EXHIBIT 4.21
CLIFFORD
EXECUTION VERSION
CHANCE
RMC GROUP LIMITED
CEMEX ESPANA,
S.A.
CEMEX CARACAS INVESTMENTS B.V.
CEMEX CARACAS II INVESTMENTS B.V.
CEMEX EGYPTIAN INVESTMENTS B.V.
CEMEX MANILA INVESTMENTS B.V.
CEMEX AMERICAN HOLDINGS B.V.
CEMEX SHIPPING B.V.
AS ORIGINAL GUARANTORS
RMC GROUP LIMITED
AS ORIGINAL BORROWER
BANC OF AMERICA SECURITIES LIMITED
BNP PARIBAS
HSBC INVESTMENT BANK PLC
THE ROYAL BANK OF SCOTLAND PLC
WESTLB AG, LONDON BRANCH
AS MANDATED LEAD ARRANGERS
THE ROYAL BANK OF SCOTLAND PLC
AS AGENT
AND OTHERS
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(pound)1,000,000,000 TERM AND
REVOLVING CREDIT AGREEMENT DATED 18 OCTOBER 2002
AS AMENDED
ON 10 DECEMBER 2002, 12 JANUARY 2004 AND AS AMENDED AND
RESTATED ON 16 MARCH 2005
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<PAGE>
CONTENTS
Clause
Page
1. Definitions And
Interpretation......................................1
2. The
Facilities.....................................................18
3. Utilisation Of
The Term Facility...................................19
4. Multicurrency
Option...............................................19
5. Interest Periods
For Term Advances.................................21
6. Payment And
Calculation Of Interest On Term
Advances...............23
7. Utilisation Of
The Revolving Facility..............................23
8. Payment And
Calculation Of Interest On Revolving
Advances..........24
9. Market
Disruption And Alternative Interest
Rates...................25
10.
Notification.......................................................26
11. Repayment Of The
Revolving Facility................................26
12. Repayment Of The Term
Facility.....................................26
13. Cancellation And
Prepayment........................................27
14.
Taxes..............................................................29
15. Tax
Receipts.......................................................31
16. Increased
Costs....................................................32
17.
Illegality.........................................................33
18.
Mitigation.........................................................33
19.
Representations....................................................34
20. Financial
Information..............................................37
21. Financial
Condition................................................41
22.
Covenants..........................................................47
23. Events Of
Default..................................................54
24. Guarantee And
Indemnity............................................57
25. Commitment Commission
And Fees.....................................60
26. Costs And
Expenses.................................................60
27. Default Interest And
Break Costs...................................61
28. Parent's
Indemnities...............................................62
29. Currency Of Account
And Payment....................................63
30.
Payments...........................................................64
31.
Set-Off............................................................66
32.
Sharing............................................................66
33. The Agent, The
Mandated Lead Arrangers And The Banks...............67
34. Assignments And
Transfers..........................................71
35. Changes To The
Obligors............................................74
36. Calculations And
Evidence Of Debt..................................75
37. Remedies And Waivers,
Partial Invalidity...........................77
38.
Notices............................................................77
39.
Counterparts.......................................................79
40.
Amendments.........................................................79
41. Governing
Law......................................................79
42.
Jurisdiction.......................................................80
Schedule 1
THE ORIGINAL PARTIES.................................81
Part
I
The Banks............................................81
Part
II The
Original Guarantors..............................82
Schedule 2
FORM OF TRANSFER CERTIFICATE.........................83
Schedule 3
CONDITIONS PRECEDENT.................................86
Schedule 4
NOTICE OF DRAWDOWN...................................87
Schedule 5
FORM OF COMPLIANCE CERTIFICATE.......................89
Part
I
Parent's Compliance Certificate......................89
Part
II
Original Borrower's Compliance Certificate...........91
Schedule 6
FORM OF ACCESSION MEMORANDUM.........................92
Schedule 7
ADDITIONAL CONDITIONS PRECEDENT......................94
Schedule 8
FORM OF RESIGNATION NOTICE...........................96
Part
I
Resignation Of Additional Borrower...................96
Part
II
Resignation Of Guarantor.............................97
Schedule 9
MANDATORY COST.......................................98
Schedule 10
EXISTING SECURITY...................................101
Schedule 11
MATERIAL SUBSIDIARIES...............................102
Schedule 12
EXISTING NOTARISATIONS..............................103
<PAGE>
THIS AGREEMENT is a
restatement of the (pound)1,000,000,000 term and
revolving
credit agreement originally
dated 18 October 2002, setting out the terms of
that agreement as amended on
10 December 2002, 12 January 2004 and 16 March
2005 and in its restated form
is made:
BETWEEN
(1) RMC GROUP LIMITED (registered no.
00249776) (in its capacity as borrower
hereunder, the
"Original Borrower");
(2) RMC GROUP LIMITED, CEMEX ESPANA,
S.A., CEMEX CARACAS INVESTMENTS B.V.,
CEMEX CARACAS II
INVESTMENTS B.V., CEMEX EGYPTIAN INVESTMENTS B.V., CEMEX
MANILA
INVESTMENTS B.V., CEMEX AMERICAN HOLDINGS B.V. and CEMEX
SHIPPING
B.V. (the
"Original Guarantors");
(3) BANC OF AMERICA SECURITIES
LIMITED, BNP PARIBAS, HSBC INVESTMENT BANK
PLC, THE ROYAL
BANK OF SCOTLAND PLC and WESTLB AG, LONDON BRANCH as
mandated lead
arrangers of the Facilities (the "Mandated Lead
Arrangers");
(4) THE ROYAL BANK OF SCOTLAND PLC as
agent for the Banks (the "Agent"); and
(5) THE BANKS (as defined
below).
IT IS AGREED as
follows.
1. DEFINITIONS AND
INTERPRETATION
1.1 Definitions In this
Agreement:
"Accession
Memorandum" means a memorandum substantially in the form
set
out in Schedule
6 (Form of Accession Memorandum).
"Additional
Borrower" means any company which has become an
Additional
Borrower in
accordance with Clause 35 (Changes to the Obligors).
"Additional
Guarantors" means any company which has become an
Additional
Guarantor in
accordance with Clause 35 (Changes to the Obligors).
"Advance" means
a Revolving Advance or a Term Advance.
"Adjusted
EBITDA" has the meaning given to it in Clause 21
(Financial
Condition).
"Amendment
Agreement" means the amendment agreement in relation to
this
Agreement
entered into on 16 March 2005.
"Asia Fund"
means Cemex Asia Holdings Ltd. ("CAH") or any other
vehicles
used by the
Parent or any other member of the Group to invest, or
finance
investments
already made, in companies involved in or assets dedicated
to
the cement,
concrete or aggregates business in Asia in both cases,
such
company or
vehicle, as applicable, with committed third parties
with
minority
interests other than members of the Group or CEMEX, S.A. de
C.V.
and its
Subsidiaries and with the Parent maintaining control of
its
management.
"Authorisation"
means an authorisation, consent, approval, resolution,
licence,
exemption, filing, notarisation or registration.
"Authorised
Signatory" means, in relation to an Obligor or proposed
Obligor, any
person who is duly authorised (in such manner as may be
reasonably
acceptable to the Agent) and in respect of whom the Agent
has
received a
certificate signed by a director or another Authorised
Signatory of
such Obligor or proposed Obligor setting out the name
and
signature of
such person and confirming such person's authority to
act.
"Available
Commitment" means, in relation to a Bank at any time,
its
Available
Revolving Commitment and its Available Term Commitment.
"Available
Revolving Commitment" means, in relation to a Bank at any
time
and save as
otherwise provided herein, its Revolving Commitment at
such
time less its
share of the Sterling Amount of Revolving Advances which
are then
outstanding provided that such amount shall not be less
than
zero.
"Available
Revolving Facility" means, at any time, the aggregate
amount
of the Available
Revolving Commitments adjusted, in the case of any
proposed
drawdown, so as to take into account:
(a) any reduction in the Revolving
Commitment of a Bank pursuant to the
terms hereof;
(b) any Revolving Advance which,
pursuant to any other drawdown, is to
be made; and
(c) any Revolving Advance which is due
to be repaid,
on or before the
proposed drawdown date.
"Available Term
Commitment" means, in relation to a Bank at any time and
save as
otherwise provided herein, its Term Commitment at such time
less
the aggregate of
its share of the Original Sterling Amount of the Term
Advances which
are then outstanding.
"Available Term
Facility" means, at any time, the aggregate amount of
the
Available Term
Commitments adjusted, in the case of any proposed
drawdown, so as
to take into account any reduction in the Term
Commitment
of a Bank on or
before the proposed drawdown date pursuant to the terms
hereof.
"Bank" means any
financial institution:
(a) listed in Part I of Schedule 1
(The Original Parties); or
(b) which has become a party hereto in
accordance with Clause 34.4
(Assignments by Banks) or Clause 34.5 (Transfers by
Banks),
and which has
not ceased to be a party hereto in accordance with the
terms
hereof.
"Borrowers"
means the Original Borrower and each Additional
Borrower,
provided that
such company has not been released from its rights and
obligations
hereunder in accordance with Clause 35.3 (Resignation of
an
Additional
Borrower).
"Business Day"
means a day (other than a Saturday or Sunday) which is
not
a public holiday
and on which banks are open for general business in
London
and:
(a) (in relation to any date for
payment or purchase of a sum
denominated in a currency other than the euro) the
principal
financial centre of the country of such currency; or
(b) (in relation to any date for
payment or purchase of a sum
denominated in the euro) any TARGET Day.
"Capital Lease"
means any lease that is capitalised on the balance sheet
prepared in
accordance with Spanish GAAP.
"Cemex Existing
Facility Agreement" means the US$3,800,000,000 facility
agreement dated
24 September 2004 made between the Parent as borrower,
certain
subsidiaries of the Parent as guarantors and the banks
defined
therein.
"Cemex Capital
Contributions" has the meaning given to it in Clause 21
(Financial
Condition).
"Clean-Up Date"
means the date falling 180 days after 1 March 2005.
"Clean-Up
Period" means the period commencing on 1 March 2005 and
ending
on the Clean-Up
Date.
"Commitment"
means, in relation to a Bank at any time, the aggregate
of
its Revolving
Commitment and its Term Commitment.
"Compliance
Certificate" means, in relation to the Parent, a
certificate
substantially in
the form set out in Part I of Schedule 5 (Form of
Compliance
Certificate) and, in relation to the Original Borrower,
a
certificate
substantially in the form set out in Part II of Schedule
5
(Form of
Compliance Certificate).
"Confidentiality
Undertaking" means a confidentiality undertaking in the
standard form
from time to time of the LMA or in such other form as
may
be agreed
between the Parent and the Agent.
"Default" means
an Event of Default or any event or circumstance
specified in
Clause 23 (Events of Default) which would (with the
expiry
of a grace
period, the giving of notice, the making of any
determination
under the
Finance Documents or any combination of any of the
foregoing)
be an Event of
Default.
"Dispute" means
any dispute referred to in Clause 42 (Jurisdiction).
"EBITDA" has the
meaning given to it in Clause 21 (Financial Condition).
"Effective Date" has
the meaning given to that term in the Amendment
Agreement.
"Environmental
Claim" means any claim, proceeding or investigation by
any
person in
respect of any Environmental Law.
"Environmental
Law" means any applicable law in any jurisdiction in
which
any member of
the Group conducts business which relates to the
pollution
or protection of
the environment or harm to or the protection of human
health or the
health of animals or plants.
"Environmental
Permits" means any permit, licence, consent, approval
and
other
authorisation and the filing of any notification, report
or
assessment
required under any Environmental Law for the operation of
the
business of any
member of the Group conducted on or from the properties
owned or used by
the relevant member of the Group.
"ERISA" means
the United States Employee Retirement Income Security
Act
of 1974, as
amended from time to time, and the regulations
promulgated
and rulings
issued thereunder.
"EURIBOR" means,
in relation to any amount to be advanced to or owing by
an Obligor under
the Finance Documents on which interest for a given
period is to
accrue:
(a) the percentage rate per annum
determined by the Banking Federation
of the European Union for the offering of deposits in euro for
such
period displayed at the appropriate page of the Telerate screen
or,
if such page or such service shall cease to be available, such
other
page or such other service for the purpose of displaying
the
percentage rate per annum determined by the Banking Federation
of
the European Union for the offering of deposits in euro for
such
period as the Agent, after consultation with the Banks and
the
Parent, shall select; or
(b) if no percentage rate per annum
for the offering of deposits in euro
is displayed for the relevant period, the arithmetic mean
(rounded
upwards to four decimal places) of the rates (as notified to
the
Agent) at which each of the Reference Banks was offering to
prime
banks in the European interbank market deposits in euro of
such
amount and for a period comparable to the relevant Interest
Period,
as the case may be, as of 11 a.m. (Brussels time) on the
Quotation
Date for such period.
"Event of
Default" means any circumstance described as such in Clause
23
(Events of
Default).
"Existing
Amount" means, in relation to any Term Advance and any
two
successive
Interest Periods relating thereto, the amount of such
Term
Advance at the
beginning of the last day of the first of those Interest
Periods less any
part thereof falling to be repaid on such day.
"Existing
Facilities" means:
(a) the (pound)450 million syndicated
revolving credit facility made
available to the Original Borrower and others on the terms of
a
credit agreement dated 8th November, 1999 (as amended) (but not,
for
the avoidance of doubt, the amortising term loan outstanding as
Term
B under that credit agreement);
(b) the following bilateral facilities
made available to the Original
Borrower:
(i)
(euro)38,346,891 facility with Westdeutsche Landesbank
(Ireland) plc;
(ii)
(euro)38,346,891 facility with Bayerische Hypo-und
Vereinsbank AG;
(iii)
(euro)38,340,000 facility with Dresdner Bank AG;
(iv)
(euro)38,346,891 facility with Sal. Oppenheim jr &
Cie;
(v)
(euro)25,560,000 facility with Deutsche Bank AG; and
(vi)
(euro)38,340,000 facility with Commerzbank AG.
(c) the (euro)306,775,129 facility
made available to the Original
Borrower by Deutsche Bank AG, Commerzbank AG, Dresdner Bank AG
and
National Westminster Bank AG.
"Facilities"
means the Revolving Facility and the Term Facility.
"Facility
Office" means, in relation to the Agent, the office
identified
with its
signature below or such other office as it may select by
notice
and, in relation
to any Bank, the office notified by it to the Agent in
writing prior to
the date hereof (or, in the case of a Transferee, at the
end of the
Transfer Certificate to which it is a party as Transferee)
or
such other
office as it may from time to time select by notice to
the
Agent.
"Final Term
Repayment Date" means the day which is 60 months after
the
date
hereof.
"Finance
Charges" has the meaning given to it in Clause 21
(Financial
Condition).
"Finance
Document" means this Agreement, any Accession Memorandum,
any
fee letter
delivered pursuant to Clause 25 (Commitment Commission
and
Fees), the
Syndication Letter and any other document designated as
such
by the Agent and
the Parent.
"Finance
Parties" means the Agent, the Mandated Lead Arrangers and
the
Banks.
"Financial
Indebtedness" means any indebtedness for or in respect of,
and
without double
counting:
(a) moneys borrowed (including, but
not limited to, any amount raised by
acceptance under any acceptance credit facility and receivables
sold
or discounted on a recourse basis (it being understood
that
Permitted Securitisations shall be deemed not to be on a
recourse
basis));
(b) any amount raised pursuant to any
note purchase facility or the
issue of bonds, notes, debentures, loan stock or any
similar
instrument;
(c) the amount of any liability in
respect of any lease or hire purchase
contract that would, in accordance with Spanish GAAP, be treated
as
a Capital Lease;
(d) the deferred purchase price of
assets or the deferred payment of
services, except trade accounts payable in the ordinary course
of
business;
(e) obligations of a person under
repurchase agreements for the stock
issued by such person or another person;
(f) obligations of a person with
respect to product invoices incurred in
connection with exporting financing;
(g) all Financial Indebtedness of
others secured by Security on any
asset of a person, regardless of whether such Financial
Indebtedness
is assumed by such person in an amount equal to the lower of (i)
the
net book value of such asset and (ii) the amount secured
thereby;
and
(h) guarantees of Financial
Indebtedness of other persons.
"GAAP" means, in
relation to an Obligor, the generally accepted
accounting
principles applying to it (i) in the country of its
incorporation;
or (ii) in a jurisdiction agreed to by the Agent.
"Group" means
the Parent and its Subsidiaries from time to time.
"Guarantees" has
the meaning given to it in Clause 21 (Financial
Condition).
"Guarantors"
means each Original Guarantor and each Additional
Guarantor.
"Holding
Company" means, in relation to a company or corporation,
any
other company or
corporation in respect of which it is a Subsidiary.
"Information
Memorandum" means the document concerning, among other
things, the
Original Obligors and the proposed acquisition of RMC
Group
Limited by Cemex
UK Limited dated December 2004 which, at their request
and on their
behalf, has been prepared in relation to this
transaction,
approved by the
Parent and distributed by The Royal Bank of Scotland plc
to selected financial
institutions.
"Instructing
Group" means:
(a) before any Advances have been
made, a Bank or Banks whose
Commitments amount in aggregate to more than sixty-six and
two
thirds per cent. of the Total Commitments; and
(b) thereafter, a Bank or Banks to
whom in aggregate more than sixty-six
and two thirds per cent. of the Sterling Amount of the Loan is
(or,
immediately prior to its repayment, was then) owed.
"Intellectual
Property Rights" has the meaning given to it in Clause
21
(Financial
Condition).
"Interest
Period" means, save as otherwise provided herein:
(a) any of those periods mentioned in
Clause 5.1 (Interest Periods for
Term Advances); and
(b) in relation to an Unpaid Sum, any
of those periods mentioned in
Clause 27.1 (Default Interest Periods).
"Legal Opinions"
means the legal opinions delivered to the Agent pursuant
to the Amendment
Agreement in relation to the Original Obligors or
pursuant to
Clause 35 (Changes to the Obligors) in relation to any
Additional
Obligors.
"LIBOR" means,
in relation to any amount to be advanced to or owing by
an
Obligor under
the Finance Documents on which interest for a given
period
is to
accrue:
(a) the percentage rate per annum
equal to the offered quotation which
appears on the page of the Telerate Screen which displays
the
British Bankers Association Interest Settlement Rate for
the
currency of the relevant amount (being currently 3740 or, as
the
case may be, 3750) for such period at or about 11.00 a.m. on
the
Quotation Date for such period or, if such page or such
service
shall cease to be available, such other page or such other
service
for the purpose of displaying the British Bankers
Association
Interest Settlement Rate for such currency as the Agent,
after
consultation with the Banks and the Parent, shall select;
or
(b) if no quotation for the relevant
currency and the relevant period is
displayed and the Agent has not selected an alternative service
on
which a quotation is displayed, the arithmetic mean (rounded
upwards
to four
decimal places) of the rates (as notified to the Agent)
at
which each of the Reference Banks was offering to prime banks in
the
London interbank market deposits in the currency of such amount
and
for a period comparable to the relevant Interest Period or Term,
as
the case may be, as of 11.00 a.m. on the Quotation Date for
such
period.
"LMA" means the
Loan Market Association.
"Loan" means, at
any time, the aggregate of the Revolving Loan and the
Term
Loan.
"Loan Notes"
means the loan notes (if any) issued to the shareholders
of
the Original
Borrower.
"Mandatory Cost"
means the rate determined in accordance with Schedule 9
(Mandatory
Cost).
"Margin" means
from the Effective Date until delivery of the first
Compliance
Certificate thereafter in accordance with Clause 20.2(b)
(Compliance
Certificate), 0.60 per cent. per annum. Thereafter, the
Margin at any
time is calculated by reference to the RMC
Borrowing/EBITDA
Ratio. If the
RMC Borrowing/EBITDA Ratio as shown by the Compliance
Certificate most
recently delivered under Clause 20 (Financial
Information)
is:
(a) greater than 3.0:1.0, the Margin
shall be 0.90 per cent. per annum;
(b) greater than 2.5:1.0 but less than
or equal to 3.0:1.0, the Margin
shall be 0.75 per cent. per annum;
(c) greater than 2.0:1.0 but less than
or equal to 2.5:1.0, the Margin
shall be 0.60 per cent. per annum;
(d) greater than 1.5:1 but less than
or equal to 2.0:1, the Margin shall
be 0.50 per cent. per annum; or
(e) less than or equal to 1.5:1.0, the
Margin shall be 0.425 per cent.
per annum.
Any change in
the Margin shall take effect in relation to any Advance
outstanding or
current Interest Period at the time of receipt by the
Agent of the
Compliance Certificate pursuant to Clause 20 (Financial
Information) at
the time of that receipt provided that if at any time
there is an
Event of Default or Default then the Margin shall be 0.90
per
cent. per annum
for such time.
"Material
Adverse Effect" means a material adverse effect on:
(a) the business, condition (financial
or otherwise) or operations of
the Group taken as a whole;
(b) the rights or remedies of any
Finance Party under the Finance
Documents; or
(c) the ability of any Obligor to
perform its obligations under the
Finance Documents.
"Material
Subsidiary" means, at any time:
(a) from the Effective Date, the
companies listed in Schedule 11
(Material Subsidiaries); and
(b) in addition, following the date on
which the first Compliance
Certificate is delivered in accordance with Clause
20.2(a)
(Compliance Certificate), any other Subsidiary of the
Parent:
(i)
which becomes a Subsidiary of the Parent after the
Effective
Date or acquires substantial assets or businesses after
the
Effective Date; and
(ii)
which:
(A) has total assets
representing 5 per cent. or more of
the total consolidated assets of the Group; and/or
(B) has revenues
representing 5 per cent. or more of the
consolidated turnover of the Group,
in each case calculated on a consolidated basis and any
Holding Company of any such Subsidiary (save unless such
company is already an Obligor hereunder).
Compliance with the conditions set out in sub-paragraphs
(i)
and (ii) of paragraph (b) shall be determined by
reference
to the most recent Compliance Certificate supplied by
the
Parent and/or the latest audited financial statements of
that Subsidiary (consolidated in the case of a
Subsidiary
which itself has Subsidiaries) and the latest audited
consolidated financial statements of the Group, but if a
Subsidiary has been acquired since the date as at which
the
latest audited consolidated financial statements of the
Group were prepared, the financial statements shall be
adjusted in order to take into account the acquisition
of
that Subsidiary (that adjustment being certified by the
Group's auditors as representing an accurate reflection
of
each of the respective revised total assets and turnover
of
the Group).
A report by the auditors of the Parent that a Subsidiary
is
a Material Subsidiary shall, in the absence of manifest
error, be conclusive and binding on all Parties.
"Net Borrowings"
has the meaning given to it in Clause 21 (Financial
Condition).
"New Amount"
means, in relation to any Term Advance and any two
successive Interest Periods
relating thereto, the amount of such Term
Advance at the
beginning of the second of those Interest Periods, as
determined in
accordance with Clause 4.3 (Amounts of Term Advances).
"Notarisation"
has the meaning ascribed to such term in Clause 22.5
(Notarisation).
"Notice of
Drawdown" means a notice substantially in the form set out
in
Schedule 4
(Notice of Drawdown).
"Obligors" means
the Borrowers and the Guarantors.
"Off-Balance
Sheet Transactions" has the meaning given to it in Clause
21
(Financial
Condition).
"Optional
Currency" means Australian dollars, US dollars, Swiss
francs,
Japanese yen and
euros or any other currency (except sterling) which has
been previously
approved in writing by the Agent (acting on the
instructions of
all the Banks) as an optional currency for the purpose
of
any drawdown at
least three Business Days prior to delivery of the
Notice
of Drawdown for
such Advance or request under Clause 4.1 (Borrower's
Request for
Optional Currency) and, at the time of drawdown or
denomination of
Advance, the currency is:
(a) freely transferable and freely
convertible into sterling; and
(b) available to banks in the relevant
interbank market.
"Original
Financial Statements" means:
(a) in relation to RMC Group Limited,
its audited consolidated financial
statements for its financial year ended 31st December,
2003;
(b) in relation to each Guarantor
(other than the Original Borrower, the
Parent, Cemex American Holdings B.V. and Cemex Shipping B.V.),
its
respective audited unconsolidated (and, to the extent available,
its
audited consolidated) financial statements for its financial
year
ended 31 December 2003;
(c) in relation to the Parent, its
audited consolidated financial
statements for its financial year ended 31 December 2003;
and
(d) in relation to any Additional
Borrower or Additional Guarantor, its
audited financial statements delivered pursuant to Schedule
7
(Additional Conditions Precedent).
"Original
Obligors" means the Original Borrower and the Original
Guarantors.
"Original
Sterling Amount" means:
(a) in relation to a Revolving
Advance, the amount specified in the
Notice of Drawdown relating thereto, as the same may be
reduced
pursuant to Clause 7.4 (Reduction of Available Revolving
Commitment)
or, if such Revolving Advance is not denominated in sterling,
the
equivalent of such amount (as the same may be so reduced)
in
Sterling as at the date of such Notice of Drawdown; and
(b) in relation to a Term
Advance:
(i) where such Advance
came into existence as a result of a
drawing under the Term Facility, the amount specified as
such in the Notice of Drawdown relating thereto, as the
same
may be reduced pursuant to Clause 3.3 (Reduction of
Available Term Commitment);
(ii) where
such Term Advance came into existence upon the
consolidation of two or more Term Advances, the aggregate
of
the Original Sterling Amounts of the Term Advances so
consolidated; and
(iii) where such
Term Advance came into existence upon the
division of a Term Advance, the amount specified as such
by
the Borrower pursuant to Clause 5.4 (Division of Term
Advances)
"Outlook" means
a rating outlook of the Parent with regard to the
Parent's
economic and/or fundamental business condition, as assigned by
a
Rating
Agency.
"Parent" means
CEMEX Espana, S.A.
"Participating
Member State" means any member state of the European
Union
that adopts or
has adopted the euro as its lawful currency at the
relevant time in
accordance with legislation of the European Union
relating to the
Economic and Monetary Union.
"Party" means a
party to this Agreement.
"Permitted
Notarisations" has the meaning ascribed to such term in
Clause
22.5
(Notarisation).
"Permitted
Securitisation" means a sale, transfer or other
securitisation
of receivables
and related assets by any member of the Group, including
a
sale at a
discount, provided that:
(a) such receivables have been
transferred, directly or indirectly, by
the originator hereof to a Special Purpose Vehicle in a manner
that
satisfies the requirements for an absolute conveyance, and
not
merely a pledge, under the laws and regulations of the
jurisdiction
in which such originator is organised;
(b) such Special Purpose Vehicle
issues notes, certificates or other
obligations which are to be repaid from collections and
other
proceeds of such receivables; and
(c) except for customary
representations, warranties, covenants and
indemnities, such sale, transfer or other securitisation is
carried
out on a non-recourse basis.
"Permitted
Security" has the meaning given to it in Clause 22.6
(Negative
pledge).
"Proportion"
means, in relation to a Bank:
(a) whilst no Advances are
outstanding, the proportion borne by its
Commitment to the Total Commitments (or, if the Total
Commitments
are then zero, by its Commitment to the Total
Commitments
immediately prior to their reduction to zero); or
(b) whilst at least one Advance is
outstanding, the proportion borne by
its share of the Sterling Amount of the Loan to the Sterling
Amount
of the Loan.
"Qualifying
Lender" means a Bank which is:
(a) a bank for the purposes of Section
349 of the Income and Corporation
Taxes Act 1988 which is within the charge to United
Kingdom
corporation tax as regards interest payable or paid to it under
this
Agreement and is beneficially entitled to such interest;
or
(b) not resident for tax purposes in
the United Kingdom but is a
financial institution which is resident in a country with which
the
United Kingdom has an appropriate double taxation treaty pursuant
to
which that financial institution is entitled to complete
exemption
from United Kingdom tax on interest and is entitled to apply
to
receive interest under this Agreement without withholding
or
deduction on account of tax and is beneficially entitled to
such
interest or is otherwise entitled to receive such interest
without
withholding or deduction on account of tax.
"Quotation Date"
means, in relation to any period for which an interest
rate is to be
determined under the Finance Documents, the day on which
quotations would
ordinarily be given by prime banks in the relevant
interbank market
for deposits in the currency in relation to which such
rate is to be
determined for delivery on the first day of that period,
provided that,
if, for any such period, quotations would ordinarily be
given on more
than one date, the Quotation Date for that period shall
be
the last of
those dates.
"Rating" means
at any time the solicited long term credit rating or the
senior implied
rating of the Parent or an issue of securities of or
guaranteed by
the Parent, where the rating is based primarily on the
senior unsecured
credit risk of the Parent and/or, in the case of the
senior implied
rating, on the characteristics of any particular issue,
assigned by a
Rating Agency.
"Rating Agency"
means Standard & Poors Corporation or Moody's
Investors
Service
Inc.
"Reference
Banks" means, in relation to LIBOR, EURIBOR and
Mandatory
Cost, the
principal London offices of The Royal Bank of Scotland plc,
BNP
Paribas and HSBC
Bank plc.
"Relevant
Period" has the meaning given to it in Clause 21
(Financial
Condition).
"Repayment Date"
means, in relation to any Revolving Advance, the last
day of the Term
thereof.
"Repeated
Representations" means each of the representations set out
in
Clause 19.1
(Status) to Clause 19.6 (Governing law and enforcement),
Clause 19.9 (No default),
paragraphs (a) and (b) of Clause 19.11
(Financial
statements), Clause 19.12 (Pari passu ranking), 19.13
(No
proceedings
pending or threatened), Clause 19.14 (No winding-up) and
Clause 19.15
(Material Adverse Change).
"Resignation
Notice" means, in relation to a Borrower, a notice
substantially in
the form set out in Part I of Schedule 8 (Form of
Resignation
Notice) and, in relation to a Guarantor, a notice
substantially in
the form set out in Part II of Schedule 8 (Form of
Resignation
Notice).
"Revolving
Advance" means an advance made or to be made by the
Banks
under the
Revolving Facility.
"Revolving
Availability Period" means in relation to the Revolving
Facility the
period from and including the Syndication Date to and
including the
date one month prior to the Revolving Termination Date.
"Revolving
Commitment" means, in relation to a Bank at any time and
save
as otherwise
provided herein, the amount set opposite its name under
the
heading
Revolving Commitment in Part I of Schedule 1 (The
Banks).
"Revolving
Facility" means the multicurrency revolving loan
facility
granted to the
Borrowers under paragraph (a) of Clause 2.1 (Grant of
the
Facilities).
"Revolving Loan"
means, at any time, the aggregate principal amount of
the outstanding
Revolving Advances.
"Revolving
Termination Date" means the day which is 72 months after
the
date
hereof.
"RMC Adjusted
EBITDA" has the meaning given to it in Clause 21
(Financial
Condition).
"RMC
Borrowing/EBITDA Ratio" means, at any time, the ratio as at the
end
of the last RMC
Relevant Period of RMC Consolidated Total Net Borrowings
as at the end of
that RMC Relevant Period to RMC Adjusted EBITDA for the
last RMC
Relevant Period.
"RMC Cemex
Capital Contributions" has the meaning given to it in
Clause
21 (Financial
Condition).
"RMC
Consolidated Net Worth" has the meaning given to it in Clause
21
(Financial
Condition).
"RMC
Consolidated Net Interest Payable" has the meaning given to it
in
Clause 21
(Financial Condition).
"RMC
Consolidated Total Net Borrowings" has the meaning given to it
in
Clause 21
(Financial Condition).
"RMC EBITDA" has
the meaning given to it in Clause 21 (Financial
Condition).
"RMC Group"
means RMC Group Limited and its Subsidiaries from time
to
time.
"RMC
Indebtedness for Borrowed Money" has the meaning given to it
in
Clause 21
(Financial Condition).
"RMC Relevant
Period" has the meaning given to it in Clause 21
(Financial
Condition).
"RMC Royalty
Expenses" has the meaning given to it in Clause 21
(Financial
Condition).
"RMC
Subordinated Debt" has the meaning given to it in Clause
21
(Financial
Condition).
"Rolling Basis"
has the meaning given to it in Clause 21 (Financial
Condition).
"Rollover
Advance" means a Revolving Advance which is used to refinance
a
maturing Revolving
Advance and which is the same amount or less and the
same currency as
such maturing Revolving Advance and is to be drawn on
the day such
maturing Revolving Advance is to be repaid.
"Royalty
Expenses" has the meaning given to it in Clause 21
(Financial
Condition).
"Security" means
a mortgage, charge, pledge, lien or other security
interest
securing any obligation of any person or any other agreement
or
arrangement
having a similar effect.
"Spain" means
the Kingdom of Spain.
"Spanish Public
Document" means any obligation in an Escritura Publica
or
documento
intervenido.
"Special Purpose
Vehicle" means a securitisation trust or fund, limited
liability
company, partnership or other special purpose person
established to
implement a securitisation of receivables, provided that
the business of
such person is limited to acquiring, servicing and
funding
receivables and related assets and activities incidental
thereto.
"Stake" means a
number of shares in any Group member held by another
Group member the
disposal of which would cause the first Group member to
cease to be a
Subsidiary of the second Group member.
"Sterling
Amount" means:
(a) in relation to an Advance, its
Original Sterling Amount as reduced
by the proportion (if any) of such Advance which has been
repaid;
and
(b) in relation to the Loan, the
aggregate of the Sterling Amounts of
the outstanding Advances.
"Subordinated
Debt" has the meaning given to it in Clause 21
(Financial
Condition).
"Subsidiary"
means in relation to any company or corporation, a
company
or
corporation:
(a) which is controlled, directly or
indirectly, by the first mentioned
company or corporation;
(a) more than half the issued share
capital of which is beneficially
owned, directly or indirectly by the first mentioned company
or
corporation; or
(b) which is a Subsidiary of another
Subsidiary of the first mentioned
company or corporation,
and for this
purpose, a company or corporation shall be treated as
being
controlled by
another if that other company or corporation is able to
direct its
affairs and/or to control the composition of its board
of
directors or
equivalent body.
"Syndication
Date" means the last day of the Syndication Period.
"Syndication
Letter" means the Syndication Letter dated on or about
the
date of this
Agreement between the Original Borrower, the Mandated
Lead
Arrangers and
the Banks originally party to this Agreement in relation
to
the syndication
process and other arrangements.
"Syndication
Period" has the meaning ascribed to it in the
Syndication
Letter.
"TARGET" means
Trans-European Automated Real-time Gross Settlement
Express Transfer
payment system.
"TARGET DAY"
means any day on which TARGET is open for settlement of
payments in
euro.
"Term" means,
save as otherwise provided herein, in relation to any
Revolving
Advance, the period for which such Revolving Advance is
borrowed, as
specified in the Notice of Drawdown relating thereto.
"Term Advance"
means an advance (as from time to time consolidated,
divided or
reduced by repayment) made or to be made by the Banks
under
the Term
Facility.
"Term
Availability Period" means, in relation to the Term Facility,
the
period from and
including the Syndication Date to and including the date
90 days after
the Syndication Date.
"Term
Commitment" means, in relation to a Bank at any time and save
as
otherwise
provided herein, the amount set opposite its name under
the
heading Term
Commitment in Part I of Schedule 1 (The Banks).
"Term Facility"
means the multicurrency term loan facility granted to
the
Borrower under
paragraph (b) of Clause 2.1 (Grant of the Facilities).
"Term Loan"
means, at any time, the, aggregate principal amount of
outstanding Term
Advances.
"Term Repayment
Date" means each of the dates set out in Clause 12
(Repayment of
the Term Facility) including the Final Term Repayment
Date.
"Total
Borrowings" has the meaning given to it in Clause 21
(Financial
Condition).
"Total
Commitments" means, at any time, the aggregate of the
Banks'
Commitments.
"Transfer Certificate" means a certificate substantially
in
the form set out
in Schedule 2 (Form of Transfer Certificate) signed by a
Bank and a Transferee
under which:
(a) such Bank seeks to procure the
transfer to such Transferee of all or
a part of such Bank's rights, benefits and obligations under
the
Finance Documents upon and subject to the terms and conditions
set
out in Clause 34.3 (Assignments and Transfers by Banks);
and
(b) such Transferee undertakes to
perform the obligations it will assume
as a result of delivery of such certificate to the Agent
as
contemplated in Clause 34.5 (Transfers by Banks).
"Transfer Date"
means, in relation to any Transfer Certificate, the date
for the making
of the transfer as specified in such Transfer
Certificate.
"Transferee"
means a person to which a Bank seeks to transfer by
novation
all or part of
such Bank's rights, benefits and obligations under the
Finance
Documents.
"Unpaid Sum"
means the unpaid balance of any of the sums referred to
in
Clause 27.1
(Default Interest Periods).
1.2 Interpretation
Any reference in
this Agreement to:
an "affiliate"
means in relation to any person, a Subsidiary of that
person or a
Holding Company of that person or any other Subsidiary
of
that Holding
Company;
the "Agent", any
"Bank" or any "Mandated Lead Arranger" shall be
construed so as
to include its and any subsequent successors and
permitted
transferees in accordance with their respective
interests;
a document being
in an "agreed form" means that document in the form
initialled by or
on behalf of the Parent and the Agent;
"continuing", in
relation to an Event of Default, shall be construed as a
reference to an
Event of Default which has not been waived in accordance
with the terms
hereof and, in relation to a Default, one which has not
been remedied
within the relevant grace period or waived in accordance
with the terms
hereof;
the "equivalent"
on any date in one currency (the "first currency") of an
amount
denominated in another currency (the "second currency") is
a
reference to the
amount of the first currency which could be purchased
with the amount
of the second currency at the spot rate of exchange
quoted by the
Agent at or about 11.00 a.m. on such date for the
purchase
of the first
currency with the second currency;
"indebtedness"
shall be construed so as to include any obligation
(whether
incurred as principal or as surety) for the payment or
repayment
of money,
whether present or future, actual or contingent;
a "law" shall be
construed as any law (including common or customary
law), statute,
constitution, decree, judgment, treaty, regulation,
directive,
bye-law, order or any other legislative measure of any
government,
supranational, local government, statutory or regulatory
body
of
court;
a "member state"
shall be construed as a reference to a member state of
the European
Union;
a "month" is a
reference to a period starting on one day in a calendar
month and ending
on the numerically corresponding day in the next
succeeding
calendar month save that:
(a) if any such numerically
corresponding day is not a Business Day,
such period shall end on the immediately succeeding Business Day
to
occur in that next succeeding calendar month or, if none, it
shall
end on the immediately preceding Business Day; and
if there is no numerically corresponding day in that next
succeeding
calendar month, that period shall end on the last Business Day
in
that next succeeding calendar month.
The above rules will only apply to the last month of any period.
All
references to months and monthly shall be construed
accordingly.
a "person" shall
be construed as a reference to any person, firm,
company,
corporation, government, state or agency of a state or
any
association or
partnership (whether or not having separate legal
personality) of
two or more of the foregoing;
"repay" (or any
derivative form thereof) shall, subject to any contrary
indication, be
construed to include prepay (or, as the case may be, the
corresponding
derivative form thereof);
a "successor"
shall be construed so as to include an assignee or
successor in
title of such party and any person who under the laws of
its
jurisdiction of
incorporation or domicile has assumed the rights and
obligations of
such party under this Agreement or to which, under such
laws, such
rights and obligations have been transferred;
"tax" shall be
construed so as to include any tax, levy, impost, duty
or
other charge of
a similar nature (including any penalty or interest
payable in
connection with any failure to pay or any delay in paying
any
of the same) of
any jurisdiction;
"VAT" shall be
construed as a reference to value added tax including
any
similar tax
which may be imposed in place thereof from time to time
of
any
jurisdiction;
a "wholly-owned
Subsidiary" of a company or corporation shall be
construed as a
reference to any company or corporation which has no
other
members except
that other company or corporation and that other
company's
or corporation's
wholly-owned Subsidiaries or persons acting on behalf of
that other
company or corporation or its wholly-owned Subsidiaries;
and
the
"winding-up", "dissolution" or "administration" of a company
or
corporation
shall be construed so as to include any equivalent or
analogous
proceedings under the law of the jurisdiction in which
such
company or
corporation is incorporated or any jurisdiction in which
such
company or
corporation carries on business including the seeking of
liquidation,
bankruptcy, winding-up, reorganisation, dissolution or
administration.
1.3 Currency Symbols and
Definitions
(a) (pound) and sterling denote lawful
currency of the United Kingdom;
US$ and US dollars denote lawful currency of the United States
of
America; A$ and Australian dollars denote lawful currency of
the
Commonwealth of Australia; Swiss francs denotes lawful currency
of
Switzerland; and Japanese yen denotes lawful currency of
Japan.
(b) euro, (euro) and EUR means the
single currency of the Participating
Member States.
1.4 Agreements and Statutes
Any reference in
this Agreement to:
(a) this Agreement or any other
agreement or document shall be construed
as a reference to this Agreement or, as the case may be, such
other
agreement or document as the same may have been, or may from time
to
time be, amended, varied, novated or supplemented; and
(b) a statute or treaty shall be
construed as a reference to such
statute or treaty as the same may have been, or may from time
to
time be, amended or, in the case of a statute,
re-enacted.
1.5 Headings
Clause and
Schedule headings are for ease of reference only.
1.6 Time
Any reference in
this Agreement to a time of day shall, unless a
contrary
indication appears, be a reference to London time.
1.7 Third Party Rights
A person who is
not a Party has no right under the Contracts (Rights of
Third Parties)
Act 1999 to enforce or enjoy the benefit of any term of
this Agreement
other than any director, officer or employee of the
Agent
or the Mandated
Lead Arrangers as referred to in, and for the purposes
of, Clause 33.7
(No Actions).
2. THE FACILITIES
2.1 Grant of the Facilities
The Banks grant
to the Borrowers, upon the terms and subject to the
conditions
hereof:
(a) a multicurrency revolving loan
facility in an aggregate amount of
(pound)425,558,038 or its equivalent from time to time in
Optional
Currencies; and
(b) a multicurrency term loan facility
in an aggregate amount of
(pound)178,796,154 or its equivalent from time to time in
Optional
Currencies.
2.2 Purpose and Application of the
Term Facility The proceeds of each Term
Advance will be
applied in or towards:
(a) refinancing the Existing
Facilities; and/or
(b) general corporate
purposes
and none of the
Finance Parties shall be obliged to concern themselves
with such
application.
2.3 Purpose and Application of the
Revolving Facility
The Revolving
Facility is intended for general corporate purposes and,
accordingly,
each Borrower shall apply all amounts raised by it
hereunder
in or towards
satisfaction of its general corporate purposes and none
of
the Finance
Parties shall be obliged to concern themselves with such
application.
2.4 Conditions Precedent
Save as the
Banks may otherwise agree, none of the Borrowers may
deliver
any Notice of
Drawdown requesting a Term Advance or a Revolving
Advance
unless:
(a) the Agent has confirmed to the
Original Borrower and the Banks that
it has received all of the documents and other evidence listed
in
Schedule 3 (Conditions Precedent) and that each is, in form
and
substance, satisfactory to the Agent; and
(b) the Syndication Period has
expired.
2.5 Banks' Obligations
Several
The obligations
of each Bank are several and the failure by a Bank to
perform its
obligations hereunder shall not affect the obligations of
an
Obligor towards
any other party hereto nor shall any other party be
liable for the
failure by such Bank to perform its obligations
hereunder.
2.6 Banks' Rights Several
The rights of
each Bank are several and any debt arising hereunder at
any
time from an
Obligor to any of the other parties hereto shall be a
separate and
independent debt. Each such party shall be entitled to
protect and
enforce its individual rights arising out of this
Agreement
independently of
any other party (so that it shall not be necessary for
any party hereto
to be joined as an additional party in any proceedings
for this
purpose).
3. UTILISATION OF THE TERM
FACILITY
3.1 Drawdown Conditions for Term
Advances
A Term Advance
will be made by the Banks to a Borrower if:
(a) not less than one Business Day, in
the case of any Term Advance to
be denominated in sterling, or three Business Days, in the case
of
any Term Advance to be denominated in an Optional Currency,
before
the proposed date for the making of such Term Advance, the Agent
has
received a completed Notice of Drawdown from such
Borrower;
(b) the proposed date for the making
of such Term Advance is a Business
Day within the Term Availability Period;
(c) the proposed Original Sterling
Amount of such Term Advance is (a)
(if less than the Available Term Facility) a minimum amount
of
(pound)25,000,000 and an integral multiple of (pound)5,000,000
or
(b) equal to the amount of the Available Term Facility;
(d) there would not, immediately after
the making of such Term Advance,
be more than six Term Advances outstanding; and
(e) on and as of the proposed date for
the making of such Term Advance
(i) no Event of Default or Default is continuing or would
result
from the proposed Term Advance and (ii) the Repeated
Representations
are true in all material respects.
3.2 Each Bank's Participation in Term
Advances
Each Bank will
participate through its Facility Office in each Term
Advance made
pursuant to Clause 3.1 (Drawdown Conditions for Term
Advances) in the
proportion borne by its Available Term Commitment to the
Available Term
Facility immediately prior to the making of that Term
Advance.
3.3 Reduction of Available Term
Commitment
If a Bank's
Available Term Commitment is reduced in accordance with
the
terms hereof
after the Agent has received the Notice of Drawdown for
a
Term Advance and
such reduction was not taken into account in the
Available Term
Facility, then both the Original Sterling Amount and the
amount of that
Term Advance shall be reduced accordingly.
4. MULTICURRENCY
OPTION
4.1 Borrower's Request for Optional
Currency
If a Term
Advance has been or is to be made to a Borrower, the
relevant
Borrower may,
not later than three Business Days before the first day
of
an Interest
Period, request (by notice to the Agent) that any Term
Advance be
denominated in any Optional Currency during such
Interest
Period, in which
event such Term Advance shall, subject to Clause 4.2
(Conditions for
Denominating a Term Advance in an Optional Currency), be
denominated in
such Optional Currency. If the relevant Borrower does
not
make such a
request, each Term Advance shall be denominated in the
currency in which it was
denominated during the preceding Interest
Period.
4.2 Conditions for Denominating a Term
Advance in an Optional Currency
If a Term
Advance is to be denominated in an Optional Currency during
any
Interest Period
relating thereto, but:
(a) no later than one hour after the
time at which the rate is to be
determined on the Quotation Date for such Interest Period, the
Agent
notifies the relevant Borrower and the Banks that the Agent is
of
the opinion by reason of circumstances affecting the
London
interbank market generally that it is not feasible for such
Term
Advance to be made in such Optional Currency or, as the case may
be,
denominated in such Optional Currency; or
(b) to give effect to such request
would cause the Term Loan to be
denominated in more than four Optional Currencies,
the agent shall
notify the relevant Borrower and the Banks and such Term
Advance shall be
denominated in sterling in an amount equal to the
Original
Sterling Amount.
4.3 Amounts of Term
Advances
The amount of a
Term Advance during an Interest Period relating thereto
(in determining
which it shall be assumed that any part of such Term
Advance falling
to be repaid on or before the last day of the preceding
Interest Period,
if any, relating thereto is duly repaid) shall be:
(a) the Sterling Amount of such Term
Advance if such Term Advance is to
be denominated in sterling during such Interest Period;
or
(b) if such Term Advance is to be
denominated in an Optional Currency,
the amount of such Optional Currency which could be purchased
with
the Sterling Amount of such Term Advance at the spot rate
of
exchange quoted by the Agent at or about 11.00 a.m. on the
third
Business Day preceding the first day of such Interest Period for
the
purchase of such Optional Currency with sterling,
provided that if
a Term Advance is to be denominated in the same Optional
Currency during
two successive Interest Periods and the amount of such
Term Advance,
calculated in accordance with paragraph (b), is no more
than five per
cent. higher or lower than its Existing Amount, its New
Amount shall be
its Existing Amount.
4.4 Currency Change
If a Term
Advance is to be denominated in different currencies during
two
successive
Interest Periods, then, on the last day of the first of
those
Interest
Periods:
(a) each Bank shall pay an amount
equal to its portion of the New Amount
of such Term Advance to the Agent, who shall hold the same on
behalf
of such Bank;
(b) the Agent shall:
(i)
apply the amount so made available to it by each Bank in
or
towards the purchase of such Bank's portion of the
Existing
Amount of such Term Advance and pay the amount so
purchased
to such Bank; and
(ii) pay any portion of the
amount made available to it by the
Banks and not applied in accordance with paragraph (b)(i)
to
the relevant Borrower or, if a Default or an Event of
Default shall have occurred and the Agent or an
Instructing
Group so determines, to the Banks, any amount so paid to
the
Banks being treated as if it were a prepayment made by
the
relevant Borrower, in respect of a Term Advance, under
Clause 13.2 (Prepayment of the Term Loan)); and
(c) the relevant Borrower shall pay to
the Agent for the account of each
Bank a sum equal to the amount (if any) by which such Bank's
share
of the Existing Amount of such Term Advance exceeds the
portion
thereof purchased by the Agent pursuant to paragraph
(b)(i).
4.5 Same Currency
Subject to
Clause 4.3 (Amounts of Term Advances), if a Term Advance is
to
be denominated
in the same Optional Currency during two successive
Interest Periods
and there is any difference between the Existing Amount
of such Term
Advance and its New Amount, then, on the last day of the
first of those
Interest Periods:
(a) if the Existing Amount of such
Term Advance exceeds its New Amount,
the relevant Borrower shall pay to the Agent for the account of
the
Banks an amount equal to the amount of such excess; or
(b) if the New Amount of such Term
Advance exceeds its Existing Amount:
(i)
each Bank shall pay to the Agent for the account of the
relevant Borrower an amount equal to its portion of the
amount of such excess; or
(ii) if a
Default or an Event of Default shall have occurred and
the Agent or an Instructing Group so determines, no such
payments shall be made and a sum equal to the aggregate
amount which would have been so payable shall be treated
as
having been prepaid by the relevant Borrower, in respect
of
a Term Advance, under Clause 13.2 (Prepayment of the
Term
Loan).
5. INTEREST PERIODS FOR TERM
ADVANCES
5.1 Interest Periods for Term
Advances
The period for
which a Term Advance is outstanding shall be divided
into
successive
periods each of which (other than the first, which shall
begin
on the day such
Term Advance is made) shall start on the last day of the
preceding such
period.
5.2 Duration of Interest Periods for
Term Advances
The duration of
each Interest Period in respect of a Term Advance shall,
save as
otherwise provided herein, be one, two, three or six months,
in
each case as the
Borrower to which such Term Advance is made may by not
less than one
Business Day's, in the case of any Term Advance
denominated
in sterling, or
three Business Days', in the case of any Term Advance
denominated in
an Optional Currency, prior notice to the Agent select,
provided
that:
(a) if such Borrower fails to give
such notice of its selection in
relation to an Interest Period, the duration of that Interest
Period
shall, subject to paragraph (b), be one month; and
(b) any Interest Period which would
otherwise end during the month
preceding, or extend beyond, a Term Repayment Date shall be of
such
duration that it shall end on such Term Repayment Date.
5.3 Consolidation of Term
Advances
If two or more
Interest Periods relating to Term Advances denominated
in
the same
currency and borrowed by the same Borrower end at the same
time
then, on the
last day of those Interest Periods, the Term Advances to
which they
relate shall be consolidated into and treated as a single
Term
Advance.
5.4 Division of Term
Advances
The Borrower to
which such Term Advance is made may, by not less than
one
Business Day's,
in the case of any Term Advance denominated in sterling,
or three
Business Days', in the case of any Term Advance denominated
in
an Optional
Currency, prior notice to the Agent, direct that any
Term
Advance shall,
at the beginning of any Interest Period relating
thereto,
be divided into
(and thereafter, save as otherwise provided herein,
treated in all
respects as) two or more Term Advances having such
Original
Sterling Amounts (in aggregate, equalling the Sterling Amount
of
the Term Advance
being so divided) as shall be specified by such Borrower
in such notice,
provided that such Borrower shall not be entitled to
make
such a direction
if:
(a) as a result of so doing, there
would be more than six outstanding
Term Advances; or
(b) any Term Advance thereby coming
into existence would have an
Original Sterling Amount of less than (pound)25,000,000.
5.5 Consolidated and Divided Term
Advances
For the purpose
of Clause 4 (Multicurrency Option), a Term Advance which
comes into
existence upon the consolidation of two or more existing
Term
Advances or the
division of an existing Term Advance shall be treated as
having existed
prior to the date on which it comes into existence and:
(a) in the case of a consolidated Term
Advance, having an amount equal
to the aggregate of the amounts of the Term Advances so
consolidated;
(b) in the case of a divided Term
Advance, having an amount equal to the
portion of the Term Advance so divided which bears the
same
proportion to the amount of the Term Advance so divided as
the
Sterling Amount of the Term Advance coming into existence bears
to
the Sterling Amount of the Term Advance so divided.
6. PAYMENT AND CALCULATION OF
INTEREST ON TERM ADVANCES
6.1 Payment of Interest
On the last day
of each Interest Period relating to a Term Advance (and,
if the Interest
Period of such Term Advance exceeds six months, on the
expiry of each
period of six months during that Interest Period) the
Borrower to
which such Term Advance has been made shall pay accrued
interest on the
Term Advance to which such Interest Period relates.
6.2 Calculation of Interest
The rate of
interest applicable to a Term Advance from time to time
during an
Interest Period relating thereto shall be the rate per
annum
which is the sum
of:
(a) the relevant Margin from time to
time during such period;
(b) the Mandatory Cost in respect
thereof at such time; and
(c) LIBOR, or in relation to any Term
Advance in euro, EURIBOR on the
Quotation Date therefor.
7. UTILISATION OF THE REVOLVING
FACILITY
7.1 Drawdown Conditions for Revolving
Advances
A Revolving
Advance will be made by the Banks to a Borrower if:
(a) not more than one Business Day, in
the case of any Revolving Advance
denominated in sterling, or three Business Days, in the case of
any
Revolving Advance denominated in an Optional Currency, before
the
proposed date for the making of such Revolving Advance, the
Agent
has received a completed Notice of Drawdown from such
Borrower;
(b) the proposed date for the making
of such Revolving Advance is a
Business Day within the Revolving Availability Period;
(c) the proposed Original Sterling
Amount of such Revolving Advance is
(i) (if less than the Available Revolving Facility) a minimum
amount
of (pound)25,000,000 and an integral multiple of (pound)5,000,000
or
(ii) equal to the amount of the Available Revolving
Facility;
(d) the proposed Term of the Revolving
Advance requested is a period of
one, two, three or six months or such other period as the Banks
may
agree in each case ending on or before the Revolving
Termination
Date;
(e) there would not, immediately after
the making of such Revolving
Advance, be more than ten Revolving Advances
outstanding;
(f) on and as of the proposed date for
the making of such Revolving
Advance, (i) no Event of Default or (save in relation to a
Rollover
Advance) Default is continuing or would result from the
proposed
Revolving Advance and (ii) the Repeated Representations are true
in
all material respects,
then, save as
otherwise provided herein, such Revolving Advance will
be
made in
accordance with the provisions hereof.
7.2 Conditions for Denominating a
Revolving Advance in an Optional
Currency If a
Borrower requests that a Revolving Advance be
denominated
in an Optional
Currency but:
(a) no later than one hour after the
time at which the rate is to be
determined on the Quotation Date for such Revolving Advance,
the
Agent notifies the relevant Borrower and the Banks that, by
reason
of circumstances affecting the London interbank market
generally,
the Agent is of the opinion that it is not feasible for
such
Revolving Advance to be denominated in such Optional Currency;
or
(b) to give effect to such request
would cause the Revolving Loan to be
denominated in more than four Optional Currencies,
the Agent shall
notify the relevant Borrower and the Banks and such
Revolving Advance shall be
denominated in sterling.
7.3 Each Bank's Participation in
Revolving Advances
Each Bank will
participate through its Facility Office in each
Revolving
Advance made
pursuant to this Clause 7 in the proportion borne by its
Available
Revolving Commitment to the Available Revolving Facility
immediately
prior to the making of that Revolving Advance.
7.4 Reduction of Available Revolving
Commitment
If a Bank's
Revolving Commitment is reduced in accordance with the
terms
hereof after the
Agent has received the Notice of Drawdown for a
Revolving
Advance and such reduction was not taken into account in
the
Available
Revolving Facility, then both the Original Sterling Amount
and
the amount of
that Revolving Advance shall be reduced accordingly.
8. PAYMENT AND CALCULATION OF
INTEREST ON REVOLVING ADVANCES
8.1 Payment of Interest
On the Repayment
Date relating to each Revolving Advance (and, if the
Term of such
Revolving Advance exceeds six months, on the expiry of
each
period of six
months during such Term) the Borrower to which such
Revolving
Advance has been made shall pay accrued interest on that
Revolving
Advance.
8.2 Calculation of Interest
The rate of
interest applicable to a Revolving Advance from time to
time
during its Term
shall be the rate per annum which is the sum of:
(a) the relevant Margin from time to
time during such period;
(b) the Mandatory Cost; and
(c) LIBOR or, in relation to any
Revolving Advance in euro, EURIBOR on
the Quotation Date therefor.
9. MARKET DISRUPTION AND
ALTERNATIVE INTEREST RATES
9.1 Market Disruption
If, in relation
to any Advance:
(a) LIBOR or, if applicable, EURIBOR
is to be determined by reference to
Reference Banks and at or about the time at which the rate is to
be
determined on the Quotation Date for the relevant Interest Period
or
Term none or only one of the Reference Banks supplies a rate for
the
purpose of determining LIBOR or, if applicable, EURIBOR for
the
relevant Interest Period or Term; or
(b) before the close of business in
London on the Quotation Date for
such Advance the Agent has been notified by a Bank or each of
a
group of Banks to whom in aggregate thirty-five per cent. or more
of
such Advance is owed (or, in the case of an undrawn Advance,
if
made, would be owed) that LIBOR or, if applicable, EURIBOR does
not
accurately reflect the cost of funding its participation in
such
Advance,
then, the Agent
shall notify the Parent, the relevant Borrower and the
Banks of such
event and, notwithstanding anything to the contrary in
this
Agreement, Clause 9.2
(Substitute Interest Period and Interest Rate)
shall apply to
such Advance.
9.2 Substitute Interest Period and
Interest Rate
If paragraph (a)
of Clause 9.1 (Market Disruption) applies to an Advance,
the duration of
the relevant Interest Period or Term shall be one month
or, if less,
such that it shall end on a Term Repayment Date (in the
case
of a Term
Advance) or the Revolving Termination Date (in the case of
a
Rollover
Advance). If either paragraph (a) or (b) of Clause 9.1
(Market
Disruption)
applies to an Advance, the rate of interest applicable
to
such Advance
during the relevant Interest Period or Term shall
(subject
to any agreement
reached pursuant to Clause 9.3 (Alternative Rate)) be
the rate per
annum which is the sum of:
(a) the Margin at such
time;
(b) the Mandatory Cost; and
(c) the rate per annum determined by
the Agent to be the arithmetic mean
(rounded upwards to four decimal places) of the rates notified
by
each Bank to the Agent before the last day of the relevant
Interest
Period or Term to be those which express as a percentage rate
per
annum the cost to each Bank of funding from whatever sources it
may
reasonably select its portion of such Advance during such
Interest
Period or Term.
9.3 Alternative Rate
If (a) either of
those events mentioned in paragraph (a) and (b) of
Clause 9.1
(Market Disruption) occurs in relation to an Advance or (b)
by
reason of
circumstances affecting the London interbank market during
any
period of three
consecutive Business Days LIBOR is not available for
sterling to
prime banks in the London interbank market, then if the
Agent
or the Parent so
requires, the Agent and the Parent shall enter into
negotiations
(for a period of not more than 30 days) with a view to
agreeing a
substitute basis (i) for determining the rates of
interest
from time to
time applicable to the Advances and/or (ii) upon which
the
Advances may be
maintained (whether in sterling or some other currency)
thereafter and
any such substitute basis that is agreed shall take
effect
in accordance
with its terms and be binding on each party hereto,
provided that
the Agent may not agree any such substitute basis
without
the prior
consent of each Bank.
10. NOTIFICATION
10.1 Advances
Not less than
three Business Days, in the case of any Advance
denominated
in an Optional
Currency, or one Business Day, in the case of any
Advance
denominated in
sterling, before the first day of an Interest Period or
Term, the Agent
shall notify each Bank of:
(a) the Facility that is to be
utilised and the name of the Borrower;
(b) the proposed Sterling Amount of
the relevant Advance;
(c) the proposed length of the
relevant Interest Period or Term;
(d) whether or not such Advance is to
be denominated in an Optional
Currency (and, if so, the amount of such Advance in the
relevant
Optional Currency); and
(e) the aggregate principal amount of
the relevant Advance allocated to
such Bank pursuant to Clause 7.3 (Each Bank's Participation
in
Revolving Advances), or Clause 3.2 (Each Bank's Participation
in
Term Advances).
10.2 Interest Rate
Determination
The Agent shall
promptly notify the relevant Borrower and the Banks of
each
determination of LIBOR, EURIBOR, the Margin, the Mandatory Cost
and
other costs, if any.
10.3 Changes to Advances or
Interest Rates
The Agent shall
promptly notify the relevant Borrower and the Banks of
any change to
(a) the proposed currency of an Advance occasioned by
the
operation of
Clause 7.2 (Conditions for Denominating a Revolving
Advance
in an Optional
Currency) or Clause 4.2 (Conditions for Denominating a
Term Advance in
an Optional Currency), (b) the proposed length of an
Interest Period
or Term or (c) any interest rate occasioned by the
operation of
Clause 9 (Market Disruption and Alternative Interest
Rates).
11. REPAYMENT OF THE REVOLVING
FACILITY
The Borrower
shall repay the Revolving Advance made to it in full on
the
Repayment Date
relating thereto.
12. REPAYMENT OF THE TERM
FACILITY
The Parent shall
procure (and each Borrower which has drawn a Term
Advance shall
repay its share of the Term Loan in order to ensure)
that
the Term Loan is
repaid in full by the Final Term Repayment Date and in
part by each
Term Repayment Date set out in the table below by the
aggregate amount
set beside that Term Repayment Date in the table below.
---------------------------------------
------------------------------------
Term Repayment Date
Aggregate Amount of Term Loan
to have been repaid
---------------------------------------
------------------------------------
36 months from 18
October 2002
(pound) 5,192,673
---------------------------------------
------------------------------------
48 months from 18
October 2002
(pound) 63,060,500
---------------------------------------
------------------------------------
60 months from 18
October 2002
(pound) 178,796,154
---------------------------------------
------------------------------------
13. CANCELLATION AND
PREPAYMENT
13.1 Cancellation of the Term
Facility
The Parent may,
by giving to the Agent not less than five Business Days'
prior notice to
that effect, cancel the whole or any part (being an
amount or
integral multiple of (pound)50,000,000) of the Available
Term
Facility. Any
such cancellation shall reduce the Available Term
Commitment and
Term Commitment of the Banks rateably.
13.2 Prepayment of the Term
Loan
The Borrower to
which a Term Advance has been made may, if it has given
to the Agent not
less than five Business Days' prior notice to that
effect and
subject always to the provisions of Clause 27.4 (Break
Costs),
prepay the whole
of any Term Advance or any part of any Term Advance
(being an amount
such that the Sterling Amount of the Term Advance will
be reduced by an
amount or integral multiple of (pound)50,000,000).
13.3 Cancellation of the
Revolving Facility
The Parent may,
by giving to the Agent not less than five Business Days'
prior notice to
that effect, cancel the whole or any part (being an
amount or
integral multiple of (pound)50,000,000) of the Available
Revolving
Facility. Any such cancellation shall reduce the
Sterling
Amount of the
Available Revolving Commitment and Revolving Commitment
of
each Bank
rateably.
13.4 Prepayment of the
Revolving Loan
The Borrower to
which a Revolving Advance has been made may, by giving
to
the Agent not
less than five Business Days' prior notice to that
effect
and subject
always to the provisions of Clause 27.4 (Break Costs),
prepay
the whole or any
part of a Revolving Advance (being an amount such that
the Sterling
Amount of the Revolving Loan will be reduced by an amount
or
integral
multiple of (pound)50,000,000).
13.5 Notice of Cancellation
or Prepayment
Any notice of
cancellation or prepayment given by a Borrower pursuant
to
this Clause 13.5
shall be irrevocable, shall specify the date upon which
such
cancellation or prepayment is to be made and the amount of
such
cancellation or
prepayment and, in the case of a notice of prepayment,
shall oblige the
relevant Borrower to make such prepayment on such date.
13.6 Repayment of a Bank's
Share of the Loan
If:
(a) any sum payable to any Bank by an
Obligor is required to be
increased pursuant to Clause 14.1 (Tax Gross-up); or
(b) any Bank claims indemnification
from the Parent under Clause 14.2
(Tax Indemnity) or Clause 16.1 (Increased Costs),
the Parent may,
whilst such circumstance continues, give the Agent at
least ten
Business Days' notice (which notice shall be irrevocable)
of
its intention to
procure the repayment of such Bank's share of the loan.
If the Parent
gives such notice to the Agent, each Borrower to which
an
Advance has been
made shall repay such Bank's portion of the Advance to
which such
Interest Period or Term relates, subject always to the
provisions of
Clause 27.4 (Break Costs). Any repayment of a Term
Advance
so made after
the last day of the Term Availability Period shall
reduce
rateably the
obligation under Clause 12 (Repayment of the Term
Facility)
on a pro rata
basis.
13.7 No Further
Advances
A Bank for whose
account a repayment is to be made under Clause 13.6
(Repayment of a
Bank's Share of the Loan) shall not be obliged to
participate in
the making of Advances on or after the date upon which
the
Agent receives
the Parent's notice of its intention to procure the
repayment of
such Bank's share of the Loan, and such Bank's Available
Revolving
Commitment and Available Term Commitment shall be reduced
to
zero.
13.8 Mandatory Prepayment on
Change of Control
(a) If any person or group of
connected persons which does not at the
Effective Date have direct or indirect control of RMC Group
Limited
acquires such control then:
(i)
the Parent will give notice of that event to the Agent
promptly on becoming aware thereof;
(ii)
following receipt of that notice, or if any Bank
otherwise
becomes aware of such an event and notifies the Agent,
the
Agent (acting on the instructions of an Instructing
Group)
will enter into negotiations with the Parent in good
faith
for a period not exceeding 30 days (the Negotiation
Period)
as to the terms on which the Banks may be prepared
(without
obligation) to continue to provide financing facilities
to
the Borrowers (the "Revised Terms"); and
(iii) during the
Negotiation Period, no further Advances (other
than Rollover Advances) may be made.
(b) If the Revised Terms have not been
agreed within 5 days of the end
of the Negotiation Period, the Agent may (after receipt of a
notice
from a Bank that it is not prepared to continue to provide
financing
facilities on the Revised Terms) give notice to the Parent that
such
Bank is exercising its rights under this Clause 13.8
whereupon:
(i)
all Commitments of such Bank shall immediately be
cancelled;
and
(ii) all
outstanding Advances of such Bank shall become due and
payable and shall be repaid by the relevant Borrowers
together with accrued interest and all other amounts
payable
by the Borrowers hereunder within 5 days of the date of
such
notice.
(c) For the purpose of this Clause
13.8, control and connected person
shall respectively be construed in accordance with Section 416
and
Section 839 of the Income and Corporation Taxes Act
1988.
13.9 No Other
Repayments
The Borrowers
shall not repay all or any part of the Loan except at
the
times and in the
manner expressly provided for in this Agreement.
13.10 No Reborrowing of the Term
Facilities
None
of the Borrowers shall be entitled to reborrow any amount of
the
Term
Facility which is repaid.
14. TAXES
14.1 Tax Gross-up
All
payments to be made by an Obligor to any Finance Party under
the
Finance
Documents shall be made free and clear of and without
deduction
for or on
account of tax unless such Obligor is required to make such
a
payment
subject to the deduction or withholding of tax, in which
case
the sum
payable by such Obligor (in respect of which such deduction
or
withholding is required to be made) shall, subject to Clause
14.3
(Excluded
Claims), be increased to the extent necessary to ensure
that
such
Finance Party receives a sum net of any deduction or
withholding
equal to
the sum which it would have received had no such deduction
or
withholding been made or required to be made.
14.2 Tax Indemnity
Without
prejudice to Clause 14.1 (Tax Gross up), but subject to
Clause
14.3
(Excluded Claims), if any Finance Party is required to make
any
payment of
or on account of tax on or in relation to any sum received
or
receivable
under the Finance Documents (including any sum deemed
for
purposes
of tax to be received or receivable by such Finance
Party
whether or
not actually received or receivable) or if any liability
in
respect of
any such payment is asserted, imposed, levied or
assessed
against
any Finance Party, the Parent shall, upon demand of the
Agent,
promptly
indemnify the Finance Party which suffers a loss or
liability
as a
result against such payment or liability, together with
any
interest,
penalties, costs and expenses payable or incurred in
connection
therewith, provided that this Clause 14.2 shall not apply
to:
(a) any
tax imposed on and calculated by reference to the net
income
actually received or receivable by such Finance Party (but, for
the
avoidance of doubt, not including any sum deemed for purposes of
tax
to be received or receivable by such Finance Party but not
actually
receivable) by the jurisdiction in which such Finance Party
is
incorporated or resident for tax purposes; or
(b) any
tax imposed on and calculated by reference to the net income
of
the Facility Office of such Finance Party actually received
or
receivable by such Finance Party (but, for the avoidance of
doubt,
not including any sum deemed for purposes of tax to be received
or,
receivable by such Finance Party but not actually receivable) by
the
jurisdiction in which its Facility Office is located.
14.3 Excluded Claims
If any
Bank is not or ceases to be a Qualifying Lender, no Obligor
shall
be liable
to pay to that Bank under Clause 14.1 (Tax Gross-up) or
Clause
14.2 (Tax
Indemnity) any amount in respect of taxes levied or imposed
in
excess of
the amount it would have been obliged to pay if that Bank
had
been or
had not ceased to be a Qualifying Lender provided that
this
Clause
14.3 shall not apply (and each Obligor shall be obliged to
comply
with its obligations
under Clause 14.1 (Tax Gross-up) or, as the case
may be,
Clause 14.2 (Tax Indemnity)) if:
(a) after
the date hereof, there shall have been any introduction
of,
change in, or change in the interpretation, administration
or
application of, any law or regulation or order or governmental
rule
or treaty or any published practice or published concession of
any
applicable tax authority and as a result thereof such Bank ceased
to
be a Qualifying
Lender; or
(b) such
Bank is not or ceases to be a Qualifying Lender as a result
of
the actions of or omission to act by any Obligor; or
(c) the
relevant Obligor would be required to make a deduction
or
withholding in respect of tax irrespective of whether the Bank is
or
is not a Qualifying Lender.
14.4 Double Taxation Relief
If, and to
the extent that, the effect of Clause 14.1 (Tax Gross-up)
or
Clause
14.2 (Tax Indemnity) can be mitigated by virtue of the
provisions
of any
applicable double tax convention entered into by an
Obligor's
jurisdiction of incorporation or the jurisdiction through which
an
Obligor is
borrowing under this Agreement (whether by claim to
repayment
of any
taxes referred to in Clause 14.1 (Tax Gross up) or Clause
14.2
(Tax
Indemnity) or otherwise) each Bank and the Agent agrees to
co
operate
with the relevant Obligor with a view to submitting any
forms
required
for the purpose of ensuring the application of such double
tax
convention
so far as relevant, provided that neither a Bank nor the
Agent
shall be required pursuant to this Clause 14.4 to complete
or
co-operate
in completing any form which is not substantially similar
to
any form
in use at the date of this Agreement (for the purpose
of`
claiming
exemption or relief from or repayment of taxes envisaged
under
the
Finance Documents pursuant to a double taxation convention
between
an Obligor's jurisdiction of
incorporation or the jurisdiction through
which an
Obligor is borrowing under this Agreement and such Bank's
or
the
Agent's jurisdiction of residence) to the extent that completing
or
co
operating in completing such form would result in a Bank or the
Agent
being
subject to greater obligations under this Clause 14.4 than
those
imposed on
it on the date hereof.
14.5 Banks' Tax Status
Confirmation
Each Bank
confirms in favour of the Agent and each Obligor (on the
date
hereof or,
in the case of a Bank which becomes a party hereto
pursuant
to a
transfer or assignment, on the date on which the relevant
transfer
or
assignment becomes effective) that it is a Qualifying Lender and
each
Bank shall
promptly notify the Agent and the Parent if there is any
change in
its position from that set out above.
14.6 Claims by Banks
A Bank
intending to make a claim pursuant to Clause 14.2 (Tax
Indemnity)
shall
notify the Agent of the event giving rise to the claim,
whereupon
the Agent
shall notify the Parent thereof.
15. TAX RECEIPTS
15.1 Notification of Requirement to
Deduct Tax
If, at any
time, an Obligor is required by law to make any deduction
or
withholding from any sum
payable by it under the Finance Documents (or
if
thereafter there is any change in the rates at which or the manner
in
which such
deductions or withholdings are calculated), such Obligor
shall
promptly notify the Agent.
15.2 Evidence of Payment of
Tax
If an
Obligor makes any payment under the Finance Documents in
respect
of which
it is required to make any deduction or withholding, it
shall
pay the
full amount required to be deducted or withheld to the
relevant
taxation
or other authority within the time allowed for such
payment
under
applicable law and shall deliver to the Agent for each
Bank,
within
thirty days after it has made such payment to the
applicable
authority,
an original receipt (or a certified copy thereof) issued
by
such
authority evidencing the payment to such authority of all
amounts
so
required to be deducted or withheld in respect of that Bank's
share
of such
payment.
15.3 Tax Credit Payment
If an
additional payment is made under Clause 14 (Taxes) by an
Obligor
for the
benefit of any Finance Party and such Finance Party, acting
in
good faith
in its sole discretion, determines that it has obtained
(and
has
derived full use and benefit from) a credit against, a relief
or
remission
for, or repayment of, any tax, then, if and to the extent
that
such
Finance Party, acting in good faith in its sole opinion,
determines
that:
(a) such
credit, relief, remission or repayment is in respect of
or
calculated with reference to the additional payment made pursuant
to
Clause 14 (Taxes); and
(b) its
tax affairs for its tax year in respect of which such
credit,
relief, remission or repayment was obtained have been
finally
settled,
such
Finance Party shall, to the extent that it can do so
without
prejudice
to the retention of the amount of such credit, relief,
remission
or repayment, pay to such Obligor such amount as such
Finance
Party
shall, in its sole opinion acting in good faith, determine to
be
the amount
which will leave such Finance Party (after such payment)
in
no worse
after tax position than it would have been in had the
additional
payment in question not been required to be made by such
Obligor.
15.4 Tax and Other Affairs
No
provision of this Agreement shall interfere with the right of
any
Finance
Party to arrange its tax or any other affairs in whatever
manner
it thinks
fit, oblige any Finance Party to claim any credit,
relief,
remission
or repayment in respect of any payment under Clause 14
(Taxes)
in
priority to any other credit, relief, remission or
repayment
available
to it nor oblige any Finance Party to disclose any
information
relating
to its tax or other affairs or any computations in
respect
thereof.
Each Finance Party shall have an absolute discretion as
to
whether to
claim any Tax Credit (and, if it does claim, the extent,
order and
manner in which it does so) and whether any amount is due
from
it under
Clause 15.3 (Tax Credit Payment) (and if so, what amount
and
when).
16. INCREASED COSTS
16.1 Increased Costs
If, by
reason of (a) the introduction of or change in any law
or
regulation
or in its interpretation or administration or
application
and/or (b)
compliance with any request or requirement relating to
the
maintenance of capital or any other request from or requirement of
any
central
bank or other fiscal, monetary or other authority:
(a) a Bank
or any Holding Company of such Bank is unable to obtain
the
rate of return on its capital which it would have been able
to
obtain but for such Bank's entering into or assuming or
maintaining
a commitment or performing its obligations under the
Finance
Documents;
(b) a Bank
or any Holding Company of such Bank incurs a cost as a
result
of such Bank's entering into or assuming or maintaining a
commitment
or performing its obligations under the Finance
Documents;
(c) there
is any increase in the cost to a Bank or any Holding
Company
of such Bank of funding or maintaining such Bank's share of
the
Advances or any Unpaid Sum; or
(d) there
is a reduction of any amount due and payable under any
Finance
Document,
then the
Parent shall, from time to time on demand of the Agent,
promptly
pay to the Agent for the account of that Bank amounts
certified
by that
Bank as necessary to indemnify that Bank or to enable that
Bank
to
indemnify its Holding Company from and against, as the case may
be,
(i) such
reduction in the rate of return of capital, (ii) such
cost,
(iii) such
increased cost, or (iv) such reduction of amount due.
16.2 Increased Costs Claims
A Bank
intending to make a claim pursuant to Clause 16.1
(Increased
Costs)
shall promptly after becoming aware of the circumstances
giving
rise to
such claim notify the Agent and the Parent and deliver to
the
Parent a
certificate specifying the amount of such claim and the
basis
of
computation thereof in reasonable detail.
16.3 Exclusions
Notwithstanding the foregoing provisions of this Clause 16, no
Bank
shall be
entitled to make any claim under this Clause 16 in respect
of:
(a) any
cost, increased cost or liability as referred to in Clause
16.1
(Increased Costs) to the extent the same is compensated by
the
Mandatory Cost; or
(b) any
cost, increased cost or liability compensated by Clause
14
(Taxes).
17. ILLEGALITY
If, at any
time, it becomes unlawful for a Bank to make, fund or
allow
to remain
outstanding all or part of its share of the Advances,
then
that Bank
shall, promptly after becoming aware of the same, deliver
to
the Parent
through the Agent a notice to that effect and:
(a) such
Bank shall not thereafter be obliged to participate in
the
making of any Advances and the amount of its Available
Term
Commitment and Available Revolving Commitment shall be
immediately
reduced to zero; and
(b) if the
Agent on behalf of such Bank so requires, the Parent
shall
procure that each Borrower which has drawn an Advance shall on
such
date as the Agent shall have specified (which shall be a
Repayment
Date or the last day of the relevant Interest Period(s), as the
case
maybe, or on such earlier date (if any) as such Bank shall
certify
to be necessary to comply with the relevant law) repay such
Bank's
share of any outstanding Advances together with accrued
interest
thereon and all other amounts owing to such Bank under the
Finance
Documents and any repayment of a Term Advance so made after the
last
day of the Term Availability Period shall reduce rateably
the
obligations under Clause 12 (Repayment of the Term
Facility),
but, in
each case, only to the extent to which such cancellation
and/or
repayment
is required to prevent or remedy such unlawfulness.
18. MITIGATION
If, in
respect of any Bank, circumstances arise which would or
would
upon the
giving of notice result in:
(a) an
increase in any sum payable to it or for its account pursuant
to
Clause 14.1 (Tax Gross-up);
(b) a
claim for indemnification pursuant to Clause 14.2 (Tax
Indemnity)
or Clause 16.1 (Increased Costs); or
(c) the
reduction of its Available Commitment to zero or any
repayment
to be made, pursuant to Clause 17 (Illegality),
then,
without in any way limiting, reducing or otherwise qualifying
the
rights of
such Bank or the obligations of the Obligors under any of
the
Clauses
referred to in paragraphs (a), (b) and (c) above, such
Bank
shall
promptly upon becoming aware of such circumstances notify
the
Agent
thereof and, in consultation with the Agent and the Parent and
to
the extent
that it can do so lawfully, and without prejudice to its
own
position,
take reasonable steps (including a change of location of
its
Facility
Office or the transfer of its rights, benefits and
obligations
under the
Finance Documents to another financial institution
acceptable
to the
Parent and willing to participate in the Facility) to
mitigate
the
effects of such circumstances, provided that such Bank shall
be
under no
obligation to take any such action if, in the reasonable
opinion of
such Bank, to do so might have any adverse effect upon
its
business,
operations or financial condition (other than any minor
costs
and
expenses of an administrative nature). If as a result of taking
any
such
action to which the Parent has given written consent a Bank is
no
longer a
Qualifying Lender the provisions of Clause 14.3
(Excluded
Claims)
shall not apply.
19. REPRESENTATIONS
Each
Obligor makes the representations and warranties set out in
this
Clause 19
to each Finance Party.
19.1 Status
(a) It is
a corporation, duly organised and validly existing under
the
laws and regulations of its jurisdiction of
incorporation.
(b) It has
the power to own its assets and carry on its business as
it
is being conducted.
19.2 Binding obligations
The
obligations expressed to be assumed by it in each Finance
Document
are,
subject to any reservations which are specifically referred to
in
any Legal
Opinion, legal, valid, binding and enforceable
obligations.
19.3 Non-conflict with other
obligations
The entry
into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not
conflict
with:
(a) any
law or regulation applicable to it;
(b) its
constitutional documents; or
(c) any
agreement or instrument binding upon it or any of its
assets.
19.4 Power and authority
It has the
power to enter into, perform and deliver, and has taken
all
necessary
action to authorise its entry into, performance and
delivery
of, the
Finance Documents to which it is a party and the
transactions
contemplated by those
Finance Documents.
19.5 Validity and admissibility in
evidence
All
Authorisations required or desirable:
(a) to
enable it lawfully to enter into, exercise its rights and
comply
with its obligations in the Finance Documents to which it is
a
party; and
(b) to
make the Finance Documents to which it is a party admissible
in
evidence in its jurisdiction of incorporation,
have been
obtained or effected and are in full force and effect.
19.6 Governing law and
enforcement
(a) The
choice of English law as the governing law of the
Finance
Documents will be recognised and enforced in its jurisdiction
of
incorporation subject to any reservations which are
specifically
referred to in any Legal Opinion.
(b) Any
judgment obtained in England in relation to a Finance
Document
will be recognised and enforced in its jurisdiction of
incorporation, subject to any reservations which are
specifically
referred to in any Legal Opinion.
19.7 No Deduction or
Witholding
(a)
Subject to paragraph (b) below, it is not required under the
laws
and regulations of its jurisdiction of incorporation to make
any
deduction for or on account of Tax from any payment it may
make
under any Finance Document to any Qualifying Lender.
(b) Under
the laws of its jurisdiction of incorporation in force at
the
date hereof as modified by applicable Inland Revenue practice,
the
Original Borrower will not be required to make any deduction
or
withholding from any payment it may make under the Finance
Documents
provided that, in the case of interest payments, the Banks are
at
the date of receipt of any such payment Qualifying Lenders
(provided
with regard to Banks falling within sub-paragraph (b) of
the
definition of Qualifying Lender an appropriate direction has
been
made).
19.8 No filing or stamp
taxes
Under the
laws and regulations of its jurisdiction of incorporation
it
is not
necessary that the Finance Documents be filed, recorded
or
enrolled
with any court or other authority in that jurisdiction or
that
any stamp,
registration or similar tax be paid on or in relation to
the
Finance
Documents or the transactions contemplated by the
Finance
Documents.
19.9 No default
(a) No
Default or Event of Default is continuing or might reasonably
be
expected
to result from the making of any Advance.
(b) No
other event or circumstance is outstanding which constitutes
a
default under any other agreement or instrument which is binding
on
it or any of its Subsidiaries or to which its (or its
Subsidiaries')
assets are subject which might have a Material Adverse
Effect.
19.10 No misleading
information
(a) Any
factual information provided by the Parent for the purposes
of
the Information Memorandum was true and accurate in all
material
respects as at the date it was provided or as at the date (if
any)
at which it is stated.
(b) The
financial projections contained in the Information
Memorandum
have been prepared in good faith on the basis of recent
historical
information and on the basis of the assumptions stated
therein,
which assumptions were fair in the light of conditions existing
at
the time of delivery of such forecasts, and represented, at the
time
of delivery, the Parent's best estimate of its future
performance.
(c) So far
as the Parent is aware, after reasonable enquiry, nothing
has
occurred or been omitted from the Information Memorandum and
no
information has been given or withheld that results in
the
information contained in the Information Memorandum being untrue
or
misleading in any material respect.
(d) All
material written information (other than the Information
Memorandum) supplied by any member of the Group is true,
complete
and accurate in all material respects as at the date it was
given
and is not misleading in any material respect.
19.11 Financial
statements
(a) Its
Original Financial Statements were prepared in accordance
with
GAAP consistently applied and are complete and accurate in
all
material respects.
(b) Its
Original Financial Statements fairly represent its
financial
condition and operations during the relevant financial
year.
(c) For
the purposes of any repetition of the representation
contained
in paragraphs (a) and (b) of this Clause 19.11 (pursuant to
Clause
19.20 (Times on which representations are made)) the
representations
will be made in respect of the latest consolidated
financial
statements of each Obligor instead of the Original
Financial
Statements.
19.12 Pari passu
ranking
Its
payment obligations under the Finance Documents rank at least
pari
passu with
the claims of all its other unsecured and unsubordinated
creditors,
except for obligations mandatorily preferred by law or
regulation
applying to companies generally.
19.13 No proceedings pending
or threatened
No
litigation, arbitration or administrative proceedings of or
before
any court,
arbitral body or agency which are likely to be adversely
determined
and which, if so determined, would be reasonably likely
to
have a Material Adverse
Effect or purports to affect the legality,
validity
or enforceability of any of the obligations under the
Finance
Documents
have been started or threatened against any Obligor or
any
Material
Subsidiary.
19.14 No
winding-up
No legal
proceedings or other procedures or steps have been taken or,
to
the
Parent's knowledge after reasonable enquiry, are being
threatened,
in
relation to the winding-up, dissolution, administration
or
reorganisation of any Obligor or Material Subsidiary (other than
a
solvent
liquidation or reorganisation of any Material Subsidiary
which
is not an
Obligor).
19.15 Material Adverse
Change
There has
been no material adverse change in the Parent's
business,
condition
(financial or otherwise), operations, performance or
assets
taken as a
whole (or the business, consolidated condition (financial
or
otherwise)
operations, performance or the assets generally of the
Group
taken as a
whole) since its Original Financial Statements.
19.16 Environmental
compliance
Each
member of the Group has performed and observed in all
material
respects
all Environmental Law, Environmental Permits and all
other
material
covenants, conditions, restrictions or agreements directly
or
indirectly
concerned with any contamination, pollution or waste or
the
release or
discharge of any toxic or hazardous substance in
connection
with any
real property which is or was at any time owned, leased
or
occupied
by any member of the Group or on which any member of the
Group
has
conducted any activity where failure to do so might reasonably
be
expected
to have a Material Adverse Effect.
19.17 Environmental
Claims
No Environmental Claim has
been commenced or (to the best of its
knowledge
and belief) is threatened against any member of the
Group
where that
claim would be reasonably likely, if determined against
that
member of
the Group to have a Material Adverse Effect.
19.18 No Immunity
In any
proceedings taken in its jurisdiction of incorporation
in
relation
to this Agreement, it will not be entitled to claim for
itself
or any of
its assets immunity from suit, execution, attachment or
other
legal
process.
19.19 Private and commercial
acts
Its
execution of the Finance Documents constitutes, and its exercise
of
its rights
and performance of its obligations hereunder will
constitute,
private
and commercial acts done and performed for private and
commercial
purposes.
19.20 Times on which
representations are made
(a) All
the representations and warranties in this Clause 19 are made
to
each Finance Party on the date of the Amendment Agreement and on
the
Effective Date.
(b) The
Repeated Representations are deemed to be made by each
Obligor
to each Finance Party on the date of each Notice of Drawdown and
on
the first day of each Interest Period.
(c) The
Repeated Representations and each of the representations
and
warranties set out in Clause 19.5 (Validity and admissibility
in
evidence), Clause 19.9 (No default), paragraph (b) of Clause
19.10
(No misleading information) (in respect only of information given
by
it) and Clause 19.14 (No winding-up) are deemed to be made by
each
Additional Borrower and each Additional Guarantor to each
Finance
Party on the day on which it becomes an Additional Borrower or
an
Additional Guarantor, as the case may be.
(d) Each
representation or warranty deemed to be made after the date
of
this Agreement shall be made by reference to the facts
and
circumstances existing at the date the representation or warranty
is
made.
20. FINANCIAL
INFORMATION
The
undertakings in this Clause 20 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.
20.1 Financial statements
(a) The
Parent shall supply to the Agent:
(i)
as soon as the same become available, but in any event
within 180 days after the end of each of the Obligor's
(other than RMC Group Limited) respective financial
years:
(A) the Parent's
audited consolidated and unconsolidated
fina
