23 December 2003 SENIOR FACILITIES AGREEMENT Between BUHRMANN N.V. as Parent BUHRMANN US INC. as Borrower THE ORIGINAL GUARANTORS NAMED HEREIN as Original Guarantors DEUTSCHE BANK AG LONDON ABN AMRO BANK N.V. as Arrangers DEUTSCHE BANK AG LONDON as...
Exhibit 4.19
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CONFORMED COPY |
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(Incorporating amendments made pursuant to an amendment agreement dated 10 March 2004 and a second amendment deed dated 28 June 2004) |
23 December 2003
€730,000,000
Between
XXXXXXXX N.V.
as Parent
XXXXXXXX
US INC.
as Borrower
THE
ORIGINAL GUARANTORS NAMED HEREIN
as Original Guarantors
DEUTSCHE
BANK AG LONDON
ABN AMRO BANK N.V.
as Arrangers
DEUTSCHE
BANK AG LONDON
as Agent
DEUTSCHE
BANK AG LONDON
as Security Trustee
and
THE LENDERS
London
TABLE OF CONTENTS
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iii
THIS AGREEMENT is dated 23 December 2003 and made between:
(1) XXXXXXXX N.V. (the “Parent”);
(2) XXXXXXXX US INC. (the “Borrower”);
(3) THE ORIGINAL GUARANTORS NAMED IN PART II OF SCHEDULE 1 (together with the Parent, the “Original Guarantors” and each an “Original Guarantor”);
(4) DEUTSCHE BANK AG LONDON and ABN AMRO BANK N.V. (each an “Arranger” and together, the “Arrangers”);
(5) DEUTSCHE BANK AG LONDON (as agent for and on behalf of the Finance Parties, the “Agent”);
(6) DEUTSCHE BANK AG LONDON (as security trustee for and on behalf of the Finance Parties, the “Security Trustee”); and
(7) THE LENDERS (as defined below).
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement the following terms have the meanings set out below.
“Acceding Guarantor” means any member of the Group which has complied with the requirements of Clause 27 (Accession of New Guarantors).
“Accession Notice” means a duly completed notice of accession in the form of Part I of Schedule 7 (Form of Accession Notice).
“Act” means the Companies Xxx 0000.
“Additional C Facility Commitments” means, at any time, the aggregate of the Additional C1 Facility Commitments and the Additional C2 Facility Commitments.
“Additional C1 Facility” means the term loan facility agreement granted to the Borrower pursuant to Clause 2.1(f)(i) (The Facilities).
“Additional C1 Facility Advance” means an advance (as from time to time reduced by repayment) made or to be made by the C1 Facility Lenders under the Additional C1 Facility.
“Additional C1 Facility Commitment” means, in relation to a C1 Facility Lender at any time, and save as otherwise provided in this Agreement, the amount set opposite its name in the relevant column of Section A of Part I of Schedule 1 (Lenders and Commitments) or as specified in the Transfer Certificate pursuant to which such Lender becomes a party to this Agreement.
“Additional C2 Facility” means the term loan facility granted to the Borrower pursuant to Clause 2.1(g)(i) (The Facilities).
1
“Additional C2 Facility Advance” means an advance (as from time to time reduced by repayment) made or to be made by the C2 Facility Lenders under the Additional C2 Facility.
“Additional C2 Facility Commitment” means, in relation to a C2 Facility Lender at any time, and save as otherwise provided in this Agreement, the amount set opposite its name in the relevant column of Section A of Part I of Schedule 1 (Lenders and Commitments) or as specified in the Transfer Certificate pursuant to which such Lender becomes a party to this Agreement.
“Additional Security Documents” means all mortgages, pledge agreements, security agreements and other security documents entered into from time to time pursuant to Clauses 25.7 (Additional Security and Further Assurances), 25.8 (Stock Pledges in Non-U.S. Subsidiaries of the Borrower Which Are Not Guarantors) and/or 26.12 (Limitation on Creation of Subsidiaries), as each such document may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.
“Adjusted Consolidated EBITDA” means, for any period, Consolidated EBITDA for such period, adjusted by excluding therefrom (to the extent otherwise included therein) any amounts attributable to CEAL and any of its Subsidiaries, so long as CEAL is a Non-Wholly Owned Subsidiary.
“Adjusted Consolidated Net Income” means, for any period, Consolidated Net Income for such period plus, without duplication, the sum of the amount of all net non-cash charges (including, without limitation, depreciation, amortisation, deferred tax expense and non-cash interest expense) and net non-cash losses which were included in arriving at Consolidated Net Income for such period, less the amount of all net non-cash gains and non-cash credits which were included in arriving at Consolidated Net Income for such period.
“Adjusted Consolidated Tangible Assets” means, at any time, the Consolidated Tangible Assets at such time, adjusted by excluding therefrom (to the extent otherwise reflected therein) any amounts attributable to (a) CEAL and any of its Subsidiaries, so long as CEAL is a Non-Wholly Owned Subsidiary and (b) any Receivables Subsidiary.
“Adjusted Consolidated Working Capital” means, at any time, Consolidated Current Assets (but excluding therefrom all cash and Cash Equivalents) less Consolidated Current Liabilities at such time.
“Advance” means, save as otherwise provided in this Agreement, a Revolving Facility Advance, an A Facility Advance, a B1 Facility Advance, a B2 Facility Advance, a C1 Facility Advance, a C2 Facility Advance, a Swingline Facility Advance or an Incremental Term Facility Advance as the context may require.
“A Facility” means the term loan facility granted to the Borrower pursuant to Clause 2.1(c) (The Facilities).
“A Facility Advance” means an advance (as from time to time reduced by repayment) made or to be made by the A Facility Lenders under the A Facility or arising in respect of the A Facility under Clause 15.3 (Division of Term Facility Advances).
“A Facility Commitment” means, in relation to an A Facility Lender at any time, and save as otherwise provided in this Agreement, the amount set opposite its name in the relevant
2
column of Section A of Part I of Schedule 1 (Lenders and Commitments) or as specified in the Transfer Certificate pursuant to which such Lender becomes a party to this Agreement.
“A Facility Lender” means a person which:
(a) is named opposite the column relating to the A Facility (with a positive amount) in Section A of Part I of Schedule 1 (Lenders and Commitments); or
(b) has become a party to this Agreement in accordance with the provisions of Clause 39 (Assignments and Transfers),
which in each case has not ceased to be a party to this Agreement in accordance with the terms of this Agreement.
“A Facility Margin” means, in relation to A Facility Advances, 2.50 per cent. per annum.
“A Facility Outstandings” means, at any time, the aggregate principal amount of the A Facility Advances outstanding under this Agreement.
“A Facility Repayment Date” has the meaning ascribed to that term in Clause 10.1 (Repayment of A Facility Outstandings).
“Affiliate” means, with respect to any person, any other person directly or indirectly controlling (including, but not limited to, all directors and officers of such person), controlled by, or under direct or indirect common control with, such person. A person shall be deemed to control another person if such person possesses, directly or indirectly, the power (a) to vote 10 per cent. or more of the securities having ordinary voting power for the election of directors of such corporation or (b) to direct or cause the direction of the management and policies of such other person, whether through the ownership of voting securities, by contract or otherwise, provided that neither the Agent nor any Lender (nor, in each case, any affiliate thereof) shall be considered an Affiliate of the Parent or any subsidiary thereof.
“Affiliate Debt” means any Indebtedness (including, without limitation, any Intercompany Existing Indebtedness), whether now existing or hereafter incurred, owed by (a) the Parent to any of its Subsidiaries or Affiliates (b) any Subsidiaries of the Parent to the Parent or any of its Subsidiaries or Affiliates or (c) any Affiliate of the Parent to the Parent or any of its Subsidiaries.
“Agent’s Spot Rate of Exchange” means, in relation to two currencies, the Agent’s spot rate of exchange for the purchase of the first-mentioned currency with the second-mentioned currency in the London foreign exchange market at or about 11a.m. on a particular day.
“Agreed Business Plan” means the business plan for the Group prepared by or on behalf of the Parent in the agreed form.
“Alternate Currency Incremental Term Facility Advance” means each Incremental Term Facility Advance denominated in an Optional Currency.
“Applicable Currency” means, for any Tranche of Incremental Term Facility Advances, the currency (in euros or in an Optional Currency) for such Tranche designated in the Incremental Term Facility Commitment Agreement for such Tranche.
3
“Applicable Excess Cash Flow Percentage” means, (a) so long as a Default or an Event of Default exists on the respective Excess Cash Flow Payment Date, 100 per cent. and (b) so long as no Default or Event of Default exists on the respective Excess Cash Flow Payment Date, 50 per cent. where the Consolidated Leverage Ratio on the last day of the respective Excess Cash Flow Payment Period is equal to or greater than 2.50:1.00 and zero where the Consolidated Leverage Ratio on the last day of the respective Excess Cash Flow Payment Period is less than 2.50:1.00.
“Applicable Margin” means:
(a) with respect to the A Facility, the C Facilities and the Revolving Facility, the A Facility Margin, the C Facilities Margin and the Revolving Facility Margin, respectively. From and after each day of delivery of any certificate delivered in accordance with the following sentence indicating an entitlement to a different margin than the A Facility Margin, the C Facilities Margin or the Revolving Facility Margin, as the context may require, (each, a “Start Date”) to and including the applicable End Date described below, the Applicable Margin shall (subject to any adjustment pursuant to the immediately succeeding paragraph) be that set forth below opposite the Consolidated Leverage Ratio indicated to have been achieved in any certificate delivered in accordance with the following sentence:
Consolidated |
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Applicable Margin for |
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Applicable Margin for |
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Applicable Margin for |
Greater than 3.50:1.00 |
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2.500 per cent. |
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1.500 per cent. |
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2.50 per cent |
Greater than 3.00:1.00 but less than or equal to 3.50:1.00 |
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2.250 per cent. |
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1.250 per cent. |
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2.50 per cent |
Greater than 2.50:1:00 but less than or equal to 3.00:1.00 |
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2.000 per cent. |
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1.000 per cent. |
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2.25 per cent |
Greater than 2.00:1.00 but less than or equal to 2.50:1.00 |
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1.750 per cent. |
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0.750 per cent |
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2.25 per cent |
Less than or equal to 2.00:1.00 |
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1.500 per cent. |
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0.500 per cent. |
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2.25 per cent |
The Consolidated Leverage Ratio shall be determined based on the delivery of a certificate of the Parent by an Authorised Representative of the Parent to the Agent (with a copy to be sent by the Agent to each Lender), within 50 days of the last day of any fiscal quarter of the Parent, which certificate shall set forth the calculation of the Consolidated Leverage Ratio as at the last day of the Test Period ended immediately prior to the relevant Start Date (but determined on a Pro Forma Basis to give effect to any €5 Million Permitted Acquisition and any €5 Million Asset Sale effected on or prior to the date of delivery of such certificate) and the Applicable Margins which shall be thereafter applicable (until same are changed or cease to apply in accordance
4
with the following sentences). The Applicable Margins so determined shall apply, except as set forth in the succeeding sentence, from the Start Date to the earlier of (i) the date on which the next certificate is delivered to the Agent, (ii) the date which is 50 days following the last day of the Test Period in which the previous Start Date occurred (the “End Date”), at which time, if no certificate has been delivered to the Agent indicating an entitlement to an Applicable Margin other than those described in the first sentence of this paragraph (a) (and thus commencing a new Start Date), the Applicable Margins shall be the A Facility Margin, the C Facilities Margin and the Revolving Facility Margin (as applicable); and
(b) with respect to each Tranche of the Incremental Term Facility Outstandings, that percentage set forth in, or calculated in accordance with, Clause 7 (Uncommitted Incremental Facilities) and the relevant Incremental Term Facility Commitment Agreement provided that, if at any time, the Applicable Margin relating to any Incremental Term Facility Outstandings exceeds by more than 0.50 per cent. the Applicable Margin relating to the C Facilities at such time, the Applicable Margin relating to the C Facilities shall be automatically increased to a percentage which is 0.50 per cent. below the Applicable Margin relating to the Incremental Term Facility Outstandings.
“Asset Sale” means any sale (including pursuant to sale-leaseback transactions (other than a sale-leaseback transaction where the Parent or any of its Subsidiaries played a primary financial role in the development of the relevant asset)), transfer or other disposition by the Parent or any of its Subsidiaries to any person other than the Parent or any Wholly-Owned Subsidiary of the Parent of any asset or Property (including, without limitation, any Equity Interests or other securities of another person, but excluding the sale by the Parent of its own share capital) of the Parent or such Subsidiary other than (a) sales, transfers or other dispositions of inventory made in the ordinary course of business, (b) sales, transfers or other dispositions of assets pursuant to paragraphs (c)(i) (obsolete equipment), (f) (inventory), (g) (overdue receivables) and (h) (condemned property) of Clause 26.2 (Consolidation, Merger, Purchase or Sale of Assets, etc.), (c) sales or liquidations of Cash Equivalents, (d) sales of Receivables Facility Assets pursuant to any Permitted Receivables Transaction, (e) operating leases or subleases of any property by the Parent and its Subsidiaries in the ordinary course of business, (f) the licensing of intellectual property in the ordinary course of business, (g) any Sale In Lieu of Liquidation and (h) any single sale of assets (or series of related sales of assets) which generates Net Sale Proceeds of less than €250,000 (or its equivalent in other currencies).
“Associated Costs Rate” means, in relation to any Advance or Unpaid Sum, the rate determined in accordance with Schedule 6 (Associated Costs Rate).
“Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.
“Authorised Representative” means, with respect to (i) delivering Utilisation Requests and similar notices, any person or persons that has or have been authorised by the board of directors of the Borrower to deliver such notices pursuant to this Agreement and that has or have appropriate signature cards on file with the Agent, (ii) delivering financial information and officer’s certificates pursuant to this Agreement, the chief financial officer, any treasurer or other financial officer of the Borrower or the Parent and (iii) any other matter in
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connection with any Finance Document, any officer (or a person or persons so designated by any two officers) of the Parent or the Borrower.
“Available Additional C1 Facility Commitment” means, in relation to a C1 Facility Lender, at any time and save as otherwise provided in this Agreement, its Additional C1 Facility Commitment at such time adjusted to take account of:
(a) any cancellation or reduction of it or any transfer by such C1 Facility Lender or any transfer to it, in each case, pursuant to the terms of this Agreement; and
(b) in the case of any proposed Advance, the Euro Amount of any Additional C1 Facility Advance which, pursuant to any other Utilisation Request is to be made on or before the proposed Utilisation Date,
less the Euro Amount of its share of the Additional C1 Facility Advances made under this Agreement, provided always that such amount shall not be less than zero.
“Available Additional C2 Facility Commitment” means, in relation to a C2 Facility Lender, at any time and save as otherwise provided in this Agreement, its Additional C2 Facility Commitment at such time adjusted to take account of:
(a) any cancellation or reduction of it or any transfer by such C2 Facility Lender or any transfer to it, in each case, pursuant to the terms of this Agreement; and
(b) in the case of any proposed Advance, the Euro Amount of any Additional C2 Facility Advance which, pursuant to any other Utilisation Request is to be made on or before the proposed Utilisation Date,
less the Euro Amount of its share of the Additional C2 Facility Advances made under this Agreement, provided always that such amount shall not be less than zero.
“Available A Facility Commitment” means, in relation to an A Facility Lender, at any time and save as otherwise provided in this Agreement, its A Facility Commitment at such time adjusted to take account of:
(a) any cancellation or reduction of it or any transfer by such an A Facility Lender or any transfer to it, in each case, pursuant to the terms of this Agreement; and
(b) in the case of any proposed Advance, the Euro Amount of any A Facility Advance which, pursuant to any other Utilisation Request is to be made on or before the proposed Utilisation Date,
less the Euro Amount of its share of the A Facility Advances made under this Agreement, provided always that such amount shall not be less than zero.
“Available B1 Facility Commitment” means, in relation to a B1 Facility Lender, at any time and save as otherwise provided in this Agreement, its B1 Facility Commitment at such time adjusted to take account of:
(a) any cancellation or reduction of it or any transfer by such B1 Facility Lender or any transfer to it, in each case, pursuant to the terms of this Agreement; and
6
(b) in the case of any proposed Advance, the Euro Amount of any B1 Facility Advance which, pursuant to any other Utilisation Request is to be made on or before the proposed Utilisation Date,
less the Euro Amount of its share of the B1 Facility Advances made under this Agreement, provided always that such amount shall not be less than zero.
“Available B2 Facility Commitment” means, in relation to a B2 Facility Lender, at any time and save as otherwise provided in this Agreement, its B2 Facility Commitment at such time adjusted to take account of:
(a) any cancellation or reduction of it or any transfer by such B2 Facility Lender or any transfer to it, in each case, pursuant to the terms of this Agreement; and
(b) in the case of any proposed Advance, the Euro Amount of any B2 Facility Advance which, pursuant to any other Utilisation Request is to be made on or before the proposed Utilisation Date,
less the Euro Amount of its share of the B2 Facility Advances made under this Agreement, provided always that such amount shall not be less than zero.
“Available Commitment” means, in relation to a Lender, the aggregate amount of its Available Revolving Facility Commitment, its Available Term Facility Commitments and, subject to Clause 7 (Uncommitted Incremental Facilities) and the relevant Incremental Facility Commitment Agreement, its Available Incremental Term Facility Commitment or, in the context of a particular Facility, its Available A Facility Commitment, its Available B1 Facility Commitment, its Available B2 Facility Commitment, its Available Additional C1 Facility Commitment, its Available Additional C2 Facility Commitment, its Available Revolving Facility Commitment, its Available Swingline Facility Commitment or its Available Incremental Term Facility Commitment, as the context may require.
“Available Facility” means, in relation to a Facility, at any time, the aggregate amount of the Available Commitments in respect of that Facility at that time.
“Available Incremental Term Facility Commitment” means, in relation to a Lender, at any time and save as otherwise provided in this Agreement, its Incremental Term Facility Commitment at such time adjusted to take account of:
(a) any cancellation or reduction of it or any transfer by such Lender or any transfer to it, in each case, pursuant to the terms of this Agreement; and
(b) in the case of any proposed Advance, the Euro Amount of any Incremental Term Facility Advance which, pursuant to any other Incremental Term Facility Commitment Agreement is to be made on or before the proposed Utilisation Date,
less the Euro Amount of its share of the Incremental Term Facility Advances made under this Agreement and the relevant Incremental Term Facility Commitment Agreement, provided always that such amount shall not be less than zero.
“Available Liquidity” means, at any time, an amount equal to the Available Revolving Facility.
7
“Available Revolving Facility” means, at any time, the aggregate amount of the Available Revolving Facility Commitments.
“Available Revolving Facility Commitment” means, in relation to a Revolving Facility Lender, at any time and save as otherwise provided in this Agreement, its Revolving Facility Commitment, adjusted to take account of:
(a) any cancellation or reduction of it or any transfer by such Revolving Facility Lender or any transfer to it, in each case, pursuant to the terms of this Agreement; and
(b) in the case of any proposed Utilisation, the Euro Amount of (i) any Revolving Facility Advance and/or Documentary Credit and/or any Swingline Facility Advance which pursuant to any other Utilisation Request is to be made, or as the case may be, issued and (ii) any Revolving Facility Advance and/or Documentary Credit and/or any Swingline Facility Advance which is due to be repaid or expire (as the case may be), in each case, on or before the proposed Utilisation Date,
less the Euro Amount of its participation in the Swingline Facility Outstandings and the Revolving Facility Outstandings at such time provided always that such amount shall not be less than zero.
“Available Swingline Facility” means, at any time, the aggregate amount of the Available Swingline Facility Commitments.
“Available Swingline Facility Commitment” means, in relation to a Swingline Facility Lender, at any time and save as otherwise provided in this Agreement its Swingline Facility Commitment, adjusted to take account of:
(a) any cancellation or reduction of it or any transfer by such Swingline Facility Lender or any transfer to it, in each case, pursuant to the terms of this Agreement; and
(b) in the case of any proposed Utilisation, the Euro Amount of (A) any Swingline Facility Advance which pursuant to any other Utilisation Request is to be made and (B) any Swingline Facility Advance which is due to be repaid, in each case, on or before the proposed Utilisation Date,
less the Euro Amount of its participation in the Swingline Facility Outstandings at such time,
provided always that such amount shall not be less than zero.
“Available Term Facility Commitment” means, in relation to a Lender, the aggregate amount of its Available A Facility Commitment, its Available B1 Facility Commitment, its Available B2 Facility Commitment, its Available Additional C1 Facility Commitment and its Available Additional C2 Facility Commitment.
“BBA LIBOR” means in relation to an Optional Currency, the British Bankers’ Association Interest Settlement Rate for the relevant currency and specified period.
“B Facilities” means the B1 Facility and the B2 Facility and “B Facility” means any of them as the context may require from time to time.
8
“B Facility Advances” means the B1 Facility Advances and the B2 Facility Advances.
“B Facility Commitments” means, at any time, the aggregate of the B1 Facility Commitments and the B2 Facility Commitments.
“B Facility Lenders” means the B1 Facility Lenders and the B2 Facility Lenders and “B Facility Lender” means any of them as the context may require from time to time.
“B Facility Outstandings” means the B1 Facility Outstandings and the B2 Facility Outstandings.
“B1 Facility” means the term loan facility granted to the Borrower pursuant to Clause 2.1(d) (The Facilities).
“B1 Facility Advance” means an advance (as from time to time reduced by repayment) made or to be made by the B1 Facility Lenders under the B1 Facility or arising in respect of the B1 Facility under Clause 15.3 (Division of Term Facility Advances).
“B1 Facility Commitment” means, in relation to a B1 Facility Lender at any time, and save as otherwise provided in this Agreement, the amount set opposite its name in the relevant column of Section A of Part I of Schedule 1 (Lenders and Commitments) or as specified in the Transfer Certificate pursuant to which such Lender becomes a party to this Agreement.
“B1 Facility Conversion” has the meaning ascribed to that term in Clause 2.1(f)(i) (The Facilities).
“B1 Facility Lender” means a person which:
(a) is named opposite the column relating to the B1 Facility (with a positive amount) in Section A of Part I of Schedule 1 (Lenders and Commitments); or
(b) has become a party to this Agreement in accordance with the provisions of Clause 39 (Assignments and Transfers),
which in each case has not ceased to be a party to this Agreement in accordance with the terms of this Agreement.
“B1 Facility Outstandings” means, at any time, the aggregate principal amount of the B1 Facility Advances outstanding under this Agreement.
“B2 Facility” means the term loan facility granted to the Borrower pursuant to Clause 2.1(e) (The Facilities).
“B2 Facility Advance” means an advance (as from time to time reduced by repayment) made or to be made by the B2 Facility Lenders under the B2 Facility or arising in respect of the B2 Facility under Clause 15.3 (Division of Term Facility Advances).
“B2 Facility Commitment” means, in relation to a B2 Facility Lender at any time, and save as otherwise provided in this Agreement, the amount set opposite its name in the relevant column of Section A of Part I of Schedule 1 (Lenders and Commitments) or as specified in the Transfer Certificate pursuant to which such Lender becomes a party to this Agreement.
9
“B2 Facility Conversion” has the meaning ascribed to that term in Clause 2.1(g)(i) (The Facilities).
“B2 Facility Lender” means a person which:
(a) is named opposite the column relating to the B2 Facility (with a positive amount) in Section A of Part I of Schedule 1 (Lenders and Commitments); or
(b) has become a party to this Agreement in accordance with the provisions of Clause 39 (Assignments and Transfers),
which in each case has not ceased to be a party to this Agreement in accordance with the terms of this Agreement.
“B2 Facility Outstandings” means, at any time, the aggregate principal amount of the B2 Facility Advances outstanding under this Agreement.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy” as now or hereafter in effect, or any successor to it.
“Belgian Guarantor” means each of the parties as set out in Part II of Schedule 1 (Original Guarantors) named as Belgian Guarantors and any Acceding Guarantor incorporated in the Kingdom of Belgium.
“Beneficiary” means, in relation to a Documentary Credit, the beneficiary of it.
“Break Costs” means the amount (if any) by which:
(a) the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in an Advance or Unpaid Sum to the last day of the current Interest Period or Term in respect of that Advance or Unpaid Sum, had the principal amount of such Advance or Unpaid Sum received been paid on the last day of that Interest Period or Term,
exceeds:
(b) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount of such Advance or Unpaid Sum received or recovered by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following such receipt or recovery and ending on the last day of the current Interest Period or Term.
“Business Day” means a day (other than a Saturday or Sunday) on which (a) banks generally are open for business in London and (b) if such reference relates to a date for the payment or purchase of any sum denominated in:
(i) euro (A) is a TARGET Day and (B) is a day on which banks generally are open for business in the financial centre selected by the Agent for receipt of payments in euro; or
(ii) an Optional Currency, banks generally are open for business in the principal financial centre of the country of such Optional Currency.
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“C Facilities” means the C1 Facility and the C2 Facility and “C Facility” means any of them as the context may require from time to time.
“C Facilities Margin” means, in relation to the C Facility Advances, [2.50] per cent. per annum.
“C Facilities Repayment Date” has the meaning ascribed to it in Clause 10.3 (Repayment of C Facility Outstandings).
“C Facility Advances” means the C1 Facility Advances and the C2 Facility Advances.
“C Facility Lenders” means the C1 Facility Lenders and the C2 Facility Lenders and “C Facility Lender” means any of them as the context may require from time to time.
“C Facility Outstandings” means the C1 Facility Outstandings and the C2 Facility Outstandings.
“C1 Facility” has the meaning ascribed to that term in Clause 2.1(f) (i)(The Facilities).
“C1 Facility Advance” means any Converted C1 Facility Advance or Additional C1 Facility Advance (and, for the avoidance of doubt, shall include the consolidated C1 Facility Advance pursuant to the simultaneous conversion of B1 Facility Advances and incurrence of Additional C1 Facility Advances on the Second Amendment Effective Date) or any advance arising in respect of the C1 Facility under Clause 15.3 (Division of Term Facility Advances), in each case as from time to time reduced by repayment.
“C1 Facility Lender” means a person which:
(a) is a Consenting B1 Facility Lender; or
(b) is named opposite the column relating to the Additional C1 Facility (with a positive amount) in Section A of Part I of Schedule 1 (Lenders and Commitments); or
(c) has become a party to this Agreement in accordance with the provisions of Clause 39 (Assignments and Transfers),
which in each case has not ceased to be a party to this Agreement in accordance with the terms of this Agreement.
“C1 Facility Outstandings” means, at any time, the aggregate principal amount of the C1 Facility Advances outstanding under this Agreement.
“C2 Facility” has the meaning ascribed to that term in Clause 2.1(g)(i) (The Facilities).
“C2 Facility Advance” means any Converted C2 Facility Advance or Additional C2 Facility Advance (and, for the avoidance of doubt, shall include the consolidated C2 Facility Advance pursuant to the simultaneous conversion of B2 Facility Advances and incurrence of Additional C2 Facility Advances on the Second Amendment Effective Date) or any advance arising in respect of the C2 Facility under Clause 15.3 (Division of Term Facility Advances), in each case as from time to time reduced by repayment.
“C2 Facility Lender” means a person which:
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(a) is a Consenting B2 Facility Lender; or
(b) is named opposite the column relating to the Additional C2 Facility (with a positive amount) in Section A of Part I of Schedule 1 (Lenders and Commitments); or
(c) has become a party to this Agreement in accordance with the provisions of Clause 39 (Assignments and Transfers),
which in each case has not ceased to be a party to this Agreement in accordance with the terms of this Agreement.
“C2 Facility Outstandings” means, at any time, the aggregate principal amount of the C2 Facility Advances outstanding under this Agreement.
“Capital Expenditures” means, with respect to any person, all expenditures by such person which is required to be treated as capital expenditure in accordance with GAAP.
“Capitalised Lease” of a person means any lease of Property by such person as lessee which would be capitalised on a balance sheet of such person prepared in accordance with GAAP.
“Capitalised Lease Obligations” of any person means all rental obligations which, under GAAP, are required to be capitalised on the books of such person, in each case taken at the amount thereof accounted for as indebtedness in accordance with GAAP.
“Cash” means any credit balances on any deposit, savings or current account with a bank and cash in hand held in the ordinary course of business.
“Cash Equivalents” means:
(a) Cash;
(b) securities issued or directly fully guaranteed or insured by the governments of the United States, The Netherlands, the United Kingdom, France, Switzerland, Germany or Australia or any agency or instrumentality thereof (provided that the full faith and credit of the respective such government is pledged in support thereof) having maturities of not more than six months from the date of acquisition;
(c) certificates of deposit and time deposits with maturities of six months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding six months and overnight bank deposits, in each case with any commercial bank incorporated in the United States or commercial bank of a foreign country recognised by the United States, in each case having capital and surplus in excess of €500,000,000 (or the foreign currency equivalent thereof) and has outstanding debt which is rated “A” (or similar equivalent thereof) or higher by at least one nationally recognised statistical rating organisation (as defined under Rule 436 under the Securities Act) or any money-market fund sponsored by a registered broker dealer or mutual fund distributor;
(d) repurchase obligations with a term of not more than seven days for underlying securities of the types described in (b) and (c) above entered into with any financial institution meeting the qualifications specified in (c) above; and
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(e) commercial paper having one of the two highest ratings obtainable from S&P or Xxxxx’x and in each case maturing within six months after the date of acquisition.
Furthermore, with respect to Subsidiaries of the Parent which are not organised in one or more Qualified Jurisdictions, Cash Equivalents shall include bank deposits (and investments pursuant to operating account agreements) maintained with various local banks in the ordinary course of business consistent with past practice of the Parent’s Subsidiaries.
“CEAL” means Corporate Express Australia Limited, a corporation incorporated in Australia.
“CEAL Exception Conditions” means, in relation to the CEAL Group at any time:
(a) each member of the CEAL Group is a Non-Wholly Owned Subsidiary of the Parent; and
(b) no member of the CEAL Group has incurred any Indebtedness which directly or indirectly guarantees or supports any obligation of the Group (other than members of the CEAL Group).
“CEAL Group” means CEAL and its Subsidiaries.
“CEXP” means Corporate Express, Inc., a Colorado Corporation.
“Change of Control” means:
(a) any person or “group” (within the meaning of Sections 13(d) and 14(d) under the Securities Exchange Act, as in effect on the Effective Date), other than as a result of the ownership of Parent Preference Shares A and Parent Preference Shares B by the respective Permitted Holders thereof, shall (i) have acquired beneficial ownership of 35 per cent. or more on a fully diluted basis of the voting and/or economic interest in the Parent’s share capital or (ii) obtained the power (whether or not exercised) to elect a majority of the Parent’s directors;
(b) the board of directors of the Parent shall cease to consist of a majority of Continuing Directors;
(c) any “change of control” or similar event under, and as defined in, the Senior Subordinated Note Indenture, the Senior Subordinated Convertible Bond Agency Agreement, the documentation relating to any Permitted Subordinated Indebtedness or any Permitted Refinancing Indebtedness or any issue of Parent Preferred Stock (including, without limitation, each of the Parent Preference Shares A, the Parent Preference Shares B and the Parent Preference Shares C), in each case to the extent then outstanding, shall occur; or
(d) the Parent shall at any time cease to own beneficially and of record, directly or indirectly through one or more Wholly-Owned Subsidiaries of the Parent, free and clear of all Liens (other than those created pursuant to the Finance Documents), other encumbrances, or voting agreements, restrictions or trusts of any kind, 100 per cent. of the outstanding Equity Interests of the Borrower on a fully diluted basis and shares representing the right to elect a majority of the directors of the Borrower.
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“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and the cases and applicable regulations and rulings promulgated or issued thereunder. Section references to the Code are to the Code, as in effect as at the Effective Date and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.
“Collateral” means all property (whether real or personal, movable or immovable) with respect to which any security interests have been granted (or purported to be granted) pursuant to any Security Document (including any Additional Security Document).
“Commitment” means, in relation to a Lender, its A Facility Commitment, its B1 Facility Commitment, B2 Facility Commitment, its Additional C1 Facility Commitment, its Additional C2 Facility Commitment, its Revolving Facility Commitment, its Swingline Facility Commitment and/or, subject to Clause 7 (Uncommitted Incremental Facilities) its Incremental Revolving Facility Commitment and/or its Incremental Term Facility Commitment, as the context may require.
“Commitment Letter” means the letter dated 13 November 2003 from the Arrangers to the Parent and the Borrower with respect to arranging the Facilities.
“Compliance Certificate” means a certificate substantially in the form set out in Part I of Schedule 8 (Form of Auditors’ Confirmation) (or such other similar form as the Agent shall agree with the Parent and the relevant auditors) or Part II of Schedule 8 (Form of Directors’ Compliance Certificate) as appropriate.
“Consenting B Facility Lender” means a Consenting B1 Facility Lender or a Consenting B2 Facility Lender, as the context may require, and “Consenting B Facility Lenders” means all of them.
“Consenting B1 Facility Lender” means a B1 Facility Lender that has executed and delivered the Second Amendment Deed (or that has authorised the Agent to execute and deliver the Second Amendment Deed on its behalf) on or before the Second Amendment Effective Date.
“Consenting B2 Facility Lender” means a B2 Facility Lender that has executed and delivered the Second Amendment Deed (or that has authorised the Agent to execute and deliver the Second Amendment Deed on its behalf) on or before the Second Amendment Effective Date.
“Consolidated Current Assets” means, at any time, the current assets of the Parent and its Consolidated Subsidiaries at such time determined on a consolidated basis.
“Consolidated Current Liabilities” means, at any time, the consolidated current liabilities of the Parent and its Consolidated Subsidiaries at such time, but excluding (i) the current portion of any Indebtedness under this Agreement, of any Permitted Receivables Transaction Indebtedness and of any other long-term Indebtedness which would otherwise be included therein, (ii) accrued but unpaid interest with respect to the Indebtedness and (iii) the current portion of Indebtedness constituting Capitalised Lease Obligations.
“Consolidated EBITDA” means, for any applicable computation period, Consolidated Net Income for such period from continuing operations, notwithstanding that same may not
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constitute continuing operations plus, in each case to the extent deducted in determining Consolidated Net Income for such period, (a) taxes accrued during such period, plus (b) interest expense accrued during such period, plus (c) amortisation and depreciation expenses for such period. Such calculation shall exclude the effect on such Consolidated Net Income of:
(i) non-cash extraordinary, non-cash unusual and non-cash non-recurring gains, losses and charges occurring during such period;
(ii) non-recurring charges related to assimilation of persons acquired, and the expenses of, Permitted Acquisitions, including expenses incurred in connection with the retirement of Indebtedness of persons so acquired;
(iii) the write-off of debt financing fees associated with terminated credit facilities;
(iv) any non-cash pre-acquisition write-offs or similar charges incurred by a person acquired pursuant to a Permitted Acquisition that as the result of a pooling of interest are included in the Parent’s consolidated financial statements for the period;
(v) any non-cash write-offs or similar non-cash charges which are recorded following a Permitted Acquisition in the Parent’s consolidated financial statements with respect to an acquired person’s assets to the extent such amounts were accounted for in the first twelve months following the date such acquisition was consummated;
(vi) any restoration to income of any contingency reserve, except to the extent that provision for such reserve was made out of Consolidated Net Income accrued at any time after the Initial Borrowing Date;
(vii) any profits (or adding back losses) attributable to minority interests in the Group;
(viii) until the fiscal year ending 31 December 2004, any contribution attributable (on a basis satisfactory to the Agent) to the Paper Merchant Division;
(ix) one-time charges (including, without limitation, restructuring charges and any upfront fees related to these Facilities, the refinancing of the Senior Subordinated Notes and the issue of the Senior Subordinated Convertible Bonds) occurring during such period to the extent not already included above; and
(x) for the fiscal year ended 31 December 2003 only any cash extraordinary and/or exceptional gains or losses,
provided that Consolidated EBITDA for any period shall be reduced by the aggregate amount of all cash payments made during such period in respect of any amounts previously excluded pursuant to sub-paragraphs (i), (iv), (v), (vii), (viii) and (ix) of this sentence, whether in such period or a prior period.
“Consolidated EBITDAR” means, for any period, Consolidated EBITDA for such period, adjusted by adding thereto the amount of all rent and lease expense included as a component of Consolidated Fixed Charges for such period pursuant to sub-paragraph (ii) of the definition thereof and which was deducted in arriving at Consolidated Net Income (and not already added back in determining Consolidated EBITDA) for such period.
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“Consolidated Fixed Charge Coverage Ratio” for any period, means the ratio of Consolidated EBITDAR to Consolidated Fixed Charges for such period.
“Consolidated Fixed Charges” means, for any period, the sum, without duplication, of (i) Consolidated Interest Expense for such period, (ii) the amount of all rent expense of, and lease payments expensed by, the Parent and its Subsidiaries with respect to Real Property (including land, buildings, improvements and fixtures, including Leaseholds) and vehicles, determined on a consolidated basis for such period, (iii) the amount of all Capital Expenditures made by the Parent and its Subsidiaries determined on a consolidated basis for such period (other than Capital Expenditures to the extent made pursuant to Clause 24.1(b) (Capital Expenditures)), (iv) all Dividends (excluding dividends paid-in-kind through the issuance of additional shares of share capital of the Parent) actually paid by the Parent in relation to the Parent Preference Shares A and the Parent Common Stock during such period and (v) the scheduled principal amount of all amortisation payments with respect to the Term Facilities for such period (as determined on the first day of the respective period).
“Consolidated Indebtedness” means, as at any date of determination, the aggregate stated balance sheet amount of all Indebtedness of the Parent and its Subsidiaries (excluding (i) all Contingent Obligations other than Contingent Obligations which are required, in accordance with GAAP, to be reflected on the consolidated balance sheet of the Parent and its Subsidiaries and (ii) obligations under any Hedging Agreements and Other Hedging Agreements or other similar types of agreements) on a consolidated basis as determined in accordance with GAAP, provided that notwithstanding any contrary treatment pursuant to GAAP, (a) the aggregate amount of guarantees or letters of credit issued in support of Indebtedness of persons which are not Subsidiaries of the Parent shall at all times be included as a component of Consolidated Indebtedness and (b) the amount of Permitted Receivables Transaction Outstandings at any time shall be included as a component of Consolidated Indebtedness.
“Consolidated Interest Coverage Ratio” means, for any period, the ratio of Consolidated EBITDA to Consolidated Interest Expense for such period.
“Consolidated Interest Expense” means, for any period, the total consolidated interest expense of the Parent and its Consolidated Subsidiaries for such period plus, without duplication, that portion of Capitalised Lease Obligations of the Parent and its Consolidated Subsidiaries representing the interest factor for such period excluding (to the extent included in total consolidated interest expense) upfront fees relating to these Facilities or the refinancing of the Senior Subordinated Notes. Notwithstanding anything to the contrary contained above, to the extent Consolidated Interest Expense for any period does not already include all Receivables Facility Financing Costs for such period, the amount of such Receivables Facility Financing Costs shall be added to (and form part of) Consolidated Interest Expense. Notwithstanding anything to the contrary contained above, to the extent any Test Period begins before the Initial Borrowing Date, Consolidated Interest Expense as calculated above for each such period shall instead be deemed to be for a period as set out in column 1 below and for an amount equal to the product of such number of times as set out in column 2 below and the Consolidated Interest Expense as calculated above.
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Column 1 - Deemed Test Period |
|
Column 2 – Multiplier |
For the period beginning on 1 January 2004 and ending on 31 March 2004. |
|
4 |
For the period beginning on 1 January 2004 and ending on 30 June 2004. |
|
2 |
For the period beginning on 1 January 2004 and ending on 30 September 2004. |
|
1.33 |
“Consolidated Leverage Ratio” means, on any date, the ratio of (i) Consolidated Indebtedness on such date to (ii) Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended on or prior to such date, in each case taken as one accounting period, provided that (x) to the extent any €5 Million Permitted Acquisition or any €5 Million Asset Sale (for purposes of the Consolidated Leverage Ratio) has occurred during the relevant Test Period, Consolidated EBITDA shall be determined for the respective Test Period on a Pro Forma Basis for such occurrences and (y) for the purpose of calculating the Consolidated Leverage Ratio, freely available cash balances of the Group held with a Lender in an aggregate amount not to exceed €50,000,000 shall be deducted from the amount of Consolidated Indebtedness.
“Consolidated Net Income” means, for any period, the net income (or loss) of the Parent and its Consolidated Subsidiaries for such period, determined on a consolidated basis (after any deduction for minority interests), provided that (a) in determining Consolidated Net Income, the net income of any person which is not a Subsidiary of the Parent or is accounted for by the Parent by the equity method of accounting shall be included only to the extent of the payment of cash dividends or cash distributions by such other person to the Parent or a Subsidiary thereof during such period, (b) the net income of any Subsidiary of the Parent shall be excluded to the extent that the declaration or payment of cash dividends or similar distributions by that Subsidiary of that net income is not at the date of determination permitted by operation of its charter or any agreement, instrument or law applicable to such Subsidiary, (c) the net income (or loss) of any other person acquired by such specified person or a Subsidiary of such person in a pooling of interests transaction for any period prior to the date of such acquisition shall be excluded and (d) after tax gains and losses from Asset Sales (without regard to the exceptions in (d) or (e) in the proviso of the definition thereof) or abandonments or reserves relating thereto shall be excluded.
“Consolidated Net Income Available to Common” means, for any period, Consolidated Net Income for such period less (to the extent same have not already been deducted in determining such Consolidated Net Income) the amount of all Dividends (excluding Dividend paid pursuant to Clause 26.3(f) (Restricted Payments) to the extent representing a return of the issue price rather than the payment of accrued dividends thereon) paid or accrued (whether or not paid, and including amounts attributable to dividends paid-in-kind) during the respective period with respect to Preferred Stock (including, without limitation, all such amounts attributable to the Parent Preference Shares A, the Parent Preference Shares B (after any issuance thereof), the Parent Preference Shares C and any other Preferred Stock of Parent (from time to time issued).
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“Consolidated Subsidiaries” means, as to any person, all Subsidiaries of such person which are consolidated with such person for financial reporting purposes in accordance with GAAP.
“Consolidated Tangible Assets” means, at any time, the total consolidated assets of the Parent and its Consolidated Subsidiaries as same would be shown on a consolidated balance sheet of the Parent prepared in accordance with GAAP, provided that all intangible assets (in any event including good will) shall be excluded in making such determinations.
“Contingent Obligation” means, as to any person, any obligation of such person guaranteeing or intended to guarantee any Indebtedness, leases or dividends (“primary obligations”) of any other person (the “primary obligor”) in any manner, whether directly or indirectly or to otherwise assure or hold harmless the holder of such primary obligation against loss in respect thereof, provided, however, that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such person is required to perform thereunder) as determined by such person in good faith.
“Continuing Director” means a director who is either a member of the Supervisory Board of the Parent on the Initial Borrowing Date or who became a member of the Supervisory Board of the Parent subsequent to the Initial Borrowing Date and whose election, or nomination for election by the Parent’s shareholders, was duly approved by a majority of the Continuing Directors then on the Supervisory Board of the Parent.
“Converted C1 Facility” has the meaning ascribed to that term in Clause 2.1(f)(i) (The Facilities).
“Converted C1 Facility Advance” has the meaning ascribed to that term in Clause 2.1(f) (i)(The Facilities).
“Converted C2 Facility” has the meaning ascribed to that term in Clause 2.1(g)(i) (The Facilities).
“Converted C2 Facility Advance” has the meaning ascribed to that term in Clause 2.1(g) (i) (The Facilities).
“Default” means an Event of Default or any event or circumstance which (with the passage of time, the expiry of a grace period, the giving of notice, the making of any determination under any of the Finance Documents or any combination of any of the foregoing) would be an Event of Default.
“Defaulting Lender” means any Lender with respect to which a Lender Default is in effect.
“Dividend” means, with respect to any person, that such person has declared or paid a dividend (excluding dividends paid by the Parent in the Parent Common Stock and Parent Preferred Stock) or returned any equity capital to its stockholders, partners or members or authorised or made any other distribution, payment or delivery of property (other than ordinary share capital of such person) or cash to its stockholders, partners or members as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for a
18
consideration any shares of any class of its share capital or any partnership or membership interests outstanding (or any options or warrants issued by such person with respect to its share capital or other Equity Interests), or set aside any funds for any of the foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise acquire for a consideration any shares of any class of the share capital or any partnership or membership interests of such person outstanding (or any options or warrants issued by such person with respect to its share capital or other Equity Interests).
“Documentary Credit” means a letter of credit, bank guarantee or other documentary credit issued or to be issued by an L/C Bank pursuant to Clause 4.1 (Conditions to Utilisation) or assumed in accordance with Clause 5.12 (Assumption of Existing Documentary Credits) and, where relevant, issued in conformity with Uniform Customs and Practice for Documentary Credits (1993 Revision) ICC Publication No. 500.
“Dollar Swingline Facility Advance” means an advance denominated in dollars as from time to time reduced by repayment made or to be made by the Swingline Facility Lenders under the Swingline Facility.
“Dollar Swingline Facility Outstandings” means, at any time, the aggregate principal amount of the Dollar Swingline Facility Advances outstanding under this Agreement.
“Double Taxation Treaty” means in relation to a payment of interest on an Advance made to a particular Borrower, any convention or agreement between the government of the Relevant Tax Jurisdiction of the Borrower and any other government for the avoidance of double taxation with respect to taxes on income and capital gains which makes provision in relation to interest.
“Dutch GAAP” means generally accepted accounting principles in The Netherlands.
“Dutch Guarantor” means each of the parties as set out in Part II of Schedule 1 (Original Guarantors) named as Dutch Guarantors and any Acceding Guarantor incorporated in The Netherlands.
“Effective Date” means the date of this Agreement.
“Eligible Institution” means and includes a commercial bank, a finance company, an insurance company, a financial institution, fund or other person which regularly lends, or purchases interests, in loans or extensions of credit of the types made pursuant to this Agreement, but in any event excluding the Parent and its Subsidiaries and Affiliates.
“EMU Legislation” means the legislative measures of the European Union for the introduction of changeover to or operation of the euro in one or more member states being in part legislative measures to implement the third stage of the European Monetary Union.
“End Date” has the meaning ascribed to that term in the definition of “Applicable Margin”.
“Environment” means living organisms including the ecological systems of which they form part and the following media:
(a) air (including air within natural or man-made structures, whether above or below ground);
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(b) water (including territorial, coastal and inland waters, water under or within land and water in drains and sewers); and
(c) land (including land under water).
“Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims, liens, notices of non-compliance or violation, investigations or proceedings pursuant to or under any Environmental Law or any permit issued, or any approval given, under any such Environmental Law or Environmental Licence.
“Environmental Law” means all laws and regulations of any relevant jurisdiction which:
(a) have as a purpose or effect the protection of, and/or prevention of harm or damage to, the Environment;
(b) provide remedies or compensation for harm or damage to the Environment; and
(c) relate to Hazardous Materials or health or safety matters.
“Environmental Licence” means any Authorisations required at any time under Environmental Law.
“Equity Interests” means, in relation to any person, any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interest in (however designated) equity of such person, including any preferred stock, any limited or general partnership interest and any limited liability company membership interest.
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect as at the Effective Date and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.
“ERISA Affiliate” means each person (as defined in Section 3(9) of ERISA) which together with the Parent or a Subsidiary of the Parent would be deemed to be a “single employer” (i) within the meaning of Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of the Parent or a Subsidiary of the Parent being or having been a general partner of such person.
“EURIBOR” means, in relation to any amount owed by an Obligor under this Agreement in euro on which interest for a given period is to accrue:
(a) the rate per annum for deposits in euro which appears on the Relevant Page for such period at or about 11.00 am (Brussels time) on the Quotation Date for such period; or
(b) if no such rate is displayed and the Agent shall not have selected an alternative service on which such rate is displayed, the arithmetic mean (rounded upwards, if not already such a multiple, to 4 decimal places) of the rates (as notified to the Agent) at which each of the Reference Banks was offering to prime banks in the European interbank market deposits in euro for such period at or about 11.00 am (Brussels time) on the Quotation Date for such period.
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“Euro Amount” means:
(a) in relation to an Advance, (i) if such Advance is denominated in euro, the amount of such Advance or (ii) if such Advance is denominated in a currency other than euro, the equivalent in euro of such Advance, as the amount specified in the Utilisation Request for that Advance as adjusted, if necessary, in accordance with the terms of this Agreement and to reflect any repayment, consolidation or division of that Advance;
(b) in relation to a Documentary Credit, (i) if such Documentary Credit is denominated in euro, the Outstanding L/C Amount in relation to it at such time or (ii) if such Documentary Credit is not denominated in euro, the equivalent in euro of the Outstanding L/C Amount at such time, calculated as at the later of (A) the date which falls 2 Business Days before its issue date or any renewal date or (B) the date of any revaluation pursuant to Clause 5.3 (Revaluation of Documentary Credits); and
(c) in relation to any Outstandings, the aggregate of the Euro Amounts (calculated in accordance with paragraphs (a) and (b) above) of each outstanding Advance and/or Outstanding L/C Amount, made under the relevant Facility or Facilities (as the case may be), (i) if such Outstandings are denominated in euro, the aggregate amount in euro of it at such time or (ii) if such Outstandings are not denominated in euro, the equivalent in euro of the aggregate amount of it at such time.
“Euro Swingline Facility Advance” means an advance denominated in euro as from time to time reduced by repayment made or to be made by the Swingline Facility Lenders under the Swingline Facility.
“Euro Swingline Facility Outstanding” means, at any time, the aggregate principal amount of the Euro Swingline Facility Advances outstanding under this Agreement.
“Europcenter” means Xxxxxxxx Europcenter N.V., a corporation organised under the laws of the Kingdom of Belgium.
“Event of Default” means any of the events or circumstances described as such in Clause 28 (Events of Default).
“Excess Cash Flow” means, for any period, the amount (if any) by which:
(a) the sum of:
(i) Adjusted Consolidated Net Income (excluding any amounts of Consolidated Net Income attributable to CEAL and its Subsidiaries but including any cash Dividends actually received from CEAL only) for such period; and
(ii) the decrease, if any, in Adjusted Consolidated Working Capital (excluding any decrease in Adjusted Consolidated Working Capital attributable to CEAL and its Subsidiaries) from the first day to the last day of such period,
exceeds:
(b) the sum of:
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(i) the aggregate amount of all Capital Expenditures made by the Parent and its Subsidiaries during such period (other than Capital Expenditures to the extent financed with existing moneys);
(ii) the aggregate amount of all Permitted Acquisitions made by the Parent and its Subsidiaries during such period (other than Permitted Acquisitions to the extent financed with existing moneys);
(iii) the aggregate amount of permanent principal payments of Indebtedness for borrowed money of the Parent and its Subsidiaries during such period (other than, without double counting, (A) repayments to the extent made with existing moneys, (B) repayments of the Borrower’s 12¼ per cent. Senior Subordinated Notes due 2009 to the extent made with cash on the consolidated balance sheet of the Parent and its Subsidiaries and (C) repayments of Outstandings, unless such repayments of Outstandings were (1) required as a result of a Scheduled Repayment and paid with internally generated funds or (2) made as a voluntary prepayment with internally generated funds (but in the case of a voluntary prepayment of the Revolving Facility, only to the extent accompanied by a voluntary reduction to the Revolving Facility Commitments));
(iv) the increase, if any, in Adjusted Consolidated Working Capital (excluding any increase in Adjusted Consolidated Working Capital attributable to CEAL and its Subsidiaries) from the first day to the last day of such period;
(v) the aggregate amount of cash Dividends paid by the Parent during such period pursuant to paragraph (g) of Clause 26.3 (Restricted Payments), as the case may be;
(vi) the net amount of Investments (i.e., the amount invested during the respective period, net of any returns on investments previously made pursuant to said sections during said period) pursuant to Clause 26.5(g)(ii) and/or (n) (Advances, Investments and Loans); and
(vii) one-time charges (including, without limitation, restructuring charges and any upfront fees related to these Facilities, the refinancing of the Senior Subordinated Notes and the issue of the Senior Subordinated Convertible Bonds) occurring during such period to the extent not already included above.
For the purposes of this definition only:
(A) “existing moneys” means equity proceeds, share capital, Asset Sales proceeds, insurance proceeds and/or Indebtedness; and
(B) in calculating Adjusted Consolidated Working Capital, any amounts expressed in currencies other than euros shall be converted into euros (as shown on Reuters ECB page 37 or, if same does not provide such exchange rate, on such other basis as may be satisfactory to the Agent) for the exchange of such currency into euros for the last day of the fiscal year of the Parent.
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“Excess Cash Flow Payment Date” means the date occurring 105 days after the last day of each fiscal year of the Parent, with the first Excess Cash Flow Payment Date to occur on the 105th day after the last day of the fiscal year of the Parent ending closest to 31 December, 2004.
“Excess Cash Flow Payment Period” means, with respect to the repayment required on each Excess Cash Flow Payment Date, the immediately preceding fiscal year of the Parent.
“Existing Credit Agreement” means the Credit Agreement dated 26 October 1999 between, inter alios, the Parent, the Borrower, the banks and financial institutions named therein and the Bankers Trust Company as administrative agent as amended, modified or supplemented from time to time.
“Existing Documentary Credit” means each letter of credit, bank guarantee or other documentary credit as set out in Section C of Part II of Schedule 10 (Existing Indebtedness) each as issued pursuant to or existing under the Existing Credit Agreement and outstanding on the Initial Borrowing Date.
“Existing Indebtedness” means all Third Party Existing Indebtedness and all Intercompany Existing Indebtedness existing as at the Effective Date each as set out in Part II of Schedule 10 (Existing Indebtedness).
“Existing Lien” means the list of Liens existing as at the Effective Date set out in Part I of Schedule 10 (Existing Liens).
“Expiry Date” means, in relation to any Documentary Credit granted under this Agreement, the date stated in it to be its expiry date or the latest date on which demand may be made under it.
“Facilities” means the Term Facilities, the Revolving Facility, the Swingline Facility and (subject to Clause 7 (Uncommitted Incremental Facilities)) the Incremental Revolving Facility and the Incremental Term Facility granted to the Borrower in this Agreement, and “Facility” means any of them as the context may require.
“Facilities Obligations” means all amounts owing to the Finance Parties pursuant to the terms of this Agreement or any other Finance Document.
“Facility Office” means:
(a) in relation to the Agent, the office identified with its signature below or such other office as it may, from time to time select for performance of its agency function under this Agreement; and
(b) in relation to a Lender, the office from time to time designated by it to the Agent for the purposes of this Agreement (or, in the case of a Transferee, at the end of the Transfer Certificate to which it is a party as Transferee) or such other office as such Lender may from time to time select.
“Fair Market Value” means, with respect to any asset, the price at which a willing buyer, not an Affiliate of the seller, and a willing seller who does not have to sell, would agree to purchase and sell such asset, as determined in good faith by the board of directors or other governing body or, pursuant to a specific delegation of authority by such board of directors or
23
governing body, a designated senior executive officer, of the Parent or the Subsidiary of the Parent selling such asset.
“Federal Funds Rate” means in relation to any day, the rate per annum equal to:
(a) the weighted average of the rates on overnight Federal Funds transactions with members of the US Federal Reserve System arranged by Federal Funds brokers, as published for that day (or, if that day is not a New York Business Day, for the immediately preceding New York Business Day) by the Federal Reserve Bank of New York; or
(b) if a rate is not published for that day or immediately preceding New York Business Day, the average of the quotations for that day on those transactions received by the Agent from three Federal Funds brokers of recognised standing selected by the Agent.
“Fee Letters” means the fee letters referred to in Clauses 17.2 (Underwriting Fee) and 17.3 (Agency Fee).
“€5 Million Asset Sale” means any Asset Sale where the aggregate consideration (taking the Fair Market Value of any non-cash consideration) received by the Parent and its Subsidiaries in connection therewith is equal to or in excess of €5,000,000 (or its equivalent in other currencies).
“€5 Million Permitted Acquisition” means each Permitted Acquisition where the aggregate consideration paid (or which may be paid) in connection therewith (including any deferred compensation arrangements, the principal amount of Seller Debt and/or Permitted Acquired Debt and the Fair Market Value of all Equity Interests in the Parent issued as consideration in connection therewith) exceeds €5,000,000 (or its equivalent in other currencies).
“Final Maturity Date” means:
(a) in respect of the Revolving Facility and the Incremental Revolving Facility, the date falling 60 months after the date of this Agreement;
(b) in respect of the A Facility, subject to Clause 10.1 (Repayment of A Facility Outstandings), the date falling 72 months after the date of this Agreement;
(c) in respect of the B Facilities, subject to Clause 10.2 (Repayment of B Facility Outstandings), the date falling 84 months after the date of this Agreement;
(d) in respect of the C Facilities, subject to Clause 10.3 (Repayment of C Facility Outstandings), the date falling 84 months after the date of this Agreement; and
(e) in respect of the Incremental Term Facility, the Incremental Term Facility Maturity Date.
“Finance Documents” means:
(a) this Agreement, any Documentary Credit, any Accession Notices, Transfer Certificates and the Fee Letters;
(b) any Incremental Facility Commitment Agreement;
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(c) the Security Documents;
(d) the Intercreditor Deed;
(e) the Hedging Agreements;
(f) any Additional Security Document; and
(g) any other agreement or document designated a “Finance Document” in writing by the Parent and the Agent.
“Finance Parties” means the Agent, the Arrangers, the Security Trustee, the Lenders and each Hedge Counterparty to a Hedging Agreement and “Finance Party” means any of them.
“GAAP” means in relation to any financial statement to be delivered in accordance with this Agreement generally accepted accounting principles in The Netherlands
“Group” means the Parent, the Borrower, and all other Subsidiaries of the Parent from time to time.
“Group Business” means the business as conducted by the Parent and its Subsidiaries on the date of this Agreement and any logical extensions or related ancillary businesses thereto (including business functions incidental to such business).
“Group Structure Chart” means the group structure chart set out in Schedule 9 (Group Structure).
“Guarantee” means the guarantee contained in Clause 30 (Guarantee and Indemnity).
“Guarantors” means the Original Guarantors and any Acceding Guarantors and “Guarantor” means any one of them, as the context requires.
“Hazardous Materials” means (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that is friable, urea formaldehyde foam insulation, transformers or other equipment that contains dielectric fluid containing levels of polychlorinated biphenyls, and radon gas, (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous substances”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, or “pollutants”, or words of similar import, under any applicable Environmental Law and (c) any other chemical, material or substance, the Release of which is prohibited, limited or regulated by any governmental authority.
“Hedge Counterparty” means each party other than a member of the Group to a Hedging Agreement or, as the case may be, an Other Hedging Agreement and “Hedge Counterparties” means all such parties.
“Hedging Agreement” means any agreement entered into in connection with Clause 25.12 (Interest Rate Protection) between a member of the Group and a Lender in respect of an interest rate swap, currency swap, forward foreign exchange transaction, cap, floor, collar or option transaction or any other treasury transaction or any combination of it or any other transaction entered into in connection with protection against or benefit from fluctuation in any currency, rate or price.
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“Hedging Letter” means the letter dated on or about the date of this Agreement from the Agent to the Parent setting out the agreed hedging policy in respect of the Term Facilities (other than the Incremental Term Facility).
“Holding Company” means a company or corporation of which another company or corporation is a Subsidiary.
“Increased Cost” means:
(a) any reduction in the rate of return from a Facility or on a Finance Party’s (or an Affiliate’s) overall capital;
(b) any additional or increased cost; or
(c) any 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 agreed to make available its Commitment or having funded or performed its obligations under any Finance Document.
“Incremental Facility Commitment Agreement” means an Incremental Revolving Facility Commitment Agreement or an Incremental Term Facility Commitment Agreement, as the context may require.
“Incremental Revolving Facility” means, subject to Clause 7 (Uncommitted Incremental Facilities), the uncommitted revolving credit facility as may be granted to the Borrower pursuant to Clause 2.1(h) (The Facilities).
“Incremental Revolving Facility Commitment” means, in relation to an Incremental Revolving Facility Lender at any time, and save as otherwise provided in this Agreement, any commitment to make Utilisations provided by such Incremental Revolving Facility Lender pursuant to Clause 7 (Uncommitted Incremental Facilities), in such amount as agreed to by such Incremental Revolving Facility Lender in the respective Incremental Revolving Facility Commitment Agreement.
“Incremental Revolving Facility Commitment Agreement” means each incremental revolving facility commitment agreement in the form set out in Part IV of Schedule 4 (Form of Incremental Revolving Facility Commitment Agreement).
“Incremental Revolving Facility Lender” has the meaning ascribed to that term in Clause 7.2(b) (Incremental Revolving Facility Commitment Agreement).
“Incremental Term Facility” means, subject to Clause 7 (Uncommitted Incremental Facilities), the uncommitted term loan facility as may be granted to the Borrower pursuant to Clause 2.1(i) (The Facilities).
“Incremental Term Facility Advance” means an advance (as from time to time reduced by repayment) made or to be made by one or more of the Lenders under the Incremental Term Facility or arising in respect of the Incremental Term Facility.
“Incremental Term Facility Commitment” means, in relation to a Lender at any time, and save as otherwise provided in this Agreement, any commitment to make Incremental Term
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Facility Advances provided by such Lender pursuant to Clause 7 (Uncommitted Incremental Facilities), in such amount as agreed to by such Lender in the respective Incremental Term Facility Commitment Agreement.
“Incremental Term Facility Commitment Agreement” means each incremental term facility commitment agreement in the form set out in Part III of Schedule 4 (Form of Incremental Term Facility Commitment Agreement).
“Incremental Term Facility Lender” has the meaning ascribed to that term in Clause 7.1(b) (Incremental Term Facility Commitment Agreement).
“Incremental Term Facility Maturity Date” means, for any Tranche of Incremental Term Facility, the final maturity date specified for such Tranche of Incremental Term Facility in the relevant Incremental Term Facility Commitment Agreement relating thereto, provided that the final maturity date for all Incremental Term Facility Advances of a given Tranche shall be the same date.
“Incremental Term Facility Outstandings” means, at any time, the aggregate principal amount of the Incremental Term Facility Advances outstanding under this Agreement.
“Incremental Term Facility Repayment Date” has the meaning ascribed to that term in Clause 10.4 (Repayment of Incremental Term Facility Outstandings).
“Incremental Term Facility Scheduled Repayment” has the meaning ascribed to that term in Clause 10.4 (Repayment of Incremental Term Facility Outstandings).
“Incremental Term Facility Utilisation Date” shall mean, with respect to each Tranche of Incremental Term Facility, each date on which Incremental Term Facility Advances of such Tranche are incurred pursuant to Clause 4.2 (Conditions to Utilisation of Incremental Term Facility) and as otherwise permitted by Clause 7 (Uncommitted Incremental Facilities).
“Indebtedness” means, as to any person, without duplication:
(a) all indebtedness of such person for borrowed money or for the deferred purchase price of property or services;
(b) the maximum amount available to be drawn under all letters of credit (excluding trade letters of credit), bankers’ acceptances and similar obligations issued for the account of such person and all unpaid drawings in respect of such letters of credit (excluding trade letters of credit), bankers’ acceptances and similar obligations;
(c) the aggregate amount required to be capitalised under leases under which such person is the lessee;
(d) all obligations of such person to pay a specified purchase price for goods or services, whether or not delivered or accepted, i.e., take-or-pay and similar obligations;
(e) all Contingent Obligations of such person;
(f) all obligations under any Hedging Agreement or Other Hedging Agreement or under any similar type of agreement; and
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(g) the amount of Permitted Receivables Transaction Outstandings from time to time.
Notwithstanding anything to the contrary contained above or elsewhere in this Agreement, Indebtedness shall not include trade payables and accrued expenses incurred by any person in accordance with customary practices and in the ordinary course of business of such person.
“Indebtedness to be Refinanced” means all Indebtedness of the Parent and its Subsidiaries outstanding immediately before the consummation of the Transaction (including, without limitation, Indebtedness referred to in Clause 2.2(a) (Purpose) which is to be repaid or refinanced on the Initial Borrowing Date, including any such Indebtedness which is not permitted to remain outstanding after the Initial Borrowing Date pursuant to Clause 26.4 (Indebtedness) or as set out in paragraph 11 of Part I of Schedule 3 (Conditions Precedent to First Utilisation).
“Indemnifying Lender” has the meaning ascribed to that term in Clause 5.1(b) (Issue of Documentary Credits).
“Information Memorandum” means the document dated November 2003 concerning the Obligors which, at the request of the Parent and on its behalf, was prepared in relation to this transaction and distributed by the Arrangers to selected banks and other institutions during November and December 2003 for the purposes of syndication of the Facilities.
“Initial Borrowing Date” means the date falling on the first Utilisation of the Facilities.
“Instructing Group” means Lenders, the sum of whose Term Facility Outstandings (or, if prior to the occurrence of the Utilisations on the Initial Borrowing Date, whose Term Facility Commitments), Incremental Revolving Facility Commitments, Incremental Term Facility Commitments and Revolving Facility Commitments (or after the termination thereof, the Incremental Revolving Facility Outstandings, the Incremental Term Facility Outstandings and the Revolving Facility Outstandings) as of any date of determination represent greater than 50 per cent. of the sum of all Term Facility Outstandings (or, if prior to the occurrence of the Utilisations on the Initial Borrowing Date, whose Term Facility Commitments) and the sum of all Incremental Revolving Facility Commitments, Incremental Term Commitments and Revolving Facility Commitments of all Lenders at such time (or after the termination thereof, the sum of the then total Incremental Revolving Facility Outstandings, Incremental Term Facility Outstandings and Revolving Facility Outstandings of all Lenders at such time).
“Instructing Group’s Satisfaction” means, in relation to any documentation being satisfactory to the Instructing Group as contained in the definitions of “Permitted Receivables Transaction” and “Permitted Subordinated Indebtedness”, such documentation shall be deemed satisfactory and approved by the Instructing Group so long as (a) the relevant documentation (in substantially final form which has been approved by the Agent) is distributed to the Lenders at least 5 Business Days prior to the entering into of such documentation, (b) the Instructing Group does not object thereto within such 5 Business Days and (c) the Agent approves the final form of the documentation relating thereto.
“Intellectual Property Rights” means any patent, trade xxxx, service xxxx, registered design, trade name or copyright or any license to use any of the same.
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“Intercompany Existing Indebtedness” means the list of Indebtedness existing on the Effective Date set out in Section B (Intercompany Existing Indebtedness) of Part II of Schedule 10 (Existing Indebtedness).
“Intercompany Loan” means each intercompany loan or advance between or among the Parent and its Subsidiaries or between or among Subsidiaries of the Parent.
“Intercreditor Deed” means the intercreditor deed dated on or about the date of this Agreement between the Parent, the Borrower, the Agent, the Security Trustee, the Lenders, the Original Guarantors and certain other parties.
“Interest Period” means, save as otherwise provided in this Agreement, any of those periods mentioned in Clause 15.1 (Interest Periods for Term Facility Advances).
“Investments” has the meaning ascribed to that term in Clause 26.5 (Advances, Investments and Loans).
“Law” means:
(a) common or customary law;
(b) any constitution, decree, judgment, legislation, order, ordinance, regulation, statute, treaty or other legislative measure in any jurisdiction; and
(c) any present or future directive, regulation, practice, concession or requirement which has the force of law and which is issued by any governmental body, agency or department or any central bank or other fiscal, monetary, regulatory, self-regulatory or other authority or agency.
“L/C Bank” means Deutsche Bank AG London (and/or affiliates of Deutsche Bank AG London (including, without limitation, Deutsche Bank Trust Company Americas) designated by it to act as such with respect to any Documentary Credit) or any other Lender which has been appointed as L/C Bank in accordance with Clause 5.11 (Appointment and Change of L/C Bank) or assumed its role as issuer under any Existing Documentary Credits in accordance with Clause 5.12 (Assumption of Existing Documentary Credits) and which has not resigned in accordance with paragraph (c) of Clause 5.11 (Appointment and Change of L/C Bank).
“L/C Bank Accession Certificate” means a duly completed accession certificate in the form set out in Schedule 11 (Form of L/C Bank Accession Certificate).
“L/C Proportion” means, in relation to a Lender in respect of any Documentary Credit (save as otherwise provided in this Agreement and taking into account Clauses 21 (Replacement and Mitigation) and 39 (Assignments and Transfers)) the proportion (expressed as a percentage) borne by such Lender’s Available Revolving Facility Commitment to the Available Revolving Facility immediately prior to the issue of such Documentary Credit.
“Leaseholds” of any person, means all the right, title and interest of such person as lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures.
“Legal Opinions” means the legal opinions set out in paragraph 8 of Part 1 of Schedule 3 (Conditions Precedent to First Utilisation).
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“Lender” means an A Facility Lender, a B1 Facility Lender, a B2 Facility Lender, a C1 Facility Lender, a C2 Facility Lender, a Revolving Facility Lender, a Dollar Swingline Facility Lender, a Euro Swingline Facility Lender, an Incremental Revolving Facility Lender or an Incremental Term Facility Lender, as the context may require and “Lenders” means all of them.
“Lender Default” means (i) a failure or refusal (which has not been retracted) of a Lender to fund its portion of any participating interest required to be purchased by such Lender pursuant to Clause 6.6 (Purchase of Swingline Participations) or (ii) a Lender having notified in writing the Parent, the Borrower and/or the Agent that it does not intend to comply with its obligations under Clause 6 (Swingline Facilities) in circumstances which would be contrary to the terms of this Agreement.
“LIBOR” means, in relation to any amount owed by an Obligor under this Agreement in a currency other than euro on which interest for a given period is to accrue:
(a) the rate per annum which appears on the Relevant Page for such period at or about 11.00 am on the Quotation Date for such period; or
(b) if no such rate is displayed and the Agent shall not have selected an alternative service on which such rate is displayed, the arithmetic mean (rounded upwards, if not already such a multiple, to the nearest 4 decimal places) of the rates (as notified to the Agent) at which each of the Reference Banks was offering to prime banks in the London interbank market deposits in the relevant currency for such period at or about 11.00 am on the Quotation Date for such period.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the UCC or any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing).
“Luxembourg Guarantor” means each of the parties as set out in Part II of Schedule 1 (Original Guarantors) named as Luxembourg Guarantors and any Acceding Guarantor incorporated in Luxembourg.
“Majority Lenders” of (i) any Facility (other than the B1 Facility, the B2 Facility, the C1 Facility or the C2 Facility) means those Lenders which would constitute the Instructing Group under, and as defined in, this Agreement if all outstanding Facilities Obligations of the other Facilities under this Agreement were repaid in full and all Commitments, if any, with respect thereto were terminated, (ii) the B1 Facility or the B2 Facility means those Lenders which would constitute the Instructing Group under, and as defined in, this Agreement, if all outstanding Facilities Obligations of the other Facilities under this Agreement (other than both of the B Facilities) were repaid in full and all commitments, if any, with respect thereto were terminated or (iii) the C1 Facility or the C2 Facility means those Lenders which would constitute the Instructing Group under, and as defined in, this Agreement, if all outstanding Facilities Obligations of the other Facilities under this Agreement (other than both of the C Facilities) were repaid in full and all commitments, if any, with respect thereto were terminated.
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“Margin Regulations” means and shall include each of Regulation T, Regulation U and Regulation X.
“Margin Stock” shall have the meaning provided in Regulation U.
“Material Adverse Effect” means (a) any material adverse condition or material adverse change in or affecting the business, assets, liabilities, results of operations, financial condition or prospects of the Parent and its Subsidiaries taken as a whole, or (b) a material adverse effect (i) on the rights or remedies of any of the Finance Parties hereunder or under any other Finance Document or (ii) on the ability of any Obligor to perform its obligations hereunder to any of the Finance Parties.
“Material Subsidiary” means, at any time, a member of the Group:
(a) organised under the laws of a Qualified Jurisdiction; and
(b) whose revenues, consolidated EBITDA or assets (on a consolidated basis if it has Subsidiaries) represent at least 5 per cent. of the revenues, Consolidated EBITDA or assets of the Group,
and all such Subsidiaries shall collectively represent at least 66-2/3 per cent. of consolidated revenues, the Consolidated EBITDA and consolidated assets of the Group, as determined by reference to the latest annual audited financial statements for the time being of the Group delivered under paragraph (c) (Annual Financial Statements) of Clause 23.1 (Information Covenants) or, if the company concerned becomes a Subsidiary of the Parent after the end of the fiscal year to which such annual audited financial statements of the Group relate, then the latest management accounts of the Group delivered under paragraph (a) (Monthly Reports) of Clause 23.1 (Information Covenants) which include such company, but so that a certificate of the auditors of the Group that a Subsidiary of the Parent is or is not a Material Subsidiary (in accordance with this definition) at any time shall be conclusive.
“Member State” means a member of the European Community.
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means:
(a) any plan, as defined in Section 4001(a)(3) of ERISA, which is maintained or contributed to (or to which there is an obligation to contribute to) by the Parent or a Subsidiary of the Parent or an ERISA Affiliate and that is subject to Title IV of ERISA; and
(b) each such plan which, during the five year period immediately following the latest date on which the Parent, a Subsidiary of the Parent or an ERISA Affiliate maintained, contributed to or had an obligation to contribute to such plan, if the Parent, any Subsidiary of the Parent or any ERISA Affiliate could reasonably incur any liability under such plan.
“Necessary Authorisations” means all Authorisations (including any competition and other clearances necessary in relation to the Environmental Licences) of any person including any government or other regulatory authority required by applicable Law to enable it to:
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(a) lawfully enter into and perform its obligations under the Finance Documents to which it is party;
(b) ensure the legality, validity, enforceability or admissibility in evidence in England and, if different, its jurisdiction of incorporation, of such Finance Documents to which it is party; and
(c) carry on in all material respects its business from time to time.
“Net Cash Proceeds” means, of any event, the gross cash proceeds (including any cash received by way of deferred payment pursuant to a promissory note, receivable or otherwise, but only as and when received) received from such event, net of reasonable transaction costs received from any such event.
“Net Sale Proceeds” means, for any sale of assets, the gross cash proceeds (including any cash received by way of deferred payment pursuant to a promissory note, receivable or otherwise, but only as and when received) received from such sale of assets, net of (a) reasonable transaction costs, (b) payments of unassumed liabilities relating to the assets sold at the time of, or within 90 days after, the date of such sale, (c) the amount of such gross cash proceeds required to be used to permanently repay any Indebtedness (other than Indebtedness of the Lenders pursuant to this Agreement) which is secured by the respective assets which were sold, and (d) the estimated marginal increase in taxes which will be payable by the Parent and its Subsidiaries with respect to the fiscal year in which the sale occurs as a result of such sale.
“New York Business Day” means a day (other than a Saturday or a Sunday) on which banks are open for general business in New York City.
“Non-Consenting B Facility Lender” means a Non-Consenting B1 Facility Lender or a Non-Consenting B2 Facility Lender, as the context may require, and “Non-Consenting B Facility Lenders” means all of them.
“Non-Consenting B1 Facility Lender” means each B1 Facility Lender that is not a Consenting B1 Facility Lender.
“Non-Consenting B2 Facility Lender” means each B2 Facility Lender that is not a Consenting B2 Facility Lender.
“Non-Guarantor Subsidiaries” means (a) on the Initial Borrowing Date, the Borrower and each Subsidiary of the Parent listed in Part III of Schedule 10 (Non-Guarantor Subsidiaries) and (b) after the Initial Borrowing Date, any Subsidiary of the Parent which is not at such time a Guarantor.
“Non-Material Subsidiary” means, at any time, a member of the Group which is not a Material Subsidiary.
“Non-U.S. Pension Plan” means any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States of America by any member of the Group for the benefit of employees of any member of the Group residing outside the United States of America, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of
32
retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.
“Non-U.S. Subsidiary” means (a) in the case of the Parent, each Subsidiary of the Parent which is not a U.S. Subsidiary of the Parent and (b) in the case of the Borrower, each Subsidiary of the Borrower which is not a U.S. Subsidiary of the Borrower.
“Non-Wholly Owned Subsidiary” means each Subsidiary of the Parent which is not a Wholly-Owned Subsidiary of the Parent.
“Obligors” means the Parent, the Borrower, the Guarantors and any party (other than a Finance Party) to a Security Document and “Obligor” means any of them.
“Obligors’ Agent” means the Parent in its capacity as agent for the Obligors, pursuant to Clause 31.17 (Obligors’ Agent).
“Optional Currency” means:
(a) in relation to any B1 Facility Advance, any C1 Facility Advance and any Incremental Term Facility Advance, dollars; and
(b) in relation to any Revolving Facility Advance, dollars and any other currency except euro which:
(i) is readily available to banks in the London interbank market, and is freely convertible into euro on the Quotation Date and the Utilisation Date for the relevant Advance; and
(ii) has been approved by the Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Agent of the relevant Utilisation Request.
“Original Financial Statements” means:
(a) in relation to the Parent, its audited consolidated financial statements for its financial year ending 31 December 2002;
(b) in relation to any Acceding Guarantor, its financial statements delivered pursuant to paragraph 1(d) of Part II of Schedule 7 (Accession Documents); and
(c) the Pro Forma Financial Statements.
“Original Obligors” means the Parent, the Borrower and the Original Guarantors.
“Other Hedging Agreement” means:
(a) any agreement entered into between a member of the Group and a bank or financial institution (other than a Lender) in respect of any interest rate swap, currency swap, foreign exchange contracts, cap, floor, collar or optional transaction or any other treasury transaction or any combination of it or any other transaction entered into in connection with protection against or benefit from fluctuating in any rate or price (an “Other Interest Hedging Agreement”); and
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(b) any agreement entered into between a member of the Group and a bank or financial institution (other than a Lender) in respect of any currency swap agreements, commodity agreements or other similar agreements or arrangements designed to protect against fluctuations in currency or commodity values (an “Other Currency/Commodity Hedging Agreement”).
“Outstanding L/C Amount” means:
(a) each sum paid or payable by an L/C Bank to a Beneficiary pursuant to the terms of a Documentary Credit; and
(b) all liabilities, costs (including, without limitation, any costs incurred in funding any amount which falls due from an L/C Bank under a Documentary Credit), claims, losses and expenses which an L/C Bank (or any of the Indemnifying Lenders) incurs or sustains in connection with a Documentary Credit,
in each case which has not been reimbursed or in respect of which cash cover has not been provided by or on behalf of the Borrower.
“Outstandings” means, at any time, the Term Facility Outstandings, the Revolving Facility Outstandings, the Dollar Swingline Facility Outstandings, the Euro Swingline Facility Outstandings and any Incremental Term Facility Outstandings.
“Paper Merchant Division” means the former paper merchant division of the Group Business sold to PaperlinX Limited pursuant to a sale and purchase agreement dated 8 September 2003 between the Parent and PaperlinX Limited.
“Parent Common Stock” means, as at the Effective Date, the 250,000,000 ordinary shares of €1.20 par value per share of the Parent and any further such shares as may be permitted by this Agreement.
“Parent Preference Shares A” means, as at the Effective Date, the 59,940,000 ordinary shares of €1.20 par value per share of the Parent and any further such shares as may be permitted by this Agreement.
“Parent Preference Shares B” means, as at the Effective Date, the 305,000,000 ordinary shares of €1.20 par value per share of the Parent and any further such shares as may be permitted by this Agreement.
“Parent Preference Shares C” means, as at the Effective Date, the 60,000 ordinary shares of €1.20 par value per share of the Parent and any further such shares as may be permitted by this Agreement.
“Parent Preferred Stock” means, collectively, the Parent Preference Shares A, the Parent Preference Shares B and the Parent Preference Shares C and, after the issuance thereof, any other Preferred Stock of the Parent.
“Participating Member State” means any member of the European Community that at the relevant time has adopted the euro as its lawful currency in accordance with EMU Legislation.
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“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
“Permitted Acquired Debt” means Indebtedness of any Subsidiary of the Parent acquired pursuant to a Permitted Acquisition, which Indebtedness existed at the time of the consummation of such Permitted Acquisition and was not created in contemplation thereof (and the provisions of which were not altered in contemplation thereof), so long as (i) the Parent and its Subsidiaries have no liability with respect to any such Indebtedness and (ii) any Liens securing such Indebtedness apply only to assets of the Subsidiary so acquired (and so long as additional assets of such Subsidiary are not granted as security following, or in contemplation of, the respective Permitted Acquisition).
“Permitted Acquisition” means, subject to the Permitted Acquisition Conditions, the acquisition by the Parent or a Wholly-Owned Subsidiary thereof of:
(a) assets constituting part of or an entire business, division or product line of any person not already a Subsidiary of the Parent;
(b) Equity Interests of any person not already a Subsidiary of the Parent so that, immediately after giving effect to such acquisition, such person shall constitute a Wholly-Owned Subsidiary; or
(c) Equity Interests of any person not already a Subsidiary of the Parent so that, immediately after giving effect to such acquisition, if such person does not then become a Wholly-Owned Subsidiary of the Parent, the consideration paid for such acquisition does not exceed €20,000,000 (or its equivalent in other currencies),
provided that (i) one or more of the acquisitions referred to in (a) above may be made in any fiscal year of the Parent of those Equity Interests which would cause the respective person to be a Subsidiary, but not a Wholly Owned Subsidiary and (ii) the aggregate consideration paid (determined in accordance with paragraph (a) of the definition of Permitted Acquisition Conditions) for all such acquisitions during any fiscal year of the Parent does not (A) in the event the Consolidated Leverage Ratio (on a Pro Forma Basis) is greater than 3.75:1.00, exceed €25,000,000 and (B) in the event the Consolidated Leverage Ratio (on a Pro Forma Basis) is less than or equal to 3.75:1.00, exceed €100,000,000.
“Permitted Acquisition Conditions” means, in relation to any Permitted Acquisition:
(a) the consideration paid for such acquisition consists solely of Parent Common Stock, Qualified Preferred Stock, cash and/or, in the case of the acquisition of a Wholly-Owned Subsidiary, the issuance of Seller Debt and/or the assumption of Permitted Acquired Debt in accordance with the requirements of this Agreement;
(b) the assets acquired or the business of the person whose stock is acquired, shall fall within the definition of Group Business and the respective Permitted Acquisition shall be effected in accordance with the relevant requirements of Clause 25.2 (Conduct of Business);
(c) the respective Permitted Acquisition shall be effected by the Parent or a Wholly-Owned Subsidiary thereof;
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(d) the Borrower shall have demonstrated compliance on a Pro Forma Basis with the financial covenants in Clause 24 (Financial Condition), inclusive;
(e) at the date of the declaration of the respective Permitted Acquisition (and if such Permitted Acquisition is consummated within 30 days of such declaration) the Borrower shall have Available Liquidity of at least €50,000,000;
(f) the Borrower in good faith determines that the Parent and its Subsidiaries taken as a whole are not likely to assume or become liable for material increased contingent liabilities as a result of such acquisition;
(g) in the case of each Permitted Acquisition where the aggregate consideration is in excess of €5,000,000 (or its equivalent in other currencies), the Parent delivers to the Agent at the time of the consummation of the respective Permitted Acquisition an officer’s certificate in form, scope and substance reasonably satisfactory to the Agent certifying that the foregoing conditions have been satisfied and showing compliance with the requirements of paragraphs (d) and (e) above; and
(h) no Default or Event of Default shall exist at the time of the consummation of the respective Permitted Acquisition or immediately after giving effect thereto,
provided that the Parent or its Wholly-Owned Subsidiaries may consummate one or more Permitted Acquisitions in any fiscal year of the Parent without complying with paragraphs (d) and (e) above (and the officer’s certificate, if any, required to be delivered pursuant to paragraph (g) above shall not be required to certify compliance with such conditions), so long as the aggregate consideration paid for all Permitted Acquisitions effected pursuant to this proviso during any fiscal year of the Parent does not exceed €15,000,000 (or its equivalent in other currencies).
“Permitted Holder” shall mean (a) with respect to the Parent Preference Shares A, Stichting A so long as the Stichting A Continuing Directors shall not cease to constitute a majority of the executive committee of Stichting A and (b) with respect to the Parent Preference Shares B, Stichting B so long as the Stichting B Continuing Directors shall not cease to constitute a majority of the executive committee of Stichting B.
“Permitted Liens” has the meaning ascribed to that term in Clause 26.1 (Liens).
“Permitted Receivables Facility” means the €800,000,000 Asset-Backed Euro Medium Term Note Programme entered into by Silver Funding Limited more particularly described in the Offering Circular dated 18 July 2002 or such other facility in form and substance similar to the aforesaid programme pursuant to which a Permitted Receivables Transaction is provided.
“Permitted Receivables Facility Documentation” means all documentation evidencing, or relating to, any Permitted Receivables Facility or Permitted Receivables Transaction.
“Permitted Receivables Transaction” means, from time to time, a transaction (or series of transactions) evidenced by a receivables purchase agreement and related documentation entered into after the Initial Borrowing Date and providing for the sale or transfer of Receivables Facility Assets by one or more Receivables Sellers to a Receivables Subsidiary, and further providing for the sale or transfer of Receivables Facility Assets by the
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Receivables Subsidiary to one or more purchasers of interests therein, provided that (a) such agreement and the documents and instruments entered into in connection therewith shall be in form and substance reasonably satisfactory to the Agent and the Instructing Group’s Satisfaction, (b) the Parent shall have provided the Agent and the Lenders with not less than 15 days’ prior notice of its intent to enter into such receivables purchase agreement and (c) 100 per cent. of the Permitted Receivables Transaction Proceeds received by the Parent or any of its Subsidiaries shall be applied in accordance with paragraph (e) (Permitted Receivables Transactions) of Clause 13.1 (Repayment from Net Proceeds).
“Permitted Receivables Transaction Outstandings” means at any time, the aggregate amount of cash paid to the Parent and/or its Subsidiaries in respect of the Receivables Facility Assets sold or transferred by them pursuant to one or more Permitted Receivables Transactions, in each case to the extent the respective receivables have not yet been repaid by the respective account debtor or repurchased by Receivables Sellers (it being the intent of the parties that the amount of Permitted Receivables Transaction Outstandings at any time outstanding approximate as closely as possible the principal amount of Indebtedness which would be outstanding at such time under the Permitted Receivables Facilities then in effect if same were structured as a secured lending agreement rather than a purchase agreement).
“Permitted Receivables Transaction Proceeds” means all proceeds received by the Parent and its Subsidiaries from time to time as a result of sales or transfers of Receivables Facility Assets pursuant to one or more Permitted Receivables Transactions.
“Permitted Refinancing Indebtedness” means any Indebtedness of the Parent or any of its Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”):
(a) Third Party Existing Indebtedness described in Section A (Third Party Existing Indebtedness) of Part II of Schedule 10 (Existing Indebtedness) (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); or
(b) outstanding Senior Subordinated Notes so long as the Permitted Refinancing Indebtedness shall be permitted to be outstanding in accordance with the requirements of Clause 26.4(l) (Indebtedness),
provided that:
(i) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) and related redemption fees of the Indebtedness so Refinanced;
(ii) the Permitted Refinancing Indebtedness shall not have (A) a Weighted Average Life to Maturity that is less than the Weighted Average Life to Maturity of the Indebtedness being Refinanced or (B) a final maturity earlier than the final maturity of the Indebtedness being Refinanced;
(iii) in the case of Permitted Subordinated Indebtedness, it shall be subordinated in right of payment to the Facilities Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the
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Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;
(iv) no Permitted Refinancing Indebtedness shall have different obligors, or greater guarantees or security, than the Indebtedness being Refinanced; and
(v) in no event shall any Permitted Refinancing Indebtedness be secured (A) in the case of Permitted Refinancing Indebtedness described in paragraph (a), by any share, stock or other Equity Interest subject or purported to be subject to a Security Document (whether equally and ratably with, or junior to, the Finance Parties or otherwise) or (B) in the case of any Permitted Refinancing Indebtedness described in paragraph (b), by any assets whatsoever.
“Permitted Subordinated Indebtedness” means:
(a) the Senior Subordinated Notes;
(b) the Senior Subordinated Convertible Bonds; and
(c) any general unsecured subordinated Indebtedness for borrowed money incurred by any member of the Group after the Initial Borrowing Date, all of the terms and conditions of which and the documentation therefor, shall be in form and substance reasonably satisfactory to the Agent and to the Instructing Group’s Satisfaction, provided, that in any event, unless the Instructing Group otherwise expressly consents in writing prior to the incurrence thereof:
(i) no such Indebtedness shall be secured by any asset of the Parent or any of its Subsidiaries;
(ii) no such Indebtedness shall be guaranteed except by the Parent or any other Guarantor on a subordinated basis on substantially the same terms as the Senior Subordinated Notes and/or the Senior Subordinated Convertible Bonds are guaranteed;
(iii) such Indebtedness shall have substantially the same (or, from the perspective of the Lenders, more favorable) subordination provisions as are contained in the Senior Subordinated Note Indenture and/or the Senior Subordinated Convertible Bonds;
(iv) no such Indebtedness shall have any maturity or required repayment (other than as a result of change of control or asset sale provisions approved by the Instructing Group) prior to the first anniversary of the Final Maturity Date of the C Facility as same is in effect on the date of incurrence of such Indebtedness; and
(v) Utilisations from time to time pursuant to this Agreement, in an aggregate outstanding amount at any time equal to the sum of the Term Facility Outstandings on the date of incurrence of such Permitted Subordinated Indebtedness and in an amount equal to the total Revolving Facility Commitments and total A Facility Commitments as then in effect, shall be permitted without complying with any financial tests.
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Notwithstanding the above sub-paragraphs (i) to (v), such Indebtedness shall be permitted to bear interest at then current market rates (as reasonably determined by the Agent).
The incurrence of Permitted Subordinated Indebtedness shall be deemed to be a representation and warranty by the Parent that all conditions thereto have been satisfied in all material respects and that same is permitted in accordance with the terms of this Agreement, which representation and warranty shall be deemed to be a representation and warranty for all purposes hereunder, including, without limitation, Clauses 4.1 (Conditions to Utilisation), 4.2 (Conditions to Utilisation of Incremental Term Facility) and 6.2 (General Conditions to Utilisation of Swingline Facility Advances).
“Permitted Subordinated Indebtedness Documents” means all indentures, securities purchase agreements, note agreements and/or other documents and agreements entered into in connection with any Permitted Subordinated Indebtedness.
“Plan” means (i) any single-employer plan, as defined in Section 4001(a)(15) of ERISA, which is maintained or contributed to by (or to which there is an obligation to contribute to by), the Parent or a Subsidiary of the Parent or an ERISA Affiliate and that is subject to Title IV of ERISA and (ii) each such plan which, during the five year period immediately following the latest date on which the Parent, a Subsidiary of the Parent or an ERISA Affiliate maintained, contributed to or had an obligation to contribute to such plan, if, for purposes of this clause (ii), the Parent, any Subsidiary of the Parent or any ERISA Affiliate could reasonably incur any liability under such plan.
“Pledge Agreements” means each of the documents specified in paragraph 2 of Section A, paragraph 3 of Section B, paragraph 2 of Section C, paragraph 1 of Section D and paragraph 1 of Section E in Part III of Schedule 3 (Security Documents).
“Preferred Equity Financing” means the $350,000,000 gross proceeds received by the Parent from the issuance of Parent Preference Shares C to the Preferred Equity Investors.
“Preferred Equity Financing Documents” means the Stock Purchase Agreement, made as of 3 September 1999, among the Parent and the Preferred Equity Investors and all other agreements, documents and instruments relating to the Preferred Equity Financing.
“Preferred Equity Investors” means, collectively, Apollo Management, L.P. and Xxxx Capital, Inc. (or their respective affiliates reasonably satisfactory to the Agent).
“Preferred Stock” as applied to the share capital of any person, means share capital of such person (other than ordinary share capital of such person) of any class or classes (however designed) that ranks prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such person, to any other class of share capital of such person.
“Prime Lending Rate” means the rate which Deutsche Bank AG, New York Branch announces from time to time as its prime lending rate, such rate to change from time to time. The Prime Lending Rate is a reference rate and does not necessarily represent the lowest or the best rate actually charged to any customer. Deutsche Bank AG, New York Branch may make commercial loans or other loans at rates of interest at, above or below the Prime Lending Rate.
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“Pro Forma Basis” means, as to any person, for any events which occur subsequent to the commencement of a period for which the financial effect of such event is being calculated, and giving effect to the event for which such calculation is being made, such calculation as will give pro forma effect to such event as if same had occurred at the beginning of such period of calculation, and:
(a) for purposes of the foregoing calculation, the transaction giving rise to the need to calculate the pro forma effect to any of the following events shall be assumed to have occurred on the first day of the four consecutive fiscal quarter period last ended before the occurrence of the respective event for which such pro forma effect is being determined (the “Reference Period”); and
(b) in making any determination with respect to the incurrence or assumption of any Indebtedness during the Reference Period or subsequent to the Reference Period and on or prior to the date of the transaction referenced in paragraph (a) above (the “Transaction Date”), (i) all Indebtedness (including Indebtedness incurred or assumed and for which the financial effect is being calculated, whether incurred under this Agreement or otherwise, but excluding normal fluctuations in revolving indebtedness incurred for working capital purposes and not to finance any acquisition) incurred or permanently repaid during the Reference Period shall be deemed to have been incurred or repaid at the beginning of such period, (ii) Consolidated Interest Expense of such person attributable to interest or dividends on any Indebtedness, as the case may be, bearing floating interest rates should be computed on a pro forma basis as if the rate in effect on the Transaction Date had been the applicable rate for the entire period and (iii) Consolidated Interest Expense will be increased or reduced by the net cost (including amortisation of discount) or benefit (after giving effect to amortisation of discount) associated with the Hedging Agreements and the Other Interest Hedging Agreements, which will remain in effect for the twelve-month period after the Transaction Date and which shall have the effect of fixing the interest rate on the date of computation; and
(c) in making any determination of Consolidated EBITDA, pro forma effect shall be given to any €5 Million Permitted Acquisition and any €5 Million Asset Sale, in each case which occurred during the Reference Period or subsequent to the Reference Period and prior to the Transaction Date, as if such Permitted Acquisition, Asset Sale or other transaction, as the case may be, occurred on the first day of the Reference Period.
All pro forma determinations required above shall be made, to the extent possible, in accordance with Regulation S-X. For purposes of this definition, whenever pro forma effect is to be given to any occurrence or event, the pro forma calculation shall be determined in good faith by a responsible financial or accounting officer of the Parent.
“Pro Forma Financial Statements” means, after taking into account the effect of the Transaction (including the incurrence of all Indebtedness), the pro forma consolidated balance sheet of the Group as of 31 December 2003 with the related pro forma consolidated statements of income and cash flow of the Group for the period covered thereby in the form and showing the information agreed between the Parent and the Agent (acting on the instructions of an Instructing Group).
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“Projections” means the detailed projected consolidated financial statements of the Parent and its Subsidiaries after giving effect to the Transaction as delivered in accordance with paragraph (d) (Projections) of Clause 23.1 (Information Covenants).
“Property” of a person, means any and all property, whether real, personal, tangible, intangible or mixed, of such person, or other assets owned, leased, or operated by such person.
“Proportion” in relation to a Lender, means:
(a) in relation to an Advance to be made under this Agreement, the proportion borne by such Lender’s Available Commitment in respect of the relevant Facility to the relevant Available Facility;
(b) in relation to an Advance or Advances outstanding under this Agreement, the proportion borne by such Lender’s share of the Euro Amount of such Advance or Advances to the total Euro Amount thereof;
(c) if paragraph (a) above does not apply and there are no Outstandings, the proportion borne by the aggregate of such Lender’s Available Commitment to the Available Facilities (or if the Available Facilities are then zero, by its Available Commitment to the Available Facilities immediately prior to their reduction to zero); and
(d) if paragraph (b) above does not apply and there are any Outstandings, the proportion borne by such Lender’s share of the Euro Amount of the Outstandings to the Euro Amount of all the Outstandings for the time being.
“Protected Party” means a Finance Party or any Affiliate of a Finance Party which is or will be, subject to any Tax Liability in relation to any amount payable under or in relation to a Finance Document.
“Qualified Guarantor” means each Material Subsidiary which is a Wholly-Owned Subsidiary of the Parent, organised under the laws of a Qualified Jurisdiction, in each case which has acceded to this Agreement as a Guarantor and executed the required Security Documents in accordance with the requirements of Clause 25.7 (Additional Security and Further Assurances), provided that any Qualified Guarantor shall cease to constitute same at such time, if any, as such Subsidiary ceases to be a Wholly-Owned Subsidiary of the Parent or ceases to be a Material Subsidiary.
“Qualified Jurisdictions” means and includes the United States, The Netherlands, England and Wales, Belgium, Luxembourg and Australia, in each case including any states, provinces, other similar local units therein or any additional jurisdictions so long as the Agent is reasonably satisfied with the respective jurisdiction requested to be so added. The parties hereto further agree that, in the discretion of the Agent, as a condition to the addition of any jurisdiction to the list of Qualified Jurisdictions, the Agent may (but shall not be required to) request the consent of the Instructing Group to such addition and, in such event, the Agent shall be entitled to wait for such consent before adding the respective jurisdiction to the list of Qualified Jurisdictions.
“Qualified Obligors” means the Parent, the Borrower and each other Obligor which is (a) a Material Subsidiary and (b) a Wholly-Owned Subsidiary of the Parent or the Borrower,
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organised under the laws of a Qualified Jurisdiction, in each case which has acceded to the Agreement in accordance with Clause 27 (Accession of New Guarantors) and executed the required Security Documents in accordance with the requirements of Clause 25.7 (Additional Security and Further Assurances) provided that any Qualified Obligor shall cease to constitute the same at such time, if any, as such Obligor ceases to be a Wholly-Owned Subsidiary (other than the Parent) of the Parent or the Borrower or ceases to be a Material Subsidiary.
“Qualified Preferred Stock” means any preferred stock of the Parent so long as the terms of any such preferred stock:
(a) do not contain any mandatory put, redemption, repayment, sinking fund or other similar provision, except upon the occurrence of a change of control (the definition of which shall be no more restrictive than that set forth in the Senior Subordinated Note Indenture) so long as the terms thereof do not require any such redemption or other action unless (and until) all Facilities Obligations have been paid in full in cash and the aggregate amount of the Commitments and all Documentary Credits have been terminated or the requisite consents under this Agreement have been obtained to permit such redemption or other action;
(b) do not require the cash payment of dividends to the extent that the payment thereof would not be permitted at such time pursuant to this Agreement (and refinancings, replacements or extensions hereof);
(c) do not contain any operating or financial maintenance covenants;
(d) do not grant the holders thereof any voting rights (prior to the conversion into Parent Common Stock, if applicable) except for (i) voting rights required to be granted to such holders under applicable law and (ii) limited customary voting rights on fundamental matters such as mergers, consolidations, sales of all or substantially all of the assets of the Parent, or liquidations involving the Parent; and
(e) are otherwise reasonably satisfactory to the Agent.
Qualified Preferred Stock may only be exchangeable into Parent Common Stock or additional Qualified Preferred Stock.
“Quotation Date” means, in relation to any currency and any period for which an interest rate is to be determined:
(a) in the case of an Advance (other than a Swingline Advance):
(i) if the relevant currency is euro, 2 TARGET Days before the first day of that period; and
(ii) if the relevant currency is dollars or an Optional Currency, 2 Business Days before the first day of that period; and
(b) in the case of a Swingline Advance, the first day of the Term of such Advance,
provided that if market practice differs in the Relevant Interbank Market for a currency, the Quotation Date for that currency will be determined by the Agent in accordance with market
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practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Date will be the last of those days).
“Real Property” of any person, means all the right, title and interest of such person in and to land, improvements and fixtures, including Leaseholds.
“Receivables Facility Assets” means all accounts receivable of any Receivables Sellers (other than any Receivables Subsidiary) which are transferred to the Receivables Subsidiary pursuant to a Permitted Receivables Transaction, and any assets directly related thereto.
“Receivables Facility Financing Costs” means, for any period, the total consolidated interest and fee expense of the Parent and its Subsidiaries which would have existed for such period pursuant to a Permitted Receivables Transaction if same were structured as a secured lending arrangement rather than as a facility for the sale of Receivables Facility Assets.
“Receivables Sellers” at any time, means the Parent and any of its Subsidiaries which is, at such time, a person which is selling or transferring Receivables Facility Assets to a Receivables Subsidiary pursuant to a Permitted Receivables Transaction.
“Receivables Subsidiary” means a Wholly-Owned Subsidiary of the Parent which engages in no activities other than in connection with the financing of accounts receivable and which is designated (as provided below) as a Receivables Subsidiary (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which, (i) is guaranteed by the Parent or any other Subsidiary of the Parent (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitisation Undertakings), (ii) is recourse to or obligates the Parent or any other Subsidiary of the Parent in any way other than pursuant to Standard Securitisation Undertakings, or (iii) subjects any property or asset of the Parent or any other Subsidiary of the Parent, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitisation Undertakings, (b) with which neither the Parent nor any of its Subsidiaries has any contract, agreement, arrangement or understanding (other than pursuant to the Permitted Receivables Facility Documents (including with respect to fees payable in the ordinary course of business in connection with the servicing of accounts receivable and related assets)) on terms less favorable to the Parent or such Subsidiary than those that might be obtained at the time from persons that are not Affiliates of the Parent and (c) to which neither the Parent nor any other Subsidiary of the Parent has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results. Any such designation shall be evidenced to the Agent by filing with the Agent an officer’s certificate of the Borrower certifying that, to the best of such officer’s knowledge and belief after consultation with counsel, such designation complied with the foregoing conditions.
“Recovery Event” means the receipt by the Parent or any of its Subsidiaries of any insurance or condemnation proceeds payable (i) by reason of theft, physical destruction or damage or any other similar event with respect to any properties or assets of the Parent or any of its Subsidiaries, (whether under any policy of insurance required to be maintained under Clause 23.3 (Insurance) or otherwise) and (ii) by reason of any condemnation, taking, seizing or similar event with respect to any properties or assets of the Parent or any of its Subsidiaries.
“Reference Banks” means the principal London offices of Deutsche Bank AG, ABN AMRO Bank N.V., ING Bank N.V. and Coöperative Centrale Raiffeisen-Boerenleenbank B.A. or
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such other bank or banks as may be appointed as such by the Agent after consultation with the Parent.
“Reference Period” has the meaning ascribed to it in the definition of “Pro Forma Basis”.
“Refinance” has the meaning ascribed to that term in the definition of “Permitted Refinancing Indebtedness” and “Refinancings”, “Refinances” and “Refinanced” shall be construed accordingly.
“Regulation S-X” means U.S. Regulation S-X promulgated by the SEC.
“Regulation T” means U.S. Regulation T of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.
“Regulation U” means U.S. Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.
“Regulation X” means U.S. Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.
“Release” means the disposing, discharging, injecting, spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring or migrating, into or upon any land or water or air, or otherwise entering into the environment.
“Relevant Interbank Market” means, in relation to euro, the European interbank market and, in relation to any Optional Currency, the London interbank market.
“Relevant Interbank Rate” means:
(a) in relation to an Advance (other than a Euro Swingline Facility Advance) denominated in euros, EURIBOR; or
(b) in relation to an Advance (other than a Dollar Swingline Facility Advance) denominated in an Optional Currency, LIBOR; or
(c) in relation to a Euro Swingline Facility Advance denominated in euros, LIBOR; or
(d) in relation to a Dollar Swingline Facility Advance, Federal Funds Rate.
“Relevant Page” means the page of the Reuters or Telerate screen on which is displayed in relation to EURIBOR, the European interbank offered rates for euro and, in relation to LIBOR, BBA LIBOR for the relevant currency, or, if such page or service shall cease to be available, such other page or service which displays the European interbank offered rates for euro or the London interbank offered rates for the relevant currency as the Agent, after consultation with the Lenders and the Parent, shall select.
“Renewal Request” means, in relation to a Documentary Credit, a Utilisation Request therefor, in respect of which the proposed Utilisation Date stated in it is the Expiry Date of an existing Documentary Credit and the proposed Euro Amount is the same or less than the Euro Amount of that existing Documentary Credit.
“Repayment Date” means:
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(a) in relation to any Revolving Facility Advance, Dollar Swingline Facility Advance and Euro Swingline Facility Advance, the last day of the Term or, if earlier, the Final Maturity Date of the Revolving Facility;
(b) in respect of the Term Facility Outstandings, each of the A Facility Repayment Dates, the C Facilities Repayment Dates; and
(c) in respect of the Incremental Term Facility Outstandings, each of the Incremental Term Facility Repayment Dates,
provided that if any such day is not a Business Day in the relevant jurisdiction for payment, the Repayment Date will be the next succeeding Business Day in the then current calendar month (if there is one) or the preceding Business Day (if there is not).
“Repeating Representations” means the representations and warranties set out in Clauses 22.1 (Due Organisation), 22.4 (No Immunity), 22.5 (Governing Law and Judgments), 22.6 (All Actions Taken), 22.8 (Binding Obligations), 22.9 (No Winding-up), 22.11 (No Material Proceedings), in relation to circumstances as at the date of the Information Memorandum, 22.15 (Information Memorandum), 22.16 (Projections), 22.17 (Indebtedness and Liens), 22.19 (Power and Authority), paragraph (b) of Clause 22.20 (Structure), 22.23 (Intellectual Property), 22.24 (Ownership of Assets), 22.28 (Security), 22.29 (Investment Company Act), 22.30 (Margin Stock), 22.31 (Public Utility Holding Company Act) and 22.35 (Benefits of Subordination Provisions).
“Replaced Lender” has the meaning ascribed to that term in Clause 21.1 (Replacement of Lenders).
“Replacement Lender” has the meaning ascribed to that term in Clause 21.1 (Replacement of Lenders).
“Reportable Event” means an event described in Section 4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA other than those events as to which the 30-day notice period is waived under subsection .22, .23, .25, .27, .28 or .29 of PBGC Regulation Section 4043.
“Reporting Company” means a company required to file Form 10-K Reports and Form 10-Q Reports under the Securities Exchange Act.
“Restricted Payment” means (i) the authorisation, declaration or payment of any Dividend with respect to the Parent or any of its Subsidiaries and (ii) the making of any payment on, or with respect to, any Affiliate Debt.
“Revolving Facility” means the revolving loan facility (including the documentary credit facility and, where appropriate, the Swingline Facility) granted to the Borrower pursuant to Clause 2.1(a) (The Facilities).
“Revolving Facility Advance” means an advance (including a Rollover Advance but excluding a Documentary Credit) as from time to time reduced by repayment made or to be made by the Lenders under the Revolving Facility.
“Revolving Facility Commitment” means, in relation to a Lender at any time, and save as otherwise provided in this Agreement, the amount set opposite its name in the relevant
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column of Part I of Schedule 1 (Lenders and Commitments) (as the same may be increased from time to time pursuant to Clause 7.2 (Incremental Revolving Facility)) or as specified in the Transfer Certificate pursuant to which such Lender becomes a party to this Agreement.
“Revolving Facility Lender” means a person (including each L/C Bank) which:
(a) is named opposite the column relating to the Revolving Facility (with a positive amount) in Section A of Part I of Schedule 1 (Lenders and Commitments); or
(b) has become a party to this Agreement in accordance with the provisions of Clause 39 (Assignments and Transfers),
which in each case has not ceased to be a party to this Agreement in accordance with the terms of this Agreement and which, unless the context otherwise requires, includes a Swingline Facility Lender.
“Revolving Facility Margin” means, in relation to Revolving Facility Advances, Dollar Swingline Facility Advances and Euro Swingline Facility Advances, 2.50 per cent. per annum.
“Revolving Facility Outstandings” means, at any time, the aggregate outstanding amount of each Revolving Facility Advance and of each Outstanding L/C Amount.
“Rollover Advance” means a Rollover Advance as defined in Clause 9.2 (Rollover Advances).
“S&P” means Standard & Poor’s Ratings Group.
“Sale In Lieu of Liquidation” means any transaction whereby a Wholly-Owned Subsidiary of the Parent (other than the Borrower and Europcenter) or a Wholly-Owned Subsidiary of the Borrower (with such Subsidiary being herein called the “Subject Subsidiary”) is sold in accordance with the following requirements:
(a) before the sale of the Subject Subsidiary, all assets (other than cash and Cash Equivalents) and liabilities of the Subject Subsidiary are sold or otherwise transferred to the immediate parent of the respective Subject Subsidiary (which parent must also be the Parent or a Wholly-Owned Subsidiary thereof) in return for which the Subject Subsidiary shall receive Cash Equivalents (or an in-house bank balance representing an amount owed to it by the respective purchaser) equal to the fair market value of the assets (net of liabilities) transferred (as determined by the Parent in good faith);
(b) if there is an intercompany bank balance as described in paragraph (a) above, same shall be converted into Cash Equivalents by the repayment of same (which payment may, but shall not be required to be, made with proceeds of Revolving Facility Advances drawn hereunder in accordance with the terms and conditions hereof); and
(c) after the occurrence of the steps described in paragraph (a) above and, if applicable, paragraph (b) above, the Subject Subsidiary shall be sold (to a person other than the Parent or a Subsidiary or Affiliate thereof) for cash in an amount not less than the amount of Cash Equivalents held by the Subject Subsidiary less an arms’ length fee deemed reasonable by the Parent in connection with the respective Sale in Lieu of Liquidation.
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“Scheduled Repayment” means each scheduled repayment (a) in relation to the Revolving Facility Outstandings, as set out in and calculated in accordance with Clause 9 (Repayment of Revolving and Swingline Facility Outstandings) and (b) in relation to the Term Facility Outstandings, as set out in and calculated in accordance with Clause 10 (Repayment of Term Facility Outstandings).
“Scheduled Repayment Dates” means, in relation to the Term Facilities, the A Facility Repayment Dates, the C Facilities Repayment Dates and the Incremental Term Facility Repayment Dates.
“SEC” means the Securities Exchange Commission or successors thereof.
“Second Amendment Deed” means the Second Amendment Deed dated 28 June 2004 between the Obligors’ Agent, the Guarantors, the Agent, the Security Trustee, the Consenting B Facility Lenders and the C Facility Lenders.
“Second Amendment Effective Date” has the meaning ascribed to that term in the Second Amendment Deed.
“Secured Obligations” means all present and future liabilities (whether actual or contingent and whether owed jointly or severally or in any capacity whatsoever) of the Obligors (or any one or more of them) to the Finance Parties (or any one or more of them) under or in connection with any of them under any or all of the Finance Documents, together with all costs, charges and expenses incurred by any Finance Party in connection with the protection, preservation or enforcement of its rights under the Finance Documents provided that no such obligation or liability shall be included in the definition of “Secured Obligations” to the extent that, if it were so included, the Security (or any part thereof) created by any provision of the Security Documents would be unlawful or prohibited by any applicable law.
“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Securities Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Security” means a mortgage, charge, pledge, Lien or encumbrance or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
“Security Documents” means:
(a) each of the documents listed in Part III of Schedule 3 (Security Documents) and the Additional Security Documents;
(b) any other document (executed at any time) conferring or evidencing any Lien, guarantee or other assurance against financial loss for, or in respect of, any of the obligations of the Obligors under this Agreement; and
(c) any other document executed at any time pursuant to any covenant in any of the Security Documents referred to in paragraph (a) or (b) above.
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“Seller Debt” means Indebtedness issued as consideration in connection with one or more Permitted Acquisitions so long as (a) no person, other than the respective Subsidiary acquired pursuant to the Permitted Acquisition, has any liability with respect to such Indebtedness and (b) the terms of such Indebtedness do not otherwise cause a violation of this Agreement.
“Senior Indebtedness” means, in relation to any member of the Group at any time, the aggregate amount of Indebtedness incurred in connection with the Finance Documents and the Permitted Receivables Transactions.
“Senior Subordinated Convertible Bond Agency Agreement” means the agency agreement dated 18 December 2003 between the Parent as issuer and Deutsche Bank AG as fiscal and paying and conversion agent.
“Senior Subordinated Convertible Bond Documents” means the Senior Subordinated Convertible Bond Agency Agreement, the Senior Subordinated Convertible Bonds Subscription Agreement, the Senior Subordinated Convertible Bond Offering Circular, the Senior Subordinated Convertible Bonds and each other agreement, document or instrument relating to any issuance of Senior Subordinated Convertible Bonds.
“Senior Subordinated Convertible Bond Offering Circular” means the Offering Memorandum dated 16 December 2003, prepared in connection with the offering of the Senior Subordinated Convertible Bonds.
“Senior Subordinated Convertible Bonds” means any convertible bonds issued in the form of bonds under, and as defined in, the Senior Subordinated Convertible Bonds Subscription Agreement.
“Senior Subordinated Convertible Bonds Subscription Agreement” means that certain Subscription Agreement dated 14 November 2003, relating to the 2 per cent. Guaranteed Subordinated Convertible Bonds due 2010 described therein, among the Parent, Deutsche Bank AG London and ABN AMRO Rothschild as joint lead managers, as same may be amended, modified or supplemented from time to time in accordance with the requirements of this Agreement.
“Senior Subordinated Notes Purchase Agreement” means that certain Purchase Agreement, dated as of 26 October 1999, relating to the 12¼ per cent. Senior Subordinated Notes due 2009 described therein, among the Parent, the Borrower, Deutsche Bank Securities Inc., Paribas Corporation and ABN AMRO Incorporated, as same may be amended, modified or supplemented from time to time in accordance with the requirements of this Agreement.
“Senior Subordinated Note Documents” means each Senior Subordinated Note Indenture, Senior Subordinated Notes Purchase Agreement, the Senior Subordinated Notes and each other agreement, document or instrument relating to any issuance of Senior Subordinated Notes.
“Senior Subordinated Note Indenture” means any Indenture entered into with respect to Senior Subordinated Notes issued from time to time by the Borrower, provided that any Indenture relating to any Senior Subordinated Notes constituting Permitted Refinancing Indebtedness shall meet the requirements contained in the definition of Permitted Refinancing Indebtedness.
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“Senior Subordinated Notes” means the Borrower’s Senior Subordinated Notes, issued in accordance with the requirements of the Senior Subordinated Note Documents. The term “Senior Subordinated Notes” shall also include any “exchange notes” issued in respect of such outstanding Senior Subordinated Notes in accordance with the requirements of the relevant Senior Subordinated Note Documents, so long as in respect of outstanding Senior Subordinated Notes, such “exchange notes” are substantially identical to the Senior Subordinated Notes in respect of which same were issued and so long as the issuance of such “exchange notes” does not result in any increase to the principal amount of Senior Subordinated Notes outstanding.
“Shareholders’ Agreements” means all agreements (including, without limitation, shareholders’ agreements, subscription agreements and registration rights agreements) entered into by the Parent or any of its Subsidiaries governing the terms and relative rights of its share capital and any agreements entered into by shareholders relating to any such entity with respect to its share capital.
“Shares” means the ordinary share capital of the Parent.
“Sharing Event” means:
(a) the occurrence of any Event of Default with respect to any of the Obligors pursuant to any of Clauses 28.6 (Insolvency), 28.7 (Winding-up), 28.8 (Execution or Distress) or 28.9 (Similar Events);
(b) the declaration of the termination of any Revolving Facility Commitments, or the acceleration of the maturity of any Advances, in each case pursuant to Clause 28.16 (Acceleration); or
(c) the failure of the Borrower (which continues unremedied for at least 5 Business Days) to pay any principal of, or interest on, Revolving Facility Advances or any Outstanding L/C Amount on the relevant Final Maturity Date.
“Standard Securitisation Undertakings” means representations, warranties, covenants and indemnities entered into by the Parent or any Subsidiary thereof in connection with a Permitted Receivables Transaction which are reasonably customary in an accounts receivable transaction.
“Start Date” has the meaning ascribed to that term in the definition of “Applicable Margin”.
“Stichting A” means Stichting Administratiekantoor van Preferente Aandelen Xxxxxxxx N.V. and its successors.
“Stichting A Continuing Director” means a member of the executive committee of Stichting A on the Initial Borrowing Date or who became a member of such executive committee subsequent to the Initial Borrowing Date and who was appointed by a majority of the Stichting A Continuing Directors then on the executive committee of Stichting A.
“Stichting B” means Stichting van Preferente Aandelen Xxxxxxxx N.V. and its successors.
“Stichting B Continuing Director” means a member of the executive committee of Stichting B on the Initial Borrowing Date or who became a member of such executive
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committee subsequent to the Initial Borrowing Date and who was appointed by a majority of the Stichting B Continuing Directors then on the executive committee of Stichting B.
“Subsidiary” means, as to any person, (i) any corporation more than 50 per cent. of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such person and/or one or more Subsidiaries of such person and (ii) any partnership, limited liability company, association, joint venture or other entity in which such person and/or one or more Subsidiaries of such person has more than a 50 per cent. Equity Interest at the time.
“Supermajority Lenders” of (i) any Facility (other than the B1 Facility, the B2 Facility, the C1 Facility or the C2 Facility) means those Lenders which would constitute the Instructing Group under, and as defined in, this Agreement if (x) all outstanding Facilities Obligations of the other Facilities under this Agreement were repaid in full and all Commitments, if any, with respect thereto were terminated and (y) the percentage “50%” contained therein were changed to “662/3%”, (ii) the B1 Facility or the B2 Facility means those Lenders which would constitute the Instructing Group under, and as defined in, this Agreement if (x) all outstanding Facilities Obligations of the other Facilities under this Agreement (other than both of the B Facilities) were repaid in full and all Commitments, if any, with respect thereto were terminated and (y) the percentage “50%” contained therein were changed to “662/3 %” or (iii) the C1 Facility or the C2 Facility means those Lenders which would constitute the Instructing Group under, and as defined in, this Agreement if (x) all outstanding Facilities Obligations of the other Facilities under this Agreement (other than both of the C Facilities) were repaid in full and all Commitments, if any, with respect thereto were terminated and (y) the percentage “50%” contained therein were changed to “662/3 %”.
“Swingline Facility” means the swingline facility forming part of the Revolving Facility and granted to the Borrower pursuant to Clause 2.1(b) (The Facilities).
“Swingline Facility Advance” means a Dollar Swingline Facility Advance or a Euro Swingline Facility Advance, as the context may require.
“Swingline Facility Commitment” means, in relation to a Swingline Facility Lender at any time, and save as otherwise provided in this Agreement, the amount set opposite its name in the relevant column of Section B of Part I of Schedule 1 (Lenders and Commitments) or as specified in the Transfer Certificate pursuant to which such Lender becomes a party to this Agreement.
“Swingline Facility Lender” means a person which:
(a) is named in Section B of Part I of Schedule 1 (Lenders and Commitments); or
(b) has become a party to this Agreement in accordance with the provisions of Clause 39 (Assignments and Transfers),
which in each case includes any affiliate designated by such Swingline Facility Lender to act as such with respect to all or any part of the Swingline Facility Advances and which has not ceased to be a party to this Agreement in accordance with the terms of this Agreement and “Swingline Facility Lenders” means all of them.
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“Swingline Facility Outstandings” means the Dollar Swingline Facility Outstandings and the Euro Swingline Facility Outstandings.
“Syndication Date” means 31 March 2004 or such later date as may be agreed between the Arrangers and the Parent or such earlier date specified by the Arrangers (and notified to the Agent and the Parent) as the day on which primary syndication of the Facilities is completed.
“TARGET Day” means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer payment system is open for the settlement of payments in euro.
“Tax Credit” means a credit against, relief or remission for, or repayment of any tax.
“Tax Deduction” means a deduction or withholding for or on account of tax from a payment made or to be made under a Finance Document (but, for clarity, shall not include any tax imposed on or measured by the net income or net profits of a Lender pursuant to the laws and the jurisdiction (or any political subdivision therein) in which the principal office of such Lender or the applicable lending office of such Lender for the Finance Documents and the Transaction (or relevant part thereof) is located, other than such tax imposed on gross-up payments covered by Clause 18 (Taxes)).
“Taxes Act” means the Income and Corporation Taxes Xxx 0000.
“Tax Liability” has the meaning set out in paragraph (e) of Clause 18.2 (Tax Indemnity).
“Tax Payment” means the increase in any payment made by an Obligor to a Finance Party under paragraph (c) of Clause 18.1 (Tax Gross-up) or any amount payable under paragraph (d) of Clause 18.1 (Tax Gross-up) or under Clause 18.2 (Tax Indemnity).
“Tax Sharing Agreements” means all tax sharing, tax allocation and other similar agreements entered into by the Parent or any of its Subsidiaries.
“Term” means:
(a) in relation to a Revolving Facility Advance, a Dollar Swingline Facility Advance, a Euro Swingline Facility Advance, the period for which such Advance is borrowed as specified in the relevant Utilisation Request; and
(b) in relation to any Documentary Credit, the period from the date of its issue until its Expiry Date.
“Term Facilities” means the A Facility, the B Facilities, the C Facilities and, subject to Clause 7 (Uncommitted Incremental Facilities), the Incremental Term Facility and “Term Facility” means any of them as the context may require from time to time.
“Term Facility Advance” means any A Facility Advance, B Facility Advance, C Facility Advance and, subject to Clause 7 (Uncommitted Incremental Facilities), Incremental Term Facility Advance and “Term Facility Advances” shall be construed accordingly.
“Term Facility Commitments” means, at any time, the aggregate of the A Facility Commitments, the B Facility Commitments, the Additional C Facility Commitments and, subject to Clause 7 (Uncommitted Incremental Facilities), the Incremental Term Facility Commitments.
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“Term Facility Outstandings” means, at any time, the aggregate of the A Facility Outstandings, the B Facility Outstandings, the C Facility Outstandings and, subject to Clause 7 (Uncommitted Incremental Facilities), the Incremental Term Facility Outstandings at such time.
“Termination Date” means:
(a) in relation to the Revolving Facility, the Swingline Facility and the Incremental Revolving Facility, the date which is 30 days prior to the Final Maturity Date in respect of the Revolving Facility;
(b) in relation to each Term Facility (other than the Additional C1 Facility, the Additional C2 Facility and the Incremental Term Facility), the earlier of the day which is:
(i) 31 January 2004; and
(ii) the first Business Day on which the Available Commitment of each of the Lenders in respect of the relevant Term Facility is zero;
(c) in relation to the Additional C1 Facility and the Additional C2 Facility, the earlier of the day which is:
(i) 31 July 2004; and
(ii) the Second Amendment Effective Date; and
(d) in relation to any Tranche of the Incremental Term Facility, the last date by which Incremental Term Facility Advances under such Tranche may be incurred under this Agreement, which date shall be set out in the relevant Incremental Term Facility Commitment Agreement but no later than the earlier of (i) 30 September 2010 and (ii) the Final Maturity Date of the C Facilities.
“Termination Event” means, with respect to a Plan which is subject to Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the Parent, any Subsidiary of the Parent or any ERISA Affiliate from such Plan during a plan year in which the Parent, any Subsidiary of the Parent or any ERISA Affiliate was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or was deemed such under Section 4062(e) of ERISA, (c) the termination of such Plan, the filing of a notice of intent to terminate such Plan or the treatment of an amendment of such Plan as a termination under Section 4041 of ERISA (other than a standard termination under Section 4041(b) of ERISA), (d) the institution by the PBGC of proceedings to terminate such Plan or (e) any event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or appointment of a trustee to administer, such Plan.
“Test Period” means, for any determination, the four consecutive fiscal quarters of the Parent then last ended (taken as one accounting period).
“Third Party Existing Indebtedness” means the list of Indebtedness existing on the Effective Date set out in Section A (Third Party Existing Indebtedness) of Part II of Schedule 10 (Existing Indebtedness).
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“Tranche” means the Revolving Facility, the A Facility, the B1 Facility, the B2 Facility, the C1 Facility and the C2 Facility utilised in making Advances. In addition, and notwithstanding the foregoing, any Incremental Term Facility Advances extended after the Syndication Date shall, to the extent provided in Clause 7.1(c) (Constitution of each Tranche of Incremental Term Facility), be made pursuant to one or more additional Tranches which shall be designated pursuant to the respective Incremental Term Facility Commitment Agreement in accordance with the relevant requirements specified in Clause 7.1(c) (Constitution of each Tranche of Incremental Term Facility).
“Transaction” means the entering into of the Finance Documents and the incurrence of the Outstandings and the payment of all fees and expenses in connection with the foregoing.
“Transaction Date” has the meaning ascribed to that term in the definition of “Pro Forma Basis”.
“Transfer Certificate” means a duly completed deed of transfer and accession in the form set out in Schedule 2 (Form of Transfer Certificate) and signed by a Lender and a Transferee whereby such Lender seeks to procure the transfer to such Transferee of all or a part of such Lender’s rights, benefits and obligations under this Agreement as contemplated in Clause 39 (Assignments and Transfers) and under the Intercreditor Deed.
“Transfer Date” means, in relation to any Transfer Certificate, the date for the making of the transfer as specified in such Transfer Certificate.
“Transferee” means a bank or other institution to which a Lender seeks to transfer all or part of its rights, benefits and obligations under this Agreement pursuant to and in accordance with Clause 39 (Assignments and Transfers).
“Trust Property” means:
(a) any rights, interests or other property and the proceeds thereof from time to time assigned, transferred, mortgaged, charged, or pledged to and/or otherwise vested in the Security Trustee under, pursuant to or in connection with this Agreement or any Security Document to which the Security Trustee is a party;
(b) any security interest from time to time constituted by or pursuant to or evidenced by any Security Document to which the Security Trustee is a party;
(c) any representation, obligation, covenant, warranty or other contractual provision in favour of the Security Trustee (other than any made or granted solely for its own benefit) made or granted in or pursuant to any of the Security Documents to which the Security Trustee is a party;
(d) any sum which is received or recovered by the Security Trustee under, pursuant to or in connection with any of the Finance Documents or the exercise of any of the Security Trustee’s powers under or in connection therewith and which is held by the Security Trustee upon trust on the terms of this Agreement or any Security Document to which the Security Trustee is a party;
(e) all income and other sums at any time received or receivable by the Security Trustee in respect of Trust Property (or any part thereof); or
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(f) any sum which is received or recovered by the Security Trustee under, pursuant to or in connection with Clause 32.7 (Parallel Debt).
“UCC” means the U.S. Uniform Commercial Code as from time to time in effect in the relevant jurisdiction.
“Unavailable Revolving Facility Amount” means such amount from time to time not applied in accordance with (A), (B) and/or (C) as referred to in paragraph (b) (Asset Sale) of Clause 13.1 (Repayment from Net Proceeds) pending application during any 360 day period referred to therein.
“Unfunded Current Liability” of any Plan, means the amount, if any, by which the actuarial present value of the accumulated plan benefits under the Plan, as of the close of its most recent plan year, determined in accordance with Statement of Financial Accounting Standards No. 87 and based upon the actuarial assumptions used by the Plan’s actuary in the most recent annual valuation of the Plan, exceeds the fair market value of the assets thereof, determined in accordance with Section 412 of the Code, allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions).
“Unpaid Sum” means any sum due and payable by an Obligor under any Finance Document but unpaid.
“U.S. Guarantor” means each of the parties as set out in Part II of Schedule 1 (Original Guarantors) named as U.S. Guarantors and any Acceding Guarantor incorporated in the United States of America.
“U.S. Lender” means, in relation to a payment of interest on a participation in an Advance to the Borrower, a Lender which is created or organised under the laws of the United States of America or of any state thereof and, if the Lender is a trust, is a “United States Person” within the meaning of Section 7701(a)(30)(E) of the Code.
“U.S. Person” shall mean any person organised under the laws of the United States or any state or territory thereof.
“U.S. Subsidiary” means (a) in relation to the Parent, each Subsidiary of the Parent that is incorporated under the laws of the United States or any State or territory thereof and (b) in relation to the Borrower, each Subsidiary of the Borrower that is incorporated under the laws of the United States or any State or territory thereof.
“Utilisation” means the utilisation of a Facility under this Agreement whether by way of an Advance or the issue of a Documentary Credit.
“Utilisation Date” means, in relation to an Advance, the date on which such Advance is (or is requested) to be made and, in relation to a Documentary Credit, the date on which such Documentary Credit is to be issued under this Agreement.
“Utilisation Request” means a duly completed notice (a) in the case of an Advance (other than a Swingline Facility Advance) and/or a Documentary Credit in the form set out in Part I of Schedule 4 (Form of Utilisation Request (Term Facilities and Revolving Facility)), or (b) in the case of a Swingline Facility Advance, in the form set out in Part II of Schedule 4 (Form of Utilisation Request (Swingline Facility)).
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“Waivable Mandatory Repayment” has the meaning ascribed to that term in paragraph (c) (Waivable Mandatory Repayment) of Clause 13.3 (Application of Mandatory Prepayments).
“Waivable Voluntary Repayment” has the meaning ascribed to that term in paragraph (b) (Waivable Voluntary Repayment) of Clause 12.3 (Application of Voluntary Prepayments).
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing (a) the then outstanding aggregate principal amount of such Indebtedness into (b) the sum of the total of the products obtained by multiplying (i) the amount of each then remaining instalment or other required payment of principal including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment.
“Wholly-Owned Non-U.S. Subsidiary” means (a) in relation to the Parent, each Non-U.S. Subsidiary of the Parent that is also a Wholly-Owned Subsidiary of the Parent and (b) in relation to the Borrower, each Non-U.S. Subsidiary of the Borrower that is also a Wholly-Owned Subsidiary of the Borrower.
“Wholly-Owned Subsidiary” means, as to any person, (a) any corporation 100 per cent. of whose share capital (other than directors’ qualifying shares and other nominal amounts of shares required by applicable law to be held by persons (other than directors)) is at the time owned by such person and/or one or more Wholly-Owned Subsidiaries of such person and (b) any partnership, limited liability company, association, joint venture or other entity in which such person and/or one or more Wholly-Owned Subsidiaries of such person has a 100 per cent. Equity Interest at such time.
“Wholly-Owned U.S. Subsidiary” means (a) in relation to the Parent, each U.S. Subsidiary of the Parent that is also a Wholly-Owned Subsidiary of the Parent and (b) in relation to the Borrower, each U.S. Subsidiary of the Borrower that is also a Wholly-Owned Subsidiary of the Borrower.
1.2 Accounting Expressions
All accounting expressions which are not otherwise defined in this Agreement shall be construed in accordance with Dutch GAAP.
1.3 Construction
Unless a contrary indication appears, any reference in this Agreement to:
the “Agent”, an “Arranger”, the “Security Trustee”, a “Hedge Counterparty”, the “L/C Bank”, an “A Facility Lender”, a “B1 Facility Lender”, a “B2 Facility Lender”, a “C1 Facility Lender”, a “C2 Facility Lender”, a “Revolving Facility Lender”, a “Dollar Swingline Facility Lender”, a “Euro Swingline Facility Lender”, an “Incremental Revolving Facility Lender” or an “Incremental Term Facility Lender” shall be construed so as to include their respective and any subsequent successors, Transferees and permitted assigns in accordance with their respective interests;
“agreed form” means, in relation to any document, in the form agreed and initialled for identification by the Arrangers and the Parent prior to the Initial Borrowing Date;
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“continuing” in relation to an Event of Default or a Default shall be construed as meaning that (a) the circumstances constituting such Event of Default or Default continue and (b) neither the Agent (being duly authorised to do so) nor the Lenders have waived such of its or their rights under this Agreement as arise as a result of that event;
“determines” or “determined” means a determination made in the absolute discretion of the person making the determination;
the “equivalent” on any given date in one currency (the “first currency”) of an amount denominated in another currency (the “second currency”) is, unless otherwise agreed, a reference to the amount of the first currency which could be purchased with the second currency at the Agent’s Spot Rate of Exchange for the purchase of the first currency with the second currency;
“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 (including interest and other charges relating to it);
“month” is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next succeeding calendar month save that, where any such period would otherwise end on a day which is not a Business Day, it shall end on the next succeeding Business Day, unless that day falls in the calendar month succeeding that in which it would otherwise have ended, in which case it shall end on the immediately preceding Business Day provided that, if a period starts on the last Business Day in a calendar month or if there is no numerically corresponding day in the month in which that period ends, that period shall end on the last Business Day in that later month (and references to “months” shall be construed accordingly);
a “person” shall be construed as a reference to any person, firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing;
“regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation.
“tax” shall be construed so as to include all present and future taxes, charges, imposts, duties, levies, deductions or withholdings of any kind whatsoever, or any amount payable to any governmental authority on account of or as security for any of the foregoing, by whomsoever on whomsoever and wherever imposed, levied, collected, withheld or assessed together with any penalties, additions, fines, surcharges or interest relating to it; and “taxes” and “taxation” shall be construed accordingly;
“VAT” shall be construed as value added tax as provided for in the Value Added Tax Xxx 0000 and legislation (or purported legislation and whether delegated or otherwise) supplemental to that Act or in any primary or secondary legislation promulgated by the European Community or European Union or any official body or agency of the European Community or European Union, and any tax similar or equivalent to value added tax imposed by any country other than the United Kingdom and any similar or turnover tax replacing or introduced in addition to any of the same; and
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the “winding-up”, “dissolution” or “administration” of a company or corporation shall be construed so as to include any equivalent or analogous proceedings under the Law of the jurisdiction in which such company or corporation is incorporated or any jurisdiction in which such company or corporation carries on business, including the seeking of liquidation, winding-up, reorganisation, dissolution, administration, arrangement, adjustment, protection from creditors or relief of debtors.
1.4 Currency
“€” and “euro” denote the lawful currency of each Participating Member State, “£” and “sterling” denote the lawful currency of the United Kingdom and “$” and “dollar” denote the lawful currency of the United States of America.
1.5 Statutes
Any reference in this Agreement to a statute or a statutory provision (including any reference to the Board of Governors of the Federal Reserve System of the United States) shall, save where a contrary intention is specified, be construed as a reference to such statute or statutory provision as the same shall have been, or may be, amended or re-enacted.
1.6 Time
Any reference in this Agreement to a time shall, unless otherwise specified, be construed as a reference to London time.
1.7 References to Agreements
Unless otherwise stated, any reference in this Agreement to any agreement or document (including any reference to this Agreement) shall be construed as a reference to:
(a) such agreement or document as amended, varied, novated, supplemented, extended, renewed, refinanced or replaced from time to time;
(b) any other agreement or document whereby such agreement or document is so amended, varied, supplemented or novated; and
(c) any other agreement or document entered into pursuant to or in accordance with any such agreement or document.
1.8 Documentary Credits
Any reference in this Agreement to:
(a) an amount borrowed includes any amount utilised by way of Documentary Credit;
(b) a Lender funding its participation in a Utilisation includes an Indemnifying Lender participating in a Documentary Credit;
(c) amounts outstanding under this Agreement include amounts outstanding under, or in relation to, any Documentary Credit;
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(d) an outstanding amount of a Documentary Credit at any time is the maximum amount that is or may be payable by the Borrower in respect of that Documentary Credit at that time;
(e) the Borrower “repaying” a Documentary Credit means:
(i) the Borrower providing cash cover for that Documentary Credit;
(ii) the maximum amount payable under the Documentary Credit being reduced in accordance with its terms; or
(iii) the L/C Bank being satisfied that it has no further liability under that Documentary Credit,
and that the amount by which a Documentary Credit is repaid under sub-paragraphs (e)(i) and (e)(ii) above is the amount of the relevant cash cover or reduction; and
(f) the Borrower providing “cash cover” for a Documentary Credit means the Borrower paying an amount (x) at any time prior to the occurrence of a Sharing Event in the currency of the Documentary Credit and (y) at any time on or after the occurrence of a Sharing Event, in euros, to an interest-bearing account in the name of the Borrower and the following conditions are met:
(i) the account is with the Agent (if the cash cover is to be provided for all the Indemnifying Lenders) or with an Indemnifying Lender or the L/C Bank (if the cash cover is to be provided for that Indemnifying Lender or the L/C Bank, as the case may be);
(ii) withdrawals from the account may only be made to pay a Finance Party amounts due and payable to it under this Agreement in respect of that Documentary Credit until no amount is or may be outstanding under that Documentary Credit; and
(iii) the Borrower has executed a security document over that account, in form and substance satisfactory to the Agent or the Finance Party with which that account is held, creating a first ranking security interest over that account,
or on such other terms as may be satisfactory to the Agent, the relevant Indemnifying Lender or the L/C Bank.
2. THE FACILITIES
2.1 The Facilities
(a) The Revolving Facility Lenders grant to the Borrower, upon the terms and subject to the conditions of this Agreement, a revolving loan facility in a maximum aggregate amount of €255,000,000 (the “Revolving Facility”) or its equivalent from time to time in Optional Currencies.
(b) The Swingline Facility Lenders grant to the Borrower, upon the terms and subject to the conditions of this Agreement, a swingline facility (being part of the Revolving
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Facility) in a maximum aggregate Euro Amount of €85,000,000 (the “Swingline Facility”).
(c) The A Facility Lenders grant to the Borrower upon the terms and subject to the conditions of this Agreement, a term loan facility in a maximum aggregate amount of €120,000,000 (the “A Facility”).
(d) The B1 Facility Lenders grant to the Borrower upon the terms and subject to the conditions of this Agreement, a term loan facility in a maximum aggregate amount of €305,000,000 (the “B1 Facility”) or its equivalent from time to time in Optional Currencies (it being agreed that the equivalent in dollars on the Initial Borrowing Date is an amount equal to $380,000,000).
(e) The B2 Facility Lenders grant to the Borrower upon the terms and subject to the conditions of this Agreement, a term loan facility in a maximum aggregate amount of €50,000,000 (the “B2 Facility”).
(f) (i) Each Consenting B1 Facility Lender severally agrees to convert (the “B1 Facility Conversion”), on the Second Amendment Effective Date, its Proportion of all B1 Facility Advances outstanding on the Second Amendment Effective Date (immediately prior to giving effect thereto) into an equivalent amount of new advances hereunder owing by the Borrower (each such advance, a “Converted C1 Facility Advance”, and the aggregate of all such Consenting B1 Facility Lenders’ Proportions converted, the “Converted C1 Facility”). The Lenders with Additional C1 Facility Commitments grant to the Borrower on the Second Amendment Effective Date, upon the terms and subject to the conditions of this Agreement, a term loan facility in a maximum aggregate amount equal to the B1 Facility Outstandings of the Non-Consenting B1 Facility Lenders on the Second Amendment Effective Date (immediately prior to giving effect thereto) (the “Additional C1 Facility” and, together with the Converted C1 Facility, the “C1 Facility”).
(ii) (A) Each Converted C1 Facility Advance shall be subject to the same Interest Period (and LIBOR) as the B1 Facility Advance from which it was converted, (B) the Additional C1 Facility shall be initially drawn down by way of a single Additional C1 Facility Advance which shall be added to (and thereafter be deemed to constitute a part of) each Converted C1 Facility Advance on a pro rata basis (based on the relative sizes of the various such Converted C1 Facility Advances), and (C) in connection with the B1 Facility Conversion and the incurrence of the Additional C1 Facility Advance pursuant to paragraph (B) above, the Agent shall (and is hereby authorised to) take all appropriate actions to ensure that all Lenders with outstanding C1 Facility Advances (after giving effect to the B1 Facility Conversion and the incurrence of the Additional C1 Facility Advance pursuant to paragraph (B) above) participate in each C1 Facility Advance on a pro rata basis (based on the aggregate amount of their Converted C1 Facility Advances and Additional C1 Facility Commitments as in effect on the Second Amendment Effective Date).
(iii) In connection with the B1 Facility Conversion and the incurrence of the Additional C1 Facility Advance pursuant to paragraph (ii)(B) above, the Lenders and the Borrower hereby agree that, notwithstanding anything to the
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contrary contained in this Agreement, (A) if requested by any Lenders participating in the Additional C1 Facility Advance which “match funds” the Borrower shall pay to such Lender such amounts necessary, as reasonably determined by such Lender, to compensate such Lenders for participating in such Additional C1 Facility Advance in the middle of an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon the rates then applicable thereto), and (B) the Borrower shall be obligated to pay to the respective Non-Consenting B1 Facility Lenders breakage or other costs as contemplated by Clause 33.2 (Break Costs) (if any) incurred in connection with the B1 Facility Conversion and/or the actions taken pursuant to paragraph (ii) above of this Clause 2.1(f).
(g) (i) Each Consenting B2 Facility Lender severally agrees to convert (the “B2 Facility Conversion”), on the Second Amendment Effective Date, its Proportion of all B2 Facility Advances outstanding on the Second Amendment Effective Date (immediately prior to giving effect thereto) into an equivalent amount of new advances hereunder owing by the Borrower (each such advance, a “Converted C2 Facility Advance”, and the aggregate of all such Consenting B2 Facility Lenders’ Proportions converted, the “Converted C2 Facility”). The Lenders with Additional C2 Facility Commitments grant to the Borrower on the Second Amendment Effective Date, upon the terms and subject to the conditions of this Agreement, a term loan facility in a maximum aggregate amount equal to the B2 Facility Outstandings of the Non-Consenting B2 Facility Lenders on the Second Amendment Effective Date (immediately prior to giving effect thereto) (the “Additional C2 Facility” and, together with the Converted C2 Facility, the “C2 Facility”).
(ii) (A) Each Converted C2 Facility Advance shall be subject to the same Interest Period (and EURIBOR) as the B2 Facility Advance from which it was converted, (B) the Additional C2 Facility shall be initially drawn down by way of a single Additional C2 Facility Advance which shall be added to (and thereafter be deemed to constitute a part of) each such Converted C2 Facility Advance on a pro rata basis (based on the relative sizes of the various such Converted C2 Facility Advances), and (C) in connection with the B2 Facility Conversion and the incurrence of the Additional C2 Facility Advance pursuant to paragraph (B) above, the Agent shall (and is hereby authorised to) take all appropriate actions to ensure that all Lenders with outstanding C2 Facility Advances (after giving effect to the B2 Facility Conversion and the incurrence of the Additional C2 Facility Advance pursuant to paragraph (B)) participate in each C2 Facility Advance on a pro rata basis (based on the aggregate amount of their Converted C2 Facility Advances and Additional C2 Facility Commitments as in effect on the Second Amendment Effective Date).
(iii) In connection with the B2 Facility Conversion and the incurrence of the Additional C2 Facility Advance pursuant to paragraph (ii)(B) above, the Lenders and the Borrower hereby agree that, notwithstanding anything to the contrary contained in this Agreement, (A) if requested by any Lenders participating in the Additional C2 Facility Advance which “match funds” the Borrower shall pay to such Lenders such amounts necessary, as reasonably determined by such Lenders, to compensate such Lenders for participating in
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such Additional C2 Facility Advance in the middle of an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon the rates then applicable thereto), and (B) the Borrower shall be obligated to pay to the respective Non-Consenting B2 Facility Lenders breakage or other costs as contemplated by Clause 33.2 (Break Costs) (if any) incurred in connection with the B2 Facility Conversion and/or the actions taken pursuant to paragraph (ii) above of this Clause 2.1(g).
(h) The Incremental Revolving Facility Lenders grant to the Borrower upon the terms and subject to the conditions of this Agreement (including, without limitation, Clause 7 (Uncommitted Incremental Facilities), and relevant Incremental Revolving Facility Commitment Agreements, a revolving loan facility in a maximum aggregate amount of €65,000,000 (the “Incremental Revolving Facility”) or its equivalent from time to time in Optional Currencies.
(i) The Incremental Term Facility Lenders grant to the Borrower upon the terms and subject to the conditions of this Agreement (including, without limitation, Clause 7 (Uncommitted Incremental Facilities), and relevant Incremental Term Facility Commitment Agreements, a term loan facility in a maximum aggregate amount equal to the euro equivalent of $372,000,000 (the “Incremental Term Facility”) or its equivalent from time to time in Optional Currencies.
2.2 Purpose
(a) The A Facility and the B Facilities are intended to finance, in whole, the Existing Credit Agreement including any fees and expenses in relation thereto.
(b) The Revolving Facility and the Incremental Revolving Facility are intended to finance the general working capital requirements and the general corporate purposes of the Group and may be utilised by way of Revolving Facility Advances or Documentary Credits.
(c) The Additional C1 Facility shall be used on the Second Amendment Effective Date to repay each Non-Consenting B1 Facility Lender’s Proportion of all outstanding B1 Facility Advances, together with accrued but unpaid interest thereon.
(d) The Additional C2 Facility shall be used on the Second Amendment Effective Date to repay each Non-Consenting B2 Facility Lender’s Proportion of all outstanding B2 Facility Advances, together with accrued but unpaid interest thereon.
(e) The Swingline Facility is intended to finance the general working capital requirements and general corporate purposes of the Group.
(f) The Incremental Term Facility is intended to finance Permitted Acquisitions and the redemption or repurchase of the Senior Subordinated Notes (including, without limitation, any related redemption or repurchase fees).
(g) The Borrower shall apply all amounts borrowed under this Agreement in or towards satisfaction of the purposes referred to in paragraphs (a), (b), (c), (d), (e) and (f) and none of the Finance Parties shall be obliged to concern themselves with such application.
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2.3 Several Obligations
The obligations of each Finance Party under this Agreement are several and the failure by a Finance Party to perform any of its obligations under this Agreement shall not affect the obligations of any of the other parties to this Agreement towards any other party to this Agreement nor shall any other party be liable for the failure by such Finance Party to perform its obligations under this Agreement.
2.4 Several Rights
The rights of each Finance Party are several and any debt arising under this Agreement at any time from an Obligor to any Finance Party to this Agreement shall be a separate and independent debt. Each Finance Party may, except as otherwise stated in this Agreement, separately enforce its rights under this Agreement.
3. CONDITIONS
3.1 Conditions Precedent
The obligations of the Finance Parties under this Agreement shall be conditional upon the Agent having confirmed to the Parent that it has received the documents listed in Part I of Schedule 3 (Conditions Precedent to First Utilisation) and that each is satisfactory, in form and substance, to the Agent acting reasonably. The Agent shall notify the Parent and the Lenders promptly upon being so satisfied.
3.2 Conditions Subsequent
The Parent shall procure (and each relevant Obligor shall ensure) that:
(a) as soon as practicable after the Initial Borrowing Date under this Agreement and in any event by no later than 31 January 2004 there shall have been delivered to the Agent each of the documents listed in Section A of Part IV of Schedule 3 (Conditions Subsequent Documents); and
(b) within 3 months after the Initial Borrowing Date there shall have been delivered to the Agent each of the documents listed in Section B of Part IV of Schedule 3 (Conditions Subsequent Documents),
each in form and substance satisfactory to the Agent. The Agent shall notify the Parent and the Lenders promptly upon being so satisfied.
4. UTILISATION
4.1 Conditions to Utilisation
Save as otherwise provided in this Agreement, an Advance (other than a Swingline Facility Advance or an Incremental Term Facility Advance) will be made by the Lenders to the Borrower or a Documentary Credit will be issued by an L/C Bank at the Borrower’s request if:
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(a) the Agent has received from the Borrower a duly completed Utilisation Request stating whether the proposed Utilisation is to be by way of Advance or Documentary Credit not later than 9.30 a.m. on a day which is:
(i) no more than 10 nor less than 2 Business Days prior to the proposed Utilisation Date for such Advance; or
(ii) no more than 10 nor less than 4 Business Days prior to the proposed Utilisation Date for such Documentary Credit,
receipt of which shall oblige the Borrower to borrow the amount requested on the date stated upon the terms and subject to the conditions contained in this Agreement provided that no Utilisation Request under the Revolving Facility shall be made prior to the first Utilisation Request under the Term Facilities;
(b) the proposed Utilisation Date is a Business Day for the proposed currency of the Advance or Documentary Credit, as the case may be, which is or precedes the relevant Termination Date;
(c) in the case of a Utilisation by way of an A Facility Advance, the proposed Euro Amount of such Advance is equal to €120,000,000;
(d) in the case of a Utilisation by way of a B1 Facility Advance, the proposed Euro Amount of such Advance is equal to €305,000,000 (it being agreed that the equivalent in dollars is an amount equal to $380,000,000);
(e) in the case of a Utilisation by way of a B2 Facility Advance, the proposed Euro Amount of such Advance is equal to €50,000,000;
(f) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Euro Amount of such Advance is (i) equal to the amount of the corresponding Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any)) or (ii) less than such amount but equal to, or an integral multiple of, €1,000,000;
(g) in the case of a Utilisation by way of Documentary Credit, the proposed Euro Amount of such Documentary Credit is equal to or less than the amount of the Available Revolving Facility (minus the Unavailable Revolving Facility Amount (if any));
(h) in the case of a Utilisation by way of a Revolving Facility Advance, (i) at any time prior to the Syndication Date, immediately after the making of such Advance there will be no more than 3 Revolving Facility Advances outstanding and (ii) at any time after the Syndication Date, immediately after the making of such Advance there will be no more than 10 Revolving Facility Advances (for the avoidance of doubt not including any Swingline Facility Advances) outstanding;
(i) in the case of a Utilisation by way of a Documentary Credit, the proposed Term of the Documentary Credit is a period not exceeding 364 days, ending on or before the Termination Date in respect of the Revolving Facility;
(j) in the case of a Utilisation by way of a Revolving Facility Advance, the proposed Term of such Revolving Facility Advance is a period of one week, two weeks, or 1, 2, 3 or 6 months or such other period as the Agent may agree, and ends on or before the
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Final Maturity Date of the Revolving Facility provided that, save as the Agent may otherwise agree, prior to the Syndication Date the Term of each Revolving Facility Advance shall be 1 week or 1 month (or, such duration as is necessary to ensure that such Term ends on the Syndication Date);
(k) in the case of a Utilisation by way of an Advance other than a Rollover Advance, the interest rate applicable to such Advance’s first Interest Period or Term (as the case may be) will not have to be determined under Clause 16 (Market Disruption and Alternative Interest Rates);
(l) in the case of a Utilisation by way of a Documentary Credit, the L/C Bank and the Agent have each approved the terms of such Documentary Credit (which, unless the Agent and the L/C Bank otherwise agree in writing, shall be in such form customarily used by the L/C Bank or in such other form as has been approved by the L/C Bank and shall specify the purpose of its issue, the name and address of the Beneficiary of it, the Beneficiary’s receiving bank account and its Expiry Date);
(m) in the case of any Utilisation:
(i) in the case of a Rollover Advance or a Documentary Credit which is being renewed pursuant to Clause 5.2 (Renewal of Documentary Credits), no Event of Default is continuing or would result from the proposed Rollover Advance or the renewal of that Documentary Credit and, in the case of any other Utilisation, no Default is continuing or would result from the proposed Utilisation; and
(ii) save in the case of a Rollover Advance, the Repeating Representations made by each Obligor are true and correct in all material respects on the relevant Utilisation Date by reference to the circumstances then existing; and
(n) in relation to the first Utilisation requested under this Agreement, the Agent is reasonably satisfied that the Parent will comply with its obligations under Clause 3.2 (Conditions Subsequent).
4.2 Conditions to Utilisation of Incremental Term Facility
(a) Conditions to Incremental Term Facility Commitments: Subject to and upon the terms and conditions set forth in Clause 7 (Uncommitted Incremental Facilities) and the relevant Incremental Term Facility Commitment Agreement, each Lender with an Incremental Term Facility Commitment for a given Tranche of Incremental Term Facility Advances severally agrees, at any time and from time to time on and after the date that such Incremental Term Facility Commitment is obtained pursuant to Clause 7 (Uncommitted Incremental Facilities) and prior to the relevant Termination Date for such Tranche of Incremental Term Facility Advances, to make a term loan or term loans (each an “Incremental Term Facility Advance” and, collectively, the “Incremental Term Facility Advances”) to the Borrower for such Tranche. Such Incremental Term Facility Advances:
(i) shall be incurred on an Incremental Term Facility Utilisation Date;
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(ii) shall be denominated in the Applicable Currency for such Tranche of Incremental Term Facility Advances;
(iii) shall, if an Alternate Currency Incremental Term Facility Advance, at the option of the Borrower, be incurred and maintained in one or more borrowings of Alternate Currency Incremental Term Facility Advances under such Tranche; and
(iv) shall not exceed for any such Incremental Term Facility Lender at the time of any incurrence thereof, that aggregate principal amount which equals the Incremental Term Facility Commitment of such Incremental Term Facility Lender for such Tranche at such time (before giving effect to any reduction thereof at such time pursuant to paragraph (c) of this Clause 4.2).
(b) Utilisation Request: Save as otherwise provided in this Agreement and/or the relevant Incremental Term Facility Commitment Agreement, an Incremental Term Facility Advance will be made by the Lenders to the Borrower at the Borrower’s request if the Agent has received at any time after the Syndication Date from the Borrower a duly completed Utilisation Request in relation to an Incremental Term Facility Advance not later than 10.00 a.m. on a day which is no more than 10 nor less than 3 Business Days prior to the proposed Utilisation Date for such Advance stating:
(i) the aggregate principal amount of such Advance (stated in the Applicable Currency, as the case may be);
(ii) the Incremental Term Facility Utilisation Date;
(iii) in the case of an Alternate Currency Incremental Term Facility Advance, the Optional Currency; and
(iv) whether such Advance constitutes part of the C Facilities or Incremental Term Facility,
receipt of which shall oblige the Borrower to borrow the amount requested on the date stated upon the terms and subject to the conditions contained in this Agreement and the relevant Incremental Term Facility Commitment Agreement.
(c) Reduction of Incremental Term Facility Commitment: The total Incremental Term Facility Commitments under a given Tranche shall (i) be permanently reduced on each Incremental Term Facility Utilisation Date in respect of such Tranche in an amount equal to the aggregate principal amount of Incremental Term Facility Advances of such Tranche incurred on each such date, (ii) terminate in its entirety to the extent not theretofore terminated on the Termination Date for such Tranche of Incremental Term Facility Advances (after giving effect to any Incremental Term Facility Advances of such Tranche to be made on such date) and (iii) prior to the termination of the total Incremental Term Facility Commitment in respect of such Tranche, be permanently reduced from time to time to the extent required by Clause 13.3 (Application of Mandatory Prepayments).
(d) Application of Reduction of Incremental Term Facility Commitment: Each reduction to, and/or termination of the total Incremental Term Facility Commitment
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under a given Tranche pursuant to this Clause 4.2 shall be applied proportionately and permanently to reduce, and/or terminate the Incremental Term Facility Commitment of each Lender with such a Commitment under such Tranche provided that any mandatory reduction to the Incremental Term Facility Commitments pursuant to Clause 13.3 (Application of Mandatory Prepayments) shall be applied proportionately and permanently to reduce the Incremental Term Facility Commitments of all Lenders for all Tranches on a pro rata basis (based on the then remaining amounts of such Incremental Term Facility Commitments).
4.3 Lenders’ Participations
Each Lender will participate through its Facility Office in each Advance made pursuant to Clause 4.1 (Conditions to Utilisation), the relevant Incremental Revolving Facility Commitment Agreement and the relevant Incremental Term Facility Commitment Agreement in its respective Proportion.
5. DOCUMENTARY CREDITS
5.1 Issue of Documentary Credits
(a) Each L/C Bank shall issue Documentary Credits pursuant to Clause 4.1 (Conditions to Utilisation) by:
(i) completing the issue date and the proposed Expiry Date of any Documentary Credit to be issued by it; and
(ii) executing and delivering such Documentary Credit to the relevant Beneficiary on the relevant Utilisation Date.
(b) Each Lender having a Revolving Facility Commitment (an “Indemnifying Lender”) will participate in each Documentary Credit in an amount equal to its L/C Proportion.
(c) The Agent shall notify the L/C Bank and each Indemnifying Lender of the details of any requested Documentary Credit (including the Euro Amount of it, and, if such Documentary Credit is not to be denominated in euro, the Optional Currency in which it will be denominated and the amount of it) and its participation in that Documentary Credit.
5.2 Renewal of Documentary Credits
(a) The Borrower may request that a Documentary Credit issued on its behalf be renewed by delivering to the Agent a Renewal Request which complies with Clause 4.1 (Conditions to Utilisation).
(b) The terms of each renewed Documentary Credit shall be the same as those of the relevant Documentary Credit immediately prior to its renewal, except that (as stated in the Renewal Request therefor):
(i) its amount may be less than the amount of such Documentary Credit immediately prior to its renewal; and
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(ii) its Term shall start on the date which was the Expiry Date of that Documentary Credit immediately prior to its renewal, and shall end on the proposed Expiry Date specified in the Renewal Request.
(c) If the conditions set out in this Agreement have been met, the L/C Bank shall amend and re-issue a Documentary Credit pursuant to a Renewal Request.
5.3 Revaluation of Documentary Credits
(a) If any Documentary Credit is denominated in an Optional Currency and has a Term of more than 6 months, the Agent shall at monthly intervals after the date of such Documentary Credit recalculate the Euro Amount of that Documentary Credit by notionally converting into euro the outstanding amount of that Documentary Credit on the basis of the Agent’s Spot Rate of Exchange on the date of calculation.
(b) The Borrower shall, if requested by the Agent within 2 Business Days of any calculation under paragraph (a) above, ensure that on the last day of the Term of the next maturing Revolving Facility Advance sufficient Revolving Facility Outstandings are repaid to prevent the Euro Amount of the Revolving Facility Outstandings exceeding the aggregate amount of all of the Revolving Facility Commitments adjusted to reflect any cancellations or reductions, following any adjustment under paragraph (a) above.
5.4 Immediately Payable
If a Documentary Credit or any amount outstanding under a Documentary Credit is expressed to be immediately payable, the Borrower shall repay that amount immediately.
5.5 Claims under a Documentary Credit
(a) The Borrower irrevocably and unconditionally authorises the L/C Bank to pay any claim made or purported to be made under a Documentary Credit requested by it and which appears on its face to be in order (a “claim”).
(b) The Borrower shall within 3 Business Days of demand pay to the Agent for the L/C Bank an amount equal to the amount of any claim.
(c) The Borrower acknowledges that the L/C Bank:
(i) is not obliged to carry out any investigation or seek any confirmation from any other person before paying a claim; and
(ii) deals in documents only and will not be concerned with the legality of a claim or any underlying transaction or any available set-off, counterclaim or other defence of any person.
(d) The obligations of the Borrower under this Clause will not be affected by:
(i) the sufficiency, accuracy or genuineness of any claim or any other document; or
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(ii) any incapacity of, or limitation on the powers of, any person signing a claim or other document.
5.6 Documentary Credit Indemnities
(a) The Borrower shall immediately on demand indemnify the L/C Bank against any cost, loss or liability incurred by the L/C Bank (otherwise than by reason of the L/C Bank’s gross negligence or wilful misconduct) in acting as the L/C Bank under any Documentary Credit requested by the Borrower.
(b) Without limiting the obligation of the Borrower under paragraph (a) above, each Indemnifying Lender shall (according to its L/C Proportion) immediately on demand indemnify the L/C Bank against any cost, loss or liability incurred by the L/C Bank (otherwise than by reason of the L/C Bank’s gross negligence or wilful misconduct) in acting as the L/C Bank under any Documentary Credit (unless the L/C Bank has been reimbursed by an Obligor pursuant to a Finance Document).
(c) If any Indemnifying Lender is not permitted (by its constitutional documents or any applicable Law) to comply with paragraph (b) above, then that Indemnifying Lender will not be obliged to comply with paragraph (b) and shall instead be deemed to have taken, on the date the relevant Documentary Credit is issued (or if later, on the date that Indemnifying Lender’s participation in the Documentary Credit is transferred or assigned to that Indemnifying Lender in accordance with the terms of this Agreement), an undivided interest and participation in the Documentary Credit in an amount equal to its L/C Proportion of that Documentary Credit. On receipt of demand from the Agent, that Indemnifying Lender shall pay to the Agent (for the account of the L/C Bank) an amount equal to its L/C Proportion of the amount demanded under paragraph (b) above.
(d) The Borrower shall immediately on demand reimburse any Indemnifying Lender for any payment it makes to the L/C Bank under this Clause 5.6 in respect of that Documentary Credit.
(e) The obligations of each Indemnifying Lender under this Clause 5.6 are continuing obligations and will extend to the ultimate balance of sums payable by that Indemnifying Lender in respect of any Documentary Credit, regardless of any intermediate payment or discharge in whole or in part.
(f) The obligations of any Indemnifying Lender under this Clause 5.6 will not be affected by any act, omission, matter or thing which, but for this Clause 5.6 would reduce, release or prejudice any of its obligations under this Clause 5.6 (without limitation and whether or not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Documentary Credit or other person;
(ii) the release of any Obligor or any other person under the terms of any composition or arrangement with any creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over
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assets of, any Obligor, any beneficiary under a Documentary Credit or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
(iv) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor, any beneficiary under a Documentary Credit or any other person;
(v) any amendment (however fundamental) or replacement of a Finance Document, any Documentary Credit or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document, any Documentary Credit or any other document or security; or
(vii) any insolvency or similar proceedings.
5.7 Rights of Contribution
No Obligor will be entitled to any right of contribution or indemnity from any Finance Party in respect of any payment it may make under this Clause 5 (Documentary Credits).
5.8 Role of the L/C Bank
(a) Nothing in this Agreement constitutes the L/C Bank as a trustee or fiduciary of any other person.
(b) The L/C Bank shall not be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
(c) The L/C Bank may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.
(d) The L/C Bank may rely on:
(i) any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.
(e) The L/C Bank may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.
(f) The L/C Bank may act in relation to the Finance Documents through its personnel and agents.
(g) The L/C Bank is not responsible for:
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(i) the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the L/C Bank, the Agent, the Arrangers, an Obligor or any other person given in or in connection with any Finance Document; or
(ii) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document.
5.9 Exclusion of Liability
(a) Without limiting paragraph (b) below, the L/C Bank will not be liable for any action taken by it under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.
(b) No Finance Party (other than the L/C Bank) may take any proceedings against any officer, employee or agent of the L/C Bank in respect of any claim it might have against the L/C Bank or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document.
5.10 Credit Appraisal by the Indemnifying Lenders
Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Indemnifying Lender confirms to the L/C Bank that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of the risks arising under or in connection with any Finance Document, including but not limited to, those listed in paragraphs (a) to (d) of Clause 31.15 (Credit Appraisal by the Lenders).
5.11 Appointment and Change of L/C Bank
(a) The Agent, with the prior approval of the relevant Lender, the Parent and an Instructing Group, may designate any Lender with a Revolving Facility Commitment as an L/C Bank or as a replacement therefor, but not with respect to Documentary Credits already issued by any other L/C Bank.
(b) Any Lender so designated shall become an L/C Bank under this Agreement by delivering to the Agent an executed L/C Bank Accession Certificate.
(c) An L/C Bank may resign as issuer of further Documentary Credits at any time on or after the first anniversary of the Initial Borrowing Date under this Agreement or if later, the first anniversary of the date of its appointment as L/C Bank under this Agreement by giving not less than 3 months’ prior written notice to the Agent and the Parent to expire on or after such first anniversary if (i) the Parent and an Instructing Group consent to it or so require, (ii) there is, in the reasonable opinion of the L/C Bank, an actual or potential conflict of interest in it continuing to act as L/C Bank, or (iii) its Revolving Facility Commitment is reduced to zero.
(d) If the L/C Bank does so resign and no replacement is appointed, any Documentary Credit to be issued in accordance with the terms of this Agreement will be issued by the Agent on behalf of the Lenders with Revolving Facility Commitments severally in an amount reflecting their respective L/C Proportions at the date of issue thereof.
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5.12 Assumption of Existing Documentary Credits
Each of the Existing Documentary Credits (including any extension or renewal thereof) shall constitute a Documentary Credit issued for the purposes of Clause 4.1 (Conditions to Utilisation) on the Initial Borrowing Date and the respective issuer thereof shall constitute the “L/C Bank” for the purposes of this Agreement.
6. SWINGLINE FACILITIES
6.1 Conditions to Utilisation of Swingline Facilities
Save as otherwise provided in this Agreement, a Swingline Facility Advance will be made by the respective Swingline Facility Lenders to the Borrower at the Borrower’s request if:
(a) the Agent has received from the Borrower a duly completed Utilisation Request stating whether the proposed Swingline Facility Advance is a Dollar Swingline Facility Advance or a Euro Swingline Facility Advance:
(i) in the case of a Dollar Swingline Facility Advance, not later than 12.00 p.m. (New York time) on the proposed Utilisation Date for such Advance; or
(ii) in the case of a Euro Swingline Facility Advance, not later than 12.00 p.m. (London time) on the proposed Utilisation Date for such Advance,
receipt of which shall oblige the Borrower to borrow the amount requested on the date stated upon the terms and subject to the conditions contained in this Agreement provided that no Utilisation Request under the Swingline Facility shall be made prior to the first Utilisation Request under the Term Facilities;
(b) the proposed Utilisation Date is a Business Day for the proposed Swingline Facility Advance which is or precedes the relevant Termination Date;
(c) the proposed Euro Amount of such Swingline Facility Advance is (i) equal to the amount of the corresponding Available Swingline Facility or (ii) less than such amount but equal to, or an integral multiple of (A) in the case of a Dollar Swingline Advance, $100,000 and (B) in the case of a Euro Swingline Advance, €100,000;
(d) the aggregate amount of Revolving Facility Outstandings and Swingline Facility Outstandings would not, immediately after making such Swingline Facility Advance, exceed the aggregate Revolving Facility Commitments of the Revolving Facility Lenders;
(e) the proposed Term of the Swingline Facility Advance requested is a period not exceeding 3 months ending on or before the Final Maturity Date in respect of the Revolving Facility;
(f) the Utilisation Request is sent to the Agent at the address referred to in Clause 42 (Notices and Delivery of Information) and confirmed by a telephone call to the telephone number referred to in Clause 42 (Notices and Delivery of Information); and
(g) Without in any way limiting the obligation of the Borrower set out in paragraph (f) above, the Agent may act without liability upon the basis of a telephone call of such
71
Utilisation believed by the Agent in good faith to be from an Authorised Representative of the Borrower prior to receipt of the Utilisation Request. In each such case, the Borrower hereby waives the right to dispute the Agent’s record of the terms of such telephone call in the absence of manifest error.
6.2 General Conditions to Utilisation of Swingline Facility Advances
If the Borrower requests a Swingline Facility Advance in accordance with Clause 6.1 (Conditions to Utilisation of Swingline Facilities); and, on the proposed date for the making of such Swingline Facility Advance:
(a) neither of the events mentioned in Clause 16.1 (Market Disruption) shall have occurred;
(b) the Euro Amount of such Swingline Facility Advance does not exceed either the Available Swingline Facility or the Available Revolving Facility;
(c) there would not, immediately after the making of such Advance, be more than 10 Euro Swingline Facility Advances outstanding; and
(d) on and as of the proposed date for the making of such Advance:
(i) no Default is continuing or would result from the making of such Advance;
(ii) no Lender Default exists (unless the Swingline Facility Lenders have entered into arrangements satisfactory to them to eliminate the Swingline Facility Lenders’ risk with respect to the Defaulting Lender’s or Lenders’ participation in such Swingline Facility Advance); and
(iii) the Repeated Representations made by each Obligor are true in all material respects on the relevant Utilisation Date by reference to the circumstances then existing,
then, save as otherwise provided herein, such Swingline Facility Advance will be made in accordance with the provisions hereof.
6.3 Completion of a Utilisation Request for Swingline Facility Advances
Each Utilisation Request for a Swingline Facility Advance is irrevocable and only one Swingline Facility Advance may be requested in each Utilisation Request.
6.4 Swingline Facility Lender’s Participation
(a) Each Swingline Facility Lender will participate through its Facility Office in each Swingline Facility Advance made pursuant to this Clause 6 in its respective Proportion immediately prior to the making of that Advance.
(b) The Agent shall promptly notify each Swingline Facility Lender of the amount, currency and Euro Amount of each Swingline Facility Advance upon receipt of a Utilisation Request.
72
6.5 Reduction of Available Commitment
If a Swingline Facility Lender’s Swingline Facility Commitment is reduced in accordance with the terms hereof after the Agent has received the Utilisation Request for a Swingline Facility Advance and such reduction was not taken into account in the Available Swingline Facility, then both the Euro Amount of the relevant Swingline Facility Advance and the amount of that Swingline Facility Advance made or to be made shall be reduced accordingly.
6.6 Purchase of Swingline Participations
(a) On any Business Day a Swingline Lender may, in its sole discretion, by written notice given to the Agent (and to the other Swingline Facility Lenders) require the Revolving Facility Lenders to acquire participations on such Business Day in all or a portion of the Swingline Facility Outstandings. Such notice shall specify the aggregate amount of such Swingline Facility Outstandings in which the Revolving Facility Lenders will participate. Promptly upon receipt of such notice, the Agent shall give notice thereof to each Revolving Facility Lender, specifying in such notice each such Revolving Facility Lender’s Proportion of such Swingline Facility Outstandings. Each Revolving Facility Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Agent for the account of the applicable Swingline Facility Lenders, such Revolving Facility Lender’s Proportion of such Swingline Facility Outstandings.
(b) Each Revolving Facility Lender acknowledges and agrees that its respective obligation to acquire participations in Swingline Facility Outstandings pursuant to this Clause 6.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of any Default or Event of Default or reduction or termination of the Commitments and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Facility Lender shall comply with its obligations under this Clause 6.6 by wire transfer of immediately available funds in the same manner as provided in Clause 35 (Payments) and the Agent shall promptly pay to the applicable Swingline Facility Lender the amount so received by it from each such Revolving Facility Lender.
(c) The Agent shall promptly notify the applicable Borrower of any participations in any Swingline Facility Outstandings acquired pursuant to this Clause 6.6 and thereafter payments in respect of such Swingline Facility Outstandings shall be made to the Agent and not to the applicable Swingline Facility Lender. Any amounts received by a Swingline Facility Lender from the applicable Borrower (or other party on behalf of such Borrower) in respect of any Swingline Facility Outstandings after receipt by such Swingline Facility Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Agent; any such amounts received by the Agent shall be promptly remitted by the Agent to the Revolving Facility Lenders that shall have made their payments pursuant to this Clause 6.6 and to such Swingline Facility Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to such Swingline Facility Lender or to the Agent, as applicable, if and to the extent such payment is required to be refunded to the applicable Borrower. The purchase of participations in Swingline Facility Outstandings pursuant to this Clause 6.6 shall not relieve the applicable Borrower of any Default in the payment thereof.
73
6.7 Consequences of a Swingline Facility Advance not being repaid
(a) If a Swingline Facility Advance is not repaid on its due date, each Revolving Facility Lender must pay to the Agent for the account of the Swingline Facility Lenders an amount calculated as described below within three Business Days of demand by the Agent.
(b) The amount (if any) required to be paid by a Revolving Facility Lender is the proportion of the Swingline Facility Advance not repaid which the Revolving Facility Commitment of that Revolving Facility Lender bears to the aggregate amount of the Revolving Facility Commitments less the amount of its participation, before any adjustment under this Clause 6.7, in the unpaid amount of the Swingline Facility Advance together with any interest accrued and unpaid on that amount from the date on which such Swingline Facility Advance was made to the date of payment by that Revolving Facility Lender. If this produces a negative figure for a Revolving Facility Lender, no amount need be paid by that Revolving Facility Lender.
(c) On a payment under this Clause 6.7, the paying Revolving Facility Lender will be subrogated to the rights of the Swingline Facility Lenders which have shared in the payment received.
(d) If and to the extent the paying Revolving Facility Lender is not able to rely on its rights under paragraph (c) above, the Borrower shall be liable to the paying Revolving Facility Lender for a debt equal to the amount the paying Revolving Facility Lender has paid under this Clause 6.7 and the Borrower’s liability to the Swingline Facility Lenders will be reduced accordingly.
(e) Any payment under this Clause 6.7 does not reduce the obligations in aggregate of the Borrower.
7. UNCOMMITTED INCREMENTAL FACILITIES
7.1 Incremental Term Facility
(a) Incremental Term Facility Commitments
(i) The Borrower shall have the right, in consultation and coordination with the Agent as to all of the matters set forth below in this Clause 7.1, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Syndication Date and prior to the relevant Termination Date for the respective Tranche of Incremental Term Facility Advances that one or more Lenders or one or more Eligible Institutions provide to the Borrower Incremental Term Facility Commitments under such Tranche of Incremental Term Facility as designated in the respective Incremental Term Facility Commitment Agreement and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Term Facility Commitment Agreement, make Incremental Term Facility Advances pursuant thereto, so long as:
(A) no Default or Event of Default then exists or would result therefrom and all of the Repeating Representations contained herein and in the
74
other Finance Documents are true and correct in all material respects at such time (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(B) the Borrower and its Subsidiaries will be in compliance with Clause 24 (Financial Condition) on a Pro Forma Basis after giving effect to each incurrence of Incremental Term Facility Advances and the application of the proceeds therefrom; and
(C) on or before the date of each Incremental Term Facility Commitment Agreement, the Borrower shall have delivered to the Agent a certificate of the Authorised Representative of the Borrower certifying (A) which provisions (if any) of the Permitted Subordinated Indebtedness Documents the respective incurrence of Incremental Term Facility Advances will be allowed under and demonstrating in reasonable detail that the full amount of such Incremental Term Facility Advances may be incurred in accordance with, and will not violate the provisions of, the Permitted Subordinated Indebtedness Document, (B) the ratio of Senior Indebtedness to Consolidated EBITDA is less than 3.00:1.00 (based on the most recently delivered Compliance Certificate in accordance with paragraph (e) (Officer’s Certificates) of Clause 23.1 (Information Covenants)) and (C) the purpose of the use of the proceeds of such Tranche of Incremental Term Facility.
(ii) Furthermore, it is understood and agreed that:
(A) no Lender shall be obligated to provide an Incremental Term Facility Commitment, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Term Facility Commitment and executed and delivered to the Borrower and the Agent an Incremental Term Facility Commitment Agreement as provided in paragraph (b) (Incremental Term Facility Commitment Agreement) of this Clause 7.1, such Lender shall not be obligated to fund any Incremental Term Facility Advances;
(B) any Lender (including Eligible Institutions) may so provide an Incremental Term Facility Commitment without the consent of the Agent or any other Lender;
(C) each Tranche of Incremental Term Facility Commitments shall be made available to the Borrower;
(D) the amount of each Tranche of Incremental Term Facility Commitments shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Facility Commitment under such Tranche of Incremental Term Facility Advances of at least $50,000,000 (or the Euro Amount thereof as determined at the time that Incremental Term Facility Commitments are obtained);
75
(E) the aggregate amount of all Incremental Term Facility Commitments permitted to be provided pursuant to this Clause 7.1 shall not exceed $372,000,000 (or the Euro Amount thereof as determined at the time that such Incremental Term Facility Commitments are obtained) (it being understood and agreed, however, to the extent that any such Incremental Term Facility Commitments are obtained but later expire, terminate or are voluntarily reduced in each case without being utilised, the amount of such Incremental Term Facility Commitments so expired, terminated or voluntarily reduced may again be available to be obtained under this Clause 7.1 within the limits set forth herein);
(F) the up-front fees and, if applicable, any unutilised commitment fees and/or other fees, payable in respect of each Incremental Term Facility Commitment shall be separately agreed to by the Borrower and each Incremental Term Facility Lender;
(G) each Tranche of the Incremental Term Facility shall have (i) a Final Maturity Date of no earlier than the Final Maturity Date of the C Facilities and (ii) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then remaining for the C Facilities;
(H) any Incremental Term Facility Advance being incurred under any single Incremental Term Facility Commitment Agreement shall be used for Permitted Acquisitions and/or the redemption or repurchase of the Senior Subordinated Notes (including, without limitation, any related redemption or repurchase fees). The date of the consummation of a Permitted Acquisition (as well as the date on which any Indebtedness assumed as part of such Permitted Acquisition is to be refinanced) or, as the case may be, the date of the redemption of the Senior Subordinated Notes being prepaid with the proceeds of such Incremental Term Facility Advance, shall occur no later than 10 Business Days after the date of the incurrence of such Incremental Term Facility Advance;
(I) each Incremental Term Facility Commitment Agreement shall specifically designate, with the approval of the Agent, that the Tranche of the Incremental Term Facility Commitments being provided thereunder shall be a new Tranche which shall exist separately from any existing Tranche of the Incremental Term Facility, Incremental Term Facility Commitments or other Term Facility Advance, unless the requirements of paragraph (c) (Constitution of each Tranche of Incremental Term Facility) of this Clause 7.1 are satisfied in which case such Tranche shall be added on to an existing Tranche of the Incremental Term Facility (or Incremental Term Facility Commitments) or another C Facility Advance in accordance with paragraph (c) (Constitution of each Tranche of Incremental Term Facility) of this Clause 7.1;
(J) all Incremental Term Facility Advances (and all interest, fees and other amounts payable thereon) shall be obligations under this Agreement
76
and the other applicable Finance Documents and shall be secured by the Security Documents, on a pari passu basis with all other Term Facility Outstandings; and
(K) each Lender agreeing to provide an Incremental Term Facility Commitment pursuant to an Incremental Term Facility Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Facility Advances under the Tranche specified in such Incremental Term Facility Commitment Agreement as provided in Clause 4.2 (Conditions to Utilisation of Incremental Term Facility) and such Advances shall thereafter be deemed to be Incremental Term Facility Advances under such Tranche for all purposes of this Agreement and the other applicable Finance Documents.
(b) Incremental Term Facility Commitment Agreement
At the time of the provision of Incremental Term Facility Commitments pursuant to this Clause 7, the Borrower, each other Obligor, the Agent and each such Lender or other Eligible Institution which agrees to provide an Incremental Term Facility Commitment (each, an “Incremental Term Facility Lender”) shall execute and deliver to the Borrower and the Agent an Incremental Term Facility Commitment Agreement, appropriately completed (with the effectiveness of the Incremental Term Facility Commitment provided therein to occur on the date set forth in such Incremental Term Facility Commitment Agreement, which date in any event shall be no earlier than the date on which all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, all conditions set forth in this Clause 7 shall have been satisfied and all other conditions precedent that may be set forth in such Incremental Term Facility Commitment Agreement shall have been satisfied). In addition on or prior to the effective date of the respective Incremental Term Facility Commitment Agreement:
(i) the Parent, the Borrower and its Subsidiaries shall have delivered such technical amendments, modifications and/or supplements to the respective Security Documents as are reasonably requested by the Agent to ensure that the additional Facilities Obligations to be incurred pursuant to the Incremental Term Facility Commitments are secured by, and entitled to the benefits of, the Security Documents (to the extent required by the terms of this Agreement), and each of the Lenders hereby agrees to, and authorises the Security Trustee to enter into, any such technical amendments, modifications and/or supplements;
(ii) the Agent shall have received an opinion or opinions, in form and substance reasonably satisfactory to the Agent, from counsel reasonably satisfactory to the Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Agent on the Initial Borrowing Date pursuant to Clause 3.1 (Conditions Precedent) as may be reasonably requested by the Agent, and such other matters incident to the transactions contemplated thereby as the Agent may reasonably request;
77
(iii) the Borrower and the other Obligors shall have delivered to the Agent such other officers’ certificates, resolutions and evidence of good standing as the Agent shall reasonably request; and
(iv) in addition to the applicable conditions precedent set forth in Part I of Schedule 3 (Conditions Precedent to First Utilisation), the Agent shall have received from the Authorised Representative of the Borrower a certificate certifying that the conditions set forth in paragraphs (a)(i)(A), (B) and (C) of Clause 7.1 (Incremental Term Facility) have been satisfied (together with calculations demonstrating same (where applicable) in reasonable detail and copies of the certificate set forth in such paragraph (a)(i)(C)) of Clause 7.1 (Incremental Term Facility).
The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Facility Commitment Agreement and, at such time, Part I of Schedule 1 (Lenders and Commitments) shall be deemed modified to reflect the Incremental Term Facility Commitments of such Incremental Term Facility Lenders.
(c) Constitution of each Tranche of Incremental Term Facility
Notwithstanding anything to the contrary contained above in this Clause 7.1, the Incremental Term Facility Commitments provided by an Incremental Term Facility Lender or Incremental Term Facility Lenders, as the case may be, pursuant to each Incremental Term Facility Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement provided that, with the consent of the Agent, the parties to a given Incremental Term Facility Commitment Agreement may specify therein that the respective Incremental Term Facility Advance made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Incremental Term Facility Advances or to the C1 Facility Advances or C2 Facility Advances, in either case so long as the following requirements are satisfied:
(i) the Incremental Term Facility Advances to be made pursuant to such Incremental Term Facility Commitment Agreement shall be made to the Borrower, shall be denominated in the same currency, shall have the same Final Maturity Date and shall have the same Applicable Margins as the Facility to which the new Incremental Term Facility Advances are being added;
(ii) the new Incremental Term Facility Advances shall have the same scheduled repayment dates as then remain with respect to the Tranche to which such new Incremental Term Facility Advances are being added (with the amount of each repayment applicable to such new Incremental Term Facility Advances to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Facility Advances are being added, thereby increasing the amount of each then remaining repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Facility Advances, and notwithstanding anything to the contrary set forth in Clause 15 (Interest on Term Facility Advances), such new Incremental Term Facility Advance shall be added to (and form part of) the Term Facility Outstandings of the respective Tranche on a pro rata basis (based on the relative sizes of the various Term Facility Outstandings), so that each Lender will participate proportionately in each then Term Facility Outstandings of the
78
respective Tranche, and so that the existing Lenders with respect to such Tranche continue to have the same participation (by amount) in each borrowing as they had before the making of the new Incremental Term Facility Advances of such Tranche.
7.2 Incremental Revolving Facility
(a) Incremental Revolving Facility Commitments
(i) The Borrower shall have the right, in consultation and coordination with the Agent as to all of the matters set forth below in this Clause 7.2, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Syndication Date and prior to the Termination Date for the Incremental Revolving Facility that one or more Lenders or one or more Eligible Institutions provide to the Borrower Incremental Revolving Facility Commitments under the Incremental Revolving Facility as designated in the respective Incremental Revolving Facility Commitment Agreement and, subject to the terms and conditions contained in this Agreement and in the respective Incremental Revolving Facility Commitment Agreement, make Utilisations pursuant thereto, so long as no Default or Event of Default then exists or would result therefrom and all of the Repeating Representations contained herein and in the other Finance Documents are true and correct in all material respects at such time (unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date).
(ii) Furthermore, it is understood and agreed that:
(A) no Lender shall be obligated to provide an Incremental Revolving Facility Commitment, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Revolving Facility Commitment and executed and delivered to the Borrower and the Agent an Incremental Revolving Facility Commitment Agreement as provided in paragraph (b) (Incremental Revolving Facility Commitment Agreement) of this Clause 7.2, such Lender shall not be obligated to provide any Incremental Revolving Facility;
(B) any Lender (including Eligible Institutions) may so provide an Incremental Revolving Facility Commitment without the consent of the Agent or any other Lender;
(C) each of the Incremental Revolving Facility Commitments shall be made available to the Borrower;
(D) each provision of Incremental Revolving Facility Commitments shall be in a minimum aggregate amount for all Lenders of €10,000,000 and in integral multiples of €5,000,000;
79
(E) the aggregate amount of all Incremental Revolving Facility Commitments permitted to be provided pursuant to this Clause 7.2 shall not exceed €65,000,000;
(F) the up-front fees and, if applicable, any unutilised commitment fees and/or other fees, payable in respect of each Incremental Revolving Facility Commitment shall be separately agreed to by the Borrower and each Incremental Revolving Facility Lender; and
(G) all Utilisations under the Incremental Revolving Facility Commitments (and all interest, fees and other amounts payable thereon) shall be Facilities Obligations under this Agreement and the other applicable Finance Documents and shall be secured by the Security Documents, on a pari passu basis with all other Revolving Facility Outstandings.
(b) Incremental Revolving Facility Commitment Agreement
At the time of the provision of Incremental Revolving Facility Commitments pursuant to this Clause 7, the Borrower, each other Obligor, the Agent and each such Lender or other Eligible Institution which agrees to provide an Incremental Revolving Facility Commitment (each, an “Incremental Revolving Facility Lender”) shall execute and deliver to the Borrower and the Agent an Incremental Revolving Facility Commitment Agreement, appropriately completed (with the effectiveness of the Incremental Revolving Facility Commitment provided therein to occur on the date set forth in such Incremental Revolving Facility Commitment Agreement, which date in any event shall be no earlier than the date on which all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid, all conditions set forth in this Clause 7.2 shall have been satisfied and all other conditions precedent that may be set forth in such Incremental Revolving Facility Commitment Agreement shall have been satisfied). The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Facility Commitment Agreement and at such time, (i) the Revolving Facility shall be increased by the aggregate amount of such Incremental Revolving Facility Commitments, (ii) Section A of Part I of Schedule 1 (Lenders and Commitments) shall be deemed modified to reflect the revised Revolving Facility Lenders. In addition on or prior to the effective date of the respective Incremental Revolving Facility Commitment Agreement:
(i) the Parent, the Borrower and its Subsidiaries shall have delivered such technical amendments, modifications and/or supplements to the respective Security Documents as are reasonably requested by the Agent to ensure that the additional Facilities Obligations to be incurred pursuant to the Incremental Revolving Facility Commitments are secured by, and entitled to the benefits of, the Security Documents (to the extent required by the terms of this Agreement), and each of the Lenders hereby agrees to, and authorises the Security Trustee to enter into, any such technical amendments, modifications and/or supplements;
(ii) the Agent shall have received an opinion or opinions, in form and substance reasonably satisfactory to the Agent, from counsel reasonably satisfactory to the Agent and dated such date, covering such of the matters set forth in the opinions of counsel delivered to the Agent on the Initial Borrowing Date
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pursuant to Clause 3.1 (Conditions Precedent) as may be reasonably requested by the Agent, and such other matters incident to the transactions contemplated thereby as the Agent may reasonably request;
(iii) the Borrower and the other Obligors shall have delivered to the Agent such other officers’ certificates, resolutions and evidence of good standing as the Agent shall reasonably request; and
(iv) in addition to the applicable conditions precedent set forth in Part I of Schedule 3 (Conditions Precedent to First Utilisation), the Agent shall have received from the Authorised Representative of the Borrower a certificate certifying that the conditions set forth in paragraphs (a)(i) (Incremental Revolving Facility Commitments) of this Clause 7.2 have been satisfied.
(c) Constitution of Incremental Revolving Facility
At the time of any provision of Incremental Revolving Facility Commitments pursuant to this Clause 7.2, the Borrower shall, in coordination with the Agent, repay outstanding Revolving Facility Advances of certain of the Revolving Facility Lenders, and incur additional Revolving Facility Advances from certain other Revolving Facility Lenders (including the Incremental Revolving Facility Lenders), in each case to the extent necessary so that all of the Revolving Facility Lenders participate in each Utilisation under the Revolving Facility pro rata on the basis of their respective Revolving Facility Commitments (after giving effect to any increase in the Revolving Facility pursuant to this Clause 7.2 and with the Borrower being obligated to pay to the respective Revolving Facility Lenders any costs of the type referred to in Clause 33 (Borrower’s Indemnities) in connection with any such repayment and/or Utilisation.
8. OPTIONAL CURRENCIES
8.1 Selection of Currency
The Borrower (or the Parent on its behalf) shall select the currency of an Advance made to it (which shall be euro or an Optional Currency) in the Utilisation Request relating to the relevant Advance provided that an A Facility Advance shall be made in euro, a B1 Facility Advance and a C1 Facility Advance shall be made in dollars and a B2 Facility Advance and a C2 Facility Advance shall be made in euro.
8.2 No Change of Currency
Once utilised, no Term Facility Advance shall be outstanding in any currency other than the currency in which it was first utilised.
9. REPAYMENT OF REVOLVING AND SWINGLINE FACILITY OUTSTANDINGS
9.1 Repayment of Revolving Facility Advances
Each Borrower shall (subject to Clause 9.2 (Rollover Advances)) repay the full amount of each Revolving Facility Advance and Swingline Facility Advance made to it on the Repayment Date, provided that if such Repayment Date is not a Business Day in the relevant
81
jurisdiction for payment, payment shall instead be made on the next succeeding Business Day.
9.2 Rollover Advances
Without prejudice to the Borrower’s obligation to repay the full amount of each Revolving Facility Advance on the applicable Repayment Date, where, on the same day on which the Borrower is due to repay a Revolving Facility Advance (a “Maturing Advance”) the Borrower has also requested that a Revolving Facility Advance in the same currency as the Maturing Advance be made to it (a “Rollover Advance”), subject to the Lenders being obliged to make such Rollover Advance under Clause 4.1 (Conditions to Utilisation), the amount to be so repaid and the amount to be so drawn down shall be netted off against each other so that the amount which the Borrower is actually required to repay or, as the case may be, the amount which the Lenders are actually required to advance to the Borrower, shall be the net amount remaining after such netting off provided that the Borrower shall not be permitted to rollover any Advances denominated in an Optional Currency to the extent that such Advance, when notionally converted into euros at the Agent’s Spot Rate of Exchange on the Quotation Date for the next Term and aggregated with the Euro Amount of all other Revolving Facility Outstandings would result in the aggregate amount of all Revolving Commitments being exceeded by an amount greater than 5 per cent.
9.3 Cash Collateralisation of Documentary Credits
In relation to any unexpired Documentary Credit, the Borrower may give the Agent not less than 3 Business Days’ prior written notice of its intention to repay a Documentary Credit issued to it, and, having given such notice, shall procure that the relevant Outstanding L/C Amount in respect of such Documentary Credit is reduced to zero and repaid in full by providing cash cover therefor (in accordance with Clause 5 (Documentary Credits)) or by reducing the Outstanding L/C Amount of such Documentary Credit or by cancelling such Documentary Credit and returning the original to the L/C Bank or the Agent on behalf of the Lenders.
10. REPAYMENT OF TERM FACILITY OUTSTANDINGS
10.1 Repayment of A Facility Outstandings
The Borrower shall make such repayments as may be necessary to ensure that on each of the dates set out in the table below (each an “A Facility Repayment Date”) the aggregate Euro Amount of the A Facility Outstandings (as at the close of business in London on the Termination Date relating to the A Facility) is reduced by an amount equal to the percentage of such A Facility Outstandings set out in the table below provided that the final Repayment Date shall be the Final Maturity Date for the A Facility and the aggregate amount of all A Facility Outstandings shall be repayable on such A Facility Repayment Date.
Repayment Dates |
|
Percentage of A Facility Outstandings Repayable |
|
|
|
31 March 2004 |
|
1.625 per cent. |
|
|
|
30 June 2004 |
|
1.625 per cent. |
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Repayment Dates |
|
Percentage of A Facility Outstandings Repayable |
|
|
|
30 September 2004 |
|
1.625 per cent. |
|
|
|
31 December 2004 |
|
1.625 per cent. |
|
|
|
31 March 2005 |
|
3.375 per cent. |
|
|
|
30 June 2005 |
|
3.375 per cent. |
|
|
|
30 September 2005 |
|
3.375 per cent. |
|
|
|
31 December 2005 |
|
3.375 per cent. |
|
|
|
31 March 2006 |
|
3.375 per cent. |
|
|
|
30 June 2006 |
|
3.375 per cent. |
|
|
|
30 September 2006 |
|
3.375 per cent. |
|
|
|
31 December 2006 |
|
3.375 per cent. |
|
|
|
31 March 2007 |
|
5.5 per cent. |
|
|
|
30 June 2007 |
|
5.5 per cent. |
|
|
|
30 September 2007 |
|
5.5 per cent. |
|
|
|
31 December 2007 |
|
5.5 per cent. |
|
|
|
31 March 2008 |
|
5.5 per cent. |
|
|
|
30 June 2008 |
|
5.5 per cent. |
|
|
|
30 September 2008 |
|
5.5 per cent. |
|
|
|
31 December 2008 |
|
5.5 per cent. |
|
|
|
31 March 2009 |
|
5.625 per cent. |
|
|
|
30 June 2009 |
|
5.625 per cent. |
|
|
|
30 September 2009 |
|
5.625 per cent. |
|
|
|
31 December 2009 |
|
5.625 per cent. |
Provided that in the event the Senior Subordinated Notes are not Refinanced on or before 1 November 2008, the Final Maturity Date with respect to the A Facility shall be 1 May 2009 and on and from 1 November 2008 the A Facility Repayment Dates and the percentage of the A Facility Outstandings payable on such dates shall be as follows:
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Repayment Dates |
|
Percentage of A Facility Outstandings |
|
|
|
31 December 2008 |
|
9.00 per cent. |
|
|
|
31 March 2009 |
|
9.00 per cent. |
|
|
|
1 May 2009 |
|
10 per cent. |
10.2 [Intentionally deleted]
10.3 Repayment of C Facility Outstandings
The Borrower shall make such repayments as may be necessary to ensure that on each of the dates set out in the table below (each a “C Facilities Repayment Date”) the aggregate Euro Amount of the C1 Facility Outstandings (as at the close of business in London on the Second Amendment Effective Date and the aggregate amount of the C2 Facility Outstandings (as at the close of business in London on the Second Amendment Effective Date) are each reduced by an amount equal to the percentage of such C Facility Outstandings set out in the table below provided that the final Repayment Date shall be the Final Maturity Date for the C Facilities and the aggregate amount of all C Facility Outstandings shall be repayable on such C Facilities Repayment Date.
Repayment Dates |
|
Percentage of C Facility Outstandings Repayable |
|
|
|
30 September 2004 |
|
0.25 per cent. |
|
|
|
31 December 2004 |
|
0.25 per cent. |
|
|
|
31 March 2005 |
|
0.25 per cent. |
|
|
|
30 June 2005 |
|
0.25 per cent. |
|
|
|
30 September 2005 |
|
0.25 per cent. |
|
|
|
31 December 2005 |
|
0.25 per cent. |
|
|
|
31 March 2006 |
|
0.25 per cent. |
|
|
|
30 June 2006 |
|
0.25 per cent. |
|
|
|
30 September 2006 |
|
0.25 per cent. |
|
|
|
31 December 2006 |
|
0.25 per cent. |
|
|
|
31 March 2007 |
|
0.25 per cent. |
|
|
|
30 June 2007 |
|
0.25 per cent. |
|
|
|
30 September 2007 |
|
0.25 per cent. |
|
|
|
31 December 2007 |
|
0.25 per cent. |
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Repayment Dates |
|
Percentage of C Facility Outstandings Repayable |
|
|
|
31 March 2008 |
|
0.25 per cent. |
|
|
|
30 June 2008 |
|
0.25 per cent. |
|
|
|
30 September 2008 |
|
0.25 per cent. |
|
|
|
31 December 2008 |
|
0.25 per cent. |
|
|
|
31 March 2009 |
|
0.25 per cent. |
|
|
|
30 June 2009 |
|
0.25 per cent. |
|
|
|
30 September 2009 |
|
0.25 per cent. |
|
|
|
31 December 2009 |
|
0.25 per cent. |
|
|
|
31 March 2010 |
|
23.5 per cent. |
|
|
|
30 June 2010 |
|
23.5 per cent. |
|
|
|
30 September 2010 |
|
23.5 per cent. |
|
|
|
31 December 2010 |
|
24.0 per cent. |
Provided that:
(a) in the event the Senior Subordinated Notes are not Refinanced on or before 1 November 2008, the Final Maturity Date with respect to the C Facilities shall be 1 May 2009 and on and from 1 November 2008 the C Facilities Repayment Dates and the percentage of the C1 Facility Outstandings and C2 Facility Outstandings payable on such dates shall be as follows:
Repayment Dates |
|
Percentage of C Facility Outstandings |
|
|
|
31 December 2008 |
|
0.25 per cent. |
|
|
|
31 March 2009 |
|
47.75 per cent. |
|
|
|
1 May 2009 |
|
47.75 per cent. |
(b) in the event the Senior Subordinated Notes have been Refinanced on or before 1 November 2008 and any of the Parent Preference Shares C remain outstanding as at 1 October 2009, the Final Maturity Date with respect to the C Facilities shall be 30 April 2010 and on and from 1 October 2009 the C Facilities Repayment Dates and the percentage of the C1 Facility Outstandings and C2 Facility Outstandings payable on such dates shall be as follows:
85
Repayment Dates |
|
Percentage of C Facility Outstandings |
|
|
|
31 December 2009 |
|
0.25 per cent. |
|
|
|
31 March 2010 |
|
47.25 per cent. |
|
|
|
1 May 2010 |
|
47.25 per cent. |
10.4 Repayment of Incremental Term Facility Outstandings
The Borrower shall be required to make, with respect to each Tranche of Incremental Tern Facility Advances, to the extent then outstanding, scheduled amortisation payments of such Tranche of Incremental Term Facility Advances on the dates (the “Incremental Term Facility Repayment Dates”) and in the principal amounts set forth in the respective Incremental Term Facility Commitment Agreement (each such repayment, as the same may be reduced as provided in Clauses 12 (Voluntary Prepayment) and 13 (Mandatory Prepayment), an “Incremental Term Facility Scheduled Repayment”).
10.5 No Reborrowing of Term Facility Advances
No Borrower may reborrow any part of any Term Facility which is repaid (including, for the avoidance of doubt, any part of the B1 Facility which is converted into C1 Facility Advances pursuant to the B1 Facility Conversion or any part of the B2 Facility which is converted into C2 Facility Advances pursuant to the B2 Facility Conversion).
11. CANCELLATION
11.1 Voluntary Cancellation
(a) Subject to Clause 11.2 (Restriction), the Borrower may, by giving to the Agent not less than 3 Business Days’ prior written notice to that effect, cancel the whole or any part (being a minimum amount of €1,000,000 and an integral multiple of €1,000,000) of any Available Facility and any such cancellation shall permanently reduce the relevant Available Commitments of the Lenders proportionately.
(b) In the event of certain refusals by a Lender as provided in Clause 45.7 (Replacement of non-Instructing Group Lender) to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Instructing Group, the Borrower may, subject to the applicable requirements of Clause 45.7 (Replacement of non-Instructing Group Lender), upon five Business Days’ written notice by the Borrower to the Agent (which notice the Agent shall promptly transmit to each of the Lenders) terminate all or, as the case may be, any Commitment, if any, of such Lender, so long as:
(i) the Outstandings with respect to such Commitment being cancelled, together with accrued and unpaid interest, fees and all other amounts, owing to such Lender (excluding amounts owing in respect of Outstandings of any other Facility maintained by such Lender which are not being repaid pursuant to Clause 45.7 (Replacement of non-Instructing Group Lender)) are repaid concurrently with the effectiveness of such termination (at which time Part I of Schedule 1 (Lenders and Commitments) shall be deemed modified to reflect such changed amounts); and
86
(ii) after giving effect to such termination (and other adjustments to each Lender’s Proportion of the Revolving Facility Commitment and/or related L/C Proportion of the remaining Lenders as contemplated below), none of the Revolving Facility Outstandings of any remaining Lender shall exceed its Revolving Facility Commitment.
(c) After giving effect to the termination of the Commitments of any Lender pursuant to the provisions of paragraph (b) above, unless the respective Lender continues to have Term Facility Outstandings or other Commitments (if any) hereunder, such Lender shall no longer constitute a “Lender” for purposes of this Agreement, except with respect to indemnifications under this Agreement (including, without limitation, Clauses 18 (Taxes), 19 (Increased Costs), 33 (Borrower’s Indemnities), 37 (Sharing Among the Finance Parties) and 40 (Costs and Expenses)), which shall survive as to such repaid Lender.
(d) Immediately after the Revolving Facility Commitment of any Lender is terminated pursuant to paragraph (b) above, there shall occur automatic consequential adjustments (as determined by the Agent) in each Lender’s Proportion of Revolving Facility Commitments (and as a result thereof in the related L/C Proportions) of the remaining Revolving Facility Lenders.
11.2 Restriction
The Borrower may not give a notice of cancellation pursuant to Clause 11.1 (Voluntary Cancellation) in respect of any amount of the Available Term Facilities required to refinance, in full, the Existing Credit Agreement.
11.3 Notice of Cancellation
Any notice of cancellation given by the Borrower pursuant to Clause 11.1 (Voluntary Cancellation) shall be irrevocable and shall specify the date upon which such cancellation is to be made and the amount of such cancellation.
11.4 Cancellation of Available Commitments
On each Termination Date any Available Commitments in respect of the Facility to which such Termination Date relates shall automatically be cancelled and the Commitment of each Lender in relation to such Facility shall automatically be reduced to zero.
12. VOLUNTARY PREPAYMENT
12.1 Voluntary Prepayment
(a) The Borrower shall, if it (or the Parent on its behalf) has given to the Agent not less than 3 Business Days’ prior written notice to that effect, repay an Advance in whole or in part (but if in part, in an amount that reduces the Euro Amount of the relevant Advance by a minimum amount of €1,000,000 and an integral multiple of €1,000,000) together with accrued interest on the amount repaid without premium or penalty but subject to the payment of any Break Costs.
(b) In the event of certain refusals by a Lender as provided in Clause 45.7 (Replacement of non-Instructing Group Lender) to consent to certain proposed changes, waivers,
87
discharges or terminations with respect to this Agreement which have been approved by the Instructing Group, the Borrower may, upon five Business Days’ written notice by an Authorised Representative of the Borrower to the Agent (which notice the Agent shall promptly transmit to each of the Lenders) repay all Outstandings, together with accrued and unpaid interest, fees, and other amounts owing to such Lender (or owing to such Lender with respect to each Facility which gave rise to the need to obtain such Lender’s individual consent) in accordance with, and subject to the requirements of, Clause 45.7 (Replacement of non-Instructing Group Lender) so long as:
(i) in the case of the repayment of Revolving Facility Outstandings of any Lender pursuant to this paragraph (b), the Revolving Facility Commitment of such Lender (if any), is terminated concurrently with such repayment (at which time Part I of Schedule 1 (Lenders and Commitments) shall be deemed modified to reflect the changed Revolving Facility Commitments); and
(ii) in the case of the repayment of any Term Facility Outstandings of any Lender pursuant to this paragraph (b), the Term Facility Commitment of such Lender (if any) is terminated concurrently with such repayment (at which time Part I of Schedule 1 (Lenders and Commitments) shall be deemed modified to reflect the changed Term Facility Commitments).
12.2 Right of Prepayment and Cancellation in relation to a single Lender
If any Lender is owed any amounts as set out in paragraph (b) of Clause 21.1 (Replacement of Lenders), the Borrower shall have the rights as set out in Clause 21.1 (Replacement of Lenders).
12.3 Application of Voluntary Prepayments
(a) Order of Application: Any repayment made pursuant to paragraph (a) of Clause 12.1 (Voluntary Prepayment) in respect of a Term Facility Advance shall, subject to the provisions of paragraph (b) (Waivable Voluntary Repayment) of this Clause 12.3, be applied either:
(i) to the prepayment of A Facility Advances, B1 Facility Advances, B2 Facility Advances, C1 Facility Advances, C2 Facility Advances and any Incremental Term Facility Advances pro rata to the respective Term Facility Outstandings; in relation to each Facility such prepayment shall be applied against all remaining Scheduled Repayments of such Facility pro rata to the respective amounts of such Scheduled Repayments; or
(ii) if the Borrower so elects, in the following order:
(A) first to the prepayment, in direct order of maturity, of Scheduled Repayments of Term Facilities which will be due within 15 months after the date of the respective voluntary prepayment, applied in respect of each Scheduled Repayment Date to repay in full all Scheduled Repayments of all Term Facilities due on such Scheduled Repayment Date or, if the prepayment is insufficient to make such repayment in full in respect of a Scheduled Repayment Date, to the
88
Scheduled Repayments for each Facility due on such Scheduled Prepayment Date pro rata to the relative amounts of such Scheduled Repayments; and
(B) second, to the prepayment of A Facility Advances, B1 Facility Advances, B2 Facility Advances, C1 Facility Advances, C2 Facility Advances and any Incremental Term Facility Advances pro rata to the relevant Term Facility Outstandings (as reduced by the prepayments referred to in paragraph (A) above); in relation to each Facility such prepayment shall be applied against all remaining Scheduled Repayments of such Facility pro rata to the respective amounts of such Scheduled Repayments.
(b) Waivable Voluntary Repayment: In relation to any repayment made pursuant to Clause 12.1 (Voluntary Prepayment) in respect of a Term Facility Advance and without prejudice to paragraph (a) above, which is required to be applied to C Facility Advances, if on or prior to the date of the respective voluntary repayment pursuant to this Clause 12, the Borrower has given the Agent written notification that it has elected to give each Lender with C Facility Outstandings the right to waive such Lender’s rights to receive such repayment (the “Waivable Voluntary Repayment”) the Agent shall notify such Lenders of such receipt and the amount of the repayments to be applied to each such Lender’s Proportion of C Facility Outstandings, provided that in no event shall the aggregate amount of any Waivable Voluntary Repayment exceed the aggregate principal amount of Term Facility Outstandings (excluding C Facility Outstandings) after giving effect to any applications of payments (other than any reallocation of the respective Waivable Voluntary Repayment pursuant to this sub-paragraph (b)) to such other Term Facility Outstandings as a result of the repayments then being made pursuant to this Clause 12.
Waive Mechanics: In the event any Lender with C Facility Outstandings desires to waive its right to receive any such Waivable Voluntary Repayment in whole or in part, such Lender shall so advise the Agent no later than 5:00 p.m. five Business Days after the date of such notice from the Agent which notice shall also include the amount the Lender desires to receive with respect to its C Facility Outstandings. If the Lender does not reply to the Agent within such five Business Day period, it will be deemed acceptance of the total payment. If the Lender does not specify an amount it wishes to receive, it will be deemed acceptance of 100 per cent. of the total payment. In the event that any such Lender waives its rights to any such Waivable Voluntary Repayment, the Agent shall apply 100 per cent. of the amount so waived by such Lenders to:
(x) repay the Term Facility Outstandings (excluding the C Facility Outstandings) in accordance with sub-paragraph (a) above; and
(y) to the extent in excess of the amount to be applied pursuant to preceding clause (x), to reduce the Available Revolving Facility on a pro rata basis based on the relative amounts of the Available Revolving Facility and the Revolving Facility Outstandings (in each case as in effect before giving effect to such reduction).
89
Cash Collateral: If the Borrower elects to give the notice described above in this sub-paragraph (b) with respect to any voluntary repayment, the amount of the respective Waivable Voluntary Repayment shall be deposited with the Agent on the date the voluntary repayment is otherwise made pursuant to sub-paragraph (a) above (and held by the Agent as cash collateral for the C Facility Outstandings and, but only to the extent Lenders with C Facility Outstandings waive their right to receive their share of the Waivable Voluntary Repayment, for the benefit of all Lenders in a cash collateral account which shall permit the investment thereof in Cash Equivalents reasonably satisfactory to the Agent until the proceeds are applied to the applicable Outstandings) and the respective repayment shall not be required to be made until the seventh Business Day occurring after the date the respective repayment would otherwise have been required to be made.
Partial Waiver of Repayment: Notwithstanding anything to the contrary contained above, if one or more Lenders holding C Facility Outstandings waives its right to receive all or any part of any Waivable Voluntary Repayment, but less than all the Lenders holding the respective C Facility Outstandings waive in full their right to receive 100 per cent. of the total payment otherwise required with respect to the respective C Facility Outstandings, then of the amount actually applied to the repayment of the respective C Facility Outstandings of Lenders which have waived in part, but not in full, their right to receive 100 per cent. of such repayment, such amount shall be applied to each C Facility Advance of the respective C Facility Outstandings on a pro rata basis (so that each Lender holding C Facility Outstandings shall, after giving effect to the application of the respective repayment, maintain the same percentage (as determined for such Lender, but not the same percentage as the other Lenders hold and not the same percentage held by such Lender prior to repayment) of each C Facility Advance which remains outstanding after giving effect to such application). For the avoidance of doubt any amount to be applied in accordance with this paragraph shall only apply to such portion (if any) of the C Facility Outstandings which such C Facility Lender has not waived.
12.4 Release from Obligation to make Advances
A Lender for whose account a repayment is to be made under Clause 12.2 (Right of Prepayment and Cancellation in relation to a single Lender) shall not be obliged to participate in the making of Advances (including Revolving Facility Advances) or in the issue or counter-guarantee in respect of Documentary Credits on or after the date upon which the Agent receives the relevant notice of intention to repay such Lender’s share of the Outstandings, on which date all of such Lender’s Available Commitments shall be cancelled and all of its Commitments shall be reduced to zero.
12.5 Notice of Repayment
Any notice of repayment given by the Borrower or the Parent, as the case may be, pursuant to Clauses 12.1 (Voluntary Prepayment) or 12.2 (Right of Prepayment and Cancellation in relation to a single Lender) shall be irrevocable, shall specify the date upon which such repayment is to be made and the amount of such repayment and shall oblige the Borrower to make such repayment on such date.
90
12.6 Restrictions on Repayment
No Obligor shall repay all or any part of any Advance (including, at any time, a Revolving Facility Advance) except at the times and in the manner expressly provided for in this Agreement.
12.7 Cancellation upon Repayment
No amount repaid under this Agreement may subsequently be reborrowed other than any amount of a Revolving Facility Advance or, as the case may be, a Swingline Facility Advance repaid in accordance with Clause 9.1 (Repayment of Revolving Facility Advances) and upon any repayment (other than in respect of a Revolving Facility Advance, as aforesaid) the availability of the relevant Facility shall be reduced by an amount corresponding to the amount of such repayment and the Available Commitment of each Lender in relation to that Facility shall be cancelled in an amount equal to such Lender’s Proportion of the amount repaid. In the event the proceeds of any repayment applied in accordance with Clauses 12 (Voluntary Prepayment) and 13 (Mandatory Prepayment) exceeds the amount of Term Facility Outstandings at such time, any such excess shall be applied to permanently reduce the Available Revolving Facility.
13. MANDATORY PREPAYMENT
13.1 Repayment from Net Proceeds
(a) Equity Issue: The Parent shall procure that on each date on which the Parent or any of its Subsidiaries (other than a member of the CEAL Group to which the CEAL Exception Conditions apply) receives any net cash proceeds from any sale or issuance of Preferred Stock or common equity of (or cash capital contributions to) the Parent or any of its Subsidiaries an amount equal to 50 per cent. of the Net Cash Proceeds of the respective equity issuance or capital contribution shall be applied in accordance with Clause 13.3 (Application of Mandatory Prepayments), other than in relation to:
(i) the issuances of the Parent Common Stock in accordance with any employee incentive plan of the Parent and its Subsidiaries (including as a result of the exercise of any options with respect thereto) in an aggregate amount not to exceed €30,000,000 in any fiscal year of the Parent;
(ii) the equity contributions to any Subsidiary of the Parent made by the Parent or any other Subsidiary of the Parent;
(iii) the issuance of shares specifically for the Refinancing of the Senior Subordinated Notes and/or the Parent Preferred Stock; and
(iv) the issuance of the Parent Common Stock in an aggregate amount not to exceed €3,000,000 in any fiscal year of the Parent.
(b) Asset Sale: The Parent shall procure that on each date upon which the Parent or any of its Subsidiaries (other than a member of the CEAL Group to which the CEAL Exception Conditions apply) receives Net Sale Proceeds from any Asset Sale (including, for the avoidance of doubt, in relation to any sale, lease or disposal of CEAL or all or substantially all of the assets of the CEAL Group), an amount equal to 100 per cent. of the Net Sale Proceeds from such Asset Sale shall be applied in
91
accordance with Clause 13.3 (Application of Mandatory Prepayments), provided that (save in respect of any Asset Sale in relation to any sale, lease or disposal of CEAL or all or substantially all of the assets of the CEAL Group), so long as no Default or Event of Default then exists:
(i) if the Consolidated Leverage Ratio is greater than 3.75:1.00 on the date of the respective Asset Sale (before giving effect to any application of proceeds thereof), up to €15,000,000; or
(ii) if the Consolidated Leverage Ratio is less than or equal to 3.75:1.00 on the date of the respective Asset Sale (before giving effect to any application of the proceeds thereof), up to €50,000,000 (it being understood and agreed that if this sub-paragraph (ii) is applicable on the date of any Asset Sale but subsequently ceases to apply, the Net Sale Proceeds of Asset Sales previously made when this sub-paragraph (ii) was applicable shall be permitted to be utilised as provided in this sub-paragraph (ii) and shall also be taken into account in determining whether additional Net Cash Proceeds of Asset Sales may be retained pursuant to sub-paragraph (i)),
of the Net Sale Proceeds of Asset Sales (other than in relation to any sale, lease or disposal of CEAL or all or substantially all of the assets of the CEAL Group) effected in accordance with Clause 26.2 (Consolidation, Merger, Purchase or Sale of Assets, etc.) shall not be required to be applied in accordance with Clause 13.3 (Application of Mandatory Prepayments) on the date of the receipt thereof to the extent that such Net Sale Proceeds shall be used (A) to effect Permitted Acquisitions, (B) to purchase replacement equipment and/or (C) make additional Capital Expenditures, in each case in accordance with the requirements of this Agreement, within 360 days following such date and if all or any portion of such Net Sale Proceeds not so required to be applied are not so utilised within 360 days after the date of the receipt of such Net Sale Proceeds, then such remaining portion shall be applied on the date falling 360 days after the date of receipt of such Net Sale Proceeds in accordance with the requirements of this paragraph (b).
Concurrently with each delivery of financial statements pursuant to paragraph (b) (Quarterly Financial Statements) or (c) (Annual Financial Statements) of Clause 23.1 (Information Covenants), the Parent shall also deliver a certificate setting forth in reasonable detail the calculation of:
(1) the dates and amount of Net Sale Proceeds for each Assets Sale which occurred during the respective fiscal quarter or year, which Net Sale Proceeds were not applied to repay principal of Term Facility Outstandings (or to reduce Commitments) pursuant to this paragraph (b));
(2) the amount of Net Sale Proceeds from Asset Sales previously effected (identifying the date of the respective Asset Sales) applied during the respective fiscal quarter or year pursuant to this paragraph (b); and
(3) any amount of Net Sale Proceeds in respect of which the 360 day period referenced above has lapsed during the respective fiscal quarter or year without the Net Sale Proceeds having been applied as contemplated by this paragraph (b).
92
Notwithstanding anything to the contrary above, in cases where the amount required to be repaid on any date pursuant to the immediately preceding sentence would be less then €1,000,000, the Borrower may defer the respective required repayment until the first date upon which the aggregate amount which would be required to be applied pursuant to this paragraph (b) would equal or exceed €1,000,000.
(c) Indebtedness: The Parent shall procure that on each date on which the Parent or any of its Subsidiaries (other than a member of the CEAL Group to which the CEAL Exception Conditions apply) receives any cash proceeds from any incurrence of Indebtedness (other than Indebtedness permitted in accordance with Clause 26.4 (Indebtedness) as in effect on the Effective Date (“Permitted Effective Date Indebtedness”) and Indebtedness under any Finance Document) for borrowed money, an amount equal to 100 per cent. of the Net Cash Proceeds of such Indebtedness shall be applied in accordance with Clause 13.3 (Application of Mandatory Prepayments).
Notwithstanding anything to the contrary in this paragraph (c), if at the time of any incurrence of Indebtedness by the Parent or any of its Subsidiaries (other than a member of the CEAL Group to which the CEAL Exception Conditions apply) for borrowed money pursuant to Clause 26.4(c) (Indebtedness) or after giving effect thereto, the Consolidated Leverage Ratio is (or would be) greater than 3.75:1.00, the Parent and its Subsidiaries shall apply all cash proceeds (if any) received from such incurrence of Indebtedness (including any Permitted Effective Date Indebtedness but excluding Indebtedness under any Finance Document) for borrowed money pursuant to Clause 26.4(c) (Indebtedness) in accordance with Clause 13.3 (Application of Mandatory Prepayments) (other than unsecured Indebtedness of Subsidiaries of the Parent (which are not Subsidiaries of the Borrower) in an aggregate principal not to exceed €50,000,000, provided that such Indebtedness (i) is incurred by such Subsidiary of the Parent from local banks to fund ongoing operations of such Subsidiary and (ii) does not have a final maturity date later than one year from the date of the incurrence thereof).
(d) Insurance Claims: The Parent shall procure that within 10 days following each date on which the Parent or any of its Subsidiaries (other than a member of the CEAL Group to which the CEAL Exception Conditions apply) receives any proceeds from any Recovery Event, an amount equal to 100 per cent. of the proceeds of such Recovery Event (net of reasonable costs including, without limitation, legal costs and expenses, and taxes incurred in connection with such Recovery Event) shall be applied in accordance with Clause 13.3 (Application of Mandatory Prepayments), provided that:
(i) any net proceeds from Recovery Events received by the Parent and/or its Subsidiaries during any fiscal year of the Parent equal to or less than €10,000,000 shall be excluded; and
(ii) if the net proceeds from Recovery Events received by the Parent and its Subsidiaries when aggregated with the net proceeds received from any other Recovery Events during any fiscal year of the Parent are greater than €10,000,000, then so long as no Default or Event of Default then exists and to the extent that:
93
(A) the amount of such proceeds which are in excess of €10,000,000, together with other cash available to the Parent and permitted to be spent by it on Capital Expenditures during the relevant period pursuant to Clause 24.1 (Capital Expenditures) (without regard to Clause 24.1(c)(i) (Capital Expenditures) in the case of such other cash), equals 100 per cent. of the cost of replacement or restoration of the properties or assets in respect of which such proceeds were paid as determined by the Parent in good faith;
(B) the Parent has delivered to the Agent a certificate on or prior to the date the payment would otherwise be required pursuant to this Clause 13.1(d) certifying its determination as required by sub-paragraph (A); and
(C) the Parent has delivered to the Agent such evidence as the Agent may reasonably request in form, scope and substance reasonably satisfactory to the Agent establishing that the Parent reasonably expects to have sufficient resources available to it (including, without limitation, cash, revenues and insurance proceeds, such that the Parent and its Subsidiaries can reasonably be expected to satisfy all obligations of the Parent and its Subsidiaries without any unreasonable delay or extension thereof) for the period from the date of the event giving rise to the Recovery Event and continuing through the completion of the replacement or restoration of respective properties or assets,
then the entire amount of the proceeds of such Recovery Event shall be deposited with the Agent pursuant to a cash collateral arrangement reasonably satisfactory to the Agent and the Parent whereby such proceeds shall be disbursed to the Parent or its order from time to time as needed to pay actual costs incurred by it in connection with the replacement or restoration of the respective properties or assets (pursuant to such reasonable certification requirements as may be established by the Agent), provided further that at any time while an Event of Default has occurred and is continuing, the Instructing Group may direct the Agent (in which case the Agent shall, and is hereby authorised by the Parent and the Borrower to, follow said directions) to apply any proceeds then on deposit in such collateral account to the repayment of the Outstandings hereunder in the same manner as proceeds would be applied pursuant to Clause 6.3 (Application of Proceeds) of the Intercreditor Deed and provided further, that if any portion of such proceeds is not required to be applied as required by the Instructing Group and such proceeds are either (aa) not so used or committed to be so used within one year after the date of the respective Recovery Event, such proceeds shall be applied on the first anniversary date of the respective Recovery Event or (bb) if committed to be used within one year after the date of receipt of such proceeds and not so used within two years after the date of the respective Recovery Event, such proceeds shall be applied on the second anniversary date of the respective Recovery Event, in each case in accordance with the requirements of Clause 13.3 (Application of Mandatory Prepayments).
94
(e) Permitted Receivables Transactions: On each date upon which the Parent or any of its Subsidiaries (other than a member of the CEAL Group to which the CEAL Exception Conditions apply) receives Permitted Receivables Transaction Proceeds (but excluding in any event proceeds of subsequent sales of Receivables Facility Assets pursuant to a Permitted Receivables Transaction after the initial sale of Receivables Facility Assets has occurred thereunder except to the extent the respective sale increases the Permitted Receivables Transaction Outstandings to an amount in excess of the previous highest amount of Permitted Receivables Transaction Outstandings theretofore in effect), the Borrower shall be required to apply in accordance with Clause 13.3 (Application of Mandatory Prepayments):
(i) in the event the Consolidated Leverage Ratio is greater than 3.75:1.00, an amount equal to 100 per cent. of such Permitted Receivables Transaction Proceeds; and
(ii) in the event the Consolidated Leverage Ratio is less than or equal to 3.75:1.00, an amount equal to 50 per cent. of such Permitted Receivables Transaction Proceeds, so long as (A) no Default or Event of Default exists at the time of receipt by the Parent or any of its Subsidiaries, as the case may be, of the respective Permitted Receivables Transaction Proceeds and (B) the aggregate amounts that would be retained after any application in accordance with this sub-paragraph (ii) does not exceed €150,000,000.
Notwithstanding anything to the contrary contained in this paragraph (e), in cases where the amount required to be repaid on any date would be less then €1,000,000, the Borrower may defer the respective required repayment until the first date upon which the aggregate amount which would (but for this sentence) be required to be applied pursuant to this paragraph (e) (giving effect to the receipt of proceeds on such date, together with any such proceeds received prior to such date which have not yet been applied pursuant to this paragraph (e) and any receipts thereafter) would equal or exceed €1,000,000.
13.2 Repayment from Excess Cash Flow
The Parent shall procure that on each Excess Cash Flow Payment Date, an amount equal to the Applicable Excess Cash Flow Percentage of Excess Cash Flow (other than any amounts from Excess Cash Flow previously applied in accordance with Clause 12.3 (Application of Voluntary Prepayments)) for the relevant Excess Cash Flow Payment Period shall be applied in accordance with Clause 13.3 (Application of Mandatory Prepayments).
13.3 Application of Mandatory Prepayments
(a) Order of Application
Each amount referred to in Clause 13.1 (Repayment from Net Proceeds) or Clause 13.2 (Repayment from Excess Cash Flow) shall, subject to the provisions of paragraph (b) of Clause 13.3 (Bond Offerings) and to the provisions of paragraph (c) (Waivable Mandatory Repayment) of this Clause 13.3, be applied:
(i) first, to the prepayment of A Facility Advances, B1 Facility Advances, B2 Facility Advances, C1 Facility Advances, C2 Facility Advances and any
95
Incremental Term Facility Advances pro rata to the respective Term Facility Outstandings; in relation to each Facility such prepayment shall be applied either:
(A) against all remaining Scheduled Repayments of such Facility pro rata to the respective amounts of such Scheduled Repayments; or
(B) if the Borrower so elects, in the following order:
(I) first, to the prepayment, in direct order of maturity of Scheduled Repayments for such Facility which will be due within 15 months after the date of mandatory prepayment; and
(II) thereafter, to the prepayment of all remaining Scheduled Repayments of such Facility pro rata to the respective amounts of such Scheduled Repayments; and
(ii) second, to repay Revolving Facility Outstandings with a corresponding permanent reduction in Revolving Facility Commitments.
(b) Bond Offerings: Notwithstanding the provisions of paragraphs (a) above, the first €70,000,000 of Net Cash Proceeds referred to in paragraph (c) (Indebtedness) of Clause 13.1 (Repayment from Net Proceeds) received from any incurrence of Indebtedness relating to any issuance of bonds by the Parent or any of its Subsidiaries at any time during the period ending on the date falling 6 months after the Effective Date shall, subject to the provisions of paragraph (c) of this Clause 13.3, be applied:
(i) first, to the prepayment of B1 Facility Advances, B2 Facility Advances, C1 Facility Advances and C2 Facility Advances, pro rata to the respective B Facility Outstandings and C Facility Outstandings and against all remaining Scheduled Repayments of each such Facility pro rata to the respective amounts of such Scheduled Repayments; and
(ii) second, to the prepayment of A Facility Advances, B1 Facility Advances, B2 Facility Advances, C1 Facility Advances and C2 Facility Advances, pro rata to the respective Term Facility Outstandings; in relation to each Facility such prepayment shall be applied against all remaining Scheduled Repayments of such Facility pro rata to the respective amounts of such Scheduled Repayments.
(c) Waivable Mandatory Repayment: In relation to any repayment made pursuant to Clause 13.1 (Repayment from Net Proceeds) or Clause 13.2 (Repayment from Excess Cash Flow) which is required to be applied to C Facility Advances, if on or prior to the date of such repayment pursuant to this Clause 13, the Borrower has given the Agent written notification that it has elected to give each Lender with C Facility Outstandings the right to waive such Lender’s rights to receive such repayment (the “Waivable Mandatory Repayment”) the Agent shall notify such Lenders of such receipt and the amount of the repayments to be applied to each such Lender’s Proportion of C Facility Outstandings, provided that in no event shall the aggregate amount of any Waivable Mandatory Repayment exceed the sum of (x) the aggregate
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principal amount of Term Facility Outstandings (excluding C Facility Outstandings) after giving effect to any applications of payments (other than any reallocation of the respective Waivable Mandatory Repayment pursuant to this paragraph (c)) to such other Term Facility Outstandings as a result of the repayments then being made pursuant to this Clause 13 and (y) the Available Revolving Facility as same will be in effect after giving effect to any reductions thereto (other than as a result of any reallocation of the respective Waivable Mandatory Repayment pursuant to this Clause 13) concurrently being made.
Waiver Mechanics: In the event any such Lender with C Facility Outstandings desires to waive such Lender’s right to receive any such Waivable Mandatory Repayment in whole or in part, such Lender shall so advise the Agent no later than 5:00 p.m. five Business Days after the date of such notice from the Agent which notice shall also include the amount the Lender desires to receive with respect to its C Facility Outstandings. If the Lender does not reply to the Agent within such five Business Day period, it will be deemed acceptance of the total payment. If the Lender does not specify an amount it wishes to receive, it will be deemed acceptance of 100 per cent. of the total payment. In the event that any such Lender waives such Lender’s rights to any such Waivable Mandatory Repayment, the Agent shall apply 100 per cent. of the amount so waived by such Lenders to (x) repay the Term Facility Outstandings (excluding the C Facility Outstandings) in accordance with paragraph (a) above and (y) to the extent in excess of the amount to be applied pursuant to preceding clause (x), to reduce the Available Revolving Facility on a pro rata basis based on the relative amounts of the Available Revolving Facility and the Revolving Facility Outstandings (in each case as in effect before giving effect to such reduction).
Cash Collateral: If the Borrower elects to give the notice described above in this paragraph (c) with respect to any such repayment, the amount of the respective Waivable Mandatory Repayment shall be deposited with the Agent on the date such repayment is otherwise made pursuant to paragraph (a) above (and held by the Agent as cash collateral for the C Facility Outstandings and, but only to the extent Lenders with C Facility Outstandings waive their right to receive their share of the Waivable Mandatory Repayment, for the benefit of all Lenders in a cash collateral account which shall permit the investment thereof in Cash Equivalents reasonably satisfactory to the Agent until the proceeds are applied to the applicable Outstandings) and the respective repayment shall not be required to be made until the seventh Business Day occurring after the date the respective repayment would otherwise have been required to be made.
Partial Waiver of Repayment: Notwithstanding anything to the contrary contained above, if one or more Lenders holding C Facility Outstandings waives its right to receive all or any part of any Waivable Mandatory Repayment, but less than all the Lenders holding the respective C Facility Outstandings waive in full their right to receive 100 per cent. of the total payment otherwise required with respect to the respective C Facility Outstandings, then of the amount actually applied to the repayment of the respective C Facility Outstandings of Lenders which have waived in part, but not in full, their right to receive 100 per cent. of such repayment, such amount shall be applied to each C Facility Advance of the respective C Facility Outstandings, on a pro rata basis (so that each Lender holding C Facility Outstandings shall, after giving effect to the application of the respective repayment,
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maintain the same percentage (as determined for such Lender, but not the same percentage as the other Lenders hold and not the same percentage held by such Lender prior to repayment) of each C Facility Advance which remains outstanding after giving effect to such application). For the avoidance of doubt any amount to be applied in accordance with this paragraph shall only apply to such portion (if any) of the C Facility Outstandings which such C Facility Lender has not waived.
(d) Revolving Facility: Any repayment of any Revolving Facility Outstandings under this Agreement shall be applied first against Revolving Facility Advances and when all Revolving Facility Advances have been repaid in full, to provide cash collateral in respect of any Outstanding L/C Amounts.
14. INTEREST ON REVOLVING AND SWINGLINE FACILITY ADVANCES
14.1 Interest Payment Date for Revolving Facility Advances
On each Repayment Date (and, if the Term of any Revolving Facility Advance exceeds 3 months, on the expiry of each period of 3 months during such Term) the Borrower shall pay accrued interest on each Revolving Facility Advance made to it.
14.2 Interest Rate for Revolving Facility Advances
The rate of interest applicable to each Revolving Facility Advance during its Term shall be the rate per annum which is the sum of the Applicable Margin for the Revolving Facility, the Associated Costs Rate for such Advance at such time and EURIBOR or, in relation to any Revolving Facility Advance denominated in an Optional Currency, LIBOR, for the relevant Term.
14.3 Interest Rate for Swingline Facility Advances
The rate of interest applicable to each Swingline Facility Advance during its Term shall be the rate per annum which is the sum of the Associated Costs Rate for such Advance at such time and:
(a) in relation to a Dollar Swingline Facility Advance, the sum of the Applicable Margin for Dollar Swingline Facility Advances and the higher of (i) the Prime Lending Rate at such time and (ii) the sum of 0.50 per cent. and the Federal Funds Rate at such time; and
(b) in relation to a Euro Swingline Facility Advance, the sum of the Applicable Margin for Euro Swingline Facility Advances and EURIBOR at such time,
for the relevant Term.
14.4 Applicable Margin Ratchet for Revolving Facility Advances after Event of Default
Upon the occurrence of any Event of Default, the Applicable Margin for the Revolving Facility and the Swingline Facility shall revert to the Revolving Facility Margin so long as such Event of Default is continuing.
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15. INTEREST ON TERM FACILITY ADVANCES
15.1 Interest Periods for Term Facility Advances
The period for which a Term Facility Advance is outstanding shall be divided into successive periods (each an “Interest Period”) each of which (other than the first) shall start on the last day of the preceding such period and any Interest Period which begins during or at the same time as any other Interest Period in respect of a Term Facility Advance made under the same Term Facility shall end at the same time as that other Interest Period.
15.2 Duration
The duration of each Interest Period shall, save as otherwise provided in this Agreement, be 1, 2, 3 or 6 months, in each case as the Authorised Representative of the Borrower may by not less than three Business Days’ prior notice to the Agent select or such other period as the Lenders may agree, provided that:
(a) if the Borrower (or the Parent) fails to give such notice of selection in relation to an Interest Period, the duration of that Interest Period shall, subject to the other provisions of this Clause 15, be 1 month;
(b) prior to the Syndication Date, unless the Agent otherwise specifies, the duration of each Interest Period shall be 1 month (or, if less, such duration necessary to ensure that such Interest Period ends on the Syndication Date); and
(c) any Interest Period that would otherwise end during the month preceding or extend beyond a Repayment Date relating to the relevant Term Facility Outstandings shall be of such duration that it shall end on that Repayment Date if necessary to ensure that there are Advances under the relevant Facility with Interest Periods ending on the relevant Repayment Date in a sufficient aggregate amount to make the repayment due on that Repayment Date.
15.3 Division of Term Facility Advances
Subject to the requirements of Clause 15.2 (Duration) the Borrower may, by not less than 5 Business Days’ prior notice to the Agent, direct that any Term Facility Advance borrowed by it shall, at the beginning of the next Interest Period relating to it, be divided into (and thereafter, save as otherwise provided in this Agreement, be treated in all respects as) two or more Advances in such amounts (equal in aggregate to the Euro Amount of the Term Facility Advance being so divided) as shall be specified by the Borrower in such notice provided that the Borrower shall not be entitled to make such a direction if any Term Facility Advance thereby coming into existence would have a Euro Amount of less than €1,000,000.
15.4 Payment of Interest for Term Facility Advances
On the last day of each Interest Period (or if such day is not a Business Day, on the immediately succeeding Business Day in the then current calendar month (if there is one) or the preceding Business Day (if there is not)), and if the relevant Interest Period exceeds 3 months, on the expiry of each 3 month period during that Interest Period, the Borrower shall pay accrued interest on the Term Facility Advance to which such Interest Period relates.
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15.5 Interest Rate for Term Facility Advances
The rate of interest applicable to a Term Facility Advance at any time during an Interest Period relating to it shall be the rate per annum which is the sum of the Applicable Margin for the relevant Term Facilities, the Associated Costs Rate for such Advance at such time and EURIBOR or, in relation to any Term Facility Advance then denominated in an Optional Currency, LIBOR, for such Interest Period.
15.6 Applicable Margin Ratchet for Term Facility Advances after Event of Default
Upon the occurrence of any Event of Default, the Applicable Margin with respect to the A Facility shall revert to the A Facility Margin so long as the Event of Default is continuing.
16. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
16.1 Market Disruption
If, in relation to any Interest Period or Term:
(a) the Relevant Interbank Rate is to be determined by reference to the Reference Banks or Federal Funds brokers, as the case may be, and, at or about 11.00 a.m. on the Quotation Date for such Interest Period or Term, none or only one of the Reference Banks or Federal Funds brokers, as the case may be, supplies a rate for the purpose of determining the Relevant Interbank Rate for the relevant period; or
(b) before the close of business in London on the Quotation Date for such Interest Period or Term (or in relation to a Swingline Advance, before 1:00 p.m. on any day), the Agent has been notified by a Lender or each of a group of Lenders to whom in aggregate 35 per cent. or more of the relevant Advance is owed (or, in the case of an undrawn Advance, if made, would be owed) that the cost to it of obtaining matching deposits for the relevant Advance in the Relevant Interbank Market would be in excess of the Relevant Interbank Rate,
then the Agent shall notify the Parent and the Lenders of such event and, notwithstanding anything to the contrary in this Agreement, Clause 16.2 (Substitute Interest Period and Interest Rate) shall apply (if the relevant Advance is a Term Facility Advance which is already outstanding or a Rollover Advance). If either paragraph (a) or (b) applies to a proposed Advance other than a Rollover Advance, such Advance shall not be made.
16.2 Substitute Interest Period and Interest Rate
(a) If paragraph (a) of Clause 16.1 (Market Disruption) applies (i) to an Advance (other than a Swingline Advance), the duration of the relevant Interest Period or Term shall be 1 month, (ii) to a Swingline Advance, the duration of the relevant Term shall be 5 Business Days or (iii) in each case, if less, such that it shall end on the next succeeding Repayment Date.
(b) If either paragraph of Clause 16.1 (Market Disruption) applies to an Advance, the rate of interest applicable to each Lender’s portion of such Advance during the relevant Interest Period or Term shall (subject to any agreement reached pursuant to Clause 16.3 (Alternative Rate)) be the rate per annum which is the sum of:
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(i) the Applicable Margin;
(ii) the rate per annum notified to the Agent by such Lender before the last day of such Interest Period or Term to be that which expresses as a percentage rate per annum the cost to such Lender of funding from whatever sources it may select its portion of such Advance during such Interest Period or Term; and
(iii) the Associated Costs Rate, if any, applicable to such Lender’s participation in the relevant Advance.
16.3 Alternative Rate
If:
(a) Clause 16.1 (Market Disruption) applies; or
(b) by reason of circumstances affecting the Relevant Interbank Market during any period of 3 consecutive Business Days, the Relevant Interbank Rate (as appropriate) is not available to prime banks in the Relevant Interbank Market,
then, if the Agent or the Parent so requires, the Agent and the Parent shall enter into negotiations with a view to agreeing an alternative basis within one month:
(i) for determining the rate of interest from time to time applicable to Advances; and/or
(ii) upon which the Advances may be maintained (whether in euro or some other currency) thereafter,
and any such alternative basis that is agreed shall take effect in accordance with its terms and be binding on each party to this Agreement, provided that the Agent may not agree any such alternative basis without the prior consent of each Lender.
17. COMMISSIONS AND FEES
17.1 Commitment Fees
The Borrower shall pay to the Agent for the account of each Arranger (with respect to the period from the date of the Commitment Letter) and each Lender (with respect to the period from the Effective Date), a commitment commission on the aggregate amount of such Lender’s Available Commitment (if any) in respect of each Facility, from day to day during the period beginning on the date of the Commitment Letter and ending on the relevant Termination Date, such commitment commission to be calculated at the applicable percentage rate per annum set out below and payable on the Initial Borrowing