<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
Tender Offer Statement
(Amendment No. 3)
Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
GERBER PRODUCTS COMPANY
(Name of Subject Company)
SL Sub Corp. and
Sandoz Ltd.
(Bidder)
Common Stock, $2.50 par value
(including Preferred Stock Purchase Rights
issued with respect thereto)
(Title of Class of Securities)
373712 10 8
(CUSIP Number of Class of Securities)
Robert L. Thompson, Jr., Esq.
Sandoz Corporation
608 Fifth Avenue, 10th Floor
New York, New York 10020
Telephone: (212) 830-2401
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications on Behalf of Bidder)
Copy to:
David W. Heleniak, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Telephone: (212) 848-4000
<PAGE> 2
This Amendment No. 3 to the Tender Offer Statement on Schedule 14D-1 (the
"Schedule 14D-1") relates to the offer by SL Sub Corp., a Delaware corporation
("Purchaser") and an indirect wholly owned subsidiary of Sandoz Ltd., a
corporation organized under the laws of Switzerland ("Parent"), to purchase all
outstanding shares of Common Stock, par value $2.50 per share (the "Common
Stock"), of Gerber Products Company, a Michigan corporation (the "Company"),
and the associated preferred stock purchase rights issued pursuant to the
Rights Agreement, dated as of July 25, 1990, as amended, between Gerber
Products Company and Harris Trust and Savings Bank, as Rights Agent
(together with the Common Stock, the "Shares"), at a price of $53.00 per
Share, net to the seller in cash, upon the terms and subject to the
conditions set forth in Purchaser's Offer to Purchase, dated May 27, 1994
(the "Offer to Purchase"), and in the related Letter of Transmittal, copies
of which were filed as Exhibits (a)(1) and (a)(2), respectively, to the
Schedule 14D-1.
ITEM 1. SECURITY AND SUBJECT COMPANY.
Item 1(b) is hereby amended and supplemented to read as follows:
The Company has advised Purchaser that as of August 18, 1994 69,626,655
Shares and options to purchase 1,606,924 Shares were issued and outstanding and
39,441 Shares were authorized to be issued under the Company's Stock Ownership
Plan and Annual Bonus Plan. As a result, as of such date, the Minimum
Condition would be satisfied if Purchaser acquired 35,636,511 Shares.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR
OTHER CONSIDERATION.
Items 4(a)-(c) are hereby amended and supplemented as follows:
The total amount of funds required by Purchaser to consummate the Offer
and the Merger and to pay related fees and expenses is estimated to be
appoximately $3.8 billion.
Purchaser will obtain such funds from Parent or Parent's subsidiaries in
the form of a combination of capital contributions and loans.
Parent or its subsidiaries will obtain $2.0 billion of the $3.8 billion
they will provide to Purchaser from cash on hand and through liquidation of,
and advances on, various time deposits they hold.
Parent or its subsidiaries will obtain the remaining $1.8 billion they
will provide to Purchaser from the bank credit facility described below.
On August 22, 1994, Sandoz Corporation entered into a credit agreement
(the "Credit Agreement") pursuant to which the banks parties thereto (the
"Lenders") agreed to lend to Sandoz Corporation up to $1.8 billion (the "Credit
Facility"). Parent has guarantied the full amount of the loan. The Lenders
made the following commitments to the Credit Facility: Union Bank of
Switzerland (the "Agent" and "Arranger") $400 million; Credit Suisse $400
million; Swiss Bank Corporation $400 million; ABN-AMRO Bank N.V. $200 million;
Deutsche Bank Luxembourg S.A. $200 million; and Morgan Guaranty Trust Company
of New York $200 million.
The Credit Agreement provides that Sandoz Corporation may borrow up to the
full amount of the Credit Facility in one amount until 60 days after execution
and delivery of the Credit Agreement, at which time the undrawn amount (if any)
of the full amount will be automatically cancelled. The amount outstanding
under the Credit Facility will become due and payable 360 days from the date of
the advance of the loan and may be prepaid in whole or in part at any time.
The Credit Agreement provides that the rate of interest on the loan
will be the London Interbank Offered Rate (LIBOR) plus 0.06% per annum, payable
at the option of Sandoz Corporation every one, two, three or six months or any
other period of less than six months agreed by Sandoz Corporation and the
Lenders.
The Credit Agreement provides that the obligations of each Lender to make
advances under the Credit Facility will be subject to the satisfaction or
waiver of the following conditions: (i) that on both the date of the request
for the loan and the date of the advance of the loan, certain representations
and warranties shall be correct and will be correct immediately after the loan
is made; and (ii) that on both the date of the request for the loan and the
date of the advance of the loan, no default or event of default under the
Credit Agreement is outstanding or would result from the making of the loan.
Parent anticipates that the indebtedness incurred through borrowings under
the Credit Facility will be repaid from a variety of sources, which may
include, but may not be limited to, funds generated internally by Parent and
its subsidiaries (including, following the Merger, funds generated by the
Surviving Corporation), bank refinancing, and the public or private sale of
debt or equity securities. No decision has been made concerning the method
Parent will employ to repay such indebtedness. Such decision will be made
based on Parent's review from time to time of the advisability of particular
actions, as well as on prevailing interest rates and financial and other
economic conditions and such other factors as Parent may deem appropriate.
A copy of the Credit Agreement is filed as Exhibit (a)(12) to the
Schedule 14D-1 and is incorporated herein by reference.
ITEM 10. ADDITIONAL INFORMATION.
Item 10(f) is hereby amended and supplemented as follows:
On August 3, 1994, the Company declared a regular quarterly dividend on
its Common Stock of $.215 per share payable to shareholders of record on
August 16, 1994. A press release issued by the Company on August 3, 1994
relating to the declaration of such dividend is filed as Exhibit (a)(13) to
the Schedule 14D-1 and is incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended by adding the following Exhibit:
(a)(12) Credit Facility among Sandoz Corporation, Union Bank of Switzerland (as
Agent) and the banks signatory thereto.
(a)(13) Press Release issued by the Company on August 3, 1994.
2
<PAGE> 3
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Statement is true, complete and correct.
August 22, 1994 SL SUB CORP.
By /s/ ROBERT L. THOMPSON, JR.
------------------------------------
Name: Robert L. Thompson, Jr.
Title: Vice President and
Secretary
SANDOZ LTD.
By /s/ MARC MORET
------------------------------------
Name: Marc Moret
Title: Chairman of the Board
By /s/ ROLF W. SCHWEIZER
------------------------------------
Name: Rolf W. Schweizer
Title: Chief Executive Officer
3
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
PAGE IN
EXHIBIT SEQUENTIAL
NO. NUMBERING SYSTEM
- ------- ----------------
<C> <S> <C>
(a)(12) Credit Facility among Sandoz Corporation, Union Bank of
Switzerland (as Agent) and the banks signatory thereto.
(a)(13) Press Release issued by the Company on August 3, 1994.
</TABLE>
<PAGE> 1
AGREEMENT
DATED / / August, 1994
US$1,800,000,000
CREDIT FACILITY
FOR
SANDOZ CORPORATION
ARRANGED BY
UNION BANK OF SWITZERLAND
CO-ARRANGED BY
CREDIT SUISSE
SWISS BANK CORPORATION
ABN-AMRO BANK N.V.
DEUTSCHE BANK LUXEMBOURG S.A.
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
ALLEN & OVERY
London
<PAGE> 2
INDEX
<TABLE>
<CAPTION>
CLAUSE PAGE
<S> <C> <C>
1. INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. THE FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5. DRAWDOWN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6. REPAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7. PREPAYMENT AND CANCELLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8. INTEREST PERIODS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9. INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10. PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12. MARKET DISRUPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
13. INCREASED COSTS AND ILLEGALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
14. GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
15. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
16. UNDERTAKINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
17 DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
18. THE AGENT AND THE ARRANGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
19. EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
20. INDEMNITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
21. EVIDENCE AND CALCULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
22. AMENDMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
23. CHANGES TO THE PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
24. DISCLOSURE OF INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
25 SET-OFF AND COUNTERCLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
26 PRO RATA SHARING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
27. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
28. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
29. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
30. LANGUAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
31. JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
32. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
</TABLE>
SCHEDULES
<TABLE>
<S> <C>
1. Banks and Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
2. Form of Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Signatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
</TABLE>
<PAGE> 3
THIS AGREEMENT is dated / / August, 1994 between:-
(1) SANDOZ CORPORATION, a company incorporated in the
State of New York (the "Borrower");
(2) SANDOZ AG, a company incorporated in Switzerland (the
"Guarantor");
(3) UNION BANK OF SWITZERLAND as arranger (in this
capacity the "Arranger");
(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as
banks (the "Banks"); and
(5) UNION BANK OF SWITZERLAND as agent (in this capacity
the "Agent").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement:-
"Acquisition" means the acquisition of Gerber Products Company
by an Affiliate of the Borrower.
"Affiliate" means a Subsidiary or a Holding Company (as
defined in Section 736 of the Companies Act 1985) of a person and any other
Subsidiary of that Holding Company.
"Business Day" means a day (other than a Saturday or a Sunday)
on which banks are open for business in London and New York.
"Commitment" means the amount in Dollars set opposite the name
of a Bank in Schedule 1 to the extent not transferred, cancelled or reduced
under this Agreement.
"Commitment Period" means the period from the date of this
Agreement to the Term Date (both dates inclusive).
<PAGE> 4
2
"Default" means an Event of Default or an event which, with
the giving of notice, lapse of time, determination of materiality or
fulfillment of any other applicable condition (or any combination of the
foregoing), would constitute an Event of Default.
"Dollars" or "US$" means the lawful currency from time to time
of the United States of America.
"Drawdown Date" means the date of the advance of the Loan.
"Event of Default" means and event specified as such in Clause
17.1 (Events of Default).
"Facility Office" means the office(s) notified by a Bank to
the Agent:-
(a) on or before the date it becomes a Bank; or
(b) by not less than 5 Business Days' notice.
as the office(s) through which it will perform all or any of its obligations
under this Agreement.
"Final Repayment Date" means the date falling 360 days from
the Drawdown Date.
"Finance Document" means this Agreement or any other document
designated in writing as such by the Agent and the Borrower.
"Finance Parties" means the Arranger, the Banks and the Agent,
and "Finance Party" means any of them.
"Financial Indebtedness" means any indebtedness in respect of:
(a) moneys borrowed and debit balances at banks;
(b) any debenture, bond, note, loan stock or other
security;
(c) any acceptance or documentary credit;
(d) receivables sold or discounted (otherwise than on a
non-recourse basis);
(e) the acquisition cost of any asset to the extent
payable before or after the time of acquisition or possession by the
party liable where the advance or deferred
<PAGE> 5
3
payment is arranged primarily as a method of raising finance or
financing the acquisition of that asset;
(f) leases (whether in respect of land, machinery,
equipment or otherwise) entered into primarily as a method of raising
finance or financing the acquisition of the asset leased;
(g) currency or interest swap, cap or dollar
arrangements; or
(h) any guarantee, indemnity or similar assurance against
financial loss of any person.
"Group" means the Guarantor and its Subsidiaries.
"Interest Period" means each period determined in accordance
with Clause 8 (Interest Period).
"LIBOR" means the arithmetic mean (rounded upward to four
decimal places) of the rates, as supplied to the Agent at its request, quoted
by the Reference Banks to lending banks in the London interbank market at or
about:-
(a) 2:00 p.m. one Business Day before the commencement of
the first Interest Period; or
(b) 2:00 p.m, two Business Days before the commencement
of the relevant subsequent Interest Period;
for the offering of deposits in Dollars of the Loan for a period comparable to
the relevant Interest Period.
"Loan" means, subject to Clause 8 (Interest Period), the
principal amount of the borrowing by the Borrower under this Agreement or the
principal amount outstanding of that borrowing.
"Majority Banks" means, at any time, Banks whose Commitments:-
(a) then aggregate more than 75 per cent. of the Total
Commitments; or
(b) if the Total Commitments have been reduced to zero,
aggregated more than 75 per cent. of the Total Commitments immediately
before the reduction.
"Margin" means 0.06 per cent. per annum.
<PAGE> 6
4
"Material Subsidiary" means a Subsidiary of the Guarantor
whose total assets at the relevant time equal or exceed Swiss Francs
3,000,000,000, and for the purpose of the above the total assets of the
Subsidiary shall be ascertained by reference to:
(a) the accounts (consolidated in the case of a company
which itself has Subsidiaries and which, in the normal course, prepare
consolidated accounts) of the Subsidiary based upon which the latest
audited consolidated accounts of the Group have been made up; or
(b) if the Company becomes a Subsidiary of the Guarantor
after the end of the financial period to which the latest audited
consolidated accounts of the Group relates, the latest accounts
(consolidated in the case of a company which itself has Subsidiaries
and which, in the normal course, prepares consolidated accounts) of
the Subsidiary.
"Obligor" means the Borrower or the Guarantor.
"Original Group Accounts" means the audited consolidated
accounts of the Group for the year ended 31st December, 1993.
"Party" means a party to this Agreement.
"Reference Banks" means the principal London offices of Union
Bank of Switzerland and Morgan Guaranty Trust Company of New York and the
principal Luxembourg office of Luxembourg S.A.
"Request" means the request made by the Borrower for the Loan,
substantially in the form of Schedule 2.
"Security Interest" means any mortgage, pledge, lien, charge,
assignment, hypothecation or security interest or any other agreement or
arrangement having the effect of conferring security.
"Subsidiary" means, in respect of any person, an entity from
time to time whose accounts are consolidated with the annual audited accounts
of that person at that time, in accordance with generally accepted accounting
principles and practices then applicable to that person's audited accounts.
"Term Date" means the date falling 60 days from the date this
Agreement.
"Total Commitments" means the aggregate for the time being of
the Commitments, being US$1,800,000,000 at the date of this Agreement.
<PAGE> 7
5
1.2 Construction
(a) In this Agreement, unless the contrary intention
appears, a reference to:-
(i) "assets" includes properties, revenues and
rights of every description;
an "authorization" includes an authorization, consent,
approval, resolution, licence, exemption, filing, registration
and notarisation;
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 calendar month, except that, if there is no
numerically corresponding day in the month in which that
period ends, that period shall end on the last Business Day in
that calendar month;
a "regulation" which includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental body, agency, department or
regulatory, self-regulatory or other authority or
organisation;
(ii) a provision of a law is a reference to that
provision as amended or re-enacted;
(iii) a Clause or a Schedule is a reference to a
clause or a schedule to this Agreement;
(iv) a person includes its successors and assigns;
(v) a Finance Document or another document is a
reference to that Finance Document or that other document as
amended, novated or supplemented; and
(vi) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a term used in
any other Finance Document or in any notice given under or in
connection with any Finance Document has the same meaning in that
Finance Document or notice as in this Agreement.
(c) The index to and the headings in this Agreement are
for convenience only and are to be ignored in construing this
Agreement.
<PAGE> 8
6
2. THE FACILITY
2.1 Facility
Subject to the terms of this Agreement, the Banks agree to
make a loan available to the Borrower during the Commencement Period up to an
aggregate principal amount not exceeding the Total Commitment. No Bank is
obliged to lend more than its Commitment.
2.2 Nature of a Finance Party's rights and obligations
(a) The obligations of a Finance Party under the Finance
Documents are several. Failure of a Finance Party to carry out those
obligations does not relieve any other Party of its obligations under
the Finance Documents. No Finance Party is responsible for the
obligations of any other Finance Party under the Finance Documents.
(b) The rights of a Finance Party under the Finance
Documents are divided rights. A Finance Party may, except as
otherwise stated in the Finance Documents, separately enforce those
rights.
3. PURPOSE
(a) The Borrower shall apply the Loan towards its
general corporate purposes, including financing the Acquisition.
(b) Without effecting the obligations of either Obligor
in any, no Finance Party is bound to monitor or verify the application
of the Loan.
4. CONDITIONS PRECEDENT
The obligations of each Bank to advance any amount under
Clause 5.3 (Advance of Loan) are subject to the conditions precedent that on
both the date of the Request (if applicable) and the Drawdown Date:-
(a) the representations and warranties in Clause 15
(Representations and Warranties) to be repeated on those dates are
correct and will be correct immediately after the Loan is made; and
(b) no Default is outstanding or would result from the
making of the Loan.
<PAGE> 9
7
5. DRAWDOWN
5.1 Receipt of Request
The Borrower my borrow the Loan in one amount during the
Commitment Period if the Agent receives, not later than 10:00 a.m. one Business
Day prior to the Drawdown Date, a duly completed Request. The undrawn amount
(if any) of the Total Commitments shall automatically be cancelled at close of
business on the Term Date. There must be only one Request which must specify
one Loan only.
5.2 Completion of Request
The Request will not be regarded as having been duly completed
unless:-
(a) the Drawdown Date is a Business Day falling on or
before the Term Date;
(b) the principal amount of the requested Loan is a
minimum of US$100,000,000 and an integral multiple of US$50,000,000;
(c) the first Interest Period selected complies with
Clause 8 (Interest Periods); and
(d) the payment instructions comply with Clause 10
(Payments).
5.3 Advance of Loan
The Agent shall promptly notify each Bank of the details of
the requested Loans. Subject to the terms of this Agreement, each Bank shall
make its participation in the Loan available to the Agent for the Borrower on
the Drawdown Date which the Agent shall advance to the Borrower in cleared
funds by 9:30 a.m (New York time) on the Drawdown Date. The amount of a Bank's
participation in the Loan will be the proportion of the Loan which its
Commitment bears the Total Commitments on the proposed Drawdown Date.
6. REPAYMENT
The Borrower shall repay the Loan in full on or, subject to
the terms of this Agreement, before the Final Repayment Date to the Agent for
the Banks.
<PAGE> 10
8
7. PREPAYMENT AND CANCELLATION
7.1 Voluntary Prepayment
The Borrower may, by giving not less than 5 days' prior notice
to the Agent, prepay the Loan on the last day of an Interest Period for that
Loan in whole or in part (but, if in part, in an integral multiple of
US$50,000,000).
7.2 Additional right of prepayment and cancellation
If either Obligor is or will be required to pay any amount to
a Bank under Clause 11 (Taxes), the Borrower may, whilst the circumstances
giving rise to the requirement continues, serve a notice of prepayment and
cancellation on that Bank through the Agent. On the date falling 5 Business
Days after that date of service of the notice, the Borrower shall prepay that
Banks's participation in the Loan together with all other amounts payable by it
to that Bank under this Agreement.
7.3 Miscellaneous provisions
(a) Any notice of prepayment and/or cancellation under
this Agreement is irrevocable. The Agent shall notify the Banks
promptly of receipt of any such notice.
(b) All prepayments under this Agreement shall be made
together with accrued interest on the amount prepaid.
(c) No prepayment or cancellation is permitted except in
accordance with the express terms of this Agreement.
(d) No amount prepaid under this Agreement may
subsequently be re-borrowed. No amount of the Total Commitments
cancelled under this Agreement may subsequently be reinstated.
8. INTEREST PERIODS
8.1 Selection
(a) The Borrower may select an Interest Period for the
Loan in either the Request or, if the Loan has been borrowed, a notice
received by the Agent not later than 5 Business Days before the
commencement of that Interest Period. Each Interest Period for the
Loan will commence on the Drawdown Date or the expiry of the preceding
Interest Period.
<PAGE> 11
9
(b) Subject to the following provisions of this Clause 8
(Interest Periods), each Interest Period will be for a period of 1, 2,
3 or 6 months or any other period of less than 6 months agreed by the
Borrower and the Banks.
8.2 Non-Business Day
If an Interest Period would otherwise end on a day which is
not a Business Day, the Interest Period shall instead end on the next Business
Day in that calendar month (if there is one) or the preceding Business Day (if
there is not).
8.3 Coincidence with Final Repayment Date
If an Interest Period would otherwise overrun the Final
Repayment Date, it shall be shortened so that it ends on the Final Repayment
Date.
8.4 Notification
The Agent shall notify the Borrower and the Banks of the
duration of each Interest Period promptly after ascertaining its duration.
9. INTEREST
9.1 Interest rate
The rate of interest on the Loan for each of its Interest
Periods is the rate per amounts determined by the Agent to be the aggregate of
the applicable:-
(a) Margin; and
(b) LIBOR.
9.2 Due dates
Except as otherwise provided in this Agreement, accrued
interest on the Loan is payable by the Borrower on the last day of each
Interest Period.
9.3 Default interest
(a) If an Obligor fails to pay any amount payable by it
under this Agreement, it shall forthwith on demand by the Agent pay
(without double counting) interest on the overdue amount from the due
date up to the date of actual payment, as
<PAGE> 12
10
well after as before judgment, at a rate (the "default rate")
determined by the Agent to be 1 per cent per annum above the higher
of:
(i) the rate applicable to the overdue amount
under Clause 9.1 (Interest rate) immediately before the due
date (if of principal); and
(ii) the rate which would have been payable if the
overdue amount had, during the period of non-payment,
constituted a Loan in the currency of the overdue amount for
such successive Interest Periods of such duration as the Agent
may determine (each a "Designated Interest Period").
(b) The default rate will be determined on each Business
Day or the first day of, or two Business Days before the first day of,
the relevant Designated Interest Period, as appropriate.
(c) Default Interest will be compounded at the end of
each Designated Interest Period.
9.4 Notification of interest rates
The Agent shall promptly notify each relevant Party of the
determination of a rate of interest under this Agreement.
10. PAYMENTS
10.1 Place
All payments by an Obligor or a Bank under this Agreement
shall be made to the Agent or to its account at such office or bank in London,
New York or such other place as the Agent and that Obligor may agree for this
purpose. Any such payment by an Obligor shall be a complete discharge to that
Obligor.
10.2 Funds
Payments under this Agreement to the Agent shall be made for
value on the due date at such times and in such funds as the Agent may specify
to the Party concerned as being customary at the time for the settlement of
transactions in Dollars.
10.3 Distribution
(a) Each payment received by the Agent under this
Agreement for another Party shall, subject to paragraph (b) below, be
made available by the Agent to that
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Party by payment (on the date and in the currency and funds of
receipt) to its account with such bank in the principal financial
centre of the country of the relevant currency as it may notify to the
Agent for this purpose by not less than 3 Business Days' prior notice.
(b) Subject to the provisions of Clause 5.3 (Advance of
Loan) where a sum is to be paid under this Agreement to the Agent for
the account of another Party, the Agent is not obliged to pay that sum
to that Party until it has established that it has actually received
that sum. The Agent may, however, assume that the sum has been paid
to it in accordance with this Agreement and, in reliance on that
assumption make available to that Party a corresponding amount. If
the sum has not been made available but the Agent has paid a
corresponding amount to another Party, that Party shall forthwith on
demand refund the corresponding amount to the Agent together with
interest on that amount from the date of payment to the date of
receipt, calculated at a rate determined by the Agent to reflect its
cost of funds.
10.4 Currency
Any amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in Dollars.
10.5 Non-Business Days
(a) If a payment under this Agreement is due on the day
which is not a Business Day, the due date for that payment shall
instead be the next Business Day in the same calendar month (if there
is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of
any principal under this Agreement interest is payable on the
principal at the rate payable on the original due date.
10.6 Partial payments
(a) If the Agent receives a payment insufficient to
discharge all the amounts then due and payable by the Obligors under
this Agreement, the Agent shall apply that payment towards the
obligations of the Obligors under this Agreement in the following
order:-
(i) first, in or towards payment pro rata of any
unpaid costs and expenses of the Agent under this Agreement;
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(ii) secondly, in or towards payment pro rata of
any accrued interest due but unpaid under this Agreement;
(iii) thirdly, in or towards payment pro rata of
any principal due but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of
any other sum due but unpaid under this Agreement.
(b) The Agent shall, if so directed by all the Banks,
vary the order set out in sub-paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above shall override any
appropriation made by an Obligor.
11. TAXES
11.1 No withholding
All payments by an Obligor under the Finance Documents shall
be made without any deduction and free and clear of and without deduction for
or on account of any taxes, except to the extent that the Obligor is required
by law to make payments subject to any taxes.
11.2 Warranty of Finance Parties
Each Finance Party warrants that it is entitled to receive all
payments under the Finance Documents free of any withholding tax imposed in the
United States of America or Switzerland and undertakes that it will take no
action which will cause it to cease to be so entitled.
11.3 Gross-up
Subject always to the provisions of Clauses 11.5 (Mitigation)
and 11.6 (Replacement Banks) if, otherwise than by reason of a breach by any
Finance Party of the warranty or undertaking contained in Clause 11.2 (Warranty
of Finance Parties), any tax or amounts in respect of tax must be deducted in
accordance with the law of the United States of America, Switzerland or any
other jurisdiction in or through which an Obligor makes payment, or any
sub-division of any such jurisdiction, from any amounts payable or paid by an
Obligor under the Finance Documents the Obligor shall pay such additional
amounts as may be necessary to ensure that the Agent receives on account of the
relevant Finance Party a net amount equal to the full amount which it would
have received had payment not been
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made subject to such tax. For the avoidance of doubt, an Obligor shall not be
obliged to make any payment pursuant to this Clause 11.3 (Gross-up) on account
of any tax or amounts in respect of tax which are deducted by the Agent on
distribution to the Banks.
11.4 Refund of tax credits
If an Obligor pays an increased amount under Clause 11.3
(Gross-up) and the relevant Finance Party obtains a refund of tax or any credit
or deduction in computing tax which is attributable to that increased amount,
then the relevant Finance Party shall pay to that Obligor such amount as will
leave that Finance Party in no better nor worse position than that in which it
would have been if no increased amount had been required. Each Finance Party
agrees to use reasonable endeavours to obtain any such refund, credit or
deduction, provided that nothing shall interfere with the right of each Finance
Party to arrange its tax affairs in whatever manner it thinks fit and no
Finance Party shall be obliged to disclose any of its tax affairs or
computations to that Obligor.
11.5 Mitigation
If an Obligor might become under an obligation to pay an
increased amount under Clause 11.3 (Gross-up) each relevant Finance Party shall
take all reasonable steps to prevent such an obligation arising or continuing,
including, if so requested, changing its Facility Office.
11.6 Replacement Banks
Without prejudice either to Clause 7 (Prepayment and
Cancellation) or to the generality of Clause 11.5 (Mitigation), if an Obligor
is obliged or certifies that it will become obliged to pay an amount under
Clause 11.3 (Gross-up) to any Bank, the Obligor may notify the Agent in writing
that it wishes to find another bank or financial institution (the "Replacement
Bank") (which may be an existing Bank) to assume the Commitment and
participation of such Bank (the "Retiring Bank") in which event the Agent
agrees to use all reasonable endeavours to find a Replacement Bank acceptable
to the Borrower. If the Agent or the Borrower is able to find a Replacement
Bank and the Replacement Bank is prepared to execute a novation certificate in
a form reasonably acceptable to the Agent within the period of 90 days of the
date the Agent received such notification and to pay the Retiring Bank in cash
and at par for all amounts due to the Retiring Bank under the Finance
Documents, the Retiring Bank shall promptly execute such novation certificate.
11.7 Tax receipts
All taxes required by law to be deducted or withheld by an
Obligor from any amounts paid or payable under the Finance Documents shall be
paid by the relevant Obligor
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when due and the Obligor shall, within 15 days of the payment being made,
deliver to the Agent for the relevant Bank evidence reasonably satisfactory to
that Bank (including all relevant tax receipts) that the payment has been duly
remitted to the appropriate authority.
12. MARKET DISRUPTION
12.1 Absence of quotations
If a Reference Bank does not supply an offered rate by:
(a) 11:45 a.m. one Business Day before the Drawdown Date;
or
(b) 11:45 a.m. two Business Days before the first day of
any other Interest Period,
the applicable LIBOR shall, subject to Clause 12.2 (Market disruption) below,
be determined on the basis of the quotations of the remaining Reference Banks.
12.2 Market disruption
If, in relation to the Loan by reason of market disruption,
no, or only one, Reference Bank supplies a rate for the purposes of determining
the applicable LIBOR or the default rate or the Agent otherwise determines that
adequate and fair means do not exist for ascertaining the applicable LIBOR or
default rate, the Agent shall promptly notify the Borrower and the relevant
Banks of the fact that this Clause 12 is in operation.
12.3 Suspension of drawdown
If a notification under Clause 12.2 (Market disruption)
applies prior to the Drawdown Date, the Loan shall be made. However, within 5
Business Days of receipt of the notification, the Borrower and the Agent shall
enter into negotiations for a period of not more than 30 days with a view to
agreeing on alternative basis for the borrowing of that Loan. Any alternative
basis agreed shall be, with the prior consent of all the Banks, binding on all
the Parties and in the absence of agreement the provisions of paragraphs (c),
(d) and (e) of Clause 12.4 (Alternative basis for outstanding Loan) shall apply
mutatis mutandis.
12.4 Alternative basis for outstanding Loan
If a notification under Clause 12.2 (Market disruption)
applies to the Loan which is outstanding, then, notwithstanding any other
provision of this Agreement:-
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(a) within 5 Business Days of receipt of the
notification, the Borrower and the Agent shall enter into negotiations
for a period of not more than 30 days with a view to agreeing on
alternative basis for determining the rate of interest and/or funding
applicable to that Loan;
(b) any alternative basis agreed under paragraph (a)
above shall be, with the prior consent of all the Banks, binding on
all the Parties;
(c) if no alternative basis is agreed, each Bank shall
(through the Agent) certify on or before the last day of the Interest
Period to which the notification relates an alternative basis for
maintaining its participation in the Loan;
(d) any such alternative basis may include an alternative
method of fixing the interest rate, alternative Interest Periods or
alternative currencies but it must reflect the cost to the Bank of
funding its participation in the Loan from whatever sources it may
select plus the Margin; and
(e) each alternative basis so certified shall be binding
on the Obligors and the certifying Bank and treated as part of this
Agreement.
12.5 Replacement Banks
Without prejudice to the Borrower's rights under Clause 7
(Prepayment and Cancellation), at any time while an alternative interest rate
or Interest Period (not being an alternative basis agreed pursuant to Clause
12.3 (Suspension of drawdown) or 12.4 (Alternative basis for outstanding Loan))
is in force, the Borrower may notify the Agent in writing that it wishes to
find another bank or financial institution (the "Replacement Bank") (which may
be an existing Bank) to assume the Commitment and participation of such Bank
(the "Retiring Bank") in which event the Agent agrees to use all reasonable
endeavors to find a Replacement Bank acceptable to the Borrower. If the Agent
or the Borrower is able to find a Replacement Bank and the Replacement Bank is
prepared to execute a novation certificate in a form reasonably acceptable to
the Agent within the period of 90 days of the date the Agent received such
notification and to pay the Retiring Bank in cash and at par for all amounts
due to the Retiring Bank under the Finance Documents, the Retiring Bank shall
promptly execute such novation certificate.
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13. INCREASED COSTS AND ILLEGALITY
13.1 Increased costs
In the case of any increased cost incurred by a Finance Party
as a result of any change in law or regulation, the Obligors shall enter into
negotiations with the Agent and that Finance Party in good faith.
13.2 Illegality
(a) If it becomes or is likely to become unlawful in any
jurisdiction for a Bank to give effect to any of its obligations as
contemplated by this Agreement or to fund or maintain its
participation in the Loan, the Bank shall:-
(i) consult with the Borrower through the Agent
forthwith upon becoming aware of the same; and
(ii) use all reasonable endeavours to give effect
to its obligations as contemplated by this Agreement in some
other manner, including by changing its Facility Office or, if
so requested, transferring its participation to another bank
or financial institution acceptable to the Borrower in which
case the provisions of Clause 11.6 (Replacement Banks) shall
apply mutatis mutandis.
(b) In the event that the Bank is unable to find a way to
give effect to its obligations as contemplated by this Agreement in
some other manner, that:-
(i) the Bank may give notice to the Borrower
through the Agent accordingly; and
(ii) the Borrower shall prepay that Bank's
participation in the Loan together with all other amounts
payable by it to that Bank under this Agreement on the date
specified in the notice which shall be the latest date before
unlawfulness supervenes.
14. GUARANTEE
14.1 Guarantee
The Guarantor irrevocably and unconditionally:-
(a) as principal obligor, guarantees to each Finance
Party prompt performance by the Borrower of all its obligations under
the Finance Documents; and
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(b) undertakes with each Finance Party that whenever the
Borrower does not pay any amount when due under or in connection with
any Finance Document, the Guarantor shall forthwith on demand by a
Finance Party through the Agent pay that amount as if the Guarantor
instead of the Borrower were expected to be the principal obligor.
14.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to
the ultimate balance of all sums payable by the Borrower under the Finance
Documents, regardless of any intermediate payment or discharge in whole or in
part.
14.3 Reinstatement
(a) Where any discharge (whether in respect of the
obligation of either Obligor or any security for those obligations or
otherwise) is made in whole or in part or any arrangement is made on
the faith of any payment, security or other disposition which is
avoided or must be restored on insolvency, liquidation or otherwise
without limitation, the liability of the Guarantor under this Clause
14 (Guarantee) shall continue as if the discharge or arrangement had
not occurred.
(b) Each Finance Party may concede or compromise any
claim that any payment, security or other dispositions is liable to
avoidance or restoration.
14.4 Waiver of defences
The obligations of the Guarantor under this Clause 14
(Guarantee) will not be affected by any act, omission, matter or thing which,
but for this provision, would reduce, release or prejudice any of its
obligations under this Clause 14 (Guarantee) or prejudice or diminish those
obligations in whole or in part.
14.5 Immediate recourse
This Guarantor waives any right it may have of first requiring
any Finance Party (or any trustee or agent on its behalf) to proceed against or
enforce any other rights or security or claim payment from any person before
claiming from the Guarantor under this Clause 14 (Guarantee).
14.6 Appropriations
Unless all amounts claimed under this Clause 14 (Guarantee)
have been irrevocably paid in full, each Finance Party (or any trustee or agent
on its behalf) may
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refrain from applying or enforcing any other moneys, security or rights held or
received by the Finance Party (or any trustee or agent on its behalf) in
respect of those amounts, or apply and enforce the same in such manner and
order as it sees fit (whether against those amounts or otherwise) and the
Guarantor shall not be entitled to the benefit of the same.
14.7 Non-competition
Unless all amounts claimed under this Clause 14 (Guarantee)
have been irrevocably paid in full, the Guarantor shall not:-
(a) be subrogated to any rights, security or moneys held,
received or receivable by any Finance Party (or any trustee or agent
on its behalf) or be entitled to any right of contribution or
indemnity in respect of any payment made or moneys received on account
of the Guarantor's liability under this Clause 14 (Guarantee);
(b) claim, rank, prove or vote as a creditor of the
Borrower or its estate in competition with any Finance Party (or any
trustee or agent on its behalf); or
(c) receive, claim or have the benefit of any payment,
distribution or security from or on account of the Borrower, or
exercise any right of set-off as against the Borrower.
The Guarantor shall hold in trust for and forthwith pay or
transfer to the Agent for the Finance Parties any payment or distribution or
benefit of security received by it contrary to this Clause 14.7.
14.8 Additional security
This guarantee is in addition to and is not in any way
prejudiced by any other security now or hereafter held by any Finance Party.
15. REPRESENTATIONS AND WARRANTIES
15.1 Representations and warranties
Each Obligor makes the representations and warranties set out
in this Clause 15 (Representations and warranties) to each Finance Party.
15.2 States
(a) it is a limited liability company, duly incorporated
and validly existing under the laws of the jurisdiction of its
incorporation; and
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(b) each number of the Group has the power to own its
assets and carry on its business as it is being conducted.
15.3 Powers and authority
It has the power to enter into and perform, and has taken all
necessary action to authorise the entry into, performance and delivery of, the
Finance Documents to which it is or will be a party and the transactions
contemplated by those Finance Documents.
15.4 Legal validity
Provided that nothing in this Agreement shall be deemed to
constitute a representation or warranty that a court would exercise its
discretion to order specific performance of any obligations or provide any
other equitable remedy, each Finance Document to which it is or will be a party
constitutes, or when executed in accordance with its terms will constitute, its
legal, valid and binding obligation enforceable in accordance with its terms.
15.5 Non-conflict
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not:-
(a) conflict with any law or regulation or judicial or
official order; or
(b) conflict with its constitutional documents; or
(c) conflict with any document which is binding upon it.
15.6 No Default
No Default is outstanding or will result from the making of
the Loan.
15.7 Authorisations
All authorisations required in connection with the entry into,
performance, validity and enforceability of, and the transactions contemplated
by, the Finance Documents have been obtained or effected (as appropriate) and
are in full force and effect.
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15.8 Accounts
(a) In the case of the Guarantor, the audited
consolidated accounts of the Group most recently delivered to the
Agent (which, at the date of this Agreement, are the Original Group
Accounts):-
(i) have been prepared in accordance with
accounting principles and practices which are generally
accepted internationally and are consistently applied; and
(ii) fairly represent the consolidated financial
condition of the Group as at the date to which they were drawn
up,
and there has been no material adverse change in the consolidated financial
condition of the Group since the date to which these accounts were drawn up.
(b) In the case of Borrower, its audited accounts most
recently delivered to the Agent:-
(i) have been prepared in accordance with
accounting principles and practices generally accepted in the
jurisdiction of its incorporation consistently applied; and
(ii) fairly represent its financial condition as
at the date to which they were drawn up,
and there has been no material adverse change in the financial condition of the
Borrower since the date to which those accounts were drawn up.
15.9 Times for making representations and warranties
The representations and warranties set out in this Clause 15
(Representations and warranties):-
(a) are made on the date of this Agreement; and
(b) are deemed to be repeated by each Obligor on the date
of the Request.
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16. UNDERTAKINGS
16.1 Duration
The undertakings in this Clause 16 (Undertakings) remain in
force from the date of this Agreement for so long as any amount is or may be
outstanding under this Agreement or any Commitment is in force.
16.2 Financial Information
Each Obligor shall supply to the Agent in sufficient copies
for all the Banks as soon as the same are available (and in any event within
180 days of the end of each of its financial years):-
(a) in the case of the Guarantor, the audited
consolidated accounts of the Group for that financial year; and
(b) in the case of the Borrower, its audited accounts for
that financial year.
16.3 Notification of Event of Default
Each Obligor shall notify the Agent of any Event of Default
(and the steps, if any, being taken to remedy it) promptly upon its occurrence.
16.4 Authorisations
Each Obligor shall promptly:-
(a) obtain, maintain and comply with the terms of, and
(b) supply copies to the Agent of,
any authorisation specified by the Agent which is required under any law or
regulation to enable it to perform its obligations under, or for the validity
or enforceability of, any Finance Document.
16.5 Pari passu ranking
Each Obligor shall promote that its obligations under the
Finance Documents do and will rank at least pari passu with all its other
present and future unsecured obligations, except for obligations which are
mandatorily preferred by law applying to companies generally in the relevant
jurisdiction.
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16.6 Negative pledge
(a) Neither Obligor shall, and the Guarantor shall
procure that no Material Subsidiary will, create or permit to subsist
any Security interest created after the date of this Agreement on any
of its assets.
(b) Paragraph (a) does not apply to:
(i) any lien arising by operation of law in the
ordinary course of business and securing amounts not more than
30 days overdue; or
(ii) any Security Interest securing Financial
Indebtedness or indebtedness not exceeding in aggregate
US$500,000,000 (or its equivalent in any other currency); or
(iii) any Security Interest created with the prior
consent of the Agent acting on the reasonable instructions of
the Majority Banks.
(c) If either Obligor creates or permits to subsist any
Security Interest on any of its assets contrary to paragraph (a)
above, all the obligations of that Obligor under this Agreement shall
automatically and immediately be secured upon the same assets, ranking
at least pari passu with the other obligations secured on those
assets.
17 DEFAULT
17.1 Events of Default
Each of the events set out in Clauses 17.2 (Non-Payment) to
17.14 (Material adverse change) (inclusive) is an Event of Default (whether or
not caused by any reason whatsoever outside the control of either Obligor or
any other person).
17.2 Non-payment
An Obligor does not pay on the due date any amount payable by
it under the Finance Documents at the place at and in the currency to which it
is expressed to be payable and, in the case only of a failure to pay resulting
from a technical or administrative error, that failure to pay is not remedied
within 3 Business Days of the due date.
17.3 Breach of other obligations
An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 17.2 (Non-Payment)) and the
default (if it is capable
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of remedy) is not remedied within 14 days after the earlier of the Agent giving
notice of the default to the Borrower or the Borrower becoming aware of the
same.
17.4 Misrepresentation
A representation, warranty or statement made or repeated in or
in connection with any Finance Document or in any document delivered by or on
behalf of either Obligor under or in connection with any Finance Document is
incorrect in any material respect when made or deemed to be made or repeated.
17.5 Cross-default
For Financial Indebtedness referred to in paragraphs (a) to
(d) (inclusive) below which is in an aggregate amount of US$200,000,000 or more
(or its equivalent in other currencies):
(a) any Financial Indebtedness of an Obligor or a
Material Subsidiary is not paid when due or after the expiry of any
applicable grace period;
(b) an event of default howsoever described occurs which
is continuing unremedied and unwaived under any document relating to
Financial Indebtedness of an Obligor or a Material Subsidiary, except
where that event of default is, in the reasonable opinion of the
Agent, being contested in good faith;
(c) any Financial Indebtedness of an Obligor or a
Material Subsidiary becomes prematurely due and payable or is placed
on demand as a result of an event of default (howsoever described)
under the document relating to that Financial Indebtedness, except
where that event of default is, in the reasonable opinion of the
Agent, being contested in good faith;
(d) any Security Interest securing Financial Indebtedness
over any asset of an Obligor or a Material Subsidiary is enforced.
17.6 Insolvency
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(a) An Obligor or a Material Subsidiary is, or is deemed
for the purposes of any law to be, unable to pay its debts as they
fall due or to be insolvent, or admits inability to pay its debts as
they fall clear, or
(b) an Obligor or a Material Subsidiary suspends making
payments on all or any class of its debts or announces an intention to
do so, or a moratorium is declared in respect of any of its
indebtedness, or
(c) an Obligor or a Material Subsidiary by reason of
financial difficulties, begins negotiations with one or more of its
creditors with a view to the readjustment or rescheduling of any of
its indebtedness.
17.7 Insolvency proceedings
(a) Any step (including petition, proposal or convening a
meeting) is taken with a view to a composition, assignment or
arrangement with any creditors of an Obligor or a Material Subsidiary;
or
(b) a meeting of an Obligor or a Material Subsidiary is
convened for the purpose of considering any resolution for (or to
petition for) its winding-up or its administration or any such
resolution is passed; or
(c) any order for the winding-up or administration of an
Obligor or a Material Subsidiary is made; or
(d) any other step (including petition, proposal or
convening a meeting) is taken with a view to the rehabilitation,
administration, custodianship, liquidation, winding-up or dissolution
of an Obligor or a Material Subsidiary or any other insolvency
proceedings involving an Obligor or a Material Subsidiary.
17.8 Appointment of receivers and managers
(a) Any liquidator, trustee in bankruptcy, judicial
custodian, compulsory manager, receiver, administrative receiver,
administrator or the like is appointed in respect of an Obligor or a
Material Subsidiary or any part of its assets; or
(b) the directors of an Obligor or a Material Subsidiary
requests the appointment of a liquidator, trustee in bankruptcy,
judicial custodian, compulsory manager, receiver, administrative
receiver, administrator or the like.
17.9 Analogous proceedings
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There occurs, in relation to an Obligor or a Material
Subsidiary, any event anywhere which, in the opinion of the Majority Banks,
appears to correspond with any of those mentioned in Clauses 17.6 (Insolvency)
to 17.8 (Appointment of receivers and managers) (inclusive).
17.10 Cessation of business
An Obligor or a Material Subsidiary ceases, or threatens to
cease, to carry on all or a substantial part of its business.
17.11 Unlawfulness
It is or becomes unlawful for either Obligor to perform any of
its obligations under the Finance Documents.
17.12 Guarantee
The guarantee of the Guarantor is not or ceases to be, or is
alleged by an Obligor not to be or to cease to be, its legal valid and binding
obligation enforceable in accordance with its terms to the fullest extent of
its actual and contingent obligations under that guarantee, subject to the
proviso in Clause 15.4 (Legal validity).
17.13 Ownership of the Borrower
The Borrower is not or ceases to be a Subsidiary of the
Guarantor.
17.14 Material Adverse Change
Any event or series of events occurs which, in the reasonable
opinion of the Majority Banks, would be likely to have a material and adverse
effect on the ability of the Guarantor to comply with its obligations under the
Finance Documents.
17.15 Acceleration
On and at any time after the occurrence of an Event of Default
the Agent may, and shall if so directed by the Majority Banks, by notice to the
Borrower:-
(a) cancel the Total Commitments; and/or
(b) demand that all or part of the Loan, together with
accrued interest, and all other amounts accrued under this Agreement
be immediately due and payable, whereupon they shall become
immediately due and payable; and or
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(c) demand that all or part of the Loan be payable on
demand, whereupon they shall immediately become payable on demand.
18. THE AGENT AND THE ARRANGER
18.1 Appointment and duties of the Agent
Each Finance Party (other than the Agent) irrevocably appoints
the Agent to act as its agent under and in connection with the Finance
Documents, and irrevocably authorises the Agent on its behalf to perform the
duties and to exercise the rights, powers and discretions that are specifically
delegated to it under or in connection with the Finance Documents, together
with any other incidental rights, powers and discretions. The Agent shall have
only those duties which are expressly specified in this Agreement. Those
duties are solely of a mechanical and administrative nature.
18.2 Role of the Arranger
Except as otherwise provided in this Agreement, the Arranger
has no obligations of any kind to any other Party under or in connection with
any Finance Document.
18.3 Relationship
The relationship between the Agent and the other Finance
Parties is that of agent and principal only. Nothing in this Agreement
constitutes the Agent as trustee or fiduciary for any other Party or any other
person and the Agent need not hold in trust any moneys paid to it for a Party
or be liable to account for interest on those moneys.
18.4 Majority Banks' directions
(a) Subject to paragraph (b) below, the Agent will be
fully protected if it acts in accordance with the instructions of the
Majority Banks in connection with the exercise of any right, power or
discretion or any matter not expressly provided for in the Finance
Documents. Any such instructions given by the Majority Banks will be
binding on all the Banks. In the absence of such instructions the
Agent may act as it considers to be in the best interests of all the
Banks.
(b) The Agent is not authorised (without first obtaining
a Bank's consent to so act) to act on behalf of that Bank in any legal
action or proceedings in relation to any Finance Document.
18.5 Delegation
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This Agent may act under the Finance Documents through its
personnel and agents.
18.6 Responsibility for documentation
Neither the Agent nor the Arranger is responsible to any other
Party for:-
(a) the execution, genuineness, validity, enforceability
or sufficiency of any Finance Document or any other document;
(b) the collectability of amounts payable under any
Finance Document; or
(c) the accuracy of any statements (whether written or
oral) made in or in connection with any Finance Document.
18.7 Default
(a) The Agent is not obliged to monitor or enquire as to
whether or not a Default has occurred. The Agent will not be deemed
to have knowledge of the occurrence of a Default. However, if the
Agent receives notice from a Party referring to this Agreement,
describing the Default and stating that the event is a Default or the
Agent (in its capacity as Agent) becomes aware of a Default, it shall
promptly notify the Banks.
(b) The Agent may require the receipt of security
satisfactory to it whether by way of payment in advance or otherwise,
against any liability or loss which it will or may incur in taking any
proceedings or action arising out of or in connection with any Finance
Document before it commences these proceedings or takes that action.
18.8 Exoneration
(a) Without limiting paragraph (b) below, the Agent will
not be liable to any other Party for any action taken or not taken by
it under or in connection with any Finance Document, unless directly
caused by its negligence or willful misconduct.
(b) No Party may take any proceedings against any
officer, employee or agent of the Agent in respect of any claim it
might have against the Agent or in respect of any act or omission of
any kind (including negligence or willful misconduct) by that officer,
employee or agent in relation to any Finance Document.
<PAGE> 30
28
18.9 Reliance
The Agent may:-
(a) rely on any notice or document believed by it to be
genuine and correct and to have been signed by, or with the authority
of, the proper person;
(b) rely on any statement made by a director or employee
of any person regarding any matters which may reasonably be assumed to
be within his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other
professional advisers selected by it (including those in the Agent's
employment and those representing a Party other than the Agent).
18.10 Credit approval and appraisal
Without affecting the responsibility of either Obligor for
information supplied by it or on its behalf in connection with any Finance
Document, each Bank confirms that it: -
(a) has made its own independent investigation and
assessment of the financial condition and affairs of each Obligor and
its related entities in connection with its participation in this
Agreement and has not relied exclusively on any information provided
to it by the Agent or the Arranger in connection with any Finance
Document; and
(b) will continue to make its own independent appraisal
of the creditworthiness of each Obligor and its related entities while
any amount is or may be outstanding under the Finance Documents or any
Commitment is in force.
(c) engage, pay for an rely on legal or other
professional advisers selected by it (including those in the Agent's
employment and those representing a Party other than the Agent).
18.11 Information
(a) The Agent shall promptly forward to the person
concerned the original or a copy of any document which is delivered to
the Agent by a Party for that person.
<PAGE> 31
29
(b) Except where this Agreement specifically provides
otherwise, the Agent is not obliged to review or check the accuracy or
completeness of any document it forwards to another Party.
(c) Except as provided above, the Agent has no duty:-
(i) either initially or on a continuing basis to
provide any Bank with any credit or other information
concerning the financial condition or affairs of either
Obligor or any related entity of either Obligor whether coming
into its possession or that of any of its related entities
before, on or after the date of this Agreement; or
(ii) unless specifically requested to do so by a
Bank in accordance with this Agreement to request any
certificates or other documents from any Obligor.
18.12 The Agent and the Arranger individually
(a) If it is also a Bank, each of the Agent and the
Arranger has the same rights and powers under this Agreement as any
other Bank and may exercise those rights and powers as though it were
not the Agent or the Arranger;
(b) Each of the Agent and the Arranger may:-
(i) carry on any business with an Obligor or its
related entities;
(ii) act as agent or trustee for, or in relation
to any financing involving, an Obligor or its related
entities; and
(iii) retain any profits or remuneration in
connection with its activities under this Agreement or in
relation to any of the foregoing.
18.13 Indemnities
(a) Without limiting the liability of either Obligor
under the Finance Documents, each Bank shall forthwith on demand
indemnify the Agent (to the extent that the Agent is not reimbursed by
the Borrower) for its proportion of any liability or loss incurred by
the Agent in any way relating to or arising out of its acting as the
Agent, except to the extent that the liability or loss arises directly
from the Agent's negligence or willful misconduct.
<PAGE> 32
30
(b) A Bank's proportion of the liability or loss set out
in paragraph (a) above is the proportion which its participation in
the Loan (if any) bears to the Loan on the date of the demand. If,
however, the Loan is not outstanding on the date of demand, then the
proportion will be the proportion which its Commitment bears to the
Total Commitments at the date of demand or, if the Total Commitments
have been cancelled, bore to the Total Commitments immediately before
being cancelled.
18.14 Compliance:
(a) The Agent may refrain from doing anything which would
constitute a breach of any law or regulation or be otherwise
actionable at the suit of any person, and may do anything which is
necessary to comply with any law or regulation of any relevant
jurisdiction.
(b) Without limiting paragraph (a) above, the Agent need
not disclose any information relating to either Obligor or any of its
related entities if the disclosure might, in the opinion of the Agent,
constitute a breach of any law or regulation or any duty of secrecy or
confidentiality or be otherwise actionable at the suit of any person.
18.15 Resignation of Agent
(a) Notwithstanding its irrevocable appointment, the
Agent may resign by giving notice to the Banks and the Borrower, in
which case the Agent may with the prior approval of the Borrower
forthwith appoint one of its Affiliates as successor Agent. If the
Agent does not appoint one of its Affiliates as successor Agent, and
the Borrower has consented to the resignation, the Majority Banks and
the Borrower may appoint a successor Agent.
(b) The Majority Banks may remove the Agent with the
consent of the Borrower by giving notice to the Agent. The Majority
Banks and the Borrower may then appoint a successor Agent.
(c) If the appointment of a successor Agent is to be made
by the Majority Banks and the Borrower but they have not, within 30
days after notice of resignation, appointed a successor Agent which
accepts the appointment, the retiring Agent may appoint a successor
Agent approved by the Borrower.
(d) The resignation of the retiring Agent and the
appointment of any successor Agent will both become effective only
upon the successor Agent notifying all the Parties that it accepts the
appointment. On giving the notification, the successor Agent will
succeed to the position of the retiring Agent and the term "Agent"
will mean the successor Agent.
<PAGE> 33
31
(e) The retiring Agent shall, at its own cost, make
available to the successor Agent such documents and records and
provide such assistance as the successor Agent may reasonably request
for the purposes of performing its functions as the Agent under this
Agreement.
(f) Upon its resignation becoming effective, this Clause
18 (The Agent and the Arranger) shall continue to benefit the retiring
Agent in respect of any action taken or not taken by it under or in
connection with the Finance Documents while it was the Agent, and,
subject to paragraph (d) above, it shall have no further obligation
under any Finance Document.
18.16 Banks
The Agent may treat each Bank as a Bank, entitled to payments
under this Agreement and as acting through its Facility Office(s) until it has
received notice from the Bank to the contrary by not less than 5 Business Days
prior to the relevant payment.
19. EXPENSES
The Borrower shall forthwith on demand pay to each Finance
Party the amount of all costs and expenses (including legal fees) incurred by
it in connection with the enforcement of any Finance Document.
20. INDEMNITIES
The Borrower shall forthwith on demand indemnify each Finance
Party against any loss or liability which that Finance Party incurs as a
consequence of:-
(a) any payment of principal or an overdue amount being
received from any source otherwise than on the last day of a relevant
Interest Period or Designated Interest Period (as defined in Clause
9.3 (Deficit interest)); or
(b) (other than by reason of negligence or deficit by a
Finance Party) the Loan and being made after the Borrower has
delivered a Request for that Loan or the Loan (or part of the Loan)
not being prepaid in accordance with a notice of prepayment.
The Borrower's liability in each case includes any loss of
margin or other loss or expense on account of funds borrowed, contracted for or
utilized to find any amount payable under any Finance Document, any amount
repaid or prepaid or the Loan.
21. EVIDENCE AND CALCULATIONS
<PAGE> 34
32
21.1 Accounts
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they relate.
21.2 Calculations
Interest accrues from day to day and is calculated on the
basis of the actual number of days elapsed and a year of 360 days.
22. AMENDMENTS AND WAIVERS
22.1. Procedure
(a) Subject to Clause 22.2 (Exceptions), any term of the
Finance Documents may be amended or waived with the agreement of the
Borrower, the Majority Banks and the Agent. The Agent may affect, on
behalf of the Banks, an amendment to which they or the Majority Banks
have agreed.
(b) The Agent shall promptly notify the other Parties of
any amendment or waiver effected under paragraph (a) above, and any
such amendment or waiver shall be binding on all the Parties.
22.2 Exceptions
An amendment or waiver not agreed by a Bank which relates to:-
(a) the definition of "Majority Banks" in Clause 1.1;
(b) an extension of the date for; or a decrease in an
amount or a change in the currency of, any payment under the Finance
Documents;
(c) an increase in a Bank's Commitment;
(d) the incorporation of additional borrowers and/or
drawers or a change in the Guarantor;
(e) a term of a Finance Document which expressly requires
the consent of each Bank; or
(f) Clauses 2.2(b) (Nature of a Finance Party's rights
and obligations), 14 (Guarantee), 26 (Pro rata sharing) or this Clause
22 (Amendments and waivers),
<PAGE> 35
33
is not binding on that Bank.
22.3 Waivers and remedies cumulative:-
The rights of each Finance Party under the Finance Documents:-
(i) may be exercised as often as necessary;
(ii) are cumulative and not exclusive of its rights under
the general law; and
(iii) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a
waiver of that right.
23. CHANGES TO THE PARTIES
(a) The Borrower may not assign, transfer, novate or
dispose of any of, or any interest in, its rights and/or obligations
under this Agreement.
(b) A Bank may assign, transfer, novate or dispose of
any, or any interest in, its rights and/or obligations under this
Agreement only to an Affiliate and for as long as it remains an
Affiliate with the prior consent of the Borrower.
24. DISCLOSURE OF INFORMATION
A Bank may disclose to one of its Affiliates with whom it is
proposing to enter, or has entered into, any kind of transfer, participation or
other agreement in relation to this Agreement a copy of any Finance Document
and any other document in the public domain. Each Bank will comply with all
obligations of confidentiality under English law and the laws of the relevant
jurisdiction of the Bank in respect of any information which that Bank has
acquired under or in connection with any Finance Document.
25 SET-OFF AND COUNTERCLAIM
All payments made by any Party under this Agreement shall be
made without set-off or counterclaim, save as required under any law.
<PAGE> 36
34
26 PRO RATA SHARING
26.1 Redistribution
If any amount owing by an Obligor under this Agreement to a
Finance Party (the "recovering Finance Party") is discharged by payment,
set-off or any other manner other than through the Agent in accordance with
Clause 10 (Payments) (a "recovery"), then:-
(a) the recovering Finance Party shall, within 3 business
Days, notify details of the recovery to the Agent;
(b) the Agent shall determine whether the recovery is in
excess of the amount which the recovering Finance Party would have
received had the recovery been received by the Agent and distributed
in accordance with Clause 10 (Payments);
(c) subject to Clause 26.3 (Exception), the recovering
Finance Party shall, within 3 Business Days of demand by the Agent,
pay to the Agent an amount (the "redistribution") equal to the excess;
(d) the Agent shall treat the redistribution as if it
were a payment by the Obligor concerned under Clause 10 (Payments) and
shall pay the redistribution to the Finance Parties (other than the
recovering Finance Party) in accordance with Clause 10.6 (Partial
Payments); and
(e) after payment of the full redistribution, the
recovering Finance Party will be subrogated to the portion of the
claims paid under paragraph (d) above, and that Obligor will owe the
recovering Finance Party a debt which is equal to the redistribution,
immediately payable and of the type originally discharged.
26.2 Reversal of redistribution
If under Clause 26.1 (Redistribution):-
(a) a recovering Finance Party must subsequently rebate a
recovery, or an amount measured by reference to a recovery, to an
Obligor; and
(b) the recovering Finance Party has paid a
redistribution in relation to that recovery,
each Finance Party shall, within 3 Business Days of demand by the recovering
Finance Party through the Agent, reimburse the recovering Finance Party all or
the appropriate portion of
<PAGE> 37
35
the redistribution paid to that Finance Party. Thereupon the subrogation in
Clause 26.1(e) (Redistribution) will operate in reverse to the extent of the
reimbursement.
26.3 Exception
A recovering Finance Party need not pay a redistribution to
the extent that it would not, after the payment, have a valid claim against the
Obligor concerned in the amount of the redistribution payment to Clause 26.1(e)
(Redistribution).
27. SEVERABILITY
If a provision of any Finance Document is or becomes illegal,
invalid or unenforceable in any jurisdiction, that shall not affect:-
(a) the legality, validity or enforceability in that
jurisdiction of any other provision of the Finance Documents; or
(b) the legality, validity or enforceability in other
jurisdictions of that or any other provision of the Finance Documents.
28. COUNTERPARTS
This Agreement may be executed in any number of counterparts,
and this has the same effect as if the signatures on the counterparts were on a
single copy of this Agreement.
29. NOTICES
29.1 Giving of notices
All notices or other communications under or in connection
with this Agreement shall be given in writing or by telex or facsimile. Any
such notice will be deemed to be given as follows:-
(a) if in writing, when delivered;
(b) if by telex, when despatched, but only if, at the
time of transmission, the correct answerback appears at the start and
at the end of the sender's copy of the notice; and
(c) if by facsimile, when received.
<PAGE> 38
36
However, a notice given in accordance with the above but
received on a non-working day or after business hours in the place of receipt
will only be deemed to be given on the next working day in that place.
29.2 Addresses for notices
(a) The address, telex number and facsimile number of
each Party (other than the Agent) for all notices under or in
connection with this Agreement and:-
(i) that notified by that Party for this purpose
to the Agent on or before it becomes a Party; or
(ii) any other notified by that Party for this
purpose to the Agent by not less than five Business Days'
notice.
(b) The address, telex number and facsimile number of the
Agent is:-
100 Liverpool Street
London EC2M 2RH
Telex No: 9413944 UBS CORG/9413848 UBS CORG
Facsimile No: 071-901 2903
For the attention of: Credit Administration/Agency
or such other as the Agent may notify to the other Parties by not less
than 5 Business Days' notice.
(c) The Agent shall, promptly upon request from any
Party, give to that Party the address, telex number or facsimile
number of any other Party applicable at the time for the purposes of
this Clause.
30. LANGUAGE
(a) Any notice given under or in connection with any
Finance Document shall be in English.
(b) All other documents provided under or in connection
with any Finance Document shall be:-
(i) in English; or
<PAGE> 39
37
(ii) if not in English, accompanied by a certified
English translation and, in this case, the English translation
shall prevail unless the document is a statutory or other
official document.
31. JURISDICTION
31.1 Submission
For the benefit of each other Party, each Party agrees that
the courts of England have jurisdiction to settle any disputes in connection
with any Finance Document and accordingly submits to the jurisdiction of the
English courts.
31.2 Service of process
Without prejudice to any other mode of service, each Obligor:-
(a) irrevocably appoints Sandoz Holdings GB Limited as
its agent for service of process relating to any proceedings before
the English courts in connection with any Finance Document;
(b) agrees that failure by a process agent to notify the
Borrower or the Guarantor of the process will not invalidate the
proceedings concerned; and
(c) consents to the service of process relating to any
such proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 29.2 (Addresses for
notices).
31.3 Forum convenience and enforcement abroad
Each party:-
(a) waives objection to the English courts on grounds of
inconvenience forum or otherwise as regards proceedings in connection
with a Finance Document; and
(b) agrees that a judgment or order of an English court
in connection with a Finance Document is conclusive and binding on it
and may be enforced against it in the courts of any other
jurisdiction.
<PAGE> 40
38
31.4 Non-exclusivity
Nothing in this Clause 31 limits the right of a Party to bring
proceedings against any other party in connection with any Finance Document:-
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
32. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the
beginning of this Agreement.
<PAGE> 41
39
SCHEDULE 1
BANKS AND COMMITMENTS
<TABLE>
<CAPTION>
Banks Commitments
US$
<S> <C>
Union Bank of Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . 400,000,000
Credit Suisse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400,000,000
Swiss Bank Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . 400,000,000
ABN-AMRO Bank N.V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200,000,000
Deutsche Bank Luxembourg, S.A. . . . . . . . . . . . . . . . . . . . . . . . 200,000,000
Morgan Guaranty Trust Company of New York . . . . . . . . . . . . . . . . . . 200,000,000
----------------
Total Commitments . . . . . . . . US$1,800,000,000
----------------
</TABLE>
<PAGE> 42
40
SCHEDULE 2
FORM OF REQUEST
To: UNION BANK OF SWITZERLAND as Agent
From: SANDOZ CORPORATION
Dated: / /
SANDOZ CORPORATION-US$1,800,000,000 CREDIT AGREEMENT
DATED / / AUGUST, 1994
We wish to borrow a Loan as follows:
(a) Drawdown Date: / /
(b) Amount: / /
(c) Interest Period: / /
(d) Payment Instructions: / /
By:
SANDOZ CORPORATION
Authorized Signatory
<PAGE> 43
41
SIGNATORIES
Borrower
SANDOZ CORPORATION
By: /s/ Heinz Imhof
Guarantor
SANDOZ AG
By: /s/ Raymund Breu
/s/ Alexandre Jetzer
Arranger
UNION BANK OF SWITZERLAND
By: /s/ Christof Hassig
Banks
UNION BANK OF SWITZERLAND
By: /s/ Christof Hassig
<PAGE> 44
Banks (continued) 42
CREDIT SUISSE
By: /s/ Peter W. Braun
SWISS BANK CORPORATION
By: /s/ Christof Hassig
ABN-AMRO Bank N.V.
By: /s/ Christof Hassig
DEUTSCHE BANK LUXEMBOURG S.A.
By: /s/ Christof Hassig
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Christof Hassig
Agent
UNION BANK OF SWITZERLAND
By: /s/ Jonathan MacDonald
/s/ Hans Fuchs
<PAGE> 1
EXHIBIT B
Contact: Tim Croasdaile
(616) 928-2718
GERBER DECLARES DIVIDEND
Fremont, MI, August 3, 1994 -- Gerber Products Company (NYSE:GEB) board of
directors declared a regular quarterly dividend on its common stock of $.215
per share, payable September 10, 1994, to shareholders of record on August 16,
1994.
As previously announced, a subsidiary of Sandoz Ltd. has made an offer to
purchase for cash all of the outstanding shares of common stock of Gerber
Products Company at a price of $53.00 per share. The offer is scheduled to
expire at 5:00 p.m., New York City time, on August 24, 1994, unless extended.
Assuming that the Sandoz tender offer has not closed prior to the record date
of August 16, 1994, Gerber shareholders of record on the record date will be
entitled to receive the dividend on the dividend payment date regardless of
whether their shares have been tendered to Sandoz in response to its offer and
regardless of whether the Sandoz offer is consummated before or after the
dividend payment date of September 10, 1994. Holders of Gerber Products
Company shares will not be required to withdraw shares previously tendered to
Sandoz in response to its offer or take any other action as a result of the
tender offer in order to be entitled to receive the dividend.
###
