Dated 5 August, 2005 SINGLE CURRENCY TERM FACILITY AGREEMENT FACILITY AGREEMENT between BMS OMEGA BERMUDA HOLDINGS FINANCE LTD. arranged by BNP PARIBAS and THE ROYAL BANK OF SCOTLAND plc with THE ROYAL BANK OF SCOTLAND plc acting as Agent
EXHIBIT
10y
CONFORMED
COPY
Dated
5
August, 2005
$2,500,000,000
FACILITY
AGREEMENT
between
BMS
OMEGA BERMUDA HOLDINGS FINANCE LTD.
arranged
by
BNP
PARIBAS
and
THE
ROYAL BANK OF SCOTLAND plc
with
THE
ROYAL BANK OF SCOTLAND plc
acting
as
Agent
Counsel
to the Lenders
[Missing
Graphic Reference]
0
Xxx Xxxxx Xxxxxx
Xxxxxx
XX0X 0XX
|
Counsel
to the Borrower
Xxxxxxxxx
& May
One
Xxxxxxx Xxx
Xxxxxx
XX0X 0XX
|
Page
TABLE
OF
CONTENTS
|
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Page
|
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1.
|
DEFINITIONS
AND INTERPRETATION
|
1
|
|
2.
|
THE
FACILITY
|
17
|
|
3.
|
PURPOSE
|
17
|
|
4.
|
CONDITIONS
OF UTILISATION
|
17
|
|
5.
|
UTILISATION
|
18
|
|
6.
|
REPAYMENT
|
19
|
|
7.
|
PREPAYMENT
AND CANCELLATION
|
19
|
|
8.
|
INTEREST
|
24
|
|
9.
|
INTEREST
PERIODS
|
25
|
|
10.
|
CHANGES
TO THE CALCULATION OF I~ITEREST
|
26
|
|
11.
|
FEES
|
27
|
|
12.
|
TAX
GROSS UP AND INDEMNITIES
|
28
|
|
13.
|
INCREASED
COSTS
|
32
|
|
14.
|
OTHER
INDEMNITIES
|
33
|
|
15.
|
MITIGATION
BY THE LENDERS
|
34
|
|
16.
|
COSTS
AND EXPENSES
|
35
|
|
17.
|
GUARANTEE
AND INDEMNITY
|
35
|
|
18.
|
REPRESENTATIONS
|
39
|
|
19.
|
INFORMATION
UNDERTAKINGS
|
44
|
|
20.
|
FINANCIAL
COVENANTS
|
48
|
|
21.
|
GENERAL
UNDERTAKINGS
|
50
|
|
22.
|
EVENTS
OF XXXXXXX
|
00
|
|
00.
|
CHANGES
TO THE LENDERS
|
61
|
|
24.
|
CHANGES
TO THE OBLIGORS
|
65
|
|
25.
|
ROLE
OF THE AGENT AND THE ARRANGERS
|
66
|
|
26.
|
CONDUCT
OF BUSINESS BY THE FINANCE PARTIES
|
71
|
|
27.
|
SHARING
AMONG THE FINANCE PARTIES
|
72
|
|
28.
|
PAYMENT
MECHANICS
|
73
|
|
29.
|
SET-OFF
|
76
|
|
30.
|
NOTICES
|
76
|
|
31.
|
CALCULATIONS
AND CERTIFICATES
|
78
|
|
32.
|
PARTIAL
INVALIDITY
|
78
|
(i)
33.
|
REMEDIES
AND WAIVERS
|
78
|
|
34.
|
AMENDMENTS
AND WAIVERS
|
78
|
|
35.
|
COUNTERPARTS
|
79
|
|
36.
|
CONFIDENTIALITY
|
79
|
|
37.
|
GOVERNING
LAW
|
80
|
|
38.
|
ENFORCEMENT
|
80
|
SCHEDULE
1
|
THE
ORIGINAL PARTIES
|
82
|
SCHEDULE
2
|
CONDITIONS
PRECEDENT
|
84
|
SCHEDULE
3
|
REQUESTS
|
88
|
SCHEDULE
4
|
MANDATORY
COST FORMULA
|
90
|
SCHEDULE
5
|
FORM
OF TRANSFER CERTIFICATE
|
93
|
SCHEDULE
6
|
FORM
OF ACCESSION LETTER
|
95
|
SCHEDULE
7
|
FORM
OF RESIGNATION LETTER
|
96
|
SCHEDULE
8
|
FORM
OF COMPLIANCE CERTIFICATE
|
97
|
SCHEDULE
9
|
TIMETABLES
|
99
|
SCHEDULE
10
|
FORM
OF CONFIDENTIALITY UNDERTAKING
|
100
|
(ii)
THIS
AGREEMENT is
dated
5 August, 2005 and made between:
(1)
|
BMS
OMEGA BERMUDA HOLDINGS FINANCE LTD.,
a
company incorporated under the laws of Bermuda whose registered office
is
at Chancery Hall, 52 Xxxx Street, Xxxxxxxx HM12, Bermuda (the
“Borrower”);
|
(2)
|
THE
ENTITIES
listed in Part 1 of Schedule 1 as original guarantors the “Original
Guarantors”);
|
(3)
|
BNP
PARIBAS
and THE
ROYAL BANK OF SCOTLAND plc
as
mandated lead arrangers and exclusive bookrunners (the “Arrangers”);
|
(4)
|
THE
FINANCIAL INSTITUTIONS
listed in Part 2 of Schedule 1 as lenders (the “Original
Lenders”);
and
|
(5)
|
THE
ROYAL BANK OF SCOTLAND plc as
agent of the other Finance Parties (the “Agent”).
|
IT
IS AGREED
as
follows:
1. |
DEFINITIONS
AND INTERPRETATION
|
1.1 |
Definitions
|
In
this
Agreement:
“Accession
Letter”
means
a
document substantially in the form set out in Schedule 6 (Form
of Accession Letter).
“Additional
Cost Rate”
has
the
meaning given to it in Schedule 4 (Mandatory
Cost formula).
“Additional
Guarantor”
means
a
Person which becomes an Additional Guarantor in accordance with Clause 24
(Changes
to the Obligors).
“Affected
Lender”
has
the
meaning given to it in Clause 10.2 (Market
disruption).
“Affiliate”
means,
when used in respect of a specified Person, another Person that directly or
indirectly, Controls or is Controlled by or is under common Control with the
Person specified.
“Availability
Period”
means
the Tranche A Availability Period or the Tranche B Availability Period as the
context requires.
“Available
Commitment”
means,
in relation to a Tranche and a Lender, such Lender’s Commitment
minus:
(a)
|
the
amount of its participation in any outstanding Loans;
and
|
(b)
|
in
relation to any proposed Utilisation, the amount of its participation
in
any Loans that are due to be made on or before the proposed Utilisation
Date.
|
“Available
Facility”
means,
in relation to a Tranche, the aggregate for the time being of each Lender’s
Available Commitment in respect of such Tranche.
“BMS
Group”
means
the Parent Guarantor and its Subsidiaries from time to time.
“Board”
means
the Board of Governors of the Federal Reserve System of the United States of
America.
“Board
of Directors”
means
either the board of directors of an Obligor or any duly authorised committee
thereof or any committee of officers of such Obligor acting pursuant to
authority granted by the board of directors of such Obligor or any committee
of
such board.
“Borrowing
Proceeds”
has
the
meaning given to it in Clause 7.5 (Mandatory
Prepayment).
“Break
Costs”
means
the amount (if any) by which:
(a)
|
the
interest (excluding Margin) which a Lender would have received for
the
period from the date of receipt of all or any part of its participation
in
a Loan or Unpaid Sum to the last day of the current Interest Period
in
respect of that Loan or Unpaid Sum, had the principal amount or Unpaid
Sum
received been paid on the last day of that Interest
Period;
|
exceeds:
(b)
|
the
amount which that Lender would be able to obtain by placing an amount
equal to the total sum received by it on deposit with a leading bank
in
the Relevant Interbank Market for a period starting on the Business
Day
following receipt or recovery (or on the date of receipt if the Lender
had
notice that it would receive such sum on that day) and ending on
the last
day of the current Interest Period.
|
“Business
Day”
means
a
day (other than a Saturday, Sunday or legal holiday in the State of New York)
on
which banks are open for general business in Bermuda, London, and New York
City.
“Capital
Lease Obligations”
means,
in relation to any Person, the obligations of such Person to pay rent or other
amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a balance
sheet
of such Person under GAAP and, for the purposes of this Agreement, the amount
of
such obligations at any time shall be the capitalised amount thereof at such
time determined in accordance with GAAP.
“Change
in Control”
is
deemed to have occurred upon the occurrence of either of the following
events:
(a)
|
any
Person or group of Persons (other than (i) the Parent Guarantor,
(ii) any
Subsidiary or (iii) any employee or director benefit plan or stock
plan of
the Parent Guarantor or a Subsidiary or any trustee or fiduciary
with
respect to such a plan when acting in that capacity or any trust
related
to any such plan)
|
-2-
shall
have acquired beneficial ownership of shares representing more than 20% of
the
combined voting power represented by the outstanding Voting Stock of the
Borrower or a Guarantor; or
(b)
|
during
any period of 12 consecutive months, commencing before or after the
date
of this Agreement, individuals who on the first day of such period
were
directors of the Parent Guarantor (together with any replacement
or
additional directors who were nominated or elected by a majority
of
directors then in office) cease to constitute a majority of the Board
of
Directors of the Parent Guarantor.
|
“Closing
Date”
means
the date on which the Agent notifies the Borrower and the Lenders pursuant
to
Clause 4.1 (Initial
conditions precedent)
that it
has received all of the documents and other evidence listed in Part 1 of
Schedule 2 (Conditions Precedent).
“Code”
means
the Internal Revenue Code of 1986 of the United States, as amended from time
to
time.
“Commitment”
means
a
Tranche A Commitment or a Tranche B Commitment, as the context
requires.
“Compliance
Certificate”
means
a
certificate substantially in the form set out in Schedule 8 (Form
of Compliance Certificate).
“Confidential
Information”
means
any information relating to the Borrower, the Guarantors, the BMS Group, and
the
Facility including, without limitation, the Information Memorandum, and includes
information given orally and any document, electronic file or any other way
of
representing or recording information which contains or is derived or copied
from such information but excludes information that (a) is or becomes public
knowledge other than as a direct or indirect result of any breach of this
Agreement or (b) is known before the date the information is disclosed or is
lawfully obtained after that date, other than from a source which is connected
with the Lenders or the BMS Group and which, in either case, has not been
obtained in violation of, and is not otherwise subject to, any obligation of
confidentiality.
“Confidentiality
Undertaking”
means
a
confidentiality undertaking substantially in the form set out in Schedule 10
(Form
of Confidentiality Undertaking)
or in
any other form agreed between the Borrower and the Agent.
“Consolidated Capitalisation”
has
the
meaning given to it in Clause 20.2 (Parent
Guarantor and Borrower Financial Covenants).
“Consolidated
Net Indebtedness”
has
the
meaning given to it in Clause 20.2 (Parent
Guarantor and Borrower Financial Covenants).
-3-
“Consolidated
Net Tangible Assets”
means,
with respect to the Parent Guarantor, the total amount of its assets (less
applicable reserves and other properly deductible items) after
deducting:
(a)
|
all
current liabilities (excluding the amount of those which are by their
terms extendable or renewable at the option of the obligor to a date
more
than 12 months after the date as of which the amount is being determined);
and
|
(b)
|
all
goodwill, tradenames, trademarks, patents, unamortised debt discount
and
expense and other like intangible assets, all as set forth on the
most
recent balance sheet of the Parent Guarantor and its consolidated
Subsidiaries and determined on a consolidated basis in accordance
with
GAAP.
|
“Control”
means,
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through ownership
of voting securities, by contract or otherwise. “Controlled”
and
“Controlling”
shall
be construed accordingly.
“Debt”
means:
(a)
|
all
obligations represented by notes, bonds, debentures or similar evidences
of indebtedness;
|
(b)
|
all
indebtedness for borrowed money or for the deferred purchase price
of
property or services other than, in the case of any such deferred
purchase
price, on normal trade terms; and
|
(c)
|
all
rental obligations as lessee under leases which shall have been or
should
be recorded as Capital Lease
Obligations.
|
“Default”
means
any event or condition which constitutes an Event of Default or which upon
notice, lapse of time or both would, unless cured or waived, become an Event
of
Default.
“Designated
Finance Subsidiary”
means
Xxxxxxx-Xxxxx Squibb Sigma Finance Limited, a company incorporated under the
laws of Bermuda whose registered office is at Chancery Hall, 00 Xxxx Xxxxxx,
Xxxxxxxx XX00, Xxxxxxx, and any other Finance Subsidiary which has become an
Additional Guarantor.
“Disposal”
has
the
meaning given to it in Clause 7.5 (Mandatory
Prepayment).
“Disposal
Proceeds”
has
the
meaning given to it in Clause 7.5 (Mandatory
Prepayment).
“Dollars”
or
“$”
means
the lawful currency of the United States of America.
“Environmental
and Safety Laws”
means
any and all applicable current and future treaties, laws (including without
limitation common law), regulations, enforceable requirements, binding
determinations, orders, decrees, judgments, injunctions, permits, approvals,
authorizations, licenses, permissions, written notices or binding agreements
issued, promulgated or entered by any Governmental Authority, relating to the
environment, to employee health or safety as it pertains to the use or handling
-4-
of,
or
exposure to, any Hazardous Substance or contaminant, to preservation or
reclamation of natural resources or to the management, release or threatened
release of any Hazardous Substance, contaminant, or noxious odour, including
without limitation the following laws of the United States of America: the
Hazardous Materials Transportation Act, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976 and the Hazardous
and Solid Waste Amendments of 1984, the Federal Water Pollution Control Act,
as
amended by the Clean Water Act of 1977, the Clean Air Act of 1970, as amended,
the Toxic Substances Control Act of 1976, the Occupational Safety and Health
Act
of 1970, as amended, the Emergency Planning and Community Right-to-Know Act
of
1986, the Safe Drinking Water Act of 1974, as amended, any similar or
implementing state law, all amendments of any of them, and any regulations
promulgated under any of them.
“ERISA”
means
Employee Retirement Income Security Act of 1974 of the United States, as amended
from time to time.
“ERISA
Affiliate”
means
any trade or business (whether or not incorporated) that, together with the
Parent Guarantor, is treated as a single employer under Section 414 of the
Code.
“ERISA
Termination Event”
means
(i) a “Reportable Event” described in Section 4043 of ERISA and the regulations
issued thereunder (other than a “Reportable Event” not subject to the provision
for 30-day notice to the PBGC under such regulations), or (ii) the withdrawal
of
the Parent Guarantor or any of its ERISA Affiliates from a “single employer”
Plan during a plan year in which it was a “substantial employer”, both of such
terms as defined in Section 4001(a) of ERISA, or (iii) the filing of a notice
of
intent to terminate a Plan or the treatment of a Plan amendment as a termination
under Section 4041 of ERISA, or (iv) the institution of proceedings to terminate
a Plan by the PBGC or (v) any other event or condition which is reasonably
likely to constitute grounds under Section 4042 of ERISA for the termination
of,
or the appointment of a trustee to administer, any Plan or (vi) the partial
or
complete withdrawal of the Parent Guarantor or any ERISA Affiliate of the Parent
Guarantor from a Multiemployer Plan as defined in Section 4001(a)(3) of
ERISA.
“Event
of Default”
means
any event or circumstance specified as such in Clause 22 (Events
of Default).
“Exchange
Act”
means
Securities Exchange Act of 1934 of the United States, as amended.
“Excluded
Debt”
has
the
meaning given to it in Clause 7.5 (Mandatory
Prepayment).
“Excluded
Disposal Proceeds”
has
the
meaning given to it in Clause 7.5 (Mandatory
Prepayment).
“Excluded
Insurance Proceeds”
has
the
meaning given to it in Clause 7.5 (Mandatory
Prepayment).
-5-
“Facility”
means
the term loan facility made available under this Agreement as described in
Clause 2 (The
Facility).
“Facility
Office”
means
the office or offices notified by a Lender to the Agent in writing on or before
the date it becomes a Lender (or, following that date, by not less than five
Business Days’ written notice) as the office or offices through which it will
perform its obligations under this Agreement.
“Fee
Letter”
means
any letter or letters dated on or about the date of this Agreement between
the
Arrangers and the Borrower (or the Agent and the Borrower) setting out any
of
the fees referred to in Clause 11 (Fees).
“Finance
Document”
means
this Agreement, any Fee Letter, any Accession Letter, any Resignation Letter
and
any other document designated as such by the Agent and the Borrower in
writing.
“Finance
Party”
means
the Agent, an Arranger or a Lender.
“Finance
Subsidiary”
means
a
wholly owned subsidiary of the Borrower which is engaged solely in the business
of financing or facilitating the financing of members of the BMS Group and
activities reasonably incidental thereto.
“Funded
Debt”
means
Debt of the Parent Guarantor or a Subsidiary owning Restricted Property maturing
by its terms more than one year after its creation and Debt classified as
long-term debt under GAAP and, in the case of the Funded Debt of the Parent
Guarantor, ranking at least pari passu with its obligations under this
Agreement.
“GAAP”
means
generally accepted accounting principles in the United States of
America.
“Governmental
Authority”
means
the government of any nation, including, but not limited to, the United States
of America, or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank
or
other entity exercising executive, legislative, judicial, taxing, regulatory
or
administrative powers or functions of or pertaining to government.
“Guarantor”
means
an Original Guarantor or an Additional Guarantor, unless it has ceased to be
a
Guarantor in accordance with Clause 24 (Changes
to the Obligors).
“Hazardous
Substances”
means
any toxic, radioactive, mutagenic, carcinogenic, noxious, caustic or otherwise
hazardous substance, material or waste, including petroleum, its derivatives,
by-products and other hydrocarbons, including, without limitation,
polychlorinated biphenyls (“PCBs”),
asbestos or asbestos-containing material, and any substance, waste or material
regulated or that could reasonably be expected to result in liability under
Environmental and Safety Laws.
“Increased
Costs”
has
the
meaning given to it in Clause 13.1 (Increased
costs).
“Indenture”
means
the Indenture dated as of June 1, 1993 between the Parent Guarantor and JPMorgan
Chase Bank N.A., as successor to The Chase Manhattan
-6-
Bank
(National Association), as Trustee, as amended, supplemented or otherwise
modified from time to time.
“Information
Memorandum”
means
the document in the form approved by the Borrower concerning the BMS Group
and
the NL Holdco Group which, at the Borrower’s request and on its behalf, was
prepared in relation to this transaction and distributed by the Arrangers to
selected financial institutions before the date of this Agreement.
“Insurance
Proceeds”
has
the
meaning given to it in Clause 7.5 (Mandatory
Prepayment).
“Interest
Period”
means,
in relation to a Loan, each period determined in accordance with Clause 9
(Interest
Periods)
and, in
relation to an Unpaid Sum, each period determined in accordance with Clause
8.3
(Default
interest).
“Lender”
means:
(a)
|
any
Original Lender; and
|
(b)
|
any
bank or financial institution which has become a Party in accordance
with
Clause 23 (Changes
to the Lenders),
|
which
in
each case has not ceased to be a Party in accordance with the terms of this
Agreement.
“LIBOR”
means,
in relation to any Loan:
(a)
|
the
applicable Screen Rate; or
|
(b)
|
(if
no Screen Rate is available for Dollars or the Interest Period of
that
Loan) the arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Agent at its request quoted by the Reference
Banks to leading banks in the London interbank
market,
|
as
of the
Specified Time on the Quotation Day for the offering of deposits in Dollars
and
for a period comparable to the Interest Period for that Loan.
“Lien”
means
any mortgage, lien, pledge, encumbrance, charge or security
interest.
“LMA”
means
the Loan Market Association.
“Loan”
means
a
Tranche A Loan or a Tranche B Loan as the context requires.
“Lux
Holdco”
means
Xxxxxxx-Xxxxx Squibb Luxembourg S.à.X.X.
“Lux
Holdco Note”
means
the Euro denominated senior note due November 7, 2014, the form, substance,
terms and conditions of which are set forth in the Lux Holdco Note
Agreement.
-7-
“Lux
Holdco Note Agreement”
means
the Note Agreement dated as of November 8, 2002 as amended on 28 March 2003,
between Lux Holdco and Xxxxxxx-Xxxxx Squibb Cayman Ltd.
“Majority
Lenders”
means:
(a)
|
if
there are no Loans then outstanding, a Lender or Lenders whose Commitments
aggregate 662/3%
or more of the Total Commitments (or, if the Total Commitments have
been
reduced to zero, aggregated 662/3%
or more of the Total Commitments immediately prior to the reduction);
or
|
(b)
|
at
any other time, a Lender or Lenders whose participations in the Loans
then
outstanding aggregate 662/3%
or more of all the Loans then
outstanding.
|
“Mandatory
Cost”
means
the percentage rate per annum calculated by the Agent in accordance with
Schedule 4 (Mandatory
Cost formula).
“Margin”
means,
at any time, the rate set out opposite the then applicable Ratings listed in
the
table below, as determined subject to paragraphs (a) to (d) below:
Ratings
(Moody’s / S&P)
|
Margin
(per cent. per annum)
|
A2
/ A or higher
A3
/ A -
Baa1
/ BBB+ or lower
|
0.25
0.30
0.35
|
(a)
|
If
the Ratings Agencies do not provide equivalent Ratings, only the
highest
Rating will be used to calculate the
Margin.
|
(b)
|
If
only one Rating Agency provides a Rating, that Rating will be used
to
calculate the Margin.
|
(c)
|
If
an Event of Default has occurred and is continuing or no Ratings
are
available, the Margin will be 0.35 per cent. per
annum.
|
(d)
|
Any
change in the Margin shall take effect in relation to any Loan made
or any
Interest Period commencing on or after the date falling one Business
Day
after the relevant change in the Ratings, provided that if such change
in
a Rating occurs on the first day of an Interest Period, the corresponding
change in the Margin shall be effective as of that
date.
|
“Margin
Regulations”
means
Regulations T, U and X of the Board as from time to time in effect, and all
official rulings and interpretations thereunder or thereof.
“Market
Disruption Event”
has
the
meaning given to it in Clause 10.2 (Market
disruption).
“Material
Adverse Effect” means
a
material adverse effect on the business, operations, properties or financial
condition of the BMS Group taken as a whole or, where the context so requires,
a
material adverse effect on the business, operations, properties or financial
condition of the NL Holdco Group taken as a whole.
-8-
“Material
Asset”
means
(a)
|
any
manufacturing facility, or portion thereof, owned or leased by the
Parent
Guarantor or any Subsidiary which, in the opinion of the Board of
Directors of the Parent Guarantor, is of material importance to the
business of the Parent Guarantor and its Subsidiaries taken as a
whole,
but no such manufacturing facility, or portion thereof, shall be
deemed of
material importance if its gross book value (before deducting accumulated
depreciation) is less than 2% of Consolidated Net Tangible Assets;
and
|
(b)
|
any
shares of capital stock or indebtedness of any Subsidiary owning
any such
manufacturing facility.
|
As
used
in this definition “manufacturing
facility”
means
property, plant and equipment used for actual manufacturing and for activities
directly related to manufacturing, and it excludes sales offices, research
facilities and facilities used only for warehousing, distribution or general
administration.
“Maturity”
means,
when used in respect of any Security, the date on which the principal of such
Security becomes due and payable as provided therein or in the Indenture,
whether on a date fixed for such repayment pursuant to such Security, at the
date specified in such Security as the fixed date on which the principal of
such
Security or such instalment of principal or interest is due and payable thereof
or by declaration of acceleration, call for redemption or
otherwise.
“Month”
means
a
period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that:
(a)
|
(subject
to paragraph (c) below) if the numerically corresponding day is not
a
Business Day, that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one, or
if there
is not, on the immediately preceding Business
Day;
|
(b)
|
if
there is no numerically corresponding day in the calendar month in
which
that period is to end, that period shall end on the last Business
Day in
that calendar month; and
|
(c)
|
if
an Interest Period begins on the last Business Day of a calendar
month,
that Interest Period shall end on the last Business Day in the calendar
month in which that Interest Period is to
end.
|
The
above
rules (a), (b) and (c) will only apply to the last Month of any
period.
“Moody’s”
means
Xxxxx’x Investors Service, Inc. or any successor thereto.
“NL
Holdco Cash Flow”
has
the
meaning given to it in Clause 20.1 (Primary
Guarantor Financial Covenants).
“NL
Holdco Group”
means
the Primary Guarantor and its subsidiaries from time to time.
-9-
“NL
Holdco Group Net Indebtedness”
has
the
meaning given to it in Clause 20.1 (Primary
Guarantor Financial Covenants).
“NL
Holdco Group New Indebtedness”
has
the
meaning given to it in Clause 20.1 (Primary
Guarantor Financial Covenants).
“NL
Holdco Intercompany Indebtedness”
has
the
meaning given to it in Clause 20.1 (Primary
Guarantor Financial Covenants).
“Obligor”
means
the Borrower or a Guarantor.
“Original
Issue Discount Security”
means
(i) any Security which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the Maturity
thereof, and (ii) any other Security deemed to be an Original Issue Discount
Security for United States Federal income tax purposes.
“Original
Obligor”
means
the Borrower or an Original Guarantor.
“Parent
Guarantor”
means
Xxxxxxx-Xxxxx Squibb Company, a Delaware corporation whose registered office
is
at CT Corporation, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX, X.X.X..
“Parent
Guarantor Quarter Date”
has
the
meaning given to it in Clause 20.2 (Parent
Guarantor and Borrower Financial Covenants).
“Participating
Member State”
means
any member state of the European Communities that adopts or has adopted the
euro
as its lawful currency in accordance with legislation of the European Community
relating to Economic and Monetary Union.
“Party”
means
a
party to this Agreement.
“PBGC”
means
the Pension Benefit Guaranty Corporation referred to and defined in ERISA and
any successor entity performing similar functions.
“Person”
means
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
“Plan”
means
any employee pension benefit plan (other than a Multiemployer Plan as defined
in
Section 4001(a)(3) of ERISA), subject to the provisions of Title IV of ERISA
or
Section 412 of the Code that is maintained for current or former employees,
or
any beneficiary thereof, of the Parent Guarantor or any ERISA
Affiliate.
“Prepayment
Percentage”
has
the
meaning given to it in Clause 7.5 (Mandatory
Prepayment).
“Prepayment
Threshold”
has
the
meaning given to it in Clause 7.5 (Mandatory
Prepayment).
-10-
“Primary
Guarantor”
means
BMS Pharmaceuticals Netherlands Holdings B.V., a company incorporated under
the
laws of the Netherlands whose registered office is at Xxxxxxxxxxxxxxx 0, 0000
XX, Xxxxxxx, Xxx Xxxxxxxxxxx.
“Primary
Guarantor Quarter Date”
has
the
meaning given to it in Clause 20.1 (Primary
Guarantor Financial Covenants).
“Protected
Party”
has
the
meaning given to it in Clause 12.1 (Tax
Definitions).
“Qualifying NL
Holdco Notes”
means
unsubordinated indebtedness owed by the Primary Guarantor to the Borrower or
a
Designated Finance Subsidiary.
“Quotation
Day”
means,
in relation to any period for which an interest rate is to be determined, two
Business Days before the first day of that period unless market practice differs
in the Relevant Interbank Market in which case the Quotation Day will be
determined by the Agent in accordance with market practice in the Relevant
Interbank Market (and if quotations would normally be given by leading banks
in
the Relevant Interbank Market on more than one day, the Quotation Day will
be
the last of those days).
“Rating
Agencies”
means
Moody’s and S&P.
“Ratings”
means
the ratings from time to time established by the Rating Agencies for senior,
unsecured, non-credit-enhanced long-term debt of the Parent Guarantor.
“Reference
Banks”
means
the principal London offices of BNP Paribas, The Royal Bank of Scotland plc
and
Deutsche Bank AG or such other banks as may be appointed by the Agent in
consultation with the Borrower.
“Regulation
FD”
means
Regulation FD promulgated by the SEC.
“Relevant
Interbank Market”
means
the London interbank market.
“Repayment
Date”
means
the Tranche A Repayment Date or the Tranche B Repayment Date as the context
requires.
“Repeating
Representations”
means
each of the representations set out in Clauses 18.1 (Organisation;
Powers),
18.2
(Authorisations),
18.3
(Enforceability),
18.4
(Governmental
Approvals),
18.8
(Federal
Reserve Regulations)
and
18.14 (Investment
and Holding Company Status).
“Resignation
Letter”
means
a
letter substantially in the form set out in Schedule 7 (Form
of Resignation Letter).
“Restricted
Payment”
means,
as to any Person, any dividend or other distribution (whether in cash,
securities or other property) with respect to any shares of any class of capital
stock or other equity interests of such Person, or any payment (whether in
cash,
securities or other property), including any sinking fund or similar deposit,
on
account of the purchase, redemption, retirement, acquisition, cancellation
or
termination of any such shares of capital stock or other equity interests of
such Person or any option, warrant or other right to acquire any such shares
of
capital stock or other equity interests of such Person.
-11-
“Restricted
Property”
means:
(a)
|
any
manufacturing facility, or portion thereof, owned or leased by the
Parent
Guarantor or any Subsidiary and located within the continental United
States of America which, in the opinion of the Board of Directors
of the
Parent Guarantor, is of material importance to the business of the
Parent
Guarantor and its Subsidiaries taken as a whole, but no such manufacturing
facility, or portion thereof, shall be deemed of material importance
if
its gross book value (before deducting accumulated depreciation)
is less
than 2% of Consolidated Net Tangible Assets; and
|
(b)
|
any
shares of capital stock or indebtedness of any Subsidiary owning
any such
manufacturing facility.
|
As
used
in this definition “manufacturing
facility”
means
property, plant and equipment used for actual manufacturing and for activities
directly related to manufacturing, and it excludes sales offices, research
facilities and facilities used only for warehousing, distribution or general
administration.
“S&P”
means
Standard & Poor’s Ratings Group or any successor thereto.
“Sale
and Leaseback Transaction”
means
any arrangement with any Person pursuant to which the Parent Guarantor or any
Subsidiary leases any Restricted Property that has been or is to be sold or
transferred by the Parent Guarantor or the Subsidiary to such Person, other
than:
(a)
|
temporary
leases for a term, including renewals at the option of the lessee,
of not
more than three years;
|
(b)
|
leases
between the Parent Guarantor and a Subsidiary or between
Subsidiaries;
|
(c)
|
leases
of Restricted Property executed by the time of, or within 12 months
after
the latest of, the acquisition, the completion of construction or
improvement, or the commencement of commercial operation, of such
Restricted Property; and
|
(d)
|
arrangements
pursuant to any provision of law with an effect similar to that under
former Section 168(f)(8) of the Internal Revenue Code of 1954 of
the
United States.
|
“Screen
Rate”
means
the British Bankers’ Association Interest Settlement Rate for Dollars for the
relevant period, displayed on the appropriate page of the Reuters screen. If
the
agreed page is replaced or service ceases to be available, the Agent may specify
a reasonable alternative page or service displaying the appropriate rate after
consultation with the Borrower and the Lenders.
“SEC”
means
the Securities and Exchange Commission of the United States.
“Security”
shall
mean any note, bond, debenture, or any other evidences of indebtedness, of
any
series authenticated and delivered from time to time under the Indenture.
“Securities”
shall
be construed accordingly.
-12-
“Selection
Notice”
means
a
notice substantially in the form set out in Part 2 of Schedule 3 (Requests)
given
in accordance with Clause 9 (Interest
Periods).
“Share
Issue”
has
the
meaning given to it in Clause 7.5 (Mandatory
Prepayment).
“Share
Issue Proceeds”
has
the
meaning given to it in Clause 7.5 (Mandatory
Prepayment).
“Specified
Time”
means
a
time determined in accordance with Schedule 9 (Timetables).
“subsidiary”
means
with respect to any Person (the “parent”)
at any
date:
(a)
|
for
the purposes of Clauses 21.8 (Encumbrances
on Restricted Properties securing debt)
and 21.9 (Limitation
on Sale and Leaseback Transactions)
only, any Person, the majority of the outstanding Voting Stock of
which is
owned, directly or indirectly, by the parent or one or more subsidiaries
of the parent of such Person; and
|
(b)
|
for
all other purposes under this Agreement, any corporation, limited
liability company, partnership, association or other entity the accounts
of which would be consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any
other
corporation, limited liability company, partnership, association
or other
entity of which securities or other ownership interests representing
more
than 50% of the equity or more than 50% of the ordinary voting power
or,
in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or
held.
|
“Subsidiary”
means
a
subsidiary of the Parent Guarantor.
“Tax”
means
any tax, levy, impost, duty or other charge or withholding of a similar nature
(including any penalty or interest payable in connection with any failure to
pay
or any delay in paying any of the same).
“Tax
Credit”
has
the
meaning given to it in Clause 12.1 (Tax Definitions).
“Tax
Deduction”
has
the
meaning given to it in Clause 12.1 (Tax Definitions).
“Tax
Payment”
has
the
meaning given to it in Clause 12.1 (Tax Definitions).
“Third
Parties Act”
has
the
meaning given to it in Clause 1.3 (Third
party rights).
“Total
Commitments”
means
the aggregate of the Tranche A Total Commitments and the Tranche B Total
Commitments, being $2,500,000,000 at the date of this Agreement.
“Total
Net Indebtedness of the Borrower and the Designated Finance
Subsidiaries”
has
the
meaning given to it in Clause 20.2 (Parent
Guarantor and Borrower Financial Covenants).
-13-
“Tranche”
means
Tranche A or Tranche B, as the context requires.
“Tranche
A”
means
a
$2,000,000,000 tranche of the Facility.
“Tranche
A Availability Period”
means
the period from and including the date of this Agreement to and including the
date falling 90 days after the date of this Agreement.
“Tranche
A Available Commitment”
means,
in relation to a Lender, such Lender’s Available Commitment with respect to
Tranche A.
“Tranche
A Commitment”
means:
(a)
|
in
relation to an Original Lender, the amount set opposite its name
under the
heading “Tranche A Commitment” in Part 2 of Schedule 1 (The
Original Parties)
and the amount of any other Tranche A Commitment transferred to it
under
this Agreement; and
|
(b)
|
in
relation to any other Lender, the amount of any Tranche A Commitment
transferred to it under this
Agreement,
|
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
“Tranche
A Loan”
means
a
Loan made under Tranche A or the principal amount outstanding for the time
being
of that Loan.
“Tranche
A Repayment Date”
means
the date falling on the fifth anniversary of the date of this
Agreement.
“Tranche
A Total Commitments”
means
the aggregate for the time being of the Lenders’ Tranche A Commitments, being
$2,000,000,000 at the date of this Agreement.
“Tranche
B”
means
a
$500,000,000 tranche of the Facility.
“Tranche
B Availability Period”
means
the period from and including the date of this Agreement to and including 31
December 2005.
“Tranche
B Available Commitment”
means,
in relation to a Lender, such Lender’s Available Commitment with respect to
Tranche B.
“Tranche
B Commitment”
means:
(a)
|
in
relation to an Original Lender, the amount set opposite its name
under the
heading “Tranche B Commitment” in Part 2 of Schedule 1 (The
Original Parties)
and the amount of any other Tranche B Commitment transferred to it
under
this Agreement; and
|
(b)
|
in
relation to any other Lender, the amount of any Tranche B Commitment
transferred to it under this
Agreement,
|
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
-14-
“Tranche
B Loan”
means
a
Loan made under Tranche B or the principal amount outstanding for the time
being
of that Loan.
“Tranche
B Repayment Date”
means
the date falling on the second anniversary of the date of this
Agreement.
“Tranche
B Total Commitments”
means
the aggregate for the time being of the Lenders’ Tranche B Commitments, being
$500,000,000 at the date of this Agreement.
“Transactions”
means
the execution and delivery by each Obligor of the Finance Documents to which
it
is a party, the performance by each Obligor of the Finance Documents to which
it
is a party, the borrowing of the Loans and the use and proceeds
thereof.
“Transfer
Certificate”
means
a
certificate substantially in the form set out in Schedule 5 (Form
of Transfer Certificate)
or any
other form agreed between the Agent and the Borrower.
“Transfer
Date”
means,
in relation to a transfer, the later of:
(a)
|
the
proposed Transfer Date specified in the Transfer Certificate;
and
|
(b)
|
the
date on which the Agent executes the Transfer
Certificate.
|
“Unpaid
Sum”
means
any sum due and payable but unpaid by an Obligor under the Finance
Documents.
“Utilisation”
means
a
utilisation of the Facility.
“Utilisation
Date”
means
the date of a Utilisation, being the date on which the relevant Loan is to
be
made.
“Utilisation
Request”
means
a
notice substantially in the form set out in Part 1 of Schedule 3 (Requests).
“Value”
means
with respect to a Sale and Leaseback Transaction, an amount equal to the present
value of the lease payments with respect to the term of the lease remaining
on
the date on which the amount is being determined, without regard to any renewal
or extension options contained in the lease, discounted by the weighted average
interest rate on the Securities of all series (including the effective interest
rate on any Original Issue Discount Securities) which are outstanding on the
effective date of such Sale and Leaseback Transaction and have the benefit
of
Section 1007 of the Indenture under which the Securities are
issued.
“VAT”
means
value added tax as provided for in the Value Added Tax Xxx 0000 or any
regulations promulgated thereunder or any Tax of a similar nature.
“Voting
Stock”
means,
as applied to the stock of any corporation, stock of any class or classes
(however designated) having by the terms thereof ordinary voting power to elect
a majority of the members of the board of directors (or other governing body)
of
such corporation other than stock having such power only by reason of the
happening of a contingency.
-15-
1.2 |
Construction
|
(a) |
Unless
a contrary indication appears, any reference in this Agreement
to:
|
(i) |
the
“Agent”,
an “Arranger”,
any “Finance
Party”,
any “Lender”,
any “Obligor”
or any “Party”
shall be construed so as to include its successors in title, permitted
assigns and permitted transferees;
|
(ii) |
“assets”
includes present and future properties, revenues and rights of every
description;
|
(iii) |
a
“Finance
Document”
or any other agreement or instrument is a reference to that Finance
Document or other agreement or instrument as amended or
novated;
|
(iv) |
“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;
|
(v) |
a
“regulation”
includes any regulation, rule or official directive request or guideline
(whether or not having the force of law but, if not having the force
of
law, being of a type which any person to which it applies is expected
or
required to comply) of any governmental, intergovernmental or
supranational body, agency, department or regulatory, self-regulatory
or
other similar authority or
organisation;
|
(vi) |
a
provision of law is a reference to that provision as amended or
re-enacted; and
|
(vii) |
a
time of day is a reference to London
time.
|
(b) |
Section,
Clause and Schedule headings are for ease of reference
only.
|
(c) |
Unless
a contrary indication appears, a term used in any other Finance Document
or in any notice given under or in connection with any Finance Document
has the same meaning in that Finance Document or notice as in this
Agreement.
|
(d) |
A
Default (including an Event of Default) is “continuing”
if it has not been remedied or
waived.
|
1.3 |
Third
party rights
|
(a) |
Unless
expressly provided to the contrary in a Finance Document a person
who is
not a Party has no right under the Contracts (Rights of Third Parties)
Xxx
0000 (the “Third
Parties Act”)
to enforce or to enjoy the benefit of any term of this
Agreement.
|
(b) |
Notwithstanding
any term of any Finance Document, the consent of any person who is
not a
Party is not required to rescind or vary this Agreement at any
time.
|
-16-
2. |
THE
FACILITY
|
2.1 |
The
Facility
|
Subject
to the terms of this Agreement, the Lenders make available to the Borrower
a
Dollar term loan facility divided into:
(a) |
Tranche
A which is available during the Tranche A Availability Period in
an
aggregate amount equal to the Tranche A Total Commitments;
and
|
(b) |
Tranche
B which is available during the Tranche B Availability Period in
an
aggregate amount equal to the Tranche B Total
Commitments.
|
2.2 |
Finance
Parties’ rights and
obligations
|
(a) |
The
obligations of each Finance Party under the Finance Documents are
several.
Failure by a Finance Party to perform its obligations under the Finance
Documents does not affect the obligations of any other Party under
the
Finance Documents. No Finance Party is responsible for the obligations
of
any other Finance Party under the Finance
Documents.
|
(b) |
The
rights of each Finance Party under or in connection with the Finance
Documents are separate and independent rights and any debt arising
under
the Finance Documents to a Finance Party from an Obligor shall be
a
separate and independent debt.
|
(c) |
A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance
Documents.
|
3. |
PURPOSE
|
3.1 |
Purpose
|
The
Borrower shall apply all amounts borrowed by it under the Facility towards
the
general corporate purposes of the BMS Group.
3.2 |
Monitoring
|
No
Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
4. |
CONDITIONS
OF UTILISATION
|
4.1 |
Initial
conditions precedent
|
The
Borrower may not deliver a Utilisation Request unless the Agent has received
all
of the documents and other evidence listed in Part 1 of Schedule 2 (Conditions
precedent)
in form
and substance satisfactory to the Agent acting reasonably. The Agent shall
notify the Borrower and the Lenders promptly upon being so
satisfied.
-17-
4.2 |
Further
conditions precedent
|
The
Lenders will only be obliged to comply with Clause 5.4 (Lenders’
participation)
if:
(a) |
on
the date of the Utilisation Request and on the proposed Utilisation
Date
no Default is continuing or will result from the proposed Loan;
and
|
(b) |
in
the case of any Utilisation, on the date of the Utilisation Request,
the
representations set out in Clauses 18.1 (Organisation;
Powers),
18.2 (Authorisations),
18.3 (Enforceability),
18.4 (Governmental
Approvals),
18.5(a) (Financial
Statements),
18.7 (No
filing or stamp taxes),
18.8 (Federal
Reserve Regulations),
18.9 (Use
of Proceeds),
18.10 (Taxes),
18.13 (Properties),
18.14 (Investment
and Holding Company Status),
18.15 (Ownership
and Status of Designated Finance Subsidiaries),
18.16 (Pari
Passu Ranking)
and 18.17 (Ranking
of Qualifying NL Holdco Notes)
are true in all material respects (or, in the case of a representation
which is already qualified as to materiality, it is true in all
respects).
|
4.3 |
Maximum
number of Loans
|
(a) |
The
Borrower may not deliver a Utilisation Request if as a result of
the
proposed Utilisation more than five Loans would be
outstanding.
|
(b) |
The
Borrower may not request that a Loan be divided if, as a result of
the
proposed division, more than five Loans would be
outstanding.
|
5. |
UTILISATION
|
5.1 |
Delivery
of a Utilisation Request
|
The
Borrower may utilise the Facility by delivery to the Agent of a duly completed
Utilisation Request not later than the Specified Time.
5.2 |
Completion
of a Utilisation Request
|
(a) |
Each
Utilisation Request is irrevocable and will not be regarded as having
been
duly completed unless:
|
(i) |
the
proposed Utilisation Date is a Business Day within the Availability
Period
for the Tranche under which the Utilisation is to be
made;
|
(ii) |
the
currency and amount of the Utilisation comply with Clause 5.3
(Currency
and amount);
|
(iii) |
the
proposed Utilisation is in respect of either Tranche A or Tranche
B so
that each Utilisation Request and Utilisation may only be in respect
of a
single Tranche; and
|
(iv) |
the
proposed Interest Period complies with Clause 9 (Interest
Periods).
|
(b) |
Only
one Loan may be requested in each Utilisation
Request.
|
-18-
5.3 |
Currency
and amount
|
(a) |
The
currency specified in a Utilisation Request must be
Dollars.
|
(b) |
The
amount of the proposed Loan must be an amount which is not more than
the
Available Facility and which is a minimum of $10,000,000 and an integral
multiple of $1,000,000 or, if less, the Available
Facility.
|
5.4 |
Lenders’
participation
|
(a) |
If
the conditions set out in this Agreement have been met, each Lender
shall
make its participation in each Loan available by the Utilisation
Date
through its Facility Office.
|
(b) |
The
amount of each Lender’s participation in each Loan will be equal to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to making the
Loan.
|
(c) |
The
Agent shall notify each Lender of the amount of each Loan and the
amount
of its participation in that Loan by the Specified
Time.
|
5.5 |
Cancellation
following Availability
Period
|
(a) |
At
5 p.m. on the last day of the Tranche A Availability Period, the
Tranche A
Available Commitment of each Lender shall be cancelled and reduced
to
zero.
|
(b) |
At
5 p.m. on the last day of the Tranche B Availability Period, the
Tranche B
Available Commitment of each Lender shall be cancelled and reduced
to
zero.
|
6. |
REPAYMENT
|
6.1 |
Repayment
of Loans
|
The
Borrower shall, on the relevant Repayment Date, repay:
(a) |
all
Tranche A Loans in full, together with all unpaid interest accrued
thereon; and
|
(b) |
all
Tranche B Loans in full, together with all unpaid interest accrued
thereon.
|
6.2 |
Reborrowing
|
The
Borrower may not reborrow any part of the Facility which is repaid.
7. |
PREPAYMENT
AND CANCELLATION
|
7.1 |
Illegality
|
(a) |
If
it becomes unlawful in any applicable jurisdiction for a Lender to
perform
any of its obligations as contemplated by this Agreement or to fund
or
maintain its participation in any Loan that Lender shall promptly
notify
the Agent upon becoming aware of that event. Following such notification
having been given, that Lender may require either or both of the
following:
|
-19-
(i) |
the
Tranche A Commitment and Tranche B Commitment of that Lender be
immediately cancelled; or
|
(ii) |
the
Borrower repay that Lender’s participation in the Loans on the last day of
the Interest Period for each Loan occurring after the Agent has notified
the Borrower or, if earlier, the date specified by the Lender in
the
notice delivered to the Agent (being no earlier than the last day
of any
applicable grace period permitted by
law).
|
(b) |
If
a Lender requires repayment in accordance with Clause 7.1(a)(ii)
above,
the Borrower shall elect to either:
|
(i) |
repay
that Lender’s participation in accordance with the terms set out in that
Clause; or
|
(ii) |
replace
that Lender in accordance with paragraph (b) of Clause 7.4 (Right
of repayment and cancellation in relation to a single
Lender)
on or before the date for repayment under Clause 7.1(a)(ii) in relation
to
each Loan.
|
(c) |
If
it becomes unlawful in any applicable jurisdiction for the Borrower
to
perform any of its material obligations as contemplated by this
Agreement:
|
(i) |
the
Borrower shall promptly notify the Agent upon becoming aware of that
event; and
|
(ii) |
the
Borrower shall repay each Loan made to it on the last day of the
Interest
Period for that Loan occurring after the Agent has notified the Lenders
or, if earlier, the last day of any applicable grace period permitted
by
law.
|
7.2 |
Voluntary
cancellation
|
The
Borrower may, if it gives the Agent not less than three Business Days’ (or such
shorter period as the Majority Lenders may agree) prior notice, cancel the
whole
or any part (but, if in part, being a minimum amount of $5,000,000) of the
Available Facility in respect of Tranche A or Tranche B as specified in such
notice. Any cancellation under this Clause 7.2 shall reduce the Tranche A
Commitment or Tranche B Commitment of the Lenders rateably.
7.3 |
Voluntary
prepayment of Loans
|
(a) |
The
Borrower may, if it gives the Agent not less than three Business
Days’ (or
such shorter period as the Majority Lenders may agree) prior notice,
prepay the whole or any part of any Loan (but, if in part, being
an amount
that reduces the amount of the Loan by a minimum amount of
$5,000,000).
|
(b) |
A
Loan may be prepaid before the last day of the relevant Tranche’s
Availability Period if at the same time the Commitments of the Lenders
are
cancelled in the same or a greater amount but otherwise a Loan may
only be
prepaid after the last day of the relevant Tranche’s Availability
Period.
|
-20-
7.4 |
Right
of repayment and cancellation in relation to a single
Lender
|
(a) |
If:
|
(i) |
any
sum payable or which will become payable on the next date on which
the
Borrower is obliged to pay an amount of interest pursuant to Clause
8.2
(Payment
of interest)
to any Lender by an Obligor is or will be required to be increased
under
paragraph (c) of Clause 12.2 (Tax
gross-up);
or
|
(ii) |
the
Borrower receives a notice from the Agent under Clause 12.3 (Tax
indemnity)
or Clause 13.1 (Increased
costs);
or
|
(iii) |
any
Lender notifies the Agent of its Additional Cost Rate under paragraph
3 of
Schedule 4 (Mandatory
Cost formula),
|
the
Borrower may, while (in the case of paragraph (i) above) the circumstance giving
rise to such increase continues, (in the case of paragraph (ii) above) at any
time after the receipt of the notice, or (in the case of paragraph (iii) above)
if that Additional Cost Rate is greater than zero, give the Agent notice of
cancellation of the Tranche A Commitment and Tranche B Commitment of that Lender
and its intention to procure the repayment of that Lender’s participation in the
Loans.
(b) |
The
Borrower may, in the circumstances set out in paragraph (a) above
or
pursuant to paragraph (b) of Clause 7.1 (Illegality),
replace an Existing Lender (as defined in Clause 23 (Changes
to the Lenders))
with one or more other Lenders (which need not be Existing Lenders)
which
have agreed to purchase all or part of the Commitment and Loans of
that
Existing Lender pursuant to an assignment or transfer in accordance
with
the provisions of Clause 23, on condition
that:
|
(i) |
each
assignment or transfer under this paragraph (b) shall be arranged
by the
Borrower (with such reasonable assistance from the Existing Lender
as the
Borrower may reasonably request);
and
|
(ii) |
no
Existing Lender shall be obliged to make any assignment or transfer
pursuant to this paragraph (b) unless and until it has received payment
from the New Lender (as defined in Clause 23 (Changes
to the Lenders)
or New Lenders in an aggregate amount equal to the outstanding principal
amount of the Loans owing to the Existing Lender, together with accrued
and unpaid interest and fees (including, without limitation, any
Break
Costs to the date of payment) and all other amounts payable to the
Existing Lender under this
Agreement.
|
(c) |
On
receipt of a notice from the Borrower referred to in paragraph (a)
above,
the Tranche A Commitment and Tranche B Commitment of that Lender
shall
immediately be cancelled and reduced to
zero.
|
(d) |
Unless
the Borrower has replaced an Existing Lender in accordance with paragraph
(b) above, on the last day of each Interest Period which ends
after
|
-21-
the
Borrower has given notice under paragraph (a) above (or, if earlier, the date
specified by the Borrower in that notice), the Borrower shall repay that
Lender’s participation in all outstanding Loans.
(e) |
Paragraphs
(a) and (b) do not in any way limit the obligations of any Finance
Party
under Clause 15.1 (Mitigation)
|
7.5 |
Mandatory
Prepayment
|
(a) |
The
Borrower shall prepay Loans at the times contemplated by paragraph
(b) in
an amount equal to:
|
(i) |
any
Borrowing Proceeds;
|
(ii) |
the
Prepayment Percentage of any Disposal Proceeds;
|
(iii) |
the
Prepayment Percentage of any Insurance Proceeds;
and
|
(iv) |
the
Prepayment Percentage of any Share Issue
Proceeds.
|
(b) |
A
prepayment made under paragraph (a) shall be applied in prepayment
of
Loans within ten Business Days of receipt of Borrowing Proceeds,
Disposal
Proceeds, Insurance Proceeds, or Share Issue Proceeds (as the case
may
be), except that no such prepayment shall be required with respect
to
Disposal Proceeds or Insurance Proceeds expected to be Excluded Disposal
Proceeds or Excluded Insurance Proceeds until 10 Business Days after
the
applicable 12 month period (or such longer period) referred to in
the
definition thereof. A prepayment under paragraph (a) shall prepay
the
Loans in amounts which will reduce each of the Tranche A Loans and
each of
the Tranche B Loans by the same
proportion.
|
For
the
purposes of this Clause 7.5:
“Borrowing
Proceeds”
means
the cash proceeds of any Debt other than Excluded Debt received by the Borrower
or any member of the NL Holdco Group after the Closing Date after deducting
any
reasonable expenses in relation to that Debt which are incurred by the Borrower
or such member of the NL Holdco Group.
“Disposal”
means
a
sale, lease, licence, transfer, loan or other disposal by the Borrower or any
member of the NL Holdco Group of any Material Assets to any Person other than
a
member of the NL Holdco Group (whether by a voluntary or involuntary single
transaction or series of transactions) but excluding sales in the ordinary
course of the business.
“Disposal
Proceeds”
means
the cash consideration in excess of the Prepayment Threshold received by the
Borrower or any member of the NL Holdco Group for any Disposal except for
Excluded Disposal Proceeds and after deducting:
(a)
|
reasonable
expenses incurred by the Borrower or the relevant member of the NL
Holdco
Group with respect to that Disposal;
and
|
-22-
(b)
|
any
Tax incurred and required to be paid by the seller in connection
with that
Disposal (as reasonably determined by the seller, on the basis of
existing
rates and taking account of any available credit, deduction or
allowance).
|
“Excluded
Debt”
means
Debt:
(a)
|
incurred
under the Facility;
|
(b)
|
owed
to any member of the BMS Group; or
|
(c)
|
not
otherwise prohibited by the
Facility.
|
“Excluded
Disposal Proceeds”
means
any consideration received for any Disposal which is applied or is committed
to
be so applied within 12 months of the date of receipt of such consideration
to
replace the asset disposed of or invest in the purchase of assets to be used
by
the NL Holdco Group.
“Excluded
Insurance Proceeds”
means
any proceeds of an insurance claim which are applied:
(a) to
meet a
third party claim; or
(b) to
the
replacement, reinstatement and/or repair of the asset in respect of which the
relevant insurance claim was made,
within
12
months of the date of receipt by the Borrower or any member of the NL Holdco
Group of such Excluded Insurance Proceeds, or such longer period as the Majority
Lenders may agree.
“Insurance
Proceeds”
means
the cash proceeds in excess of the Prepayment Threshold of any insurance claim
in relation to a Material Asset received by the Borrower or any member of the
NL
Holdco Group except for Excluded Insurance Proceeds and after deducting any
reasonable expenses in relation to that claim which are incurred by the Borrower
or the relevant member of the NL Holdco Group.
“Prepayment
Percentage”
means
fifty per cent.
“Prepayment
Threshold”
means
$1,000,000,000.
“Share
Issue”
means
an issue of ordinary shares by the Borrower or the Primary Guarantor (when
making a Share Issue, each being an “Issuer”),
paid
for in full cash upon issue and which by their terms are not redeemable and
where such shares are of the same class and on the same terms as those initially
issued by the Issuer but excluding shares issued to any member of the BMS
Group.
“Share
Issue Proceeds”
means
the cash consideration in excess of the Prepayment Threshold received by an
Issuer for any Share Issue after deducting:
(a)
|
reasonable
expenses incurred by the Issuer with respect to that Share Issue;
and
|
-23-
(b)
|
any
Tax incurred and required to be paid by the Issuer in connection
with that
Share Issue (as reasonably determined by the Issuer, on the basis
of
existing rates and taking account of any available credit, deduction
or
allowance).
|
7.6 |
Restrictions
|
(a) |
Any
notice of cancellation or prepayment given by any Party under this
Clause 7 (Prepayment
and Cancellation)
shall be irrevocable and, unless a contrary indication appears in
this
Agreement, shall specify the date or dates upon which the relevant
cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
|
(b) |
Any
prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty.
|
(c) |
The
Borrower may not reborrow any part of the Facility which is
prepaid.
|
(d) |
The
Borrower shall not repay or prepay all or any part of the Loans or
cancel
all or any part of the Commitments except at the times and in the
manner
expressly provided for in this
Agreement.
|
(e) |
No
amount of the Total Commitments cancelled under this Agreement may
be
subsequently reinstated.
|
(f) |
If
the Agent receives a notice under this Clause 7 (Prepayment
and Cancellation)
it shall promptly forward a copy of that notice to either the Borrower
or
the affected Lender, as
appropriate.
|
8. |
INTEREST
|
8.1 |
Calculation
of interest
|
The
rate
of interest on each Loan for each Interest Period is the percentage rate per
annum which is the aggregate of the applicable:
(a) |
Margin;
|
(b) |
LIBOR;
and
|
(c) |
Mandatory
Cost, if any.
|
8.2 |
Payment
of interest
|
The
Borrower shall pay accrued interest on each Loan on the last day of each
Interest Period (and, if the Interest Period is longer than six Months, on
the
dates falling at six monthly intervals after the first day of the Interest
Period).
8.3 |
Default
interest
|
(a) |
If
an Obligor fails to pay any amount payable by it under a Finance
Document
on its due date, interest shall accrue on the overdue amount from
the due
date
|
-24-
up
to the
date of actual payment (both before and after judgment) at a rate which, subject
to paragraph (b) below, is 1 per cent. higher than the rate which would have
been payable if the overdue amount had, during the period of non-payment,
constituted a Loan in the currency of the overdue amount for successive Interest
Periods, each of a duration selected by the Agent (acting reasonably). Any
interest accruing under this Clause 8.3 shall be immediately payable by the
Obligor on demand by the Agent.
(b) |
If
any overdue amount consists of all or part of a Loan which became
due on a
day which was not the last day of an Interest Period relating to
that
Loan:
|
(i) |
the
first Interest Period for that overdue amount shall have a duration
equal
to the unexpired portion of the current Interest Period relating
to that
Loan; and
|
(ii) |
the
rate of interest applying to the overdue amount during that first
Interest
Period shall be 1 per cent. higher than the rate which would have
applied
if the overdue amount had not become
due.
|
(c) |
Default
interest (if unpaid) arising on an overdue amount will be compounded
with
the overdue amount at the end of each Interest Period applicable
to that
overdue amount but will remain immediately due and
payable.
|
8.4 |
Notification
of rates of interest
|
The
Agent
shall promptly notify the Lenders and the Borrower of the determination of
a
rate of interest under this Agreement.
9. |
INTEREST
PERIODS
|
9.1 |
Selection
of Interest Periods
|
(a) |
The
Borrower may select an Interest Period for a Loan in the Utilisation
Request for that Loan or (if the Loan has already been borrowed)
in a
Selection Notice.
|
(b) |
Each
Selection Notice for a Loan is irrevocable and must be delivered
to the
Agent by the Borrower not later than the Specified
Time.
|
(c) |
If
the Borrower fails to deliver a Selection Notice to the Agent in
accordance with paragraph (b) above, the relevant Interest Period
will be
one Month.
|
(d) |
Subject
to this Clause 9, the Borrower may select an Interest Period of 1,
2, 3 or
6 Months or any other period agreed between the Borrower and the
Agent
(acting on the instructions of all the Lenders).
|
(e) |
An
Interest Period for a Tranche A Loan shall not extend beyond the
Tranche A
Repayment Date and an Interest Period for a Tranche B Loan shall
not
extend beyond the Tranche B Repayment
Date.
|
(f) |
Each
Interest Period for a Loan shall start on the Utilisation Date or
(if
already made) on the last day of its preceding Interest
Period.
|
-25-
9.2 |
Non-Business
Days
|
If
an
Interest Period would otherwise end on a day which is not a Business Day, that
Interest Period will instead end on the next Business Day in that calendar
month
(if there is one) or the preceding Business Day (if there is not).
9.3 |
Consolidation
and division of Loans
|
(a) |
Subject
to paragraph (b) below, if two or more Interest
Periods:
|
(i) |
relate
to Loans made under the same Tranche;
and
|
(ii) |
end
on the same date;
|
those
Loans will, unless the Borrower specifies to the contrary in the Selection
Notice for the next Interest Period, be consolidated into, and treated as,
a
single Loan on the last day of the Interest Period.
(b) |
Subject
to Clause 4.3 (Maximum
number of Loans)
and Clause 5.3 (Currency
and amount),
if the Borrower requests in a Selection Notice that a Loan be divided
into
two or more Loans, that Loan will, on the last day of its Interest
Period,
be so divided into the amounts specified in that Selection Notice,
being
an aggregate amount equal to the amount of the Loan immediately before
its
division.
|
10. |
CHANGES
TO THE CALCULATION OF
INTEREST
|
10.1 |
Absence
of quotations
|
Subject
to Clause 10.2 (Market
disruption),
if
LIBOR is to be determined by reference to the Reference Banks but a Reference
Bank does not supply a quotation by the Specified Time on the Quotation Day,
the
applicable LIBOR shall be determined on the basis of the quotations of the
remaining Reference Banks.
10.2 |
Market
disruption
|
(a) |
If
a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then the rate of interest on each Affected Lender’s share of that
Loan for the Interest Period shall be the rate per annum which is
the sum
of:
|
(i) |
the
Margin;
|
(ii) |
the
rate notified to the Agent by that Affected Lender as soon as practicable
and in any event before interest is due to be paid in respect of
that
Interest Period, to be that which expresses as a percentage rate
per annum
the cost to that Affected Lender of funding its participation in
that Loan
from whatever source it may reasonably select;
and
|
(iii) |
the
Mandatory Cost, if any, applicable to that Affected Lender’s participation
in the Loan.
|
-26-
(b) |
In
this Agreement “Market
Disruption Event”
means:
|
(i) |
at
or about noon on the Quotation Day for the relevant Interest Period
the
Screen Rate is not available and none or only one of the Reference
Banks
supplies a rate to the Agent to determine LIBOR for Dollars for the
relevant Interest Period; or
|
(ii) |
before
close of business in London on the Quotation Day for the relevant
Interest
Period, the Agent receives notifications from a Lender or Lenders
(whose
participations in a Loan exceed 50 per cent. of that Loan) that the
cost
to it or them of obtaining matching deposits in the Relevant Interbank
Market would be in excess of LIBOR.
|
(c) |
In
this Agreement “Affected
Lender”
means:
|
(i) |
in
relation to a Market Disruption Event in paragraph (b)(i) above,
all the
Lenders; and
|
(ii) |
in
relation to a Market Disruption Event in paragraph (b)(ii) above,
those
Lenders which notify the Agent under that
paragraph.
|
10.3 |
Alternative
basis of interest or
funding
|
(a) |
If
a Market Disruption Event occurs and the Agent or the Borrower so
requires, the Agent and the Borrower shall enter into negotiations
(for a
period of not more than thirty days) with a view to agreeing a substitute
basis for determining the rate of
interest.
|
(b) |
Any
alternative basis agreed pursuant to paragraph (a) above shall, with
the
prior consent of all the Lenders and the Borrower, be binding on
all
Parties.
|
10.4 |
Break
Costs
|
(a) |
The
Borrower shall, within five Business Days of demand by a Finance
Party,
pay to that Finance Party its Break Costs attributable to all or
any part
of a Loan or Unpaid Sum being paid by the Borrower on a day other
than the
last day of an Interest Period for that Loan or Unpaid
Sum.
|
(b) |
Each
Lender shall, as soon as reasonably practicable after a demand by
the
Agent, provide a certificate confirming the amount of its Break Costs
for
any Interest Period in which they accrue and showing their
calculation.
|
11. |
FEES
|
11.1 |
Commitment
fee
|
(a) |
No
Commitment fee shall be payable in relation to Tranche A and no Commitment
fee shall be payable in relation to Tranche B during the Tranche
A
Availability Period.
|
(b) |
The
Borrower shall pay to the Agent (for the account of each Lender)
a fee in
relation to the Tranche B Commitments for the period commencing after
the
|
-27-
end
of
the Tranche A Availability Period until the expiry of the Tranche B Availability
Period, at a rate equal to 35% of the applicable Margin on that Lender’s
Available Commitment under Tranche B.
(c) |
The
accrued Commitment fee is payable in arrear on the last day of each
successive period of three Months which ends during the Tranche B
Availability Period, on the last day of the Tranche B Availability
Period
and, if a Lender’s Tranche B Commitment is cancelled in full, on the
amount of that cancelled Commitment at the time the cancellation
is
effective.
|
11.2 |
Agency
fee
|
The
Borrower shall pay to the Agent (for its own account) an agency fee in the
amount and at the times agreed in a Fee Letter.
11.3 |
Other
Fees
|
The
Borrower shall pay to the Agent all other fees in an amount and at the times
agreed in a Fee Letter.
12. |
TAX
GROSS UP AND INDEMNITIES
|
12.1 |
Tax
Definitions
|
(a) |
In
this Agreement:
|
“Protected
Party”
means
a
Finance Party which is or will be subject to any liability, or required to
make
any payment, for or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.
“Tax
Credit”
means
a
credit against, relief or remission for, or repayment of any Tax.
“Tax
Deduction”
means
a
deduction or withholding for or on account of Tax from a payment under a Finance
Document.
“Tax
Payment”
means
either the increase in a payment made by an Obligor to a Finance Party under
Clause 12.2 (Tax
gross-up)
or a
payment under Clause 12.3 (Tax
indemnity).
(b) |
Unless
a contrary indication appears, in this Clause 12 a reference to
“determines”
or “determined”
means a determination made in the absolute discretion of the Person
making
the determination (acting in good
faith).
|
12.2 |
Tax
gross-up
|
(a) |
Each
Obligor shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by
law.
|
(b) |
The
Borrower shall promptly upon becoming aware that the Borrower (or
other
Obligor, as appropriate) must make a Tax Deduction (or that there
is any
|
-28-
change
in
the rate or the basis of a Tax Deduction) notify the Agent accordingly.
Similarly, a Lender shall promptly notify the Agent on becoming so aware in
respect of a payment payable to that Lender. If the Agent receives such
notification from a Lender it shall promptly notify the Borrower and that
Obligor.
(c) |
If
a Tax Deduction is required by law to be made by an Obligor, the
amount of
the payment due from that Obligor shall be increased to an amount
which
(after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been required,
provided,
however, that the amount of the payment due from that Obligor shall
not be
increased to the extent that a Tax Deduction is attributable to any
Finance Party’s failure to comply with Clause
12.2(f).
|
(d) |
If
an Obligor is required to make a Tax Deduction, that Obligor shall
make
that Tax Deduction and any payment required in connection with that
Tax
Deduction within the time allowed and in the minimum amount required
by
law.
|
(e) |
Within
thirty days of making any payment required in connection with a Tax
Deduction, the Obligor making that Tax Deduction shall deliver to
the
Agent for the Finance Party entitled to the payment, the original,
a
duplicate original, or a duly certified copy of the receipts evidencing
such payment or, if the practice of the relevant taxing authority
is not
to supply such receipts, evidence reasonably satisfactory to that
Finance
Party that any appropriate payment has been paid to the relevant
taxing
authority.
|
(f) |
Any
Finance Party that is entitled to an exemption from or reduction
of
withholding tax under the law of the jurisdiction in which the Borrower
(or other Obligor, as appropriate) is located, or any treaty to which
such
jurisdiction is a party, with respect to payments under a Finance
Document
shall deliver to the Borrower (or other Obligor, as appropriate)
(with a
copy to the Agent), at the time or times prescribed by applicable
law,
such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Obligor as will permit
such
payments to be made without withholding or at a reduced rate, provided
that such Finance Party is legally entitled to complete, execute
and
deliver such documentation and in such Finance Party’s reasonable
judgement such completion, execution or submission would not materially
prejudice the legal position of such Finance
Party.
|
12.3 |
Tax
indemnity
|
(a) |
The
Borrower shall (within five Business Days of written demand by the
Agent,
which written demand shall be made within 60 days of the date that
such
Protected Party determines it has suffered a loss, liability or cost
the
subject of this Clause) pay to a Protected Party an amount equal
to the
loss, liability or cost which that Protected Party determines has
been
(directly or indirectly) suffered for or on account of Tax by that
Protected Party in respect of a Finance
Document.
|
-29-
(b) |
Any
Protected Party making a claim under paragraph (a) above shall provide
documentation satisfactory to the Borrower (or other Obligor, as
appropriate), at the same time as the demand for Payment made by
the
Agent, acting reasonably, of such loss, liability or cost suffered,
provided, however, that no Protected Party shall be required to make
available any of its Tax returns (or any other information that it
deems
to be confidential or proprietary).
|
(c) |
Paragraph
(a) above shall not apply:
|
(i) |
with
respect to any Tax assessed on a Finance
Party:
|
(A) |
under
the law of the jurisdiction in which that Finance Party is incorporated
or, if different, the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax purposes; or
|
(B) |
under
the law of the jurisdiction in which that Finance Party’s Facility Office
is located in respect of amounts received or receivable in that
jurisdiction,
|
if
that
Tax is imposed on or calculated by reference to the net income received or
receivable (or deemed to be received or receivable) by that Finance Party;
or
(ii) |
with
respect to any Tax assessed on a Finance Party that is attributable
to
such Finance Party’s failure to comply with Clause 12.2(f);
or
|
(iii) |
with
respect to a loss, liability or cost to the extent that it is compensated
for by an increased payment under Clause 12.2 (Tax
gross-up)
or would be compensated but for a specific exclusion in that
Clause.
|
(d) |
A
Protected Party making, or intending to make a claim under paragraph
(a)
above shall promptly notify the Agent of the event which will give,
or has
given, rise to the claim, following which the Agent shall notify
the
Borrower.
|
(e) |
A
Protected Party shall, on receiving a payment from an Obligor under
this
Clause 12.3, notify the Agent.
|
12.4 |
Tax
Credit
|
If
an
Obligor makes a Tax Payment and the relevant Finance Party determines that:
(a) |
a
Tax Credit is attributable either to an increased payment of which
that
Tax Payment forms part, or to that Tax Payment; and
|
(b) |
that
Finance Party has obtained, utilised and retained that Tax Credit
in whole
or in part,
|
the
Finance Party shall pay an amount to the Obligor which that Finance Party
determines will leave it (after that payment) in the same after-Tax position
as
it would have been in had the Tax Payment, or the part of the Tax Payment
referable to that
-30-
part
of
the Tax Credit which has been obtained, utilised and retained by the Finance
Party (as the case may be), not been required to be made by the Obligor.
12.5 |
Stamp
taxes
|
The
Borrower shall within five Business Days of demand, pay and indemnify each
Finance Party against any cost, loss or liability that such Finance Party incurs
in the jurisdiction in which an Obligor is incorporated, organised, managed
and
controlled or considered to have its seat or otherwise has a connection (other
than a connection as a result of entering into this Agreement, performing any
obligations hereunder, receiving any payments hereunder or enforcing any rights
hereunder) in relation to all stamp duty, registration and other similar Taxes
payable in respect of any Finance Document in that jurisdiction other than
in
respect of an assignment, transfer, sub-participation or change in Facility
Office (other than pursuant to Clause 15.1 (Mitigation))
by a
Lender.
12.6 |
VAT
|
(a) |
All
amounts set out, or expressed to be payable under a Finance Document
by
any Party to a Finance Party which (in whole or in part) constitute
the
consideration for VAT purposes shall be deemed to be exclusive of
any
amount in respect of any applicable VAT which is chargeable on such
supply, and accordingly, subject to paragraph (c) below, if VAT is
chargeable on any supply made by any Finance Party to any Party under
a
Finance Document, that Party shall pay to the Finance Party (in addition
to and at the same time as paying the consideration) an amount equal
to
the amount of the VAT (and such Finance Party shall promptly provide
an
appropriate VAT invoice to such
Party).
|
(b) |
If
VAT is chargeable on any supply made by any Finance Party (the
“Supplier”)
to any other Finance Party (the “Recipient”)
under a Finance Document, and any Party (the “Relevant
Party”)
is required by the terms of any Finance Document to pay an amount
equal to
the consideration for such supply to the Supplier (rather than being
required to reimburse the Recipient in respect of that consideration),
such Party shall also pay to the Supplier (in addition to and at
the same
time as paying such amount) an amount equal to the amount of such
VAT. The
Recipient will promptly pay to the Relevant Party an amount equal
to any
credit or repayment from the relevant tax authority which it reasonably
determines relates to the VAT chargeable on that
supply.
|
(c) |
Where
a Finance Document requires any Party to reimburse a Finance Party
for any
costs or expenses, that Party shall also at the same time pay and
indemnify the Finance Party against all amounts in respect of VAT
incurred
by the Finance Party in respect of the costs or expenses to the extent
that the Finance Party reasonably determines that neither it nor
any other
member of the group of which it is a member for VAT purposes is entitled
to credit or repayment from the relevant tax authority in respect
of the
VAT.
|
-31-
13. |
INCREASED
COSTS
|
13.1 |
Increased
costs
|
(a) Subject
to Clause 13.3 (Exceptions)
the
Borrower shall, within ten Business Days of a demand by the Agent, pay for
the
account of a Finance Party the amount of any Increased Costs incurred by
that
Finance Party or any of its Affiliates as a result of (i) the introduction
of or any change in (or in the interpretation, administration or application
by
any government body or regulatory authority of) any law or regulation or
(ii) compliance with any law or regulation made after the date of this
Agreement (in each case, whether or not having the force of law but, if not,
being of a type with which that Finance Party or Affiliate is expected or
required to comply).
(b) In
this
Agreement “Increased
Costs”
means:
(i) a
reduction in the rate of return from the Facility or on a Finance Party’s (or
its Affiliate’s) overall capital;
(ii) an
additional or increased cost; or
(iii) a
reduction of any amount due and payable under any Finance
Document,
which
is
(a) material and (b) incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance Party having
entered into its Commitment or funding or performing its obligations under
any
Finance Document.
13.2 |
Increased
cost claims
|
(a) A
Finance
Party may not make a claim pursuant to Clause 13.1 (Increased
costs)
unless
it has within sixty days notified the Agent of the event giving rise to the
claim, following which the Agent shall promptly notify the Borrower of any
such
notification from a Finance Party.
(b) Each
Finance Party shall provide a certificate confirming the amount of its Increased
Costs and setting out the calculation of the amount in reasonable
detail.
13.3 |
Exceptions
|
(a) Clause
13.1 (Increased
costs)
does
not apply to the extent any Increased Cost is:
(i) attributable
to a Tax Deduction required by law to be made by an Obligor;
(ii) attributable
to a Market Disruption Event;
(iii) the
subject of a claim under Clause 12.3 (Tax
indemnity) (or
would
have been the subject of a claim under Clause 12.3 (Tax
indemnity)
but
-32-
for any of the exclusions in paragraph (b) of Clause 12.3 (Tax
indemnity));
(iv) any
of
the types of cost dealt with by Schedule 4 (Mandatory
Cost formula);
(v) attributable
to the non-compliance by the relevant Finance Party or any of its Affiliates
with any law or regulation; or
(vi) attributable
to the application of or compliance with the International Covergence of
Capital
Measurement Standards published by the Basel Committee on Banking Supervision
in
June 2004, as such implementation or transposition is envisaged to take place
as
at the date of this Agreement (“Basel
II”),
or
any implementation or transposition thereof, whether by an EC Directive or
the
FSA Integrated Prudential Sourcebook or other law or regulation, including
(without limitation) any Increased Cost attributable to Pillar 2 (The
Supervisory Review Process) of Basel II or to any change by a Finance Party
from
one method of calculating capital adequacy to another.
(b) In
this
Clause 13.3, a reference to a “Market
Disruption Event”
has
the
same meaning given to the term in Clause 10.2 (Market
Disruption)
and a
reference to a “Tax
Deduction”
has
the
same meaning given to the term in Clause 12.1 (Tax Definitions).
14. |
OTHER
INDEMNITIES
|
14.1 |
Indemnity
to each Finance Party
|
(a) The
Parent Guarantor agrees to indemnify the Agent, each Lender, each of their
Affiliates and the directors, officers, employees and agents of the foregoing
(each such Person being called an “Indemnitee”)
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees
and
expenses, incurred by or asserted against any Indemnitee arising out
of:
(i) the
Transactions; or
(ii) any
claim, litigation, investigation or proceeding relating to the Transactions,
whether or not any Indemnitee is a party thereto; provided that:
(A) such
indemnity shall not, as to any Indemnitee, be available to the extent that
such
losses, claims, damages, liabilities or related expenses resulted from the
gross
negligence or wilful misconduct of such Indemnitee; and
(B) such
indemnity shall not apply to losses, claims, damages, liabilities or related
expenses that result from disputes solely between Lenders.
-33-
(b) The
provisions of this Clause 14 shall remain operative and in full force and
effect
regardless of the expiration of the term of this Agreement, the consummation
of
the transactions contemplated hereby, the repayment of any of the Loans,
the
invalidity or unenforceability of any term or provision of this Agreement
or any
investigation made by or on behalf of any Agent or any Lender. All amounts
due
under this Clause 14 shall be payable on written demand
therefor.
14.2 |
Currency
Indemnity
|
(a) If,
for
the purpose of obtaining judgment in any court, it is necessary to convert
a sum
owing hereunder in one currency into another currency, each party hereto
agrees,
to the fullest extent that it may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures
in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The
obligations of any Obligor in respect of any sum due to any Finance Party
shall,
notwithstanding any judgment in a currency (the “Judgment
Currency”),
other
than the currency in which such sum is stated to be due hereunder (the
“Agreement
Currency”),
be
discharged only to the extent that, on the Business Day following receipt
by the
Finance Party of any sum adjudged to be so due in the Judgment Currency,
the
Finance Party may in accordance with normal banking procedures in the relevant
jurisdiction purchase the Agreement Currency with the Judgment Currency,
if the
amount of the Agreement Currency so purchased is less than the sum originally
due to the Finance Party in the Agreement Currency, such Obligor agrees,
as a
separate obligation and notwithstanding any such judgment, to indemnify the
Finance Party against such loss. The obligations of the Obligors contained
in
this Clause 14.2 shall survive the termination of this Agreement and the
payment
of all other amounts owing hereunder.
14.3 |
Indemnity
to the Agent
|
The
Parent Guarantor shall within five Business Days of demand indemnify the Agent
against any cost, loss or liability incurred by the Agent (acting reasonably)
as
a result of:
(a) investigating
any event which it reasonably believes is a Default; or
(b) acting
or
relying on any notice, request or instruction which it reasonably believes
to be
genuine, correct and appropriately authorised by an Obligor.
15. |
MITIGATION
BY THE LENDERS
|
15.1 |
Mitigation
|
(a) Each
Finance Party shall, in consultation with the Borrower, take all reasonable
steps to mitigate any circumstances which arise and which would result in
any
amount becoming payable under or pursuant to, or cancelled
-34-
pursuant
to, any of Clause 7.1 (Illegality), Clause
12
(Tax
gross-up and indemnities),
Clause
13 (Increased
costs)
or
Schedule 4 (Mandatory
Cost formula)
including (but not limited to) transferring its rights and obligations under
the
Finance Documents to another Affiliate or Facility Office.
(b) Paragraph
(a) above does not in any way limit the obligations of any Obligor under
the
Finance Documents.
(c)
Each
Finance Party shall notify the Agent promptly upon becoming aware that any
circumstances of the kind described in paragraph (a) above has arisen or
may
arise. The Agent shall notify the Borrower promptly of any such notification
from a Finance Party.
15.2 |
Limitation
of liability
|
(a) The
Borrower shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it
under
Clause 15.1 (Mitigation).
(b) A
Finance
Party is not obliged to take any steps under Clause 15.1 (Mitigation)
if, in
the opinion of that Finance Party (acting reasonably), to do so would be
disadvantageous to it, provided that the incurring of any costs and expenses
by
a Finance Party as a result of any steps taken by it under Clause 15.1
(Mitigation)
shall
not be disadvantageous to such Finance Party for the purposes of this Clause
15.2(b).
16. |
COSTS
AND EXPENSES
|
16.1 |
Transaction
expenses, amendment and enforcement
costs
|
The
Parent Guarantor agrees to pay all reasonable out-of-pocket expenses incurred
by
the Arrangers or the Agent in connection with the entering into of the Finance
Documents or in connection with any amendments, modifications or waivers of
the
provisions of the Finance Documents (including the reasonable fees,
disbursements and other charges of a single counsel), or incurred by any of
the
Finance Parties in connection with the enforcement of their rights in connection
with the Finance Documents or in connection with the Loans made thereunder,
including the fees and disbursements of counsel to the Agent and, in the case
of
enforcement, each Finance Party.
17. |
GUARANTEE
AND INDEMNITY
|
17.1 |
Guarantee
and indemnity
|
Each
Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees
to each Finance Party punctual performance by the Borrower of all of its
obligations under the Finance Documents;
(b) undertakes
with each Finance Party that whenever the Borrower does not pay any amount
when
due under or in connection with any Finance Document,
-35-
that
Guarantor shall within three Business Days of demand pay that amount as if
it
was the principal obligor; and
(c) indemnifies
each Finance Party within three Business Days of demand against any cost,
loss
or liability suffered by that Finance Party if any obligation guaranteed
by it
is or becomes unenforceable, invalid or illegal. The amount of the cost,
loss or
liability shall be equal to the amount which that Finance Party would otherwise
have been entitled to recover.
17.2 |
Continuing
guarantee
|
This
guarantee is a continuing guarantee and will extend to the ultimate balance
of
sums payable by any Obligor under the Finance Documents, regardless of any
intermediate payment or discharge in whole or in part.
17.3 |
Reinstatement
|
If
any
payment by an Obligor or any discharge given by a Finance Party (whether in
respect of the obligations of any Obligor or any security for those obligations
or otherwise) is avoided or reduced as a result of insolvency or any similar
event:
(a) the
liability of each Obligor shall continue as if the payment, discharge, avoidance
or reduction had not occurred; and
(b) each
Finance Party shall be entitled to recover the value or amount of that security
or payment from each Obligor, as if the payment, discharge, avoidance or
reduction had not occurred.
17.4 |
Waiver
of defences
|
The
obligations of each Guarantor under this Clause 17 (Guarantee
and Indemnity)
will
not be affected by an act, omission, matter or thing which, but for this Clause,
would reduce, release or prejudice any of its obligations under this Clause
17
(without limitation and whether or not known to it or any Finance Party)
including:
(a) any
time,
waiver or consent granted to, or composition with, any Obligor or other
Person;
(b) the
release of any other Obligor or any other Person under the terms of any
composition or arrangement with any creditor of any member of the BMS
Group;
(c) the
taking, variation, compromise, exchange, renewal or release of, or refusal
or
neglect to perfect, take up or enforce, any rights against, or security over
assets of, any Obligor or other Person or any non-presentation or non-observance
of any formality or other requirement in respect of any instrument or any
failure to realise the full value of any security;
(d)
any
incapacity or lack of power, authority or legal personality of or dissolution
or
change in the members or status of an Obligor or any other
Person;
-36-
(e) any
amendment (however fundamental) or replacement of a Finance Document or any
other document or security;
(f) any
unenforceability, illegality or invalidity of any obligation of any Person
under
any Finance Document or any other document or security; or
(g) any
insolvency or similar proceedings.
17.5 |
Immediate
recourse
|
Each
Guarantor waives any right it may have of first requiring any Finance Party
(or
any trustee or agent on its behalf) to proceed against or enforce any other
rights or security or claim payment from any Person before claiming from that
Guarantor under this Clause 17 (Guarantee
and Indemnity).
This
waiver applies irrespective of any law or any provision of a Finance Document
to
the contrary.
17.6 |
Appropriations
|
Until
all
amounts which may be or become payable by the Obligors under or in connection
with the Finance Documents have been irrevocably paid in full, each Finance
Party (or any trustee or agent on its behalf) may:
(a) refrain
from applying or enforcing any other moneys, security or rights held or received
by that Finance Party (or any trustee or agent on its behalf) in respect
of
those amounts, or apply and enforce the same in such manner and order as
it sees
fit (whether against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and
(b) hold
in
an interest-bearing suspense account any moneys received from any Guarantor
or
on account of any Guarantor’s liability under this Clause 17 (Guarantee
and Indemnity).
17.7 |
Deferral
of Guarantors’ rights
|
Whilst
any amounts remain outstanding under or in connection with the Finance Documents
and unless the Agent otherwise directs, no Guarantor will exercise any rights
which it may have by reason of performance by it of its obligations under the
Finance Documents:
(a) to
be
indemnified by an Obligor;
(b) to
claim
any contribution from any other guarantor of any Obligor’s obligations under the
Finance Documents; and/or
(c) to
take
the benefit (in whole or in part and whether by way of subrogation or otherwise)
of any rights of the Finance Parties under the Finance Documents or of any
other
guarantee or security taken pursuant to, or in connection with, the Finance
Documents by any Finance Party.
-37-
17.8 |
Release
of Guarantors’ right of
contribution
|
If
any
Guarantor (a “Retiring
Guarantor”)
ceases
to be a Guarantor in accordance with the terms of the Finance Documents then
on
the date such Retiring Guarantor ceases to be a Guarantor:
(a) that
Retiring Guarantor is released by each other Guarantor from any liability
(whether past, present or future and whether actual or contingent) to make
a
contribution to any other Guarantor arising by reason of the performance
by any
other Guarantor of its obligations under the Finance Documents; and
(b) each
other Guarantor waives any rights it may have by reason of the performance
of
its obligations under the Finance Documents to take the benefit (in whole
or in
part and whether by way of subrogation or otherwise) of any rights of the
Finance Parties under any Finance Document or of any other security taken
pursuant to, or in connection with, any Finance Document where such rights
or
security are granted by or in relation to the assets of the Retiring
Guarantor.
17.9 |
Additional
security
|
This
guarantee is in addition to and is not in any way prejudiced by any other
guarantee or security now or subsequently held by any Finance Party.
17.10 |
Limitation
on Dutch Guarantors
|
The
obligations of any Guarantor incorporated in the Netherlands under this
Agreement shall exclude and shall not be or be construed as any guarantee,
indemnity or security, to the extent that this would be deemed “ultra
xxxxx”
within
the meaning of Section 2.7 of the Dutch Civil Code.
17.11 |
Limitation
on Luxembourg Guarantors
|
The
liabilities of each Guarantor incorporated in Luxembourg (a "Luxembourg
Guarantor"), under this Clause 17 shall be limited, at any time, to a maximum
aggregate amount equal to (i) the market value of the assets of such Luxembourg
Guarantor at the moment when the guarantee created pursuant to this Clause
17 is
enforced, determined in accordance with the accounting principles generally
accepted in Luxembourg and having regard to the status of the Luxembourg
Guarantor as a group company, whose assets are assets forming part of the BMS
Group, by a Luxembourg réviseur
d'entreprises appointed
by the president of the Institut
Luxembourgeois des Réviseurs d'Entreprises upon
request by the Agent less (ii) all liabilities incurred from time to time,
by
such Luxembourg Guarantor as reflected from time to time in the books of such
Luxembourg Guarantor (but for the avoidance of doubt excluding the liability
of
such Luxembourg Guarantor under this Agreement). No Luxembourg Guarantor shall
secure liabilities pursuant to this Agreement which would result in such
Luxembourg Guarantor not complying with Luxembourg financial assistance
regulations as set forth in Luxembourg corporate law.
-38-
18. |
REPRESENTATIONS
|
Each
Obligor (except where certain Obligors are specified, in which case, each
specified Obligor) makes the representations and warranties set out in this
Clause 18 to each Finance Party on the date of this Agreement.
18.1 |
Organisation;
Powers
|
(a) It
is a
corporation duly organised, validly existing and in good standing under the
laws
of the jurisdiction of its organisation.
(b) It
has
all requisite power and authority to own its property and assets and to carry
on
its business as now conducted and as proposed to be conducted.
(c) It
is
qualified to do business in every jurisdiction where such qualification is
required, except where the failure so to qualify would not result in a Material
Adverse Effect in relation to the BMS Group.
(d) It
has
the corporate power and authority to execute and deliver this Agreement and
any
Finance Documents to which it is a party, to perform its obligations under
this
Agreement and (in relation to the Borrower) to borrow
hereunder.
18.2 |
Authorisations
|
The
Transactions:
(a) are
within its corporate powers and have been duly authorized by all requisite
corporate action; and
(b) will
not:
(i) violate:
(A) any
provision of any law, statute, rule or regulation (including, without
limitation, the Margin Regulations);
(B) any
provision of its certificate of incorporation or other constitutive documents
or
by-laws;
(C) any
order
of any Governmental Authority; or
(D) any
provision of any indenture, agreement or other instrument to which it is
a party
or by which it or any of its property is or may be bound,
(ii) be
in
conflict with, result in a breach of or constitute (alone or with notice
or
lapse of time or both) a default under any such indenture, agreement or other
instrument referred to in Clause 18.2(b)(i)(D), or
(iii) result
in
the creation or imposition of any Lien over any of its property or assets,
-39-
other
than, in the case of paragraphs (i)(A), (i)(C), (i)(D), (ii) and (iii), any
such
violations, conflicts, breaches, defaults or Liens that, individually or in
the
aggregate, would not have a Material Adverse Effect in relation to the BMS
Group.
18.3 |
Enforceability
|
Each
Finance Document constitutes or, when executed and delivered, will constitute
a
legal, valid and binding obligation of each Obligor party thereto, enforceable
in accordance with its terms (subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganisation, moratorium or other similar laws
affecting creditors’ rights generally and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding at
law
or in equity)).
18.4 |
Governmental
Approvals
|
(a) No
action, consent or approval of, registration or filing with or other action
by
any Governmental Authority located in Bermuda, Luxembourg, the Netherlands,
the
United Kingdom, or the United States of America is required in connection
with
the Transactions (other than those that have been obtained or
made).
(b) No
action, consent or approval of, registration or filing with or other action
by
any Governmental Authority (other than those referred to in paragraph (a))
is
required in connection with the Transactions other than such action, consent,
approval of registration or filing with or other action the absence of which
would not have a Material Adverse Effect.
18.5 |
Financial
Statements; No Material Adverse
Change
|
(a) The
Borrower has furnished to the Agent copies of the Parent
Guarantor’s:
(i) audited
consolidated financial statements for the years ended December 31, 2003 and
December 31, 2004, respectively, which were included in its annual report
on
Form 10-K as filed with the SEC under the Exchange Act on March 4, 2005;
and
(ii) unaudited
consolidated financial statements for the quarter ended March 31, 2005 which
were included in its quarterly report on Form 10-Q, as filed with the SEC
under
the Exchange Act on May 9, 2005.
Such
financial statements present fairly, in all material respects, the financial
condition and the results of operations of the Parent Guarantor and the
Subsidiaries, taken as a whole, as of, and for accounting periods ending on,
such dates in accordance with GAAP (subject, in the case of unaudited
statements, to normal year-end audit adjustments and the absence of
footnotes).
(b) Since
December 31, 2004, there has been no Material Adverse Effect on the business,
operations, properties or financial condition of the NL Holdco Group or the
BMS
Group, each taken as a whole; provided, that no representation or warranty
is
made with respect to matters disclosed in the most recent 10-K or
-40-
in
any
10-Q or current report on Form 8-K of the Parent Guarantor filed with the SEC
under the Exchange Act subsequent to December 31, 2004.
18.6 |
Material
Litigation; Compliance with Laws.
|
(a) Except
as
disclosed in either the most recent 10-K or the most recent 10-Q of the Parent
Guarantor, as of the date of this Agreement, there are no actions, proceedings
or investigations filed or (to the knowledge of the Parent Guarantor) threatened
against the Parent Guarantor or any Subsidiary in any court or before any
Governmental Authority or arbitration board or tribunal, which question the
validity or legality of this Agreement, the Transactions or any action taken
or
to be taken pursuant to this Agreement and no order or judgment has been
issued
or entered restraining or enjoining the Parent Guarantor from the execution,
delivery or performance of this Agreement nor is there any other action,
proceeding or investigation filed or (to the knowledge of the Parent Guarantor)
threatened against the Parent Guarantor or any Subsidiary in any court before
any Governmental Authority or arbitration board or tribunal which would be
reasonably likely to result in a Material Adverse Effect on the BMS
Group.
(b) Neither
the Parent Guarantor nor any Subsidiary is in violation of any law, rule
or
regulation, or in default with respect to any judgment, writ, injunction
or
decree of any Governmental Authority, where such violation or default would
be
reasonably likely to result in a Material Adverse Effect on the BMS Group.
18.7 |
No
filing or stamp taxes
|
Under
the
law of the jurisdiction in which it is incorporated, organised, managed and
controlled or considered to have its seat or otherwise has a connection (other
than a connection as a result of entering into this Agreement, performing any
obligations hereunder, receiving any payments hereunder or enforcing any rights
hereunder) it is not necessary that the Finance Documents be filed, recorded
or
enrolled with any court or other authority in that jurisdiction or that any
stamp, registration or similar tax be paid on or in relation to the Finance
Documents or the transactions contemplated by the Finance
Documents.
18.8 |
Federal
Reserve Regulations
|
No part
of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, for any purpose which entails
a
violation of, or which is inconsistent with, the provisions of the Margin
Regulations.
18.9 |
Use
of Proceeds
|
All
proceeds of the Loans shall be used for the purposes referred to in Clause
3.1
(Purpose)
of this
Agreement.
18.10 |
Taxes
|
It
has
filed or caused to be filed all Tax returns which are required to be filed
by
it, and has paid or caused to be paid all Taxes shown to be due and payable
on
such
-41-
returns
or on any assessments received by it, other than any Taxes or assessments the
validity of which is being contested in good faith by appropriate proceedings,
and with respect to which appropriate accounting reserves have, to the extent
required by GAAP, been set aside.
18.11 |
Employee
Benefit Plans
|
(a) The
Parent Guarantor represents that the present aggregate value of accumulated
benefit obligations of all Plans and all foreign employee pension benefit
plans
(based on those assumptions used for disclosure of such obligations in corporate
financial statements in accordance with GAAP) did not, as of the most recent
statements available, exceed the aggregate value of the assets for all such
plans.
(b) Except
as
would not individually or in the aggregate have a Material Adverse Effect
on the
BMS Group:
(i) no
ERISA
Termination Event has occurred; or
(ii) each
Plan
has been established and administered in accordance with its terms and in
compliance with the applicable provisions of ERISA, the Code and other
applicable laws, rules and regulations.
18.12 |
Environmental
and Safety Matters
|
The
Parent Guarantor represents that other than exceptions to any of the following
that would not in the aggregate have a Material Adverse Effect on the BMS Group:
(a) the
Parent Guarantor and the Subsidiaries comply and have complied with all
applicable Environmental and Safety Laws;
(b) there
are
and have been no Hazardous Substances at any property owned, leased or operated
by the Parent Guarantor now or in the past, or at any other location, that
could
reasonably be expected to result in liability of the Parent Guarantor or
any
Subsidiary under any Environmental and Safety Law or result in costs to any
of
them arising out of any Environmental and Safety Law;
(c) there
are
no past, present, or, to the knowledge of the Parent Guarantor and its
Subsidiaries, anticipated future events, conditions, circumstances, practices,
plans, or legal requirements that could reasonably be expected to prevent
the
Parent Guarantor or any of its Subsidiaries from, or increase the costs to
the
Parent Guarantor or any of its Subsidiaries of, complying with applicable
Environmental and Safety Laws or obtaining or renewing all material permits,
approvals, authorisations, licenses or permissions required of any of them
pursuant to any such law; and
(d) neither
the Parent Guarantor nor any of its Subsidiaries has retained or assumed,
by
contract or operation of law, any liability, fixed or contingent, under any
Environmental and Safety Law.
-42-
18.13 |
Properties
|
The
Parent Guarantor represents that:
(a) each
of
the Parent Guarantor and its Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property that are material to the
business of the Parent Guarantor and its Subsidiaries taken as a whole, except
for minor defects in title that do not interfere with its ability to conduct
its
business as currently conducted or to utilize such properties for their intended
purposes; and
(b) each
of
the Parent Guarantor and its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
that
are material to the business of the Parent Guarantor and its Subsidiaries
taken
as a whole, and the use thereof by the Parent Guarantor and its Subsidiaries
does not infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not reasonably
be
expected to result in a Material Adverse Effect on the BMS
Group.
18.14 |
Investment
and Holding Company Status
|
The
Parent Guarantor represents that neither the Parent Guarantor nor any of its
Subsidiaries is:
(a) an
“investment company” as defined in, or subject to regulation under the
Investment Company Act of 1940 of the United States, or
(b) a
“holding company” as defined in, or subject to regulation under the Public
Utility Holding Company Act of 1935 of the United States.
18.15 |
Ownership
and Status of Designated Finance
Subsidiaries
|
The
Borrower represents that each Designated Finance Subsidiary is:
(a) a
wholly
owned subsidiary of the Borrower; and
(b) a
corporation duly organised, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation.
18.16 |
Pari
passu ranking
|
Its
payment obligations under the Finance Documents rank at least pari passu with
the claims of all its other unsecured and unsubordinated creditors, except
for
obligations mandatorily preferred by law applying to companies
generally.
18.17 |
Ranking
of Qualifying NL Holdco
Notes
|
The
Primary Guarantor represents that its payment obligations under the Qualifying
NL Holdco Notes rank at least pari passu with claims of all its other unsecured
and unsubordinated creditors, except for obligations mandatorily preferred
by
law applying to companies generally.
-43-
18.18 |
Information
Memorandum
|
The
Borrower represents that:
(a) except
as
disclosed in writing to the Arrangers, as at the date thereof, the Information
Memorandum did not contain an untrue statement of a material fact or omit
to
state a material fact necessary to make the statements therein not misleading,
it being understood and agreed that for purposes of this Clause, such factual
information and data shall not include projections and pro forma financial
information; and
(b) the
projections and pro forma financial information contained in the Information
Memorandum were based on then recent historical information and good faith
estimates and assumptions believed by such Persons to be reasonable at the
time
made, it being recognised by the Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results.
18.19 |
Repetition
|
The
Repeating Representations are deemed to be made by each Obligor (except where
certain Obligors are specified, in which case, the specified Obligors) by
reference to the facts and circumstances then existing on:
(a) the
first
day of each Interest Period; and
(b) in
the
case of an Additional Guarantor, the day on which the Person becomes an
Additional Guarantor.
19. |
INFORMATION
UNDERTAKINGS
|
The
undertakings in this Clause 19 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.
19.1 |
The
Borrower shall supply to the Agent in sufficient copies for all of
the
Lenders the following documents:
|
(a) within
95 days after the end of each fiscal year, the Parent Guarantor’s annual
report on Form 10-K as filed with the SEC, including its consolidated
balance sheet and the related consolidated earnings statement showing its
consolidated financial condition as of the close of such fiscal year and
the
consolidated results of its operations during such year, all audited by
PriceWaterhouseCoopers LLP or other independent certified public accountants
of
recognised standing selected by the Parent Guarantor and accompanied by an
opinion of such accountants (without a “going concern” qualification or
exception and without any qualification or exception with respect to the
scope
of such opinion) to the effect that such consolidated financial statements
fairly present the Parent Guarantor’s financial condition and results of
operations on a consolidated basis in accordance with GAAP;
-44-
(b) within
50 days after the end of each of the first three fiscal quarters of each
fiscal year, the Parent Guarantor’s quarterly report on Form 10-Q as filed
with the SEC, including its unaudited consolidated balance sheet and related
consolidated earnings statement, showing its consolidated financial condition
as
of the close of such fiscal quarter and the consolidated results of its
operations during such fiscal quarter and the then elapsed portion of the
fiscal
year (and each delivery of such statements shall be deemed a representation
that
such statements fairly present the Parent Guarantor’s financial condition and
results of operations on a consolidated basis in accordance with GAAP, subject
to normal year-end audit adjustments and the absence of
footnotes);
(c) with
any
delivery of financial statements under paragraph (a) or (b)
above:
(i) a
Compliance Certificate from the Parent Guarantor certifying that the Parent
Guarantor has complied with the financial covenants applicable to it set
out in
Clause 20 (Financial
Covenants)
(or
giving details of any non-compliance, whether non-compliance is continuing
and
any steps taken to remedy non-compliance); and
(ii) a
Compliance Certificate from each of the Borrower and the Primary Guarantor
(in
each case, endorsed by the Parent Guarantor) certifying that each of the
Borrower and the Primary Guarantor has complied with the financial covenants
applicable to it set out in Clause 20 (Financial
Covenants)
(or
giving details of any non-compliance, whether non-compliance is continuing
and
any steps taken to remedy non-compliance);
(d) promptly
after the same become publicly available, copies of all reports on Form 8-K
filed by the Parent Guarantor with the SEC, or any Governmental Authority
succeeding to any of or all the functions of the SEC, or copies of all reports
distributed to its shareholders, as the case may be; and
(e) promptly,
from time to time, such other information as any Lender shall reasonably
request
through the Agent.
Each
Compliance Certificate referred to above shall be signed by a duly authorised
officer of the Parent Guarantor and (in the case of each Compliance Certificate
from the Borrower and the Primary Guarantor) by a duly authorised officer of
the
Borrower or the Primary Guarantor (as appropriate).
19.2 |
Litigation
and Other Notices
|
The
Borrower or the Parent Guarantor shall give the Agent written notice of the
following within five Business Days after any executive officer of the Borrower
or the Parent Guarantor obtains knowledge thereof:
(a) the
filing or commencement of any action, suit or proceeding which the Borrower
or
the Parent Guarantor reasonably expects to result in a Material Adverse Effect
in relation to the BMS Group as a whole;
-45-
(b) any
Event
of Default or Default, specifying the nature and extent thereof and the action
(if any) which is proposed to be taken with respect thereto;
and
(c) any
change in any of the Ratings.
19.3 |
Use
of websites
|
(a) The
Borrower may satisfy its obligation under this Agreement to deliver any
information in relation to those Lenders (the "Website
Lenders")
who
accept this method of communication by posting this information onto an
electronic website designated by the Borrower and the Agent (the "Designated
Website")
if:
(i) the
Agent
expressly agrees (after consultation with each of the Lenders) that it will
accept communication of the information by this method;
(ii) both
the
Borrower and the Agent are aware of the address of and any relevant password
specifications for the Designated Website; and
(iii) the
information is in a format previously agreed between the Borrower and the
Agent.
If
any
Lender (a "Paper
Form Lender")
does
not agree to the delivery of information electronically then the Agent shall
notify the Borrower accordingly and the Borrower shall supply the information
to
the Agent (in sufficient copies for each Paper Form Lender) in paper form.
In
any event the Borrower shall supply the Agent with at least one copy in paper
form of any information required to be provided by it.
(b) The
Agent
shall supply each Website Lender with the address of and any relevant password
specifications for the Designated Website following designation of that website
by the Borrower and the Agent.
(c) The
Borrower shall promptly upon becoming aware of its occurrence notify the
Agent
if:
(i) the
Designated Website cannot be accessed due to technical
failure;
(ii) the
password specifications for the Designated Website change;
(iii) any
new
or amended information which is required to be provided under this Agreement
is
posted onto the Designated Website; or
(iv) the
Borrower becomes aware that the Designated Website or any information posted
onto the Designated Website is or has been infected by any electronic virus
or
similar software.
If
the
Borrower notifies the Agent under paragraph (c)(i) or paragraph (c)(iv) above,
all information to be provided by the Borrower under this Agreement after the
date of that notice shall be supplied in paper form unless and until the Agent
and each Website Lender is satisfied that the circumstances giving rise to
the
notification are no longer continuing.
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(d) Any
Website Lender may request, through the Agent, one paper copy of any information
required to be provided under this Agreement which is posted onto the Designated
Website. The Borrower shall comply with any such request within ten Business
Days.
19.4 |
"Know
your customer" checks
|
(a) If:
(i) the
introduction of or any change in (or in the interpretation, administration
or
application of) any law or regulation made after the date of this
Agreement;
(ii) any
change in the status of an Obligor or (save in relation to the Parent Guarantor)
the composition of its Shareholders after the date of this Agreement;
or
(iii) a
proposed assignment or transfer by a Lender of any of its rights and obligations
under this Agreement to a party that is not a Lender prior to such assignment
or
transfer,
obliges
the Agent or any Lender (or, in the case of paragraph (iii) above, any
prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information
is
not already available to it, each Obligor shall promptly upon the request of
the
Agent or any Lender supply, or procure the supply of, such documentation and
other evidence as is reasonably requested by the Agent (for itself or on behalf
of any Lender) or any Lender (for itself or, in the case of the event described
in paragraph (iii) above, on behalf of any prospective new Lender) in order
for
the Agent, such Lender or, in the case of the event described in paragraph
(iii)
above, any prospective new Lender to carry out and be satisfied that it has
complied with all necessary "know your customer" or other similar checks under
all applicable laws and regulations in relation to the transactions contemplated
in the Finance Documents.
(b) Each
Lender shall promptly upon the request of the Agent supply, or procure the
supply of, such documentation and other evidence as is reasonably requested
by
the Agent (for itself) in order for the Agent to carry out and be satisfied
it
has complied with all necessary "know your customer" or other similar checks
under all applicable laws and regulations pursuant to the transactions
contemplated in the Finance Documents.
(c) The
Borrower shall, by not less than 10 Business Days' prior written notice to
the
Agent, notify the Agent (which shall promptly notify the Lenders) of its
intention to request that one of the Finance Subsidiaries becomes an Additional
Guarantor pursuant to Clause 24 (Changes
to the Obligors).
(d) Following
the giving of any notice pursuant to paragraph (c) above, if the accession
of
such Additional Guarantor obliges the Agent or any Lender to comply with
"know
your customer" or similar identification procedures in circumstances where
the
necessary information is not already available to it, the Borrower shall
promptly upon the request of the Agent or any Lender
-47-
supply,
or procure the supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself or on behalf of any Lender) or any Lender
(for itself or on behalf of any prospective new Lender) in order for the Agent
or such Lender or any prospective new Lender to carry out and be satisfied
it
has complied with the results of all necessary "know your customer" or other
similar checks under all applicable laws and regulations pursuant to the
accession of such Subsidiary to this Agreement as an Additional
Guarantor.
(e) Each
Lender agrees that its “know your customer” or other similar checks will be
completed as soon as reasonably practicable.
20. |
FINANCIAL
COVENANTS
|
20.1 |
Primary
Guarantor Financial
Covenants
|
The
Primary Guarantor shall ensure that from the date of this Agreement and for
so
long as any amount is outstanding under the Finance Documents or any Commitment
is in force:
(a) the
ratio
of NL Holdco Group Net Indebtedness to NL Holdco Cash Flow will be calculated
on
each Primary Guarantor Quarter Date and:
(i) shall
not
exceed 3.5:1 on any two consecutive Primary Guarantor Quarter Dates during
the
24 months commencing on the date of this Agreement; and
(ii) thereafter
shall not exceed 3:1 on any Primary Guarantor Quarter Date.
(b) NL
Holdco
Group New Indebtedness shall not exceed $1,000,000,000 at any
time.
(c) NL
Holdco
Intercompany Indebtedness shall not at any time exceed by more than
$1,000,000,000 the amount of NL Holdco Intercompany Indebtedness as calculated
at the date of this Agreement.
In
this
Clause 20.1:
“NL
Holdco Cash Flow”
means
all cash received by the Primary Guarantor by way of distributions from its
subsidiaries during the 12 month period ending on each Primary Guarantor Quarter
Date.
“NL
Holdco Group Net Indebtedness”
means
the aggregate amount of the Debt of the members of the NL Holdco Group, less
their cash, cash equivalents, time deposits and other marketable securities.
This includes (without double counting) the Primary Guarantor’s guarantee under
this Agreement and all other Debt of the NL Holdco Group to third parties,
but
will exclude all Debt of any member of the NL Holdco Group to any member of
the
BMS Group or to any other member of the NL Holdco Group.
“NL
Holdco Group New Indebtedness”
means
the aggregate amount of outstanding Debt falling within the definition of NL
Holdco Group Net
-48-
Indebtedness,
which is incurred after the date of this Agreement (including, for the avoidance
of doubt, any such Debt incurred by members of the NL Holdco Group under
commercial paper programs), but excluding:
(i) the
Facility;
(ii) Debt
which is subordinated to the Facility; and
(iii) Debt
to
the extent it refinances the Facility or Debt which existed at the date of
this
Agreement and any subsequent refinancings thereof.
“NL
Holdco Intercompany Indebtedness”
means
the aggregate outstanding Debt of the Primary Guarantor to other members of
the
BMS Group, but excluding:
(i) Debt
incurred after the date of this Agreement which is subordinated to the Facility;
and
(ii) Qualifying
NL Holdco Notes.
“Primary
Guarantor Quarter Date”
means
the last date of each fiscal quarter of the Primary Guarantor (or such other
dates as agreed by the Primary Guarantor and the Agent).
For
the
avoidance of doubt, references in this Clause 20.1 to “Debt” shall be
construed as excluding, in the case of indebtedness for borrowed money, advances
in the nature of overdrafts that are repaid within three Business
Days.
20.2 |
Parent
Guarantor and Borrower Financial
Covenants
|
From
the
date of this Agreement and for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force:
(a) the
Parent Guarantor shall ensure that the ratio of Consolidated Net Indebtedness
to
Consolidated Capitalisation shall not exceed 0.50 to 1.0, tested on each
Parent
Guarantor Quarter Date;
(b) the
Borrower or one or more Designated Finance Subsidiaries shall hold Qualifying
NL
Holdco Notes in an aggregate principal amount that is equal to or greater
than
150% of the aggregate principal amount of the Total Net Indebtedness of the
Borrower and the Designated Finance Subsidiaries.
In
this
Clause 20.2:
“Consolidated Capitalisation”
means
at any time the sum of short term borrowings, long-term debt and shareholders’
equity, all as shown at such time in the Parent Guarantor’s consolidated balance
sheet determined in accordance with GAAP.
“Consolidated
Net Indebtedness”
means
at any time (i) the sum of short-term borrowings and long-term debt less (ii)
cash, cash equivalents, time
-49-
deposits
and marketable securities, all as shown at such time on the Parent Guarantor’s
consolidated balance sheet determined in accordance with GAAP.
“Parent
Guarantor Quarter Date”
means
the last date of each fiscal quarter of the Parent Guarantor (or such other
dates as agreed by the Parent Guarantor and the Agent).
“Total
Net Indebtedness of the Borrower and the Designated Finance
Subsidiaries”
means
the aggregate amount of the Debt of the Borrower and the Designated Financial
Subsidiaries, including the Facility, less their:
(i) aggregate
cash, cash equivalents, time deposits and other marketable securities;
and
(ii) Debt
owed
to any member of the BMS Group.
21. |
GENERAL
UNDERTAKINGS
|
The
undertakings in this Clause 21 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.
21.1 |
Existence
|
Each
Obligor shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence and its rights and franchises
that are material to the business of the Parent Guarantor and its Subsidiaries
as a whole, except as expressly permitted under Clause 21.7 (Consolidations,
Amalgamations and Mergers),
and
except in the case of any Subsidiary where the failure to do so would not result
in a Material Adverse Effect in relation to the BMS Group.
21.2 |
Compliance
with Laws; Maintenance of Business and
Properties
|
Each
Obligor shall:
(a) comply
in
all respects with all applicable laws, rules, regulations and orders of any
Governmental Authority (including Environmental and Safety Laws and ERISA),
whether now in effect or hereafter enacted except instances that could not,
in
the aggregate, reasonably be expected to result in a Material Adverse Effect
in
relation to the BMS Group; and
(b) at
all
times maintain and preserve all property material to the conduct of the business
of the Parent Guarantor and the Subsidiaries as a whole and keep such property
in good repair, working order and condition and from time to time make, or
cause
to be made, all needful and proper repairs, renewals, additions, improvements
and replacements thereto necessary in order that the business carried on
in
connection therewith may be properly conducted at all times, except where
the
failure to do so would not result in a Material Adverse Effect in relation
to
the BMS Group.
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21.3 |
Insurance
|
Each
Obligor shall keep its insurable properties adequately insured at all times
by
financially sound and reputable insurers (which may include captive insurers),
and maintain such other insurance or self insurance, to such extent and against
such risks, including fire and other risks insured against by extended coverage,
as is customary with companies similarly situated and in the same or similar
businesses.
21.4 |
Obligations
and Taxes
|
Each
Obligor shall pay and discharge promptly when due all material taxes,
assessments and governmental charges imposed upon it or upon its income or
profits or in respect of its property, in each case before the same shall become
delinquent or in default and before penalties accrue thereon, unless and to
the
extent that the same are being contested in good faith by appropriate
proceedings and adequate reserves with respect thereto shall, to the extent
required by GAAP, have been set aside.
21.5 |
Books
and Records
|
Each
Obligor shall keep proper books of record and account in which full, true and
correct entries are made of all material dealings and transactions in relation
to its business and activities.
21.6 |
Pari
Passu Ranking
|
Each
Obligor shall do all things reasonably necessary to ensure that its payment
obligations under the Finance Documents rank at least pari passu with the claims
of all its other unsecured and unsubordinated creditors, except for obligations
mandatorily preferred by law applying to companies generally.
21.7 |
Consolidations,
Amalgamations and Mergers
|
No
Obligor shall consolidate, amalgamate or merge with or into any other Person
or
liquidate, wind up or dissolve (or suffer any liquidation or dissolution)
provided that:
(a) an
Obligor may merge, amalgamate or consolidate with another Person if (i) the
corporation surviving such merger (or in the case of an Obligor subject to
the
laws of Bermuda, the resulting entity) is (x) in the case of a merger or
consolidation of the Parent Guarantor, the Parent Guarantor, (y) in the
case of a merger, amalgamation or consolidation of any Obligor other than
the
Parent Guarantor, an Obligor or (z) in the case of a merger or
consolidation of an Obligor other than the Parent Guarantor or the Primary
Guarantor, a member of the NL Holdco Group and (ii) immediately after giving
effect to such merger, amalgamation or consolidation, no Default or Event
of
Default shall have occurred and be continuing; and
(b) an
Obligor other than the Parent Guarantor, the Primary Guarantor or the Borrower
may liquidate, wind-up or dissolve if immediately after giving effect to
such
liquidation, winding-up or dissolution no Default or Event of Default shall
have
occurred and be continuing.
-51-
21.8 |
Encumbrances
on Restricted Properties securing
debt
|
The
Parent Guarantor shall not (and will not permit any of the Subsidiaries to)
create, assume or suffer to exist any Lien upon any Restricted Property to
secure any Debt of the Parent Guarantor, any Subsidiary or any other Person,
without making effective provision whereby the Loans that may then or thereafter
be outstanding shall be secured by such Lien equally and rateably with (or
prior
to) such Debt for so long as such Debt shall be so secured, except that the
foregoing shall not prevent the Parent Guarantor or any Subsidiary from
creating, assuming or suffering to exist any of the following
Liens:
(a) Liens
existing on the date of this Agreement;
(b) any
Lien
existing on property owned or leased by any Person at the time it becomes
a
Subsidiary;
(c) any
Lien
existing on property at the time of the acquisition thereof by the Parent
Guarantor or any Subsidiary;
(d) any
Lien
to secure any Debt incurred prior to, at the time of, or within 12 months
after
the acquisition of any Restricted Property for the purpose of financing all
or
any part of the purchase price thereof and any Lien to the extent that it
secures Debt which is in excess of such purchase price and for the payment
of
which recourse may be had only against such Restricted
Property;
(e) any
Lien
to secure any Debt incurred prior to, at the time of, or within 12 months
after
the completion of the construction, alteration, repair or improvement of
any
Restricted Property for the purpose of financing all or any part of the cost
thereof and any Lien to the extent that it secures Debt which is in excess
of
such cost and for the payment of which recourse may be had only against such
Restricted Property;
(f) any
Liens
securing Debt of a Subsidiary owing to the Parent Guarantor or to another
Subsidiary;
(g) any
Liens
securing industrial development, pollution control or similar revenue
bonds;
(h) any
extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part of any Lien referred to in paragraphs (a)
through (g) above, so long as the principal amount of the Debt secured thereby
does not exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement (except that, where an additional principal
amount of Debt is incurred to provide funds for the completion of a specific
project, the additional principal amount, and any related financing costs,
may
be secured by the Lien as well) and such Lien is limited to the same property
subject to the Lien so extended, renewed or replaced (and improvements on
such
property); and
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(i) any
Lien
not permitted by paragraphs (a) through (h) above securing Debt which, together
with the aggregate outstanding principal amount of all other Debt of the
Parent
Guarantor and its Subsidiaries owning Restricted Property which would otherwise
be subject to the foregoing restrictions and the aggregate Value of existing
Sale and Leaseback Transactions which would be subject to the restrictions
of
Clause 21.9 (Limitation
on Sale and Leaseback Transactions)
but for
this paragraph (i), does not at any time exceed 10% of Consolidated Net Tangible
Assets.
21.9 |
Limitation
on Sale and Leaseback Transactions
|
The
Parent Guarantor shall not enter into any Sale and Leaseback Transaction, or
permit any Subsidiary owning Restricted Property to do so, unless
either:
(a) the
Parent Guarantor or such Subsidiary would be entitled to incur Debt, in a
principal amount at least equal to the Value of such Sale and Leaseback
Transaction, which is secured by Liens on the property to be leased (without
equally and rateably securing the Loans) without violating Clause 21.8
(Encumbrances
on Restricted Properties securing debt);
or
(b) the
Parent Guarantor, during the six months immediately following the effective
date
of such Sale and Leaseback Transaction, causes to be applied to (A) the
acquisition of Restricted Property or (B) the voluntary retirement of
Funded Debt (whether by redemption, defeasance, repurchase, or otherwise)
an
amount equal to the Value of such Sale and Leaseback
Transaction.
21.10 |
Change
of Business
|
The
Parent Guarantor shall procure that no substantial change is made to the general
nature of the business of the BMS Group from that carried on at the date of
this
Agreement.
21.11 |
Encumbrances
on the Qualifying NL Holdco Notes
|
No
Obligor (other than the Parent Guarantor) shall create or permit to subsist
any
Lien over its entitlement under the Qualifying NL Holdco Notes.
21.12 |
Encumbrances
on other assets of the Borrower and any Designated Finance
Subsidiaries
|
The
Borrower shall ensure that neither it nor any Designated Finance Subsidiary
shall create or permit to subsist any Lien over any of its assets securing
Debt
the principal amount of which, when aggregated, exceeds $1,000,000,000 other
than: (a) bankers’ Liens, rights of set-off and other similar Liens existing
solely with respect to cash, cash equivalents, time deposits or other marketable
securities in one or more accounts maintained by the Borrower or any Designated
Finance Subsidiary in the ordinary course of business in favour of the bank
or
banks with which such accounts are maintained; and (b) Liens securing amounts
due under the Facility.
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21.13 |
Activities
of the Borrower and the Designated Finance
Subsidiaries
|
The
Borrower shall ensure that it and any Designated Finance Subsidiaries engage
only in the following types of business:
(a) issuing
further shares fully paid up to any member of the BMS Group;
(b) receiving
capital contributions or loans from any member of the BMS
Group;
(c) performing
obligations and exercising rights under or arising out of any Finance Document
to which it is a party;
(d) facilitating
or providing the financing (by any means) of any members of the BMS
Group;
(e) authorising
and paying dividends on any of its issued shares provided that it has first
made
adequate provision or reserve for its liabilities;
(f) paying
Taxes and complying with any legal or statutory obligation (whether or not
relating to Tax) which it may be required to discharge;
(g) investing
in cash, cash equivalents, time deposits and other marketable
securities;
(h) all
other
things necessary to maintain its corporate identity; and
(i) any
activity not falling within paragraphs (a)-(h) above but which is reasonably
incidental thereto.
21.14 |
Restricted
Payments
|
No
Obligor (other than the Parent Guarantor) shall declare or make, or agree to
pay
or make, directly or indirectly, any Restricted Payment except:
(a) any
Obligor may make Restricted Payments to another Obligor; and
(b) any
Obligor may:
(i) declare
and pay dividends with respect to its shares payable solely in additional
shares
of its ordinary share capital; and
(ii) make
Restricted Payments so long as after giving effect to the making of such
Restricted Payment, no Default shall have occurred and be
continuing.
21.15 |
Indebtedness
for Borrowed Money
|
No
Obligor (other than the Parent Guarantor and the Primary Guarantor) shall incur
any Debt to the extent that, after giving effect to such incurrence, such Debt
could reasonably be expected to have a Material Adverse Effect provided that
Debt which is permitted in accordance with the terms of Clause 20 (Financial
Covenants)
shall
not be restricted by this Clause 21.15.
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21.16 |
Transactions
with Affiliates
|
Each
Obligor (other than the Parent Guarantor) shall only enter into transactions
with other members of the BMS Group that are bona fide and arm’s length in
nature except (a) transactions entered into prior to the date hereof or
contemplated by any agreement entered into prior to the date hereof, (b)
transactions between or among the Borrower and the Designated Finance
Subsidiaries or between or among any Obligors or between or among any members
of
the NL Holdco Group (c) any arrangements with officers, directors,
representatives or other employees of such Obligor (other than the Parent
Guarantor) relating specifically to employment and (d) transactions that are
otherwise permitted by this Agreement including (without limitation)
transactions permitted under Clauses 21.7 (Consolidations,
Amalgamations and Mergers),
21.13
(Activities
of the Borrower and the Designated Finance Subsidiaries),
21.14
(Restricted
Payments),
21.15
(Indebtedness
for Borrowed Money),
21.17
(Investments)
and
21.18 (Asset
Disposals).
21.17 |
Investments
|
No
Obligor (other than the Parent Guarantor and the Primary Guarantor) shall enter
into any transaction to acquire any assets (other than: (a) any transaction
to
acquire assets having a fair market value of less than $1,000,000,000; (b)
any
transaction to acquire assets from another Obligor or member of the NL Holdco
Group; (c) investments in cash, cash equivalents, time deposits and other
marketable securities; or (d) any transaction to acquire assets from a member
of
the BMS Group made on an arm’s length basis) if, before or after giving effect
to the commitment thereto, such transaction could reasonably be expected to
have
a Material Adverse Effect.
21.18 |
Asset
disposals
|
(a) Neither
the Parent Guarantor nor the Primary Guarantor shall sell, or otherwise transfer
(in one transaction or a series of transactions), or permit any Subsidiary
to
sell, or otherwise transfer (in one transaction or a series of transactions),
all or substantially all of the assets of the Parent Guarantor and the
Subsidiaries or the Primary Guarantor and its subsidiaries, in each case
taken
as a whole, to any other Person.
(b) No
Obligor (other than the Parent Guarantor) shall enter into a single transaction
or a series of transactions (whether related or not) and whether voluntary
or
involuntary to sell, lease, transfer or otherwise dispose of all or
substantially all of its assets.
(c) Paragraph
(b) above does not apply to any sale, lease, transfer or other
disposal:
(i) of
assets
in exchange for other assets comparable or superior as to type, value and
quality;
(ii) of
cash,
cash equivalents, time deposits and other marketable securities not otherwise
prohibited by the Finance Documents;
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(iii) comprising
any dividend or distribution not otherwise prohibited by the Finance
Documents;
(iv) between
any Obligor and any other Obligor; or
(v) made
bona
fide on an arm’s length basis to any member of the BMS Group.
21.19 |
Covenants
relating to the Lux Holdco
Note
|
The
Primary Guarantor shall:
(a) procure
timely compliance by Lux Holdco with all of its obligations under the Lux
Holdco
Note and Lux Holdco Note Agreement;
(b) promptly
notify the Agent in the event that:
(i) (A)
Lux
Holdco becomes unable, or admits inability, to pay its debts generally as
they
fall due; (B) a moratorium is declared in respect of any of Luxco’s material
indebtedness; or (C) Lux Holdco passes a resolution for its dissolution,
administration or reorganisation (by way of voluntary arrangement, scheme
of
arrangement or otherwise), commences negotiations regarding a composition,
compromise, assignment or arrangement with, or suspends making payments to,
its
creditors generally, has a liquidator, receiver, administrator, administrative
receiver, compulsory manager or other similar officer appointed to it (or
over
all or substantially all of its assets), an application is made or a petition
presented to a court, a notice is given or filed in relation to the appointment
of such an officer or has any analogous procedure or step taken in any
jurisdiction;
(ii) an
event
of default occurs under the Lux Holdco Note or the Lux Holdco Note Agreement;
or
(iii) any
acceleration or other enforcement action is taken in relation to the Lux
Holdco
Note or the Lux Holdco Note Agreement and shall keep the Agent fully informed
during any enforcement process; and
(c) procure
that no voluntary prepayments of the Lux Holdco Note are made in whole or
in
part by Lux Holdco after the date of this Agreement.
21.20 |
Parent
Guarantor Ratings
|
The
Parent Guarantor shall use reasonable endeavours to ensure that at least one
of
Xxxxx’x and S&P provides a rating for the Parent Guarantor’s senior,
unsecured, non-credit-enhanced long term debt.
22. |
EVENTS
OF DEFAULT
|
Each
of
the events or circumstances set out in Clause 22 is an Event of
Default.
22.1 |
Non-payment
|
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(a) A
default
is made in the payment of any principal amount of any Loan when and as the
same
shall become due and payable, whether at the due date thereof or any other
date
fixed for prepayment thereof or by acceleration thereof or otherwise;
or
(b) a
default
is made in the payment of any interest on any Loan or any fee or any other
amount (other than an amount referred to in paragraph (a) above) due hereunder,
when and as the same shall become due and payable, and such default shall
continue unremedied for a period of three Business Days.
22.2 |
Misrepresentation
|
Any
representation or warranty made or deemed made in or in connection with the
execution and delivery of this Agreement or the Loans or under any Finance
Document shall prove to have been false or misleading in any material respect
when so made, deemed made or furnished.
22.3 |
Breach
of other obligations
|
(a) Any
Obligor fails to comply with any of its obligations under paragraphs (a)
and (b)
of Clause 19.2 (Litigation
and Other Notices)
and
Clauses 21.7 (Consolidations,
Amalgamations and Mergers),
21.8
(Encumbrances
on Restricted Properties securing debt),
21.9
(Limitation
on Sale and Leaseback Transactions),
21.10
(Change
of Business),
21.11(Encumbrances
on Qualifying NL Holdco Notes),
21.12
(Encumbrances
on other assets of the Borrower and any Designated Finance
Subsidiaries),
21.13
(Activities
of the Borrower and the Designated Finance Subsidiaries),
21.14
(Restricted
Payments),
21.15
(Indebtedness
for Borrowed Money),
21.16
(Transactions
with Affiliates),
21.17
(Investments),
21.18
(Asset
disposals)
and
21.19 (Covenants
relating to the Lux Holdco Note);
or
(b) a
default
is made in the due observance or performance of any covenant, condition or
agreement contained herein (other than those specified in Clauses 22.1
(Non-payment)
or
22.3(a) above) and such default shall continue unremedied for a period of
30 days after notice thereof from the Agent or any Lender to the
Borrower.
22.4 |
Cross-defaults
|
The
Parent Guarantor or any Subsidiary:
(a) fails
to
pay any principal or interest, regardless of amount, due in respect of one
or
more items of Debt in an aggregate principal amount greater than or equal
to
$100,000,000, as and when the same shall become due and payable (giving effect
to any applicable grace period), or
(b) fails
to
observe or perform any other term, covenant, condition or agreement contained
in
any agreement or instrument evidencing or governing any such Debt if the
effect
of any failure referred to in this paragraph (b) is to cause such Debt to
become due prior to its stated maturity.
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22.5 |
Insolvency
of the Borrower or any Guarantor (other than the Parent
Guarantor)
|
The
Borrower or any Guarantor (other than the Parent Guarantor):
(a) is
unable
or admits inability to pay its debts generally as they fall due;
or
(b) has
a
moratorium declared in respect of any material indebtedness.
22.6 |
Insolvency
proceedings of the Borrower or any Guarantor (other than the Parent
Guarantor)
|
The
Borrower or any Guarantor (other than the Parent Guarantor):
(a) passes
a
resolution for its dissolution, administration or reorganisation (by way
of
voluntary arrangement, scheme of arrangement or otherwise);
(b) commences
negotiations regarding a composition, compromise, assignment or arrangement
with, or suspends making payments to, its creditors
generally;
(c) has
a
liquidator, receiver, administrator, administrative receiver, compulsory
manager
or other similar officer appointed to it (or over all or substantially all
of
its assets) or an application is made or a petition presented to a court,
or a
notice is given or filed, in relation to the appointment of such an officer;
or
(d) has
any
analogous procedure or step taken in any jurisdiction,
and
any
such proceedings or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be
entered.
22.7 |
Parent
Guarantor involuntary
proceedings
|
An
involuntary proceeding is commenced or an involuntary petition is filed in
a
court of competent jurisdiction seeking:
(a) relief
in
respect of the Parent Guarantor, or of a substantial part of the property
or
assets of the Parent Guarantor, under Title 11 of the United States Code,
as now
constituted or hereafter amended, or any other United States Federal or state
bankruptcy, insolvency, receivership or similar law;
(b) the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or
similar official for the Parent Guarantor or for a substantial part of the
property or assets of the Parent Guarantor; or
(c) the
winding up or liquidation of the Parent Guarantor,
and
such
proceedings or petition shall continue undismissed for 60 days or an order
or
decree approving or ordering any of the foregoing shall be entered.
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22.8 |
Parent
Guarantor voluntary
proceedings
|
The
Parent Guarantor:
(a) voluntarily
commences any proceedings or files any petition seeking relief under Title
11 of
the United States Code, as now constituted or hereafter amended, or any other
United States Federal or state bankruptcy, insolvency, receivership or similar
law;
(b) consents
to the institution of, or fails to contest in a timely and appropriate manner,
any proceeding or the filing of any petition described in Clause 22.7
(Parent
Guarantor involuntary proceedings)
above;
(c) applies
for or consents to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Parent Guarantor or
for a
substantial part of the property or assets of the Parent
Guarantor;
(d) files
an
answer admitting the material allegations of a petition filed against it
in any
such proceeding;
(e) makes
a general assignment for the benefit of creditors;
(f)
becomes unable, admits in writing its inability or fails generally to pay
its
debts as they become due; or
(g) takes
any
action for the purpose of effecting any of the foregoing.
22.9 |
Judgments
|
One
or
more judgments for the payment of money in an aggregate amount equal to or
greater than $100,000,000 (exclusive of any amount thereof covered by insurance)
shall be rendered against the Parent Guarantor, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed
(for this purpose, a judgment shall be effectively stayed during a period when
it is not yet due and payable), or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of the Parent Guarantor
or
any Subsidiary to enforce any such judgment.
22.10 |
ERISA
Events
|
(a) A
Plan of
the Parent Guarantor shall fail to maintain the minimum funding standard
required by Section 412 of the Code for any plan year or a waiver of such
standard is sought or granted under Section 412(d); or
(b) an
ERISA
Termination Event shall have occurred with respect to the Parent Guarantor
or an
ERISA Affiliate has incurred or is reasonably likely to incur a liability
to or
on account of a Plan under Section 4062, 4063, 4064, 4201 or 4204 of ERISA;
or
(c) the
Parent Guarantor or any ERISA Affiliate shall engage in any prohibited
transaction described in Sections 406 of ERISA or 4975 of the Code for
which
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a
statutory or class exemption is not available or a private exemption has not
been previously obtained from the United States Department of Labor; or
(d) the
Parent Guarantor or any ERISA Affiliate shall fail to pay any required
instalment or any other payment required to be paid by such entity under
Section 412 of the Code on or before the due date for such instalment or
other payment; or
(e) the
Parent Guarantor or any ERISA Affiliate shall fail to make any contribution
or
payment to any Multiemployer Plan (as defined in Section 4001(a)(3) of
ERISA) which the Parent Guarantor or any ERISA Affiliate is required to make
under any agreement relating to such Multiemployer Plan or any law pertaining
thereto, and there shall result from any such event or events either a liability
or a material risk of incurring a liability to the PBGC or a Plan which will
have a Material Adverse Effect in relation to the BMS Group.
22.11 |
Change
of control
|
A
Change
in Control shall occur.
22.12 |
Invalidity
|
At
any
time while this Agreement is in effect:
(a) the
guarantee in Clause 17.1 (Guarantee
and Indemnity)
shall
cease to be, or shall be asserted by any Guarantor not to be, a valid and
binding obligation on the part of any of the Guarantors;
(b) any
Qualifying NL Holdco Note shall cease to be, or shall be asserted by the
Primary
Guarantor not to be, a valid and binding obligation on the part of the Primary
Guarantor; or
(c) the
Lux
Holdco Note ceases to be legally and beneficially held by a member of the
BMS
Group.
22.13 |
Acceleration
|
On
and at
any time after the occurrence of an Event of Default (other than Events of
Default listed in Clause 22.7 (Parent
Guarantor involuntary proceedings)
and
Clause 22.8 (Parent
Guarantor voluntary proceedings)
which
is continuing, the Agent, at the request of the Majority Lenders, shall, by
notice to the Borrower, take any of the following actions, at the same or
different times:
(a) terminate
forthwith the Commitments;
(b) declare
the Loans then outstanding to be forthwith due and payable in whole or in
part,
whereupon the principal of the Loans so declared to be due and payable, together
with accrued interest thereon and any unpaid accrued fees and all other
liabilities of the Obligors accrued hereunder, shall become forthwith due
and
payable, without presentment, demand, protect or any other
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notice
of
any kind, all of which are hereby expressly waived anything contained herein
to
the contrary notwithstanding; and/or
(c) declare
that all or part of the Loans be payable on demand, whereupon they shall
immediately become payable on demand by the Agent on the instructions of
the
Majority Lenders.
22.14 |
Automatic
Acceleration
|
On
and at
any time after the occurrence of an Event of Default listed in Clauses 22.7
(Parent
Guarantor involuntary proceedings)
and
22.8 (Parent
Guarantor voluntary proceedings),
the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued
fees
and all other liabilities accrued hereunder shall automatically become due
and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived anything contained herein to the
contrary notwithstanding.
23. |
CHANGES
TO THE LENDERS
|
23.1 |
Assignments,
transfers, sub-participations and changes in Facility Office by the
Lenders
|
Subject
to this Clause 23, a Lender (the “Existing
Lender”)
may:
(a) assign
any of its rights; or
(b) transfer
by novation any of its rights and obligations,
to
another bank or financial institution (the “New
Lender”),
or
sub-participate any of its rights or obligations to another bank or financial
institution, or change its Facility Office.
23.2 |
Conditions
of assignment, transfer or change in Facility
Office
|
(a) The
consent of the Borrower (not to be unreasonably withheld or delayed) is required
for an assignment or transfer by an Existing Lender, (unless the assignment
or
transfer is to another Lender or an Affiliate of a Lender or any Event of
Default pursuant to Clauses 22.5 (Insolvency
of the Borrower or any Guarantor (other than the Parent
Guarantor)),
22.6
(Insolvency
proceedings of the Borrower or any Guarantor (other than the Parent
Guarantor)),
22.7
(Parent
Guarantor involuntary proceedings)
or 22.8
(Parent
Guarantor voluntary proceedings)
has
occurred and is continuing).
(b) The
Borrower will be deemed to have given its consent ten (10) Business Days
after
the Existing Lender has requested it unless consent is expressly refused
by the
Borrower within that time.
(c) An
assignment will only be effective on:
(i)
receipt
by the Agent of written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will
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assume
the same obligations to the other Finance Parties as it would have been under
if
it was an Original Lender; and
(ii) performance
by the Agent of all "know your customer" or other checks relating to any
person
that it is required to carry out in relation to such assignment to a New
Lender,
the completion of which the Agent shall promptly notify to the Existing Lender
and the New Lender.
(d) A
transfer will only be effective if the procedure set out in Clause 23.5
Procedure
for transfer)
is
complied with.
(e)
If:
(i) a
Lender
assigns or transfers any of its rights or obligations under the Finance
Documents or changes its Facility Office; and
(ii) as
a
result of circumstances existing at the date the assignment, transfer or
change
occurs, an Obligor would be obliged to make a payment to the New Lender or
Lender acting through its new Facility Office under Clause 12 (Tax
gross-up and indemnities)
or
Clause 13 (Increased
Costs),
then
the
New Lender or Lender acting through its new Facility Office is only entitled
to
receive payment under those Clauses to the same extent as the Existing Lender
or
Lender acting through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
(f) Any
assignment or transfer of part of the Existing Lender’s rights and/or
obligations must be for a minimum amount of US$ 10,000,000 (unless the Borrower
and the Agent agree otherwise).
23.3 |
Assignment
or transfer fee
|
The
New
Lender shall, on the date upon which an assignment or transfer takes effect,
pay
to the Agent (for its own account) a fee of US$ 3,000.
23.4 |
Limitation
of responsibility of Existing
Lenders
|
(a) Unless
expressly agreed to the contrary, an Existing Lender makes no representation
or
warranty and assumes no responsibility to a New Lender for:
(i) the
legality, validity, effectiveness, adequacy or enforceability of the Finance
Documents or any other documents;
(ii) the
financial condition of any Obligor;
(iii) the
performance and observance by any Obligor of its obligations under the Finance
Documents or any other documents; or
(iv) the
accuracy of any statements (whether written or oral) made in or in connection
with any Finance Document or any other document,
-62-
and
any
representations or warranties implied by law are excluded.
(b) Each
New
Lender confirms to the Existing Lender and the other Finance Parties that
it:
(i) has
made
(and shall continue to make) its own independent investigation and assessment
of
the financial condition and affairs of each Obligor and its related entities
in
connection with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Existing Lender in
connection with any Finance Document; and
(ii) will
continue to make its own independent appraisal of the creditworthiness of
each
Obligor and its related entities whilst any amount is or may be outstanding
under the Finance Documents or any Commitment is in force.
(c) Nothing
in any Finance Document obliges an Existing Lender to:
(i) accept
a
re-transfer from a New Lender of any of the rights and obligations assigned
or
transferred under this Clause 23; or
(ii) support
any losses directly or indirectly incurred by the New Lender by reason of
the
non-performance by any Obligor of its obligations under the Finance Documents
or
otherwise.
23.5 |
Procedure
for transfer
|
(a) Subject
to the conditions set out in Clause 23.2 (Conditions
of assignment, transfer or sub-participation or change in Facility
Office)
a
transfer is effected in accordance with paragraph (c) below when the Agent
executes an otherwise duly completed Transfer Certificate delivered to it
by the
Existing Lender and the New Lender. The Agent shall, subject to paragraph
(b)
below, as soon as reasonably practicable after receipt by it of a duly completed
Transfer Certificate appearing on its face to comply with the terms of this
Agreement and delivered in accordance with the terms of this Agreement, and
notify the Borrower of the date of the transfer and name of the New Lender.
Each
Finance Party and each Obligor irrevocably authorises the Agent to sign such
a
Transfer Certificate on its behalf.
(b) The
Agent
shall only be obliged to execute a Transfer Certificate delivered to it by
the
Existing Lender and the New Lender once it is satisfied it has complied with
all
necessary "know your customer" or other similar checks under all applicable
laws
and regulations in relation to the transfer to such New
Lender.
(c) On
the
Transfer Date:
(i) to
the
extent that in the Transfer Certificate the Existing Lender seeks to transfer
by
novation its rights and obligations under the Finance Documents each of the
Obligors and the Existing Lender shall be released from further obligations
towards one another under the
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Finance
Documents and their respective rights against one another under the Finance
Documents shall be cancelled (being the “Discharged
Rights and Obligations”);
(ii) each
of
the Obligors and the New Lender shall assume obligations towards one another
and/or acquire rights against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor and the New Lender have
assumed and/or acquired the same in place of that Obligor and the Existing
Lender;
(iii) the
Agent, the Arrangers, the New Lender and other Lenders shall acquire the
same
rights and assume the same obligations between themselves as they would have
acquired and assumed had the New Lender been an Original Lender with the
rights
and/or obligations acquired or assumed by it as a result of the transfer
and to
that extent the Agent, the Arrangers and the Existing Lender shall each be
released from further obligations to each other under the Finance Documents;
and
(iv) the
New
Lender shall become a Party as a “Lender”.
23.6 |
Copy
of Transfer Certificate to
Borrower
|
The
Agent
shall, as soon as reasonably practicable after it has executed a Transfer
Certificate, send to the Borrower a copy of that Transfer
Certificate.
23.7 |
Disclosure
of information
|
Any
Lender may disclose to any of its Affiliates and any other Person:
(a) to
(or
through) whom that Lender assigns or transfers (or may potentially assign
or
transfer) all or any of its rights and obligations under this Agreement;
or
(b) with
(or
through) whom that Lender enters into (or may potentially enter into) any
sub-participation in relation to, or any other transaction under which payments
are to be made by reference to, this Agreement or any
Obligor;
any
information about any Obligor, the BMS Group and the Finance Documents as that
Lender shall consider appropriate if the Person to whom the information is
to be
given has entered into a Confidentiality Undertaking prior to such disclosure.
23.8 |
Sub
Participations
|
Each
Finance Party agrees that:
(a) no
Obligor shall incur any additional cost or expense (including, without
limitation, pursuant to Clause 12 (Tax
Gross-Up and Indemnities),
13
(Increased
Costs),
14
(Other
Indemnities)
or 16
(Costs
and Expenses))
as a
result of a Finance Party entering into a sub-participation arrangement in
relation to this Agreement;
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(b) third
parties to a sub-participation arrangement entered into with a Finance Party
shall have no rights under the Third Parties Act to enforce or to enjoy the
benefit of any term of this Agreement; and
(c)
it
will
not enter into any sub-participation arrangement which in any way restricts
its
ability to exercise or refrain from exercising any or all of its voting rights
arising under or in connection with the Finance Documents in relation to
matters
which constitute Defaults or which would require the consent of the Majority
Lenders or of all the Lenders in accordance with the terms of this
Agreement.
24. |
CHANGES
TO THE OBLIGORS
|
24.1 |
Assignments
and transfer by Obligors
|
No
Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
24.2 |
Additional
Guarantors
|
(a)
Subject
to compliance with the provisions of paragraphs (c) and (d) of Clause 19.4
(“Know
your Customer Checks”)
the
Borrower may request that any of its Finance Subsidiaries become an Additional
Guarantor. That Finance Subsidiary shall become an Additional Guarantor
if:
(i) the
Borrower delivers to the Agent a duly completed and executed Accession Letter;
and
(ii) the
Agent
has received all of the documents and other evidence listed in Part 2 of
Schedule 2 (Conditions
precedent)
in
relation to that Additional Guarantor, each in form and substance satisfactory
to the Agent.
(b) The
Agent
shall notify the Borrower and the Lenders promptly upon being satisfied that
it
has received (in form and substance satisfactory to it) all the documents
and
other evidence listed in Part 2 of Schedule 2 (Conditions
precedent).
24.3 |
Repetition
of Representations
|
Delivery
of an Accession Letter constitutes confirmation by the relevant Finance
Subsidiary that the Repeating Representations are true in all material respects
(or, in the case of a representation which is already qualified as to
materiality, it is true in all respects) as at the date of delivery as if made
by reference to the facts and circumstances then existing.
24.4 |
Resignation
of a Guarantor
|
(a) |
The
Borrower may request that a Guarantor (other than the Parent Guarantor
or
Primary Guarantor) cease to be a Guarantor by delivering to the Agent
a
Resignation Letter.
|
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(b) The
Agent
shall accept a Resignation Letter and notify the Borrower and the Lenders
of its
acceptance if:
(i)
no
Default is continuing or will result from the acceptance of the Resignation
Letter (and the Borrower has confirmed this is the case); and
(ii)
(A)
in
the
case of a Guarantor (other than the Parent Guarantor or the Primary Guarantor)
which has any interest in Qualifying NL Holdco Notes, the Majority Lenders
have
consented thereto; or
(B)
in
the
case of any other Guarantor (other than the Parent Guarantor or the Primary
Guarantor) such resignation is (x) in connection with a transaction permitted
under Clause 21.7 (Consolidations,
Amalgamations and Mergers)
involving such Guarantor or (y) the Majority Lenders have consented
thereto.
25. |
ROLE
OF THE AGENT AND THE
ARRANGERS
|
25.1 |
Appointment
of the Agent
|
(a)
Each
other Finance Party appoints the Agent to act as its agent under and in
connection with the Finance Documents.
(b)
Each
other Finance Party authorises the Agent to exercise the rights, powers,
authorities and discretions specifically given to the Agent under or in
connection with the Finance Documents together with any other incidental
rights,
powers, authorities and discretions.
25.2 |
Duties
of the Agent
|
(a)
The
Agent
shall promptly forward to a Party the original or a copy of any document
which
is delivered to the Agent for that Party by any other Party.
(b) Except
where a Finance Document specifically provides otherwise, the Agent is not
obliged to review or check the adequacy, accuracy or completeness of any
document it forwards to another Party.
(c) If
the
Agent receives notice from a Party referring to this Agreement, describing
a
Default and stating that the circumstance described is a Default, it shall
promptly notify the Finance Parties.
(d) If
the
Agent is aware of the non-payment of any principal, interest, commitment
fee or
other fee payable to a Finance Party (other than the Agent or the Arrangers)
under this Agreement it shall promptly notify the other Finance
Parties.
(e) The
Agent’s duties under the Finance Documents are solely mechanical and
administrative in nature.
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25.3 |
Role
of the Arrangers
|
Except
as
specifically provided in the Finance Documents, the Arrangers have no
obligations of any kind to any other Party under or in connection with any
Finance Document.
25.4 |
No
fiduciary duties
|
(a) Nothing
in this Agreement constitutes the Agent or the Arrangers as a trustee or
fiduciary of any other Person.
(b) Neither
the Agent nor the Arrangers shall be bound to account to any Lender for any
sum
or the profit element of any sum received by it for its own
account.
25.5 |
Business
with the BMS Group
|
The
Agent
and the Arrangers may accept deposits from, lend money to and generally engage
in any kind of banking or other business with any member of the BMS
Group.
25.6 |
Rights
and discretions of the
Agent
|
(a) The
Agent
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.
(b)
The
Agent
may assume (unless it has received notice to the contrary in its capacity
as
agent for the Lenders) that:
(i)
no
Default has occurred (unless it has actual knowledge of a Default arising
under
paragraphs (a) or (b) of Clause 22.1 (Non-payment);
(ii) any
right, power, authority or discretion vested in any Party or the Majority
Lenders has not been exercised; and
(iii)
any
notice or request made by the Borrower (other than a Utilisation Request
or
Selection Notice) is made on behalf of and with the consent and knowledge
of all
the Obligors.
(c) The
Agent
may engage, pay for and rely on the advice or services of any lawyers,
accountants, surveyors or other experts.
(d)
The
Agent
may act in relation to the Finance Documents through its personnel and
agents.
(e) The
Agent
may disclose to any other Party any information it reasonably believes it
has
received as agent under this Agreement.
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(f)
Notwithstanding
any other provision of any Finance Document to the contrary, neither the
Agent
nor an Arranger is obliged to do or omit to do anything if it would or
might in
its reasonable opinion constitute a breach of any law or regulation or
a breach
of a fiduciary duty or duty of confidentiality.
25.7 |
Majority
Lenders’ instructions
|
(a) Unless
a
contrary indication appears in a Finance Document, the Agent shall (i) exercise
any right, power, authority or discretion vested in it as Agent in accordance
with any instructions given to it by the Majority Lenders (or, if so instructed
by the Majority Lenders, refrain from exercising any right, power, authority
or
discretion vested in it as Agent) and (ii) not be liable for any act (or
omission) if it acts (or refrains from taking any action) in accordance with
an
instruction of the Majority Lenders.
(b)
Unless
a
contrary indication appears in a Finance Document, any instructions given
by the
Majority Lenders will be binding on all the Finance Parties.
(c)
The
Agent
may refrain from acting in accordance with the instructions of the Majority
Lenders (or, if appropriate, the Lenders) until it has received such security
as
it may require for any cost, loss or liability (together with amounts in
respect
of any associated VAT) which it may incur in complying with the
instructions.
(d)
In
the
absence of instructions from the Majority Lenders, (or, if appropriate, the
Lenders) the Agent may act (or refrain from taking action) as it considers
to be
in the best interest of the Lenders.
(e)
The
Agent
is not authorised to act on behalf of a Lender (without first obtaining that
Lender’s consent) in any legal or arbitration proceedings relating to any
Finance Document.
25.8 |
Responsibility
for documentation
|
Neither
the Agent nor either Arranger:
(a)
is
responsible for the adequacy, accuracy and/or completeness of any information
(whether oral or written) supplied by an Obligor or any other Person given
in or
in connection with any Finance Document or the Information Memorandum;
or
(b)
is
responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement, arrangement
or
document entered into, made or executed in anticipation of or in connection
with
any Finance Document.
25.9 |
Exclusion
of liability
|
(a)
Without
limiting paragraph (b) below, the Agent will not be liable for any action
taken
by it under or in connection with any Finance Document, unless directly caused
by its gross negligence or wilful misconduct.
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(b)
No
Party
(other than the Agent) may take any proceedings against any officer, employee
or
agent of the Agent in respect of any claim it might have against the Agent
or in
respect of any act or omission of any kind by that officer, employee or agent
in
relation to any Finance Document and any officer, employee or agent of the
Agent
may rely on this Clause subject to Clause 1.3 (Third
party rights)
and the
provisions of the Third Parties Act.
(c)
The
Agent
will not be liable for any delay (or any related consequences) in crediting
an
account with an amount required under the Finance Documents to be paid by
the
Agent if the Agent has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating procedures of any
recognised clearing or settlement system used by the Agent for that
purpose.
(d)
Nothing
in this Agreement shall oblige the Agent or the Arranger to carry out any
"know
your customer" or other checks in relation to any person on behalf of any
Lender
and each Lender confirms to the Agent and the Arranger that it is solely
responsible for any such checks it is required to carry out and that it may
not
rely on any statement in relation to such checks made by the Agent or the
Arrangers.
25.10 |
Lenders’
indemnity to the Agent
|
Each
Lender shall (in proportion to its share of the Total Commitments or, if the
Total Commitments are then zero, to its share of the Total Commitments
immediately prior to their reduction to zero) indemnify the Agent, within three
Business Days of demand, against any cost, loss or liability incurred by the
Agent (otherwise than by reason of the Agent’s gross negligence or wilful
misconduct) in acting as Agent under the Finance Documents (unless the Agent
has
been reimbursed by an Obligor pursuant to a Finance Document).
25.11 |
Resignation
of the Agent
|
(a) The
Agent
may resign and appoint one of its Affiliates acting through an office in
the
United Kingdom as successor by giving notice to the other Finance Parties
and
the Borrower.
(b) Alternatively,
the Agent may resign by giving notice to the other Finance Parties and the
Borrower, in which case the Majority Lenders (may with the prior written
consent
of the Borrower, such consent not to be unreasonably withheld or delayed)
appoint a successor Agent.
(c) If
the
Majority Lenders have not appointed a successor Agent in accordance with
paragraph (b) above within 30 days after notice of resignation was given,
the
Agent may (with the prior written consent of the Borrower , such consent
not to
be unreasonably withheld or delayed) appoint a successor Agent (acting through
an office in the United Kingdom).
(d) The
retiring Agent shall, at its own cost, make available to the successor Agent
such documents and records and provide such assistance as the
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successor
Agent may reasonably request for the purposes of performing its functions as
Agent under the Finance Documents.
(e) The
Agent’s resignation notice shall only take effect upon the appointment of a
successor.
(f) Upon
the
appointment of a successor, the retiring Agent shall be discharged from any
further obligation in respect of the Finance Documents but shall remain entitled
to the benefit of this Clause 25 (Role
of the Agent and the Arrangers).
Its
successor and each of the other Parties shall have the same rights and
obligations amongst themselves as they would have had if such successor had
been
an original Party.
(g) After
consultation with the Borrower, the Majority Lenders may, by notice to the
Agent, require it to resign in accordance with paragraph (b) above. In this
event, the Agent shall resign in accordance with paragraph (b)
above.
25.12 |
Confidentiality
|
(a) In
acting
as agent for the Finance Parties, the Agent shall be regarded as acting through
its agency division which shall be treated as a separate entity from any
other
of its divisions or departments.
(b) If
information is received by another division or department of the Agent, it
may
be treated as confidential to that division or department and the Agent shall
not be deemed to have notice of it.
25.13 |
Relationship
with the Lenders
|
(a) The
Agent
may treat each Lender as a Lender, entitled to payments under this Agreement
and
acting through its Facility Office unless it has received not less than five
Business Days prior notice from that Lender to the contrary in accordance
with
the terms of this Agreement.
(b)
Each
Lender shall supply the Agent with any information required by the Agent
in
order to calculate the Mandatory Cost in accordance with Schedule 4
(Mandatory
Cost formula).
25.14 |
Credit
appraisal by the Lenders
|
Without
affecting the responsibility of any Obligor for information supplied by it
or on
its behalf in connection with any Finance Document, each Lender confirms to
the
Agent and the Arrangers that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with any Finance Document including but
not
limited to:
(a) the
financial condition, status and nature of each Obligor;
(b) the
legality, validity, effectiveness, adequacy or enforceability of any Finance
Document and any other agreement, arrangement or document entered into, made
or
executed in anticipation of, under or in connection with any Finance
Document;
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(c) whether
that Lender has recourse, and the nature and extent of that recourse, against
any Party or any of its respective assets under or in connection with any
Finance Document, the transactions contemplated by the Finance Documents
or any
other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document;
and
(d) the
adequacy, accuracy and/or completeness of the Information Memorandum and
any
other information provided by the Agent, any Party or by any other Person
under
or in connection with any Finance Document, the transactions contemplated
by the
Finance Documents or any other agreement, arrangement or document entered
into,
made or executed in anticipation of, under or in connection with any Finance
Document.
25.15 |
Reference
Banks
|
If
a
Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which
it
is an Affiliate) ceases to be a Lender, the Agent shall (in consultation with
the Borrower) appoint another Lender or an Affiliate of a Lender to replace
that
Reference Bank.
25.16 |
Deduction
from amounts payable by the
Agent
|
If
any
Party owes an amount to the Agent under the Finance Documents the Agent may,
after giving notice to that Party, deduct an amount not exceeding that amount
from any payment to that Party which the Agent would otherwise be obliged to
make under the Finance Documents and apply the amount deducted in or towards
satisfaction of the amount owed. For the purposes of the Finance Documents
that
Party shall be regarded as having received any amount so deducted.
26. |
CONDUCT
OF BUSINESS BY THE FINANCE
PARTIES
|
No
provision of this Agreement will:
(a) subject
to the specific obligations of the Finance Parties hereunder, interfere with
the
right of any Finance Party to arrange its affairs (tax or otherwise) in whatever
manner it thinks fit;
(b) oblige
any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim;
or
(c) oblige
any Finance Party to disclose any information relating to its affairs (tax
or
otherwise) or any computations in respect of Tax.
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27. |
SHARING
AMONG THE FINANCE PARTIES
|
27.1 |
Payments
to Finance Parties
|
If
a
Finance Party (a “Recovering
Finance Party”)
receives or recovers any amount from an Obligor other than in accordance with
Clause 28 (Payment
mechanics)
and
applies that amount to a payment due under the Finance Documents
then:
(a) the
Recovering Finance Party shall, within three Business Days, notify details
of
the receipt or recovery, to the Agent;
(b) the
Agent shall determine whether the receipt or recovery is in excess of the
amount
the Recovering Finance Party would have been paid had the receipt or recovery
been received or made by the Agent and distributed in accordance with Clause
28
(Payment
mechanics),
without taking account of any Tax which would be imposed on the Agent in
relation to the receipt, recovery or distribution; and
(c) the
Recovering Finance Party shall, within three Business Days of demand by the
Agent, pay to the Agent an amount (the “Sharing
Payment”)
equal
to such receipt or recovery less any amount which the Agent determines may
be
retained by the Recovering Finance Party as its share of any payment to be
made,
in accordance with Clause 28.5 (Partial
payments).
27.2 |
Redistribution
of payments
|
The
Agent
shall treat the Sharing Payment as if it had been paid by the relevant Obligor
and distribute it between the Finance Parties (other than the Recovering Finance
Party) in accordance with Clause 28.5 (Partial
payments).
27.3 |
Recovering
Finance Party’s rights
|
(a) On
a
distribution by the Agent under Clause 27.2 (Redistribution
of payments),
the
Recovering Finance Party will be subrogated to the rights of the Finance
Parties
which have shared in the redistribution.
(b) If
and to the extent that the Recovering Finance Party is not able to rely on
its
rights under paragraph (a) above, the relevant Obligor shall be liable to
the
Recovering Finance Party for a debt equal to the Sharing Payment which is
immediately due and payable.
27.4 |
Reversal
of redistribution
|
If
any
part of the Sharing Payment received or recovered by a Recovering Finance Party
becomes repayable and is repaid by that Recovering Finance Party,
then:
(a)
each
Finance Party which has received a share of the relevant Sharing Payment
pursuant to Clause 27.2 (Redistribution
of payments)
shall,
upon request of the Agent, pay to the Agent for account of that Recovering
Finance Party an amount equal to the appropriate part of its share of the
Sharing Payment (together with an amount as is necessary to reimburse
that
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Recovering
Finance Party for its proportion of any interest on the Sharing Payment which
that Recovering Finance Party is required to pay); and
(b)
that
Recovering Finance Party’s rights of subrogation in respect of any reimbursement
shall be cancelled and the relevant Obligor will be liable to the reimbursing
Finance Party for the amount so reimbursed.
27.5 |
Exceptions
|
(a)
This
Clause 27 shall not apply to the extent that the Recovering Finance Party
would
not, after making any payment pursuant to this Clause, have a valid and
enforceable claim against the relevant Obligor.
(b) A
Recovering Finance Party is not obliged to share with any other Finance Party
any amount which the Recovering Finance Party has received or recovered as
a
result of taking legal or arbitration proceedings, if:
(i) it
notified that other Finance Party of the legal or arbitration proceedings;
and
(ii) that
other Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably practicable
having received notice and did not take separate legal or arbitration
proceedings.
28. |
PAYMENT
MECHANICS
|
28.1 |
Payments
to the Agent
|
(a) On
each date on which an Obligor or a Lender is required to make a payment under
a
Finance Document, that Obligor or Lender shall make the same available to
the
Agent (unless a contrary indication appears in a Finance Document) for value
on
the due date at the time and in such funds specified by the Agent as being
customary at the time for settlement of transactions in the relevant currency
in
the place of payment.
(b)
Payment
shall be made to such account in the principal financial centre of the country
of that currency with such bank as the Agent specifies.
28.2 |
Distributions
by the Agent
|
Each
payment received by the Agent under the Finance Documents for another Party
shall, subject to Clause 28.3 (Distributions
to an Obligor)
and
Clause 28.4 (Clawback)
be made
available by the Agent as soon as practicable after receipt to the Party
entitled to receive payment in accordance with this Agreement (in the case
of a
Lender, for the account of its Facility Office), to such account as that Party
may notify to the Agent by not less than five Business Days’ notice with a bank
in the principal financial centre of the country of that currency.
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28.3 |
Distributions
to an Obligor
|
The
Agent
may (with the consent of the Obligor or in accordance with Clause 29
(Set-off))
apply
any amount received by it for that Obligor in or towards payment (on the date
and in the currency and funds of receipt) of any amount due from that Obligor
under the Finance Documents or in or towards purchase of any amount of any
currency to be so applied.
28.4 |
Clawback
|
(a) Where
a
sum is to be paid to the Agent under the Finance Documents for another Party,
the Agent is not obliged to pay that sum to that other Party (or to enter
into
or perform any related exchange contract) until it has been able to establish
to
its satisfaction that it has actually received that sum.
(b)
If
the
Agent pays an amount to another Party and it proves to be the case that the
Agent had not actually received that amount, then the Party to whom that
amount
(or the proceeds of any related exchange contract) was paid by the Agent
shall
on demand refund the same to the Agent together with interest on that amount
from the date of payment to the date of receipt by the Agent, calculated
by the
Agent to reflect its cost of funds.
28.5 |
Partial
payments
|
(a) If
the Agent receives a payment that is insufficient to discharge all the amounts
then due and payable by an Obligor under the Finance Documents, the Agent
shall
apply that payment towards the obligations of that Obligor under the Finance
Documents in the following order:
(i) first,
in or
towards payment pro rata of any unpaid fees, costs and expenses of the Agent
under the Finance Documents;
(ii) secondly,
in or
towards payment pro rata of any accrued interest, fee or commission due but
unpaid under this Agreement;
(iii) thirdly,
in or
towards payment pro rata of any principal due but unpaid under this Agreement;
and
(iv) fourthly,
in or
towards payment pro rata of any other sum due but unpaid under the Finance
Documents.
(b)
The
Agent
shall, if so directed by the Majority Lenders, vary the order set out in
paragraphs (a)(ii) to (iv) above.
(c) Paragraphs
(a) and (b) above will override any appropriation made by an
Obligor.
28.6 |
No
set-off by Obligors
|
All
payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for) set-off
or counterclaim.
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28.7 |
Business
Days
|
(a) Any
payment which is due to be made on a day that is not a Business Day shall
be
made on the next Business Day in the same calendar month (if there is one)
or
the preceding Business Day (if there is not).
(b) During
any extension of the due date for payment of any principal or Unpaid Sum
under
this Agreement interest is payable on the principal or Unpaid Sum at the
rate
payable on the original due date.
28.8 |
Currency
of account
|
(a) Subject
to paragraphs (b) and (c) below, Dollars is the currency of account and payment
for any sum due from an Obligor under any Finance Document.
(b) Each
payment in respect of costs, expenses or Taxes shall be made in the currency
in
which the costs, expenses or Taxes are incurred.
(c) Any
amount expressed to be payable in a currency other than Dollars shall be
paid in
that other currency.
28.9 |
Change
of currency
|
(a) Unless
otherwise prohibited by law, if more than one currency or currency unit are
at
the same time recognised by the central bank of any country as the lawful
currency of that country, then:
(i) any
reference in the Finance Documents to, and any obligations arising under
the
Finance Documents in, the currency of that country shall be translated into,
or
paid in, the currency or currency unit of that country designated by the
Agent
(after consultation with the Borrower); and
(ii) any
translation from one currency or currency unit to another shall be at the
official rate of exchange recognised by the central bank for the conversion
of
that currency or currency unit into the other, rounded up or down by the
Agent
(acting reasonably).
(b) If
a change in any currency of a country occurs, the Parties will enter
negotiations in good faith with a view to agreeing any amendment which may
be
necessary to this Agreement to comply with any generally accepted conventions
and market practice in the Relevant Interbank Market and otherwise to reflect
the change in currency.
28.10 |
USA
Patriot Act
|
Each
Lender hereby notifies the Obligors that pursuant to the requirements
of
the USA Patriot Act (Title III of Pub. L. 107.56 (signed into law
October
26, 2001)) (the “Act”),
it may be required to obtain, verify and record information that
identifies the Obligors, which information includes the name and
address
of each Obligor and other information that will allow such Lender
to
identify the Obligors in accordance with the
Act.
|
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29. |
SET-OFF
|
At
any
time after an Event of Default has occurred which is continuing, a Finance
Party
may on giving notice to the Obligor set off any matured obligation due from
an
Obligor under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party to
that
Obligor, regardless of the place of payment, booking branch or currency of
either obligation. If the obligations are in different currencies, the Finance
Party may convert either obligation at a market rate of exchange in its usual
course of business for the purpose of the set-off.
30. |
NOTICES
|
30.1 |
Communications
in writing
|
Any
communication to be made under or in connection with the Finance Documents
shall
be made in writing and, unless otherwise stated, may be made by fax or
letter.
30.2 |
Addresses
|
The
address and fax number (and the department or officer, if any, for whose
attention the communication is to be made) of each Party for any communication
or document to be made or delivered under or in connection with the Finance
Documents is:
(a)
in
the
case of the Borrower, that identified with its name below;
(b)
in
the
case of each Lender or any other Original Obligor, that notified in writing
to
the Agent on or prior to the date on which it becomes a Party;
and
(c) in
the case of the Agent, that identified with its name below,
or
any
substitute address or fax number or department or officer as the Party may
notify to the Agent (or the Agent may notify to the other Parties, if a change
is made by the Agent) by not less than five Business Days’ notice.
30.3 |
Delivery
|
(a) Any
communication or document made or delivered by one Person to another under
or in
connection with the Finance Documents will only be effective:
(i) if
by way of fax, when received in legible form; or
(ii) if
by way of letter, when it has been left at the relevant address or five Business
Days after being deposited in the post postage prepaid in an envelope addressed
to it at that address;
and,
if a
particular department or officer is specified as part of its address details
provided under Clause 30.2 (Addresses),
if
addressed to that department or officer.
(b) Any
communication or document to be made or delivered to the Agent will be effective
only when actually received by the Agent and then only if it is
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expressly
marked for the attention of the department or officer identified with the
Agent’s signature below (or any substitute department or officer as the Agent
shall specify for this purpose).
(c)
All
notices from or to an Obligor shall be sent through the
Agent.
(d) Any
communication or document made or delivered to the Borrower in accordance
with
this Clause will be deemed to have been made or delivered to each of the
Obligors.
30.4 |
Notification
of address and fax number
|
Promptly
upon receipt of notification of an address or fax number or change of address
or
fax number pursuant to Clause 30.2 (Addresses)
or
changing its own address or fax number, the Agent shall notify the other
Parties.
30.5 |
Electronic
communication
|
(a) Any
communication to be made between the Agent and a Lender under or in connection
with the Finance Documents may be made by electronic mail or other electronic
means, if the Agent and the relevant Lender:
(i)
agree
that, unless and until notified to the contrary, this is to be an accepted
form
of communication;
(ii)
notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by
that
means; and
(iii) notify
each other of any change to their address or any other such information supplied
by them.
(b) Any
electronic communication made between the Agent and a Lender will be effective
only when actually received in readable form and in the case of any electronic
communication made by a Lender to the Agent only if it is addressed in such
a
manner as the Agent shall specify for this purpose.
30.6 |
English
language
|
(a) Any
notice given under or in connection with any Finance Document must be in
English.
(b) All
other documents provided under or in connection with any Finance Document
must
be:
(i) in
English; or
(ii)
if
not in
English, and if so required by the Agent, accompanied by a certified English
translation and, in this case, the English translation will prevail unless
the
document is a constitutional, statutory or other official
document.
-77-
31. |
CALCULATIONS
AND CERTIFICATES
|
31.1 |
Accounts
|
In
any
litigation or arbitration proceedings arising out of or in connection with
a
Finance Document, the entries made in the accounts maintained by a Finance
Party
are prima
facie
evidence
of the matters to which they relate.
31.2 |
Certificates
and Determinations
|
Any
certification or determination by a Finance Party of a rate or amount under
any
Finance Document is, in the absence of manifest or proven error, prima
facie evidence
of the matters to which it relates.
31.3 |
Day
count convention
|
Any
interest, commission or fee accruing under a Finance Document will accrue from
day to day and is calculated on the basis of the actual number of days elapsed
and a year of 360 days or, in any case where the practice in the Relevant
Interbank Market differs, in accordance with that market practice.
32. |
PARTIAL
INVALIDITY
|
If,
at
any time, any provision of the Finance Documents is or becomes illegal, invalid
or unenforceable in any respect under any law of any jurisdiction, neither
the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
33. |
REMEDIES
AND WAIVERS
|
No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise or the exercise of any other right or remedy.
The
rights and remedies provided in this Agreement are cumulative and not exclusive
of any rights or remedies provided by law.
34. |
AMENDMENTS
AND WAIVERS
|
34.1 |
Required
consents
|
(a) Subject
to Clause 34.2 (Exceptions)
any
term of the Finance Documents may be amended or waived only with the consent
of
the Majority Lenders and the Obligors and any such amendment or waiver will
be
binding on all Parties.
(b) The
Agent
may effect, on behalf of any Finance Party, any amendment or waiver permitted
by
this Clause.
34.2 |
Exceptions
|
(a) An
amendment or waiver that has the effect of changing or which relates
to:
-78-
(i) the
definition of “Majority Lenders” in Clause 1.1 (Definitions);
(ii) an
extension to the date of payment of any amount under the Finance
Documents;
(iii) a
reduction in the Margin or a reduction in the amount of any payment of
principal, interest, fees or commission payable;
(iv) an
increase in or an extension of any Commitment;
(v) a
change to the Borrower or Guarantors other than in accordance with Clause
24
(Changes
to the Obligors);
(vi) any
provision which expressly requires the consent of all the Lenders;
or
(vii) Clause
2.2 (Finance
Parties’ rights and obligations),
Clause
23 (Changes
to the Lenders)
or this
Clause 34,
shall
not
be made without the prior consent of all the Lenders.
(b) An
amendment or waiver which relates to the rights or obligations of the Agent
or
the Arrangers may not be effected without the consent of the Agent or an
Arranger.
35. |
COUNTERPARTS
|
Each
Finance Document may be executed in any number of counterparts, and this has
the
same effect as if the signatures on the counterparts were on a single copy
of
the Finance Document.
36. |
CONFIDENTIALITY
|
36.1 |
Each
of the Finance Parties expressly agrees, for the benefit of the Parent
Guarantor and the Subsidiaries, to maintain the confidentiality of
the
Confidential Information, except that Confidential Information may
be
disclosed:
|
(a) to
its and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Confidential Information and instructed to keep such Confidential
Information confidential);
(b) to
the extent requested by any regulatory or self-regulatory
authority;
(c) to
the extent required by applicable laws or regulations or by any subpoena
or
similar legal process;
(d) to
any other Party;
-79-
(e) in
connection with the exercise of any remedies under this Agreement or any
suit,
action or proceeding relating to this Agreement or the enforcement of rights
under this Agreement;
(f) subject
to Clause 23.7 (Disclosure
of information)
and an
express agreement for the benefit of the Parent Guarantor and the Subsidiaries
containing provisions substantially the same as those of this Clause, to
any
assignee of or participant in, or any prospective assignee of or participant
in,
any of its rights or obligations under this Agreement;
(g) with
the
consent of the Parent Guarantor or the Subsidiaries, as applicable;
or
(h) to
the
extent such Confidential Information:
(i) becomes
publicly available other than as a result of a breach of this Agreement;
or
(ii) becomes
available to any Finance Party on a non confidential basis from a source
other
than the Parent Guarantor or the Subsidiaries.
36.2 |
Any
Person required to maintain the confidentiality of Confidential
Information as provided in this Clause 36 shall be considered to
have
complied with its obligation to do so if such Person has exercised
the
same degree of care to maintain the confidentiality of such Confidential
Information as such Person would accord to its own confidential
information; provided, however, that with respect to disclosures
pursuant
to sub-clauses 36.1(b) and 36.1(c), unless prohibited by law or applicable
court order, each Finance Party shall attempt to notify the Parent
Guarantor of any request by any Government Authority or representative
thereof or other Person for disclosure of Confidential Information
after
receipt of such request, and if reasonable, practicable and permissible,
before disclosure of such Confidential Information. It is understood
and
agreed that the Parent Guarantor, the Subsidiaries and their respective
Affiliates may rely upon this Clause 36 for any purpose, including
without
limitation to comply with Regulation
FD.
|
37. |
GOVERNING
LAW
|
This
Agreement is governed by English law.
38. |
ENFORCEMENT
|
38.1 |
Jurisdiction
|
(a) The
courts of England have non-exclusive jurisdiction to settle any dispute arising
out of or in connection with this Agreement (including a dispute regarding
the
existence, validity or termination of this Agreement) (a “Dispute”).
(b) The
Parties agree that the courts of England are the most appropriate and convenient
courts to settle Disputes and accordingly no Party will argue to the
contrary.
-80-
(c) Notwithstanding
paragraphs (a) and (b) above, no Party shall be prevented from taking
proceedings relating to a Dispute in any other courts with jurisdiction.
To the
extent allowed by law, the Parties may take concurrent proceedings in any
number
of jurisdictions.
38.2 |
Service
of process
|
Without
prejudice to any other mode of service allowed under any relevant law, each
Obligor (other than an Obligor incorporated in England and Wales):
(a) irrevocably
appoints Xxxxxxx-Xxxxx Squibb Pharmaceuticals Limited as its agent for service
of process in relation to any proceedings before the English courts in
connection with any Finance Document; and
(b) agrees
that failure by a process agent to notify the relevant Obligor of the process
will not invalidate the proceedings concerned.
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
-81-
SCHEDULE
1
THE
ORIGINAL PARTIES
Part
1 The
Original Obligors
Name
of Original Borrower
|
Registration
number
(or
equivalent, if any)
|
BMS
Omega Bermuda Holdings Finance Ltd.
|
EC
32796
|
Name
of Original Guarantor
|
Registration
number
(or
equivalent, if any)
|
Xxxxxxx-Xxxxx
Squibb Company
BMS
Pharmaceuticals Netherlands Holdings B.V.
Xxxxxxx-Xxxxx
Squibb Luxembourg International SCA
Xxxxxxx-Xxxxx
Squibb Sigma Finance Limited
|
N/A
30184186
B-89.590
EC
36445
|
Part
2 The
Original Lenders
Name
of Original Lender
|
Tranche
A Commitment (US$)
|
Tranche
B Commitment (US$)
|
BNP
Paribas Ireland
|
160,000,000
|
40,000,000
|
The
Royal Bank of Scotland plc
|
160,000,000
|
40,000,000
|
Deutsche
Bank AG, London Branch
|
120,000,000
|
30,000,000
|
HSBC
Bank USA, National Association
|
120,000,000
|
30,000,000
|
The
Bank of Tokyo-Mitsubishi, Ltd., NY Branch
|
120,000,000
|
30,000,000
|
ABN
AMRO Bank N.V.
|
84,000,000
|
21,000,000
|
BANCO
SANTANDER
|
84,000,000
|
21,000,000
|
-00-
XXXXXXX
XXXXXXX, S.A.
|
||
Bank
of America, N.A.
|
84,000,000
|
21,000,000
|
Barclays
Bank PLC
|
84,000,000
|
21,000,000
|
Calyon
|
84,000,000
|
21,000,000
|
Citibank,
N.A.
|
84,000,000
|
21,000,000
|
Fortis
Bank SA/NV
|
84,000,000
|
21,000,000
|
JPMorgan
Chase Bank
|
84,000,000
|
21,000,000
|
Mizuho
Corporate Bank (USA)
|
84,000,000
|
21,000,000
|
XXXXXX
XXXXXXX BANK
|
84,000,000
|
21,000,000
|
SANPAOLO
IMI S.p.A.
|
84,000,000
|
21,000,000
|
UBS
AG, London Branch
|
84,000,000
|
21,000,000
|
Wachovia
Bank, National Association
|
84,000,000
|
21,000,000
|
Banco
Bilbao Vizcaya Argentaria S.A
|
48,000,000
|
12,000,000
|
The
Governor and Company of the Bank of Ireland
|
48,000,000
|
12,000,000
|
XXXXXXX
STREET CREDIT CORPORATION
|
48,000,000
|
12,000,000
|
Banca
Monte dei Paschi di Siena S.P.A.
|
36,000,000
|
9,000,000
|
Banca
Intesa S.p.A., London Branch
|
24,000,000
|
6,000,000
|
The
Bank of New York
|
24,000,000
|
6,000,000
|
Totals:
|
2,000,000,000
|
500,000,000
|
-83-
SCHEDULE
2
CONDITIONS
PRECEDENT
Part
1 Conditions
Precedent to Initial Utilisation
(a)
|
The
Borrower and the Guarantors shall have executed and delivered the
Finance
Documents.
|
(b)
|
The
Agent shall have received:
|
(i)
|
audited
consolidated financial statements of the Parent Guarantor for the
two most
recent fiscal years ended prior to the Closing Date;
and
|
(ii)
|
unaudited
interim consolidated financial statements of the Parent Guarantor
for each
quarterly period ended subsequent to the date of the latest financial
statements delivered pursuant to paragraph (i) above as to which
such
financial statements are available.
|
(c)
|
The
Lenders shall have received the legal opinions listed below (addressed
to
the Finance Parties and substantially in the form distributed to
the
Original Lenders prior to signing this Agreement), any other legal
opinions, documents and other instruments or certificates as are
customary
for transactions of this type or as they may reasonably
request:
|
(i)
|
A
legal opinion of White & Case, legal advisers to the Arrangers and the
Agent in England as to the enforceability of this
Agreement;
|
(ii)
|
A
legal opinion of Xxxxx, Xxxxx & Xxxxxx, legal advisers to the Arranger
and the Agent in Bermuda as to capacity and due execution of those
Obligors incorporated in Bermuda and the enforceability of this Agreement;
|
(iii)
|
A
legal opinion of Loyens &Loeff, legal advisers to the Arrangers and
the Agent in The Netherlands as to capacity and due execution of
those
Obligors incorporated in The Netherlands and the enforceability of
this
Agreement;
|
(iv)
|
A
legal opinion of Linklaters Xxxxxx, legal advisers to the Borrower
in
Luxembourg as to capacity and due execution of those Obligors incorporated
in Luxembourg and the enforceability of this Agreement;
|
(v)
|
A
legal opinion of in-house legal counsel to the Parent Guarantor in
the
United States as to its capacity to enter into and due execution
of this
Agreement; and
|
(vi)
|
A
legal opinion of White & Case LLP, legal advisors to Arrangers and the
Agent in the United States as to the enforceability of this
Agreement.
|
-84-
(d)
|
The
Agent shall have received a certificate, dated as at a date on or
after
the date of this Agreement and on or prior to the Closing Date and
signed
by the president, a vice president or a financial officer of the
Borrower
and each of the Original Guarantors,
confirming:
|
(i)
|
that
the representations and warranties in the Finance Documents shall
be true
and correct in all material respects (provided that representations
and
warranties with a materiality qualification shall be true and correct)
on
and as of the Closing Date;
|
(ii)
|
that
there is no continuing Default under the Finance Documents or continuing
default under the Qualifying NL Holdco Notes or the Lux Holdco Note
at the
date of such certificate or immediately after giving effect to the
Finance
Documents;
|
(iii)
|
that
each copy document provided is correct, complete and in full force
and
effect;
|
(iv)
|
the
entering into of the Facility would not cause any borrowing or
guaranteeing limit in the constitutional documents of the Borrower
or any
Original Guarantor to be exceeded; and
|
(v)
|
the
solvency of the Borrower and each of the Original
Guarantors.
|
(e)
|
The
Arrangers, the Lenders and the Agent shall have received all fees
due and
payable on or prior to the Closing Date and all out-of-pocket expenses
required to be reimbursed or paid by the Borrower or the Original
Guarantors for which invoices have been presented not less than two
Business Days before the Closing
Date.
|
(f) The
Agent
shall have received:
(i)
|
copies
of the Borrower’s and each Original Guarantor’s constitutional documents,
certificates of incorporation and a certificate of good standing
(if
applicable);
|
(ii)
|
a
copy of a resolution of the Board of Directors of the Borrower and
each
Original Guarantor:
|
(A)
|
approving
the terms of, and the transactions contemplated by, the Finance Documents
to which it is a party and resolving that it execute the Finance
Documents
to which it is a party;
|
(B)
|
authorising
a specified person or persons to execute the Finance Documents to
which it
is a party on its behalf; and
|
(C)
|
authorising
a specified person or persons, on its behalf, to sign and/or despatch
all
documents and notices (including, if relevant, any Utilisation Request
and
Selection Notice) to be signed and/or despatched by it under or in
connection with the Finance Documents to which it is a
party.;
|
-85-
(iii)
|
to
the extent such resolutions are required by local corporate law,
a copy of
a resolution of the shareholders of each Original Guarantor and a
copy of
a board resolution of any corporate shareholder of any Original Guarantor,
in each case approving the terms of, and the transactions contemplated
by,
the Finance Documents; and
|
(iv)
|
a
specimen of the signature of each Person authorised on behalf of
the
Borrower and each Original Guarantor to execute or witness the execution
of any Finance Document or to sign or send any document or notice
in
connection with any Finance
Document.
|
(g)
|
The
Borrower and each Original Guarantor shall have provided the Agent
with
evidence of the appointment of an agent for service of process in
England
and Wales.
|
-86-
Part
2 Conditions
Precedent Required to be Delivered by an Additional
Guarantor
1.
|
An
Accession Letter, duly executed by the Additional Guarantor and the
Borrower.
|
2.
|
A
copy of the constitutional documents of the Additional
Guarantor.
|
3.
|
A
copy of a resolution of the board of directors of the Additional
Guarantor:
|
(A)
|
approving
the terms of, and the transactions contemplated by, the Finance Documents
to which it is a party and resolving that it execute the Accession
Letter;
|
(B)
|
authorising
a specified person or persons to execute the Accession Letter on
its
behalf; and
|
(C)
|
authorising
a specified person or persons, on its behalf, to sign and/or despatch
all
documents and notices to be signed and/or despatched by it under
or in
connection with the Accession
Letter.
|
4.
|
To
the extent that it is required by local corporate law, a copy of
a
resolution of the shareholders of the Additional Guarantor and a
copy of a
board resolution of any corporate shareholder of the Additional Guarantor,
in each case approving the terms of, and the transactions contemplated
by,
the Finance Documents.
|
5.
|
A
specimen of the signature of each Person authorised on behalf of
the
Additional Guarantor to execute or witness the execution of Accession
Letter or to sign or send any document or notice in connection with
it.
|
6.
|
A
certificate of the Additional Guarantor (signed by a director) confirming
that guaranteeing the Total Commitments would not cause any guaranteeing
limit in its constitutional documents to be
exceeded.
|
7.
|
A
certificate of an authorised signatory of the Additional Guarantor
certifying that each copy document listed in this Part 2 of Schedule
2 is
correct, complete and in full force and effect as at a date no earlier
than the date of the Accession
Letter.
|
8.
|
A
legal opinion of the legal advisers to the Arrangers and the Agent
in
England.
|
9.
|
If
the Additional Guarantor is incorporated in a jurisdiction other
than
England and Wales, a legal opinion of the legal advisers to the Arrangers
and the Agent in the jurisdiction in which the Additional Guarantor
is
incorporated.
|
10.
|
If
the proposed Additional Guarantor is incorporated in a jurisdiction
other
than England and Wales, evidence that the process agent specified
in
Clause 38.2 (Service
of process),
if not an Obligor, has accepted its appointment in relation to the
proposed Additional Guarantor.
|
-87-
SCHEDULE
3
REQUESTS
Part
1 Utilisation
Request
From: BMS
Omega
Bermuda Holdings Finance Ltd.
To: The
Royal
Bank of Scotland plc
Dated
Dear
Sirs
BMS
Omega Bermuda Holdings Finance Ltd.- $2,500,000,000 Facility
Agreement
dated
5 August 2005 (the
“Agreement”)
1.
We
refer
to the Agreement. This is a Utilisation Request. Terms defined in the Agreement
have the same meaning in this Utilisation Request unless given a different
meaning in this Utilisation Request.
2.
We
wish
to borrow a [Tranche A/Tranche B] Loan on the following
terms:
Proposed
Utilisation Date: [ ]
(or, if that is not a Business Day, the next Business Day)
Amount: [ ]
or, if less, the Available Facility
Interest
Period: [ ]
3.
We
confirm that each applicable condition specified in Clause 4.2 (Further
conditions precedent)
is
satisfied on the date of this Utilisation Request.
4.
The
proceeds of this Loan should be credited to [account].
5.
This
Utilisation Request is irrevocable.
Yours
faithfully
…………………………………
authorised
signatory for
BMS
Omega
Bermuda Holdings Finance Ltd.
-88-
Part
2 Selection
Notice
From: BMS
Omega
Bermuda Holdings Finance Ltd.
To: The
Royal
Bank of Scotland plc
Dated
Dear
Sirs
BMS
Omega Bermuda Holdings Finance Ltd. - $2,500,000,000 Facility Agreement
dated
5 August 2005 (the
“Agreement”)
1.
We
refer
to the Agreement. This is a Selection Notice. Terms defined in the Agreement
have the same meaning in this Selection Notice unless given a different
meaning
in this Selection Notice.
2. We
refer
to the following [Tranche A/Tranche B● ]
Loan[s]
with an Interest Period ending on [ ]* .
3.
[We
request that the above Loan[s] be divided into
[ ]
Loans with the following amounts and Interest Periods:] * *
or
[We
request that the next Interest Period for the above Loan[s] is [ ]].* **
4.
This
Selection Notice is irrevocable.
Yours
faithfully
.....................................
authorised
signatory for
BMS
Omega
Bermuda Holdings Finance Ltd.
_______________________
● Only
Loans under the same Tranche can be the subject of a Selection
Notice.
* Insert
details of all Loans which have an Interest Period ending on the same
date.
** Use
this
option if division of Loans is requested.
*** Use
this
option if sub-division is not required.
-89-
SCHEDULE
4
MANDATORY
COST FORMULA
1.
|
The
Mandatory Cost is an addition to the interest rate to compensate
Lenders
for the cost of compliance with (a) the requirements of the Bank
of
England and/or the Financial Services Authority (or, in either case,
any
other authority which replaces all or any of its functions) or (b)
the
requirements of the European Central
Bank.
|
2.
|
On
the first day of each Interest Period (or as soon as possible thereafter)
the Agent shall calculate, as a percentage rate, a rate (the “Additional
Cost Rate”)
for each Lender, in accordance with the paragraphs set out below.
The
Mandatory Cost will be calculated by the Agent as a weighted average
of
the Lenders’ Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Loan) and
will be
expressed as a percentage rate per
annum.
|
3.
|
The
Additional Cost Rate for any Lender lending from a Facility Office
in a
Participating Member State will be the percentage notified by that
Lender
to the Agent. This percentage will be certified by that Lender in
its
notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender’s participation in all Loans
made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made
from
that Facility Office.
|
4.
|
The
Additional Cost Rate for any Lender lending from a Facility Office
in the
United Kingdom will be calculated by the Agent as
follows:
|
E
x 0.01 per cent. per annum.
300
Where:
E
|
is
designed to compensate Lenders for amounts payable under the Fees
Rules
and is calculated by the Agent as being the average of the most recent
rates of charge supplied by the Reference Banks to the Agent pursuant
to
paragraph 6 below and expressed in pounds per
£1,000,000.
|
5.
|
For the purposes of this Schedule: |
(a)
|
“Special
Deposits”
has the meaning given to it from time to time under or pursuant to
the
Bank of England Act 1998 or (as may be appropriate) by the Bank of
England;
|
(b)
|
“Fees
Rules”
means the rules on periodic fees contained in the FSA Supervision
Manual
or such other law or regulation as may be in force from time to time
in
respect of the payment of fees for the acceptance of
deposits;
|
(c)
|
“Fee
Tariffs”
means the fee tariffs specified in the Fees Rules under the activity
group
A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required
pursuant to the Fees Rules but taking into account any applicable
discount
rate); and
|
-90-
(d)
|
“Tariff
Base”
has the meaning given to it in, and will be calculated in accordance
with,
the Fees Rules.
|
6.
|
Each
rate calculated in accordance with the formula set out in paragraph
4
above, will, if necessary, be rounded upwards to four decimal
places.
|
7.
|
If
requested by the Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to
the
Agent, the rate of charge payable by that Reference Bank to the Financial
Services Authority pursuant to the Fees Rules in respect of the relevant
financial year of the Financial Services Authority (calculated for
this
purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed
in pounds per £1,000,000 of the Tariff Base of that Reference
Bank.
|
8.
|
Each
Lender shall supply any information required by the Agent for the
purpose
of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information on
or prior
to the date on which it becomes a
Lender:
|
(a) the
jurisdiction of its Facility Office; and
(a)
|
any
other information that the Agent may reasonably require for such
purpose.
|
Each
Lender shall promptly notify the Agent of any change to the information provided
by it pursuant to this paragraph.
9.
|
The
rates of charge of each Reference Bank for the purpose of E above
shall be
determined by the Agent based upon the information supplied to it
pursuant
to paragraphs 7 and 8 above and on the assumption that, unless a
Lender
notifies the Agent to the contrary, each Lender’s obligations in relation
to cash ratio deposits and Special Deposits are the same as those
of a
typical bank from its jurisdiction of incorporation with a Facility
Office
in the same jurisdiction as its Facility
Office.
|
10.
|
The
Agent shall have no liability to any Person if such determination
results
in an Additional Cost Rate which over or under compensates any Lender
and
shall be entitled to assume that the information provided by any
Lender or
Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and
correct
in all respects.
|
11.
|
The
Agent shall distribute the additional amounts received as a result
of the
Mandatory Cost to the Lenders on the basis of the Additional Cost
Rate for
each Lender based on the information provided by each Lender and
each
Reference Bank pursuant to paragraphs 3, 7 and 8
above.
|
12.
|
Any
determination by the Agent pursuant to this Schedule in relation
to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable
to a Lender shall, in the absence of manifest or proven error, be
conclusive and binding on all
Parties.
|
13.
|
The
Agent may from time to time, after consultation with the Borrower
and the
Lenders, determine and notify to all Parties any amendments which
are
required to be made to the formula set out in paragraph 4 of this
Schedule
in order to comply with any change in law, regulation or any requirements
from time to time imposed by the Bank of England, the Financial Services
Authority or the European Central Bank (or,
|
-91-
in
any
case, any other authority which replaces all or any of its functions) and any
such determination shall, in the absence of manifest or proven error, be
conclusive and binding on all Parties.
-92-
SCHEDULE
5
FORM
OF TRANSFER CERTIFICATE
To:
|
The
Royal Bank of Scotland plc as
Agent
|
From:
|
[The
Existing Lender]
(the “Existing
Lender”)
and [The
New Lender]
(the “New
Lender”)
|
Dated
BMS
Omega Bermuda Holdings Finance Ltd. - $2,500,000,000 Facility
Agreement
dated
5 August 2005 (the
“Agreement”)
1.
|
We
refer to the Agreement. This is a Transfer Certificate. Terms defined
in
the Agreement have the same meaning in this Transfer Certificate
unless
given a different meaning in this Transfer
Certificate.
|
2.
|
We
refer to Clause 23.5 (Procedure for
transfer):
|
(a)
|
The
Existing Lender and the New Lender agree to the Existing Lender
transferring to the New Lender by novation all or part of the Existing
Lender’s Commitment, rights and obligations referred to in the Schedule
in
accordance with Clause 23.5 (Procedure
for transfer).
|
(b)
|
The
proposed Transfer Date is
[ ].
|
(c)
|
The
Facility Office and address, fax number and attention details for
notices
of the New Lender for the purposes of Clause 30.2 (Addresses)
are set out in the Schedule.
|
3.
|
The
New Lender expressly acknowledges the limitations on the Existing
Lender’s
obligations set out in paragraph (c) of Clause 23.4 (Limitation
of responsibility of Existing Lenders).
|
4.
|
This
Transfer Certificate may be executed in any number of counterparts
and
this has the same effect as if the signatures on the counterparts
were on
a single copy of this Transfer
Certificate.
|
5.
|
This
Transfer Certificate is governed by English law.
|
6.
|
We
confirm that [we have received the consent of the Borrower to the
transfer
the subject of this Transfer Certificate/consent of the Borrower
was
requested on [ ] being at least ten (10) Business Days prior to the
date
hereof and such consent not having been expressly refused, the Borrower
is
deemed to have given its consent/consent of the Borrower is not required
pursuant to paragraph (a) of Clause 23.2 (Conditions of assignment,
transfer or change in Facility Office) in the circumstances of this
transfer].*delete as necessary
|
-93-
THE
SCHEDULE
Commitment/rights
and obligations to be transferred
[insert
relevant details]
[Facility
Office address, fax number and attention details for notices and account details
for payments,]
[Existing
Lender] [New
Lender]
By: By:
This
Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed
as
[ ].
The
Royal
Bank of Scotland plc
By:
-94-
SCHEDULE
6
FORM
OF ACCESSION LETTER
To: The
Royal
Bank of Scotland plc as Agent
From: [Finance
Subsidiary]
and BMS
Omega Bermuda Holdings Finance Ltd.
Dated
Dear
Sirs
BMS
Omega Bermuda Holdings Finance Ltd. - $2,500,000,000 Facility
Agreement
dated
5 August 2005 (the
“Agreement”)
1.
|
We
refer to the Agreement. This is an Accession Letter. Terms defined
in the
Agreement have the same meaning in this Accession Letter unless given
a
different meaning in this Accession
Letter.
|
2.
|
[Finance Subsidiary]
agrees to become an Additional Guarantor and to be bound by the terms
of
the Agreement as an Additional Guarantor pursuant to Clause 24.2
(Additional
Guarantors)
of the Agreement. [Finance Subsidiary]
is a company duly incorporated under the laws of [name
of relevant jurisdiction].
|
3.
|
[Finance Subsidiary’s]
administrative details are as
follows:
|
Address:
Fax
No:
Attention:
4.
|
This
Accession Letter is governed by English
law.
|
[This
Guarantor Accession Letter is entered into by deed.]
BMS
Omega
Bermuda Holdings Finance Ltd. [Finance
Subsidiary]
-95-
SCHEDULE
7
FORM
OF RESIGNATION LETTER
To:
The
Royal
Bank of Scotland plc as Agent
From: [resigning
Obligor]
and BMS
Omega Bermuda Holdings Finance Ltd.
Dated
Dear
Sirs
BMS
Omega Bermuda Holdings Finance Ltd. - $2,500,000,000 Facility
Agreement
dated
5 August 2005 (the
“Agreement”)
1.
|
We
refer to the Agreement. This is a Resignation Letter. Terms defined
in the
Agreement have the same meaning in this Resignation Letter unless
given a
different meaning in this Resignation
Letter.
|
2.
|
Pursuant
to Clause 24.4 (Resignation
of a Guarantor),
we request that [resigning
Obligor]
be released from its obligations as a Guarantor under the
Agreement.
|
3.
|
We
confirm that no Default is continuing or would result from the acceptance
of this request.
|
4.
|
This
Resignation Letter is governed by English
law.
|
BMS
Omega
Bermuda Holdings Finance Ltd. [resigning
Guarantor]
By:
By:
-96-
SCHEDULE
8
FORM
OF COMPLIANCE CERTIFICATE
To:
The
Royal
Bank of Scotland plc as Agent
From: [Parent
Guarantor/Primary Guarantor/Borrower]
Dated
Dear
Sirs
BMS
Omega Bermuda Holdings Finance Ltd. - $2,500,000,000 Facility
Agreement
dated
5 August 2005 (the
“Agreement”)
1.
|
We
refer to the Agreement. This is a Compliance Certificate. Terms defined
in
the Agreement have the same meaning in this Compliance Certificate
unless
given a different meaning in this Compliance
Certificate.
|
2.
|
We
confirm that:
|
Primary
Guarantor Financial Covenants
The
Primary Guarantor [has/has not] complied with the Financial Covenants applicable
to it set out in Clause 20.1 (Primary
Guarantor Financial Covenants).
[If
the
Primary Guarantor has not complied with the Financial Covenants applicable
to it
set out in Clause 20.1 (Primary
Guarantor Financial Covenants),
give
details of non-compliance, whether non-compliance is continuing and any steps
taken to remedy non-compliance:]
Parent
Guarantor Financial Covenant
The
Parent Guarantor [has/has not] complied with the Financial Covenant applicable
to it set out in Clause 20.2 (Parent
Guarantor and Borrower Financial Covenants).
[If
the
Parent Guarantor has not complied with the Financial Covenant applicable to
it
set out in Clause 20.2 (Parent
Guarantor and Borrower Financial Covenants),
give
details of non-compliance, whether non-compliance is continuing and any steps
taken to remedy non-compliance:]
Borrower
Financial Covenant
The
Borrower [has/has not] complied with the Financial Covenant applicable to it
set
out in Clause 20.2 (Parent
Guarantor and Borrower Financial Covenants).
[If
the
Borrower has not complied with the Financial Covenant applicable to it set
out
in Clause 20.2 (Parent
Guarantor and Borrower Financial Covenants),
give
details of non-compliance, whether non-compliance is continuing and any steps
taken to remedy non-compliance:]
-97-
Signed: ________________________
Director
of
[Parent
Guarantor/Primary Guarantor/Borrower]
[Endorsed
by the Parent Guarantor
____________________________
Director
of Parent Guarantor]
-98-
SCHEDULE
9
TIMETABLES
Delivery
of a duly completed Utilisation Request (Clause 5.1
(Delivery
of a Utilisation Request)
or
a
Selection Notice (Clause 9.1 (Selection of Interest Periods))
|
3
p.m., three Business Days prior to the Utilisation Date (in relation
to a
Utilisation Request)
3
p.m., three Business Days prior to the end of the current Interest
Period
(in relation to a Selection Notice)
|
Agent
notifies the Lenders of the Loan in accordance with
Clause 5.4
(Lenders’ participation)
|
5
p.m., three Business Days prior to the Utilisation Date (in relation
to a
Utilisation Request)
|
LIBOR
is fixed
|
Quotation
Day as of 11:00 a.m. London time
|
-99-
SCHEDULE
10
FORM
OF CONFIDENTIALITY UNDERTAKING
From: [Existing
Lender]
To:
[insert
name of Potential Lender]
Re:
Borrower:
|
BMS
Omega Bermuda Holdings Finance Ltd (the “Borrower”).
|
Guarantors:
|
BMS
Pharmaceutical Netherlands Holdings B.V. (the “Primary Guarantor”),
Xxxxxxx-Xxxxx Squibb Company (the “Parent Guarantor”) and Xxxxxxx-Xxxxx
Squibb Luxembourg International SCA.
|
Facility:
|
US$
2,500,000,000 Term Loan Facility
|
Dear
Sirs
We
understand that you are considering acquiring an interest in the Facility.
In
consideration of us agreeing to make available to you certain information,
by
your signature of a copy of this letter you agree as follows:
1.
|
Confidentiality
Undertaking
|
|
You
undertake:
|
(a)
|
to
keep the Confidential Information confidential and not to disclose
it to
anyone except as provided for by paragraph 2 below and to ensure
that the
Confidential Information is protected with security measures and
a degree
of care that would apply to your own confidential
information;
|
(b)
|
to
keep confidential and not disclose to anyone the fact that the
Confidential Information has been made available or that discussions
or
negotiations are taking place or have taken place between us in connection
with the Facility;
|
(c)
|
to
use the Confidential Information only for the Permitted
Purpose;
|
-100-
(d)
|
to
use all reasonable endeavours to ensure that any person to whom you
pass
any Confidential Information (unless disclosed under paragraph 2(b)
below)
acknowledges and complies with the provisions of this letter as if
that
person were also a party to it.
|
2.
|
Permitted
Disclosure
|
We
agree
that you may disclose Confidential Information:
(a)
|
to
members of the Participant Group and their officers, directors, employees
and professional advisers to the extent necessary for the Permitted
Purpose and to any auditors of members of the Participant
Group;
|
(b)
|
where
requested or required by any court of competent jurisdiction or any
competent judicial, governmental, supervisory or regulatory body,
(ii)
where required by the rules of any stock exchange on which the shares
or
other securities of any member of the Participant Group are listed
or
(iii) where required by the laws or regulations of any country with
jurisdiction over the affairs of any member of the Participant Group;
or
|
(c)
|
with
the prior written consent of us and the
Company.
|
3.
|
Notification
of Required or Unauthorised
Disclosure
|
You
agree
(to the extent permitted by law) to inform us and the Borrower of the full
circumstances of any disclosure under paragraph 2(b) or upon becoming aware
that Confidential Information has been disclosed in breach of this
letter.
4.
|
Return
of Copies
|
Should
you decide not to acquire an interest in the Facility, you shall return to
us
all Confidential Information supplied to you by us and destroy or permanently
erase all copies of Confidential Information made by you and use all reasonable
endeavours to ensure that anyone to whom you have supplied any Confidential
Information destroys or permanently erases such Confidential Information and
any
copies made by them, in each case save to the extent that you or the recipients
are required to retain any such Confidential Information by any applicable
law,
rule or regulation or by any competent judicial, governmental, supervisory
or
regulatory body, or where the Confidential Information has been disclosed under
paragraph 2(b) above.
5.
|
Continuing
Obligations
|
The
obligations in this letter are continuing and, in particular, shall survive
the
termination of any discussions or negotiations between you and us.
Notwithstanding the previous sentence, the obligations in this letter shall
cease (a) if you become a party to or otherwise acquire (by assignment or
transfer) a direct interest in the Facility or (b) (where (a) does not apply)
twelve months after you have returned all Confidential Information supplied
to
you by us and destroyed or permanently erased all copies of Confidential
Information made by you (other than any such Confidential Information or copies
which have been disclosed under paragraph 2 above (other than sub-paragraph
2(a)) or which, pursuant to paragraph 4 above, are not required to be returned
or destroyed).
-101-
6.
|
No
Representation; Consequences of Breach,
etc
|
You
acknowledge and agree that:
(a)
|
neither
we nor any of our officers, employees or advisers nor (except as
provided
in the Facility) the members of the Group or any of their officers,
employees or advisers (each a “Relevant
Person”)
(i) make any representation or warranty, express or implied, as to,
or
assume any responsibility for, the accuracy, reliability or completeness
of any of the Confidential Information or any other information supplied
by us or any member of the Group or the assumptions on which it is
based
or (ii) shall be under any obligation to update or correct any inaccuracy
in the Confidential Information or any other information supplied
by us or
any member of the Group or be otherwise liable to you or any other
person
in respect to the Confidential Information or any such information;
and
|
(b)
|
we
or members of the Group may be irreparably harmed by the breach of
the
terms of this letter and damages may not be an adequate remedy; each
Relevant Person or member of the Group may be granted an injunction
or
specific performance for any threatened or actual breach of the provisions
of this letter by you.
|
7.
|
No
Waiver; Amendments,
etc
|
This
letter sets out the full extent of your obligations of confidentiality owed
to
us and the Borrower in relation to the information which is the subject of
this
letter. No failure or delay in exercising any right, power or privilege under
this letter will operate as a waiver thereof nor will any single or partial
exercise of any right, power or privilege preclude any further exercise thereof
or the exercise of any other right, power or privileges under this letter.
The
terms of this letter and your obligations under this letter may only be amended
or modified by written agreement between you, us and the Borrower.
8.
|
Material
Non-public
Information
|
You
acknowledge that some or all of the Confidential Information is or may be
price-sensitive or material non-public information and that the use of such
information may be regulated or prohibited by applicable legislation, including
legislation relating to insider dealing, and you undertake to use any
Confidential Information only in accordance with your compliance policies and
contractual obligations and applicable law, including United States federal
and
state securities laws.
9.
|
Nature
of
Undertakings
|
The
undertakings given by you under this letter are given to us and (without
implying any fiduciary obligations on our part) are also given for the benefit
of, and may be enforced and relied upon by, the Borrower, the Guarantors and
each other member of the Group.
-102-
10.
|
Third
party
rights
|
(a)
|
Subject
to paragraph 6 and paragraph 9 the terms of this letter may be enforced
and relied upon only by you and us and the operation of the Contracts
(Rights of Third Parties) Xxx 0000 is
excluded.
|
(b)
|
Notwithstanding
any provisions of this letter, the parties to this letter do not
require
the consent of any Relevant Person or any member of the Group other
than
the Borrower to rescind or vary this letter at any
time.
|
11.
|
Governing
Law and
Jurisdiction
|
This
letter (including the agreement constituted by your acknowledgement of its
terms) shall be governed by and construed in accordance with the English law
and
the parties submit to the non-exclusive jurisdiction of the English court,
[which shall have jurisdiction over all litigations relating to the present
undertaking].
12.
|
Definitions
|
In
this
Confidentiality Undertaking (including the acknowledgement set out below)
capitalised terms not defined in this paragraph have the meanings attributed
to
them in the Facility Agreement. To the extent of any inconsistency between
a
term defined in this Confidentiality Agreement and in the Facility Agreement,
the term as defined in this Confidentiality Agreement shall prevail and:
“Confidential
Information”
means
any information relating to the Borrower, the Guarantors, the Group, and the
Facility including, without limitation, the information package, provided to
you
by us or any of our affiliates or advisers, in whatever form, and includes
information given orally and any document, electronic file or any other way
of
representing or recording information which contains or is derived or copied
from such information but excludes information that (a) is or becomes public
knowledge other than as a direct or indirect result of any breach of this letter
or (b) is known by you before the date the information is disclosed to you
by us
or any of our affiliates or advisers or is lawfully obtained by you after that
date, other than from a source which is connected with us or the Group and
which, in either case, as far as you are aware, has not been obtained in
violation of, and is not otherwise subject to, any obligation of
confidentiality;
“Facility
Agreement”
means
the agreement entered into in relation to the provision of the Facility to
the
Borrower;
“Group”
means
the Parent Guarantor and its subsidiaries from time to time;
“Participant
Group”
means
you, each of your holding companies and subsidiaries and each subsidiary of
each
of your holding companies (as each such term is defined in the Companies Act
1985); and
“Permitted
Purpose”
means
considering and evaluating whether to enter into the Facility.
Please
acknowledge your agreement to the above by signing and returning the enclosed
copy.
-103-
Yours
faithfully
[Existing
Lender]
To:
|
[Existing
Lender]:
|
The
Company and each
other member of the Group
We
acknowledge and agree to the above:
................................
For
and
on behalf of
[Potential
Lender]
-104-
SIGNATORIES
The
Borrower
Signed
by: XXXXXXXX
XXXXXXX duly authorised
for
and
on behalf of BMS
OMEGA BERMUDA HOLDINGS FINANCE LTD.
in
the
presence of:
XXX
XXXXX
Borrower’s
Address: Chancery Hall, 00 Xxxx Xxxxxx, Xxxxxxxx XX00, Xxxxxxx
Fax:
000
000
0000
Attention: Xxxxxxxx
Xxxxxxx
The
Original Guarantors
Signed
for and on behalf of
XXXXXXX-XXXXX
SQUIBB COMPANY
By:
|
X.X.
XXXXX
|
By:
|
XXXXXX
XXXXX
|
|
Name:
|
X.X.
Xxxxx
|
Name:
|
Xxxxxx
Xxxxx
|
|
Title:
|
V-P
Treasurer
|
Title:
|
Vice
President and Corporate
Secretary
|
Signed
for and on behalf of
BMS
PHARMACEUTICALS NETHERLANDS HOLDINGS B.V.
By:
|
M.E.
DOESWIJK
|
Name:
|
M.
E. Doeswijk
|
Title:
|
Director
|
Date:
|
August
5th,
2005
|
-105-
XXXXXXX-XXXXX
SQUIBB LUXEMBOURG INTERNATIONAL SCA
Represented
By:
|
XX
XXXXXXX XXX XXXXXX
|
Name:
|
Xx
Xxxxxxx Xxx Xxxxxx
|
Title:
|
Authorized
Officer
|
Signed
by: XXXXXXXX
XXXXXXX duly authorised
for
and
on behalf of XXXXXXX-XXXXX
SQUIBB SIGMA FINANCE LIMITED
in
the
presence of:
Witness:
XXX XXXXX
The
Arrangers
BNP
PARIBAS
By:
|
XXXXX
XXXXXXX
|
By:
|
XXXX
XXXXXX
|
|
Name:
|
Xxxxx
Xxxxxxx
|
Name:
|
Xxxx
Xxxxxx
|
THE
ROYAL BANK OF SCOTLAND plc
By: XXXXXX
XXXX
Name:
Xxxxxx
Xxxx
Title: Senior
Director, Loan Markets
-106-
The
Agent
THE
ROYAL BANK OF SCOTLAND plc
By: XXXX
XXXXXXX
Name: Xxxx
Xxxxxxx
Title: Associate
Director
Address: LONDON
CORPORATE SERVICE CENTRE
PO
BOX
39952
3RD
FLOOR
00/0
XXXXXXXXXX XXXXXX
XXXXXX
XX0X 0XX
Fax:
x00
00
0000 0000
Attention: LOANS
ADMINISTRATION - AGENCY
-107-
The
Original Lenders
BNP
PARIBAS IRELAND
By:
|
FRANCOIS
VAN DEN BOSCH
|
By:
|
XXXXXXX
XXXXXXXXX
|
|
Name:
|
Francois
Van Den Bosch
|
Name:
|
Xxxxxxx
Xxxxxxxxx
|
|
Title:
|
Head
Of Territory
|
Title:
|
Head
Of Offshore
|
THE
ROYAL BANK OF SCOTLAND plc
By:
|
XXXX
XXXXXXX
|
Name:
|
Xxxx
Xxxxxxx
|
Title:
|
Senior
Vice President
|
DEUTSCHE
BANK AG, LONDON BRANCH
By:
|
XXXXXXX
XXXXXXX-XXXXX
|
By:
|
XXXXXXX
XXXXXXXX
|
|
Name:
|
Xxxxxxx
Xxxxxxx-Xxxxx
|
Name:
|
Xxxxxxx
Xxxxxxxx
|
|
Title:
|
Managing
Director
|
Title:
|
Assistant
Vice President
|
HSBC
BANK USA, NATIONAL ASSOCIATION
By:
|
XXXXXXX
XXXXXX
|
Name:
|
Xxxxxxx
Xxxxxx
|
Title:
|
Senior
Vice President
|
THE
BANK OF TOKYO-MITSUBISHI, LTD., NY BRANCH
By:
|
XXXXXXX
XXXXXX
|
Name:
|
Xxxxxxx
Xxxxxx
|
Title:
|
Authorized
Signatory
|
-108-
ABN
AMRO BANK N.V.
By:
|
XXXXXX
X. XXXXXXXX
|
By:
|
XXXXX
XXXXXXX
|
|
Name:
|
Xxxxxx
X. Xxxxxxxx
|
Name:
|
Xxxxx
Xxxxxxx
|
|
Title:
|
Director
|
Title:
|
Assistant
Vice President
|
BANCO
SANTANDER CENTRAL HISPANO, S.A.
By:
|
XXXXX
X. ENGLISH, IV
|
By:
|
XXXXX
XXXXXX
|
|
Name:
|
Xxxxx
X. English, IV
|
Name:
|
Xxxxx
Xxxxxx
|
|
Title:
|
Managing
Director
Global
Corporate Banking
|
Title:
|
Vice
President
|
BANK
OF AMERICA, N.A.
By:
|
XXXXX
XXXXXXXX
|
Name:
|
Xxxxx
Xxxxxxxx
|
Title:
|
Senior
Vice President
|
BARCLAYS
BANK PLC
By:
|
XXXXXX
XXXXXXXX
|
Name:
|
Xxxxxx
Xxxxxxxx
|
Title:
|
Associate
Director
|
CALYON
By:
|
X.
XXXXX
|
By:
|
XXXX
XXXXXX
|
|
Name:
|
X.
Xxxxx
|
Name:
|
Xxxx
Xxxxxx
|
|
Title:
|
Chief
Analyst
|
Title:
|
Deputy
Head, Risk
Management
|
-109-
CITIBANK,
N.A.
By:
|
XXXXXXXXXXX
X. XXXXXX
|
Name:
|
Xxxxxxxxxxx
Ll. Xxxxxx
|
Title:
|
Vice
President, GRB Consumer And
Healthcare
|
FORTIS
BANK SA/NV
By:
|
XXXX
VAKTSKJOLD
|
By:
|
XXXXX
XXXXXXX
|
|
Name:
|
Xxxx
Vaktskjold
|
Name:
|
Xxxxx
Xxxxxxx
|
|
Title:
|
Director
|
Title:
|
Director
|
JPMORGAN
CHASE BANK
By:
|
XXXXXXXXX
XXXXXX
|
Name:
|
Xxxxxxxxx
Xxxxxx
|
Title:
|
Vice
President
|
MIZUHO
CORPORATE BANK (USA)
By:
|
XXXXXXX
XXXXXXX
|
Name:
|
Xxxxxxx
Xxxxxxx
|
Title:
|
Senior
Vice President
|
XXXXXX
XXXXXXX BANK
By:
|
XXXXXX
XXXXXX
|
Name:
|
Xxxxxx
Xxxxxx
|
Title:
|
Vice
President
|
-110-
SANPAOLO
IMI S.p.A.
By:
|
XXXXX
X. XXXXX
|
By:
|
XXXXXX
XXXXXXXX
|
|
Name:
|
Xxxxx
X. Xxxxx
|
Name:
|
Xxxxxx
Xxxxxxxx
|
|
Title:
|
Vice
President
|
Title:
|
General
Manager
|
UBS
AG, LONDON BRANCH
By:
|
X.
XXXXXX
|
By:
|
X.
XXXXXXXX
|
|
Name:
|
X.
Xxxxxx
|
Name:
|
X.
Xxxxxxxx
|
|
Title:
|
Executive
Director
|
Title:
|
Director
|
WACHOVIA
BANK, NATIONAL ASSOCIATION
By:
|
XXXXXXXX
X. XXXXXXX
|
Name:
|
Xxxxxxxx
X. Xxxxxxx
|
Title:
|
Director
|
BANCO
BILBAO VIZCAYA ARGENTARIA S.A.
By:
|
GIAMPAOLO
CONSIGLIERE
|
By:
|
XXXXXX
X. XXXXXXXX
|
|
Name:
|
Giampaolo
Consigliere
|
Name:
|
Xxxxxx
X. Xxxxxxxx
|
|
Title:
|
Vice
President
|
Title:
|
Vice
President
|
THE
GOVERNOR AND COMPANY OF THE BANK OF IRELAND
By:
|
XXXXXX
XXXXX
|
By:
|
XXXXXX
XXXXX
|
|
Name:
|
Xxxxxx
Xxxxx
|
Name:
|
Xxxxxx
Xxxxx
|
|
Title:
|
Deputy
Manager
|
Title:
|
Manager
|
-111-
XXXXXXX
STREET CREDIT CORPORATION
By:
|
XXXX
XXXXXX
|
Name:
|
Xxxx
Xxxxxx
|
Title:
|
Assistant
Vice President
|
BANCA
MONTE DEI PASCHI DI SIENA S.P.A
By:
|
PIERO
MANFRIANI
|
Name:
|
Piero
Manfriani
|
Title:
|
Senior
Executive Vice President
|
BANCA
INTESA S.p.A., LONDON BRANCH
By:
|
XXXXXXX
XXXXX
|
By:
|
UZLIWDA
XXXXXX
|
|
Name:
|
Xxxxxxx
Xxxxx
|
Name:
|
Uzliwda
Xxxxxx
|
|
Title:
|
Manager
|
Title:
|
Manager
|
THE
BANK OF NEW YORK
By:
|
XXXXXX
X. XXXXXXXXX
|
Name:
|
Xxxxxx
X. XxXxxxxxx
|
Title:
|
Vice
President
|
-112-