CONFORMED COPY
19 JULY 2002
INTERNATIONAL FLAVORS & FRAGRANCES (LUXEMBOURG) S.A.R.L
as Borrower
INTERNATIONAL FLAVORS & FRAGRANCES INC.
as Guarantor
arranged by
ABN AMRO BANK N.V.
And
BARCLAYS CAPITAL
With
BARCLAYS BANK PLC
acting as Agent
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MULTICURRENCY REVOLVING FACILITY AGREEMENT
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CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION............................................1
2. THE FACILITY.............................................................15
3. PURPOSE..................................................................15
4. CONDITIONS OF UTILISATION................................................15
5. UTILISATION..............................................................17
6. OPTIONAL CURRENCIES......................................................18
7. REPAYMENT................................................................19
8. PREPAYMENT AND CANCELLATION..............................................19
9. INTEREST.................................................................22
10. INTEREST PERIODS.........................................................23
11. CHANGES TO THE CALCULATION OF INTEREST...................................23
12. FEES.....................................................................24
13. TAX GROSS UP AND INDEMNITIES.............................................26
14. INCREASED COSTS..........................................................28
15. OTHER INDEMNITIES........................................................29
16. MITIGATION BY THE LENDERS................................................30
17. COSTS AND EXPENSES.......................................................30
18. GUARANTEE AND INDEMNITY..................................................32
19. REPRESENTATIONS AND WARRANTIES...........................................35
20. GENERAL COVENANTS........................................................37
21. FINANCIAL COVENANT.......................................................42
22. EVENTS OF DEFAULT........................................................43
23. CHANGES TO THE LENDERS...................................................48
24. CHANGES TO THE OBLIGORS..................................................50
25. ROLE OF THE AGENT AND THE ARRANGERS......................................51
26. CONDUCT OF BUSINESS BY THE FINANCE PARTIES...............................55
27. SHARING AMONG THE LENDERS................................................56
28. PAYMENT MECHANICS........................................................58
29. SET-OFF..................................................................60
30. NOTICES..................................................................60
31. CALCULATIONS AND CERTIFICATES............................................62
32. PARTIAL INVALIDITY.......................................................62
33. REMEDIES AND WAIVERS.....................................................62
34. AMENDMENTS AND WAIVERS...................................................62
35. COUNTERPARTS.............................................................63
36. GOVERNING LAW............................................................64
37. ENFORCEMENT..............................................................64
SCHEDULE 1 THE ORIGINAL LENDERS..............................................65
SCHEDULE 2 CONDITIONS PRECEDENT..............................................66
SCHEDULE 3 UTILISATION REQUEST...............................................69
SCHEDULE 4 MANDATORY COST FORMULAE...........................................70
SCHEDULE 5 FORM OF TRANSFER CERTIFICATES.....................................73
SCHEDULE 6 TIMETABLES........................................................78
SCHEDULE 7 SUBSIDIARY GUARANTEE DOCUMENTS....................................79
THIS AGREEMENT is dated 19 July 2002 and made between:
(1) INTERNATIONAL FLAVORS & FRAGRANCES (LUXEMBOURG) S.A.R.L, a company (societe
a responsabilite limitee) incorporated in Luxembourg and registered with
the Register of Commerce and Companies of Luxembourg under number B 79.234
and having its registered address at 5 rue Eugene Ruppert, L-2453
Luxembourg, with a share capital of EUR 163,360,000 (the "BORROWER");
(2) INTERNATIONAL FLAVORS & FRAGRANCES INC. (the "GUARANTOR")
(3) ABN AMRO BANK N.V. and BARCLAYS CAPITAL (the "ARRANGERS");
(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as lenders (the "ORIGINAL
LENDERS"); and
(5) BARCLAYS BANK PLC as agent of the Lenders (the "AGENT").
IT IS AGREED as follows:
SECTION 1.
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"AFFILIATE" means, as to any person, any other person that, directly or
indirectly, controls, is controlled by or is under common control with such
person or is a director or officer of such person. For purposes of this
definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a person means the
possession, direct or indirect, of the power to vote 50% or more of the
Voting Stock of such person or to direct or cause the direction of the
management and policies of such person, whether through the ownership of
Voting Stock, by contract or otherwise.
"AGENT'S SPOT RATE OF EXCHANGE" means the Agent's spot rate of exchange for
the purchase of the relevant currency with the Base Currency in the London
foreign exchange market at or about 11:00 a.m. on a particular day.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence exemption, filing or registration (including, without limitation,
the Environmental Permits).
"APPLICABLE MARGIN" means as of any date, a percentage per annum determined
by reference to the Public Debt Rating in effect on such date as set forth
below:
------------------------------- ----------------------------------
PUBLIC DEBT RATING S&P/MOODY'S APPLICABLE MARGIN
------------------------------- ----------------------------------
Level 1 0.40%
A+/A1 or above
------------------------------- ----------------------------------
Level 2 0.45%
A/A2
------------------------------- ----------------------------------
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Level 3 0.50%
A-/A3
------------------------------- ----------------------------------
Level 4 0.55%
BBB+/Baa1
------------------------------- ----------------------------------
Level 5 0.80%
BBB/Baa2
------------------------------- ----------------------------------
Level 6 1.00%
BBB-/Baa3
------------------------------- ----------------------------------
Level 7 1.50%
lower than level 6
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If the Public Debt Rating shall be changed, the change in Applicable Margin
arising as a result of such change shall be effective as of the date on
which any change in rating established by S&P or Moody's or both giving
rise to such change in the Public Debt Rating is first announced publicly
by the relevant rating agency making such change (for greater certainty, it
is understood that such date may be a date falling at any time during an
Interest Period).
"AVAILABILITY PERIOD" means the period from and including the date of this
Agreement to and including the Termination Date.
"AVAILABLE COMMITMENT" means a Lender's Commitment minus:
(a) the Base Currency Amount of its participation in any outstanding
Loans; and
(b) in relation to any proposed Utilisation, the Base Currency Amount of
its participation in any Loans that are due to be made on or before
the proposed Utilisation Date,
other than that Lender's participation in any Loans that are due to be
repaid or prepaid on or before the proposed Utilisation Date.
"AVAILABLE FACILITY" means, in relation to the Facility, the aggregate for
the time being of each Lender's Available Commitment in respect of the
Facility.
"BASE CURRENCY" means euro.
"BASE CURRENCY AMOUNT" means, in relation to a Loan, the amount specified
in the Utilisation Request for that Loan (or, if the amount requested is
not denominated in the Base Currency, that amount converted into the Base
Currency at the Agent's Spot Rate of Exchange on the date which is three
Business Days before the Utilisation Date or, if later, on the date the
Agent receives the Utilisation Request) adjusted to reflect any repayment,
prepayment, consolidation or division of the Loan.
"BREAK COSTS" means the amount (if any) by which:
(a) the interest (excluding the Applicable Margin) which a Lender should
have received for the period from the date of receipt of all or any
part of its participation in a Loan or Unpaid Sum to the last day of
the current Interest Period in respect of that Loan or Unpaid Sum, had
the principal amount or Unpaid Sum received been paid on the last day
of that Interest Period; exceeds:
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(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 Amsterdam, London and Luxembourg and:
(a) (in relation to any date for payment or purchase of a currency other
than euro or any date for the fixing of LIBOR) 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.
"COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Commitment" in Schedule 1 (The
Original Lenders) and the amount of any other Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency of
any Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"CONSOLIDATED" refers to the consolidation of accounts in accordance with
GAAP.
"DEBT" of any person means, without duplication:
(a) all indebtedness of such person for borrowed money;
(b) all obligations of such person for the deferred purchase price of
assets or services (other than trade payables not overdue by more than
60 days incurred in the ordinary course of such person's business);
(c) all obligations of such person evidenced by notes, bonds, debentures
or other similar instruments,
(d) all obligations of such person created or arising under any
conditional sale or other title retention agreement with respect to
assets acquired by such person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such assets);
(e) all obligations of such person as lessee under leases that have been
or should be, in accordance with GAAP, recorded as capital leases;
(f) all obligations, contingent or otherwise, of such person in respect of
acceptances, letters of credit or similar extensions of credit;
(g) all obligations of such person in respect of Hedge Agreements;
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(h) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(i) any amount raised by the issue of shares redeemable prior to the
Termination Date;
(j) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing;
(k) all Debt of others referred to in paragraphs (a) through (j) above or
paragraph (l) below guaranteed directly or indirectly in any manner by
such person, or in effect guaranteed directly or indirectly by such
person through an agreement (1) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such Debt, (2)
to purchase, sell or lease (as lessee or lessor) assets, or to
purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Debt or to assure the holder of such
Debt against loss, (3) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for assets or
services irrespective of whether such assets are received or such
services are rendered) or (4) otherwise to assure a creditor against
loss; and
(l) all Debt referred to in paragraphs (a) through (k) above secured by
(or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Security on assets
(including, without limitation, accounts and contract rights) owned by
such person, even though such person has not assumed or become liable
for the payment of such Debt.
"DEBT FOR BORROWED MONEY" of a person means all items that, in accordance
with GAAP, would be classified as indebtedness on a Consolidated balance
sheet of such person.
"DEFAULT" means an Event of Default or any event or circumstance specified
in Clause 22 (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, for any Relevant Period, net income (or net loss) plus the
sum of (a) interest expense, (b) income tax expense, (c) depreciation
expense, (d) amortisation expense and all other non-cash charges and (e)
extraordinary or unusual losses deducted in calculating net income less
extraordinary or unusual gains added in calculating net income, in each
case determined in accordance with GAAP for the Relevant Period.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, Environmental
Permit or Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment, including, without limitation,
(a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief.
"ENVIRONMENTAL LAW" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment, decree or judicial
or agency interpretation, policy or
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guidance relating to pollution or protection of the environment, health,
safety or natural resources, including, without limitation, those relating
to the use, handling, transportation, treatment, storage, disposal, release
or discharge of Hazardous Materials.
"ENVIRONMENTAL PERMITS" means any permit, approval, identification number,
license or other authorisation required under any Environmental Law.
"ERISA" means the United States Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" means any person that for purposes of Title IV of ERISA
is a member of the Guarantor's controlled group, or under common control
with the Guarantor, within the meaning of Section 414 of the United States
Internal Revenue Code of 1986 (as amended from time to time) and the
regulations promulgated and rulings issued thereunder.
"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 (without regard to subsection (2) of such Section) are met with
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
(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 the Guarantor or any
ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA;
(e) the withdrawal by the Guarantor 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 the imposition of a lien under Section 302(f) of
ERSA 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,
a Plan.
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"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.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 22 (Events of Default).
"FACILITY" means the revolving loan facility made available under this
Agreement as described in Clause 2 (The Facility).
"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 between the Arrangers and the
Borrower (or the Agent and the Borrower) setting out any of the fees
referred to in Clause 12 (Fees).
"FINANCE DOCUMENT" means this Agreement, any Fee Letter and any other
document designated as such by the Agent and the Borrower.
"FINANCE PARTY" means the Agent, the Arrangers or a Lender.
"FOUNDER" means:
(a) each person who is a beneficial owner (within the meaning of Rule13d-3
of the United States Securities and Exchange Commission under the
United States Securities Exchange Act of 1934) of 20% or more of the
outstanding shares of Voting Stock of the Guarantor on the date hereof
or any person that is or becomes a fiduciary of any person who is a
beneficial owner of (or any person for whose account were held)
outstanding shares of Voting Stock of the Guarantor on the date hereof
(in any such case, an "EXISTING SHAREHOLDER"), including any group
that is comprised solely of Existing Shareholders; and
(b) any such Existing Shareholder or group comprised solely of Existing
Shareholders who shall become the beneficial owner of 20% or more of
the outstanding shares of Voting Stock of the Guarantor solely as a
result of an acquisition by the Guarantor of shares of its Voting
Stock,
in each case until such time as the persons or group described in
paragraphs (a) and (b) above shall become the beneficial owner (other than
by means of a stock dividend, stock split, gift or inheritance or receipt
or exercise of, or accrual of any right to exercise, any stock options of
shares of stock granted by the Guarantor) of any additional shares of
Voting Stock of the Guarantor.
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In addition, the Guarantor, any wholly-owned Subsidiary of the Guarantor
and any employee stock ownership or other employee benefit plan of the
Guarantor or a wholly-owned Subsidiary of the Guarantor shall be a
"FOUNDER".
"GAAP" means, in respect of the Guarantor, generally accepted accounting
principles in the United States of America consistent with those applied in
the preparation of the financial statements referred to in Clause 19.5
(Financial Statements), in respect of the Borrower generally accepted
accounting principles in Luxembourg and, in respect of any other member of
the Group, generally accepted accounting principles in the applicable
jurisdiction.
"GROUP" means the Guarantor and its Subsidiaries for the time being.
"HAZARDOUS MATERIALS" means (a) petroleum and petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements.
"INFORMATION MEMORANDUM" means the document concerning the Borrower and the
Guarantor which, at the Borrower's request and on its behalf, is to be
prepared in relation to this transaction, approved by the Borrower and
distributed by the Arrangers in connection with syndication of the
Facility.
"INTEREST PERIOD" means, in relation to a Loan, each period determined in
accordance with Clause 10 (Interest Periods) and, in relation to an Unpaid
Sum, each period determined in accordance with Clause 9.4 (Default
interest).
"LENDER" means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Party in
accordance with Clause 23 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest Period of
that Loan) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the London interbank market,
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as of the Specified Time on the Quotation Day for the offering of deposits
in the currency of that Loan and for a period comparable to the Interest
Period for that Loan.
"LOAN" means a loan made or to be made under the Facility or the principal
amount outstanding for the time being of that loan.
"LMA" means the Loan Market Association.
"MAJORITY LENDERS" means:
(a) if there are no Loans then outstanding, a Lender or Lenders whose
Commitments aggregate more than 662/3% of the Total Commitments (or,
if the Total Commitments have been reduced to zero, aggregated more
than 662/3% of the Total Commitments immediately prior to the
reduction); or
(b) at any other time, a Lender or Lenders whose participations in the
Loans then outstanding aggregate more than 662/3% of all the Loans
then outstanding.
"MANDATORY COST" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost formulae).
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, condition (financial or otherwise) or results of operations of
the Guarantor and its Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(a) the business, condition (financial or otherwise) or results of
operations of the Guarantor and its Subsidiaries taken as a whole;
(b) the rights and remedies of the Agent or any Lender under the Finance
Documents; or
(c) the ability of the Borrower or the Guarantor to perform its payment
obligations under the Finance Documents.
"MATERIAL SUBSIDIARIES" means International Flavors & Fragrances I.F.F.
(Nederland) B.V., International Flavors & Fragrances I.F.F. (France) SAS,
Irish Flavours & Fragrances Ltd., International Flavors & Fragrances I.F.F.
(Benicarlo) S.A., Bush Boake Allen Ltd., International Flavours &
Fragrances I.F.F. (Great Britain) Ltd., International Flavors & Fragrances
(Japan) Ltd., International Flavors & Fragrances (China) Ltd.,
International Flavors & Fragrances I.F.F. (Deutschland) GmbH and Bush Boake
Allen (India) Ltd. or, in case any of the foregoing entities is no longer a
Subsidiary of the Borrower, such of the foregoing entities which remain
Subsidiaries of the Borrower and such other Subsidiaries of the Borrower
selected by the Borrower whose net sales, when combined with the net sales
of such remaining Subsidiaries, contribute in aggregate at least 70 per
cent of the combined net sales of the Borrower and its Subsidiaries, based
on the most recent management or other financial information available to
the Borrower.
"MOODY'S" means Moody's Investor Services, Inc., or any successor by merger
or change of name which is a nationally recognised rating agency in the
United States of America.
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"MONTH" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month, except
that:
(a) (subject to paragraph (c) below) if the numerically corresponding day
is not a Business Day, that period shall end on the next Business Day
in that calendar month in which that period is to end if there is one,
or if there is not, on the immediately preceding Business Day;
(b) if there is no numerically corresponding day in the calendar month in
which that period is to end, that period shall end on the last
Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a calendar
month, that Interest Period shall end on the last Business Day in the
calendar month in which that Interest Period is to end.
The above rules will only apply to the last Month of any period.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Guarantor 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 the Guarantor or any ERISA Affiliate
and at least one person other than the Guarantor and the ERISA
Affiliates; or
(b) was so maintained and in respect of which the Guarantor 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.
"OBLIGORS" means the Borrower and the Guarantor.
"OPTIONAL CURRENCY" means a currency (other than the Base Currency) which
complies with the conditions set out in Clause 4.3 (Conditions relating to
Optional Currencies).
"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 Communities relating to
Economic and 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).
"PERMITTED SECURITY" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced:
(a) Security for Taxes, assessments and governmental charges or levies to
the extent not required to be paid under Clause 20.3 (Payment of
Taxes, Etc.);
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(b) Security imposed by law, such as materialmen's, mechanics', carriers',
workmen's and repairmen's Security and other similar Security arising
in the ordinary course of business securing obligations that are not
overdue for a period of more than 30 days;
(c) pledges or deposits to secure obligations under workers' compensation
laws or similar legislation or to secure public or statutory
obligations; and
(d) easements, rights of way and other encumbrances on title to real
property that do not render title to the real property encumbered
thereby unmarketable or materially adversely affect the use of such
real property for its present purposes.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PUBLIC DEBT RATING" means, as of any date, the rating that has been most
recently announced by either S&P or Moody's or both, as the case may be,
for any class of non-credit enhanced long-term senior unsecured debt issued
by the Guarantor. For purposes of the foregoing:
(a) if only one of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin shall be determined by reference to the
available rating;
(b) if neither S&P nor Moody's shall have in effect a Public Debt Rating,
the Applicable Margin shall be set in accordance with Level 7 under
the definition of "Applicable Margin", as the case may be;
(c) if the ratings established by S&P and Moody's shall fall within
different levels, the Applicable Margin shall be based upon the lower
rating; and
(d) if S&P or Moody's shall change the basis on which ratings are
established, each reference to the Public Debt Rating announced by S&P
or Moody's, as the case may be, shall refer to the then equivalent
rating by S&P or Moody's, as the case may be.
"QUOTATION DAY" means, in relation to any period for which an interest rate
is to be determined:
(a) (if the currency is euro) two TARGET Days before the first day of that
period; or
(b) (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 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).
"REDUCTION DATE" means each of the dates specified in Clause 7.2 (Reduction
of Facility) as Reduction Dates, but if any of those dates is not a
Business Day, then that Reduction Date shall be deemed to be the
immediately succeeding Business Day.
"REDUCTION INSTALMENT" means each instalment for reduction of the Loans
referred to in Clause 7.2 (Reduction of the Facility).
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"REFERENCE BANKS" means, in relation to LIBOR the principal London offices
of ABN AMRO Bank N.V., Barclays Bank PLC and Citibank International PLC
and, in relation to EURIBOR, the principal office in the European interbank
market of ABN AMRO Bank N.V., Barclays Bank PLC and Citibank International
PLC.
"RELEVANT INTERBANK MARKET" means in relation to euro, the European
interbank market, and, in relation to any other currency, the London
interbank market.
"RELEVANT PERIOD" means each period of twelve months ending on the last day
of the Guarantor's financial year and each period of twelve months ending
on the last day of each of the first three quarters of the Guarantor's
financial year.
"ROLLOVER LOAN" means one or more Loans:
(a) made or to be made on the same day that a maturing Loan is due to be
repaid;
(b) the aggregate amount of which is equal to or less than the maturing
Loan;
(c) in the same currency as the maturing Loan (unless it arose as a result
of the operation of Clause 6.2 (Unavailability of a currency)); and
(d) made or to be made for the purpose of refinancing a maturing Loan.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. or any successor by merger or change of name
which is a nationally recognised rating agency in the United States of
America.
"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 (currently page
3750 in relation to LIBOR and page 248 in relation to EURIBOR). 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 Borrower and the Lenders.
"SECURITY" means any lien, security interest or other charge or encumbrance
of any kind, or any other type of preferential arrangement, including,
without limitation, the lien or retained security title of a conditional
vendor and any easement, right of way or other encumbrance on title to real
property.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that:
(a) is maintained for employees of the Guarantor or any ERISA Affiliate
and no person other than the Guarantor and the ERISA Affiliates; or
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(b) was so maintained and in respect of which the Guarantor or any ERISA
Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"SPECIFIED TIME" means a time determined in accordance with Schedule 6
(Timetables).
"SUBSIDIARY" of any person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of:
(a) the issued and outstanding capital stock having ordinary voting power
to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class
or classes of such corporation shall or might have voting power upon
the occurrence of any contingency);
(b) the interest in the capital or profits of such limited liability
company, partnership or joint venture; or
(c) the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such person, by such
person and one or more of its other Subsidiaries or by one or more of
such person's other Subsidiaries.
"SUBSIDIARY GUARANTEE" has the meaning given to it in Clause 20.16
(Subsidiary Guarantors).
"SUBSIDIARY GUARANTOR" has the meaning given to it in Clause 20.16
(Subsidiary Guarantors).
"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 or interest payable in connection
with any failure to pay or any delay in paying any of the same).
"TERMINATION DATE" means the date falling five years after the date hereof.
"TOTAL COMMITMENTS" means the aggregate of the Commitments, being EUR
350,000,000 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 Certificates) or any other
form agreed between the Agent and the Borrower.
"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.
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"UNPAID SUM" means any sum due and payable but unpaid by the Borrower or
the Guarantor under the Finance Documents.
"UTILISATION" means a utilisation of a Facility.
"UTILISATION DATE" means the date of a Utilisation, being the date on which
the relevant Loan is to be made.
"UTILISATION REQUEST" means a notice substantially in the form set out in
Schedule 3 (Utilisation Request).
"VAT" means value added tax as provided for in the Value Added Tax Act 1994
and any other tax of a similar nature.
"VOTING STOCK" means capital stock issued by a corporation, or equivalent
interests in any other person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such person, even if the right
so to vote has been suspended by the happening of such a contingency.
1.2 CONSTRUCTION
(a) Unless a contrary indication appears a reference in this Agreement to:
(i) "BARCLAYS CAPITAL" is a reference to Barclays Capital, the
investment banking division of Barclays Bank PLC;
(ii) "ASSETS" includes present and future properties, revenues and
rights of every description;
(iii) the "EUROPEAN INTERBANK MARKET" means the interbank market for
euro operating in Participating Member States;
(iv) 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;
(v) a "FINANCIAL YEAR" in relation to any body corporate is a
reference to the period in respect of which such body corporate
produces its annual accounts and references to "FINANCIAL HALF
YEARS" and "FINANCIAL QUARTERS" shall be construed accordingly;
(vi) "INDEBTEDNESS" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(vii) a "PERSON" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability
company or other entity, or a government or any political
subdivision or agency thereof;
(viii) a "REGULATION" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental,
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intergovernmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;
(ix) a provision of law is a reference to that provision as amended
or re-enacted; and
(x) a time of day is a reference to London time.
(b) Section, Clause and Schedule headings are for ease of reference only.
(c) In this Agreement, any reference to a "Clause" or "Schedule" is,
unless the context otherwise requires, a reference to a Clause or
Schedule hereof.
(d) Unless a contrary indication appears, a term used in any other Finance
Document or in any notice given under or in connection with any
Finance Document has the same meaning in that Finance Document or
notice as in this Agreement.
(e) A Default (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 CURRENCY SYMBOLS AND DEFINITIONS
"$" and "DOLLARS" denote lawful currency of the United States of America,
"(POUND)" and "STERLING" denotes lawful currency of the United Kingdom and
"EUR" and "EURO" means the single currency unit of the Participating Member
States.
1.4 THIRD PARTY RIGHTS
Unless expressly provided to the contrary in a Finance Document, a person
who is not a party to this Agreement has no right under the Contracts
(Rights of Third Parties) Act 1999 (the "THIRD PARTIES ACT") to enforce any
term of this Agreement.
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SECTION 2.
THE FACILITY
2. THE FACILITY
2.1 THE FACILITY
Subject to the terms of this Agreement, the Lenders make available to the
Borrower a multicurrency revolving loan facility in an aggregate amount
equal to the Total 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 the Borrower 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
The Borrower shall apply all amounts borrowed by it under the Facility for
general corporate purposes, including the refinancing of existing
(intra-group and other) indebtedness.
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
The Borrower may not deliver a Utilisation Request unless the Agent has
received all of the documents and other evidence listed in Schedule 2
(Conditions precedent) in form and substance satisfactory to the Agent. The
Agent shall notify the Borrower 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:
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(a) in the case of a Rollover Loan, no Event of Default is continuing or
would result from the proposed Loan and, in the case of any other
Loan, no Default iS continuing or would result from the proposed Loan;
and
(b) the representations and warranties contained in Clause 19
(Representations and Warranties), other than those set out in the last
sentence of Clause 19.5 (Financial Statements), paragraph (a) of
Clause 19.6 (No proceedings pending or threatened) and paragraphs (a),
(b) and (c) of Clause 19.9 (No misleading information), are correct on
and as of the Utilisation Date.
4.3 CONDITIONS RELATING TO OPTIONAL CURRENCIES
(a) A currency will constitute an Optional Currency in relation to a Loan
if:
(i) it is readily available in the amount required and freely
convertible into the Base Currency in the Relevant Interbank
Market on the Quotation Day and the Utilisation Date for that
Loan; and
(ii) it is dollars or sterling or has been approved by the Agent
(acting on the instructions of all the Lenders) on or prior to
receipt by the Agent of the Utilisation Request for that Loan.
(b) If the Agent has received a written request from the Borrower for a
currency to be approved under paragraph (a)(ii) above, the Agent will
confirm to the Borrower by the Specified Time:
(i) whether or not the Lenders have granted their approval; and
(ii) if approval has been granted, the minimum amount (and, if
required, integral multiples) for any subsequent Utilisation in
that currency.
4.4 MAXIMUM NUMBER OF LOANS
(a) The Borrower may not deliver a Utilisation Request if as a result of
the proposed Utilisation 10 or more Loans would be outstanding.
(b) Any Loan made by a single Lender under Clause 6.2 (Unavailability of a
currency) shall not be taken into account in this Clause 4.4.
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SECTION 3.
UTILISATION
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
The Borrower may utilise the 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) the proposed Utilisation Date is a Business Day within the
Availability Period;
(ii) the currency and amount of the Utilisation comply with Clause
5.3 (Currency and amount); and
(iii) the proposed Interest Period complies with Clause 10 (Interest
Periods).
(b) Only one Loan may be requested in each Utilisation Request.
5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request must be the Base
Currency or an Optional Currency.
(b) The amount of the proposed Loan must be an amount whose Base Currency
Amount is not more than the Available Facility and which is:
(i) if the currency selected is the Base Currency, a minimum of EUR
10,000,000 (and an integral multiple of EUR 5,000,000) or in
either case the Available Facility; or
(ii) if the currency selected is an Optional Currency, the minimum
amount (or an integral multiple, if required) specified by the
Agent pursuant to paragraph (b) (ii) of Clause 4.3 (Conditions
relating to Optional Currencies) or the equivalent in such
Optional Currency of the Base Currency Amount of 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 applicable Available Commitment to the
applicable Available Facility immediately prior to making the Loan.
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(c) The Agent shall notify each Lender of the amount, currency and the
Base Currency Amount of each Loan at the Specified Time.
6. OPTIONAL CURRENCIES
6.1 SELECTION OF CURRENCY
The Borrower shall select the currency of a Loan in a Utilisation Request.
6.2 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 Loan in the proposed Optional Currency would
contravene a law or regulation applicable to it,
the Agent will give notice to the Borrower to that effect by the Specified
Time on that day. In this event, any Lender that gives notice pursuant to
this Clause 6.2 will be required to participate in the Loan in the Base
Currency (in an amount equal to that Lender's proportion of the Base
Currency Amount, or in respect of a Rollover Loan, an amount equal to that
Lender's proportion of the Base Currency Amount of the maturing Loan that
is due to be repaid) and its participation will be treated as a separate
Loan denominated in the Base Currency during that Interest Period.
6.3 PARTICIPATION IN A LOAN
Each Lender's participation in a Loan will be determined in accordance
with paragraph (b) of Clause 5.4 (Lenders' participation).
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SECTION 4.
REPAYMENT, PREPAYMENT AND CANCELLATION
7. REPAYMENT
7.1 REPAYMENT OF LOANS
The Borrower shall repay each Loan on the last day of its Interest Period.
7.2 REDUCTION OF FACILITY
(a) The Total Commitments shall be reduced in instalments on each
Reduction Date by an amount equal to a fraction of the Total
Commitments at the date of this Agreement as set out in the table
below:
REDUCTION DATE REDUCTION INSTALMENT
(FRACTION)
The date falling 4 years 1/3
after the date hereof
The date falling 4 years
and six Months after the
date hereof 1/3
The Termination Date 1/3
(b) The Borrower shall ensure that sufficient Loans are repaid on a
Reduction Date to the extent necessary so that the aggregate of the
Base Currency Amounts of the outstanding Loans (after that repayment)
is equal to or less than the reduced amount of the Total Commitments.
(c) Any reduction of the Total Commitments shall reduce rateably the
Commitment of each Lender.
(d) If the Borrower cancels the whole or any part of the Commitments in
accordance with Clause 8.2 (Voluntary Cancellation) or Clause 8.4
(Right of repayment and cancellation in relation to a single Lender)
or if the Commitment of any Lender is reduced under Clause 8.1
(Illegality), then the amount of the Reduction Instalment for each
Reduction Date falling after that cancellation will reduce pro rata by
the amount cancelled.
8. PREPAYMENT AND CANCELLATION
8.1 ILLEGALITY
If, at any time, it is or will become 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 Loan:
(a) that Lender shall promptly notify the Agent upon becoming aware of
that event;
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(b) upon the Agent notifying the Borrower, the Commitment of that Lender
will be immediately cancelled; and
(c) the Borrower shall repay that Lender's participation in the Loans made
to the Borrower on the last day of the Interest Period for each Loan
occurring after the Agent has notified the Borrower or, if earlier,
the date specified by the Lender in the notice delivered to the Agent.
8.2 VOLUNTARY CANCELLATION
(a) The Borrower may, if it gives the Agent not less than 10 Business
Days' prior notice, cancel the whole or any part (being a minimum
amount of EUR 10,000,000 and an integral multiple of EUR 5,000,000) of
the Available Facility.
(b) Any cancellation under this Clause 8.2 shall reduce the Commitments of
the Lenders rateably under the Facility.
8.3 VOLUNTARY PREPAYMENT
The Borrower may, if it gives the Agent not less than 10 Business Days'
prior notice, prepay the whole or any part of a Loan (but if in part, being
an amount that reduces the Base Currency Amount of the Loan by a minimum
amount of EUR 10,000,000 and an integral multiple of EUR 5,000,000).
8.4 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER
(a) If:
(i) any sum payable to any Lender by the Borrower is required to be
increased under paragraph (c) of Clause 13.2 (Tax gross-up); or
(ii) any Lender claims indemnification from the Borrower under Clause
13.3 (Tax indemnity) or Clause 14.1 (Increased costs),
the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent notice of
cancellation of the Commitment of that Lender and its intention to
procure the repayment of that Lender's participation in the Loans.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the Borrower
has given notice under paragraph (a) above (or, if earlier, the date
specified by the Borrower in that notice), the Borrower shall repay
that Lender's participation in that Loan.
8.5 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party under this
Clause 8 shall be irrevocable and, unless a contrary indication
appears in this Agreement, shall specify the date or dates upon which
the relevant cancellation or prepayment is to be made and the amount
of that cancellation or prepayment.
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(b) Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break
Costs, without premium or penalty.
(c) Unless a contrary indication appears in this Agreement, any part of
the Facility which is prepaid may be reborrowed in accordance with the
terms of this Agreement.
(d) The Borrower shall not repay or prepay all or any part of the Loans or
cancel all or any part of the Commitments except at the times and in
the manner expressly provided for in this Agreement.
(e) No amount of the Total Commitments cancelled under this Agreement may
be subsequently reinstated.
(f) If the Agent receives a notice under this Clause 8 it shall promptly
forward a copy of that notice to either the Borrower or the affected
Lender, as appropriate.
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SECTION 5.
COSTS OF UTILISATION
9. INTEREST
9.1 CALCULATION OF INTEREST
The rate of interest on each Loan from day to day during each Interest
Period relating thereto is the percentage rate per annum which is the
aggregate of:
(a) the Applicable Margin at such time;
(b) LIBOR or, in relation to any Loan in euro, EURIBOR; and
(c) Mandatory Cost, if any.
9.2 NOTIFICATION OF CHANGE IN PUBLIC DEBT RATING
The Guarantor shall, promptly upon any public announcement of a change in
any Public Debt Rating being made, notify the Agent of such change.
9.3 PAYMENT OF INTEREST
On the last day of each Interest Period the Borrower shall pay accrued
interest on the Loan to which that Interest Period relates (and, if the
Interest Period is longer than six Months, on the dates falling at six
Monthly intervals after the first day of the Interest Period).
9.4 DEFAULT INTEREST
(a) If the Borrower 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 one per cent. higher than the rate which
would have been payable if the overdue amount had, during the period
of non-payment, constituted a Loan in the currency of the overdue
amount for successive Interest Periods, each of a duration selected by
the Agent (acting reasonably). Any interest accruing under this Clause
9.4 shall be immediately payable by the Borrower on demand by the
Agent.
(b) Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest Period
applicable to that overdue amount but will remain immediately due and
payable.
9.5 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.
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10. INTEREST PERIODS
10.1 SELECTION OF INTEREST PERIODS
(a) The Borrower may select an Interest Period for a Loan in the
Utilisation Request for that Loan.
(b) Subject to this Clause 10, the Borrower may select an Interest Period
of one, two, three or six Months or any other period agreed between
the Borrower and the Agent (acting on the instructions of all the
Lenders). In addition the Borrower may select an Interest Period of a
period of less than one Month, if necessary to ensure that there are
Loans (with an aggregate Base Currency Amount equal to or greater than
the Reduction Instalment) which have an Interest Period ending on a
Reduction Date for the Borrower to make the Reduction Instalment due
on that date.
(c) An Interest Period for a Loan shall not extend beyond the Termination
Date.
(d) Each Interest Period for a Loan shall start on the Utilisation Date.
(e) A Loan has one Interest Period only.
10.2 CHANGES TO INTEREST PERIODS
(a) Prior to determining the interest rate for a Loan, the Agent may
shorten an Interest Period for any Loan to ensure there are sufficient
Loans with an Interest Period ending on a Reduction Date for the
scheduled reduction to occur.
(b) If the Agent makes any of the changes to an Interest Period referred
to in this Clause 10.2, it shall promptly notify the Borrower and the
Lenders.
10.3 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).
11. CHANGES TO THE CALCULATION OF INTEREST
11.1 ABSENCE OF QUOTATIONS
Subject to Clause 11.2 (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.
11.2 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 Applicable Margin;
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(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
Interest Period; or
(ii) before close of business 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.
11.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Agent or the Borrower so
requires, the Agent and the Borrower shall enter into negotiations
(for a period of not more than thirty days) with a view to agreeing a
substitute basis for determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above shall,
with the prior consent of all the Lenders and the Borrower, be binding
on all Parties.
11.4 BREAK COSTS
(a) The 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 the 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.
12. FEES
12.1 COMMITMENT FEE
(a) The Borrower shall pay to the Agent (for the account of each Lender) a
fee in the Base Currency computed at a percentage rate per annum equal
to half of the Applicable Margin applicable at the relevant time on
that Lender's Available Commitment under the Facility for the
Availability Period.
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(b) The accrued commitment fee is payable on the last day of each
successive period of three Months which ends during the 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.
12.2 ARRANGEMENT FEE
The Borrower shall pay to the Arrangers an arrangement fee in the amount
and at the times agreed in a Fee Letter.
12.3 AGENCY FEE
The Borrower shall pay to the Agent (for its own account) an agency fee in
the amount and at the times agreed in a Fee Letter.
12.4 UTILISATION FEE
The Borrower shall pay to the Agent (for the account of each Lender) for
each date on which (i) the aggregate amount of the outstanding Loans
exceeds 50% of the Total Commitments on that date and (ii) the Public Debt
Rating is at Level 4 or below on that date, a fee on the aggregate amount
by which the outstanding Loans on that date exceed 50% of the Total
Commitments on that date at a rate per annum equal to 0.05%, payable on the
last day of each successive period of three Months which ends during the
Availability Period and on the last day of the Availability Period.
12.5 PARTICIPATION FEE
The Borrower shall pay to the Agent (for the account of each Original
Lender) a participation fee in the amount and at the times agreed in a Fee
Letter.
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SECTION 6.
ADDITIONAL PAYMENT OBLIGATIONS
13. TAX GROSS UP AND INDEMNITIES
13.1 DEFINITIONS
(a) In this Clause 13:
"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.
"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 13.2 (Tax gross-up) or a payment under Clause 13.3 (Tax
indemnity).
(b) In this Clause 13 a reference to "determines" or "determined" means a
determination made in the absolute discretion of the person making the
determination.
13.2 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 Borrower 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
each Obligor.
(c) If a Tax Deduction is required by law to be made by an Obligor in
relation to any payment to be made to a Finance Party under any
Finance Document the amount of the payment due from that Obligor shall
be increased to an amount which (after making any Tax Deduction)
leaves an amount equal to the payment which would have been due if no
Tax Deduction had been required.
(d) If an Obligor is required to make a Tax Deduction, such 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.
(e) 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 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.
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13.3 TAX INDEMNITY
(a) The Borrower shall (within three Business Days of demand by the Agent)
pay to a Protected Party an amount equal to the loss, liability or
cost which that Protected Party determines 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 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.
(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 Borrower.
(d) A Protected Party shall, on receiving a payment from an Obligor under
this Clause 13.3, notify the Agent.
13.4 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.
13.5 STAMP TAXES
The Borrower 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.
13.6 VALUE ADDED TAX
(a) All consideration payable under a Finance Document by any Obligor to a
Finance Party shall be deemed to be exclusive of any VAT. If VAT is
chargeable, the Obligor
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making the payment 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, such Obligor shall also at the same
time pay and indemnify that Finance Party against all VAT incurred by
that Finance Party in respect of the costs or expenses save to the
extent that that Finance Party is entitled to repayment or credit in
respect of the VAT.
14. INCREASED COSTS
14.1 INCREASED COSTS
(a) Subject to Clause 14.3 (Exceptions) the Borrower 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; or
(iii) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance Party
having entered into its Commitment or funding or performing its
obligations under any Finance Document.
14.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause 14.1
(Increased costs) shall notify the Agent of the event giving rise to
the claim, following which the Agent shall promptly notify the
Borrower.
(b) Each Finance Party shall, as soon as practicable after a demand by the
Agent, provide a certificate confirming the amount of its Increased
Costs.
14.3 EXCEPTIONS
(a) Clause 14.1 (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 13.3 (Tax indemnity) (or would have
been compensated for under Clause 13.3 (Tax indemnity) but was
not so compensated solely because one of the exclusions in
paragraph (b) of Clause 13.3 (Tax indemnity) applied);
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(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.
(b) In this Clause 14.3, a reference to a "TAX DEDUCTION" has the same
meaning given to the term in Clause 13.1 (Definitions).
15. OTHER INDEMNITIES
15.1 CURRENCY INDEMNITY
(a) If any sum due from an Obligor under the Finance Documents (a "SUM"),
or any order, judgment or award given or made in relation to a Sum,
has to be converted from the currency (the "FIRST CURRENCY") in which
that Sum is payable into another currency (the "SECOND CURRENCY") for
the purpose of:
(i) making or filing a claim or proof against that Obligor;
(ii) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within 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.
15.2 OTHER INDEMNITIES
Each Obligor shall, within three Business Days of demand, 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 27 (Sharing among the
Lenders);
(c) funding, or making arrangements to fund, its participation in a Loan
requested by a Borrower in a Utilisation Request but not made by
reason of the operation of any one or more of the provisions of this
Agreement (other than by reason of default or negligence by that
Lender alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by the Borrower.
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15.3 INDEMNITY TO THE AGENT
The Borrower 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 delivered in
connection with a Finance Document which it reasonably believes to be
genuine, correct and appropriately authorised.
16. MITIGATION BY THE LENDERS
16.1 MITIGATION
(a) Each Finance Party shall, in consultation with the Borrower, take all
reasonable steps to mitigate any circumstances which arise and which
would result in any amount becoming payable under, or cancelled
pursuant to, any of Clause 8.1 (Illegality), Clause 13 (Tax gross-up
and indemnities) or Clause 14 (Increased costs) including (but not
limited to) the completion of any form or application required to
claim exemption from withholding taxes in any relevant jurisdiction
(to the extent that such Finance Party may lawfully complete such form
or application without causing material prejudice to its own interests
(as determined by such Finance Party in its absolute discretion) or
revealing any information which such Finance Party considers to be
confidential) or 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
of the Obligors under the Finance Documents.
16.2 LIMITATION OF LIABILITY
(a) The Borrower shall indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 16.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 16.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it.
17. COSTS AND EXPENSES
17.1 TRANSACTION EXPENSES
The Borrower shall promptly on demand pay the Agent and the Arrangers the
amount of all costs and expenses (including legal fees) reasonably incurred
by any of them in connection with the negotiation, preparation, printing,
execution and syndication of:
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(a) this Agreement and any other documents referred to in this Agreement;
and
(b) any other Finance Documents executed after the date of this Agreement.
17.2 AMENDMENT COSTS
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 28.9 (Change of currency), the
Borrower shall, within three Business Days of demand, reimburse the Agent
for the amount of all costs and expenses (including legal fees) reasonably
incurred by the Agent in responding to, evaluating, negotiating or
complying with that request or requirement.
17.3 ENFORCEMENT COSTS
The Borrower shall, within three Business Days of demand, pay to each
Finance Party the amount of all 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.
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SECTION 7.
GUARANTEE
18. GUARANTEE AND INDEMNITY
18.1 GUARANTEE AND INDEMNITY
The Guarantor irrevocably and unconditionally:
(a) guarantees to each Finance Party punctual performance by the Borrower
of all the Borrower's obligations under the Finance Documents;
(b) undertakes with each Finance Party that whenever the Borrower does not
pay any amount when due under or in connection with any Finance
Document, the Guarantor shall immediately on demand pay that amount as
if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against any cost,
loss or liability suffered by that Finance Party if any obligation
guaranteed by it is or becomes unenforceable, invalid or illegal. The
amount of the cost, loss or liability shall be equal to the amount
which that Finance Party would otherwise have been entitled to
recover.
18.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by the Borrower under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
18.3 REINSTATEMENT
If any payment by the Borrower or any discharge given by a Finance Party
(whether in respect of the obligations of the Borrower or any security for
those obligations or otherwise) is avoided or reduced as a result of
insolvency or any similar event:
(a) the liability of the Borrower shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) each Finance Party shall be entitled to recover the value or amount of
that security or payment from the Borrower, as if the payment,
discharge, avoidance or reduction had not occurred.
18.4 WAIVER OF DEFENCES
The obligations of the Guarantor under this Clause 18 will not be affected
by an act, omission, matter or thing which, but for this Clause, would
reduce, release or prejudice any of its obligations under this Clause 18
(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, the
Borrower or other person;
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(b) the release of the Borrower 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, the Borrower 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 the Borrower 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.
18.5 IMMEDIATE RECOURSE
The 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 the Guarantor under this Clause 18. This waiver applies
irrespective of any law or any provision of a Finance Document to the
contrary.
18.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Borrower 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 the Guarantor shall not be entitled to the
benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received from
the Guarantor or on account of the Guarantor's liability under this
Clause 18.
18.7 DEFERRAL OF GUARANTOR'S RIGHTS
Until all amounts which may be or become payable by the Borrower under or
in connection with the Finance Documents have been irrevocably paid in full
and unless the Agent otherwise directs, the Guarantor will not exercise any
rights which it may have by reason of performance by it of its obligations
under the Finance Documents:
(a) to be indemnified by the Borrower;
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(b) to claim any contribution from any other guarantor of the Borrower's
obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties under
the Finance Documents or of any other guarantee or security taken
pursuant to, or in connection with, the Finance Documents by any
Finance Party.
18.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Finance Party.
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SECTION 8.
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
19. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants in respect of itself and the Guarantor
represents and warrants in respect of itself and each other member of the
Group as follows:
19.1 STATUS
Each of the Borrower and the Guarantor is a corporation duly organised,
validly existing and in good standing under the laws of Luxembourg and the
laws of the State of New York, respectively.
19.2 POWER AND AUTHORITY
The execution, delivery and performance by each Obligor of the Finance
Documents to which it is a party, and the consummation of the transactions
contemplated thereby, are within such Obligor's corporate powers, have been
duly authorised by all necessary corporate action, and do not conflict
with:
(a) such Obligor's charter, by-laws or other constitutive documents; or
(b) any law or any contractual restriction binding on or affecting such
Obligor.
19.3 VALIDITY AND ADMISSIBILITY IN EVIDENCE
Except for the requirement of registration of the Finance Documents and/or
any other documents referred to therein in the case of their production in
court proceedings before a Luxembourg court or their submittal (either
directly or by way of reference) as a legal title before an official
Luxembourg authority, no authorisation or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body
or any other third party is required (i) for the due execution, delivery
and performance by each Obligor of the Finance Documents to which it is a
party or (ii) to make the Finance Documents to which it is a party
admissible in evidence in its jurisdiction of incorporation.
19.4 BINDING OBLIGATIONS
Each Finance Document once delivered will have been duly executed and
delivered by the Obligor party thereto. Each Finance Document once
delivered will be the legal, valid and binding obligation of the Obligor
party thereto enforceable against it in accordance with its terms.
19.5 FINANCIAL STATEMENTS
The Consolidated balance sheet of the Guarantor and its Subsidiaries as at
December 31, 2001, and the related Consolidated statements of income and
cash flows of the Guarantor and its Subsidiaries for the financial year
then ended, accompanied by an opinion of the Guarantor's auditors, copies
of which have been furnished to each Lender, fairly present the
Consolidated financial condition of the Guarantor and its Subsidiaries as
at such date and the Consolidated results of the operations of the
Guarantor and its Subsidiaries for the period ended on such
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date, all in accordance with GAAP consistently applied. Since December 31,
2001, there has been no Material Adverse Change.
19.6 NO PROCEEDINGS PENDING OR THREATENED
There is no pending or threatened action, suit, investigation, litigation
or proceeding, including, without limitation, any Environmental Action,
affecting the Borrower, the Guarantor or any of its Subsidiaries before any
court, governmental agency or arbitrator that (a) could be reasonably
likely to have a Material Adverse Effect or (b) purports to affect the
legality, validity or enforceability of the Finance Documents or the
consummation of the transactions contemplated thereby.
19.7 MARGIN STOCK REGULATIONS
No Obligor is engaged in the business of extending credit for the purpose
of purchasing or carrying margin stock (within the meaning of the United
States Regulation U issued by the Board of Governors of the United States
Federal Reserve System), and no proceeds of any Utilisation will be used to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
19.8 INVESTMENT COMPANY
The Guarantor is not an "investment company", or a company "controlled" by
an "investment company", within the meaning of the United States Investment
Company Act of 1940, as amended.
19.9 NO MISLEADING INFORMATION
(a) Any factual information provided by any of the Obligors or any other
member of the Group for the purposes of the Information Memorandum was
true and accurate in all material respects as at the date it was
provided or as at the date (if any) at which it is stated and all
material information in relation to the Information Memorandum has
been disclosed to the Finance Parties.
(b) The financial projections contained in the Information Memorandum have
been prepared on the basis of recent historical information and on the
basis of reasonable assumptions and nothing has occurred since the
date of the Information Memorandum which is reasonably likely to cause
any of those assumptions to be untrue.
(c) Nothing has occurred or been omitted from the Information Memorandum
and no information has been given or withheld that results in the
information contained in the Information Memorandum being untrue or
misleading in any material respect.
(d) All written information (other than the Information Memorandum)
supplied by any of the Obligors or any of the Borrower's Subsidiaries
to any Finance Party is true, complete and accurate in all material
respects as at the date it was given and is not misleading in any
material respect.
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20. GENERAL COVENANTS
The general covenants in this Clause 20 shall remain in force from the date
of this Agreement for so long as any amount shall remain unpaid under the
Finance Documents or any Lender shall have any Commitment hereunder.
20.1 AUTHORISATION
Each Obligor shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in full
force and effect; and
(b) supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its jurisdiction
of incorporation to enable it to perform all of its payment and other
material obligations under any Finance Document to which it is a party and
to ensure the legality, validity, enforceability or admissibility in
evidence in its jurisdiction of incorporation of any Finance Document.
20.2 COMPLIANCE WITH LAWS
Each Obligor shall comply, and cause each of its Subsidiaries to comply, in
all material respects, with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and Environmental Laws.
20.3 PAYMENT OF TAXES, ETC.
Each Obligor shall pay and discharge, and cause each of its Subsidiaries to
pay and discharge, before the same shall become overdue, (a) all Taxes,
assessments and governmental charges or levies imposed upon it or upon its
assets and (b) all lawful claims that, if unpaid, might by law become a
Security upon its assets; PROVIDED, HOWEVER, that no Obligor nor any of its
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, unless and until any Security resulting therefrom attaches to
its assets and becomes enforceable against its other creditors.
20.4 MAINTENANCE OF INSURANCE
Each Obligor shall maintain, and cause each of its Subsidiaries to
maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried
by companies engaged in similar businesses and owning similar properties in
the same general areas in which the Obligors or such Subsidiary operates;
PROVIDED, HOWEVER, that each of the Obligors and its Subsidiaries may
self-insure to the same extent as other companies engaged in similar
businesses and owning similar properties in the same general areas in which
the Obligors or such Subsidiary operates and to the extent consistent with
prudent business practice.
20.5 PRESERVATION OF CORPORATE EXISTENCE, ETC.
Each Obligor shall preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, its corporate existence (other than,
in the case of any Subsidiary which is not an Obligor, as a result of a
solvent winding-up on terms approved by the Majority Lenders), rights
(charter and statutory) and franchises, PROVIDED, HOWEVER, that each of the
Obligors and its Subsidiaries may consummate any merger or consolidation
permitted under Clause 20.11
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(Mergers) and PROVIDED FURTHER that neither the Obligors nor any of their
Subsidiaries shall be required to preserve any right or franchise if the
Board of Directors of the Guarantor shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Borrower, and that the loss thereof is not disadvantageous in any material
respect to the Borrower or the Lenders.
20.6 INSPECTION RIGHTS
Each Obligor shall permit, and cause each of its Subsidiaries to permit, at
any reasonable time and from time to time, the Agent or any of the Lenders
or any agents or representatives thereof, to examine and make copies of and
abstracts from the records and books of account of, and visit (subject to
applicable safety laws and regulations) the properties of, the Obligors and
any of their Subsidiaries, and to discuss the affairs, finances and
accounts of the Obligors and any of their Subsidiaries with any of their
officers or directors and with their independent certified public
accountants.
20.7 KEEPING OF BOOKS
Each Obligor shall keep, and cause each of its Subsidiaries to keep, proper
books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the
Obligors and each such Subsidiary in accordance with GAAP in effect from
time to time.
20.8 MAINTENANCE OF ASSETS
Each Obligor shall maintain and preserve, and cause each of its
Subsidiaries to maintain and preserve, all of its assets that are used or
useful in the conduct of its business in good working order and condition,
subject to reasonable wear and tear normally experienced in the type of
business in which such Obligor is engaged.
20.9 REPORTING REQUIREMENTS
20.9.1 Quarterly Statements of the Guarantor
The Guarantor shall furnish to the Agent (in sufficient copies for each of
the Lenders), as soon as available and in any event within 45 days after
the end of each of the first three quarters of each financial year of the
Guarantor, (i) the Consolidated balance sheet of the Guarantor and its
Subsidiaries as of the end of such quarter and Consolidated statements of
income and cash flows of the Guarantor and its Subsidiaries for such
quarter and for the period commencing at the end of the previous financial
year and ending with the end of such quarter, duly certified (subject to
year-end audit adjustments) by the chief financial officer of the Guarantor
as having been prepared in accordance with GAAP and (ii) certificates of
the chief financial officer of the Guarantor as to compliance with the
terms of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Clause 21 (Financial
covenant), PROVIDED THAT in the event of any change in generally accepted
accounting principles in the United States of America which is then applied
in the preparation of such financial statements, the Guarantor shall also
provide, if necessary for the determination of compliance with Clause 21
(Financial covenant), a statement of reconciliation conforming such
financial statements to GAAP (which means, for the avoidance of doubt,
generally accepted accounting principles in the United States of America
consistent with those applied in the preparation of the financial
statements referred to in Clause 19.5 (Financial Statements)).
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20.9.2 Annual Statements of the Guarantor
The Guarantor shall furnish to the Agent (in sufficient copies for each of
the Lenders), as soon as available and in any event within 90 days after
the end of each financial year of the Guarantor, a copy of the annual audit
report for such year for the Guarantor and its Subsidiaries, containing the
Consolidated balance sheet of the Guarantor and its Subsidiaries as of the
end of such financial year and Consolidated statements of income and cash
flows of the Guarantor and its Subsidiaries for such financial year, in
each case accompanied by an opinion acceptable to the Majority Lenders by
PricewaterhouseCoopers LLP or other independent public accountants of
comparable size and of international reputation, PROVIDED THAT in the event
of any change in generally accepted accounting principles in the United
States of America which is then applied in the preparation of such
financial statements, the Guarantor shall also provide, if necessary for
the determination of compliance with Clause 21 (Financial covenant), a
statement of reconciliation conforming such financial statements to GAAP
(which means, for the avoidance of doubt, generally accepted accounting
principles in the United States of America consistent with those applied in
the preparation of the financial statements referred to in Clause 19.5
(Financial Statements)).
20.9.3 Quarterly Statements of the Borrower
The Borrower shall furnish to the Agent (in sufficient copies for each of
the Lenders), as soon as available and in any event within 45 days after
the end of each quarter of each financial year of the Borrower, the
unconsolidated balance sheet of the Borrower as of the end of such quarter
and unconsolidated statements of profit and loss and, to the extent
available, of cash flows of the Borrower for such quarter and for the
period commencing at the end of the previous financial year and ending with
the end of such quarter, duly certified (subject to year-end audit
adjustments) by a director of the Borrower, as having been prepared in
accordance with GAAP.
20.9.4 Information Relating to the Material Subsidiaries
The Borrower shall furnish to the Agent (in sufficient copies for each of
the Lenders), as soon as available and in any event within 45 days after
the end of each quarter of each financial year of the relevant Material
Subsidiary, figures relating to sales of each Material Subsidiary for such
quarter and relating to shareholders' equity of each Material Subsidiary as
of the end of such quarter.
20.9.5 Notification of Default
The Obligors shall furnish to the Agent, as soon as possible and in any
event within five days after the occurrence of each Default continuing on
the date of such statement, a statement of a director of the Borrower or
the Guarantor, as applicable, setting forth details of such Default and the
action that the Borrower or the Guarantor, as applicable, has taken and
proposes to take with respect thereto.
20.9.6 Communications to securityholders
The Obligors shall furnish to the Agent, promptly after the sending or
filing thereof, copies of all reports that the Guarantor sends to any of
its securityholders, and copies of all reports and
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registration statements that the Guarantor or any of its Subsidiaries files
with the United States Securities and Exchange Commission or any national
securities exchange.
20.9.7 Notification of proceedings
The Obligors shall furnish to the Agent, promptly after the commencement
thereof, notice of all actions and proceedings before any court,
governmental agency or arbitrator affecting any Obligor or any of its
Subsidiaries of the type described in Clause 19.6 (No proceedings pending
or threatened).
20.9.8 Other information
Each Obligor shall furnish to the Agent such other information regarding
any of the Obligors or any of its Subsidiaries as any Lender through the
Agent may from time to time reasonably request from that Obligor.
20.9.9 Delivery
Reports and financial statements required to be delivered by the Obligors
pursuant to subclauses 20.9.1, 20.9.2 and 20.9.6 of this Clause 20.9 shall
be deemed to have been delivered on the date on which the Guarantor posts
such reports, or reports containing such financial statements, on its
website on the Internet at www.iff.com provided that the Obligors notify
the Agent that such reports have been posted and that such web site is
accessible by the Agent and the Lenders; and PROVIDED FURTHER that paper
copies of the reports and financial statements referred to in subclauses
20.9.1, 20.9.2 and 20.9.6 of this Clause 20.9 shall be delivered by the
Obligors to the Agent or any Lender who requests it to deliver such paper
copies until written notice to cease delivering paper copies is given by
the Agent or such Lender; and provided further that in every instance the
Obligors shall provide paper copies of the certificates or opinions
required by subclauses 20.9.1 and 20.9.2 of this Clause 20.9 to the Agent
and each of the Lenders until such time as the Agent shall provide any of
them written notice otherwise.
20.10 NEGATIVE PLEDGE
Each Obligor shall not create or suffer to exist, any Security on or with
respect to any of its assets, whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any right to receive
income, other than:
(a) Permitted Securities;
(b) purchase money Securities upon or in any real property or equipment
acquired or held by the Guarantor or any Subsidiary in the ordinary
course of business to secure the purchase price of such real property
or equipment or to secure Debt incurred solely for the purpose of
financing the acquisition of such real property or equipment, or
Securities existing on such real property or equipment at the time of
its acquisition (other than any such Securities created in
contemplation of such acquisition that were not incurred to finance
the acquisition of such real property) or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount,
PROVIDED, HOWEVER, that no such Security shall extend to or cover any
assets of any character other than the real property or equipment
being acquired, and no such extension, renewal or replacement shall
extend to or cover any assets not theretofore subject to
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the Security being extended, renewed or replaced, PROVIDED FURTHER
that the aggregate principal amount of the indebtedness secured by the
Security referred to in this paragraph (b) shall not exceed
$50,000,000 (or its equivalent in another currency or currencies) at
any time outstanding;
(c) Securities on assets of a person existing at the time such person is
merged into or consolidated with the Guarantor or any Subsidiary of
the Guarantor or becomes a Subsidiary of the Guarantor; PROVIDED THAT
such Securities were not created in contemplation of such merger,
consolidation or acquisition and do not extend to any assets other
than those of the person so merged into or consolidated with the
Guarantor or such Subsidiary or acquired by the Guarantor or such
Subsidiary;
(d) other Securities securing Debt in an aggregate principal amount not to
exceed $100,000,000 (or its equivalent in another currency or
currencies) at any time outstanding; and
(e) the replacement, extension or renewal of any Security permitted by
paragraph (c) above PROVIDED THAT such replacement, extension or
renewal shall not extend to or cover any assets not subject to the
Security being replaced, extended or renewed and PROVIDED FURTHER that
the grantor of the Security as obligor of the relevant Debt shall not
change and the amount of the Debt secured thereby shall not increase
as a result of such replacement, extension or renewal.
20.11 MERGERS
No Obligor shall merge or consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series
of transactions) all or substantially all of the assets (whether now owned
or hereafter acquired) of the Guarantor and its Subsidiaries, taken as a
whole, to any person, or permit any of its Subsidiaries to do so, except
that any Subsidiary of the Guarantor may merge or consolidate with or
into, or dispose of assets to, any other Subsidiary of the Guarantor, and
except that any Subsidiary of the Guarantor may merge into or dispose of
assets to the Guarantor and each of the Guarantor and the Borrower may
merge with any other person so long as it is the surviving corporation
having the obligations expressed to be assumed by it hereunder, PROVIDED,
in each case, that no Default shall have occurred and be continuing at the
time of such proposed transaction or would result therefrom.
20.12 ACCOUNTING CHANGES
No Obligor shall make or permit, or permit any of its Subsidiaries to make
or permit, any change in accounting policies or reporting practices,
except as required or permitted by GAAP.
20.13 CHANGE IN NATURE OF BUSINESS
No Obligor shall make, or permit any of its Subsidiaries to make, any
material change in the nature of the business of the Guarantor and its
Subsidiaries, taken as a whole, as carried on at the date hereof.
20.14 SUBSIDIARY DEBT
No Obligor shall permit any of its Subsidiaries to create or suffer to
exist, any Debt other than:
(a) Debt owed to the Guarantor or to a wholly-owned Subsidiary of the
Guarantor;
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(b) Debt (not falling within paragraphs (a), (c) and (e) of this Clause
20.14 but including Debt falling within paragraph (d) of this Clause
20.14) aggregating for all of the Guarantor's Subsidiaries not more
than $600,000,000 (or its equivalent in another currency or
currencies) at any one time outstanding;
(c) endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business;
(d) Debt owed pursuant to the Finance Documents; and
(e) Debt which is effectively subordinated to the payment obligations of
the Obligors to the Finance Parties hereunder to the satisfaction of
the Agent.
20.15 PARI PASSU
Each Obligor shall ensure that at all times the claims of the Finance
Parties against it under the Finance Documents rank at least pari passu
with the claims of all its other unsecured and unsubordinated creditors
save those whose claims are preferred by any bankruptcy, insolvency,
liquidation or other similar laws of general application.
20.16 SUBSIDIARY GUARANTORS
The Guarantor shall cause each Subsidiary of the Guarantor that is or
thereafter becomes a guarantor under any bank credit facility entered into
by the Borrower to guarantee the obligations of the Borrower under this
Agreement by delivering to the Agent:
(a) a subsidiary guarantee (the "SUBSIDIARY GUARANTEE") in form and
substance satisfactory to the Majority Lenders, duly executed by that
Subsidiary (the "SUBSIDIARY GUARANTOR");
(b) the documents described in Schedule 7 (Subsidiary Guarantee
Documents); and
(c) opinions of reputable counsel in the jurisdiction of incorporation of
the Subsidiary Guarantor reasonably satisfactory to the Majority
Lenders and of special U.S. counsel for the Guarantor or other
counsel reasonably satisfactory to the Majority Lenders (which
opinions shall be reasonably satisfactory to the Majority Lenders and
may be subject to customary exceptions, qualifications and
limitations under the circumstances none of which may relate to the
absence of shareholder approval or be material to the practical
realisation of the benefits and pari passu ranking with the right of
pro rata recovery of a guarantee of unsecured and unsubordinated
Debt) to the effect that such Subsidiary Guarantee has been duly
authorised, executed and delivered by such Subsidiary Guarantor and
is valid, binding and enforceable in accordance with its terms and
the claims of the Lenders (having the benefits of such Subsidiary
Guarantee) against such Subsidiary Guarantor will be enforced on a
parity with the claims of other unsecured and unsubordinated
creditors of such Subsidiary Guarantor in a bankruptcy, insolvency or
other analogous proceeding arising in the jurisdiction of
incorporation of such Subsidiary Guarantor.
21. FINANCIAL COVENANT
So long as any amount shall remain unpaid under the Finance Documents or
any Lender shall have any Commitment hereunder, the Guarantor shall
maintain a ratio of Debt for Borrowed
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Money as at the end of any Relevant Period to EBITDA in respect of such
Relevant Period of not more than 3.25:1.
22. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 22 is an Event of
Default.
22.1 NON-PAYMENT
An Obligor shall fail to pay any amount of principal under a Finance
Document when the same becomes due and payable; or an Obligor shall fail
to pay any interest on any such amount of principal or make any other
payment of fees or other amounts payable under a Finance Document within
three Business Days after the same becomes due and payable.
22.2 MISREPRESENTATION
Any representation or warranty made or confirmed to be correct by an
Obligor herein or by an Obligor (or any of its officers) in connection
with a Finance Document shall prove to have been incorrect or misleading
in any material respect when made or confirmed.
22.3 OTHER OBLIGATIONS
(a) An Obligor shall fail to perform or observe any term, covenant or
agreement contained in Clauses 20.5 (Preservation of corporate
existence, Etc.) and 20.6 (Inspection rights), Clauses 20.9
(Reporting requirements) to 20.13 (Change in nature of business) or
Clause 21 (Financial Covenant); or
(b) an Obligor shall fail to perform or observe any other term, covenant
or agreement contained in any of the Finance Documents on its part to
be performed or observed if such failure shall remain unremedied for
10 days after written notice thereof shall have been given to the
Borrower by the Agent or any Lender.
22.4 CROSS DEFAULT
Any Obligor or any of its Subsidiaries shall fail to pay any principal of
or premium or interest on any Debt that is outstanding in a principal or
notional amount of at least $50,000,000 (or its equivalent in another
currency or currencies) in the aggregate (but excluding Debt outstanding
hereunder) of such Obligor or such Subsidiary (as the case may be), when
the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating
to any such Debt and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Debt shall be required
to be made, in each case prior to the stated maturity thereof.
22.5 INSOLVENCY
Any Obligor or any of its Subsidiaries shall:
(a) generally not pay its debts as such debts become due;
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(b) admit in writing its inability to pay its debts generally;
(c) make a general assignment for the benefit of creditors; or
(d) any proceeding shall be instituted by or against such Obligor or any
of its Subsidiaries seeking:
(i) to adjudicate it a bankrupt or insolvent;
(ii) liquidation, winding up, reorganisation, arrangement,
adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganisation or relief of debtors (such as, in particular,
under Luxembourg law, a "faillite", "gestion controlee",
"concordat judiciaire" or a "liquidation judiciaire"); or
(iii) attachment, sequestration, distress or execution or the entry
of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any
part of its assets,
and in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions sought in
such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any part of its
assets) shall occur; or any Obligor or other member of the Group
shall take any corporate action to authorise any of the actions set
forth above in this Clause 22.5.
However, no Event of Default will occur under this Clause 22.5 if the
events or circumstances referred to in paragraphs (a) to (d) above apply
only to a member or members of the Group which is or are not (an)
Obligor(s) unless:
(1) the aggregate amount of the consolidated assets of each member of the
Group which is the subject of any such event or circumstance, when
aggregated with the consolidated assets of each other member of the
Group which is the subject of any such event or circumstance, is
equal to or greater than 7.5% of the consolidated assets of the
Group; or
(2) the aggregate amount of the consolidated net sales of each member of
the Group which is the subject of any such event or circumstance,
when aggregated with the consolidated net sales of each other member
of the Group which is the subject of any such event or circumstance,
is equal to or greater than 7.5% of the consolidated net sales of the
Group.
For the purposes of paragraphs (1) and (2) above, the consolidated assets
and consolidated net sales of any member of the Group shall be determined
by reference to the most recent financial year of the Group and the most
recent set of annual audited accounts of the relevant member of the Group,
if any (which, in the case of the consolidated assets and consolidated net
sales of the Group, shall mean the financial statements referred to in
Clause 19.5 (Financial Statements) or the most recent set of financial
statements delivered pursuant to Clause 20.9 (Reporting requirements),
whichever has been most recently delivered to the Agent hereunder)
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PROVIDED THAT in the absence of any such accounts in relation to any
member of the Group other than the Guarantor the figures for consolidated
assets and consolidated net sales of such member of the Group shall be
determined by such member of the Group's auditors.
22.6 JUDGMENTS OR ORDERS
Judgments or orders for the payment of money in excess of $25,000,000 (or
its equivalent in another currency or currencies) in the aggregate shall
be rendered against any Obligor or any of its Subsidiaries and either
(a) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order; or
(b) there shall be any period of 20 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;
PROVIDED, HOWEVER, that any such judgment or order shall not be an Event
of Default under this Clause 22.6 if and for so long as (i) the amount of
such judgment or order is covered by a valid and binding policy of
insurance between the defendant and the insurer covering payment thereof
and (ii) such insurer, which shall be rated at least "A" by A.M. Best
Company, has been notified of, and has not disputed the claim made for
payment of, the amount of such judgment or order.
22.7 CONTROL OF THE GUARANTOR
(a) Any person or two or more persons acting in concert (other than any
Founder) shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the United States Securities and Exchange Commission
under the United States Securities Exchange Act of 1934), directly or
indirectly, of Voting Stock of the Guarantor (or other securities
convertible into such Voting Stock) representing 20% or more of the
combined voting power of all Voting Stock of the Guarantor;
(b) during any period of up to 24 consecutive months, commencing before
or after the date of this Agreement, individuals who at the beginning
of such 24-month period were directors of the Guarantor shall cease
for any reason (other than due to death or disability) to constitute
a majority of the board of directors of the Guarantor (except to the
extent that individuals who at the beginning of such 24-month period
were replaced by individuals (x) elected by a majority of the
remaining members of the board of directors of the Guarantor or (y)
nominated for election by a majority of the remaining members of the
board of directors of the Guarantor and thereafter elected as
directors by the shareholders of the Guarantor); or
(c) any person or two or more persons acting in concert (other than any
Founder) shall have acquired by contract or otherwise, or shall have
entered into a contract or arrangement that, upon consummation, will
result in its or their acquisition of the power to exercise, directly
or indirectly, a controlling influence over the management or
policies of the Guarantor.
22.8 CONTROL OF THE BORROWER
The Guarantor shall cease to own, directly or indirectly, the whole of
the outstanding issued share capital of the Borrower.
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22.9 ERISA LIABILITIES
The Guarantor or any of its ERISA Affiliates shall incur, or shall be
reasonably likely to incur liability in excess of $50,000,000 (or its
equivalent in another currency or currencies) in the aggregate as a
result of one or more of the following:
(a) the occurrence of any ERISA Event;
(b) the partial or complete withdrawal of the Guarantor or any of its
ERISA Affiliates from a Multiemployer Plan; or
(c) the reorganisation or termination of a Multiemployer Plan.
22.10 UNLAWFULNESS
At any time the Borrower or the Guarantor no longer has the legal power to
perform its obligations under the Finance Documents to which it is a party
or to own its assets or to carry on its business or at any time it is or
becomes unlawful for the Borrower or the Guarantor to perform or comply
with any or all of its payment and other material obligations under any
Finance Document to which it is a party or any of such obligations are not
or cease to be legal, valid, binding and enforceable.
22.11 REPUDIATION
The Borrower or the Guarantor shall repudiate a Finance Document or shall
evidence an intention to repudiate a Finance Document.
22.12 GOVERNMENTAL INTERVENTION
By or under the authority of any government:
(a) the management of the Guarantor, the Borrower or any other member of
the Group shall be wholly or partially displaced or the authority of
the Guarantor the Borrower or any other member of the Group in the
conduct of its business shall be wholly or partially curtailed; or
(b) all or a majority of the issued shares of the Guarantor, the Borrower
or any other member of the Group or the whole or any part of its
revenues or assets shall be seized, nationalised, expropriated or
compulsorily acquired.
However, no Event of Default will occur under this Clause 22.12 if the
events or circumstances referred to in paragraphs (a) or (b) above apply
only to a member or members of the Group which is or are not (an)
Obligor(s) unless:
(i) the aggregate amount of the consolidated assets of each member of the
Group which is the subject of any such event or circumstance, when
aggregated with the consolidated assets of each other member of the
Group which is the subject of any such event or circumstance, is
equal to or greater than 7.5% of the consolidated assets of the
Group; or
(ii) the aggregate amount of the consolidated net sales of each member of
the Group which is the subject of any such event or circumstance,
when aggregated with the consolidated net sales of each other member
of the Group which is the subject of any such event or circumstance,
is equal to or greater than 7.5% of the consolidated net sales of the
Group.
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For the purposes of paragraphs (i) and (ii) above, the consolidated assets
and consolidated net sales of any member of the Group shall be determined
by reference to the most recent financial year of the Group and the most
recent set of annual audited accounts of the relevant member of the Group,
if any (which, in the case of the consolidated assets and consolidated net
sales of the Group, shall mean the financial statements referred to in
Clause 19.5 (Financial Statements) or the most recent set of financial
statements delivered pursuant to Clause 20.9 (Reporting requirements),
whichever has been most recently delivered to the Agent hereunder)
PROVIDED THAT in the absence of any such accounts in relation to any
member of the Group other than the Guarantor the figures for consolidated
assets and consolidated net sales of such member of the Group shall be
determined by such member of the Group's auditors.
22.13 MATERIAL ADVERSE CHANGE
Any event or circumstance shall occur which could reasonably be expected
to have a material adverse effect on the ability of the Obligors to
perform or comply with their payment obligations under the Finance
Documents and their obligations under Clause 21 (Financial Covenant).
22.14 ACCELERATION
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
Borrower:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(b) declare that all or part of the Loans, 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
(c) declare that all or part of the Loans be payable on demand, whereupon
they shall immediately become payable on demand by the Agent on the
instructions of the Majority Lenders,
PROVIDED, HOWEVER, that in the event of an actual or deemed entry of an
order for relief with respect to the Guarantor under the United States
Federal Bankruptcy Code, (A) the Total Commitments shall automatically be
cancelled and (B) the Loans, together with accrued interest, and all other
amounts accrued under the Finance Documents shall automatically become and
be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Obligors.
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SECTION 9.
CHANGES TO THE PARTIES
23. CHANGES TO THE LENDERS
23.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 23, 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 or financial institution (the "NEW LENDER") PROVIDED THAT
if any Lender assigns or transfers any of its Commitment it shall also
transfer an equal proportion of the Loans and vice versa.
23.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) Unless a Default has occurred and is continuing, the consent of the
Borrower is required for an assignment or transfer by a Lender,
unless the assignment or transfer is to another Lender or an
Affiliate of a Lender.
(b) The consent of the Borrower to an assignment or transfer must not be
unreasonably withheld or delayed. The Borrower will be deemed to have
given its consent 10 Business Days after the Lender has requested it
unless consent is expressly refused by the Borrower within that time.
(c) The consent of the Borrower to an assignment or transfer must not be
withheld solely because the assignment or transfer may result in an
increase to the Mandatory Cost.
(d) 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.
(e) A transfer will only be effective if the procedure set out in Clause
23.5 (Procedure for transfer) is complied with.
(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, the Borrower would be
obliged to make a payment to the New Lender or Lender acting
through its new Facility Office under Clause 13 (Tax gross-up
and indemnities) or Clause 14 (Increased costs),
then the New Lender or Lender acting through its new Facility Office
is only entitled to receive payment under those Clauses to the same
extent as the Existing Lender or
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Lender acting through its previous Facility Office would have been if
the assignment, transfer or change had not occurred.
23.3 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 EUR 2,500.
23.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New
Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(ii) the financial condition of any of the Obligors;
(iii) the performance and observance by any Obligor of its
obligations under the Finance Documents to which it is a party
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 the Obligors 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 the Obligors and its related entities
whilst any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights
and obligations assigned or transferred under this Clause 23;
or
(ii) support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by any Obligor of its
obligations under the Finance Documents or otherwise.
23.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 23.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph (b) below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing
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Lender and the New Lender. The Agent shall within five Business Days
of receipt by it of a duly completed Transfer Certificate appearing
on its face to comply with the terms of this Agreement and delivered
in accordance with the terms of this Agreement, execute that Transfer
Certificate.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing
Lender seeks to transfer by novation its rights and
obligations under the Finance Documents each of the Obligors
and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents
and their respective rights against one another shall be
cancelled (being the "DISCHARGED RIGHTS AND OBLIGATIONS");
(ii) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights against
one another which differ from the Discharged Rights and
Obligations only insofar as that Obligor and the New Lender
have assumed and/or acquired the same in place of that Obligor
and the Existing Lender;
(iii) the Agent, the Arrangers, the New Lender and other Lenders
shall acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed had
the New Lender been an Original Lender with the rights and/or
obligations acquired or assumed by it as a result of the
transfer and to that extent the Agent, the Arrangers and the
Existing Lender shall each be released from further
obligations to each other under this Agreement; and
(iv) the New Lender shall become a Party as a "Lender".
23.6 DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other person:
(a) 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;
(b) 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
(c) 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.
24. CHANGES TO THE OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
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SECTION 10.
THE FINANCE PARTIES
25. ROLE OF THE AGENT AND THE ARRANGERS
25.1 APPOINTMENT OF THE AGENT
(a) Each of the Arrangers and the Lenders appoints the Agent to act as
its agent under and in connection with the Finance Documents.
(b) Each of the Arrangers 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.
25.2 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 22.1(Non-payment).
(d) The Agent's duties under the Finance Documents are solely mechanical
and administrative in nature.
25.3 ROLE OF THE ARRANGERS
Except as specifically provided in the Finance Documents, none of the
Arrangers has obligations of any kind to any other Party under or in
connection with any Finance Document.
25.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Agent or the Arrangers as a
trustee or fiduciary of any other person.
(b) Neither the Agent nor the Arrangers shall be bound to account to any
Lender for any sum or the profit element of any sum received by it
for its own account.
25.5 BUSINESS WITH THE GROUP
The Agent and the Arrangers may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any
member of the Group.
25.6 RIGHTS AND DISCRETIONS OF THE AGENT
(a) The Agent may rely on:
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(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 22.1 (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 Borrower (other than a
Utilisation Request) is made on behalf of and with the consent
and knowledge of the Guarantor.
(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.
25.7 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 Arrangers.
(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.
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25.8 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor any of the Arrangers:
(a) is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, an
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.
25.9 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
subject to Clause 1.4 (Third Party Rights) and the provisions of the
Third Parties Act.
(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.
25.10 LENDERS' INDEMNITY TO THE AGENT
Each Lender shall (in proportion to its share of the Total Commitments or,
if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three Business Days of demand, against any cost, loss or
liability incurred by the Agent (and the Agent shall refund such payment
if the Lenders can prove that such cost, loss or liability was incurred 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).
25.11 RESIGNATION OF THE AGENT
(a) The Agent may resign and appoint one of its Affiliates as successor
by giving notice to the Lenders and the Borrower.
(b) Alternatively the Agent may resign by giving notice to the Lenders
and the Borrower, in which case the Majority Lenders (after
consultation with the Borrower) may appoint a successor Agent.
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(c) If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph (b) above within 30 days after notice of
resignation was given, the Agent (after consultation with the
Borrower) may appoint a successor Agent.
(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 25.
Its successor and each of the other Parties shall have the same
rights and obligations amongst themselves as they would have had if
such successor had been an original Party.
(g) After consultation with the Borrower, 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.
25.12 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 any of the Arrangers is obliged to
disclose to any other person (i) any confidential information or (ii)
any other information if the disclosure would or might in its
reasonable opinion constitute a breach of any law or a breach of a
fiduciary duty.
25.13 RELATIONSHIP WITH THE LENDERS
(a) 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).
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25.14 CREDIT APPRAISAL BY THE LENDERS
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms to the Agent and to each of the Arrangers that it has
been, and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with any Finance Document including but not limited to:
(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document and any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in
connection with any Finance Document;
(c) whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or
in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document;
and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and 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.
25.15 AGENT'S MANAGEMENT TIME
Any amount payable to the Agent under Clause 15.3 (Indemnity to the
Agent), Clause 17 (Costs and expenses) and Clause 25.10 (Lenders'
indemnity to the Agent) shall include the cost of utilising the Agent's
management time or other resources and will be calculated on the basis of
such reasonable daily or hourly rates as the Agent may notify to the
Borrower and the Lenders, and is in addition to any fee paid or payable to
the Agent under Clause 12 (Fees).
26. 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.
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27. SHARING AMONG THE LENDERS
27.1 PAYMENTS TO LENDERS
If a Lender (a "RECOVERING LENDER") receives or recovers any amount from
an Obligor other than in accordance with Clause 28 (Payment mechanics) and
applies that amount to a payment due under the Finance Documents then:
(a) the Recovering Lender shall, within 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 28 (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 28.5 (Partial
payments).
27.2 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 28.5 (Partial payments).
27.3 RECOVERING LENDER'S RIGHTS
(a) On a distribution by the Agent under Clause 27.2 (Redistribution of
payments), the Recovering Lender will be subrogated to the rights of
the Finance Parties which have shared in the redistribution.
(b) If and to the extent that the Recovering Lender is not able to rely
on its rights under paragraph (a) above, the relevant Obligor shall
be liable to the Recovering Lender for a debt equal to the Sharing
Payment which is immediately due and payable.
27.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a Recovering
Lender becomes repayable and is repaid by that Recovering Lender, then:
(a) each Lender which has received a share of the relevant Sharing
Payment pursuant to Clause 27.2 (Redistribution of payments) shall,
upon request of the 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
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(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.
27.5 EXCEPTIONS
(a) This Clause 27 shall not apply to the extent that the Recovering
Lender would not, after making any payment pursuant to this Clause,
have a valid and enforceable claim against the relevant Obligor.
(b) A Recovering Lender is not obliged to share with any other Lender any
amount which the Recovering Lender has received or recovered as a
result of taking legal or arbitration proceedings, if:
(i) it notified the other Lenders of the legal or arbitration
proceedings; and
(ii) the other 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.
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SECTION 11.
ADMINISTRATION
28. PAYMENT MECHANICS
28.1 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 the relevant 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 a
principal financial centre in a Participating Member State or London)
with such bank as the Agent specifies.
28.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents for another
Party shall, subject to Clause 28.3 (Distributions to an Obligor) and
Clause 28.4 (Clawback) be made available by 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).
28.3 DISTRIBUTIONS TO AN OBLIGOR
The Agent may (with the consent of the Obligor or in accordance with
Clause 29 (Set-off)) apply any amount received by it for that Obligor in
or towards payment (on the date and in the currency and funds of receipt)
of any amount due from that Obligor under the Finance Documents or in or
towards purchase of any amount of any currency to be so applied.
28.4 CLAWBACK
(a) Where a sum is to be paid to 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.
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28.5 PARTIAL PAYMENTS
(a) If the Agent receives a payment that is insufficient to discharge all
the amounts then due and payable by an Obligor under the Finance
Documents, the Agent shall apply that payment towards the obligations
of that Obligor under the Finance Documents in the following order:
(i) FIRST, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent and the Arrangers under the
Finance Documents;
(ii) SECONDLY, in or towards payment pro rata of any accrued
interest or commission due but unpaid under this Agreement;
(iii) THIRDLY, in or towards payment pro rata of any principal due
but unpaid under this Agreement; and
(iv) FOURTHLY, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
(b) 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 .
28.6 NO SET-OFF BY THE 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.
28.7 BUSINESS DAYS
(a) Any payment which is due to be made on a day that is not a Business
Day shall be made on the next Business Day in the same calendar month
(if there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or
an Unpaid Sum under this Agreement interest is payable on the
principal at the rate payable on the original due date.
28.8 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (e) below, the Base Currency is the
currency of account and payment for any sum due from an Obligor under
any Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum
shall be made in the currency in which that Loan or Unpaid Sum is
denominated on its due date.
(c) Each payment of interest shall be made in the currency in which the
sum in respect of which the interest is payable was denominated when
that interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be made in
the currency in which the costs, expenses or Taxes are incurred.
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(e) Any amount expressed to be payable in a currency other than the Base
Currency shall be paid in that other currency.
28.9 CHANGE OF CURRENCY
(a) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank of
any country as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or
currency unit of that country designated by the Agent (after
consultation with the Borrower); 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 Borrower) 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.
29. 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.
30. NOTICES
30.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter or telex.
30.2 ADDRESSES
The address, fax number and telex 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 Borrower and the Guarantor, that identified with
their names 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
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(c) in the case of the Agent, that identified with its name below,
or any substitute address, fax number, telex 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.
30.3 DELIVERY
(a) Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will only
be effective:
(i) if by way of fax, 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; or
(iii) if by way of telex, when despatched, but only if, at the time
of transmission, the correct answerback appears at the start
and at the end of the sender's copy of the notice;
and, if a particular department or officer is specified as part of
its address details provided under Clause 30.2 (Addresses), if
addressed to that department or officer.
(b) Any communication or document to be made or delivered to 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 Borrower in
accordance with this Clause will be deemed to have been made or
delivered to the Guarantor.
30.4 NOTIFICATION OF ADDRESS, FAX NUMBER AND TELEX NUMBER
Promptly upon receipt of notification of an address, fax number and telex
number or change of address, fax number or telex number pursuant to Clause
30.2 (Addresses) or changing its own address, fax number or telex number,
the Agent shall notify the other Parties.
30.5 ENGLISH LANGUAGE
(a) Any notice given under or in connection with any Finance Document
must be in English.
(b) All other documents provided under or in connection with any Finance
Document must be:
(i) in English; or
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(ii) if not in English, and if so required by the Agent,
accompanied by a certified English translation and, in this
case, the English translation will prevail unless the document
is a constitutional, statutory or other official document.
31. CALCULATIONS AND CERTIFICATES
31.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
31.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
31.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 360 days or, in any case where the practice
in the Relevant Interbank Market differs, in accordance with that market
practice.
32. 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.
33. 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.
34. AMENDMENTS AND WAIVERS
34.1 REQUIRED CONSENTS
(a) Subject to Clause 34.2 (Exceptions) any term of the Finance Documents
may be amended or waived only with the consent of the Majority
Lenders and the Obligors and any such amendment or waiver will be
binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any amendment
or waiver permitted by this Clause.
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34.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "Majority Lenders" in Clause 1.1
(Definitions);
(ii) an extension to the date of payment of any amount under the
Finance Documents;
(iii) a reduction in the Applicable Margin or the amount of any
payment of principal, interest, fees or commission payable;
(iv) an increase in Commitment;
(v) a change to the identity of the Borrower or Guarantor;
(vi) any provision which expressly requires the consent of all the
Lenders; or
(vii) Clause 2.2 (Lenders' rights and obligations), Clause 23
(Changes to the Lenders) or this Clause 34,
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations of
the Agent or the Arrangers may not be effected without the consent of
the Agent or the Arrangers.
35. 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.
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SECTION 12.
GOVERNING LAW AND ENFORCEMENT
36. GOVERNING LAW
This Agreement is governed by English law.
37. ENFORCEMENT
37.1 JURISDICTION OF ENGLISH COURTS
(a) The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or termination
of this Agreement) (a "DISPUTE").
(b) The Parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes and accordingly no Party
will argue to the contrary.
(c) This Clause 37.1 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.
37.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any
relevant law, each Obligor:
(a) irrevocably appoints International Flavours & Fragrances (GB)
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 relevant Obligor of
the process will not invalidate the proceedings concerned.
37.3 WAIVER OF IMMUNITY
Each Obligor waives generally all immunity it or its assets or revenues
may otherwise have in any jurisdiction, including immunity in respect of:
37.3.1 the giving of any relief by way of injunction or order for
specific performance or for the recovery of assets or revenues;
and
37.3.2 the issue of any process against its assets or revenues for the
enforcement of a judgment or, in an action in rem, for the
arrest, detention or sale of any of its assets and revenues.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
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SCHEDULE 1
THE ORIGINAL LENDERS
NAME OF ORIGINAL LENDER COMMITMENT
(EUR)
ABN AMRO Bank N.V. 24,000,000
Allied Irish Banks, p.l.c. 22,250,000
Banca Nazionale del Lavoro S.p.A., London Branch 8,000,000
Bank of Tokyo-Mitsubishi (Holland) N.V. 22,250,000
Bank One, NA (Main Office Chicago) 15,000,000
Banque LBLux S.A. 15,000,000
Barclays Bank PLC 24,000,000
BBVA Ireland p.l.c. 15,000,000
BNP Paribas 22,250,000
Commerzbank Aktiengesellschaft (Filiale Emmerich) 15,000,000
Citibank International plc 15,000,000
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. 22,250,000
Credit Industriel et Commercial 22,250,000
Danske Bank A/S 22,250,000
Fleet Bank (Europe) Limited 15,000,000
Fortis Bank NV/SA 22,250,000
ING Bank N.V. 22,250,000
Natexis Banques Populaires (Luxembourg) S.A. 11,000,000
Wachovia Bank, National Association 15,000,000
TOTAL 350,000,000
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SCHEDULE 2
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT TO INITIAL UTILISATION
1. BORROWER AND GUARANTOR
(a) A copy of the up-to-date co-ordinated articles of association of the
Borrower.
(b) A copy of the certificate of incorporation of the Guarantor
certified a true copy by the Secretary of State of New York on or
about the date hereof.
(c) A copy of the by-laws of the Guarantor.
(d) A certificate of good standing in relation to the Guarantor issued
by the Secretary of State of the State of New York on or about the
date hereof.
(e) A copy of a resolution signed by the authorised manager(s) of the
Borrower or a copy of the minutes of a meeting of the board of
managers of the Borrower:
(i) approving the terms of, and the transactions contemplated by,
the Finance Documents to which it is a party and resolving
that it execute the Finance Documents to which it is a party;
(ii) authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf;
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices (including,
any Utilisation Request) to be signed and/or despatched by it
under or in connection with the Finance Documents to which it
is a party; and
(iv) confirming that the entry into and performance of the
transactions contemplated by the Finance Documents to which
it is a party is in its best corporate interest.
(f) A copy of a resolution of the board of directors of the Guarantor:
(i) approving the terms of, and the transactions contemplated by,
the Finance Documents to which it is a party and resolving
that it execute the Finance Documents to which it is a party;
(ii) 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,
any Utilisation Request) to be signed and/or despatched by it
under or in connection with the Finance Documents to which it
is a party
(g) A solvency certificate signed by an authorised signatory of the
Borrower.
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(h) A specimen of the signature of each person authorised by the
resolution referred to in paragraphs (e) and (f) above.
(i) A certificate of the Borrower (signed by an authorised signatory)
confirming that borrowing the Total Commitments would not cause any
borrowing or similar limit binding on the Borrower to be exceeded.
(j) A certificate of the Guarantors (signed by an authorised signatory)
confirming that guaranteeing the Total Commitments would not cause
any guarantee or similar limit binding on the Guarantor to be
exceeded.
(k) A certificate of an authorised signatory of each of the Borrower and
the Guarantor certifying that each copy document relating to it
specified in this Schedule 2 is correct, complete and in full force
and effect as at a date no earlier than the date of this Agreement.
2. LEGAL OPINIONS
(a) A legal opinion of Clifford Chance LLP, legal advisers to the
Arrangers as to matters of English law, substantially in the form
distributed to the Original Lenders prior to signing this Agreement.
(b) A legal opinion of Kremer Associes & Clifford Chance, legal advisers
to the Arrangers as to matters of Luxembourg law, substantially in
the form distributed to the Original Lenders prior to signing this
Agreement.
(c) A legal opinion of Clifford Chance Rogers & Wells LLP, legal
advisors to the Arrangers as to matters of US 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 37.2 (Service
of process) has accepted its appointment as process agent for the
Borrower and the Guarantor.
(b) A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable (if
it has notified the Borrower accordingly) in connection with the
entry into and performance of the transactions contemplated by any
Finance Document or for the validity and enforceability of any
Finance Document.
(c) The financial statements referred to in Clause 19.5 (Financial
Statements).
(d) Evidence that the fees, costs and expenses then due from the
Borrower pursuant to Clause 12 (Fees) and Clause 17 (Costs and
expenses) have been paid or will be paid by the first Utilisation
Date.
(e) Evidence that, upon first Utilisation of the Facility, the
facilities granted to IFF Trading Company B.V. ("IFF TRADING")
pursuant to a multicurrency term and revolving facilities agreement
entered into on 26 March 2001 between IFF Trading as
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borrower and ABN AMRO Bank N.V. as arranger, agent and original
lender will be cancelled.
(f) Evidence that appropriate waivers have been granted or appropriate
amendments have been entered into in respect of (i) the two credit
agreements both dated 26 September 2001 and entered into between,
inter alios, International Flavors & Fragrances Inc. as borrower,
Citibank, N.A. as initial lender and administrative agent and
Salomon Smith Barney Inc. as initial lender and arranger and (ii)
the two yen note purchase agreements dated 15 February 2000 and 19
November 2001 and both entered into between, inter alios,
International Flavor & Fragrances (Japan) Ltd., International Flavor
& Fragrances Inc. as guarantor and certain banks and financial
institutions as lenders.
-68-
SCHEDULE 3
UTILISATION REQUEST
From: International Flavors & Fragrances (Luxembourg) S.a.r.l
To: Barclays Bank PLC
Dated:
Dear Sirs
INTERNATIONAL FLAVORS & FRAGRANCES (LUXEMBOURG) S.A.R.L - EUR 350,000,000
FACILITY AGREEMENT DATED 19 JULY 2002 (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)
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
International Flavors & Fragrances (Luxembourg) S.a.r.l
-69-
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. This percentage will be certified by that Lender in its
notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender's Participation in all Loans made
from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from
that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a domestic sterling Loan:
AB+C(B-D)+Ex0.01
---------------- per cent. per annum
100-(A+C)
(b) in relation to a Loan in any currency other than domestic sterling:
Ex0.01
------ 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 Applicable Margin
and the Mandatory Cost and, if the Loan is an Unpaid Sum, the
additional rate of interest specified in paragraph (a) of Clause 9.4
(Default interest)) 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.
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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 Rules (calculated for this purpose by
the Agent as being the average of the fee tariffs specified in the Fee
Rules under the activity group A.1 Deposit acceptors, ignoring any
minimum fee or zero rated fee required pursuant to the Fee Rules) and
expressed in pounds per (pound)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 RULES" means the rules on supervision fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force
from time to time in respect of the payment of fees for the acceptance
of deposits; and
(c) "TARIFF BASE" has the meaning given to it, and will be calculated in
accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula
as 5 and not as 0.05). A negative result obtained by subtracting D from B
shall be taken as zero. The resulting figures shall be rounded to four
decimal places.
7. 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 Rules 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.
-71-
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 Borrower 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.
-72-
SCHEDULE 5
FORM OF TRANSFER CERTIFICATES
PART I
To: Barclays Bank PLC as Agent
From: [The Existing Lender] (the "EXISTING LENDER") and [The New Lender]
(the "NEW LENDER")
Dated:
INTERNATIONAL FLAVORS & FRAGRANCES (LUXEMBOURG) S.A.R.L - EUR 350,000,000
FACILITY AGREEMENT DATED 19 JULY 2002 (THE "FACILITY AGREEMENT")
1. We refer to Clause 23.5 (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 23.5 (Procedure for transfer).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 30.2 (Addresses)
are set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 23.4 (Limitation of
responsibility of Existing Lenders).
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]
PART II
LMA TRANSFER CERTIFICATE (PAR)
BANK:
Date:
-73-
TRANSFEREE:
This Transfer Certificate is entered into pursuant to (i) the agreement (the
"SALE AGREEMENT") evidenced by the Confirmation dated between the Bank and the
Transferee (acting directly or through their respective agents) and (ii) the
Credit Agreement.
On the Transfer Date, the transfer by way of novation from the Bank to the
Transferee on the terms set out herein and in the Credit Agreement shall become
effective subject to:-
(i) the Sale Agreement and the terms and conditions incorporated in the Sale
Agreement;
(ii) the terms and conditions annexed hereto; and
(iii) the schedule annexed hereto,
all of which are incorporated herein by reference.
THE BANK THE TRANSFEREE
[ ] [ ]
By: By:
-74-
THE SCHEDULE
CREDIT AGREEMENT DETAILS:
Borrower: International Flavors & Fragrances (Luxembourg) S.a.r.l
Credit Agreement Dated 19 July 2002
Guarantor: International Flavors & Fragrances Inc.
Agent Bank: Barclays Bank PLC
Security: [ ] No [ ] Yes (specify) ____________________
Total Facility Amount: EUR 350,000,000
Governing Law: English
Additional Information: _________________________________________
TRANSFER DETAILS:
Name of Tranche Facility: _________________ __________________
Nature (Revolving, Term, Acceptances
Guarantee/Letter of Credit, Other): _________________ _________________
Final Maturity: _________________ _________________
Participation Transferred
Commitment transferred1 _________________ __________________
Drawn Amount (details below):1 _________________ __________________
Undrawn Amount:1 _________________ __________________
Settlement Date: ________________
Details of outstanding Credits1
Specify in respect of each Credit: __________________
Transferred Portion (amount): __________________
Tranche/Facility: ___________
------
Nature: [ ] Term [ ] Revolver [ ] Acceptance
[ ] Guarantee/Letter of Credit [ ] Other (specify)
--------------------------------------------------
[ ] Details of other Credits are set out on the attached sheet
ADMINISTRATION DETAILS
Bank's Receiving Account: ________________________________
Transferee's Receiving Account: ________________________________
ADDRESSES
Bank Transferee
[ ] [ ]
Address: Address:
Telephone: Telephone:
Facsimile: Facsimile:
Telex: Telex:
Attn/Ref: Attn/Ref:
- ---------------------
1 As at the date of the Transfer Certificate.
-75-
TERMS AND CONDITIONS
These are the Terms and Conditions applicable to the transfer certificate
including the Schedule thereto (the "TRANSFER CERTIFICATE") to which they are
annexed.
1. INTERPRETATION
In these Terms and Conditions words and expressions shall (unless otherwise
expressly defined herein) bear the meaning given to them in the Transfer
Certificate, the Credit Agreement or the Sale Agreement.
2. TRANSFER
The Bank requests the Transferee to accept and procure the transfer by
novation of all or a part (as applicable) of such participation of the Bank
under the Credit Agreement as is set out in the relevant part of the
Transfer Certificate under the heading "Participation Transferred" (the
"PURCHASED ASSETS") by counter-signing and delivering the Transfer
Certificate to the Agent at its address for the service of notice specified
in the Credit Agreement. On the Transfer Date the Transferee shall pay to
the Bank the Settlement Amount as specified in the pricing letter between
the Bank and the Transferee dated the date of the Transfer Certificate
(adjusted, if applicable, in accordance with the Sale Agreement) and
completion of the transfer will take place.
3. EFFECTIVENESS OF TRANSFER
The Transferee hereby requests the Agent to accept the Transfer Certificate
as being delivered to the Agent pursuant to and for the purposes of the
Credit Agreement so as to take effect in accordance with the terms of the
Credit Agreement on the Transfer Date or on such later date as may be
determined in accordance with the terms thereof.
4. TRANSFEREE'S UNDERTAKING
The Transferee hereby undertakes with the Agent and the Bank and each of
the other parties to the Credit Documentation that it will perform in
accordance with its terms all those obligations which by the terms thereof
will be assumed by it after delivery of the Transfer Certificate to the
Agent and satisfaction of the conditions (if any) subject to which the
Transfer Certificate is to take effect.
5. PAYMENTS
5.1 PLACE
All payments by either party to the other under the Transfer Certificate
shall be made to the Receiving Account of that other party. Each party may
designate a different account as its Receiving Account for payment by
giving the other not less than five Business Days notice before the due
date for payment.
-76-
5.2 FUNDS
Payments under the Transfer Certificate shall be made in the currency in
which the amount is denominated for value on the due date at such times and
in such funds as are customary at the time for settlement of transactions
in that currency.
6. THE AGENT
The Agent shall not be required to concern itself with the Sale Agreement
and may rely on the Transfer Certificate without taking account of the
provisions of such agreement.
7. ASSIGNMENT OF RIGHTS
The Transfer Certificate shall be binding upon and enure to the benefit of
each party and its successors and permitted assigns PROVIDED THAT neither
party may assign or transfer its rights thereunder without the prior
written consent of the other party.
8. GOVERNING LAW AND JURISDICTION
The Transfer Certificate (including, without limitation, these Terms and
Conditions) 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.
Each party irrevocably appoints the person described as process agent (if
any) specified in the Sale Agreement to receive on its behalf service of
any action, suit or other proceedings in connection with the Transfer
Certificate. If any person appointed as process agent ceases to act for any
reason the appointing party shall notify the other party and shall promptly
appoint another person incorporated within England and Wales to act as its
process agent.
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SCHEDULE 6
TIMETABLES
LOANS IN EURO LOANS IN OTHER CURRENCIES
Agent notifies the Borrower if a currency is - U-4
approved as an Optional Currency in accordance
with Clause 4.3 (Conditions relating to
Optional Currencies)
Delivery of a duly completed Utilisation U-3 U-3
Request (Clause 5.1 (Delivery of a Utilisation
Request)) 9.30am 9.30am
Agent determines (in relation to a U-3 U-3
Utilisation) the Base Currency Amount of the
Loan, if required under Clause 5.4 (Lenders' Noon Noon
participation)
Agent notifies the Lenders of the Loan in U-3 U-3
accordance with Clause 5.4 (Lenders'
participation) 3.00pm 3.00pm
Agent receives a notification from a Lender U-2
under Clause 6.2 (Unavailability of a currency)
9.30pm
Agent gives notice in accordance with U-2
Clause 6.2 (Unavailability of a currency)
11.00am
LIBOR or EURIBOR is fixed Quotation Day as Quotation Day as of 11:00
of 11:00 a.m. a.m. London
Brussels time in time in respect
respect of of LIBOR
EURIBOR
"U" = date of Utilisation
"U - X" = X Business Days prior to date of Utilisation
-78-
SCHEDULE 7
SUBSIDIARY GUARANTEE DOCUMENTS
(a) A copy of the memorandum and articles of association or certificate of
incorporation of the Subsidiary Guarantor.
(b) A copy of a resolution of the board of directors of the Subsidiary
Guarantor:
(i) approving the terms of, and the transactions contemplated by, the
Subsidiary Guarantee and resolving that it execute the Subsidiary
Guarantee;
(ii) authorising a specified person or persons to execute and deliver the
Subsidiary Guarantee; and
(iii) authorising a specified person or persons on its behalf, to sign or
dispatch all documents to be signed or dispatched by it under or in
connection with this Agreement and the Subsidiary Guarantee.
(c) A certificate of a director of the Subsidiary Guarantor certifying that
execution and delivery of the Subsidiary Guarantee would not cause any
borrowing limit binding on it to be exceeded.
(d) A specimen of the signature of each person authorised by the resolutions
referred to in paragraph (b) above.
(e) A certificate of an authorised signatory of the Subsidiary Guarantor
certifying that each document specified in this Schedule 7 is correct,
complete and in full force and effect.
-79-
SIGNATURES
THE BORROWER
INTERNATIONAL FLAVORS & FRAGRANCES (LUXEMBOURG) S.A.R.L
By: Douglas J. Wetmore
Address: 6 rue de Mamer
L-8081 Bertrange
Luxembourg
Fax: + 352 26 11 41 41
Tel: + 352 26 11 41 1
Attention: Iain Campbell, Finance Manager
with a copy to: Michael Boy, Finance Director Europe
Emmastraat 51-53
1213 AK Hilversum
The Netherlands
Fax: +31 356 299 499
Tel: +31 356 299 490
THE GUARANTOR
INTERNATIONAL FLAVORS & FRAGRANCES INC.
By: Charles D. Weller
Address: 521 West 57th Street
New York
NY 10019
United States of America
Fax: + 1 212 708 7132
Tel: + 1 212 765 5500
Attention: Jodie Simon
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THE ARRANGERS
ABN AMRO BANK N.V.
By: Nerijus Damanskas / Kenneth Schuit
Address: Gustav Mahlerlaan 10
P.O. Box 283
1000 EA Amsterdam
The Netherlands
Fax: +31 20 383 0520
Tel: +31 20 628 8762
Attention: Michiel Dethmers
BARCLAYS CAPITAL
By: David Brayshaw
Address: 5 North Colonnade
Canary Wharf
London E14 4BB
United Kingdom
Fax: + 44 207 773 1572
Tel: + 44 207 773 1776
Attention: John Pentecost
THE AGENT
BARCLAYS BANK PLC
By: David Brayshaw
Address: 5 North Colonnade
Canary Wharf
London E14 4BB
United Kingdom
Fax: +44 207 773 4893
Tel: +44 207 773 2524
Attention: Ola Busari
-81-
THE LENDERS
ABN AMRO BANK N.V.
By: Nerijus Damanskas / Kenneth Schuit
Address: Gustav Mahlerlaan 10
P.O. Box 283
1000 EA Amsterdam
The Netherlands
Fax: +31 20 383 0520
Tel: +31 20 628 8762
Attention: Michiel Dethmers
ALLIED IRISH BANKS, PLC
By: Nerijus Damanskas / Kenneth Schuit
Address: Bankcentre, Ballsbridge
Dublin 4
Ireland
Fax: + 353 1 668 2508
Tel: + 353 1 641 4811/4228
Attention: Michael Morris / Fidelma Griffin
BANCA NAZIONALE DEL LAVORO S.P.A., LONDON BRANCH
By: Nerijus Damanskas / Kenneth Schuit
Address: Fitzwilliam House
10, St. Mary Avenue
London EC3A 8NA
United Kingdom
Fax: + 44 207 337 2504
Tel: + 44 207 337 2439
Attention: Darren Elliott
-82-
BANK OF TOKYO-MITSUBISHI (HOLLAND) N.V.
By: Nerijus Damanskas / Kenneth Schuit
Address: Strawinskylaan 565
1077 XX Amsterdam
The Netherlands
Fax: + 31 20 679 1016
Tel: + 31 20 573 7907
Attention: A. Th. Wijs
BANK ONE, NA (MAIN OFFICE CHICAGO)
By: Nerijus Damanskas / Kenneth Schuit
Address: 153 W. 51st St.
New York City
NY 10019
United States of America
Fax: + 1 212 373 1180
Tel: + 1 212 373 1574
Attention: Mahua Thakurta
BANQUE LBLUX S.A.
By: Herbert Weynand / Klaus Ense
Address: 3 rue Jean Monnet
L-2180
Luxembourg
Fax: + 352 42 434 3399
Tel: + 352 42 434 3325/3326
Attention: Peter Lang / Klaus Ense
-83-
BARCLAYS BANK PLC
By: David Brayshaw
Address: 54 Lombard Street
London EC3P 3AH
United Kingdom
Fax: +44 207 699 4140
Tel: +44 207 445 6010
Attention: Simon Leach
BBVA IRELAND PLC
By: Nerijus Damanskas / Kenneth Schuit
Address: IFSC 1 North Wall Quay
Dublin 1
Ireland
Fax: + 353 1 670 2848
Tel: + 353 1 670 2847
Attention: Javier Barredo
BNP PARIBAS
By: Nerijus Damanskas / Kenneth Schuit
Address: Herengracht 477
Amsterdam, 1017 BS
The Netherlands
Fax: + 31 20 625 3921
Tel: + 31 20 550 1329/1354
Attention: Matijn van Went / Arjan de Wit
-84
COMMERZBANK AKTIENGESELLSCHAFT (FILIALE EMMERICH)
By: Nerijus Damanskas / Kenneth Schuit
Address: Lindenallee 17-23
45127 Essen
Federal Republic of Germany
Fax: + 49 201 201 5780
Tel: + 49 201 201 5778
Attention: Peter Aulinger
CITIBANK INTERNATIONAL PLC
By: Jose Amsing
Address: Hoogoorddreef 54b
1101 BE Amsterdam
The Netherlands
Fax: + 31 20 651 4292
Tel: + 31 20 651 4362
Attention: Jan de Graaf
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
By: Nerijus Damanskas / Kenneth Schuit
Address: Croeselaan 18
3521 CB Utrecht
The Netherlands
Fax: + 31 30 216 1975
Tel: + 31 30 216 6143/1502
Attention: Eric Saris / Cindy Koolhout
-85-
CREDIT INDUSTRIEL ET COMMERCIAL
By: Nerijus Damanskas / Kenneth Schuit
Address: 6, avenue de Provence
75009 Paris
France
Fax: + 33 1 4596 9439
Tel: + 33 1 4596 9004
Attention: Arnaud de Gromard
DANSKE BANK A/S
By: Nerijus Damanskas / Kenneth Schuit
Address: 75 King William Street
London EC4N 7DT
United Kingdom
Fax: + 44 207 410 8001
Tel: + 44 207 410 8000
Attention: Trevor Eidmans / Roger Lippold
FLEET BANK (EUROPE) LIMITED
By: Nerijus Damanskas / Kenneth Schuit
Address: 39 Victoria Street
London SW1H 0ED
United Kingdom
Fax: + 44 207 222 5649
Tel: + 44 207 799 3333
Attention: Veronica Houghton / Joseph Yotts
-86-
FORTIS BANK NV / SA
By: Nerijus Damanskas / Kenneth Schuit
Address: Warandeberg 3
1000 Brussels
Belgium
Fax: + 32 2 228 4297
Tel: + 32 2 228 5956
Attention: Christian Delatte
ING BANK N.V.
By: G.G.M. Stap / M.H. Elfrink-Rijntjes
Address: De Amsterdamse Poort
Bijlmerplein 888
P.O. Box 1800, 1000 BV Amsterdam
Amsterdam-Zuidoost
The Netherlands
Fax: + 31 20 652 2032
Tel: + 31 20 652 2160 / 3066
Attention: M. Elfrink-Rijntjes / J. Stubenitsky
NATEXIS BANQUES POPULAIRES (LUXEMBOURG) S.A.
By: Nerijus Damanskas / Kenneth Schuit
Address: 28, avenue Marie-Therese
L-2132
Luxembourg
Fax: + 352 25 341 8342
Tel: + 352 25 341 81
Attention: Daniel Droesbeke / Fien van der Heyde
-87-
WACHOVIA BANK, NATIONAL ASSOCIATION
By: Gillian White
Address: 301 South College Street
Charlotte, North Carolina 28288
United States of America
Fax: + 1 704 374 6319
Tel: + 1 704 383 5124
Attention: David Silander
-88-