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EXHIBIT (b)(1)
[CHASE LOGO] [DEUTSCHE BANK AG LOGO]
28 September 2000
Cemex, S.A. de C.V. ("Green")
AV. Constitucion 444 Pte
Monterrey
Mexico 6400
Attention:Rodrigo Trevino
Chief Financial Officer
Dear Sirs,
Project Rey/Spur--Credit Facilities--Commitment Letter
1. Introduction
This Commitment Letter, together with the terms set out in the Term Sheet
attached as the Appendix (the "Arrangement Terms") sets out terms and
conditions of the facility (the "Facility"), which, respectively, The Chase
Manhattan Bank and Deutsche Bank AG London (in such capacity, each a "Joint
Underwriter" and together the "Joint Underwriters") are prepared to co-
underwrite, and Chase Manhattan plc and Deutsche Bank Securities Inc. (in such
capacity and as bookmanager, each a "Joint Lead Arranger" and together the
"Joint Lead Arrangers") are prepared to co-arrange in connection with the offer
(the "Offer") proposed to be made by Bidco for all the shares in the capital of
the company identified by you to us as "Spur" (the "Target") and Bidco's
acquisition of those shares (the "Acquisition").
Undefined capitalised terms used in this Commitment Letter have the meanings
given to them in the Arrangement Terms. References to this Commitment Letter
include its Appendix.
The Facility comprises an 18 month US$1,500,000,000 term loan facility to be
provided to the Bank Borrower Vehicle (the "Borrower"), a newly-formed special
purpose company, to be incorporated in a jurisdiction acceptable to the Banks
and owned by a charitable trust (or otherwise constituted in a manner
acceptable to the Banks) in accordance with the Structure Paper, pursuant to
facility documentation (the "Facility Documentation") to be entered into on the
terms envisaged by the Arrangement Terms.
The proposal and underwriting commitment set out in this Commitment Letter
is subject to the conditions set out in paragraph 16 below.
Our obligations under this Commitment Letter are subject to your signature
of our letters to you (the "Fee Letters") dated the same date as this
Commitment Letter and which set out details of certain fees payable in relation
to the Facility.
This Commitment Letter regulates certain matters relating to the Facility
and shall survive execution of the Facility Documentation.
2. Clear Market
It is agreed that (a) the Joint Lead Arrangers will together act as the sole
and exclusive arrangers and bookmanagers of the Facility, (b) the Facility
Agent will act as the sole and exclusive facility agent in respect of the
Facility and (c) the Joint Underwriters will together initially act as the sole
and exclusive underwriters of the Facility.
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Except for the Facility and the US$1,400,000,000 facility to be made
available to Bidco (the "Bidco Facility"), for the purposes of or in connection
with, the Offer and the Acquisition and except for the refinancing of the
US$400,000,000 bridge facility to Green by Chase and of certain other bridge
and asset financings and except with the prior written consent of the Joint
Lead Arrangers:
(i) there will not at any time until the date syndication of the Facility
has been successfully completed (the "Syndication Date") be (or be
announced, arranged, underwritten, syndicated, attempted or solicited)
any other public or private financing in the domestic (whether in the
United Kingdom, the United States of America or elsewhere) or
international money, debt, bank or capital markets (including, but not
limited to, any public or private bond issue, private placement, note
issuance, bilateral or syndicated credit) for (or guaranteed by) Green
or any other member of the Group including (after the Target becomes a
subsidiary of Bidco) the Target or any of its subsidiaries; and
(ii) no amendment, waiver or consent shall be requested at any time prior
to the Syndication Date in respect of anything referred to in (i)
above,
but the restrictions in (i) and (ii) above shall not:
(a) prohibit you, the Target and/or any of its subsidiaries from
approaching existing lenders to the Target and/or any of its
subsidiaries for any amendment, waiver or consent required to avoid the
Acquisition triggering a default, event of default or the like in
respect of any borrowed money (or any facility which may give rise to
borrowed money) of the Target and/or any of its subsidiaries; or
(b) prohibit Yellow from (i) making a capital markets issue; or (ii) the
securitisation of Yellow receivables; and (iii) the refinancing of the
Vencemos trade facility provided in each case provided the size, terms,
structure and pricing thereof have been previously approved by the
Joint Lead Arrangers (such approval not to be unreasonably withheld);
or
(c) prohibit Green from making a capital markets issue or continuing the
syndication of the new USCP program in each case provided the size,
terms, structure and pricing thereof have previously been approved by
the Joint Lead Arrangers (such approval not to be unreasonably
withheld).
3. Delegation
Each of the Joint Lead Arrangers and the Joint Underwriters may delegate any
or all of its respective rights and/or obligations under any Underwriting
Document to any of its affiliates (each a "Delegate") and may designate in
writing to you any Delegate of its as responsible for the performance of any of
its appointed functions under any Underwriting Document. Any Delegate must have
the financial resources to honour obligations so delegated to it.
In this Commitment Letter "Underwriting Documents" means this Commitment
Letter, the Fee Letters, the Facility Documentation and any documentary
ancillary or supplemental to any of the foregoing.
4. Syndication Strategy
It is the intention of the Joint Lead Arrangers, prior to or after the
execution of the Facility Documentation, to syndicate all or a portion of the
commitment of the Joint Underwriters under the Facility Documentation to one or
more Banks. You understand that the Joint Lead Arrangers intend to commence
syndication efforts promptly following the date of your acceptance of this
Commitment Letter. The Joint Lead Arrangers will, in consultation with you,
manage all aspects of the syndication, including the selection of Banks,
determination of when the Joint Lead Arrangers will approach prospective Banks,
any naming rights and the final allocation of the commitments among the Banks.
It is also understood and agreed that the amount and distribution of
participating fees among the Banks will be at the Joint Lead Arrangers'
discretion, after consultation with you, and that no Bank will receive any
compensation of any kind for its participation in the Facility, except as
expressly provided for in the Fee Letter or in the Facility Documentation.
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You will actively assist the Joint Lead Arrangers in completing a timely and
orderly syndication of the Facility in a manner satisfactory to the Joint Lead
Arrangers and the Joint Underwriters. Such assistance shall include, but not be
limited to (in addition to the obligations set out under the heading
"Information Memorandum" below):
(a) you using all reasonable efforts to ensure that the syndication efforts
benefit from your existing lending relationships and those of Yellow
and, so long as the Offer is recommended (and to the extent reasonably
possible), those of the Target;
(b) direct contact during the syndication process between senior
management, senior representatives and advisers of you, Sunward, Yellow
and, so long as the Offer is recommended (and to the extent reasonably
possible), the Target, on the one hand, and the prospective Banks, on
the other hand;
(c) providing assistance in the preparation of a confidential Information
Memorandum and other marketing materials to be used in connection with
the syndication and providing all Information and Projections (each as
defined below) reasonably deemed necessary by the Joint Lead Arrangers
to successfully complete the syndication of the Facility;
(d) the hosting, with the Joint Lead Arrangers, of one or more meetings of,
and holding discussions with, prospective Banks;
(e) agreeing to interest periods of one month's duration or less in respect
of the Facility during syndication; and
(f) ensuring that the syndication of the Facility is properly and
satisfactorily coordinated with the syndication of the Bidco Facility.
5. Information Memorandum
In line with normal euromarket practice, the Joint Lead Arrangers may
provide an Information Memorandum, on your behalf, to prospective Banks on a
strictly confidential basis. Such an Information Memorandum would, subject to
applicable law, contain all relevant information about the Group, the Yellow
Group, the Target, the Target Group, the financing structure for the
Acquisition and the Facility and the use to which the proceeds of the Facility
will be applied.
We shall be pleased to help in the preparation of such an Information
Memorandum. However, you will need to represent to the Joint Lead Arrangers in
the terms set out below in respect of the Information Memorandum. In
underwriting, arranging and syndicating the Facility, the Arranging Parties
will be using and relying on such information without independent verification.
You will be asked to approve the final version of the Information Memorandum
before its distribution to prospective Banks.
6. Supplied Information and Projections
You hereby represent, warrant and covenant to the Arranging Parties that (a)
to the best of your knowledge, all information and data (excluding financial
projections) concerning the Group, the Yellow Group, the Target, the Target
Group, the financing structure for the Acquisition and the Facility and/or the
use to which the proceeds of the Facility will be applied and the other
transactions contemplated by this letter (the "Information") that has been or
will be prepared by or on behalf of you or any of your authorised
representatives and that has been made available or will be made available to
any of the Arranging Parties by you or any of your authorised representatives
in connection with the transactions contemplated by this Commitment Letter is,
or will at the time such information is made available be, when taken as a
whole, accurate, correct and complete in all material respects and does not,
and at the time such information is made available will not, contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements contained therein, taken as a whole, not misleading in any
material respect in light of the
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circumstances under which such statements are made and (b) all financial
projections concerning the Group, the Yellow Group, the Target, the Target
Group, the financing structure for the Acquisition and the Facility and the use
to which the proceeds of the Facility will be applied and the other
transactions contemplated by this Commitment Letter that have been or will be
prepared by or on behalf of you or any of your authorised representatives and
that have been or will be made available to any of the Arranging Parties by you
or any of your authorised representatives in connection with the transactions
contemplated by this letter (the "Projections") have been and will be prepared
in good faith based upon assumptions believed by you to be reasonable at the
time made and at the time made available to any Arranging Party.
7. Updating of Information and Projections
You agree to supplement all Information concerning the Group, the Yellow
Group, the Target and the Target Group that is or has been made available to
the Arranging Parties and all the Projections which have been or are hereafter
prepared by any of the Group, the Yellow Group, the Target or the Target Group
from time to time until the sub-underwriting and general syndication of the
Facility has been successfully completed so that all information provided
remains, to the best of your knowledge, true and correct in all material
respects and all projections remain based on assumptions believed by you to be
reasonable.
8. Syndication
The Joint Lead Arrangers shall be entitled, following consultation with you,
to change the existing structure (or to seek an alternative structure
(including capital markets solutions)), amount, terms and/or pricing of the
Facility, if the syndication has not been successfully completed following
efforts by the Joint Lead Arrangers which are in their opinions reasonable and
if the Joint Lead Arrangers determine that, in the light of the same, changes
are advisable in order to ensure a successful syndication of the Facility.
9. Confidentiality
This underwriting commitment is intended for the Borrower's exclusive use
and is made on the express understanding that it and its terms and conditions
and that each of the Underwriting Documents will be treated as strictly
confidential; provided that you may disclose this underwriting commitment
(including its terms and conditions) (but not, in the case of (b) and (c)
below, the Fee Letters) (a) to your accountants, attorneys and other advisers,
in each case only in connection with the transactions contemplated by this
Commitment Letter, (b) in any document in relation to the Offer or press
release relating to the Offer, to the extent required by law or the rules of
any competent regulatory authority, (c) to the directors of the Target in
connection with the Offer or (d) as you may be compelled to do so in a judicial
or administrative proceeding or as otherwise required by law.
10. Conflicts
Upon countersignature of this Commitment Letter you acknowledge that the
Joint Underwriters and/or the Joint Lead Arrangers, their respective parent
undertakings, subsidiary undertakings and fellow subsidiary undertakings
(collectively the "Arranging Groups") may be providing debt financing, equity
capital or other services (including financial advisory services) to other
persons with whom you may have conflicting interests.
No member of the Arranging Groups shall use confidential information
obtained from you by virtue of the Facility or its relationship with you in
connection with its performance of services for other persons. This shall not,
however, affect any obligations that any member of the Arranging Groups may
have as Facility Agent under the Facility Documentation. You also acknowledge
that no member of the Arranging Groups has any obligation to use in connection
with the transactions contemplated by this Commitment Letter, or furnish to
you, confidential information obtained from other persons.
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The terms "parent undertaking", "subsidiary undertaking" and "fellow
subsidiary undertaking" have the meanings given to them in Sections 258 and 259
of the Companies Act 1985.
The term "confidential information" means any information relating to the
Group, the Yellow Group, the Target, the Target Group and/or their affiliates
and/or their business excluding any information which (i) at the time of
disclosure is in the public domain, (ii) comes into the public domain other
than as a result of a breach of the confidentiality obligations contained in
this Commitment Letter or (iii) became available to the disclosing party from a
source other than the Group, the Yellow Group, the Target or the Target Group
(or in each case, any of their affiliates).
11. Indemnity and Limitation
Upon countersignature of this Commitment Letter by you, you agree to
indemnify, and hold harmless, each member of the Arranging Groups and their
directors, officers, employees and agents (each an "Indemnified Person")
against any loss, claim, damage, liability, cost or expense incurred in
connection with any claim, litigation, investigation or proceeding relating to
this Commitment Letter, the Fee Letters or the Facility or the use or proposed
use of proceeds of the Facility (including the reasonable fees and expenses of
counsel to the Indemnified Persons), and to reimburse each of such Indemnified
Person upon demand for any reasonable legal or other expenses incurred in
connection with investigating or defending any of the foregoing (except to the
extent resulting from the gross negligence or wilful misconduct of such
Indemnified Person).
You also agree that no Indemnified Person shall have any liability (whether
direct or indirect in contract or tort or otherwise) to you or any other member
of the Group (or your or its affiliates) for or in connection with the
transactions contemplated by this Commitment Letter except following your
acceptance of this Commitment Letter for (i) breach of the terms of this
Commitment Letter or (ii) any such liability for loss or damages incurred to
the extent that such losses or damages are found in a final judgment by a court
of competent jurisdiction (against which no appeal is or can be made) to have
resulted directly from the gross negligence or wilful misconduct of such
Indemnified Person. No Indemnified Person shall be responsible or liable to you
or any other person for consequential damages.
12. Expenses
By countersignature of this Commitment Letter you agree that you shall on
demand pay, or procure that there is paid, to the Joint Lead Arrangers and the
Joint Underwriters (who shall provide on request reasonable details of the
relevant cost or expense) the amount of all reasonable costs and expenses
(including, without limitation, legal fees, consultants fees, due diligence
expenses, travel expenses and disbursements) incurred by the Joint Lead
Arrangers and/or the Joint Underwriters in connection with:
(a) the syndication of the Facility and the negotiation, preparation,
printing and execution of the Underwriting Documents including the
Facility Documentation and, establishing the Bank Borrower Vehicle and
all other relevant corporate or other entities and carrying out the
other steps envisaged by the Structure Paper; and
(b) any signing and publicity expenses incurred in connection with the
Facility and the Facility Documentation.
You shall reimburse, or procure that there is reimbursed, such expenses upon
presentation to you by the Joint Lead Arrangers or the Joint Underwriters of a
statement of account. You shall reimburse, or procure that there is reimbursed,
such expenses in all circumstances and irrespective of whether or not (i) the
transactions contemplated by this Commitment Letter are actually completed or
(ii) the Facility Documentation is signed.
You confirm that, if such fees have not already been paid, the Joint Lead
Arrangers are authorised to deduct all fees payable in relation to the Facility
from the drawdown of the Facility by the Borrower.
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All payments to be made by you under any Underwriting Document shall be made
free and clear of and without any deduction for or on account of any set-off or
counterclaim.
It is agreed that estimates of expenses accrued will be provided
periodically as agreed during the course of the transaction.
13. Taxes
All amounts payable to any of the Arranging Parties under the Underwriting
Documents are exclusive of Value Added Tax or any similar taxes ("VAT"). All
amounts charged by any Arranging Party or any Bank or for which any Arranging
Party or any Bank are to be reimbursed will be invoiced together with VAT,
where appropriate.
14. Termination
The Joint Underwriters may terminate their underwriting commitments in
respect of the Facility, and the Joint Lead Arrangers may terminate their
proposal to arrange the Facility (in each case by written notice to each of the
other parties to this Commitment Letter) if:
(a) Facility Documentation acceptable to the Joint Underwriters and Joint
Lead Arrangers is not signed on or before 30 November 2000 (or such
later date as the Joint Arrangers may agree); or
(b) you breach, in any material respect, any term of this Commitment
Letter; or
(c) any information provided by you, any other member of the Group or your
or their advisers (either orally or in writing) to any Arranging Party
or its advisers is materially inaccurate such that, if such information
had been accurate when provided, it could reasonably be expected to be
relevant to the decision of the Joint Lead Arrangers and the Joint
Underwriters to arrange or underwrite the Facility; or
(d) you or any member of the Group or your or its advisers fails to
disclose material facts or material information to the Joint Lead
Arrangers and the Joint Underwriters which could reasonably be expected
to be relevant to their decision to arrange or underwrite the Facility;
or
(e) either (i) there occurs after the date of this Commitment Letter any
material adverse change in the operations, condition or prospects
(financial or otherwise) of the Group including the Target Group or
(ii) there occurs a material disruption of or material adverse change
in the financial, banking or capital market conditions, in either case
which may have an adverse effect on the successful syndication of the
Facility.
The Facility Documentation will embody the commitment of each Bank
(including the Joint Underwriters) to lend money to the Borrower under the
Facility. The Joint Underwriters will not be obliged to provide the Borrower
with any funds under the Facility until the Facility Documentation is signed by
the Joint Underwriters and then only pursuant to its terms. No party will be
obliged to sign the Facility Documentation unless it is satisfied in all
respects with it.
Each of your obligations under the paragraphs headed "Expenses", "Indemnity
and Limitation" and "Confidentiality" will survive the termination (for
whatever reason) of the Joint Lead Arrangers' and the Joint Underwriters'
obligations set out in this Commitment Letter.
15. Assignment
No Underwriting Document nor your rights under it may be assigned without
our prior written consent. References in this Commitment Letter to any person
shall include any permitted assignee or other successor in title of such
person.
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16. Conditions
The proposal and underwriting commitment set out in this Commitment Letter
is subject to:
(a) Chase Manhattan plc being appointed as joint lead arranger and The
Chase Manhattan Bank being appointed as joint underwriter in relation
to the Bidco Facility on terms acceptable to them, as discussed with
you previously;
(b) finalising in detail the corporate and financing structure for the
Offer; however, in this regard, we confirm that we are satisfied with
the structure as set out in the draft Structure Paper in the form
attached;
(c) agreement acceptable to you and us on the arrangements for, and
interrelationship of, the Facility with the Bidco Facility; and
(d) the Offer being an all cash offer.
17. Execution and General
If you agree with the terms and conditions of this Commitment Letter, please
confirm this by signing, dating and returning the two enclosed copies of this
Commitment Letter together with two signed and dated copies of the relevant Fee
Letters to Kristian Orssten of Chase Manhattan plc and Robert Gray of Deutsche
Bank Securities Inc. on or before 5pm (London time) on 28 September 2000,
failing which this proposal and underwriting commitment will terminate.
This proposal and underwriting commitment will take effect subject to the
terms and conditions set out in this Commitment Letter once countersigned by
you.
If this Commitment Letter is not so accepted, the Underwriting Documents
(and any copies) shall be returned to the persons referred to above on behalf
of the Arranging Parties promptly.
This Commitment Letter may be executed in counterparts, each of which shall
be an original and all of which, taken together, shall constitute one
agreement. Delivery of an executed signature page of this Commitment Letter by
facsimile transmission shall be effective as delivery of a manually executed
counter-part.
This proposal and underwriting commitment supersedes any prior oral and/or
written understandings and/or agreements relating to the Facility. It may not
be amended except as agreed in writing by all parties to this Commitment
Letter.
You acknowledge that you have not relied on any representation other than
those set out in this Commitment Letter. We are not liable to you for any
representation (other than any fraudulent one) that is not set out in this
Commitment Letter.
Other than the Borrower a person who is not a party to this Commitment
Letter shall have no rights under the Contract (Right of Third Parties) Act
1999 to enforce any of its terms.
18. Law and Jurisdiction
This Commitment Letter shall be governed by English law. You irrevocably and
unconditionally submit to the exclusive jurisdiction of the High Court of
Justice of England and Wales over any suit, action or proceeding arising out of
or in relation to this Commitment Letter or any transaction contemplated by
this Commitment Letter or the performance of any services under this Commitment
Letter. You irrevocably and unconditionally waive any objection to the laying
of venue of any such suit, action or proceeding brought in any such court and
any claim that any such suit, action or proceeding has been brought in an
inconvenient forum.
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You agree that a final judgment in any such suit, action or proceeding
brought in any such court shall be conclusive and binding against you and may
be enforced in any other courts to which you are or may be subject, by suit
upon judgment.
You irrevocably agree to waive trial by jury in any suit, action,
proceeding, claim or counterclaim brought by or on behalf of any party related
to or arising out of this Commitment Letter, the transactions contemplated by
it or the performance of services under this Commitment Letter.
You hereby irrevocably appoint The Law Debenture Trust Corporation plc as
your agent for service of process in England and Wales in respect of this
Commitment Letter and the Fee Letters and agree to procure that The Law
Debenture Trust Corporation plc promptly after the date of your acceptance of
this Letter Commitment accepts such appointment.
We look forward to your favourable response to our proposal and to your
mandate to us to proceed with this transaction.
Please confirm your agreement to the above terms by signing where indicated
below.
Yours faithfully,
/s/ Kristian Orssten /s/ Victoria T. Mursell
---------------------------- --------------------------------------
For and on behalf of For and on behalf of
THE CHASE MANHATTAN BANK DEUTSCHE BANK AG LONDON
Joint Underwriter
Joint Underwriter
/s/ Kristian Orssten /s/ Victoria T. Mursell
---------------------------- --------------------------------------
For and on behalf of For and on behalf of
CHASE MANHATTAN plc DEUTSCHE BANK SECURITIES INC.
Joint Lead Arranger Joint Lead Arranger
Accepted and agreed by:
CEMEX, S.A. de C.V.
/s/ Ramiro Villarreal
By: Ramiro Villarreal
----------------------------
Date: 28 September 2000
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[CHASE LOGO] [DEUTSCHE BANK AG LOGO]
This is the Appendix to a Commitment Letter from Chase and Deutsche Bank
to Green dated 28 September 2000
The Appendix
Project Rey/Spur
US$1,500,000,000 SENIOR FACILITY
SUMMARY TERMS AND CONDITIONS
This Appendix should be read in conjunction with the Commitment Letter and
the Fee Letter of the same date (together the "Letters"). Undefined capitalised
terms used in this Appendix have the meanings given to them in the Letters.
The representations and warranties, events of default, covenants and
mandatory-prepayment, yield protection and other commercial provisions will be
subject where customary to exceptions, appropriate materiality (referring to
the term Material Adverse Effect in provisions which customarily are qualified
in this way) and other qualifications, grace periods, baskets and thresholds to
be agreed ("Usual Exceptions").
The term "Material Adverse Effect" as used in this Appendix signifies a
matter which is reasonably likely materially and adversely to affect:
(a) the ability of the Borrower and the other relevant members of the Group
to comply with their payment obligations and/or the financial covenants
(provided that in this latter case such non compliance materially
adversely affects or could affect the ability of relevant members of
the Group to comply with its payment obligations) under the facility
agreement to be made between the Borrower, the Joint Lead Arrangers and
others (the "Facility Agreement"), the related fee letter, the Dutch
Holdco Documentation, the Trigger Right Agreement and any related
documentation, together being the "Facility Documents"; and/or
(b) the validity or enforceability of any of the Facility Documents; and/or
(c) the business, assets, financial or trading condition of the Borrower
and/or Yellow and its subsidiaries from time to time taken as a whole
on a consolidated basis and including the Target from the date (the
"Unconditional Date") upon which the Offer becomes or is declared
unconditional in all respects in accordance with this Appendix.
The term "material Yellow Group company" as used in this Appendix signifies
any member of the Yellow Group accounting for at least 10% of the Yellow Group
profit, cash flow or assets.
The Facility is to be made available to the Borrower on the condition that
it is to be used in the manner envisaged by the structure we have discussed. A
detailed paper (the "Structure Paper") setting out the tax, accounting,
corporate and legal structure, consistent with those discussions and this
Appendix will be prepared and agreed between our respective advisers and the
availability of the Facility is also conditional on each of the other steps set
out in the Structure Paper being fulfilled in accordance with the terms of the
Structure Paper.
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A Parties
Finance Parties
Joint Lead Arrangers and
Bookmanager Chase Manhattan plc and Deutsche Bank
Securities Inc. who shall together be joint
lead arrangers and joint bookrunners on an
equal basis
Joint Underwriters The Chase Manhattan Bank and Deutsche Bank AG
London who shall together be joint underwriters
on an equal basis for US$750,000,000 each
Banks The Joint Underwriters and the other banks,
financial institutions and other entities
selected by the Joint Lead Arrangers in
consultation with Green in the syndication of
the Facility
Facility Agent Chase Manhattan International Limited
Arranging Parties The Joint Lead Arrangers, the Joint
Underwriters and the Facility Agent
Finance Parties The Arranging Parties and the Banks
Group Entities
Bidco a US special purpose vehicle, being a 100%
subsidiary of Yellow
Dutch Holdco a Dutch BV company or other entity (which may
incorporated in another jurisdiction) as agreed
between the Arranging Parties and Green; in
either case to be majority owned by Sunward and
owned as to the remainder by the Bank Borrower
Vehicle
Green Green S.A. de C.V.
Group Green and all its subsidiary undertakings from
time to time
Bank Borrower Vehicle a company or companies (or other appropriate
entities) newly established and owned by a
charitable trust (or otherwise not owned by
either the Banks or Green) established and
structured in a way acceptable to the Joint
Lead Arrangers and Green, and in accordance
with the Structure Paper
Sunward Sunward Acquisitions NV a Dutch company and a
100% subsidiary of Green
Target Spur
Target Group Target and all its subsidiary undertakings from
time to time
Yellow
Yellow S.A.
Yellow Group
Yellow and all its subsidiary undertakings from
time to time
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Obligors
Borrower the top company or entity in the Bank Borrower
Vehicle
Warrantors all other companies or entities in the Bank
Borrower Vehicle
As party to the Dutch Holdco
Documentation Sunward
B Description of Facility
Amount US$1,500,000,000
Type Term Loan Facility
Tenor 18 months from signing of the Facility
Agreement
Purpose The Facility is to be used for the Offer
Purposes, namely, following the bid for Target
becoming unconditional, the financing
indirectly of part of the payment by Bidco of
(i) consideration due to shareholders in the
Target pursuant to the Offer (the shares in the
Target acquired by Bidco (whether pursuant to
the Offer or otherwise) being "Target Shares"),
(ii) consideration due to holders of share
options (if any) in the Target in respect of
the cancellation of those options and (iii)
related fees and expenses, such financing to be
provided to Bidco in accordance with the terms
of the Structure Paper.
Availability The Facility shall be available on and from
satisfaction of the conditions precedent until
30 June 2001 (the "Availability Period"). Any
undrawn amount of the Facility at the end of
the Availability Period will be automatically
cancelled.
C General Provisions
Repayment The Facility shall be repaid:
(a) as to US$300,000,000, in instalments of
the following amounts on the following
dates after first drawdown:
. US$100,000,000 on the ninth month;
. US$100,000,000 on the twelfth month; and
. US$100,000,000 on the fifteenth month;
and
(b) as to the balance on the date falling 18
months after signature of the Facility
Agreement
Interest Rate The interest rate will be the London Interbank
Offered Rate ("LIBOR") (determined by reference
to the applicable screen page for US dollars)
plus the applicable Margin and any applicable
additional costs rate.
Interest shall be paid on the last day of each
Interest Period and will be calculated on the
basis of actual days elapsed and a year of 360
days.
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Margin The applicable Margin will be determined by the
ratio of Total Debt (as defined in "Financial
Covenants" below) to EBITDA (as defined in
"Financial Covenants" below) (tested
quarterly), as follow:
Martin
Ratio (basis points)
----- --------------
3.75 and above 175
3.25-3.75 150
2.75-3.25 125
below 2.75 100
provided that the Margin during the first three
months after the Facility is drawn down will be
150 basis points.
Interest Periods The Facility shall have Interest Periods of 1,
2 or 3 months or such other period as may be
agreed to by the Banks. During the syndication
process, the Joint Lead Arrangers may require
the Facility to have an Interest Period of one
month to assist the syndication process.
Default Rate All overdue amounts, whether of principal,
interest, fees or otherwise, shall bear
interest at 2% per annum over the rate
otherwise applicable thereto.
Commitment Fees 0.375% per annum on the undrawn portion of the
Facility from the date of signing the Facility
Agreement and during the Availability Period.
Such commitment fees shall accrue from signing
of the Facility Agreement and be payable
quarterly in arrears, and on the drawdown date
of the Facility and shall be calculated on the
basis of actual days elapsed and a year of 360
days.
Agency Fee An agency fee in the amount agreed between the
Facility Agent and Green in the Fee Letter
shall be paid annually in advance to the
Facility Agent.
Optional Prepayments The Borrower may prepay all or, subject to an
appropriate minimum amount and multiple, any
part of the Facility upon 30 banking days'
notice. No penalty, fee or premium will be
payable unless the prepayment is otherwise than
on the last day of an Interest Period in which
case prepayment shall be subject to an
indemnity for broken funding costs.
Mandatory Prepayments Mandatory prepayments shall be required:
(a) in full, on an IPO of any member of the
Yellow Group or on a change of control or
sale of substantially all of the business
or assets of any material member of the
Yellow Group other than any IPO related to
previous agreements with investors under
joint venture agreements or similar
agreements in connection with Cemex Asia
Holdings or any sale of e-business
activities of Green or the Group;
(b) in full, on the Call Option (as defined
below) being exercised;
(c) in full, on the Trigger Right (as defined
below) becoming exercisable;
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<PAGE>
(d) in full, on Green ceasing to be the owner,
directly or indirectly, of 100% of the
issued share capital of Sunward;
(e) in full, if any debt is raised for the
purpose of prepaying any of the Banks (in
whole or in part); and
(f) to the extent such application is legally
permitted, from the proceeds of any
disposal of assets or shares by any members
of the Yellow Group (net of reasonable
costs and expenses of disposal and tax
incurred or provided for in connection with
the disposal) in excess of an amount to be
agreed provided this paragraph shall not
apply to proceeds of disposals reinvested
by any member of the Yellow Group in the
ordinary course of business, or used to
permanently repay borrowed money of the
Yellow Group, within 3 months of receipt of
such disposal proceeds.
Amounts prepaid shall not be available for
redrawing.
Conditions Precedent Availability of the Facility is subject to
satisfactory legal documentation being agreed
between all relevant parties including the
Borrower, Sunward and the Banks and certain
conditions precedent, each of which shall be in
form, substance and in all respects
satisfactory to the Facility Agent, including:
(a) evidence that the corporate and capital
structure of the Yellow Group and regarding
the Bank Borrower Vehicle and Dutch Holdco,
is in accordance with the Structure Paper
(noting paragraph 16(b) of the Commitment
Letter);
(b) receipt of copies of constitutive documents
and corporate authorities for each Obligor
and each other company entering into the
Facility Documentation;
(c) legal, accounting and tax opinions from
counsel and other advisers to the Banks in
all applicable jurisdictions;
(d) copies of the tender offer document(s) and
the agreement and plan of merger, in the
agreed form (the "Offer Documents");
(e) evidence that all regulatory and other
approvals for the Acquisition have been
given (whether formal notification of such
approvals has been issued or not) and that
the Acquisition is not liable to be
prohibited by any relevant regulatory
authority;
(f) the payment of fees pursuant to the Fee
Letter;
(g) the Offer being unconditionally accepted
and effective in respect of an aggregate
purchase price of not more than an amount
to be agreed (it being agreed that if the
aggregate purchase price exceeds such
amount the extra funding required will be
provided by Green and that if the Offer
consideration is not all cash, the Banks
may reduce the amount of the Facility),
with a minimum acceptance level of an
amount to be agreed (on the basis it will
be that percentage that will enable Bidco
to acquire, and merge with, the Target);
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<PAGE>
(h) evidence that the amount advanced under the
Facility will, on receipt by the Bank
Borrower Vehicle be used to acquire the
relevant number of first ranking preference
shares of Dutch Holdco (or other suitable
instruments as may be agreed which confer
priority on the Bank Borrower Vehicle for
income and capital of Dutch Holdco
(together "Preference Shares")), in
accordance with the Structure Paper;
(i) evidence that Yellow on receipt of the
moneys referred to in (h) above will remit
such amount to Bidco on terms acceptable to
the Banks and in accordance with the
Structure Paper;
(j) a copy of all documentation required to
effect (i) above executed by all the
parties thereto, in the agreed form;
(k) evidence that Sunward has contributed
85.15% of Yellow to the Dutch Holdco in
exchange for the relevant number of
ordinary shares (or other relevant
instruments which are subordinate to the
Preference Shares in all respects (together
the "Ordinary Shares"));
(l) the Dutch Holdco Documentation (as defined
below), in the agreed form, duly executed
by all the parties thereto;
(m) if not constituted by the Dutch Holdco
Documentation, the agreement (the "Trigger
Right Agreement") constituting the Trigger
Right (as defined below), in the agreed
form, duly executed by all the parties
thereto;
(n) evidence that the Bidco Facility has been,
or will be on the date the Facility is
advanced, advanced to Bidco (the Bidco
Facility being on the terms and
arranged/underwritten by the persons as
discussed);
(o) the Offer Documents having become effective
containing an Offer price not exceeding the
agreed maximum;
(p) no material regulatory conditions or
undertakings having been required of the
Group (including any divestment obligation)
and none of the conditions of the Offer
relating to price, acceptances and
regulatory matters having been waived
without in any such case the prior written
consent of the Majority Banks having been
obtained; and
(q) evidence that a Debt Service Reserve
Account has been established and has been
fully funded (with three months' interest).
Further conditions:
(i) representations and warranties (other than
those not to be repeated) are true and
accurate on the date of drawdown of the
Facility; and
(ii) no event of default or Trigger Event or
potential event of default or Trigger
Event has occurred and is continuing or
will occur as a result of drawdown of the
Facility.
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<PAGE>
Condition Subsequent Green's Egyptian assets to be contributed to
Yellow, as envisaged by the Structure Paper, as
soon as practicable after the Facility
Agreement being executed.
Dutch Holdco Documentation As a condition precedent to the availability of
the Facility, the Dutch Holdco, Sunward (whose
obligations to act, or to omit to act, in
certain ways as shareholder will be confirmed
by Green) and the Bank Borrower Vehicle will
enter into an agreement or agreements and will
approve Articles of Dutch Holdco (together the
"Dutch Holdco Documentation") regulating
Sunward's and the Bank Borrower Vehicle's
interests in the Dutch Holdco and their
respective rights under Preference Shares and
Ordinary Shares held by them and, accordingly,
their interests in, and the activities of,
Yellow and the payment of dividends by Yellow.
The principle point is that the Preference
Shares held by the Bank Borrower Vehicle will
rank for income and capital in all respects
prior to those held by Sunward. No material
decision may be made without the consent of
holders of all the Preference Shares.
Dutch Holdco will have a corporate entity as
its sole managing director and certain reserved
matters may only be exercised with the consent
of both the Bank Borrower Vehicle and, save as
described below, Sunward
Additional Rights of the
Bank Borrower Vehicle
Under the Dutch Holdco Documentation the Bank
Borrower Vehicle will have the right (the
"Trigger Right"), on the occurrence of certain
specified events (including an Event of Default
under the Facility Agreement) (each a "Notice
Event"), to give notice to Sunward. Sunward
will continue to have the right, within a
specified period after such notice, either to
(i) exercise and complete the Call Option or
(ii) place Dutch Holdco into liquidation.
If Sunward places Dutch Holdco into
liquidation, the pre-agreed liquidator will be
obliged to sell such number of Yellow shares as
are required to be sold in order to effect a
repayment of the Facility Outstanding Amount
(as defined below), but such sale would be
conducted through procedures which would be set
out in the Dutch Holdco Documentation (the
"Trigger Procedures"). The Trigger Procedures
would require the appointment jointly by Dutch
Holdco and the Facility Agent of agreed
investment bank(s) (the "Investment Banks") to
advise on and to market the Yellow shares with
a view to obtaining the best price reasonably
obtainable in the open market given a
reasonable period (to be agreed) in which to
achieve such sale. If the Facility Agent is
advised by the Investment Banks that it is not
necessary to sell all the Yellow shares in
order to repay all amounts outstanding in
respect of the Facility, the Investment Banks
will market for sale such number of Yellow
shares as the Facility Agent determines (on
such advice) is required to be sold in order to
repay all amounts outstanding or otherwise due
in relation to the Facility.
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<PAGE>
The proceeds of sale would be used to
repay/redeem the Preference Shares (together
with accrued coupon, costs and expenses and any
taxes or duties) and any surplus would be paid
on the Ordinary Shares. To the extent it would
be necessary to place Dutch Holdco into
liquidation in order to make a lawful
distribution on the Preference Shares, the
Dutch Holdco Documentation will provide for all
necessary resolutions to that effect to be
passed.
It is agreed that Sunward will retain the
ability, pursuant to the Call Option described
below, to avoid Yellow shares being sold to a
third party. Sunward can do this at any time
before such sale is effected. Under the terms
of the Trigger Sale Procedures, Sunward will
receive notice (of a reasonable period to be
agreed) of any intended sale under the Trigger
Right, to afford Sunward/Green the opportunity
to use the Call Option.
If (a) a Notice Event occurs and Sunward does
not take either of the actions in (i) or (ii)
above within such specified period, or (b)
Sunward fails to exercise and complete the Call
Option by the maturity date of the Facility
where the Facility has not otherwise been
repaid in full, arrangements will apply under
which the Bank Borrower Vehicle will be able to
cause Dutch Holdco to sell Yellow shares to the
extent required to repay the Facility
Outstanding Amount.
Call Option Sunward and the Bank Borrower Vehicle will
enter into a call option (the "Call Option")
pursuant to which Sunward will have the right,
at any time during the term of the Facility, to
purchase from the Bank Borrower Vehicle all its
Preference Shares. The consideration payable by
Sunward on exercise of this option will be that
amount as is required to repay the Facility in
full, together with all interest and all other
amounts due under the Facility Documentation up
to the date of such repayment (the "Facility
Outstanding Amount").
Representations and Subject to the Usual Exceptions, the
Warranties representations and warranties to be given by
each Obligor in respect of itself and Yellow
Group will include representations and
warranties as commonly found in a facility of
this type including those representations and
warranties as to:
(a) status, due incorporation, power and
authority to perform, no requirement to
file the Facility Documentation, no event
of default continuing, no breach of
borrowing restrictions, consents and
compliance with laws, non-conflict with law
or other agreements and obligations under
the Facility Documentation are binding;
(b) no material litigation or labour disputes,
no winding-up or other insolvency
proceedings, no material adverse change, no
encumbrances (other than as permitted), no
material defaults;
(c) no unpaid taxes or overdue filings in
respect of any member of the Group;
16
<PAGE>
(d) Finance Parties' claims will rank pari
passu;
(e) Information supplied, accounts and
projections;
(f) (from the Borrower only) the Borrower is
controlled by the trustees of the
charitable trust;
(g) compliance with environmental law and
approvals;
(h) key intellectual property representations;
(i) each of (i) (from each Obligor other than
Sunward) the Borrower and the Bank Borrower
Vehicle and (ii) (from each Obligor) Dutch
Holdco is a holding company and does not
have any material assets or material
liabilities other than shares (or other
interest) in the other entities in the Bank
Borrower Vehicle or Yellow (in accordance
with the Structure Paper) and intercompany
debt, in accordance with the Structure
Paper;
(j) no borrowed money, other than as permitted;
(k) all shares in Target acquired by Bidco will
be beneficially owned by Bidco free from
encumbrances;
(l) the transactions contemplated in the
Structure Paper are and can be implemented
in all material respects in accordance with
the terms of the Structure Paper and all
applicable laws and regulations;
(m) original financial statements were properly
prepared and give a true and fair view;
(n) no material adverse change since original
financial statements;
(o) (after the expiry of a 120 day clean up
period beginning on the date of the
Acquisition) relevant representations about
the Target and the Target Group as required
by reference to the results of due
diligence on the Target and the Target
Group.
The representations and warranties will be
repeated on the drawdown date of the Facility,
the date upon which the Offer is made and on
the first day of each Interest Period, subject
to the Usual Exceptions.
Additionally, under the Facility Documents,
Sunward will give certain representations
regarding, amongst other things, its ownership
of shares in Dutch Holdco, the injection of
Yellow into Dutch Holdco and the arrangements
set out in the Structure Paper.
Financial Covenants The following financial covenants will apply,
to be tested quarterly:
(a) Total Debt: EBITDA at level(s) to be
agreed; and
(b) EBITDA: Total Interest, at level(s) to be
agreed,
where:
"Total Debt" means the aggregate total debt
of the Yellow Group and principal element
of the consideration payable by
17
<PAGE>
Sunward under the Call Option (being the
Facility Outstanding Amount from time to
time) minus the amount standing to the
credit of the Debt Service Reserve Account,
but including any off-balance sheet
financings. Note: Some exceptions to this
definition will be agreed to carve out
certain indebtedness of Yellow Group (i.e.
non interest-paying subordinated
intercompany loans, subordinated to the
Preference Shares on terms satisfactory to
the Banks, from members of Green group,
financial derivatives and operating leases)
"EBITDA" means EBITDA of the Yellow Group,
provided that if country risk for any
country materialises, the contribution to
EBITDA of any members of the Yellow Group
in that jurisdiction shall be ignored;
Note: Certain adjustments to reflect
Spanish GAAP treatment to prior year
figures and the way to incorporate EBITDA
coming from acquired subsidiaries during
calculation period, to be discussed; and
"Total Interest" means total interest on
Total Debt plus preferred dividends (or
similar) paid by members of the Yellow
Group on putable securities (or similar)
Information Covenants Each of the Borrower and Yellow shall provide
financial information including the following:
(a) (from Yellow) annual audited accounts of it
and audited consolidated accounts of the
Yellow Group within 180 days of the
financial year-end;
(b) (from Yellow) the quarterly accounts of the
Yellow Group within 60 days of the end of
each quarter;
(c) (from Yellow) together with each set of
accounts delivered pursuant to (a) or (b)
above, annual or, as the case may be,
quarterly compliance certificates signed by
two directors (one of whom is the Finance
Director) and, in the case of compliance
certificates delivered with the annual
audited consolidated accounts, such
compliance certificates are to be signed by
the Yellow Group's auditor together with a
certificate, signed by two directors or
Yellow's auditors as aforesaid, stating the
amount of Total Debt; and
(d) (from the Borrower or, as appropriate,
Yellow) such other information in the
possession of the Borrower and/or Yellow
relating to the financial condition of it
and the other parts of the Bank Borrower
Vehicle, the Yellow Group or any member of
the Group as the Facility Agent may
reasonably request.
Negative undertakings Negative undertakings, as commonly found in a
facility of this type, including the following,
will apply in relation to the Obligors and the
Yellow Group, subject to the Usual Exceptions:
(a) no encumbrances other than permitted
encumbrances;
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<PAGE>
(b) no indebtedness save for indebtedness under
the Facility Documentation and the Bidco
Facility and an aggregate permitted amount
for the Yellow Group to be agreed by Green
and the Joint Lead Arrangers by reference
to relevant financial parameters;
(c) limitation on finance leasing arrangements,
hire purchase, conditional sale or other
agreements for the acquisition of any asset
upon deferred payment terms other than
trade credit incurred in the ordinary
course of business and subject to
limitations to be agreed, with all existing
arrangements of this type disclosed to the
Joint Lead Arrangers and further
arrangements of this type up to an amount
to be agreed to be permitted;
(d) limitation on guarantees or indemnities and
loans save for the ordinary course of
trading activities and guarantees,
indemnities and loans to other members of
the Yellow Group;
(e) no factoring of receivables and no sale and
leaseback transaction, in the case of
factoring, in excess of an aggregate limit
for the Yellow Group to be agreed;
(f) limitation on acquisition of any property
or investments or subsidiaries and no entry
into joint venture or similar arrangements
above a certain value, to be agreed,
without prior written consent of the
Majority Banks;
(g) other than in relation to the merger of
Bidco and the Target pursuant to the
agreement and plan of merger, a limitation
on redemption, repurchase, retirement or
acquisition of any share capital or
warrants or repayment of shareholder or
subordinated debt, if any;
(h) prohibition on arrangements restricting
implementation of the Acquisition or
restricting implementation of the steps in
the Structure Paper;
(i) other than in relation to the merger of
Bidco and the Target pursuant to the
agreement and plan of merger, a restriction
on changes from core business and no
amalgamations or mergers without consent of
the Majority Banks;
(j) limitation on sale, transfer, lease or
other disposal of assets subject to a
threshold to be agreed, other than where
such disposal is required by a relevant
regulatory body or where the proceeds of
such disposal are reinvested in assets
compatible with the business of the Yellow
Group, or used to permanently repay
borrowed money of the Yellow Group, within
a period to be agreed;
(k) no arrangement or transactions other than
on an arm's length basis in normal course
of business;
(l) no cashflow restrictions, other than under
the Facility Agreement and any imposed by
law or under the existing contractual
arrangements of members of the Target
Group;
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<PAGE>
(m) no issue or allotment to non-Yellow Group
companies of any shares or relevant
securities;
(n) neither the Bank Borrower Vehicle nor Dutch
Holdco shall carry on any business save for
acting as a holding company, the making of
loans envisaged by the Structure Paper, or
own any material assets or (subject to a
threshold to be agreed) have material
liabilities, other than shares in other
entities in the Bank Borrower Vehicle or,
as appropriate, Yellow, in accordance with
the Structure Paper or as otherwise
required by the Structure Paper; and
(o) neither the Bank Borrower Vehicle nor Dutch
Holdco shall carry on any business save for
acting as a holding company, the making of
loans to or own any material assets (or
subject to a threshold to be agreed) have
material liabilities other than shares in
other entities in the Bank Borrower Vehicle
or, as appropriate, Yellow, in accordance
with the Structure Paper.
Positive Undertakings Positive undertakings, as commonly found in a
facility of this type, including the following
will apply in relation to the Obligors and the
Yellow Group, subject to the Usual Exceptions:
(a) use the proceeds of the Facility only as
permitted by the Facility Agreement;
(b) promptly obtain and renew all necessary
consents, filings and authorisations;
(c) maintain appropriate level of insurances
over all assets and in compliance with all
other relevant documentation (e.g. leases);
(d) promptly pay all taxes imposed/file tax
returns;
(e) observe and comply with all obligations in
respect of intellectual property, the
failure to comply with which would have a
Material Adverse Effect;
(f) observe and comply with all obligations in
respect of environmental laws and
environmental approvals, the failure to
comply with which would have a Material
Adverse Effect;
(g) (by the Borrower) ensure pari passu ranking
of payment obligations of the Borrower
under the Facility Agreement with other
unsecured unsubordinated debt obligations
of the Borrower;
(h) maintenance of corporate existence,
compliance with all laws and directives
applicable to the relevant business;
(i) comply in all respects with any
prohibitions against financial assistance
under laws of any applicable jurisdiction;
(j) Yellow will procure that the Bidco Facility
(that Facility being on the terms and
arranged/underwritten by the persons as
discussed) will be available to the Target
on the date there is a change of control of
the Target as a result of the Offer, and
that on that date, Target will repay in
full the outstandings, if
20
<PAGE>
any, under any existing credit facilities
and will cancel the available commitments
thereunder in full and will procure the
release and discharge of any guarantees or
security provided by it or its subsidiaries
in respect of such facilities as soon as
practicable thereafter and in any event
within 30 days thereof save, in either case,
where consents or waivers have been obtained
which mean that facilities are not repayable
as a result of the Offer/Acquisition;
(k) ensure that at all times the Debt Service
Reserve Account is funded with three
months' interest; and
(l) Yellow will use its best endeavours to
agree extensions to the maturity of its
facilities.
Offer Covenants The Facility Agreement will contain
undertakings by the relevant Obligors
concerning conduct of the Offer by Bidco
typical for the financing of an Offer for a US
target (subject to consent by the Majority
Banks to the contrary), including:
(a) no other public statement made in
connection with the Offer which is
inconsistent with the terms of the Offer
Documents;
(b) keep the Facility Agent informed as to
status and the progress of the Offer, and
promptly reply to requests by the Facility
Agent to supply information in connection
with the Offer;
(c) making of the Offer within a period to be
agreed;
(d) no acquisition of shares in Target to a
level that would trigger a mandatory offer;
(e) compliance with the provisions of
applicable law, regulations, codes and
practices; and
(f) the Offer to be in accordance with the
Offer Documents provided as conditions
precedent and not to include terms
materially different or adverse to the
Facility.
Events of Default Events of default commonly found in a facility
of this type including the following will
apply, subject to the Usual Exceptions (which
shall include grace/cure periods and
materiality tests to be agreed and carve-outs
will be agreed to exclude events relating to
the Bank Borrower Vehicle which are
attributable to the Finance Parties knowingly
causing the Bank Borrower Vehicle to breach
obligations under the Facility Documentation):
(a) non-payment;
(b) breach of covenant;
(c) breach of representation or warranty;
(d) invalidity or unlawfulness or repudiation
of Finance Documents;
(e) cross acceleration with any other financial
indebtedness in excess of an amount to be
agreed of any Obligor or any member of the
Yellow Group (other than existing Target
21
<PAGE>
Group debt capable of being declared due by
reason solely of a change in control) or of
Green;
(f) insolvency and related matters affecting
any Obligor or any material Yellow Group
company;
(g) litigation affecting any Obligor or
material Yellow Group company;
(h) any Obligor or a material Yellow Group
company ceases or proposes to cease
carrying on its business;
(i) compulsory acquisition of all or any part
of the property or assets of any Obligor or
material Yellow Group Company;
(j) the accounts are materially qualified by
the auditors;
(k) Sunward ceases to hold the requisite
percentage of the entire issued share
capital of Dutch Holdco;
(l) the Bank Borrower Vehicle ceases to hold
the requisite percentage of the entire
issued share capital of Dutch Holdco (other
than as a result of a default by the
Banks);
(m) Dutch Holdco ceases to hold directly the
requisite percentage (85.15% plus any
increased capital) of the entire issued
share capital of Yellow;
(n) Yellow ceases to hold directly 100% of the
entire issued share capital of Bidco; and
(o) material adverse change (by reference to
Material Adverse Effect).
Assignments and Transfers The Banks may assign or transfer their
interests in the Facility to any bank or
financial institution with the consent of
Yellow (such consent not to be unreasonably
withheld or delayed).
Majority Banks 51%
Other provisions In addition to the above terms, the Facility
Agreement will be drafted on terms which are
usual for a facility of this type including
indemnities protecting the Banks for broken
funding and enforcement costs and for
liabilities incurred due to the Borrower's
(other than as a result of a default by the
Banks) or any member of Yellow Group's default
and terms relating to illegality, increased
costs, market disruption, withholding tax,
payments and to provide for changes in market
practice as a result of EMU. These terms and
conditions may be amended, as mutually agreed,
to reflect issues needed for proper execution
of the transaction.
Law The Facility Agreement and other Facility
Documentation will be governed by English law.
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