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Title: |
Multicurrency Revolving Credit Agreement |
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Entities: |
ABN AMRO Bank N.V.; Bank One, NA; Barclays Bank plc; Chase Manhattan Bank; Citibank, NA; Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.; Fleet National Bank; JPMorgan Chase Bank; Koninklijke Ahold NV; Royal Ahold; Wachovia Bank, NA; Bank of America, NA; Bank of New York |
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Date: |
2003 |
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Preview shows 54KB of 283KB total |
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$51 |
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#1510433 |
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18 JULY 2002
KONINKLIJKE AHOLD N.V.
CROESUS INC.
AHOLD FINANCE USA, LLC
AS BORROWERS
KONINKLIJKE AHOLD N.V.
AS GUARANTOR
ABN AMRO BANK N.V.
J.P. MORGAN PLC
AS MANDATED LEAD ARRANGERS
J.P. MORGAN EUROPE LIMITED
AS FACILITY AGENT
AND
OTHERS
__________________________________________
US$2,000,000,000
MULTICURRENCY REVOLVING CREDIT AGREEMENT
__________________________________________
<PAGE>
CONTENTS
Clause Page
1. Definitions and Interpretation...........................................1
2. The Facilities..........................................................17
3. Utilisation of the multicurrency revolving credit facilities............20
4. Indemnity in relation to letters of credit..............................25
5. interest on advances....................................................26
6. repayment...............................................................27
7. Cancellation............................................................33
8. Taxes...................................................................34
9. Tax Receipts............................................................36
10. Increased Costs.........................................................37
11. Mitigation..............................................................39
12. Market Disruption.......................................................39
13. representations and warranties..........................................40
14. Undertakings............................................................46
15. Events of Default.......................................................51
16. Guarantee and Indemnity.................................................56
17. Default Interest and Indemnity..........................................58
18. Currency of Account and Payment.........................................60
19. Payments................................................................61
20. Set-off.................................................................64
21. Sharing.................................................................64
22. Fees....................................................................65
23. Costs and Expenses......................................................67
24. The Facility Agent, the Arrangers and the Banks.........................68
25. Assignments and Transfers...............................................73
26. Calculations and Evidence of Debt.......................................76
27. Remedies and Waivers, Partial Invalidity................................77
28. Amendments..............................................................77
29. Notices.................................................................79
30. Law and Jurisdiction....................................................80
SCHEDULE 1 The Banks [omitted]................................................83
SCHEDULE 2 Form of Transfer Certificate [omitted].............................84
SCHEDULE 3 Condition Precedent Documents......................................87
SCHEDULE 4 Utilisation Request [omitted]......................................89
SCHEDULE 5 Supplemental Agreement for Additional Borrowers [omitted]..........91
SCHEDULE 6 Conversion Request [omitted].......................................95
SCHEDULE 7 Reserve Costs Formulae [omitted]...................................96
SCHEDULE 8 Form of Affiliate Notice [omitted].................................99
<PAGE>
THIS AGREEMENT is made on 18 July 2002
BETWEEN:
(1) KONINKLIJKE AHOLD N.V. as borrower (including through its branch in Geneva,
Switzerland) and guarantor (the "Principal Company");
(2) AHOLD FINANCE USA, LLC. as borrower ("Ahold Finance USA");
(3) CROESUS INC. as borrower ("Croesus" and, together with the Principal
Company and Ahold Finance USA, the "Original Borrowers" and each an
"Original Borrower");
(4) ABN AMRO BANK N.V. and J.P. MORGAN PLC as mandated lead arrangers (the
"Arrangers");
(5) J.P. MORGAN EUROPE LIMITED as Facility Agent (the "Facility Agent");
(6) THE BANKS (as defined below).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement
"Additional Borrower" means a wholly-owned direct or indirect subsidiary of
the Principal Company which has become an Additional Borrower pursuant to
and in accordance with the provisions of Clause 2.5 (Nomination of
Additional Borrowers) and Clause 2.6 (Accession of Additional Borrowers).
"Advance" means a Facility A Advance, a Facility A Term Advance or a
Facility B Advance as the context may require.
"Affiliate Notice" means a notice substantially in the form set out in
Schedule 8 (Form of Affiliate Notice).
"Applicable Margin" means the Facility A Applicable Margin or the Facility
B Applicable Margin, as the context may require.
"Available Commitment" means, in relation to a Bank at any time and save as
otherwise provided herein, the aggregate of its Facility A Available
Commitment, its Facility B Available Commitment and its Facility C
Available Commitment.
"Banks" means:
(a) any bank, financial institution, trust, fund or other entity named in
Schedule 1 (The Banks) (other than one which has ceased to be a party
hereto in accordance with the terms hereof); and
- 1 -
<PAGE>
(b) any bank, financial institution, trust, fund or other entity which has
become a party hereto in accordance with the provisions of Clause 25.4
(Assignments by Banks) or Clause 25.5 (Transfers by Banks).
"Borrower" means an Original Borrower or an Additional Borrower.
"Cash Collateral" means, in relation to any Letter of Credit or L/C
Proportion of a Letter of Credit, a deposit in an interest-bearing account
or accounts as the Facility Agent may specify, that deposit and account to
be secured in favour of, and on terms and conditions acceptable to, the
Facility Agent.
"Cash Collateral Documents" means any documents as the Facility Agent may
specify, to be entered into in relation to the Cash Collateral.
"Code" means the United States Internal Revenue Code of 1986.
"Commitment" means, in relation to a Bank at any time, the aggregate of its
Facility A Commitment, its Facility B Commitment and its Facility C
Commitment.
"Dollar Amount" means:
(a) in relation to any Advance, its Original Dollar Amount as reduced by
the proportion (if any) of such Advance which has been repaid; and
(b) in relation to any Letter of Credit:
(i) at or before the Utilisation Date in respect of such Letter of
Credit, the face amount thereof; and
(ii) thereafter, the sum at such time of the maximum actual and
contingent liabilities of the Issuing Bank under such Letter of
Credit and the total amount of any payments made by the Issuing
Bank thereunder which at such time have not been paid or
reimbursed by any Obligor to the Issuing Bank hereunder; and
(c) in relation to the Outstandings, the aggregate of the Dollar Amounts
of the outstanding Advances and Letters of Credit.
"Employee Plan" shall mean an "employee pension benefit plan" as defined in
Section 3(2) of ERISA, other than a Multiemployer Plan, which is maintained
for, or under which contributions are made on behalf of, employees of any
Obligor, Material US Subsidiary or any ERISA Affiliate.
"Environment" means:
(a) land including any natural or man-made structures;
(b) water including ground waters and waters in drains and sewers; and
(c) air including air within buildings and other natural or man-made
structures above or below ground.
- 2 -
<PAGE>
"Environmental Laws" means all and any applicable laws, including common
law, statute and subordinate legislation, European Community Regulations
and Directives and judgments and decisions, laws and regulations including
those of the United States of America and any state or locality therein,
including notices, orders and circulars, of any court or authority
competent to make such judgment or decision compliance with which is
mandatory for any member of the Group in any jurisdiction with regard to:
(a) the pollution or protection of the Environment;
(b) harm to the health of humans, animals or plants including laws
relating to public and workers' health and safety;
(c) emissions, discharges or releases into the Environment of
chemicals or any other pollutants or contaminants or industrial,
radioactive, dangerous, toxic or hazardous substances or wastes
(whether in solid, semi-solid, liquid or gaseous form and
including noise and genetically modified organisms); or
(d) the manufacture, processing, use, treatment, storage,
distribution, disposal, transport or handling of the substances
or wastes described in (c) above.
"Environmental Permits" means all and any permits, licences, consents,
approvals, certificates, qualifications, specifications, registrations and
other authorisations including any conditions which attach to any of the
foregoing and the filing of all notifications, reports and assessments
required under Environmental Laws for the operation of any business or for
the sale, use, ownership, leasing, or operation of any real property.
"ERISA" means the United States Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations thereunder.
"ERISA Affiliate" shall mean any person that for the purposes of Title I or
Title IV of ERISA or Section 412 of the Code is a member of any Obligor's
(or any Material US Subsidiary's) controlled group, or under common control
with any Obligor (or Material US Subsidiary), within the meaning of Section
414 (b), (c), (m) or (o) of the Code and the regulations promulgated and
rulings issued thereunder.
"ERISA Event" shall mean (i) (A) any reportable event, as defined in
Section 4043(c) of ERISA with respect to an Employee Plan, as to which PBGC
has not by regulation waived the requirement of Section 4043(a) of ERISA
that it be notified within thirty days of the occurrence of such event
(provided that a failure to meet the minimum funding standard of Section
412 of the Code or Section 302 of ERISA shall be a reportable event for the
purposes of this sub-paragraph (i) regardless of the issuance of any
waivers in accordance with Section 412(d) of the Code); or (B) the
requirements of subsection (1) of Section 4043(b) of ERISA (without regard
to subsection (2) of such Section) are met with respect to a contributing
sponsor, as defined in Section 400l(a)(13) of ERISA, of an Employee Plan
and an event described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with respect to
such Employee Plan within the following 30 days; (ii) the filing under
- 3 -
<PAGE>
Section 4041(c) of ERISA of a notice of intent to terminate any Employee
Plan or the termination of any Employee Plan under Section 4042 of ERISA by
the PBGC, or the appointment of a trustee to administer any Employee Plan
under Section 4042 of ERISA; (iii) the failure to make a required
contribution to any Employee Plan that would result in the imposition of a
lien under Section 412 (n) of the Code or Section 302 (f) of ERISA; and
(iv) an engagement in a non-exempt prohibited transaction within the
meaning of Section 4975 of the Code or Section 406 of ERISA, other than a
non-exempt prohibited transaction that may arise as a result of any Bank
using assets, in any portion or all of its Advances, of any employee
benefit plan that is subject to Title I of ERISA or any plan that is
subject to Section 4975 of the Code.
"EURIBOR" means, in relation to any Advance or unpaid sum:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the specified period) the
arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Facility Agent at its request quoted
by the Reference Banks to leading banks in the European interbank
market;
as of 11:00 a.m. (Brussels time) on the Quotation Date for the offering of
deposits in euro for the specified period (and for the purposes of this
definition, "specified period" means the Term of such Facility A Advance or
Facility B Advance or the Interest Period of such Facility A Term Advance
or, as the case may be, the period in respect of which EURIBOR falls to be
determined in relation to such unpaid sum).
"Event of Default" means any of those circumstances specified in Clause 15
(Events of Default).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Amount" means, in relation to any Facility A Term Advance and any
two successive Interest Periods relating thereto, the amount of such
Advance at the beginning of the last day of the first of those Interest
Periods less any part thereof falling to be repaid on such day.
"Expiry Date" means, in relation to any Letter of Credit, the date on which
the maximum aggregate liability under that Letter of Credit is to be
reduced to zero.
"Facilities" means Facility A, Facility B and Facility C and "Facility"
means any one of them.
"Facility A Advance" means, save as otherwise provided herein, an advance
made or to be made by the Banks under Facility A (but, for the avoidance of
doubt, does not include a Facility A Term Advance unless otherwise provided
herein).
"Facility A Applicable Margin" means the rate per annum in relation to
Facility A Advances determined in accordance with Clause 5.4.1 (Applicable
Margin and L/C Commission Rate).
- 4 -
<PAGE>
"Facility A Available Commitment" means, in relation to a Bank at any time
and save as otherwise provided herein, such Bank's Facility A Commitment at
such time less the aggregate of its portions of the Dollar Amounts of the
Facility A Advances which are then outstanding at such time provided that
such amount shall not be less than zero.
"Facility A Available Facility" means, at any time, the aggregate amount of
the Facility A Available Commitments at such time, adjusted to take account
of any reduction or increase pursuant to and in accordance with the terms
hereof.
"Facility A Commitment" means, in relation to a Bank at any time and save
as otherwise provided herein, the amount set opposite its name under the
heading "Facility A Commitment" in Schedule 1 (The Banks).
"Facility A" has the meaning given to it in Clause 2.1.1 (Grant of the
Facilities).
"Facility A Loan" means, at any time, the aggregate principal amount of the
Facility A Advances outstanding at such time.
"Facility A Maturity Date" means, subject to extension thereof pursuant to
Clauses 6.6 to 6.12 (inclusive), the date falling 364 days after the date
of execution of this Agreement.
"Facility A Term Advance" means, save as otherwise provided herein, an
advance made or to be made pursuant to Clauses 6.13 to 6.15 (inclusive).
"Facility A Termination Date" has the meaning given to it in Clause 6.13
(Request for Conversion of Facility A).
"Facility A Total Commitments" means, at any time, the aggregate of the
Banks' Facility A Commitments.
"Facility B Advance" means, save as otherwise provided herein, an advance
made or to be made by the Banks under Facility B.
"Facility B Applicable Margin" means the rate per annum in relation to
Facility B Advances determined in accordance with Clause 5.4.1 (Applicable
Margin and L/C Commission Rate).
"Facility B Available Commitment" means, in relation to a Bank at any time
and save as otherwise provided herein, such Bank's Facility B Commitment at
such time less the aggregate of its portions of the Dollar Amounts of the
Facility B Advances which are then outstanding at such time provided that
such amount shall not be less than zero.
"Facility B Available Facility" means, at any time, the aggregate amount of
the Facility B Available Commitments at such time, adjusted to take account
of any reduction or increase pursuant to and in accordance with the terms
hereof (including without limitation Clause 2.10 (Aggregation of Facility B
and Facility C)).
- 5 -
<PAGE>
"Facility B Commitment" means, in relation to a Bank at any time and save
as otherwise provided herein, the amount set opposite its name under the
heading "Facility B Commitment" in Schedule 1 (The Banks).
"Facility B" has the meaning given to it in Clause 2.1.2 (Grant of the
Facilities).
"Facility B Loan" means, at any time, the aggregate principal amount of the
Facility B Advances outstanding at such time.
"Facility B Maturity Date" means the day which is five (5) years after the
date hereof.
"Facility B Total Commitments" means, at any time, the aggregate of the
Banks' Facility B Commitments.
"Facility C Available Commitment" means, in relation to a Bank at any time
and save as otherwise provided herein, such Bank's Facility C Commitment at
such time less the aggregate of its portions of the Dollar Amounts of the
outstanding Letters of Credit at such time provided that such amount shall
not be less than zero.
"Facility C Available Facility" means, at any time, the aggregate amount of
the Facility C Available Commitments at such time, adjusted to take account
of any reduction or increase pursuant to and in accordance with the terms
hereof (including without limitation Clause 2.10 (Aggregation of Facility B
and Facility C)).
"Facility C Commitment" means, in relation to a Bank at any time and save
as otherwise provided herein, the amount set opposite its name under the
heading "Facility C Commitment" in Schedule 1 (The Banks).
"Facility C" has the meaning given to it in Clause 2.1.3 (Grant of the
Facilities).
"Facility C Maturity Date" means the day which is five (5) years after the
date hereof.
"Facility C Total Commitments" means, at any time, the aggregate of the
Banks' Facility C Commitments.
"Facility Office" means:
(a) in relation to the Facility Agent, the office identified with its
signature below or such other office as it may from time to time
select upon five business days' notice to the Principal Company;
and
(b) in relation to any Bank, the office identified with its signature
below (or, in the case of a Transferee, at the end of the
Transfer Certificate to which it is a party as Transferee) or
such other office as such Bank may from time to time select upon
five business days' notice to the Facility Agent and the
Principal Company.
- 6 -
<PAGE>
"Fee Letter" means the letter agreement dated on or about 7 June 2002
between, inter alia, the Arrangers and the Principal Company.
"Finance Documents" means this Agreement (as supplemented by any
Supplemental Agreement) and each Supplemental Agreement, any Cash
Collateral Document, the Mandate Letter and the Fee Letter and any other
documents designated as such by the Facility Agent and Principal Company.
"Finance Parties" means the Facility Agent, the Issuing Banks, the
Arrangers and the Banks, and "Finance Party" means any one of them.
"Guarantor" means the Principal Company in its capacity as guarantor
hereunder.
"Group" means at any time the Principal Company and its subsidiaries at
such time.
"Information Memorandum" means the document concerning the Obligors which,
at their request and on their behalf, was prepared in relation to this
transaction and distributed by the Arrangers to selected banks during June
2002.
"Instructing Group" means:
(a) whilst no Advances or Letters of Credit are outstanding
hereunder, a Bank or group of Banks whose Commitments at such
time (or, if each Bank's Commitment has been reduced to zero, did
immediately before such reduction to zero) amount in aggregate to
more than sixty-six and two thirds per cent. of the Total
Commitments at such time; or
(b) at any time that there are one or more Advances or Letters of
Credit outstanding hereunder, a Bank or group of Banks to whom
more than sixty-six and two thirds per cent. of the Dollar Amount
of the Outstandings at such time is owed.
"Interest Period" means, save as otherwise provided herein:
(a) any of those periods mentioned in Clause 6.16 (Interest Periods);
(b) in relation to an unpaid sum, any of those periods mentioned in
Clause 17.1 (Default Interest Periods).
"IRS" means the United States Internal Revenue Service.
"Issuing Bank" means any Bank which has agreed to issue a Letter of Credit
which, at the time of the Utilisation Request relating to the relevant
Letter of Credit, has a long-term debt rating by S&P of not less than AA-
or by Moody's of not less than Aa3 as selected by the relevant Borrower or
such alternative equivalent long term debt rating as may be applied by S&P
or Moody's, respectively, from time to time.
"L/C Commission Rate" means, at any time, a letter of credit commission
rate per annum determined in accordance with Clause 5.4.1 (Applicable
Margin and L/C Commission Rate).
- 7 -
<PAGE>
"L/C Outstandings" means, at any time, the aggregate of the Dollar Amounts
of each outstanding Letter of Credit.
"L/C Proportion" means, in relation to a Bank in respect of any Letter of
Credit and save as otherwise provided in this Agreement, the proportion
(expressed as a percentage) borne by that Bank's Facility C Available
Commitment to the Facility C Available Facility immediately prior to the
issue of that Letter of Credit.
"L/C Valuation Date" means the first business day which falls six months
after the date the first Letter of Credit is issued pursuant to this
Agreement and each day falling at six monthly intervals after that date.
"Letter of Credit" means a letter of credit issued or to be issued by an
Issuing Bank, subject to and with the benefit of the provisions hereof,
under Facility C in such form as agreed between the relevant Borrower, the
Facility Agent and the relevant Issuing Bank (acting on the instructions of
the Banks).
"LIBOR" means, in relation to any Advance or unpaid sum:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or the specified
period) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Facility Agent at its request
quoted by the Reference Banks to leading banks in the London
interbank market,
as of 11:00 a.m. (London time) on the Quotation Date for the offering of
deposits in the currency of that Advance or unpaid sum and for the
specified period (and for the purposes of this definition, "specified
period" means the Term of such Facility A Advance or Facility B Advance or
the Interest Period of such Facility A Term Advance or, as the case may be,
the period in respect of which LIBOR falls to be determined in relation to
such unpaid sum).
"Mandate Letter" means the mandate letter dated on or about 7 June 2001
from, inter alia, the Arrangers to the Principal Company.
"Margin Stock" has the meaning assigned that term in Regulation U of the
Board of Governors of the Federal Reserve System of the United States (or
any successor) as in effect from time to time.
"Material US Subsidiary" means:
(a) each of BI LO, Inc., Tops Markets, Inc., The Stop & Shop
Companies, Inc., Giant Food Inc. (Landover, Maryland) and US
Foodservice; and
(b) any other subsidiary (including, for the avoidance of doubt, any
indirect subsidiary) of the Principal Company which is
incorporated under the laws of the United States or any state
thereof the consolidated net sales of which, as detailed in the
most recently published audited consolidated financial
- 8 -
<PAGE>
statements of the Principal Company, exceed five per cent. (5%)
of the consolidated net sales of the Group taken as a whole as
detailed in the most recently published audited consolidated
financial statements of the Principal Company.
"Maturity Date" means the Facility A Maturity Date, the Facility B Maturity
Date or the Facility C Maturity Date, as the context may require.
"Moody's" means Moody's Investors Service, Inc.
"Moody's Rating" means, at any time, the lowest of all ratings most
recently announced at such time by Moody's which is assigned to any class
of long-term senior, unsecured liability in respect of securities issued or
guaranteed by the Principal Company, as to which no letter of credit,
guarantee or third party credit support is in place, regardless of whether
all or any part of such liability has been issued at the time such rating
was issued (ignoring, for this purpose, any indication by Moody's of any
negative, stable or positive outlook).
"Multiemployer Plan" means a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) maintained or contributed to for employees of (i) any
Obligor or (ii) any ERISA Affiliate.
"New Amount" means in relation to any Facility A Term Advance and any two
successive Interest Periods relating thereto, the amount of such Advance at
the beginning of the second of those Interest Periods, as determined in
accordance with Clause 6.20 (Amounts of Facility A Advances).
"Obligors" means the Borrowers and the Guarantor (and "Obligor" means any
one of them).
"Original Dollar Amount" means, in relation to an Advance or a Letter of
Credit, the principal amount thereof requested in the Utilisation Request
relating thereto as the same may be reduced pursuant to Clause 3.5
(Reduction of Available Commitment)) or, if such Advance or Letter of
Credit is not denominated in dollars, the equivalent of such amount (as the
same may be so reduced) in dollars, calculated as at:
(a) in the case of a Utilisation, the date of such Utilisation
Request; or
(b) in the case of a renewal or revaluation of a Letter of Credit,
the later of:
(i) the date falling two business days before its issue date or
any renewal date; or
(ii) the most recent L/C Valuation Date;
in each case adjusted to reflect any repayment or prepayment of the Advance
or Letter of Credit as the case may be.
"Original Financial Statements" means:
- 9 -
<PAGE>
(a) in relation to the Principal Company, its audited consolidated
financial statements for its financial year ended 31 December
2001; and
(b) in relation to each Additional Borrower, its most recently
published audited financial statements as at the date it becomes
an Additional Borrower hereunder or, if such Additional Borrower
does not have published audited financial statements, the most
recent financial statements of the Additional Borrower as at the
date it becomes an Additional Borrower hereunder (if any).
"Outstandings" means, at any time, the aggregate of:
(a) the Facility A Loan
(b) the Facility B Loan; and
(c) the L/C Outstandings.
"Participation" in relation to a Bank at any time means the aggregate of
such Bank's Available Commitment at such time and its share of the Dollar
Amount of the Outstandings at such time;
"PBGC" means the United States Pension Benefit Guaranty Corporation or any
successor thereto under ERISA.
"Potential Event of Default" means any event which could or would become
(with the passage of time, the giving of notice, the making of any
determination hereunder or any combination thereof) an Event of Default.
"Proportion" means, in relation to a Bank:
(a) whilst no Advances or Letters of Credit are outstanding
hereunder, the proportion borne by its Commitment to the Total
Commitments (or, if the Total Commitments are then zero, by its
Commitment to the Total Commitments immediately prior to their
reduction to zero); or
(b) whilst at least one Advance or Letter of Credit is outstanding
hereunder, the proportion borne by its share of the Dollar Amount
of the Outstandings to the Dollar Amount of the Outstandings.
"Quotation Date" means, in relation to any period for which LIBOR or
EURIBOR is to be determined hereunder, the day which is two business days
prior to the first day of such period.
"Reference Banks" means, for the purposes of determining LIBOR or Reserve
Costs, the principal London offices of ABN AMRO Bank N.V., JPMorgan Chase
Bank and Dresdner Bank or, for the purposes of determining EURIBOR, the
principal Amsterdam office of ABN AMRO Bank N.V. and the principal London
offices of JPMorgan Chase Bank and Dresdner Bank or, in either case, such
other bank or banks
- 10 -
<PAGE>
as may from time to time be agreed between the Principal Company and the
Facility Agent.
"Regulation Costs" means, in relation to the portion of any Advance made by
a Bank to a US Borrower (or deposits maintained by a Bank to fund such an
Advance), the amount (if any) certified by such Bank to be the cost to it
of complying with the Regulations (or any similar reserve requirements) in
respect of that Advance or those deposits.
"Regulations U and X" means, respectively, Regulations U and X of the Board
of Governors of the Federal Reserve System of the United States (or any
successor).
"Regulations" means any regulations of the Board of Governors of the
Federal Reserve System of the United States from time to time in force.
"Repayment Date" means, in relation to any Facility A Advance or any
Facility B Advance, the last day of the Term thereof or such earlier date
upon which such Advance is required to be repaid pursuant hereto.
"Reserve Costs" means, in relation to any Bank and in respect of any Term
in relation to any Facility A Advance or any Facility B Advance or any
Interest Period in relation to any Facility A Term Advance, the cost to
such Bank of compliance with the minimum reserve requirements of (a) 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 European Central Bank (any such cost, for the purposes of this
Agreement, to be represented by the percentage rate per annum calculated by
the Facility Agent in accordance with Schedule 7 (Reserve Cost Formulae)).
"Rollover Advance" means one or more Facility A Advances or Facility B
Advances:
(a) made or to be made on the same day that a maturing Facility A
Advance or Facility B Advance, as the case may be, is due to be
repaid;
(b) the aggregate amount of which is equal to or less than the
maturing Facility A Advance or Facility B Advance, as the case
may be;
(c) in the same currency as the maturing Facility A Advance or
Facility B Advance, as the case may be; and
(d) made or to be made to the same Borrower for the purpose of
refinancing a maturing Facility A Advance or Facility B Advance,
as the case may be.
"S&P" means Standard & Poor's Rating Group, a division of McGraw Hill,
Inc., a New York corporation.
"S&P Rating" means, at any time, the lowest of all ratings most recently
announced at such time by S&P which is assigned to any class of long-term
senior, unsecured liability in respect of securities issued or guaranteed
by the Principal Company, as to which no letter of credit, guarantee or
third party credit support is in place, regardless
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of whether all or any part of such liability has been issued at the time
such rating was issued (ignoring, for this purpose, any indication by S&P
of any negative, stable or positive outlook).
"Screen Rate" means:
(a) in relation to LIBOR, the British Bankers' Association Interest
Settlement Rate for the relevant currency and period; and
(b) in relation to EURIBOR, the percentage rate per annum determined
by the Banking Federation of the European Union for the relevant
period,
displayed on the appropriate page of the Telerate screen. If the agreed
page is replaced or service ceases to be available, the Facility Agent may
specify another page or service displaying the appropriate rate after
consultation with the Principal Company and an Instructing Group.
"Substantial" means equal to or greater than 10 per cent. of the relevant
amount as disclosed by the latest audited consolidated balance sheet or, as
the case may be, profit and loss account of the Group.
"Supplemental Agreement" means any agreement entered into by the parties
hereto with any Additional Borrower (in its capacity as an Additional
Obligor) pursuant to Clause 2.5 (Nomination of Additional Borrowers) to
Clause 2.8 (Principal Company's Authority) substantially in the form set
out in Schedule 5 (Supplemental Agreement for Additional Borrowers) or such
other form as the Principal Company and the Facility Agent shall agree.
"TARGET" means Trans-European Automated Real-time Gross Settlement Express
Transfer payment system.
"TARGET Day" means any day on which TARGET is open for the settlement of
payments in euro.
"Term" means, save as otherwise provided herein, in relation to any
Facility A Advance or any Facility B Advance, the period for which such
Advance is borrowed (as specified in the Utilisation Request relating
thereto) and, in relation to any Letter of Credit, the period from the date
on which such Letter of Credit is issued until its Expiry Date (as
specified in the Utilisation Request relating thereto).
"Total Commitments" means the aggregate for the time being of the Banks'
Commitments.
"Transfer Certificate" means a certificate substantially in the form set
out in Schedule 2 (Form of Transfer Certificate) signed by a Bank and a
Transferee whereby:
(a) such Bank seeks to procure the transfer to such Transferee of all
or a part of such Bank's rights, benefits and obligations
hereunder as contemplated in Clause 25.3 (Assignment and
Transfers by Banks); and
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(b) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the
Facility Agent as is contemplated in Clause 25.5 (Transfers by
Banks).
"Transfer Date" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in the schedule to such
Transfer Certificate.
"Transferee" means any bank, financial institution, trust, fund or other
entity to which a Bank seeks to transfer all or part of such Bank's rights,
benefits and obligations hereunder.
"United States" and "US" means the United States of America (including the
District of Columbia), its territories, possessions and other areas subject
to the jurisdiction of the United States of America.
"US Borrower" means any Borrower which has been incorporated under the laws
of the United States or any state thereof.
"US Obligor" means any Obligor incorporated or organised in the United
States.
"Utilisation" means a utilisation of a Facility hereunder, whether by way
of an Advance or a Letter of Credit.
"Utilisation Date" means the date of a Utilisation, being the date on which
the Advance in respect thereof is to be made or the Letter of Credit in
respect thereof is to be issued.
"Utilisation Request" means a notice substantially in the form set out in
Schedule 4 (Utilisation Request).
"Withdrawal Liability" has the meaning given to such term under Part I of
Subtitle E of Title IV of ERISA.
1.2 Interpretation
Any reference in this Agreement to:
the "Facility Agent, any "Issuing Bank" or any "Bank" in any capacity
hereunder shall be construed so as to include its and any subsequent
successors, Transferees and assigns in accordance with their respective
interests;
any "affiliate" of any person is a reference to a holding company or a
subsidiary, or a subsidiary of a holding company, of such person;
any "applicable law" shall be construed so as to include all present and
future applicable laws, statutes, regulations, codes, treaties,
conventions, judgments, awards, determinations or decrees;
"borrowed money" means, in respect of any person:
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<PAGE>
(a) money borrowed or raised and premiums (if any) and capitalised
interest in respect thereof;
(b) the principal and premiums (if any) and capitalised interest in
respect of any debenture, bond, note, loan stock or similar
instrument;
(c) liabilities in respect of any letter of credit, acceptance
credit, bill discounting or note purchase facility and any
receivables purchase, factoring or discounting arrangement;
(d) rental or hire payments under leases or hire purchase agreements
(whether in respect of land, machinery, equipment or otherwise)
entered into primarily for the purpose of raising finance;
(e) the deferred purchase price of assets or services in respect of
transactions which have the commercial effect of borrowing or
which otherwise finance its or the Group's operations or capital
requirements (except any such arrangements entered into in the
ordinary and usual course of trading and having a term not
exceeding 90 days from the date on which the liability was
originally incurred);
(f) liabilities in respect of any foreign exchange agreement,
currency or interest purchase or swap transactions or similar
arrangements;
(g) all obligations to purchase, redeem, retire, defease or otherwise
acquire for value any share capital of any person or any
warrants, rights or options to acquire such share capital in
respect of transactions which have the commercial effect of
borrowing or which otherwise finance its or the Group's
operations or capital requirements;
(h) any other transactions having the commercial effect of borrowing
entered into by any person to finance its operations or capital
requirements; and
(i) all indebtedness for borrowed money of other persons referred to
in paragraphs (a) to (h) above guaranteed directly or indirectly
in any manner by such person, or having the commercial effect of
being guaranteed directly or indirectly by such person by virtue
of an agreement (a) to pay or purchase such indebtedness for
borrowed money or to advance or supply funds for the payment or
purchase of such indebtedness for borrowed money, (b) to purchase
or lease (as lessee) property, or to purchase services, primarily
for the purpose of enabling the debtor to make payments of such
indebtedness for borrowed money, (c) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay
for property of services irrespective of whether such property is
received or such services are rendered) or (d) otherwise to
assure any person to whom indebtedness for borrowed money is owed
against loss with respect thereto;
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<PAGE>
a "business day" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks are generally open for business in
London and New York City and (in relation to any date for payment or
purchase of Euros) any TARGET Day;
a "Clause" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
an "encumbrance" means any mortgage, pledge, lien (other than a lien
arising solely by operation of law in the ordinary course of business),
charge, assignment, hypothecation, security interest or other encumbrance
or charge by way of security or any title retention right (other than in
the ordinary course of trading), preferential right (other than a
preferential right accorded to creditors on a liquidation solely by
operation of law) or trust arrangement or other agreement or arrangement
the effect of any of which is the creation of security;
the "equivalent" on any given date in one currency (the "first currency")
of an amount denominated in another currency (the "second currency") is a
reference to the amount of the first currency which could be purchased with
the amount of the second currency at the spot rate of exchange quoted by
the Facility Agent at or about 12.00 (noon) (London time) on such date for
the purchase of the first currency with the second currency;
a "holding company" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
"indebtedness shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
a "month" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that, where any such period would otherwise
end on a day which is not a business day, it shall end on the next
succeeding business day, unless that day falls in the calendar month
succeeding that in which it would otherwise have ended, in which case it
shall end on the immediately preceding business day provided that, if a
period starts on the last business day in a calendar month or if there is
no numerically corresponding day in the month in which that period ends,
that period shall end on the last business day in that later month (and
references to "months" shall be construed accordingly);
"net assets" shall be construed as a reference to the difference between
(a) the aggregate of the current assets (including but not limited to Cash
and cash Equivalents, Receivables and Inventories) and fixed assets
(including but not limited to Total Net Tangible Fixed Assets, Loan
Receivables, Investments in unconsolidated subsidiaries and affiliates and
Intangible Assets) of the Principal Company and (b) the aggregate of the
current liabilities (including but not limited to Loans payable, Taxes
payable, Accounts payable, Accrued expenses and Other current liabilities)
and long term
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<PAGE>
liabilities (including but not limited to Subordinated loans, Other loans,
Capitalised lease commitments, Deferred income taxes and Other provisions)
of the Principal Company in each case as reported in the latest
consolidated balance sheet of the Principal Company delivered pursuant to
Clause 14.1.1 (Undertakings);
a "person" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or
more of the foregoing;
a "subsidiary" of the Principal Company means a company which is a
subsidiary of the Principal Company within the meaning of Article 24a of
Book 2 of the Dutch Civil Code and which is a company which is consolidated
in the consolidated financial statements of the Principal Company;
a "subsidiary" of a company or corporation other than the Principal Company
shall be construed as a reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(c) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation
and, for these purposes, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to
direct its affairs and/or to control the composition of its board of
directors or equivalent body;
"tax" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature (including, without limitation, any
penalty or interest payable in connection with any failure to pay or any
delay in paying any of the same);
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