AGREEMENT
DATED AUGUST, 2004
'E'500,000,000
CREDIT FACILITY
for
INTERNATIONAL PAPER INVESTMENTS (FRANCE) S.A.S.
arranged by
BNP PARIBAS
BARCLAYS CAPITAL
and
ABN AMRO BANK N.V.
with
BNP PARIBAS
as Facility Agent
[▇▇▇▇▇ & ▇▇▇▇▇ LLP LOGO]
▇▇▇▇▇ & OVERY LLP
LONDON
CONTENTS
Clause Page
1. Interpretation.......................................................................................1
2. Facility............................................................................................12
3. Purpose.............................................................................................13
4. Conditions precedent................................................................................13
5. Utilisation - Loans.................................................................................13
6. Optional Currencies.................................................................................14
7. Repayment...........................................................................................18
8. Prepayment and cancellation.........................................................................18
9. Interest............................................................................................21
10. Terms...............................................................................................23
11. Market disruption...................................................................................24
12. Taxes...............................................................................................25
13. Increased Costs.....................................................................................28
14. Mitigation..........................................................................................29
15. Payments............................................................................................31
16. Guarantee...........................................................................................33
17. Representations.....................................................................................36
18. Information covenants...............................................................................41
19. Financial covenants.................................................................................44
20. General covenants...................................................................................44
21. Default.............................................................................................48
22. The Administrative Parties..........................................................................51
23. Evidence and calculations...........................................................................56
24. Fees................................................................................................56
25. Indemnities and Break Costs.........................................................................56
26. Expenses............................................................................................58
27. Amendments and waivers..............................................................................58
28. Changes to the Parties..............................................................................59
29. Disclosure of information...........................................................................62
30. Set-off.............................................................................................63
31. Pro Rata Sharing....................................................................................63
32. Severability........................................................................................64
33. Counterparts........................................................................................64
34. Notices.............................................................................................64
35. Language............................................................................................66
36. USA Patriot Act.....................................................................................66
37. Governing law.......................................................................................66
38. Enforcement.........................................................................................66
39. Complete agreement..................................................................................68
Schedule
1. Original Parties....................................................................................69
2. Conditions precedent documents......................................................................70
3. Form of Request.....................................................................................71
4. Calculation of the Mandatory Cost...................................................................72
5. Form of Transfer Certificate........................................................................75
6. Existing Liens......................................................................................77
7. Form of Compliance Certificate......................................................................78
8. Existing Facilities.................................................................................79
9. Form of Taux effectif global Letter.................................................................81
10. Indebtedness of the company.........................................................................83
Signatories..................................................................................................84
THIS AGREEMENT is dated August, 2004
BETWEEN:
(1) INTERNATIONAL PAPER INVESTMENTS (FRANCE) S.A.S. (societe par actions
simplifiee) a company registered in France with the Registry of Commerce
and Companies of Versailles under number 350 372 934 R.C.S. Versailles (the
Company);
(2) INTERNATIONAL PAPER COMPANY a company incorporated under the laws of the
State of New York, U.S.A. (the Guarantor);
(3) BNP PARIBAS, BARCLAYS CAPITAL and ABN AMRO BANK N.V. as mandated lead
arrangers (in this capacity the Mandated Lead Arrangers);
(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Original Parties) as
original lenders (the Original Lenders); and
(5) BNP PARIBAS as facility agent (in this capacity the Facility Agent).
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement:
Administrative Party means the Mandated Lead Arrangers or the Facility
Agent.
Affiliate means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
Availability Period means the period from and including the date of this
Agreement to and including ninety days from the date of this Agreement.
Bankruptcy Code means the United States Bankruptcy Code 1978 or any other
United States Federal of State bankruptcy, insolvency or similar law.
Barclays Capital means the investment banking division of Barclays Bank
PLC.
Board means the Board of Governors of the Federal Reserve System of the
United States of America (or any successor).
Bookrunners means BNP Paribas and Barclays Capital.
Break Costs means the amount (if any) which a Lender is entitled to receive
under Clause 25.3 (Break Costs) as compensation if any part of a Loan or
overdue amount is repaid or prepaid.
1
Business Day means a day (other than a Saturday or a Sunday) on which banks
are open for general business in London, Paris and New York City and:
(a) if on that day a payment in or a purchase of a currency (other than
euro) is to be made, the principal financial centre of the country of
that currency; or
(b) if on that day a payment in or a purchase of euro is to be made, which
is also a TARGET Day.
Capital Lease Obligations means, as to any Person, the obligations of such
Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real and/or personal property which obligations
are required to be classified and accounted for as a capital lease on a
balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board)
and, for the purposes of this Agreement, the amount of such obligations
shall be the capitalised amount thereof, determined in accordance with GAAP
(including such Statement No. 13).
Code means the Internal Revenue Code of 1986, as amended from time to time.
Commitment means:
(a) for an Original Lender, the amount set opposite its name in Schedule 1
(Original Parties) under the heading Commitments and the amount of any
other Commitment it acquires; and
(b) for any other Lender, the amount of any Commitment it acquires,
to the extent not cancelled, transferred or reduced under this Agreement.
Compliance Certificate means a certificate substantially in the form of
Schedule 7 (Form of Compliance Certificate) setting out, among other
things, calculations of the financial covenants.
Consolidated Net Worth means, as at any time, the sum of the following for
the Guarantor and its Consolidated Subsidiaries determined on a
consolidated basis (without duplication) in accordance with GAAP:
(a) the amount of capital stock; plus
(b) the amount of surplus and retained earnings (or, in the case of a
surplus or retained earnings deficit, minus the amount of such
deficit); minus
(c) the cost of treasury shares,
provided, however, the foregoing calculation shall not take into account
any impairment of goodwill arising under FASB 142.
Consolidated Subsidiary means, as to any Person, each Subsidiary of such
Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated
with the financial statements of such Person in accordance with GAAP.
2
Control means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or
otherwise. Controlling and controlled have meanings correlative thereto.
Environmental Laws means any and all Federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licences, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment including ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or
wastes.
ERISA means the Employee Retirement Income Security Act of 1974, as amended
from time to time.
ERISA Affiliate means any corporation or trade or business which is a
member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Guarantor or is under common control
(within the meaning of Section 414(c) of the Code) with the Guarantor.
EURIBOR means for a Term of any Loan or overdue amount in euro:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for that Term of that Loan or overdue
amount, the arithmetic mean (rounded upward to four decimal places) of
the rates as supplied to the Facility Agent at its request quoted by
the Reference Banks to leading banks in the European interbank market,
as of 11.00 a.m. (Brussels time) on the Rate Fixing Day for the offering of
deposits in euro for a period comparable to that Term.
euro means the single currency of the Participating Member States.
Event of Default means an event specified as such in Clause 21 (Default).
Excluded Taxes means any Tax other than a Tax that is imposed on or
calculated with reference to net income of a Finance Party in respect of
any income imputed to such Finance Party on account of a Gross-Up Payment
(as defined in Clause 12.2 (c)).
Facility means the credit facility made available under this Agreement.
Facility Office means the office(s) notified by a Lender to the Facility
Agent:
(a) on or before the date it becomes a Lender; or
(b) by not less than five Business Days' notice,
as the office(s) through which it will perform its obligations under this
Agreement.
3
Fee Letter means any letter entered into by reference to this Agreement
between one or more Administrative Parties and the Company setting out the
amount of certain fees referred to in this Agreement.
Final Maturity Date means the fifth anniversary of the date of this
Agreement.
Finance Document means:
(a) this Agreement;
(b) a Fee Letter;
(c) a Transfer Certificate; or
(d) any other document designated as such by written agreement of both the
Facility Agent and the Company.
Finance Party means a Lender or an Administrative Party.
GAAP means generally accepted accounting principles applied on a basis
consistent with those which, in accordance with Clause 18.2 (Form of
financial statements), are to be used in making the calculations for
purposes of determining compliance with the terms of this Agreement.
Governmental Authority means the government of the United States of
America, France, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
Group means the Guarantor and its Consolidated Subsidiaries.
Guarantee means a guarantee, an endorsement, a contingent agreement to
purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of
any Person, or a guarantee of the payment of dividends or other
distributions upon the stock of any corporation, or an agreement to
purchase, sell or lease (as lessee or lessor) property, products,
materials, supplies or services primarily for the purpose of enabling a
debtor to make payment of his, her or its obligations or an agreement to
assure a creditor against loss, and including causing a bank to open a
letter of credit for the benefit of another Person, but excluding
endorsements for collection or deposit in the ordinary course of business.
The terms Guarantee and Guaranteed used as a verb shall have a correlative
meaning.
IBOR means LIBOR or EURIBOR.
Increased Cost means:
(a) an additional or increased cost;
(b) a reduction in the rate of return from a Facility or on its overall
capital; or
(c) a reduction of an amount due and payable under any Finance Document,
4
which is incurred or suffered by a Finance Party or any of its Affiliates
but only to the extent attributable to that Finance Party having entered
into any Finance Document or funding or performing its obligations under
any Finance Document.
Indebtedness means, as to any Person:
(a) indebtedness created, issued or incurred by such Person for borrowed
money (whether by loan or the issuance and sale of debt securities);
(b) obligations of such Person to pay the deferred purchase or acquisition
price of property or services, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business so long as such trade
accounts payable are payable within 90 days of the date the respective
goods are delivered or the respective services are rendered;
(c) indebtedness of others secured by a Lien on the property of such
Person, whether or not the respective indebtedness so secured has been
assumed by such Person;
(d) obligations of such Person in respect of letters of credit or similar
instruments issued or accepted by banks and other financial
institutions for the account of such Person;
(e) Capital Lease Obligations of such Person; and
(f) Indebtedness of others Guaranteed by such Person.
Information Package means the confidential information package dated July
2004 prepared by the Mandated Lead Arrangers based on information received
from the Guarantor for the purpose of providing information with regard to
the Group in connection with this Agreement.
Lender means:
(a) an Original Lender; or
(b) any person which becomes a Lender after the date of this Agreement.
LIBOR means for a Term of any Loan or overdue amount:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the relevant currency or Term of
that Loan or overdue amount, the arithmetic mean (rounded upward to
four decimal places) of the rates, as supplied to the Facility Agent
at its request, quoted by the Reference Banks to leading banks in the
London interbank market,
as of 11.00 a.m. (London time) on the Rate Fixing Day for the offering of
deposits in the currency of that Loan or overdue amount for a period
comparable to that Term.
Lien means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset. For
the purposes of this Agreement, the Guarantor or any of its Subsidiaries
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional
sale agreement, capital lease or other title retention agreement relating
to such asset.
5
Loan means, unless otherwise stated in this Agreement, the principal amount
of each borrowing under this Agreement or the principal amount outstanding
of that borrowing.
Majority Lenders means, at any time, Lenders:
(a) whose share in the outstanding Loans then aggregate 66 2/3 per cent.
or more of the aggregate of all the outstanding Loans;
(b) if there is no Loan then outstanding, whose undrawn Commitments then
aggregate 662/3 per cent. or more of the Total Commitments; or
(c) if there is no Loan then outstanding and the Total Commitments have
been reduced to zero, whose Commitments aggregated 66 2/3 per cent. or
more of the Total Commitments immediately before the reduction.
Mandatory Cost means the percentage rate per annum calculated by the
Facility Agent under Schedule 4 (Calculation of the Mandatory Cost).
Margin means the rate per annum calculated in accordance with Clause 9.3
(Margin adjustments).
Margin Stock means margin stock within the meaning of Regulations U and X.
Material Adverse Effect means a material adverse change in, or material
adverse effect on the business, results of operations or financial
condition of the Guarantor and its Subsidiaries taken as a whole.
Material Subsidiaries means, at any time, (a) the Company, and (b) any
Subsidiary of the Guarantor that has total assets equal to 5 per cent. or
more of Consolidated Net Worth.
Moody's means ▇▇▇▇▇'▇ Investors Service Limited or any successor to its
rating business.
Multiemployer Plan means a multiemployer plan defined as such in Section
3(37) of ERISA to which contributions have been made by the Guarantor or
any ERISA Affiliate and which is covered by Title IV of ERISA.
Obligor means the Company or the Guarantor.
Original Financial Statements means the audited consolidated financial
statements of the Group for the year ended 31st December, 2003.
Participating Member State means a member state of the European Communities
that adopts or has adopted the euro as its lawful currency under the
legislation of the European Community for Economic Monetary Union.
Party means a party to this Agreement.
PBGC means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
Person means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
6
Plan means any employee benefit or other plan established or maintained by
the Guarantor or any ERISA Affiliate and which is covered by Title IV of
ERISA, other than a Multiemployer Plan.
Potential Event of Default means any event or condition which upon notice,
expiry of any applicable grace period or both would, unless cured or
waived, become an Event of Default.
Project Indebtedness means Indebtedness of the Guarantor or any Subsidiary
incurred to finance the acquisition, construction or development of Project
Assets; provided that (x) such Indebtedness is non-recourse to any other
assets and (y) the aggregate principal amount of such Indebtedness for the
Guarantor and its Subsidiaries taken as a whole may at no time exceed
US$425,000,000.
Pro Rata Share means:
(a) for the purpose of determining a Lender's share in a utilisation of
the Facility, the proportion which its Commitment bears to the Total
Commitments; and
(b) for any other purpose on a particular date:
(i) the proportion which a Lender's share of the Loans (if any) bears
to all the Loans;
(ii) if there is no Loan outstanding on that date, the proportion
which its Commitment bears to the Total Commitments on that date;
or
(iii) if the Total Commitments have been cancelled, the proportion
which its Commitment bore to the Total Commitments immediately
before being cancelled.
Rate Fixing Day means:
(a) the first day of a Term for a Loan denominated in Sterling;
(b) the second Business Day before the first day of a Term for a Loan
denominated in any other currency (other than euro); or
(c) the second TARGET Day before the first day of a Term for a Loan
denominated in euro,
or such other day as the Facility Agent determines is generally treated as
the rate fixing day by market practice in the relevant interbank market.
Reference Banks means the Facility Agent, Barclays Bank plc and ABN AMRO
Bank N.V. and any other bank or financial institution appointed as such by
the Facility Agent under this Agreement.
Regulations D, U and X means, respectively, Regulations D, U and X of the
Board, as the same may be amended or supplemented from time to time.
Repeating Representations means the representations which are deemed to be
repeated under Clause 17.21 (Times for making representations).
7
Request means a request for a Loan, substantially in the form of Schedule 3
(Form of Request).
S&P means Standard & Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. or any successor to its rating business.
Screen Rate means:
(a) for LIBOR, the British Bankers Association Interest Settlement Rate;
and
(b) for EURIBOR, the percentage rate per annum determined by the Banking
Federation of the European Union,
for the relevant currency and Term displayed on page 3740 or 3750 in
respect of LIBOR and page 248 in respect of EURIBOR in each case of the
Telerate screen. If the relevant page is replaced or the service ceases to
be available, the Facility Agent (after consultation with the Company and
the Lenders) may specify another page or service displaying the appropriate
rate.
Solvent means, as to any Person, that, as of any date of determination, (a)
the amount of the "present fair saleable value" of the assets of such
Person shall, as of such date, exceed the amount of all "liabilities of
such Person, contingent or otherwise", as of such date, as such terms are
determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable
value of the assets of such Person shall, as of such date, be greater than
the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, or, in relation to the
Company or any other French person, such Person is in a state of "cessation
des paiements" within the meaning of French law; (c) such Person will not
have, as of such date, an unreasonably small amount of capital with which
to conduct its business, and (d) such Person shall be able to pay its debts
as they mature. For purposes of this definition, (i) debt means liability
on a claim, and (ii) claim means any (A) right to payment, whether or not
such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (B) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or
unsecured.
Subsidiary means, as to any Person:
(a) any corporation of which at least a majority of the outstanding shares
of stock whose class or classes have by the terms thereof ordinary
voting power to elect a majority of the board of directors of such
corporation (irrespective of whether or not at the time stock of any
other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one
or more Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person; and
(b) any partnership or other entity in which such Person and/or one or
more Subsidiaries of such Person shall have an ownership or
controlling interest (whether in the form of voting or participation
in profits or capital contribution) of more than 50 per cent.
Tangible Assets means, at any time, Total Assets minus the sum of the items
identified in paragraph (c) of the defined term Tangible Net Worth.
8
Tangible Net Worth means, as at any time, the sum of the following for the
Guarantor and its Consolidated Subsidiaries determined on a consolidated
basis (without duplication) in accordance with GAAP and based on the latest
published audited consolidated balance sheet of the Guarantor:
(a) the amount of capital stock; plus
(b) the amount of surplus and retained earnings (or, in the case of a
surplus or retained earnings deficit, minus the amount of such
deficit); minus
(c) the sum of the following: cost of treasury shares and the book value
of all assets of the Guarantor and its Consolidated Subsidiaries which
should be classified as intangibles (without duplication of deductions
in respect of items already deducted in arriving at surplus and
retained earnings) but in any event including goodwill, research and
development costs, trademarks, trade names, copyrights, patents and
franchises, unamortized debt discount and expense, and any write up in
the book value of assets resulting from a revaluation thereof
subsequent to 30th June, 2004 (other than any write-up, at the time of
its acquisition, in the book value of any asset acquired subsequent to
30th June, 2004).
TARGET Day means a day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer payment system is open for the settlement
of payments in euro.
Tax means any tax, levy, impost, duty or other charge or withholding of a
similar nature (including any related penalty or interest).
Tax Deduction means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
Tax Payment means a payment made by an Obligor to a Finance Party in any
way relating to a Tax Deduction or under any indemnity given by that
Obligor in respect of Tax under any Finance Document.
Term means each period determined under this Agreement by reference to
which interest on a Loan or an overdue amount is calculated.
Total Assets means, at any time, the total assets of the Guarantor and its
Consolidated Subsidiaries at such time determined on a consolidated basis
(without duplication) in accordance with GAAP.
Total Capital means, at any date, Consolidated Net Worth plus Total Debt
plus (i) the amount of the minority interest in ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Limited,
and (ii) the amount of the minority interest represented by the tax
deductible convertible preferred shares issued by International Paper
Capital Trust, each determined as of such date.
Total Commitments means the aggregate of the Commitments of all the
Lenders.
Total Debt means, at any time, the aggregate outstanding principal amount
of all Indebtedness of the Guarantor and its Consolidated Subsidiaries at
such time determined on a consolidated basis (without duplication) in
accordance with GAAP.
Trading Contract means a contract entered into for purely commercial
purposes by a Finance Party with an Obligor which relates to its trading
activities and which is not related to any banking business which is
conducted between the contracting parties.
9
Transactions means collectively, the transactions contemplated hereby.
Transfer Certificate means a certificate, substantially in the form of
Schedule 5 (Form of Transfer Certificate), with such amendments as the
Facility Agent may approve or reasonably require or any other form agreed
between the Facility Agent and the Company.
U.K. means the United Kingdom.
Utilisation Date means each date on which the Facility is utilised.
Wholly Owned Subsidiary means, as to any Person, any Subsidiary of such
Person all of the shares or ownership interests of which, other than (in
the case of a corporation) directors' qualifying shares, are owned or
controlled by such Person and/or any of its Wholly Owned Subsidiary.
1.2 Construction
(a) In this Agreement, unless the contrary intention appears, a reference to:
(i) an amendment includes a supplement, novation, restatement or
re-enactment and amended will be construed accordingly;
(ii) assets includes present and future properties, revenues and rights
of every description;
(iii) an authorisation includes an authorisation, consent, approval,
resolution, licence, exemption, filing, registration or
notarisation;
(iv) disposal means a sale, transfer, grant, lease or other disposal,
whether voluntary or involuntary, and dispose will be construed
accordingly;
(v) indebtedness includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money;
(vi) know your customer requirements are the identification checks that
a Finance Party requests in order to meet its obligations under
any applicable law or regulation to identify a person who is (or
is to become) its customer;
(vii) a regulation includes any regulation, rule or official directive
(whether or not having the force of law but, if not having the
force of law, being of a type with which any person to which it
applies are obliged to comply) of any governmental,
inter-governmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;
(viii) a currency is a reference to the lawful currency for the time
being of the relevant country;
(ix) (A) an Event of Default being outstanding means that it has not
been remedied or waived and any applicable grace period in
relation thereto has expired;
(B) a Potential Event of Default being outstanding means that
it has not been remedied or waived;
10
(x) a provision of law is a reference to that provision as extended,
applied, amended or re-enacted and includes any subordinate
legislation;
(xi) a Clause, a Subclause or a Schedule is a reference to a clause or
subclause of, or a schedule to, this Agreement;
(xii) a Party or any other person includes its successors in title,
permitted assigns and permitted transferees;
(xiii) a Finance Document or another document is a reference to that
Finance Document or other document as amended; and
(xiv) a time of day is a reference to Paris time.
(b) Unless the contrary intention appears, a reference to a month or months
is a reference to a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month or
the calendar month in which it is to end, except that:
(i) if the numerically corresponding day is not a Business Day, the
period will end on the next Business Day in that month (if there
is one) or the preceding Business Day (if there is not);
(ii) if there is no numerically corresponding day in that month, that
period will end on the last Business Day in that month; and
(iii) notwithstanding subparagraph (i) above, a period which commences
on the last Business Day of a month will end on the last Business
Day in the next month or the calendar month in which it is to end,
as appropriate.
(c) Unless expressly provided to the contrary in a Finance Document, a person
who is not a party to a Finance Document may not enforce any of its terms
under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ and,
notwithstanding any term of any Finance Document, no consent of any third
party is required for any variation (including any release or compromise
of any liability) or termination of any Finance Document.
(d) Unless the contrary intention appears:
(i) a reference to a Party will not include that Party if it has
ceased to be a Party under this Agreement;
(ii) a word or expression used in any other Finance Document or in any
notice given in connection with any Finance Document has the same
meaning in that Finance Document or notice as in this Agreement;
and
(iii) any obligation of an Obligor under the Finance Documents which is
not a payment obligation remains in force for so long as any
payment obligation of an Obligor is or may be outstanding under
the Finance Documents.
(e) The headings in this Agreement do not affect its interpretation.
11
1.3 French terms
In this Agreement, a reference to:
(a) a winding-up or dissolution includes a redressement judiciaire,
cession totale de l'entreprise or liquidation judiciaire under
Articles L.620-1 et seq. of the French Commercial Code;
(b) a composition or similar arrangement with any creditor includes a
reglement amiable under Articles L.611-3 et seq. of the French
Commercial Code;
(c) a receiver, administrator includes an administrateur judiciaire,
administrateur provisoire, mandataire ad hoc, conciliateur or
mandataire liquidateur;
(d) a lease includes an operation de credit-bail;
(e) a Lien includes any type of security (surete reelle) and transfer
by way of security;
(f) a person being unable to pay its debts includes that person being
in a state of cessation des paiements; and
(g) the French Commercial Code means the Code de Commerce.
2. FACILITY
2.1 Facility
Subject to the terms of this Agreement, the Lenders make available to the
Company a term loan facility in an aggregate amount equal to the Total
Commitments.
2.2 Nature of a Finance Party's rights and obligations
Unless all the Finance Parties agree otherwise:
(a) the obligations of a Finance Party under the Finance Documents are
several;
(b) failure by a Finance Party to perform its obligations does not
affect the obligations of any other Party under the Finance
Documents except as set forth in this Agreement;
(c) no Finance Party is responsible for the obligations of any other
Finance Party under the Finance Documents;
(d) the rights of a Finance Party under the Finance Documents are
separate and independent rights;
(e) a Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights; and
(f) a debt arising under the Finance Documents to a Finance Party is a
separate and independent debt.
12
3. PURPOSE
3.1 Loans
Each Loan may only be used for general corporate purposes.
3.2 No obligation to monitor
No Finance Party is bound to monitor or verify the utilisation of the
Facility.
4. CONDITIONS PRECEDENT
4.1 Conditions precedent documents
A Request may not be given until the Facility Agent has notified the
Company and the Lenders that it has received all of the documents and
evidence set out in Schedule 2 (Conditions precedent documents) in form
and substance satisfactory to the Facility Agent. The Facility Agent must
give this notification to the Company and the Lenders promptly upon being
so satisfied.
4.2 Further conditions precedent
The obligations of each Lender to participate in any Loan are subject to
the further conditions precedent that on both the date of the Request and
the Utilisation Date for that Loan:
(a) the Repeating Representations are correct in all material
respects; and
(b) no Potential Event of Default or Event of Default is outstanding
or would result from the Loan.
4.3 Maximum number
Unless the Facility Agent agrees, a Request may not be given if, as a
result, there would be more than seven Loans outstanding.
5. UTILISATION - LOANS
5.1 Giving of Requests
(a) The Company may borrow a Loan by giving to the Facility Agent a
duly completed Request.
(b) Unless the Facility Agent otherwise agrees, the latest time for
receipt by the Facility Agent of a duly completed Request is 11.00
a.m. (i) three Business Days in respect of a Loan denominated in
Sterling, (ii) one Business Day in respect of a Loan denominated
in any other currency (other than euro) and (iii) one TARGET day
in respect of a Loan denominated in euro, in each case before the
Rate Fixing Day for the proposed borrowing.
(c) Each Request is irrevocable.
5.2 Completion of Requests
A Request for a Loan will not be regarded as having been duly completed
unless:
(a) the Utilisation Date is a Business Day falling within the
Availability Period;
13
(b) the amount of the Loan requested is:
(i) a minimum of 'E'25,000,000 or an amount which complies
with Clause 6 (Optional Currencies) and an integral
multiple of 1,000,000 units of that currency;
(ii) the maximum undrawn amount available under the Facility on
the proposed Utilisation Date; or
(iii) such other amount as the Facility Agent may agree; and
(c) the proposed currency and Term comply with this Agreement.
Only one Loan may be requested in a Request.
5.3 Advance of Loan
(a) The Facility Agent must promptly notify each Lender of the details of the
requested Loan and the amount of its share in that Loan.
(b) The amount of each Lender's share of the Loan will be its Pro Rata Share
on the proposed Utilisation Date.
(c) No Lender is obliged to participate in a Loan if, as a result, the Loans
would exceed the Total Commitments.
(d) If the conditions set out in this Agreement have been met, each Lender
must make its share in the Loan available to the Facility Agent for the
Company through its Facility Office in sufficient time so that the Loan
will be received by the Company, in an account specified by it, in
immediately available funds, on the Utilisation Date.
(e) Subject to paragraph (d) above, on each Utilisation Date, the amount
provided in immediately available funds to the Facility Agent by the
Lenders in accordance with paragraph (d) above will be provided to the
Company in an account specified by it, in immediately available funds.
6. OPTIONAL CURRENCIES
6.1 General
In this Clause:
Agent's Spot Rate of Exchange means the Facility Agent's spot rate of
exchange for the purchase of the relevant currency in the London foreign
exchange market with euros as of 11.00 a.m. on a particular day.
euro Amount of a Loan or part of a Loan means:
(a) if the Loan is denominated in euros, its amount; or
(b) if the Loan is denominated in an Optional Currency, its equivalent
in euros as if it had first been drawn down and had remained
denominated in euros, adjusted to reflect any repayment,
prepayment, consolidation or splitting of that Loan.
14
Optional Currency means any currency (other than euros) in which a Loan
may be denominated under this Agreement.
6.2 Selection
(a) The Company must select the currency of a Loan in its Request.
(b) (i) The amount of a Loan requested in an Optional Currency
must be a minimum euro Amount of 'E'25,000,000 and, if
required by the Facility Agent, an integral multiple of a euro
Amount of 'E'1,000,000.
(ii) The amount of a Loan in an Optional Currency will be its euro
Amount notionally converted into that Optional Currency at the
Agent's Spot Rate of Exchange one Business Day before the Rate
Fixing Day for the first Term of that Loan.
(c) Unless the Facility Agent otherwise agrees, the Loans may not be
denominated at any one time in more than three currencies.
6.3 Conditions relating to Optional Currencies
(a) A Loan may be denominated in an Optional Currency for a Term if:
(i) that Optional Currency is readily available in the amount required
and freely convertible into euros in the relevant interbank market
on the Rate Fixing Day and the first day of that Term; and
(ii) that Optional Currency has been previously approved by the
Facility Agent (acting on the instructions of all the Lenders).
(b) If the Facility Agent has received a request from the Company for a
currency to be approved as an Optional Currency, the Facility Agent must,
within five Business Days, confirm to the Company:
(i) whether or not the Lenders have given their approval; and
(ii) if approval has been given, the minimum amount (and, if required,
integral multiples) for any Loan in that currency.
6.4 Revocation of currency
(a) Notwithstanding any other term of this Agreement, if before 9.30 a.m. on
any Rate Fixing Day the Facility Agent receives notice from a Lender
that:
(i) the Optional Currency requested is not readily available to it in
the relevant interbank market in the amount and for the period
required; or
(ii) participating in a Loan in the proposed Optional Currency will
contravene any law or regulation applicable to it,
the Facility Agent must give notice to the Company to that effect
promptly and in any event before 11.00 a.m. on that day.
(b) In this event:
(i) that Lender must participate in the Loan in euros; and
15
(ii) the share of that Lender in the Loan and any other similarly
affected Lender(s) will be treated as a separate Loan denominated
in euros during that Term.
6.5 Optional Currency equivalents
(a) The equivalent in euros of a Loan or part of a Loan in an Optional
Currency for the purposes of calculating:
(i) whether any limit under this Agreement has been exceeded;
(ii) the amount of a Loan;
(iii) the share of a Lender in a Loan;
(iv) the amount of any repayment or prepayment of a Loan; or
(v) the undrawn amount of a Lender's Commitment,
is its euro Amount.
(b) The rate of exchange to be used for calculating the amount in euros of
any repayment or prepayment of a Loan in an Optional Currency is that
last used for determining the current amount of that Loan in that
Optional Currency.
6.6 Loans - change of currency
(a) A Loan will remain denominated in the same currency through successive
Terms, unless the currency is changed under paragraph (c) below.
(b) The Company may change the currency of a Loan with effect from the start
of a Term by giving notice to the Facility Agent by 9.00 a.m. three
Business Days before the first day of that Term. The Loan will remain
denominated in that currency until it is changed again under this
Subclause.
(c) If a Loan is to be denominated in different currencies during successive
Terms:
(i) the Company must repay that Loan on the last day of its current
Term in the currency in which it is then denominated (the old
currency); and
(ii) the Lenders must, subject to the terms of this Agreement,
re-advance the Loan in the currency in which the Company requires
the Loan to be denominated for the next Term (the new currency).
The amount of the Loan in the new currency will be calculated by
reference to its euro Amount.
(d) Alternatively, if the Facility Agent and the Company agree:
(i) the Facility Agent may apply the amount (or so much of that amount
as is necessary) of the Loan in the new currency to purchase an
amount of the old currency sufficient to discharge the obligation
of the Company to repay the Loan in the old currency;
(ii) the Facility Agent must apply any amount of the old currency
purchased under subparagraph (i) above towards repaying the Loan
in the old currency;
16
(iii) the Facility Agent will promptly notify the Company if there is a
shortfall or an excess;
(iv) if there is a shortfall, the Company must pay to the Facility
Agent on the date the Loan is due to be repaid in the old currency
an amount in the old currency equal to the shortfall; and
(v) if there is an excess, the Facility Agent must pay to the Company
on the date the Loan is due to be repaid in the old currency an
amount in the new currency equal to the excess.
(e) If the day on which the old currency is due to be repaid is not also a
Business Day for the new currency:
(i) the Facility Agent must notify the Company and the Lenders
promptly;
(ii) the Loan will remain in the old currency until the next day which
is a Business Day for both the old and the new currencies; and
(iii) during this period, the Loan will have Terms running from one
Business Day to the next Business Day.
(f) The Company must indemnify the Facility Agent against any loss or
liability incurred by the Facility Agent as a result of any foreign
exchange contract entered into for the purpose of this Clause.
6.7 Loans - continuing in same Optional Currency
(a) If a Loan is to be denominated in the same Optional Currency during two
successive Terms, the Facility Agent must calculate the amount of the
Loan in the Optional Currency for the second of those Terms.
(b) The amount of the Loan in the Optional Currency for the second Term will
be the amount determined by notionally converting into that Optional
Currency the euro Amount of the Loan on the basis of the Agent's Spot
Rate of Exchange one Business Day before the Rate Fixing Day for that
Term.
(c) If the amount calculated is less than the existing amount of that Loan in
the Optional Currency during the first Term, the Company must repay,
subject to paragraph (e) below, on the last day of the first Term an
amount equal to the difference and the amount of the Loan will be reduced
accordingly.
(d) If the amount calculated is more than the existing amount of that Loan in
the Optional Currency during the first Term, each Lender must advance,
subject to paragraph (e) below, on the last day of the first Term its Pro
Rata Share of the difference and the amount of the Loan will be increased
accordingly.
(e) If the calculation made by the Facility Agent under paragraph (a) above
shows that the amount of the Loan in the Optional Currency has increased
or decreased by less than five per cent. since it was borrowed or (if
later) the most recent adjustment under paragraph (c) above or (d) above,
no payment is required under paragraph (c) above or (d) above and the
amount of the Loan will remain the same.
17
6.8 Conditions precedent
The obligation of each Lender under this Clause to re-advance its share
of a Loan in a new currency or make any payment increasing the amount of
a Loan in an Optional Currency is subject to the condition precedent that
on the date of the relevant payment:
(a) the Repeating Representations are correct in all material
respects; and
(b) no Potential Event of Default or Event of Default is outstanding
or would result from that payment.
6.9 Notification
The Facility Agent must notify the Lenders and the Company of the
relevant euro Amount (and the applicable Agent's Spot Rate of Exchange)
promptly after they are ascertained.
7. REPAYMENT
The Company must repay the Loans in full on the Final Maturity Date.
8. PREPAYMENT AND CANCELLATION
8.1 Mandatory prepayment - illegality
(a) A Lender must notify the Company promptly if it becomes aware that it is
unlawful in any jurisdiction for that Lender to perform any of its
obligations under a Finance Document or to fund or maintain its share in
any Loan.
(b) After notification under paragraph (a) above:
(i) the Company must repay or prepay the share of that Lender in each
Loan made to it on the date specified in paragraph (c) below; and
(ii) the Commitment of that Lender will be immediately cancelled.
(c) The date for repayment or prepayment of a Lender's share in a Loan will
be:
(i) the last day of the current Term of that Loan; or
(ii) if earlier, the date specified by the Lender in the notification
under paragraph (a) above and which must not be earlier than the
last day of any applicable grace period allowed by law.
(d) In the event that repayment or prepayment of a Lender's share in a Loan
is made in accordance with paragraph (b) above, any applicable Break
Costs shall be apportioned as follows:
(i) one-half to be paid by the Company; and
(ii) one-half to be borne by the Lender requiring repayment or
prepayment in accordance with this Subclause.
18
8.2 Mandatory prepayment - tax gross up illegal
(a) The Company must promptly notify the Facility Agent if it becomes
unlawful for any Obligor to perform any of its obligations under Clause
12.2(c) (Tax gross-up).
(b) After notification under paragraph (a) above:
(i) the Commitments of that Lender will be immediately cancelled; and
(ii) the Company must repay or prepay that Lender's share in each Loan
made to it on the date specified in paragraph (c) below.
(c) The date for repayment of a Lender's share in a Loan will be the last day
of the Term applicable to that Loan which ends after the Company has
given notice under paragraph (a).
(d) Notwithstanding any other term of this Agreement, the circumstances
giving rise to notification by the Company under paragraph (a) above will
not constitute an Event of Default.
8.3 Voluntary prepayment
(a) The Company may, by giving not less than three Business Days' prior
notice to the Facility Agent (such notice to be given to the Facility
Agent not later than 11.00am on the third Business Day prior to the
proposed prepayment), prepay any Loan at any time in whole or in part.
(b) A prepayment of part of a Loan must be in a minimum amount of
'E'1,000,000 or an amount which complies with Clause 6 (Optional
Currencies) and an integral multiple of 1,000,000 units of that
currency.
8.4 Automatic cancellation
The Commitment of each Lender will be automatically cancelled at the
close of business on the last day of the Availability Period.
8.5 Voluntary cancellation
(a) The Company may, by giving not less than five Business Days' prior
notice to the Facility Agent, cancel the unutilised amount of the Total
Commitments in whole or in part.
(b) Partial cancellation of the Total Commitments must be in a minimum
amount of 'E'25,000,000 and an integral multiple of 'E'1,000,000.
(c) Any cancellation in part will be applied against the Commitment of each
Lender pro rata.
8.6 Involuntary prepayment and cancellation
(a) If the Company is, or will be, required to pay to a Lender:
(i) a Tax Payment;
(ii) an Increased Cost; or
(iii) any amount under paragraph 3 of Schedule 4 (Calculation of the
Mandatory Cost),
19
the Company may, while the requirement continues, give notice to the
Facility Agent requesting prepayment and cancellation in respect of that
Lender.
(b) After notification under paragraph (a) above:
(i) the Company must repay or prepay that Lender's share in each Loan
made to it on the date specified in paragraph (c) below; and
(ii) the Commitment of that Lender will be immediately cancelled.
(c) The date for repayment or prepayment of a Lender's share in a Loan will
be:
(i) the last day of the current Term for that Loan; or
(ii) if earlier, the date specified by the Company in its notification.
(d) A Finance Party making a claim in respect of a Tax Payment, an Increased
Cost or any amount under paragraph 3 of Schedule 4 (Calculation of the
Mandatory Cost) (each an Increased Payment) must supply to the Facility
Agent for the Company a certificate setting forth in reasonable detail
(including the calculations of such amount) the amount of the claim. No
amount shall be payable by the Company in respect of such claim until
such certificate has been provided to the Company, at which time payment
shall be due in respect of the entire period throughout which the
Increased Payment was incurred. However, if the Company does not receive
notification of the Increased Payment within 90 days of the relevant
Finance Party becoming aware of such Increased Payment being incurred,
the Company is not obliged to make any payment in respect of that
Increased Payment.
8.7 Partial prepayment of Loans
No amount of a Loan prepaid under this Agreement may subsequently be
re-borrowed.
8.8 Miscellaneous provisions
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable and must specify the relevant date(s) and the affected Loans
and Commitments. The Facility Agent must notify the Lenders promptly of
receipt of any such notice.
(b) All prepayments under this Agreement must be made with accrued interest
on the amount prepaid. No premium or penalty is payable in respect of any
prepayment except for Break Costs.
(c) The Majority Lenders may agree a shorter notice period for a voluntary
prepayment or a voluntary cancellation.
(d) No prepayment or cancellation is allowed except in accordance with the
express terms of this Agreement.
(e) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
20
9. INTEREST
9.1 Calculation of interest
The rate of interest on each Loan for each Term is the percentage rate
per annum equal to the aggregate of the applicable:
(a) Margin;
(b) IBOR; and
(c) Mandatory Cost.
9.2 Payment of interest
Except where it is provided to the contrary in this Agreement, the
Company must pay accrued interest on each Loan made to it on the last day
of each Term and also, if the Term is longer than six months, on the
dates falling at six-monthly intervals after the first day of that Term.
9.3 Margin adjustments
(a) In this Subclause:
Rating Agency means ▇▇▇▇▇'▇, S&P or any other rating agency approved by
the Majority Lenders and the Company.
(b) The initial Margin is 0.55 per cent. per annum.
(c) Subject to the other provisions of this Subclause, the Margin will be
subsequently calculated by reference to the table below:
------------------------------------------ ----------------------------------------------
Column 1 Column 2
Long-term credit rating Margin
of the Guarantor (per cent. per annum)
------------------ ----------------------- ----------------------------------------------
▇▇▇▇▇'▇ S&P
------------------ ----------------------- ----------------------------------------------
A3 A- or higher 0.45
------------------ ----------------------- ----------------------------------------------
Baa1 BBB+ 0.50
------------------ ----------------------- ----------------------------------------------
Baa2 BBB 0.55
------------------ ----------------------- ----------------------------------------------
Baa3 BBB- 0.60
------------------ ----------------------- ----------------------------------------------
Ba1 BB+ or lower 1.00
------------------ ----------------------- ----------------------------------------------
(d) The Company must notify, or must procure that the Guarantor notifies, the
Facility Agent of any notification to the Guarantor by a Rating Agency of
a change in its long-term credit rating.
In the event that there is a split long-term credit rating from ▇▇▇▇▇'▇
and S&P, the applicable Margin shall be (1) the Margin applicable to the
higher of such ratings in the event such ratings are one level apart, (2)
the Margin applicable to the midpoint (if any) in the event such ratings
are two or more levels apart or (3) the Margin applicable to the higher
of the two intermediate ratings in the event there is no midpoint rating.
If at any time the Guarantor does not have a long-term credit rating in
effect with either ▇▇▇▇▇'▇ or S&P (other than by reason of a change in
the long-term credit rating system of ▇▇▇▇▇'▇ or S&P or if either such
rating agency ceases to be in the business of rating
21
corporate debt obligations), the Margin will be the highest applicable
rate, being 1.00 per cent. per annum. If the long-term credit rating
system of ▇▇▇▇▇'▇ or S&P changes, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, the
Guarantor (on its own behalf and on behalf of the Company) and the
Lenders shall negotiate in good faith to amend this provision to reflect
such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the
Margin shall be determined by reference to the rating most recently in
effect prior to such change or cessation.
If at any time the Guarantor only has a long-term credit rating from one
of ▇▇▇▇▇'▇ or S&P, the Margin shall be calculated solely by reference to
the long-term credit rating established by the rating agency that does
have a long-term credit rating for the Guarantor then in effect.
If at any time the long-term credit rating of the Guarantor established
or deemed to have been established by ▇▇▇▇▇'▇ and S&P shall be changed
(other than as a result of a change in the rating system of ▇▇▇▇▇'▇ or
S&P), such change shall be effective as of the date on which it is first
announced by the applicable rating agency;
(e) Any change in the Margin will, subject to paragraph (f) below, apply as
of the date it is first announced by the applicable rating agency (other
than as a result of a change in the rating system of ▇▇▇▇▇'▇ or S&P).
(f) For so long as an Event of Default is outstanding, the Margin will be the
highest applicable rate, being 1.00 per cent. per annum.
9.4 Interest on overdue amounts
(a) If an Obligor fails to pay any amount payable by it under the Finance
Documents, it must immediately on demand by the Facility Agent pay
interest on the overdue amount from its due date up to the date of actual
payment, both before, on and after judgment.
(b) Interest on an overdue amount is payable at a rate determined by the
Facility Agent to be one per cent. per annum above the rate which would
have been payable if the overdue amount had, during the period of
non-payment, constituted a Loan in the currency of the overdue amount.
For this purpose, the Facility Agent may (acting reasonably):
(i) select successive Terms of any duration of up to three months; and
(ii) determine the appropriate Rate Fixing Day for that Term.
(c) Notwithstanding paragraph (b) above, if the overdue amount is a principal
amount of a Loan and becomes due and payable before the last day of its
current Term, then:
(i) the first Term for that overdue amount will be the unexpired
portion of that Term; and
(ii) the rate of interest on the overdue amount for that first Term
will be one per cent. per annum above the rate then payable on
that Loan.
After the expiry of the first Term for that overdue amount, the rate on
the overdue amount will be calculated in accordance with paragraph (b)
above.
(d) Interest (if unpaid) on an overdue amount will be compounded with that
overdue amount at the end of each of its Terms but will remain
immediately due and payable.
22
9.5 Notification of rates of interest
The Facility Agent must promptly notify each relevant Party of the
determination of a rate of interest under this Agreement.
9.6 Effective Global Rate (Taux Effectif Global)
For the purpose of Articles L.313-1, L.313-2, R 313-1 and R 313-2 of the
French Consumer Code (Code de la Consommation), each Party acknowledges
that:
(a) by virtue of certain characteristics of this Agreement (including
the variable interest rate applicable to Loans and the Company's
right to select the currency and the duration of a Term), the
taux effectif global cannot be calculated on the date of this
Agreement, but that an indicative calculation of the taux effectif
global, based on assumptions as to the taux de periode and the
duree de periode, will be set out in a letter from the Facility
Agent to the Company substantially in the form of Schedule 9
(Form of Taux effectif global Letter); and
(b) that letter forms part of this Agreement.
10. TERMS
10.1 Selection
(a) Each Loan has successive Terms.
(b) The Company must select the first Term for a Loan in the relevant Request
and each subsequent Term in an irrevocable notice received by the
Facility Agent not later than 11.00 a.m. one Business Day before the Rate
Fixing Day for that Term. Each Term for a Loan will start on its
Utilisation Date or on the expiry of its preceding Term.
(c) If the Company fails to select a Term for an outstanding Loan under
paragraph (b) above, that Term will, subject to the other provisions of
this Clause, be three months.
(d) Subject to the following provisions of this Clause, each Term for a Loan
will be one, two, three or six months or any other period agreed by the
Company and the Lenders.
10.2 Consolidation
If the Company so requests a Term for a Loan will end on the same day as
the current Term for any other Loan denominated in the same currency as
that Loan. On the last day of those Terms, those Loans will be
consolidated and treated as one Loan.
10.3 No overrunning the Final Maturity Date
If a Term would otherwise overrun the Final Maturity Date, it will be
shortened so that it ends on the Final Maturity Date.
10.4 Other adjustments
The Facility Agent and the Company may enter into such other arrangements
as they may agree for the adjustment of Terms and the consolidation
and/or splitting of Loans.
23
10.5 Notification
The Facility Agent must notify each relevant Party of the duration of
each Term promptly after ascertaining its duration.
11. MARKET DISRUPTION
11.1 Failure of a Reference Bank to supply a rate
If IBOR is to be calculated by reference to the Reference Banks but a
Reference Bank does not supply a rate by 12.00 noon (local time) on a
Rate Fixing Day, the applicable IBOR will, subject as provided below, be
calculated on the basis of the rates of the remaining Reference Banks.
11.2 Market disruption
(a) In this Clause, each of the following events is a market disruption
event:
(i) IBOR is to be calculated by reference to the Reference Banks but
no, or only one, Reference Bank supplies a rate by 12.00 noon
(local time) on the Rate Fixing Day; or
(ii) the Facility Agent receives by close of business on the Rate
Fixing Day notification from Lenders whose shares in the relevant
Loan exceed 30 per cent. of that Loan that the cost to them of
obtaining matching deposits in the relevant interbank market is in
excess of IBOR for the relevant Term.
(b) The Facility Agent must promptly notify the Company and the Lenders of a
market disruption event.
(c) After notification under paragraph (b) above, the rate of interest on
each Lender's share in the affected Loan for the relevant Term will be
the aggregate of the applicable:
(i) Margin;
(ii) rate notified to the Facility Agent by that Lender as soon as
practicable, and in any event before interest is due to be paid in
respect of that Term, to be that which expresses as a percentage
rate per annum the cost to that Lender of funding its share in
that Loan from whatever source it may reasonably select; and
(iii) Mandatory Cost.
11.3 Alternative basis of interest or funding
(a) If a market disruption event occurs and the Facility Agent or the Company
so requires, the Company and the Facility Agent must enter into
negotiations for a period of not more than 30 days with a view to
agreeing an alternative basis for determining the rate of interest and/or
funding for the affected Loan.
(b) Any alternative basis agreed will be, with the prior consent of all the
Lenders, binding on all the Parties.
24
12. TAXES
12.1 General
In this Clause:
Qualifying Lender means:
(a) in respect of payments by the Company, a Lender which:
(i) has its Facility Office in France;
(ii) is a Treaty Lender; or
(iii) is otherwise entitled to receive a payment under this
Agreement without any Tax Deduction; and
(b) in respect of payments by the Guarantor, a Lender which is:
(i) a US person; or
(ii) not a US person, and
(A) is entitled to the benefits of an appropriate double
taxation agreement to which the United States is a party
that fully exempts payments of interest from deduction or
withholding of United States federal income tax and does
not conduct a trade or business in the United States
through a permanent establishment with which a payment is
effectively connected; or
(B) is not entitled to the benefits of a double taxation
agreement to which the United States is a party but
conducts a trade or business in the US to which a payment
is effectively connected.
Tax Credit means any Tax benefit, including any refund of Taxes
(including interest received thereon), any credit against any Tax, any
Tax deduction, and any relief from or remission for Tax (or its
repayment).
Treaty Lender means a Lender which, on the date a payment of interest
falls due under this Agreement, fulfils the conditions imposed by any
double taxation agreement to which France is a party for the payment to
be made without a Tax Deduction.
US person has the meaning given to it in Section 7701(a)(30) of the
United States Internal Revenue Code of 1986.
12.2 Tax gross-up
(a) Each Obligor must make all payments to be made by it under the Finance
Documents without any Tax Deduction, unless a Tax Deduction is required
by (or by the interpretation, administration, or application of) any law
or regulation.
(b) If:
(i) a Lender is not, or ceases to be a Qualifying Lender; or
25
(ii) an Obligor or a Lender is aware that an Obligor must make a Tax
Deduction (or that there is a change in the rate or the basis of a
Tax Deduction),
it must promptly notify the Facility Agent with a copy of such
notification to the Company. The Facility Agent must then promptly notify
the affected Parties.
(c) Except as provided below, if a Tax Deduction is required by (or by the
interpretation, administration, or application of) any law or regulation
to be made by an Obligor or the Facility Agent, the amount of the payment
due from the Obligor will be increased by an additional amount (the
Gross-Up Payment) such that the total payment (inclusive of the Gross-Up
Payment), after making the Tax Deduction, leaves a net amount equal to
the payment which would have been due if no Tax Deduction had been
required.
(d) Except as provided below, an Obligor is not required to make an increased
payment under paragraph (c) above to a Lender that is not, or has ceased
to be, a Qualifying Lender in excess of the amount that the Obligor would
have had to pay had the Lender been, or not ceased to be, a Qualifying
Lender.
(e) Paragraph (d) above will not apply if the Lender is not or has ceased to
be a Qualifying Lender by reason of any change after the date of this
Agreement in (or in the interpretation, administration, or application
of) any law or regulation.
(f) An Obligor is not required to make payment to a Lender under paragraph
(c) above if the Obligor making the payment would not have been required
to make the Tax Deduction if the Lender had complied with its obligations
under paragraph (i) below.
(g) If an Obligor is required to make a Tax Deduction, that Obligor must make
the minimum Tax Deduction and must make any payment required in
connection with that Tax Deduction within the time allowed by law. This
provision shall not apply during a period of time that a Lender has
ceased to be a Qualifying Lender and the Company has not received
notification of such cessation. For the avoidance of doubt the provisions
of this paragraph (g) shall not affect each Lender's obligations under
paragraph (b) above.
(h) Within a reasonable time of making either a Tax Deduction or a payment
required in connection with a Tax Deduction, the Obligor making that Tax
Deduction must deliver to the Facility Agent for the relevant Finance
Party evidence satisfactory to that Finance Party (acting reasonably)
that the Tax Deduction has been made or (as applicable) the appropriate
payment has been paid to the relevant taxing authority.
(i) Each Lender must co-operate with each Obligor by using its reasonable
endeavours to complete any procedural formalities (including but not
limited to providing any completed and executed applicable tax forms of a
Governmental Authority) necessary for that Obligor to obtain
authorisation to make that payment without a Tax Deduction or with a
reduced Tax Deduction.
(j) Except as provided below, a Lender must reimburse the Company within 30
Business Days of receipt of a certificate described below in respect of
any loss or liability which the Company (in its absolute discretion,
acting reasonably) determines will be or has been suffered (directly or
indirectly) by the Company due to that Lender's failure to comply with
its obligations under Clause 12.2 (b) to promptly notify the Facility
Agent (with a copy of such notification to the Company) that it had
ceased to be a Qualifying Lender which has directly resulted in the
failure by the Company to make a Tax Deduction or a payment in connection
with a Tax Deduction required to be made to the relevant taxing
authority. Such loss or liability shall include any penalties or interest
payable to such taxing authority. No amount shall be payable
26
under this paragraph (j) by a Lender until receipt by that Lender of a
certificate setting forth in reasonable detail (including the calculation
of such amount) the amount of the claim. Any such certificate shall be
provided by the Company to the Facility Agent and the relevant Lender. If
the Lender does not receive notification of the said loss or liability
within 90 days of the Company becoming aware of such loss or liability
being incurred, the Lender is not obliged to make any payment in respect
of that loss or liability. The Company must take all reasonable steps to
mitigate any circumstances that would result in any payment being
required to be made by a Lender under this paragraph (j); provided
however that the Company is not obliged to take any such step if, in the
opinion of the Company (acting reasonably), to do so might reasonably be
expected to be prejudicial to it, unless it is only prejudicial in an
immaterial respect.
12.3 Tax indemnity
(a) Without prejudice to Clause 12.2 (Tax gross-up) and except as provided
below, the Company must indemnify a Finance Party within 30 Business Days
of receipt of a certificate described in Clause 8.6 (d) (Involuntary
prepayment and cancellation) against any loss or liability which that
Finance Party (in its absolute discretion, acting reasonably) determines
will be or has been suffered (directly or indirectly) by that Finance
Party for or on account of Tax (taking into account any Tax Credits) in
relation to a payment received or receivable (or any payment deemed to be
received or receivable) under a Finance Document.
(b) Paragraph (a) above does not apply to any Excluded Taxes.
(c) A Finance Party making, or intending to make, a claim under paragraph (a)
above must promptly notify the Company of the event which will give, or
has given, rise to the claim.
12.4 Tax Credit
If an Obligor makes a Tax Payment and the relevant Finance Party (in its
absolute discretion, acting reasonably) determines that:
(a) a Tax Credit is attributable to that Tax Payment or the Tax giving
rise thereto (not accounted for in the original calculation of a
claim under Clause 12.3(a)); and
(b) it has used or otherwise enjoyed the benefit of that Tax Credit,
the Finance Party must pay an amount to the Obligor which that Finance
Party determines (in its absolute discretion, acting reasonably) will
leave it (after that payment) in the same after-tax position as it would
have been if the Tax Payment had not been required to be made by the
Obligor.
12.5 Stamp taxes
The Company must pay and indemnify each Finance Party against any stamp
duty, stamp duty land tax, registration or other similar Tax payable in
connection with the entry into, performance or enforcement of any Finance
Document, except for any such Tax payable in connection with the entry
into a Transfer Certificate.
12.6 Value added taxes
(a) Subject to paragraph (c) below, any amount payable under a Finance
Document by an Obligor is exclusive of any value added tax or any other
Tax of a similar nature which might be chargeable in connection with that
amount. If any such Tax is chargeable, the Obligor must
27
pay to the Finance Party (in addition to and at the same time as paying
that amount) an amount equal to the amount of that Tax.
(b) Where a Finance Document requires any Party to reimburse a Finance Party
for any costs or expenses, that Party must also at the same time pay and
indemnify the Finance Party against all value added tax or any other Tax
of a similar nature incurred by the Finance Party in respect of those
costs or expenses but only to the extent that the Finance Party (acting
reasonably) determines that it is not entitled to credit or repayment
from the relevant tax authority in respect of the Tax.
(c) Any amount payable under the Fee Letters referred to in Clauses 24.2
(Arrangement fee) and 24.3 (Participation fee) is inclusive of any value
added tax or other Tax of a similar nature which might be chargeable in
connection with that amount.
12.7 U.S. Tax forms
(a) Except as provided below, each Lender that is not a U.S. person must
supply to the Facility Agent and the Guarantor the U.S. Internal Revenue
Service forms that are necessary to enable the Guarantor to make payments
to that Lender under the Finance Documents without any deduction or
withholding in respect of any Tax in the United States of America and
certifying that such Lender is entitled to a complete exemption from U.S.
withholding tax with respect to payments hereunder.
(b) A Lender must comply with its obligations under paragraph (a) above (i)
on or before the date it becomes a Party, and (ii) as soon as practicable
after a change of circumstances makes any identifying information of a
Lender provided on a form supplied to the Facility Agent or Guarantor
incorrect or such form expires or (without prejudice to paragraph (c)
below) a Governmental Authority publishes a successor form, but in any
event prior to the date that the first payment is due to that Lender
under the Finance Documents after the date that the change of
circumstances occurs or the form expires
(c) A Lender is not obliged to supply any form under paragraph (a) above if
it is unable to do so by reason of any change after the date of this
Agreement in (or in the interpretation, administration or application of)
any law or regulation.
(d) The Guarantor is not obliged to pay any Tax Payment to a Lender to the
extent that the Tax Payment would not have been payable if that Lender
had complied with its obligations under this Subclause.
12.8 Confirmation by Lenders
As at the date of this Agreement, each Lender confirms in respect of
itself that it is a Qualifying Lender and therefore no Tax Deductions are
required to be made by the Obligors in respect of payments to be made by
the Obligors under the Finance Documents.
13. INCREASED COSTS
13.1 Increased Costs
Except as provided below in this Clause, the Company must pay to a
Finance Party the amount of any Increased Cost incurred by that Finance
Party or any of its Affiliates as a result of:
(a) (i) the introduction of any law or regulation after the date
of this Agreement; or
28
(ii) any change in, or any change in the interpretation,
administration or application of, any law or regulation,
such change occurring after the date of this Agreement; or
(b) compliance with any law or regulation made after the date of this
Agreement.
13.2 Exceptions
The Company need not make any payment for an Increased Cost to the extent
that the Increased Cost is:
(a) compensated for under another Clause or would have been but for an
exception to that Clause; or
(b) attributable to a Finance Party or its Affiliate either
(i) deliberately failing to comply with any law or regulation
(or any interpretation, administration or application thereof)
or (ii) causing such Increased Cost to be incurred by reason of
its failure to comply with its obligations under this Agreement.
13.3 Claims
(a) A Finance Party intending to make a claim for an Increased Cost must
notify the Facility Agent of the circumstances giving rise to and the
amount of the claim, following which the Facility Agent will promptly
notify the Company.
(b) If the Company does not receive notification of the Increased Cost within
90 days of the relevant Finance Party becoming aware of such Increased
Cost being incurred, the Company is not obliged to make any payment in
respect of that Increased Cost.
(c) A Finance Party making a claim under this Clause must comply with
paragraph (d) of Clause 8.6 (Involuntary prepayment and cancellation).
14. MITIGATION
14.1 Mitigation
(a) Each Finance Party must, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and which
result or would result in:
(i) any Tax Payment or Increased Cost being payable to that Finance
Party;
(ii) that Finance Party being able to exercise any right of prepayment
and/or cancellation under this Agreement by reason of any
illegality; or
(iii) that Finance Party incurring any amount under paragraph 3 of
Schedule 4 (Calculation of the Mandatory Cost),
including transferring its rights and obligations under the Finance
Documents to an Affiliate or changing its Facility Office.
(b)
(i) In this Clause 14.1 (b):
29
Increased Payment means any additional payment which an Obligor is
obliged to make which is referred to in any of sub-paragraphs (i)
to (iii) of paragraph (a) above;
Reasonable Period means, in relation to an Increased Payment, a
period of time which is reasonable in order to enable a Finance
Party to give effect to any Relevant Step which has been agreed in
accordance with paragraph (c)(i) below, such period beginning on
the date upon which such Relevant Step was agreed; and
Relevant Step means any step agreed to by the Company in
accordance with paragraph (c) (i) below for the purposes of
mitigating any Increased Payment;
(ii) Subject to sub-paragraph (b) (iii) below, paragraph (a) above does
not in any way limit the obligations of any Obligor under the
Finance Documents.
(iii) An Obligor is not liable to make any Increased Payment for the
benefit of any Finance Party which has failed to comply with its
obligations under paragraph (a) above within a Reasonable Period.
(c)
(i) The Company must indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of
any step taken by it under this Subclause which has been agreed to
in advance by the Company.
(ii) The relevant Finance Party will, within 10 Business Days of such
Finance Party becoming aware of the circumstances giving rise to
the obligation in paragraph (a) above, provide the Company with an
estimate of the costs and expenses that are likely to be incurred
by taking the step suggested by it in accordance with
sub-paragraph (i) above.
(d) A Finance Party is not obliged to take any step under this Subclause if,
in the opinion of that Finance Party (acting reasonably), to do so might
reasonably be expected to be prejudicial to it, unless it is only
prejudicial in an immaterial respect.
14.2 Conduct of business by a Finance Party
No term of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (Tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it in respect of Tax
or the extent, order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to
its affairs (Tax or otherwise) or any computation in respect of
▇▇▇.
▇▇
▇▇. PAYMENTS
15.1 Place
Unless a Finance Document specifies that payments under it are to be made
in another manner, all payments by a Party (other than the Facility
Agent) under the Finance Documents must be made to the Facility Agent to
its account at such office or bank:
(a) in the principal financial centre of the country of the relevant
currency; or
(b) in the case of euro, in the principal financial centre of a
Participating Member State or London,
as it may notify to that Party for this purpose by not less than five
Business Days' prior notice.
15.2 Funds
Payments under the Finance Documents to the Facility Agent must be made
for value on the due date at such times and in such funds as the Facility
Agent may specify to the Party concerned as being customary at the time
for the settlement of transactions in the relevant currency in the place
for payment.
15.3 Distribution
(a) Each payment received by the Facility Agent under the Finance Documents
for another Party must, except as provided below, be made available by
the Facility Agent to that Party by payment (as soon as practicable after
receipt) to its account with such office or bank:
(i) in the principal financial centre of the country of the relevant
currency; or
(ii) in the case of euro, in the principal financial centre of a
Participating Member State or London,
as it may notify to the Facility Agent for this purpose by not less than
five Business Days' prior notice.
(b) The Facility Agent may apply any amount received by it for an Obligor in
or towards payment (as soon as practicable after receipt) of any amount
due from that Obligor under the Finance Documents or in or towards the
purchase of any amount of any currency to be so applied.
(c) Where a sum is paid to the Facility Agent under this Agreement for
another Party, the Facility Agent is not obliged to pay that sum to that
Party until it has established that it has actually received it. However,
the Facility Agent may assume that the sum has been paid to it, and, in
reliance on that assumption, make available to that Party a corresponding
amount. If it transpires that the sum has not been received by the
Facility Agent, that Party must immediately on demand by the Facility
Agent refund any corresponding amount made available to it together with
interest on that amount from the date of payment to the date of receipt
by the Facility Agent at a rate calculated by the Facility Agent to
reflect its cost of funds.
31
15.4 Currency
(a) Unless a Finance Document specifies that payments under it are to be made
in a different manner, the currency of each amount payable under the
Finance Documents is determined under this Clause.
(b) Interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
(c) A repayment or prepayment of any principal amount is payable in the
currency in which that principal amount is denominated on its due date.
(d) Amounts payable in respect of Taxes, fees, costs and expenses are payable
in the currency in which they are incurred.
(e) Each other amount payable under the Finance Documents is payable in
euros.
15.5 No set-off or counterclaim
All payments made by an Obligor under the Finance Documents must be made
without set-off or counterclaim.
15.6 Business Days
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment will instead be the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on that principal at the rate payable
on the original due date.
15.7 Partial payments
(a) If any Administrative Party receives a payment insufficient to discharge
all the amounts then due and payable by the Obligors under the Finance
Documents, the Administrative Party must apply that payment towards the
obligations of the Obligors under the Finance Documents in the following
order:
(i) first, in or towards payment pro rata of any unpaid fees, costs
and expenses of the Administrative Parties under the Finance
Documents;
(ii) secondly, in or towards payment pro rata of any accrued interest
or fee due but unpaid under this Agreement;
(iii) thirdly, in or towards payment pro rata of any principal amount
due but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) The Facility Agent must, if so directed by the Majority Lenders, vary the
order set out in subparagraphs (a)(ii) to (iv) above.
(c) This Subclause will override any appropriation made by an Obligor.
32
15.8 Timing of payments
If a Finance Document does not provide for when a particular payment is
due, that payment will be due within ten days of demand by the relevant
Finance Party.
16. GUARANTEE
16.1 Guarantee
The Guarantor irrevocably and unconditionally:
(a) guarantees to each Finance Party punctual performance by the
Company of all its obligations under the Finance Documents;
(b) undertakes with each Finance Party that, whenever the Company does
not pay any amount when due under any Finance Document, the
Guarantor must immediately on demand by the Facility Agent pay
that amount as if it were the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against any
loss or liability suffered by that Finance Party if any payment
obligation guaranteed by it is or becomes unenforceable, invalid
or illegal; the amount of the loss or liability under this
indemnity will be equal to the amount the Finance Party would
otherwise have been entitled to recover.
16.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by the Company under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
16.3 Reinstatement
(a) If any discharge (whether in respect of the obligations of an Obligor or
any security for those obligations or otherwise) or arrangement is made
in whole or in part on the faith of any payment, security or other
disposition which is avoided or must be restored on insolvency,
liquidation or otherwise without limitation, the liability of the
Guarantor under this Clause will continue as if the discharge or
arrangement had not occurred.
(b) Each Finance Party may concede or compromise any claim that any payment,
security or other disposition is liable to avoidance or restoration.
16.4 Waiver of defences
The obligations of the Guarantor under this Clause will not be affected
by any act, omission or thing which, but for this provision, would
reduce, release or prejudice any of its obligations under this Clause
(whether or not known to it or any Finance Party). This includes:
(a) any time or waiver granted to, or composition with, any person;
(b) any release of any person under the terms of any composition or
arrangement;
(c) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any person;
33
(d) any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise
the full value of any security;
(e) any incapacity or lack of power, authority or legal personality of
or dissolution or change in the members or status of any person;
(f) any amendment (however fundamental) of a Finance Document or any
other document or security; or
(g) any unenforceability, illegality, invalidity or non-provability of
any obligation of any person under any Finance Document or any
other document or security.
16.5 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 right or security or claim payment from any person
before claiming from the Guarantor under this Clause.
16.6 Appropriations
Until all amounts which may be or become payable by the Obligors under
the Finance Documents have been irrevocably paid in full, each Finance
Party (or any trustee or agent on its behalf) may, without affecting the
liability of the Guarantor under this Clause, and if it believes that
such action is advisable due to the likelihood of the events set out in
paragraph (f) or (g) of Clause 21 (Default) occurring in respect of an
Obligor:
(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
(b) apply and enforce them in such manner and order as it sees fit
(whether against those amounts or otherwise); and
(c) hold in an interest-bearing suspense account any moneys received
from the Guarantor or on account of the Guarantor's liability
under this Clause.
16.7 Non-competition
Unless:
(a) all amounts which may be or become payable by the Obligors under
the Finance Documents have been irrevocably paid in full; or
(b) the Facility Agent otherwise directs,
the Guarantor will not, after a claim has been made or by virtue of any
payment or performance by it under this Clause:
(i) be subrogated to any rights, security or moneys held, received or
receivable by any Finance Party (or any trustee or agent on its
behalf);
(ii) be entitled to any right of contribution or indemnity in respect
of any payment made or moneys received on account of the
Guarantor's liability under this Clause;
34
(iii) claim, rank, prove or vote as a creditor of the Company or its
estate in competition with any Finance Party (or any trustee or
agent on its behalf); or
(iv) receive, claim or have the benefit of any payment, distribution or
security from or on account of the Company, or exercise any right
of set-off as against the Company.
The Guarantor must hold in trust for and immediately pay or transfer to
the Facility Agent for the Finance Parties any payment or distribution or
benefit of security received by it contrary to this Clause or in
accordance with any directions given by the Facility Agent under this
Clause.
16.8 U.S. Guarantee Provisions
(a) In this Subclause fraudulent transfer law means any applicable United
States bankruptcy and State fraudulent transfer and conveyance statute
and any related case law; and terms used in this Subclause are to be
construed in accordance with the fraudulent transfer laws.
(b) The Guarantor acknowledges that:
(i) it will receive valuable direct or indirect benefits as a result
of the transactions financed by the Finance Documents;
(ii) those benefits will constitute reasonably equivalent value and
fair consideration for the purpose of any fraudulent transfer law;
and
(iii) each Finance Party has acted in good faith in connection with the
guarantee given by the Guarantor and the transactions contemplated
by the Finance Documents.
(c) Each Finance Party agrees that the Guarantor's liability under this
Clause is limited so that no obligation of, or transfer by, the Guarantor
under this Clause is subject to avoidance and turnover under any
fraudulent transfer law.
(d) The Guarantor represents and warrants to each Finance Party that:
(i) the aggregate amount of its debts (including its obligations under
the Finance Documents) is less than the aggregate value (being the
lesser of fair valuation and present fair saleable value) of its
assets;
(ii) its capital is not unreasonably small to carry on its business as
it is being conducted;
(iii) it has not incurred and does not intend to incur debts beyond its
ability to pay as they mature; and
(iv) it has not made a transfer or incurred any obligation under any
Finance Document with the intent to hinder, delay or defraud any
of its present or future creditors.
(e) Each representation and warranty in this Subclause:
(i) is made by the Guarantor on the date of this Agreement;
(ii) is deemed to be repeated by the Guarantor on the date of each
Request and the first day of each Term; and
(iii) is, when repeated, applied to the circumstances existing at the
time of repetition.
35
16.9 Additional security
This guarantee is in addition to and is not in any way prejudiced by any
other security now or subsequently held by any Finance Party.
17. REPRESENTATIONS
17.1 Representations
The representations set out in this Clause are made by each Obligor or
(if it so states) either one of them to each Finance Party.
17.2 Jurisdiction/governing law
Its:
(a) irrevocable submission under this Agreement to the jurisdiction of
the courts of England and New York;
(b) agreement that this Agreement is governed by English law; and
(c) agreement not to claim any immunity to which it or its assets may
be entitled,
are legal, valid and binding under the laws of its jurisdiction of
incorporation.
17.3 Corporate Existence
Each of the Guarantor and its Material Subsidiaries:
(a) is a corporation duly organised and validly existing under the
laws of the jurisdiction of its incorporation (or in the case of a
Material Subsidiary that is not a corporation, is a partnership or
other entity duly organised and validly existing under the laws of
its jurisdiction of organisation);
(b) has all requisite legal power, and has all material governmental
licences, authorisations, consents and approvals, necessary to own
its assets and carry on its business as now being or as proposed
to be conducted; and
(c) is qualified to do business in all jurisdictions in which the
nature of the business conducted by it makes such qualification
necessary and where failure so to qualify would have a Material
Adverse Effect. The Company is a Wholly Owned Subsidiary of the
Guarantor.
17.4 Financial Condition
(a) The audited consolidated balance sheet of the Guarantor and its
Consolidated Subsidiaries as at 31st December, 2003 and the related
consolidated statements of earnings, cash flow and common shareholders'
equity of the Guarantor and its Consolidated Subsidiaries for the fiscal
year ended on said date, with the opinion thereon of Deloitte & Touche
LLP, and the unaudited consolidated balance sheet of the Guarantor and
its Consolidated Subsidiaries as at 30th June, 2004 and the related
consolidated statements of earnings and cash flow of the Guarantor and
its Consolidated Subsidiaries for the three-month period ended on said
date, in each case heretofore furnished to each of the Lenders, are
complete and correct and fairly present the consolidated financial
condition of the Guarantor and its Consolidated
36
Subsidiaries as at said dates and the consolidated results of their
operations for the fiscal year, and three-month period ended on said
dates (subject, in the case of such financial statements as at 30th
June, 2004, to normal year-end audit adjustments), all in accordance
with generally accepted accounting principles and practices applied
on a consistent basis. Neither the Guarantor nor any of its Material
Subsidiaries had, on said dates, any material contingent liabilities,
liabilities for taxes, unusual forward or long-term commitments or
unrealised or anticipated losses from any unfavourable commitments,
except as referred to or reflected or provided for in said balance
sheets as at said dates. Since 31st December, 2003, there has been
no event or condition that could result in a Material Adverse Effect.
(b) The Guarantor has prepared and delivered to the Facility Agent selected,
unaudited financial data with respect to the financial condition and
results of operation of the Company for the half-year ended 30th June,
2004. Such financial data was prepared in accordance with the Guarantor's
internal management reporting and consolidation processes but does not
constitute a complete financial statement of the Company.
17.5 Litigation
As at the date of this Agreement, the actions, suits, legal or arbitral
proceedings, or proceedings by or before any Governmental Authority, now
pending or (to the knowledge of the Guarantor) threatened against the
Guarantor and/or any of its Material Subsidiaries will not, in the
opinion of the General Counsel of the Guarantor, result in imposition of
liability or assessment against (including seizure of) property that
would result in a Material Adverse Effect.
17.6 No Breach
None of the execution and delivery of this Agreement, the consummation of
the transactions herein contemplated and compliance with the terms and
provisions hereof will conflict with or result in a breach of, or require
any consent under, the charter or by-laws of the Guarantor or the
Company, or any applicable law or regulation, or any order, writ,
injunction or decree of any Governmental Authority, or any agreement or
instrument to which the Guarantor and/or any of its Material Subsidiaries
is a party or by which any of them is bound or to which any of them is
subject, or constitute a default under any such agreement or instrument.
17.7 Corporate Action of the Company
The Guarantor and the Company have all necessary corporate power and
authority to execute, deliver and perform its obligations under this
Agreement; the execution, delivery and performance by the Guarantor and
the Company of this Agreement have been duly authorised by all necessary
corporate action on its part; and this Agreement has been duly and
validly executed and delivered by the Guarantor and the Company and
constitutes the legal, valid and binding obligation of the Guarantor and
the Company, enforceable in accordance with its terms, except as
enforcement may be limited by equitable principles or by bankruptcy,
insolvency, reorganisation, moratorium or similar laws relating to or
limiting creditors' rights generally.
17.8 Approvals
No authorisations, approvals or consents of, and no filings or
registrations with, any Governmental Authority are necessary for the
execution, delivery or performance by the Guarantor or the Company of
this Agreement or for the validity or enforceability thereof.
37
17.9 ERISA
The Guarantor and the ERISA Affiliates have fulfilled their respective
obligations under the minimum funding standards of ERISA and the Code
with respect to each Plan and are in compliance in all material respects
with the presently applicable provisions of ERISA and the Code, and have
not incurred any liability to the PBGC or any Plan or Multiemployer Plan
(other than to make contributions in the ordinary course of business).
17.10 Taxes
United States Federal income tax returns of the Guarantor have been
examined and closed through the fiscal year of the Guarantor and its
Subsidiaries ended 31st December, 1996. The Guarantor and its
Subsidiaries have filed all United States Federal and French income tax
returns and all other material tax returns which are required to be filed
by them and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by the Guarantor or any of its Subsidiaries
except for those being contested in good faith and for which adequate
reserves have been established in accordance with GAAP. The charges,
accruals and reserves on the books of the Guarantor and its Material
Subsidiaries in respect of taxes and other governmental charges not yet
due and payable are, in the opinion of the Guarantor, adequate. If the
Guarantor is a member of an affiliated group of corporations filing
consolidated returns for United States Federal income tax purposes, it is
the "common Guarantor" of such group.
17.11 Investment Company Act
Neither the Guarantor nor any of its Subsidiaries is an "investment
company", or a company "controlled" by an "investment company", within
the meaning of the Investment Company Act of 1940, as amended.
17.12 Public Utility Holding Company Act
Neither the Guarantor nor any of its Subsidiaries is a "holding company",
or an "affiliate" of a "holding company" or a "subsidiary company" of a
"holding company", within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
17.13 Credit Agreements
Schedule 8 (Existing Facilities) is a complete and correct list, as of
the date of this Agreement, of each credit agreement, loan agreement,
indenture, purchase agreement, guarantee or other arrangement providing
for or otherwise relating to any Indebtedness or any extension of credit
(or commitment for any extension of credit) to, or guarantee by, the
Guarantor or any of its Material Subsidiaries, in each case to the extent
the aggregate principal or face amount of any such credit agreement, loan
agreement, indenture, purchase agreement, guarantee or other arrangement
equals or exceeds (or may equal or exceed) US$150,000,000 and the
aggregate principal or face amount outstanding or which may become
outstanding under each such arrangement is correctly described in
Schedule 8 (Existing Facilities).
17.14 Hazardous Materials and Environmental Matters
(a) Licences and Permits, Etc: The Guarantor and each of its Material
Subsidiaries have obtained all permits, licenses and other authorisations
required under all Environmental Laws, except to the extent failure to
have any such permit, licence or authorisation could not in the aggregate
reduce by more than 25 per cent. the annual tonnage capacity of the paper
38
processing operations of the Guarantor and its Consolidated Subsidiaries.
The Guarantor and each of its Material Subsidiaries are in compliance
with the terms and conditions of all such permits, licenses and
authorisations, and are also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable
Environmental Law or in any regulation, code, plan, order, decree,
judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to
comply could not in the aggregate reduce by more than 25 per cent. the
annual tonnage capacity of the paper processing operations of the
Guarantor and its Consolidated Subsidiaries.
(b) Compliance Review: In the ordinary course of its business, the Guarantor
conducts an ongoing review of the effect of Environmental Laws on the
business, operations and properties of the Guarantor and its
Subsidiaries, in the course of which it identifies and evaluates
associated liabilities and costs (including any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to
achieve or maintain compliance with environmental protection standards
imposed by law or as a condition of any licence, permit or contract, any
related constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of or change
in the nature of operations conducted thereat, any costs or liabilities
in connection with off-site disposal of wastes or hazardous substances,
and any actual or potential liabilities to third parties, including
employees, and any related costs and expenses). On the basis of this
review, the Guarantor has reasonably concluded that such associated
liabilities and costs, including the costs of compliance with
Environmental Laws, are unlikely to have a Material Adverse Effect.
17.15 Full Disclosure
(a) The Guarantor has heretofore furnished to each of the Lenders a true copy
of (i) the Guarantor's annual report to shareholders for 2003 setting
forth consolidated audited financial statements for the year ended 31st
December, 2003, (ii) the Guarantor's quarterly reports on Form 10-Q for
the quarter-years ended 31st March and 30th June, 2004 and (iii) the
Guarantor's report on Form 10-K for the year ended 31st December, 2003,
in each case as filed with the Securities and Exchange Commission. Except
as disclosed in writing to the Lenders, the Information Package and the
annual, quarterly and other periodic reports most recently delivered to
the Lenders pursuant to this Clause or Clause 17.4 (Financial Condition)
do not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading, it
being understood and agreed that for purposes of this Clause, such
factual information and data shall not include projections and pro forma
financial information.
(b) The projections and pro forma financial information contained in the
information and data referred to in paragraph (a) above were based on
good faith estimates and assumptions believed by such Persons to be
reasonable at the time made, it being recognised by the Lenders that such
projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such
projections may differ from the projected results.
17.16 Federal Margin Regulations
(a) The Company is not principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate,
incidental or ultimate, of buying or carrying Margin Stock.
39
(b) No part of the proceeds of any Loan shall be used for "purchasing" or
"carrying" any "margin stock" within the respective meanings of each of
the quoted terms under Regulation U as now and from time to time
hereafter in effect, or for any other purpose, in any case in a manner
which violates the provisions of Regulations U and X. If the Company is
requested by any Lender or the Facility Agent, it shall furnish to the
Facility Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of Form FR U-1 referred to in said
Regulation U.
17.17 Solvency
Upon each date on which this representation is either made or deemed to
be repeated, after giving effect to the Transactions completed prior
thereto or on that date, each of the Guarantor and the Company on a
stand-alone basis is Solvent as at that date.
17.18 Adverse change etc
Nothing has occurred since 30th June, 2004 (and neither the Lenders nor
the Facility Agent shall have become aware of any facts or conditions not
previously known) which the Majority Lenders or the Facility Agent could
reasonably expect to have a material adverse change on the consolidated
financial condition, operations, business or prospects taken as a whole
of the Guarantor and its Consolidated Subsidiaries.
17.19 Indebtedness
Upon each date on which this representation is either made or deemed to
be repeated after giving effect to the Transactions completed prior
thereto or on that date, there is no other Indebtedness of the Company
other than the Indebtedness set out in Schedule 10 (Indebtedness of the
Company) as at that date.
17.20 United States laws
(a) In this Subclause:
Anti-Terrorism Law means each of:
(i) Executive Order No. 13224 of September 23, 2001 - Blocking
Property and Prohibiting Transactions With Persons Who Commit,
Threaten To Commit, or Support Terrorism (the Executive Order);
(ii) the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Public Law 107-56 (commonly known as the USA Patriot Act);
(iii) the Money Laundering Control Act of 1986, Public Law 99-570; and
(iv) any similar law enacted in the United States of America subsequent
to the date of this Agreement.
public utility has the meaning given to it in the United States Federal
Power Act of 1920.
Restricted Party means any person listed:
(i) in the Annex to the Executive Order;
40
(ii) on the "Specially Designated Nationals and Blocked Persons" list
maintained by the Office of Foreign Assets Control of the United
States Department of the Treasury; or
(iii) in any successor list to either of the foregoing.
(b) The Guarantor is not:
(i) a public utility or subject to regulation under the United States
Federal Power Act of 1920; or
(ii) subject to regulation under any United States Federal or State law
or regulation that limits its ability to incur or guarantee
indebtedness.
(c) To its knowledge, neither the Guarantor nor any of its Affiliates:
(i) is, or is controlled by, a Restricted Party; or
(ii) is in breach of or is the subject of any action or investigation
under any Anti-Terrorism Law.
(d) It and each of its Affiliates have taken reasonable measures to ensure
compliance with the Anti-Terrorism Laws.
17.21 Times for making representations
(a) The representations set out in this Clause are made by each Obligor on
the date of this Agreement.
(b) Unless a representation is expressed to be given at a specific date, each
representation is deemed to be repeated by each Obligor on the date of
each Request and the first day of each Term.
(c) When a representation is repeated, it is applied to the circumstances
existing at the time of repetition.
18. INFORMATION COVENANTS
18.1 Financial Statements
The Guarantor shall deliver to the Facility Agent on behalf of the
Lenders (and upon receipt thereof the Facility Agent shall promptly
deliver to the Lenders):
(a) as soon as available and in any event within 55 days after the end
of each of the first three quarters of each financial year of the
Guarantor, consolidated statements of earnings and cash flow of
the Guarantor and its Consolidated Subsidiaries for such period
and for the period from the beginning of the respective financial
year to the end of such period, and the related consolidated
balance sheet as at the end of such period, setting forth in each
case in comparative form the corresponding consolidated figures
for the corresponding period in the preceding financial year,
accompanied by a Compliance Certificate signed by a senior
financial officer of the Guarantor;
(b) as soon as available and in any event within 100 days after the
end of each financial year of the Guarantor, consolidated
statements of earnings, cash flow and common shareholders' equity
of the Guarantor and its Consolidated Subsidiaries for such year
41
and the related consolidated balance sheet as at the end of such
year, setting forth in each case in comparative form the
corresponding consolidated figures for the preceding financial
year, and accompanied by an unqualified opinion thereon of
Deloitte & Touche LLP or any other independent certified public
accountants of recognized national standing, which opinion shall
state that said consolidated financial statements fairly present
the consolidated financial condition and results of operations of
the Guarantor and its Consolidated Subsidiaries as at the end of,
and for, such financial year;
(c) promptly upon their becoming available, copies of all regular
periodic reports which the Guarantor shall have filed with the
Securities and Exchange Commission (or any Governmental Authority
substituted therefor) or any national securities exchange;
18.2 Form of financial statements
(a) Except as otherwise expressly provided in this Agreement, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered
to the Lenders hereunder shall (unless otherwise disclosed to the Lenders
at the time of delivery thereof in the manner described in paragraph (c)
below) be prepared in accordance with GAAP, applied on a basis consistent
with that used in the preparation of the latest financial statements
supplied under this Agreement (which, until the first financial
statements are supplied under Clause 18.1 (Financial Statements) shall
mean the Original Financial Statements).
(b) All calculations made for the purpose of determining compliance with this
Agreement shall (except as otherwise expressly provided herein) be made
by application of GAAP applied on a basis consistent with that used in
the preparation of the latest annual or quarterly financial statements
supplied under Clause 18.1 (Financial Statements) unless:
(i) the Guarantor shall have objected to determining such compliance
on such basis at the time of delivery of such financial
statements; or
(ii) the Majority Lenders shall so object in writing within 30 days of
delivery of such financial statements,
in either of which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial
statements as to which such objection shall not have been made (which, if
such objection is made in respect of the first financial statements
delivered under Clause 18.1 (Financial Statements), shall mean the
Original Financial Statements).
(c) The Guarantor shall deliver to the Facility Agent at the same time as the
delivery of any annual or quarterly financial statement under Clause 18.1
(Financial Statements) a description in reasonable detail of any material
variation between the application of accounting principles employed in
the preparation of such financial statement and the application of
accounting principles employed in the preparation of the immediately
preceding annual or quarterly financial statements as to which no
objection has been made in accordance with the last sentence of paragraph
(b) above and reasonable estimates of the difference between such
financial statements arising as a consequence thereof.
18.3 Information - miscellaneous
The Guarantor shall deliver to the Facility Agent on behalf of the
Lenders (and upon receipt thereof the Facility Agent shall promptly
deliver to the Lenders):
42
(a) promptly upon the mailing thereof to the shareholders of the
Guarantor generally, copies of all financial statements, reports
and proxy statements so mailed;
(b) promptly after the Guarantor or the Company knows or has reason to
know that any Potential Event of Default or Event of Default has
occurred, a notice of such Potential Event of Default or Event of
Default describing the same in reasonable detail and, together
with such notice or as soon thereafter as possible, a description
of the action that the Guarantor or the Company has taken and
proposes to take with respect thereto;
(c) as soon as available and in any event within 100 days after the
end of each financial year of the Company, statement of earnings,
cash flow and common shareholders' equity (if any) of the Company
for such financial year and the related balance sheet as at the
end of such year, setting forth in each case in comparative form
the corresponding figures for the preceding financial year,
accompanied by a certificate of a senior financial officer of the
Guarantor, which certificate shall state that said financial
statements fairly present the financial condition and results of
operations of the Company in accordance with generally accepted
accounting principles, consistently applied, as at the end of, and
for, such financial year; and
(d) from time to time such other information regarding the business,
affairs or financial condition of the Guarantor or any of its
Material Subsidiaries (including any Plan or Multiemployer Plan
and any reports or other information required to be filed under
ERISA) as the Facility Agent may reasonably request (on its own
behalf or on behalf of any Lender).
The Guarantor will furnish to the Facility Agent, at the time it
furnishes each set of financial statements pursuant to Clause 18.1
(Financial statements), a Compliance Certificate.
18.4 Litigation
The Guarantor will promptly give to the Facility Agent (and upon receipt
thereof the Facility Agent shall promptly give to the Lenders) notice of
all legal or arbitral proceedings, and of all proceedings by or before
any governmental or regulatory authority or agency, and any material
development in respect of such legal or other proceedings, affecting the
Guarantor or any of its Material Subsidiaries, except any proceeding
which, if adversely determined, would not have a Material Adverse Effect.
18.5 Know your customer requirements
(a) Each Obligor must promptly on the request of any Finance Party (such
request to be made through the Facility Agent) supply to the Facility
Agent on behalf of that Finance Party any documentation or other evidence
which is reasonably requested by that Finance Party through the Facility
Agent (whether for itself, on behalf of any Finance Party or any
prospective new Lender) to enable a Finance Party or prospective new
Lender to carry out and be satisfied with the results of all know your
customer requirements, provided that no Obligors will be obliged to
provide any information which that Obligor determines (in its reasonable
discretion) may not legally be provided.
(b) Each Lender must promptly on the request of the Facility Agent supply to
the Facility Agent any documentation or other evidence which is
reasonably required by the Facility Agent to carry out and be satisfied
with the results of all applicable know your customer requirements.
43
19. FINANCIAL COVENANTS
19.1 Interpretation
(a) Except as provided to the contrary in this Agreement, an accounting term
used in this Clause is to be construed in accordance with the principles
applied in connection with the Original Financial Statements.
(b) Any amount in a currency other than euros is to be taken into account at
its euro equivalent calculated on the basis of:
(i) the Facility Agent's spot rate of exchange for the purchase of the
relevant currency in the London foreign exchange market with euros
at or about 11.00 a.m. on the day the relevant amount falls to be
calculated; or
(ii) if the amount is to be calculated on the last day of a financial
period of the Company, the relevant rates of exchange used by the
Company in, or in connection with, its financial statements for
that period.
(c) No item must be credited or deducted more than once in any calculation
under this Clause.
19.2 Total Debt to Total Capital Ratio
The Guarantor will not at any time permit the ratio of Total Debt to
Total Capital to exceed 0.60 to 1.
19.3 Minimum Consolidated Net Worth
The Guarantor will not at any time permit Consolidated Net Worth to be
less than US$9,000,000,000.
20. GENERAL COVENANTS
20.1 General
The Guarantor and the Company agree that, so long as any of the Total
Commitments are in effect and until payment in full of all Loans
hereunder, all interest thereon and all other amounts payable by any
Obligor hereunder:
20.2 Corporate Existence, Etc.
The Guarantor will, and will cause each of its Material Subsidiaries to:
(a) preserve and maintain its legal existence and all of its material
rights, privileges and franchises (provided that nothing in this
Clause shall prohibit any transaction expressly permitted under
Clause 20.4 (Prohibition of Fundamental Changes));
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of any Governmental Authority if failure to
comply with such requirements (i) will in the opinion of the
General Counsel of the Guarantor result in imposition of liability
or assessment against (including seizure of) property in an
aggregate amount (as to all such failures to comply) exceeding 10
per cent. of Consolidated Net Worth, (ii) could in the aggregate
(as to all such failures to comply) reduce by more than 25 per
cent. the annual tonnage capacity of the paper processing
operations of the Guarantor and
44
its Consolidated Subsidiaries or (iii) in respect of the Obligors
only, would result in an Obligor being unable to perform its
obligations under, or affect the validity or enforceability of,
any Finance Document;
(c) pay and discharge all taxes, assessments and governmental charges
or levies imposed on it or on its income or profits or on any of
its property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge or levy the payment of
which is being contested in good faith and by proper proceedings
and against which adequate reserves are being maintained;
(d) maintain all of its properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted;
provided, however, that the Guarantor or any Subsidiary of the
Guarantor may discontinue the maintenance of a property if such
discontinuance is, in the opinion of the Guarantor, desirable in
the conduct of its business and is not likely to have a Material
Adverse Effect; and
(e) upon reasonable advance notice, permit representatives of any
Lender or the Facility Agent, during normal business hours, to
examine, copy and make extracts from its books and records, to
inspect its properties, and to discuss its business and affairs
with its officers, all to the extent reasonably requested by such
Lender or the Facility Agent.
20.3 Insurance
The Guarantor will maintain, and will cause each of its Subsidiaries to
maintain, insurance underwritten by financially sound and reputable
insurers, or self insurance (in accordance with normal industry practice)
in such amounts and against such risks as ordinarily is carried or
maintained by owners of like businesses and properties in similar
circumstances.
20.4 Prohibition of Fundamental Changes
The Guarantor will not, nor will it permit any of its Material
Subsidiaries to, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution). The Guarantor will not, and will not permit
any of its Material Subsidiaries to, convey, sell, lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all
or a substantial part of its business or assets, whether now owned or
hereafter acquired (excluding any inventory or other assets sold or
disposed of in the ordinary course of business). Notwithstanding the
foregoing provisions of this Clause:
(a) any Subsidiary of the Guarantor may be merged or consolidated with
or into: (i) the Guarantor if the Guarantor shall be the
continuing or surviving corporation or (ii) any other Subsidiary;
provided that if any such transaction shall be between a
Subsidiary and a Wholly Owned Subsidiary, the Wholly Owned
Subsidiary shall be the continuing or surviving corporation;
(b) any Subsidiary of the Guarantor may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Guarantor or a Wholly Owned
Subsidiary of the Guarantor;
(c) the Guarantor or any Subsidiary of the Guarantor may merge or
consolidate with any other Person if (i) in the case of a merger
or consolidation of the Guarantor, any successor entity (if other
than Guarantor) assumes, in a manner satisfactory to the Facility
Agent, all of the Guarantor's obligations under this Agreement
(and, in that connection, delivers to the Facility Agent such
evidence of corporate authorisation
45
and opinions of counsel as are consistent with those delivered by
the Guarantor pursuant to Clause 4 (Conditions Precedent) and are
reasonably requested by the Facility Agent) and, in the case of a
merger or consolidation of any Subsidiary, the surviving
corporation is a Wholly Owned Subsidiary of the Guarantor and (ii)
after giving effect thereto no Potential Event of Default or Event
of Default would exist hereunder; and
(d) in addition to the dispositions permitted pursuant to paragraphs
(a) to (c) of this Clause, the Guarantor or any Subsidiary of the
Guarantor may sell or otherwise dispose of assets (including by
merger or consolidation) if, after giving effect to any such sale
or disposition, the book value of such assets, together with the
aggregate book value of the assets so sold or disposed of since
30th June, 2004, does not exceed 20 per cent. of Total Assets at
30th June, 2004.
20.5 Limitation on Liens
The Guarantor will not, nor will it permit any of its Material
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, except:
(a) Liens imposed by any Governmental Authority for taxes, assessments
or charges not yet due or which are being contested in good faith
and by appropriate proceedings if, unless the amount thereof is
not material with respect to it or its financial condition,
adequate reserves with respect thereto are maintained on the books
of the Guarantor or any of its Material Subsidiaries, as the case
may be, in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days or which
are being contested in good faith and by appropriate proceedings;
(c) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements,
licences, restrictions on the use of property or minor
imperfections in title thereto which, in the aggregate, are not
material in amount, and which do not in any case materially
detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of the
Guarantor or any of its Material Subsidiaries;
(f) Liens on assets of Persons that become Subsidiaries of the
Guarantor after the date of this Agreement, provided that such
Liens are in existence at the time the respective Persons become
Subsidiaries of the Guarantor and were not created in anticipation
thereof;
(g) Liens upon real and/or tangible personal property acquired after
the date hereof (by purchase, construction or otherwise) by the
Guarantor or any of its Material Subsidiaries, each of which Liens
either (i) existed on such property before the time
46
of its acquisition and was not created in anticipation thereof, or
(ii) was created solely for the purpose of securing Indebtedness
representing, or incurred to finance, refinance or refund, the
cost (including the cost of construction) of the respective
property; provided in the case of paragraph (ii) that such Lien
attaches to such asset within 270 days after the acquisition or
completion of construction and commencement of full operations
thereof; provided further that no such Lien shall extend to or
cover any property of the Guarantor or such Material Subsidiary
other than the respective property so acquired and improvements
thereon; and provided further, that the principal amount of
Indebtedness secured by any such Lien shall at no time exceed
95 per cent. of the fair market value (as determined in good
faith by a senior financial officer of the Guarantor) of the
respective property at the time it was acquired (by purchase,
construction or otherwise);
(h) Liens on assets consisting of a capital project and rights related
thereto (Project Assets) securing Indebtedness incurred to finance
the acquisition, construction or development of such Project
Assets; provided that (i) such Indebtedness is non-recourse to any
other assets; (ii) the aggregate principal amount of Indebtedness
secured by Liens permitted by this paragraph (h) may at no time
exceed US$425,000,000 and (iii) such Liens attach to such Project
Assets within two years after the initial acquisition or
completion of construction or development of such Project Assets;
(i) Liens upon real and/or personal property of the Guarantor or any
Material Subsidiary of the Guarantor in favour of the United
States of America or any State thereof, any department, agency or
instrumentality or political subdivision of the United States or
any State thereof, or any bonding authority (including any
authority established for the issuance of industrial revenue bonds
or similar instruments) to secure partial, progress, or advance or
other payments pursuant to any contract or statute or to secure
Indebtedness (including, but not limited to, industrial revenue
bonds and similar instruments) incurred for the purpose of
refinancing all or any part of the purchase price or cost of
constructing or improving such property;
(j) Liens on accounts receivable and related contract rights, letters
of credit, accounts and similar assets arising in connection with
any securitisation transaction, and Liens on promissory notes,
regulatory and any other related assets in connection with any
financing transaction, in each case whether denominated as sales
or borrowings;
(k) Liens granted to provide security in substitution for collateral
presently securing existing Indebtedness, so long as such
substitute collateral does not cover any property other than the
property securing such existing Indebtedness;
(l) Liens securing judgments up to US$200,000,000 for the payment of
money in an amount not resulting (whether immediately or with the
passage of time) in an Event of Default under Clause 21 (Default);
(m) Liens in existence on the date hereof:
(i) which in aggregate do not exceed 7.5 per cent. of Tangible
Assets; or
(ii) are listed in Schedule 6 (Existing Liens);
(n) additional Liens upon property, assets or revenues created after
the date hereof, provided that the aggregate outstanding
Indebtedness secured thereby and incurred on
47
and after the date hereof shall not at any time exceed 10 per
cent. of Tangible Assets; and
(o) any extension, renewal or replacement of the foregoing, provided,
however, that the Liens permitted hereunder shall not be spread to
cover any additional Indebtedness or property (other than a
substitution of like property);
and provided further that the sale, mortgage or other transfer of timber
in connection with an arrangement under which the Guarantor or any of its
Subsidiaries is obligated to cut such timber (or any portion thereof) in
order to provide the transferee with a specified amount of money (however
determined) shall not be deemed to create Indebtedness secured by a Lien
hereunder.
20.6 Pari passu ranking
Each Obligor must ensure that its payment obligations under the Finance
Documents rank at least pari passu with all its other present and future
unsecured payment obligations, except for obligations mandatorily
preferred by law applying to companies generally.
20.7 Year end
To enable the ready and consistent determination of compliance with the
financial covenants set out in Clause 19 (Financial Covenants), the
Guarantor will not change its financial year end from 31st December of
each year, or the last days of the first three quarter years in each of
its financial years from 31st March, 30th June and 30th September of each
year, respectively, without giving prior notice of such change to each
Lender and the Facility Agent.
21. DEFAULT
If one or more of the following Events of Default shall occur and be
continuing:
(a) non-payment: the Company shall default in the payment when due of
any principal of any Loan; or the Company shall default in the
payment when due of any interest on any Loan or any other amount
payable by it hereunder and such default shall continue unremedied
for five or more Business Days; or
(b) indebtedness: any event specified in any note, agreement,
indenture or other document evidencing or relating to any
Indebtedness (other than (i) Indebtedness hereunder, (ii) Project
Indebtedness, or (iii) Indebtedness owed by any Material
Subsidiary to the Guarantor) of the Guarantor or any of its
Material Subsidiaries aggregating US$200,000,000 or more shall
occur if the effect of such event is to cause, or (with the giving
of any notice or the lapse of time or both) to permit the holder
or holders of such Indebtedness (or a trustee or agent on behalf
of such holder or holders) to cause, such Indebtedness to become
due, or to be prepaid in full (whether by redemption, purchase or
otherwise), prior to its stated maturity; or
(c) misrepresentation: any representation, warranty or certification
made or deemed made herein (or in any modification or supplement
hereto or thereto) by any Obligor, or any certificate furnished to
any Lender or the Facility Agent pursuant to the provisions
hereof, shall prove to have been false or misleading in any
material respect as of the time made or furnished (except to the
extent that any such representation, warranty or certification
contains a materiality qualifier in which case such
representation, warranty or certification shall be true and
correct in all respects); or
48
(d) breach of other obligations: the Guarantor shall default in the
performance of any of its obligations under Clause 16 (Guarantee),
Clause 19.2 (Total Debt to Total Capital Ratio), Clause 19.3
(Minimum Consolidated Net Worth), paragraph (a) of Clause 20.2
(Corporate Existence, etc.) or any of Clauses 20.4 (Prohibition of
Fundamental Changes) to 20.7 (Year end) or any Obligor shall
default in the performance of any of its other obligations in this
Agreement and such default shall continue unremedied for a period
of thirty days after notice thereof to such Obligor (through
notification to the Guarantor) by the Facility Agent or any Lender
(through the Facility Agent); or
(e) inability to pay debts: the Guarantor or any of its Material
Subsidiaries shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(f) insolvency: the Guarantor or any of its Material Subsidiaries
shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the Bankruptcy
Code (as now or hereafter in effect), (iv) file a petition seeking
to take advantage of any other law relating to bankruptcy,
insolvency, reorganisation, winding-up, or composition or
readjustment of debts, (v) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code, or
(vi) take any corporate action for the purpose of effecting any of
the foregoing; or, in respect of the Company (i) it is, or is
deemed for the purposes of any law to be, unable to pay its debts
as they fall due or insolvent (including without limitation en
etat de cessation des paiements), (ii) it admits its inability to
pay its debts as they fall due, (iii) it suspends making payments
on any of its debts or announces an intention to do so, (iv) by
reason of actual or anticipated financial difficulties, it applies
for, or is subject to, an amicable settlement or a reglement
amiable pursuant to Articles L.611-1 et seq. of the French
Commercial Code (Code de commerce) or begins negotiations with any
creditor for the rescheduling of any of its indebtedness, or (v) a
moratorium is declared in respect of any class of its
indebtedness.
(g) insolvency proceedings - third parties: a proceeding or case shall
be commenced, without the application or consent of the Guarantor
or any of its Material Subsidiaries, in any court of competent
jurisdiction, seeking (i) its liquidation, reorganisation,
dissolution or winding-up, or the composition or readjustment of
its debts, (ii) the appointment of a trustee, receiver, custodian,
liquidator, administrateur judiciaire ou provisoire, mandataire ad
hoc, conciliateur or mandataire liquidateur or similar officer or
the like of the Guarantor or such Material Subsidiary or of all or
any substantial part of its assets, or (iii) similar relief in
respect of the Guarantor or such Material Subsidiary under any law
relating to bankruptcy, insolvency, reorganisation, winding-up, or
composition or adjustment of debts, and such proceeding or case
shall continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of 90 or more days;
or an order for relief against the Guarantor or such Material
Subsidiary shall be entered in an involuntary case under the
Bankruptcy Code; or
(h) judgment: a final judgment or judgments for the payment of money
in excess of US$200,000,000 in the aggregate shall be rendered by
a court or courts against the Guarantor and/or any of its Material
Subsidiaries or US$20,000,000 against the Company and the same
shall not be discharged (or provision shall not be made for
49
such discharge), or a stay of execution thereof shall not be
procured, within 30 days from the date of entry thereof and the
Guarantor, the relevant Material Subsidiary or the Company shall
not, within said period of 30 days, or such longer period during
which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such
appeal; or
(i) ERISA event: an event or condition shall occur or exist with
respect to any Plan or Multiemployer Plan and, as a result of such
event or condition, together with all other such events or
conditions, the Guarantor or any ERISA Affiliate shall be
reasonably likely in the opinion of the General Counsel of the
Guarantor to incur a liability to a Plan, a Multiemployer Plan or
PBGC (or any combination of the foregoing) which is in excess of
10 per cent. of Consolidated Net Worth; or
(j) control of Guarantor: any person or group of persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act of
1934, as amended, it being agreed that an employee of the
Guarantor or any Consolidated Subsidiary for whom shares are held
under an employee stock ownership, employee retirement, employee
savings or similar plan and whose shares are voted in accordance
with the instructions of such employee shall not be a member of a
group of persons within the meaning of said Section 13 or 14
solely because such employee's shares are held by a trustee under
said plan) shall acquire, directly or indirectly, beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the SEC
under said Act, as amended) of 20 per cent. or more of the
outstanding shares of stock of the Guarantor having by the terms
thereof ordinary voting power to elect (whether immediately or
ultimately) a majority of the board of directors of the Guarantor
(irrespective of whether or not at the time stock of any other
class or classes of stock of the Guarantor shall have or might
have voting power by reason of the happening of any contingency);
or
(k) board of directors of Guarantor: during any period of 24
consecutive calendar months, a majority of the board of directors
of the Guarantor shall no longer be composed of individuals (i)
who were members of said board of directors on the first day of
such period or (ii) whose election or nomination to said board of
directors was approved by individuals referred to in paragraph (i)
above constituting at the time of such election or nomination at
least a majority of said board of directors;
(l) Guarantee: the guarantee given by the Guarantor under this
Agreement or any provision thereof shall cease to be in full force
or effect, or any Person acting by or on behalf of the Guarantor
shall deny or disaffirm in writing the Guarantor's obligations
under the guarantee given by the Guarantor under this Agreement;
(m) ownership of the Company: the Company is not or ceases to be a
Wholly Owned Subsidiary of the Guarantor;
THEREUPON: (1) in the case of an Event of Default other than one referred
to in paragraph (f) or (g) of this Clause with respect to any Obligor,
(A) the Facility Agent may and, upon request of the Majority Lenders,
shall, by notice to the Company, cancel the Total Commitments and they
shall thereupon terminate, and (B) the Facility Agent may and, upon
request of the Majority Lenders shall, by notice to the Company, declare
the principal amount then outstanding of, and the accrued interest on,
the Loans and all other amounts payable by the Obligors hereunder
(including any amounts payable under Clause 25.3 (Break Costs) to be
forthwith due and payable, whereupon such amounts shall be immediately
due and payable without presentment, demand, protest or other formalities
of any kind, all of which are hereby expressly waived by each Obligor;
and (2) in the case of the occurrence of an Event of Default referred to
in paragraph (f) or (g) of this Clause with respect to any Obligor, the
50
Commitments of each Lender shall automatically be cancelled and the
principal amount then outstanding of, and the accrued interest on, the
Loans and all other amounts payable by the Obligors hereunder (including
any amounts payable under Clause 25.3 (Break Costs)) shall automatically
become immediately due and payable without presentment, demand, protest
or other formalities of any kind, all of which are hereby expressly
waived by each Obligor.
22. THE ADMINISTRATIVE PARTIES
22.1 Appointment and duties of the Facility Agent
(a) Each Finance Party (other than the Facility Agent) irrevocably appoints
the Facility Agent to act as its agent under the Finance Documents.
(b) Each Finance Party irrevocably authorises the Facility Agent to:
(i) perform the duties and to exercise the rights, powers and
discretions that are specifically given to it under the Finance
Documents, together with any other incidental rights, powers and
discretions; and
(ii) execute each Finance Document expressed to be executed by the
Facility Agent.
(c) The Facility Agent has only those duties which are expressly specified in
the Finance Documents. Those duties are solely of a mechanical and
administrative nature.
22.2 Role of the Mandated Lead Arrangers
Except as specifically provided in the Finance Documents, the Mandated
Lead Arrangers have no obligations of any kind to any other Party in
connection with any Finance Document.
22.3 No fiduciary duties
Except as specifically provided in a Finance Document, nothing in the
Finance Documents makes an Administrative Party a trustee or fiduciary
for any other Party or any other person. No Administrative Party need
hold in trust any moneys paid to it for a Party or be liable to account
for interest on those moneys.
22.4 Individual position of an Administrative Party
(a) If it is also a Lender, each Administrative Party has the same rights and
powers under the Finance Documents as any other Lender and may exercise
those rights and powers as though it were not an Administrative Party.
(b) Each Administrative Party may:
(i) carry on any business with any Obligor or its related entities
(including acting as an agent or a trustee for any other
financing); and
(ii) retain any profits or remuneration it receives under the Finance
Documents or in relation to any other business it carries on with
any Obligor or its related entities.
51
22.5 Reliance
The Facility Agent may:
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of, the
proper person;
(b) rely on any statement made by any person regarding any matters
which may reasonably be assumed to be within his knowledge or
within his power to verify;
(c) engage, pay for and rely on professional advisers selected by it
(including those representing a Party other than the Facility
Agent); and
(d) act under the Finance Documents through its personnel and agents.
22.6 Majority Lenders' instructions
(a) The Facility Agent is fully protected if it acts on the instructions of
the Majority Lenders in the exercise of any right, power or discretion or
any matter not expressly provided for in the Finance Documents. Any such
instructions given by the Majority Lenders will be binding on all the
Lenders. In the absence of instructions, the Facility Agent may act as it
considers to be in the best interests of all the Lenders.
(b) The Facility Agent may assume that unless it has received notice to the
contrary, any right, power, authority or discretion vested in any Party
or the Majority Lenders has not been exercised.
(c) The Facility Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lender's consent) in any legal or
arbitration proceedings in connection with any Finance Document.
(d) The Facility Agent may require the receipt of security satisfactory to
it, whether by way of payment in advance or otherwise, against any
liability or loss which it may incur in complying with the instructions
of the Majority Lenders.
22.7 Responsibility
(a) No Administrative Party is responsible for the adequacy, accuracy or
completeness of any statement or information (whether written or oral)
made in or supplied in connection with any Finance Document.
(b) No Administrative Party is responsible for the legality, validity,
effectiveness, adequacy, completeness or enforceability of any Finance
Document or any other document.
(c) Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms that it:
(i) has made, and will continue to make, its own independent appraisal
of all risks arising under or in connection with the Finance
Documents (including the financial condition and affairs of each
Obligor and its related entities and the nature and extent of any
recourse against any Party or its assets); and
(ii) has not relied exclusively on any information provided to it by
any Administrative Party in connection with any Finance Document.
52
22.8 Exclusion of liability
(a) The Facility Agent is not liable or responsible to any other Finance
Party for any action taken or not taken by it in connection with any
Finance Document, unless directly caused by its gross negligence or
wilful misconduct.
(b) No Party (other than the Facility Agent) may take any proceedings against
any officer, employee or agent of the Facility Agent in respect of any
claim it might have against the Facility Agent or in respect of any act
or omission of any kind by that officer, employee or agent in connection
with any Finance Document. Any officer, employee or agent of the Facility
Agent may rely on this Subclause and enforce its terms under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇.
(c) The Facility Agent is not 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 Facility Agent if the Facility 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 Facility Agent for that purpose.
(d) (i) Nothing in this Agreement will oblige any Administrative Party to
satisfy any know your customer requirement in relation to the
identity of any person on behalf of any Finance Party.
(ii) Each Finance Party confirms to each Administrative Party that it
is solely responsible for any know your customer requirements it
is required to carry out and that it may not rely on any statement
in relation to those requirements made by any Administrative
Party.
22.9 Default
(a) The Facility Agent is not obliged to monitor or enquire whether a
Potential Event of Default or Event of Default has occurred. The Facility
Agent is not deemed to have knowledge of the occurrence of a Potential
Event of Default or Event of Default.
(b) If the Facility Agent:
(i) receives notice from a Party referring to this Agreement,
describing a Potential Event of Default or Event of Default and
stating that the event is a Potential Event of Default or Event of
Default, as the case may be; or
(ii) is aware of the non-payment of any principal, interest or fee
payable to a Finance Party (other than the Facility Agent or a
Mandated Lead Arranger) under this Agreement, it must promptly
notify the other Finance Parties.
22.10 Information
(a) The Facility Agent must promptly forward to the person concerned the
original or a copy of any document which is delivered to the Facility
Agent by a Party for that person.
(b) Except where a Finance Document specifically provides otherwise, the
Facility Agent is not obliged to review or check the adequacy, accuracy
or completeness of any document it forwards to another Party.
53
(c) Except as provided above, the Facility Agent has no duty:
(i) either initially or on a continuing basis to provide any Lender
with any credit or other information concerning the risks arising
under or in connection with the Finance Documents (including any
information relating to the financial condition or affairs of any
Obligor or its related entities or the nature or extent of
recourse against any Party or its assets) whether coming into its
possession before, on or after the date of this Agreement; or
(ii) unless specifically requested to do so by a Lender in accordance
with a Finance Document, to request any certificate or other
document from any Obligor.
(d) In acting as the Facility Agent, the agency division of the Facility
Agent is treated as a separate entity from its other divisions and
departments. Any information acquired by the Facility Agent which, in its
opinion, is acquired by it otherwise than in its capacity as the Facility
Agent may be treated as confidential by the Facility Agent and will not
be treated as information possessed by the Facility Agent in its capacity
as such.
(e) The Facility Agent is not obliged to disclose to any person any
confidential information supplied to it by or on behalf of a member of
the Group solely for the purpose of evaluating whether any waiver or
amendment is required in respect of any term of the Finance Documents.
(f) Each Obligor irrevocably authorises the Facility Agent to disclose to the
other Finance Parties any information which, in its opinion, is received
by it in its capacity as the Facility Agent.
22.11 Indemnities
(a) Without limiting the liability of any Obligor under the Finance
Documents, each Lender must indemnify the Facility Agent for that
Lender's Pro Rata Share of any loss or liability incurred by the Facility
Agent in acting as the Facility Agent, except to the extent that the loss
or liability is caused by the Facility Agent's gross negligence or wilful
misconduct.
(b) The Facility Agent may deduct from any amount received by it for a Lender
any amount due to the Facility Agent from that Lender under a Finance
Document but unpaid.
22.12 Compliance
Each Administrative Party may refrain from doing anything (including
disclosing any information) which might, in its opinion, constitute a
breach of any law or regulation or be otherwise actionable at the suit of
any person, and may do anything which, in its opinion, is necessary or
desirable to comply with any law or regulation.
22.13 Resignation of the Facility Agent
(a) The Facility Agent may resign and appoint any of its Affiliates as
successor Facility Agent by giving notice to the other Finance Parties
and the Company.
(b) Alternatively, the Facility Agent may resign by giving notice to the
Finance Parties and the Company, in which case the Majority Lenders may
appoint a successor Facility Agent.
(c) If no successor Facility Agent has been appointed under paragraph (b)
above within 30 days after notice of resignation was given, the Facility
Agent may appoint a successor Facility Agent.
54
(d) The person(s) appointing a successor Facility Agent must, if practicable,
consult with the Company prior to the appointment.
(e) The resignation of the Facility Agent and the appointment of any
successor Facility Agent will both become effective only when the
successor Facility Agent notifies all the Parties that it accepts its
appointment. On giving the notification, the successor Facility Agent
will succeed to the position of the Facility Agent and the term Facility
Agent will mean the successor Facility Agent.
(f) The retiring Facility Agent must, at its own cost, make available to the
successor Facility Agent such documents and records and provide such
assistance as the successor Facility Agent may reasonably request for the
purposes of performing its functions as the Facility Agent under the
Finance Documents.
(g) Upon its resignation becoming effective, this Clause will continue to
benefit the retiring Facility Agent in respect of any action taken or not
taken by it in connection with the Finance Documents while it was the
Facility Agent, and, subject to paragraph (f) above, it will have no
further obligations under any Finance Document.
(h) The Majority Lenders may, by notice to the Facility Agent, require it to
resign under paragraph (b) above.
22.14 Relationship with Lenders
(a) The Facility Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and as acting through its Facility
Office(s) until it has received not less than five Business Days' prior
notice from that Lender to the contrary.
(b) The Facility Agent may at any time, and must if requested to do so by the
Majority Lenders, convene a meeting of the Lenders.
(c) The Facility Agent must keep a register of all the Parties and supply any
other Party with a copy of the register on request. The register will
include each Lender's Facility Office(s) and contact details for the
purposes of this Agreement.
22.15 Facility Agent's management time
If the Facility Agent requires, any amount payable to the Facility Agent
by any Party under any indemnity or in respect of any costs or expenses
incurred by the Facility Agent under the Finance Documents after the date
of this Agreement may include the cost of using its management time or
other resources and will be calculated on the basis of such reasonable
daily or hourly rates as the Facility Agent may notify to the relevant
Party. This is in addition to any amount in respect of fees or expenses
paid or payable to the Facility Agent under any other term of the Finance
Documents.
22.16 Notice period
Where this Agreement specifies a minimum period of notice to be given to
the Facility Agent, the Facility Agent may, at its discretion, accept a
shorter notice period.
55
23. EVIDENCE AND CALCULATIONS
23.1 Accounts
Accounts maintained by a Finance Party in connection with this Agreement
are prima facie evidence of the matters to which they relate for the
purpose of any litigation or arbitration proceedings.
23.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or amount
under the Finance Documents will be, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
23.3 Calculations
Any interest or fee accruing under this Agreement accrues from day to day
and is calculated on the basis of the actual number of days elapsed and a
year of 360 or 365 days or otherwise, depending on what the Facility
Agent determines is market practice.
24. FEES
24.1 Facility Agent's fee
The Company must pay to the Facility Agent for its own account an agency
fee in the manner agreed in the Fee Letter between the Facility Agent and
the Company.
24.2 Arrangement fee
The Company must pay to the Bookrunners for their own account an
arrangement fee in the manner agreed in the Fee Letter between the
Bookrunners and the Company.
24.3 Participation fee
The Company must pay to the Bookrunners a participation fee in the manner
agreed in the Fee Letter between the Bookrunners and the Company.
25. INDEMNITIES AND BREAK COSTS
25.1 Currency indemnity
(a) The Company must, as an independent obligation, indemnify each Finance
Party against any loss or liability which that Finance Party incurs as a
consequence of:
(i) that Finance Party receiving an amount in respect of an Obligor's
liability under the Finance Documents; or
(ii) that liability being converted into a claim, proof, judgment or
order,
in a currency other than the currency in which the amount is expressed to
be payable under the relevant Finance Document.
(b) Unless otherwise required by law, each Obligor waives any right it may
have in any jurisdiction to pay any amount under the Finance Documents in
a currency other than that in which it is expressed to be payable.
56
25.2 Other indemnities
(a) The Company must indemnify each Finance Party against any loss or
liability which that Finance Party incurs as a consequence of:
(i) the occurrence of any Event of Default;
(ii) any failure by an Obligor to pay any amount due under a Finance
Document on its due date, including any resulting from any
distribution or redistribution of any amount among the Lenders
under this Agreement;
(iii) (other than by reason of negligence or default by that Finance
Party) a Loan not being made after a Request has been delivered
for that Loan; or
(iv) a Loan (or part of a Loan) not being prepaid in accordance with
this Agreement.
The Company's liability in each case includes any loss or expense on
account of funds borrowed, contracted for or utilised to fund any amount
payable under any Finance Document or any Loan, other than in respect of
sub-paragraph (a) (iii) above, where the Company's liability is limited
to the payment of Break Costs.
(b) The Company must indemnify the Facility Agent against any loss or
liability incurred by the Facility Agent as a result of:
(i) investigating any event which the Facility Agent reasonably
believes to be a Potential Event of Default or Event of Default,
unless such investigation shows that no Potential Event of Default
or Event of Default had occurred, in which case the Lenders must
indemnify on a pro rata basis the Facility Agent against any such
loss or liability incurred; or
(ii) acting or relying on any notice which the Facility Agent
reasonably believes to be genuine, correct and appropriately
authorised.
25.3 Break Costs
(a) The Company must pay to each Lender its Break Costs.
(b) Break Costs are the amount (if any) determined by the relevant Lender by
which:
(i) the interest which that Lender would have received for the period
from the date of receipt of any part of its share in a Loan or an
overdue amount to the last day of the applicable Term for that
Loan or overdue amount if the principal or overdue amount received
had been paid on the last day of that Term;
exceeds
(ii) the amount which that Lender would be able to obtain by
redeploying such amount for a period starting on the date of
receipt and ending on the last day of the applicable Term.
(c) Each Lender must supply to the Facility Agent for the Company a
certificate setting forth in reasonable detail (including the
calculations of such amount) the amount of any Break Costs claimed by it
under this Clause. No amount shall be payable by the Company under this
Clause until such certificate has been provided to the Company.
57
26. EXPENSES
26.1 Initial costs
The Company must pay to each Administrative Party the amount of all costs
and expenses (including legal fees, subject to the cap on legal fees as
set out in the mandate letter between the Guarantor and the Bookrunners
dated 17th July, 2004) reasonably incurred by it in connection with the
negotiation, preparation, printing, execution and syndication of the
Finance Documents.
26.2 Subsequent costs
The Company must pay to the Facility Agent the amount of all costs and
expenses (including legal fees) reasonably incurred by it in connection
with:
(a) the negotiation, preparation, printing and execution of any
Finance Document (other than a Transfer Certificate) executed
after the date of this Agreement; and
(b) any amendment, waiver or consent requested by or on behalf of an
Obligor or specifically allowed by this Agreement (other than any
amendment, waiver or consent requested by a Finance Party).
For the avoidance of doubt paragraph (a) of this Subclause does not apply
to any Finance Document required under Clause 4.1 (Conditions precedent
documents) or in respect of the first Request.
26.3 Enforcement costs
The Company must pay to each Finance Party the amount of all reasonable
costs and expenses (including reasonable legal fees) incurred by it in
connection with the successful enforcement of, or the preservation of any
rights under, any Finance Document.
27. AMENDMENTS AND WAIVERS
27.1 Procedure
(a) Except as provided in this Clause, any term of the Finance Documents may
be amended or waived with the agreement of the Company and the Majority
Lenders. The Facility Agent may effect, on behalf of any Finance Party,
an amendment or waiver allowed under this Clause.
(b) The Facility Agent must promptly notify the other Parties of any
amendment or waiver effected by it under paragraph (a) above. Any such
amendment or waiver is binding on all the Parties.
27.2 Exceptions
(a) An amendment or waiver which relates to:
(i) the definition of Majority Lenders in Clause 1.1 (Definitions);
(ii) an extension of the date of payment of any amount to a Lender
under the Finance Documents;
58
(iii) a reduction in the Margin or a reduction in the amount of any
payment of principal, interest, fee or other amount payable to a
Lender under the Finance Documents;
(iv) an increase in, or an extension of, a Commitment or the Total
Commitments;
(v) a release of an Obligor other than in accordance with the terms of
this Agreement;
(vi) a term of a Finance Document which expressly requires the consent
of each Lender;
(vii) the right of a Lender to assign or transfer its rights or
obligations under the Finance Documents; or
(viii) Clause 2.2 (Nature of a Finance Party's rights and obligations) or
this Clause,
may only be made with the consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations of an
Administrative Party may only be made with the consent of that
Administrative Party.
(c) A Fee Letter may be amended or waived with the agreement of the
Administrative Party that is a party to that Fee Letter and the Company.
27.3 Change of currency
If a change in any currency of a country occurs (including where there is
more than one currency or currency unit recognised at the same time as
the lawful currency of a country), the Finance Documents will be amended
to the extent the Facility Agent (acting reasonably and after
consultation with the Company) determines is necessary to reflect the
change.
27.4 Waivers and remedies cumulative
The rights of each Party under the Finance Documents:
(a) may be exercised as often as necessary subject to the terms of
this Agreement;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any right is not a waiver of that
right.
28. CHANGES TO THE PARTIES
28.1 Assignments and transfers by Obligors
Neither Obligor may assign or transfer any of its rights and obligations
under the Finance Documents without the prior consent of all the Lenders.
28.2 Assignments and transfers by Lenders
(a) A Lender (the Existing Lender) may, subject to the following provisions
of this Subclause, at any time assign or transfer (including by way of
novation) any of its rights and obligations under this Agreement to any
other bank or financial institution or to a trust, fund or other
financial entity which is regularly engaged in or established for the
purpose of making, purchasing or investing in loans, securities or other
financial assets (the New Lender).
59
(b) The consent of the Company is required for any assignment or transfer
unless the New Lender is another Lender or an Affiliate of a Lender or an
Event of Default is outstanding. The consent of the Company must not be
unreasonably withheld or delayed.
(c) The Facility Agent is not obliged to execute a Transfer Certificate until
it has completed all know your customer requirements to its satisfaction.
The Facility Agent must promptly notify the Existing Lender and the New
Lender if there are any such requirements.
(d) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with the following
provisions of this Clause; or
(ii) the New Lender confirms to the Facility Agent and the Company in
form and substance satisfactory to the Facility Agent that it is
bound by the terms of this Agreement as a Lender. On the transfer
becoming effective in this manner the Existing Lender will be
released from its obligations under this Agreement to the extent
that they are transferred to the New Lender.
(e) Unless the Facility Agent otherwise agrees, the New Lender must pay to
the Facility Agent for its own account, on or before the date any
assignment or transfer occurs, a fee of 'E'1,500.
(f) Any reference in this Agreement to a Lender includes a New Lender but
excludes a Lender if no amount is or may be owed to or by it under this
Agreement.
(g) An assignment of rights will only be effective if, at the cost of the
Lender, the assignment is notified to the Company by a bailiff (huissier)
in accordance with Article 1690 of the French Civil Code.
(h) A new Lender shall not be entitled to receive any greater payments than
the Existing Lender would have received had the assignment or transfer
not taken place if such increase in payment arises as a result of
circumstances existing at the date of assignment or transfer .
(i) The liabilities and obligations of the Obligors shall not be increased by
reason of any assignment or transfer if such increase arises as a result
of circumstances existing at the date of assignment or transfer.
28.3 Procedure for transfer by way of novations
(a) In this Subclause:
Transfer Date means, for a Transfer Certificate, the later of:
(i) the proposed Transfer Date specified in that Transfer Certificate;
and
(ii) the date on which the Facility Agent executes that Transfer
Certificate.
(b) A novation is effected if:
(i) the Existing Lender and the New Lender deliver to the Facility
Agent a duly completed Transfer Certificate; and
(ii) the Facility Agent executes it.
60
The Facility Agent must execute as soon as reasonably practicable a
Transfer Certificate delivered to it and which appears on its face to be
in order.
(c) Each Party (other than the Existing Lender and the New Lender)
irrevocably authorises the Facility Agent to execute any duly completed
Transfer Certificate on its behalf provided that, in circumstances where
there is a requirement for the Company to give its prior consent to the
assignment or transfer, such authorisation is only given by the Company
under this paragraph (c) if it has already given its consent to the
assignment or transfer.
(d) On the Transfer Date:
(i) the New Lender will assume the rights and obligations of the
Existing Lender expressed to be the subject of the novation in the
Transfer Certificate in substitution for the Existing Lender; and
(ii) the Existing Lender will be released from those obligations and
cease to have those rights.
(e) The Facility Agent must, as soon as reasonably practicable after it has
executed a Transfer Certificate, send to the Company a copy of that
Transfer Certificate.
(f) Subject to the terms of this Agreement, the obligations of the Guarantor
under this Agreement will continue in full force and effect following any
novation under this Clause. A novation under this Clause is a novation
(novation) within the meaning of Article 1271 et seq. of the French Civil
Code.
28.4 Limitation of responsibility of Existing Lender
(a) Unless expressly agreed to the contrary, an Existing Lender is not
responsible to a New Lender for the legality, validity, adequacy,
accuracy, completeness or performance of:
(i) any Finance Document or any other document; or
(ii) any statement or information (whether written or oral) made in or
supplied in connection with any Finance Document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(i) has made, and will continue to make, its own independent appraisal
of all risks arising under or in connection with the Finance
Documents (including the financial condition and affairs of each
Obligor and its related entities and the nature and extent of any
recourse against any Party or its assets) in connection with its
participation in this Agreement; and
(ii) has not relied exclusively on any information supplied to it by
the Existing Lender in connection with any Finance Document.
(c) Nothing in any Finance Document requires an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause; or
61
(ii) support any losses incurred by the New Lender by reason of the
non-performance by either Obligor of its obligations under any
Finance Document or otherwise.
28.5 Costs resulting from change of Lender or Facility Office
If:
(a) a Lender assigns or transfers any of its rights and obligations
under the Finance Documents or changes its Facility Office; and
(b) as a result of circumstances existing at the date the assignment,
transfer or change occurs, an Obligor would be obliged to pay a
Tax Payment or an Increased Cost,
then, unless the assignment, transfer or change is made by a Lender to
mitigate any circumstances giving rise to the Tax Payment, Increased Cost
or a right to be prepaid and/or cancelled by reason of illegality, the
relevant Obligor need only pay that Tax Payment or Increased Cost to the
same extent that it would have been obliged to if no assignment, transfer
or change had occurred.
28.6 Changes to the Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Facility Agent
must (in consultation with the Company) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
29. DISCLOSURE OF INFORMATION
29.1 Each Finance Party must keep confidential any information supplied to it
by or on behalf of any Obligor in connection with the Finance Documents.
However, a Finance Party is entitled to disclose information:
(a) which is publicly available, other than as a result of a breach by
that Finance Party of this Clause;
(b) if required to do so in connection with any legal or arbitration
proceedings;
(c) if required to do so under any law or regulation;
(d) if required to do so to a governmental, banking, taxation or other
regulatory authority;
(e) to its professional advisers in connection with this transmission;
(f) to the extent allowed under Clause 29.2 below;
(g) to another Obligor; or
(h) with the prior written agreement of the relevant Obligor.
29.2 A Finance Party may disclose to an Affiliate or any person with whom it
may enter, or has entered into, any kind of transfer, participation or
other agreement in relation to this Agreement (a participant):
(a) a copy of any Finance Document; and
62
(b) any information which that Finance Party has acquired under or in
connection with any Finance Document.
However, before a participant may receive any confidential information,
it must agree with the relevant Finance Party to keep that information
confidential on the terms of paragraph (a) above.
29.3 This Clause supersedes any previous confidentiality undertaking given by
a Finance Party in connection with this Agreement prior to it becoming a
Party.
30. SET-OFF
Following the occurrence of an Event of Default which is outstanding, a
Finance Party may set off any matured obligation owed to it by an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Obligor (other than amounts due by that Finance Party under a
Trading Contract), regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
31. PRO RATA SHARING
31.1 Redistribution
If any amount owing by an Obligor under this Agreement to a Lender (the
recovering Lender) is discharged by payment, set-off or any other manner
other than through the Facility Agent under this Agreement (a recovery),
then:
(a) the recovering Lender must, within three Business Days, supply
details of the recovery to the Facility Agent;
(b) the Facility Agent must calculate whether the recovery is in
excess of the amount which the recovering Lender would have
received if the recovery had been received and distributed by the
Facility Agent under this Agreement; and
(c) the recovering Lender must pay to the Facility Agent an amount
equal to the excess (the redistribution).
31.2 Effect of redistribution
(a) The Facility Agent must treat a redistribution as if it were a payment by
the relevant Obligor under this Agreement and distribute it among the
Lenders, other than the recovering Lender, accordingly.
(b) When the Facility Agent makes a distribution under paragraph (a) above,
the recovering Lender will be subrogated to the rights of the Finance
Parties which have shared in that redistribution.
(c) If and to the extent that the recovering Lender is not able to rely on
any rights of subrogation under paragraph (b) above, the relevant Obligor
will owe the recovering Lender a debt which is equal to the
redistribution, immediately payable and of the type originally
discharged.
63
(d) If:
(i) a recovering Lender must subsequently return a recovery, or an
amount measured by reference to a recovery, to an Obligor; and
(ii) the recovering Lender has paid a redistribution in relation to
that recovery,
each Finance Party must reimburse the recovering Lender all or the
appropriate portion of the redistribution paid to that Finance Party,
together with interest for the period while it held the redistribution.
In this event, the subrogation in paragraph (b) above will operate in
reverse to the extent of the reimbursement.
31.3 Exceptions
Notwithstanding any other term of this Clause, a recovering Lender need
not pay a redistribution to the extent that:
(a) it would not, after the payment, have a valid claim against the
relevant Obligor in the amount of the redistribution; or
(b) it would be sharing with another Finance Party any amount which
the recovering Lender has received or recovered as a result of
legal or arbitration proceedings, where:
(i) the recovering Lender notified the Facility Agent of those
proceedings; and
(ii) the other Finance Party had an opportunity to participate
in those proceedings but did not do so or did not take
separate legal or arbitration proceedings as soon as
reasonably practicable after receiving notice of them.
32. SEVERABILITY
If a term of a Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that will not affect:
(a) the legality, validity or enforceability in that jurisdiction of
any other term of the Finance Documents; or
(b) the legality, validity or enforceability in other jurisdictions of
that or any other term of the Finance Documents.
33. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts. This
has the same effect as if the signatures on the counterparts were on a
single copy of the Finance Document.
34. NOTICES
34.1 In writing
(a) Any communication in connection with a Finance Document must be in
writing and, unless otherwise stated, may be given:
(i) in person, by post, fax or any other electronic communication
approved by the Facility Agent and the Company; or
64
(ii) if between the Facility Agent and a Lender and the Facility Agent
and the Lender agree, by e-mail or other electronic communication.
(b) For the purpose of the Finance Documents, an electronic communication
will be treated as being in writing.
Unless it is agreed to the contrary, any consent or agreement required
under a Finance Document must be given in writing.
34.2 Contact details
(a) Except as provided below, the contact details of each Party for all
communications in connection with the Finance Documents are those
notified by that Party for this purpose to the Facility Agent on or
before the date it becomes a Party.
(b) The contact details of the Company and the Guarantor for this purpose
are:
Address: International Paper Company,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice President-Treasury
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq,
International Paper Company,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
(c) The contact details of the Facility Agent for this purpose are:
Address: ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Cedex 01
Fax number: + ▇▇ (▇) ▇ ▇▇ ▇▇ ▇▇ 17
E-mail: thierry.bonnel@ ▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
(d) Any Party may change its contact details by giving five Business Days'
notice to the Facility Agent or (in the case of the Facility Agent) to
the other Parties.
(e) Where a Party nominates a particular department or officer to receive a
communication, a communication will not be effective if it fails to
specify that department or officer.
34.3 Effectiveness
(a) Except as provided below, any communication in connection with a Finance
Document will be deemed to be given as follows:
(i) if delivered in person, at the time of delivery;
65
(ii) if posted, five days after being deposited in the post, postage
prepaid, in a correctly addressed envelope;
(iii) if by fax, 24 hours after despatch; and
(iv) if by e-mail or any other electronic communication, when received
in legible form.
(b) A communication given under paragraph (a) above but received on a
non-working day or after business hours in the place of receipt will only
be deemed to be given on the next working day in that place.
(c) A communication to the Facility Agent, the Company or the Guarantor will
only be effective on actual receipt by it.
34.4 Obligors
(a) All communications under the Finance Documents to or from an Obligor must
be sent through the Facility Agent.
(b) All communication in connection with a Finance Document will be given to
each Obligor.
(c) The Facility Agent may assume that any communication made by an Obligor
is made with the consent of the other Obligor.
35. LANGUAGE
(a) Any notice given in connection with a Finance Document must be in
English.
(b) Any other document provided in connection with a Finance Document must
be:
(i) in English; or
(ii) (unless the Facility Agent otherwise agrees) accompanied by a
certified English translation. In this case, the English
translation prevails unless the document is a statutory or other
official document.
36. USA PATRIOT ACT
Each Lender hereby notifies each Obligor, that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law 26th October, 2001)) (the Patriot Act), it is required to
obtain, verify and record information that identifies each Obligor, which
information includes the name and address of each Obligor and other
information that will allow such Lender to identify such Obligor in
accordance with the Patriot Act.
37. GOVERNING LAW
This Agreement is governed by English law.
38. ENFORCEMENT
38.1 Jurisdiction
(a) The English courts have exclusive jurisdiction to settle any dispute in
connection with any Finance Document.
66
(b) Notwithstanding paragraph (a) above, any New York State court or Federal
court sitting in the City and County of New York also has jurisdiction to
settle any dispute in connection with any Finance Document.
(c) The English and New York courts are the most appropriate and convenient
courts to settle any such dispute and each Obligor waives objection to
those courts on the grounds of inconvenient forum or otherwise in
relation to proceedings in connection with any Finance Document.
(d) To the extent allowed by law, a Party may take:
(i) proceedings in any other court; and
(ii) concurrent proceedings in any number of jurisdictions.
38.2 Service of process
(a) Each Obligor not incorporated in England and Wales irrevocably appoints
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ as its agent under
the Finance Documents for service of process in any proceedings before
the English courts.
(b) The Company irrevocably appoints the Guarantor as its agent for service
of process in any proceedings before any New York State courts.
(c) If any person appointed as process agent is unable for any reason to act
as agent for service of process, the Company (on behalf of the Obligors)
must immediately appoint another agent on terms acceptable to the
Facility Agent. Failing this, the Facility Agent may appoint another
agent for this purpose.
(d) Each Obligor agrees that failure by a process agent to notify it of any
process will not invalidate the relevant proceedings.
(e) This Clause does not affect any other method of service allowed by law.
38.3 Waiver of immunity
Each Party irrevocably and unconditionally:
(a) agrees not to claim any immunity from proceedings brought by
another Party against it in relation to a Finance Document and to
ensure that no such claim is made on its behalf;
(b) consents generally to the giving of any relief or the issue of any
process in connection with those proceedings; and
(c) waives all rights of immunity in respect of it or its assets.
38.4 Waiver of trial by jury
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY).
67
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
39. COMPLETE AGREEMENT
The Finance Documents contain the complete agreement between the Parties
on the matters to which they are related and supersede all prior
commitments, agreements and understandings, whether written or oral, on
those matters.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
68
SCHEDULE 1
ORIGINAL PARTIES
Name of Original Lender Commitments
BNP Paribas 'E'63,000,000
Barclays Bank plc 'E'63,000,000
ABN Amro Bank N.V. 'E'63,000,000
Citigroup International plc 'E'41,500,000
Fortis Banque France 'E'41,500,000
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank 'E'41,500,000
Mizuho Corporate Bank (USA) 'E'41,500,000
The Governor and Company of the Bank of Ireland 'E'30,000,000
Banco Santander Central Hispano, S.A. 'E'30,000,000
Societe Generale 'E'30,000,000
UBS Limited 'E'30,000,000
Sumitomo Mitsui Banking Corporation 'E'25,000,000
----------------
Total Commitments 'E'500,000,000
----------------
69
SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
Obligors
1. A copy of the constitutional documents of each Obligor. In respect of the
Company, this shall be a certified copy of the statuts and an original
extract of the K-Bis of the Registry of Commerce and Companies each dated
no earlier than one month before the date of this Agreement.
2. A copy of a resolution of the board of directors of the Guarantor, and a
copy of the Decision of the President of the Company, in each case
approving the terms of, and the transactions contemplated by, this
Agreement.
3. A specimen of the signature of each person authorised on behalf of an
Obligor to execute or witness the execution of any Finance Document or to
sign or send any document or notice in connection with any Finance
Document and evidence that each person signing the Finance Documents on
behalf of the Company is authorised to do so.
4. A certificate of an authorised signatory of the Company certifying that
each copy document specified in this Schedule is correct, complete and in
full force and effect as at a date no earlier than the date of this
Agreement.
5. Evidence that any process agent referred to in Clause 38.2 (Service of
process), if not an Obligor, has accepted its appointment.
Legal opinions
Legal opinions of ▇▇▇▇▇ & Overy LLP, legal advisers in England, New York and
France to all Mandated Lead Arrangers and the Facility Agent, addressed to the
Finance Parties.
Other documents and evidence
Evidence that all fees, costs and expenses then due and payable from the Company
under this Agreement have been or will be paid by the first Utilisation Date.
70
SCHEDULE 3
FORM OF REQUEST
To: [BNP PARIBAS] as Facility Agent
From: [ ]
Date: [ ]
INTERNATIONAL PAPER INVESTMENTS (FRANCE) S.A.S.-'E'500,000,000 Credit
Agreement dated [ ] August, 2004 (the Agreement)
1. We refer to the Agreement. This is a Request.
2. We wish to borrow a Loan on the following terms:
(a) Utilisation Date: [ ]
(b) Amount/currency: [ ]
(c) Term: [ ].
3. Our payment instructions are: [ ].
4. We confirm that each condition precedent under the Agreement which must
be satisfied on the date of this Request is so satisfied.
5. This Request is irrevocable.
By:
[ ]
71
SCHEDULE 4
CALCULATION OF THE MANDATORY COST
1. General
(a) The Mandatory Cost is to compensate a Lender for the cost of compliance
with:
(i) the requirements of the Bank of England and/or the Financial
Services Authority (or, in either case, any other authority which
replaces any of its functions); or
(ii) the requirements of the European Central Bank.
(b) The Mandatory Cost is expressed as a percentage rate per annum.
(c) The Mandatory Cost is the weighted average (weighted in proportion to the
percentage share of each Lender in the relevant Loan) of the rates for
the Lenders calculated by the Facility Agent in accordance with this
Schedule on the first day of a Term (or as soon as possible after then).
(d) The Facility Agent must distribute each amount of Mandatory Cost among
the Lenders on the basis of the rate for each Lender.
(e) Any determination by the Facility Agent pursuant to this Schedule will
be, in the absence of manifest error, conclusive and binding on all the
Parties.
2. For a Lender lending from a Facility Office in the U.K.
(a) The relevant rate for a Lender lending from a Facility Office in the U.K.
is calculated in accordance with the following formulae:
for a Loan in Sterling:
AB+C(B-D) + E x 0.01
-------------------- per cent. per annum
100-(A+C)
for any other Loan:
E x 0.01
---------- per cent. per annum
300
where on the day of application of the formula:
A is the percentage of that Lender's eligible liabilities (in excess
of any stated minimum) which the Bank of England requires it to
hold on a non-interest-bearing deposit account in accordance with
its cash ratio requirements;
B is the percentage rate of LIBOR for the relevant Term;
C is the percentage (if any) of that Lender's eligible liabilities
which the Bank of England requires it to place as an interest
bearing special deposit;
72
D is the percentage rate per annum payable by the Bank of England on
interest bearing special deposits; and
E is calculated by the Facility Agent as being the average of the
rates of charge under the fees rules supplied by the Reference
Banks to the Facility Agent under paragraph (d) below and
expressed in pounds per 'L'1 million.
(b) For the purposes of this paragraph 2:
(i) eligible liabilities and special deposit(s) have the meanings
given to them at the time of application of the formula pursuant
to the Bank of England Act 1988 or (as appropriate) by the Bank of
England;
(ii) fees rules means the then current rules on periodic fees in the
Supervision Manual of the FSA Handbook or any other law or
regulation as may then be in force for the payment of fees for the
acceptance of deposits;
(iii) fee tariffs means the fee tariffs specified in the fees rules
under fee-block Category A1 (Deposit acceptors) (ignoring any
minimum fee or zero rated fee required pursuant to the fees rules
but applying any applicable discount rate); and
(iv) tariff base has the meaning given to it in, and will be calculated
in accordance with, the fees rules.
(c) (i) In the application of the formulae, A, B, C and D are included as
figures and not as percentages, e.g. if A = 0.5% and B = 15%, AB
is calculated as 0.5 x 15. A negative result obtained by
subtracting D from B is taken as zero.
(ii) Each rate calculated in accordance with a formula is, if
necessary, rounded upward to four decimal places.
(d) If requested by the Facility Agent, each Reference Bank must, as soon as
practicable after publication by the Financial Services Authority, supply
to the Facility Agent the rate of charge payable by that Reference Bank
to the Financial Services Authority under the fees rules for that
financial year of the Financial Services Authority (calculated by that
Reference Bank as being the average of the fee tariffs applicable to that
Reference Bank for that financial year) and expressed in pounds per
'L'1 million of the tariff base of that Reference Bank.
(e) Each Lender must supply to the Facility Agent the information required by
it to make a calculation of the rate for that Lender. In particular, each
Lender must supply the following information on or prior to the date on
which it becomes a Lender:
(i) the jurisdiction of its Facility Office; and
(ii) any other information that the Facility Agent reasonably requires
for that purpose.
Each Lender must promptly notify the Facility Agent of any change to the
information supplied to it under this paragraph.
(f) The percentages of each Lender for the purposes of A and C above and the
rates of charge of each Reference Bank for the purpose of E above are
determined by the Facility Agent based upon the information supplied to
it under paragraphs (d) and (e) above. Unless a Lender notifies the
Facility Agent to the contrary, the Facility Agent may assume that the
Lender's
73
obligations in respect of cash ratio deposits and special deposits are
the same as those of a typical bank from its jurisdiction of
incorporation with a Facility Office in the U.K.
(g) The Facility Agent has no liability to any Party if its calculation over
or under compensates any Lender. The Facility Agent is entitled to assume
that the information provided by any Lender or Reference Bank under this
Schedule is true and correct in all respects.
3. For a Lender lending from a Facility Office in a Participating Member
State
(a) The relevant rate for a Lender lending from a Facility Office in a
Participating Member State is the percentage rate per annum notified by
that Lender to the Facility Agent. This percentage rate per annum must be
certified by that Lender in its notice to the Facility Agent as its
reasonable determination of the cost (expressed as a percentage of that
Lender's share 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.
(b) If a Lender fails to specify a rate under paragraph (a) above, the
Facility Agent will assume that the Lender has not incurred any such
cost.
4. Changes
(a) The Facility Agent may, after consultation with the Company and the
Lenders, determine and notify all the Parties of any amendment to this
Schedule which is required to reflect:
(i) any change in law or regulation; or
(ii) any requirement imposed by the Bank of England, the Financial
Services Authority or the European Central Bank (or, in any case,
any successor authority).
(b) If the Facility Agent, after consultation with the Company, determines
that the Mandatory Cost for a Lender lending from a Facility Office in
the U.K. can be calculated by reference to a screen, the Facility Agent
may notify all the Parties of any amendment to this Agreement which is
required to reflect this.
74
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: [BNP PARIBAS] as Facility Agent
From: [THE EXISTING LENDER] (the Existing Lender) and [THE NEW LENDER] (the New
Lender)
Date: [ ]
INTERNATIONAL PAPER INVESTMENTS (FRANCE) S.A.S. - 'E'500,000,000 Credit
Agreement dated [ ] August, 2004 (the Agreement)
We refer to the Agreement. This is a Transfer Certificate.
1. The Existing Lender transfers by novation to the New Lender the Existing
Lender's rights and obligations referred to in the Schedule below in
accordance with the terms of the Agreement.
2. The proposed Transfer Date is [ ].
3. The administrative details of the New Lender for the purposes of the
Agreement are set out in the Schedule.
4. This Transfer Certificate is governed by English law.
75
THE SCHEDULE
Rights and obligations to be transferred by novation
[insert relevant details, including applicable Commitment (or part)]
Administrative details of the New Lender
[insert details of Facility Office, address for
notices and payment details etc.]
[EXISTING LENDER] [NEW LENDER]
By: By:
The Transfer Date is confirmed by the Facility Agent as [ ].
[BNP PARIBAS]
By:
76
SCHEDULE 6
EXISTING LIENS
Member of the Group Details of lien Maximum principal
creating Liens amount secured
1. Georgetown Equipment Leasing $100,000,000 Sale/leaseback of
Association, L.P. Georgetown Mill equipment.
2. Trout Creek Equipment Leasing, $63,000,000 Sale/leaseback of Ticonderoga
L.P. Mill equipment.
3. Quarterhouse, Limited Partners $48,000,000 Synthetic Lease of warehouses,
printing presses and packaging
equipment
77
SCHEDULE 7
FORM OF COMPLIANCE CERTIFICATE
To: [BNP PARIBAS] as Facility Agent
From: INTERNATIONAL PAPER COMPANY.
Date: [ ]
INTERNATIONAL PAPER INVESTMENTS (FRANCE) S.A.S. - 'E'500,000,000 Credit
Agreement dated [ ] August, 2004 (the Agreement)
1. We refer to the Agreement. This is a Compliance Certificate.
2. We confirm that as at [relevant testing date]:
(a) The ratio of Total Debt to Total Capital is [ ]; and
(b) Consolidated Net Worth is US$[ ].
3. We set out below calculations establishing the figures in paragraph 2
above:
[ ].
4. We confirm that the following companies were Material Subsidiaries at
[relevant testing date]:
[ ].
5. [We confirm that no Potential Event of Default or Event of Default is
outstanding as at [relevant testing date].(1)
INTERNATIONAL PAPER COMPANY
By:
--------
(1) If this statement cannot be made, the certificate should identify any
Potential Event of Default or Event of Default that is outstanding and
the steps, if any, being taken to remedy it.
78
SCHEDULE 8
EXISTING FACILITIES
List of all debt instruments or facilities of International Paper Company and
its Material Subsidiaries with principal or face amount of at least
$150,000,000.
ISSUE PRINCIPAL AMOUNT
------------------------------------------- -----------------------------------
5.85% Note Due 2012 $1,200,000,000
3.75% Zero Coupon Convertible Note Due 2021 $1,001,264,000
6.75% Note Due 2011 $1,000,000,000
5.30% Note Due 2015 $700,000,000
4.00% Note Due 2010 $600,000,000
5.50% Note Due 2014 $500,000,000
4.25% Note Due 2009 $500,000,000
5.25% Note Due 2016 $400,000,000
3.80% Note Due 2008 $300,000,000
5.375% Euro Notes Due 2006 EUR 250,000,000
7.35% Note Due 2025 $200,000,000
6.4% Note Due 2026 $200,000,000
7.2% Note Due 2026 $200,000,000
7.625% Note Due 2007 $200,000,000
6.875% Note Due 2023 $200,000,000
6.875% Note Due 2029 $200,000,000
7.75% Note Due 2025 $150,000,000
7.10% Note Due 2005 $150,000,000
7% Note Due 2006 $150,000,000
6.5% Note Due 2007 $150,000,000
7.875% Note Due 2006 $150,000,000
PREFERRED SECURITIES PRINCIPAL AMOUNT
------------------------------------------- -----------------------------------
5.25% Convertible Preferred Securities Due $449,831,150
2025
7.005% Preferred Stock - TCCII Due 2039 $170,000,000
Amount outstanding as at
Bank Facility 26 August, 2004
------------------------------------------- -----------------------------------
$750,000,000 R/C Facility Due 2006 $0
$1,250,000,000 R/C Facility Due 2009 $0
$650,000,000 Receivable Securitization 2004 $600,000,000
$650,000,000 Term Loan in the Name of $650,000,000
Ngahere Aotearoa Due 2007
79
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
ISSUE PRINCIPAL AMOUNT
------------------------------------------- -----------------------------------
9.50% Debentures Due 2024 $150,000,000
8.875% Notes Due 2004 $305,000,000
8.375% Debentures Due 2015 $150,000,000
80
SCHEDULE 9
FORM OF TAUX EFFECTIF GLOBAL LETTER
[ON THE LETTERHEAD OF THE FACILITY AGENT]
From: [BNP PARIBAS] as Facility Agent
To: [ ]
Date: [ ]
Dear Sirs,
INTERNATIONAL PAPER INVESTMENTS (FRANCE) S.A.S. - 'E'500,000,000 Credit
Agreement dated [ ] August, 2004 (the Agreement)
We refer to the Agreement.
This is the letter setting out the applicable effective global rate (taux
effectif global) referred to in the Agreement.
The applicable taux effectif global, calculated on the basis of a 365-day year,
is:
(a) for a Term of one month and at [LIBOR/EURIBOR] rate of [ ] per cent. per
annum, [TEG rate to be inserted] per cent. (which corresponds to a taux
de periode of [Period rate to be inserted] per cent. for a duree de
periode of one month;
(b) for a Term of two months and at [LIBOR/EURIBOR] rate of [ ] per cent. per
annum, [TEG rate to be inserted] per cent. (which corresponds to a taux
de periode of [Period rate to be inserted] per cent. for a duree de
periode of two months;
(c) for a Term of three months and at [LIBOR/EURIBOR] rate of [ ] per cent.
per annum, [TEG rate to be inserted] per cent. (which corresponds to a
taux de periode of [Period rate to be inserted] per cent. for a duree de
periode of three months; and
(d) for a Term of six months and at [LIBOR/EURIBOR] rate of [ ] per cent. per
annum, (which corresponds to a taux de periode of [Period rate to be
inserted] per cent. for a duree de periode of six months.
The above rates:
(a) are given in order to comply with the provisions of article L.313-1 et
seq. of the French Code de la Consommation and on an indicative basis and
for information only;
(b) are calculated on the basis that:
(i) drawdown for the full amount of the Facility has been made in
[CURRENCY] on [DATE];
(ii) the [LIBOR/EURIBOR] rate, expressed as an annual rate, is as fixed
on [DATE];
(iii) the Margin is [ ]; and
81
(c) take into account the various fees, costs and expenses payable by you
under the Agreement.
This letter is designated a Finance Document.
Please confirm your acceptance of the terms of this letter by signing and
returning to us the enclosed copy.
Yours faithfully,
--------------------------------------
[BNP PARIBAS]
as Facility Agent
We agree to the above.
--------------------------------------
INTERNATIONAL PAPER INVESTMENTS (FRANCE) S.A.S.
82
SCHEDULE 10
INDEBTEDNESS OF THE COMPANY
None
83
SIGNATORIES
Company
INTERNATIONAL PAPER INVESTMENTS (FRANCE) S.A.S.
By:
Guarantor
INTERNATIONAL PAPER COMPANY
By:
Mandated Lead Arrangers
BNP PARIBAS
By:
BARCLAYS CAPITAL
By:
ABN AMRO BANK N.V.
By:
Original Lenders
BNP PARIBAS
By:
BARCLAYS BANK PLC
By:
84
ABN AMRO BANK N.V.
By:
CITIGROUP INTERNATIONAL PLC
By:
FORTIS BANQUE FRANCE
By:
▇▇ ▇▇▇▇▇▇ CHASE BANK
By:
MIZUHO CORPORATE BANK (USA)
By:
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
By:
BANCO SANTANDER CENTRAL HISPANO, S.A.
By:
By:
SOCIETE GENERALE
By:
UBS LIMITED
By:
85
SUMITOMO MITSUI BANKING CORPORATION
By:
Facility Agent
BNP PARIBAS
By:
86
