England and Wales
|
001-37983
|
98-1283037
|
||
(State or other jurisdiction of incorporation)
|
(Commission File Number)
|
(I.R.S. Employer Identification No.)
|
☐
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
☐
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
☐
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
☐
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
Securities registered pursuant to Section 12(b) of the Act:
|
||
Title of Each Class
|
Trading Symbol
|
Name of Each Exchange on Which Registered
|
Ordinary shares, $1.00 par value per share
|
FTI
|
New York Stock Exchange
|
Item 1.01 |
Entry into a Material Definitive Agreement
|
Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation and Off-Balance Sheet Arrangement of a Registrant.
|
Item 9.01 |
Financial Statements and Exhibits
|
(d) |
Exhibits
|
Exhibit No. | Desciption of Exhibit | |
Amendment No. 1 to $2,500,000,000 Facility Agreement, dated as of June 12, 2020, by and among TechnipFMC plc, FMC Technologies, Inc. and Technip Eurocash SNC, as
borrowers; JPMorgan Chase Bank, N.A., as agent and an arranger; SG Americas Securities LLC as an arranger; and the other lenders party thereto.
|
||
Amendment and Restatement Agreement to €500,000,000 Facility Agreement dated as of June 12, 2020 between TechnipFMC plc and Technip Eurocash SNC, as borrowers; HSBC France, as
Agent; and the lenders party thereto.
|
||
104
|
Inline XBRL for the cover page of this Current Report on Form 8-K
|
TechnipFMC plc
|
|||
By:
|
/s/ Dianne B. Ralston
|
||
Date: June 15, 2020
|
Name:
|
Dianne B. Ralston
|
|
Title:
|
Executive Vice President,
|
||
Chief Legal Officer and Secretary
|
Exhibit No. | Desciption of Exhibit | |
Amendment No. 1 to $2,500,000,000 Facility Agreement, dated as of June 12, 2020, by and among TechnipFMC plc, FMC Technologies, Inc. and Technip Eurocash SNC, as
borrowers; JPMorgan Chase Bank, N.A., as agent and an arranger; SG Americas Securities LLC as an arranger; and the other lenders party thereto.
|
||
Amendment and Restatement Agreement to €500,000,000 Facility Agreement dated as of June 12, 2020 between TechnipFMC plc and Technip Eurocash SNC, as borrowers; HSBC France, as
Agent; and the lenders party thereto.
|
||
104
|
Inline XBRL for the cover page of this Current Report on Form 8-K
|
|
(a) |
in relation to an EEA Member Country that has implemented, or that at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and
|
|
(b) |
in relation to any state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time that requires contractual
recognition of any Write-down and Conversion Powers contained in that law or regulation.
|
|
(a) |
formally designated, nominated or recommended as the replacement for a Screen Rate by:
|
|
(i) |
the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or
|
|
(ii) |
any Relevant Nominating Body,
|
|
(b) |
in the opinion of the Agent (acting on the instructions of the Majority Lenders) and the Company, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or
|
|
(c) |
in the opinion of the Agent (acting on the instructions of the Majority Lenders) and the Company, an appropriate successor to a Screen Rate.
|
|
(a) |
the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Agent (acting on the instruction of the Majority Lenders) and the Company, materially changed;
|
|
(A) |
the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent; or
|
|
(B) |
information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body that reasonably
confirms that the administrator of that Screen Rate is insolvent,
|
|
(ii) |
the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Screen
Rate;
|
|
(iii) |
the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued; or
|
|
(iv) |
the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or
|
|
(c) |
in the opinion of both the Agent (acting on the instruction of the Majority Lenders) and the Company, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.
|
|
(a) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
|
|
(b) |
in relation to any other applicable Bail-In Legislation:
|
|
(i) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to
cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any
other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are
related to or ancillary to any of those powers; and
|
|
(ii) |
any similar or analogous powers under that Bail-In Legislation; and
|
|
(c) |
in relation to any UK Bail-In Legislation:
|
|
(i) |
any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or
any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation
that are related to or ancillary to any of those powers; and
|
|
(ii) |
similar or analogous powers under that UK Bail-In Legislation.
|
|
(c) |
Notwithstanding anything to the contrary herein, solely for purposes of calculating compliance with Clause 26.1 (and not for the purposes of (i) calculating Consolidated Net Worth under Clause 27.4 or Clause 27.5(q), (ii) measuring pro
forma compliance with Clause 26.1 pursuant to Clauses 27.6(b), 27.6(c), 27.6(d) or 27.6(e) or (iii) for any other purpose hereunder), (1) Consolidated Net Worth at the end of the financial quarter ending on 30 June 2020 (as a component of
Total Capitalisation) shall be increased by the amount of the Specified Impairment Charges and (2) Consolidated Net Worth at the end of each financial quarter ending thereafter (as a component of Total Capitalisation) shall be increased by
the amount of the Residual Specified Impairment Charges for such financial quarter (if any).
|
|
(a) |
providing for the use of a Replacement Benchmark in relation to that currency in place of the affected Screen Rate (including without limitation);
|
|
(b) |
aligning any provision of any Finance Document to the use of that Replacement Benchmark;
|
|
(c) |
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes of this
Agreement);
|
|
(d) |
implementing market conventions applicable to that Replacement Benchmark;
|
|
(e) |
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or
|
|
(f) |
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment or method for
calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),
|
|
(a) |
any Bail-In Action in relation to any such liability, including (without limitation):
|
|
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
|
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
|
(iii) |
a cancellation of any such liability; and
|
|
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
|
|
(a) |
This Amendment (a) may be modified or amended only in accordance with the Facility Agreement and (b) shall constitute a Finance Document for all purposes of the Facility Agreement and the other Finance Documents.
|
|
(b) |
The provisions of clauses 1.2 (Construction), 1.4 (Third party rights) 36 (Notices), clause 38 (Partial Invalidity) clause 39 (Remedies and Waivers) and clause 47 (Enforcement) of the Facility Agreement shall be
incorporated into this Amendment as if set out in full in this Amendment and as if references in those clauses to “this Agreement” or “the Finance Documents” are references to this Amendment.
|
TECHNIPFMC PLC, as a Borrower
|
|||
By:
|
/s/ Maryann T. Mannen
|
||
Name:
|
Maryann T. Mannen
|
||
Title:
|
Executive Vice President and
Chief Financial Officer
|
||
FMC TECHNOLOGIES, INC., as a Borrower
|
|||
By:
|
/s/ Maryann T. Mannen
|
||
Name:
|
Maryann T. Mannen
|
||
Title:
|
Executive Vice President and
Chief Financial Officer
|
||
TECHNIP EUROCASH SNC, as a Borrower
|
|||
By:
|
/s/ Agnès Brault
|
||
Name:
|
Agnès Brault
|
||
Title:
|
Authorized Signatory
|
JPMORGAN CHASE BANK, N.A., as Agent and a Lender
|
|||
By:
|
/s/ Anson Williams
|
||
Name:
|
Anson Williams
|
||
Title:
|
Authorized Signatory
|
SOCIÉTÉ GÉNÉRALE, as a Lender
|
|||
By:
|
/s/ John Hogan
|
||
Name:
|
John Hogan
|
||
Title:
|
Director
|
Bank of America, N.A., as a Lender
|
|||
By:
|
/s/ Raza Jafferi
|
||
Name:
|
Raza Jafferi
|
||
Title:
|
Director
|
BNPP,
as a Lender
|
|||
By:
|
/s/ Thomas Taffin de Tilques
|
||
Name:
|
Thomas Taffin de Tilques
|
||
Title:
|
Director Corporate Coverage
|
||
By:
|
/s/ Benjamin Binetter
|
||
Name:
|
Benjamin Binetter
|
||
Title:
|
Managing Director IG Finance
|
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender
|
|||
By:
|
/s/ Nicolas Penhouet
|
||
Name:
|
Nicolas Penhouet
|
||
Title:
|
DOD Managing Director
|
||
By:
|
/s/ Jérôme Bernard
|
||
Name:
|
Jérôme Bernard
|
||
Title:
|
Senior Banker
|
Sumitomo Mitsui Banking Corporation Europe Limited, Paris Branch, as a Lender
|
|||
By:
|
/s/ Benoit Buret
|
||
Name:
|
Benoit Duret
|
||
Title:
|
Head of French Corporates
|
||
By:
|
/s/ Sebastien Valy
|
||
Name:
|
Sebastien Valy
|
||
Title:
|
Head of Credit
|
MUFG Bank, Ltd., as a Lender
|
|||
By:
|
/s/ Koichi Fujisawa
|
||
Name:
|
Koichi Fujisawa
|
||
Title:
|
General Manager
|
Wells Fargo Bank International UC, as a Lender
|
|||
By:
|
/s/ Oisín Kelly
|
||
Name:
|
Oisín Kelly
|
||
Title:
|
Managing Director, Corporate Banking
|
Barclays Bank PLC, as a Lender
|
|||
By:
|
/s/ Grischa Wenzeler
|
||
Name:
|
Grischa Wenzeler
|
||
Title:
|
Vice President
|
CITIBANK EUROPE PLC, as a Lender
|
|||
By:
|
/s/ Andrew Mason
|
||
Name:
|
Andrew Mason
|
||
Title:
|
Director
|
Deutsche Bank Luxembourg S.A., as a Lender
|
|||
By:
|
/s/ Sina Jabbar
|
Franz-Josef Ewerhardy
|
|
Name: Sina Jabbar
|
Franz-Josef Ewerhardy
|
||
Title:
|
HSBC France, as a Lender
|
|||
By:
|
/s/ Nicolas Symphorien
|
Alexis Derly
|
|
Name: Nicolas Symphorien
|
Alexis Derly
|
||
Title: Director
|
Director
|
Skandinaviska Enskilda Banken AB (publ), as a Lender
|
|||
By:
|
/s/ Micael Ljunggren
|
Mikael Bellander
|
|
Name: Micael Ljunggren
|
Mikael Bellander
|
||
Title:
|
Standard Chartered Bank, as a Lender
|
|||
By:
|
/s/ S. Derrick
|
||
Name:
|
S. Derrick
|
||
Title:
|
Managing Director
|
Banco Santander, S.A., as a Lender
|
||
By:
|
/s/ Isabel Pastor / Jean-Baptiste Cottus
|
|
Name: Isabel Pastor / Jean-Baptiste Cottus
|
||
Title: Vice President / Executive Director
|
The Northern Trust Company, as a Lender
|
|||
By:
|
/s/ Keith L. Burson
|
||
Name:
|
Keith L. Burson | ||
Title:
|
Senior Vice President |
CLIFFORD CHANCE EUROPE LLP
|
AMENDMENT AND RESTATEMENT AGREEMENT
TO THE ORIGINAL FACILITY AGREEMENT
|
||
Clause
|
Page
|
|
1.
|
Definitions
|
1
|
2.
|
Amendments to the Original Facility Agreement
|
1
|
3.
|
Conditions Precedent
|
2
|
4.
|
Scope of this Amendment and Restatement Agreement
|
2
|
5.
|
Representations and Warranties
|
2
|
6.
|
Miscellaneous
|
3
|
Schedule 1 Facility Agreement
|
4
|
(1) |
TECHNIPFMC PLC, a public limited company incorporated in England and Wales with company
number 09909709 and having its registered office at One, St. Paul's Churchyard, London EC4M 8AP, United Kingdom, as borrower and guarantor ("TechnipFMC plc");
|
(2) |
TECHNIP EUROCASH SNC, a company incorporated under the laws of France as a société en nom collectif with its registered office at 6-8 allée de l'Arche Faubourg de l'Arche Zac Danton, 92400 Courbevoie, France, registered with the
Trade and Companies Registry of Nanterre under number 428 574 248, as borrower ("Technip Eurocash SNC" and together with TechnipFMC plc, the "Borrowers"); and
|
(3) |
HSBC FRANCE, a société anonyme incorporated under the laws of France, having its registered office at 103, avenue des Champs-Elysées, 75008 Paris, registered under number 775 670 284 RCS Paris, as agent of the Finance Parties (the "Agent").
|
(A) |
The Parties entered into a facility agreement dated 19 May 2020 pursuant to which the Original Lenders (as defined therein) made available to the Borrowers a revolving credit
facility in an aggregate amount of EUR 500,000,000 (the "Original Facility Agreement").
|
(B) |
The Parties agreed to amend and restate the Original Facility Agreement in accordance with the terms and conditions of this amendment and restatement agreement (the "Amendment and Restatement Agreement").
|
1. |
DEFINITIONS
|
2. |
AMENDMENTS TO THE ORIGINAL FACILITY AGREEMENT
|
2.1 |
The Parties agree that, as at and with effect from the Effective Date (as defined in Clause 3 below), the Original Facility Agreement shall be amended in the form set out in
Schedule 1 (Facility Agreement) to this Amendment and Restatement Agreement.
|
2.2 |
Subject to the terms of this Amendment and Restatement Agreement, the Original Facility Agreement will remain in full force and effect as from the Effective Date and references in
the Facility Agreement to "this Agreement", "hereunder", "herein" and like terms or to any provision of the Facility Agreement shall be construed, as from the Effective Date, as a reference to the Original Facility Agreement, or such
provision, as amended by this Amendment and Restatement Agreement.
|
3. |
CONDITIONS PRECEDENT
|
|
(a) |
the Borrowers shall have paid, to the extent invoiced prior to the Effective Date, all out-of-pocket expenses required to be reimbursed or paid by the Borrowers pursuant to the
Facility Agreement or any other Finance Document;
|
|
(b) |
no Default or Event of Default shall have occurred and be continuing;
|
|
(c) |
the representations and warranties set out in Clause 5 shall be true and correct.
|
4. |
SCOPE OF THIS AMENDMENT AND RESTATEMENT AGREEMENT
|
4.1 |
This Amendment and Restatement Agreement is limited as specified herein and shall not otherwise constitute a modification, acceptance or waiver of any other provision of the
Original Facility Agreement or any other document or agreement.
|
4.2 |
Except to the extent expressly amended by the terms of this Amendment and Restatement Agreement, all terms and conditions of the Original Facility Agreement and all other Finance
Documents remain in full force and effect and the rights and obligations of each party to any Finance Document shall not be affected or impaired by the execution, delivery or performance of this Amendment and Restatement Agreement except to
the extent expressly provided herein.
|
5. |
REPRESENTATIONS AND WARRANTIES
|
5.1 |
Each Obligor makes the representations and warranties set out in this Clause 5 to the Finance Parties.
|
5.2 |
No Default is continuing or would result from the entering into this Amendment and Restatement Agreement by it.
|
5.3 |
Each Borrower has the power to enter into and perform, and has taken all necessary actions to authorise the entry into and performance of, this Amendment and Restatement Agreement
and the transactions contemplated by this Amendment and Restatement Agreement.
|
5.4 |
The Repeating Representations are true in all material respects (or, if any Repeating Representation is qualified by materiality or Material Adverse Effect, in all respects) or, if
any of the Repeating Representations specifically refers to an earlier date, such Repeating Representations are true in all material respects (or, if any Repeating Representation is qualified by materiality or Material Adverse Effect, in
all respects) as of such earlier date.
|
6. |
MISCELLANEOUS
|
6.1 |
Further Assurances
|
6.2 |
Finance Document
|
6.3 |
No Hardship
|
6.4 |
Clauses 30 (Notices), 32 (Partial Invalidity), 38 (Governing Law) and 39 (Enforcement) of the Facility Agreement shall be deemed incorporated in this Amendment and Restatement Agreement (with such conforming amendments as the context requires) as if set out herein.
|
Clause
|
Page
|
8.2
|
Payment of interest
|
42
|
|
8.3
|
Default interest
|
42
|
|
8.4
|
Notification of rates of interest
|
42
|
|
8.5
|
Effective Global Rate (Taux Effectif Global)
|
43
|
|
9.
|
Interest Periods
|
43
|
|
9.1
|
Selection of Interest Periods
|
43
|
|
9.2
|
Non-Business Days
|
43
|
|
10.
|
Changes to the Calculation of Interest
|
43
|
|
10.1
|
Unavailability of Screen Rate
|
43
|
|
10.2
|
Market disruption
|
44
|
|
10.3
|
Cost of funds
|
44
|
|
10.4
|
Break Costs
|
45
|
|
11.
|
Fees
|
45
|
|
11.1
|
Commitment fee
|
45
|
|
11.2
|
Utilisation fee
|
45
|
|
11.3
|
Upfront Fee
|
46
|
|
11.4
|
Agency fee
|
46
|
|
SECTION 6 ADDITIONAL PAYMENT OBLIGATIONS
|
47
|
||
12.
|
Tax Gross up and Indemnities
|
47
|
|
12.1
|
Definitions
|
47
|
|
12.2
|
Tax gross-up
|
50
|
|
12.3
|
Tax indemnity
|
52
|
|
12.4
|
Tax Credit
|
53
|
|
12.5
|
Lender status confirmation
|
53
|
|
12.6
|
Stamp taxes
|
54
|
|
12.7
|
VAT
|
54
|
|
12.8
|
FATCA Information
|
55
|
|
12.9
|
FATCA Deduction
|
56
|
|
13.
|
Increased Costs
|
56
|
|
13.1
|
Increased costs
|
56
|
|
13.2
|
Increased cost claims
|
57
|
|
13.3
|
Exceptions
|
57
|
|
14.
|
Other Indemnities
|
58
|
|
14.1
|
Currency indemnity
|
58
|
|
14.2
|
Other indemnities
|
58
|
|
14.3
|
Indemnity to the Agent
|
59
|
|
15.
|
Mitigation by the Lenders
|
59
|
|
15.1
|
Mitigation
|
59
|
|
15.2
|
Limitation of liability
|
60
|
|
16.
|
Costs and Expenses
|
60
|
|
16.1
|
Transaction expenses
|
60
|
|
16.2
|
Amendment costs
|
60
|
21.3
|
Indebtedness
|
73
|
|
21.4
|
Negative pledge
|
74
|
|
21.5
|
Disposals; Mergers
|
75
|
|
21.6
|
Restricted Payments
|
77
|
|
21.7
|
Investments in Unrestricted Subsidiaries
|
77
|
|
21.8
|
Limitations on up streaming
|
77
|
|
21.9
|
Transactions with Affiliates
|
78
|
|
21.10
|
Control of Borrower
|
78
|
|
21.11
|
Change and continuation of business
|
78
|
|
21.12
|
Environmental matters
|
78
|
|
21.13
|
Compliance with laws
|
78
|
|
21.14
|
Insurance
|
78
|
|
21.15
|
Maintenance of property, books and records
|
79
|
|
21.16
|
Use of proceeds
|
79
|
|
21.17
|
Société en nom collectif
|
79
|
|
21.18
|
Payment of obligations
|
79
|
|
21.19
|
Anti-corruption laws and Sanctions
|
80
|
|
21.20
|
Designation of Unrestricted Subsidiaries; Redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries
|
80
|
|
21.21
|
Management of Unrestricted Subsidiaries
|
81
|
|
22.
|
Events of Default
|
81
|
|
22.1
|
Non-payment
|
81
|
|
22.2
|
Financial Covenant
|
81
|
|
22.3
|
Other obligations
|
81
|
|
22.4
|
Misrepresentation
|
82
|
|
22.5
|
Cross default
|
82
|
|
22.6
|
Insolvency, bankruptcy and insolvency proceedings
|
82
|
|
22.7
|
Creditor's process
|
83
|
|
22.8
|
Material judgments
|
84
|
|
22.9
|
Certain ERISA events/pension plans
|
84
|
|
22.10
|
Cessation of business
|
84
|
|
22.11
|
Unlawfulness and Repudiation
|
84
|
|
22.12
|
Consequences of an Event of Default
|
85
|
|
SECTION 9 CHANGES TO PARTIES
|
86
|
||
23.
|
Changes to the Lenders
|
86
|
|
23.1
|
Transfers by the Lenders
|
86
|
|
23.2
|
Conditions of transfer
|
86
|
|
23.3
|
Transfer fee
|
87
|
|
23.4
|
Limitation of responsibility of Existing Lenders
|
87
|
|
23.5
|
Procedure for transfer
|
88
|
|
23.6
|
Copy of Transfer Certificate to Company
|
89
|
|
23.7
|
Security over Lenders' rights
|
89
|
23.8
|
Pro rata interest settlement
|
90
|
|
24.
|
Changes to the Obligors
|
90
|
|
SECTION 10 THE FINANCE PARTIES
|
91
|
||
25.
|
Role of the Agent
|
91
|
|
25.1
|
Appointment of the Agent
|
91
|
|
25.2
|
Instructions
|
91
|
|
25.3
|
Duties of the Agent
|
92
|
|
25.4
|
No fiduciary duties
|
92
|
|
25.5
|
Business with the Group
|
93
|
|
25.6
|
Rights and discretions
|
93
|
|
25.7
|
Responsibility for documentation
|
94
|
|
25.8
|
No duty to monitor
|
95
|
|
25.9
|
Exclusion of liability
|
95
|
|
25.10
|
Lenders' indemnity to the Agent
|
96
|
|
25.11
|
Resignation of the Agent
|
96
|
|
25.12
|
Replacement of the Agent
|
98
|
|
25.13
|
Confidentiality
|
98
|
|
25.14
|
Relationship with the Lenders
|
99
|
|
25.15
|
Credit appraisal by the Lenders
|
99
|
|
25.16
|
Deduction from amounts payable by the Agent
|
100
|
|
25.17
|
Abatement of fees
|
100
|
|
25.18
|
Role of Reference Banks
|
100
|
|
26.
|
Conduct of Business by the Finance Parties
|
100
|
|
27.
|
Sharing among the Finance Parties
|
101
|
|
27.1
|
Payments to Finance Parties
|
101
|
|
27.2
|
Redistribution of payments
|
101
|
|
27.3
|
Recovering Finance Party's rights
|
101
|
|
27.4
|
Reversal of redistribution
|
101
|
|
27.5
|
Exceptions
|
102
|
|
SECTION 11 ADMINISTRATION
|
103
|
||
28.
|
Payment Mechanics
|
103
|
|
28.1
|
Payments to the Agent
|
103
|
|
28.2
|
Distributions by the Agent
|
103
|
|
28.3
|
Distributions to an Obligor
|
103
|
|
28.4
|
Clawback and pre-funding
|
103
|
|
28.5
|
Impaired Agent
|
104
|
|
28.6
|
Partial payments
|
105
|
|
28.7
|
No set-off by Obligor
|
105
|
|
28.8
|
Business Days
|
105
|
|
28.9
|
Currency of account
|
105
|
|
28.10
|
Change of currency
|
106
|
|
28.11
|
Disruption to payment systems etc.
|
106
|
SECTION 12 GOVERNING LAW AND ENFORCEMENT
|
122
|
||
39.
|
Governing Law
|
122
|
|
40.
|
Enforcement
|
122
|
|
40.1
|
Jurisdiction
|
122
|
|
40.2
|
Evidence of Agreement
|
122
|
|
40.3
|
Personal Data Protection
|
123
|
|
SIGNATURE PAGES
|
139
|
LIST OF SCHEDULES
|
|
Schedule 1. The Original Lenders
|
124
|
Schedule 2. Conditions Precedent
|
125
|
Schedule 3. Utilisation Request
|
127
|
Schedule 4. Form of Transfer Certificate
|
129
|
Schedule 5. Form of Compliance Certificate
|
131
|
Schedule 6. Existing Security
|
132
|
Schedule 7. LMA Form of Confidentiality Undertaking
|
133
|
Schedule 8. Timetables
|
138
|
(1) |
TECHNIPFMC PLC, a public limited company incorporated in England and Wales with company
number 09909709 and having its registered office at One, St. Paul's Churchyard, London EC4M 8AP, United Kingdom, as borrower and guarantor ("TechnipFMC plc");
|
(2) |
TECHNIP EUROCASH SNC, a company incorporated under the laws of France as a société en nom collectif with its registered office at 6-8 allée de l'Arche Faubourg de l'Arche Zac Danton, 92400 Courbevoie, France, registered with the
Trade and Companies Registry of Nanterre under number 428 574 248, as borrower ("Technip Eurocash SNC" and together with TechnipFMC plc, the "Borrowers");
|
(3) |
THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Lenders) as lenders (the "Original Lenders"); and
|
(4) |
HSBC FRANCE, a société anonyme incorporated under the laws of France, having its registered office at 103, avenue des Champs-Elysées, 75008 Paris, registered under number 775 670 284 RCS Paris, as agent of the Finance Parties (the "Agent").
|
1. |
Definitions and Interpretation
|
1.1 |
Definitions
|
|
(a) |
the amount of its participation in any outstanding Utilisations; and
|
|
(b) |
in relation to any proposed Utilisation, the amount of its participation in any Utilisations that are due to be made on or before the proposed Utilisation Date,
|
|
(a) |
The Basel Committee on Banking Supervision's proposals contained in "Basel III: A global regulatory framework for more resilient banks and banking systems" and "International
framework for liquidity risk measurement, standards and monitoring" published by the Basel Committee on Banking Supervision on 16 December 2010;
|
|
(b) |
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules
text" published by the Basel Committee on Banking Supervision in November 2011; and
|
|
(c) |
any other related, as of the date of this Agreement, or finalised form of standards published by the Basel Committee on Banking Supervision which addresses such proposals (whether
such implementation, application or compliance is by a government, regulator, Finance Party or any of their respective Affiliates).
|
|
(a) |
the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in 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 principal amount or Unpaid Sum received by it on deposit with a leading bank for a period
starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
|
(a) |
in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Schedule 1 (The Original Lenders) and the amount of any other Commitment transferred to it under this Agreement; and
|
|
(b) |
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
|
|
(a) |
any member of the Group or any of its advisers; or
|
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
|
|
(i) |
information that:
|
|
(A) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 35 (Confidential Information);
|
|
(B) |
is identified in writing at the time of delivery as non‑confidential by any member of the Group or any of its advisers;
|
|
(C) |
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after
that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any
obligation of confidentiality; or
|
|
(D) |
relates to the Signing Date, Margin, size, type and purpose of, the parties to and the initial interest rates in relation to this Agreement routinely provided by agents to data
service providers, including league table providers, that serve the lending industry; and
|
|
(ii) |
any Funding Rate or Reference Bank Quotation.
|
|
(a) |
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and
|
|
(b) |
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit
institutions and investment firms.
|
|
(a) |
which has failed to make its participation in a Loan available (or has notified the Agent or the Company (which has notified the Agent) that it will not make its participation in a
Loan available) by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders' participation);
|
|
(b) |
which has otherwise rescinded or repudiated a Finance Document;
|
|
(c) |
with respect to which an Insolvency Event has occurred and is continuing,
|
|
(i) |
its failure to pay is caused by:
|
|
(A) |
administrative or technical error; or
|
|
(B) |
a Disruption Event, and
|
|
(ii) |
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
|
|
(a) |
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in
connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
|
(b) |
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any
other Party:
|
|
(i) |
from performing its payment obligations under the Finance Documents; or
|
|
(ii) |
from communicating with other Parties in accordance with the terms of the Finance Documents, and which (in either such case) is not caused by, and is beyond the control of, the
Party whose operations are disrupted.
|
|
(a) |
the applicable Screen Rate as of the Specified Time for euro and for a period equal in length to the Interest Period of that Loan; or
|
|
(b) |
as otherwise determined pursuant to Clause 10.1 (Unavailability of Screen Rate), and if,
in either case, that rate is less than zero, EURIBOR shall be deemed to be zero.
|
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations;
|
|
(b) |
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates
the implementation of any law or regulation referred to in paragraph (a) above; or
|
|
(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the IRS, the US government or any governmental or
taxation authority in any other jurisdiction.
|
|
(a) |
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the
US), 1 July 2014; or
|
|
(b) |
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to
a deduction or withholding required by FATCA.
|
|
(a) |
it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;
|
|
(b) |
the Agent otherwise rescinds or repudiates a Finance Document;
|
|
(c) |
(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of Defaulting Lender; or
|
|
(d) |
an Insolvency Event has occurred and is continuing with respect to the Agent, unless, in the case of paragraph (a) above:
|
|
(i) |
its failure to pay is caused by administrative or technical error or a Disruption Event and payment is made within three Business Days of its due date; or
|
|
(ii) |
the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
|
|
(a) |
all obligations of such person for borrowed money;
|
|
(b) |
all obligations of such person evidenced by bonds, debentures, notes or other similar instruments (other than the non-negotiable notes of such person issued to its insurance
carriers in lieu of maintenance of policy reserves in connection with its workers' compensation and auto liability insurance programme);
|
|
(c) |
all obligations of such person to pay the deferred purchase price of property or services, except trade accounts payable, expense accruals and deferred employee compensation items
arising in the ordinary course of business;
|
|
(d) |
all non-contingent obligations of such person to reimburse any issuing bank or any other person in respect of amounts payable or paid under letters of credit or similar instruments
that have been drawn or called upon;
|
|
(e) |
all obligations of such person as lessee under capital leases;
|
|
(f) |
all Indebtedness of others secured by any Security on any asset of such person, whether or not such Indebtedness is assumed by such person; and
|
|
(g) |
all guarantees, indemnities or similar assurance against financial loss provided by such person in respect of the Indebtedness of any other person.
|
|
(a) |
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
|
|
(b) |
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
|
|
(c) |
makes a general assignment, arrangement or composition with or for the benefit of its creditors;
|
|
(d) |
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the
jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law
affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
|
|
(e) |
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or
entity not described in paragraph (d) above and:
|
|
(i) |
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or
|
|
(ii) |
is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
|
|
(f) |
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
|
|
(g) |
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or
substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);
|
|
(h) |
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued
on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;
|
|
(i) |
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a)
to (h) above; or
|
|
(j) |
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
|
|
(a) |
the most recent applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
|
|
(b) |
the most recent applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
|
|
(a) |
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
|
|
(b) |
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
|
|
(a) |
any Original Lender; and
|
|
(b) |
any bank, financial institution, trust, fund or other entity 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.
|
|
(a) |
from the Signing Date until the date falling three (3) Months (included) after the Signing Date: one point fifteen per cent (1.15%) p.a.;
|
|
(b) |
from the day (included) falling after the date falling three (3) Months after the Signing Date until the date falling six (6) Months (included) after the Signing Date: one point
forty per cent (1.40%) p.a.;
|
|
(c) |
from the day (included) falling after the date falling six (6) Months after the Signing Date until the date falling nine (9) Months (included) after the Signing Date: one point
sixty five per cent (1.65%) p.a.; and
|
|
(d) |
from the day (included) falling after the date falling nine (9) Months after the Signing Date until the date falling twelve (12) Months (included) after the Signing Date: one point
ninety per cent (1.90%) p.a,
|
|
(a) |
the consolidated financial condition of the Group (taken as a whole); or
|
|
(b) |
the ability of the Borrowers (taken as whole) to perform their payment obligations under the Finance Documents.
|
|
(a) |
for the period from the Signing Date until 31 December 2020: TechnipFMC Holdings Limited (UK), Technip France SAS, Yamgaz, Technip UK Ltd, South Tambey LNG, Technip Eurocash SNC,
Technip Benelux BV, Technip Chartering Norge AS, Technip Oceania Pty, Flexibras Tubos Flexxveis ltda, FMC Technologies, Inc.; and
|
|
(b) |
for the period from 1st January 2021 and until the Maturity Date, each Restricted Subsidiary of the Company either (i) whose total assets exceed five per cent of the
consolidated total assets of the Group or (ii) whose EBITDA (on a consolidated basis if the Restricted Subsidiary itself has Subsidiaries) exceeds five per cent of the consolidated EBITDA of the Group.
|
|
(i) |
total assets, EBITDA, and consolidated EBITDA of any Restricted Subsidiary or the Group will be determined from the latest financial statements of the relevant entity for the
twelve month period ending on 31 December, adjusted (where appropriate) to reflect the total assets, EBITDA or consolidated EBITDA of any company or business subsequently acquired or disposed of;
|
|
(ii) |
if a person becomes a member of the Group after the Signing Date, the total assets, EBITDA and consolidated EBITDA of that person will be determined from its latest financial
statements as of 31 December 2020;
|
|
(iii) |
if a Material Subsidiary disposes of all or substantially all of its assets to another Subsidiary of the Company, the subsequent financial statements of the Group as of 31 December
2020 will be used to determine whether or not it remains a Material Subsidiary;
|
|
(iv) |
any Subsidiary which the Company has demonstrated to the Agent is a special purpose vehicle which is incorporated solely for the purpose of entering into a single contract or
series of contracts (a "Special Purpose Vehicle") and which would, without the provisions of this sub-paragraph (iv), be a Material Subsidiary only as
a result of that contract or series of contracts being entered into by it, shall not constitute a Material Subsidiary for the purposes of the Finance Documents; and
|
|
(v) |
for the purpose of sub-paragraphs (i) to (iv) above, "financial statements" means, in respect of each twelve month period ending on 31 December, the financial statements for the
preceding annual period;
|
|
(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.
|
|
(a) |
resulting from a limitation on the scope of examination of such financial statements or the underlying data;
|
|
(b) |
as to the capability of the person whose financial statements are certified to continue operations as a going concern; or
|
|
(c) |
which could be eliminated by changes in financial statements or notes thereto covered by such certificate (such as by the creation of or increase in a reserve or a decrease in the
carrying value of assets) and which if so eliminated by the making of any such change and after giving effect thereto would occasion a Default, provided that
neither of the following shall constitute a Qualification:
|
|
(x) |
a consistency exception relating to a change in accounting principles with which the independent public accountants for the person whose financial statements are being certified
have concurred; or
|
|
(y) |
a qualification relating to the outcome or disposition of threatened litigation, pending litigation being contested in good faith, pending or threatened claims or other
contingencies, the impact of which litigation, claims or contingencies cannot be determined with sufficient certainty to permit quantification in such financial statements.
|
|
(a) |
(other than where paragraph (b) below applies) as the rate at which the relevant Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits
in euro within the Participating Member States for the relevant period; or
|
|
(b) |
if different, as the rate (if any and applied to the relevant Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the
relevant administrator.
|
|
(a) |
$3,188,000,000, minus
|
|
(b) |
any increase in the goodwill of TechnipFMC plc (as compared to the goodwill of TechnipFMC plc at 31 March 2020 as reflected in the financial statements of TechnipFMC plc for such
financial quarter delivered to the Agent pursuant to Clause 19.1 (Financial statements));
|
|
(a) |
made or to be made on the same day that a maturing Loan is due to be repaid;
|
|
(b) |
the aggregate amount of which is equal to or less than the amount of the maturing Loan; and
|
|
(c) |
made or to be made to the Borrower for the purpose of refinancing that maturing Loan.
|
|
(a) |
the proposed Transfer Date specified in the relevant Transfer Certificate; and
|
|
(b) |
the date on which the Agent executes the relevant Transfer Certificate.
|
|
(a) |
any Subsidiary which the Company has designated in writing to the Agent to be an Unrestricted Subsidiary pursuant to Clause 21.20 (Designation of Unrestricted Subsidiaries;
Redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries); and
|
|
(b) |
any direct or indirect Subsidiary of any Subsidiary described in clause (a),
|
|
(a) |
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and
|
|
(b) |
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a)
above, or imposed elsewhere.
|
1.2 |
Construction
|
|
(a) |
Unless a contrary indication appears, any reference in this Agreement to:
|
|
(i) |
the "Agent", 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 to, or of, its rights and/or
obligations under the Finance Documents;
|
|
(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, novated, supplemented, extended or restated;
|
|
(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 "person" includes any individual, firm, company, corporation, government, state or agency
of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);
|
|
(vi) |
a "regulation" includes, as to any person, any regulation, rule, official directive,
request or guideline of any Governmental Authority, in each case applicable to or binding upon such person or any of its property or to which such person or any of its property is subject;
|
|
(vii) |
a provision of law is a reference to that provision as amended or re-enacted; and
|
|
(viii) |
a time of day is a reference to Paris time.
|
|
(b) |
The determination of the extent to which a rate is "for a period equal in length" to an
Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.
|
|
(c) |
Section, Clause and Schedule headings are for ease of reference only.
|
|
(d) |
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.
|
|
(e) |
A Default or an Event of Default is "continuing" if it has not been remedied or waived.
|
|
(f) |
Any duties, obligations or liabilities of the Agent under this Agreement may be performed or otherwise discharged by the Agent or one of its Affiliates as the Agent in its sole
discretion may determine and notify to the other Parties from time to time.
|
1.3 |
Currency symbols and definitions
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2. |
The Facility
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2.1 |
The Facility
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2.2 |
Finance Parties' rights and obligations
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(a) |
The obligations of each Finance Party under the Finance Documents are several ("conjointes et non
solidaires"). 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.
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(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 is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that
Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in the Facility or its role under a Finance Document
(including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.
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(c) |
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.
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(d) |
The Subsidiary Borrower hereby irrevocably appoints and authorizes, from and after the Signing Date, the Company to act on its behalf as its agent for all purposes of this
Agreement and the other Finance Documents, including (i) the giving and receipt of notices (including any Utilisation Request) and (ii) the execution and delivery of all documents, instruments and certificates contemplated herein. The
Subsidiary Borrower hereby acknowledges and confirms that any amendment or other modification to this Agreement or any other Finance Document may be effected as set forth in Clause 33 (Amendments and Waivers), that no consent of the Subsidiary Borrower shall be required to effect any such amendment or other modification and that the Subsidiary Borrower shall be bound by this Agreement
or any other Finance Document (if it is theretofore a party thereto) as so amended or modified as if the Subsidiary Borrower had expressly made, given or concurred with it.
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3. |
Purpose
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3.1 |
Purpose
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(a) |
Subject to paragraph (b) below, each Borrower shall only be entitled to apply amounts borrowed by it under the Facility to: (i) pay fees, commissions and expenses incurred in
connection with the Facility and (ii) finance ongoing working capital requirements and other general corporate purposes (including for the avoidance of doubt the refinancing of any indebtedness) of the Borrowers and the Restricted
Subsidiaries.
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(b) |
No proceeds of any Loan made under this Agreement may be used for any purpose which would constitute unlawful financial assistance in the jurisdiction in which any Borrower is
incorporated or organised or has its principal place of business.
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3.2 |
Monitoring
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4. |
Conditions of Utilisation
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4.1 |
Initial conditions precedent
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(a) |
No Utilisation may be made, unless the Agent has received all of the documents and other evidence listed in Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent, unless waived by the Agent with the consent of each of the Lenders. The Agent shall notify the Company and the Lenders promptly
upon being so satisfied.
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(b) |
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders
authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
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4.2 |
Further conditions precedent
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(a) |
in the case of any Loan (other than a Rollover Loan):
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(i) |
no Default is continuing or would result from the proposed Loan; and
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(ii) |
the Repeating Representations are true in all material respects (or, if any Repeating Representation is qualified by materiality or Material Adverse Effect, in all respects) or, if
any of the Repeating Representations specifically refers to an earlier date, such Repeating Representations are true in all material respects (or, if any Repeating Representation is qualified by materiality or Material Adverse Effect, in
all respects) as of such earlier date.
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(b) |
in the case of a Rollover Loan, no Event of Default has occurred and is continuing.
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4.3 |
Conditions precedent for the sole benefit of the Lenders
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4.4 |
Maximum number of Utilisations
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5. |
Utilisation
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5.1 |
Delivery of a Utilisation Request
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5.2 |
Completion of a Utilisation Request
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(a) |
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
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(i) |
it identifies the Borrower to which the Loan is to be made;
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(ii) |
the proposed Utilisation Date is a Business Day within the Availability Period;
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(iii) |
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);
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(iv) |
the proposed Interest Period complies with Clause 9 (Interest Periods).
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(b) |
Only one Loan may be requested in each Utilisation Request.
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5.3 |
Currency and amount
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(a) |
The currency specified in a Utilisation Request for a Loan must be euro.
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(b) |
The amount of the proposed Loan must be a minimum of €1,000,000 or, if less, the Available Facility and, in any event the amount of any proposed Loan shall be less than or equal to
the Available Facility.
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5.4 |
Lenders' participation
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(a) |
If the conditions set out in this Agreement have been met, and subject to Clause 6 (Repayment),
each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
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(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.
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(c) |
The Agent shall notify each Lender of the amount of each Loan, the amount of its participation in that Loan and, if different, the amount of that participation to be made available
in accordance with Clause 28.1 (Payments to the Agent), in each case by the Specified Time.
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(d) |
Each Lender may, at its option, make any Loan available to any Borrower by causing any foreign or domestic branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of such Borrower to repay such Loan in accordance with the terms of this Agreement. As a
condition to any Lender being permitted to fulfil its Commitment by causing a branch or an Affiliate of such Lender to act as the Lender in respect of any Loan under this Clause 5.4 (Lenders' participation, such branch or Affiliate must comply, to the extent applicable, with Clause 12.5 (Lender status
confirmation) and Clause 12.8 (FATCA Information) as if it were a Lender that became a party to this Agreement pursuant to a Transfer
Certificate executed on the first date on which such Commitment is being fulfilled by such branch or Affiliate. Additionally, in applying the provisions of Clause 12 (Tax Gross up and Indemnities) and Clause 13.1 (Increased costs), such branch or Affiliate shall be treated as a Lender
that executed a Transfer Certificate on the first date on which such Commitment is fulfilled by such branch or Affiliate (and the provisions of Clause 23.2 (Conditions
of transfer) shall apply accordingly).
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5.5 |
Cancellation of Commitments
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6. |
Repayment
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7. |
Prepayment, Cancellation and Replacement of Lenders
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7.1 |
Illegality
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(a) |
that Lender shall promptly notify the Agent upon becoming aware of that event, and the Agent shall promptly notify the Company of such event;
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(b) |
upon the Agent notifying the Company, the Available Commitment of that Lender will be immediately cancelled; and
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(c) |
to the extent that the Lender's (and any such Affiliate's) participation has not been transferred pursuant to paragraph (a) of Clause 7.6 (Right of prepayment and cancellation or replacement in relation to a single
Lender), the Borrower shall repay that Lender's (and any such Affiliate's) participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Company 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) and that Lender's (and any such Affiliate's) corresponding Commitment
shall be cancelled in the amount of the participations repaid.
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7.2 |
Mandatory Prepayment of Technip Eurocash
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(a) |
the Company shall notify the Agent promptly upon becoming aware of that event;
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(b) |
Technip Eurocash SNC shall, within three Business Days of the Company notifying the Agent pursuant to paragraph (a), repay all outstanding Utilisations made to it (including
accrued interest and Break Costs, if any) and all other amounts owed to the Lenders by it under the Finance Documents shall become due and payable within three Business Days of the Company notifying the Agent pursuant to paragraph (a); and
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(c) |
Technip Eurocash SNC shall cease to be able to make any further Utilisations.
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7.3 |
Change of Control
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(a) |
the Company shall, within three Business Days of becoming aware thereof, notify the Agent and the Agent shall within three Business Days of receipt of such notice from the Company,
notify the Lenders accordingly;
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(b) |
each Lender shall be entitled to cancel its Commitments and require repayment of all of its share of the Loans and payment of all amounts owing to it under the Finance Documents by
notification to the Agent within 30 days of the Company notifying the Agent pursuant to Clause (a) above, whereupon:
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(i) |
on the date such Lender provides notification to the Agent, the undrawn Commitments of such Lender shall be cancelled and such Lender shall have no obligation to fund or
participate in any new Utilisation; and
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(ii) |
on the date falling 10 Business Days after such Lender provides notification to the Agent:
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(A) |
all outstanding Loans provided by such Lender, together with accrued interest, and all other amounts accrued or owing to such Lender under the Finance Documents shall become
immediately due and payable, and the relevant Borrowers will immediately repay or prepay all Loans and amounts provided by or owing to that Lender; or
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(B) |
if the Company shall have arranged for another Lender or a New Lender to acquire that Lender's participation in the Facility and any outstanding Loans, such other Lender or New
Lender shall acquire that Lender's participation in the Facility and any outstanding Loans at par; provided that (i) no Lender shall have any obligation to make
such acquisition and any decision to make such acquisition shall be in each Lender's sole discretion and (ii) in the case of a transfer to a New Lender, such transfer shall be effected in accordance with the provisions of Clause 23 (Changes to the Lenders).
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7.4 |
Voluntary cancellation
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7.5 |
Voluntary prepayment of Loans
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7.6 |
Right of prepayment and cancellation or replacement in relation to a single Lender
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(a) |
If:
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(i) |
any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 12.2 (Tax gross-up);
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(ii) |
any Lender claims indemnification from the Company under Clause 12.3 (Tax indemnity) or
Clause 13.1 (Increased costs);
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(iii) |
any Lender becomes a Defaulting Lender,
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(iv) |
any amount payable to any Lender by a Borrower under a Finance Document is not, or will not be (when the relevant corporate income tax is calculated) treated as a deductible charge
or expense for tax purposes for the Borrower by reason of that amount being (i) paid or accrued to a Lender incorporated, domiciled, established or acting through a Facility Office situated in a Non-Cooperative Jurisdiction, or (ii) paid to
an account opened in the name of or for the benefit of that Lender in a financial institution situated in a Non-Cooperative Jurisdiction, or
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(v) |
an Obligor becomes obliged to pay any amount in accordance with Clause 7.1 (Illegality) to
any Lender, the Company may, on five (5)Business Days' prior notice to the Agent and that Lender:
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(A) |
give the Agent notice of cancellation of the Commitment(s) of that Lender and its intention to procure the repayment of that Lender's participation in the Loans; or
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(B) |
replace that Lender (together with any Affiliate of that Lender) by requiring that Lender and that Affiliate to (and, to the extent permitted by law, that Lender and that Affiliate
shall) transfer pursuant to Clause 23 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to a Lender
or other bank or financial institution, selected by the Company and which confirms its willingness to assume and does assume all the obligations of the transferring Lender and transferring Affiliate in accordance with Clause 23 (Changes to the Lenders) for a purchase price in cash payable at the time of the transfer in an amount equal to the outstanding principal amount of such
Lender's and such Affiliate's participation in the outstanding Loans and all accrued interest (to the extent that the Agent has not given a notification under Clause 23.8 (Pro rata interest settlement), Break Costs and other amounts payable in relation thereto under the Finance Documents.
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(b) |
On receipt of a notice of cancellation referred to in clause (A) of paragraph (a) above, the Commitment(s) of that Lender and any such Affiliate shall immediately be reduced to
zero.
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(c) |
On the last day of each Interest Period which ends after the Company has given notice of cancellation under clause (A) of paragraph (a) above (or, if earlier, the date specified by
the Company in that notice), each Borrower to which a Loan is outstanding shall repay that Lender's participation in that Loan.
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(d) |
The replacement of a Lender pursuant to clause (B) of paragraph (a) above shall be subject to the following conditions:
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(i) |
the Company shall have no right to replace the Agent;
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(ii) |
neither the Agent nor any Lender shall have any obligation to find a replacement Lender;
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(iii) |
in no event shall the Lender replaced under paragraph (a) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and
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(iv) |
the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (a) above once it is satisfied that it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and regulations in relation to that transfer.
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(e) |
A Lender shall perform the checks described in paragraph (d)(iv) above as soon as reasonably practicable following delivery of a notice of replacement referred to in clause (B) of
paragraph (a) above and shall notify the Agent and the Company when it is satisfied that it has complied with those checks.
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7.7 |
Restrictions
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(a) |
Any notice of cancellation or prepayment given by any Party under this Clause 7 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.
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(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.
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(c) |
Unless a contrary indication appears in this Agreement, any part of the Facility which is prepaid or repaid (but not cancelled) may be reborrowed in accordance with the terms of
this Agreement.
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(d) |
The Borrowers 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.
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(e) |
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
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(f) |
If the Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to the Company or the affected Lender.
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(g) |
If all or part of any Lender's participation in a Loan under the Facility is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (Further conditions precedent), an amount of that Lender's Commitments (equal to the amount of the participation which is repaid or prepaid) in respect of
the Facility will be deemed to be cancelled on the date of repayment or prepayment.
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7.8 |
Application of prepayments
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8. |
Interest
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8.1 |
Calculation of interest
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(a) |
Margin; and
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(b) |
EURIBOR.
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8.2 |
Payment of interest
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8.3 |
Default interest
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(a) |
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue to the fullest extent permitted by law and without notice (mise en demeure) on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to
paragraph (b) below, is one per cent per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan for successive Interest Periods, each of a duration selected
by the Agent (acting reasonably).
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(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:
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(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
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(ii) |
the rate of interest applying to the overdue amount during that first Interest Period shall be one per cent per annum higher than the rate which would have applied if the overdue
amount had not become due.
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(c) |
Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount only if, in accordance with article 1343-2 of the French Code Civil, such interest is due for a period of at least one calendar year, but will remain immediately due and payable.
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8.4 |
Notification of rates of interest
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(a) |
The Agent shall promptly notify the Lenders and the relevant Borrower of the determination of a rate of interest under this Agreement.
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(b) |
The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan, as applicable.
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8.5 |
Effective Global Rate (Taux Effectif Global)
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9. |
Interest Periods
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9.1 |
Selection of Interest Periods
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(a) |
A Borrower (including the Company on behalf of the Subsidiary Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan.
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(b) |
Subject to this Clause 9, a Borrower (including the Company on behalf of the Subsidiary Borrower) may select an Interest Period of three or six Months.
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(c) |
An Interest Period for a Loan shall not extend beyond the Maturity Date.
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(d) |
Each Interest Period for a Loan shall start on the Utilisation Date of that Loan.
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(e) |
A Loan has one Interest Period only.
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9.2 |
Non-Business Days
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10. |
Changes to the Calculation of Interest
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10.1 |
Unavailability of Screen Rate
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(a) |
Interpolated Screen Rate: If no Screen Rate is available for EURIBOR for the Interest
Period of a Loan, the applicable EURIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.
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(b) |
Shortened Interest Period: If no Screen Rate is available for EURIBOR, as applicable for
the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate, the Interest Period of that Loan shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback
Interest Period and the applicable EURIBOR for that shortened Interest Period shall be determined pursuant to the relevant definition.
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(c) |
Shortened Interest Period and Historic Screen Rate: If the Interest Period of a Loan is,
after giving effect to paragraph (b) above, either the applicable Fallback Interest Period or shorter than the applicable Fallback Interest Period and the relevant Screen Rate is not available for EURIBOR for the Interest Period of that
Loan and it is not possible to calculate the Interpolated Screen Rate, the applicable EURIBOR shall be the Historic Screen Rate for that Loan.
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(d) |
Shortened Interest Period and Interpolated Historic Screen Rate: If paragraph (c) above
applies but no Historic Screen Rate is available for the Interest Period of the Loan, the applicable EURIBOR shall be the Interpolated Historic Screen Rate for a period equal in length to the Interest Period of that Loan.
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(e) |
Reference Bank Rate: If paragraph (d) above applies but it is not possible to calculate
the Interpolated Historic Screen Rate, the Interest Period of that Loan shall, if it has been shortened pursuant to paragraph (b) above, revert to its previous length and the applicable EURIBOR shall be the Reference Bank Rate as of the
Specified Time for the currency of that Loan and for a period equal in length to the Interest Period of that Loan.
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(f) |
If paragraph (e) above applies but no Reference Bank Rate is available for the relevant currency or Interest Period, the Interest Period of that Loan shall, if it has been
shortened pursuant to paragraph (b) above, revert to its previous length and there shall be no EURIBOR for that Loan and Clause 10.3 (Cost of funds)
shall apply to that Loan for that Interest Period.
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10.2 |
Market disruption
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10.3 |
Cost of funds
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(a) |
If this Clause 10.3 applies, the rate of interest on each Lender's share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the
sum of:
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(i) |
the Margin; and
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(ii) |
the weighted average of the rates notified to the Agent by each Lender as soon as practicable and in any event within five Business Days of the first day of that Interest Period
(or, if earlier, on the date falling three Business Days before the date on which 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 the relevant Lender of
funding its participation in that Loan from whatever source it may reasonably select.
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(b) |
If this Clause 10.3 applies and the Agent or the Company so requires, the Agent and the Company shall enter into negotiations (for a period of not more than thirty (30) days) with
a view to agreeing a substitute basis for determining the rate of interest.
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(c) |
Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.
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(d) |
If this Clause 10.3 applies but any Lender does not supply a quotation by the time specified in paragraph (a)(ii) above, the rate of interest shall be calculated on the basis of
the quotations of the remaining Lenders.
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10.4 |
Break Costs
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(a) |
A Borrower shall, within three (3) 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 that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.
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(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, together with reasonable details of how such Break Costs are calculated to the extent it does not require disclosing any confidential or price-sensitive information.
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11. |
Fees
|
11.1 |
Commitment fee
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(a) |
The Borrowers undertake, on a joint and several basis, to pay to the Agent for the account of each Lender a fee in euros computed at the rate of thirty five per cent of the
applicable Margin on that Lender's Available Commitment for the Availability Period.
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(b) |
The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the relevant Availability Period, on the last day of the
Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.
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11.2 |
Utilisation fee
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(a) |
The Borrowers undertake, on a joint and several basis, to pay to the Agent for the account of each Lender a utilisation fee in euro computed on a day to day basis at the rate of:
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(i) |
for each day on which the aggregate amount of the Loans is less than or equal to 33% of the Total Commitments, 0.05% on that Lender's participations in the outstanding Loans;
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(ii) |
for each day on which the aggregate amount of the Loans is higher than 33% but less than or equal to 66% of the Total Commitments, 0.10% on that Lender's participations in the
outstanding Loans; and
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(iii) |
for each day on which the aggregate amount of the Loans is higher than 66% of the Total Commitments, 0.25% on that Lender's participations in the outstanding Loans.
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(b) |
The accrued Utilisation Fee shall be payable in arrears on the last day of each successive period of three Months until the Maturity Date, and for the last time on the Maturity
Date and, if the Commitment of a Lender is cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.
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11.3 |
Upfront Fee
|
11.4 |
Agency fee
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12. |
Tax Gross up and Indemnities
|
12.1 |
Definitions
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|
(a) |
In this Agreement:
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(i) |
where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender's name under the
heading "Treaty Passport scheme reference number and jurisdiction of tax residence (if applicable)" in Schedule 1 (The Original Lenders), and is filed
with HM Revenue & Customs within 30 days of the date of this Agreement; or
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(ii) |
where it relates to a Treaty Lender that is a New Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the relevant
Transfer Certificate, and is filed with HM Revenue & Customs within 30 days of that Transfer Date.
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(a) |
in relation to a Tax Deduction in respect of Tax imposed by the UK:
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|
(i) |
a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:
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|
(A) |
a Lender:
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|
(1) |
which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to UK corporation tax as respects any
payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or
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(2) |
in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and
within the charge to UK corporation tax as respects any payments of interest made in respect of that advance; or
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|
(B) |
a Lender which is:
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|
(1) |
a company resident in the UK for UK tax purposes;
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|
(2) |
a partnership each member of which is:
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|
(i) |
a company so resident in the UK; or
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|
(ii) |
a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account in computing its chargeable profits (within
the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA;
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(3) |
a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account interest payable in respect of that advance
in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or
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(C) |
a Treaty Lender in respect of the UK; or
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|
(ii) |
a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document; and
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|
(b) |
in relation to a Tax Deduction in respect of Tax imposed by France, a Lender which is beneficially entitled to payments payable to that Lender under a Finance Document and which:
|
|
(i) |
fulfils the conditions imposed by French Law in order for any payment under the Finance Documents not to be subject to (or as the case may be, to be exempt from) any Tax Deduction;
or
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|
(ii) |
is a Treaty Lender, in respect of France.
|
|
(i) |
a company resident in the UK for UK tax purposes;
|
|
(ii) |
a partnership each member of which is:
|
|
(A) |
a company so resident in the UK; or
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|
(B) |
a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account in computing its chargeable profits (within
the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
|
|
(iii) |
a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account interest payable in respect of that advance
in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.
|
|
(a) |
is treated as a resident of a Treaty State for the purposes of the Treaty; and
|
|
(b) |
does not carry on a business in the relevant Obligor's jurisdiction of tax residence through a permanent establishment with which that Lender's participation in the Loan is
effectively connected;
|
|
(c) |
at the time interest falls due, meets all other conditions in the relevant Treaty for full exemption from Tax imposed by the relevant Borrower's jurisdiction of tax residence on
interest, subject to the completion of any necessary procedural formalities; and
|
|
(d) |
with respect to payments by the French Borrower only, is acting from a Facility Office situated in its jurisdiction of incorporation and fulfils any other conditions which must be
fulfilled under the Treaty by residents of the Treaty State for such residents to obtain exemption from Tax imposed on any payment under the Finance Documents by France.
|
|
(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.
|
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 Company shall upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent
accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Company and that Obligor.
|
|
(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.
|
|
(d) |
Any payment shall not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax, if on the date on which the payment falls due:
|
|
(i) |
the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be
a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published
concession of any relevant taxing authority; or
|
|
(ii) |
with respect to payments of interest by a UK Obligor only, the relevant Lender is a Qualifying Lender solely by virtue of paragraph (a)(i)(B) of the definition of Qualifying Lender
and:
|
|
(A) |
an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a "Direction") under section 931 of the ITA which relates to the payment and that Lender has
received from the Obligor making the payment or from the Company a certified copy of that Direction; and
|
|
(B) |
the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made;
|
|
(iii) |
with respect to payments of interest by a UK Obligor only, the relevant Lender is a Qualifying Lender solely by virtue of paragraph (a)(i)(B) of the definition of Qualifying Lender
and:
|
|
(A) |
the relevant Lender has not given a Tax Confirmation to the Company; and
|
|
(B) |
the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Company, on the basis that the Tax Confirmation would
have enabled the Company to have formed a reasonable belief that the payment was an "excepted payment" for the purpose of section 930 of the ITA; or
|
|
(iv) |
the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had
that Lender complied with its obligations under paragraph (h) or (i) (as applicable) below.
|
|
(e) |
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.
|
|
(f) |
Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent
for the Finance Party entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to
the relevant taxing authority.
|
|
(i) |
Subject to paragraph (ii) below, a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural
formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.
|
|
(A) |
A Treaty Lender which becomes a Party on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that
scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Schedule 1 (The
Original Lenders); and
|
|
(B) |
a New Lender that is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its
scheme reference number and its jurisdiction of tax residence in the Transfer Certificate which it executes,
|
|
(h) |
If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (g)(ii) above and:
|
|
(i) |
the UK Obligor has not made a Borrower DTTP Filing in respect of that Lender; or
|
|
(ii) |
the UK Obligor has made a Borrower DTTP Filing in respect of that Lender but:
|
|
(A) |
that Borrower DTTP Filing has been rejected by HM Revenue & Customs;
|
|
(B) |
HM Revenue & Customs has not given the UK Obligor authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing; or
|
|
(C) |
HM Revenue & Customs has given the UK Obligor authority to make payments to that Lender without a Tax Deduction but such authority has subsequently been revoked or expired,
|
|
(i) |
If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with
paragraph (g)(ii) above, no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender's Commitment(s) or its participation in any Loan unless the Lender
otherwise agrees.
|
|
(j) |
The UK Obligor shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Agent for delivery to the relevant Lender.
|
|
(k) |
A UK Non-Bank Lender which becomes a Party on the day on which this Agreement is entered into (if any) gives a Tax Confirmation to the Borrower by entering into this Agreement.
|
|
(l) |
A UK Non-Bank Lender shall promptly notify the Borrower and the Agent if there is any change in the position from that set out in the Tax Confirmation.
|
|
(m) |
A Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor
to obtain authorisation to make that payment without a Tax Deduction.
|
12.3 |
Tax indemnity
|
|
(a) |
The Company shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines
will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
|
(b) |
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;
|
|
(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; or
|
|
(C) |
under the law of any jurisdiction in which that Finance Party has a permanent establishment, branch or agency in respect of amounts attributable to that permanent establishment,
branch or agency,
|
|
(ii) |
to the extent a loss, liability or cost:
|
|
(A) |
is compensated for by an increased payment under Clause 12.2 (Tax gross-up);
|
|
(B) |
would have been compensated for by an increased payment under Clause 12.2 (Tax gross-up)
but was not so compensated solely because one of the exclusions in paragraph (d) of Clause 12.2 (Tax gross-up) applied; or
|
|
(C) |
relates to a FATCA Deduction required to be made by a Party.
|
|
(c) |
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.
|
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3, notify the Agent.
|
12.4 |
Tax Credit
|
|
(a) |
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was
required; and
|
|
(b) |
that Finance Party has obtained and utilised that Tax Credit,
|
12.5 |
Lender status confirmation
|
|
(a) |
Each Lender which becomes a Party to this Agreement after the date of this Agreement shall indicate, in the Transfer Certificate which it executes on becoming a Party, and for the
benefit of the Agent and without liability to any Obligor, which of the following categories it falls in with respect of each of the UK Borrower and the French Borrower:
|
|
(i) |
not a Qualifying Lender in respect of the relevant jurisdiction;
|
|
(ii) |
a Qualifying Lender (other than a Treaty Lender) in respect of the relevant jurisdiction; or
|
|
(iii) |
a Treaty Lender in respect of the relevant jurisdiction.
|
|
(b) |
Each Lender who becomes Party to the Agreement on the Signing Date hereby confirms without liability
to any Obligor that it is not incorporated or acting through a Facility Office situated in a Non-Cooperative Jurisdiction.
|
|
(c) |
If a New Lender fails to indicate its status in respect of the UK or France in accordance with this Clause 12.5 then such New Lender shall be treated for the purposes of this
Agreement (including by each Borrower) as if it is not a Qualifying Lender in the relevant jurisdiction until such time as it notifies the Agent which category applies (and the Agent, upon receipt of such notification, shall inform the
Company). For the avoidance of doubt, a Transfer Certificate shall not be invalidated by any failure of a Lender to comply with this Clause 12.5.
|
|
(d) |
A New Lender shall also specify in the Transfer Certificate which it executes on becoming a Party, whether it is incorporated or acting through a Facility Office situated in a
Non-Cooperative Jurisdiction. For the avoidance of doubt, a Transfer Certificate shall not be invalidated by any failure of a Lender to comply with this paragraph (b).
|
12.6 |
Stamp taxes
|
12.7 |
VAT
|
|
(a) |
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT
purposes are deemed to be exclusive of any VAT which is chargeable on that supply and, accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance
Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount
equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).
|
|
(b) |
If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to
any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient (the "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to
reimburse or indemnify the Recipient in respect of that consideration):
|
|
(i) |
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that
amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax
authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
|
|
(ii) |
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the
Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
|
|
(c) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such
Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT
from the relevant tax authority.
|
|
(d) |
Any reference in this Clause 12.7 (VAT) to any Party shall, at any time when such Party is
treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated as making the supply, or (as appropriate) receiving the supply (as provided for
in Article 11 of Council Directive 2006/112/EC or as otherwise implemented by any relevant member state of the European Union or any other similar provision in any jurisdiction which is not a member state of the European Union).
|
|
(e) |
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such
Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.
|
12.8 |
FATCA Information
|
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
|
(i) |
confirm to that other Party whether it is:
|
|
(A) |
a FATCA Exempt Party; or
|
|
(B) |
not a FATCA Exempt Party;
|
|
(ii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other
Party's compliance with FATCA; and
|
|
(iii) |
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's
compliance with any other law, regulation, or exchange of information regime.
|
|
(b) |
If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA
Exempt Party, that Party shall notify that other Party reasonably promptly.
|
|
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its
reasonable opinion constitute a breach of:
|
|
(i) |
any law or regulation;
|
|
(ii) |
any fiduciary duty; or
|
|
(iii) |
any duty of confidentiality.
|
|
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii)
above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as
the Party in question provides the requested confirmation, forms, documentation or other information.
|
12.9 |
FATCA Deduction
|
|
(a) |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to
increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
|
(b) |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party
to whom it is making the payment and, in addition, shall notify the Company and the Agent and the Agent shall notify the other Finance Parties.
|
13. |
Increased Costs
|
13.1 |
Increased costs
|
|
(a) |
Subject to Clause 13.3 (Exceptions) the Company shall, within three (3) 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 of) any law or regulation, (ii) compliance with any law or regulation made after the date of this Agreement, (iii) the application of or compliance with Basel III or CRD IV or any requests, rules, guidelines or
directives thereunder or issued in connection therewith.
|
|
(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 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 intending to make a claim pursuant to Clause 13.1 (Increased costs) shall
notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Company.
|
|
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Company (through the Agent), and prior to any payment of Increased Costs by the Company, provide to the
Company and the Agent a certificate setting out in reasonable detail the calculation of, and confirming the amount of, its Increased Costs. Such Finance Party's determination of such amount (i) shall be substantially consistent with
similarly situated customers of such Finance Party under agreements having provisions similar to Clause 13.1 (Increased costs), after consideration of
such factors as such Finance Party reasonably determines to be relevant and (ii) shall not lead to the relevant Finance Party being required to disclose confidential information or price-sensitive information or infringing any
confidentiality undertaking.
|
|
(c) |
Failure or delay on the part of any Finance Party to demand compensation pursuant to this Clause 13 shall not constitute a waiver of such Finance Party's right to demand such
compensation; provided that the Company shall not be required to compensate a Finance Party pursuant to this Clause 13 for any Increased Costs incurred more than
180 days prior to the date that such Finance Party notifies the Company of the applicable event(s) in clauses (a)(i) through (a)(iii) of Clause 13.1 (Increased
costs) giving rise to such Increased Costs and of such Finance Party's intention to claim compensation therefor; provided further that, if such event(s)
giving rise to such Increased Costs are retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
|
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 FATCA Deduction required to be made by a Party;
|
|
(iii) |
compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under
Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (Tax indemnity) applied);
|
|
(iv) |
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;
|
|
(v) |
attributable to the implementation or application of or compliance with the "International Convergence of Capital Measurement and Capital Standards, a Revised Framework" published
by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III) ("Basel II") or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).
|
|
(b) |
In this Clause 13.3, a reference to a "Tax Deduction" has the same meaning given to that
term in Clause 12.1 (Definitions).
|
14. |
Other Indemnities
|
14.1 |
Currency indemnity
|
|
(a) |
If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order,
judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into
another currency (the "Second Currency") for the purpose of:
|
|
(i) |
making or filing a claim or proof against that Obligor;
|
|
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
|
(b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed
to be payable.
|
14.2 |
Other indemnities
|
|
(a) |
the occurrence of any Event of Default;
|
|
(b) |
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 27 (Sharing among the Finance Parties);
|
|
(c) |
funding, or making arrangements to fund, its participation in a Loan requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of
the provisions of this Agreement;
|
|
(d) |
a Utilisation (or part of a Utilisation) not being prepaid in accordance with a notice of prepayment given by the Company or the Subsidiary Borrower;
|
|
(e) |
the execution or delivery of the Finance Documents, or any agreement or instrument expressly contemplated thereby, the performance by the parties thereto of their respective
obligations thereunder or the consummation of the transactions contemplated thereby;
|
|
(f) |
any actual or alleged presence or release of hazardous materials on or from any property owned or operated by the Borrowers or any of their respective Subsidiaries, or any
environmental liability related in any way to the Borrowers or any of their respective Subsidiaries; or
|
14.3 |
Indemnity to the Agent
|
|
(a) |
investigating any event which it reasonably believes is a Default;
|
|
(b) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or
|
|
(c) |
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.
|
15. |
Mitigation by the Lenders
|
15.1 |
Mitigation
|
15.2 |
Limitation of liability
|
|
(a) |
The Company shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).
|
|
(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 might be prejudicial to it.
|
16. |
Costs and Expenses
|
16.1 |
Transaction expenses
|
|
(a) |
this Agreement and any other documents referred to in this Agreement; and
|
|
(b) |
any other Finance Documents executed after the date of this Agreement.
|
16.2 |
Amendment costs
|
|
(a) |
any amendment, waiver or consent requested by an Obligor; and
|
|
(b) |
an amendment required pursuant to Clause 28.10 (Change of currency) or Clause 34.5 (Replacement of Screen Rate).
|
16.3 |
Enforcement costs
|
17. |
Guarantee
|
|
(a) |
The Company, notwithstanding the release of the Subsidiary Borrower under the terms of any composition or arrangement with any creditors, hereby irrevocably and jointly and
severally guarantees to the Finance Parties as caution solidaire the payment when due of all sums from time to time payable by the Subsidiary
Borrower under the Finance Documents.
|
|
(b) |
The obligations of the Company under this Clause 17 will not be affected by any act, variation, circumstance, omission, matter or thing which, but for this provision, would reduce,
release or prejudice any of its obligations under this Clause 17 or prejudice or diminish those obligations in whole or in part, including without limitation (whether or not known to it or any other Party) any extension of time, renewal,
amendment or modification of any of the clauses, terms or conditions of the Finance Documents so that each such obligation shall, for the purposes of the Company's obligations under this Clause 17, remain in full force and be construed as
if there were no such act, circumstance, variation, omission, matter or thing and the Company hereby expressly agrees and waives any rights which it may have to claim that any such act, circumstance, variation, omission, matter or thing
operates as a novation within the meaning of articles 1329 et seq. of the French Code civil so as to release it from its obligations under this Clause.
|
|
(c) |
The Company further expressly waives and renounces any rights which it may have to claim a novation and release under the Finance Documents because of a change in the legal form or
personality of any of the Subsidiary Borrower in the future or in the case of any merger or other restructuring ("fusion", "scission" or "apport partiel d'actif") of the Subsidiary Borrower with another
entity even if it is not the surviving entity.
|
|
(d) |
Furthermore, the Company agrees that it will continue to be bound by the terms of the guarantee given pursuant to this Clause 17 notwithstanding any merger or other restructuring
("fusion", "scission" or "apport partiel d'actif") of any of the Finance Parties with another entity and notwithstanding any modification in the legal form of personality of any such Finance Party, even
if that Finance Party is not the surviving entity.
|
|
(e) |
The guarantee under this Clause 17 will extend to the ultimate balance of all sums payable by the Subsidiary Borrower under the Finance Documents, regardless of any intermediate
payment or discharge in whole or in part and shall as a matter of law benefit to each successor or transferee of the rights and obligations of each Finance Party hereunder (including any New Lender).
|
|
(f) |
The Company waives any right it may have of first requiring any Finance Party (or any agent on its behalf) to proceed against the Subsidiary Borrower or any other person (bénéfice de discussion) or enforce any other rights or security or claim payment from or file any proof or claim in any insolvency proceedings of any
person before claiming from the Company under this Clause 17 (bénéfice de division).
|
|
(g) |
Until all amounts which may be or become payable by the Subsidiary Borrower under or in connection with the Finance Documents have been irrevocably paid in full, the Company shall
not, after a claim has been made or by virtue of any payment or performance by it under this Clause 17:
|
|
(i) |
be subrogated to any rights, security or moneys held, received or receivable by any Finance Party (or any agent on its behalf) or be entitled to any right of contribution or
indemnity in respect of any payment made or moneys received on account of the Company's liability under this Clause 17 and, to the extent that the Company is so subrogated or entitled by law, the Company (to the fullest extent permitted by
law) waives and agrees not to exercise or claim those rights, security or money or that right of contribution or indemnity;
|
|
(ii) |
claim, rank, prove or vote as a creditor of the Subsidiary Borrower or its estate in competition with any Finance Party (or any agent on its behalf) unless otherwise required by
the Agent or by law (in which case any proceeds of any claim in respect of any rights, security or monies of any Finance Party to which the Company was subrogated will be paid by the Company to the Agent to be applied in accordance with the
provisions of the Finance Documents) or unless required for filing any debt claim (déclaration de créance) it may have against the Subsidiary Borrower in an insolvency proceeding; or
|
|
(iii) |
receive, claim or have the benefit of any payment, distribution or security from or on account of the Subsidiary Borrower, or exercise any right of set-off as against the
Subsidiary Borrower (and without prejudice to the foregoing, the Company shall forthwith pay to the Agent for the benefit of the Finance Parties an amount equal to any amount so set-off by it).
|
|
(h) |
Until all amounts which may be or become payable by the Subsidiary Borrower under or in connection with the Finance Documents have been irrevocably paid in full, the Company
expressly undertakes not to exercise any rights which it may have against the Subsidiary Borrower under articles 2305, 2306 and 2309 of the French Code
civil.
|
|
(i) |
The Company shall hold for the account of and forthwith pay or transfer to the Agent for the Finance Parties any payment or distribution or benefit of security received by it
contrary to paragraph (g) above.
|
|
(j) |
The Company irrevocably and expressly undertakes not to exercise any rights which it may have under Article 2316 of the French Code civil to take any action against the Subsidiary Borrower in the event of any extension of any Availability Period, any Maturity Date or any other date for payment of any amount due, owing or
payable to any Finance Party under any Finance Document, in each case without the consent of the Agent.
|
|
(k) |
The Company's obligations as a caution solidaire under this Clause will continue in full
force and effect until all sums due or which may become due by the Subsidiary Borrower under the Facility have been fully paid and discharged in accordance with the terms hereof.
|
|
(l) |
For the avoidance of doubt it is specified that any payment to be made by the Company pursuant to Clause 17 shall be made in the same currency as the obligations then secured.
|
18. |
Representations
|
18.1 |
Status
|
|
(a) |
Each Obligor and each Material Subsidiary is duly incorporated, organised or formed and validly existing under the laws of its jurisdiction of incorporation, organisation or
formation.
|
|
(b) |
Each Obligor and each Material Subsidiary has the power to own its assets and carry on its business as it is being conducted save where failure to do so could not be reasonably
expected to have a Material Adverse Effect.
|
18.2 |
Powers and authority
|
18.3 |
Legal validity
|
18.4 |
No conflict
|
|
(a) |
conflict in any material respect with any law or regulation applicable to it;
|
|
(b) |
conflict with its constitutional documents; or
|
|
(c) |
conflict with or constitute a default under any contractual commitment, judgment, injunction, order, decree or any other obligation or restriction which is binding on it or any
Material Subsidiary to the extent that such conflict has or is reasonably likely to have a Material Adverse Effect or result in or require the creation or imposition of any Security on the assets of any member of the Group (except for any
Security permitted under this Agreement).
|
18.5 |
Governmental Consents
|
18.6 |
Deduction of Tax
|
|
(a) |
if such Obligor is incorporated under the laws of France, such Finance Party is a Qualifying Lender falling within paragraph (b) of the definition of "Qualifying Lender";
|
|
(b) |
if such Obligor is incorporated in the UK, such Finance Party is either:
|
|
(i) |
a Qualifying Lender falling within paragraph (a)(i)(A) of the definition of "Qualifying Lender"; or
|
|
(ii) |
a Treaty Lender and the payment is one specified in a direction given by the Commissioners of Revenue & Customs under Regulation 2 of the Double Taxation Relief (Taxes on
Income) (General) Regulations 1970 (SI 1970/488); or
|
|
(iii) |
a Qualifying Lender falling within paragraph (a)(i)(B) of the definition of "Qualifying Lender", except where a direction has been given under section 931 of the ITA in relation to
the payment concerned; or
|
|
(iv) |
a Qualifying Lender falling within paragraph (a)(ii) of the definition of "Qualifying Lender".
|
18.7 |
Filing, Stamp duties
|
18.8 |
Financial Statements
|
18.9 |
Pari passu ranking
|
18.10 |
Litigation
|
18.11 |
Environmental matters
|
|
(a) |
Each Obligor and each Material Subsidiary has obtained all material Environmental Licences required for the carrying out of its business as currently conducted and is in compliance
in all material respects with (a) the terms and conditions of such Environmental Licences and (b) all other applicable Environmental Law and there are, to the best of each Obligor's knowledge, no circumstances which may prevent or interfere
with such compliance where failure to comply is reasonably likely to have a Material Adverse Effect.
|
|
(b) |
In the ordinary course of its business, each Obligor conducts an ongoing review of the effect of Environmental Laws on the business, operations and properties of each Obligor and
its Subsidiaries, in the course of which it identifies and evaluates associated liabilities and costs (including any capital or operating expenditures required for clean-up or closure of properties presently or previously owned, any capital
or operating expenditures required to achieve or maintain compliance with environmental protection standards imposed by law or as a condition of any license, permit or contract, any related constraints on operating activities, including any
periodic or permanent shutdown of any facility or reduction in the level of or change in the nature of operations conducted thereat and any actual or potential liabilities to third parties, including employees, and any related costs and
expenses). On the basis of this review, each Obligor has reasonably concluded that Environmental Laws are unlikely to have a Material Adverse Effect.
|
18.12 |
Accuracy of disclosure
|
18.13 |
Compliance with laws
|
18.14 |
Taxes
|
18.15 |
Material adverse change
|
18.16 |
Pension schemes
|
18.17 |
ERISA
|
18.18 |
FCPA and sanctions
|
|
(a) |
Each Obligor, its Subsidiaries, and their respective employees and officers, and, to the knowledge of such Obligor, any of its directors, agents or affiliates are in compliance
with the FCPA, the Bribery Act 2010 and any other applicable Anti-Corruption Law and each Obligor has instituted and maintains in effect policies and procedures designed to ensure compliance therewith by such Obligor, its Subsidiaries and
their respective directors, officers, employees and agents.
|
|
(b) |
None of the Obligors, any of their respective Subsidiaries or any of their respective directors, officers or employees, or, to the knowledge of the Obligors, any of their
respective agents or affiliates or any Subsidiary of the Obligors that will act in any capacity in connection with or benefit from the credit facility established hereby is an individual or entity that is, or is owned or controlled by
persons or entities that are: (i) listed in any Sanctions-related list of designated persons or entities maintained by the US Department of the Treasury's Office of Foreign Assets Control ("OFAC"), the US Department of State, the United Nations Security Council, the European Union, any European Union member state, the United Kingdom or any other relevant sanctions authority
(collectively, "Sanctioned Persons"), or (ii) operating, organised or resident in a country, region or territory that is, or whose government is, the
subject or target of any Sanctions (collectively, "Sanctioned Countries").
|
|
(c) |
The Obligors, their respective Subsidiaries, their respective employees and officers, and, to the knowledge of the Obligors, each agent, director and affiliate of the Obligors are
in compliance with all applicable Sanctions in all material respects, and each Obligor has instituted and maintains in effect policies and procedures designed to achieve compliance therewith by such Obligor, its Subsidiaries and their
respective directors, officers and employees.
|
|
(d) |
No Loan, use of proceeds thereof or other transaction contemplated by this Agreement will violate any Anti-Corruption Law or applicable Sanctions.
|
|
(e) |
No Obligor is knowingly engaged in any activity that could reasonably be expected to result in such Obligor being designated as a Sanctioned Person.
|
18.19 |
Margin stock
|
18.20 |
Intellectual Property Rights
|
18.21 |
Valid choice of law and jurisdiction
|
18.22 |
No event of default
|
18.23 |
Repetition
|
19. |
Information Undertakings
|
19.1 |
Financial statements
|
|
(a) |
as soon as available and, in any event, within 90 days (or such shorter time period as applicable to the Company pursuant to the Exchange Act) of the end of its financial year
ending 31 December 2020, one copy of its annual audited consolidated financial statements for that financial year;
|
|
(b) |
to the extent not provided previously to the Agent, as soon as available and, in any event, no later than 15 May 2020, one copy of its quarterly unaudited consolidated interim
financial statements for the financial quarter ending 30 March 2020;
|
|
(c) |
as soon as available and, in any event, within 45 days of the end of each of the financial quarters ending respectively on 30 June 2020, 30 September 2020 and 30 March 2021, one
copy of its quarterly unaudited consolidated interim financial statements for each of those financial quarters; and
|
|
(d) |
The Company shall ensure that each set of financial statements delivered to the Agent pursuant to paragraphs(a), (b) and (c) above shall:
|
|
(i) |
be prepared in accordance with all applicable laws and generally accepted accounting principles applicable to the Company, consistently applied;
|
|
(ii) |
give a true and fair view of the financial condition (consolidated, if applicable) of the Company and its Subsidiaries at the date of which those accounts were drawn up and of
their profit for the period to which those accounts relate;
|
|
(iii) |
in the case of the annual financial statements for the financial year ending on 31 December 2020:
|
|
(A) |
include a consolidated balance sheet and the related consolidated statements of income, of cash flows and of changes in shareholders' equity for such fiscal year;
|
|
(B) |
set forth in each case in comparative form the figures as of the end of and for the previous fiscal year in reasonable detail; and
|
|
(C) |
be reported on without Qualification by an independent public accounting firm of nationally recognised standing; and
|
|
(iv) |
in the case of quarterly financial statements:
|
|
(A) |
include a consolidated balance sheet and the related consolidated statements of income for the relevant quarter and for the portion of the Company's financial year ended at the end
of such quarter and the related consolidated statement of cash flows for the portion of the Company's financial year ended at the end of such quarter;
|
|
(B) |
set forth in each case in comparative form the consolidated balance sheet as of the end of the corresponding quarter and corresponding portion of the previous financial year and
the consolidated statements of income for the corresponding quarter and the corresponding portion of the previous financial year; and
|
|
(C) |
certified (subject to normal year-end adjustments) as to fairness of presentation and consistency by the CFO.
|
|
(e) |
Documents required to be delivered pursuant to paragraphs (a) to (c) above may be delivered electronically in accordance with the provisions of Clause 19.5 (Use of websites).
|
19.2 |
Compliance Certificates
|
|
(a) |
with respect to the Company setting forth in reasonable detail such calculations as are required to establish whether the Company was in compliance with the requirements of Clause
20 (Financial Covenant) and Clause 21.3 (Indebtedness);
|
|
(b) |
stating whether there exists on the date of such certificate any Default or Event of Default and, if any Default or Event of Default then exists, setting forth the details thereof
and the action that such Borrower is taking or proposes to take with respect thereto; and
|
|
(c) |
in the case of the Compliance Certificate supplied with the annual financial statements for the financial year ending 31 December 2020 and delivered in accordance with Clause (a) (Financial statements), an updated list of all Material Subsidiaries.
|
19.3 |
Other Information
|
|
(a) |
all documents dispatched by it to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched or promptly thereafter;
|
|
(b) |
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current or pending against any Obligor or Material
Subsidiary, and which have or are reasonably likely to have a Material Adverse Effect or which in any manner question the validity or enforceability of this Agreement or any other Finance Document or any of the transactions contemplated
hereby or thereby;
|
|
(c) |
promptly upon becoming aware of Moody's or S&P having announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such
rating change;
|
|
(d) |
as soon as reasonably practicable and on reasonable request from the Agent, such further information regarding the financial condition of the Obligors and the Material
Subsidiaries, to the extent permitted by applicable Laws;
|
|
(e) |
promptly upon the filing thereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent), annual,
quarterly or monthly reports and any reports on Form 8-K (or any successor form) that an Obligor or any Subsidiary shall have filed with the SEC; and
|
|
(f) |
within 14 days after any member of the ERISA Group:
|
|
(i) |
gives or is required to give notice to the PBGC of any "reportable event" (as defined in Section 4043 of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan administrator of any Plan has given or is required to give notice of any such reportable event, a copy of the notice of such reportable event given or required to be
given to the PBGC;
|
|
(ii) |
receives notice of complete or partial withdrawal liability under Title IV of ERISA which liability exceeds $250,000,000 or notice that any Multiemployer Plan is insolvent or has
been terminated, a copy of such notice;
|
|
(iii) |
receives notice from the PBGC under Title IV of ERISA of an intent to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a
trustee to administer, any Plan, a copy of such notice;
|
|
(iv) |
applies for a waiver of the minimum funding standard under Section 412 of the Code, a copy of such application;
|
|
(v) |
gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other information filed with the PBGC;
|
|
(vi) |
gives notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or
|
|
(vii) |
fails to make any payment or contribution to any Plan or Multiemployer Plan or makes any amendment to any Plan which in either case has resulted or could result in the imposition
of a Security or the posting of a bond or other security, a certificate of the CFO setting forth details as to such occurrence and the action, if any, which such Obligor or applicable member of the ERISA Group is required or proposes to
take with respect thereto.
|
19.4 |
Notification of Default
|
19.5 |
Use of websites
|
|
(a) |
Each 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 Company 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 Company 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 Company and the Agent.
|
|
(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
Company and the Agent.
|
|
(c) |
The Company 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 information which is required to be provided under this Agreement is posted onto the Designated Website;
|
|
(iv) |
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
|
(v) |
that the Company 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.
|
|
(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
Borrowers shall comply with any such request within ten Business Days.
|
19.6 |
"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 after the date of this Agreement; or
|
|
(iii) |
a proposed 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 transfer,
|
|
(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.
|
19.7 |
Appointment of the new managing director (gérant) of Technip Eurocash SNC
|
20. |
Financial Covenant
|
20.1 |
Total Capitalisation Ratio
|
|
(a) |
The Company will not permit the Total Capitalisation Ratio to be greater than 60% at the end of any financial quarter.
|
|
(b) |
The undertaking in this Clause 20.1 shall continue for so long as any sum remains payable or capable of becoming payable under the Finance Documents.
|
|
(c) |
Notwithstanding anything to the contrary herein, solely for purposes of calculating compliance with Clause 20.1 (and not for the purposes of (i) calculating Consolidated Net Worth
under Clause 21.3 or Clause 21.4(q), (ii) measuring pro forma compliance with Clause 20.1 pursuant to Clauses 21.5(b), 21.5(c), 21.5(d) or 21.5(e) or (iii) for any other purpose hereunder), (1) Consolidated Net Worth at the end of the
financial quarter ending on 30 June 2020 (as a component of Total Capitalisation) shall be increased by the amount of the Specified Impairment Charges and (2) Consolidated Net Worth at the end of each financial quarter ending thereafter (as
a component of Total Capitalisation) shall be increased by the amount of the Residual Specified Impairment Charges for such financial quarter (if any).
|
20.2 |
Financial testing
|
21. |
General Undertakings
|
|
(a) |
Each Obligor agrees to be bound by the undertakings set out in this Clause 21 (General
Undertakings) relating to it and, where the undertaking is expressed to apply to all Subsidiaries or a group of Subsidiaries, each of the Obligors shall procure that each of its Subsidiaries or each of its Subsidiaries that is a
member of such group, as applicable, complies with that undertaking.
|
|
(b) |
The undertakings in this Clause 21 (General Undertakings) 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 |
Authorisations
|
|
(a) |
to enable it to perform its obligations under the Finance Documents;
|
|
(b) |
to ensure the legality, validity and enforceability of any Finance Document; and
|
|
(c) |
to enable the carrying out of its business where failure so to obtain or maintain has or would be likely to have a Material Adverse Effect; and each Obligor shall comply with the
terms of such material authorisations.
|
21.2 |
Pari passu ranking
|
21.3 |
Indebtedness
|
21.4 |
Negative pledge
|
|
(b) |
Security arising by operation of law in the ordinary course of business;
|
|
(c) |
Security created over goods and documents of title to goods arising in the ordinary course of business, or letter of credit transactions entered into in the ordinary course of trade as security only for debt owed to a bank or
financial institution directly relating to the goods or documents on or over which those Security exist;
|
|
(d) |
Security arising out of title retention and set-off provisions in a supplier's standard conditions for the supply of goods acquired by an Obligor or a Restricted Subsidiary;
|
|
(e) |
Security created with the prior consent of the Majority Lenders;
|
|
(f) |
Security which arise on the basis of any judgment or award for which an appeal or proceedings for review are being pursued without delay and in good faith and in respect of which not more than 30 days have elapsed without a stay of
execution in respect thereof having been granted, but only to the extent such judgment or award has not resulted in an Event of Default under Clause 22.8 (Material judgments);
|
|
(g) |
Security in respect of borrowings from the French Export Credit Corporation (COFACE), any similar governmental agency or any other state-owned or multilateral financial institution incurred by the Obligors or any Restricted
Subsidiary to refinance any amount receivable under any export sales contract, provided that each such Security consists only of a pledge of any Obligor's or Restricted Subsidiary's claims under such contract against the foreign
buyer and/or any Security or guarantee of such claims;
|
|
(h) |
Security existing on the Signing Date and described on Schedule 6 (Existing Security), securing Indebtedness outstanding on the Signing Date;
|
|
(i) |
Security over deposits of cash or cash equivalent investments provided by way of cash collateral in order to secure any obligations under this Agreement;
|
|
(j) |
Security incidental to the conduct of its business or the ownership of its assets which (i) arise in the ordinary course of business, (ii) do not secure Indebtedness and (iii) do not in the aggregate materially detract from the value
of its assets or materially impair the use thereof in the operation of its business including, without limitation, in connection with workers' compensation, unemployment insurance and other social security legislation or deposits
securing liability to insurance carriers under insurance or self-insurance arrangements or granted by any Obligor or any Restricted Subsidiary to any pension fund or managers securing the pension obligations of any member of the Group;
|
|
(k) |
Security in favor of such Borrower or any other Restricted Subsidiary;
|
|
(l) |
Security on any property or assets existing at the time of, or incurred within 120 days after, the acquisition thereof (by purchase, merger or otherwise), securing Indebtedness incurred to pay the purchase price or construction cost
thereof, or the capital lease obligations related thereto, so long as such Security do not and are not extended to cover any other property or assets;
|
|
(n) |
any extension, renewal, substitution, or replacement (or successive extensions, renewals, substitutions or replacements), as a whole or in part, of any Security referred to in clauses (a) through (m) above; provided that (i)
such extension, renewal, substitution or replacement Security shall be limited to all or any part of the same property or assets subject to the Security extended, renewed, substituted or replaced (plus improvements on such property) and
(ii) the Indebtedness secured by such Security at such time is not increased; and
|
|
(p) |
for a period of 120 days after any Restricted Subsidiary becomes a Material Subsidiary, any Security on the assets of such Restricted Subsidiary existing at the time it became a Material Subsidiary and not otherwise permitted by this
Clause 21.4 (Negative pledge); and
|
21.5 |
Disposals; Mergers
|
|
(a) |
any Restricted Subsidiary may merge or consolidate with (i) the Company, provided that the Company shall be the continuing or surviving person, or (ii) any other Restricted Subsidiary, provided that if such merger
or consolidation involves the Subsidiary Borrower, the Subsidiary Borrower shall be the continuing or surviving person;
|
|
(b) |
any Restricted Subsidiary may merge or consolidate with any other person if (i) the Company in good faith determines that such merger or consolidation is in the best interest of the Company and would not have a Material Adverse
Effect and (ii) within 30 days after such merger or consolidation (if the transaction value of such merger or consolidation is in the amount of $750,000,000 or more), the Company delivers to the Agent a certificate of a financial
officer of the Company showing pro forma compliance with Clauses 20.1 (Total Capitalisation Ratio), 21.3 (Indebtedness) and 21.7 (Investments in Unrestricted Subsidiaries), provided that if such merger or consolidation involves an Obligor, such Obligor shall be the continuing or surviving person.
|
|
(c) |
any Restricted Subsidiary may sell, convey, transfer, lease or otherwise dispose of a material portion of its assets to (i) the Borrower, (ii) any other Restricted Subsidiary or (iii) any other person if the Company in good faith
determines that such sale is in the best interest of the Company and would not have a Material Adverse Effect and, within 30 days after such sale, conveyance, transfer, lease or other disposition (if the transaction value of such sale,
conveyance, transfer, lease or other disposition is in the amount of $750,000,000 or more), the Company delivers to the Agent a certificate of a financial officer of the Company showing pro forma compliance with Clauses 20.1 (Total Capitalisation Ratio), 21.3 (Indebtedness) and 21.7 (Investments in Unrestricted Subsidiaries); and
|
|
(d) |
the Company may merge or consolidate with any other person, provided that (i) the Company is the continuing or surviving person, (ii) the Ratings are not less than BBB- by S&P or Baa3 by Moody's after giving effect
thereto, and (iii) within 30 days after such merger or consolidation (if the transaction value of such merger or consolidation is in the amount of $750,000,000 or more), the Company delivers to the Agent a certificate of a financial
officer of the Company showing pro forma compliance with 20.1 (Total Capitalisation Ratio), 21.3 (Indebtedness) and 21.7 (Investments in Unrestricted Subsidiaries); and
|
|
(e) |
the Company may sell, convey, transfer, lease or otherwise dispose of a material portion of its assets to any person, provided that (i) the Ratings are not less than BBB- by S&P or Baa3 by Moody's after giving effect
thereto and (ii) within 30 days after such sale, conveyance, transfer, lease or other disposition (if the transaction value of such sale, conveyance, transfer, lease or other disposition is in the amount of $750,000,000 or more), the
Company delivers to the Agent a certificate of a financial officer of the Company showing pro forma compliance with Clauses 20.1 (Total Capitalisation Ratio), 21.3 (Indebtedness) and 21.7 (Investments in Unrestricted Subsidiaries);
|
|
(f) |
the Obligors and any Restricted Subsidiary may engage in:
|
|
(i) |
A disposal of stock in trade or inventory made in the ordinary course of business;
|
|
(ii) |
A disposal of receivables and related security made in connection with a Permitted Securitisation;
|
|
(iii) |
An issuance or disposal by any Permitted JV of its own securities;
|
|
(iv) |
A disposal made in connection with a sale and leaseback permitted under the terms of this Agreement;
|
|
(v) |
A disposal in exchange for assets (other than cash or cash equivalents) comparable or superior as to value (including disposals of businesses in exchange for other businesses);
|
|
(vi) |
A disposal of cash or marketable securities on arm's length terms for cash or marketable securities;
|
|
(vii) |
A disposal on a non-recourse basis of payment instruments and/or irrevocable accounts receivable made by way of collections for cash and at a fair market value on a contract-by-contract basis and which are not made for the purposes
of incurring Indebtedness nor made pursuant to a Permitted Securitisation;
|
|
(viii) |
A disposal of obsolete or worn property, whether now owned or acquired after the date of this Agreement, in the ordinary course of business; or
|
|
(ix) |
A disposal made with the consent of the Majority Lenders.
|
21.6 |
Restricted Payments
|
|
(a) |
any Restricted Subsidiary may declare and make Restricted Payments to a Borrower or to any other Restricted Subsidiary (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to a Borrower or any other
Restricted Subsidiary and to each other owner of the equity interests of such Restricted Subsidiary on a pro-rata basis based on their relative ownership interests);
|
|
(b) |
an Obligor or any Restricted Subsidiary may declare and make Restricted Payments, payable in the Common Stock of such person; and
|
|
(c) |
the Company may declare and make Restricted Payments to the holders of its equity interests provided that no Default or Event of Default exists at the time of the declaration thereof or would result therefrom.
|
21.7 |
Investments in Unrestricted Subsidiaries
|
21.8 |
Limitations on up streaming
|
21.9 |
Transactions with Affiliates
|
21.10 |
Control of Borrower
|
21.11 |
Change and continuation of business
|
|
(a) |
Each Obligor will ensure (and each of the Obligors shall procure that its Material Subsidiaries ensures), that no material change, which has or is reasonably likely to have a Material Adverse Effect, is made to the general nature of
the business conducted by them at the date of signing of the Finance Documents.
|
21.12 |
Environmental matters
|
21.13 |
Compliance with laws
|
21.14 |
Insurance
|
21.15 |
Maintenance of property, books and records
|
|
(a) |
Each Obligor will keep (and each of the Obligors will cause each of its Subsidiaries to keep) all material property useful and necessary in its business in good working order and condition, normal wear and tear excepted.
|
|
(b) |
Each Obligor will keep (and each of the Obligors will cause each of its Subsidiaries to keep) proper books of record and account in which full, true and correct entries shall be made of all dealings and transactions in relation to
its business and activities.
|
21.16 |
Use of proceeds
|
|
(b) |
The proceeds of the Loans under this Agreement may only be used by the Obligors in accordance with the provisions of Clause 3.1 (Purpose).
|
21.17 |
Société en nom collectif
|
|
(a) |
use its reasonable endeavours to overcome or mitigate such circumstances; and
|
|
(b) |
enter into negotiations with the Agent in order to agree as soon as practicable (but in any case within 90 days) alternative arrangements or appropriate solutions, so that the legal and economic recourse of the Finance Parties is
comparable to that existing prior to the occurrence of the relevant circumstances. Any agreement reached by the Agent under this paragraph will require the approval of the Majority Lenders.
|
21.18 |
Payment of obligations
|
21.19 |
Anti-corruption laws and Sanctions
|
21.20 |
Designation of Unrestricted Subsidiaries; Redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries
|
|
(a) |
Unless designated as an Unrestricted Subsidiary pursuant to this Clause 21.20 (Designation of Unrestricted Subsidiaries; Redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries), each Subsidiary shall be classified as a
Restricted Subsidiary.
|
|
(b) |
If the Company designates any Subsidiary as an Unrestricted Subsidiary pursuant to paragraph (c) below, the Company shall be deemed to have made an Investment in such Unrestricted Subsidiary in an amount equal to (i) the fair market
value as of the date of such designation of the consolidated assets of such Subsidiary minus (ii) if such Subsidiary was in existence on the Signing Date, the fair market value of the consolidated assets of such Subsidiary as of the
Signing Date.
|
|
(e) |
Any merger, consolidation or amalgamation of an Unrestricted Subsidiary into a Restricted Subsidiary shall be deemed to constitute a designation of such Unrestricted Subsidiary as a Restricted Subsidiary for purposes of this
Agreement and, as such, must be permitted by paragraph (d) above (in addition to any other relevant provisions herein).
|
|
(f) |
Notwithstanding the foregoing or anything to the contrary contained herein, no Obligor may be an Unrestricted Subsidiary.
|
21.21 |
Management of Unrestricted Subsidiaries
|
22. |
Events of Default
|
22.1 |
Non-payment
|
|
(a) |
A Borrower does not pay on the due date any principal of any Loan at the place at and in the currency in which it is expressed to be payable, unless:
|
|
(i) |
its failure to pay is caused by administrative or technical error or a Disruption Event; and
|
|
(ii) |
payment is made within three Business Days of its due date.
|
|
(b) |
A Borrower does not pay on the due date any amount payable under the Finance Documents not subject to paragraph (a) above at the place at and in the currency in which it is expressed to be payable unless payment is made within three
Business Days of its due date.
|
22.2 |
Financial Covenant
|
22.3 |
Other obligations
|
|
(a) |
The Obligors do not comply with any provision of the Finance Documents (other than those referred to in Clauses 22.1 (Non-payment) and 22.2 (Financial
Covenant)).
|
|
(b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 15 days of the earlier of the Agent giving notice to the Borrower specifying the particulars of the event
concerned and an Obligor becoming aware of the failure to comply.
|
22.4 |
Misrepresentation
|
|
(a) |
are capable of remedy; and
|
|
(b) |
are remedied within 15 days of the earlier of the Agent notifying such misrepresentation to the Borrower and an Obligor becoming aware of the misrepresentation.
|
22.5 |
Cross default
|
22.6 |
Insolvency, bankruptcy and insolvency proceedings
|
|
(a) |
An involuntary proceeding is commenced or an involuntary petition is filed seeking:
|
|
(i) |
liquidation, reorganisation or other relief in respect of an Obligor or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Debtor Relief Law now or hereafter in effect or;
|
|
(ii) |
the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for an Obligor or any Material Subsidiary or for a substantial part of its assets,
|
|
(b) |
an Obligor or any Material Subsidiary shall:
|
|
(i) |
voluntarily commence any proceeding or file any petition seeking liquidation, reorganisation or other relief under any Debtor Relief Law now or hereafter in effect;
|
|
(ii) |
consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in this Clause 22.6;
|
|
(iii) |
apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for an Obligor or any Material Subsidiary or for a substantial part of its assets;
|
|
(iv) |
file an answer admitting the material allegations of a petition filed against it in any such proceeding;
|
|
(v) |
make a general assignment for the benefit of creditors;
|
|
(vi) |
suspends making payments on all or any class of its indebtedness, or announce an intention to do so, or a moratorium is declared in respect of any of its indebtedness or is in state of cessation des
paiements within the meaning of Article L.631-1 of the French Code de Commerce; or
|
|
(vii) |
take any action for the purpose of effecting any of the foregoing;
|
|
(c) |
an Obligor or any Material Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due; or
|
|
(d) |
there occurs, in relation to an Obligor or any Material Subsidiary, any analogous step or proceedings having a similar effect in the jurisdiction of its incorporation to any of those mentioned in paragraphs (a) and (b) above.
|
22.7 |
Creditor's process
|
22.8 |
Material judgments
|
22.9 |
Certain ERISA events/pension plans
|
|
(a) |
Any member of the ERISA Group shall fail to pay, when due, an amount or amounts aggregating in excess of $250,000,000 which it shall have become liable to pay under Title IV of ERISA.
|
|
(b) |
Notice of intent to terminate a Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing.
|
|
(c) |
The PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer, any Plan.
|
|
(d) |
A condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Plan must be terminated.
|
|
(e) |
There shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more multi-employer plans which could cause one or more members of the ERISA Group to
incur a current payment obligation in excess of $250,000,000.
|
|
(f) |
An Obligor or any Material Subsidiary shall be notified that it has incurred a debt or other liability under Section 75 or 75A of the Pensions Act 1995 or has been issued with a contribution notice or financial support direction (as
those terms are defined in the Pensions Act 2004), or otherwise is liable to pay any amount to a pension plan, scheme or fund.
|
22.10 |
Cessation of business
|
22.11 |
Unlawfulness and Repudiation
|
|
(a) |
It is or becomes unlawful for an Obligor to perform any of its payment or other material obligations under the Finance Documents.
|
|
(b) |
Any Finance Document ceases to be legal, valid, binding and enforceable against an Obligor in any respect which materially and adversely limits the ability of the Obligors to satisfy their payment obligations under the Finance
Documents.
|
|
(c) |
An Obligor repudiates a Finance Document.
|
22.12 |
Consequences of an Event of Default
|
|
(a) |
cancel the Total Commitments whereupon they shall immediately be cancelled; and/or
|
|
(b) |
declare that all or part of the Loans, together with accrued interest and all other amounts accrued, or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable.
|
23. |
Changes to the Lenders
|
23.1 |
Transfers by the Lenders
|
23.2 |
Conditions of transfer
|
|
(a) |
The consent of the Company is required for a transfer by an Existing Lender, unless the transfer is:
|
|
(i) |
to another Lender, the Agent or an Affiliate of a Lender or an Approved Fund; or
|
|
(ii) |
made at a time when an Event of Default is continuing.
|
|
(b) |
The consent of the Company to a transfer must not be unreasonably withheld or delayed. The Company will be deemed to have given its consent 10 Business Days after the Existing Lender has requested it unless consent is expressly
refused by the Company within that time provided that the proposed transferee is rated BBB or higher by S&P or Baa2 or higher by Moody's.
|
|
(c) |
A transfer will only be effective on:
|
|
(i) |
receipt by the Agent (whether in the Transfer Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will 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 necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such transfer 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) |
Each New Lender, by executing the relevant Transfer Certificate confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the
requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing
Lender would have been had it remained a Lender.
|
|
(f) |
If:
|
|
(i) |
a Lender transfers any of its rights or obligations under the Finance Documents; and
|
|
(ii) |
as a result of circumstances existing at the date the transfer occurs, an Obligor would be obliged to make a payment to the New Lender under Clause 12 (Tax Gross up and Indemnities) or Clause
13 (Increased Costs),
|
|
(iii) |
then the New Lender is only entitled to receive payment under those Clauses to the same extent as the Existing Lender would have been if the assignment or transfer had not occurred. This paragraph (f) shall not apply in relation to
Clause 12.2 (Tax gross-up), to a Treaty Lender that has included a confirmation of its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (g)(ii)(B) of
Clause 12.2 (Tax gross-up) if the Borrower making the payment has not made a Borrower DTTP Filing in respect of that Treaty Lender.
|
|
(g) |
For the avoidance of doubt, no transfer completed pursuant to this Clause 23 (Changes to the Lenders) shall constitute a novation.)
|
23.3 |
Transfer fee
|
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;
|
|
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
|
(v) |
the existence of any transferred rights or receivables or their accessories, or
|
|
(vi) |
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 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 transfer), Clause 23.5 (Procédure for transfer) and subject to any applicable laws and
regulations regarding procedures for specific transfer, 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, execute that Transfer Certificate.
|
|
(c) |
Subject to Clause 23.8 (Pro rata interest settlement), on the Transfer Date:
|
|
(i) |
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer 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 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 New Lender and the 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 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 Company
|
23.7 |
Security over Lenders' rights
|
|
(a) |
any transfer, charge or other Security to secure obligations to a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank) including, without limitation, any transfer of rights to a special
purpose vehicle where Security over securities issued by such special purpose vehicle is to be created in favour of a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank); and
|
|
(b) |
in the case of any Lender which is a fund, any charge, transfer or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those
obligations or securities,
|
|
(i) |
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, transfer or Security for the Lender as a party to any of the Finance Documents; or
|
|
(ii) |
require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents.
|
|
(c) |
The limitations on transfers by a Lender set out in any Finance Document, in particular in Clause 23.1 (Transfers by the Lenders), Clause 23.2 (conditions of
transfer) and Clause 23.3 (Transfer fee) shall not apply to the creation of Security pursuant to paragraph (a) above.
|
|
(d) |
The limitations and provisions referred to in paragraph (b) above shall further not apply to any transfer of rights under the Finance Documents or of the securities issued by the special purpose vehicle, made by a federal reserve or
central bank (including, for the avoidance of doubt, the European Central Bank) to a third party in connection with the enforcement of Security created pursuant to paragraph (a) above.
|
23.8 |
Pro rata interest settlement
|
|
(a) |
If the Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata basis" to Existing Lenders and New Lenders, then (in respect of any transfer pursuant to Clause 23.5 (Procedure for transfer) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):
|
|
(i) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ("Accrued Amounts") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is
longer than six Months, on the next of the dates which falls at intervals of six Months after the first day of that Interest Period); and
|
|
(ii) |
the rights transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
|
(A) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and
|
|
(B) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 23.8 (Pro rata interest settlement), have been payable to it on that
date, but after deduction of the Accrued Amounts.
|
|
(b) |
In this Clause 23.8 (Pro rata interest settlement), references to "Interest Period" shall be construed to include a reference to any other period for accrual of fees.
|
24. |
Changes to the Obligors
|
25. |
Role of the Agent
|
25.1 |
Appointment of the Agent
|
|
(a) |
Each of the Lenders appoints the Agent to act as its agent ("mandataire") under and in connection with the Finance Documents.
|
|
(b) |
Each of the Lenders authorises the Agent to perform the duties, obligations and responsibilities and 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 |
Instructions
|
|
(a) |
The Agent shall:
|
|
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and
|
|
(B) |
in all other cases, the Majority Lenders; and
|
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above.
|
|
(b) |
The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders,
from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Agent may refrain from acting unless and until it receives any such
instructions or clarification that it has requested.
|
|
(c) |
Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent
by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.
|
|
(d) |
The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent
than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
|
|
(e) |
In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.
|
|
(f) |
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.
|
25.3 |
Duties of the Agent
|
|
(a) |
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
|
(b) |
Subject to paragraph (c) below, 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.
|
|
(c) |
Without prejudice to Clause 23.6 (Copy of Transfer Certificate to Company), paragraph (b) above shall not apply to any Transfer Certificate.
|
|
(d) |
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.
|
|
(e) |
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 other Finance Parties.
|
|
(f) |
If the Agent is aware of the non-payment of any principal, interest, facility fee or other fee payable to a Finance Party (other than the Agent) under this Agreement, it shall promptly notify the other Finance Parties.
|
|
(g) |
The Agent shall provide to the Company, within five Business Days of a request by the Company, a list (which may be in electronic form) setting out the names of the Lenders as at the date of that request, their respective
Commitments, the address and fax number (and the department or officer, if any, for whose attention any communication is to be made) of each Lender for any communication to be made or document to be delivered under or in connection with
the Finance Documents, the electronic mail address and/or any other information required to enable the sending and receipt of information by electronic mail or other electronic means to and by each Lender to whom any communication under
or in connection with the Finance Documents may be made by that means and the account details of each Lender for any payment to be distributed by the Agent to that Lender under the Finance Documents.
|
|
(h) |
The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
|
25.4 |
No fiduciary duties
|
|
(a) |
Nothing in any Finance Document constitutes the Agent as a trustee or fiduciary of any other person.
|
|
(b) |
The Agent shall not be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
25.5 |
Business with the Group
|
25.6 |
Rights and discretions
|
|
(a) |
The Agent may:
|
|
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;
|
|
(ii) |
assume that:
|
|
(A) |
any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and
|
|
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and
|
|
(iii) |
rely on a certificate from any person:
|
|
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or
|
|
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
|
|
(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 Clause 22.1 (Non-payment));
|
|
(ii) |
any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and
|
|
(iii) |
any notice or request made by the Company is made on behalf of and with the consent and knowledge of all the Obligors.
|
|
(c) |
The Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts.
|
|
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers
instructed by the Lenders) if the Agent in its reasonable opinion deems this to be necessary.
|
|
(e) |
The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any
damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.
|
|
(f) |
The Agent may act in relation to the Finance Documents through its officers, employees and agents.
|
|
(g) |
Unless a Finance Document expressly provides otherwise, the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
|
|
(h) |
Without prejudice to the generality of paragraph (g) above, the Agent:
|
|
(i) |
may disclose; and
|
|
(ii) |
on the written request of the Company or the Majority Lenders shall, as soon as reasonably practicable, disclose, the identity of a Defaulting Lender to the Company and to the other Finance Parties.
|
|
(i) |
Notwithstanding any other provision of any Finance Document to the contrary, the Agent is not 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.
|
|
(j) |
Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or
responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured
to it.
|
25.7 |
Responsibility for documentation
|
|
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent, an Obligor or any other person in or in connection with any Finance Document or the transactions contemplated in 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;
|
|
(b) |
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, under or in connection with any Finance
Document; or
|
|
(c) |
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or
otherwise.
|
25.8 |
No duty to monitor
|
|
(a) |
whether or not any Default has occurred;
|
|
(b) |
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
|
|
(c) |
whether any other event specified in any Finance Document has occurred.
|
25.9 |
Exclusion of liability
|
|
(a) |
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent), the Agent will not be liable for:
|
|
(iii) |
without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence or any other
category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of:
|
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction, including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of:
nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including
any Disruption Event); breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or
industrial action.
|
|
(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 to carry out:
|
|
(i) |
any "know your customer" or other checks in relation to any person; or
|
|
(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender,
|
|
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the Agent's liability, any liability of the Agent arising under or in connection with any Finance Document shall be limited to the amount of actual loss
which has been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known
to the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or
consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.
|
25.10 |
Lenders' indemnity to the Agent
|
25.11 |
Resignation of the Agent
|
|
(a) |
The Agent may resign and appoint one of its Affiliates as successor by giving notice to the Lenders and the Company.
|
|
(c) |
If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Agent (after consultation with the Company) may appoint a
successor Agent.
|
|
(d) |
If the Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Agent is entitled to appoint a successor Agent under paragraph (c) above, the Agent may (if
it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement as Agent) agree with the proposed successor Agent amendments to this Clause 25 and any
other term of this Agreement dealing with the rights or obligations of the Agent consistent with then current market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the agency
fee payable under this Agreement which are consistent with the successor Agent's normal fee rates and those amendments will bind the Parties.
|
|
(f) |
The Agent's resignation notice shall only take effect upon the appointment of a successor.
|
|
(g) |
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) above) but shall remain entitled to the
benefit of Clause 14.3 (Indemnity to the Agent) and this Clause 25 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date). Any
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.
|
|
(h) |
The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three months
before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:
|
|
(i) |
the Agent fails to respond to a request under Clause 12.8 (FATCA Information) and a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or
after that FATCA Application Date;
|
|
(ii) |
the information supplied by the Agent pursuant to Clause 12.8 (FATCA Information) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA
Application Date; or
|
|
(iii) |
the Agent notifies the Company and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; and (in each case) a Lender reasonably believes that a Party will be
required to make a FATCA Deduction that would not be required if the Agent were a FATCA Exempt Party, and that Lender, by notice to the Agent, requires it to resign.
|
25.12 |
Replacement of the Agent
|
|
(a) |
After consultation with the Company , the Majority Lenders may, by giving 30 days' notice to the Agent (or, at any time the Agent is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders) replace the
Agent by appointing a successor Agent.
|
|
(c) |
The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this date, the retiring Agent shall be discharged from any further obligation in
respect of the Finance Documents (other than its obligations under paragraph (b) above) but shall remain entitled to the benefit of Clause 14.3 (Indemnity to the Agent) and this Clause 25 (and
any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).
|
|
(d) |
Any successor Agent 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.
|
|
(e) |
Notwithstanding paragraph 25.12(a) above, the Company may, on no less than 30 days’ prior notice to the Agent, replace the Agent by requiring the Lenders to appoint a replacement Agent if any amount payable under a Finance Document
by the French Borrower becomes not deductible from that French Borrower’s taxable income for French tax purposes by reason of that amount (i) being paid or accrued to an Agent incorporated or acting through an office situated in a
Non-Cooperative Jurisdiction or (ii) paid to an account opened in the name, or for the benefit of, that Agent in a financial institution situated in a Non-Cooperative Jurisdiction. In this case, the Agent shall resign and a replacement
Agent shall be appointed by the Majority Lenders (after consultation with the Company) within 30 days after notice of replacement was given.
|
25.13 |
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.
|
25.14 |
Relationship with the Lenders
|
|
(a) |
Subject to Clause 23.8 (Pro rata interest settlement), the Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent's principal office as
notified to the Finance Parties at any time) as the Lender acting through its Facility Office:
|
|
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and
|
|
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
|
(c) |
If the Agent is an Impaired Agent, the Parties may, instead of communicating with each other through the Agent, communicate with each other directly and (while the Agent is an Impaired Agent) all the provisions of the Finance
Documents which require communications to be made or notices to be given to or by the Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate
after a replacement Agent has been appointed.
|
25.15 |
Credit appraisal by the Lenders
|
|
(a) |
the financial condition, status and nature of each member of the Group;
|
|
(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;
|
|
(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 or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other
agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.
|
25.16 |
Deduction from amounts payable by the Agent
|
25.17 |
Abatement of fees
|
25.18 |
Role of Reference Banks
|
|
(a) |
No Reference Bank is under any obligation to provide a quotation or any other information to the Agent.
|
|
(b) |
No Reference Bank will be liable for any action taken by it under or in connection with any Finance Document, or for any Reference Bank Quotation, unless directly caused by its gross negligence or wilful misconduct.
|
|
(c) |
No Party (other than the relevant Reference Bank) may take any proceedings against any officer, employee or agent of any Reference Bank in respect of any claim it might have against that Reference Bank or in respect of any act or
omission of any kind by that officer, employee or agent in relation to any Finance Document, or to any Reference Bank Quotation, and any officer, employee or agent of each Reference Bank may rely on this Clause 25.18.
|
|
(d) |
A Reference Bank which is not a Party may rely on this Clause 25.18, Clause 34.4 (Other exceptions) and Clause 36 (Confidentiality of Funding Rates).
|
26. |
Conduct of Business by the Finance Parties
|
|
(a) |
No provision of this Agreement will:
|
|
(i) |
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
|
(ii) |
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
|
|
(iii) |
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
|
(b) |
Any Lender is entitled to exercise any of its rights and discretion under the Finance Documents through any agent (including any entity appointed to act as servicer on its behalf).
|
27. |
Sharing among the Finance Parties
|
27.1 |
Payments to Finance Parties
|
|
(a) |
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery to the Agent;
|
|
(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 28.6 (Partial payments).
|
27.2 |
Redistribution of payments
|
27.3 |
Recovering Finance Party's rights
|
27.4 |
Reversal of redistribution
|
|
(a) |
each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the 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 Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed Amount");
and
|
|
(b) |
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor to the relevant Sharing Finance Party.
|
27.5 |
Exceptions
|
|
(a) |
This Clause 27.5 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 in such Participating Member State or London, as specified by the Agent other than a Non-Cooperative Jurisdiction, and with such bank as the Agent, in each case,
specifies.
|
28.2 |
Distributions by the Agent
|
28.3 |
Distributions to an Obligor
|
28.4 |
Clawback and pre-funding
|
|
(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) |
Unless paragraph (c) below applies, 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.
|
|
(i) |
the Borrower to whom that sum was made available shall on demand refund it to the Agent; and
|
|
(ii) |
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the Agent the amount (as certified by the Agent) which will
indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
|
28.5 |
Impaired Agent
|
|
(a) |
If, at any time, the Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Agent in accordance with Clause 28.1 (Payments to
the Agent) may instead either:
|
|
(i) |
pay that amount directly to the required recipient(s); or
|
|
(ii) |
if in its absolute discretion it considers that it is not reasonably practicable to pay that amount directly to the required recipient(s), pay that amount or the relevant part of that amount to an interest-bearing account held with a
bank or financial institution and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment (the "Paying Party") and
designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the "Recipient Party" or "Recipient
Parties").
|
|
(b) |
All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or the Recipient Parties pro rata to their respective entitlements.
|
|
(c) |
A Party which has made a payment in accordance with this Clause 28.5 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the
credit of the trust account.
|
|
(e) |
A Paying Party shall, promptly upon request by a Recipient Party and to the extent:
|
|
(i) |
that it has not given an instruction pursuant to paragraph (d) above; and
|
|
(ii) |
that it has been provided with the necessary information by that Recipient Party, give all requisite instructions to the bank with whom the trust account is held to transfer the relevant amount (together with any accrued interest) to
that Recipient Party.
|
28.6 |
Partial payments
|
|
(i) |
first, in or towards payment pro rata of any unpaid amount owing to the Agent;
|
|
(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 a Obligor.
|
28.7 |
No set-off by Obligor
|
28.8 |
Business Days
|
|
(a) |
Any payment under the Finance Documents 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.
|
28.9 |
Currency of account
|
|
(a) |
Subject to paragraphs (b) to (e) below, euro is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
|
(c) |
Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated, pursuant to this Agreement, when that interest accrued.
|
|
(d) |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
|
(e) |
Any amount expressed to be payable in a currency other than euro shall be paid in that other currency.
|
28.10 |
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 Company); 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, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Company) specifies to be necessary, be amended to comply with any generally accepted
conventions and market practice in the Relevant Market and otherwise to reflect the change in currency.
|
28.11 |
Disruption to payment systems etc.
|
|
(b) |
the Agent shall not be obliged to consult with the Company in relation to any changes mentioned in paragraph (a) if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to
agree to such changes;
|
|
(c) |
the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
|
(e) |
the Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability
whatsoever, but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 28.11; and
|
|
(f) |
the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.
|
29. |
Set-Off
|
30. |
Notices
|
30.1 |
Communications in writing
|
30.2 |
Addresses
|
|
(a) |
in the case of the Company or the Subsidiary Borrower, that identified with its name below;
|
|
(b) |
in the case of each Lender, 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,
|
30.3 |
Delivery
|
|
(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 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 Company in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
|
(e) |
Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5:00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
|
30.4 |
Notification of address
|
30.5 |
Communication when Agent is Impaired Agent
|
30.6 |
Electronic communication
|
|
(i) |
notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and
|
|
(ii) |
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.
|
|
(b) |
Any such electronic communication as specified in paragraph (a) above to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the
contrary, this is to be an accepted form of communication.
|
|
(d) |
Any electronic communication which becomes effective, in accordance with paragraph (c) above, after 5:00 p.m. in the place in which the Party to whom the relevant communication is sent or made available has its address for the
purpose of this Agreement shall be deemed only to become effective on the following day.
|
|
(e) |
Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in accordance with this Clause 30.6.
|
30.7 |
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.
|
31. |
Calculations and Certificates
|
31.1 |
Accounts
|
31.2 |
Certificates and Determinations
|
31.3 |
Day count convention
|
32. |
Partial Invalidity
|
33. |
Remedies, Waivers and hardship
|
33.1 |
Remedies and waivers
|
33.2 |
No hardship
|
34. |
Amendments and Waivers
|
34.1 |
Required consents
|
|
(a) |
Subject to Clause 34.2 (All Lender matters), Clause 34.3 (Affected Lender Matters) and Clause 34.4 (Other exceptions),
any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Company. 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.
|
34.2 |
All Lender matters
|
|
(a) |
the definition of "Majority Lenders" in Clause 1.1 (Definitions);
|
|
(b) |
an extension to the date of payment of any amount under the Finance Documents;
|
|
(c) |
a reduction in the amount of any payment of principal, interest, fees or commission payable or a reduction in the Margin;
|
|
(d) |
an increase in the Total Commitments, an extension of the Availability Period beyond the date contemplated in Clause 34.9 (Extension Option) or any requirement that a cancellation of
Commitments reduces the Commitments of the Lenders rateably under the Facility;
|
|
(e) |
a change in currency of payment of any amount under the Finance Documents;
|
|
(f) |
a change to the Obligors;
|
|
(g) |
any provision which expressly requires the consent of all the Lenders; or
|
|
(h) |
Clause 2.2 (Finance Parties' rights and obligations) ), Clause 7.3 (Change of Control), Clause 7.8 (Application of
prepayments), Clause 23 (Changes to the Lenders), Clause 27 (Sharing among the Finance Parties), this Clause 34.2, Clause 39 (Governing Law) or Clause 40.1 (Jurisdiction);
|
34.3 |
Affected Lender Matters
|
|
(a) |
reductions in the amount or extensions of the scheduled date of final maturity of any Loan;
|
|
(b) |
reductions in the rate of interest or any fee or extensions of any due date thereof; or
|
|
(c) |
increases in the amount or extensions of the expiry date of any Lender's Commitment;
|
34.4 |
Other exceptions
|
34.5 |
Replacement of Screen Rate
|
(a)
|
Subject to Clause 34.4 (Other exceptions), if a Screen Rate Replacement Event has occurred in relation to any Screen Rate, any amendment or waiver which relates
to:
|
|
(i) |
providing for the use of a Replacement Benchmark in relation to that currency in place of that Screen Rate ; and
|
(ii)
|
|
|
(A) |
aligning any provision of any Finance Document to the use of that Replacement Benchmark;
|
|
(B) |
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes
of this Agreement);
|
|
(C) |
implementing market conventions applicable to that Replacement Benchmark;
|
|
(D) |
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or
|
|
(E) |
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment or
method for calculating any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation,
nomination or recommendation) .
|
|
(b) |
If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within ten (10) Business Days (or such longer time period in relation to any request which the Borrower and the Agent may agree)
of that request being made:
|
|
(i) |
its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the relevant Facility/ies when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that
request; and
|
|
(ii) |
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
|
(c)
|
In this Clause 33.5:
|
|
(a) |
formally designated, nominated or recommended as the replacement for a Screen Rate by:
|
|
(b) |
in the opinion of the Majority Lenders and the Borrower, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or
|
|
(c) |
in the opinion of the Majority Lenders and the Borrower, an appropriate successor to a Screen Rate.
|
|
(a) |
the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Majority Lenders and the Borrower, materially changed;
|
(b)
|
|
(i)
|
|
|
(A) |
the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent; or
|
|
(B) |
information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably
confirms that the administrator of that Screen Rate is insolvent,
|
|
(ii) |
the administrator of that Screen Rate publicly announces that it has ceased or will cease to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that
Screen Rate;
|
|
(iii) |
the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued; or
|
|
(iv) |
the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or
|
|
(c) |
in the opinion of the Majority Lenders and the Obligor, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.
|
34.6 |
Disenfranchisement of Defaulting Lenders
|
|
(a) |
For so long as a Defaulting Lender has any Available Commitment, in ascertaining:
|
|
(i) |
the Majority Lenders; or
|
|
(ii) |
whether:
|
|
(A) |
any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments; or
|
|
(B) |
the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents, that Defaulting Lender's Commitment will be reduced by the amount of
its Available Commitment and to the extent that that reduction results in that Defaulting Lender's Commitment being zero, that Defaulting Lender shall be deemed not to be a Lender for the purposes of paragraphs (i) and (ii)(A) above.
|
|
(b) |
For the purposes of this Clause 34.6, the Agent may assume that the following Lenders are Defaulting Lenders:
|
|
(i) |
any Lender which has notified the Agent that it has become a Defaulting Lender;
|
|
(ii) |
any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of "Defaulting Lender" has occurred, unless it has received notice to the contrary from
the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.
|
34.7 |
Excluded Commitments
|
|
(a) |
its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the Facility when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments
has been obtained to approve that request; and
|
|
(b) |
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
|
34.8 |
Replacement of a Defaulting Lender
|
34.9 |
Extension Option
|
|
(b) |
The Company may notify an extension of the First Extended Maturity Date of the Facility to the date falling on the Second Extended Maturity Date of the Facility, by delivering to the Agent, not less than ten (10) days prior to the
First Extended Maturity Date, an extension notice signed by the Company's authorised signatory and the French Borrower's legal representative (gérant).
|
|
(c) |
The Agent shall promptly upon receipt of the same inform each Lender of receipt of the relevant extension request.
|
|
(d) |
Subject to the provisions of paragraph (e) below, upon receipt by the Agent of the relevant extension notice from the Agent, the Initial Maturity Date of the Facility shall be extended to the First Extended Maturity Date or to the
Second Extended Maturity Date of the Facility (as the case may be).
|
|
(e) |
No extension of the Initial Maturity Date or of the First Extended Maturity Date of the Facility shall occur under this 34.9 unless:
|
|
(i) |
no Event of Default is continuing or would result from the extension of the Initial Maturity Date or the First Extended Maturity Date of the Facility (as the case may be) at the date of the extension request and at the date the
extension becomes effective;
|
|
(ii) |
the Repeating Representations set forth in this Agreement are true and correct in all material respects on and as of the date of the extension request and the date on which the extension becomes effective;
|
|
(iii) |
the Agent shall have received a certificate dated as of the extension request signed by the Responsible Officer of the Company (A) certifying the accuracy of clauses (i) and (ii) above and (B), in case of change of the French
Borrower's managing director (gérant), certifying and attaching the Kbis extract (Extrait Kbis) relating to the French Borrower dated not earlier than 10
days prior to the extension notice and the decision of the partners (associés) of the French Borrower whereby the managing director (gérant) has been
appointed; and
|
|
(iv) |
the Company on behalf of the Borrowers has paid to the Agent (for the account of each Lender), (x) on the Initial Maturity Date of the Facility, an extension fee equal to 0.05 per cent of the amount of each Lender's Commitments under
the Facility on such date, or (as the case may be) (y) on the First Extended Maturity Date of the Facility, an extension fee equal to 0.10 per cent of the amount of each Lender's Commitments under the Facility on such date.
|
34.10 |
Amendments and Waivers of Sanctions Provisions
|
35. |
Confidential Information
|
35.1 |
Confidentiality
|
35.2 |
Disclosure of Confidential Information
|
|
(b) |
to any person:
|
|
(iii) |
appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without
limitation, any person appointed under paragraph (b) of Clause 25.14 (Relationship with the Lenders));
|
|
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above;
|
|
(vi) |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;
|
|
(viii) |
who is a Party; or
|
|
(ix) |
with the consent of the Company;
|
|
(A) |
in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking, except that there shall be no requirement for a
Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
|
(B) |
in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the
Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
|
(C) |
in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be
price-sensitive information, except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
|
(c) |
to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without
limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in
this paragraph (c) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With
Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Company and the relevant Finance Party; and
|
|
(d) |
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents
and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.
|
35.3 |
Disclosure to numbering service providers
|
|
(i) |
names of Obligors;
|
|
(ii) |
country of domicile of the Obligors;
|
|
(iii) |
place of incorporation of the Obligors;
|
|
(iv) |
date of this Agreement;
|
|
(v) |
Clause 39 (Governing Law);
|
|
(vi) |
the names of the Agent;
|
|
(vii) |
date of each amendment and restatement of this Agreement;
|
|
(viii) |
amounts of, and names of, the Facility;
|
|
(ix) |
amount of Total Commitments;
|
|
(x) |
currencies of the Facility;
|
|
(xi) |
type of Facility;
|
|
(xii) |
ranking of Facility;
|
|
(xiii) |
Maturity Date;
|
|
(xiv) |
changes to any of the information previously supplied pursuant to paragraphs (i) to (xiii) above; and
|
|
(xv) |
such other information agreed between such Finance Party and the Company,
|
|
(b) |
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Obligors by a numbering service provider and the information associated with each such number may be
disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.
|
|
(c) |
Each Obligor represents that none of the information set out in paragraphs (i) to (xv) of paragraph (a) above is, nor will at any time be, unpublished price-sensitive information.
|
|
(d) |
The Agent shall notify the Company and the other Finance Parties of:
|
|
(i) |
the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facility and/or one or more Obligors; and
|
|
(ii) |
the number or, as the case may be, numbers assigned to this Agreement, the Facility and/or one or more Obligors by such numbering service provider.
|
35.4 |
Entire agreement
|
35.5 |
Inside information
|
35.6 |
Notification of disclosure
|
|
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 35.2 (Disclosure of Confidential Information) except where such disclosure is
made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
|
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 35.
|
35.7 |
Continuing obligations
|
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
|
(b) |
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
36. |
Confidentiality of Funding Rates and Reference Bank Quotations
|
36.1 |
Confidentiality and disclosure
|
|
(a) |
The Agent and each Obligor agree to keep each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b) and (c) below.
|
|
(b) |
The Agent may, without prejudice to the provisions of article L.511-33 of the French Code monétaire et financier, disclose:
|
|
(i) |
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrower pursuant to Clause 8.4 (Default interest) or Clause 8 (Interest);
and
|
|
(ii) |
any Funding Rate (or any Reference Bank Quotation) to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide
those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement
Service Providers or such other form of confidentiality undertaking agreed between the Agent and the relevant Lender or the Reference Bank, as the case may be.
|
|
(ii) |
any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock
exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive
information, except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;
|
|
(iii) |
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding
Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or
the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and
|
|
(iv) |
any person with the consent of the relevant Lender or the Reference Bank, as the case may be.
|
36.2 |
Related obligations
|
|
(a) |
The Agent and each Obligor acknowledge that each Funding Rate (and, in the case of the Agent, each Reference Bank Quotation) is or may be price sensitive information and that its use may be regulated or prohibited by applicable
legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not to use any Funding Rate or, in the case of the Agent, any Reference Bank Quotation for any unlawful purpose.
|
|
(b) |
The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender or the Reference Bank, as the case may be:
|
|
(i) |
of the circumstances of any disclosure made pursuant to paragraph (c)(ii) of Clause 36.1 (Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to
in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
|
(ii) |
upon becoming aware that any information has been disclosed in breach of this Clause 36.
|
36.3 |
No Event of Default
|
37. |
Anti-Boycott Regulations
|
38. |
Waiver of Subject Ordinance
|
39. |
Governing Law
|
40. |
Enforcement
|
40.1 |
Jurisdiction
|
40.2 |
Evidence of Agreement
|
|
(a) |
Each Party acknowledges having the knowledge of the use of the electronic signature solution offered by DocuSign France who will ensure the security and integrity of the digital copies of this Agreement in accordance with the
Electronic Signature Laws and Regulations and that the route offered by or DocuSign France implements an electronic signature within the meaning of the provisions of article 1367 of the French Code
civil.
|
|
(b) |
Each of the Parties recognises and accepts that the conservation by DocuSign France of this Agreement and of all the information relating thereto stored and/or signed electronically, makes it possible to satisfy the requirement of
durability within the meaning of the provisions of article 1379 of the French Code civil.
|
|
(c) |
Each of the Parties recognizes and accepts that the date and time stamp of this Agreement and electronic signatures is enforceable (opposable) against it and that it will prevail between the Parties.
|
|
(d) |
Each of the Parties recognizes and accepts that the electronic signature according to the solution offered by DocuSign France of this Agreement corresponds to a degree of reliability sufficient to identify its signatory and
guarantees its link with this Agreement to which its signature is attached.
|
|
(e) |
Thus, each of the Parties expressly acknowledges and accepts that the electronic signature of this Agreement thus produced will be valid and enforceable against it and against the other Parties.
|
|
(f) |
For the purpose of this Clause 39.2 (Evidence of Agreement):
|
40.3 |
Personal Data Protection
|
|
(a) |
Pursuant to the General Data Protection Regulation 2016/679 of April 27, 2016 (the "GDPR") and the French law no. 78-17 dated 6 January 1978, each Finance Party may process personal data relating to each Borrower and its Subsidiaries
including their respective beneficial owners, officers and personnel for purposes solely related to the execution and administration of this Agreement. Each party undertakes to comply with the applicable data protection laws and
regulations, including Law No. 78-17 of 6 January 1978 and the GDPR and other applicable data protection laws, in each case, as may be amended and updated (the "Data Protection Rules").
|
|
(b) |
Personal data may be transferred by the Finance Parties to any Affiliate or third parties, including regulators and supervisory authorities, transferees, subcontractors, partners and companies involved in brokerage activities with
each Finance Party in France or abroad, including in non-EEA. The personal data may be retained for the duration of the Agreement, the applicable limitation period and/or the documented retention period of any Finance Party.
|
|
(c) |
Subject to provisions of Clause 35 (Confidential Information), the signatories of this Agreement acknowledge that personal data may be transferred, upon the request of official agencies and
local administrative or judicial authorities, to EEA and non EEA countries.
|
|
(d) |
Data subjects have certain rights under the Data Protection Rules which include the right to access and to request a copy of their personal data, the restriction on the processing of their personal data and/or the rectification or
erasure of their personal data. Data subjects may also communicate instructions on the fate of their personal data in case of death. These rights may be exercised by sending a request by mail or e-mail to
the address indicated on the following website:
|
|
(i) |
in relation to Societe Generale: https://entreprises.societegenerale.fr/rgpd-charte-donnees/;
|
|
(ii) |
in relation to BNP Paribas: https://cib.bnpparibas.com/about/privacy-policy_a-38-60.html;
|
|
(iii) |
in relation to Standard Chartered Bank: https://www.sc.com/en/privacy-policy/;
|
|
(iv) |
in relation to HSBC France: https://www.hsbc.fr/1/2/hsbc-france/charte-de-protection-des-donnees
|
|
(e) |
In addition to the rights referred to in Clause 39.3 (d) above, the data subjects are also entitled to lodge a complaint with their respective supervisory authority.
|
|
(f) |
Where used in this clause the terms: "personal data" and "data subject" shall have the meaning ascribed to such terms in the GDPR.
|
Name of Original Lender
|
Commitment
|
|
BNP PARIBAS (a société anonyme incorporated under the laws of France, having its registered office at 16 boulevard des Italiens, 75009 Paris, registered under number 662 042 449 RCS Paris)
|
€100,000,000
|
|
Deutsche Bank Luxembourg S.A., a société anonyme with a registered address at 2, boulevard Konrad Adenauer, L-1115 Luxembourg, registered under the Commercial Register (R.C.S.) Luxembourg No. B 9164.
|
€100,000,000
|
|
HSBC France, a société anonyme incorporated under the laws of France, having its registered office at 103, avenue des Champs-Elysées, 75008 Paris, registered under number 775 670 284 RCS Paris.
|
€100,000,000
|
|
SOCIETE GENERALE, a société anonyme with a share capital of €1,009,897,173.75 having the unique identification number 552 120 222 RCS Paris, having its registered office at PARIS (75009), 29 Boulevard
Haussmann, and duly represented by Mr Patrick Blas on behalf of the Centre d’Affaires La Défense Entreprises, Tour Manhattan, 5-6 Place de l'Iris 92040 COURBEVOIE
|
€100,000,000
|
|
Standard Chartered Bank, a company incorporated in England with limited liability by Royal Charter 1853 with reference number ZC18, having its registered office at 1 Basinghall Avenue, London EC2V 5DD
|
€100,000,000
|
1. |
OBLIGORS
|
|
(a) |
In respect of the Company, a copy of its constitutional documents.
|
|
(c) |
A copy of a resolution (or an extract of the minutes) of the board of directors or equivalent body of the Company :
|
|
(i) |
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;
|
|
(ii) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf;
|
|
(iv) |
resolving that the entry into this Agreement is in the best interests of the Company.
|
|
(f) |
A certificate of an authorised signatory of the Company dated the Signing Date and certifying that each copy document relating to it specified in paragraphs (a), (c), (d) and (e) of this Schedule 2 (Conditions
Precedent) is correct, complete and (to the extent executed) in full force and effect and has not been amended or superseded as at a date no earlier than the Signing Date.
|
|
(h) |
Evidence satisfactory to the Agent that at least five Business Days prior to the Signing Date each Lender has carried out and is satisfied with the results of all "know your client", anti-money laundering and other similar checks
required by each Finance Party in relation to each Obligor.
|
2. |
FINANCE DOCUMENTS
|
|
(a) |
this Agreement; and
|
|
(b) |
the TEG Letter.
|
3. |
FINANCIAL INFORMATION
|
4. |
OTHER DOCUMENTS AND EVIDENCE
|
5. |
LEGAL OPINIONS
|
|
(a) |
A legal opinion from Gide, French legal adviser to the Agent and the Lenders, in respect of the legality, validity and binding nature of the Finance Documents, in form and substance satisfactory to the Agent;
|
|
(b) |
A legal opinion from Gide, English legal adviser to the Agent and the Lenders, in respect of the due incorporation, capacity and due authorisation of the Company, in form and substance satisfactory to the Agent; and
|
|
(c) |
A legal opinion from Clifford Chance Europe LLP, French legal adviser to the Subsidiary Borrower, in respect of the due incorporation, capacity and due authorisation of the Subsidiary Borrower, in form and substance satisfactory to
the Agent.
|
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 Loan on the following terms:
|
Proposed Utilisation Date:
|
[●] (or, if that is not a Business Day, the next Business Day)
|
Currency of Loan:
|
Euro
|
Amount:
|
[●] or, if less, the Available Facility
|
Interest Period:
|
[●]
|
3. |
We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Utilisation Request.
|
4. |
This Loan is to be made in [whole]/[part] for the purpose of refinancing [identity of maturing Loan] (the "Maturing Loan").
|
5. |
[The proceeds of this Loan [should be credited to [account]]/[should be made available by way of set-off with the Maturing Loan].
|
6. |
This Utilisation Request is irrevocable.
|
To: |
[●], as Agent
|
From: |
[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New
Lender")
|
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, and in accordance with Clause 23.5 (Procedure for transfer), all of the Existing
Lender's rights and obligations under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment(s) and participations in Utilisations under the Agreement as specified in the Schedule.
|
|
(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. |
The New Lender confirms, for the benefit of the Agent and without liability to any Obligor, that it is, in respect of the Subsidiary Borrower:
|
|
(a) |
[a Qualifying Lender (other than a Treaty Lender);]
|
|
(b) |
[a Treaty Lender;]
|
|
(c) |
[not a Qualifying Lender];
|
5. |
The New Lender confirms, for the benefit of the Agent and without liability to any Obligor, that it is, in respect of the Company:
|
|
(a) |
[a Qualifying Lender (other than a Treaty Lender);]
|
|
(b) |
[a Treaty Lender;]
|
|
(c) |
[not a Qualifying Lender].
|
6. |
[The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
|
|
(a) |
a company resident in the UK for UK tax purposes;
|
|
(b) |
a partnership each member of which is:
|
|
(i) |
a company so resident in the UK; or (ii) a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning
of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
|
|
(c) |
a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the
meaning of section 19 of the CTA) of that company.]
|
7. |
[The New Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [ ]) and is tax resident in [ ], so that interest payable to it by borrowers is generally subject to full exemption
from UK withholding tax, and requests that the Company notify each Borrower which is a Party as a Borrower as at the Transfer Date and that it wishes that scheme to apply to the Agreement.]
|
[9/10.] |
This Transfer Certificate and any non-contractual obligations arising out of or in connection with it governed by French law.
|
2. |
We confirm that the Total Capitalisation Ratio as of the financial quarter ended __________ was: ______, as demonstrated by the calculations attached hereto.
|
3. |
We confirm that we are in compliance with Clause 21.3 (Indebtedness) of the Agreement, as demonstrated by the calculations attached hereto.
|
4. |
[We confirm that no Default is continuing.]
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5. |
[Attached hereto is an updated list of all Material Subsidiaries.]1
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Signed:
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Chief Financial Officer CFO
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||
of
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TechnipFMC plc
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(1) |
[•]; and
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(2) |
[•].
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1. |
CONFIDENTIALITY UNDERTAKING
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1.1. |
The Purchaser undertakes in relation to each Acquisition made or which may be made by it (a) to keep all Confidential Information which the Seller supplies to the Purchaser in relation to that Acquisition confidential and not to
disclose it to anyone, save to the extent permitted by paragraph 2 below and to ensure that all Confidential Information which the Seller supplies to the Purchaser in relation to that Acquisition is protected with security measures and
a degree of care that would apply to the Purchaser's own confidential information and (b) until that Acquisition is completed, to use the Confidential Information which the Seller supplies to the Purchaser in relation to that
Acquisition only for the Permitted Purpose.
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2. |
PERMITTED DISCLOSURE
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2.2. |
subject to the requirements of the relevant Agreement, to any person:
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(b) |
with (or through) whom the Purchaser enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to that Agreement or any
relevant Obligor such Confidential Information which the Seller supplies to the Purchaser in relation to that Acquisition as the Purchaser shall consider appropriate if the person to whom such Confidential Information is to be given
pursuant to this sub-paragraph (a) of paragraph 2.2 has delivered a letter to the Purchaser in equivalent form to this undertaking;
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2.3. |
notwithstanding paragraphs 2.1 and 2.2 above, Confidential Information to such persons to whom, and on the same terms as, a Finance Party is permitted to disclose such Confidential Information under the Agreement to which that
Acquisition relates, as if such permissions were set out in full in this undertaking for the purposes of that Acquisition and as if references in those permissions to Finance Party were references to the Purchaser for the purposes of
that Acquisition.
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3. |
NOTIFICATION OF DISCLOSURE
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3.1. |
of the circumstances of any disclosure of Confidential Information made pursuant to sub-paragraph (c) of paragraph 2.2 above except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary
course of its supervisory or regulatory function; and
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3.2. |
upon becoming aware that Confidential Information relating to that Acquisition has been disclosed in breach of this undertaking.
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4. |
RETURN OF COPIES
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5. |
CONTINUING OBLIGATIONS
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6. |
NO REPRESENTATION; CONSEQUENCES OF BREACH, ETC
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6.1. |
neither the Seller, nor any member of the relevant Group nor any of the Seller's or the relevant Group's respective 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 supplied by the Seller to the Purchaser in relation to that
Acquisition or any other information supplied by the Seller to the Purchaser in relation to that Acquisition 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 supplied by the Seller to the Purchaser in relation to that Acquisition or any other information supplied by the Seller to the Purchaser in relation to that Acquisition or be otherwise liable to the Purchaser or
any other person in respect of the Confidential Information supplied by the Seller to the Purchaser in relation to that Acquisition or any such information; and
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6.2. |
the Seller or members of the relevant Group may be irreparably harmed by the breach of the terms of this undertaking and damages may not be an adequate remedy; each Relevant Person may be granted an injunction or specific performance
for any threatened or actual breach of the provisions of this undertaking by the Purchaser.
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7. |
ENTIRE AGREEMENT: NO WAIVER; AMENDMENTS, ETC
|
7.1. |
This undertaking constitutes the entire agreement between the Seller and the Purchaser in relation to the Purchaser's obligations regarding Confidential Information and supersedes any previous agreement, whether express or implied,
regarding Confidential Information.
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7.2. |
No failure to exercise, nor any delay in exercising any right or remedy under this undertaking will operate as a waiver of any such right or remedy or constitute an election to affirm this letter. No election to affirm this letter
will be effective unless it is in writing. No single or partial exercise of any right or remedy will prevent any further or other exercise or the exercise of any other right or remedy under this undertaking.
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7.3. |
The terms of this undertaking and the Purchaser's obligations under this undertaking may only be amended or modified by written agreement between the parties.
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8. |
INSIDE INFORMATION
|
9. |
NATURE OF UNDERTAKINGS
|
10. |
NO HARDSHIP
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11. |
GOVERNING LAW AND JURISDICTION
|
11.1. |
This undertaking and any non-contractual obligations arising out of or in connection with it (including any non-contractual obligations arising out of the negotiation of any Acquisition) are governed by French law.
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11.2. |
The Tribunal de Commerce de Paris has exclusive jurisdiction to settle any dispute arising out of or in connection with this agreement (including a dispute relating to the existence, validity or termination of this Agreement or any
non-contractual obligation arising out or in connection with this Agreement).
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12. |
DEFINITIONS
|
|
(a) |
is or becomes public information other than as a direct or indirect result of any breach by the Purchaser of this undertaking; or
|
|
(b) |
is identified in writing at the time of delivery as non-confidential by the Seller or its advisers; or
|
|
(c) |
is known by the Purchaser before the date the information is disclosed to the Purchaser by the Seller or any of its affiliates or advisers or is lawfully obtained by the Purchaser after that date, from a source which is, as far as
the Purchaser is aware, unconnected with the relevant Group and which, in either case, as far as the Purchaser is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
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Loans
|
|||
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)
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11:00 a.m. (Paris time) three Business Days prior to the proposed Utilisation Date
|
||
Agent determines (in relation to a Utilisation) the amount of the Loan, if required under Clause 5.4 (Lenders' participation), and notifies the Lenders of the Loan in accordance with Clause
5.4 (Lenders' participation)
|
5:00 p.m. (Paris time) three Business Days prior to the proposed Utilisation Date
|
||
EURIBOR is fixed
|
Quotation Day
10:00 a.m. (Paris time) |
TECHNIP EUROCASH SNC, as Subsidiary Borrower
|
|
By:
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Name: Agnès Brault
|
|
Title: Vice President Treasury, Financing, Risk
|
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TECHNIPFMC PLC, as Company
|
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By:
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Name: Maryann Mannen
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Title: EVP and Chief Financial Officer
|
|
BNP PARIBAS, as Original Lender
|
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By:
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Name: Benjamin Binetter
|
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Title: Authorised Signatory
|
BNP PARIBAS, as Original Lender
|
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By:
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Name: Jean Nunez
|
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Title: Authorised Signatory
|
|
DEUTSCHE BANK LUXEMBOURG S.A., as Original Lender
|
|
By:
|
Name: Isaure De-Vaumas
|
|
Title: Authorised Signatory
|
|
HSBC FRANCE, as Original Lender
|
|
By:
|
Name: Matthieu Plateau
|
|
Title: Authorised Signatory
|
HSBC FRANCE, as Original Lender
|
|
By:
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Name: Nicolas David
|
|
Title: Authorised Signatory
|
|
SOCIÉTÉ GÉNÉRALE, as Original Lender
|
|
By:
|
Name: Patrick BLAS
|
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Title: Directeur de l’Agence Grande Entreprise de La Défense au sein de Société Générale
|
|
STANDARD CHARTERED BANK, as Original Lender
|
|
By:
|
Name: Simon Derrick
|
|
Title: Authorised Signatory
|
HSBC FRANCE, as Agent
|
|
By:
|
Name: Marisa Drei
|
|
Title: Authorised Signatory
|