Exhibit 4.7
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EXECUTION COPY
DATED 27TH MAY 2002
PREMIER FINANCING LIMITED
AND OTHERS
MANDATED LEAD ARRANGERS OF THE AMENDMENT AND RESTATEMENT
X.X. XXXXXX PLC
AND
BARCLAYS CAPITAL
AGENT
X.X. XXXXXX EUROPE LIMITED
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SUPPLEMENTAL AGREEMENT
RELATING TO A
FACILITIES AGREEMENT
DATED 10 AUGUST 1999
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TABLE OF CONTENTS
PAGE
CLAUSE
1 Interpretation..................................................1
2 Amendments to and waivers of the Principal Agreement............2
3 Representations and Warranties..................................2
4 Undertakings....................................................6
5 Fees, Expenses and Indemnity....................................6
6 Effective Date..................................................8
7 Miscellaneous...................................................8
8 Governing Law and jurisdiction..................................9
SCHEDULES
Schedule 1 The Borrowers
Schedule 2 The Charging Group
Schedule 3 Part A -The Banks
Schedule 3 Part B - Other Finance Parties
Schedule 4 Documents and evidence required as conditions precedent to the
effective date
Schedule 5 The Amended and Restated Principal Agreement
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THIS AGREEMENT is dated 27th May 2002 and made BETWEEN:
(1) PREMIER FINANCING LIMITED as Newco 2 and a Borrower;
(2) THE COMPANIES whose names, registered numbers (if any) and registered
offices are set out in part A of Schedule 1 as Working Capital
Borrowers and the companies whose names, registered numbers (if any)
and registered offices are set out in part B of Schedule 1 as the
Ancillary Facilities Borrowers;
(3) THE COMPANIES whose names, registered numbers (if any) and registered
offices are set out in Schedule 2 as the members of the Charging
Group;
(4) X.X. XXXXXX PLC and BARCLAYS CAPITAL (THE INVESTMENT BANKING DIVISION
OF BARCLAYS BANK PLC) as Amendment Arrangers;
(5) THE PERSONS whose names and addresses are set out in part A of
Schedule 3 as Banks;
(6) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are
set out in part B of Schedule 3 as other Finance Parties; and
(7) X.X. XXXXXX EUROPE LIMITED as Agent and Security Agent;
WHEREAS:
(A) This Agreement is supplemental to a facilities agreement dated 10
August 1999, as amended from time to time, made between certain
parties hereto whereby the Banks agreed to make available to Newco 2
and the other Borrowers credit facilities upon the terms and subject
to the conditions therein contained (the "PRINCIPAL AGREEMENT").
(B) Newco 2 has requested the Finance Parties to amend and restate the
Principal Agreement to the extent set out in this Agreement.
NOW IT IS AGREED as follows:
1 INTERPRETATION
1.1 DEFINITIONS IN PRINCIPAL AGREEMENT
Unless the context otherwise requires and save as mentioned below,
words and expressions defined in the Principal Agreement as set out
in Schedule 5 to this Agreement shall have the same meanings when
used in this Agreement. In this Agreement the expression the
"EFFECTIVE DATE" shall have the meaning given to it in clause 6.1.
1.2 INTERPRETATION OF PRINCIPAL AGREEMENT
References in the Principal Agreement to "THIS AGREEMENT" shall, with
effect from the Effective Date and unless the context otherwise
requires, be references to the Principal Agreement as amended and
restated by this Agreement and words such as "HEREIN", "HEREOF",
"HEREUNDER", "HEREAFTER", "HEREBY" and "HERETO", where they appear in
the Principal Agreement, shall be construed accordingly.
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1.3 INCORPORATION OF CERTAIN REFERENCES
Clauses 1.2, 1.3 and 1.4 of the Principal Agreement shall be deemed
to be incorporated in this Agreement in full, mutatis mutandis.
2 AMENDMENTS TO AND WAIVERS OF THE PRINCIPAL AGREEMENT
2.1 The Principal Agreement shall be amended, with effect from the
Effective Date, to read as set out in Schedule 5 to this Agreement on
condition that the UK Second Acquisition Completion Date occurs on
the same day, which is on or before 30 June 2002 (or such later date
as may be agreed by the Amendment Underwriters).
2.2 With effect from the date of this Agreement, the Finance Parties
consent to the winding up on a solvent basis of the following members
of the Group:
(a) Cadismark Household Products Limited (Company number
1413161);
(b) Equity Investments Management Limited (Company number
2083957);
(c) H (Elmswell) Limited (Company number 1936070);
(d) Hillsdown Holdings QUEST Limited (Company number 3422198);
(e) Kingsdown Leasing Limited (Company number 390451);
Such consent (i) shall lapse 90 days after the date of this Agreement
in respect of any such Company which has not been wound up by that
date and (ii) is given on condition that the assets and liabilities
of each such company at no time exceeds those shown in the
information delivered to the Agent prior to the date of this
Agreement in connection with this consent.
3 REPRESENTATIONS AND WARRANTIES
3.1 Each Borrower represents and warrants to each Finance Party that the
representations and warranties set out in clause 9.1 of the Principal
Agreement as set out in Schedule 5 to this Agreement are true and
correct as if made at the date of this Agreement, on the Effective
Date, on the UK Second Acquisition Completion Date and on the Irish
Second Acquisition Completion Date with reference to the facts and
circumstances existing at such dates (as if references to the
Principal Agreement were to this Agreement and to the Principal
Agreement as amended and restated by this Agreement).
3.2 Newco 2 further represents and warrants to each of the Finance
Parties (subject to the qualifications and reservations (other than
those relating to factual matters)) set out in the legal opinions
delivered pursuant to clause 6.1 in form and substance satisfactory
to the Agent (acting reasonably) and matters fairly and specifically
disclosed by the Second Reports) that:
3.2.1 Information Package:
(a) all factual information concerning Xxxxx Muse, the
Acquisition Parties, each member of the Group and their
Affiliates and the transactions contemplated by this
Agreement (other than information of a general economic
nature) ("Information") that has been or will be made
available to any of the Finance Parties by any Acquisition
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Party or any of their authorised representatives in
relation to this Agreement when taken as a whole is or
will be, when furnished, complete and correct in all
material respects and does not or will not, when
furnished, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to
make the statements contained therein not materially
misleading in light of the circumstances under which such
statements were or are made; and
(b) all financial projections, financial models and business
plans ("PROJECTIONS") which have been or will be prepared
by Newco 2 or any of its authorised representatives and
have been or will be made available to any Finance Party
or prospective Finance Party have been or will be prepared
in good faith based upon assumptions which were believe to
be reasonable at the time prepared;
The Obligors acknowledge that in arranging, syndicating and entering
into the Finance Documents the Finance Parties may use and rely on
the Information and Projections without independent verification
thereof;
3.2.2 COPIES OF DOCUMENTS TO BE TRUE AND ACCURATE: the copies of the Second
Transaction Documents and the other relevant incorporation and
constitutional documents or by-laws of it and all other Obligors
delivered to the Agent pursuant to clause 6.1 are true, complete and
accurate in all material respects and have not been amended, varied
or supplemented in any way and, save as otherwise referred to
therein, no other agreements, arrangements or understandings exist
between any member of the Group or any member of the HMTF Group and
all or any of the parties to those agreements and instruments which
would materially affect the transactions or arrangements contemplated
by the Second Transaction Documents and/or the forecasts, projections
and/or estimates contained or referred to in the Financial Model and
the Second Reports;
3.2.3 GROUP AND ACQUISITION PARTIES: (i) as at the UK Second Acquisition
Completion Date, the details of the Group set out in Schedules 6 and
7 of the Principal Agreement in the form set out in Schedule 5 to
this Agreement are accurate in all material respects and no member of
the Group has any ownership interest in any person other than as set
out therein, (ii) the Target has no ownership interest in any person
other than as set out in such Schedules, (iii) Newco 1 has no
ownership interest in any person other than Newco 2, (iv) the UK
Second Purchaser is a wholly-owned direct Subsidiary of Newco 2, (v)
the Irish Second Purchaser is a wholly-owned direct Subsidiary of the
UK Second Purchaser and (vi) UK Topco has no ownership interest in
any person other than the Target, its wholly-owned direct Subsidiary;
3.2.4 NO BORROWED MONEY OR ENCUMBRANCES: (i) as at the Effective Date none
of the members of the Group will have any liabilities in respect of
Borrowed Money other than as permitted under clause 10.6(c) of the
Principal Agreement in the form set out in Schedule 5 to this
Agreement and (ii) as at the Effective Date no Encumbrances (other
than Permitted Encumbrances) will exist over the assets and
undertaking of any member of the Group;
3.2.5 CONSENTS ETC. RELATING TO THE FINANCE DOCUMENTS: every consent,
authorisation, licence or approval or filing, notarisation or
registration required to ensure compliance by Newco 2 with clause
10.2(b) of the Principal Agreement in the form set out in Schedule 5
to this Agreement has been obtained or made and will
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be in full force and effect and there will have been no default in
the observance of the conditions or restrictions (if any) imposed
in, or in connection with, any of the same;
3.2.6 COMPLIANCE WITH CONSENTS ETC RELATING TO THE BUSINESS OF THE GROUP:
(a) the business of the Group has been conducted in all
material respects in accordance with all applicable laws
and regulations in each of the jurisdictions in which it
is carried on and there is no decree or judgment of any
Government Entity of any of such jurisdictions outstanding
against any member of the Group except to the extent that
any non compliance or decree or judgment would not be
reasonably likely to have a Material Adverse Effect; and
(b) as at the UK Second Acquisition Completion Date and the
Irish Second Acquisition Completion Date every material
consent, authorisation, licence or approval required by
the Group to ensure compliance by Newco 2 with clause
10.2(c) of the Principal Agreement in the form set out in
Schedule 5 to this Agreement in respect of the business
carried on by the Group immediately after the UK Second
Acquisition Completion Date or, as applicable, the Irish
Second Acquisition Completion Date will have been obtained
or made and will be in full force and effect and there
will have been no default in the observance of the
conditions or restrictions (if any) imposed in, or in
connection with, any of the same except to the extent any
failure to obtain or make or maintain in full force and
effect or default would not be reasonably likely to have a
Material Adverse Effect;
3.2.7 NO SHARE OPTIONS ETC: there are no agreements in force or corporate
resolutions passed which call for the present or future issue or
allotment of, or grant to any person the right (whether conditional
or otherwise) to call for the issue or allotment of, any share or
loan capital of any member of the Group (including any option or
right of pre-emption or conversion) (other than in favour of another
member of the Group where such other member of the Group may not
transfer or renounce such rights to or in favour of a person who or
which is not a member of the Group);
3.2.8 NO TAXES: on the basis that all of the Banks are Qualifying Banks, no
Taxes are imposed by withholding or otherwise on any payment to be
made by Newco 2 or any other Borrower under this Agreement or the
Principal Agreement in the form set out in Schedule 5 to this
Agreement or any of the Borrower Security Documents or are imposed on
or by virtue of the execution or delivery by any Obligor of this
Agreement or any of the Borrower Security Documents or any document
or instrument to be executed or delivered under this Agreement or the
Principal Agreement or any of the Borrower Security Documents;
3.2.9 LITIGATION/LABOUR DISPUTES: no litigation, alternative dispute
resolution, arbitration or administration proceeding is taking place
or, to the knowledge of the officers of any Acquisition Party,
threatened against any Acquisition Party or any other member of the
Group either in connection with, or as a result of, the Second
Acquisitions or generally (in the latter case, to an extent the same
would be reasonably likely to have a Material Adverse Effect). No
labour disputes involving any member of the Group are current or
threatened, to the knowledge of the officers of any Acquisition Party
or any other member of the Group in each case to the extent that the
same would be reasonably likely to have a Material Adverse Effect;
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3.2.10 ENVIRONMENTAL MATTERS:
(a) Newco 2 is in compliance with its undertaking set out in
clause 10.2(j) of the Principal Agreement as set out in
Schedule 5 to this Agreement in respect of all members of
the Group;
(b) no member of the Group has received notice of any
Environmental Claim and no member of the Group is not in
compliance with any Environmental Law or any Environmental
Approval to the extent that the same would be reasonably
likely to have a Material Adverse Effect; and
(c) there is no Environmental Claim pending or threatened
against any member of the Group which, if adversely
determined, would be reasonably likely to have a Material
Adverse Effect;
3.2.11 NO DEFAULT: no Default has occurred and is continuing and no member
of the Group is in breach of or in default under any agreement to
which it is a party or which is binding on it or any of its assets to
an extent or in a manner which could reasonably be expected to have a
Material Adverse Effect; and
3.2.12 INTELLECTUAL PROPERTY RIGHTS:
(a) each member of the Group owns or has licensed to it on
arm's length commercial terms all the Intellectual
Property Rights which are required by it in order for it
to carry on its business as it is being conducted and as
contemplated in the Financial Model and none of the
members of the Group have infringed any Intellectual
Property Rights of any third party in any material respect
to the extent that the same would have or would be
reasonably likely to have a Material Adverse Effect;
(b) each member of the Group has taken all reasonable actions
(including payment of fees) required to maintain in full
force and effect and to preserve its ability to enforce
any registered Intellectual Property Rights owned by or
licensed to it except to the extent any failure to take
such action would not be reasonably likely to have a
Material Adverse Effect. There has been no material
infringement or threatened infringement by any person of
any Intellectual Property Rights owned by or licensed to
any member of the Group to the extent that the same would
be reasonably likely to have a Material Adverse Effect;
(c) no event or circumstance has occurred which has or could
give rise to the termination of or materially adversely
affect the rights of any member of the Group under or in
relation to any agreement or arrangement relating to any
Intellectual Property Rights to which any of them is a
party including (without limit) any licence to any of them
to the extent that the same would be reasonably likely to
have a Material Adverse Effect; and
(d) to the Acquisition Parties' knowledge no disclosure has
been or will be made of any trade secret used or required
in relation to the business of any member of the Group
other than under enforceable confidentiality undertakings
and each member of the Group will take all necessary steps
(including legal proceedings) to enforce the
confidentiality of and prevent any improper use of the
same other than where any failure to do so would not be
reasonably likely to have a Material Adverse Effect.
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3.3 Newco 2 and the UK Second Purchaser further represent and warrant to
each of the Finance Parties that prior to the UK Second Acquisition
Completion Date (other than as may result from entry into the Second
Transaction Documents and this Agreement) each of the UK Second
Purchaser and UK Topco has not undertaken any trading or incurred any
material liabilities of any nature whatsoever whether actual or
contingent other than liabilities for professional fees and any
liability which would arise if it were wound up.
3.4 Newco 2 and the UK Second Purchaser further represent and warrant to
each of the Finance Parties that prior to the Irish Second
Acquisition Completion Date (other than as may result from entry into
the Second Transaction Documents) the Irish Second Purchaser has not
undertaken any trading or incurred any material liabilities of any
nature whatsoever whether actual or contingent other than liabilities
for professional fees and any liability which would arise if it were
wound up.
3.5 The representations and warranties in clauses 3.2, 3.3 and 3.4 shall
be deemed to be repeated on and as of the Effective Date, the UK
Second Acquisition Completion Date and the Irish Second Acquisition
Completion Date.
4 UNDERTAKINGS
Newco 2 undertakes with each of the Finance Parties that:
4.1 it will comply (and will procure that the other members of the Group
will comply) in all respects with clauses 4.2(b)(v), 5.l(b)(ii)(E)
and 10.7 of the Principal Agreement as set out in Schedule 5 to this
Agreement (as the same may be amended or waived from time to time) as
if such provisions (and any relevant definitions) were set out in
full in this Agreement, mutatis mutandis, and irrespective of whether
or not the Effective Date has occurred; and
4.2 it will ensure that aggregate of the total Contributions of the
Working Capital Banks in respect of the Working Capital Facility and
the total Ancillary Commitments of the Ancillary Facilities Banks at
no time exceeds (pound)100,000,000 prior to the Effective Date.
5 FEES, EXPENSES AND INDEMNITY
5.1 FEES
Newco 2 shall pay for the account of such Finance Parties as are
entitled thereto such fees as are set out in the fee letters to Newco
2 dated 3 May 2002 (the "SECOND FEE LETTERS") in the amounts and on
the terms and conditions set out in such fee letters.
5.2 EXPENSES
Subject as otherwise provided in the Second Fee Letters, Newco 2
shall pay to the Agent on demand all expenses (including reasonable
legal fees) incurred by the Agent and the Arrangers in connection
with the negotiation, preparation and execution of this Agreement and
the completion of the Second Acquisitions and the other transactions
herein contemplated and in connection with the preparation and
distribution of the Information Package and the granting of any
waiver or consent under or in connection with this Agreement.
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5.3 INDEMNITY
Newco 2 agrees to indemnify and hold harmless the Finance Parties and
their Affiliates and their respective officers, lawyers, advisers,
directors, employees, agents and Holding Companies, and each of their
successors, assigns and personal representatives (each an
"INDEMNIFIED PERSON"), from and against any and all losses, claims,
damages and liabilities (collectively "LOSSES") to which any
Indemnified Person may become subject arising out of or in connection
with this Agreement, the Principal Agreement, the Facilities, the
Second Acquisitions or any other transaction contemplated herein, or
any claim, litigation, investigation or proceeding relating to any of
the foregoing, regardless of whether any Indemnified person is a
party thereto, and to reimburse such Indemnified Person upon demand
for any reasonable legal or other reasonable expenses incurred in
connection with investigating or defending any of the foregoing,
except that the foregoing will not apply to any Losses arising from
the gross negligence or wilful misconduct of such Indemnified Person
or a material breach of this Agreement or the Principal Agreement by
such Indemnified Person.
5.4 VALUE ADDED TAX
All fees and expenses payable pursuant to this clause 5 shall be paid
together with an amount equal to any value added tax and similar
Taxes chargeable thereon and any payment made in respect of costs or
expenses shall include an amount equal to the amount of any
irrecoverable value added tax and similar Taxes suffered by the
relevant Finance Parties in respect of such fees and expenses.
5.5 STAMP AND OTHER DUTIES
Newco 2 shall pay all stamp, documentary, registration, notarisation
or other similar duties or Taxes (including any duties or Taxes
payable by, or assessed on, the Finance Parties) imposed on or in
connection with the negotiation, preparation, and execution of any of
the Finance Documents and shall indemnify the Finance Parties against
any liability arising by reason of any delay or omission by Newco 2
to pay such duties or Taxes.
5.6 REIMBURSEMENT OF BROKEN FUNDING COSTS
Newco 2 shall on demand made by the Agent reimburse the Amendment
Underwriters in respect of all amounts required to be paid by the
Amendment Underwriters under paragraphs 6.2.2 and 6.2.3 of a letter
from the Amendment Arrangers, the Amendment Underwriters and the
Agent to the other Finance Parties dated 13 May 2002. Amounts so paid
by Newco 2 in respect of amounts required to be paid by the Amendment
Underwriters under paragraph 6.2.2 of such letter shall reduce the
relevant amounts of interest, fees or (as applicable) commission
payable to the Amendment Underwriters under the Principal Agreement
after the Effective Date (being the amounts of interest, fees or
commission in respect of which Newco 2 is required to make payments
under this clause 5.6) on a pound for pound basis. To the extent that
any Contribution of any Bank is transferred to the Amendment
Underwriters other than on an Interest Payment Date or Maturity Date
relating thereto, the amount of interest payable to the Amendment
Underwriters in respect of the balance of the relevant Interest
Period or (as applicable) Maturity Period shall be increased or
decreased according to whether the cost to the Amendment Underwriters
of funding such Contribution for the balance of such period is
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greater or lesser than the Funding Cost applicable to such
Contribution on the Quotation Date in respect of such period.
6 EFFECTIVE DATE
6.1 CONDITIONS PRECEDENT DOCUMENTATION
The amendment and restatement of the Principal Agreement by this
Agreement shall take effect on and from the date (the "EFFECTIVE
DATE") on which the Agent notifies Newco 2 and the Finance Parties
that the Agent has received the documents and evidence specified in
Schedule 4, in each case, in form and substance satisfactory to it
(acting reasonably), or, as the case may be, that the requirement to
provide any of such documents or evidence has been waived by the
Amendment Underwriters.
6.2 FURTHER CONDITIONS PRECEDENT
The Agent shall give notice of the occurrence of the Effective Date
under clause 6.1 unless:
6.2.1 on the date on which it would otherwise have done so, the Agent has
received actual knowledge (i) that any Default has occurred and is
continuing unremedied and unwaived or (ii) that any of the
representations and warranties in clause 3 are untrue or incorrect as
at the date they were made or (iii) that Newco 2 or any other Obligor
has committed any breach or omitted to observe any of their
respective obligations under this Agreement; or
6.2.2 on the date on which it would otherwise have done so, the Agent has
received notice from the Amendment Underwriters that (a) they are of
the opinion that since 29 April 2002 there has been a material
adverse change in the business, assets, liabilities (actual or
contingent), operations, condition or prospects (financial or
otherwise) of Newco 2 and its Subsidiaries or (b) Newco 2 or Xxxxx
Muse has breached or not complied with, in any material respect, any
term of the commitment letter dated 3 May 2002, (c) any information
provided by Xxxxx Muse, Newco 2, the businesses which are the subject
of the Second Acquisitions, the Second Vendors or any of their
respective advisers (either orally or in writing) to the Amendment
Arrangers, the Amendment Underwriters or their respective advisers is
materially inaccurate such that, if such information had been
accurate when provided, it could reasonably be expected to have been
relevant to the decisions of the Amendment Arrangers and the
Amendment Underwriters to arrange or underwrite the Facilities or (d)
Xxxxx Muse, Newco 2, the Second Vendors or any of their respective
advisers have failed to disclose any facts or information to the
Amendment Arrangers or the Amendment Underwriters which could
reasonably be expected to be relevant to their decisions to arrange
or underwrite the Facilities: or
6.2.3 such date is after 30 June 2002,
in any which event the Agent shall only give such notice if expressly
instructed in writing by the Amendment Underwriters to do so.
7 MISCELLANEOUS
7.1 CONTINUATION OF PRINCIPAL AGREEMENT
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Save as amended by this Agreement, the provisions of the Principal
Agreement shall continue in full force and effect and the Principal
Agreement and this Agreement shall be read and construed as one
instrument.
7.2 SECURITY DOCUMENTS
Each member of the Charging Group confirms that its respective
obligations under the Security Documents continue in full force and
effect (and guarantee and secure (as appropriate) the Facilities as
amended and increased by this Agreement) notwithstanding the
amendment and restatement of the Principal Agreement pursuant to this
Agreement and the other transactions contemplated by this Agreement,
other than in the case of the Dutch law Security Documents that are
to be confirmed by the Dutch law Security Documents referred to in
paragraphs 4.3 and 4.4 of Schedule 4.
7.3 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
the different parties on separate counterparts, each of which when so
executed and delivered shall be an original but all counterparts
shall together constitute one and the same instrument.
7.4 THIRD PARTY RIGHTS
No term of this Agreement (except for clause 5.3) is enforceable
under the Contracts (Rights of Third Parties) Act 1999 by a person
who is not a party to this Agreement. Clause 5.3 may be enforced by
an Indemnified Person subject to the prior written consent of the
Finance Party which is an Affiliate of that Indemnified Person or
which has (or whose Affiliates have) employed that Indemnified Person
or on whose behalf (or on whose Affiliate's behalf) that Indemnified
Person has acted (as the case may be). The parties to this Agreement
may, however, at any time, by agreement, vary or rescind this
Agreement without the consent of any other Indemnified Person.
7.5 FINANCE DOCUMENT
The parties agree that this Agreement is a Finance Document.
7.6 FINANCE PARTIES' CONSENT
The Finance Parties confirm their consent to the entry into of the
Second Transaction Documents in the agreed form.
7.7 XXXXX MUSE
No past, present or future director, officer, employee, member,
shareholder, incorporator, partner or Affiliate of Xxxxx Muse or any
Affiliate thereof (except for Newco 2, the other Acquisition Parties,
their respective Subsidiaries and any other person party to a Finance
Document) shall have any liability for any obligation of such person
under this Agreement or for any claim based on, in respect of or by
reason of such obligations or their creation.
8 GOVERNING LAW AND JURISDICTION
8.1 LAW
9
This Agreement shall be governed by English law.
8.2 SUBMISSION TO JURISDICTION
The parties to this Agreement agree for the benefit of the Finance
Parties that:
8.2.1 if any party has any claim against any other arising out of or in
connection with this Agreement such claim shall (subject to clause
8.2.3) be referred to the High Court of Justice in England, to the
jurisdiction of which each of the parties irrevocably submits;
8.2.2 the jurisdiction of the High Court of Justice in England over any
such claim against any Bank Finance Party shall be an exclusive
jurisdiction and no courts outside England shall have jurisdiction to
hear or determine any such claim;
8.2.3 nothing in this clause 8.2 shall limit the right of any Finance Party
to refer any such claim against any Obligor to any other court of
competent jurisdiction outside England, to the jurisdiction of which
each Obligor hereby irrevocably agrees to submit, nor shall the
taking of proceedings by any Finance Party before the courts in one
or more jurisdictions preclude the taking of proceedings in any other
jurisdiction whether concurrently or not; and
8.2.4 each Obligor irrevocably waives any objection to proceedings in the
courts mentioned in this clause 8.2 and any claim on the grounds of
forum non conveniens.
8.3 NEWCO 2 FOR SERVICE OF PROCESS
Each Obligor not incorporated in England and Wales irrevocably
designates, appoints and empowers Newco 2 at Hillsdown House, 00
Xxxxxxxxx Xxxx Xxxxxx, Xxxxxx XX0 IQD to receive for it and on its
behalf service of process issued out of the High Court of Justice in
England in relation to any claim arising out of or in connection with
this Agreement and Newco 2 irrevocably and unconditionally accepts
such appointment and each similar appointment of Newco 2 as an
English process agent made by any Obligor under any other Finance
Document from time to time.
IN WITNESS whereof the parties hereto have caused this Agreement to be duly
executed on the day and year first above written.
10
[Execution particulars not restated]
11
NEWCO 2
SIGNED for and on behalf of )
PREMIER FINANCING LIMITED ) /s/ Premier Financing Limited
by: )
(with authority to the Agent to incorporate into the
original document)
THE WORKING CAPITAL BORROWER
SIGNED for and on behalf of )
PREMIER FINANCING LIMITED ) /s/ Premier Financing Limited
by: )
(with authority to the Agent to incorporate into the
original document)
THE ANCILLARY FACILITIES BORROWER
SIGNED for and on behalf of )
PREMIER FINANCING LIMITED ) /s/ Premier Financing Limited
by: )
(with authority to the Agent to incorporate into the
original document)
THE CHARGING GROUP
SIGNED for and on behalf of )
XXXXXX GROUP LIMITED ) /s/ Xxxxxx Group Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
CADISMARK HOUSEHOLD PRODUCTS LIMITED ) /s/ Cadismark Household
by: ) Products Limited
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
XXXXXXX XXXXXXX LIMITED ) /s/ Xxxxxxx Xxxxxxx Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
COUNTRY FARMS LIMITED ) /s/ Country Farms Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
C & TH (CALNE) LIMITED ) /s/ C&TH (Calne) Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
CURF FARMS (CHATTERIS) LIMITED ) /s/ Curf Farms (Chatteris)
by: ) Limited
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
EQUITY INVESTMENT & MANAGEMENT LIMITED ) /s/ Equity Investment &
by: ) Management Limited
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
FMC (MEAT) LIMITED ) /s/ FMC (Meat) Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
FORMWOOD GROUP LIMITED ) /s/ Formwood Group Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
FORMWOOD GROUP (UK) LIMITED ) /s/ Formwood Group (UK) Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
H (BARNSTAPLE) LIMITED ) /s/ H (Barnstaple) Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
H (ELMSWELL) LIMITED ) /s/ H (Elmswell) Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
HILLSDOWN AMBIENT FOODS GROUP LIMITED ) /s/ Hillsdown Ambient
by: ) Foods Group Limited
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
HILLSDOWN DISTRIBUTION LIMITED ) /s/ Hillsdown Distribution
by: ) Limited
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
HILLSDOWN EUROPE LIMITED by: ) /s/ Hillsdown Europe Limited
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
HILLSDOWN HOLDINGS FRANCE SAS ) /s/ Hillsdown Holdings France
by: ) SAS
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
HILLSDOWN HOLDINGS QUEST LIMITED ) /s/ Hillsdown Holdings Quest
by: ) Limited
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
HILLSDOWN HOLLAND B.V. ) /s/ Hillsdown Holland B.V.
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
HILLSDOWN INTERNATIONAL LIMITED ) /s/ Hillsdown International
by: ) Limited
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
HILLSDOWN INVESTMENTS LIMITED ) /s/ Hillsdown Investments
by: ) Limited
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
HILLSDOWN PRODUCE LIMITED ) /s/ Hillsdown Produce Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
HILLSDOWN UK LIMITED ) /s/ Hillsdown UK Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
H.I.T. INVESTMENTS LIMITED ) /s/ H.I.T. Investments Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
H L FOODS LIMITED ) /s/ H L Foods Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
X.X. XXXX LIMITED ) /s/ X.X. Xxxx Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
XXXXXX LIMITED ) /s/ Xxxxxx Limited
by:
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
XXXXXX XXXX B.V. ) /s/ Xxxxxx Xxxx B.V.
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
KINGSDOWN LEASING LIMITED ) /s/ Kingsdown Leasing Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
LAMBERDE PROPERTIES LIMITED ) /s/ Lamberde Properties Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
XXXXXXX XXXX X.X. ) /s/ Xxxxxxx Xxxx X.X.
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
MBM MOSSPAK LIMITED ) /s/ MBM Mosspak Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
MBM PRODUCE LIMITED ) /s/ MBM Produce Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
MELROSES LIMITED ) /s/ Melroses Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
NORTHWEST PRIME INVESTMENTS LIMITED ) /s/ Northwest Prime
by: ) Investments Limited
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
PREMIER BRANDS FRANCE S.A. ) /s/ Premier Brands France S.A.
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
PREMIER BRANDS LIMITED ) /s/ Premier Brands Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
PREMIER FINANCING LIMITED ) /s/ Premier Financing Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
PREMIER INTERNATIONAL FOODS UK LIMITED ) /s/ Premier International
by: ) Foods UK Limited
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
R FINANCIAL SERVICES LIMITED ) /s/ R Financial Services
by: ) Limited
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
RIDGWAYS LIMITED ) /s/ Ridgways Limited
by: )
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
XXXXXX XXXXXX & SONS (EST. 1849) LIMITED ) /s/ Xxxxxx Xxxxxx & Sons
by: ) (Est. 1849) Limited
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
XXXX MANCHETT & TILL LIMITED ) /s/ Xxxx Xxxxxxxx & Till
by: ) Limited
(with authority to the Agent to incorporate into the
original document)
SIGNED for and on behalf of )
RUGBY SECURITIES LIMITED ) /s/ Rugby Securities Limited
by: )
(with authority to the Agent to incorporate into the
original document)
THE AMENDMENT ARRANGERS
SIGNED for and on behalf of )
X.X. XXXXXX PLC ) /s/ X.X. Xxxxxx Plc
by: )
SIGNED for and on behalf of )
BARCLAYS CAPITAL ) /s/ Barclays Capital
(THE INVESTMENT BANKING DIVISION )
OF BARCLAYS BANK PLC) )
by: )
THE AGENT
SIGNED for and on behalf of )
X.X. XXXXXX EUROPE LIMITED ) /s/ X.X. Xxxxxx Europe Limited
by: )
and authorised on behalf of:
ABBEY NATIONAL TREASURY SERVICES
BANCO ESPIRITO SANTO S.A.
BANK OF IRELAND INTERNATIONAL FINANCE LIMITED
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
BAYERISCHE HYPO-UND VEREINSBANK AG
BNP PARIBAS
CITIBANK N.A.
DEUTSCHE BANK AG
DUCHESS I CDO X.X.
XXXX STREET CAPITAL DEBT MANAGEMENT LIMITED
GMAC COMMERCIAL CREDIT LIMITED
HARBOURMASTER LOAN CORPORATION B.V.
INTERCONTINENTAL CDO S.A.
INTESA BCI SPA
KBC BANK N.V.
LEVERAGED FINANCE EUROPE CAPITAL I BV
LLOYDS TSB BANK PLC
METROPOLITAN LIFE INSURANCE COMPANY
XXXXXX XXXXXXX
NATWEST GLOBAL FINANCIAL MARKETS
SAN PAOLO BANK SPA
SCOTIABANK EUROPE PLC
SINGER AND XXXXXXXXXXX LIMITED
SUMITOMO TRUST AND BANKING CO. LTD
THE MITSUBISHI TRUST AND BANKING CORP.
THE UNITED BANK OF KUWAIT LTD
CERTAIN OTHER FINANCE PARTIES
SIGNED for and on behalf of )
X.X. XXXXXX PLC ) /s/ X.X. Xxxxxx PLC
by: )
SIGNED for and on behalf of )
XX XXXXXX XXXXX BANK ) /s/ XX Xxxxxx Xxxxx Bank
by: )
SIGNED for and on behalf of )
BARCLAYS BANK PLC ) /s/ Barclays Bank PLC
by: )
THE SECURITY AGENT
SIGNED for and on behalf of )
X.X. XXXXXX EUROPE LIMITED ) /s/ X.X. Xxxxxx Europe Limited
by: )
