed Utilisation Date is a Business Day within the
Availability Period for Facility C;
(c) the currency and amount of the Letter of Credit comply with Clause 6.5
(Currency and amount);
(d) the form of Letter of Credit is attached or has been approved by the
Agent and the Issuing Bank prior to the delivery of such Utilisation
Request;
(e) the Maturity Date of the Letter of Credit falls on or before the
Termination Date for Facility C;
(f) the delivery instructions for the Letter of Credit are specified; and
(g) the identity of the beneficiary of the Letter of Credit is approved by
the Issuing Bank (which approval or non-approval shall be given by the
Issuing Bank to SMO within 1 Business Day of request for such
approval).
6.5 Currency and amount
(a) The currency specified in a Utilisation Request must be the Base Currency
relative to Facility C or Canadian Dollars.
(b) The amount of the proposed Letter of Credit must be an amount whose Base
Currency Amount is not more than the Available Letter of Credit Facility
and which is:
(i) if the currency selected is the Base Currency, for Facility C a
minimum of US$50,000 or, if less, the Available Letter of Credit
Facility; or
(ii) if the currency selected is Canadian Dollars, the relevant Optional
Currency equivalent of US$50,000 or, if less, the Available Letter of
Credit Facility.
6.6 Issue of Letters of Credit
(a) If the conditions set out in this Agreement have been met, the Issuing Bank
shall issue the Letter of Credit on the Utilisation Date.
(b) The Issuing Bank will only be obliged to comply with paragraph (a) above if
on the date of the Utilisation Request and on the proposed Utilisation
Date:
(i) in the case of a Letter of Credit renewed in accordance with sub-
clause 6.8 (Renewal of a Letter of Credit), no Event of Default is
continuing or would result from the proposed Utilisation and, in the
case of any other Utilisation, no Default is continuing or would
result from the proposed Utilisation; and
(ii) the Repeating Representations to be made by each Obligor are true in
all material respects.
(c) The amount of each Lender's participation in each Letter of Credit will be
equal to the proportion borne by its Available Commitment for Facility C to
the Available Facility for Facility C immediately prior to the issue of the
Letter of Credit.
(d) The Agent shall determine the Base Currency Amount of each Letter of Credit
which is to be issued in an Optional Currency and shall notify the Issuing
Bank and each Lender of the details of the requested Letter of Credit and
its participation in that Letter of Credit by the Specified Time including,
for the avoidance of doubt, the amount, the currency and the Term.
6.7 Protection of Issuing Bank
(a) Notwithstanding anything to the contrary in this Agreement:
(i) an Issuing Bank is not obliged to issue a Letter of Credit if there is
at the time an Affected Lender, unless the Affected Lender or, failing
the Affected Lender (but subject to paragraph (b)(i) below), SMO has
provided the Issuing Bank with cash cover in respect of the Affected
Lender's participation in the relevant Letter of Credit; and
(ii) forthwith on demand by the Issuing Bank an Affected Lender shall
provide cash cover to the Issuing Bank:
(A) in respect of any proposed Letter of Credit for the purposes of
paragraph (a)(i) above; and/or
(B) in respect of the Affected Lender's participation in all
outstanding Letters of Credit issued by the Issuing Bank.
(b) If an Affected Lender does not provide cash cover as required by paragraph
(a)(ii) above:
(i) to allow a proposed Letter of Credit to be issued in the amount
requested in the relevant Utilisation Request, SMO may itself (but is
not obliged to) provide cash cover to the Issuing Bank and shall, in
respect of such Letter of Credit, be entitled to receive amounts under
this Agreement payable in respect of such Utilisation relating to that
Letter of Credit as if it were a Lender hereunder; and
(ii) the Company may (but is not obliged), to the extent it is able,
replace that Affected Lender with another existing Lender or a new
Lender, in each case in accordance with Clause 26 (Changes to the
Lenders) and Clause 7.2 (Assignments and transfers), or give notice to
the Agent of cancellation of the Facility C Commitments of that Lender
and its intention to procure the repayment of that Affected Lender's
participation in Utilisations under Facility C. On receipt of such a
notice, the Facility C Commitments of the Affected Lender shall
immediately be reduced to zero. On the last day of each Interest
Period for a Facility C Loan which ends after the Company has given
notice to the Agent as specified above (or, if earlier, the date
specified by the Company in that notice), SMO shall repay that
Affected Lender's participation in that Facility C Loan. SMO shall
also, within 5 Business Days of giving such notice on the Agent,
provide cash cover to the Affected Lender in respect of its
participation in all outstanding Letters of Credit. On the
cancellation of an Affected Lender's Facility C Commitment under this
paragraph, the Total Facility C Commitments shall be reduced
accordingly.
6.8 Renewal of a Letter of Credit
(a) SMO may request any Letter of Credit issued on its behalf be renewed by
delivery to the Agent of written notice by the Specified Time (a "Renewal
Request").
(b) The Finance Parties shall treat any Renewal Request in the same way as a
Utilisation Request for a Letter of Credit (including, for the avoidance of
doubt, Clause 6.6(d)) except that the conditions set out in paragraphs (d)
and (g) of Clause 6.4 (Completion of a Utilisation Request for Letters of
Credit) shall not apply.
(c) The terms of each renewed Letter of Credit shall be the same as those of
the relevant Letter of Credit immediately prior to its renewal, except
that:
(i) its amount may be less than the amount of the Letter of Credit
immediately prior to its renewal; and
(ii) its Term shall start on the date which was the Maturity Date of the
Letter of Credit immediately prior to its renewal, and shall end on
the proposed Maturity Date specified in the Renewal Request.
(d) If the conditions set out in this Agreement have been met, the Issuing Bank
shall amend any Letter of Credit pursuant to a Renewal Request.
6.9 Revaluation of Letters of Credit
(a) If any Letters of Credit are denominated in an Optional Currency, the Agent
shall at six monthly intervals after the date of this Agreement,
recalculate the Base Currency Amount of each Letter of Credit by notionally
converting into the Base Currency the outstanding amount of that Letter of
Credit on the basis of the Agent's Spot Rate of Exchange on the date of
calculation.
(b) SMO shall, if requested by the Agent, ensure that within three Business
Days of such request sufficient Facility C Utilisations are prepaid to
prevent the Base Currency Amount of the Utilisations by way of Letter of
Credit exceeding the Letter of Credit Sub-Limit or, if less, the Total
Facility C Commitment at that time following any adjustment to a Base
Currency Amount under paragraph (a) above.
6.10 Information
(a) The Issuing Bank will inform the Agent:
(i) promptly upon the issue of a Letter of Credit, of the identity of the
beneficiary thereunder, the principal amount and the expiry date of
such Letter of Credit; and
(ii) at the end of each quarter, of the amount, currency and Term of any
Letters of Credit then outstanding.
In each case, the Agent will promptly notify the Lenders of the same.
(b) The Agent will notify the Company and the Issuing Bank promptly on
receiving notification from any Party that a Lender has become an Affected
Lender.
(c) A Lender will promptly notify the Agent and the Issuing Bank if and when it
has become an Affected Lender.
(d) The Issuing Bank will promptly notify the Company following its making a
demand on an Affected Lender under this Agreement for cash cover if that
Affected Lender has not provided such cash cover within 5 Business Days of
making such demand.
7. LETTERS OF CREDIT
7.1 Immediately payable
If a Letter of Credit or any amount outstanding under a Letter of Credit is
expressed to be immediately payable, SMO shall repay or prepay that amount
immediately.
7.2 Assignments and transfers
(a) Notwithstanding any other provision of this Agreement, the consent of the
Issuing Bank is required for any assignment or transfer of any Lender's
rights and/or obligations under Facility C except on an assignment or
transfer to an Affiliate of a Lender (of at least the same (or
equivalent) long term unsecured unguaranteed debt credit rating as the
transferring Lender) or to another existing Lender (who is not an Affected
Lender) and provided that the consent of the Issuing Bank will be deemed to
be given if, within 15 Business Days of receipt of an application for
consent, it has not been expressly refused.
(b) If paragraph (a) and the conditions and procedure for transfer specified in
Clause 26 (Changes to the Lenders) are satisfied, then on the Transfer Date
the Issuing Bank and the New Lender shall acquire the same obligations
between themselves as they would have acquired and assumed had the New
Lender been an Original Lender with the rights and/or obligations acquired
or assumed by it as a result of the transfer and to that extent the Issuing
Bank and the Existing Lender shall each be released from further
obligations to each other under this Agreement.
7.3 Fees payable in respect of Letters of Credit
(a) The Company shall pay to the Issuing Bank a fronting fee in respect of each
Letter of Credit in the amount and at the times agreed in the letter dated
on or about the date of this Agreement between the Issuing Bank and the
Company. A reference in this Agreement to a Fee Letter shall include the
letter referred to in this paragraph.
(b) The Company shall pay to the Agent (for the account of each Lender) a
letter of credit fee in an amount per annum equal to the applicable Margin
from time to time for Facility C on the outstanding amount each day of each
Letter of Credit for the period from the issue of that Letter of Credit
until its Maturity Date. This fee shall be distributed according to each
Lender's L/C Proportion of that Letter of Credit.
(c) The accrued letter of credit fee on a Letter of Credit shall be payable on
the last day of each successive period of three months (or such shorter
period as shall end on the Maturity Date for that Letter of Credit)
starting on the date of issue of that Letter of Credit. Accrued letter of
credit fee is also payable to the Agent on the cancelled amount of any
Lender's Facility C Commitment at the time the cancellation is effective if
that Commitment is cancelled in full and the Letters of Credit prepaid or
repaid in full.
7.4 Claims under a Letter of Credit
(a) SMO irrevocably and unconditionally authorises the Issuing Bank to pay any
claim made or purported to be made under a Letter of Credit requested by it
and which appears on its face to be in order (a "claim").
(b) SMO shall immediately on demand pay to the Agent for the Issuing Bank an
amount equal to the amount of any claim.
(c) SMO acknowledges that the Issuing 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 SMO under this Clause will not be affected by:
(i) the sufficiency, accuracy or genuineness of any claim or any other
document; or
(ii) any incapacity of, or limitation on the powers of, any person signing
a claim or other document.
(e) The Issuing Bank shall promptly notify the Agent once a claim has been made
on it under a Letter of Credit.
7.5 Indemnities
(a) SMO shall immediately on demand indemnify the Issuing Bank against any
cost, loss or liability incurred by the Issuing Bank (otherwise than by
reason of the Issuing Bank's gross negligence or wilful misconduct) in
acting as the Issuing Bank under any Letter of Credit requested by SMO.
The Issuing Bank shall be entitled to use any cash cover provided under
this Agreement by SMO in relation to the Letter of Credit the subject to
the relevant demand for the purposes of this indemnity.
(b) Each Lender shall (according to its L/C Proportion) immediately on demand
indemnify the Issuing Bank against any cost, loss or liability incurred by
the Issuing Bank (otherwise than by reason of the Issuing Bank's gross
negligence or wilful misconduct) in acting as the Issuing Bank under any
Letter of Credit (unless the Issuing Bank has been reimbursed by an Obligor
pursuant to a Finance Document). The Issuing Bank shall be entitled to use
any cash cover provided by an Affected Lender in relation to the Letter of
Credit the subject of the relevant demand under this Agreement for the
purposes of this indemnity.
(c) If any Lender is not permitted (by its constitutional documents or any
applicable law) to comply with paragraph (b) above), then that Lender will
not be obliged to comply with paragraph (b) and shall instead be deemed to
have taken, on the date the Letter of Credit is issued (or if later, on the
date the Lender's participation in the Letter of Credit is transferred or
assigned to the Lender in accordance with the terms of this Agreement), an
undivided interest and participation in the Letter of Credit in an amount
equal to its L/C Proportion of that Letter of Credit. On receipt of demand
from the Agent, that Lender shall pay to the Agent (for the account of the
Issuing Bank) an amount equal to its L/C Proportion of the amount demanded.
The last sentence of paragraph (b) above shall apply to this paragraph
mutatis mutandis.
(d) SMO shall immediately reimburse any Lender for any payment it makes to the
Issuing Bank under this Clause 7.5 (Indemnities) in respect of that Letter
of Credit.
(e) The obligations of each Lender under this Clause are continuing obligations
and will extend to the ultimate balance of sums payable by that Lender in
respect of any Letter of Credit, regardless of any intermediate payment or
discharge in whole or in part.
(f) The obligations of any Lender under this Clause will not be affected by
any act, omission matter or thing which, but for this Clause, would reduce,
release or prejudice any of its obligations under this Clause (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 Letter of Credit or other person;
(ii) the release of any other 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 assets of, any Obligor, any beneficiary
under a Letter of 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 Letter of Credit or any other person;
(v) any amendment (however fundamental) or replacement of a Finance
Document, any Letter of Credit or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document, any Letter of Credit or any
other document or security; or
(vii) any insolvency or similar proceedings.
7.6 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
7.
7.7 Role of the Issuing Bank
(a) Nothing in this Agreement constitutes the Issuing Bank as a trustee or
fiduciary of any other person.
(b) The Issuing 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 Issuing 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 Issuing 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 Issuing Bank may engage, pay for and rely on the advice or services of
any lawyers, accountants, surveyors or other experts.
(f) The Issuing Bank may act in relation to the Finance Documents through its
personnel and agents.
(g) The Issuing Bank is not responsible for:
(i) the adequacy, accuracy and/or completeness of any information (whether
oral or written) supplied by the Issuing Bank, the Agent, the
Arranger, an Obligor or any other person given in or in connection
with any Finance Document or the Information Memorandum; 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.
7.8 Exclusion of liability
(a) Without limiting paragraph (b) below, the Issuing 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 Party may take any proceedings against any officer, employee or agent of
the Issuing Bank in respect of any claim it might have against the Issuing
Bank or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Finance Document and any officer,
employee or agent of the Issuing Bank may rely on this Clause.
7.9 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 Issuing Bank 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, those listed in paragraphs
(a) to (d) of Clause 28.14 (Credit appraisal by the Lenders).
7.10 Partial payments
(a) Notwithstanding any other provision of this Agreement, if the Agent
receives a payment that is insufficient to discharge all the amounts then
due and payable by an Obligor under the Finance Documents, the Agent shall
apply that payment towards the obligations of that Obligor under the
Finance Documents in the order set out in paragraph (a) of Clause 31.5
(Partial Payments), except that payments shall secondly be applied in or
towards payment pro rata of any sums due to the Issuing Bank under this
Agreement and the order set out in sub-paragraphs 31.5(a)(ii) to (a)(iv)
shall be varied accordingly.
(b) Paragraph (a) above will override any appropriation made by an Obligor.
7.11 Address for notices
The address, fax number (and the department or officer, if any, for whose
attention the communication is to be made) and electronic mail address of
the Issuing Bank for any communication or document to be made or delivered
under or in connection with the Finance Documents is, in the case of its
address and fax number (and relevant department or officer), that
identified with its name below and, in the case of its electronic mail
address, that notified in writing to the Agent prior to the date of this
Agreement or any substitute address, fax number (or department or officer)
or electronic mail address as the Issuing Bank may notify to the Agent by
not less than five Business Days' notice.
7.12 Amendments and Waivers
Notwithstanding any other provision of this Agreement, an amendment or
waiver which relates to the rights or obligations of the Issuing Bank may
not be effected without the consent of the Issuing Bank.
8. OPTIONAL CURRENCIES
8.1 Selection of currency
A Borrower (or the Company on behalf of a Borrower) shall select the
currency of a Facility A Loan or a Facility C Utilisation in a Utilisation
Request.
8.2 Unavailability of a currency
If before the Specified Time on any Quotation Day:
(a) the Agent has received notice from a Lender that the Optional Currency
requested is not readily available to it in the amount required; or
(b) a Lender notifies the Agent that compliance with its obligation to
participate in a Facility A Loan or a Facility C Loan in the proposed
Optional Currency would contravene a law or regulation applicable to
it,
the Agent will give notice to the relevant Borrower to that effect by the
Specified Time on that day. In this event, any Lender that gives notice
pursuant to this Clause 8.2 will be required to participate in the Facility
A Loan or Facility C Loan, as the case may be, in the Base Currency
relative to that Facility (in an amount equal to that Lender's proportion
of the Base Currency Amount or, in respect of a Rollover Loan, an amount
equal to that Lender's proportion of the Base Currency Amount of the
maturing Facility C Loan that is due to be repaid) and its participation
will be treated as a separate Facility A Loan or Facility C Loan, as the
case may be, denominated in the Base Currency during that Interest Period.
8.3 Exchange rate movements
(a) In respect of successive Interest Periods of a Facility A Loan denominated
in an Optional Currency, the Agent shall calculate the amount of the
Facility A Loan in that currency for the next following Interest Period (by
calculating the amount of that currency equal to the Base Currency Amount
of that Facility A Loan at the Agent's Spot Rate of Exchange at the
Specified Time) and (subject to paragraph (b) below):
(i) if the amount calculated is less than the existing amount of that
Facility A Loan in the Optional Currency during the then current
Interest Period, promptly notify the Borrower that has borrowed that
Facility A Loan and that Borrower shall pay, on the last day of that
Interest Period, an amount equal to the difference; or
(ii) if the amount calculated is more than the existing amount of that
Facility A Loan in the Optional Currency during the then current
Interest Period, promptly notify each Lender and, if no Event of
Default is continuing, each Lender shall, on the last day of that
Interest Period, pay its participation in an amount equal to the
difference.
(b) If the calculation made by the Agent pursuant to paragraph (a) above shows
that the amount of the Facility A Loan in the Optional Currency has
increased or decreased by less than 10 per cent. compared to its Base
Currency Amount, no notification shall be made by the Agent and no payment
shall be required under paragraph (a) above.
8.4 Agent's calculations
(a) All calculations made by the Agent pursuant to this Clause 8 will take into
account any repayment, prepayment, consolidation or division of Facility A
Loans to be made on the last day of the first Interest Period.
(b) Each Lender's participation in a Loan will, subject to paragraph (a) above,
be determined in accordance with paragraph (b) of Clause 5.4 (Lenders'
participation).
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
9. REPAYMENT
9.1 Repayment of Facility A Loans
(a) Each Borrower (as applicable) shall repay each Facility A1 Loan made to it
on the Facility A1 Repayment Date.
(b) Each Borrower (as applicable) shall repay each Facility A2 Loan made to it
on the Facility A2 Repayment Date.
(c) No Borrower may reborrow any part of Facility A which is repaid.
9.2 Repayment of Facility B Loans
(a) Each Borrower to which Facility B Loans are made shall repay Facility B
Loans so that, on each of the following dates below, the aggregate amount
of Facility B Loans shall be reduced by the amount set opposite that date:
Facility B Repayment Date Repayment Instalment
30 November 2001 US$26,000,000
28 February 2002 US$26,000,000
30 May 2002 US$30,000,000
31 August 2002 US$30,000,000
30 November 2002 US$30,000,000
28 February 2003 US$30,000,000
30 May 2003 US$30,000,000
31 August 2003 US$30,000,000
30 November 2003 US$39,000,000
28 February 2004 US$39,000,000
30 May 2004 US$39,000,000
31 August 2004 US$39,000,000
30 November 2004 US$39,000,000
28 February 2005 US$39,000,000
30 May 2005 US$39,000,000
31 August 2005 US$39,000,000
30 November 2005 US$39,000,000
28 February 2006 US$39,000,000
The Termination Date for Facility B US$308,000,000
(b) If the aggregate amount of Facility B Loans outstanding at the end of the
Availability Period for Facility B is less than US$930,000,000, the amount
of each Repayment Instalment under paragraph (a) above shall be reduced
accordingly on a pro rata basis.
(c) No Borrower may reborrow any part of Facility B which is repaid.
9.3 Repayment of Facility C Loans
SMO shall repay each Facility C Loan on the last day of its Interest
Period.
10. PREPAYMENT AND CANCELLATION
10.1 Illegality
If it becomes unlawful in any jurisdiction for a Lender to perform any of
its obligations as contemplated by this Agreement or to fund its
participation in any Utilisation:
(a) that Lender shall promptly notify the Agent upon becoming aware of
that event;
(b) upon the Agent notifying the Company, the Commitment of that Lender
will be immediately cancelled; and
(c) each Borrower shall repay that Lender's participation in the
Utilisations made to that Borrower on the last day of the Interest
Period for each Utilisation occurring after the Agent has notified
the Company or, if earlier, the date specified by the Lender in the
notice delivered to the Agent (being no earlier than the last day of
any applicable grace period permitted by law).
10.2 Change of control of Company
(a) If Bellon S.A. ceases to hold at least 33 1/3 per cent. of the shares
and/or voting rights of the shares of the Company (a "loss of control"):
(i) the Company shall promptly notify the Agent upon becoming aware of
that event;
(ii) no Borrower may make a Utilisation unless otherwise agreed by the
Majority Lenders; and
(iii) unless all of the Lenders have agreed to such loss of control, the
Agent shall, by not less than 10 days' notice to the Company, cancel
the Facilities and declare all outstanding Utilisations, together
with accrued interest, and all other amounts accrued under the
Finance Documents immediately due and payable, whereupon the
Facilities will be cancelled and all such outstanding amounts will
become immediately due and payable.
(b) A Lender shall be deemed to have agreed to a loss of control if it has not
approved or disapproved of such loss of control by the date falling 30
Business Days after receiving notice from the Company of such loss of
control.
10.3 Change of control of Borrowers (other than Company)
(a) If any Borrower (other than the Company) ceases to be (or the Company
intends that it should cease to be) a Subsidiary of the Company:
(i) the Company shall promptly notify the Agent of its intention that
such Borrower shall cease to be a Subsidiary;
(ii) no such Borrower may make a Utilisation unless otherwise agreed by
the Majority Lenders following such notification; and
(iii) the Agent shall, by no later than the date on which, but prior to,
such Borrower ceasing to be a Subsidiary of the Company, cancel the
Facilities outstanding to that Borrower and declare all outstanding
Utilisations to that Borrower, together with accrued interest, and
all other amounts accrued under the Finance Documents and due from
that Borrower immediately due and payable, whereupon such Facilities
will be cancelled (to the extent stated above) and all such
outstanding amounts from the Borrower will become immediately due
and payable.
10.4 Mandatory prepayment of Equity and Debt proceeds
(a) If any member of the Group receives any Net Equity Proceeds or Net Debt
Proceeds after the date of this Agreement, the Company shall ensure that
those proceeds (or an amount equal thereto) are used to reduce permanently
the Facilities in accordance with paragraph (b) or (d) below.
(b) Net Equity Proceeds (subject to paragraph (d) below) and Net Debt Proceeds
shall be applied:
(i) firstly, to prepay or, as the case may be, cancel Facility A and the
Commitments of the Lenders under Facility A shall be reduced
rateably;
(ii) secondly, after Facility A Commitments have been reduced to zero and
all Facility A Loans have been repaid, prepaid or cancelled in full,
to prepay or, as the case may be, cancel Facility B and the
Commitments of the Lenders under Facility B shall be reduced
rateably provided that this paragraph (b)(ii) shall only apply if
the Company has, at the time such Net Equity Proceeds or Net Debt
Proceeds are received, a Rating of BBB- or lower; and
(iii) thirdly, after (if applicable) the Facility B Commitments have been
reduced to zero and, if Facility B Loans have been repaid, prepaid
or cancelled in full, towards such purposes as the Company or
relevant member of the Group so decides.
(c) Any amounts to be applied in prepaying or cancelling Facility B pursuant
to paragraph (b)(ii) above shall be so applied pro rata against each
Repayment Instalment.
(d) Net Equity Proceeds relating to the Rights Issue shall be applied:
(i) firstly, to prepay or, as the case may be, cancel Facility A2 and
the Commitments of the Lenders under Facility A2 shall be reduced
rateably;
(ii) secondly, against amounts (if any) incurred by the Company for the
purpose of making Market Purchases to the extent such amounts do not
exceed (Euro)150,000,000 and provided such amounts have been
incurred by the Company by the time of completion of the Rights
Issue;
(iii) thirdly, to prepay or, as the case may be, cancel Facility A1 and
the Commitments of the Lenders under Facility A1 shall be reduced
rateably; and
(iv) fourthly, against Facility B (to the extent applicable) in
accordance with paragraph (b)(ii) above.
(e) Net Debt Proceeds and Net Equity Proceeds shall be applied on the earlier
of (i) the date falling 3 Months after the end of the current Month of
receipt by the relevant member of the Group of the Net Debt Proceeds or
Net Equity Proceeds, as the case may be, and (ii) the last day of the
current Interest Period applicable to each relevant Facility to be prepaid
pursuant to paragraph (b) or (d) above, following receipt by the relevant
member of the Group of the Net Debt Proceeds or Net Equity Proceeds, as
the case may be, unless, in either case, the Company elects by notice in
writing to the Agent to make the relevant prepayment before such time.
10.5 Waivers, cancellation and refinancing
(a) If there has been a Positive Committee Announcement and a Recommended
Offer is launched, the Company will notify the Arranger prior to the
earlier of the launch of syndication of the Facilities and 2 May 2001
whether the Company:
(i) will seek the Kodak Waiver and SMO Waiver; or
(ii) will not seek those Waivers and will use Facility B and Facility C
to refinance or repurchase the Kodak Existing Facility and SMO
Credit Agreement.
If such Waivers are sought and obtained, Facility B and Facility C shall
be cancelled forthwith and the Commitment relative to such Facilities
shall be immediately reduced to zero.
(b) If there has been a Negative Committee Announcement and the Company
determines that it shall not launch a Non-Recommended Offer or make Market
Purchases, the Company shall:
(i) forthwith cancel Facility A2 and the Total Facility A2 Commitments
shall be immediately reduced to zero;
(ii) forthwith cancel Facility C and at least US$310,000,000 of Facility
B and the Total Facility C Commitments shall be immediately reduced
to zero and the Total Facility B Commitments shall be reduced
accordingly; and
(iii) if the Kodak Waiver is obtained, forthwith cancel the remaining part
of Facility B and the Total Facility B Commitments shall be
immediately reduced to zero.
(c) If the AA Acquisitions are not to proceed, the Company shall promptly on
reaching such decision or being notified of the same by the relevant
vendor notify the Agent of the same and thereupon Facility A1 shall be
cancelled and the Total Facility A1 Commitments shall be immediately
reduced to zero.
(d) The Company shall ensure that the Kodak Existing Facility and the SMO
Credit Agreement are refinanced or repurchased by no later than the
earlier of:
(i) the end of the Availability Period for Facility B; and
(ii) the completion of a merger of Kodak in connection with the Offer.
If by that time a Waiver is required but has not been requested or been
given.
10.6 Voluntary cancellation
The Company may, if it gives the Agent not less than 5 Business Days' (or
such shorter period as the Majority Lenders may agree) prior notice,
cancel the whole or any part (being a minimum amount of, in the case of
Facility A, (Euro)5,000,000 and, in the case of Facility B and Facility C,
US$5,000,000) of an Available Facility. Any cancellation under this Clause
10.6 shall reduce the Commitments of the Lenders rateably under that
Facility.
10.7 Voluntary prepayment of Facility A Loans and Facility B Loans
(a) The Borrower to which a Facility A Loan or Facility B Loan has been made
may, if it gives the Agent not less than 5 Business Days' (or such shorter
period as the Majority Lenders may agree) prior notice, prepay the whole
or any part of any Facility A Loan or Facility B Loan (but, if in part,
being an amount that reduces the Base Currency Amount of the Facility A
Loan by a minimum amount of (Euro)5,000,000 and the amount of the Facility
B Loan by a minimum amount of US$5,000,000).
(b) A Facility A Loan or Facility B Loan may only be prepaid after the last
day of the Availability Period applicable to that Facility (or, if
earlier, the day on which the applicable Available Facility is zero).
(c) Any prepayment of Facility B under this Clause 10.7 shall satisfy the
obligations under Clause 9.2 (Repayment of Facility B Loans) in
chronological order.
10.8 Voluntary prepayment of Facility C Loans
SMO may, if it gives the Agent not less than 5 Business Days' (or such
shorter period as the Majority Lenders may agree) prior notice, prepay the
whole or any part of a Facility C Loan (but if in part, being an amount
that reduces the Base Currency Amount of the Facility C Loan by a minimum
amount of US$5,000,000).
10.9 Right of repayment and cancellation in relation to a single Lender
(a) If:
(i) any sum payable to any Lender by an Obligor is required to be
increased under paragraph (c) of Clause 15.2 (Tax gross-up); or
(ii) any Lender claims indemnification from the Company under Clause 15.3
(Tax indemnity) or Clause 16.1 (Increased costs),
the Company may, whilst the circumstance giving rise to the requirement or
indemnification continues, give the Agent notice of cancellation of the
Commitments of that Lender and its intention to procure the repayment of
that Lender's participation in the Utilisations.
(b) On receipt of a notice referred to in paragraph (a) above, the Commitments
of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the Company has
given notice under paragraph (a) above (or, if earlier, the date specified
by the Company in that notice), each Borrower to which a Utilisation is
outstanding shall repay that Lender's participation in that Utilisation.
In addition, in relation to Facility C, SMO shall provide cash-cover (as
defined in Clause 6.1 (General)) in relation to that Lender's
participation in all outstanding Letters of Credit within 5 Business Days
of giving the notice specified in paragraph (a).
10.10 Restrictions
(a) Any notice of cancellation or prepayment given by any Party under this
Clause 10 shall be irrevocable and, unless a contrary indication appears
in this Agreement, shall specify the date or
dates upon which the relevant cancellation or prepayment is to be made and
the amount of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty.
(c) No Borrower (as applicable) may reborrow any part of Facility A or
Facility B which is prepaid.
(d) Unless a contrary indication appears in this Agreement, any part of
Facility C which is prepaid may be reborrowed in accordance with the terms
of this Agreement.
(e) The Borrowers shall not repay or prepay all or any part of the
Utilisations or cancel all or any part of the Commitments except at the
times and in the manner expressly provided for in this Agreement.
(f) No amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated.
(g) If the Agent receives a notice under this Clause 10 it shall promptly
forward a copy of that notice to either the Company or the affected
Lender, as appropriate.
SECTION 5
COSTS OF UTILISATION
11. INTEREST
11.1 Calculation of interest
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) LIBOR or, in relation to any Loan in euro, EURIBOR; and
(c) Mandatory Cost, if any.
11.2 Margin and adjustment
(a) Subject to the following provisions of this Clause 11.2, the Margin will
be 55 basis points per annum in respect of Facility A and 65 basis points
per annum in respect of Facility B and Facility C.
(b) The Margin for all Utilisations in a Facility will be adjusted in
accordance with paragraph (f) below to the number of basis points per
annum specified below the reference to that Facility in the table below
and set opposite the Rating assigned by S&P at such time to the Company:
Rating Margin (bps p.a.)
Facility A Facilities B and C
A- (or higher) 45 55
BBB+ 55 65
BBB 65 75
BBB- 85 95
BB+ (or lower) 135 160
(c) (i) The Margin as shown in the table set out in paragraph (b) above will,
in respect of each Facility, be reduced in accordance with paragraph
(f) below by 10 basis points (the "Reduction") if and whenever Net
Equity Proceeds from the Rights Issue have been received by the
Company and, to the extent required by Clause 10.4 (Mandatory
prepayment of Equity and Debt Proceeds), used to prepay and/or cancel
the Facilities, in an amount (the "Required Amount") equal to or
greater than, subject to the proviso below, 50 per cent. of the
aggregate of (A) the total aggregate amount spent in euro (or the
euro equivalent) by or on behalf of members of the Group since the
date of this Agreement on each of the AA Acquisitions and the Kodak
Acquisition, in each case, whether completed in whole or in part and
(B) the Available Commitments under Facility A1 and Facility A2
provided that, in any event, for the purposes of this Clause, the
Required Amount need not exceed (EURO) 750,000,000.
(ii) For the purposes of paragraph (i) above, the Company shall notify the
Agent at the time it considers that it has qualified for the
Reduction as set out in paragraph (i) above which notification shall
be accompanied with a certificate of the Company confirming how much
it has spent for the purposes of (A) above and what it calculates the
Required Amount to be. The Agent shall promptly notify the Company
that it has qualified for the Reduction (or not, as the case may be)
as soon as possible following its receipt of the notification,
certificate and calculation specified above.
(d) The Reduction shall also apply, in accordance with paragraph (f) below, if:
(i) no part of the Kodak Acquisition has been made and Facility A2,
Facility B and Facility C have been cancelled in full and the
Commitments relating to such Facilities reduced to zero; or
(ii) no more than [EURO] 450,000,000 (or its equivalent) in aggregate has
been spent on the Kodak Acquisition and AA Acquisitions (whether that
be a partial AA Acquisition or partial Kodak Acquisition, including
by way of Market Purchases). Such determination shall be made at the
end of the Availability Period for Facility A1 and Facility A2 or
such earlier date on which the Available Commitments under Facility
A1 and Facility A2, as the case may be, are cancelled to the extent
that the aggregate of the Total Facility A1 Commitments and Total
Facility A2 Commitments does not exceed [EURO] 450,000,000.
(e) If a Non-Recommended Offer is made, the Margin as shown in the table set
out in paragraph (b) above will, in each case and in respect of each
Facility, and in accordance with paragraph (f) below, be increased by 20
basis points.
(f) Any adjustment to the Margin (whether upwards or downwards) in accordance
with paragraphs (b), (c), (d) or (e) above or (g)(ii) or (iii) below will
apply for all purposes under this Agreement immediately on, as appropriate:
(i) the date of publication of any relevant change to the Rating assigned
to the Company; or
(ii) the date on which the Facilities have been prepaid and/or cancelled
following the receipt by the Company of the Net Equity Proceeds from
the Rights Issue provided that, whether before or after the date of
such prepayment and/or cancellation, the Agent has notified the
Company that it has qualified for the Reduction; or
(iii) the date on which the condition in Clause 11.2(d)(i) or (ii) as the
case may be, is satisfied; or
(iv) the date on which a Non-Recommended Offer is launched by the Company;
or
(v) the date on which a substitute Rating is assigned to the Company as
provided in paragraph (g)(ii) or (iii) below, as the case may be.
(g) For the purpose of this Clause 11.2, Clause 10.4(b) (Mandatory prepayment
of Equity and Debt Proceeds) and Clause 24.4 (Disposals):
(i) "Rating" means the long term credit rating of the Company last
published by S&P (taking into account the AA Acquisitions and the
Kodak Acquisition, to the extent made) and not withdrawn prior to the
Quotation Day for an Interest Period;
(ii) If at any time the Company does not have a Rating assigned to it by
S&P, the Company and the Agent (acting on the instructions of the
Majority Lenders) shall negotiate (in good faith) a substitute
Rating having regard to the Company's financial condition and Rating
existing immediately prior to it ceasing to have a Rating from S&P;
and
(iii) if, after 15 Business Days, the Company and the Agent are unable to
agree a new Rating notwithstanding the provisions of paragraph (ii)
above, a Rating for the purpose of the table set out in paragraph
(b) above shall be deemed to be BB+.
(h) Promptly after becoming aware of the same the Company shall inform the
Agent in writing if any change in the Rating assigned to the Company
occurs or the circumstances contemplated in paragraph (g)(ii) above arise.
11.3 Payment of interest
The Borrower to which a Loan has been made shall pay accrued interest on
that Loan on the last day of each Interest Period (and, if the Interest
Period is longer than six Months, on the dates falling at six monthly
intervals after the first day of the Interest Period).
11.4 Default interest
(a) If an Obligor fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue on the overdue amount from
the due date up to the date of actual payment (both before and after
judgment) at a rate which is the sum of 1 per cent and the rate which
would have been payable if the overdue amount had, during the period of
non-payment, constituted a Loan in the currency of the overdue amount for
successive Interest Periods, each of a duration selected by the Agent
(acting reasonably).
(b) However if the overdue amount is principal of a Loan and became due on a
day other than the last day of an Interest Period relating to that Loan,
the first Interest Period applicable to that overdue amount shall be of a
duration equal to the unexpired portion of that Interest Period and the
rate of interest on that overdue amount for that Interest Period shall be
the sum of 1 per cent and the rate applicable to it immediately before it
became due.
(c) Any interest accruing under this Clause 11.4 shall be immediately payable
by the Obligor on demand by the Agent.
11.5 Notification of rates of interest
The Agent shall promptly (and in any event within 2 Business Days of the
determination of the same) notify the Lenders and the relevant Borrower of
the determination of a rate of interest under this Agreement.
12. INTEREST PERIODS
12.1 Selection of Interest Periods
(a) A Borrower (or the Company on behalf of a Borrower) may select an Interest
Period for a Loan in the Utilisation Request for that Loan or (if the Loan
has already been borrowed) in a Selection Notice.
(b) Each Selection Notice for a Facility A Loan and/or Facility B Loan is
irrevocable and must be delivered to the Agent by the relevant Borrower
(or the Company on behalf of a Borrower) not later than the Specified
Time.
(c) If the Company or other appropriate Borrower fails to deliver a Selection
Notice to the Agent in accordance with paragraph (b) above, the relevant
Interest Period will be one Month.
(d) Subject to this Clause 12, a Borrower may select an Interest Period of 1,
2, 3 or 6 (or, to the extent available to each Lender, 9 or 12) Months or
any other period agreed between the Company and the Agent (acting on the
instructions of all the Lenders). In addition, the Company or other
appropriate Borrower may select an Interest Period of less than one month
in relation to Facility B if necessary to ensure that there are sufficient
Facility B Loans which have an Interest Period ending on a Facility B
Repayment Date for the Company or other appropriate Borrower to make the
Repayment Instalment due on that date.
(e) An Interest Period for a Loan shall not extend beyond the Termination Date
applicable to its Facility (or, in the case of Facility A where the
Termination Date has been extended for a portion of that Facility pursuant
to Clause 5.5 (Extension of Facility A1 and Facility A2), beyond the
Termination Date applicable to the relevant portion of Facility A).
(f) Each Interest Period for a Facility A Loan and/or a Facility B Loan shall
start on the Utilisation Date or (if already made) on the last day of its
preceding Interest Period.
(g) A Facility C Loan has one Interest Period only.
12.2 Changes to Interest Periods
(a) Prior to determining the interest rate for an Interest Period beginning
before the Syndication Date, the Agent may after consultation (where
practicable) with the Company shorten that Interest Period to a duration
of 1 month (or such shorter duration as may be necessary to ensure that
the Interest Period ends on a date on which rights and obligations under
this Agreement are to be novated to persons becoming Parties as a result
of the syndication of the Facilities). The Company may request that
Interest Periods be similarly shortened until 30 August 2001 in order to
harmonise Interest Periods with its existing swap payment dates.
(b) Prior to determining the interest rate for a Facility B Loan, the Agent
may shorten an Interest Period for any Facility B Loan to the extent
necessary to ensure there are sufficient Facility B Loans with an Interest
Period ending on a Facility B Repayment Date for the Company or other
appropriate Borrower to make the Repayment Instalment due on that Facility
B Repayment Date.
(c) If the Agent makes any of the changes to an Interest Period referred to in
this Clause 12.2, it shall promptly notify the Company and the Lenders.
12.3 Non-Business Days
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period will instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if
there is not).
12.4 Consolidation and division of Facility A and Facility B Loans
(a) Subject to paragraph (b) below, if two or more Interest Periods relate to
Facility A1 Loans, Facility A2 Loans or Facility B Loans in the same
currency, to the same Obligor and end on the same date, those Facility A1
Loans, Facility A2 Loans or Facility B Loans (as the case may be) will,
unless the Company or other appropriate Borrower specifies to the contrary
in the Selection Notice for the next Interest Period, be consolidated
into, and treated as, a single Facility A1
Loan, Facility A2 Loan or Facility B Loan (as the case may be) on the last
day of the Interest Period.
(b) Subject to Clause 4.4 (Maximum number of Loans), if the Company or other
appropriate Borrower requests in a Selection Notice that a Facility A1
Loan, a Facility A2 Loan or a Facility B Loan be divided into two or more
Facility A1 Loans, Facility A2 Loans or Facility B Loans, that Facility A1
Loan, Facility A2 Loan or Facility B Loan (as the case may be) will, on the
last day of its Interest Period, be so divided.
12.5 Taux Effectif Global
In order to comply with the provisions of Articles L313-1 and L313-2 of the
French consumer Code (Code de la Consommation), the effective global rate
("taux effectif global") calculated in accordance with the articles
referred to above is as set out in a letter dated the date of this
Agreement from the Agent to the Company substantially in the form of
Schedule 11 (Form of TEG Letter).
13. CHANGES TO THE CALCULATION OF INTEREST
13.1 Absence of quotations
Subject to Clause 13.2 (Market disruption), if LIBOR or, if applicable,
EURIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by the Specified Time on the
Quotation Day, the applicable LIBOR or EURIBOR shall be determined on the
basis of the quotations of the remaining Reference Banks.
13.2 Market disruption
(a) If a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then the rate of interest on each Lender's share of that Loan for
the Interest Period shall be the rate per annum which is the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender as soon as practicable
and in any event before interest is due to be paid in respect of that
Interest Period, to be that which expresses as a percentage rate per
annum the cost to that Lender of funding its participation in that
Loan from whatever source it may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that Lender's participation
in the Loan.
(b) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the relevant Interest
Period the Screen Rate is not available and none or only one of the
Reference Banks supplies a rate to the Agent to determine LIBOR or,
if applicable, EURIBOR for the relevant currency and period; or
(ii) before close of business in London on the Quotation Day for the
relevant Interest Period, the Agent receives notifications from a
Lender or Lenders (whose participations in a Loan exceed 35 per cent.
of that Loan) that the cost to it of obtaining matching deposits in
the Relevant Interbank Market would be in excess of LIBOR or, if
applicable, EURIBOR.
13.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Agent or the Company so
requires, the Agent and the Company shall enter into negotiations (for a
period of not more than thirty days) with a view to agreeing a substitute
basis for determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above shall, with
the prior consent of all the Lenders and the Company, be binding on all
Parties.
13.4 Break Costs
(a) Each Borrower shall, within three Business Days of demand by a Finance
Party, pay to that Finance Party its Break Costs attributable to all or
any part of a Loan or Unpaid Sum being paid by that Borrower on a day
other than the last day of an Interest Period for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a demand by the
Agent, provide a certificate confirming the amount of its Break Costs for
any Interest Period in which they accrue.
14. FEES
14.1 Commitment fee
(a) The Company shall pay to the Agent (for the account of each Lender) a fee
in the Base Currency relative to the Facility for which the fee is payable
computed at the rate of:
(i) 33 1/3 per cent. of the applicable Margin which would apply to a
Facility A or Facility B Loan drawn, on the daily amount of that
Lender's Available Commitment under Facility A during the Availability
Period applicable to Facility A and on the daily amount of that
Lender's Available Commitment under Facility B during the Availability
Period applicable to Facility B; and
(ii) 50 per cent. of the applicable Margin which would apply to a Facility
C Loan drawn, on the daily amount of that Lender's Available
Commitment under Facility C during the Availability Period applicable
to Facility C.
(b) The accrued commitment fee is payable on the last day of each successive
period of three Months which ends during the relevant Availability Period,
on the last day of the Availability Period and on the cancelled amount of
the relevant Lender's Commitment at the time the cancellation is effective.
14.2 Arrangement fee
The Company shall pay to the Agent (on behalf of the Arranger, who shall
distribute the proceeds to the market at their sole discretion) the fees in
the amount and at the times agreed in a Fee Letter.
14.3 Agency fee
The Company shall pay to the Agent (for its own account) an agency fee in
the amount and at the times agreed in a Fee Letter.
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
15. TAX GROSS UP AND INDEMNITIES
15.1 Definitions
(a) In this Clause 15:
"Protected Party" means a Finance Party which is or will be, for or on
account of Tax, subject to any liability or required to make any payment in
relation to a sum received or receivable (or any sum deemed for the
purposes of Tax to be received or receivable) under a Finance Document, or
any Finance Party that will suffer a reduction in any payment made pursuant
to a Finance Document by reason of a Tax Deduction.
"Qualifying Lender" means a Lender which is (on the date a payment falls
due):
(i) with respect to any payment made pursuant to a Finance Document, a
resident of a jurisdiction (the "Payee Jurisdiction") that has
concluded a double taxation treaty in force as of the date hereof
with the jurisdiction (the "Payor Jurisdiction") in which the payor
of the payment is resident which exempts Payor Jurisdiction source
interest payments made to Payee Jurisdiction residents from Tax
Deductions (a "Treaty Lender");
(ii) able to fulfil the conditions imposed by French law, taking into
account, as the case may be, any applicable international treaty
signed by France, in order for any sum payable by an Obligor which is
resident in France to the Agent for the account of the Facility
Office of such person not to be subject to any Tax Deduction; or
(iii) with respect to payments from US Obligors, a US Person (a "US
Lender").
"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 under a Finance Document.
"Tax Payment" means an increased payment made by an Obligor to a Finance
Party under Clause 15.2 (Tax gross-up) or a payment under Clause 15.3 (Tax
indemnity).
(b) In this Clause 15 a reference to "determines" or "determined" means a
determination made in the absolute discretion of the person making the
determination.
15.2 Tax gross-up
(a) Each Obligor shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by law.
(b) The Company or a Lender shall promptly upon becoming aware that an Obligor
must make a Tax Deduction (or that there is any change in the rate or the
basis of a Tax Deduction) notify the Agent accordingly. If the Agent
receives such notification from a Lender it shall notify the Company and
that Obligor.
(c) If a Tax Deduction is required by law to be made by an Obligor the amount
of the payment due from that Obligor shall, subject to paragraphs (d) and
(e) below, be increased to an amount
which (after making any Tax Deduction) leaves an amount equal (on a net
after Tax basis) to the payment which would have been due if no Tax
Deduction had been required.
(d) In the case of a Tax Deduction for or on account of US Federal withholding
tax required by law to be made by a US Obligor, paragraph (c) shall only
apply if the Lender:
(i) is a Treaty Lender or a US Lender unless (in the case of a Treaty
Lender) the US Obligor is able to demonstrate the Tax Deduction is
required to be made as a result of the Lender failing to comply with
paragraph (h) below; or
(ii) is not or has ceased to be a Treaty Lender to the extent that this
altered status results from any change after the date of this
Agreement in (or in the interpretation, administration or application
of) any law or double taxation agreement or any published practice or
published concession of any relevant taxing authority.
(e) In the case of a Tax Deduction for or on account of French law to be made
by a French Obligor, paragraph (c) shall only apply if the Lender:
(i) is a Qualifying Lender; or
(ii) is not or has ceased to be a Qualifying Lender to the extent that
this altered status results from any change after the date of this
Agreement in (or in the interpretation, administration, or
application of) any law or double taxation agreement or any published
practice or published concession of any relevant taxing authority.
(f) If an Obligor is required to make a Tax Deduction, that Obligor shall make
that Tax Deduction and any payment required in connection with that Tax
Deduction within the time allowed and in the minimum amount required by
law.
(g) Within thirty days of making either a Tax Deduction or any payment required
in connection with that Tax Deduction, the Obligor making that Tax
Deduction shall deliver to the Agent for the Finance Party entitled to the
payment original receipts or certified copies thereof and, if not
available, other evidence reasonably satisfactory to that Finance Party
that the Tax Deduction has been made or (as applicable) any appropriate
payment paid to the relevant taxing authority.
(h) A Treaty Lender and each Obligor which makes a payment to which that Treaty
Lender is entitled shall co-operate in completing any procedural
formalities necessary for that Obligor to obtain authorisation to make that
payment without a Tax Deduction. With respect to payments made from or on
behalf of a Borrower which is a US Person, each Treaty Lender shall supply
to that Borrower's paying agent a properly completed and executed United
States Internal Revenue Service Form W-8BEN (a "Form W-8BEN") as of the
date hereof, and will supply additional Forms W-8BEN (or appropriate
successor forms) within 30 days of written request by that Borrower.
15.3 Tax indemnity
(a) The Company shall (within three Business Days of demand by the Agent) pay
to a Protected Party an amount equal (on a net after Tax basis) to the
loss, liability or cost which that Protected Party determines will be or
has been (directly or indirectly) suffered for or on account of Tax by that
Protected Party.
(b) Paragraph (a) above shall not apply with respect to any Tax assessed on:
(i) a Finance Party:
(A) under the law of the jurisdiction in which that Finance Party is
incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as resident
for tax purposes; or
(B) under the law of the jurisdiction in which that Finance Party's
Facility Office is located in respect of amounts received or
receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income
received or receivable (but not any sum deemed to be received or
receivable) by that Finance Party; or
(ii) the Agent (to the extent acting through an office in the United
Kingdom), as a result of the failure by a Lender to satisfy on the due
date of a payment of interest either of the conditions set out in
paragraphs (a) and (b) of Clause 28.15 (Lenders' tax status
confirmation).
(c) A Protected Party making, or intending to make, a claim pursuant to
paragraph (a) above shall promptly notify the Agent of the event which will
give, or has given, rise to the claim, following which the Agent shall
notify the Company.
(d) A Protected Party shall, on receiving a payment from an Obligor under this
Clause 15.3, notify the Agent.
15.4 Tax Credit
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 pay an amount to the Obligor 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.
15.5 Stamp taxes
The Company shall pay and, within three Business Days of demand, indemnify
each Finance Party against any cost, loss or liability that Finance Party
incurs in relation to all stamp duty, registration and other similar Taxes
payable in respect of any Finance Document.
15.6 Value added tax
(a) All consideration payable under a Finance Document by an Obligor to a
Finance Party shall be deemed to be exclusive of any VAT. If VAT is
chargeable, the Obligor shall pay to the Finance Party (in addition to and
at the same time as paying the consideration) an amount equal to the amount
of the VAT.
(b) Where a Finance Document requires an Obligor to reimburse a Finance Party
for any costs or expenses, that Obligor shall also at the same time pay and
indemnify that Finance Party against all VAT incurred by that Finance Party
in respect of the costs or expenses save to the extent that the Finance
Party has received repayment or credit in respect of such VAT.
16. INCREASED COSTS
16.1 Increased costs
(a) Subject to Clause 16.3 (Exceptions) the Company shall, within three
Business Days of a demand by the Agent, pay for the account of a Finance
Party the amount of any Increased Costs incurred by that Finance Party or
any of its Affiliates as a result of (i) the introduction of or any change
in (or in the interpretation or application of) any law or regulation or
(ii) compliance with any law or regulation made after the date of this
Agreement.
(b) In this Agreement "Increased Costs" means:
(i) a reduction in the rate of return from the Facility or on a Finance
Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost;
(iii) a reduction of any amount due and payable under any Finance Document;
(iv) the imposition, modification or application of any reserve, special
deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of
funds by, any office of a Finance Party which is not otherwise
included in the determination of LIBOR or EURIBOR under this
Agreement, including, without limitation, the imposition of any
reserves with respect to "Eurocurrency Liabilities" under Regulation
D (for which purpose, the Utilisations shall be deemed to constitute
Eurocurrency Liabilities and to be subject to such reserve
requirements without benefit of or credit for proration, exceptions
or offsets which may be available from time to time to any Finance
Party under Regulation D); or
(v) an imposition on a Finance Party of any condition,
which is directly incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance Party
having entered into its Commitment or funding or performing its obligations
under any Finance Document.
16.2 Increased cost claims
(a) A Finance Party intending to make a claim pursuant to Clause 16.1
(Increased costs) shall notify the Agent of the event giving rise to the
claim, following which the Agent shall promptly notify the Company.
(b) Each Finance Party shall, as soon as practicable after a demand by the
Agent, provide a certificate to the Agent and the Company confirming the
amount of its Increased Costs (and setting out in reasonable detail the
basis of calculation of such Increased Costs).
16.3 Exceptions
(a) Clause 16.1 (Increased costs) does not apply to the extent any Increased
Cost is:
(i) attributable to a Tax Deduction required by law to be made by an
Obligor;
(ii) compensated for by Clause 15.3 (Tax indemnity) (or would have been
compensated for under Clause 15.3 (Tax indemnity) but was not so
compensated solely because one of the exclusions in paragraph (b) of
Clause 15.3 (Tax indemnity) applied);
(iii) compensated for by the payment of the Mandatory Cost; or
(iv) attributable to the wilful breach by the relevant Finance Party or
its Affiliates of any law or regulation or to its negligence or
wilful default.
(b) In this Clause 16.3, a reference to a "Tax Deduction" has the same meaning
given to the term in Clause 15.1 (Definitions).
17. OTHER INDEMNITIES
17.1 Currency indemnity
(a) If any sum due from an Obligor under the Finance Documents (a "Sum"), or
any order, judgment or award given or made in relation to a Sum, has to be
converted from the currency (the "First Currency") in which that Sum is
payable into another currency (the "Second Currency") for the purpose of:
(i) making or filing a claim or proof against that Obligor;
(ii) obtaining or enforcing an order, judgment or award in relation to any
litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three Business Days
of demand, indemnify each Finance Party to whom that Sum is due against any
cost, loss or liability arising out of or as a result of the conversion
including any discrepancy between (A) the rate of exchange used to convert
that Sum from the First Currency into the Second Currency and (B) the rate
or rates of exchange available to that person at the time of its receipt of
that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency or currency unit other
than that in which it is expressed to be payable.
17.2 Other indemnities
The Company shall (or shall procure that an Obligor will), within three
Business Days of demand (which demand shall include reasonable detail of
the basis of calculation of the amount demanded), indemnify each Lender
against any cost, loss or liability incurred by that Lender as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance Document
on its due date, including without limitation, any cost, loss or
liability arising as a result of Clause 30 (Sharing among the
Lenders);
(c) funding, or making arrangements to fund, its participation in a
Utilisation requested by a Borrower in a Utilisation Request but not
made by reason of the operation of any one or more of the provisions
of this Agreement (other than by reason of default or negligence by
that Lender alone); or
(d) a Utilisation (or part of a Utilisation) not being prepaid in
accordance with a notice of prepayment given by a Borrower or the
Company.
17.3 Indemnity to the Agent
The Company shall promptly indemnify the Agent against any cost, loss or
liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default; or
(b) entering into or performing any foreign exchange contract for the
purposes of Clause 6 (Optional Currencies); or
(c) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
17.4 Acquisition Financing Indemnity
The Company shall indemnify each Finance Party in accordance with Schedule
10 (Acquisition Financing Indemnity).
18. MITIGATION BY THE LENDERS
18.1 Mitigation
(a) Each Finance Party shall, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under, or cancelled pursuant to, any
of Clause 10.1 (Illegality), Clause 15 (Tax gross-up and indemnities) or
Clause 16 (Increased costs) including (but not limited to) transferring its
rights and obligations under the Finance Documents to another Affiliate or
Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of any
Obligor under the Finance Documents.
18.2 Limitation of liability
(a) The Company shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it
under Clause 18.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 18.1
(Mitigation) if, in the opinion of that Finance Party (acting reasonably),
to do so might be prejudicial to it.
19. COSTS AND EXPENSES
19.1 Transaction expenses
The Company shall promptly on demand (and subject to the Fee Letter
relating, inter alia, to the same) pay the Agent and the Arranger the
amount of all costs and expenses and related taxes (including legal fees)
reasonably incurred by any of them in connection with the negotiation,
preparation, printing, execution and syndication of:
(a) this Agreement and any other documents referred to in this Agreement;
and
(b) any other Finance Documents executed after the date of this Agreement.
19.2 Amendment costs
If:
(a) an Obligor requests an amendment, waiver or consent; or
(b) an amendment is required pursuant to Clause 31.9 (Change of currency);
or
(c) an amendment is required to Clause 20 (Guarantee and Indemnity) as a
result of the accession of an Additional Guarantor who has a legal
restriction on the ability to give a guarantee in the specified form,
the Company shall, within three Business Days of demand, reimburse the
Agent for the amount of all third party costs and expenses (including legal
fees) reasonably incurred by the Agent in responding to, evaluating,
negotiating or complying with that request or requirement, it being
understood that such costs and expenses shall (so far as practically
possible) be subject to a pre-agreed budget mutually satisfactory to the
Company and the Agent.
19.3 Enforcement costs
The Company shall, within three Business Days of demand, pay to each
Finance Party the amount of all reasonable costs and expenses (including
legal fees) incurred by that Finance Party in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document.
19.4 Notification
The relevant person who has incurred any costs for which the Company is
responsible to pay pursuant to this Clause 19, shall provide the Company
with copies of invoices showing the relevant matters in reasonable detail.
SECTION 7
GUARANTEE
20. Guarantee and indemnity
20.1 Guarantee and indemnity
(a) Each Guarantor irrevocably and unconditionally jointly and severally:
(i) guarantees to each Finance Party punctual performance by each
Borrower of all that Borrower's obligations under the Finance
Documents;
(ii) undertakes with each Finance Party that whenever a Borrower does not
pay any amount when due under or in connection with any Finance
Document, that Guarantor shall immediately on demand pay that amount
as if it was the principal obligor; and
(iii) indemnifies each Finance Party immediately on demand against any
cost, loss or liability suffered by that Finance Party if any
obligation guaranteed by it is or becomes unenforceable, invalid or
illegal. The amount of the cost, loss or liability shall be equal to
the amount which that Finance Party would otherwise have been
entitled to recover,
provided that, in the case of each Guarantor incorporated in France (other
than the Company) its liability under this Clause 20 shall be limited in
amount to the outstanding Utilisations of that Guarantor at the relevant
time and the amount of any outstanding intra-group loans granted to it by
any other Obligor using the proceeds of any Loan Pursuant to this
Agreement.
(b) As regards the guarantee given by the Company under this Clause 20, if:
(i) Security is created or permitted to subsist by the Company or any
other member of the Group over any of the Acquired Shares; or
(ii) the holder of the Acquired Shares disposes of all or part of them,
each Finance Party shall, independently of paragraph (a) above, be
entitled to:
(A) make demand on the Company for all Utilisations, accrued interest
and other amounts accrued under the Finance Documents to be
immediately due and payable whereon they shall become immediately
due and payable and the Total Commitments shall be immediately
cancelled; or
(B) request that cash cover be provided to it in respect of all
principal amounts actually or contingently due to that Finance
Party under the Finance Documents.
20.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
20.3 Reinstatement
If any payment by an Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security for
those obligations or otherwise) is avoided or reduced as a result of
insolvency or any similar event:
(a) the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) each Finance Party shall be entitled to recover the value or amount of
that security or payment from each Obligor, as if the payment,
discharge, avoidance or reduction had not occurred.
20.4 Waiver of defences
The obligations of each Guarantor under this Clause 20 will not be affected
by an act, omission, matter or thing which, but for this Clause, would
reduce, release or prejudice any of its obligations under this Clause 20
(without limitation and whether or not known to it or any Finance Party)
including:
(a) any time, waiver or consent granted to, or composition with, any
Obligor or other person;
(b) the release of any other Obligor or any other person under the terms
of any composition or arrangement with any creditor of any member of
the Group;
(c) the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights against,
or security over assets of, any Obligor or other person or any non-
presentation or non-observance of any formality or other requirement
in respect of any instrument or any failure to realise the full value
of any security;
(d) any incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of an Obligor or any
other person;
(e) any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document or any other document or
security; or
(g) any insolvency or similar proceedings.
20.5 Immediate recourse
Each Guarantor waives any right it may have of first requiring any Finance
Party (or any trustee or agent on its behalf) to proceed against or enforce
any other rights or security or claim payment from any person before
claiming from that Guarantor under this Clause 20. This waiver applies
irrespective of any law or any provision of a Finance Document to the
contrary.
20.6 Appropriations
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or agent
on its behalf) in respect of those amounts, or apply and enforce the
same in such manner and order as it sees fit (whether against those
amounts or otherwise) and no Guarantor shall be entitled to the
benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received from
any Guarantor or on account of any Guarantor's liability under this
Clause 20.
20.7 Deferral of Guarantors' rights
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in full
and unless the Agent otherwise directs, no Guarantor will exercise any
rights which it may have by reason of performance by it of its obligations
under the Finance Documents:
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any other guarantor of any Obligor's
obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of subrogation
or otherwise) of any rights of the Finance Parties under the Finance
Documents or of any other guarantee or security taken pursuant to, or in
connection with, the Finance Documents by any Finance Party.
20.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Finance Party.
20.9 Limitation on guarantee of US Guarantors
(a) For the purposes of this Clause 20.9:
"Fraudulent Transfer Law" means any applicable United States bankruptcy and
state fraudulent transfer or conveyance statute and any related case law.
"US Guarantor" means any Guarantor incorporated or organised under the laws
of the United States or any state of the United States (including the
District of Columbia).
(b) Each US Guarantor acknowledges that:
(i) it will receive valuable direct or indirect benefits as a result of
the transactions financed by the Finance Documents;
(ii) each Finance Party has acted in good faith in connection with the
guarantee given by that US Guarantor and the transactions
contemplated by the Finance Documents; and
(iii) it has not incurred and does not intend to incur debts beyond its
ability to pay as they mature.
(c) Each US Guarantor must ensure that at all times:
(i) its capital must not be unreasonably small to carry on its business
as it is being conducted; and
(ii) it has not made a transfer or incurred any obligation under any
Finance Documents with the intent to hinder, delay or defraud any of
its present or future creditors.
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
21. REPRESENTATIONS
Each Obligor (in respect of itself and, where applicable, its Subsidiaries)
makes the representations and warranties set out in this Clause 21 to each
Finance Party on the date of this Agreement.
21.1 Status
(a) The Company is a societe anonyme, duly established and existing under the
laws of the Republic of France.
(b) Each other Obligor is a corporation, duly incorporated and validly existing
under the law of its jurisdiction of incorporation.
(c) Each Obligor has the power to own its assets and carry on its business as
it is being conducted.
21.2 Binding obligations
Subject to the Reservations, the obligations expressed to be assumed by it
in each Finance Document are, legal, valid, binding and enforceable
obligations.
21.3 Non-conflict with other obligations
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) the constitutional documents of it or any Material Subsidiary;
(c) any agreement or instrument binding upon it or any Material Subsidiary
in a manner or to an extent which has or might have a Material Adverse
Effect.
21.4 Power and authority
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the Finance Documents to which it is a party and the transactions
contemplated by the Finance Documents.
21.5 Validity and admissibility in evidence
All Authorisations required:
(a) to enable it lawfully to enter into, exercise its rights and comply
with its obligations in the Finance Documents to which it is a party;
and
(b) to make the Finance Documents admissible in evidence in its
jurisdiction of incorporation,
have been obtained or effected and are in full force and effect.
21.6 No default
(a) No Event of Default is continuing or might reasonably be expected to
result from the making of any Utilisation.
(b) Save as disclosed by the Company prior to the date of this Agreement
in respect of the Waivers, no other event or circumstance is
outstanding which constitutes a default under any other agreement or
instrument which is binding on it or any of its Subsidiaries which
would have a Material Adverse Effect.
21.7 Information Memorandum
This representation and warranty is made by the Company only upon issue of
an Information Memorandum approved by the Company in writing, on the date
of any update thereof and on the date of each or any Syndication Agreement
(on the Information Memorandum as the same may have been updated).
(a) The factual information provided by or on behalf of the Company in the
Information Memorandum was true and accurate in all material respects as
at the date (if any) at which it is stated or at the date of the Company's
approval of the Information Memorandum.
(b) The financial projections contained in the Information Memorandum have
been prepared (in good faith) on the basis of recent historical
information and on the basis of reasonable assumptions current at the date
of the Information Memorandum or any update thereof, and were arrived at
after due and careful consideration.
(c) Nothing has occurred or been omitted from the Information Memorandum and
no information has been given or withheld that results in the information,
projections or assumptions contained in the Information Memorandum being
untrue or misleading in any material respect in so far as the Information
Memorandum relates to the financing contemplated in the Financing
Documents.
21.8 Financial statements
(a) In the case of the Company, its Original Financial Statements were
prepared in accordance with French GAAP consistently applied.
(b) In the case of the Company, its Original Financial Statements fairly
represent the consolidated financial position of the Group as at the end
of the relevant financial year.
(c) There has been no material adverse change in the financial condition or
business of the Group taken as a whole since 31 August 2000 (the Company
only makes this representation and warranty).
21.9 Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to
companies generally.
21.10 No proceedings pending or threatened
No litigation, arbitration or administrative proceedings (other than
disclosed in writing to the Arranger prior to the date of this Agreement
and which the Company or other relevant Obligor believes on reasonable
grounds will be decided in its favour) of or before any court, arbitral
body or agency have been started or (to the best of its knowledge and
belief) threatened against it or any of its Subsidiaries which, if
adversely determined, would be reasonably likely to have a Material Adverse
Effect.
21.11 Existing Security
No Security exists on or over its assets or those of any of its
Subsidiaries except as permitted by Clause 24.3 (Negative pledge).
21.12 Environmental laws
(a) It and each of its Subsidiaries is and has been in compliance with all
applicable Environmental Laws and there are no circumstances known to it
or any of its Subsidiaries that may prevent or interfere with such full
compliance in the future and there are no circumstances known to it or any
of its Subsidiaries that could give rise to any liability under
Environmental Laws;
(b) It and each of its Subsidiaries has been and is in compliance with the
terms of all Environmental Approvals necessary for the ownership and
operation of its and their facilities and businesses as presently owned
and operated and as presently proposed to be owned and operated and it and
each of its Subsidiaries will have all such Environmental Approvals prior
to the commencement of any new activities or the commencement of work at
any new sites to be owned or operated by it or them;
(c) To the best of the knowledge and belief of the Company (having made due
and careful enquiry) there is no Environmental Claim pending or threatened
against it or any of its Subsidiaries, and there are no past or present
acts, omissions, events or circumstances which could form the basis of any
Environmental Claim against it or any of its Subsidiaries,
in each of (a), (b) and (c) above, to the extent that no existing claim or
non-compliance would be likely to have a Material Adverse Effect.
21.13 Material Subsidiaries
Each member of the Group which, as at the date of this Agreement, is a
Material Subsidiary is listed in Schedule 12 (Material Subsidiaries).
21.14 Solvency
No Obligor has taken any action nor have any steps been taken or legal
proceedings started or threatened against it for winding up, examination,
dissolution or re-organisation, the enforcement of any Security over its
assets or for the appointment of a receiver, examiner, administrative
receiver or administrator, trustee or similar officer of it or any of its
assets.
21.15 Tax liabilities
All necessary returns have been delivered by each member of the Group
(subject to the provisions of Clause 1.4 (Kodak and SMO as Subsidiaries))
or on their behalf to the relevant taxation authorities and neither it nor
any of its Subsidiaries is in default in the payment of any taxes, and no
material claim is being asserted with respect to taxes which (if adversely
decided) would have a Material Adverse Effect which has not been contested
and appropriately reserved against in its most recent financial
statements.
21.16 Employee Plans
(a) No ERISA Event has occurred or is reasonably expected to occur with
respect to any Plan that has resulted in or is reasonably expected to
result in a liability of a US Material Subsidiary or any ERISA Affiliate
that would reasonably be expected to have a Material Adverse Effect.
(b) As of the last annual actuarial valuation date, except as would not
reasonably be expected to have a Material Adverse Effect, the funded
current liability percentage, as defined in Section
302(d)(8) of ERISA, of each Plan exceeds 90 per cent and there has been no
adverse change in the funding status of any such Plan since such date.
(c) No US Material Subsidiary nor any ERISA Affiliate has incurred or is
reasonably expected to incur any Withdrawal Liability to any Multiemployer
Plan that would reasonably be expected to have a Material Adverse Effect.
(d) No US Material Subsidiary nor any ERISA Affiliate has been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganisation or has been terminated, within the meaning of Title IV of
ERISA, and no such Multiemployer Plan is reasonably expected to be in
reorganisation or to be terminated, within the meaning of Title IV of
ERISA, in any such case, in a manner or to an extent that would reasonably
be expected to have a Material Adverse Effect.
(e) Each US Material Subsidiary and its respective Subsidiaries have no
material liability with respect to "expected post retirement benefit
obligations" within the meaning of Statement of Financial Accounting
Standards No. 106 that would reasonably be expected to have a Material
Adverse Effect.
21.17 US Federal Reserve Regulations
Neither the making of any Loan nor the use of the proceeds or the benefits
thereof will violate or be inconsistent with Regulations T, U or X of the
Board.
21.18 Investment Company Act and Public Utility Holding Company Act
No Obligor is an "investment company", as such term is defined in the US
Investment Company Act of 1940 as amended, or subject to the Public
Utility Holding Company Act 1935, as amended.
21.19 The Offer and AA Acquisition
(a) The Tender Offer Statement contains all the material terms and conditions
of the Offer.
(b) The AA Acquisition Agreements provided to the Agent contain all the
material terms and conditions of the AA Acquisitions.
21.20 Repetition
The Repeating Representations are deemed to be made by each Obligor by
reference to the facts and circumstances then existing on:
(a) the date of each drawdown date and each interest payment date; and
(b) in the case of an Additional Obligor, the day on which the relevant
company becomes (or it is proposed the company becomes) an Additional
Obligor.
22. INFORMATION UNDERTAKINGS
The undertakings in this Clause 22 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
22.1 Financial statements
The Company shall supply to the Agent in sufficient copies for all the
Lenders:
(a) as soon as the same become available, but in any event within 120 days
after the end of each of its financial years:
(i) its audited consolidated financial statements for that financial
year; and
(ii) the financial statements of each Obligor (unaudited unless
audited accounts are prepared and presented on an unconsolidated
and, if prepared, consolidated basis) for that financial year;
and
(b) as soon as the same become available, but in any event within 120 days
after the end of each half of each of its financial years the
consolidated financial statements of the Company for that financial
half year (unaudited unless audited accounts are prepared).
22.2 Compliance Certificate
(a) The Company shall supply to the Agent, with each set of financial
statements delivered pursuant to paragraph (a)(i) or (b) of Clause 22.1
(Financial statements), a Compliance Certificate setting out:
(i) (in reasonable detail) computations as to compliance with Clause 23
(Financial Covenants) as at the date as at which those financial
statements were drawn up; and
(ii) a statement that no Default is continuing or, to the extent such
statement cannot be made, identifying any Default that is continuing
and the steps, if any, being taken to remedy it.
(b) Each Compliance Certificate shall be signed by the Chief Financial Officer,
or such other appropriate and responsible officer, of the Company and, when
delivered with the financial statements delivered pursuant to paragraph
(a)(i) of Clause 22.1 (Financial statements), shall be confirmed by the
Company's auditors subject to agreeing their terms of engagement with the
Company as approved by the Agent (acting reasonably).
22.3 Requirements as to financial statements
(a) Each set of financial statements delivered by the Company pursuant to
paragraph (b) of Clause 22.1 (Financial statements) shall be certified by a
director of the relevant company as fairly representing its consolidated
financial condition as at the end of and for the period in relation to
which those financial statements were drawn up.
(b) The Company shall procure that each set of financial statements delivered
pursuant to Clause 22.1 (Financial statements) is prepared using French
GAAP or, in the case of US Obligors, US GAAP. In relation to its own
financial statements delivered pursuant to Clause 22.1 (Financial
statements), the Company shall ensure it uses accounting practices and
financial reference periods consistent with those applied in the
preparation of its Original Financial Statements unless, in relation to any
set of financial statements, it notifies the Agent that there has been a
change in French GAAP, the accounting practices or reference periods which
has an effect on the calculation of the covenants as set out in Clause 23
(Financial Covenants) and its auditors deliver to the Agent (as reasonably
required):
(i) a description of any change necessary for those financial statements
to reflect the French GAAP, accounting practices and reference periods
upon which the Company's Original Financial Statements were prepared;
and
(ii) sufficient information, in form and substance as may be reasonably
required by the Agent, to enable the Lenders to determine whether
Clause 23 (Financial Covenants) has been complied with and make an
accurate comparison between the financial position indicated in those
financial statements and the Company's Original Financial Statements.
Any reference in this Agreement to those financial statements shall be
construed as a reference to those financial statements as adjusted to
reflect the basis upon which the Company's Original Financial Statements
were prepared.
22.4 Information: miscellaneous
The Company shall supply to the Agent (in sufficient copies for all the
Lenders, if the Agent so requests):
(a) all financial press releases and circulars dispatched by the Company:
(i) to its shareholders (or any class of them); or
(ii) to its creditors generally at the same time as they are
dispatched;
(b) promptly upon becoming aware of them, the details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending against any member of the Group (subject to
Clause 1.4 (Kodak and SMO as Subsidiaries)), and which could, if
adversely determined, have a Material Adverse Effect;
(c) promptly, such further information regarding the financial condition,
business and operations of any member of the Group (subject to Clause
1.4 (Kodak and SMO as Subsidiaries)) as any Finance Party (through the
Agent) may reasonably request;
(d) written confirmation of when it has gained control of Kodak (within
the meaning set out in the definition of "Subsidiary" in Clause 1.1
(Definitions)) promptly following control being obtained; and
(e) promptly on request, a certificate confirming how much the Company and
any other member of the Group has spent on acquiring Shares.
22.5 Notification of default
Each Obligor shall notify the Agent of any Default (and the steps, if any,
being taken to remedy it) promptly upon becoming aware of its occurrence
(unless that Obligor is aware that a notification has already been provided
by another Obligor).
22.6 Offer and AA Acquisition related documents
(a) The Company will promptly deliver to the Agent:
(i) enough copies for the Lenders of each Tender Offer Statement, proxy
statements and any merger agreement and any other document containing
material terms and conditions of any Offer which the Company (acting
reasonably) thinks it should disclose;
(ii) a copy of each AA Acquisition Agreement and any amendments thereto
and, if applicable, any other document containing material terms and
conditions of the AA Acquisition which the Company (acting
reasonably) thinks it should disclose;
(iii) details of any publicly announced determination of the Special
Committee relating to the Offer; and
(iv) details of any litigation, arbitration or other proceeding or, to the
extent known to the Company, any pending or threatened litigation or
proceedings relating to the Offer or the acquisition of any Kodak
shares which would have a Material Adverse Effect.
(b) The Company will promptly deliver to the Agent for distribution to the
Lenders such other information (in reasonable detail) relating to the
status and progress of the Offer or the AA Acquisition as the Agent (or any
Lender acting through the Agent) may from time to time reasonably request
including, without limitation, details as to the current level of
acceptances to the Offer.
22.7 ERISA Events and ERISA reports
A US Material Subsidiary shall (and the Company shall ensure that it shall)
deliver to the Agent:
(a) promptly and in any event within 10 days after it or any ERISA Affiliate
knows or has reason to know that any ERISA Event has occurred that would
reasonably be expected to have a Material Adverse Effect, a statement of
the chief financial officer of that US Material Subsidiary describing such
ERISA Event and the action, if any, that that US Material Subsidiary or
such ERISA Affiliate has taken and proposes to take with respect thereto;
and
(b) on the date any records, documents or other information must be furnished
to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA in
connection with a related event or condition that would reasonably be
expected to have a Material Adverse Effect, a copy of such records,
documents and information.
22.8 Plan terminations
A US Material Subsidiary shall (and the Company shall ensure that it shall)
deliver to the Agent promptly and in any event within two Business Days
after receipt thereof by that US Material Subsidiary or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer any Plan
that would reasonably be expected to have a Material Adverse Effect.
22.9 Plan annual reports
A US Material Subsidiary shall (and the Company shall ensure that it shall)
deliver to the Agent promptly and in any event within 10 days after request
of the Agent, copies of each Schedule B (Actuarial Information) to the most
recently filed annual report (Form 5500 Series) with respect to each Plan.
22.10 Multiemployer Plan notices
A US Material Subsidiary shall (and the Company shall ensure that it
shall) deliver to the Agent promptly and in any event within five Business
Days after receipt thereof by that US Obligor or any ERISA Affiliate from
the sponsor of a Multiemployer Plan, copies of each notice concerning:
(a) the imposition of Withdrawal Liability by any such Multiemployer Plan
that would reasonably be expected to have a Material Adverse Effect;
(b) the reorganisation or termination, within the meaning of Title IV of
ERISA, of any such Multiemployer Plan that would reasonably be
expected to have a Material Adverse Effect; or
(c) the amount of liability incurred, or that may be incurred, by that US
Material Subsidiary or any ERISA Affiliate in connection with any
event described in paragraphs (a) or (b) above.
22.11 Environment
The Company shall, and shall procure that each other member of the Group
(subject to Clause 1.4 (Kodak and SMO as Subsidiaries)) shall, promptly
upon receipt of the same, notify the Agent of any claim, notice or other
communication served on it in respect of any alleged breach of any
Environmental Law which may have a Material Adverse Effect.
23. Financial Covenants
23.1 Financial condition
The Company shall ensure that:
(a) the ratio of Net Consolidated Financial Indebtedness on each date
listed below to EBITDA for the Relevant Period ended on such date
will be not more than the ratio set opposite that date:
Date Ratio
28 February 2002 2.00:1
31 August 2002 2.00:1
28 February 2003 2.00:1
31 August 2003 2.00:1
29 February 2004 2.00:1
31 August 2004 2.00:1
28 February 2005 2.00:1
31 August 2005 2.00:1
28 February 2006 2.00:1
(b) the ratio of EBIT to Net Consolidated Interest Expense for each
Relevant Period ending on each date listed below will not be less
than the ratio set opposite that date:
Date Ratio
28 February 2002 3.50:1
31 August 2002 3.50:1
28 February 2003 4.00:1
31 August 2003 4.00:1
29 February 2004 4.00:1
31 August 2004 4.00:1
28 February 2005 4.00:1
31 August 2005 4.00:1
28 February 2006 4.00:1
23.2 Definitions
In this Clause 23:
"EBIT" means, in relation to any period, the "resultat d'exploitation
consolide" (as determined in accordance with French GAAP) as shown in
the consolidated accounts of the Group for that
period excluding for the avoidance of doubt any charge for amortisation of
goodwill (amortissement d'ecarts d'acquisition).
"EBITDA" has the meaning ascribed thereto in Clause 1.1 (Definitions).
"Net Consolidated Financial Indebtedness" means, at any time, the Relevant
Financial Indebtedness of the Group less the amount of cash at hand and
marketable securities ("disponibilities et valuers mobilieres de placement")
as shown in the Group's consolidated accounts excluding for the avoidance of
doubt reserved funds relating to the vouchers activity ("fonds reserves")
and Relevant Financial Indebtedness in respect of Guaranteed Investments.
"Net Consolidated Interest Expense" means, for any period, the "resultat
financier consolide" (as determined in accordance with French GAAP) as shown
in the Group's consolidated accounts for that period after excluding any
foreign exchange gains or losses and any amortisation provision ("dotations
et reprises aux amortissements et provisions") made, to the extent included
within the "resultat financier consolide" during that period.
"Relevant Financial Indebtedness" means, in relation to any person at any
time, any indebtedness of that person, whether actual or contingent, present
or future, in respect of:
(a) total financial debt ("dettes financieres") including moneys borrowed,
debit balances at banks and any debenture, bond, note, loan stock or
other debt security;
(b) receivables sold or discounted (otherwise than on a non-recourse
basis), acceptance credits and other arrangements required to be given
similar treatment under French GAAP;
(c) the obligations under capital leases ("credit-bail") or other contracts
required to be given similar treatment under French GAAP;
(d) any guarantee of any person in respect of any of the above,
but no particular Relevant Financial Indebtedness shall be taken into
account more than once (so that, for example, a guarantee shall be excluded
to the extent the Relevant Financial Indebtedness guaranteed thereby is
already taken into account and, in the case of Relevant Financial
Indebtedness of any member of the Group, there shall also be excluded (i)
any Relevant Financial Indebtedness owing to any member of the Group (ii)
(for avoidance of doubt) any performance guarantee issued in favour of
Spirit Marine in respect of the contractual arrangements entered into by
Spirit Cruises and (iii) (for avoidance of doubt) the Relevant Financial
Indebtedness of any person (not being a member of the Group) that is
guaranteed by a member of the Group which guarantee thereof is treated as
Relevant Financial Indebtedness).
"Relevant Period" means each period of 12 months ending on each 28 or 29
February, as the case may be, and 31 August.
24. General undertakings
The undertakings in this Clause 24 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
24.1 Authorisations
Each Obligor shall promptly obtain, comply with and do all that is
necessary to maintain in full force and effect any Authorisation required
under any applicable law or regulation to enable it to perform its
obligations under the Finance Documents to which it is a party and to
ensure the legality, validity, (subject to the Reservations)
enforceability or admissibility in evidence in its jurisdiction of
incorporation of any Finance Document.
24.2 Compliance with laws
Each Obligor shall (and the Company shall ensure that each other member of
the Group (subject to Clause 1.4 (Kodak and SMO as Subsidiaries)) shall)
comply in all respects with all laws and regulations including, without
limitation, compliance with ERISA, to which it may be subject, if failure
to do so would be reasonably likely to have a Material Adverse Effect.
24.3 Negative pledge
(a) The Company shall not (and the Company shall ensure that no other member
of the Group (subject to Clause 1.4 (Kodak and SMO as Subsidiaries)) will)
create or permit to subsist any Security over any of its assets (but
excluding for this purpose Security over the Acquired Shares).
(b) Paragraph (a) does not apply to:
(i) Security granted in favour of any person which is not a member of
the Group in effect on the date of this Agreement and disclosed in
writing to the Agent prior to the date of this Agreement provided
that in relation to Kodak and SMO such disclosure shall be limited
to disclosure of the total amount of indebtedness secured by Kodak
and SMO and a breakdown between each such company;
(ii) liens arising by operation of law or in the ordinary course of
trading including in respect of any client money held in trust by a
Group member or rights of set-off arising by operation of law or
bankers' rights of set-off;
(iii) group account netting and pooling arrangements entered into between
members of the Group and any bankers to the Group;
(iv) any Security on any asset of a member of the Group arising in
respect of any escrow arrangements put into place for the purpose of
a disposal or acquisition by a member of the Group;
(v) any Security on any asset acquired by a member of the Group which
exists at the time of, and is not created in contemplation of, such
acquisition, provided that the same does not secure any obligation
which is not secured thereby at the time of such acquisition;
(vi) any Security on any asset which secured only Financial Indebtedness
incurred to refinance any other Financial Indebtedness secured by
the same asset by any such
security as is referred to in paragraph (v) above, provided that
the aggregate amount secured by such asset is not thereby
increased;
(vii) any Security created by any member of the Group to secure any
Guaranteed Investments made or to be made by it;
(viii) any Security pursuant to any order of attachment, distraint or
similar legal process arising in connection with court proceedings
provided that the execution or other enforcement thereof is
effectively stayed and the claims served thereby are being
contested at the time in good faith by appropriate proceedings and
proper provision has been made for any adverse judgments;
(ix) any Security on any sum payable under any contract (or on any
security representing such sum or otherwise issued pursuant to such
contract) in respect of which the major part of the price
receivable by a member of the Group is guaranteed or insured by, or
is part of a scheme operated by, a national export credit
institution or other similar institution;
(x) any Security created on the assets of any member of the Group in
the course of margin trading entered into by such member as part of
its normal treasury operations;
(xi) Security on assets the subject of operating leases up to an
aggregate amount not exceeding (Euro)40,000,000;
(xii) Security created by any member of the Group to another member of
the Group in connection with dealings carried on between such
persons on arm's length terms; and
(xiii) other Security not contained in paragraphs (i) to (xii) above
securing indebtedness in an amount not to exceed the higher of
Euro 200,000,000 or 5 per cent of Adjusted Net Worth.
(c) If the Company or any other member of the Group creates or permits to
subsist Security over any of the Acquired Shares to any person, it will at
the same time grant identical Security to or on behalf of the Lenders
ranking pari passu over the Acquired Shares pursuant to documentation
acceptable to the Agent.
24.4 Disposals
No member of the Group (subject to Clause 1.4 (Kodak and SMO as
Subsidiaries)) shall (individually or together) dispose of all or a
substantial part of the Group (as defined below) except for:
(a) disposals where the net proceeds are applied to prepay the
Facilities; or
(b) (after the first anniversary of the Credit Agreement and provided
that the Company's Rating is higher than BBB-) disposals where the
net proceeds are invested within 6 months in the acquisition of
similar assets or businesses of comparable or better value and
revenue generation; or
(c) disposals to other wholly owned Subsidiaries of the Company,
and provided that any such disposals in (a), (b) or (c) above are made on
arm's-length terms. For the purposes of this Clause 24.4, a disposal of "a
substantial part of the Group" means the disposal of assets, businesses
(or lines of businesses) or shares or other investments in Subsidiaries,
where the disposed part or parts accounts for at least 10 per cent. of the
Group's
gross assets or revenues or form a part of the business or businesses
acquired under an AA Acquisition Agreement, but in any event this
definition does not apply to:
(i) disposal of stock in trade in the ordinary course of trading;
(ii) disposals of short-term investments as part of normal treasury
operations; and
(iii) disposals of Guaranteed Investments.
24.5 Restriction on Subsidiary borrowings/guarantees
The Company and each other Obligor shall ensure that no member of the
Group (other than the Company) will create, assume, incur or otherwise be
liable in respect of, or have outstanding, any Financial Indebtedness
other than:
(a) any Financial Indebtedness falling within paragraph (g) of the
definition of "Financial Indebtedness" and entered into to hedge
actual or projected exposure arising in the ordinary course of
business;
(b) Financial Indebtedness owing to a member of the Group;
(c) Financial Indebtedness incurred under the Facilities;
(d) Financial Indebtedness in respect of Guaranteed Investments; and
(e) (i) Financial Indebtedness incurred and outstanding under the Kodak
Existing Facility and SMO Credit Agreement and, in addition,
other Financial Indebtedness not exceeding Euro 300,000,000 in
aggregate for all members of the Group (excluding the Company);
or
(ii) Financial Indebtedness not exceeding (Euro)400,000,000 in
aggregate for all members of the Group (other than the Company).
24.6 Merger
Except with the prior written consent of the Majority Lenders, the Company
will not (and will procure that no other Obligor or Material Subsidiary
shall) enter into any merger or consolidation other than:
(a) a merger of Kodak with Kodak Bidco following and in connection
with an Offer; and
(b) a solvent merger or consolidation with another member of the
Group (in the case of an Obligor which must be the surviving
entity) and where the Agent (acting reasonably) is satisfied that
such merger or consolidation will not have an adverse impact on
any obligation owed by that Obligor to the Finance Parties or
upon any rights that a Finance Party may have against that
Obligor.
24.7 Change of business
The Company shall procure that no substantial change is made (whether by
acquisition or otherwise) to the general nature of the business of the
Group from that carried on at the date of this Agreement provided that the
members of the Group shall be able to extend into new markets, services
and product areas in related businesses.
24.8 Insurance
Each Obligor shall, and the Company shall ensure that each other Material
Subsidiary (subject to Clause 1.4 (Kodak and SMO as Subsidiaries)) shall,
maintain with financially sound and reputable insurers such insurance as
may be required by law and such other insurance, to such
extent and against such hazards and liabilities as is customarily
maintained by companies carrying on a business such as that carried on by
it or the relevant Obligor or Material Subsidiary (subject to Clause 1.4
(Kodak and SMO as Subsidiaries)) in the same location as it or the
relevant Obligor or Material Subsidiary (subject to Clause 1.4 (Kodak and
SMO as Subsidiaries)).
24.9 The Offer
Each Obligor shall (and the Company shall procure that each Material
Subsidiary (subject to Clause 1.4 (Kodak and SMO as Subsidiaries)) will)
comply with the rules of the New York Stock Exchange, the Securities and
Exchange Commission and all other applicable laws in all respects material
in the context of the Offer.
24.10 Pari Passu ranking
Each Obligor shall ensure that its payment obligations under the Finance
Documents rank and will at all times rank at least pari passu with the
claims of all its other unsecured and subordinated creditors, except for
obligations mandatorily preferred by law applying to companies generally.
24.11 Taxes
Each Obligor shall pay and discharge, and the Company shall cause each
Material Subsidiary (subject to Clause 1.4 (Kodak and SMO as
Subsidiaries)) to pay and discharge, before the same shall become
delinquent, all taxes, assessments and governmental charges or levies
imposed upon it or upon its property provided, however, that no Obligor
nor any Material Subsidiary (subject to Clause 1.4 (Kodak and SMO as
Subsidiaries)) shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being
maintained.
24.12 Transactions with Affiliates and shareholders
The Company shall, in addition to complying with applicable French law,
conduct, and cause each of its Subsidiaries (subject to Clause 1.4 (Kodak
and SMO as Subsidiaries)) to conduct, all material transactions otherwise
permitted under the Finance Documents with any of their Affiliates
(including, for the avoidance of doubt for the purpose of this Clause
24.12, material transactions with any shareholder of the Company who owns
5 per cent. or more of the issued share capital of the Company) on terms
that are fair and reasonable and no less favourable to the Company or such
Subsidiary (subject to Clause 1.4 (Kodak and SMO as Subsidiaries)) than it
would obtain in a comparable arm's-length material transaction with a
person not an Affiliate. For the purpose of this Clause 24.12, "material
transaction" shall mean any transaction or series of related transactions
having a cash or non-cash value of at least Euro 2,000,000 (or its
equivalent).
24.13 Regulations T, U and X
No US Obligor shall (and the Company shall ensure that they do not) use,
directly or indirectly, the proceeds of the Facilities in a way which
violates any of Regulations T, U or X or any other applicable US federal
or state laws and regulations. If requested by the Agent, the Company or
the relevant Borrower will furnish to the Agent a statement to the
foregoing effect in conformity with the requirements of Form U-1 referred
to in Regulation U.
24.14 Market Purchases
For so long as any amount is outstanding under Facility A or any Facility
A Commitment is in force, no more than Euro 400,000,000 in aggregate may
be spent by the Company or any of its Subsidiaries on Market Purchases.
24.15 AA Bidcos and Kodak Bidco
In relation to the AA Bidcos and the Kodak Bidco, the Company shall at
all times ensure that such companies are properly capitalised for the
purposes of applicable French and United States laws and regulations
where the consequences of such non-compliance could, by the Lenders
performing their obligations under this Agreement, cause the Lenders
(directly or indirectly) to incur additional obligations to those set out
in this Agreement or a liability which would not have been incurred by
the Lenders had the companies been properly capitalised.
25. Events of Default
Each of the events or circumstances set out in Clause 25 (other than
Clause 25.16 (Acceleration) and Clause 25.17 (Clean-up Period)) is an
Event of Default.
25.1 Non-payment
An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
(a) its failure to pay is caused by administrative or technical error and
payment is made within 3 Business Days of its due date; or
(b) in the case of payment of fees pursuant to a Finance Document,
payment is made within 5 Business Days of its due date.
25.2 Financial and other covenants
Any requirement of any of Clauses 23 (Financial Covenants), 24.3 (Negative
pledge), 24.5 (Restriction on Subsidiary borrowings/guarantees), 24.6
(Merger), 24.7 (Change in business) and 22.5 (Notification of default) is
not satisfied.
25.3 Other obligations
(a) An Obligor does not comply with any provision of the Finance Documents
(other than those referred to in Clause 25.1 (Non-payment) and Clause 25.2
(Financial and other covenants)).
(b) No Event of Default under paragraph (a) above in relation to any of
Clauses 22.1 (Financial statements), 22.2 (Compliance Certificate), 22.3
(Requirements as to financial statements), 22.4 (Information:
miscellaneous), 22.7 (ERISA Events and ERISA reports), 22.8 (Plan
termination), 22.9 (Plan annual reports), 22.10 (Multiemployer Plan
notices) and 22.11 (Environment) will occur if the failure to comply is
capable of remedy and is remedied within 5 Business Days of the Agent
giving notice to the Company or the Company becoming aware of the failure
to comply.
(c) No Event of Default under paragraph (a) above in relation to any other
undertaking, obligation or provision (excluding the Clauses specified in
paragraph (a) above) will occur if the failure to comply is capable of
remedy and is remedied within 30 days of the Agent giving notice to the
Company or the Company becoming aware of the failure to comply.
25.4 Misrepresentation
Any representation or statement made, repeated, or deemed to be made by an
Obligor in the Finance Documents or any other document delivered by or on
behalf of any Obligor under or in connection with any Finance Document
(including the Information Memorandum) is or proves to have been incorrect
or misleading in any material respect when made or deemed to be made.
25.5 Cross default
(a) Any Financial Indebtedness of any member of the Group is not paid when due
nor within any originally applicable grace period.
(b) Any Financial Indebtedness of any member of the Group is declared to be or
otherwise becomes due and payable prior to its specified maturity as a
result of an event of default (however described).
(c) Any commitment for any Financial 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).
(d) Any creditor of any member of the Group becomes entitled to declare any
Financial Indebtedness of any member of the Group due and payable prior to
its specified maturity as a result of an event of default (however
described).
(e) No Event of Default will occur under this Clause 25.5 if the aggregate
amount of Financial Indebtedness or commitment for Financial Indebtedness
falling within paragraphs (a) to (d) above is less than Euro 30,000,000
(or its equivalent in any other currency or currencies) at any time.
25.6 Insolvency
(a) Any Obligor or any Material Subsidiary is unable or admits inability to
pay its debts as they fall due, suspends making payments on any of its
debts or threatens to stop payments of its debts generally or, by reason
of actual or anticipated financial difficulties, commences negotiations
with one or more of its creditors with a view to rescheduling any of its
indebtedness.
(b) A moratorium is declared in respect of any indebtedness of any Obligor or
any Material Subsidiary including, without limitation, a moratorium
governed by French law no. 84-148 of 1 March 1984.
25.7 Insolvency proceedings
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, bankruptcy, judicial liquidation
(liquidation judiciaire), concordat, administration or judicial
reorganisation (redressement judiciaire), amicable settlement
(reglement amiable) or other reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of any Obligor or
Material Subsidiary other than a solvent liquidation or
reorganisation previously approved in writing by the Majority
Lenders;
(b) a composition, assignment or arrangement with any creditor of any
Obligor or Material Subsidiary;
(c) the appointment of a liquidator (liquidateur) (other than in respect
of a solvent liquidation previously approved in writing by the
Majority Lenders), receiver, administrator, administrative receiver,
custodian, compulsory manager, bankruptcy receiver (curateur),
conciliator (conciliateur), ad hoc official (mandataire ad hoc),
judicial administrator (administrateur judiciaire), liquidation
official (mandataire liquidateur) or any other similar officer in
respect of any Obligor or Material Subsidiary or any of its assets;
or
(d) enforcement of any Security over any assets of any Obligor or
Material Subsidiary unless the liability or potential liability in
respect of which such proceedings are brought is less than
Euro 15,000,000 (or its equivalent in any other currency),
or any analogous procedure or step is taken in any jurisdiction.
25.8 Creditors' process
Any expropriation, attachment, sequestration, distress or execution
affects any asset or assets of an Obligor or Material Subsidiary and is
not discharged within 20 days.
25.9 Cessation of business
Any Obligor or any Material Subsidiary ceases or threatens to cease, to
carry on all or a substantial part of its business (other than pursuant to
a solvent reorganisation previously approved in writing by the Majority
Lenders).
25.10 Unlawfulness
It is or becomes unlawful for an Obligor to perform any of its obligations
under the Finance Documents.
25.11 Repudiation
An Obligor repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.
25.12 Company guarantee
The guarantee of the Company specified in Clause 20 (Guarantee and
Indemnity) is demanded by a Finance Party in accordance with, and in the
circumstances specified in, Clause 20.1(b) (Guarantees and Indemnity) or
cash-cover has not been provided as specified therein.
25.13 Judgments
(a) Any judgment or order for the payment of money shall be rendered against
the Company or any of its Subsidiaries that would reasonably be expected
to have a Material Adverse Effect and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order or
(ii) there shall be any period of 30 consecutive days during which a stay
of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
(b) Any non-monetary judgment or order shall be rendered against the Company
or any of its Subsidiaries that would reasonably by expected to have a
Material Adverse Effect, and there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect.
25.14 ERISA
(a) Any ERISA Event shall have occurred with respect to a Plan and the sum
(determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then
exist (or the liability of any of the US Material Subsidiary and the ERISA
Affiliates related to such ERISA Event) exceeds US$30,000,000; or
(b) Any US Material Subsidiary or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
relevant US Material Subsidiary and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds
US$30,000,000; or
(c) Any US Material Subsidiary or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganisation or is being terminated,
within the meaning of Title IV of ERISA, and as a result of such
reorganisation or termination the aggregate annual contributions of the
relevant US Material Subsidiary and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganisation or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganisation or
termination occurs by an amount exceeding US$30,000,000.
25.15 Material Adverse Change
Any event or series of events whether related or not occurs which could
reasonably be expected materially and adversely to affect the:
(a) ability of any Obligor to perform any of its payment obligations
under the Financing Documents; or
(b) the business or financial condition of the Company and its
Subsidiaries taken as a whole.
25.16 Acceleration
(a) On and at any time after the occurrence of an Event of Default the Agent
may, and shall if so directed by the Majority Lenders, by notice to the
Company:
(i) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(ii) declare that all or part of the Utilisations, together with accrued
interest, and all other amounts accrued under the Finance Documents
be immediately due and payable, whereupon they shall become
immediately due and payable; and/or
(iii) declare that all or part of the Utilisations be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent on the instructions of the Majority Lenders,
and, for the avoidance of doubt, Letters of Credit shall be repaid, or
repaid on demand (as the case may be), as specified in Clause 6.1
(General).
(b) Notwithstanding the provisions of paragraph (a) above, in the event of an
actual or deemed entry of an order for relief with respect to a US
Material Subsidiary under the Federal Bankruptcy Code, (A) the obligation
of each Lender to make Utilisations shall automatically be terminated and
(B) the Utilisations, all accrued interest and all such other amounts
shall automatically become and be due and payable, without notice, demand
or declaration of any kind all of which are hereby expressly waived by
the Company and each US Material Subsidiary
25.17 Clean-up Period
Until the date after the Clean-up Period ends, the Events of Default set
out in:
(a) Clause 25.3 (Other obligations) as it relates to Clauses 24.2
(Compliance with laws), 24.3 (Negative pledge), 24.8 (Insurance)
and 24.11 (Taxes); and
(b) Clause 25.4 (Misrepresentation) as it relates to Clauses 21.6(b)
(No Default), 21.10 (No proceedings pending or threatened), 21.12
(Environmental laws) and 21.15 (Tax liabilities),
shall not apply to or in respect of any event or circumstance with
respect to (i) the AA businesses acquired under an AA Acquisition
Agreement which exists on the date of the
relevant AA Acquisition or (ii) Kodak or any of its Subsidiaries which
exists on the date Kodak becomes a Subsidiary of the Company (in
accordance with the requirements set out in the definition of Subsidiary)
except that, in each case, this Clause 25.17 shall not apply to any event
or circumstance which the Company could, in all the circumstances,
reasonably be expected to have exercised control to prevent or overcome.
SECTION 9
CHANGES TO PARTIES
26. CHANGES TO THE LENDERS
26.1 Assignments and transfers by the Lenders
Subject to this Clause 26, a Lender (the "Existing Lender") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank, financial institution or other person (the "New
Lender").
26.2 Conditions of assignment or transfer
(a) A partial transfer or assignment by a Lender shall be in a minimum Base
Currency Amount of (Euro) 7,500,000 in relation to Facility A and in a
minimum Base Currency Amount of US$7,500,000 in relation to Facility B or
Facility C unless, in each case:
(i) such transfer or assignment is to an Affiliate of a Lender or to
another existing Lender; or
(ii) an Event of Default is continuing.
For the avoidance of doubt (A) any transfer or assignment of a Facility in
excess of (Euro) 7,500,000 or US$7,500,000, as the case may be, or (B) any
transfer or assignment of the whole of a Facility whether higher or lower
than (Euro) 7,500,000 or US$7,500,000, as the case may be, shall, in each
case, be freely transferable or assignable.
(b) The consent of the Issuing Bank shall be required to a transfer or
assignment of Facility C to the extent specified in Clause 7.2
(Assignments and transfers).
(c) An assignment will only be effective on receipt by the Agent of written
confirmation from the New Lender (in form and substance satisfactory to
the Agent) that the New Lender will assume the same obligations to the
other Finance Parties as it would have been under if it was an Original
Lender and the Agent has recorded the transfer to the New Lender in the
Register (as defined in paragraph (g) below).
(d) A transfer will only be effective if the procedure set out in Clause 26.5
(Procedure for transfer) is complied with.
(e) Any assignment or transfer by an Existing Lender to a New Lender may be
made in respect of one or more of the Facilities.
(f) If:
(i) a Lender assigns or transfers any of its rights or obligations under
the Finance Documents or changes its Facility Office; and
(ii) as a result of circumstances existing at the date the assignment,
transfer or change occurs, an Obligor would be obliged to make a
payment to the New Lender or Lender acting through its new Facility
Office under Clause 15 (Tax gross-up and indemnities) or Clause 16
(Increased Costs),
then the New Lender or Lender acting through its new Facility Office is
only entitled to receive payment under those Clauses to the same extent as
the Existing Lender or Lender acting through its previous Facility Office
would have been if the assignment, transfer or change had not occurred.
(g) Paragraph (f) above and Clause 26.3 (Assignment or transfer fee) shall not
apply to any assignment or transfer made as part of the syndication of the
Facilities on or prior to the Syndication Date.
(h) The Agent shall maintain a book-entry transfer register (for the purposes
of this Clause 26, the "Register") for the purposes of all assignments or
transfers made pursuant to this Clause 26 and shall supply to any other
Party (at that Party's expense) a copy of this Register upon reasonable
written request.
(i) The Agent shall notify the Company promptly and no later than 10 Business
Days following:
(i) any assignment or transfer under this Clause 26; and
(ii) the end of each half of its financial years deliver to the Company a
list of the Lenders and their level of Commitments in each Facility
as at that date.
(j) If any Lender assigns its rights under this Agreement a written instrument
by which such rights are assigned must be notified to any Borrower
incorporated in France by bailiff ("huissier") in accordance with the
provisions of Article 1690 of the French Civil Code at the cost of the
Lender concerned.
26.3 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect pay to the Agent (for its own account) a fee of (Euro) 2000.
26.4 Limitation of responsibility of Existing Lenders
(a) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender
for:
(i) the legality, validity, effectiveness, adequacy or enforceability of
the Finance Documents or any other documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its obligations
under the Finance Documents or any other documents; or
(iv) the accuracy of any statements (whether written or oral) made in or
in connection with any Finance Document or any other document, and
any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and affairs
of each Obligor and its related entities in connection with its
participation in this Agreement and has not relied exclusively on
any information provided to it by the Existing Lender in connection
with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities whilst
any amount is or may be outstanding under the Finance Documents or
any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause 26; or
(ii) support any losses directly or indirectly incurred by the New Lender
by reason of the non-performance by any Obligor of its obligations
under the Finance Documents or otherwise.
26.5 Procedure for transfer
(a) Subject to the conditions set out in Clause 26.2 (Conditions of assignment
or transfer) a transfer is effected in accordance with paragraph (b) below
when the Agent executes an otherwise duly completed Transfer Certificate
delivered to it by the Existing Lender and the New Lender and the Agent
has recorded the transfer to the New Lender in the Register. The Agent
shall, as soon as reasonably practicable after receipt by it of a duly
completed Transfer Certificate appearing on its face to comply with the
terms of this Agreement delivered in accordance with the terms of this
Agreement, execute that Transfer Certificate on behalf of the other
Finance Parties and the Obligors as well as itself. Each Finance Party and
each Obligor irrevocably authorises the Agent to sign such a Transfer
Certificate on its behalf.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing Lender
seeks to transfer by novation its rights and obligations under the
Finance Documents each of the Obligors and the Existing Lender shall
be released from further obligations towards one another under the
Finance Documents and their respective rights against one another
shall be cancelled (being the "Discharged Rights and Obligations");
(ii) each of the Obligors and the New Lender shall assume obligations
towards one another and/or acquire rights against one another which
differ from the Discharged Rights and Obligations only insofar as
that Obligor and the New Lender have assumed and/or acquired the
same in place of that Obligor and the Existing Lender;
(iii) the Agent, the Arranger, the New Lender and other Lenders shall
acquire the same rights and assume the same obligations between
themselves as they would have acquired and assumed had the New
Lender been an Original Lender with the rights and/or obligations
acquired or assumed by it as a result of the transfer and to that
extent the Agent, the Arranger and the Existing Lender shall each be
released from further obligations to each other under this
Agreement; and
(iv) the New Lender shall become a Party as a "Lender".
(c) For the avoidance of doubt, the Parties agree that any novation effected
in accordance with this Clause shall constitute a novation (novation)
within the meaning of Article 1271 et seq. of the French Civil Code,
provided that notwithstanding any such novation, all the rights of the
Finance Parties against any Guarantor shall be maintained.
26.6 Syndication Agreements
A Lender may transfer any of its rights and obligations under this
Agreement pursuant to a Syndication Agreement and the Obligors agree that
they shall at the request of the Agent execute a Syndication Agreement.
26.7 Disclosure of information and confidentiality
(a) Each Finance Party on it becoming a Party to this Agreement confirms to
the Company that it shall keep confidential and not disclose any
information (other than such information which is already in the public
domain) which it has received in connection with the Facilities or
transactions contemplated under this Agreement ("Confidential
Information") except with the prior written consent of the Company and
except that a Finance Party may disclose the provisions of (or a copy of)
this Agreement or Confidential Information as follows:
(i) to such of its officers, directors, employees and professional
advisers (on a "need to know" and confidential basis for the
purposes of the Facilities but without prejudicing its ordinary
internal operations);
(ii) in the case of the Agent or Issuing Bank, to the extent it is
required or obliged to pass on information in accordance with its
obligations under the Finance Documents;
(iii) to anyone else to the extent required by law or regulation; or
(iv) to the extent necessary, to any applicable governmental or other
regulatory authority,
provided that in the case of (iii) and (iv) above, the relevant Lender
shall, to the extent permitted by law, give the Company reasonable prior
notice of any intended disclosure to the extent practicable to give prior
notice (or, if not practicable, promptly after the disclosure) and, if the
Company requests, take into account its comments. This Clause shall
continue to apply to a Finance Party for the period of 3 years after it
ceases to be a Finance Party under this Agreement.
(b) Notwithstanding the provisions of paragraph (a) above, a Lender may
disclose to any of its Affiliates and any other person:
(i) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(ii) with (or through) whom that Lender enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to,
this Agreement or any Obligor; or
(iii) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Finance Documents as
that Lender shall consider appropriate for the purposes of the Facilities
if, in relation to paragraphs (i) and (ii) above, the person to whom the
information is to be given has entered into a Confidentiality Undertaking.
(c) The terms and conditions of the Finance Documents are not to be disclosed
by the Company to any person who is not a Finance Party, except with the
prior written consent of the Arranger and except that the Company may
disclose the terms and conditions or a copy of any of them:
(i) to its advisers (on a "need to know" and confidential basis) for the
purpose of the AA Acquisitions or Kodak Acquisition;
(ii) to the Special Committee and their advisers (on a "need to know" and
confidential basis);
(iii) to anyone else to the extent required by law, regulation or any
applicable stock exchange; or
(iv) to the extent necessary, to any applicable governmental or other
regulatory authority,
provided that (except for disclosure to those advisers referred to above)
the Company shall, to the extent permitted by law, give the Arranger
reasonable prior notice of any intended disclosure to the extent
practicable to give prior notice (or, if not practicable, promptly after
the disclosure) and, if the Arranger requests, take into account its
comments.
27. CHANGES TO THE OBLIGORS
27.1 Assignments and transfer by Obligors
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
27.2 Additional Borrowers
(a) The Company may request that any of its wholly owned Subsidiaries and/or,
once the same have become a Subsidiary (in accordance with the
requirements set out in the definition thereof) of the Company, Kodak and
SMO becomes an Additional Borrower. That Subsidiary shall become an
Additional Borrower if:
(i) (A) it is Kodak or SMO; or
(B) it is an AA Bidco or Kodak Bidco incorporated in France or the
United States provided that there are no more than 4 AA Bidco's
and 1 Kodak Bidco, in aggregate, in existence; or
(C) all the Lenders otherwise approve the addition of that
Subsidiary as a Borrower and the Facilities in respect of which
it is to be a Borrower;
(ii) the Company delivers to the Agent a duly completed and executed
Accession Letter;
(iii) the Company confirms that no Default is continuing or would occur as
a result of that Subsidiary becoming an Additional Borrower; and
(iv) the Agent has received all of the documents and other evidence
listed in Part II of Schedule 2 (Conditions Precedent) in relation
to that Additional Borrower, each in form and substance satisfactory
to the Agent.
(b) The Agent shall notify the Company and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to it)
all the documents and other evidence listed in Part II of Schedule 2
(Conditions precedent).
27.3 Additional Guarantors
(a) Each Subsidiary (other than Kodak and SMO) which becomes an Additional
Borrower shall at the same time become an Additional Guarantor.
(b) SMO shall become an Additional Guarantor and the SMO Guarantee shall be
given, notwithstanding that SMO may not be an Additional Borrower, if:
(i) the Company wishes to exercise the extension option set out in Clause
5.5 (Extension of Facility A1 and Facility A2) in respect of Facility
A1 and/or Facility A2 in an amount, in aggregate, in excess of
(Euro) 250,000,000; and
(ii) the Kodak Existing Facility and/or SMO Credit Agreement remain
outstanding in whole or in part and, if in part, to the extent that
more than (Euro) 400,000,000 (or its equivalent) in aggregate of
Financial Indebtedness has been incurred and is outstanding by
members of the Group (other than the Company).
(c) The Company may request that any other of its wholly owned Subsidiaries
become an Additional Guarantor.
(d) Each Subsidiary (including, for the avoidance of doubt, SMO) shall become
an Additional Guarantor when:
(i) the Company delivers to the Agent a duly completed and executed
Accession Letter; and
(ii) the Agent has received all of the documents and other evidence listed
in Part II of Schedule 2 (Conditions precedent) in relation to that
Additional Guarantor, each in form and substance satisfactory to the
Agent.
(e) The Agent shall notify the Company and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to it)
all the documents and other evidence listed in Part II of Schedule 2
(Conditions precedent).
27.4 Repetition of Representations
Delivery of an Accession Letter constitutes confirmation by the relevant
Subsidiary that the Repeating Representations are true and correct in
relation to it as at the date of delivery as if made by reference to the
facts and circumstances then existing.
SECTION 10
THE FINANCE PARTIES
28. ROLE OF THE AGENT AND THE ARRANGER
28.1 Appointment of the Agent
(a) Each of the Arranger and the Lenders appoints the Agent to act as its
agent under and in connection with the Finance Documents.
(b) Each of the Arranger and the Lenders authorises the Agent to exercise the
rights, powers, authorities and discretions specifically given to the
Agent under or in connection with the Finance Documents together with any
other incidental rights, powers, authorities and discretions.
28.2 Duties of the Agent
(a) The Agent shall promptly forward to a Party the original or a copy of any
document which is delivered to the Agent for that Party by any other
Party.
(b) If the Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a
Default, it shall promptly notify the Lenders.
(c) The Agent shall promptly notify the Lenders of any Default arising under
Clause 25.1 (Non-payment).
(d) The Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
28.3 Role of the Arranger
Except as specifically provided in the Finance Documents, the Arranger has
no obligations of any kind to any other Party under or in connection with
any Finance Document.
28.4 No fiduciary duties
(a) Nothing in this Agreement constitutes the Agent or the Arranger as a
trustee or fiduciary of any other person.
(b) Neither the Agent nor the Arranger shall be bound to account to any Lender
for any sum or the profit element of any sum received by it for its own
account.
28.5 Business with the Group
The Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member
of the Group.
28.6 Rights and discretions of the Agent
(a) The Agent may rely on:
(i) any representation, notice or document believed by it to be genuine,
correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or employee of
any person regarding any matters which may reasonably be assumed to
be within his knowledge or within his power to verify.
(b) The Agent may assume (unless it has received notice to the contrary in its
capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge of a Default
arising under Clause 25.1 (Non-payment));
(ii) any right, power, authority or discretion vested in any Party or the
Majority Lenders has not been exercised; and
(iii) any notice or request made by the Company (other than a Utilisation
Request or Selection Notice) is made on behalf of and with the
consent and knowledge of all the Obligors.
(c) The Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other experts.
(d) The Agent may act in relation to the Finance Documents through its
personnel and agents.
28.7 Majority Lenders' instructions
(a) Unless a contrary indication appears in a Finance Document, the Agent
shall (a) act in accordance with any instructions given to it by the
Majority Lenders (or, if so instructed by the Majority Lenders, refrain
from acting or exercising any right, power, authority or discretion vested
in it as Agent) and (b) not be liable for any act (or omission) if it acts
(or refrains from taking any action) in accordance with such an
instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all the
Lenders and the Arranger.
(c) The Agent may refrain from acting in accordance with the instructions of
the Majority Lenders (or, if appropriate, the Lenders) until it has
received such security as it may require for any cost, loss or liability
(together with any associated VAT) which it may incur in complying with
the instructions.
(d) In the absence of instructions from the Majority Lenders (or, if
appropriate, the Lenders), the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the Lenders.
(e) The Agent is not authorised to act on behalf of a Lender (without first
obtaining that Lender's consent) in any legal or arbitration proceedings
relating to any Finance Document.
28.8 Responsibility for documentation
Neither the Agent nor the Arranger:
(a) is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, the
Arranger, an Obligor or any other person given in or in connection
with any Finance Document or the Information Memorandum; or
(b) is responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document.
28.9 Exclusion of liability
(a) Without limiting paragraph (b) below, 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.
(b) No Party may take any proceedings against any officer, employee or agent
of the Agent in respect of any claim it might have against the Agent or
in respect of any act or omission of any kind by that officer, employee
or agent in relation to any Finance Document and any officer, employee or
agent of the Agent may rely on this Clause.
(c) The Agent will not be liable for any delay (or any related consequences)
in crediting an account with an amount required under the Finance
Documents to be paid by the Agent if the Agent has taken all necessary
steps as soon as reasonably practicable to comply with the regulations or
operating procedures of any recognised clearing or settlement system used
by the Agent for that purpose.
28.10 Lenders' indemnity to the Agent
(a) Each Lender shall (in proportion to its share of the Total Commitments
(subject to paragraph (b) below) or, if the Total Commitments are then
zero, to its share of the Total Commitments immediately prior to their
reduction to zero) indemnify the Agent, within three Business Days of
demand, against any cost, loss or liability incurred by the Agent
(otherwise than by reason of the Agent's gross negligence or wilful
misconduct) in acting as Agent under the Finance Documents (unless the
Agent has been reimbursed by an Obligor pursuant to a Finance Document).
(b) For the purposes of calculating the Total Commitments for paragraph (a)
above, each Facility B Commitment and Facility C Commitment of a Lender
shall be taken into account in euro at the Agent's Spot Rate of Exchange
for the purchase of US Dollars with euro on the date (as determined by
the Agent) such determination is required to be made.
28.11 Resignation of the Agent
(a) The Agent may resign and appoint one of its Affiliates acting through an
office in Paris or the United Kingdom as successor by giving notice to
the Lenders and the Company.
(b) Alternatively the Agent may resign by giving notice to the Lenders and
the Company, in which case the Majority Lenders (after close consultation
with the Company) may appoint a successor Agent.
(c) If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph (b) above within 30 days after notice of
resignation was given, the Agent (after close consultation with the
Company) may appoint a successor Agent (acting through an office in Paris
or the United Kingdom).
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such assistance as
the successor Agent may reasonably request for the purposes of performing
its functions as Agent under the Finance Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause 28. Its
successor and each of the other Parties shall have the same rights and
obligations amongst themselves as they would have had if such successor
had been an original Party.
(g) After consultation with the Company, the Majority Lenders may, by notice
to the Agent, require it to resign in accordance with paragraph (b)
above. In this event, the Agent shall resign in accordance with paragraph
(b) above.
(h) The Company may request that the Agent should resign and put such
resignation to a vote of the Lenders. The Lenders shall consider the
grounds of the Company's request and any submissions of the Agent and,
within 10 Business Days of receiving notice of such request from the
Company through the Agent, the Lenders shall (acting reasonably) vote on
whether the Agent should resign or not. If the Majority Lenders vote to
remove the Agent, the Agent shall resign in accordance with paragraph (b)
above.
28.12 Confidentiality
(a) In acting as agent for the Finance Parties, the Agent shall be regarded
as acting through its agency division which shall be treated as a
separate entity from any other of its divisions or departments.
(b) If information is received by another division or department of the
Agent, it may be treated as confidential to that division or department
and the Agent shall not be deemed to have notice of it.
(c) Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor the Arranger are obliged to disclose to
any other person (i) any confidential information or (ii) any other
information if the disclosure would or might in its reasonable opinion
constitute a breach of any law or a breach of a fiduciary duty.
28.13 Relationship with the Lenders
(a) The Agent may treat each Lender as a Lender, entitled to payments under
this Agreement and acting through its Facility Office unless it has
received not less than five Business Days prior notice from that Lender
to the contrary in accordance with the terms of this Agreement.
(b) Each Lender shall supply the Agent with any information required by the
Agent in order to calculate the Mandatory Cost in accordance with
Schedule 4 (Mandatory Cost formulae).
28.14 Credit appraisal by the Lenders
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms to the Agent and the Arranger that it has been, and
will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection
with any Finance Document including but not limited to:
(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or
in connection with any Finance Document;
(c) whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or
in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document;
and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent, any
Party or by any other person under or in connection with any Finance
Document, the transactions contemplated by the Finance Documents or
any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance
Document.
28.15 Lenders' tax status confirmation
(a) Subject to paragraph (b) below, each Lender confirms in favour of the
Agents on the date of this Agreement or, in the case of a Lender which
becomes a Party pursuant to a transfer or assignment, on the date on
which the relevant transfer or assignment becomes effective that either:
(a) it is not resident for tax purposes in the United Kingdom and is
beneficially entitled to its share of the Loan and associated
interest; or
(b) it is a bank as defined for the purposes of section 349 of the Taxes
Act and is beneficially entitled to its share of the Loan and
associated interest,
and each Lender shall promptly notify the Agent if there is any change in
its position from that set out above.
(b) Paragraph (a) above shall only apply if the Agent is acting out of an
office in the United Kingdom.
28.16 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Agent shall (in
consultation with the Company) appoint another Lender or an Affiliate of
a Lender to replace that Reference Bank.
29. Conduct of business by the Finance Parties
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit, relief,
remission or repayment available to it or the extent, order and
manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.
30. Sharing among the Lenders
30.1 Payments to Lenders
If a Lender (a "Recovering Lender") receives or recovers any amount from
an Obligor other than in accordance with Clause 31 (Payment mechanics)
and applies that amount to a payment due under the Finance Documents
then:
(a) the Recovering Lender shall, within three Business Days, notify
details of the receipt or recovery to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Lender would have been paid
had the receipt or recovery been received or made by the Agent and
distributed in accordance with Clause 31 (Payment mechanics),
without taking account of any Tax which would be imposed on the
Agent in relation to the receipt, recovery or distribution; and
(c) the Recovering Lender shall, within three Business Days of demand
by the Agent, pay to the Agent an amount (the "Sharing Payment")
equal to such receipt or recovery less any amount which the Agent
determines may be retained by the Recovering Lender as its share
of any payment to be made, in accordance with Clause 31.5 (Partial
payments).
30.2 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 Lender) in accordance with Clause 31.5 (Partial
payments).
30.3 Recovering Lender's rights
(a) On a distribution by the Agent under Clause 30.2 (Redistribution of
payments), the Recovering Lender will be subrogated to the rights of the
Finance Parties which have shared in the redistribution.
(b) If and to the extent that the Recovering Lender is not able to rely on its
rights under paragraph (a) above, the relevant Obligor shall be liable to
the Recovering Lender for a debt equal to the Sharing Payment which is
immediately due and payable.
30.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering
Lender becomes repayable and is repaid by that Recovering Lender, then:
(a) each Lender which has received a share of the relevant Sharing
Payment pursuant to Clause 30.2 (Redistribution of payments) shall,
upon request of the Agent, pay to the Agent for account of that
Recovering Lender an amount equal to its share of the Sharing
Payment (together with an amount as is necessary to reimburse that
Recovering Lender for its proportion of any interest on the Sharing
Payment which that Recovering Lender is required to pay); and
(b) that Recovering Lender's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable to the reimbursing Lender for the amount so reimbursed.
30.5 Exceptions
(a) This Clause 30 shall not apply to the extent that the Recovering Lender
would not, after making any payment pursuant to this Clause, have a valid
and enforceable claim against the relevant Obligor.
(b) A Recovering Lender is not obliged to share with any other Lender any
amount which the Recovering Lender has received or recovered as a result
of taking legal or arbitration proceedings, if:
(i) it notified the other Lenders of the legal or arbitration
proceedings; and
(ii) the other Lender had an opportunity to participate in those legal
or arbitration proceedings but did not do so as soon as reasonably
practicable having received notice or did not take separate legal
or arbitration proceedings.
SECTION 11
ADMINISTRATION
31. Payment mechanics
31.1 Payments to the Agent
(a) On each date on which an Obligor or a Lender is required to make a payment
under a Finance Document, that Obligor or Lender shall make the same
available to the Agent (unless a contrary indication appears in a Finance
Document) for value on the due date at the time and in such funds
specified by the Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal financial centre of
the country of that currency (or, in relation to euro, in the principal
financial centre in a Participating Member State or London) with such bank
as the Agent specifies.
31.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for another
Party shall, subject to Clause 31.3 (Distributions to an Obligor) and
Clause 31.4 (Clawback), be made available by the Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account
of its Facility Office), to such account as that Party may notify to the
Agent by not less than five Business Days' notice with a bank in the
principal financial centre of the country of that currency (or, in
relation to euro, in the principal financial centre of a Participating
Member State or London).
31.3 Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with
Clause 32 (Set-off)) apply any amount received by it for that Obligor in
or towards payment (on the date and in the currency and funds of receipt)
of any amount due from that Obligor under the Finance Documents or in or
towards purchase of any amount of any currency to be so applied.
31.4 Clawback
(a) Where a sum is to be paid to the Agent under the Finance Documents for
another Party, the Agent is not obliged to pay that sum to that other
Party (or to enter into or perform any related exchange contract) until it
has been able to establish to its satisfaction that it has actually
received that sum.
(b) If the Agent pays an amount to another Party and it proves to be the case
that the Agent had not actually received that amount, then the Party to
whom that amount (or the proceeds of any related exchange contract) was
paid by the Agent shall on demand refund the same to the Agent together
with interest on that amount from the date of payment to the date of
receipt by the Agent, calculated by the Agent to reflect its cost of
funds.
31.5 Partial payments
(a) If the Agent receives a payment that is insufficient to discharge all the
amounts then due and payable by an Obligor under the Finance Documents,
the Agent shall apply that payment towards the obligations of that Obligor
under the Finance Documents in the following order:
(i) first, in or towards payment pro rata of any unpaid fees, costs and
expenses of the Agent or the Arranger under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued interest or
commission due but unpaid under this Agreement;
(iii) thirdly, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary the order
set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by an
Obligor.
31.6 No set-off by Obligors
All payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.
31.7 Business Days
(a) Any payment which is due to be made on a day that is not a Business Day
shall be made on the next Business Day in the same calendar month (if
there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or an
Unpaid Sum under this Agreement interest is payable on the principal or
Unpaid Sum at the rate payable on the original due date.
31.8 Currency of account
(a) Subject to paragraphs (b) to (e) below, the Base Currency relative to a
Facility is the currency of account and payment for any sum due from an
Obligor under any Finance Document.
(b) A repayment of a Utilisation or Unpaid Sum or a part of a Utilisation or
Unpaid Sum shall be made in the currency in which that Utilisation or
Unpaid Sum is denominated on its due date.
(c) Each payment of interest shall be made in the currency in which the sum in
respect of which the interest is payable was denominated when that
interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are incurred.
(e) Any amount expressed to be payable in a currency other than the Base
Currency of a Facility shall be paid in that other currency.
31.9 Change of currency
(a) Subject to Clause 4.3(b) (Conditions relating to Optional Currencies),
unless otherwise prohibited by law, if more than one currency or currency
unit are at the same time recognised by the central bank of any country as
the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that country
shall be translated into, or paid in,
the currency or currency unit of that country designated by the Agent
(after consultation with the Company); and
(ii) any translation from one currency or currency unit to another shall
be at the official rate of exchange recognised by the central bank
for the conversion of that currency or currency unit into the other,
rounded up or down by the Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this Agreement will, to
the extent the Agent (acting reasonably and after consultation with the
Company) specifies to be necessary, be amended to comply with any
generally accepted conventions and market practice in the Relevant
Interbank Market and otherwise to reflect the change in currency.
32. Set-off
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
33. Notices
33.1 Communications in writing
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax or letter.
33.2 Addresses
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection
with the Finance Documents is:
(a) in the case of the Company, that identified with its name below;
(b) in the case of each Lender, that notified in writing to the Agent on
or prior to the date on which it becomes a Party; and
(c) in the case of the Agent, that identified with its name below,
or any substitute address or fax number or department or officer as the
Party may notify to the Agent (or the Agent may notify to the other
Parties, if a change is made by the Agent) by not less than five Business
Days' notice.
33.3 Delivery
(a) Any communication or document made or delivered by one person to another
under or in connection with the Finance Documents will only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant address
or five Business Days after being deposited in the post postage
prepaid in an envelope addressed to it at that address,
and, if a particular department or officer is specified as part of its
address details provided under Clause 33.2 (Addresses), if addressed to
that department or officer.
(b) Any communication or document to be made or delivered to the Agent will be
effective only when actually received by the Agent and then only if it is
expressly marked for the attention of the department or officer identified
with the Agent's signature below (or any substitute department or officer
as the Agent shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the Agent.
(d) Any communication or document made or delivered to the Company in
accordance with this Clause will be deemed to have been made or delivered
to each of the Obligors.
33.4 Notification of address and fax number
Promptly upon receipt of notification of an address and fax number or
change of address and fax number pursuant to Clause 33.2 (Addresses) or
changing its own address or fax number, the Agent shall notify the other
Parties.
33.5 Electronic communication
(a) Any communication to be made between the Parties under or in connection
with the Finance Documents (other than (aa) in the case of the Company,
delivery of any Utilisation Request, Selection Notice, any request to
extend the Termination Date relating to Facility A1 or Facility A2 under
Clause 5.5 (Extension of Facility A1 and Facility A2), a certificate in
accordance with Clause 22.2 (Compliance Certificates) or any request for
an amendment to or waiver of this Agreement, (bb) in the case of any other
Borrower, delivery of any Utilisation Request or (cc) in the case of any
other Obligor, delivery of any request for an amendment to or waiver of
this Agreement) may be made by electronic mail or other electronic means
and the Parties shall notify each other (in particular, the Agent) in
writing of their electronic mail address and/or any other information
required to enable the sending and receipt of information by that means.
(b) Each Party shall promptly notify each other Party (in particular, the
Agent) of any change to their electronic mail address or any other such
information supplied by them.
(c) Any electronic communication made:
(i) by the Agent or Issuing Bank, as the case may be, to another Party
will be effective only when actually received by the relevant
recipient; and
(ii) by a Lender or an Obligor to the Agent or Issuing Bank, as the case
may be, will be effective only when actually received by the Agent
or Issuing Bank, as the case may be, and then only if it is
addressed in such a manner as the Agent or Issuing Bank, as the case
may be, shall specify to that Lender or, as the case may be, that
Obligor for this purpose.
(d) Each Party shall notify any affected parties promptly upon becoming aware
that its electronic mail system or other electronic means of communication
cannot be used due to technical failure (and that failure is continuing
for more than 7 hours). Until that Party has notified the other affected
parties that the failure has been remedied, all notices between those
parties shall be sent by fax or letter in accordance with this Clause 33
(Notices).
(e) In the case of the notification of rates of interest by the Agent pursuant
to Clause 11.5 (Notification of rates of interest) and in the case of the
delivery of any document by the Agent pursuant to paragraph (a) of Clause
28.2 (Duties of the Agent), the Agent may refer a Lender or an Obligor (by
fax, letter or e-mail) to a web site and to the location of the relevant
information on such web site in discharge of such notification or delivery
obligation.
33.6 English language
(a) Any notice given under or in connection with any Finance Document must be
in English.
(b) All other documents provided under or in connection with any Finance
Document must be:
(i) in French or English; or
(ii) if not in French or English, and if so required by the Agent (acting
reasonably), accompanied by a certified English translation and, in
this case, the English translation will prevail unless the document
is a constitutional, statutory or other official document.
34. CALCULATIONS AND CERTIFICATES
34.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
34.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
34.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 360 days or, in any case where the practice
in the Relevant Interbank Market differs, in accordance with that market
practice.
35. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
36. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise or the exercise of any
other right or remedy. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any rights or remedies provided by
law.
37. AMENDMENTS AND WAIVERS
37.1 Required consents
(a) Subject to Clause 37.2 (Exceptions) any term of the Finance Documents may
be amended or waived only with the consent of the Majority Lenders and the
Obligors and any such amendment or waiver will be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any amendment or
waiver permitted by this Clause.
(c) The Company may effect, on behalf of any Obligor, any amendment or waiver
permitted by this Clause.
37.2 Exceptions
(a) An amendment or waiver that has the effect of changing or which relates to:
(i) the definition of "Majority Lenders" in Clause 1.1 (Definitions);
(ii) except pursuant to Clause 5.5 (Extension of Facility A1 and Facility
A2), an extension to the date of payment of any amount under the
Finance Documents;
(iii) a reduction in the Margin or the amount of any payment of principal,
interest, fees or commission payable;
(iv) an increase in Commitment;
(v) a change to the Borrowers or Guarantors other than in accordance
with Clause 27 (Changes to the Obligors);
(vi) any provision which expressly requires the consent of all the
Lenders;
(vii) Clause 2.2 (Lenders' rights and obligations), Clause 26 (Changes to
the Lenders), Clause 30 (Sharing among the Lenders) or this Clause
37;
(viii) any extension of an Availability Period; or
(ix) the guarantee or indemnity of any Obligor, shall not be made without
the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations of the
Agent, the Issuing Bank or the Arranger may not be effected without the
consent of the Agent, the Issuing Bank or the Arranger respectively.
38. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on a
single copy of the Finance Document.
SECTION 12
GOVERNING LAW AND ENFORCEMENT
39. GOVERNING LAW
This Agreement is governed by English law.
40. ENFORCEMENT
40.1 Jurisdiction of English courts
(a) The courts of England have jurisdiction to settle any dispute arising out
of or in connection with this Agreement (including a dispute regarding the
existence, validity or termination of this Agreement) (a "Dispute").
(b) The Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue to
the contrary.
(c) This Clause 40.1 is for the benefit of the Finance Parties only. As a
result, no Finance Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To the extent
allowed by law, the Finance Parties may take concurrent proceedings in any
number of jurisdictions.
40.2 Service of process
Without prejudice to any other mode of service allowed under any relevant
law, each Obligor (other than an Obligor incorporated in England and
Wales):
(a) irrevocably appoints Sodexho Holdings Limited as its agent for service
of process in relation to any proceedings before the English courts in
connection with any Finance Document; and
(b) agrees that failure by a process agent to notify the relevant Obligor
of the process will not invalidate the proceedings concerned.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
SCHEDULE 1
The Original Lenders
Name of Original Facility A1 Facility A2 Facility B Facility C
Lender Commitment Commitment Commitment Commitment
Citibank International (Euro)223,333,333.34 (Euro) 350,000,000 US$310,000,000 US$ 50,000,000
plc
(for Utilisations other
than to a US Person)
Citicorp USA, Inc.
(for Utilisations to a
US Person)
Goldman Sachs (Euro)223,333,333.33 (Euro) 350,000,000 US$310,000,000 US$ 50,000,000
International Bank
Societe Generale (Euro)223,333,333.33 (Euro) 350,000,000 US$310,000,000 US$ 50,000,000
-------------------- ------------------- -------------- --------------
(Euro) 670,000,000 (Euro)1,050,000,000 US$930,000,000 US$150,000,000
SCHEDULE 2
Conditions precedent
PART I A
Conditions Precedent to Initial Utilisation
1. The Company
(a) A copy of the constitutional documents of the Company.
(b) A copy of a resolution of the board of directors of the Company:
(i) approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party and resolving that it
execute the Finance Documents to which it is a party demonstrating
that the provisions of Art. L225-35 et seq. of the French Commercial
Code have been respected;
(ii) authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign
and/or despatch all documents and notices (including, if relevant,
any Utilisation Request and Selection Notice) to be signed and/or
despatched by it under or in connection with the Finance Documents
to which it is a party.
(c) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(d) A certificate of an authorised signatory of the Company dated no earlier
than the date of this Agreement certifying that each copy document relating
to it specified in this Part IA of Schedule 2 is correct, complete and in
full force and effect.
2. Legal opinions
(a) A legal opinion of Linklaters, London, legal advisers to the Arranger and
the Agent in England, substantially in the form distributed to the Original
Lenders prior to signing this Agreement.
(b) A legal opinion of Linklaters, Paris, legal advisers to the Arranger and
the Agent in France, substantially in the form distributed to the Original
Lenders prior to signing this Agreement.
(c) A legal opinion of Clifford Chance, legal advisers to the Company as to
French law, substantially in the form distributed to the Original Lenders
prior to signing this Agreement
3. Other documents and evidence
(a) Evidence that any process agent referred to in Clause 40.2 (Service of
process) has accepted its appointment.
(b) Evidence that the fees, costs and expenses then due from the Company
pursuant to Clause 14 (Fees) and Clause 19 (Costs and expenses) have been
paid or will be paid by the first Utilisation Date.
PART IB
Conditions Precedent to Utilisation of Facility A1
(a) (i) A copy of each AA Acquisition Agreement relevant to the AA Acquisition
to be made with the proceeds of Utilisation under Facility A1; and
(ii) written confirmation that all conditions set out in such AA
Acquisition Agreement have been satisfied by the Company and/or waived
by the relevant member of the AA Group in full.
(b) A certificate of the Company (signed by a director) confirming that the
relevant time limit for the European Commission to consider the proposed
acquisition under the appropriate AA Acquisition Agreement has expired
without a decision having been issued.
(c) Evidence that all applicable waiting periods (including extensions thereof)
under the United States Hart-Scott-Rodino Antitrust Improvements Act of
1976 and the regulations made under the Act have expired, lapsed or been
terminated in respect of the relevant proposed acquisition under the AA
Acquisition Agreements.
PART IC
Conditions Precedent to Utilisation of Facility A2
(a) A copy of any Tender Offer Statement, any other document filed with the
Securities and Exchange Commission in connection with the Offer and any
draft or definitive merger agreement related to the Offer (in the case of
the latter, to the extent available at the time of such Utilisation).
(b) Evidence that all applicable waiting periods (including extensions thereof)
under the United States Hart-Scott-Rodino Antitrust Improvements Act of
1976 and the regulations made under the Act have expired, lapsed or been
terminated in respect of the Kodak Acquisition.
(c) Following the issue of a formal press release of the Special Committee
giving a Negative Committee Announcement and prior to the Company launching
a Non-Recommended Offer, a notice from the Company informing the Arranger
as to the reason (to the best of its knowledge and belief) for the Negative
Committee Announcement.
(d) A copy of an opinion of Davis Polk & Wardwell relating to compliance with
United States securities laws addressed to the Company and substantially in
the form distributed to the Original Lenders prior to the date of this
Agreement.
(e) A legal opinion of Clifford Chance confirming that the use, structuring and
terms of the Finance Documents will not, amongst other things, cause a
breach of Regulation U.
(f) A legal opinion of Davis Polk & Wardwell substanitally in the form
distributed to the Original Lenders prior to the date of this Agreement.
PART II
Conditions precedent required to be delivered by an Additional Obligor
1. An Accession Letter, duly executed by the Additional Obligor and the
Company.
2. A copy of the constitutional documents of the Additional Obligor.
3. A copy of a resolution of the board of directors of the Additional Obligor:
(a) approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it
execute the Accession Letter and, in the case of a French Obligor,
demonstrating that the provisions of Art L225-35 at seq. of the French
Commercial Code have been respected;
(b) authorising a specified person or persons to execute the Accession
Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices (including, in
relation to an Additional Borrower, any Utilisation Request or
Selection Notice) to be signed and/or despatched by it under or in
connection with the Finance Documents.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
5. A certificate of an authorised signatory of the Additional Obligor
certifying that each copy document listed in this Part II of Schedule 2 is
correct, complete and in full force and effect as at a date no earlier than
the date of the Accession Letter.
6. A legal opinion of Linklaters, London, legal advisers to the Arranger and
the Agent in England.
7. A legal opinion of Linklaters, Paris, or as the case may be, Linklaters,
New York, legal advisers to the Arranger and the Agent in Paris and New
York and Delaware respectively.
8. A legal opinion of Clifford Chance, Paris, or as the case may be, Davis
Polk & Wardwell, legal advisers to the Company as to (i) French law and
(ii) United States and federal law and Delaware law respectively.
9. In relation to the accession of the AA Bidco which is a US company, a legal
opinion of Clifford Chance, legal advisers to the Company as to the AA
Acquisition, that such AA Bidco is not required to register as an
"investment company" as such term is defined in the US Investment Companies
Act of 1940, as amended.
10. If the Additional Obligor is incorporated in a jurisdiction other than
Paris or New York and/or Delaware, a legal opinion of the legal advisers to
(a) the Arranger and the Agent and/or (b) the Company (having regard to
market practice on such matters in the relevant jurisdiction) in the
jurisdiction in which the Additional Obligor is incorporated.
11. If the proposed Additional Obligor is incorporated in a jurisdiction other
than England and Wales, evidence that the process agent specified in Clause
40.2 (Service of process), if not an Obligor, has accepted its appointment
in relation to the proposed Additional Obligor.
SCHEDULE 3
Requests
PART I
Utilisation Request
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
Sodexho Alliance, S.A. - (Euro) 1,720,000,000 and US$1,080,000,000 Facility
Agreement dated [________] April 2001 (the "Facility Agreement")
1. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [___________________] (or, if that is not a
Business Day, the next Business Day)
Facility to be utilised: [Facility A1]/[Facility A2]/[Facility
B]/[Facility C]*
Currency of Loan: [___________________]
Amount: [___________________] or, if less, the
Available Facility
Interest Period: [___________________]
2. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
3. The proceeds of this Loan should be credited to [account].
4. This Utilisation Request is irrevocable.
Yours faithfully
_______________________________________
authorised signatory for
[name of relevant Borrower]
________________________________________________________________________________
* Delete as appropriate.
PART II
Selection Notice
Applicable to a Facility A Loan or Facility B Loan
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
Sodexho Alliance, S.A. - (Euro) 1,720,000,000 and US$1,080,000,000 Facility
Agreement dated [________] April 2001 (the "Facility Agreement")
1. We refer to the following [Facility A1 Loan[s]/Facility A2 Loan[s]/Facility
B Loan[s]] in [identify currency] with an Interest Period ending on
[___________________].*
2. [We request that the above [Facility A Loan[s]/Facility B Loan[s]] be
divided into [___________________] [Facility A1 Loans/Facility A2
Loan[s]/Facility B Loan[s]] with the following Interest Periods:]**
or
[We request that the next Interest Period for the above [Facility A
Loan[s]/Facility A2 Loan[s]/Facility B Loan[s]] is
[___________________]].***
3. This Selection Notice is irrevocable.
Yours faithfully
_______________________________________
authorised signatory for
[the Company on behalf of]
[name of relevant Borrower]
________________________________________________________________________________
* Insert details of all Facility A Loans in the same currency which have an
Interest Period ending on the same date.
** Use this option if division of Loans is requested.
*** Use this option if sub-division is not required.
PART III
Letters of Credit
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
Sodexho Alliance, S.A. - (Euro) 1,720,000,000 and US$1,080,000,000 Facility
Agreement dated [________] April 2001 (the "Facility Agreement")
1. We wish to arrange for a Letter of Credit to be issued by the Issuing Bank
on the following terms:
Proposed Utilisation Date: [_____________](or, if that is
not a Business Day, the next
Business Day)
Facility to be utilised: Facility C
Currency of Letter of Credit: [_____________]
Amount: [_____________] or, if less, the
Available Facility
Term: [_____________]
2. We confirm that each condition specified in Clause 6.6(b) (Issue of Letters
of Credit) is satisfied on the date of this Utilisation Request.
3. We attach a copy of the proposed Letter of Credit.
4. This Utilisation Request is irrevocable.
Yours faithfully
______________________________________
authorised signatory for
[name of relevant Borrower]
SCHEDULE 4
Mandatory Cost formulae
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Lender, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Lenders' Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant
Loan) and will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the Agent as the cost of complying with the minimum reserve requirements
of the European Central Bank.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a Sterling Loan:
AB + C(B-D) + E x 0.01
------------------------ per cent. per annum
100 - (A+C)
(b) in relation to a Loan in any currency other than Sterling:
E x 0.01
---------- per cent. per annum.
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Lender is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the Margin and the
Mandatory Cost) payable for the relevant Interest Period on the Loan.
C is the percentage (if any) of Eligible Liabilities which that Lender
is required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to the
Agent on interest bearing Special Deposits.
E is the rate of charge payable by that Lender to the Financial Services
Authority pursuant to the Fees Regulations (but, for this purpose,
ignoring any minimum fee required pursuant to the Fees Regulations)
and expressed in pounds per (Pounds)1,000,000 of the Fee Base of that
Lender.
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the meanings given
to them from time to time under or pursuant to the Bank of England Act
1998 or (as may be appropriate) by the Bank of England;
(b) "Fees Regulations" means the Banking Supervision (Fees) Regulations
2000 or such other law or regulation as may be in force from time to
time in respect of the payment of fees for banking supervision; and
(c) "Fee Base" has the meaning given to it in, and will be calculated in
accordance with, the Fees Regulations.
6. In application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula
as 5 and not as 0.05). A negative result obtained by subtracting D from B
shall be taken as zero. The resulting figures shall be rounded to four
decimal places.
7. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information in writing
on or prior to the date on which it becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of its Facility
Office; and
(b) any other information that the Agent may reasonably require for such
purpose.
Each Lender shall promptly notify the Agent in writing of any change to the
information provided by it pursuant to this paragraph.
8. The percentages or rates of charge of each Lender for the purpose of A, C
and E above shall be determined by the Agent based upon the information
supplied to it pursuant to paragraph 7 above and on the assumption that,
unless a Lender notifies the Agent to the contrary, each Lender's
obligations in relation to cash ratio deposits, Special Deposits and the
Fees Regulations are the same as those of a typical bank from its
jurisdiction of incorporation with a Facility Office in the same
jurisdiction as its Facility Office.
9. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by any
Lender pursuant to paragraphs 3 and 7 above is true and correct in all
respects.
10. The Agent shall distribute the additional amounts received as a result of
the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate
for each Lender based on the information provided by each Lender pursuant
to paragraphs 3 and 7 above.
11. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all Parties.
12. The Agent may from time to time, after consultation with the Company and
the Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central
Bank (or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all Parties.
SCHEDULE 5
Form of Transfer Certificate
To: [___________________] as Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the
"New Lender")
Dated:
Sodexho Alliance, S.A. - (Euro) 1,720,000,000 and US$1,080,000,000 Facility
Agreement dated [________] April 2001 (the "Facility Agreement")
1. We refer to Clause 26.5 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing Lender
and the New Lender transferring by novation all or part of the
Existing Lender's Commitment, rights and obligations referred to in
the Schedule in accordance with Clause 26.5 (Procedure for transfer).
(b) The proposed Transfer Date is [___________________].
(c) The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 33.2 (Addresses)
are set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 26.4 (Limitation of
responsibility of Existing Lenders).
3. This Transfer Certificate is governed by English law.
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments.]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as
[___________________].
[Agent]
By:
SCHEDULE 6
Form of Accession Letter
To: [___________________] as Agent
From: [Subsidiary] and Sodexho Alliance, S.A.
Dated:
Dear Sirs
Sodexho Alliance, S.A. - (Euro)1,720,000,000 and US$1,080,000,000 Facility
Agreement dated [________] April 2001 (the "Facility Agreement")
1. [Subsidiary] agrees to become an Additional [Borrower]/[Guarantor] and to
be bound by the terms of the Facility Agreement as an Additional
[Borrower]/[Guarantor] pursuant to [Clause 27.2 (Additional
Borrowers)]/[Clause 27.4 (Additional Guarantors)] of the Facility
Agreement. [Subsidiary] is a company duly incorporated under the laws of
[name of relevant jurisdiction].
2. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
3. This letter is governed by English law.
Yours faithfully
............................ ..........................
Authorised signatory for Authorised signatory for
Sodexho Alliance, S.A. [Subsidiary]
SCHEDULE 7
Form of Compliance Certificate
To: [___________________] as Agent
From: Sodexho Alliance, S.A.
Dated:
Dear Sirs
Sodexho Alliance, S.A. - [Euro]1,720,000,000 and US$1,080,000,000 Facility
Agreement dated [________] April 2001 (the "Facility Agreement")
1. We refer to the Facility Agreement. This is a Compliance Certificate.
2. We confirm that:
(a) as at [___________________], the Net Consolidated Financial
Indebtedness for the Relevant Period ended on [___________________] was
(Euro)[___________________];
(b) the ratio of Net Consolidated Financial Indebtedness on
[___________________] to EBITDA for the Relevant Period ending on such
date was [_]:1; and
(c) the ratio of EBIT to Net Consolidated Interest Expense for the Relevant
Period ending on [___________________] was [_]:1.
Computations of the above are attached.
3. [We confirm that no Default is continuing.]*
Signed: ...................
[Chief Financial Officer]
(other appropriate officer)
of
Sodexho Alliance, S.A.
________________________________________________________________________________
* If this statement cannot be made, the certificate should identify any
Default that is continuing and the steps, if any, being taken to remedy it.
SCHEDULE 8
LMA Form of Confidentiality Undertaking
LMA CONFIDENTIALITY LETTER (SELLER)
[Letterhead of Seller/Seller's agent/broker]
To:
=============================================
[insert name of Potential
Purchaser/Purchaser's
agent/broker
=============================================
Re: The Agreement
=============================================
Borrower:
Date:
Amount:
Agent:
=============================================
Dear Sirs
We understand that you are considering [acquiring]/1//[arranging the acquisition
of]/2/ an interest in the Agreement (the "Acquisition"). In consideration of us
agreeing to make available to you certain information, by your signature of a
copy of this letter you agree as follows:
1. Confidentiality Undertaking
You undertake (a) to keep the Confidential Information confidential and not
to disclose it to anyone except as provided for by paragraph 2 below and to
ensure that the Confidential Information is protected with security measures
and a degree of care that would apply to your own confidential information,
(b) to use the Confidential Information only for the Permitted Purpose, (c)
to use all reasonable endeavours to ensure that any person to whom you pass
any Confidential Information (unless disclosed under paragraph 2[(c)/(d)]/3/
below) acknowledges and complies with the provisions of this letter as if
that person were also a party to it, and (d) not to make enquiries of any
member of the Group or any of their officers, directors, employees or
professional advisers relating directly or indirectly to the Acquisition.
2. Permitted Disclosure
We agree that you may disclose Confidential Information:
(a) to members of the Purchaser Group and their officers, directors,
employees and professional advisers to the extent necessary for
the Permitted Purpose and to any auditors of members of the
Purchaser Group;
[(b) subject to the requirements of the Agreement, in accordance with
the Permitted Purpose so long as any prospective purchaser has
delivered a letter to you in equivalent form to this letter;]
[(b/c)]/3/ subject to the requirements of the Agreement, to any person to
(or through) whom you assign or transfer (or may potentially
assign or transfer) all or any of the rights, benefits and
obligations which you may acquire under the Agreement or with (or
through) whom you enter into (or may potentially enter into) any
sub-participation in relation to, or any other transaction under
which payments are to be made by reference to, the Agreement or
the Borrower or any member of the Group so long as that person
has delivered a letter to you in equivalent form to this letter;
and
[(c/d)]/3/ (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental, supervisory
or regulatory body, (ii) where required by the rules of any stock
exchange on which the shares or other securities of any member of
the Purchaser Group are listed or (iii) where required by the
laws or regulations of any country with jurisdiction over the
affairs of any member of the Purchaser Group.
3. Notification of Required or Unauthorised Disclosure
You agree (to the extent permitted by law) to inform us of the full
circumstances of any disclosure under paragraph 2[(c)/(d)]/3/ or upon
becoming aware that Confidential Information has been disclosed in breach of
this letter.
4. Return of Copies
If we so request in writing, you shall return all Confidential Information
supplied to you by us and destroy or permanently erase all copies of
Confidential Information made by you and use all reasonable endeavours to
ensure that anyone to whom you have supplied any Confidential Information
destroys or permanently erases such Confidential Information and any copies
made by them, in each case save to the extent that you or the recipients are
required to retain any such Confidential Information by any applicable law,
rule or regulation or by any competent judicial, governmental, supervisory
or regulatory body or in accordance with internal policy, or where the
Confidential Information has been disclosed under paragraph 2[(c)/(d)]/3/
above.
5. Continuing Obligations
The obligations in this letter are continuing and, in particular, shall
survive the termination of any discussions or negotiations between you and
us. Notwithstanding the previous sentence, the obligations in this letter
shall cease (a) if you become a party to or otherwise acquire (by assignment
or sub-participation) an interest, direct or indirect, in the Agreement or
(b) twelve months after you have returned all Confidential Information
supplied to you by us and destroyed or permanently erased all copies of
Confidential Information made by you (other than any such Confidential
Information or copies which have been disclosed under paragraph 2 above
(other than sub-paragraph 2(a)) or which, pursuant to paragraph 4 above, are
not required to be returned or destroyed).
6. No Representation; Consequences of Breach, etc
You acknowledge and agree that:
(a) neither we, [nor our principal] nor any member of the Group nor any of
our or their respective officers, employees or advisers (each a
"Relevant Person") (i) make any representation or warranty, express or
implied, as to, or assume any responsibility for, the accuracy,
reliability or completeness of any of the Confidential Information or
any other information supplied by us or the assumptions on which it is
based or (ii) shall be under any obligation to update or correct any
inaccuracy in the Confidential Information or any other information
supplied by us or be otherwise liable to you or any other person in
respect to the Confidential Information or any such information; and
(b) we [or our principal]/4/ or members of the Group may be irreparably
harmed by the breach of the terms hereof and damages may not be an
adequate remedy; each Relevant Person may be granted an injunction or
specific performance for any threatened or actual breach of the
provisions of this letter by you.
7. No Waiver; Amendments, etc
This letter sets out the full extent of your obligations of confidentiality
owed to us in relation to the information the subject of this letter. No
failure or delay in exercising any right, power or privilege hereunder will
operate as a waiver thereof nor will any single or partial exercise of any
right, power or privilege preclude any further exercise thereof or the
exercise of any other right, power or privileges hereunder. The terms of
this letter and your obligations hereunder may only be amended or modified
by written agreement between us.
8. Inside Information
You acknowledge that some or all of the Confidential Information is or may
be price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation relating to insider
dealing and you undertake not to use any Confidential Information for any
unlawful purpose.
9. Nature of Undertakings
The undertakings given by you under this letter are given to us and (without
implying any fiduciary obligations on our part) are also given for the
benefit of [our principal,]/4/ the Borrower and each other member of the
Group.
10. Third Party Rights
(a) Subject to paragraph 6 and to paragraph 9 the terms of this letter may
be enforced and relied upon only by you and us and the operation of the
Contracts (Rights of Third Parties) Act 1999 is excluded.
(b) Notwithstanding any provisions of this letter, the parties to this
letter do not require the consent of any Relevant Person to rescind or
vary this letter at any time.
11. Governing Law and Jurisdiction
This letter (including the agreement constituted by your acknowledgement of
its terms) shall be governed by and construed in accordance with the laws of
England and the parties submit to the non-exclusive jurisdiction of the
English courts.
12. Definitions
In this letter (including the acknowledgement set out below) terms defined
in the Agreement shall, unless the context otherwise requires, have the same
meaning and:
"Confidential Information" means any information relating to the Borrower,
the Group, the Agreement and/or the Acquisition provided to you by us or any
of our affiliates or advisers, in whatever form, and includes information
given orally and any document, electronic file or any other way of
representing or recording information which contains or is derived or copied
from such information but excludes information that (a) is or becomes public
knowledge other than as a direct or indirect result of any breach of this
letter or (b) is known by you before the date the information is disclosed
to you by us or any of our affiliates or advisers or is lawfully obtained by
you thereafter, other than from a source which is connected with the Group
and which, in either case, as far as you are aware, has not been obtained in
violation of, and is not otherwise subject to, any obligation of
confidentiality;
"Group" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies (as each
such term is defined in the Companies Act 1985);
"Permitted Purpose" means [subject to the terms of this letter, passing on
information to a prospective purchaser for the purpose of] /2/ considering
and evaluating whether to enter into the Acquisition; and
"Purchaser Group" means you, each of your holding companies and subsidiaries
and each subsidiary of each of your holding companies (as each such term is
defined in the Companies Act 1985).
Please acknowledge your agreement to the above by signing and returning the
enclosed copy.
Yours faithfully
...................................
For and on behalf of
[Seller/Seller's agent/broker]
To: [Seller]
[Seller's agent/broker]
The Borrower and each other member of the Group
We acknowledge and agree to the above:
...................................
For and on behalf of
[Potential Purchaser/Purchaser's agent/broker]
- --------------------------------------------------------------------------------
/1/ delete if addressee is acting as broker or agent.
/2/ delete if addressee is acting as principal.
/3/ delete as applicable.
/4/ delete if letter is sent out by the Seller rather than the Seller's broker
or agent.
SCHEDULE 9
Timetables
PART I
Loans
"D" refers to the number of Business Days before the relevant Utilisation
Date/the first day of the relevant Interest Period. For the avoidance of doubt,
the reference to a time below is to London time unless otherwise stated.
Loans in euro Loans in Sterling Loans in other
currencies
Delivery of a duly completed Utilisation Request D-3 D-1 D-3
(Clause 5.1 (Delivery of a Utilisation Request)) 11:00 a.m. 11:00 a.m. 11:00 a.m.
or a Selection Notice (Clause 12.1 (Selection of
Interest Periods))
Agent determines (in relation to a Utilisation) D-3 D-1 D-3
the Base Currency Amount of the Loan, if 12:00 p.m. 12:00 p.m. 12:00 p.m.
required under Clause 5.4 (Lenders'
participation)
Agent notifies the Lenders of the Loan in D-3 D-1 D-3
accordance with Clause 5.4 (Lenders' 2:00 p.m. 2:00 p.m. 2:00 p.m.
participation)
Agent receives a notification from a Lender under D-2 D D-2
Clause 8.2 (Unavailability of a currency) 9:30 a.m. 9:30 a.m. 9:30 a.m.
Agent gives notice in accordance with Clause 8.2 D-2 D D-2
(Unavailability of a currency) 10:30 a.m. 10:30 a.m. 10:30 a.m.
Agent determines amount of the Loan in Optional D-3 D-1 D-3
Currency in accordance with Clause 8.3 (Exchange 12:00 p.m. 12:00 p.m. 12:00 p.m.
rate movements)
LIBOR or EURIBOR is fixed Quotation Day Quotation Day Quotation Day
as of 11:00 a.m. as of 11:00 a.m. as of 11:00 a.m.
(Paris time) (London time) (London time)
PART II
Letters of Credit
"D" refers to the number of Business Days before the relevant Utilisation
Date/the first day of the Relevant Term. For the avoidance of doubt, the
reference to a time below is to London time.
L/Cs L/Cs
in US Dollars in Canadian Dollars
Delivery of a duly completed Utilisation Request D-4 D-4
(Clause 6.3 (Delivery of a Utilisation Request for 11:00 a.m. 11:00 a.m.
Letters of Credit)
Agent determines (in relation to a Utilisation) the D-3 D-3
Base Currency Amount of the Letter of Credit, if 12:00 p.m. 12:00 p.m.
required under Clause 6.6 (Issue of Letters of
Credit)
Agent notifies the Issuing Bank and the Lenders of D-3 D-3
the Letter of Credit in accordance with 6.6 (Issue 2:00 p.m. 2:00 p.m.
of Letters of Credit)
SCHEDULE 10
Acquisition Financing Indemnity
In the event that any of the Finance Parties or any of their respective
affiliates or any of their respective partners, directors, agents, advisers or
employees (each a "Relevant Person") becomes involved in any capacity in any
action, proceeding, or investigation brought by or against any person, including
shareholders of Kodak, AA or the Company arising out of, in connection with or
as a result of either the Finance Parties' commitment or any matter referred to
in the Finance Documents (including the acquisitions and any use of the proceeds
of the Facilities) (other than due to such Finance Party's illegal activity,
negligence, wilful misconduct or bad faith), the Company periodically on request
will reimburse the Relevant Person for its reasonable legal and other reasonable
expenses (including the cost of any investigation and preparation) arising out
of or incurred in connection therewith. The Company also agrees to co-operate
with each Relevant Person and to give, subject to Clause 26.7 (Disclosure of
Information and confidentiality) and so far as it is able to procure the giving
of, all such information and render all such assistance to as the Relevant
Persons may reasonably request in connection with any such action, proceeding or
investigation and not to take any action which might reasonably be expected to
prejudice the position of a Relevant Person in relation to any such action,
proceeding or investigation without the consent of the Relevant Person concerned
(such consent not to be unreasonably withheld).
The Company will also indemnify and hold harmless each of the Finance Parties
for themselves and as trustee for the other Relevant Persons, against any and
all losses, claims, damages or liabilities to any person in connection with or
as a result of either their respective commitments or any matter referred to in
the Finance Documents and in particular (without limitation to the generality of
the foregoing) arising out of, or in relation to, or in connection with, any
untrue statement (or alleged untrue statement) of a material fact contained in
any preliminary or final offering materials or information memorandum prepared
in connection with the Facilities and approved by the Company or any filings
with or submissions to, in each case made by or on behalf of the Company, any
governmental or self regulatory authority or agency or securities exchange or
caused by an omission (or alleged omission) to state therein a material fact
necessary to make the statements therein in the light of the circumstances under
which they are made, not misleading, except to the extent that any such loss,
claim, damage or liability results from the illegal activity, negligence, wilful
misconduct or bad faith of the Relevant Person in performing the services that
are the subject of the Finance Documents.
The Company also agrees that the Relevant Persons shall not have any liability
to the Company or any person asserting claims on behalf of or in right of the
Company arising out of, or in connection with, or as a result of, the commitment
or any matter referred to in the Finance Documents except to the extent that any
losses, claims, damages, liabilities or expenses incurred by the Company or such
person result from the illegal activity, negligence, wilful misconduct or bad
faith of the Relevant Person in performing the services that are the subject of
the Underwriting Documents.
If any person is potentially entitled to indemnification under this Schedule 10
with respect to any action or proceeding brought by a third party that is also
brought against the Company, the Company shall be entitled to assume the defence
of any such action or proceeding with counsel reasonably satisfactory to the
Relevant Person provided that the Company shall at all times during such action
or proceedings consider and take account of that person's business, good
standing and reputation in the market (as
communicated to the Company) in relation to such action and proceedings. Upon
assumption by the Company of the defence of any such action or proceeding, the
Relevant Person shall have the right to participate in such action or proceeding
and to retain its own counsel but the Company shall not be liable for any legal
expenses of other counsel incurred by such Relevant Person in connection with
such defence unless (i) the Company shall have failed to employ counsel
reasonably satisfactory to the Relevant Person in a timely manner, or (ii) the
Relevant Person shall have been advised by counsel that there are actual or
potential or conflicting interests between the Company and the Relevant Person,
including situations in which there are one or more legal defences available to
the Relevant Person that are different from or additional to those available to
the Company. The Company shall not consent to the terms of any compromise or
settlement of any action defended by the Company in accordance with the
foregoing without the prior consent of the Relevant Person, which consent shall
not be unreasonably withheld. Each of the Company and the Relevant Person (each
acting reasonably) shall, in the case of deciding not to settle or compromise on
any action or proceedings, take into account the cost (both financial or
otherwise) to both parties of continuing with such action or proceedings, the
likely outcome of such action or proceedings and the adverse effects (both
actual or potential) on the business interests of both parties by making such
decision. No Relevant Person shall admit liability in respect of, or consent to
the terms of any compromise or settlement of, any action with respect to which
such Relevant Person may be entitled to indemnification hereunder without the
prior consent of the Company, which consent shall not be unreasonably withheld.
The Company agrees with the Relevant Persons that the reimbursement, indemnity
and contribution obligations of the Company under this Schedule 10 will be in
addition to any liability which the Company may otherwise have, and shall be
binding on and inure to the benefit of any successors, assigns, heirs and
personal representatives of the Company, the Relevant Person, any such affiliate
and any such person.
The provisions of this Schedule 10 shall survive any termination of the Finance
Documents.
In this Schedule 10:
"affiliate" of any person means any other person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such person;
"controlling person" means any person who controls any other person; and
"control" (including terms "controlling", "controlled by" and "under common
control with") means the possession, direct or indirect, of the power to direct
or cause the direction of the management, policies or activities of a person,
whether through the ownership of securities, by contract or agency or otherwise.
SCHEDULE 11
Form of TEG Letter
To: Sodexho Alliance, S.A.
From: [___________________] as Agent
Dated: [ ] 2001
Dear Sirs
Sodexho Alliance, S.A. - Euro 1,720,000,000 and US$1,080,000,000 Facility
Agreement
dated [________] 2001 (the "Facility Agreement")
We refer to the Facility Agreement.
Terms defined in the Facility Agreement shall bear the same meaning in this
letter unless otherwise defined in this letter. References to Clauses in this
letter are references to Clauses in the Agreement.
We confirm that:
1. this is the letter referred to in Clause 12.5 (Taux Effectif Global) of the
Facility Agreement;
2. you acknowledge that, due to the fact that interest payable under the
Facility Agreement is to be calculated on a floating rate basis by
references to LIBOR or EURIBOR for Interest Periods selected by a Borrower,
it is not possible to compute the effective global rate ("taux effectif
global") for the lifetime of the Facilities; and
3. in order to comply with the provisions of Articles L313-1 and L313-2 of the
French "Code de la Consommation", and only as an indication based on the
assumptions described below, an example of calculation of the effective
global rate would result in a rate for the Facilities (taux de periode) of
[ ]%.
The above rate is given on an indicative basis and on the basis (a) that
drawdown for the full amount of the Facilities in the relative Base Currency
has been made, (b) for the US Dollar denominated Facilities an Interest
Period of three months in US Dollars has been chosen and that the US$ LIBOR
rate of [ ]% per annum is applicable, (c) for the euro denominated
Facilities an Interest Period of three months in euro has been chosen and
that the EURIBOR rate of [ ]% per annum is applicable, (d) that the
LIBOR/EURIBOR rate, expressed as an annual rate, is as fixed on [date], (e)
repayments occur at contractual maturity and not earlier, (f) no term out
option has been exercised, (g) that the US$/Euro exchange rate is
1 Euro = 0.[ ]US$, (h) that the Rating (as defined in Clause 11.2(g) (Margin
and adjustments)) of the Company is BBB+, (i) of the various fees payable by
you under the terms of the Facility Agreement and (j) that a Margin
reduction of 10bps is assumed 364 days after the first Utilisation. Such
rates shall not be binding on the Finance Parties.
We should be grateful if you would confirm your acceptance of the terms of this
letter by signing and returning to us the enclosed copy.
This letter is designated a Finance Document.
Yours faithfully.
.................................................
[___________________]
as Agent
We agree to the above.
.................................................
SODEXHO ALLIANCE, S.A.
SCHEDULE 12
Material Subsidiaries
1. Sodexho Limited
2. Sodexho Marriott Services, Inc.
3. Sodexho Marriott Operations, Inc.
SCHEDULE 13
Form of Letter of Credit
To: [Beneficiary]
[Address]
[other relevant information]
(the "Beneficiary")
[Date]
Irrevocable Standby Letter of Credit no.[___________________]
At the request of [ ], [Issuing bank] (the "Issuing
Bank") issues this irrevocable standby letter of credit ("Letter of Credit") in
your favour on the following terms and conditions:
1. Definitions
In this Letter of Credit:
"Business Day" means a day (other than a Saturday or a Sunday) on which
banks are open for general business in [London]./1/
"Demand" means a demand for a payment under this Letter of Credit in the
form of the schedule to this Letter of Credit.
"Expiry Date" means [___________________].
"Relevant Place" means [in the case of Societe Generale as Issuing Bank,
1221 Avenue of the Americas, New York, NY 10020, USA].
"Total L/C Amount" means [___________________].
2. Issuing Bank's agreement
(a) The Beneficiary may request a drawing or drawings under this Letter of
Credit by giving to the Issuing Bank a duly completed Demand. A Demand
must be received by the Issuing Bank by [____]p.m. ([London] time) on
the Expiry Date at the Relevant Place.
(b) Subject to the terms of this Letter of Credit, the Issuing Bank
unconditionally and irrevocably undertakes to the Beneficiary that,
within [ten] Business Days of receipt by it of a Demand, it must pay to
the Beneficiary the amount demanded in that Demand.
(c) The Issuing Bank will not be obliged to make a payment under this
Letter of Credit to the Beneficiary if as a result the aggregate of all
payments made by it under this Letter of Credit would exceed the Total
L/C Amount.
- --------------------------------------------------------------------------------
/1/ This may need to be amended depending on the currency of payment under the
Letter of Credit.
3. Expiry
(a) The Issuing Bank will be released from its obligations under this
Letter of Credit on the date (if any) notified by the Beneficiary to
the Issuing Bank as the date upon which the obligations of the Issuing
Bank under this Letter of Credit are released.
(b) Unless previously released under paragraph (a) above, on
[___________]p.m. ([London] time) on the Expiry Date the obligations of
the Issuing Bank under this Letter of Credit will cease with no further
liability on the part of the Issuing Bank except for any Demand validly
presented under the Letter of Credit that remains unpaid.
(c) When the Issuing Bank is no longer under any further obligations under
this Letter of Credit, the Beneficiary must return the original of this
Letter of Credit to the Issuing Bank.
4. Payments
All payments under this Letter of Credit shall be made in
[___________________] and for value on the due date to the account of the
Beneficiary specified in the Demand.
5. Delivery of Demand
Each Demand shall be in writing, and, unless otherwise stated, may be made
by letter, fax or telex and must be received in legible form by the Issuing
Bank at its address and by the particular department or officer (if any) as
follows:
[in the case of Societe Generale as Issuing Bank, 1221 Avenue of the
Americas, New York, NY 10020, USA].
6. Assignment
The Beneficiary's rights under this Letter of Credit may not be assigned or
transferred.
7. UCP
Except to the extent it is inconsistent with the express terms of this
Letter of Credit, in which case it is subject to the laws of the State of
New York (including, without limitation, the Uniform Commercial Code of the
State of New York), this Letter of Credit is subject to the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber
of Commerce Publication No. 500.
8. Governing Law
This Letter of Credit is governed by New York law.
9. Jurisdiction
The courts of New York have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Letter of Credit.
Yours faithfully,
[Issuing Bank]
By:
SCHEDULE
Form of Demand
To: [ISSUING BANK]
[Date]
Dear Sirs
Standby Letter of Credit no. [ ] issued in favour of [BENEFICIARY] (the
"Letter of Credit")
We refer to the Letter of Credit. Terms defined in the Letter of Credit have the
same meaning when used in this Demand.
1. We certify that the sum of [___________________] is due [and has remained
unpaid for at least [___________________] Business Days] [under [set out
underlying contract or agreement]]. We therefore demand payment of the sum
of [___________________].
2. Payment should be made to the following account:
Name:
Account Number:
Bank:
3. The date of this Demand is not later than the Expiry Date.
Yours faithfully
(Authorised Signatory) (Authorised Signatory)
For
[BENEFICIARY]
The Company
SODEXHO ALLIANCE, S.A.
Address: 3, avenue Newton - 78180, Montigny-le-Bretonneux, France
Fax No: + 33 1 30 85 5185
Attention: The Corporate Secretary
By: Sian Herbert-Jones
The Arranger
CITIBANK INTERNATIONAL plc
By: John Stafford
GOLDMAN SACHS INTERNATIONAL
By: Jacquelyn Titus
SG INVESTMENT BANKING
By: Francois Dupin
The Original Lenders
CITIBANK INTERNATIONAL plc
By: John Stafford
CITICORP USA, INC.
By: Steven R. Victorin
GOLDMAN SACHS INTERNATIONAL BANK
By: Jacquelyn Titus
SOCIETE GENERALE
By: Francois Dupin
The Agent
SOCIETE GENERALE
Address: DEFI/ATM/LEV
Tour Societe Generale
17, cours Valmy
92972 Paris La Defense Cedex
France
Credit Matters:
Attention: Jean-Francois Michard
Tel: 33 1 42 13 68 37
Fax: 33 1 42 14 60 93
Operational Matters:
Attention: Laurence Gaertner/ Maxime Seillier
Tel: 33 1 42 13 77 71 / 33 1 42 13 41 11
Fax: 33 1 42 13 69 67
For all requests regarding Facility C, a copy is to go to:
Societe Generale
Loan Servicing Group
1221 Avenue of the Americas
New York, NY 10020
USA
Attention: Robert Preminger
Tel: 1 212 278 5703
Fax: 1 212 278 6136
By: Francois Dupin
The Issuing Bank
SOCIETE GENERALE
Address: 8 avenue des Olympiades
94727 Fontenay-sous-Bois
France
Attention: Patrick Lenfant
Tel : 33 1 42 14 11 11
Fax : 33 1 42 14 10 14
By: Francois Dupin