Contract
[Certain information has been omitted from this exhibit because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed. Omissions are marked [***].]
Execution Version
Exhibit 10.2
Dated 5 November 2020 | ||
in respect of the SYNDICATED L/G FACILITY AGREEMENT EUR 175,000,000 originally dated 8 March 2018 (as amended and restated on 4 September 2019 and as amended on 10 January 2020 and 19 May 2020) XXXXXXXXXXX, INC. AND CERTAIN OF ITS SUBSIDIARIES arranged by COMMERZBANK AKTIENGESELLSCHAFT (as Arranger with COMMERZBANK FINANCE & COVERED XXXX X.X. (as Agent) | ||
FOURTH AMENDMENT AND RESTATEMENT AGREEMENT | ||
 Die Welle Xxxxxxxxx 00 00000 Xxxxxxxxx xx Xxxx Tel: +00.00.0000.000 xxx.xx.xxx | ||
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CONTENTS
Clause Page
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This Amendment and Restatement Agreement (this "Agreement") is made between the following parties:
(1)XXXXXXXXXXX, INC. (the "Company");
(2)THE SUBSIDIARIES of the Company listed in Part 1 (The Obligors) of Schedule 1 (The Parties) as borrowers (together with the Company the "Borrowers");
(3)THE SUBSIDIARIES of the Company listed in Part 1 (The Obligors) of Schedule 1 (The Parties) as guarantors (together with the Company the "Guarantors");
(4)COMMERZBANK AKTIENGESELLSCHAFT as coordinator, mandated lead arranger and bookrunner (the "Arranger");
(5)THE FINANCIAL INSTITUTIONS listed in Part 2 (The Lenders) of Schedule 1 (The Parties) as lenders (the "Lenders") and as issuing banks; and
(6)COMMERZBANK FINANCE & COVERED XXXX X.X. as agent of the other Finance Parties (the "Agent").
The parties listed under no. (1) to (6) above are collectively referred to as the "Parties".
Whereas:
ii.This Agreement is supplemental to and amends and restates, with effect from the Effective Date (as defined below), the syndicated L/G facility agreement originally dated 8 March 2018, as amended and restated on 4 September 2019 and as further amended on 10 January 2020 and 19 May 2020 between the Company, the Borrowers, the Guarantors, the Arranger, the Lenders and the Agent (the "Existing Facility Agreement").
iii.In accordance with the Existing Facility Agreement, the Borrowers can draw L/Gs in an aggregate amount equal to the Total Commitments. To issue and administrate the L/Gs the Parties had been using COGS (as defined below). The Parties wish (i) to change from COGS to another Electronic Platform (as defined below) and (ii) to release the Agent in his role as the COGS Agent (as defined below) from any and all obligations under the Existing Facilities Agreement.
iv.The Parties wish to amend and restate the Existing Facility Agreement, with effect from the Effective Date (as defined below), as at the date hereof on the terms and subject to the conditions set out in this Agreement.
It is agreed as follows:
1.Definitions and Interpretation
a.Definitions
Unless a contrary indication appears, a term defined in the Amended and Restated Facility Agreement (as defined below) has the same meaning in this Agreement. In addition:
"Amended and Restated Facility Agreement" means the Existing Facility Agreement as amended and restated by this Agreement.
"COGS Agent" means any services provided by Commerzbank Finance & Covered Xxxx X.X. in its capacity as the Agent in connection with the issuance and administration of the L/Gs.
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"COGS Agreement" means the agreement between the Parties to (i) use COGS for the issuance and administration of L/Gs under the Existing Facility Agreement and (ii) to issue and administer L/Gs in accordance with the COGS Conditions (as defined in the Existing Facility Agreement).
"Effective Date" shall have the meaning attributed to such term in Clause 2.1 below.
"L/G Data" means:
(i)the Base Currency Amount of all outstanding L/Gs as of the Effective Date
(ii)the aggregate Base Currency Amount of all outstanding L/Gs issued on behalf of the Company as of the Effective Date;
(iii)the aggregate Base Currency Amount of all outstanding L/Gs issued in an Optional Currency not being either USD, GBP or CHF as of the Effective Date;
(iv)all relevant information (including the name of the Issuing Bank, the beneficiary of the L/G, the type of L/G, the L/G amount, the date of issuance or prolongation and the initially fixed maturity date or Commercial Lifetime (and if applicable, any prolongation thereof) of such L/G) with respect to any L/G outstanding; and
(v)the Base Currency Amount of all commitment fees and L/G fees accrued for the Issuing Banks.
b.Construction
In this Agreement any reference to a "Clause" or a "Schedule" is, unless the context otherwise requires or otherwise indicated, a reference to a Clause of or a Schedule to this Agreement.
The principles of construction set out in clause 1.2 (Construction) of the Existing Facility Agreement shall be incorporated into this Agreement, mutatis mutandis, as if such clause was set out in full save that references in the Existing Facility Agreement to "this Agreement" shall be construed as references to the Amended and Restated Facility Agreement.
c.Designation
In accordance with the Existing Facility Agreement, each of the Company and the Agent designate this Agreement as a Finance Document.
2.Changes to the L/G Facilities
a.The Company shall notify the Agent in writing upon the Electronic Platform being available and operational (the "Electronic Platform Notification"). This Agreement shall become effective on 16 November 2020 (the "Effective Date"), provided that:
(i)the Agent has received the Electronic Platform Notification; and
(ii)the Agent has received a written notification from the Company confirming that the Company has entered into an Electronic Platform Agreement with each Issuing Bank substantially in the form attached hereto as Schedule 2 (Form of Electronic Platform Agreement).
If the Agent does not receive the Electronic Platform Notification and the notification set out in paragraph (b) above until 9 November 2020, the Effective Date will not occur and the Parties shall agree on a new Effective Date.
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b.The Parties agree as follows:
(i)the Company shall not submit any Utilisation Requests between three (3) Business Days prior to the Effective Date and the Effective Date under the Amended and Restated Facility Agreement;
(ii)as of the Effective Date, the Commerzbank Online Guarantee System, accessible through the internet domain xxx.xxxx.xxxxxxxxxxx.xx ("COGS") shall solely be used on a read only basis; after 90 days from Effective Date COGS shall no longer be used;
(iii)that the COGS Agreement shall terminate with effect of the Effective Date;
(iv)as of the Effective Date, the COGS Agent is released from its rights and obligations as COGS Agent and of any and all of its obligations in relation to COGS under the Finance Documents; and
(v)the Company shall transfer and upload the L/G Data to the Electronic Platform as of the Effective Date.
3.Amendment and Restatement of Existing Facility Agreement
With effect from and subject to the occurrence of, the Effective Date, the Existing Facility Agreement shall be amended and restated so that it shall be read and be construed for all purposes as set out in Schedule 3 (Amended and Restated Facility Agreement).
4.Representations and Warranties
(i)Each Obligor on the date of this Agreement and the Effective Date makes the Repeated Representations:
(1)as if each reference in those representations to "this Agreement" or "the Finance Documents" includes a reference to (i) this Agreement and (ii) the Amended and Restated Facility Agreement and (iii) the definition of Finance Document as amended in the Amended and Restated Facility Agreement; and
(2)by reference to the facts and circumstances existing on the Effective Date, respectively.
(ii)Each Obligor on the Effective Date represents and warrants that no Event of Default has occurred and is continuing or would occur as a consequence of this Agreement.
5.Miscellaneous
a.Partial Invalidity; Remedies and Waivers
The provisions of Clause 32 (Partial Invalidity) and Clause 33 (Remedies and Waivers) of the Existing Facility Agreement are hereby incorporated by reference into this Agreement and shall apply herein mutatis mutandis.
b.Governing Law
This Agreement and any non-contractual obligations arising out of or in connection with this Agreement are governed by German law and the Company submits to the jurisdiction of the courts of Frankfurt am Main, Germany in the terms set out in clause 40 (Enforcement) of the
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Existing Facility Agreement (as if references in that clause 40 (Enforcement) to "this Agreement" were references to this Agreement).
6.CONCLUSION OF THIS AGREEMENT (VERTRAGSSCHLUSS)
1.This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement. The Parties may choose to conclude this Agreement by an exchange of signed signature page(s), transmitted by any means of telecommunication (telekommunikative Übermittlung) such as by way of fax or electronic photocopy.
2.If the Parties choose to conclude this Agreement pursuant to (a) above, they will transmit the signed signature page(s) of this Agreement to Xxxxxx & Xxxxxxx LLP, Xxxxxxxxx 00, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx, for the attention of Xxxxxx Xxxxx (xxxxxx.xxxxx@xx.xxx) and/or Xxxxxxx Xxxxx (xxxxxxx.xxxxxx@xx.xxx) (each a "Recipient"). This Agreement will be considered concluded once a Recipient has received the signed signature page(s) (Zugang der Unterschriftsseite(n)) from all Parties (whether by way of fax, electronic photocopy or other means of telecommunication) and at the time of the receipt of the last outstanding signature page(s) by any of the Recipients.
3.For the purposes of paragraphs (a) to (c) only, the Parties appoint each Recipient as their attorney (Empfangsvertreter) and expressly allow (gestatten) such Recipient to collect the signed signature page(s) from all and for all Parties to this Agreement. For the avoidance of doubt, no Recipient will have further duties connected with its position as Recipient. In particular, each Recipient may assume the conformity to the authentic original(s) of the signature page(s) transmitted to it by means of telecommunication, the genuineness of all signatures on the original signature page(s) and the signing authority of the signatories.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
Schedule 1.
The Parties
Part a.
The Obligors
| Name of Borrower | Registration number (or equivalent, if any) | ||||
| Xxxxxxxxxxx, Inc. | One Batesville Xxxxxxxxx Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxx Secretary of State #2007110100396 | ||||
| Coperion GmbH | HRB 23976 (Local Court of Stuttgart) Theodorstraße 10, 70469 Stuttgart | ||||
| Coperion KTron (Schweiz) GmbH | CHE105.883.566 Xxxxxxxxxxx 00/00 XX0000 Xxxxxxxxxx, Xxxxxxxxxxx | ||||
| Rotex Europe Ltd | 04307924 (Registered with Companies Xxxxx) Xxxxxx Xxxx Xxxxx Xxxxxxxxxx Xxxx Xxxxxxx, Xxxxxxxx XX0 0XX, Xxxxxxx | ||||
| Xxxx GmbH | HRB 102566 (Local Court of Frankfurt am Main) Xxxx-Twiete 1 21514 Büchen | ||||
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| Name of Guarantor | Registration number (or equivalent, if any) | ||||
| Xxxxxxxxxxx, Inc. | One Batesville Xxxxxxxxx Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxx Secretary of State #2007110100396 | ||||
| Batesville Manufacturing, Inc. | One Batesville Xxxxxxxxx Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxx Secretary of State #1998090618 | ||||
| Batesville Casket Company, Inc. | One Batesville Xxxxxxxxx Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxx Secretary of State #2008022200482 | ||||
| Batesville Services, Inc. | One Batesville Xxxxxxxxx Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxx Secretary of State #192822-024 | ||||
| Process Equipment Group, Inc. | 00 Xxxx Xxxxx Xxxxxx Xxxxxxx, Xxx Xxxxxx 00000 Xxx Jersey Secretary of State #5278301800 | ||||
| K-Tron Investment Co. | 000 Xxxxx Xxxx Xxxxx 000 Xxxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxx Secretary of State #2250493 | ||||
| Coperion K-Tron Xxxxxx, Inc. | 0000 Xxxxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxx Secretary of State #0853369 | ||||
| TerraSource Global Corporation | 0000 Xxxxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxx Secretary of State #2105312 | ||||
| Rotex Global, LLC | 0000 Xxxxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxx Secretary of State #4312111 | ||||
| Coperion Corporation | 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000 Xxxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxx Secretary of State #0780901 | ||||
| Red Valve Company, Inc. | 000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX, Xxxxxx Xxxxx Xxxxxxxx, Xxxxxxxxxxxx 00000 # 300220 | ||||
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Part b.
The Lenders
| Name of Lender | Commitment in EUR | Treaty Passport Scheme reference number and jurisdiction of tax residence (if applicable) | ||||||
| Commerzbank Aktiengesellschaft | 80,000,000.00 | 7/C/25382/DTTP | ||||||
| HSBC Trinkaus & Xxxxxxxxx XX | 40,000,000.00 | 7/H/275147/DTTP | ||||||
Skandinaviska Enskilda Xxxxxx XX (publ) Frankfurt Branch | 35,000,000.00 | 73/S/42621/DTTP | ||||||
| Sumitomo Mitsui Banking Corporation | 20,000,000.00 | 43/S/274647/DTTP | ||||||
| TOTAL | 175,000,000.00 | |||||||
Schedule 2.
Form of Electronic Platform Agreement
USE OF @GLOBALTRADE PLATFORM FOR EXCHANGE OF TRADE FINANCE INFORMATION
This Electronic Platform Agreement (the “Agreement”) is made between
(1) [ ] herein after referred to as (“Company”);
(2) [ ] herein after referred to as the Borrowers (together with the Company, the “Borrowers”); and
(3) [ ] herein after referred to as Issuing Banks (together with any new Issuing Bank subsequently acceding to this Agreement, the “Issuing Banks”).
The Borrowers and the Issuing Banks are individually referred to as “Party” and jointly as “Parties”.
PREAMBLE
Whereas the Company has entered into the EUR 175.000.000 Syndicated L/G Facility Agreement with the Issuing Banks originally dated 18 March 2018 (as amended and restated on 4 September 2019, on 10 January 2020 and on 19 May 2020 and as further amended and restated by a Fourth Amendment And Restatement Agreement (the “Fourth Amendment Agreement”) on or about the date hereof ((including any further amendments) the “Facility Agreement”).
In consideration of the mutual promises and covenants made herein, the Parties agree as follows:
Schedule 1.DEFINITIONS
1.1 In this Agreement:
“Effective Date” shall have the meaning set to this term in the Fourth Amendment Agreement.
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1.2 Unless defined in this Agreement or the context otherwise requires, terms and expressions defined in the Facility Agreement shall have the same meaning when used in this Agreement.
Schedule 2.BACKGROUND & PURPOSE
In the effort to streamline its trade finance communication with the Issuing Banks the Company has adopted @GlobalTrade Multi-bank Trade Finance Platform (the “Platform Provider” or “GTC”) for managing bank guarantees (“@GlobalTrade”, the “Platform”). This Agreement is an “Electronic Platform Agreement” in the meaning of the Facility Agreement and @Global Trade is an “Electronic Platform” in the meaning of the Facility Agreement.
Subject to the occurrence of the Effective Date, the Parties agree to use the Platform for administration and handling of all Utilisation Requests under the Facility Agreement and the calculation of the L/G fees in accordance with clause 11.2 (L/G fee) of the Facility Agreement.
Schedule 3.GUARANTEE ISSUANCE SERVICE
The service provided by the Platform Provider via @Global Trade enables the Borrowers to digitise the handling of outgoing L/Gs with its Issuing Banks using the Internet.
From the occurrence of the Effective Date, the Borrowers will use the Platform to initiate applications for L/Gs and will select which Issuing Bank will issue them. The selected Issuing Bank will receive an email notification from the Platform when a new L/G application is ready for processing. The Issuing Bank will log onto the Platform using its username and password to retrieve the L/G application. Once the L/G application is received and all relevant L/G Requirements as set out in the Facility Agreement (including but not limited to conditions set out in clause 5.3 (Issue of L/Gs) and/or 5.4 (Extension of L/Gs) and/or (cl. 5.5 Reversal and reduction of L/Gs)) have been met, the Issuing Bank will follow the process of issuing an L/G in its back office system. The Issuing Bank will thereafter upload a digital copy of the actual L/G as a PDF into the Platform. The Issuing Bank will record its reference number, fees, out of pocket expenses and other relevant information pertaining to the guarantee as may be required by the Platform’s mandatory fields. The Issuing Bank will perform similar steps when processing amendment requests and claims received from the Platform. Extension or pay requests as well as reversal and reductions will also be processed through the Platform.
Please note, that the Platform is web-based and is hosted in a ISO 27001 Certified data center located in Toronto, Canada. There is no cost for the Issuing Banks to access the Platform. The Company will register each Issuing Bank with the Platform and will provide the first user with its username and password. The Issuing Bank may choose to register additional users and configure a 2 eye or 4 eye approval process.
The Issuing Bank may choose to use the Platform’s IP Filtering functionality to restrict access to the Platform from computers located outside the Issuing Bank’s office. This additional security measure is an optional feature that the Company will enable upon Issuing Banks’ request.
a..ELECTRONIC COMMUNICATION
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The Borrowers shall deliver any Utilisation Request to the Issuing Banks by electronic transfer only but subject to the provisions set out in clause 5 (Utilisation) of the Facility Agreement.
During the term of the Facility Agreement, but subject to the occurrence of the Effective Date, each Issuing Bank herewith irrevocably waives its right to require the Borrowers to deliver any request via fax or by letter for any such transaction which the Borrowers can administer by using the Platform notwithstanding any contradictory clauses in the Facility Agreement.
This does not apply if the Platform is deemed to be “not available” pursuant to clause 1.2 (f) (Construction) of the Facility Agreement. In this case all Utilisation Requests need to be handled in accordance with clause 5 (Utilisation) under the terms set out therein if the Platform is not available. Each Utilisation Request made by the Borrowers via fax or by letter and all the L/Gs issued by the relevant Issuing Bank thereunder have to be recorded into the Platform by the relevant Borrower (or the Company on its behalf) and the relevant Issuing Bank without undue delay as soon as the technical error, defect or operating error has been fixed.
b..RESPONSIBILITIES OF THE COMPANY
The Company shall register the Issuing Banks with the Platform and will arrange for GTC to provide training material. The Company shall provide free access to the Platform to the Issuing Banks for the duration of this Agreement and the Facility Agreement.
The Company shall inform the Platform Provider about (i) adjustments to the L/G Fee Rate and (ii) the initial Commitment according to the Facility Agreement.
c..RESPONSIBILITIES OF THE BORROWERS
The Borrowers shall request issuance of L/Gs and the respective amendments from the Issuing Banks through the Platform. The Company shall also use the Platform for handling reductions, extend or pay requests and claims. The Borrowers (or the Company on their behalf) shall provide or shall arrange GTC to provide currency exchange rates via the Electronic Platform immediately prior to the date on which a Report is prepared representing the Spot Rate of Exchange of that day. Electronic communication received through the Platform the Borrowers will accept as original communication without paper confirmation to follow.
d..RESPONSIBILITIES OF THE ISSUING BANKS
The Issuing Banks shall use the Platform as its primary communication channel with the Borrowers for handling L/Gs, subject to the provisions for handling L/Gs as set out in the Facility Agreement. The Issuing Banks shall access the Platform upon receipt of email notification that a new L/G request is available. Each Issuing Bank will use its best efforts to issue a new L/G or an amendment to an existing L/G soonest from the receipt of notification from the Platform providing there is no clarification required on the wording of the L/G. Once the L/G is legally issued an Issuing Bank shall promptly set the status of the L/G to “Issued”.
The Issuing Bank is obliged to notify the Platform Provider of any changes of its Commitments without unreasonable delay.
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Furthermore an Issuing Bank shall ensure to release L/Gs promptly within the Platform. Any delay of more than 5 Business Days in releasing L/Gs which leads to a wrong fee calculation can be claimed by the Company from the respective Issuing Bank. For auditing reason the Company may request a reconciliation between the Issuing Bank´s records and balances shown within the Platform.
Schedule 4.REPRESENTATIONS
Each Party represents and warrants
(i)that it has full capacity and ability to enter into this Agreement and fulfil its obligations hereunder; and
(ii)that this Agreement and all performance there under is in compliance with laws and regulations applicable to that party.
Schedule 5.TERM AND TERMINATION
a..This Agreement shall terminate
4.automatically and without special notice to any other Party in case any Party ceases being a party to the Facility Agreement (as amended from time to time) and on the same date as it is released from its rights and obligations under the Facility Agreement; or
5.on the date specified by either Party in a written notice to all other Parties that the respective Party wishes to terminate the arrangements as set out in this Agreement. This date shall be not less than 60 days after the date of this notice.
b..In case of termination of this Agreement under Clause 5.1 (a) above such termination shall only apply with respect to the Party being released from the Facility Agreement.
c..In case of termination of this Agreement under Clause 5.1(b) above termination shall be without prejudice to the obligations of any Party under the Facility Agreement.
Schedule 6.ASSIGNMENT
6.
The Borrowers may not assign its obligations under this Agreement without the prior written approval by the Issuing Banks.
Schedule 7.NOTICES AND OTHER COMMUNICATIONS
Any and all notices, statements, demands or other communications hereunder may be given by a party to the other to the addresses stated below;
In case to the Issuing Banks:
[ ]
In case to the Company:
[ ]
In case to the Platform Provider:
[ ]
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Schedule 8.LIMITATION OF LIABILITY
Clause 5.2 (b) (Utilisation) of the Facility Agreement shall apply mutatis mutandis to this Agreement.
Schedule 9.MISCELLANEOUS
9.1 Other provisions
Clauses 35 (Confidentiality), 39 (Governing law), 40 (Enforcement), 41 (waiver of jury trial) of the Facility Agreement shall apply mutatis mutandis to this Agreement.
9.2 Incorporation of additional agreements
Additional services may be agreed between the Parties through the execution of additional order forms, each of which shall be incorporated into this Agreement by reference and shall be effective as of the date provided thereon.
9.3 Conflicts
In case of conflict between any provision set out in this Agreement and the terms set out in the Facility Agreement for handling L/Gs, the terms of the Facility Agreement shall prevail over this Agreement.
Schedule 10.CONCLUSION OF THIS AGREEMENT (VERTRAGSSCHLUSS)
The Parties may choose to conclude this Agreement by an exchange of signed signature page(s), transmitted by any means of telecommunication (telekommunikative Übermittlung) such as by way of fax or electronic photocopy.
If the Parties choose to conclude this Agreement pursuant this Clause 10, they will transmit the signed signature page(s) of this Agreement to [ ] (each a "Recipient"). The Agreement will be considered concluded once one Recipient has actually received the signed signature page(s) (Zugang der Unterschriftsseite(n)) from all Parties (whether by way of fax, electronic photocopy or other means of telecommunication) and at the time of the receipt of the last outstanding signature page(s) by one Recipient.
For the purposes of this Clause 10 only, the Parties appoint each Recipient as their attorney (Empfangsvertreter) and expressly allow (gestatten) each Recipient to collect the signed signature page(s) from all and for all Parties. For the avoidance of doubt, each Recipient will have no further duties connected with its position as Recipient. In particular, each Recipient may assume the conformity to the authentic original(s) of the signature page(s) transmitted to it by means of telecommunication, the genuineness of all signatures on the original signature page(s) and the signing authority of the signatories.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
[Signature pages to be attached]
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Schedule 11.
The Amended and Restated Facility Agreement
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| Execution Version | ||
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XXXXXXXXXXX, INC. AND CERTAIN OF ITS SUBSIDIARIES arranged by COMMERZBANK AKTIENGESELLSCHAFT (as Arranger) with COMMERZBANK FINANCE & COVERED XXXX X.X. (as Agent) | ||
SYNDICATED L/G FACILITY AGREEMENT EUR 175,000,000 (as amended and restated) | ||
 Die Xxxxx Xxxxxxxxx 00 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx Xxx: +00.00.0000.0000 xxx.xx.xxx Contact: Xxxxxxx Xxxxx | ||
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Table of Contents
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THIS AGREEMENT is dated 8 March 2018 as amended and restated on 4 September 2019, as amended on 10 January 2020, 19 May 2020 and on the Effective Date (the "Agreement") and made between:
1.XXXXXXXXXXX, INC. (the "Company");
2.THE SUBSIDIARIES of the Company listed in Part 1 (The Original Obligors) of Schedule 1 (The Original Parties) as original borrowers (together with the Company the "Original Borrowers");
3.THE SUBSIDIARIES of the Company listed in Part 1 (The Original Obligors) of Schedule 1 (The Original Parties) as original guarantors (together with the Company the "Original Guarantors");
4.COMMERZBANK AKTIENGESELLSCHAFT as coordinator, mandated lead arranger and bookrunner (the "Arranger");
5.THE FINANCIAL INSTITUTIONS listed in Part 2 (The Original Lenders) of Schedule 1 (The Original Parties) as lenders (the "Original Lenders") and as issuing banks; and
6.COMMERZBANK FINANCE & COVERED XXXX X.X. as agent of the other Finance Parties (the "Agent").
IT IS AGREED as follows:
1.DEFINITIONS AND INTERPRETATION
a.Definitions
In this Agreement:
•"Acceptable Bank" means a bank or financial institution with a rating for its longterm unsecured and non creditenhanced debt obligations assigned by Xxxxx'x Investor Services, Inc., Standard & Poor's Corporation or any other reputable rating agency, such rating and agency to be reasonably acceptable to the relevant Issuing Bank.
•"Accession Letter" means a document substantially in the form set out in Schedule 7 (Form of Accession Letter).
•"Additional Borrower" means a company which becomes an Additional Borrower in accordance with Clause 24 (Changes to the Obligors).
•"Additional Commitment Request" means a notice substantially in the form set out in Schedule 4 (Form of Additional Commitment Request).
•"Additional Guarantor" means a company which becomes an Additional Guarantor in accordance with Clause 24 (Changes to the Obligors).
•"Additional Obligor" means an Additional Borrower or an Additional Guarantor.
•"Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.
•"Affiliate Borrower" has the meaning given to that term in Clause 5.8 (Affiliate of a Borrower).
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•"Agency Fee Letter" means the letter dated 1 March 2018 between the Agent and the Company setting out any of the fees referred to in Clause 11.4 (Agency Fee).
•"Anti-Corruption Laws" means all laws, rules, and regulations of any jurisdiction applicable to the Company or its Subsidiaries from time to time concerning or relating to bribery or corruption.
•"Applicable GAAP" means, in the case of the consolidated financial statements of the Company (or the Group), U.S. GAAP, and in the case of the unconsolidated financial statements of any Obligor or the consolidated financial statements of any Obligor other than the Company, the accounting principles generally accepted in its jurisdiction of incorporation from time to time.
•"Approved Fund" means any person (other than a natural person) that is regularly engaged in investing in L/G facilities and issuing L/Gs in the ordinary course of its business and that is administered or managed by:
b.a Lender;
c.an Affiliate of a Lender; or
d.an entity or an Affiliate of an entity that administers or manages a Lender.
•"Approved Jurisdiction" means the U.S., United Kingdom, any member state of the European Union, Switzerland and any other jurisdiction in which an Obligor is incorporated.
•"Attributable Indebtedness" means, on any date, in respect of any capital lease of any person, the capitalized amount thereof that would appear on the balance sheet of such person prepared as of such date in accordance with U.S. GAAP.
•"Authorisation" means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration of a Governmental Authority.
•"Availability Period" means the period from and including the date of this Agreement to and including the Termination Date.
•"Available Commitment" means a Lender's Commitment minus:
e.the Base Currency Amount of its participation in any outstanding L/Gs under the Facility; and
f.in relation to any proposed Utilisation, the Base Currency Amount of its participation in any L/Gs that are due to be issued on or before the proposed Utilisation Date,
•provided that, in relation to any proposed Utilisation, that Lender's participation in any L/Gs that are due to expire, be repaid or prepaid on or before the proposed Utilisation Date shall not be deducted from a Lender's Commitment under the Facility.
•"Available Facility" means the aggregate for the time being of each Lender's Available Commitment in respect of the Facility.
•"Bank Levy" means (i) any amount payable by any Finance Party or any of its Affiliates on the basis of, or in relation to, its balance sheet or capital base or any part of it or its liabilities or minimum regulatory capital or any combination thereof (including the German bank levy as set out in the German Restructuring Fund Act 2010
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(Restrukturierungsfondsgesetz)) and (ii) any other levy or tax in any jurisdiction levied on a similar basis or for a similar purpose, in each case only if and to the extent it has been enacted at the signing date of this Agreement or (if applicable) as at the date that Finance Party accedes to this Agreement.
•"Base Currency" means EUR.
•"Base Currency Amount" means,
g.if the Electronic Platform is available, the amount specified in the Utilisation Request (or, if the amount requested is not denominated in the Base Currency, that amount converted by the Electronic Platform into the Base Currency at the Spot Rate of Exchange on the date on which the relevant Issuing Bank approves the issuance of the L/G); or
h.if the Electronic Platform is not available, the amount specified in the Utilisation Request delivered by a Borrower to an Issuing Bank (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the relevant Issuing Bank receives the Utilisation Request in accordance with the terms of this Agreement)
and as adjusted under Clause 6 (Rebasing) and to reflect any repayment or prepayment of an L/G.
•"Bengal" means Milacron Holdings Corp., a Delaware corporation.
•"Bengal Acquisition" means the acquisition of all of the outstanding equity interests of Bengal by the Company (through the merger of its Subsidiary Bengal Holding and Bengal, with Bengal as the surviving corporation) pursuant to the Bengal Acquisition Agreement.
•"Bengal Acquisition Agreement" means the agreement and plan of merger, dated as of 12 July 2019 (together with all exhibits, schedules and disclosure letters thereto), by and among Bengal, the Company and Bengal Holding, as in effect on 12 July 2019.
•"Bengal Holding" means Bengal Delaware Holding Corporation, a Delaware corporation.
•"Bengal Refinancing" means the consummation of the refinancing of Bengal's outstanding existing indebtedness under (i) the fourth amended and restated credit and guaranty agreement, dated as of 30 April 2012, as amended and restated as of 28 March 2013, as further amended and restated as of 17 October 2014, as further amended and restated as of 14 May 2015, as further amended as of 22 March 2016, as further amended as of 28 December 2016, as further amended as of 28 February 2017, as further amended and restated as of 27 April 2018, and as further amended, restated, supplemented or otherwise modified from time to time, by and among Bengal, as holdings, Milacron LLC, as lead borrower, the other subsidiaries of Bengal party thereto as borrowers and guarantors from time to time, the lenders party thereto and Bank of America, N.A., as administrative agent and (ii) the term loan agreement, dated as of 14 May 2015, as amended as of 15 February 2017, as further amended as of 8 November 2017, and as further amended, restated, supplemented or otherwise modified from time to time, by and among Bengal, as holdings, Milacron LLC, as the borrower, the subsidiaries of Milacron LLC party thereto as guarantors from time to time, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent.
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•"Bengal Transactions" means (i) the consummation of the Bengal Acquisition and the other transactions contemplated by the Bengal Acquisition Agreement, (ii) the Bengal Refinancing and the consummation of the refinancing of any other outstanding existing indebtedness of Bengal and its subsidiaries and (iii) the payment of the fees, costs and expenses incurred by the Company, Bengal or any of their respective Subsidiaries in connection with any of the foregoing.
•"Borrower" means an Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 24 (Changes to the Obligors) and, in respect of an Ancillary Facility only, any Affiliate of a Borrower that becomes a borrower of that Ancillary Facility with the approval of the relevant Lender pursuant to Clause 5.8 (Affiliate of a Borrower).
•"Budget" means the budget for the financial year 2017/2018 plus the 3 year forecast of the Company (each on an annual consolidated basis) including a balance sheet, profit and loss statement and cash flow calculation (the profit and loss statement also including a break down on business segments).
•"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in New York City, Luxembourg and Frankfurt am Main and in relation to any Utilisation by way of issuance, or any reduction or rebasing or repayment of an L/G on which banks are open for general business at the place of the Agent and the Facility Office of the Issuing Bank.
•"Cash Cover" means the cash collateral for an L/G referred to in Clause 10 (Cash Cover).
•"Change of Control" means any person or group of persons acting in concert (other than a member of the Xxxxxxxxxxx Family Group) gains control of the Company and/ or Coperion GmbH ceases to be a whollyowned (direct or indirect) Subsidiary of the Company.
•For the purpose of this definition "control" means: (a) the ownership, directly or indirectly, beneficially or of record of the lower of (i) shares of capital stock having voting rights representing more than 50% of the aggregate outstanding shares of capital stock of the Company having voting rights or (ii) Equity Interests representing more than 40% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Company; or (b) the occupation of a majority of the seats (other than vacant seats) on the board of directors of the Company by persons who were neither (y) nominated by the board of directors of the Company nor (z) appointed by directors so nominated; and
•"a group of persons acting in concert" means two or more persons acting as a partnership, limited partnership, syndicate, or other group for the purpose of acquiring, holding, or disposing of securities of an issuer or shares of capital stock in a corporation.
•"Code" means, at any date, the US Internal Revenue Code of 1986 (or any successor legislation thereto) and the regulations promulgated and the judicial and administrative decisions rendered under it, all as the same may be in effect at such date.
•"Commercial Lifetime" means, in respect of any L/G which does not provide for a specific expiration date, the period from the date of issuance of that L/G until the expected maturity of that L/G as indicated by the Borrower in the relevant Utilisation Request determined on the basis of the lifetime of the underlying obligations.
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•"Commitment" means:
i.in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading "Commitment in EUR" in Part 2 of Schedule 1 (The Original Parties) and the amount in the Base Currency of any Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and
j.in relation to any other Lender, the amount in the Base Currency of a Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),
•in each case, for the avoidance of doubt, as reduced due to any cancellation in accordance with the terms of this Agreement.
•"Compliance Certificate" means a certificate substantially in the form set out in Schedule 9 (Form of Compliance Certificate).
•"Confidential Information" means all information relating to the Company, any Obligor, the Group and any other Subsidiary or their respective businesses, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:
k.any member of the Group or any of its advisers on its behalf; or
l.another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers on its behalf,
•in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:
(i)is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 35 (Confidentiality); or
(ii)is identified in writing at the time of delivery as nonconfidential by any member of the Group or any of its advisers; or
(iii)is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
•"Confidentiality Undertaking" means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 10 (LMA Form of Confidentiality Undertaking) or in any other form agreed between the Company and the Agent.
•"Consolidated EBITDA" has the meaning given to that term in Clause 20.1 (Financial Definitions).
•"Consolidated Indebtedness" has the meaning given to that term in Clause 20.1 (Financial Definitions).
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•"Consolidated Revenues" has the meaning given to that term in Clause 20.1 (Financial Definitions).
•"Consolidated Total Assets" has the meaning given to that term in Clause 20.1 (Financial Definitions).
•"Contractual Obligation" means, as to any person, any provision of any security issued by such person or of any agreement, instrument or other undertaking to which such person is a party or by which it or any of its property is bound.
•"Counter Guarantee" means a guarantee (or similar instrument acceptable to the relevant Issuing Bank) issued by an Acceptable Bank for the benefit of the Issuing Bank and being either substantially in the form agreed between the Company and each of the Issuing Banks prior to the date of this Agreement as attached in Schedule 14 (Form of Bank Guarantee) or otherwise in a form and substance reasonably satisfactory to that Issuing Bank and the Company.
•"Covenant Relief Period" means the period commencing on the date of the Effective Date (as defined in the Third Amendment and Restatement Agreement) and ending on January 1, 2022.
•"CTA" means the United Kingdom Corporation Tax Xxx 0000.
•"Default" means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
•"Defaulting Lender" means any Lender:
m.which has failed to issue an L/G or has notified the Agent that it will not issue an L/G in accordance with Clause 5.3 (Issue of L/Gs) or which has failed to pay a claim or has notified the Agent or the Company that it will not pay a claim in accordance with Clause 7.1 (Claims under an L/G);
n.which has otherwise rescinded or repudiated a Finance Document;
o.which has failed, within five Business Days after request by the Agent, acting reasonably, to confirm in writing that it will comply with its obligations to issue L/Gs under this Agreement provided that such Lender shall cease to be a Defaulting Lender pursuant to this paragraph (c) upon the Agent receiving such confirmation in form and substance satisfactory to it; or
p.with respect to which an Insolvency Event has occurred and is continuing,
•unless, in the case of paragraph (a) above:
(i)its failure to pay or so issue L/Gs is caused by:
(1)administrative or technical error; or
(2)a Disruption Event; and
payment is made within five Business Days of its due date; or
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(ii)the Lender is disputing in good faith whether it is contractually obliged to issue the L/G or make the payment in question.
•"Disposal" means the sale, transfer, license, lease or other disposal (including any sale and leaseback transaction) of any property by a person, including any sale, assignment (excluding any Security), transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith and "Dispose" shall be construed accordingly.
•"Disruption Event" means either or both of:
q.a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
r.the occurrence of any other event which results in a disruption (of a technical or systemsrelated nature) to the treasury or payments operations of a Party preventing that or any other Party:
(i)from performing its payment obligations under the Finance Documents; or
(ii)from communicating with other Parties in accordance with the terms of the Finance Documents,
•and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
•"Domestic Foreign Holdco Subsidiary" means a Subsidiary organised under the laws of any jurisdiction within the United States (excluding any possession or territory thereof), substantially all of the assets of which consist of the Equity Interests (including Equity Interests held through entities disregarded from their owner for U.S. Federal income tax purposes) of (and/or receivables or other amounts due from) one or more Foreign Subsidiaries that are "controlled foreign corporations" within the meaning of section 957 of the Code, so long as such Domestic Subsidiary (i) does not conduct any business or other activities other than the ownership of such Equity Interests and/or receivables and (ii) does not incur, and is not otherwise liable for, any Financial Indebtedness (other than intercompany indebtedness permitted pursuant to paragraph (b)(vii) of Clause 21.14 (Financial Indebtedness)), in each case, other than immaterial assets and activities reasonably related or ancillary thereto.
•"Domestic Subsidiary" means any Subsidiary organised under the laws of any jurisdiction within the United States (excluding any possession or territory thereof) other than any Domestic Foreign Holdco Subsidiary.
•"Effective Date" means the "Effective Date" as defined in the Fourth Amendment and Restatement Agreement.
•"Electronic Platform" means any internet communication system for the communication, processing and calculations to be made in connection with the issuance and administration of L/Gs the implementation of which shall be agreed between the Company and each Issuing Bank, and which may be replaced from time to time provided that the Company and all Issuing Banks agree to such change, provided, however, that the Parties
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hereby agree to use a multi-bank internet communication system as described above at any relevant point in time, unless the Electronic Platform is not available, during the term of this Agreement.
•Electronic Platform Agreement" means the Agreement entered into between the Company and an Issuing Bank in relation to the use of the Electronic Platform, substantially in the form attached hereto as Schedule 13.
•"Employee Plan" means an employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV or Section 303 of ERISA, or Section 412 of the Code and in respect of which an Obligor or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
•"Environmental Laws" means all laws, rules, regulations, codes, ordinances, or binding orders, decrees, judgments or injunctions, issued, promulgated or entered into by any Governmental Authority, relating to pollution or protection of the environment, preservation or reclamation of natural resources, the management, release or threatened release of or governing exposure to any Hazardous Material.
•"Environmental Licence" means any permit, license or other approval required at any time under Environmental Laws.
•"Equity Interests" means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership in a person and any warrants, options or other similar rights entitling the holder thereof to, purchase or acquire any of the foregoing provided that "Equity Interests" shall not include Financial Indebtedness that is convertible into Equity Interests.
•"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time.
•"ERISA Affiliate" means any trade or business (whether or not incorporated) that, together with the Company, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
•"ERISA Event" means:
s.any "reportable event", as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to an Employee Plan (other than an event for which any notice period is waived);
t.the failure to satisfy the "minimum funding standard" (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
u.the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Employee Plan;
v.the incurrence by the Company or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Employee Plan;
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w.the receipt by the Company or any ERISA Affiliate from the PBGC or a plan administrator of any written notice relating to an intention to terminate any Employee Plan or Employee Plans or to appoint a trustee to administer any Employee Plan;
x.the incurrence by the Company or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal of the Company or any of its ERISA Affiliates from any Employee Plan or Multiemployer Plan; or
y.the receipt by the Company or any ERISA Affiliate of any written notice, or the receipt by any Multiemployer Plan from the Company or any ERISA Affiliate of any written notice, concerning the imposition upon the Company or any of its ERISA Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in critical or endangered status, within the meaning of ERISA.
•"Event of Default" means any event or circumstance specified as such in Clause 22 (Events of Default).
•"Excluded Subsidiary" means:
z.any Domestic Foreign Holdco Subsidiary; and
aa.any Domestic Subsidiary of the Company, so long as:
(i)its acting as a Guarantor under this Agreement would violate any law, rule or regulation applicable to such Domestic Subsidiary or would be prohibited by any contractual restriction or obligation applicable to such Domestic Subsidiary; and
(ii)the Agent shall have received a certificate of a Financial Officer of the Company to the effect that, based on advice of outside counsel, such Domestic Subsidiary acting as a Guarantor under this Agreement would cause such a violation or would be so prohibited as described in the foregoing paragraph (i).
•"Existing L/G" means any standby, commercial or trade letter of credit (Akkreditive), surety (Bürgschaft) or guarantee (Garantie) excluding any surety or guarantee serving as collateral for any credit obligations (Kreditbesicherungsavale) issued under the Existing Syndicated L/G Facility Agreement entered into by a Borrower or an Affiliate of a Borrower with a Lender as listed in Schedule 15 (List of Existing L/Gs).
•"Existing Syndicated L/G Facility Agreement" means the EUR 150,000,000 syndicated multicurrency L/G facility agreement originally dated 3 June 2013 originally among, inter alios, Xxxxxxxxxxx, Inc. as the Company (as defined therein), the borrowers from time to time party thereto and guarantors from time to time party thereto, Commerzbank Aktiengesellschaft as mandated lead arranger and bookrunner, the lenders and issuing banks from time to time party thereto and Commerzbank International S.A. (now Commerzbank Finance & Covered Xxxx X.X.) as Agent of the other Finance Parties (each as defined therein) as amended from time to time.
•"Existing US Facility Agreement" means that certain third amended and restated credit agreement, dated as of 28 August 2019, among the Company, the borrowers from time to time party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders from time to time party thereto.
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•"Face Amount" means the principal face amount of an L/G in the Base Currency or, as the case may be, any Optional Currency in which such L/G has been issued, such amount representing the maximum liability of the Issuing Bank under such L/G.
•"Facility" means the letter of credit facility made available under this Agreement as described in Clause 2.1 (The Facility).
•"Facility Office" means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement.
•"Farm Agreement" means the certain tenants in common agreement dated on or about 21 March 2008 between HillRom Company, Inc., an Indiana corporation, and BCC JAWACDAH Holdings, LLC, an Indiana limited liability company.
•"FATCA" means:
ab.sections 1471 to 1474 of the Code or any associated regulations;
ac.any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
ad.any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
•"FATCA Application Date" means:
ae.in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
af.in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or
ag.in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,
•or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement.
•"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.
•"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.
•"Finance Document" means this Agreement, the Mandate Letter, the Agency Fee Letter, any Accession Letter, any Increase Confirmation, any Compliance Certificate, any
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Utilisation Request and any other document designated as such by the Agent and the Company.
•"Finance Party" means the Agent, the Arranger or a Lender.
•"Financial Indebtedness" means any Indebtedness as defined in Clause 20.1 (Financial Definitions) of this Agreement.
•"Financial Officer" means the chief financial officer, principal accounting officer, treasurer, assistant treasurer or controller of the Company.
•"Financial Quarter" means each period of three months ending on 31 March, 30 June, 30 September or 31 December.
•"Foreign Lender" means (a) if the applicable Borrower is a U.S. Person, a Lender, with respect to such Borrower, that is not a U.S. Person, and (b) if the applicable Borrower is not a U.S. Person, a Lender, with respect to such Borrower, that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.
•"Foreign Subsidiary" means any Subsidiary which is not a Domestic Subsidiary.
•"Financial Year" means the financial year of the Company ending on 30 September as at the date of this Agreement; provided that the Company may change the financial year to end on 31 December with prior notice to the Agent but without consent of Agent or any Lender.
•"Governmental Authority" means any government of any nation or 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 Company and its Subsidiaries from time to time.
•"Group Structure Chart" means the group structure chart in the agreed form.
•"Guarantor" means an Original Guarantor or an Additional Guarantor, unless any such entity has ceased to be a Guarantor in accordance with Clause 24 (Changes to the Obligors).
•"Guidelines" means, together, the guidelines S02.123 in relation to inter bank transactions of 22 September 1986 as issued by the Swiss Federal Tax Administration (Merkblatt S02.123 vom 22 September 1986 betreffend Zinsen von Bankguthaben, xxxxx Xxxxxxxxx Xxxxxx sind (Interbankguthaben)), S02.130.1 in relation to money market instruments and book claims of April 1999 (Merkblatt S02.130.1 vom April 1999 "Geldmarktpapiere und Buchforderungen inländischer Schuldner"), the circular letter No. 15 (1015DVS2017) of 3 October 2017 in relation to bonds and derivative financial instruments as subject matter of taxation of Swiss federal income tax, Swiss withholding tax and Swiss stamp taxes (Kreisschreiben Nr. 15 "Obligationen und derivative Finanzinstrumente als Gegenstand der direkten Bundessteuer, der Verrechnungssteuer sowie der Stempelabgaben" vom 3. Oktober 2017), the circular letter No. 34 of 26 July 2011 (1034V2011) in relation to customer credit balances (Kreisschreiben Nr. 34 "Kundenguthaben" vom 26. Juli 2011), the circular letter No. 46 of 24 July 2019 in relation to syndicated credit facilities (Kreisschreiben Nr. 46 "Steuerliche Behandlung von Konsortialdarlehen, Schuldscheindarlehen, Wechseln und Unterbeteiligungen" vom 24. Juli 2019) and the circular letter No. 47 of 25 July 2019 in relation to bonds (Kreisschreiben Nr.
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47 "Obligationen" vom 25. Juli 2019) as issued, and as amended or replaced from time to time by the Swiss Federal Tax Administration, or as applied in accordance with a tax ruling (if any) issued by the Swiss Federal Tax Administration, or as substituted or superseded and overruled by any law, statute, ordinance, regulation, court decision or the like as in force from time to time.
•"Hazardous Materials" means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants and contaminants listed, defined, designated, regulated or classified under applicable Environmental Laws as hazardous, toxic, radioactive, dangerous, a pollutant, a contaminant, petroleum, oil or words of similar meaning or effect, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes.
•"Xxxxxxxxxxx Family Group" means the descendants of Xxxx X. Xxxxxxxxxxx in the direct line (direkte Nachkommen) and members of such descendants' families (i.e. spouses and registered partners) and trusts for the benefit of such natural persons.
•"Holding Company" means, in relation to a person, any other person in respect of which it is a Subsidiary.
•"Impaired Agent" means the Agent at any time when:
ah.it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;
ai.it otherwise rescinds or repudiates a Finance Document;
aj.(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of "Defaulting Lender"; or
ak.an Insolvency Event has occurred and is continuing with respect to the Agent;
unless, in the case of paragraph (a) above:
(i)its failure to pay is caused by:
(1)administrative or technical error; or
(2)a Disruption Event; and
payment is made within five Business Days of its due date; or
(ii)the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
•"Increase Confirmation" means a confirmation substantially in the form set out in Schedule 5 (Form of Increase Confirmation).
•"Increase Lender" has the meaning given to that term in Clause 2.2 (Increase).
•"Increase Period" means the period beginning on the date falling six Months after the date of this Agreement and ending on the date falling six Months prior to the Termination Date provided that if only one or more of the Original Lenders participate in an increase, such period shall begin on the date of this Agreement in respect of such increase.
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•"Ineligible Institution" means (a) a natural person, (b) a Defaulting Lender or its Holding Company, (c) the Company, any of its Subsidiaries or any of its Affiliates, or (d) a company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof.
•"Insolvency Event" in relation to a Finance Party means that Finance Party:
al.is dissolved (other than pursuant to a consolidation, amalgamation or merger);
am.becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
an.makes a general assignment, arrangement or composition with or for the benefit of its creditors;
ao.institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief (including a moratorium) under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its windingup or liquidation by it or such regulator, supervisor or similar official;
ap.has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for a moratorium, its windingup or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:
(i)results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its windingup or liquidation; or
(ii)is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
aq.seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets; and/or
ar.causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (f) above.
•"Issuing Bank" means each Lender.
•"ITA" means the United Kingdom Income Tax Xxx 0000.
"Legal Reservations" means:
as.the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;
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at.the time barring of claims, the possibility that an undertaking to assume liability for or indemnify a person against nonpayment of United Kingdom stamp duty may be void and defences of setoff or counterclaim;
au.similar principles, rights and defences under the laws of any relevant jurisdiction; and
av.any other matters which are set out as qualifications or reservations as to matters of law of general application in any legal opinion delivered to the Agent under Clause 4.1 (Initial conditions precedent) or Clause 24 (Changes to the Obligors).
•"Lender" means:
aw.any Original Lender; and
ax.any bank, financial institution, trust, fund or other entity which has become a Lender in accordance with Clause 2.2 (Increase) or Clause 23 (Changes to the Lenders),
•which in each case has not ceased to be a Party in accordance with the terms of this Agreement.
•"Leverage Ratio" has the meaning given to that term in Clause 20.1 (Financial Definitions).
•"L/G" means a standby, commercial or trade letter of credit (Akkreditive), surety (Bürgschaft) or guarantee (Garantie) but excludes any surety or guarantee serving as collateral for any credit obligations (Kreditbesicherungsavale) which is:
ay.in a form agreed by the relevant Issuing Bank; or
az.an Existing L/G,
•and which in each case satisfies the L/G Approved Criteria and is issued for any of the purposes set out in Clause 3.1 (Purpose).
•"L/G Approved Criteria" means the following:
ba.it is not unlawful or illegal in any jurisdiction for the relevant Issuing Bank to issue the L/G;
bb.the principal amount payable under the L/G is specified in that L/G;
bc.the currency of the amount payable is specified in the L/G and specified at the time of issuance;
bd.the beneficiary as specified in that L/G is reasonably acceptable to the Issuing Bank;
be.pursuant to the terms of the L/G the relevant Issuing Bank deals in documents only and the relevant Issuing Bank is authorised to pay any claim made or purported to be made under that L/G which appears on its face to be in order;
bf.the L/G contains a provision stating when the obligation of an Issuing Bank under the L/G shall terminate (e. g. specific expiration date, return of L/G deed, release letter) or may be cancelled or not renewed by an Issuing Bank in accordance with its terms;
bg.the L/G specifies its effective date or is stated to be effective on issuance;
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bh.the L/G is subject to International Standby Practices 1998 (International Chamber of Commerce Publication No. 590, or any subsequent revision thereof) or the Uniform Customs and Practice for Documentary Credits of the International Chamber of Commerce (International Chamber of Commerce Publication No. 600, 2007 revision, or any subsequent revision thereof) or the terms are otherwise satisfactory to the relevant Issuing Bank;
bi.the L/G is governed by the laws of Germany or the laws of any other jurisdiction reasonably satisfactory to the relevant Issuing Bank;
bj.the terms of the L/G must contain a narrative reference to what has been reported to the Issuing Bank about the underlying transaction but must not contain any confirmation with regard to facts of the underlying contract;
bk.the terms of the L/G must contain a purpose clause which shall be described in sufficient detail to cover a Borrower's obligations arising from the underlying transaction;
bl.the payment obligation of the Issuing Bank must be worded as an irrevocable obligation to pay a specific maximum amount of money and not for specific performance of the underlying contract;
bm.the payment obligation of the Issuing Bank shall be conditional upon presentation of a demand for payment with or, as the case may be, without simultaneous presentation of other documents. The terms of the L/G shall provide that receipt of a formally valid demand for payment has to be made to the Issuing Bank by the expiry date at the latest and confirm that thereafter no further demand shall be honoured; and
bn.the issuance of the L/G does not conflict or provide for inconsistency with (x) applicable laws, regulations, rules, directions and rulings, (y) any relevant decisions and rulings of any Governmental Authority and (z) any internal rules or guidelines of the Issuing Bank.
•"L/G Fee Rate" means 0.70 per cent. per annum applicable from the date of this Agreement until the date the Compliance Certificate for the Relevant Period ending 31 March 2018 has been delivered and thereafter if:
bo.no Event of Default has occurred and is continuing; and
bp.the Leverage Ratio in respect of the most recently completed Relevant Period is within a range set out below,
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•then the L/G Fee Rate for each L/G will be the percentage per annum set out below in the column opposite that range:
| Level | Leverage Ratio | L/G Fee Rate (in % p.a.) | ||||||
| 9 | Greater than or equal to 4.5:1 | 2.05 | ||||||
| 8 | Greater than or equal to 4.0:1 but less than 4.5:1 | 1.80 | ||||||
| 7 | Greater than or equal to 3.5:1 but less than 4.0:1 | 1.55 | ||||||
| 6 | Greater than or equal to 3.0:1 but less than 3.5:1 | 1.10 | ||||||
| 5 | Greater than or equal to 2.5:1 but less than 3.0:1 | 0.95 | ||||||
| 4 | Greater than or equal to 2.0:1 but less than 2.5:1 | 0.80 | ||||||
| 3 | Greater than or equal to 1.5:1 but less than 2.0:1 | 0.70 | ||||||
| 2 | Greater than or equal to 1.0:1 but less than 1.5:1 | 0.65 | ||||||
| 1 | Less than 1.0:1 | 0.55 | ||||||
•However:
(i)notwithstanding the foregoing, it is understood and agreed that with respect to the Compliance Certificate delivered by the Company for the fiscal quarter of the Company ending on June 30, 2020 and the fiscal year of the Company ending on September 30, 2020, to the extent that such Compliance Certificate demonstrate that any of Level 7 to Level 9 are applicable, then such Level shall be applicable, but to the extent that such Compliance Certificate demonstrates that any Level 1 to Level 6 are applicable, then such Level shall not be applicable and instead Level 7 shall be deemed to be applicable;
(ii)any increase or decrease in the L/G Fee Rate shall take effect on the date (the "reset date") which is the fifth Business Day following receipt by the Agent of the Compliance Certificate for a Relevant Period pursuant to Clause 19.2 (Compliance Certificate); and
(iii)while an Event of Default is continuing or a Compliance Certificate has not been delivered on its due date and remains undelivered, the L/G Fee Rate shall be the highest percentage per annum set out above.
•"Liquidity Amount" means, as of any date of determination, the lesser of (i) the sum of (a) 100% of the unrestricted and unencumbered cash and cash equivalents maintained by the Company and its Subsidiaries in the United States as of such date, plus (b) 70% of the unrestricted and unencumbered cash and cash equivalents maintained by the Company and its Subsidiaries outside of the United States as of such date and (ii) USD 175,000,000; provided however, that amounts calculated under this definition shall exclude any amounts that would not be considered “cash” or “cash equivalents” as recorded on the books of the Company or the applicable Subsidiary.
•"LMA" means the Loan Market Association.
•"Majority Lenders" means a Lender or Lenders whose Commitments aggregate more than 66 2/3 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66 2/3 per cent. of the Total Commitments immediately prior to the reduction).
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•"Mandate Letter" means the letter dated 14 February 2018 between the Arranger and the Company.
•"Material Adverse Effect" means a material adverse effect on:
bq.the business, operations or financial condition of the Group taken as a whole;
br.the ability of the Obligors to perform their material obligations under the Finance Documents, including but not limited to compliance by each Obligor with its payment obligations thereunder; and/or
bs.the material rights or remedies of the Agent and the Lenders under the Finance Documents.
•"Material Domestic Subsidiary" means, as of any date of determination, each Domestic Subsidiary:
bt.whose revenues for a Relevant Period constitute five per cent. (5%) or more of the Consolidated Revenues for that Relevant Period; and/or
bu.whose total assets at a time constitute five per cent. or more of the Consolidated Total Assets at that time,
•in each case as of the last day of the immediately preceding Financial Year of the Company for which annual financial statements of the Company are available. Compliance with the conditions set out above shall be determined by reference to the annual audited consolidated financial statements of the Company.
•"Material Indebtedness" means, as of any date, Financial Indebtedness (other than Financial Indebtedness arising under this Agreement), or the net obligations in respect of one or more Swap Agreements, of any one or more of the Company and any other member of the Group in an aggregate principal amount exceeding USD 75,000,000 (or its equivalent in any other currency or currencies) as of such date. For purposes of determining Material Indebtedness, the "principal amount" of the net obligations of the Company or any member of the Group in respect of any Swap Agreement at any time shall be deemed to be the Swap Termination Value thereof as of such date.
•"Material Subsidiary" means, as of any date of determination, a member of the Group (other than the Company):
bv.whose revenues for a Relevant Period constitute five per cent. (5%) or more of the Consolidated Revenues for that Relevant Period; and/or
bw.whose total assets at a time constitute five per cent. or more of the Consolidated Total Assets at that time,
•in each case as of the last day of the immediately preceding Financial Year of the Company for which annual financial statements of the Company are available. Compliance with the conditions set out above shall be determined by reference to the annual audited consolidated financial statements of the Company.
•A list of the initial Material Subsidiaries is set out in Schedule 13 (List of initial Material Subsidiaries).
•"Maturity Date" means the last day of the Term of an L/G.
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•"Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
bx.if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; and
by.if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month.
•The above rules will only apply to the last Month of any period.
•"Monthly" shall be construed accordingly.
•"Multiemployer Plan" means a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA, to which the Company or any of its ERISA Affiliates is contributing or has any obligation to contribute.
•"New Lender" has the meaning given to that term in Clause 23 (Changes to the Lenders).
•"Obligor" means a Borrower or a Guarantor.
•"Optional Currency" means a currency (other than the Base Currency) which complies with the conditions set out in Clause 4.3 (Conditions relating to Optional Currencies).
•"Original Financial Statements" means:
bz.in relation to the Company, its audited consolidated financial statements for the Financial Year ended 30 September 2017; and
ca.in relation to each other Borrower (other than Rotex Europe Ltd.), its audited financial statements for its financial year ended 30 September 2017 and with regard to Rotex Europe Ltd., its audited financial statements for its financial year ended 30 September 2016 as well as drafts of its financial statements for its financial year ended 30 September 2017 and drafts of its unaudited balance sheet and profit and loss statement for its financial year ended 30 September 2017.
•"Original Obligor" means an Original Borrower or an Original Guarantor.
•"Participating Member State" means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
•"Party" means a party to this Agreement.
•"PBGC" means the U.S. Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
•"Qualifying Lender" has the meaning given to it in Clause 12 (Tax grossup and indemnities).
•"Quarter Date" has the meaning given to it in Clause 20.1 (Financial Definitions).
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•"Regulations T, U and X" means, respectively, Regulations T, U and X of the Board of Governors of the Federal Reserve System of the United States (or any successor) as now and from time to time in effect from the date of this Agreement.
•"Relevant Nominating Body" means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
•"Relevant Period" has the meaning given to that term in Clause 20.1 (Financial Definitions).
•"Related Fund" in relation to a fund (the "first fund"), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.
•"Repeated Representations" means each of the representations set out in Clause 18 (Representations) other than Clauses 18.7 (Deduction of Tax), 18.10 (No default), 18.12 (No misleading Information), 18.13 (Financial statements), Clause 18.16 (Environmental laws and licences) and Clause 18.17 (Good title to assets).
•"Replacement Benchmark" means a benchmark rate which is:
cb.formally designated, nominated or recommended as the replacement for a screen rate used in this Agreement (including XXXXX, FFE, EONIA, SARON, and Overnight Libor Rate) by:
(i)the administrator of that screen rate, provided that the market or economic reality that such benchmark rate measures is the same as that measured by that screen rate; or
(ii)any Relevant Nominating Body,
and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Benchmark" will be the replacement under paragraph (ii) above;
cc.in the opinion of the Majority Lenders and the Company, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to that screen rate; or
cd.in the opinion of the Majority Lenders and the Company, an appropriate successor to a screen rate.
•"Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
•"Resignation Letter" means a letter substantially in the form set out in Schedule 8 (Form of Resignation Letter).
•"Responsible Officer" means the chief executive officer, president, Financial Officer or any other person designated by any such person in writing to the Agent and reasonably acceptable to the Agent.
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•"Restricted Payment" means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in any member of the Group or any payment (whether in cash, securities or other property) on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in any member of the Group or any option, warrant or other right to acquire such Equity Interests in any member of the Group.
•"Sanctioned Country" means, at any time, a country, region or territory which is itself the subject or target of any comprehensive Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan, South-Sudan and Syria).
•"Sanctioned Person" means, at any time, (a) any person listed in any Sanctions-related list of designated persons maintained by, or public announcement of Sanctions designation made by the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC), the U.S. Department of State, the United Nations Security Council, the European Union including its member states, Her Majesty’s Treasury of the United Kingdom or the Swiss Confederation and its State Secretariat for Economic Affairs SECO and/or its Directorate of International Law or any other respective governmental institution and agency of any of the foregoing each as amended, supplemented or substituted from time to time, (b) any person located, organized or resident in a Sanctioned Country or (c) any person owned 50% or more or controlled by any such person or persons described in the foregoing clauses (a) or (b).
•"Sanctions" means any international economic sanctions imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC) or the U.S. Department of State, (b) the United Nations Security Council, the European Union including its member states or Her Majesty’s Treasury of the United Kingdom or (c) the Swiss Confederation and administered by its State Secretariat for Economic Affairs SECO and/or Directorate of International Law or any other respective governmental institution and agency of any of the foregoing.
•"SEC" means the United States Securities and Exchange Commission or any successor thereto.
•"Security" means a mortgage, land charge, charge, pledge, lien, assignment or transfer for security purposes, retention of title arrangement or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
•"Specified Senior Notes" means one or more series of senior unsecured debt securities of the Company issued to finance the Bengal Transactions.
•"Specified Senior Notes Indebtedness" means Indebtedness in respect of the Specified Senior Notes.
•"Specified Senior Notes Indenture" means that certain indenture and/or supplemental indenture pursuant to which the Specified Senior Notes will be issued.
•"Specified Time" means a time determined in accordance with Schedule 11 (Timetables).
•"Spot Rate of Exchange" means the exchange rate between Euro and an alternative currency which is displayed on the European Central Bank Website at xxxxx://xxx.xxx.xxxxxx.xx/xxxxx/xxxxxx_xxx_xxxxxxxx_xxxxx/xxxx_xxxxxxxxx_xxxxxxxx_xxxxx/xxxx/
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index.en.html (or, the rate displayed on the appropriate page of such other information service which publishes the rate from time to time) or, if the respective alternative currency is not listed there, the current selling rate determined in the over-the-counter market (purchase Euro, sale alternative currency).
•"Subsidiary" means:
ce.in relation to any company or corporation incorporated in Germany, another company which is a subsidiary (Tochterunternehmen) of the first one within the meaning of §§271(2), 290 of the German Commercial Code (Handelsgesetzbuch); and
cf.in relation to any company incorporated in any other jurisdiction, any entity from time to time of which another person has direct or indirect control and for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation beneficially owns a majority of the equity securities or other ownership interests have ordinary voting rights of it (whether directly or indirectly through one or more intermediaries).
•"Swap Agreement" means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or any other member of the Group shall be a Swap Agreement.
•"Swap Termination Value" means, in respect of any one or more Swap Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Agreements, (a) for any date on or after the date such Swap Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in subsection (a), the amount(s) determined as the marktomarket value(s) for such Swap Agreements, as determined based upon one or more midmarket or other readily available quotations provided by any recognized dealer in such Swap Agreements (which may include a Lender or any Affiliate of a Lender).
•"Swiss Borrower" means a Borrower incorporated in Switzerland and/or having its registered office in Switzerland and/or qualifying as a Swiss resident pursuant to Art. 9 of the Swiss Federal Withholding Tax Act.
•"Swiss Federal Withholding Tax" means the Tax levied pursuant to the Swiss Federal Withholding Tax Act.
•"Swiss Federal Withholding Tax Act" means the Swiss Federal Withholding Tax Act (Bundesgesetz über die Verrechnungssteuer vom 13 Oktober 1965); together with the related ordinances, regulations and guidelines, all as amended and applicable from time to time.
•"Swiss NonBank Rules" means the Swiss Ten NonQualifying Bank Creditor Rule and the Swiss Twenty NonQualifying Bank Creditor Rule.
•"Swiss Qualifying Bank" means a person or entity (including any commercial bank or financial institution (irrespective of its jurisdiction of organisation)) acting on its own
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account which has a banking licence in force and effect issued in accordance with the banking laws in its jurisdiction of incorporation, or if acting through a branch, issued in accordance with the banking laws in the jurisdiction of such branch, and which, in both cases, effectively exercises as its main purpose a true banking activity, having bank personnel, premises, communication devices of its own and authority of decision making all in accordance and as defined in the Guidelines or in the legislation and explanatory notes addressing the same issues which are in force at such time.
•"Swiss Ten NonQualifying Bank Creditor Rule" means the rule that the aggregate number of creditors (or deemed creditors) under this Agreement which are not Swiss Qualifying Banks must not exceed 10 (ten), all in accordance with the meaning of the Guidelines or legislation or explanatory notes addressing the same issues which are in force at such time.
•"Swiss Twenty NonQualifying Bank Creditor Rule" means the rule that the aggregate number of creditors (or deemed creditors) (including the Lenders), other than Swiss Qualifying Banks, of a Swiss Borrower under all outstanding debts relevant for classification as debenture (Kassenobligation) (within the meaning of the Guidelines), such as loans, facilities and/or private placements (including under the Finance Documents) must not at any time exceed 20 (twenty), all in accordance with the meaning of the Guidelines or legislation or explanatory notes addressing the same issues which are in force at such time.
•"Tax or Taxes" means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by or paid to any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
•"Term" means such period determined under this Agreement for which the Issuing Bank is under a liability under an L/G.
•"Termination Date" means the later of:
cg.8 December 2022; and
ch.the date falling five years after the date of this Agreement, if by no later than 8 November 2022, the Company provides evidence in form and substance reasonably satisfactory to the Majority Lenders that the Existing US Facility Agreement has been successfully refinanced or extended with a facility or facilities having a tenor that is at least five years after the date of this Agreement.
•"Third Amendment and Restatement Agreement" means the third amendment agreement in relation to this Agreement dated ____ May 2020 between the Parties.
•"Total Commitments" means the aggregate of the Commitments, being EUR 175,000,000 at the date of this Agreement.
•"Transfer Certificate" means a certificate substantially in the form set out in Schedule 6 (Form of Transfer Certificate) or any other form agreed between the Agent and the Company.
•"Transfer Date" means, in relation to an assignment and transfer by way of assumption of contract (Vertragsübernahme') pursuant to Clause 23.5 (Procedure for assignment and transfer by way of assumption of contract (Vertragsübernahme')), the later of:
ci.the proposed Transfer Date specified in the Transfer Certificate; and
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cj.the date on which the Agent executes the Transfer Certificate.
•"Unpaid Sum" means any sum due and payable by an Obligor but unpaid by an Obligor under the Finance Documents.
•"U.S." and "United States" means the United States of America, its territories, possessions and other areas subject to the jurisdiction of the United States of America.
•"U.S. Borrower" means a Borrower whose jurisdiction of incorporation is a state of the United States or the District of Columbia.
•"U.S. GAAP" means the generally accepted accounting principles in the United States of America as recognised by the Financial Accounting Standards Board or other body or authority that succeeds the Financial Accounting Standards Board in determining the generally accepted accounting principles in the United States from time to time.
•"U.S. Person" means a "United States person" within the meaning of Section 7701(a)(30) of the Code.
"U.S. Tax Obligor" means:
ck.a Borrower which is resident for tax purposes in the U.S.; or
cl.an Obligor some or all of whose payments under the Finance Documents are from sources within the U.S. for US federal income tax purposes.
•"Utilisation" means the issuance of an L/G.
•"Utilisation Date" means the date on which a Utilisation is to be made, being the date on which the relevant L/G is to be issued.
•"Utilisation Request" means (i) a notice automatically generated by the Electronic Platform and sent to the respective Issuing Bank or (ii) in case the Electronic Platform is not available for such purpose, a notice substantially in the form set out in Schedule 3 (Utilisation Request).
•"VAT" means:
cm.any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and
cn.any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
•"Withdrawal Liability" means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
co.Construction
1.Unless a contrary indication appears, any reference in this Agreement to:
i.the "Agent", the "Arranger", any "Finance Party", any "Issuing Bank", any "Lender", any "Obligor" or any "Party" shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
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ii."assets" includes present and future properties, revenues and rights of every description;
iii."director" includes any statutory legal representative(s) (organschaftlicher Vertreter) of a person pursuant to the laws of its jurisdiction of incorporation, including but not limited to, in relation to a person incorporated or established in Germany, a managing director (Geschäftsführer) or member of the board of directors (Vorstand);
iv.a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
v."indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
vi.a Lender's "participation" in relation to an L/G, shall be construed as a reference to the relevant amount that is or may be payable by a Lender in relation to that L/G;
vii.a "person" includes any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity;
viii.a person acting "reasonably" means the exercise of discretion in a reasonable manner (nach billigem Ermessen) as set out in section 315 of the German Civil Code (Bürgerliches Gesetzbuch).
ix.a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any Governmental Authority;
x.a provision of law is a reference to that provision as amended or reenacted;
xi.any reference to "the date of this Agreement" shall be a reference to 8 March 2018; and
xii.a time of day is a reference to Luxembourg time.
2.Section, Clause and Schedule headings are for ease of reference only.
3.Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
4.A Default (including an Event of Default) is "continuing" if it has not been remedied or waived.
5.A Borrower "repaying" or "prepaying" an L/G means:
xiii.the Borrower providing Cash Cover for that L/G;
xiv.the Company receiving an L/G Reduction Notice as further specified in Clause 5.5 (Reversal and Reduction of L/Gs); or
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xv.the implementation of any other arrangement, including the delivery of a Counter Guarantee, satisfactory to the relevant Issuing Bank,
and the amount by which an L/G is repaid or prepaid under paragraphs 1.2(e)(i) to (iii) above is the amount of the relevant Cash Cover or reduction or Counter Guarantee (in the case Cash Cover is provided for an L/G denominated in an Optional Currency, converted into the currency in which that L/G is denominated at the Spot Rate of Exchange on the date on which Cash Cover is provided).
6.The Electronic Platform "is not available" means that:
xvi.the Company has informed the relevant Issuing Bank(s) that the Electronic Platform will not be operational or accessible (because of, but not limited to, any technical error, defects of any kind or an operating error due to which it is technically impossible to transfer the Utilisation Request in the form of electronic transfer) for a continuing period of more than 24 hours until the Company confirms to the relevant Issuing Bank(s) and the Agent that the Electronic Platform is duly operating again;
xvii.the Company has informed the Agent and the Issuing Banks with thirty (30) Business Days prior written notice of its decision to discontinue the use of the Electronic Platform until the date another Electronic Platform commences operation (and the Company will notify the Issuing Banks) thirty (30) Business Days in advance of such date); and
xviii.in relation to the relevant Issuing Bank only, such Issuing Bank has terminated the Electronic Platform Agreement.
If the Electronic Platform cannot provide one of the services as assigned to under this Agreement it shall be treated as "not available" on in regard to any such (unavailable) service.
cp.Currency symbols and definitions
"€", "EUR" and "euro" denote the single currency of the Participating Member States, "£", "GBP" and "sterling" denote the lawful currency of the United Kingdom, "$", "USD" and "dollars" denote the lawful currency of the United States of America, "CHF" denotes the lawful currency of Switzerland, "SEK" denotes the lawful currency of Sweden, "SGD" denotes the lawful currency of Singapore, "CNY" denotes the lawful currency of the People's Republic of China, "INR" denotes the lawful currency of India, "SAR" denotes the lawful currency of Saudi Arabia and "YEN" denotes the lawful currency of Japan.
cq.Language
This Agreement is made in the English language. For the avoidance of doubt, the English language version of this Agreement shall prevail over any translation of this Agreement. However, where a German translation of a word or phrase appears in the text of this Agreement, the German translation of such word or phrase shall prevail.
cr.Pro Forma Calculations
Except as otherwise provided herein, all pro forma computations required to be made hereunder giving effect to any acquisition or disposition, or issuance, incurrence, assumption or repayment of Financial Indebtedness, or other transaction shall in each case be calculated giving pro forma effect thereto (and, in the case of any pro forma computation made
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hereunder to determine whether such acquisition or disposition, or issuance, incurrence, assumption or repayment of Financial Indebtedness, or other transaction is permitted to be consummated hereunder, to any other such transaction consummated since the first day of the period covered by any component of such pro forma computation and on or prior to the date of such computation) as if such transaction had occurred on the first day of the period of four consecutive Financial Quarters ending with the most recent Financial Quarter for which financial statements shall have been delivered pursuant to Clause 19.1 (Financial statements) (or, prior to the delivery of any such financial statements, ending with the last Financial Quarter included in the Original Financial Statements of the Company), and, to the extent applicable, to the historical earnings and cash flows associated with the assets acquired or disposed of (but without giving effect to any synergies or cost savings unless permitted by Article 11 of Regulation SX of the U.S. Securities Act of 1933) and any related incurrence or reduction of Financial Indebtedness, all in accordance with that Article. If any Financial Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Financial Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Swap Agreement pertaining to interest rates applicable to such Financial Indebtedness).
a.Divisions
For all purposes under the Finance Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any person becomes the asset, right, obligation or liability of a different person, then it shall be deemed to have been transferred from the original person to the subsequent person, and (b) if any new person comes into existence, such new person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its equity interests at such time.
b.Certain Calculations
No Default or Event of Default shall arise as a result of any limitation or threshold set forth in Dollars in Clause 20 (Financial covenants) and 21 (General undertakings) under this Agreement being exceeded solely as a result of changes in currency exchange rates from those rates applicable on the last day of the fiscal quarter of the Company immediately preceding the fiscal quarter of the Company in which the applicable transaction or occurrence requiring a determination occurs.
2.THE FACILITY
a.The Facility
Subject to the terms of this Agreement, the Issuing Banks make available to the Borrowers a multicurrency letter of credit facility in an aggregate amount equal to the Total Commitments provided that the aggregate Base Currency Amount of all outstanding L/Gs issued by the Issuing Banks on behalf of (or at the request of) the Company may not exceed EUR 25,000,000 at any time.
b.Increase
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7.The Company may by giving at least three Business Days' prior notice to the Agent by no later than the date falling 20 Business Days after the effective date of a cancellation of:
xix.the Available Commitments of a Defaulting Lender in accordance with paragraph (d) of Clause 9.6 (Right of replacement or repayment and cancellation in relation to a single Lender); or
xx.the Commitments of a Lender in accordance with:
a.Clause 9.1 (Illegality); or
b.paragraph (a) of Clause 9.6 (Right of replacement or repayment and cancellation in relation to a single Lender),
request that the Commitments be increased (and the Commitments shall be so increased) in an aggregate amount in the Base Currency of up to the amount of the Available Commitments or Commitments so cancelled.
8.Subject to Clause 2.3 (Allocation of Additional Commitments) below, the Company may by giving at least three Business Days' prior notice to the Agent request that the Total Commitments be increased (and the Total Commitments shall be so increased) in an aggregate amount in the Base Currency of at least EUR 5,000,000 provided that:
xxi.the total Base Currency Amount of all such increases of Commitments made pursuant to this paragraph (b) must not exceed EUR 70,000,000 and the Total Commitments after any such increase must not exceed EUR 220,000,000;
xxii.the respective increase must become effective during the Increase Period; and
xxiii.during the term of this Agreement the Company may not increase the Commitments more than four times pursuant to this paragraph (b).
9.The implementation of any increase pursuant to paragraph (a) or (b) above shall be subject to the following provisions and the implementation of any increase pursuant to paragraph (b) above shall in addition be subject to Clause 2.3 (Allocation of Additional Commitments):
xxiv.subject to Clause 2.3 (Allocation of Additional Commitments), the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (each an "Increase Lender") selected by the Company (each of which shall not be a member of the Group) and each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender;
xxv.each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;
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xxvi.each Increase Lender shall become a Party as a "Lender" and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;
xxvii.the Commitments of the other Lenders shall continue in full force and effect; and
xxviii.any increase in the Commitments shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in paragraph (d) below are satisfied.
10.An increase in the Commitments will only be effective on:
xxix.the execution by the Agent and the Company of an Increase Confirmation from the relevant Increase Lender; and
xxx.in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase the Agent being satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender. The Agent shall promptly notify the Company and the Increase Lender upon being so satisfied.
11.Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.
12.The Company shall, promptly on demand, pay the Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2.
13.The Company may pay to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender in a letter between the Company and the Increase Lender setting out that fee provided that in respect of any increase made pursuant to paragraph (b) of this Clause 2.2 the following shall apply:
xxxi.no Increase Lender shall be given preferential treatment in respect of the amount of fees paid to it in respect of such increase so that a higher fee may only be paid if an Increase Lender is participating with a higher amount in the respective increase. Increase Lenders participating with equal amounts must be paid an equal amount of fees; and
xxxii.the Company must offer to pay the participation fee in the Additional Commitment Request and any Additional Commitment Request served within the first six Months after the date of this Agreement shall offer at least the same level of participation fee as applicable on the signing date of this Agreement.
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14.Clause 23.4 (Limitation of responsibility of Existing Lender) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:
xxxiii.an "Existing Lender" were references to all the Lenders immediately prior to the relevant increase;
xxxiv.the "New Lender" were references to that "Increase Lender"; and
xxxv.a "retransfer" and "reassignment" were references to respectively a "transfer" and "assignment".
c.Allocation of Additional Commitments
15.Subject to paragraph (b) of Clause 2.2 (Increase) above the Company may, at any time during the Increase Period, request the increase of the Total Commitments by a total amount of EUR 70,000,000 (the amount requested being the "Requested Additional Commitment Amount" and the increased part of the Total Commitments being the "Additional Commitments") by delivery to the Agent of a duly completed Additional Commitment Request setting out the total Additional Commitments and any fee the Company is offering to pay in respect thereto and asking each Lender whether it is willing to participate in the Additional Commitments on a pro rata basis (based on the proportion borne by its Commitments to the Total Commitments at the time of the request) (the "Pro Rata Portion"); provided that with regard to any increase up to an amount of EUR 25,000,000 in aggregate over the lifetime of this Agreement (any such increase, a "Non-Pro Rata Increase"), the increased Commitments may also be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (any such Lender or other entity shall be deemed to be an "Increase Lender") selected by the Company (each of which shall not be a member of the Group) which has confirmed in writing its willingness to participate in the Additional Commitments with respect to the Non-Pro Rata Increase; and provided further that the provisions set out in Clause 2.2 (Increase) paragraphs (c) (iii) and (iv) and (d) to (h) shall apply to such Non-Pro Rata Increase mutatis mutandis. The Agent shall notify each Lender without undue delay after receipt of an Additional Commitment Request of the terms of that Additional Commitment Request by forwarding a copy of that Additional Commitment Request to each Lender. If the Additional Commitments are offered only to the Lenders, the Agent shall also notify each Lender of its potential Pro Rata Portion.
16.Within 15 Business Days of receipt of a copy of such Additional Commitment Request from the Agent (the "First Response Period"), each Lender shall notify the Agent and the Company whether it is prepared to participate in the Additional Commitments in its Pro Rata Portion. Any Lender which has not responded to the Agent within such period shall be deemed to have declined to participate in such Additional Commitment.
17.If the aggregate of the amounts (the "Committed Amount") notified by the Lenders prepared to participate in the Additional Commitment (each a "Participating Lender") to the Agent in accordance with, and within the period set out in, paragraph (b) above is equal to the Requested Additional Commitment Amount, the Agent shall allocate the participations in the Additional Commitments to each Participating Lender based on the Pro Rata Portion of each Lender. If the Committed Amount is less than the Requested Additional Commitment Amount due to not all Lenders being Participating Lenders or a Participating Lender only willing to commit less than its
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Pro Rata Portion the Agent shall allocate the Additional Commitments to each Participating Lender based on the amounts notified by them (provided that no allocation shall be made in excess of a Pro Rata Portion of a Participating Lender) and shall then proceed as set out in paragraph (d) below. The Agent shall notify each Participating Lender and the Company of the allocation within five Business Days after the expiry of the First Response Period. Each Participating Lender shall confirm in writing within five Business Days after that notice being given by the Agent its willingness to assume the respective Additional Commitments by executing a respective Increase Confirmation as further specified in paragraph (c) of Clause 2.2 (Increase).
18.If the Agent determines that the Committed Amount is less than the Requested Additional Commitment Amount, it shall notify the Company and each Participating Lender without undue delay thereof and of the balance of the Requested Additional Commitment Amount and the Committed Amount (the "Additional Commitment Shortfall").
19.Each Participating Lender may then within five Business Days of such notification notify the Agent and the Company whether or not it is willing to increase its participation in the Additional Commitments (and if so by which amount). Any Participating Lender which has not responded to the Agent within such period shall be deemed to have declined to further increase its participation in the Additional Commitments. If the Agent then determines that the further increase in the Additional Commitments offered by the relevant Participating Lenders is equal to or less than the Additional Commitment Shortfall, it shall allocate further participations in the Requested Additional Commitments to each Participating Lender on the basis of the additional amounts offered by the respective Participating Lender. If the Agent determines that the aggregate amount of the further increase in the Additional Commitments offered by the relevant Participating Lenders is higher than the Additional Commitment Shortfall, it shall allocate the further participations pro rata based on the total amount of all Additional Commitments offered by Participating Lenders pursuant to this paragraph (e) and the share of each Participating Lender in such total amount. Sentences 3 and 4 of paragraph (c) above shall then apply mutatis mutandis.
20.If the Agent then determines that the aggregate amount of the Participating Lenders' Committed Amount is less than the Requested Additional Commitment Amount, it shall notify the Company without undue delay of such occurrence and of the final Additional Commitment Shortfall. The Company may then within 20 Business Days of such notice select any other bank, financial institution, trusts, funds or other entities (each of which shall not be a member of the Group) to participate in the respective Additional Commitments provided that the aggregate amount of such participations shall not exceed the amount of the final Additional Commitment Shortfall and further provided that such potential lender confirms in writing within such 20 Business Days its willingness to assume the respective Additional Commitments as further specified in paragraph (c) of Clause 2.2 (Increase) by executing the respective Increase Confirmation.
21.No Lender shall be obliged to participate in any Additional Commitment or increase its participation in the Additional Commitment it was prepared to assume unless it has otherwise agreed in accordance with paragraphs (c), (d) or (e) (as the case may be) above.
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d.Finance Parties' rights and obligations
22.The obligations of each Finance Party under the Finance Documents are several and do not constitute a joint obligation (Ausschluss der gesamtschuldnerischen Haftung). Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
23.The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and do not constitute a joint creditorship (Ausschluss der Gesamtgläubigerschaft) and any debt arising under the Finance Documents to a Finance Party from an Obligor shall, except as otherwise set out in this Agreement or any other Finance Document, be a separate and independent debt (Ausschluss der gesamtschuldnerischen Haftung).
24.A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
3.PURPOSE
a.Purpose
Each Borrower shall use any L/G to collateralise obligations of, or claims against, any Borrower (or, subject to Clause 5.8 (Affiliate of a Borrower), any Affiliate Borrower) in each case arising in connection with the operational business requirements of any Borrower (or, subject to Clause 5.8 (Affiliate of a Borrower), any Affiliate Borrower) in relation to the issuance of:
25.tender guarantees (Bietungsavale);
26.advance payment guarantees (Anzahlungsavale);
27.performance guarantees (Vertragserfüllungsavale);
28.rental guarantees (Mietavale);
29.customs guarantees (Zollavale);
30.warranty guarantees (Gewährleistungsavale); or
31.payment guarantees for suppliers (Lieferantenavale).
b.Monitoring
No Finance Party is bound to monitor or verify the use of an L/G granted pursuant to this Agreement.
4.CONDITIONS OF UTILISATION
a.Initial conditions precedent
No Borrower may deliver a Utilisation Request to an Issuing Bank unless the Agent has received all of the documents and other evidence listed in Part 1 (Conditions Precedent to Initial Utilisation) of Schedule 2 (Conditions Precedent) in form and substance satisfactory to
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the Agent. The Agent shall notify the Company and the Lenders promptly upon being so satisfied.
b.Further conditions precedent
An Issuing Bank will only be obliged to comply with Clause 5.3 (Issue of L/Gs) if on the date of the Utilisation Request and on the proposed Utilisation Date:
32.no Default is continuing or would result from the issue of the L/G;
33.the Repeated Representations made by each Obligor are true in all material respects; and
34.no Change of Control has occurred.
c.Conditions relating to Optional Currencies
A currency will constitute an Optional Currency in relation to an L/G if it is:
35.USD, GBP or CHF; or
36.SEK, SGD, CNY, INR, SAR or YEN; or
37.any other currency agreed with the relevant Issuing Bank as at or prior to receipt by it of the relevant Utilisation Request for that L/G;
provided that in the case of paragraphs (b) and (c) above, the aggregate Base Currency Amount of all L/Gs denominated in any such currencies shall not exceed EUR 20,000,000 at any time. Each Issuing Bank will only be obliged to issue an L/G in an Optional Currency if this Optional Currency (other than in the case of paragraphs (a) and (b) above) is approved between the relevant Issuing Bank and the relevant Borrower.
5.UTILISATION
a.General
38.Each Borrower may, subject to the provisions of this Clause 5 (Utilisation) and Clause 7 (L/Gs) utilise the Facility by delivering to the relevant Issuing Bank a duly completed Utilisation Request by entering the required data into the Electronic Platform.
39.If the Electronic Platform is not available for such purpose, the relevant Borrower may deliver the respective duly completed Utilisation Request to the relevant Issuing Bank not later than the Specified Time provided that any Utilisation Request not received via the Electronic Platform must be preadvised to the relevant Issuing Bank by telephone by the relevant Borrower.
40.If the Utilisation Request has been delivered in accordance with paragraph (b) the Company shall enter the information from that Utilisation Request into the Electronic Platform once the Electronic Platform currently in use (or another Electronic Platform) is available again.
41.As soon as reasonably practicable following the date of this Agreement and all Existing L/Gs having been rolled as L/Gs into this Agreement, the Company shall
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endeavour to request Utilisations on a pro rata basis to ensure that the Commitment of each Lender is utilised prorata to its participation in the Total Commitments.
b.Completion of a Utilisation Request
42.Subject to Clause 5.8 (Affiliate of a Borrower) and paragraph (f) below, each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
xxxvi.it identifies the relevant Borrower and the type of L/G;
xxxvii.it identifies the relevant Issuing Bank and whether it is to be issued by one or several Issuing Banks (and in the latter case in which portions);
xxxviii.it identifies the proposed Utilisation Date which is a Business Day falling within the Availability Period;
xxxix.it identifies the amount and currency of the requested L/G;
xl.the L/G is denominated in the Base Currency or an Optional Currency;
xli.the amount of the L/G requested is an amount whose Base Currency Amount is not more than the Available Facility and the Available Commitment of the Issuing Bank;
xlii.a form of the relevant requested L/G as outlined in Clause 3.1 (Purpose) is (x) attached, (y) agreed with the relevant Issuing Bank and (z) satisfies the L/G Approved Criteria;
xliii.the obligor of the obligations secured by the L/G is the respective Borrower, the beneficiary of the L/G is identified and the underlying contract is specified;
xliv.it specifies the expiry date specified in the relevant L/G or, as the case may be, the expiry date of the Commercial Lifetime of the relevant L/G; and
xlv.the delivery instructions for the L/G are specified.
43.The Issuing Bank shall in no event be held responsible for a non or a delayed processing of any Utilisation Request (irrespective of whether made through the Electronic Platform or otherwise) unless such delayed processing is caused by gross negligence or wilful misconduct on the part of the Issuing Bank. As the Issuing Bank will not, in the event of a Utilisation Request or other information submitted by telefax, letter or email, be in a position to verify whether any document received as a Utilisation Request has been duly authorised and sent by the relevant Borrower, the Company and each Borrower agrees that the Issuing Bank shall be entitled to execute all Utilisation Requests hereunder received by telefax, letter or email or with respect to which further information was delivered by telefax, letter or email if on their face such telefaxes, letters or emails appear to be duly authorised and executed by persons acting on behalf of the Company and/or the relevant Borrower who have been identified as authorised signatories in accordance with the Electronic Platform Agreement or in the certificate referred to under number 1 (g) of Part 1 or number 7 of Part 2 (Conditions Precedent required to be delivered by an Additional Obligor) of Schedule 2 (Conditions Precedent). The Issuing Banks shall not be held liable for the execution of any forged Utilisation Request received by telefax, letter or email except
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where the forgery is evident (offensichtlich) or the respective Issuing Bank acted with gross negligence or wilful misconduct. The Issuing Banks shall not be held responsible for any loss or damage caused by any documents being lost, duplicated, ended up in wrong hands or distorted when transmitted electronically or in any other form. In the event of any loss or damage arising to an Issuing Bank by reason of a technical malfunctioning or miscalculation or any technical error of the Electronic Platform and the Company has directly caused by gross negligence or wilful misconduct such malfunction, miscalculation or error, the Company shall indemnify that Issuing Bank in this respect.
44.Provided the requirements set out in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent) are satisfied, each Existing L/G shall be treated as an L/G issued under this Agreement.
45.Only one L/G may be requested in each Utilisation Request.
46.The maximum aggregate Base Currency Amount of all outstanding standby, commercial or trade letters of credit shall at no time exceed EUR 50,000,000.
47.A Utilisation Request may only be revoked by the relevant Borrower by giving notice to the relevant Issuing Bank which has to be received by that Issuing Bank at a time that Issuing Bank will, with reasonable efforts, still be in a position to stop the process that the relevant L/G is delivered to the relevant beneficiary or any other party as instructed by the relevant Borrower.
c.Issue of L/Gs
48.An L/G can be issued by one Issuing Bank or jointly by two or more Issuing Banks provided that there shall be no joint liability (Gesamtschuldnerschaft) between the relevant Issuing Banks and each Issuing Bank shall only be liable for payment of a certain portion of the Face Amount of the relevant L/G which portion must be set out in the L/G and comply with the requirements set out in paragraph (b) of Clause 5.4 (Extension of L/Gs) below.
49.A proposed Issuing Bank is not obliged to issue (and shall not issue) any L/G if it notifies the relevant Borrower that it will not be able to issue the L/G on the basis of any of the following grounds:
xlvi.a Lender's share in the outstanding L/Gs (including, for the avoidance of doubt and without limitation, any L/G in respect of which Cash Cover has been provided) would exceed its Commitment;
xlvii.the Base Currency Amount (calculated as at the date of the Utilisation Request) of all outstanding L/Gs constituting standby, commercial or trade letters of credit (including, for the avoidance of doubt and without limitation, any L/Gs of that type in respect of which Cash Cover has been provided) would exceed EUR 50,000,000;
xlviii.the Base Currency Amount (calculated as at the date of the Utilisation Request) of all outstanding L/Gs (including, for the avoidance of doubt and without limitation, any L/G in respect of which Cash Cover has been provided) would exceed the Total Commitments;
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xlix.the requirements of Clause 5.2 (Completion of a Utilisation Request) are not satisfied; or
l.the L/G Approved Criteria are not satisfied and the relevant Issuing Bank is not willing to dispense with these requirements.
For the avoidance of doubt, any letter of credit or similar instrument issued by an Issuing Bank in excess of the amounts described above will be issued on a bilateral basis and not be subject to (nor benefit from) the provisions of this Agreement.
50.Subject to the terms of this Agreement being met:
li.the relevant Issuing Bank must issue the L/G on the Utilisation Date; or
lii.with respect to the Existing L/Gs, on and from the date the requirements set out in Clause 4.1 (Initial conditions precedent) and Clause 4.2 (Further conditions precedent) are satisfied, each Existing L/G will be treated as an L/G issued under this Agreement.
51.The relevant Issuing Bank shall use the Electronic Platform, if the Electronic Platform is available, also for any amendment, reduction or cancellation of any L/G issued under the Electronic Platform as well as any payment requests and claims.
52.For the avoidance of doubt, each relevant Issuing Bank is itself responsible for checking whether any currency requested has been approved by it and whether all other requirements for a Utilisation are satisfied.
d.Extension of L/Gs
53.A Borrower may by giving a Utilisation Request request that an L/G issued on its behalf which would otherwise expire is extended by delivery to the relevant Issuing Bank of a notice specifying the new proposed Maturity Date in accordance with the terms of that L/G and, in any event, by no later than four Business Days before the Maturity Date of that L/G.
54.An Issuing Bank shall only be obliged to comply with such a Utilisation Request if on the date of the Utilisation Request and on the proposed extension date no Event of Default is continuing or would result from such extension and no Change of Control has occurred.
55.An Issuing Bank is not obliged to (and shall not) extend any L/G if as a result of such extension:
liii.a Lender's share in the outstanding L/Gs (including, for the avoidance of doubt and without limitation, any L/G in respect of which Cash Cover has been provided) would exceed its Commitment;
liv.the Base Currency Amount (calculated as at the date of the Utilisation Request) of all outstanding standby, commercial or trade letters of credit (including, for the avoidance of doubt and without limitation, any L/G in respect of which Cash Cover has been provided) would exceed EUR 50,000,000; or
lv.the Base Currency Amount (calculated as at the date of the Utilisation Request) of all outstanding L/Gs (including, for the avoidance of doubt and
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without limitation, any L/G in respect of which Cash Cover has been provided) would exceed the Total Commitments.
56.The terms of each extended L/G will remain the same as before the extension, except that:
lvi.its amount may be reduced; and
lvii.its Maturity Date will be the date specified in the Utilisation Request.
57.Subject to the terms of this Agreement being met, the relevant Issuing Bank must extend the L/G in the manner requested.
e.Reversal and reduction of L/Gs
58.An Issuing Bank shall (if the Electronic Platform is available) enter into the Electronic Platform and otherwise give written notice to the Company (in each case an "L/G Reduction Notice") of any reduction pursuant to any event set out in paragraph (b) of this Clause 5.5 of the maximum amount payable under any L/G issued by it promptly upon the occurrence of such reduction.
59.For the purposes of paragraph (a) above, a reduction of the maximum amount payable under any L/G occurs if an Issuing Bank is satisfied that:
lviii.in relation to an L/G issued by that Issuing Bank which under its terms expires without any doubt if no demand for payment has been received by that Issuing Bank on or before a specified expiry date, no demand in respect of that L/G has been received by that Issuing Bank on or before such date; or
lix.in relation to an L/G issued by that Issuing Bank whose terms do not provide for an expiry without any doubt on a specific expiry date if no demand for payment has been received by that Issuing Bank on or before that date (or, in the case of a release of an L/G, on or before the expiry date specified therein):
c.the original of the L/G (including all amendments (if any)) has been returned to that Issuing Bank by the beneficiary or the relevant Borrower; or
d.the L/G has been released in writing by the beneficiary; or
lx.in relation to an L/G whose terms provide for a reduction of its Face Amount, the conditions of such reduction under the terms of the L/G are without any doubt satisfied; or
lxi.the beneficiary has unconditionally certified to the Issuing Bank the reduction of the Face Amount of the L/G in writing; or
lxii.after having effected (full or partial) payment pursuant to a demand to the extent it has been reimbursed by the relevant Borrower or on its behalf in the amount required by the terms of this Agreement; or
lxiii.for the avoidance of doubt, such Issuing Bank is otherwise satisfied that it has no further liability under the relevant L/G.
f.Handling of Utilisation Requests, issuance of L/Gs
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60.Promptly following receipt of the relevant Utilisation Request the relevant Issuing Bank shall determine whether, in respect of such Utilisation Request and the requested L/G, it complies with:
lxiv.the terms of subparagraphs (a)(ii) and (a)(vii) of Clause 5.2 (Completion of a Utilisation Request)
lxv.the terms of paragraph (b) of Clause 5.4 (Extension of L/Gs); and
lxvi.the L/G Approved Criteria and all other requirements set out in this Clause 5 (the "L/G Requirements").
61.Following determination in accordance with paragraph (a), the relevant Issuing Bank shall confirm through the Electronic Platform (or, if the Electronic Platform is not available, inform the Company accordingly) whether:
lxvii.the L/G Requirements are fulfilled (and, if the L/G is denominated in an Optional Currency, the Electronic Platform will automatically (and if the Electronic Platform is not available, the Issuing Bank shall) calculate the Base Currency Amount with respect thereto); or
lxviii.it will not be able to issue the requested L/G at all because all or some of the L/G Requirements are not fulfilled and, if so, which one(s).
62.In the event of notification by the relevant Issuing Bank that it will not issue the requested L/G the relevant Borrower and the Borrower shall:
lxix.agree with the relevant Issuing Bank such amendment of the requested L/G as is necessary and possible to enable the Issuing Bank to issue the relevant L/G; and
lxx.if no agreement can be reached between the relevant Issuing Bank and the Borrower (in particular if the L/G Requirements are not complied with): (A) the Issuing Bank shall not issue the requested L/G; and (B) the Borrower shall promptly withdraw the relevant Utilisation Request.
63.The relevant Issuing Bank shall promptly enter into the Electronic Platform (or, if the Electronic Platform is not available, inform the Company of) all changes in respect of a requested L/G agreed with the relevant Borrower pursuant to paragraph (c) above.
64.If the Electronic Platform is not available, the Company shall enter into the Electronic Platform the confirmation of the relevant Issuing Bank in accordance with paragraph (c) and all changes in respect of a requested L/G in accordance with paragraph (d), as applicable, once the Electronic Platform currently in use (or another Electronic Platform) is available again.
g.Reports
1.The Company will use its best efforts to generate under the Electronic Platform a report providing for the following figures within 10 Business Days after the end of each calendar quarter (the "Reports") and to deliver such Reports to the Agent for distribution to the Issuing Banks:
lxxi.the Base Currency Amount of all outstanding L/Gs as determined for such day;
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lxxii.the aggregate Base Currency Amount of all outstanding L/Gs issued on behalf of the Company;
i.the aggregate Base Currency Amount of all outstanding L/Gs issued in an Optional Currency not being either USD, GBP or CHF; and
ii.all relevant information (including the name of the beneficiary of the L/G, the type of L/G, the L/G amount, the date of issuance or prolongation and the initially fixed maturity date or Commercial Lifetime (and if applicable, any prolongation thereof) of such L/G) with respect to any L/G outstanding.
2.The Agent, the Lenders and the Issuing Banks may download copies of the Reports. In the event that the Agent and/or any Issuing Bank discovers an error in the Reports, such Party shall notify the Company and the relevant other Parties accordingly. Upon receipt of such notice, the relevant Parties shall seek mutual agreement on the relevant corrections and any entries in the Electronic Platform shall be made or, as the case may be, corrected by the Company and/or the relevant Issuing Bank accordingly. In the case that any such correction has an impact on the amount of any fees payable or paid under this Agreement, the relevant Issuing Bank shall notify the Company of any such difference which shall be taken into account by the Issuing Bank in the next notification to the Company and payment to the Lenders pursuant to Clause 11.1 (Commitment fee) or Clause 11.2 (L/G fee).
3.If the Electronic Platform is not available, each Issuing Bank shall upon request by the Agent provide the following figures to the Agent for distribution to the other Issuing Banks and the Company:
iii.the Base Currency Amount of all its outstanding L/Gs as determined for such day;
iv.the aggregate Base Currency Amount of all its outstanding L/Gs issued on behalf of the Company;
v.the aggregate Base Currency Amount of all its outstanding L/Gs issued in an Optional Currency not being either USD, GBP or CHF; and
vi.all relevant information (including the name of the beneficiary of the L/G, the type of L/G, the L/G amount, the date of issuance or prolongation and the initially fixed maturity date or Commercial Lifetime (and if applicable, any prolongation thereof) of such L/G) with respect to any of its L/G outstanding.
Paragraph (b) shall apply mutatis mutandis.
h.Affiliate of a Borrower
4.Subject to the terms of this Agreement, an Affiliate of a Borrower may with the approval of the relevant Issuing Bank become a borrower (any such Affiliate, an "Affiliate Borrower") with respect to an L/G.
5.The Company shall specify any relevant Affiliate Borrower in the Utilisation Request.
6.If a Borrower ceases to be a Borrower under this Agreement in accordance with Clause 24.3 (Resignation of a Borrower), any Subsidiary of such Borrower that is an Affiliate Borrower shall cease to have any rights under this Agreement and the Borrower is obliged to repay such L/G prior to ceasing to be a Borrower.
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7.Where this Agreement or any other Finance Document imposes an obligation on a Borrower under an L/G and the relevant borrower is an Affiliate Borrower which is not a party to that document, the relevant Borrower shall ensure that the obligation is performed by its Affiliate.
8.Any reference in this Agreement or any other Finance Document to a Borrower being under no obligations (whether actual or contingent) as a Borrower under such Finance Document shall be construed to include a reference to any Affiliate of a Borrower being under no obligations under any Finance Document or L/G.
6.REBASING
a.Determination of the Base Currency Amount
On the last Business Day of each calendar quarter (a "Calendar Quarter Date") on which at least one L/G is outstanding under this Agreement which is denominated in an Optional Currency, the Electronic Platform shall automatically and, if the Electronic Platform is not available, each relevant Issuing Bank shall determine the Base Currency Amount of each L/G outstanding by notionally converting the amount of that L/G into the Base Currency on the basis of the Spot Rate of Exchange on the date of calculation.
b. Company's obligation to prepay
9.If with respect to a Calendar Quarter Date (each a "Rebasing Day") the aggregate Base Currency Amount of the outstanding L/Gs of an Issuing Bank exceeds its Commitment applicable on that Rebasing Day (the exceeding amount being the "Excess Amount"), the Company must, if requested by any Issuing Bank in writing to do so, within 10 Business Days following such request ensure that a sufficient amount of the outstanding L/Gs are prepaid by the Borrowers (including, for the avoidance of doubt, by providing Cash Cover), in each case to eliminate the Excess Amount.
10.If in respect of any Rebasing Day subsequent to a Rebasing Day in respect of which Cash Cover had been provided pursuant to paragraph (a) the Excess Amount has been reduced, the whole or relevant part of the Cash Cover shall be released within five Business Days of the relevant Rebasing Day provided that no Default has occurred which is continuing.
7.L/GS
a.Claims under an L/G
11.Each Borrower irrevocably and unconditionally authorises the relevant Issuing Bank to pay any claim made or purported to be made under an L/G requested by it (or requested by the Company on its behalf) and which appears on its face to be in order (in this Clause 7.1, a "claim") notwithstanding any defences against that claim which are or may be available to it under the law applicable to that L/G and which arise from, or relate to, the underlying transaction.
12.Each Borrower shall immediately on demand pay to the relevant Issuing Bank an amount equal to the amount of any claim.
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13.Each Borrower acknowledges that an Issuing Bank:
vii.is not obliged to carry out any investigation or notify or seek any confirmation from any other person (including without limitation the Company and the Borrower) before paying a claim; and
viii.deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available setoff, counterclaim or other defence of any person (including without limitation any defences which arise from, or relate to, the underlying transaction which are or may be available to that Issuing Bank under the law applicable to the relevant L/G).
14.The obligations of a Borrower under this Clause will not be affected by:
ix.the sufficiency, accuracy or genuineness of any claim or any other document; or
x.any incapacity of, or limitation on the powers of, any person signing a claim or other document.
b.Indemnities
15.Each Borrower shall immediately on demand indemnify an Issuing Bank against any cost, loss or liability incurred by that Issuing Bank (otherwise than by reason of that Issuing Bank's gross negligence, bad faith or wilful misconduct) in acting as an Issuing Bank under any L/G requested by (or on behalf of) that Borrower.
16.The obligations of any Borrower under this Clause will not be affected by any act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause (without limitation and whether or not known to it or any other person) including:
xi.any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under an L/G or any other person;
xii.the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
xiii.the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor, any beneficiary under an L/G or other person or any nonpresentation or nonobservance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
xiv.any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any beneficiary under an L/G or any other person;
xv.any amendment (however fundamental) or replacement of a Finance Document consented to by the Company, any L/G or any other document or security;
xvi.any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any L/G or any other document or security; or
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xvii.any insolvency or similar proceedings.
17.Neither the Company nor any Borrower shall be entitled to reject payment otherwise due by it pursuant to this Agreement on the basis of the argument that an L/G with respect to which an Issuing Bank claims payment should not have been issued or should not have been issued under its terms by that Issuing Bank pursuant to the terms of this Agreement or applicable law or regulations.
c.Rights of contribution
18.No Obligor will be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it may make under this Clause 7.
19.No Issuing Bank will be entitled to any right of contribution or indemnity from any other Issuing Bank other than pursuant to Clauses 27.6 (Loss Sharing in respect of L/Gs) and 27.7 (Sharing of Recoveries / Adjustment of Loss Sharing).
8.REPAYMENT
20.Subject to paragraph (b) below, each L/G which would otherwise be outstanding on the Termination Date shall be repaid on the Termination Date.
21.In respect of each outstanding L/G the Maturity Date of which falls after the Termination Date, an Issuing Bank may either:
xviii.continue to provide the respective L/G on a bilateral basis on terms and conditions agreed upon between that Issuing Bank, the Company and the relevant Borrower in a separate agreement reasonably satisfactory to that Issuing Bank to be reached no later than on the Termination Date;
xix.continue to provide the respective L/G on a bilateral basis following receipt of a Counter Guarantee by no later than the Termination Date; or
xx.require that Cash Cover (or such other security which is reasonably satisfactory to that Issuing Bank) is provided by the relevant Borrower (or the Company) with respect to the counterindemnity obligations owed to that Issuing Bank by the relevant Borrower in respect of the outstanding L/Gs issued by that Issuing Bank not later than on the Termination Date.
22.Any negotiations between an Issuing Bank, the Company and the relevant Borrower about a bilateral continuation or the terms and conditions and the implementation of the Cash Cover or other Security shall be made between that Issuing Bank and the relevant Borrower directly without involvement of the Agent.
23.Each L/G outstanding on the Termination Date shall, in the case of a bilateral continuation of that L/G pursuant to paragraph (b) above, for all purposes of this Agreement cease to be treated as an L/G issued under this Agreement as of the Termination Date provided however that unless otherwise agreed by the relevant Issuing Bank the fees set out in Clauses 11.2 (L/G fee) and 11.5 (Issuance and Administration Fee) shall continue to be payable . In addition, the fees set out in Clause 11.2 (L/G fee) shall be reduced as set out in paragraph (a) of Clause 11.2 (L/G fee).
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9.PREPAYMENT AND CANCELLATION
a.Illegality
If, in any applicable jurisdiction, it becomes unlawful for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Utilisation:
24.that Lender shall promptly notify the Agent upon becoming aware of that event;
25.upon the Agent notifying the Company, the Commitment of that Lender will be immediately cancelled and it shall not be obliged to issue any L/G; and
26.each Borrower and the Company shall cooperate with the relevant Lender to seek a release by the relevant beneficiaries of each L/G issued by that Lender and outstanding at such time and, if and to the extent an L/G is not released by the date notified by that Lender, the Company shall, or shall procure that any relevant Borrower will, prepay all outstanding L/Gs of that Lender.
b.Change of control
In the event of a Change of Control:
27.the Company shall promptly notify the Agent upon becoming aware of that event;
28.a Lender shall not be obliged to issue any L/Gs; and
29.if a Lender so requires and notifies the Agent within 10 days of being informed by the Agent of the event, the Agent shall, by not less than 10 days' notice to the Company, cancel the Commitment of that Lender and declare the participation of that Lender in all outstanding L/Gs, together with accrued L/G fees, and all other amounts accrued under the Finance Documents owed to that Lender by the Obligors, immediately due and payable, whereupon the Commitment of that Lender will be cancelled and all such outstanding amounts will become immediately due and payable and each Borrower shall prepay the relevant outstanding L/Gs.
c.Voluntary cancellation
The Company may, if it gives the Agent not less than three Business Days' prior written notice (or such shorter period as the Majority Lenders may agree), cancel the whole or any part (being a minimum amount of EUR 5,000,000) of the Available Facility. Any cancellation under this Clause 9.3 shall reduce the Commitments of the Lenders rateably under the Facility.
d.Automatic cancellation
If the first Utilisation Date has not occurred by the date falling one Month after the date of this Agreement, the Facility will be automatically cancelled in full.
e.Voluntary prepayment
A Borrower to which an L/G has been issued may, if it gives the relevant Issuing Bank not less than three Business Days' prior notice (or such shorter period as the relevant Issuing Bank (or in case of any L/G issued by several Issuing Banks, all such Issuing Banks) may agree), prepay the whole or any part of that L/G.
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f.Right of replacement or repayment and cancellation in relation to a single Lender
30.If:
xxi.any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 12.2 (Tax grossup);
xxii.any Lender claims indemnification from the Company under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs); or
xxiii.any Lender is a Defaulting Lender;
the Company may, whilst the circumstance giving rise to the requirement for that increase, indemnification or Defaulting Lender status continues, give the Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender's participation in the L/Gs.
31.On receipt of a notice of cancellation referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced to zero.
32.Each Borrower to which a Utilisation is outstanding shall repay that Lender's participation in any such Utilisations.
33.The Company may, in the circumstances set out in paragraph (a) above, on three Business Days' prior notice to the Agent and the Lender (or such shorter period as the Majority Lenders may agree), replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) assign and transfer by way of assumption of contract (Vertragsübernahme) pursuant to Clause 23 (Changes to the Lenders) all (and not part only) of its Available Commitment under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity selected by the Company which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 23 (Changes to the Lenders).
34.The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:
xxiv.the Company shall have no right to replace the Agent;
xxv.neither the Agent nor any Lender shall have any obligation to find a replacement Lender;
xxvi.in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and
xxvii.the Lender shall only be obliged to assign and transfer its rights and obligations pursuant to paragraph (d) above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer.
35.A Lender shall perform the checks described in paragraph 9.6(e)(iv) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (d) above and shall notify the Agent and the Company when it is satisfied that it has complied with those checks.
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g.Mandatory repayment and cancellation of Lenders
If on the date falling six months before the earliest FATCA Application Date for any payment by a Party to a Lender (or to the Agent for the account of that Lender), that Lender is not a FATCA Exempt Party and, in the opinion of that Lender (acting reasonably), that Party will, as a consequence, be required to make a FATCA Deduction from a payment to that Lender (or to the Agent for the account of that Lender) on or after that FATCA Application Date (a "FATCA Event"):
36.that Lender shall, reasonably promptly after that date, notify the Agent of that FATCA Event and the relevant FATCA Application Date;
37.if, on the date falling one month before such FATCA Application Date, that FATCA Event is continuing:
xxviii.that Lender may, at any time between one month and two weeks before such FATCA Application Date, notify the Agent;
xxix.upon the Agent notifying the Company, the Commitment of that Lender will be immediately cancelled; and
xxx.each Borrower shall repay that Lender's participation in the Utilisations made to that Borrower on the last Business Day before the relevant FATCA Application Date.
h.Restrictions
38.Any notice of cancellation or prepayment given by any Party under this Clause 9 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
39.Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and without premium or penalty.
40.No Borrower may reborrow any part of the Facility which is prepaid (other than pursuant to Clause 9.5 (Voluntary prepayment)) or cancelled pursuant to Clause 9.3 (Voluntary Cancellation) or Clause 9.4 (Automatic Cancellation).
41.The Borrowers shall not repay or prepay all or any part of the L/Gs or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
42.Subject to Clause 2.2 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
43.If the Agent receives a notice under this Clause 9 it shall promptly forward a copy of that notice to either the Company or the affected Lender, as appropriate.
44.If all or part of an L/G is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (Further conditions precedent)), an amount of the Commitments (equal to the Base Currency Amount of the amount of the L/G which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.
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45.Any prepayment of an outstanding L/G shall be made in the manner described in paragraph (b) of Clause 8 (Repayment) and shall be subject to the continued payment of the L/G fees and administration fees as further specified in Clause 8 (Repayment).
10.CASH COVER
46.Where any Borrower or the Company is obliged to provide "Cash Cover" for an L/G to the Agent or an Issuing Bank under this Agreement, cash cover is provided if that Borrower or the Company pays an amount in the currency in which that L/G is denominated to an interestbearing account in the name of that Borrower or the Company, as the case may be, and the following conditions are met:
xxxi.the account is with the Agent or with an Affiliate of the Agent (if the Cash Cover is to be provided to the Agent) or with the relevant Issuing Bank or other party agreed by the Issuing Bank (if the Cash Cover is to be provided to that Issuing Bank);
xxxii.until no amount is or may be outstanding under that L/G, withdrawals from the account may only be made to pay the relevant Issuing Bank (or the Agent, if applicable) amounts due and payable to it under this Agreement in respect of that L/G, subject to paragraph (c) below; and
xxxiii.that Borrower or, as the case may be, the Company has executed a security document over that account, in form and substance reasonably satisfactory to the Agent or the relevant Issuing Banks (as applicable) with which that account is held, creating a first ranking security interest over that account for the sole benefit of the relevant Issuing Bank,
and the account will bear interest at a rate equal to: for GBP, XXXXX (Sterling Over Night Index Average), for USD, FFE (Feds Funds Effective), for EUR, EONIA (Euro Overnight Index Average) and for CHF, SARON (Swiss Overnight Index Average) (in each case as determined by the Issuing Bank) for deposits in that currency for one month (if that amount is placed on a one month time deposit), or upon the request of the Agent or any of the Issuing Banks the applicable Overnight Libor Rate for the relevant currency (GBP, USD, EUR or CHF), or otherwise (if it is not or if the deposit is in a currency other than GBP, USD, EUR or CHF) at a normal commercial rate or as otherwise agreed between the Company or the relevant Borrower with the Agent or the relevant Issuing Bank.
47.Where Cash Cover has been provided by a Borrower or the Company:
xxxiv.for an L/G and that L/G is subsequently repaid or prepaid (other than by the provision of Cash Cover), the Agent or the Issuing Banks (as applicable) shall repay to the relevant Borrower the Cash Cover held by it in an amount equal to the amount of such repayment or prepayment (and, if that L/G is denominated in an Optional Currency, the amount repaid or prepaid converted into the Base Currency at the Spot Rate of Exchange on the date of repayment or prepayment) and shall, if the Borrower requests, execute such documentation as is necessary to discharge any security interest over the account referred to above; or
xxxv.pursuant to Clause 6.2 (Company's obligation to prepay) and subsequently the amount by which the aggregate amount of the Base Currency Amount of all L/Gs outstanding exceeds the Total Commitments is reduced to an amount
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which is lower than the amount of the Cash Cover provided to the Agent, or the relevant Issuing Bank (as applicable), the Agent or the relevant Issuing Bank (as applicable) shall repay to the relevant Borrower or the Company the Cash Cover held by it in an amount equal to the difference and shall, if the Company requests, execute such documentation as is necessary to discharge any security interest over the account referred to above,
in each case if no Event of Default has occurred which is continuing.
48.As long as no Event of Default has occurred which is continuing, interest paid on the Cash Cover shall be released at any time to the Company or the Borrower providing the Cash Cover (as the case may be).
49.For the avoidance of doubt, any Cash Cover relating to an L/G shall be released at its Maturity Date, provided that the relevant Issuing Bank has not received any demand of payment in respect of such L/G or, if so received, has been reimbursed by the Company or the relevant Borrower.
11.FEES
a.Commitment fee
50.The Company shall pay to each Issuing Bank a fee in the Base Currency computed at the rate of 35 per cent. of the then applicable L/G fee on that Lender's Available Commitment for the Availability Period.
51.Subject to the terms of this Clause 11.1, the accrued commitment fee is payable in arrears for each successive period of three Months ending on 31 March, 30 June, 30 September and 31 December and any shorter period ending on 31 March 2018, on the last day of the Availability Period and, if cancelled in full, in respect of the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.
52.The commitment fee shall be calculated by each Lender. Each Lender shall notify the Company in writing of the amount of all such commitment fees owed to the relevant Lender within five Business Days after the end of each period set out in paragraph (b) of this Clause 11.1. The Company shall pay the commitment fee to each Lender not later than on the fifth Business Day following receipt by the Company of the notification from the Lender.
53.No commitment fee is payable to a Lender on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.
b.L/G fee
54.Each Borrower shall pay to the relevant Issuing Bank an L/G fee in the Base Currency (computed at the rate equal to the L/G Fee Rate) on the outstanding amount of each L/G requested by it for the period from the date of issue of that L/G until its Maturity Date. For the avoidance of doubt, such fee shall, if not otherwise agreed between the relevant Issuing Bank and the Company (or the relevant Borrower) be reduced to 0.55 per cent. per annum in relation to and beginning at the time any L/G has been repaid by way of Cash Cover or a Counter Guarantee prior to its Maturity Date.
55.The accrued L/G fee on an L/G shall be payable in arrears in respect of each period of three months ending on 31 March, 30 June, 30 September and 31 December (or any shorter periods ending on 31 March 2018, the Termination Date, the date on which
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the Commitments of a Lender under this Agreement are cancelled in full or the date on which the Total Commitments under this Agreement are cancelled in full) (each a "Calculation Period").
56.The L/G fee shall be calculated by the relevant Issuing Bank. The relevant Issuing Bank shall notify the Company in writing of the aggregate amount of all such L/G Fees owed to it within five Business Days after the end of each Calculation Period. The relevant Borrowers shall pay the respective amounts to the relevant Issuing Bank not later than on the fifth Business Day following the notification by such Issuing Bank.
c.Arrangement and participation fee
The Company shall pay to the Arranger an arrangement fee and a participation fee in the amount and at the times agreed in the Mandate Letter.
d.Agency fee
The Company shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in the Agency Fee Letter.
e.Issuance and Administration Fee
Each Borrower shall pay to the relevant Issuing Bank (for its own account) an issuance and administration fee in respect of each L/G requested by it and issued by that Issuing Bank in the amount of EUR 50 per issued L/G or as otherwise agreed between that Issuing Bank and the Company.
f.Default interest and lump sum damages
57.If an Obligor fails to pay any amount (other than default interest) payable by it under a Finance Document on its due date, default interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which complies with the rate set out in paragraph 288(2) of the German Civil Code (Bürgerliches Gesetzbuch). If an Obligor fails to pay default interest payable by it under the Finance Documents on its due date, lump sum damages (pauschalierter Schadensersatz) shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which complies with the rate set out in paragraph 288(2) of the German Civil Code (Bürgerliches Gesetzbuch). In the case of lump sum damages, the relevant Obligor shall be free to prove that no damages have arisen or that damages have not arisen in the asserted amount and any Finance Party shall be entitled to prove that further damages have arisen. Any interest or lump sum accruing under this Clause 11.6 shall be immediately payable by the relevant Obligor on demand by the Agent.
58.The Agent shall promptly notify the Lenders and the relevant Obligor of the determination of a rate of default interest under this Agreement.
g.Minimum Fee Rates
59.The fee rates provided for in this Agreement, including this Clause 11 (Fees) are minimum fee rates.
60.When entering into this Agreement, the parties have assumed that the fees payable at the rates set out in this Agreement are not and will not become subject to the Swiss
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Federal Withholding Tax. Notwithstanding that the parties do not anticipate that any fee payment under this Agreement is or will be subject to the Swiss Federal Withholding Tax, they agree that, in the event that Swiss Federal Withholding Tax should be imposed on fee payments by a Borrower and should it be unlawful for such Borrower to comply with paragraph (c) of Clause 12.2 (Tax grossup) for any reason (where this would otherwise be required by the terms of Clause 12.2 (Tax grossup), taking into account the exclusions set out in paragraph (g) of Clause 12.2 (Tax grossup)), the payment of such fees due by such Borrower shall be increased to an amount which (after making any deduction of the NonRefundable Portion (as defined below) of the Swiss Federal Withholding Tax) results in a payment to each Finance Party entitled to such payment of an amount equal to the payment which would have been due had no deduction of Swiss Federal Withholding Tax been required. For this purpose, the Swiss Federal Withholding Tax shall be calculated on the full grossedup interest amount.
61.For the purposes of this Clause, "NonRefundable Portion" shall mean Swiss Federal Withholding Tax at the standard rate (being, as at the date hereof, 35%) unless a tax ruling issued by the Swiss Federal Tax Administration (SFTA) confirms that, in relation to a specific Finance Party based on an applicable double tax treaty, the NonRefundable Portion is a specified lower rate in which case such lower rate shall be applied in relation to such Finance Party and each Borrower shall provide to the Agent the documents required by law or applicable double taxation treaties for the Finance Parties to claim a refund of any Swiss Federal Withholding Tax so deducted.
12.TAX GROSS UP AND INDEMNITIES
a.Definitions
62.In this Agreement:
•"Borrower DTTP Filing" means an HM Revenue & Customs' Form DTTP2 duly completed and filed by the relevant Borrower, which:
a.where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender's name in Part 2 of Schedule 1 (The Original Parties), and:
1.where the Borrower is an Original Borrower, is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or
2.where the Borrower is an Additional Borrower, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower; or
b.where it relates to a Treaty Lender that is a New Lender or an Increase Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the relevant Transfer Certificate or Increase Confirmation (as applicable), and:
3.where the Borrower is a Borrower as at the relevant Transfer Date or Increase Date (as applicable), is filed with HM Revenue & Customs within 30 days of that Transfer Date or Increase Date (as applicable); or
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4.where the Borrower is not a Borrower as at the relevant Transfer Date or Increase Date (as applicable), is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower.
•"German Borrower" means a Borrower incorporated in Germany.
•"Protected Party" means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
•"Qualifying Lender" means:
c.in respect of interest payable by a German Borrower, a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:
5.lending through a Facility Office in Germany; or
6.a Treaty Lender;
d.in respect of interest payable by a UK Borrower:
7.a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:
a.a Lender:
27.which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or
27.in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or
b.a Lender which is:
27.a company resident in the United Kingdom for United Kingdom tax purposes;
27.a partnership each member of which is:
1.a company so resident in the United Kingdom; or
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2.a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA;
27.a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or
c.a Treaty Lender; or
8.a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document.
e.in respect of a U.S. Borrower, a Lender that has satisfied its obligations under paragraph (f) of Clause 12.2 (Tax grossup);
f.in respect of any other Borrower, any Lender.
•"Tax Confirmation" means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
g.a company resident in the United Kingdom for United Kingdom tax purposes;
h.a partnership each member of which is:
9.a company so resident in the United Kingdom; or
10.a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
i.a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.
•"Tax Credit" means a credit against, relief or remission for, or refund or repayment of any Tax.
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•"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.
•"Tax Payment" means either the increase in a payment made by an Obligor to a Finance Party under Clause 12.2 (Tax grossup) or a payment under Clause 12.3 (Tax indemnity).
•"Treaty Lender" means a Lender which:
j.is treated as a resident of a Treaty State for the purposes of the Treaty; and
k.does not carry on a business in the jurisdiction of incorporation of the relevant Borrower through a permanent establishment with which that Lender's participation in the Utilisation is effectively connected.
•"Treaty State" means a jurisdiction having a double taxation agreement (a "Treaty") with the jurisdiction of incorporation of the relevant Borrower which makes provision for full exemption for tax imposed by the jurisdiction of incorporation of the relevant Borrower on interest.
•"UK Borrower" means a Borrower incorporated in the United Kingdom.
•"UK NonBank Lender" means:
l.where a Lender becomes a Party on the day on which this Agreement is entered into, a Lender listed in Part 2 of Schedule 1 (The Original Parties); and
m.where a Lender becomes a Party after the day on which this Agreement is entered into, a Lender which gives a Tax Confirmation in the Transfer Certificate which it executes on becoming a Party.
63.Unless a contrary indication appears, in this Clause 12 a reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination, acting reasonably and in good faith.
b.Tax grossup
64.Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
65.The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender, it shall notify the Company and that Obligor.
66.If a Tax Deduction is required by law to be made by or on behalf of an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
67.A payment shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax (other than Swiss Federal Withholding Tax in which
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case paragraph (g) shall apply) imposed on payments of interest by the jurisdiction of incorporation of the relevant Borrower if on the date on which the payment falls due:
i.the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender with respect to the relevant Borrower, but on that date that Lender is not or has ceased to be a Qualifying Lender with respect to the relevant Borrower other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or published concession of any relevant taxing authority;
ii.the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (j) or (with respect to payments by a UK Borrower) paragraph (k) below;
iii.the relevant Lender is a Qualifying Lender solely by virtue of paragraph (ii)(A)(2) of the definition of Qualifying Lender; and
a.an officer of HM Revenue & Customs has given (and not revoked) a direction (a "Direction") under section 931 of the ITA which relates to the payment and that Lender has received from the Obligor making the payment or from the Company a certified copy of that Direction; and
b.the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or
iv.the relevant Lender is a Qualifying Lender solely by virtue of paragraph (ii)(A)(2) of the definition of Qualifying Lender; and
c.the relevant Lender has not given a Tax Confirmation to the Company; and
d.the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Company, on the basis that the Tax Confirmation would have enabled the Company to have formed a reasonable belief that the payment was an "excepted payment" for the purpose of section 930 of the ITA.
68.A payment shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax (other than Swiss Federal Withholding Tax in which case paragraph (g) shall apply) imposed by the jurisdiction of incorporation of the relevant Borrower if on the date on which the payment falls due, such payment relates to:
v.Taxes imposed on or measured by net income (however denominated), franchise Taxes, or branch profits Taxes, in each case:
e.imposed as a result of the recipient Lender being organised under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof); or
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f.that are Taxes imposed as a result of a present or former connection between such recipient Lender and the jurisdiction imposing such Tax (other than connections arising from such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Finance Document, or sold or assigned an interest in any L/G or Finance Document);
vi.in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in an L/G or Commitment pursuant to a law in effect on the date on which:
g.such Lender acquires such interest in the L/G or Commitment (other than pursuant to an assignment request by the Borrower under Clause 9.6 (Right of replacement or repayment and cancellation in relation to a single Lender)); or
h.such Lender changes its lending office, except in each case to the extent that, pursuant to this Clause 12, amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office;
vii.Taxes attributable to such Lender's failure to comply with this paragraph (e) or paragraph (f) of this Clause 12.2.
69.Status of Lenders
viii.Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Finance Document shall deliver to the Borrowers and the Agent, prior to the date on which such Lender becomes a Lender under this Agreement or acquired an interest therein and at the time or times reasonably requested by the Borrowers or the Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Agent as will enable the Borrowers or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 12.2(f)(ii)(A), (ii)(B) and 12.8(e) below, or the UK tax documentation required under Section 12.2(j)(ii)) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
ix.Without limiting the generality of the foregoing, in the case of a U.S. Borrower:
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i.any Lender that is a U.S. Person shall deliver to such U.S. Borrower and the Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of such U.S. Borrower or the Agent), duly executed copies of IRS Form W9 or successor form certifying that such Lender is exempt from U.S. federal backup withholding tax;
j.any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to such U.S. Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of such U.S. Borrower or the Agent), whichever of the following is applicable;
1.duly executed copies of IRS Form W8BEN/W-8BEN-E establishing any exemption or reduction in payments made under any Finance Document;
2.duly executed copies of IRS Form W8ECI;
3.in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Clause 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H1 to the effect that such Foreign Lender is not a "bank" within the meaning of Clause 881(c)(3)(A) of the Code, a "10 percent shareholder" of such U.S. Borrower within the meaning of Clause 881(c)(3)(B) of the Code, or a "controlled foreign corporation" described in Clause 881(c)(3)(C) of the Code (a "U.S. Tax Compliance Certificate") and (y) executed copies of IRS Form W8BEN/W-8BEN-E; or
4.to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W8IMY, accompanied by IRS Form W8ECI, IRS Form W8BEN/W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H2 or Exhibit H3, IRS Form W9, and/or other certification documents from each beneficial owner, as may be required; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H4 on behalf of each such direct and indirect partner;
k.any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to such U.S. Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of such U.S. Borrower or the Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from
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or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit such U.S. Borrower or the Agent to determine the withholding or deduction required to be made.
x.Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Agent in writing of its legal inability to do so.
70.A Borrower shall not be required to make an increased payment to a specific Lender under paragraph (c) above by reason of a Tax Deduction by a Borrower on account of Swiss Federal Withholding Tax if the number of Lenders under this Agreement that are not Swiss Qualifying Banks exceeds 10 (ten) solely because such Lender (i) has failed to comply with its obligations under Clause 23 (Changes to Lenders) or (ii) ceased to be a Swiss Qualifying Bank other than as a result of any change after the date it became a Finance Party under this Agreement in (or in the interpretation, administration or application of) any law or any published practice or concession of any relevant taxing authority.
71.If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
72.Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
73. Subject to subparagraph (ii) below, a Treaty Lender, and each Obligor which makes a payment to which that Treaty Lender is entitled, shall cooperate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction;
xi. a Treaty Lender with respect to a UK Borrower which becomes a Party on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Part 2 of Schedule 1 (The Original Parties); and
l.a New Lender or an Increase Lender that is a Treaty Lender with respect to a UK Borrower and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the Transfer Certificate or Increase Confirmation (as applicable) which it executes,
and, having done so, that Lender shall be under no obligation pursuant to subparagraph (i) above.
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74.If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph 12.2(j)(ii) above and:
xii.a Borrower making a payment to that Lender has not made a Borrower DTTP Filing in respect of that Lender; or
xiii.a Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:
m.that Borrower DTTP Filing has been rejected by HM Revenue & Customs; or
n.HM Revenue & Customs has not given the Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing,
and in each case, the Borrower has notified that Lender in writing, that Lender and the Borrower shall cooperate in completing any additional procedural formalities necessary for that Borrower to obtain authorisation to make that payment without a Tax Deduction.
75.If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph 12.2(j)(ii) above, no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender's Commitment(s) or its participation in any Utilisation unless the Lender otherwise agrees.
76.A Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Agent for delivery to the relevant Lender.
77.A UK NonBank Lender which becomes a Party on the day on which this Agreement is entered into gives a Tax Confirmation to the Company by entering into this Agreement.
78.A UK NonBank Lender shall promptly notify the Company and the Agent if there is any change in the position from that set out in the Tax Confirmation.
c.Tax indemnity
79.The Company shall (within five Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
80.Paragraph (a) above shall not apply:
xiv.with respect to any Tax assessed on a Finance Party:
o.under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
p.under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
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if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
xv.to the extent a loss, liability or cost:
q.is compensated for by an increased payment under Clause 12.2 (Tax grossup) or Clause 11.7 (Minimum Fee Rates);
r.would have been compensated for by an increased payment under Clause 12.2 (Tax grossup) or Clause 11.7 (Minimum Fee Rates) but was not so compensated solely because one of the exclusions in paragraph (d), (e) or (g) of Clause 12.2 (Tax grossup) or in paragraph (b) of Clause 11.7 (Minimum Fee Rates) applied;
s.which relates to a FATCA Deduction required to be made by a Party; or
t.relates to any Bank Levy.
81.A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Company.
82.A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3, notify the Agent.
d.Tax Credit
If an Obligor makes a Tax Payment and the relevant Finance Party determines that:
83.a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and
84.that Finance Party has obtained and utilised that Tax Credit,
the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same afterTax position as it would have been in had the Tax Payment not been required to be made by the Obligor. If a Finance Party makes a payment to an Obligor pursuant to this Clause 12.4 in connection with a Tax Credit, the Obligor, upon the request of the Finance Party, shall repay to the Finance Party such amount that was paid pursuant to Clause 12.4 (plus any penalties, interest or other charges imposed by the relevant governmental or taxing authority) in the event that the Finance Party loses the benefit of, or has to repay to such governmental or taxing authority, such Tax Credit.
e.Lender Status Confirmation
Each Lender which becomes a Party to this Agreement after the date of this Agreement shall indicate, in the Transfer Certificate or Increase Confirmation which it executes on becoming a Party, and for the benefit of the Agent and without liability to any Obligor, which of the following categories it falls in with respect to each relevant Borrower:
85.not a Qualifying Lender;
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86.a Qualifying Lender (other than a Treaty Lender); or
87.a Treaty Lender.
If a New Lender or Increase Lender fails to indicate its status in accordance with this Clause 12.5, then such New Lender or Increase Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Agent which category applies (and the Agent, upon receipt of such notification, shall inform the Company). For the avoidance of doubt, a Transfer Certificate or Increase Confirmation shall not be invalidated by any failure of a Lender to comply with this Clause 12.5.
f.Stamp taxes
The Company shall pay and, within five Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
g.VAT
88.All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).
89.If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):
xvi.(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (b)(i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
xvii.(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
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90.Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
91.Any reference in this Clause 12.7 to any party shall, at any time when such party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated as making the supply or (as appropriate) receiving the supply under the grouping rules (as provided for in Article 11 of the Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union or any other similar provision in any jurisdiction which is not a member state of the European Union)) (including, for the avoidance of doubt, in accordance with section 43 of the United Kingdom Value Added Tax Act 1994) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).
92.In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.
h.FATCA Information
93.Subject to paragraph (c) below, each Party shall within ten Business Days of a reasonable request by another Party:
xviii.confirm to that other Party whether it is:
u.a FATCA Exempt Party; or
v.not a FATCA Exempt Party; and
xix.supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
xx.supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.
94.If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
95.Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:
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xxi.any law or regulation;
xxii.any fiduciary duty; or
xxiii.any duty of confidentiality.
96.If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i)or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
97.If a Borrower is a U.S. Tax Obligor or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
xxiv.where an Original Borrower is a U.S. Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
xxv.where a Borrower is a U.S. Tax Obligor on a date on which any other Lender becomes a Party as a Lender, that date;
xxvi.the date a new U.S. Tax Obligor accedes as a Borrower; or
xxvii.where a Borrower is not a U.S. Tax Obligor, the date of a request from the Agent,
supply to the Agent:
w.a withholding certificate on Form W-8, Form W-9 or any other relevant form; or
x.any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
98.The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the relevant Borrower.
99.If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the relevant Borrower.
100.The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above.
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i.FATCA Deduction
101.Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
102.Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Company and the Agent and the Agent shall notify the other Finance Parties.
13.INCREASED COSTS
a.Increased costs
103.Subject to Clause 13.3 (Exceptions) the Company shall pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation in each case made after the date of this Agreement; provided that notwithstanding anything herein to the contrary, (x) the DoddFrank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be have been introduced after the date of this Agreement, regardless of the date enacted, adopted or issued.
104.In this Agreement "Increased Costs" means:
xxviii.a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital;
xxix.an additional or increased cost; or
xxx.a reduction of any amount due and payable under any Finance Document,
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document. Such amounts shall be determined in good faith consistent with similarly situated customers of the applicable Finance Party under agreements having provisions similar to this Clause 13.1 after consideration of such factors as such Finance Party then reasonably determines to be relevant.
b.Increased cost claims
105.A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Company.
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106.A certificate of the affected Finance Party setting forth, in reasonable detail, the basis and calculation of the amount or amounts necessary to compensate such Finance Party or its Affiliates, as the case may be, as specified in Clauses 13.1(a) or (b) shall be delivered to the Company and shall be conclusive absent manifest error. The Company shall pay, or cause the other Borrowers to pay, such Finance Party, as the case may be, the amount shown as due on any such certificate within fifteen (15) days after receipt thereof.
c.Exceptions
107.Clause 13.1 (Increased costs) does not apply to the extent any Increased Cost is:
xxxi.attributable to a Tax Deduction required by law to be made by an Obligor;
xxxii.attributable to a FATCA Deduction required to be made by a Party;
xxxiii.compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (Tax indemnity) applied);
xxxiv.attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;
xxxv.incurred more than 180 days prior to the date that such Finance Party notifies the Company of the circumstance giving rise to such increased costs or reductions and of such Finance Party's intention to claim compensation therefore; provided further that, if the circumstance giving rise to such Increased Costs is retroactive, then the 180day period referred to above shall be extended to include the period of retroactive effect thereof; or
xxxvi.attributable to any Bank Levy
108.In this Clause 13.3, a reference to a "Tax Deduction" has the same meaning given to the term in Clause 12.1 (Definitions).
14.OTHER INDEMNITIES
a.Currency indemnity
109.If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:
xxxvii.making or filing a claim or proof against that Obligor;
xxxviii.obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within five Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency
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into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.
110.Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
b.Other indemnities
Subject to and without any duplication of Clause 16.3 (Enforcement Costs) which shall prevail over this Clause 14.2, the Company shall (or shall procure that an Obligor will), within five Business Days of demand, indemnify each Finance Party against any cost (which in the case of counsel, shall be limited to the fees, charges and disbursements of (x) one primary counsel and one local counsel in each applicable jurisdiction for the Agent, (y) one additional primary counsel and one additional local counsel in each applicable jurisdiction, for all Lenders other than the Agent and (z) additional counsel for affected Lenders in light of actual or potential conflicts of interest), loss or liability incurred by that Finance Party as a result of:
111.the occurrence of any Event of Default;
112.a failure by an Obligor to pay any amount due by an Obligor under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 27 (Sharing among the Finance Parties);
113.making arrangements to issue any L/G requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or
114.a Utilisation (or part of a Utilisation) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Company,
provided that such indemnity shall not, as to any Finance Party, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgement to have resulted from any dispute solely among the Finance Parties (not arising as a result of any act or omission by any member of the Group) other than claims against the Agent or any Issuing Bank or any Arranger in its capacity as, or in fulfilling its role as, the Agent or an Issuing Bank or an Arranger or any similar role under this Agreement.
c.Indemnity to the Agent
115.The Company shall promptly indemnify the Agent against any cost (which in the case of counsel, shall be limited to the fees, charges and disbursements of one primary counsel and one local counsel in each applicable jurisdiction for the Agent, loss or liability incurred by the Agent (acting reasonably) as a result of:
xxxix.investigating any event which it reasonably believes is a Default; or
xl.acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
116.In case a Lender fails to inform the Agent pursuant to Clause 12.8 (FATCA Information) or such information is incomplete or incorrect the relevant Lender shall indemnify the Agent, within three Business Days of demand, against any cost, loss or
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liability incurred by the Agent respectively as a consequence of noncompliance with FATCA by the Agent as a result of such Lender's failure.
15.MITIGATION BY THE LENDERS
a.Mitigation
117.Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 9.1 (Illegality), Clause 12 (Tax grossup and indemnities) or Clause 13 (Increased costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
118.Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
b.Limitation of liability
119.The Company shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).
120.A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
16.COSTS AND EXPENSES
a.Transaction expenses
The Company shall promptly on demand pay the Agent and the Arranger the amount of all costs and expenses (including legal fees subject to the agreed cap (if any)) reasonably incurred by any of them in connection with the negotiation, preparation and execution of:
121.this Agreement and any other documents referred to in this Agreement; and
122.any other Finance Documents executed after the date of this Agreement.
b.Amendment costs
If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 28.10 (Change of currency), the Company shall, within five Business Days of demand, reimburse the Agent for the amount of all costs and expenses (including preagreed legal fees) reasonably incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement.
c.Enforcement costs
The Company shall, within three Business Days of demand, pay to each Finance Party the amount of all documented outofpocket costs and expenses (which in the case of counsel, shall be limited to the reasonable fees, charges and disbursements of one primary counsel and one local counsel in each applicable jurisdiction for the Agent and one additional primary counsel and one additional local counsel in each applicable jurisdiction for all Lenders other than the Agent and additional counsel for affected Lenders in light of actual or potential
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conflicts of interest) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.
17.GUARANTEE AND INDEMNITY
a.Guarantee (Garantie) and indemnity (Ausfallhaft