CLIFFORD CHANCE LLP
Exhibit 10
(ll)
XXXXXXXX
CHANCE LLP
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CONFORMED
COPY
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USD
225,000,000
SECURED
FACILITIES AGREEMENT
amended
and restated as at 23 May 2007
for
FLEXSYS
HOLDING B.V.
arranged
by
KBC
BANK N.V.
AND
CITIGROUP
GLOBAL MARKETS LIMITED
with
KBC
BANK N.V.
acting
as Agent
and
KBC
BANK N.V.
acting
as Security Trustee
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CONFORMED
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CONTENTS
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Clause
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CONFORMED
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SCHEDULE
1 The Original Parties
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143
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Part
I The Original Obligors
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143
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Part
II The Original Lenders
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145
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SCHEDULE
2 Conditions Precedent And Conditions Subsequent
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146
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Part
I Conditions Precedent To Initial
Utilisation
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146
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Part
II Conditions Subsequent To Initial
Utilisation
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156
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Part
III Conditions Precedent Required To Be Delivered By An Additional
Obligor
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159
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SCHEDULE
3 Requests
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163
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Part
I A Utilisation Request Loans
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163
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Part
I B Utilisation Request Letters Of Credit
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165
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Part
II Selection Notice
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167
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SCHEDULE
4 Mandatory Cost Formulae
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168
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SCHEDULE
5 Form Of Transfer Certificate
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171
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SCHEDULE
6 Form Of Accession Letter
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173
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SCHEDULE
7 Form Of Resignation Letter
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174
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SCHEDULE
8 Form Of Compliance Certificate
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175
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SCHEDULE
9 Timetables
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177
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Part
I Loans
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177
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Part
II Letters Of Credit
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179
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SCHEDULE
10 Form Of Letter Of Credit
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180
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SCHEDULE
11 Centre Of Main Interests And Establishments
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183
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SCHEDULE
12 Agreed Security Principles
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185
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CONFORMED
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SCHEDULE
13 Sources And Uses Table
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188
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CONFORMED
COPY
THIS
AGREEMENT is amended and restated as at 23 May 2007 and made
between:
(1)
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FLEXSYS
HOLDING B.V. a private company with limited liability incorporated
under the laws of The Netherlands having its seat in Deventer, The
Netherlands and its registered office at Xxxxxxxxxxxx 00000, 0000 XX
Xxxxxxxx, Xxx Xxxxxxxxxxx and registered with the Chamber of Commerce
under number 38023104 (the "Company");
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(2)
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THE
SUBSIDIARIES of the Company listed in Part I of Schedule 1 (The
Original Parties) as original borrowers (together with the Company
the "Original
Borrowers");
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(3)
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THE
ENTITIES listed in Part I of Schedule 1 (The
Original Parties) as original guarantors (together with the Company
the "Original
Guarantors");
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(4)
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KBC
BANK N.V. and CITIGROUP
GLOBAL MARKETS LIMITED as mandated lead arrangers (whether acting
individually or together the "Arranger");
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(5)
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THE
FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The
Original Parties) as lenders (the "
Original Lenders");
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(6)
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KBC
BANK N.V. as agent of the other Finance Parties (the "Agent");
and
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(7)
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KBC
BANK N.V. as security agent and/or as security trustee for the
Secured Parties (the "Security
Trustee").
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IT IS
AGREED as follows:
SECTION
1
INTERPRETATION
1.1
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Definitions
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In this
Agreement:
"Accession
Letter" means a document substantially in the form set out in Schedule 6
(Form
of Accession Letter).
"Acquisition
Costs" means all non-periodic fees, costs and expenses, stamp,
registration and other Taxes incurred by the Company or any other member of the
Group in connection with the Akzo Nobel Retirement and the Crystex
Acquisition.
"Account"
means any account, subject to Transaction Security, opened or maintained by a
member of the Group with the Security Trustee or any other person (and any
replacement account or subdivision or subaccount of that account), the debt or
debts represented thereby and all Related Rights.
"Additional
Borrower" means a member of the Group which becomes an Additional
Borrower in accordance with Clause 27 (Changes
to the Obligors).
"Additional
Cost Rate" has the meaning given to it in Schedule 4 (Mandatory
Cost Formulae).
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CONFORMED
COPY
"Additional
Guarantor" means a member of the Group which becomes an Additional
Guarantor in accordance with Clause 27 (Changes
to the Obligors).
"Additional
Obligor" means an Additional Borrower or an Additional
Guarantor.
"Affiliate"
means, in relation to any person, a Subsidiary of that person or a Holding
Company of that person or any other Subsidiary of that Holding
Company.
"Agent's
Spot Rate of Exchange" means the Agent's spot rate of exchange for the
purchase of the relevant currency with the Base Currency in the London foreign
exchange market at or about 11:00 a.m. on a particular day.
"Agreed
Security Principles" means the security and guarantee principles set out
in Schedule 12 (Agreed
Security Principles).
"Akzo
Nobel Retirement" means the retirement of the entire shareholdings of
Akzo Nobel Chemicals International B.V. (and its affiliates) in the
Group.
"Amended
and Restated Limited
Partnership Agreement" means the Limited Partnership Agreement dated 1
May 1995 entered into by and among Flexsys International Co., Akzo Nobel
Chemicals Inc., Akzo Nobel Properties Inc. and Monsanto Company, under which
Flexsys America L.P. is constituted, as amended and restated on 26 April 2007
and as further amended or supplemented from time to time.
"Amendment
and Restatement Agreement" means the amendment and restatement agreement
to the Intercreditor Agreement and made amongst others, between the Company, KBC
Bank N.V. as Security Trustee, KBC Bank N.V. as agent, Solutia Inc. and Solutia
Europe N.V. as the Parent, the Senior Lenders (as defined in the Intercreditor
Agreement), the Intra-Group Lenders and the Original Obligors (each as defined
in the Intercreditor Agreement) dated on or about 23 May 2007.
"Amendment
Letter" means the Amendment Letter to the Fee Letter dated 25 April 2007
between the Arranger, the Company and others.
"Anti-Terrorism
Law" means each of:
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(a)
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Executive
Order No. 13224 of September 23, 2001 - Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten To Commit, or Support
Terrorism (the Executive Order);
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(b)
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the
Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56
(commonly known as the USA Patriot
Act);
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(c)
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the
Money Laundering Control Act of 1986, Public Law
99-570;
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(d)
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the
International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq, the
Trading with the Enemy Act, 50 U.S.C. App. §§ 1 et seq, any Executive
Order or regulation promulgated thereunder and administered by the Office
of Foreign Assets Control ("OFAC")
of the U.S. Department of the Treasury;
and
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(e)
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any
similar law enacted in the United States of America subsequent to the date
of this Agreement.
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"Authorisation"
means an authorisation, consent, approval, resolution, licence, exemption,
filing, notarisation or registration.
"Availability
Period" means:
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(a)
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in
relation to Facility A the period from and including the date of this
Agreement to and including the day falling 30 days after the date of this
Agreement; and
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(b)
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in
relation to Facility B, the period from and including the date of this
Agreement to and including the day falling one month prior to the
Termination Date.
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"Available
Commitment" means, in relation to a Facility, a Lender's Commitment under
that Facility minus:
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(a)
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the
Base Currency Amount of its participation in any outstanding Utilisations
under that Facility; and
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(b)
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in
relation to any proposed Utilisation, the Base Currency Amount of its
participation in any Utilisations that are due to be made under that
Facility on or before the proposed Utilisation
Date,
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other
than, in relation to any proposed Utilisation under Facility B only, that
Lender's participation in any Facility B Utilisations that are due to be repaid
or prepaid on or before the proposed Utilisation Date.
"Available
Facility" means, in relation to a Facility, the aggregate for the time
being of each Lender's Available Commitment in respect of that
Facility.
"Base
Currency" means dollars.
"Base
Currency Amount" means, in relation to a Utilisation, the amount
specified in the Utilisation Request delivered by a Borrower for that
Utilisation (or, if the amount requested is not denominated in the Base
Currency, that amount converted into the Base Currency at the Agent's Spot Rate
of Exchange on the date which is three Business Days before the Utilisation Date
or, if later, on the date the Agent receives the Utilisation Request and, in the
case of a Letter of Credit, as adjusted under Clause 6.8 (Revaluation
of Letters of Credit)) adjusted to reflect any repayment (other than, in
relation to Facility A, a repayment arising from a change of currency),
prepayment, consolidation or division of the Utilisation.
"Belgian
Borrower" means a Borrower whose jurisdiction of organisation is
Belgium.
"Belgian
Guarantor" means a Guarantor whose jurisdiction of organisation is
Belgium.
"Belgian
Obligor" means Flexsys N.V. and Flexsys Co-ordination Centre N.V. and any
other Belgian Borrower or Belgian Guarantor.
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CONFORMED
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"Belgian
Security Documents" means
any Security Documents governed by the laws of Belgium.
"BNM"
means the Malaysian Central Bank (also known as Bank Negara
Malaysia).
"Borrower"
means an Original Borrower or an Additional Borrower unless it has ceased to be
a Borrower in accordance with Clause 27 (Changes
to the Obligors).
"Brazilian
Guarantee Agreement" means the guarantee agreement dated 27 April 2007
and made between Flexsys Indústria e Comércio Ltda. as guarantor and KBC Bank
N.V. as Security Trustee and Xxxxxx Caratori Paes xx Xxxxxxx and Flexsys Holding
B.V. as consent parties, as amended pursuant to the Amended and Restated
Brazilian Guarantee Agreement dated as of 23 May 2007 executed by and between
Flexsys Indústria e Comércio Ltda. as guarantor, KBC Bank N.V. as Security
Trustee and Xxxxxx Caratori Paes xx Xxxxxxx and Flexsys Holding B.V. as consent
parties and any amendments thereof from time to time.
"Brazilian
Quota Pledge Agreement" means the quota pledge agreement dated 27 April
2007 and made between the Company and Xxxxxx Caratori Paes xx Xxxxxxx as
quotaholders, Flexsys Indústria e Comércio Ltda and KBC Bank N.V. as the
Security Trustee, as amended pursuant to the Amended and Restated Brazilian
Quota Pledge Agreement dated as of 23 May 2007 executed by and between the
Company and Xxxxxx Caratori Paes xx Xxxxxxx as quotaholders, Flexsys Indústria e
Comércio Ltda and KBC Bank N.V. as the Security Trustee and any amendments
thereof from time to time.
"Break
Costs" means the amount (if any) by which:
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(a)
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the
interest (excluding the Margin) which a Lender should have received for
the period from the date of receipt of all or any part of its
participation in a Loan or Unpaid Sum to the last day of the current
Interest Period in respect of that Loan or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last day of that Interest
Period;
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exceeds:
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(b)
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the
amount which that Lender would be able to obtain by placing an amount
equal to the principal amount or Unpaid Sum received by it on deposit with
a leading bank in the Relevant Interbank Market for a period starting on
the Business Day following receipt or recovery and ending on the last day
of the current Interest Period.
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"Business
Day" means a day (other than a Saturday or Sunday) on which banks are
open for general business in London, Brussels and New York and:
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(a)
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(in
relation to any date for payment or purchase of a currency other than
euro) the principal financial centre of the country of that currency;
or
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(b)
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(in
relation to any date for payment or purchase of euro) any TARGET
Day.
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"Charged
Portfolio" means the Shares in Flexsys S.p.A and, in relation to these
Shares, all dividends, interest and other monies payable in respect of these
Shares and all rights
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CONFORMED
COPY
to
receive any economic benefit and proceeds in respect of or derived from these
Shares (either by way of transfer, redemption, bonus, preference, substitution,
pre-emption, conversion, winding-up, merger and/or de-merger or
otherwise).
"Charged
Property" means all the assets of the Obligors which from time to time
are, or are expressed to be, the subject of the Transaction
Security.
"Code"
means, at any date, the United States Internal Revenue Code of 1986 and the
regulations promulgated and the judicial and administrative decisions rendered
under it, all as the same may be in effect at such date.
"Collateral
Rights" means all rights, powers and remedies of the Security Trustee
provided by or pursuant to a Security Document or by law.
"Commitment"
means a Facility A Commitment or Facility B Commitment as the context may
require.
"Compliance
Certificate" means a certificate substantially in the form set out in
Schedule 8 (Form
of Compliance Certificate).
"Crystex
Acquisition" means the acquisition of the Kashima Crystex operation from
Akzo Nobel Chemicals International B.V.
"Declared
Default" has the meaning given to it in Schedule 12 (Agreed
Security Principles).
"Default"
means an Event of Default or any event or circumstance specified in
Clause 25 (Events
of Default) which would (with the expiry of a grace period, the giving of
notice, the making of any determination under the Finance Documents or any
combination of any of the foregoing) be an Event of Default.
"Delegate"
means any delegate, agent, attorney or co-trustee appointed by the Security
Trustee.
"Disruption
Event" means either or both of:
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(c)
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a
material disruption to those payment or communications systems or to those
financial markets which are, in each case, required to operate in order
for payments to be made in connection with the Facilities (or otherwise in
order for the transactions contemplated by the Finance Documents to be
carried out) which disruption is not caused by, and is beyond the control
of, any of the Parties; or
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(d)
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the
occurrence of any other event which results in a disruption (of a
technical or systems-related nature) to the treasury or payments
operations of a Party preventing that, or any other
Party:
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(i)
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from
performing its payment obligations under the Finance Documents;
or
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(ii)
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from
communicating with other Parties in accordance with the terms of the
Finance Documents,
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(and
which (in either such case)) is not caused by, and is beyond the control
of, the Party whose operations are
disrupted.
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"Dutch
Civil Code" means the Dutch Civil Code (Burgerlijk
Wetboek).
"Dutch
Obligor" means an Obligor incorporated in The Netherlands.
"Dutch
FSA" means the Financial Supervision Act (Wet op
het financieel toezicht) including any and all subordinate decrees and
regulations issued pursuant thereto.
"Employee
Plan" means an employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which a U.S. Obligor or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Environmental
Claim" means any claim, proceeding or investigation by any person in
respect of any Environmental Law.
"Environmental
Law" means any applicable law in any jurisdiction in which any member of
the Group conducts business which relates to the pollution or protection of the
environment or harm to or the protection of human health or the health of
animals or plants.
"Environmental
Permits" means any permit, licence, consent, approval and other
authorisation and the filing of any notification, report or assessment required
under any Environmental Law for the operation of the business of any member of
the Group conducted on or from the properties owned or used by the relevant
member of the Group.
"ERISA"
means, at any date, the United States Employee Retirement Income Security Act of
1974 and the regulations promulgated and ratings issued thereunder, all as the
same may be in effect at such date.
"ERISA
Affiliate" means any person that for purposes of Title I and Title IV of
ERISA and Section 412 of the Code would be deemed at any relevant time to be a
single employer with an Obligor, pursuant to Section 414(b), (c), (m) or (o) of
the Code or Section 4001 of ERISA.
"ERISA
Event" means
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(a)
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any
reportable event, as defined in Section 4043 of ERISA, with respect to an
Employee Plan, as to which PBGC has not by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified of such
event;
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(b)
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the
filing of a notice of intent to terminate any Employee Plan, if such
termination would require material additional contributions in order to be
considered a standard termination within the meaning of Section 4041(b) of
ERISA, the filing under Section 4041(c) of ERISA of a notice of intent to
terminate any Employee Plan or the termination of any Employee Plan under
Section 4041(c) of ERISA;
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CONFORMED
COPY
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(c)
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the
institution of proceedings under Section 4042 of ERISA by the PBGC for the
termination of, or the appointment of a trustee to administer, any
Employee Plan;
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(d)
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the
failure to make a required contribution to any Employee Plan that would
result in the imposition of an encumbrance under Section 412 of the Code
or Section 302 of ERISA or the filing of any request for a minimum funding
waiver under Section 412 of the Code with respect to any Employee
Plan;
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(e)
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an
engagement in a non-exempt prohibited transaction within the meaning of
Section 4975 of the Code or Section 406 of ERISA;
and
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(f)
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an
Obligor or an ERISA Affiliate incurring any liability under Title IV of
ERISA with respect to any Employee Plan (other than premiums due and not
delinquent under Section 4007 of
ERISA).
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"EURIBOR"
means, in relation to any Loan in euro:
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(a)
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the
applicable Screen Rate; or
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(b)
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(if
no Screen Rate is available for the Interest Period of that Loan) the
arithmetic mean of the rates (rounded upwards to four decimal places) as
supplied to the Agent at its request quoted by the Reference Banks to
leading banks in the European interbank
market;
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as of the
Specified Time on the Quotation Day for the offering of deposits in euro for a
period comparable to the Interest Period of the relevant Loan.
"Event
of Default" means any event or circumstance specified as such in
Clause 25 (Events
of Default).
"Existing
Facility" means the US$200,000,000 Multicurrency Term and Revolving
Credit Facility dated 14 February 2003 between, inter
alia, the Company, the Original Borrowers, the Original Guarantors,
Commerzbank Aktiengesellschaft, KBC Bank N.V. and others (as
amended).
"Extension
Letter" means the Extension Letter to the Mandate Letter dated
16 April 2007 between the Arranger, the Company and
others.
"Facility"
means Facility A or Facility B as the context may require.
"Facility
A" means the term loan facility made available under this Agreement as
described in Clause 2 (The
Facilities).
"Facility
A Commitment" means:
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(a)
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in
relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Facility A Commitment" in Part II of
Schedule 1 (The
Original Parties) and the amount of any other Facility A Commitment
transferred to it under this Agreement;
and
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CONFORMED
COPY
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(b)
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in
relation to any other Lender, the amount in the Base Currency of any
Facility A Commitment transferred to it under this
Agreement,
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to the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility
A Loan" means a loan made or to be made under Facility A or the principal
amount outstanding for the time being of that loan.
"Facility
A Repayment Date" means each of the dates specified in Clause 9.1 (Repayment
of Facility A
Loans) as Repayment Dates, but if any such date is not a Business Day,
then that Repayment Date shall be deemed to be the immediately succeeding
Business Day.
"Facility
B" means the revolving credit facility made available under this
Agreement as described in Clause 2 (The
Facilities).
"Facility
B Commitment" means:
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(a)
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in
relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Facility B Commitment" in Part II of
Schedule 1 (The
Original Parties) and the amount of any other Facility B Commitment
transferred to it under this Agreement;
and
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(b)
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in
relation to any other Lender, the amount in the Base Currency of any
Facility B Commitment transferred to it under this
Agreement,
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to the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility
B Loan" means a loan made or to be made under Facility B or the principal
amount outstanding for the time being of that loan.
"Facility
B Utilisation" means a Facility B Loan or a Letter of
Credit.
"Facility
Office" means the office or offices notified by a Lender to the Agent in
writing on or before the date it becomes a Lender (or, following that date, by
not less than five Business Days' written notice) as the office or offices
through which it will perform its obligations under this Agreement.
"Fee
Letter" means any letter or letters dated on or about 28 February 2007
between the Arranger and the Company (or the Agent and the Company or the
Security Trustee and the Company) setting out any of the fees referred to in
Clause 14 (Fees),
as amended by the Amendment Letter.
"FIC"
means the Foreign Investment Committee of the Economic Planning Unit of the
Malaysian Prime Minister's Department.
"Financial
Close" means the date on which consideration is payable pursuant to the
Akzo Nobel Retirement and the Crystex Acquisition and completion under such
retirement and acquisition has occurred.
"Finance
Document" means this Agreement, the Syndication and Amendment and
Restatement Agreement, the Mandate Letter (as amended by the Extension Letter),
the
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CONFORMED
COPY
Security
Documents, the Intercreditor Agreement, the Amendment and Restatement Agreement,
any Fee Letter (as amended by the Amendment Letter), any Accession Letter, any
Resignation Letter, any Transfer Certificate and any other document designated
as such by the Agent and the Company.
"Finance
Party" means the Agent, the Arranger, the Security Trustee or a
Lender.
"Financial
Indebtedness" means any indebtedness for or in respect of:
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(a)
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moneys
borrowed;
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(b)
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any
amount raised by acceptance under any acceptance credit facility or
dematerialised equivalent;
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(c)
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any
amount raised pursuant to any note purchase facility or the issue of
bonds, notes, debentures, loan stock or any similar
instrument;
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(d)
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the
amount of any liability in respect of any lease or hire purchase contract
which would, in accordance with GAAP, be treated as a finance or capital
lease;
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(e)
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receivables
sold or discounted (other than any receivables to the extent they are sold
on a non-recourse basis);
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(f)
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any
amount raised under any other transaction (including any forward sale or
purchase agreement) having the commercial effect of a
borrowing;
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(g)
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any
derivative transaction entered into in connection with protection against
or benefit from fluctuation in any rate or price (and, when calculating
the value of any derivative transaction, only the marked to market value
shall be taken into account);
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(h)
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any
counter-indemnity obligation in respect of a guarantee, indemnity, bond,
standby or documentary letter of credit or any other instrument issued by
a bank or financial institution;
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(i)
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any
amount raised by the issue of redeemable
shares;
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(j)
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any
amount of any liability under an advance or deferred purchase agreement if
one of the primary reasons behind the entry into this agreement is to
raise finance; and
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(k)
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(without
double counting) the amount of any liability in respect of any guarantee
or indemnity for any of the items referred to in paragraphs (a) to (j)
above.
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"Flexsys
America Co." means Flexsys America Co., a corporation incorporated under
the laws of the State of Delaware, United States of America, with its principal
office at 000 Xxxxxxxxxx Xxxxx, Xxxxx, Xxxx 00000, Xxxxxx Xxxxxx of
America.
"Flexsys
Rubber Chemicals Retirement Benefits Scheme" means the retirement
benefits scheme of Flexsys Rubber Chemicals Limited formed on 1 April
1998.
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COPY
"French
Security Documents" means any Security Documents governed by the laws of
France.
"GAAP"
means generally accepted accounting principles in the United States of
America.
"German
Borrower" means a Borrower whose jurisdiction of organisation is
Germany.
"German
Debt Pushdown" means the corporate reorganisation and debt push down
steps taken together to be carried out in accordance with Clause 24.34
(German
Debt Pushdown).
"German
Guarantor" means a Guarantor whose jurisdiction of organisation is
Germany.
"German
Obligor" means Flexsys Verwaltungs-und Beteiligungs GmbH and Flexsys
Verkauf GmbH and any other German Borrower or German Guarantor.
"German
Security Documents" means any Security Documents governed by the laws of
Germany.
"Group"
means, at any time, the Company and its then Subsidiaries, Flexsys America L.P.
and Flexsys Rubber Chemicals Limited.
"Group
Structure Chart" means the group structure chart showing:
|
(a)
|
all
members of the Group, including current name and company registration
number, its jurisdiction of incorporation and/or establishment and a list
of shareholders;
|
|
(b)
|
any
person in which any member of the Group holds shares in its issued share
capital or equivalent ownership interest of such
person.
|
"Guarantor"
means an Original Guarantor or an Additional Guarantor, unless it has ceased to
be a Guarantor in accordance with Clause 27 (Changes
to the Obligors).
"Holding
Company" means, in relation to a company or corporation, any other
company or corporation in respect of which it is a Subsidiary.
"Information
Memorandum" means the document in the form approved by the Company
concerning the Group which, at the Company's request and on its behalf, was
prepared in relation to this transaction and distributed by the Arranger to
selected financial institutions before the date of this Agreement.
"Intellectual
Property" means any patents, trademarks, service marks, designs, business
names, copyrights, design rights, moral rights, inventions, confidential
information, knowhow and other intellectual property rights and interests,
whether registered or unregistered, and the benefit of all applications and
rights to use such assets of each Obligor.
"Intercreditor
Agreement" means the agreement dated 27 April 2007 and made amongst
others, between the Company, KBC Bank N.V. as Security Trustee, KBC
Bank
10
CONFORMED
COPY
N.V. as
agent, Solutia Inc. and Solutia Europe N.V. as the Parent, the Senior Lenders
(as defined in the Intercreditor Agreement), the Intra-Group Lenders and the
Original Obligors (each as defined in the Intercreditor Agreement) as amended by
the Amendment and Restatement Agreement.
"Interest
Period" means, in relation to a Loan, each period determined in
accordance with Clause 12 (Interest
Periods) and, in relation to an Unpaid Sum, each period determined
in accordance with Clause 11.3 (Default
interest).
"IRS"
means the United States Internal Revenue Service or any successor
thereto.
"Issuing
Bank" means, in respect of a Letter of Credit, KBC Bank N.V. or any other
Lender (or its affiliate) that has agreed to act as Issuing Bank in respect of
that Letter of Credit.
"Italian
Civil Code" means the Italian civil code, enacted by Royal Decree No. 262
of 16 March 1942, as subsequently amended and supplemented.
"Italian
Security Documents" means any Security Documents governed by the laws of
Italy.
"Italian
Share Pledge" means the share pledge agreement dated on or about 27 April
2007 and made by the Company as pledgor and the KBC Bank N.V. as secured
creditor and common representative of the other secured creditors.
"Japanese
Security Documents" means any Security Documents governed by the laws of
Japan.
"Legal
Opinions" means the legal opinions delivered to the Agent pursuant to
Schedule 2 (Conditions
Precedent and Conditions Subsequent).
"Lender"
means:
|
(a)
|
any
Original Lender; and
|
|
(b)
|
any
bank, financial institution, trust, fund or other entity which has become
a Party in accordance with Clause 26 (Changes
to the Lenders),
|
which in
each case has not ceased to be a Party in accordance with the terms of this
Agreement.
"Letter
of Credit" means a letter of credit, substantially in the form set out in
Schedule 10 (Form
of Letter of Credit) or in any other form requested by a Borrower and
agreed by the Agent (with the prior consent of the Majority Lenders) and the
Issuing Bank.
"LIBOR"
means, in relation to any Loan:
|
(a)
|
the
applicable Screen Rate; or
|
|
(b)
|
(if
no Screen Rate is available for the currency or Interest Period of that
Loan) the arithmetic mean of the rates (rounded upwards to four decimal
places) as
|
11
CONFORMED
COPY
|
supplied
to the Agent at its request quoted by the Reference Banks to leading banks
in the London interbank market,
|
as of the
Specified Time on the Quotation Day for the offering of deposits in the currency
of that Loan and for a period comparable to the Interest Period for that
Loan.
"LMA"
means the Loan Market Association.
"Loan"
means a Facility A Loan or a Facility B Loan as the context may
require.
"Long
Term Incentive Compensation" means the management incentive plan covering
the period 2004-2006; successful achievement of the targets set out in the plan
will result in a payout of approximately US$50,000,000, which amount is
scheduled to be paid in early 2007.
"Majority
Lenders" means:
|
(a)
|
if
there are no Utilisations then outstanding, a Lender or Lenders whose
Commitments aggregate more than 66 2/3%
of the Total Commitments (or, if the Total Commitments have been reduced
to zero, aggregated more than 66 2/3%
of the Total Commitments immediately prior to the reduction);
or
|
|
(b)
|
at
any other time, a Lender or Lenders whose participations in the
Utilisations then outstanding aggregate more than 66 2/3%
of all the Utilisations then
outstanding.
|
"Mandate
Letter" means the letter dated 28 February 2007 between the Arranger, the
Company and others, as amended by the Extension Letter.
"Mandatory
Cost" means the percentage rate per annum calculated by the Agent in
accordance with Schedule 4 (Mandatory
Cost Formulae).
"Margin"
means:
|
(a)
|
in
relation to Facility A, 1.25% per annum until the date falling six months
from the first Utilisation Date and thereafter the Margin in relation to
Facility A will be adjusted on the basis of the most recently delivered
Combined Financial Statements of the Group (which must be audited if such
statements relate to the Group's financial year) by reference to the ratio
of Combined Senior Total Financial Debt as at the last day of each
Relevant Period to EBITDA for such Relevant Period in accordance with the
table set out below:
|
Ratio
|
Margin
% per annum
|
≥2.5
|
1.5
|
<2.5
≥2.0
|
1.25
|
<2.0
≥1.5
|
1.00
|
<1.5
≥1.0
|
0.80
|
<1.0
|
0.65
|
12
CONFORMED
COPY
provided
that whilst a Default is continuing the Margin shall be the highest
Margin specified above.
|
(b)
|
in
relation to Facility B, 1.00% per annum until the date falling six months
from the date of this Agreement and thereafter the Margin in relation to
Facility B will be adjusted on the basis of the most recently delivered
Combined Financial Statements of the Group (which must be audited if such
statements relate to the Group's financial year) by reference to the ratio
of Combined Senior Total Financial Debt as at the last day of each
Relevant Period to EBITDA for such Relevant Period, in accordance with the
table set out below:
|
Ratio
|
Margin
% per annum
|
≥2.5
|
1.25
|
<2.5
≥2.0
|
1.00
|
<2.0
≥1.5
|
0.80
|
<1.5
≥1.0
|
0.60
|
<1.0
|
0.50
|
provided
that whilst a Default is continuing the Margin shall be the highest
Margin specified above.
Any
adjustment to the Margin shall take effect on the date falling five Business
Days after the date of receipt by the Agent of the relevant Compliance
Certificate.
For the
purposes of determining the Margin, "Combined Senior Total Financial Debt",
"EBITDA", "Combined Financial Statements of the Group" and "Relevant Period"
shall be determined in accordance with Clause 23.1 (Financial
definitions).
"Margin
Stock" means margin stock or "margin security" within the meaning of
Regulations T, U and X.
"Material
Adverse Effect" means
a material adverse effect on:
|
(a)
|
the
business, property or financial condition of the Group taken as a
whole;
|
|
(b)
|
the
ability of an Obligor to perform its obligations under the Finance
Documents; or
|
|
(c)
|
the
validity or enforceability of the Finance Documents or the rights or
remedies of any Finance Party under the Finance
Documents.
|
13
CONFORMED
COPY
|
For
the avoidance of doubt, the continuation of Solutia Inc.'s proceedings
under Title 11 of the United States of America Code entitled Bankruptcy
shall not constitute a Material Adverse Effect provided
that no member of the Group becomes subject to such proceedings or
those of an affiliated debtor of Solutia
Inc.
|
"Material
Group Member" means a member of the Group (other than the Company)
which:
|
(a)
|
has
EBITDA representing 5 per cent. or more of the Combined EBITDA as defined
in Clause 23 (Financial
Covenants); and/or
|
|
(b)
|
has
assets representing 5 per cent. or more of the aggregate assets of the
Group; and/or
|
|
(c)
|
has
revenue representing 5 per cent. or more of the aggregate revenue of the
Group,
|
in each
case calculated on a combined basis.
Compliance
with the conditions set out in paragraphs (a), (b) and (c) shall be determined
by reference to the most recent Compliance Certificate supplied by the Company
and/or the latest audited financial statements of that member of the Group and
the latest audited Combined Financial Statements of the Group.
A report
by the auditors of the Company that a member of the Group is or is not a
Material Group Member shall, in the absence of manifest error, be conclusive and
binding on all Parties.
"Month"
means a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month, except
that:
|
(a)
|
(subject
to paragraph (c) below) if the numerically corresponding day is not a
Business Day, that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one, or if there
is not, on the immediately preceding Business
Day;
|
|
(b)
|
if
there is no numerically corresponding day in the calendar month in which
that period is to end, that period shall end on the last Business Day in
that calendar month; and
|
|
(c)
|
if
an Interest Period begins on the last Business Day of a calendar month,
that Interest Period shall end on the last Business Day in the calendar
month in which that Interest Period is to
end.
|
The above
rules will only apply to the last Month of any period.
"Multiemployer
Plan" means a "multiemployer plan" (as defined in Section (3)(37) of
ERISA) contributed to for any employees of a U.S. Obligor or any ERISA
Affiliate.
"New
German Hold Co" means the new company to be established after the date of
this Agreement by the Company and whose jurisdiction of organisation will be
Germany.
14
CONFORMED
COPY
"Obligors"
means a Borrower or a Guarantor.
"Optional
Currency" means a currency (other than the Base Currency) which complies
with the conditions set out in Clause 4.3 (Conditions
relating to Optional Currencies).
"Original
Financial Statements" means:
|
(a)
|
in
relation to the Company, the audited Combined Financial Statements of the
Group for the financial year ended 2006 prepared under
GAAP; and
|
|
(b)
|
in
relation to each Original Obligor other than the Company, its unaudited
financial statements for its financial year ended
2006.
|
"Original
Obligor" means an Original Borrower or an Original
Guarantor.
"Parallel
Obligations" has the meaning as that which is contained in the German
Security Documents.
"Participating
Member State" means any member state of the European Communities that
adopts or has adopted the euro as its lawful currency in accordance with
legislation of the European Community relating to Economic and Monetary
Union.
"Party"
means a party to this Agreement.
"PBGC"
means the U.S. Pension Benefit Guaranty Corporation, or any entity succeeding to
all or any of its functions under ERISA.
"Pension
Fund Obligations" means any amount that the Buyer Entities (as defined in
the Share Purchase Agreement) are required to contribute to the Flexsys UK
pension plan within ten days after closing pursuant to the Share Purchase
Agreement.
"Perfection
Requirements" means the making of the appropriate registrations, filings
or notifications of the Security Documents.
"Quotation
Day" means, in relation to any period for which an interest rate is to be
determined:
|
(a)
|
(if
the currency is domestic sterling) the first day of that
period;
|
|
(b)
|
(if
the currency is euro) two TARGET Days before the first day of that period;
or
|
|
(c)
|
(for
any other currency) two Business Days before the first day of that
period,
|
unless
market practice differs in the Relevant Interbank Market for a currency, in
which case the Quotation Day for that currency will be determined by the Agent
in accordance with market practice in the Relevant Interbank Market (and if
quotations would normally be given by leading banks in the Relevant Interbank
Market on more than one day, the Quotation Day will be the last of those
days).
15
CONFORMED
COPY
"Real
Property" means:
|
(a)
|
any
freehold, leasehold or immovable property (including the freehold and
leasehold property in the Relevant Jurisdictions specified in the relevant
Security Document); and
|
|
(b)
|
any
buildings, fixtures, fittings, fixed plant or machinery from time to time
situated on or forming part of that freehold or leasehold
property,
|
and all
Related Rights.
"Receiver"
means a receiver or receiver and manager or administrative receiver of the whole
or any part of the Charged Property.
"Reference
Banks" means, in relation to LIBOR and Mandatory Cost the principal
London offices of the Agent and Citibank N.A. and, in relation to EURIBOR, the
principal office in Brussels or London of the Agent and Citibank N.A. or such
other banks as may be appointed by the Agent in consultation with the
Company.
"Regulations
T, U and X" means, respectively, Regulations T, U and X of the Board of
Governors of the Federal Reserve System of the United States (or any successor)
as now and from time to time in effect from the date of this
Agreement.
"Related
Rights" means, in relation to any asset:
|
(a)
|
the
proceeds of sale of any part of that
asset;
|
|
(b)
|
all
rights under any licence, agreement for sale or agreement for lease in
respect of that asset;
|
|
(c)
|
all
rights, powers, benefits, claims, contracts, warranties, remedies,
security, guarantees, indemnities or covenants for title in respect of
that asset; and
|
|
(d)
|
any
monies and proceeds paid or payable in respect of that
asset.
|
"Relevant
Interbank Market" means in relation to euro, the European interbank
market and, in relation to any other currency, the London interbank
market.
"Relevant
Jurisdiction" means:
|
(a)
|
the
jurisdiction of incorporation of each member of the
Group;
|
|
(b)
|
the
jurisdiction where any asset subject to or intended to be subject to the
Transaction Security is situated;
|
|
(c)
|
the
jurisdiction whose laws govern the perfection of any of the Security
Documents; and
|
|
(d)
|
the
jurisdiction where any member of the Group is conducting its
business.
|
"Repayment
Instalment" means each instalment for repayment of the Facility A Loans
referred to in Clause 9.1 (Repayment
of Facility A Loans).
16
CONFORMED
COPY
"Repeating
Representations" means each of the representations set out in Clauses
21.1 (Status)
to 21.6 (Governing
law and enforcement), Clause 21.8 (No
default), paragraph (e) of Clause 21.9 (No
misleading information), Clause 21.11 (Pari
passu ranking), Clause 21.20 (Ranking)
to Clause 21.24 (Legal
and Beneficial Owner), Clause 21.30 (Centre
of main interests and establishments), Clause 21.33 (Pensions)
and 21.42 (No
cluster bombs or anti-personnel mines) and, for each Additional Obligor
on the date of accession to the Finance Documents, also means each of the
representations set out in Clause 21.7 (No
filing taxes), Clause 21.10 (Financial
statements), Clause 21.12 (No
proceedings pending or threatened), Clauses 21.16 (Deduction
of Tax) to 21.19 (Security),
Clause 21.25 (Shares),
Clause 21.32 (ERISA
Plans) and Clauses 21.35 (Federal
Reserve Regulations) to 21.37 (Anti-Terrorism
Laws).
"Resignation
Letter" means a letter substantially in the form set out in Schedule 7
(Form
of Resignation Letter).
"Reservations"
means any general principles of law limiting the obligations of any Obligor
which are specifically referred to in any legal opinion delivered pursuant to
Clause 4 (Conditions
of Utilisation) or Clause 27 (Changes
to the Obligors).
"Restricted
Party" means any person listed:
|
(a)
|
in
the Annex to the Executive Order;
|
|
(b)
|
on
the "Specially Designated Nationals and Blocked Persons" list maintained
by the OFAC; or
|
|
(c)
|
in
any successor list to either of the
foregoing.
|
"Rollover
Loan" means one or more Facility B Loans:
|
(a)
|
made
or to be made on the same day that (i) a maturing Facility B Loan is due
to be repaid or (ii) a Borrower is obliged to pay to the Agent for the
Issuing Bank the amount of any claim under a Letter of
Credit;
|
|
(b)
|
the
aggregate amount of which is equal to or less than (i) the maturing
Facility B Loan or (ii) the amount of the claim under the Letter of
Credit;
|
|
(c)
|
in
the same currency as (i) the maturing Facility B Loan (unless it arose as
a result of the operation of Clause 8.2 (Unavailability
of a currency) or (ii) the claim under the Letter of Credit;
and
|
|
(d)
|
made
or to be made to the same Borrower for the purpose of (i) refinancing a
maturing Facility B Loan or (ii) satisfying the obligations of the
Borrower to pay the amount of a claim under the Letter of Credit to the
Agent for the Issuing Bank.
|
"Screen
Rate" means:
|
(a)
|
in
relation to LIBOR, the British Bankers' Association Interest Settlement
Rate for the relevant currency and period;
and
|
17
CONFORMED
COPY
|
(b)
|
in
relation to EURIBOR, the percentage rate per annum determined by the
Banking Federation of the European Union for the relevant
period,
|
displayed
on the appropriate page of the Reuters screen. If the agreed page is replaced or
service ceases to be available, the Agent may specify another page or service
displaying the appropriate rate after consultation with the Company and the
Lenders.
"SEC"
means the United States Securities and Exchange Commission or any successor
thereto.
"Secured
Contracts" has the same meaning as that which is contained in the Italian
Share Pledge.
"Secured
Obligations" means all obligations at any time due, owing or incurred by
any Obligor to any Secured Party under the Finance Documents, whether present or
future, actual or contingent (and whether incurred solely or jointly and whether
as principal or surety or in some other capacity).
"Secured
Parties" means the Security Trustee, any Receiver or Delegate, the Agent,
and each Lender from time to time party to this Agreement.
"Security"
means a mortgage, charge, pledge, lien or other security interest securing any
obligation of any person or any other agreement or arrangement having a similar
effect.
"Security
Documents" means each of the documents listed as being a Security
Document in paragraph 2(a) of Part I of Schedule 2 (Conditions
Precedent and Conditions Subsequent), any document required to be
delivered to the Agent under paragraph 2 of Part II of Schedule 2 (Conditions
Precedent and Conditions Subsequent) and any document required to be
delivered to the Agent under paragraph 15 of Part III of Schedule 2 (Conditions
Precedent and Conditions Subsequent) as may be amended or substituted
from time to time, together with any other document entered into by any Obligor
creating or expressed to create any Security over all or any part of its assets
in respect of the obligations of any of the Obligors under any of the Finance
Documents.
"Selection
Notice" means a notice substantially in the form set out in Part II of
Schedule 3 (Requests)
given in accordance with Clause 12 (Interest
Periods) in relation to Facility A.
"Shareholders"
means Solutia Inc. and Solutia Europe N.V..
"Shares"
means the shares or quotas subject to the Transaction Security.
"Share
Purchase Agreement" means the share purchase agreement in relation to the
Akzo Nobel Retirement between Akzo Nobel Chemicals International B.V., Akzo
Nobel Chemicals Inc., Xxxx Xxxxx X.X., Flexsys Holding B.V., Flexsys America LP,
Flexsys Rubber Chemicals Ltd and Solutia Inc. dated as of 28 March
2007.
"Solutia
Inc." means Solutia Inc, a corporation incorporated under the laws of the
State of Delaware, United States of America, with its principal office at 000
Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx of
America.
18
CONFORMED
COPY
"Sources
and Uses Table" means the table set out in Schedule 13 (Sources
and Uses Table).
"Specified
Time" means a time determined in accordance with Schedule 9 (Timetables).
"Subordinated
Loan" means the non-amortising loans of a minimum aggregate amount of
US$100,000,000 and a maximum aggregate amount of US$175,000,000 to be provided
by Solutia Inc. (or any of its affiliates) to one or more members of the Group
for a term of six years at a market rate, available for corporate purposes
including (but not limited to) the Akzo Nobel Retirement and which shall be
subordinated to the Facilities pursuant to the terms of the Intercreditor
Agreement and on terms and conditions (including (but not limited to) the
determination of the interest rate) satisfactory to the Arranger.
"Subordinated
Loan Agreement" means the subordinated loan agreements dated 26 April
2007 between Solutia Inc and one or more members of the Group.
"Subsidiary"
means in relation to any company or corporation, a company or
corporation:
|
(a)
|
which
is controlled, directly or indirectly, by the first mentioned company or
corporation;
|
|
(b)
|
more
than half the issued share capital of which is beneficially owned,
directly or indirectly by the first mentioned company or corporation;
or
|
|
(c)
|
which
is a Subsidiary of another Subsidiary of the first mentioned company or
corporation,
|
and for
this purpose, a company or corporation shall be treated as being controlled by
another if that other company or corporation is able to direct its affairs
and/or to control the composition of its board of directors or equivalent
body.
"Syndication
and Amendment and Restatement Agreement" means the syndication and
amendment and restatement agreement to this Agreement made amongst others,
between the Company, the Borrowers and the Guarantors (each as defined in the
Syndication and Amendment and Restatement Agreement), KBC Bank N.V. as Agent,
KBC Bank N.V. as Security Trustee, the Existing Lenders and the New Lenders
(each as defined in the Syndication and Amendment and Restatement Agreement)
dated on or about 23 May 2007.
"TARGET"
means Trans-European Automated Real-time Gross Settlement Express Transfer
payment system.
"TARGET
Day" means any day on which TARGET is open for the settlement of payments
in euro.
"Tax"
means any tax, levy, impost, duty or other charge or withholding of a similar
nature (including any penalty or interest payable in connection with any failure
to pay or any delay in paying any of the same).
19
CONFORMED
COPY
"Termination
Date" means:
|
(a)
|
in
relation to Facility A the fifth anniversary of the date of this
Agreement; and
|
|
(b)
|
in
relation to Facility B the fifth anniversary of the date of this
Agreement.
|
"Total
Commitments" means the aggregate of the Total Facility A Commitments and
the Total Facility B Commitments, being US$225,000,000 at the date of this
Agreement.
"Total
Facility A Commitments" means the aggregate of the Facility A
Commitments, being US$75,000,000 at the date of this Agreement.
"Total
Facility B Commitments" means the aggregate of the Facility B
Commitments, being US$150,000,000 at the date of this Agreement.
"Transaction
Security" means the Security created or expressed to be created pursuant
to the Security Documents.
"Transfer
Certificate" means a certificate substantially in one of the forms set
out in Schedule 5 (Form
of Transfer Certificate) or any other form agreed between the Agent and
the Company.
"Transfer
Date" means, in relation to a transfer, the later of:
|
(a)
|
the
proposed Transfer Date specified in the Transfer Certificate;
and
|
|
(b)
|
the
date on which the Agent executes the Transfer
Certificate.
|
"UK
Borrower" means a Borrower whose jurisdiction or organisation is England
and Wales.
"UK
Guarantor" means a Guarantor whose jurisdiction or organisation is
England and Wales.
"UK
Obligor" means Flexsys Rubber Chemicals Limited and any other UK Borrower
or UK Guarantor.
"Unfunded
Pension Liability" means the excess of an Employee Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
plan's assets, determined in accordance with the assumptions used for funding
the Employee Plan pursuant to Section 412 of the Code for the applicable plan
year.
"Unpaid
Sum" means any sum due and payable but unpaid by an Obligor under the
Finance Documents.
"U.S."
and "United
States" means the United States of America, its territories, possessions
and other areas subject to the jurisdiction of the United States of
America.
"U.S.
Borrower" means a Borrower whose jurisdiction of organisation is a state
of the United States of America or the District of Columbia.
"U.S.
Guarantor" means a Guarantor whose jurisdiction of organisation is a
state of the United States of America or the District of Columbia.
20
CONFORMED
COPY
"U.S.
Obligor" means Flexsys America L.P. and any other U.S. Borrower or U.S.
Guarantor which is constituted under the laws of any state of the United States
of America or the District of Columbia.
"U.S.
Tax" means any federal, state, local income, gross receipts, license,
premium, windfall profits, customs duties, capital stock, franchise, profits,
withholding, social security (or similar), real property, personal property,
sales, use, registration, value added, alternative or add-on minimum, estimated
or other tax of any kind whatsoever, imposed by the United States, including any
interest, penalty or addition thereto, whether disputed or not.
"Utilisation"
means a Loan or a Letter of Credit.
"Utilisation
Date" means the date on which a Utilisation is made.
"Utilisation
Request" means a notice substantially in the form set out in Part I of
Schedule 3 (Requests).
"VAT"
means value added tax as provided for in the Value Added Tax Xxx 0000 and any
other tax of a similar nature.
1.2
|
Construction
|
|
(a)
|
Unless
a contrary indication appears any reference in this Agreement
to:
|
|
(i)
|
the
"Agent",
the "Arranger",
the "Security
Trustee", any "Finance
Party", any "Secured
Party", any "Lender",
any "Obligor"
or any "Party"
shall be construed so as to include its successors in title, permitted
assigns and permitted transferees and, in the case of the Security
Trustee, any person for the time being appointed as trustee or trustees in
accordance with this Agreement;
|
|
(ii)
|
"assets"
includes present and future properties, revenues and rights of every
description;
|
|
(iii)
|
a
"Finance
Document" or any other agreement or instrument is a reference to
that Finance Document or other agreement or instrument as amended,
novated, supplemented, extended, replaced or
restated;
|
|
(iv)
|
"indebtedness"
includes any obligation (whether incurred as principal or as surety) for
the payment or repayment of money, whether present or future, actual or
contingent;
|
|
(v)
|
a
"person"
includes any individual, firm, company, corporation, government, state or
agency of a state or any association, trust, joint venture, consortium or
partnership (whether or not having separate legal
personality);
|
|
(vi)
|
a
"regulation"
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law) of any governmental,
intergovernmental or supranational body, agency, department or regulatory,
self-regulatory or other authority or
organisation;
|
21
CONFORMED
COPY
|
(vii)
|
a
provision of law is a reference to that provision as amended or
re-enacted; and
|
|
(viii)
|
a
time of day is a reference to London
time.
|
|
(b)
|
Section,
Clause and Schedule headings are for ease of reference
only.
|
|
(c)
|
Unless
a contrary indication appears, a term used in any other Finance Document
or in any notice given under or in connection with any Finance Document
has the same meaning in that Finance Document or notice as in this
Agreement.
|
|
(d)
|
A
Default (other than an Event of Default) is "continuing"
if it has not been remedied or waived and an Event of Default is "continuing"
if it has not been waived.
|
1.3
|
Currency
Symbols and Definitions
|
"US$"
and "dollars"
denote lawful currency of the United States of America, "£"
and "sterling"
denotes lawful currency of the United Kingdom, "EUR"
and "euro"
means the single currency unit of the Participating Member States and "¥"
and "yen"
denotes lawful currency of Japan.
1.4
|
Dutch
Terms
|
In this
Agreement, where it relates to a Dutch entity, a reference to:
|
(a)
|
a
necessary action to authorise, where applicable, includes without
limitation:
|
|
(i)
|
any
action required to comply with the Dutch Works Council Act (Wet
op de ondernemingsraden);
and
|
|
(ii)
|
obtaining
unconditional positive advice (advies)
from each competent works council;
|
|
(b)
|
a
winding-up, administration or dissolution includes a Dutch entity
being:
|
|
(i)
|
declared
bankrupt (failliet
verklaard);
|
|
(ii)
|
dissolved
(ontbonden);
|
|
(c)
|
a
moratorium includes surseance
van betaling and granted a moratorium includes surseance
verleend;
|
|
(d)
|
a
trustee in bankruptcy includes a curator,
|
|
(e)
|
an
administrator includes a bewindvoerder;
|
|
(f)
|
a
receiver or an administrative receiver does not include a curator
or bewindvoerder,
and
|
|
(g)
|
an
attachment includes a beslag.
|
22
CONFORMED
COPY
1.5
|
Third
party rights
A person who is not a Party
has no right under the Contracts (Rights of Third Parties) Xxx 0000 to
enforce or to enjoy the benefit of any term of this
Agreement.
|
SECTION
2
2.
|
THE
FACILITIES
|
2.1
|
The
Facilities
Subject to the terms of this Agreement, the Lenders make available to the Borrowers: |
|
(a)
|
a
multicurrency term loan facility in an aggregate amount equal to the Total
Facility A Commitments; and
|
|
(b)
|
a
multicurrency revolving credit facility in an aggregate amount equal to
the Total Facility B Commitments.
|
2.2
|
Finance
Parties' rights and
obligations
|
|
(a)
|
The
obligations of each Finance Party under the Finance Documents are
several. Failure by a Finance Party to perform its obligations
under the Finance Documents does not affect the obligations of any other
Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party under the
Finance Documents.
|
|
(b)
|
The
rights of each Finance Party under or in connection with the Finance
Documents are separate and independent rights and any debt arising under
the Finance Documents to a Finance Party from an Obligor shall be a
separate and independent debt.
|
|
(c)
|
A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance
Documents.
|
2.3
|
Designated
Entities
Where a Lender (each a "Designated Lender") has designated in the signature pages to this Agreement an Affiliate of itself (each a "Designated Entity") as its Facility Office for the purposes of participating in or making Loans to a particular Borrower, the Parties unconditionally and irrevocably agree that such Designated Entity shall: |
|
(a)
|
not
have any Commitment (which shall remain with the Designating
Lender);
|
|
(b)
|
be
entitled to all rights and benefits (other than voting rights which shall
remain with the Designating Lender) under this Agreement relating to its
participation in any Loan to such a Borrower;
and
|
|
(c)
|
have
the corresponding duties of a Lender in relation to such Loans, and shall
be a party to this Agreement for that
purpose.
|
|
Such
Designating Lender shall procure, subject to the terms of this Agreement,
that the Designated Entity participates in a Loan to such a Borrower in
place of the Designating
|
23
CONFORMED
COPY
|
Lender
and the Parties shall be entitled to treat such Designated Entity as a
Lender accordingly.
|
3.
|
3.1
|
Purpose
|
Each
Borrower shall apply all amounts borrowed by it under Facility A and Facility B
towards general corporate purposes including (but not limited to) the Akzo Nobel
Retirement (in combination with the Subordinated Loan), the financing or
refinancing of the Crystex Acquisition, payment of the Long Term Incentive
Compensation and payment of the Pension Fund Obligations.
3.2
|
Monitoring
|
No
Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
4.1
|
Initial
conditions precedent
|
No
Borrower may deliver a Utilisation Request unless the Agent has received all of
the documents and other evidence listed in Part I of Schedule 2 (Conditions
Precedent and Conditions Subsequent) in form and substance satisfactory
to the Agent. The Agent shall notify the Company and the Lenders
promptly upon being so satisfied.
4.2
|
Further
conditions precedent
|
|
(a)
|
The
Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
|
|
(i)
|
in
the case of a Rollover Loan, no Event of Default is continuing or would
result from the proposed Loan and, in the case of any other Loan, no
Default is continuing or would result from the proposed Loan;
and
|
|
(ii)
|
the
Repeating Representations to be made by each Obligor are true in all
material respects.
|
|
(b)
|
The
Lenders will only be obliged to comply with Clause 8.3 (Change
of currency) if, on the first day of an Interest Period, no Default
is continuing or would result from the change of currency and the
Repeating Representations to be made by each Obligor are true in all
material respects.
|
|
(c)
|
In
the case of any Utilisation, no Crystallisation Event (as defined in the
applicable Japanese Security Document) has occurred in respect of any
Japanese Security Document given in favour of the Finance
Parties.
|
4.3
|
Conditions
relating to Optional
Currencies
|
A
currency will constitute an Optional Currency in relation to a Utilisation
if:
|
(a)
|
it
is readily available in the amount required and freely convertible into
the Base Currency in the Relevant Interbank Market on the Quotation Day
and the Utilisation Date for that Utilisation;
and
|
24
CONFORMED
COPY
|
(b)
|
it
is euros, sterling or yen.
|
4.4
|
Maximum
number of Utilisations
|
|
(a)
|
A
Borrower may not deliver a Facility B Utilisation Request if as a result
of the proposed Utilisation seven or more Facility B Utilisations would be
outstanding.
|
|
(b)
|
A
Borrower may not request that a Facility A Loan be
divided.
|
|
(c)
|
Any
Loan made by a single Lender under Clause 8.2 (Unavailability
of a currency) shall not be taken into account in this Clause
4.4.
|
25
CONFORMED
COPY
SECTION
3
UTILISATION
5.
|
5.1
|
Delivery
of a Utilisation Request
|
A
Borrower may utilise a Facility by delivery to the Agent of a duly completed
Utilisation Request not later than the Specified Time.
5.2
|
Completion
of a Utilisation Request
|
|
(a)
|
Each
Utilisation Request is irrevocable and will not be regarded as having been
duly completed unless:
|
|
(i)
|
it
identifies the Facility to be
utilised;
|
|
(ii)
|
the
proposed Utilisation Date is a Business Day within the Availability Period
applicable to that Facility;
|
|
(iii)
|
the
currency and amount of the Utilisation comply with Clause 5.3 (Currency
and amount); and
|
|
(iv)
|
the
proposed Interest Period complies with Clause 12 (Interest
Periods).
|
|
(b)
|
Only
one Loan may be requested in each Utilisation
Request.
|
5.3
|
Currency
and amount
|
|
(a)
|
The
currency specified in a Utilisation Request must be the Base Currency or
an Optional Currency.
|
|
(b)
|
The
amount of the proposed Loan must
be:
|
|
(i)
|
if
the currency selected is the Base Currency, US$75,000,000 for Facility A
and a minimum of US$5,000,000 for Facility B or in either case, if less,
the Available Facility; or
|
|
(ii)
|
if
the currency selected is an Optional Currency for Facility A and Facility
B the equivalent amounts to that specified in paragraph (b)(i) above
converted into the Optional Currency or, if less, the Available Facility;
and
|
|
(iii)
|
in
any event such that its Base Currency Amount is less than or equal to the
Available Facility; and
|
|
(iv)
|
provided
that, to the extent ever utilised by a Dutch Obligor, the minimum amount
to be drawn by it shall not be less than the equivalent of EUR
50,000.
|
5.4
|
Lenders'
participation
|
|
(a)
|
If
the conditions set out in this Agreement have been met, each Lender shall
make its participation in each Loan available by the Utilisation Date
through its Facility Office.
|
26
CONFORMED
COPY
|
(b)
|
The
amount of each Lender's participation in each Loan will be equal to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to making the
Loan.
|
|
(c)
|
The
Agent shall determine the Base Currency Amount of each Loan which is to be
made in an Optional Currency and shall notify each Lender of the amount,
currency and the Base Currency Amount of each Loan and the amount of its
participation in that Loan, in each case by the Specified
Time.
|
5.5
|
Cancellation
of Commitment
|
|
(a)
|
The
Total Facility A Commitments shall be immediately cancelled at the end of
the Availability Period for Facility
A.
|
|
(b)
|
The
Total Facility B Commitments shall be immediately cancelled at the end of
the Availability Period for Facility
B.
|
6.1
|
General
|
|
(a)
|
In
this Clause 6 and Clause 7 (Letters
of Credit):
|
|
(i)
|
"Expiry
Date" means, for a Letter of Credit, the last day of its
Term;
|
|
(ii)
|
"L/C
Proportion" means, in relation to a Lender in respect of any Letter
of Credit, the proportion (expressed as a percentage) borne by that
Lender's Available Commitment to the Available Facility immediately prior
to the issue of that Letter of Credit, adjusted to reflect any assignment
or transfer under this Agreement to or by that
Lender;
|
|
(iii)
|
"Renewal
Request" means a written notice delivered to the Agent in
accordance with Clause 6.7 (Renewal
of a Letter of Credit); and
|
|
(iv)
|
"Term"
means each period determined under this Agreement for which the Issuing
Bank is under a liability under a Letter of
Credit.
|
|
(b)
|
Any
reference in this Agreement to:
|
|
(i)
|
a
"Finance
Party" includes the Issuing
Bank;
|
|
(ii)
|
the
Interest Period of a Letter of Credit will be construed as a reference to
the Term of that Letter of Credit;
|
|
(iii)
|
an
amount borrowed includes any amount utilised by way of Letter of
Credit;
|
|
(iv)
|
a
Utilisation made or to be made to a Borrower includes a Letter of Credit
issued on its behalf;
|
|
(v)
|
a
Lender funding its participation in a Utilisation includes a Lender
participating in a Letter of
Credit;
|
27
CONFORMED
COPY
|
(vi)
|
amounts
outstanding under this Agreement include amounts outstanding under or in
respect of any Letter of Credit;
|
|
(vii)
|
an
outstanding amount of a Letter of Credit at any time is the maximum amount
that is or may be payable by the Borrower that requested the issue of that
Letter of Credit at that time;
|
|
(viii)
|
a
Borrower "repaying"
or "prepaying"
a Letter of Credit means:
|
|
(A)
|
that
Borrower providing cash cover for that Letter of
Credit;
|
|
(B)
|
the
maximum amount payable under the Letter of Credit being reduced in
accordance with its terms; or
|
|
(C)
|
the
Issuing Bank being satisfied that it has no further liability under that
Letter of Credit,
|
and the
amount by which a Letter of Credit is repaid or prepaid under sub-paragraphs
(viii)(A) and (viii)(B) above is the amount of the relevant cash cover or
reduction; and
|
(ix)
|
a
Borrower providing "cash
cover" for a Letter of Credit means a Borrower paying an amount in
the currency of the Letter of Credit to an interest-bearing account in the
name of that Borrower and the following conditions are
met:
|
|
(A)
|
the
account is with the Agent or the Issuing Bank (if the cash cover is to be
provided for all the Lenders) or with a Lender (if the cash cover is to be
provided for that Lender);
|
|
(B)
|
withdrawals
from the account may only be made to pay a Finance Party amounts due and
payable to it under this Agreement in respect of that Letter of Credit
until no amount is or may be outstanding under that Letter of Credit;
and
|
|
(C)
|
that
Borrower has executed a security document, in form and substance
satisfactory to the Agent or the Finance Party with which that account is
held, creating a first ranking security interest over that
account.
|
|
(c)
|
Clause
5 (Utilisation)
does not apply to a Utilisation by way of Letter of
Credit.
|
|
(d)
|
In
determining the amount of the Available Facility and a Lender's L/C
Proportion of a proposed Letter of Credit for the purposes of this
Agreement the Available Commitment of a Lender will be calculated ignoring
any cash over provided for outstanding Letters of
Credit.
|
6.2
|
Facility
B
|
An amount
of up to US$50,000,000 of Facility B may be utilised by way of Letters of
Credit.
28
CONFORMED
COPY
6.3
|
Delivery
of a Utilisation Request for Letters of Credit
A
Borrower may request a Letter of Credit to be issued by delivery to the
Agent of a duly completed Utilisation Request in the form of Part IB of
Schedule 3 (Requests)
not later than the Specified
Time.
|
6.4
|
Completion
of a Utilisation Request for Letters of Credit
Each Utilisation Request for a
Letter of Credit is irrevocable and will not be regarded as having been
duly completed unless:
|
|
(a)
|
it
specifies that it is for a Letter of Credit and identifies the Issuing
Bank;
|
|
(b)
|
the
proposed Utilisation Date is a Business Day within the Availability
Period;
|
|
(c)
|
the
currency and amount of the Letter of Credit comply with Clause 6.5 (Currency
and amount);
|
|
(d)
|
the
form of Letter of Credit is
attached;
|
|
(e)
|
the
Expiry Date of the Letter of Credit falls on or before the Termination
Date;
|
|
(f)
|
the
delivery instructions for the Letter of Credit are specified;
and
|
|
(g)
|
it
identifies the domicile of the
beneficiary.
|
6.5
|
Currency
and amount
|
|
(a)
|
The
currency specified in a Utilisation Request must be the Base Currency or
an Optional Currency.
|
|
(b)
|
The
amount of the proposed Letter of Credit must be an amount whose Base
Currency Amount is not more than the Available Facility and which
is:
|
|
(i)
|
if
the currency selected is the Base Currency, a minimum of US$25,000 or, if
less, the Available Facility; or
|
|
(ii)
|
if
the currency selected is an Optional Currency, the minimum amount (and if
required, integral multiple) specified by the Agent pursuant to paragraph
(b)(ii) of Clause 4.3 (Conditions
relating to Optional Currencies) or, if less, the Available
Facility.
|
6.6
|
Issue
of Letters of Credit
|
|
(a)
|
If
the conditions set out in this Agreement have been met, the Issuing Bank
shall issue the Letter of Credit on the Utilisation
Date.
|
|
(b)
|
The
Issuing Bank will only be obliged to comply with paragraph (a) above if on
the date of the Utilisation Request or Renewal Request and on the proposed
Utilisation Date:
|
|
(i)
|
in the case of a Letter of Credit
renewed in accordance with Clause 6.7 (Renewal
of a Letter of Credit), no Event of Default is continuing or would
result from the proposed Utilisation and, in the case of any other Utilisation,
no Default is continuing or would result from the proposed Utilisation;
and
|
29
CONFORMED
COPY
|
(ii)
|
the
Repeating Representations to be made by each Obligor are true in all
material respects.
|
|
(c)
|
The
amount of each Lender's participation in each Letter of Credit will be
equal to the proportion borne by its Available Commitment to the Available
Facility immediately prior to the issue of the Letter of
Credit.
|
|
(d)
|
The
Agent shall determine the Base Currency Amount of each Letter of Credit
which is to be issued in an Optional Currency and shall notify the Issuing
Bank and each Lender of the details of the requested Letter of Credit and
its participation in that Letter of Credit by the Specified
Time.
|
6.7
|
Renewal
of a Letter of Credit
|
|
(a)
|
A
Borrower may request any Letter of Credit issued on its behalf be renewed
by delivery to the Agent of a Renewal Request by the Specified
Time.
|
|
(b)
|
The
Finance Parties shall treat any Renewal Request in the same way as a
Utilisation Request for a Letter of Credit except that the conditions set
out in paragraph (d) of Clause 6.4 (Completion
of a Utilisation Request for Letters of Credit) shall not
apply.
|
|
(c)
|
The
terms of each renewed Letter of Credit shall be the same as those of the
relevant Letter of Credit immediately prior to its renewal, except
that:
|
|
(i)
|
its
amount may be less than the amount of the Letter of Credit immediately
prior to its renewal; and
|
|
(ii)
|
its
Term shall start on the date which was the Expiry Date of the Letter of
Credit immediately prior to its renewal, and shall end on the proposed
Expiry Date specified in the Renewal
Request.
|
|
(d)
|
If
the conditions set out in this Agreement have been met, the Issuing Bank
shall amend and re-issue any Letter of Credit pursuant to a Renewal
Request.
|
6.8
|
Revaluation
of Letters of Credit
|
|
(a)
|
If
any Letter of Credit is denominated in an Optional Currency, the Agent
shall at three monthly intervals after the date of the Letter of Credit,
recalculate the Base Currency Amount of that Letter of Credit by
notionally converting into the Base Currency the outstanding amount of
that Letter of Credit on the basis of the Agent's Spot Rate of Exchange on
the date of calculation.
|
|
(b)
|
A
Borrower shall, if requested by the Agent within five days of any
calculation under paragraph (a) above, ensure that within three Business
Days sufficient Facility B Utilisations are prepaid to prevent the Base
Currency Amount of the Facility B Utilisations exceeding the Total
Facility B Commitments following any adjustment to a Base Currency Amount
under paragraph (a) above.
|
30
CONFORMED
COPY
7.1
|
Immediately
payable
|
If a
Letter of Credit or any amount outstanding under a Letter of Credit becomes
payable and no claim (as defined in paragraph (a) of Clause 7.4 (Claims
under a Letter of Credit) has been made in respect of that Letter of
Credit or amount outstanding under that Letter of Credit, the Borrower that
requested the issue of that Letter of Credit shall repay or prepay that amount
immediately.
7.2
|
Assignments
and transfers
|
|
(a)
|
Notwithstanding
any other provision of this Agreement, the consent of the relevant Issuing
Bank is required for any assignment or transfer of any Lender's rights
and/or obligations under Facility
B.
|
|
(b)
|
If
paragraph (a) and the conditions and procedure for transfer specified in
Clause 26 (Changes
to the Lenders) are satisfied, then on the Transfer Date the
Issuing Bank and the New Lender shall acquire the same rights and assume
the same obligations between themselves as they would have acquired and
assumed had the New Lender been an Original Lender with the rights and/or
obligations acquired or assumed by it as a result of the transfer and to
that extent the relevant Issuing Bank and the Existing Lender shall each
be released from further obligations to each other under this
Agreement.
|
7.3
|
Fee
payable in respect of Letters of
Credit
|
|
(a)
|
Each
Borrower shall pay to the relevant Issuing Bank a fronting fee in respect
of each Letter of Credit requested by it and issued by such Issuing Bank
in the amount and at the times agreed in writing between the relevant
Issuing Bank and the Company. A reference in this Agreement to
a Fee Letter shall include any written agreement referred to in this
paragraph.
|
|
(b)
|
Each
Borrower shall pay to the Agent (for the account of each Lender) a letter
of credit fee in the Base Currency computed at the same rate as the Margin
on the outstanding amount of each Letter of Credit requested by it for the
period from the issue of that Letter of Credit until its Expiry
Date. This fee shall be distributed according to each Lender's
L/C Proportion of that Letter of
Credit.
|
|
(c)
|
The
accrued letter of credit fee on a Letter of Credit shall be payable on the
first day of each successive period of three months (or such shorter
period as shall end on the Expiry Date for that Letter of Credit) starting
on the date of issue of that Letter of
Credit.
|
|
(d)
|
If
a Borrower cash covers any part of a Letter of Credit
then:
|
|
(i)
|
the
fronting fee payable to the relevant Issuing Bank and the letter of credit
fee payable for the account of each Lender shall continue to be payable
until the expiry of the Letter of
Credit;
|
|
(ii)
|
the
Borrower will be entitled to withdraw the interest accrued on the cash
cover to pay those fees.
|
31
CONFORMED
COPY
7.4
|
Claims
under a Letter of
Credit
|
|
(a)
|
Each
Borrower irrevocably and unconditionally authorises the relevant Issuing
Bank to pay any claim made or purported to be made under a Letter of
Credit requested by it and which appears on its face to be in order (a
"claim").
|
|
(b)
|
Each
Borrower which requested a Letter of Credit shall immediately on demand
pay to the Agent for the relevant Issuing Bank an amount equal to the
amount of any claim under that Letter of
Credit.
|
|
(c)
|
Each
Borrower acknowledges that the relevant Issuing
Bank:
|
|
(i)
|
is
not obliged to carry out any investigation or seek any confirmation from
any other person before paying a claim;
and
|
|
(ii)
|
deals
in documents only and will not be concerned with the legality of a claim
or any underlying transaction or any available set-off, counterclaim or
other defence of any person.
|
|
(d)
|
The
obligations of a Borrower under this Clause will not be affected
by:
|
|
(i)
|
the
sufficiency, accuracy or genuineness of any claim or any other document;
or
|
|
(ii)
|
any
incapacity of, or limitation on the powers of, any person signing a claim
or other document.
|
7.5
|
Indemnities
|
|
(a)
|
Each
Borrower shall immediately on demand indemnify an Issuing Bank against any
cost, loss or liability incurred by such Issuing Bank (otherwise than by
reason of such Issuing Bank's gross negligence or wilful misconduct) in
acting as the Issuing Bank under any Letter of Credit requested by that
Borrower.
|
|
(b)
|
Each
Lender shall (according to its L/C Proportion) immediately on demand
indemnify an Issuing Bank against any cost, loss or liability incurred by
such Issuing Bank (otherwise than by reason of such Issuing Bank's gross
negligence or wilful misconduct) in acting as the Issuing Bank under any
Letter of Credit (unless such Issuing Bank has been reimbursed by an
Obligor pursuant to a Finance
Document).
|
|
(c)
|
If any Lender is not permitted (by
its constitutional documents or any applicable law) to comply with
paragraph (b) above), then that Lender will not be obliged to comply with
paragraph (b) and shall instead be deemed to have taken, on the date the
Letter of Credit is issued (or if later, on the date the Lender's
participation in the Letter of Credit is transferred or assigned to the
Lender in accordance with the terms of this Agreement), an undivided
interest and participation in the Letter of Credit in an amount equal to
its L/C Proportion of that Letter of Credit. On receipt of
demand from the Agent, that Lender shall pay
to the Agent (for the account of the Issuing Bank) an amount equal to its
L/C Proportion of the amount demanded under paragraph (b)
above.
|
32
CONFORMED
COPY
|
(d)
|
The
Borrower which requested a Letter of Credit shall immediately on demand
reimburse any Lender for any payment it makes to an Issuing Bank under
this Clause 7.5 (Indemnities)
in respect of that Letter of
Credit.
|
|
(e)
|
The
obligations of each Lender under this Clause are continuing obligations
and will extend to the ultimate balance of sums payable by that Lender in
respect of any Letter of Credit, regardless of any intermediate payment or
discharge in whole or in part.
|
|
(f)
|
The
obligations of any Lender or any Borrower under this Clause will not be
affected by any act, omission, matter or thing which, but for this Clause,
would reduce, release or prejudice any of its obligations under this
Clause (without limitation and whether or not known to it or
any other person) including:
|
|
(i)
|
any
time, waiver or consent granted to, or composition with, any Obligor, any
beneficiary under a Letter of Credit or other
person;
|
|
(ii)
|
the
release of any other Obligor or any other person under the terms of any
composition or arrangement;
|
|
(iii)
|
the
taking, variation, compromise, exchange, renewal or release of, or refusal
or neglect to perfect, take up or enforce, any rights against, or security
over assets of, any Obligor, any beneficiary under a Letter of Credit or
other person or any non-presentation or non-observance of any formality or
other requirement in respect of any instrument or any failure to realise
the full value of any security;
|
|
(iv)
|
any
incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of an Obligor, any
beneficiary under a Letter of Credit or any other
person;
|
|
(v)
|
any
amendment (however fundamental) or replacement of a Finance Document, any
Letter of Credit or any other document or
security;
|
|
(vi)
|
any
unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document, any Letter of Credit or any other document or
security; or
|
|
(vii)
|
any
insolvency or similar proceedings.
|
7.6
|
Rights
of contribution
|
No
Obligor will be entitled to any right of contribution or indemnity from any
Finance Party in respect of any payment it may make under this Clause
7.
7.7
|
Role
of the Issuing Bank
|
|
(a)
|
Nothing
in this Agreement constitutes an Issuing Bank as a trustee or fiduciary of
any other person.
|
|
(b)
|
An
Issuing Bank shall not be bound to account to any Lender for any sum or
the profit element of any sum received by it for its own
account.
|
33
CONFORMED
COPY
|
(c)
|
An
Issuing Bank may accept deposits from, lend money to and generally engage
in any kind of banking or other business with any member of the
Group.
|
|
(d)
|
An
Issuing Bank may rely on:
|
|
(i)
|
any
representation, notice or document believed by it to be genuine, correct
and appropriately authorised; and
|
|
(ii)
|
any
statement made by a director, authorised signatory or employee of any
person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to
verify.
|
|
(e)
|
An
Issuing Bank may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other
experts.
|
|
(f)
|
An
Issuing Bank may act in relation to the Finance Documents through its
personnel and agents.
|
|
(g)
|
An
Issuing Bank is not responsible
for:
|
|
(i)
|
the
adequacy, accuracy and/or completeness of any information (whether oral or
written) provided by the Agent, any Party (including itself), or any other
person under or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement, arrangement
or document entered into, made or executed in anticipation of, under or in
connection with any Finance Document;
or
|
|
(ii)
|
the
legality, validity, effectiveness, adequacy or enforceability of any
Finance Document or any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with any
Finance Document.
|
7.8
|
Exclusion
of liability
|
|
(a)
|
Without
limiting paragraph (b) below, an Issuing Bank will not be liable for any
action taken by it under or in connection with any Finance Document,
unless directly caused by its gross negligence or wilful
misconduct.
|
|
(b)
|
No
Party (other than an Issuing Bank) may take any proceedings against any
officer, employee or agent of an Issuing Bank in respect of any claim it
might have against the Issuing Bank or in respect of any act or omission
of any kind by that officer, employee or agent in relation to any Finance
Document.
|
7.9
|
Credit
appraisal by the Lenders
|
Without affecting the responsibility of any
Obligor for information supplied by it or on its behalf in connection with any
Finance Document, each Lender confirms to the relevant Issuing Bank that it has
been, and will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection
with any Finance Document, including but not limited to, those listed in
paragraphs (a) to (d) of Clause 28.14 (Credit
appraisal by the Secured Parties).
34
CONFORMED
COPY
7.10
|
Address
for notices
|
The
address and fax number (and the department or officer, if any, for whose
attention the communication is to be made) of the relevant Issuing Bank for any
communication or document to be made or delivered under or in connection with
the Finance Documents is that notified in writing to the Agent prior to the date
of this Agreement or any substitute address, fax number, department or officer
as the Issuing Bank may notify to the Agent by not less than five Business Days'
notice.
7.11
|
Amendments
and Waivers
|
Notwithstanding
any other provision of this Agreement, an amendment or waiver which relates to
the rights or obligations of the Issuing Bank may not be effected without the
consent of the relevant Issuing Bank.
8.1
|
Selection
of currency
|
|
(a)
|
A
Borrower (or the Company on behalf of a Borrower) shall select the
currency of a Utilisation:
|
|
(i)
|
(in
the case of an initial Utilisation) in a Utilisation Request;
and
|
|
(ii)
|
(afterwards
in relation to a Facility A Loan made to it) in a Selection
Notice.
|
|
(b)
|
If
a Borrower (or the Company on behalf of a Borrower) fails to issue a
Selection Notice in relation to a Facility A Loan, the Loan will remain
denominated for its next Interest Period in the same currency in which it
is then outstanding.
|
|
(c)
|
If
a Borrower (or the Company on behalf of a Borrower) issues a Selection
Notice requesting a change of currency and the first day of the requested
Interest Period is not a Business Day for the new currency, the Agent
shall promptly notify the Borrower and the Lenders and the Loan will
remain in the existing currency (with Interest Periods running from one
Business Day until the next Business Day) until the next day which is a
Business Day for both currencies, on which day the requested Interest
Period will begin.
|
8.2
|
Unavailability
of a currency
|
If before
the Specified Time on any Quotation Day:
|
(a)
|
a
Lender notifies the Agent that the Optional Currency requested is not
readily available to it in the amount required;
or
|
|
(b)
|
a
Lender notifies the Agent that compliance with its obligation to
participate in a Loan in the proposed Optional Currency would contravene a
law or regulation applicable to it,
|
|
the
Agent will give notice to the relevant Borrower to that effect
by the Specified Time on that day. In this event, any Lender
that gives notice pursuant to this Clause 8.2 will be required to
participate in the Loan in the Base Currency (in an amount equal to that
Lender's proportion of the Base Currency Amount, or in respect of a
Rollover Loan, an
|
35
CONFORMED
COPY
|
amount
equal to that Lender's proportion of the Base Currency Amount of the
Rollover Loan that is due to be made) and its participation
will be treated as a separate Loan denominated in the Base Currency during
that Interest Period.
|
8.3
|
Change
of currency
|
|
(a)
|
If
a Facility A Loan is to be denominated in different currencies during two
successive Interest Periods:
|
|
(i)
|
if
the currency for the second Interest Period is an Optional Currency, the
amount of the Loan in that Optional Currency will be calculated by the
Agent as the amount of that Optional Currency equal to the Base Currency
Amount of the Loan at the Agent's Spot Rate of Exchange at the Specified
Time;
|
|
(ii)
|
if
the currency for the second Interest Period is the Base Currency, the
amount of the Loan will be equal to the Base Currency
Amount;
|
|
(iii)
|
(unless
the Agent and the Borrower agree otherwise in accordance with paragraph
(b) below) the Borrower that has borrowed the Loan shall repay it on the
last day of the first Interest Period in the currency in which it was
denominated for that Interest Period;
and
|
|
(iv)
|
(subject
to Clause 4.2 (Further
conditions precedent)) the Lenders shall re-advance the Loan in the
new currency in accordance with Clause 8.5 (Agent's
calculations).
|
|
(b)
|
If
the Agent and the Borrower that has borrowed the Facility A Loan agree,
the Agent shall:
|
|
(i)
|
apply
the amount paid to it by the Lenders pursuant to paragraph (a)(iv) above
(or so much of that amount as is necessary) in or towards purchase of an
amount in the currency in which the Facility A Loan is outstanding for the
first Interest Period; and
|
|
(ii)
|
use
the amount it purchases in or towards satisfaction of the relevant
Borrower's obligations under paragraph (a)(iii)
above.
|
|
(c)
|
If
the amount purchased by the Agent pursuant to paragraph (b)(i) above is
less than the amount required to be repaid by the relevant Borrower, the
Agent shall promptly notify that Borrower and that Borrower shall, on the
last day of the first Interest Period, pay an amount to the Agent (in the
currency of the outstanding Facility A Loan for the first Interest Period)
equal to the difference.
|
|
(d)
|
If any part of the amount paid to the
Agent by the Lenders pursuant to paragraph (a)(iv) above is not needed to
purchase the amount required to be repaid
by the relevant Borrower, the Agent shall promptly notify that Borrower
and pay that Borrower, on the last day of the first Interest Period that
part of that amount (in the new
currency).
|
36
CONFORMED
COPY
8.4
|
Same
Optional Currency during successive Interest
Periods
|
|
(a)
|
If
a Facility A Loan is to be denominated in the same Optional Currency
during two successive Interest Periods, the Agent shall calculate the
amount of the Facility A Loan in the Optional Currency for the second of
those Interest Periods (by calculating the amount of Optional Currency
equal to the Base Currency Amount of that Facility A Loan at the Agent's
Spot Rate of Exchange at the Specified Time) and (subject to paragraph (b)
below):
|
|
(i)
|
if
the amount calculated is less than the existing amount of that Facility A
Loan in the Optional Currency during the first Interest Period, promptly
notify the Borrower that has borrowed that Facility A Loan and that
Borrower shall pay, on the last day of the first Interest Period, an
amount equal to the difference; or
|
|
(ii)
|
if
the amount calculated is more than the existing amount of that Facility A
Loan in the Optional Currency during the first Interest Period, promptly
notify each Lender and, if no Event of Default is continuing, each Lender
shall, on the last day of the first Interest Period, pay its participation
in an amount equal to the
difference.
|
|
(b)
|
If
the calculation made by the Agent pursuant to paragraph (a) above shows
that the amount of the Facility A Loan in the Optional Currency for the
second of those Interest Periods converted into the Base Currency at the
Agent's Spot Rate of Exchange at the Specified Time has increased or
decreased by less than 5 per cent. compared to its Base Currency Amount
(taking into account any payments made pursuant to paragraph (a) above),
no notification shall be made by the Agent and no payment shall be
required under paragraph (a) above.
|
8.5
|
Agent's
calculations
|
|
(a)
|
All
calculations made by the Agent pursuant to this Clause 8 will take into
account any repayment, prepayment, consolidation or division of Facility A
Loans to be made on the last day of the first Interest
Period.
|
|
(b)
|
Each
Lender's participation in a Loan will, subject to paragraph (a) above, be
determined in accordance with paragraph (b) of Clause 5.4 (Lenders'
participation).
|
37
CONFORMED
COPY
SECTION
4
REPAYMENT,
PREPAYMENT AND CANCELLATION
9.
|
9.1
|
Repayment
of Facility A Loans
|
|
(a)
|
Each
Borrower shall repay the Facility A Loans made to it in instalments by
repaying on each Repayment Date the amount set out opposite each Repayment
Date below:
|
Repayment
Date
|
Repayment
Instalment
|
On
the first anniversary of the date of this Agreement
|
US$15,000,000
|
On
the second anniversary of the date of this Agreement
|
US$15,000,000
|
On
the third anniversary of the date of this Agreement
|
US$15,000,000
|
On
the fourth anniversary of the date of this Agreement
|
US$15,000,000
|
On
the fifth anniversary of the date of this Agreement
|
An
amount in dollars equal to the Facility A Loan then outstanding in
relation to the relevant Borrower shall be repaid in full.
|
|
(b)
|
Any
repayment or prepayment of a Facility A Loan denominated in an Optional
Currency shall reduce the amount of that Facility A Loan by the amount of
that Optional Currency repaid and shall reduce the Base Currency Amount of
that Facility A Loan
proportionally.
|
|
(c)
|
No
Borrower may reborrow any part of Facility A which is
repaid.
|
9.2
|
Repayment
of Facility B Loans
|
|
(a)
|
Each
Borrower which has drawn a Facility B Loan shall repay that Loan on the
last day of its Interest Period and, in any event, shall repay in full an
amount in dollars equal to the Facility B Loan then outstanding in
relation to the relevant Borrower no later than the Termination
Date.
|
|
(b)
|
Any
reduction of the Total Facility B Commitments shall reduce rateably the
Commitment of each Lender.
|
|
(c)
|
A
Borrower may reborrow any part of Facility B which is
repaid.
|
38
CONFORMED
COPY
10.1
|
Illegality
|
|
(a)
|
If,
at any time, it is or will become unlawful in any applicable jurisdiction
for a Lender to perform any of its obligations as contemplated by this
Agreement or to fund or maintain its participation in any
Utilisation:
|
|
(i)
|
that
Lender shall promptly notify the Agent upon becoming aware of that
event;
|
|
(ii)
|
upon
the Agent notifying the Company, the Commitment of that Lender will be
immediately cancelled; and
|
|
(iii)
|
each
Borrower shall repay that Lender's participation in the Utilisations made
to that Borrower on the last day of the Interest Period for each
Utilisation occurring after the Agent has notified the Company or, if
earlier, the date specified by the Lender in the notice delivered to the
Agent.
|
|
(b)
|
If,
at any time, it is or will become unlawful for the Issuing Bank to issue
or leave outstanding any Letter of Credit the Issuing Bank shall promptly
notify the Agent upon becoming aware of that event and upon the Agent
notifying the Company, Facility B shall cease to be available for the
issue of Letters of Credit and each Borrower shall use its best endeavours
to procure the release of each Letter of Credit requested by that Borrower
and outstanding at such time.
|
10.2
|
Change
of control
|
|
(a)
|
As
of the Akzo Nobel Retirement, if Solutia Inc. or any of its Subsidiaries
cease to control, either directly or
indirectly:
|
|
(i)
|
the
Company;
|
|
(ii)
|
Flexsys
Rubber Chemicals Limited; or
|
|
(iii)
|
the
partnership interests in Flexsys America
L.P.
|
(being
a "Change
of Control"), the Company and the relevant Obligor shall immediately
notify the Agent.
|
(b)
|
For
the purposes of paragraph (a) of this Clause 10.2, the cessation or change
of ownership of the Company, Flexsys America L.P. or Flexsys Rubber
Chemicals Limited that does not have an adverse effect (whether legal or
otherwise) on the nature of any transaction Security or any further
security granted (or that may be granted) pursuant to the Finance
Documents or on the rights or remedies of the Lenders under any such
Transaction Security or other such Security or under the Finance
Documents, shall be disregarded, provided
that the Group remains wholly owned by Solutia Inc, or any of its
subsidiaries.
|
For
the purposes of paragraph (a) above "control"
means:
|
(i)
|
the
power (whether by way of ownership of shares, proxy, contract, agency or
otherwise) to:
|
39
CONFORMED
COPY
|
(A)
|
cast,
or control the casting of, more than one half of the maximum number of
votes that might be cast at a general meeting of the relevant Obligor;
or
|
|
(B)
|
appoint
or remove all, or the majority, of the directors or other equivalent
officers of the relevant Obligor;
or
|
|
(C)
|
give
directions with respect to the operating and financial policies of the
Company which the directors or other equivalent officers of the relevant
Obligor are obliged to comply with;
or
|
|
(D)
|
the
holding more than one half of the issued share capital of the relevant
Obligor (excluding any part of that issued share capital that carries no
right to participate beyond a specified amount in a distribution of either
profits or capital).
|
|
(c)
|
If
a Lender so requires and notifies the Agent within 30 days of the Company
notifying the Agent of a Change of Control, the Agent shall, by not less
than 30 days notice to the Company, cancel the Commitment of that Lender
and declare the participation of that Lender in all outstanding
Utilisations, together with accrued interest, and all other amounts
accrued under the Finance Documents immediately due and payable, whereupon
the Commitment of that Lender will be cancelled and all such outstanding
amounts will become immediately due and
payable.
|
10.3
|
Voluntary
cancellation
The
Company may, if it gives notice to the Agent by no later than 11:00 am on
the Business Day immediately preceding the day the cancellation is to take
effect, cancel the whole or any part (being a minimum amount of
US$10,000,000 and the integral multiples thereof) of the undrawn
Commitments under the Facility B Loan. Any cancellation under
this Clause 10.3 shall reduce the Commitments of the Lenders rateably
under that Facility.
|
10.4
|
Voluntary
prepayment of Facility A
Loans
|
|
(a)
|
A
Borrower to which a Facility A Loan has been made may, if it gives the
Agent not less than 5 Business Days' (or such shorter period as the Agent
acting on instruction of the Majority Lenders may agree) prior notice,
prepay the whole or any part of any Facility A Loan (but, if in part,
being an amount that reduces the Base Currency Amount of the Facility A
Loan by a minimum amount of US$1,000,000 and integral multiples
thereof).
|
|
(b)
|
A
Facility A Loan may only be prepaid on the last day of an Interest Period
(or, if earlier, the day on which the applicable Available Facility is
zero).
|
|
(c)
|
Any prepayment under this Clause 10
shall satisfy the obligations under Clause 9.1 (Repayment
of Facility A Loans) pro rata for each repayment instalment prior
to the occurrence of a Default and, thereafter, in inverse chronological
order.
|
40
CONFORMED
COPY
10.5
|
Right
of repayment and cancellation in relation to a single
Lender
|
|
(a)
|
If:
|
|
(i)
|
any
sum payable to any Lender by an Obligor is required to be increased under
paragraph (c) of Clause 15.2 (Tax
gross-up); or
|
|
(ii)
|
any
Lender claims indemnification from the Company under Clause 15.3 (Tax
indemnity) or Clause 16.1 (Increased
costs); or
|
|
(iii)
|
any
Lender notifies the Agent of its Additional Cost Rate under paragraph 3 of
Schedule 4 (Mandatory
Cost Formulae);
|
|
|
the
Company may, whilst (in the case of paragraphs (i) and (ii) above) the
circumstance giving rise to the requirement or indemnification continues
or (in the case of paragraph (iii) above) that Additional Cost Rate is
greater than zero, give the Agent notice of cancellation of the Commitment
of that Lender and its intention to procure the repayment of that Lender's
participation in the Utilisations.
|
|
(b)
|
On
receipt of a notice referred to in paragraph (a) above, the Commitment of
that Lender shall immediately be reduced to
zero.
|
|
(c)
|
On
the last day of each Interest Period which ends after the Company has
given notice under paragraph (a) above (or, if earlier, the date specified
by the Company in that notice), each Borrower to which a Utilisation is
outstanding shall repay that Lender's participation in that
Utilisation.
|
10.6
|
Restrictions
|
|
(a)
|
Any
notice of cancellation or prepayment given by any Party under this
Clause 10 shall be irrevocable and, unless a contrary indication
appears in this Agreement, shall specify the date or dates upon which the
relevant cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
|
|
(b)
|
Any
prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty.
|
|
(c)
|
No
Borrower may reborrow any part of Facility A which is
prepaid.
|
|
(d)
|
Unless
a contrary indication appears in this Agreement, any part of Facility B
which is prepaid may be reborrowed in accordance with the terms of this
Agreement.
|
|
(e)
|
The
Borrowers shall not repay or prepay all or any part of the Utilisations or
cancel all or any part of the Commitments except at the times and in the
manner expressly provided for in this
Agreement.
|
|
(f)
|
No
amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated.
|
41
CONFORMED
COPY
|
(g)
|
If
the Agent receives a notice under this Clause 10 it shall promptly forward
a copy of that notice to either the Company or the affected Lender, as
appropriate.
|
42
CONFORMED
COPY
SECTION
5
COSTS
OF UTILISATION
11.
|
11.1
|
Calculation
of interest
|
The rate
of interest on each Loan for each Interest Period is the percentage rate per
annum which is the aggregate of the applicable:
|
(a)
|
Margin;
|
|
(b)
|
LIBOR
or, in relation to any Loan in euro, EURIBOR;
and
|
|
(c)
|
Mandatory
Cost, if any.
|
11.2
|
Payment
of interest
|
The
Borrower to which a Loan has been made shall pay accrued interest on that Loan
on the last day of each Interest Period (and, if the Interest Period is longer
than six Months, on the dates falling at six Monthly intervals after the first
day of the Interest Period).
11.3
|
Default
interest
|
|
(a)
|
To
the extent permitted under applicable law, if an Obligor fails to pay any
amount payable by it under a Finance Document on its due date, interest
shall accrue on the overdue amount from the due date up to the date of
actual payment (both before and after judgment) at a rate which, subject
to paragraph (b) below, is one per cent higher than 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
successive Interest Periods, each of a duration selected by the Agent
(acting reasonably). Any interest accruing under this Clause
11.3 shall be immediately payable by the Obligor on demand by the
Agent.
|
|
(b)
|
If
any overdue amount consists of all or part of a Loan which became due on a
day which was not the last day of an Interest Period relating to that
Loan:
|
|
(i)
|
the
first Interest Period for that overdue amount shall have a duration equal
to the unexpired portion of the current Interest Period relating to that
Loan; and
|
|
(ii)
|
the
rate of interest applying to the overdue amount during that first Interest
Period shall be one per cent. higher than the rate which would have
applied if the overdue amount had not become
due.
|
|
(c)
|
To
the extent permitted under applicable law, default interest (if unpaid)
arising on an overdue amount will be compounded with the overdue amount at
the end of each Interest Period applicable to that overdue amount but will
remain immediately due and payable.
|
11.4
|
Notification
of rates of interest
|
The Agent
shall promptly notify the Lenders and the relevant Borrower of the determination
of a rate of interest under this Agreement.
43
CONFORMED
COPY
12.
|
12.1
|
Selection
of Interest Periods
|
|
(a)
|
A
Borrower (or the Company on behalf of a Borrower) may select an Interest
Period for a Loan in the Utilisation Request for that Loan or (if the Loan
has already been borrowed) in a Selection
Notice.
|
|
(b)
|
Each
Selection Notice for a Loan is irrevocable and must be delivered to the
Agent by the Borrower (or the Company on behalf of a Borrower) to which
that Loan was made not later than the Specified
Time.
|
|
(c)
|
If
a Borrower (or the Company) fails to deliver a Selection Notice to the
Agent in accordance with paragraph (b) above, the relevant Interest Period
will, subject to Clause 12.2 (Changes
to Interest Periods), be one
Month.
|
|
(d)
|
Subject
to this Clause 12, a Borrower (or the Company) may select an Interest
Period of one, three or six Months or any other period agreed between the
Company and the Agent (acting on the instructions of all the
Lenders). In addition, in relation to Facility A, a Borrower
(or the Company on its behalf) may select an Interest Period of a period
of less than one Month, if necessary to ensure that there are sufficient
Facility A Loans (with an aggregate Base Currency Amount equal to or
greater than the Repayment Instalment) which have an Interest Period
ending on a Facility A Repayment Date for the Borrowers to make the
Repayment Instalment due on that
date.
|
|
(e)
|
An
Interest Period for a Loan shall not extend beyond the Termination Date
applicable to its Facility.
|
|
(f)
|
Each
Interest Period for a Loan shall start on the Utilisation Date or (if
already made) on the last day of its preceding Interest
Period.
|
12.2
|
Changes
to Interest Periods
|
|
(a)
|
Prior
to determining the interest rate for a Facility A Loan, the Agent may
shorten an Interest Period for any Facility A Loan to ensure there are
sufficient Facility A Loans (with an aggregate Base Currency Amount equal
to or greater than the Repayment Instalment) which have an Interest Period
ending on a Facility A Repayment Date for the Borrowers to make the
Repayment Instalment due on that
date.
|
|
(b)
|
If
the Agent makes any of the changes to an Interest Period referred to in
this Clause 12.2, it shall promptly notify the Company and the
Lenders.
|
12.3
|
Non-Business
Days
|
If an
Interest Period would otherwise end on a day which is not a Business Day, that
Interest Period will instead end on the next Business Day in that calendar month
(if there is one) or the preceding Business Day (if there is not).
44
CONFORMED
COPY
13.1
|
Absence
of quotations
|
Subject
to Clause 13.2 (Market
disruption), if LIBOR or, if applicable, EURIBOR is to be determined by
reference to the Reference Banks but a Reference Bank does not supply a
quotation by the Specified Time on the Quotation Day, the applicable LIBOR or
EURIBOR shall be determined on the basis of the quotations of the remaining
Reference Banks.
13.2
|
Market
disruption
|
|
(a)
|
If
a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then the rate of interest on each Lender's share of that Loan for
the Interest Period shall be the percentage rate per annum which is the
sum of:
|
|
(i)
|
the
Margin;
|
|
(ii)
|
the
rate notified to the Agent by that Lender as soon as practicable and in
any event before interest is due to be paid in respect of that Interest
Period, to be that which expresses as a percentage rate per annum the cost
to that Lender of funding its participation in that Loan from whatever
source it may reasonably select;
and
|
|
(iii)
|
the
Mandatory Cost, if any, applicable to that Lender's participation in the
Loan.
|
|
(b)
|
In
this Agreement "Market
Disruption Event" means:
|
|
(i)
|
at
or about noon on the Quotation Day for the relevant Interest Period the
Screen Rate is not available and none or only one of the Reference Banks
supplies a rate to the Agent to determine LIBOR or, if applicable, EURIBOR
for the relevant currency and Interest Period;
or
|
|
(ii)
|
before
close of business in London on the Quotation Day for the relevant Interest
Period, the Agent receives notifications from a Lender or Lenders (whose
participations in a Loan exceed 35 per cent. of that Loan) that the cost
to it of obtaining matching deposits in the Relevant Interbank Market
would be in excess of LIBOR or, if applicable,
EURIBOR.
|
13.3
|
Alternative
basis of interest or funding
|
|
(a)
|
If
a Market Disruption Event occurs and the Agent or the Company so requires,
the Agent and the Company shall enter into negotiations (for a period of
not more than thirty days) with a view to agreeing a substitute basis for
determining the rate of interest.
|
|
(b)
|
Any
alternative basis agreed pursuant to paragraph (a) above shall, with the
prior consent of all the Lenders and the Company, be binding on all
Parties.
|
13.4
|
Break
Costs
|
|
(a)
|
Each
Borrower shall, within three Business Days of demand by a Finance Party,
pay to that Finance Party its Break Costs attributable to all or any part
of a Loan
|
45
CONFORMED
COPY
|
or
Unpaid Sum being paid by that Borrower on a day other than the last day of
an Interest Period for that Loan or Unpaid
Sum.
|
|
(b)
|
Each
Lender shall, as soon as reasonably practicable after a demand by the
Agent, provide a certificate confirming the amount of its Break Costs for
any Interest Period in which they
accrue.
|
14.
|
14.1
|
Commitment
fee
|
|
(a)
|
The
Company shall pay to the Agent (for the account of each Lender) a fee
computed at the rate of 40 per cent. per annum of the Margin applicable to
Facility B on the daily undrawn and uncancelled Available Commitment under
Facility B accruing from the date of this Agreement until the end of the
Facility B Availability Period.
|
|
(b)
|
The
accrued commitment fee is payable quarterly in arrears, on the last day of
the Facility B Availability Period and, if cancelled in full, on the
cancelled amount of the Facility B Commitment at the time the cancellation
is effective.
|
14.2
|
Utilisation
Fee
|
The
Company shall pay to the Agent (for the account of each Lender) a utilisation
fee at the rate of:
|
(a)
|
0.05
per cent. per annum on the Facility B Loans then outstanding, payable
quarterly in arrears whenever the aggregate of the Facility B Loans
borrowed but not yet repaid are equal to or greater than 33.33 per cent.
of the Total Facility B
Commitments.
|
|
(b)
|
0.15
per cent. per annum on the Facility B Loans then outstanding, payable
quarterly in arrears whenever the aggregate of the Facility B Loans
borrowed but not yet repaid are equal to or greater than 66.67 per cent.
of the Total Facility B
Commitments.
|
14.3
|
Front
end fee
|
The
Company shall pay to the Arrangers a front end fee in the amount and at the
times agreed in a Fee Letter.
14.4
|
Agency/Security
Trustee fee
|
The
Company shall pay to the Agent (for its own account) an agency/security trustee
fee in the amount and at the times agreed in a Fee Letter.
46
CONFORMED
COPY
SECTION
6
ADDITIONAL
PAYMENT OBLIGATIONS
15.1
|
Definitions
|
|
(a)
|
In
this Agreement:
|
"Protected
Party" means a Finance Party which is or will be subject to any
liability, or required to make any payment, for or on account of Tax in relation
to a sum received or receivable (or any sum deemed for the purposes of Tax to be
received or receivable) under a Finance Document.
"Tax
Credit" means a credit against, relief or remission for, or repayment of
any Tax.
"Tax
Deduction" means a deduction or withholding for or on account of Tax from
a payment under a Finance Document.
"Tax
Payment" means either the increase in a payment made by an Obligor to a
Finance Party under Clause 15.2 (Tax
gross-up) or a payment under Clause 15.3 (Tax
indemnity).
|
(b)
|
Unless
a contrary indication appears, in this Clause 15 a reference to
"determines" or "determined" means a determination made in the absolute
discretion of the person making the
determination.
|
15.2
|
Tax
gross-up
|
|
(a)
|
Each
Obligor shall make all payments to be made by it under the Finance
Documents without any Tax Deduction, unless a Tax Deduction is required by
law.
|
|
(b)
|
The
Company shall promptly upon becoming aware that an Obligor must make a Tax
Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Agent accordingly. Similarly, a Lender
shall notify the Agent on becoming so aware in respect of a payment
payable to that Lender. If the Agent receives such notification
from a Lender it shall notify the Company and that
Obligor.
|
|
(c)
|
If
a Tax Deduction is required by law to be made by an Obligor, the amount of
the payment due from that Obligor shall be increased to an amount which
(after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been
required.
|
|
(d)
|
An
Obligor is not obliged to pay any additional amounts pursuant to paragraph
(c) above in respect of any Tax Deduction which would not have been
required if the relevant Finance Party had complied with its obligations
under paragraph (g) below.
|
|
(e)
|
If
an Obligor is required to make a Tax Deduction, that Obligor shall make
that Tax Deduction and any payment required in connection with that
Tax
|
47
CONFORMED
COPY
|
Deduction
within the time allowed and in the minimum amount required by
law.
|
|
(f)
|
Within
thirty days of making either a Tax Deduction or any payment required in
connection with that Tax Deduction, the Obligor making that Tax Deduction
shall deliver to the Agent for the Finance Party entitled to the payment
evidence reasonably satisfactory to that Finance Party that the Tax
Deduction has been made or (as applicable) any appropriate payment paid to
the relevant taxing authority.
|
|
(g)
|
A
Finance Party and each Obligor which makes a payment to which that Finance
Party is entitled shall co-operate promptly in completing any procedural
formalities necessary for that Obligor to obtain authorisation to make
that payment without a Tax Deduction on
time.
|
15.3
|
Tax
indemnity
|
|
(a)
|
The
Company shall (within three Business Days of demand by the Agent) pay to a
Protected Party an amount equal to the loss, liability or cost which that
Protected Party determines will be or has been (directly or indirectly)
suffered for or on account of Tax by that Protected Party in respect of a
Finance Document or the transactions occurring under such Finance
Document.
|
|
(b)
|
Paragraph
(a) above shall not apply:
|
|
(i)
|
with
respect to any Tax assessed on a Finance
Party:
|
|
(A)
|
under
the law of the jurisdiction in which that Finance Party is incorporated
or, if different, the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax purposes;
or
|
|
(B)
|
under
the law of the jurisdiction in which that Finance Party's Facility Office
is located in respect of amounts received or receivable in that
jurisdiction,
|
if that
Tax is imposed on or calculated by reference to the net income received or
receivable (but not any sum deemed to be received or receivable) by that Finance
Party; or
|
(ii)
|
to
the extent a loss, liability or
cost:
|
|
(A)
|
is
compensated for by an increased payment under Clause 15.2 (Tax
gross-up); or
|
|
(B)
|
would
have been compensated for by an increased payment under Clause 15.2 (Tax
gross-up) but was not so compensated solely because of the
exclusion in paragraph (d) of Clause 15.2 (Tax
gross-up) applied.
|
|
(c)
|
A
Protected Party making, or intending to make a claim under paragraph (a)
above shall promptly notify the Agent of the event which will give, or has
given, rise to the claim, following which the Agent shall notify the
Company.
|
48
CONFORMED
COPY
|
(d)
|
A
Protected Party shall, on receiving a payment from an Obligor under this
Clause 15.3, notify the Agent.
|
15.4
|
Tax
Credit
|
If an
Obligor makes a Tax Payment and the relevant Finance Party (acting reasonably)
determines that:
|
(a)
|
a
Tax Credit is attributable either to an increased payment of which that
Tax Payment forms part, or to that Tax Payment;
and
|
|
(b)
|
that
Finance Party has obtained, utilised and fully retained that Tax Credit on
an affiliated group basis,
|
the
Finance Party shall pay an amount to the Obligor which that Finance Party
determines (acting reasonably) will leave it (after that payment) in the same
after-Tax position as it would have been in had the Tax Payment not been
required to be made by the Obligor.
15.5
|
Stamp
taxes
|
The
Company shall pay and, within three Business Days of written demand, indemnify
each Finance Party against any cost, loss or liability that Finance Party incurs
in relation to all stamp duty, registration, excise and other similar Taxes
payable in respect of any Finance Document or the transactions occurring under
any of them.
15.6
|
Value
added tax
|
|
(a)
|
All
amounts set out, or expressed to be payable under a Finance Document by
any Party to a Finance Party which (in whole or in part) constitute the
consideration for VAT purposes shall be deemed to be exclusive of any VAT
which is chargeable on such supply, and accordingly, subject to paragraph
(c) below, if VAT is chargeable on any supply made by any Finance Party to
any Party under a Finance Document, that Party shall pay to the Finance
Party (in addition to and at the same time as paying the consideration) an
amount equal to the amount of the VAT (and such Finance Party shall
promptly provide an appropriate VAT invoice to such
Party).
|
|
(b)
|
If
VAT is chargeable on any supply made by any Finance Party (the "Supplier")
to any other Finance Party (the "Recipient")
under a Finance Document, and any Party (the "Relevant
Party") is required by the terms of any Finance Document to pay an
amount equal to the consideration for such supply to the Supplier (rather
than being required to reimburse the Recipient in respect of that
consideration), such Party shall also pay to the Supplier (in addition to
and at the same time as paying such amount) an amount equal to the amount
of such VAT. The Recipient will promptly pay to the Relevant
Party an amount equal to any credit or repayment from the relevant tax
authority which it reasonably determines relates to the VAT chargeable on
that supply.
|
|
(c)
|
Where
a Finance Document requires any Party to reimburse a Finance Party for any
costs or expenses, that Party shall also at the same time pay and
indemnify the Finance Party against all VAT incurred by the Finance Party
in respect of the costs or expenses to the extent that the Finance Party
reasonably determines
|
49
CONFORMED
COPY
|
that
neither it nor any other member of any group of which it is a member for
VAT purposes is entitled to credit or repayment from the relevant tax
authority in respect of the VAT.
|
16.
|
16.1
|
Increased
costs
|
|
(a)
|
Subject
to Clause 16.3 (Exceptions)
the Company shall, within three Business Days of a written demand by the
Agent, pay for the account of a Finance Party the amount of any Increased
Costs incurred by that Finance Party or any of its Affiliates as a result
of (i) the introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation or (ii) compliance
with any law or regulation made, in force and enforceable or required to
be complied with or with which compliance is customary after the date of
this Agreement.
|
|
(b)
|
In
this Agreement "Increased
Costs" means:
|
|
(i)
|
a
reduction in the rate of return from the Facility or on a Finance Party's
(or its Affiliate's) overall
capital;
|
|
(ii)
|
an
additional or increased cost; or
|
|
(iii)
|
a
reduction of any amount due and payable under any Finance
Document,
|
|
|
which
is incurred or suffered by a Finance Party or any of its Affiliates to the
extent that it is attributable to that Finance Party having entered into
its Commitment or funding or performing its obligations under any Finance
Document.
|
16.2
|
Increased
cost claims
|
|
(a)
|
A
Finance Party intending to make a claim pursuant to Clause 16.1 (Increased
costs) shall notify the Agent of the event giving rise to the
claim, following which the Agent shall promptly notify the
Company.
|
|
(b)
|
Each
Finance Party shall, as soon as practicable after a demand by the Agent,
provide a certificate confirming the amount of its Increased
Costs.
|
16.3
|
Exceptions
|
|
(a)
|
Clause
16.1 (Increased
costs) does not apply to the extent any Increased Cost
is:
|
|
(i)
|
attributable
to a Tax Deduction required by law to be made by an
Obligor;
|
|
(ii)
|
compensated
for by Clause 15.3 (Tax
indemnity) (or would have been compensated for under Clause 15.3
(Tax
indemnity) but was not so compensated solely because any of the
exclusions in paragraph (b) of Clause 15.3 (Tax
indemnity) applied);
|
|
(iii)
|
compensated
for by the payment of the Mandatory Cost;
or
|
|
(iv)
|
attributable
to the wilful breach by the relevant Finance Party or its Affiliates of
any law or regulation.
|
50
CONFORMED
COPY
|
(b)
|
In
this Clause 16.3, a reference to a "Tax
Deduction" has the same meaning given to the term in Clause 15.1
(Definitions).
|
17.1
|
Currency
indemnity
|
|
(a)
|
If
any sum due from an Obligor under the Finance Documents (a "Sum"),
or any order, judgment or award given or made in relation to a Sum, has to
be converted from the currency (the "First
Currency") in which that Sum is payable into another currency (the
"Second
Currency") for the purpose
of:
|
|
(i)
|
making
or filing a claim or proof against that
Obligor;
|
|
(ii)
|
obtaining
or enforcing an order, judgment or award in relation to any litigation or
arbitration proceedings,
|
|
|
that
Obligor shall as an independent obligation, within three Business Days of
demand, indemnify each Finance Party to whom that Sum is due against any
cost, loss or liability arising out of or as a result of the conversion
including any discrepancy between (A) the rate of exchange used to convert
that Sum from the First Currency into the Second Currency and (B) the rate
or rates of exchange available to that person at the time of its receipt
of that Sum.
|
|
(b)
|
Each
Obligor waives any right it may have in any jurisdiction to pay any amount
under the Finance Documents in a currency or currency unit other than that
in which it is expressed to be
payable.
|
17.2
|
Other
indemnities
|
The
Company shall (or shall procure that an Obligor will), within three Business
Days of written demand, indemnify each Finance Party against any cost, loss or
liability incurred by that Finance Party as a result of:
|
(a)
|
the
occurrence of any Event of Default;
|
|
(b)
|
a
failure by an Obligor to pay any amount due under a Finance Document on
its due date, including without limitation, any cost, loss or liability
arising as a result of Clause 31 (Sharing
among the Finance Parties);
|
|
(c)
|
funding,
or making arrangements to fund, its participation in a Utilisation
requested by a Borrower in a Utilisation Request but not made by reason of
the operation of any one or more of the provisions of this Agreement
(other than by reason of default or negligence by that Finance Party
alone); or
|
|
(d)
|
a
Utilisation (or part of a Utilisation) not being prepaid in accordance
with a notice of prepayment given by a Borrower or the
Company.
|
51
CONFORMED
COPY
17.3
|
Indemnity
to the Agent
|
The
Company shall, within three Business Days of a written demand, indemnify the
Agent against any cost, loss or liability incurred by the Agent (acting
reasonably) as a result of:
|
(a)
|
investigating
any event which it reasonably believes is a Default;
or
|
|
(b)
|
entering
into or performing any foreign exchange contract for the purposes of
paragraph (b) of Clause 8.3 (Change
of Currency); or
|
|
(c)
|
acting
or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately
authorised.
|
17.4
|
Indemnity
to the Security Trustee
|
|
(a)
|
Each
Obligor shall, within three Business Days of a written demand, indemnify
the Security Trustee and every Receiver and Delegate against any cost,
loss or liability incurred by any of them as a result
of:
|
|
(i)
|
the
taking, holding, protection or enforcement of the Transaction
Security;
|
|
(ii)
|
the
exercise of any of the rights, powers, discretions and remedies vested in
the Security Trustee and each Receiver and Delegate by the Finance
Documents or by law; and
|
|
(iii)
|
any
default by any Obligor in the performance of any of the obligations
expressed to be assumed by it in the Finance
Documents.
|
|
(b)
|
The
Security Trustee may, in priority to any payment to the Secured Parties,
indemnify itself out of the Charged Property in respect of, and pay and
retain, all sums necessary to give effect to the indemnity in this Clause
17.4 and shall have a lien on the Transaction Security and the proceeds of
the enforcement of the Transaction Security for all moneys payable to
it.
|
18.1
|
Mitigation
|
|
(a)
|
Each
Finance Party shall, in consultation with the Company, take all reasonable
steps to mitigate any circumstances which arise and which would result in
any facility ceasing to be available or any amount becoming payable under
or pursuant to, or cancelled pursuant to, any of Clause 10.1 (Illegality),
Clause 15 (Tax
gross-up and indemnities), Clause 16 (Increased
costs) or paragraph 3 of Schedule 4 (Mandatory
Cost Formulae) including (but not limited to) transferring its
rights and obligations under the Finance Documents to another Affiliate or
Facility Office.
|
|
(b)
|
Paragraph
(a) above does not in any way limit the obligations of any Obligor under
the Finance Documents.
|
52
CONFORMED
COPY
18.2
|
Limitation
of liability
|
|
(a)
|
The
Company shall, within three Business Days of written demand, indemnify
each Finance Party for all costs and expenses reasonably incurred by that
Finance Party as a result of steps taken by it under Clause 18.1 (Mitigation).
|
|
(b)
|
A
Finance Party is not obliged to take any steps under Clause 18.1 (Mitigation)
if, in the opinion of that Finance Party (acting reasonably), to do so
might be prejudicial to it.
|
19.1
|
Transaction
expenses
|
The
Company shall, within three Business Days of a written demand, pay the Agent,
the Arranger and the Security Trustee the amount of all costs and expenses
(including, but not limited to, legal fees) incurred by any of them (each acting
reasonably) in connection with the negotiation, preparation, printing,
execution, syndication and perfection of:
|
(a)
|
this
Agreement and any other documents referred to in this Agreement and the
Transaction Security; and
|
|
(b)
|
any
other Finance Documents executed after the date of this
Agreement.
|
19.2
|
Amendment
costs
|
If (a) an
Obligor requests an amendment, waiver or consent or (b) an amendment is required
pursuant to Clause 32.9 (Change
of currency), the Company shall, within three Business Days of written
demand, reimburse each of the Agent and the Security Trustee for the amount of
all costs and expenses (including, but not limited to, legal fees) reasonably
incurred by the Agent and the Security Trustee (and in the case of the Security
Trustee, by any Receiver or Delegate) in responding to, evaluating, negotiating
or complying with that request or requirement.
19.3
|
Security
Trustee's ongoing costs
|
|
(a)
|
In
the event of (i) the occurrence of a Default or (ii) the Security Trustee
considering it necessary or expedient or (iii) the Security Trustees being
requested by an Obligor or the Majority Lenders to undertake duties which
the Security Trustee and the Company agree to be of an exceptional nature
and/or outside the scope of the normal duties of the Security Trustee
under the Finance Documents, the Company shall pay to the Security Trustee
any additional remuneration that may be agreed between
them.
|
|
(b)
|
If
the Security Trustee and the Company fail to agree upon the nature of the
duties or upon any additional remuneration, that dispute shall be
determined by a investment bank (acting as an expert and not as an
arbitrator) selected by the Security Trustee and approved by the Company
or, failing approval, nominated (on the application of the Security
Trustee) by the President for the time being of the Law Society of England
and Wales (the costs of the nomination and of the investment bank being
payable by the Company) and the determination of any
investment bank shall be final and binding upon the parties to
this Agreement.
|
53
CONFORMED
COPY
19.4
|
Enforcement
and preservation costs
|
The
Company shall, within three Business Days of written demand, pay to each Finance
Party the amount of all costs and expenses (including but not limited to legal
fees) incurred by it in connection with the enforcement of, or the preservation
of any rights under, any Finance Document and the Transaction Security and any
proceedings instituted by or against the Security Trustee as a consequence of
taking or holding the Transaction Security or enforcing these
rights.
19.5
|
For
the purposes of Clauses 16.1, 17.2 to 17.4, 18.2, 19.1, 19.2 and 19.4 any
written demand shall be accompanied by reasonable evidence of the relevant
amount claimed (which in the case of any cost or expense shall be the
relevant invoice together with an explanation as to why the cost or
expense was incurred).
|
54
CONFORMED
COPY
SECTION
7
GUARANTEE
20.1
|
Guarantee
and indemnity
|
Each
Guarantor irrevocably and unconditionally jointly and severally:
|
(a)
|
guarantees
to each Finance Party punctual performance by each Borrower of all that
Borrower's obligations under the Finance
Documents;
|
|
(b)
|
undertakes
with each Finance Party that whenever a Borrower does not pay any amount
when due under or in connection with any Finance Document, that Guarantor
shall immediately on demand pay that amount as if it was the principal
obligor; and
|
|
(c)
|
indemnifies
each Finance Party immediately on demand against any cost, loss or
liability suffered by that Finance Party if any obligation guaranteed by
it is or becomes unenforceable, invalid or illegal. The amount
of the cost, loss or liability shall be equal to the amount which that
Finance Party would otherwise have been entitled to
recover.
|
20.2
|
Continuing
guarantee
|
This
guarantee is a continuing guarantee and will extend to the ultimate balance of
sums payable by any Obligor under the Finance Documents, regardless of any
intermediate payment or discharge in whole or in part.
20.3
|
Reinstatement
|
If any
payment by an Obligor or any discharge given by a Finance Party (whether in
respect of the obligations of any Obligor or any security for those obligations
or otherwise) is avoided or reduced as a result of insolvency or any similar
event:
|
(a)
|
the
liability of each Obligor shall continue as if the payment, discharge,
avoidance or reduction had not occurred;
and
|
|
(b)
|
each
Finance Party shall be entitled to recover the value or amount of that
security or payment from each Obligor, as if the payment, discharge,
avoidance or reduction had not
occurred.
|
20.4
|
Waiver
of defences
|
The
obligations of each Guarantor under this Clause 20 will not be affected by an
act, omission, matter or thing which, but for this Clause, would reduce, release
or prejudice any of its obligations under this Clause 20 (without limitation and
whether or not known to it or any Finance Party) including:
|
(a)
|
any
time, waiver or consent granted to, or composition with, any Obligor or
other person;
|
|
(b)
|
the
release of any other Obligor or any other person under the terms of any
composition or arrangement with any creditor of any member of the
Group;
|
55
CONFORMED
COPY
|
(c)
|
the
taking, variation, compromise, exchange, renewal or release of, or refusal
or neglect to perfect, take up or enforce, any rights against, or security
over assets of, any Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any
security;
|
|
(d)
|
any
incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of an Obligor or any other
person;
|
|
(e)
|
any
amendment, novation, supplement, extension (whether of maturity or
otherwise) or restatement (in each case however fundamental and of
whatsoever nature, and whether or not more onerous) or replacement of a
Finance Document or any other document or
security;
|
|
(f)
|
any
unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document or any other document or security;
or
|
|
(g)
|
any
insolvency or similar proceedings.
|
20.5
|
Guarantor
Intent
|
Without
prejudice to the generality of Clause 20.4 (Waiver
of Defences), each Guarantor expressly confirms that it intends that this
guarantee shall extend from time to time to any (however fundamental and of
whatsoever nature and whether or not more onerous) variation, increase,
extension or addition of or to any of the Finance Documents and/or any facility
or amount made available under any of the Finance Documents for the purposes of
or in connection with any of the following: acquisitions of any nature;
increasing working capital; enabling investor distributors to be made; carrying
out restructurings; refinancing existing facilities; refinancing any other
indebtedness; making facilities available to new borrowers; any other variation
or extension of the purposes for which any such facility or amount might be made
available from time to time; and any fees, costs and/or expenses associated with
any of the foregoing.
20.6
|
Immediate
recourse
|
Each
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 that
Guarantor under this Clause 20. This waiver applies irrespective of
any law or any provision of a Finance Document to the contrary.
20.7
|
Appropriations
|
Until all
amounts which may become payable by the Obligors under or in connection with the
Finance Documents have been irrevocably paid in full, each Finance Party (or any
trustee or agent on its behalf) may:
|
(a)
|
refrain
from applying or enforcing any other moneys, security or rights held or
received by that 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 no
Guarantor shall be entitled to the benefit of the same;
and
|
56
CONFORMED
COPY
|
(b)
|
hold
in an interest-bearing suspense account any moneys received from any
Guarantor or on account of any Guarantor's liability under this Clause
20.
|
20.8
|
Deferral
of Guarantors' rights
|
Until all
amounts which may be or become payable by the Obligors under or in connection
with the Finance Documents have been irrevocably paid in full and unless the
Agent otherwise directs, no Guarantor will exercise any rights which it may have
by reason of performance by it of its obligations under the Finance
Documents:
|
(a)
|
to
be indemnified by an Obligor;
|
|
(b)
|
to
claim any contribution from any other guarantor of any Obligor's
obligations under the Finance Documents;
and/or
|
|
(c)
|
to
take the benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Finance Parties under the Finance
Documents or of any other guarantee or security taken pursuant to, or in
connection with, the Finance Documents by any Finance
Party.
|
If a
Guarantor receives any benefit, payment or distribution in relation to such
rights it shall hold that benefit, payment or distribution to the extent
necessary to enable all amounts which may be or become payable to the Finance
Parties by the Obligors under or in connection with the Finance Documents to be
repaid in full on trust for the Finance Parties and shall promptly pay or
transfer the same to the Agent or as the Agent may direct for application in
accordance with Clause 32 (Payment
mechanics) of this Agreement.
20.9
|
Release
of Guarantors' right of
contribution
|
If any
Guarantor (a "Retiring
Guarantor") ceases to be a Guarantor in accordance with the terms of the
Finance Documents for the purpose of any sale or other disposal of that Retiring
Guarantor then on the date such Retiring Guarantor ceases to be a
Guarantor:
|
(a)
|
that
Retiring Guarantor is released by each other Guarantor from any liability
(whether past, present or future and whether actual or contingent) to make
a contribution to any other Guarantor arising by reason of the performance
by any other Guarantor of its obligations under the Finance Documents;
and
|
|
(b)
|
each
other Guarantor waives any rights it may have by reason of the performance
of its obligations under the Finance Documents to take the benefit (in
whole or in part and whether by way of subrogation or otherwise) of any
rights of the Finance Parties under any Finance Document or of any other
security taken pursuant to, or in connection with, any Finance Document
where such rights or security are granted by or in relation to the assets
of the Retiring Guarantor.
|
20.10
|
Additional
security
|
This
guarantee is in addition to and is not in any way prejudiced by any other
guarantee or security now or subsequently held by any Finance
Party.
57
CONFORMED
COPY
20.11
|
Limitations
|
|
(a)
|
Any
term or provision of this Clause 20.11 or any other term in this Agreement
or any Finance Document notwithstanding, the maximum aggregate amount of
the obligations for which any U.S. Guarantor shall be liable under this
Agreement shall in no event exceed an amount equal to the largest amount
that would not render such U.S. Guarantor's obligations under this
Agreement, subject to avoidance under applicable United States federal or
state fraudulent conveyance laws.
|
|
(b)
|
Flexsys
Indústria e Comércio Ltda expressly waives any right or benefit it may
have under articles 827, 835, 837 and 838 of the Brazilian Civil Code in
connection with the guarantee and indemnity granted under this
Clause 20.
|
|
(c)
|
If
the guarantee and indemnity granted in this Clause 20 (Guarantee
and Indemnity) (the "Guarantee")
is given by a Guarantor incorporated in Germany in the legal form of (i) a
limited liability company (Gesellschaft
mit beschränkter Haftung (GmbH)) (a "German
GmbH Guarantor") or (ii) a limited partnership (Kommanditgesellschaft)
with a limited liability company as sole general partner (a "German
GmbH & Co. KG Guarantor" and together with the German GmbH
Guarantor referred to as the "German
Guarantor"; a reference made in this paragraph (c) to the "Relevant
Limitation Company" shall, in case of a German GmbH Guarantor,
refer to the relevant German Guarantor and, in case of a German GmbH &
Co. KG Guarantor, refer to the German Guarantor's general partner), the
following shall apply:
|
|
(i)
|
The
Finance Parties shall be entitled to enforce the Guarantee against the
relevant German Guarantor without limitation in respect
of:
|
|
(A)
|
all
and any amounts which are owed under the Finance Documents by such German
Guarantor itself or by any of its Subsidiaries;
and
|
|
(B)
|
all
and any amounts which correspond to funds that have been borrowed under
this Agreement or financial accommodation provided in connection with a
Letter of Credit, in each case to the extent on-lent, or issued for the
benefit of, the relevant German Guarantor or any of its Subsidiaries, or
for the benefit of any of their creditors and in each case not repaid and
outstanding from time to time.
|
(in
aggregate, the "Unlimited
Enforcement Amount").
|
(ii)
|
If
the German Guarantor's liability under the Guarantee exceeds the Unlimited
Enforcement Amount applicable to such German Guarantor, the Finance
Parties shall not be entitled to enforce the Guarantee against such German
Guarantor in excess of the Unlimited Enforcement Amount if and to the
extent that:
|
|
(A)
|
the
Guarantee secures the obligations of an Obligor which is (a) a shareholder
of the German Guarantor or (b) an affiliated
company
|
58
CONFORMED
COPY
|
(verbundenes
Unternehmen) within the meaning of section 15 of the German Stock
Corporation Act (Aktiengesetz)
of a shareholder of the German Guarantor (other than the German Guarantor
and its Subsidiaries); and
|
|
(B)
|
the
enforcement would have the effect of (a) reducing the Relevant Limitation
Company's net assets (Reinvermögen)
(the "Net
Assets") to an amount of less than the Relevant Limitation
Company's stated share capital (Stammkapital)
or, if the Net Assets are already an amount of less than the Relevant
Limitation Company's stated share capital, of causing such amount to be
further reduced and (b) would thereby affect the assets required for the
obligatory preservation of the Relevant Limitation Company's stated share
capital (Stammkapital)
according to section 30, 31 German Limited Liability Companies Act (Gesetz
betreffend die Gesellschaften mit beschränkter Haftung) provided
that the amount of the stated share capital to be taken into consideration
shall be the amount registered in the commercial register at the date
hereof, and any increase of the stated share capital registered after the
date of this Agreement provided that such increase shall only be taken
into account (i) if such increase is not subject to any consent under the
terms of this Agreement; or (ii) if such increase is subject to any
consent under the terms of this Agreement, such consent has been granted
in writing prior to effecting the increase of the stated share
capital.
|
|
(iii)
|
The
Net Assets shall be calculated as an amount equal to the sum of the values
of the Relevant Limitation Company 's assets (consisting of all assets
which correspond to the items set forth in section 266 sub-section (2) A,
B and C of the German Commercial Code (Handelsgesetzbuch)
less the aggregate amount of the Relevant Limitation Company's liabilities
(consisting of all liabilities and liability reserves which correspond to
the items set forth in section 266 sub-section (3) B, C and D of the
German Commercial Code), save that:
|
|
(A)
|
any
asset that is shown in the balance sheet with a book value (Buchwert)
that is significantly lower than the market value of such asset and that
is not necessary for the Relevant Limitation Company's business (nicht
betriebsnotwendig) shall be taken into account with its market
value;
|
|
(B)
|
obligations
under loans provided to the Relevant Limitation Company by any member of
the Group or any other affiliated company shall not be taken into account
as liabilities; and
|
|
(C)
|
obligations
under loans or other contractual liabilities incurred by the Relevant
Limitation Company in violation of the provisions of the Finance Documents
shall not be taken into account as
liabilities.
|
59
CONFORMED
COPY
|
The
Net Assets shall be determined in accordance with the generally accepted
accounting principles applicable from time to time in Germany (Grundsätze
ordnungsmäßiger Buch-führung) and be based on the same principles
that were applied by the German Guarantor in the preparation of its most
recent annual balance sheet (Jahresbilanz).
|
|
(iv)
|
The
limitations set out in paragraph (ii) above shall only apply if the German
Guarantor delivers to the Agent, without undue delay but not later than
within 3 months after receipt of a request for payment under the Guarantee
by the Agent, an up to date balance sheet prepared by a firm of auditors
of international standard and reputation which shows the value of the
Relevant Limitation Company's Net Assets (the "Balance
Sheet"). The Balance Sheet shall be prepared in accordance with the
principles set out in paragraph (iii) above and shall contain reasonable
details relating to items to be adjusted pursuant to paragraph (iii)
above.
|
|
If
the German Guarantor fails to deliver a Balance Sheet within the
aforementioned time period, the Finance Parties shall be entitled to
enforce the Guarantee irrespective of the limitations set out in paragraph
(ii) above.
|
|
(v)
|
If
the Finance Parties disagree with the Balance Sheet, they shall be
entitled to enforce the Guarantee up to the amount which, according to the
Balance Sheet, can be enforced in compliance with the limitations set out
in paragraph (ii) above. In relation to any additional amounts for which
the German Guarantor is liable under the Guarantee, the Finance Parties
shall be entitled to further pursue their claims (if any) and the relevant
German Guarantor shall be entitled to prove that this amount is necessary
for maintaining the Relevant Limitation Company's stated share capital
(calculated as of the date the demand under the Guarantee was
made).
|
|
(vi)
|
No
reduction of the amount enforceable under this paragraph (c) of Clause
20.11 (Limitations)
will prejudice the right of the Finance Parties to continue enforcing the
Guarantee (subject always to the operation of the limitations set out
above at the time of such enforcement) until full satisfaction to the
claims guaranteed.
|
|
(d)
|
Notwithstanding
any other provision of this Clause 20 (Guarantee
and Indemnity) the guarantee, indemnity and other obligations of
any Obligor expressed to be assumed in this Clause 20 (Guarantee
and Indemnity) shall be deemed not to be assumed by such Obligor to
the extent that the same would constitute unlawful financial assistance
within the meaning of any applicable financial assistance rules under any
Relevant Jurisdiction (the "Prohibition")
and the provisions of this Agreement and the other Finance Documents shall
be construed accordingly. For the avoidance of doubt it is expressly
acknowledged that the relevant Obligor will continue to guarantee all such
obligations which, if included, do not constitute a violation of the
Prohibition.
|
60
CONFORMED
COPY
|
(e)
|
Flexsys
Indústria e Comércio Ltda. acknowledges and agrees that the lawful
currency of the United States of America or any Optional Currency under
this Agreement shall be the currency of account in any and all events, and
guarantees that the obligations will be paid in the lawful currency of the
United States of America or any Optional Currency, as applicable, in
accordance with the terms and provisions of this Agreement and the Finance
Documents, regardless of any law, regulation or decree now or hereafter in
effect in Brazil that might in any manner affect the Secured Obligations,
the Security Documents or the rights of the Secured Parties with respect
thereto as against Flexsys Indústria e Comércio Ltda., or cause or permit
to be invoked any alteration in the time, amount or manner of payment by
Flexsys Indústria e Comércio Ltda. of any of or all the Secured
Obligations. Further to and without limiting the currency
indemnities set forth in Section 17.1 of this Agreement, and any other
indemnity, reimbursement or liability set forth under the Finance
Documents, Flexsys Indústria e Comércio Ltda. shall (i) at all times
comply with, and perform such acts as may be required by Brazilian law,
including all laws relating to (A) dealings with public officials and (B)
foreign exchange, Brazilian Central Bank and Federal Revenue Office
regulations (as from time to time amended), in order to preserve and
maintain the validity, perfection and enforceability of the Security
Documents to which it is a party as well as the Secured
Obligations.
|
|
(f)
|
In
relation to any member of the Group which becomes a Guarantor after the
date of this Agreement, this Guarantee is also subject to any limitations
set out in the Accession Letter application to that
Guarantor.
|
61
CONFORMED
COPY
SECTION
8
REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT
21.
|
Each
Obligor in respect of itself only, and the Company in respect of itself and each
other member of the Group (and, in the case of the Company, references in this
Clause 21 to "it" or “its shall be to the Company on behalf of itself and in
respect of each Obligor) makes the representations and warranties set out in
this Clause 21 to each Finance Party on the date of this Agreement.
21.1
|
Status
|
|
(a)
|
In
the case of each Obligor other than Flexsys America L.P., it is a
corporation, duly incorporated and validly existing under the law of its
jurisdiction of incorporation.
|
|
(b)
|
In
the case of Flexsys America L.P., it is a limited partnership, duly formed
and validly existing under the laws of the State of Delaware, United
States of America.
|
|
(c)
|
In
the case of Flexsys Indústria e Comércio Ltda, it is a limited liability
company (sociedade
limitada) duly incorporated and validly existing under the laws of
Brazil.
|
|
(d)
|
It
has the power to own its assets and carry on its business as it is being
conducted.
|
21.2
|
Binding
obligations
|
The
obligations expressed to be assumed by it in each Finance Document are, subject
to the Reservations and to any applicable Perfection Requirements, legal, valid,
binding and enforceable obligations.
21.3
|
Non-conflict
with other obligations
|
The entry
into and performance by it of, and the transactions contemplated by, the Finance
Documents do not and will not conflict with:
|
(a)
|
any
law or regulation applicable to it;
|
|
(b)
|
its
constitutional documents; or
|
|
(c)
|
any
agreement or instrument binding upon it or any of its assets other than
under the Existing Facility up to and including the first Utilisation
Date.
|
21.4
|
Power
and authority
|
It has
the power to enter into, perform and deliver, and has taken all necessary action
to authorise its entry into, performance and delivery of, the Finance Documents
to which it is a party and the transactions contemplated by those Finance
Documents.
62
CONFORMED
COPY
21.5
|
Validity
and admissibility in
evidence
|
All
Authorisations required:
|
(a)
|
to
enable it lawfully to enter into, exercise its rights and comply with its
obligations in the Finance Documents to which it is a party;
and
|
|
(b)
|
to
make the Finance Documents to which it is a party admissible in evidence
in each Relevant Jurisdiction subject to any
Reservation,
|
have been
obtained or effected and are in full force and effect.
21.6
|
Governing
law and enforcement
|
|
(a)
|
Subject
to any applicable Reservations, the choice of governing law of each of the
Finance Documents will be recognised and enforced in each Relevant
Jurisdiction, other than as specifically referred to in any legal opinion
delivered pursuant to Clause 4 (Conditions
of Utilisation) or Clause 27 (Changes
to the Obligors).
|
|
(b)
|
Subject
to any applicable Reservations, any judgment obtained in the jurisdiction
whose laws are expressed to govern a Finance Document will be recognised
and enforced in each Relevant Jurisdiction applicable to the governing law
or jurisdiction of incorporation of relevant parties to or assets
specifically secured by that Finance
Document.
|
21.7
|
No
filing taxes
|
Under the
law of each Relevant Jurisdiction it is not necessary that the Finance Documents
be filed, recorded or enrolled with any court or other authority in that
jurisdiction or that any registration, stamp or similar tax be paid on or in
relation to the Finance Documents or the transactions contemplated by the
Finance Documents, other than in connection with Perfection Requirements or as
specifically referred to in any legal opinion delivered pursuant to
Clause 4 (Conditions
of Utilisation) or Clause 27 (Changes
to the Obligors).
21.8
|
No
default
|
|
(a)
|
No
Event of Default is continuing or might be reasonably likely to result
from the making of any Utilisation.
|
|
(b)
|
No
other event or circumstance is outstanding which constitutes a default
under any other agreement or instrument which is binding on it or any of
its Subsidiaries or to which its (or its Subsidiaries') assets are subject
which might be reasonably likely to have a Material Adverse
Effect.
|
21.9
|
No
misleading information
|
|
(a)
|
Any
written factual information provided by any member of the Group for the
purposes of the Information Memorandum was true and accurate in all
material respects as at the date it was provided or as at the date (if
any) at which it is stated.
|
63
CONFORMED
COPY
|
(b)
|
The
financial projections contained in the Information Memorandum have been
prepared on the basis of recent historical information and on the basis of
reasonable assumptions.
|
|
(c)
|
Nothing
has occurred or been omitted from the Information Memorandum and no
information has been given or withheld that results in the information
contained in the Information Memorandum being untrue or misleading in any
material respect and nothing has been omitted from the Information
Memorandum which, if disclosed, might adversely affect the decision of a
person considering whether to enter into this
Agreement.
|
|
(d)
|
Since
the date of the Information Memorandum, no event has occurred which has
had or might reasonably be likely to have a Material Adverse
Effect.
|
|
(e)
|
All
material information (other than the Information Memorandum) supplied by
any member of the Group under or in connection with any Finance Document
is true, complete and accurate in all material respects as at the date it
was given and is not misleading in any material respect and all
information which, if disclosed, might materially adversely affect the
decision of a person considering whether to enter into this Agreement, has
been disclosed.
|
21.10
|
Financial
statements
|
|
(a)
|
The
Original Financial Statements were prepared in accordance with GAAP,
consistently applied unless expressly disclosed to the Agent in writing to
the contrary before the date of this
Agreement.
|
|
(b)
|
Its
Original Financial Statements fairly represent its financial condition and
operations (or the financial condition and operations of the Group, in the
case of the Company) during the relevant financial year unless expressly
disclosed to the Agent in writing to the contrary before the date of this
Agreement.
|
|
(c)
|
There
has been no material adverse change in its financial condition (or the
combined financial condition of the Group, in the case of the Company)
since the date of the Original Financial
Statements.
|
21.11
|
Pari
passu ranking
Its payment obligations under
the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to
companies generally.
|
21.12
|
No
proceedings pending or threatened
Save as disclosed in the
Information Memorandum, no litigation, arbitration or administrative
proceedings (including, for the avoidance of doubt, insolvency or similar
proceedings) of or before any court, arbitral body or agency which, if
adversely determined, might reasonably be likely to have a Material
Adverse Effect have (to the best of its knowledge and belief) been started
or threatened against it or any of its Subsidiaries, other than as
specifically referred to in any legal opinion delivered pursuant to
Clause 4 (Conditions
of Utilisation) or Clause 27 (Changes
to the Obligors).
|
64
CONFORMED
COPY
21.13
|
Environmental
compliance
Save as disclosed in the
Information Memorandum, each member of the Group has performed and
observed in all material respects all Environmental Law, Environmental
Permits and all other material covenants, conditions, restrictions or
agreements directly or indirectly concerned with any contamination,
pollution or waste or the release or discharge of any toxic or hazardous
substance in connection with any real property which is or was at any time
owned, leased or occupied by any member of the Group or on which any
member of the Group has conducted any activity where failure to do so
might reasonably be likely to have a Material Adverse Effect.
|
21.14
|
Environmental
Claims
Save as disclosed in the
Information Memorandum, no Environmental Claim has been commenced or (to
the best of its knowledge and belief) is threatened against any member of
the Group where that claim might be reasonably likely, if determined
against that member of the Group to have a Material Adverse
Effect.
|
21.15
|
Taxation
|
|
(a)
|
It
has duly and punctually paid and discharged all Taxes imposed upon it or
its assets within the time period allowed without incurring penalties
(save to the extent that (i) payment is being contested in good faith,
(ii) it has maintained adequate reserves for those Taxes and (iii) payment
can be lawfully withheld).
|
|
(b)
|
It
is not materially overdue in the filing of any Tax
returns.
|
|
(c)
|
No
claims are being or are reasonably likely to be asserted against it with
respect to Taxes.
|
|
(d)
|
It
has properly filed or caused to be filed (and, where applicable, has been
included in) all material U.S. Tax returns, reports and statements
(whether federal, state, local or otherwise) applicable to it in all
jurisdictions in which such returns, reports and statements are required
to be filed. All such U.S. Tax returns are correct and complete
in all material respects.
|
|
(e)
|
It
has paid all material U.S. Taxes due whether or not shown on any tax
return, together with applicable interest and penalties, except to the
extent such U.S. Taxes are contested in good faith by proper proceedings
which stay the imposition of any penalty, fine or lien resulting from the
non-payment of such U.S. Taxes and with respect to which adequate reserves
have been set aside for the payment of such U.S.
Taxes.
|
21.16
|
Deduction
of Tax
It is not required to make any
deduction for or on account of Tax from any payment it may make under any
Finance Document.
|
21.17
|
No
Immunity
In any proceedings taken in a
Relevant Jurisdiction in relation to the Finance Documents, it will not be
entitled to claim for itself or any of its assets immunity from suit,
execution, attachment or other legal
process.
|
65
CONFORMED
COPY
21.18
|
Private
and commercial acts
Its execution of the Finance
Documents constitutes, and its exercise of its rights and performance of
its obligations hereunder will constitute, private and commercial acts
done and performed for private and commercial
purposes.
|
21.19
|
Security
No Security exists over all or
any of the present or future assets of any member of the Group other than
any Security permitted or contemplated under Clause 24.3 (Negative
Pledge).
|
21.20
|
Ranking
Subject to the Reservations
and applicable Perfection Requirements, the Transaction Security has or
will have first ranking priority and it is not subject to any prior
ranking or pari
passu ranking Security unless purported otherwise in any Security
Documents.
|
21.21
|
Transaction
Security
Subject to the Reservations
and applicable Perfection Requirements, each Security Document to which it
is a party validly creates the Security which is expressed to be created
by that Security Document and evidences the Security it is expressed to
evidence.
|
21.22
|
Good
Title to Assets
It has good, valid and
marketable title to, or valid leases or licences of, and all appropriate
Authorisations to use, the material assets necessary to carry on its
business as presently conducted.
|
21.23
|
No
disposal of interests
It has not sold or granted (or
agreed to sell or grant) any right or pre-emption over, or any lease or
tenancy of or otherwise disposed of any of its interest in any of the
Charged Property.
|
21.24
|
Legal
and Beneficial Owner
It is the absolute legal owner
and beneficial owner or the sole beneficial owner of the assets subject to
the Transaction Security and, in the case of assets that are subject to
Security Documents governed by the laws of Germany, may freely dispose
thereof without restrictions.
|
21.25
|
Shares
|
|
(a)
|
The
Shares are fully paid and not subject to any option to purchase or similar
rights. The constitutional documents of companies whose shares
are subject to the Transaction Security do not and could not restrict or
inhibit any transfer of those shares on creation or on enforcement of the
Transaction Security.
|
|
(b)
|
The Shares in Flexsys S.p.A are free
and clear of any encumbrance, security interest, option right (diritto
di opzione), pre-emption right (diritto
di prelazione) or any other third-party lien or right, except as
created by the Italian Share Pledge and the Company represents that it has
not sold or disposed of or granted any option or pre-emption right in
respect of any of its right, title and interest
in the Charged Portfolio (other than as permitted under the Secured
Contracts).
|
66
CONFORMED
COPY
|
(c)
|
The
Shares in Flexsys Indústria e Comércio Ltda. have been duly authorized and
validly issued in compliance with applicable laws and are fully paid in.
There are no outstanding warrants, options, subscriptions, reserved quotas
or other contractual arrangements for the purchase of the Shares, and
there are no outstanding arrangements, preemptive rights, redemption
rights or any other rights or claims of any character relating to the
issuance, purchase, repurchase, redemption, transfer, voting or preemptive
rights with respect to the Shares (which are duly paid in) that restrict
the transfer of, require the issuance of, or otherwise relate to any class
of the capital stock of Flexsys Indústria e Comércio Ltda., in either case
that would affect the pledge and usufruct granted by it under the
Brazilian Quota Pledge Agreement.
|
|
(d)
|
The
Charged Portfolio is not subject to foreclosure (pignoramento)
or seizure (sequestro)
and there does not exist any restriction on the ability to transfer or
realise all or any part of the Charged
Portfolio.
|
21.26
|
No
listed securities
None of the
Belgian Obligors has issued listed securities, or is a Subsidiary of a
Belgian company that has issued listed
securities.
|
21.27
|
Group
Structure
The
Group Structure Chart delivered to the Agent pursuant to Schedule 2 (Conditions
Precedent) is true, complete and
accurate.
|
21.28
|
Ownership
of the Obligors
Each
Obligor (other than Flexsys America L.P., Flexsys Rubber Chemicals Limited
and the Company itself) is a Subsidiary of the
Company.
|
21.29
|
Ownership
of the Company
On
and from the Akzo Nobel
Retirement:
|
|
(a)
|
Solutia
Inc. owns 50 per cent. of the issued ordinary share capital of the
Company and Solutia Europe N.V. owns 50 per cent. of the issued
preference share capital of the Company, with the balance of such issues
ordinary shares and issued preference shares being held by the Company
itself;
|
|
(b)
|
Flexsys
America Co and Solutia Inc. own all of the partnership interests of
Flexsys America L.P.; and
|
|
(c)
|
Solutia
UK Capital Limited owns all of the issued share capital of Flexsys Rubber
Chemicals Limited.
|
21.30
|
Centre
of main interests and
establishments
|
|
(a)
|
Each
Obligor listed in Schedule 11 (Centre
of Main Interests and Establishments) has its "centre of main
interests" (as that term is used in Article 3(1) of The Council of the
European Union Regulation No. 1346/2000 on Insolvency Proceedings (the
"Regulation")
as set out in Schedule 11 (Centre
of Main Interests and
Establishments).
|
67
CONFORMED
COPY
|
(b)
|
The
Original Obligors listed in Schedule 11 (Centre
of Main Interests and Establishments) have an "establishment" (as
defined in Article 2(h) of the Regulation) in the countries set out in
Schedule 11 (Centre
of Main Interests and
Establishments).
|
21.31
|
Akzo
Nobel Retirement
The
Akzo Nobel Retirement is legally valid and enforceable and is in
compliance with all laws and legal requirements in each Relevant
Jurisdiction.
|
21.32
|
ERISA
Plans
|
|
(a)
|
Each
Employee Plan is in compliance in form and operation with ERISA and the
Code and all other applicable laws and regulations save where any failure
to comply would not reasonably be expected to have a Material Adverse
Effect.
|
|
(b)
|
Each
Employee Plan which is intended to be qualified under Section 401(a) of
the Code has been determined by the IRS to be so qualified or is in the
process of being submitted to the IRS for approval or will be so submitted
during the applicable remedial amendment period, and, nothing has occurred
since the date of such determination that would adversely affect such
determination (or, in the case of an Employee Plan with no determination,
nothing has occurred that would materially adversely affect such
qualification).
|
|
(c)
|
There
exists no Unfunded Pension Liability with respect to Employee Plans in the
aggregate, taking into account only Employee Plans with positive Unfunded
Pension Liability, except as would not have a Material Adverse
Effect.
|
|
(d)
|
There
are no actions, suits or claims pending against or involving an Employee
Plan (other than routine claims for benefits) or, to the knowledge of the
Borrowers, any U.S. Obligor or any ERISA Affiliate, threatened, which
would reasonably be expected to be asserted successfully against any
Employee Plan and, if so asserted successfully, would reasonably be
expected either singly or in the aggregate to have a Material Adverse
Effect.
|
|
(e)
|
Each
U.S. Obligor and any ERISA Affiliate has made all material contributions
to or under each such Employee Plan required by law within the applicable
time limits prescribed thereby, the terms of such Employee Plan, or any
contract or agreement requiring contributions to an Employee Plan save
where any failure to comply would not reasonably be expected to have a
Material Adverse Effect.
|
|
(f)
|
Neither
any U.S. Obligor nor any ERISA Affiliate has ceased operations at a
facility so as to become subject to the provisions of Section 4068(a) of
ERISA, withdrawn as a substantial employer so as to become subject to the
provisions of Section 4063 of ERISA or ceased making contributions to any
Employee Plan subject to Section 4064(a) of ERISA to which it made
contributions.
|
|
(g)
|
Neither
any U.S. Obligor nor any ERISA Affiliate has incurred or reasonably
expects to incur any liability to PBGC save for any liability for premiums
due in the ordinary course or other liability which would not reasonably
be expected to have a Material Adverse
Effect.
|
68
CONFORMED
COPY
21.33
|
Pensions
|
|
(a)
|
No
UK Obligor is or has at any time been an employer (for the purpose of
sections 38 to 51 of the Pensions Act 2004) of an occupational pension
scheme which is not a money purchase scheme (both terms as defined in the
Pension Schemes Act 1993) save in respect of the Flexsys Rubber Chemicals
Retirement Benefits Scheme.
|
|
(b)
|
No
UK Obligor is or has at any time been "connected" with or an "associate"
of (as those terms are used in sections 39 and 43 of the Pensions Act
2004) such an employer.
|
|
(c)
|
No
member of the Group has any Multiemployer Plan and no member of the Group
will acquire or establish a Multiemployer
Plan.
|
21.34
|
Financial
assistance
|
|
(a)
|
The
provision of guarantees and security required under the Finance Documents
do not constitute unlawful financial assistance or breach any similar laws
in any jurisdiction.
|
|
(b)
|
The
proceeds of the Facilities have not been and will not be used to finance
or refinance the acquisition of or subscription for shares in any member
of the Group other than in connection with the Akzo Nobel
Retirement.
|
|
(c)
|
The
acquisition of shares in connection with the Akzo Nobel Retirement will be
performed in compliance with all relevant
laws.
|
21.35
|
Federal
Reserve Regulations
|
|
(a)
|
No
Obligor is engaged or will engage, principally or as one of its important
activities, in the business of purchasing or carrying Margin Stock or
extending credit for the purpose of purchasing or carrying Margin
Stock.
|
|
(b)
|
None
of the proceeds of the Loans or other extensions of credit under this
Agreement will be used, directly or indirectly, for the purpose of buying
or carrying any Margin Stock, for the purpose of reducing or retiring any
Financial Indebtedness that was originally incurred to buy or carry any
Margin Stock or for any other purpose which might cause all or any Loans
or other extensions of credit under this Agreement to be considered a
"purpose credit" within the meaning of Regulation U or Regulation
X.
|
21.36
|
Investment
Companies
No
Obligor, person controlling an Obligor or Subsidiary of an Obligor is or
is required to be registered as an "investment company" under the U.S.
Investment Company Act of 1940 (the "1940
Act").
|
21.37
|
Anti-Terrorism
Laws
|
|
(a)
|
To
the best of the Obligors' knowledge, no Obligor nor any Affiliate thereof:
(i) is, or is controlled by, a Restricted Party; (ii) has received funds
or other property from a Restricted Party; or (iii) is in breach of or is
the subject of any action or investigation under any Anti-Terrorism
Law.
|
69
CONFORMED
COPY
|
(b)
|
Each
Obligor and, to the best of the Obligors' knowledge, each Affiliate
thereof has taken reasonable measures to ensure compliance with the
Anti-Terrorism Laws.
|
21.38
|
Germany
money laundering
Each
German Borrower is the beneficiary (within the meaning of section 8 of the
German Money Laundering Act (Gesetz
über das Aufspüren von Gewinnen aus schweren Straftaten
Geldwäschegesetz) for each Loan made or to be made available to
it.
|
|
|
21.39
|
Flexsys
Chemicals (M) Sdn. Bhd.
|
|
(a)
|
Flexsys
Chemicals (M) Sdn. Bhd. is not connected with any director of any Borrower
of which it is not a Subsidiary.
|
|
(b)
|
No
director of any Borrower of which Flexsys Chemical (M) Sdn. Bhd. is not a
Subsidiary holds 15 per cent or more of the issued Shares in Flexsys
Chemicals (M) Sdn. Bhd..
|
|
(c)
|
Flexsys
Chemicals (M) Sdn. Bhd. is not accustomed to act (nor is it under an
obligation to act) in accordance with the directions, instructions or
wishes of a director of any Borrower of which it is not a
Subsidiary.
|
21.40
|
On-lending
|
|
(a)
|
Each
Obligor confirms that there is a corporate benefit in it fulfilling its
obligations under this Agreement.
|
|
(b)
|
Flexsys
Chemicals (M) Sdn. Bhd. ("Flexsys
Malaysia") has no domestic borrowings in Malaysia and as and when
the need arises and/or to comply with any condition which may be imposed
by the FIC, either a Borrower shall advance funds from the Facilities to
Flexsys Malaysia as inter-company loans or Flexsys Malaysia shall borrow
hereunder in either case to fund its business operations in
Malaysia.
|
21.41
|
Initial
Utilisation
The
initial Utilisation will be performed in accordance with the Funds Flow
Statement provided in satisfaction of the condition precedent contained in
Part 8(d) of Schedule 2 (Conditions
Precedent) of this
Agreement.
|
|
|
21.42
|
No
cluster bombs or anti-personnel mines
None
of the Borrowers and none of their Subsidiaries carries out activities
related to manufacturing, use, repair, exhibition for sale, sale, import,
export, stockpiling or transport of cluster bombs, submunitions or
anti-personnel mines.
|
|
|
21.43
|
Repetition
The
Repeating Representations are deemed to be made by the Company (on its own
behalf and on behalf of each other Obligor) (by reference to the facts and
circumstances then existing)
on:
|
|
(a)
|
the
date of each Utilisation Request and the first day of each Interest
Period; and
|
|
(b)
|
in
the case of an Additional Obligor, the day on which the company becomes
(or it is proposed that the company becomes) an Additional
Obligor.
|
70
CONFORMED
COPY
22.
|
The undertakings in this
Clause remain in force from the date of this Agreement for so long as any
amount is outstanding under the Finance Documents or any Commitment is in
force.
|
22.1
|
Financial
statements
The Company shall supply to
the Agent in sufficient copies for all the
Lenders:
|
|
(a)
|
as
soon as the same become available, but in any event within 120 days for
sub-paragraph (i) below and 180 days for sub-paragraph (ii) below after
the end of each of its financial
years:
|
|
(i)
|
the
audited Combined Financial Statements of the Group for that financial
year; and
|
|
(ii)
|
the
audited financial statements of each Obligor for that financial year;
and
|
|
(b)
|
as
soon as the same become available, but in any event within 45 days after
the end of each quarter of each of its financial
years:
|
|
(i)
|
the
Combined Financial Statements for that period;
and
|
|
(ii)
|
the
financial statements of each Obligor for that
period.
|
22.2
|
Compliance
Certificate
|
|
(a)
|
The
Company shall supply to the Agent, with each set of financial statements
delivered pursuant to paragraph (a)(i) or (b)(i) of Clause 22.1 (Financial
statements), a Compliance Certificate setting out (in reasonable
detail) computations as to compliance with Clause 23 (Financial
Covenants) as at the date as at which those financial statements
were drawn up.
|
|
(b)
|
Each
Compliance Certificate shall be signed by two directors of the
Company.
|
22.3
|
Requirements
as to financial statements
|
|
(a)
|
The
Company shall procure that each set of financial statements for each
Obligor and for the Group delivered pursuant to Clause 22.1 (Financial
statements) is prepared using GAAP (or local GAAP as applicable)
and that in each case accounting practices and financial reference periods
are materially consistent with those applied in the preparation of the
Original Financial Statements for that Obligor and the Group, as
applicable, unless, in relation to any set of financial statements, it
notifies the Agent that there has been a material change in GAAP (or Local
GAAP, as applicable), or the accounting practices or reference periods and
its auditors (or, if appropriate, the auditors of the member of the Group)
deliver to the Agent:
|
|
(i)
|
a
description of any material change necessary for those financial
statements to reflect the GAAP, accounting practices and reference periods
upon which that Obligor's or the Group's (as applicable) Original
Financial Statements were prepared;
and
|
71
CONFORMED
COPY
|
(ii)
|
sufficient
information, in form and substance as may be reasonably required by the
Agent, to enable the Lenders to determine whether Clause 23 (Financial
Covenants) has been complied with and make an accurate comparison
between the financial position indicated in those financial statements and
that Obligor's or the Group's Original Financial Statements, as
applicable.
|
|
(b)
|
If
the Company notifies the Agent of a change in accordance with paragraph
(i) above then the Company and Agent shall enter into negotiations in good
faith with a view to agreeing:
|
|
(i)
|
whether
or not the change might result in any material alteration in the
commercial effect of any of the terms of this Agreement;
and
|
|
(ii)
|
if
so, any amendments to this Agreement which may be necessary to ensure that
the change does not result in any material alteration in the commercial
effect of those terms
|
|
|
and
if any amendments are agreed they shall take effect and be binding on each
of the Parties in accordance with their terms.
Any reference in this
Agreement to those financial statements shall be construed as a reference
to those financial statements as adjusted to reflect the basis upon which
the Original Financial Statements were
prepared.
|
|
(c)
|
The
Combined Financial Statements prepared for the purposes of Clause 23
(Financial
Covenants) and the covenant calculations shall be prepared using
GAAP and in the event of there being any material change in GAAP or the
accounting practices applied or reference periods used or its auditors,
the provisions of paragraph (b) of this Clause 22.3 shall apply mutatis
mutandis.
|
22.4
|
ERISA-Related
Information
|
The
Company shall supply to the Agent (in sufficient copies for all the Lenders, if
the Agent so requests):
|
(a)
|
promptly
and in any event within 15 days after any U.S. Obligor or any ERISA
Affiliate files a Schedule B (or such other schedule as contains actuarial
information) to IRS Form 5500 in respect of an Employee Plan with Unfunded
Pension Liabilities, a copy of such IRS Form 5500 (including the Schedule
B);
|
|
(b)
|
promptly
and in any event within 30 days after any U.S. Obligor or any ERISA
Affiliate knows or has reason to know that any ERISA Event which,
individually or when aggregated with any other ERISA Event, would
reasonably be expected to have a Material Adverse Effect has occurred, the
written statement of the Chief Financial Officer of such U.S. Obligor or
ERISA Affiliate, as applicable, describing such ERISA Event and the
action, if any, which it proposes to take with respect to such ERISA Event
and a copy of any notice filed with the PBGC or the IRS pertaining to such
ERISA Event; provided
that, in the case of ERISA Events under paragraph (d) of the
definition thereof, the 30-day period set forth above shall be a 10-day
period,
|
72
CONFORMED
COPY
|
and,
in the case of ERISA Events under paragraph (b) of the definition thereof,
in no event shall notice be given later than the occurrence of the ERISA
Event; and
|
|
(c)
|
promptly,
and in any event within thirty days, after becoming aware that there has
been (i) a material increase in Unfunded Pension Liabilities, taking into
account only Employee Plans with positive Unfunded Pension Liabilities;
(ii) the existence of potential withdrawal liability under Section 4201 of
ERISA, if the Parent and its ERISA Affiliates were to completely or
partially withdraw from all Multiemployer Plans; (iii) the adoption of, or
the commencement of contributions to, any Employee Plan subject to Section
412 of the Code by any Obligor or any ERISA Affiliate; or (iv) the
adoption of any amendment to an Employee Plan subject to Section 412 of
the Code which results in a material increase in contribution obligations
of any Obligor, a detailed written description thereof from the Chief
Financial Officer of each affected U.S. Obligor or ERISA Affiliate, as
applicable.
|
22.5
|
Information:
miscellaneous
The
Company shall supply to the Agent (in sufficient copies for all the
Lenders, if the Agent so requests):
|
|
(a)
|
all
documents dispatched by the Company to its shareholders (or any class of
them) or its creditors generally at the same time as they are
dispatched;
|
|
(b)
|
promptly
upon becoming aware of them, the details of any litigation, arbitration or
administrative proceedings which are current, threatened or pending
against any member of the Group, and which might, if adversely determined,
be reasonably likely to have a Material Adverse Effect;
and
|
|
(c)
|
promptly,
such further information regarding the financial condition, business and
operations of any member of the Group as any Finance Party (through the
Agent) may reasonably request (including, but not limited to, such
information required under sections 13, 13a and 18 of the German Banking
Act (Kreditwesengesetz))
but so that prior to a Default, no more than one request may be made in
any three month period.
|
22.6
|
Notification
of default
|
|
(a)
|
Each
Obligor shall notify the Agent of any Default (and the steps, if any,
being taken to remedy it) promptly upon becoming aware of its occurrence
(unless that Obligor is aware that a notification has already been
provided by another Obligor).
|
|
(b)
|
Promptly
upon a request by the Agent, the Company shall supply to the Agent a
certificate signed by two of its directors or senior officers on its
behalf certifying that to the best of their knowledge after due and
careful enquiry no Default is continuing (or if a Default is continuing,
specifying the Default and the steps, if any, being taken to remedy
it).
|
73
CONFORMED
COPY
22.7
|
Use
of websites
|
|
(a)
|
The Company may satisfy its
obligation under this Agreement to deliver any information in relation to
those Lenders ( the "Website
Lenders") who accept this
method of communication by posting this information onto an electronic
website designated by the Company and the Agent (the "Designated
Website") if:
|
|
(i)
|
the
Agent expressly agrees (after consultation with each of the Lenders) that
it will accept communication of the information by this
method;
|
|
(ii)
|
both
the Company and the Agent are aware of the address of and any relevant
password specifications for the Designated Website;
and
|
|
(iii)
|
the
information is in a format previously agreed between the Company and the
Agent.
|
If any
Lender (a "Paper
Form Lender") does not agree to the delivery of information
electronically then the Agent shall notify the Company accordingly and the
Company shall supply the information to the Agent (in sufficient copies for each
Paper Form Lender) in paper form. In any event the Company shall
supply the Agent with at least one copy in paper form of any information
required to be provided by it.
|
(b)
|
The
Agent shall supply each Website Lender with the address of and any
relevant password specifications for the Designated Website following
designation of that website by the Company and the
Agent.
|
|
(c)
|
The
Company shall promptly upon becoming aware of its occurrence notify the
Agent if:
|
|
(i)
|
the
Designated Website cannot be accessed due to technical
failure;
|
|
(ii)
|
the
password specifications for the Designated Website
change;
|
|
(iii)
|
any
new information which is required to be provided under this Agreement is
posted onto the Designated Website;
|
|
(iv)
|
any
existing information which has been provided under this Agreement and
posted onto the Designated Website is amended;
or
|
|
(v)
|
the
Company becomes aware that the Designated Website or any information
posted onto the Designated Website is or has been infected by any
electronic virus or similar
software.
|
If the
Company notifies the Agent under paragraph (c)(i) or paragraph (c)(v) above, all
information to be provided by the Company under this Agreement after the date of
that notice shall be supplied in paper form unless and until the Agent and each
Website Lender is satisfied that the circumstances giving rise to the
notification are no longer continuing.
74
CONFORMED
COPY
|
(d)
|
Any
Website Lender may request, through the Agent, one paper copy of any
information required to be provided under this Agreement which is posted
onto the Designated Website. The Company shall comply with any
such request within ten Business
Days.
|
22.8
|
"Know
your customer"
checks
|
|
(a)
|
If:
|
|
(i)
|
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation made after the date of this
Agreement;
|
|
(ii)
|
any
change in the status or the shareholders of an Obligor after the date of
this Agreement; or
|
|
(iii)
|
a
proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to
such assignment or transfer,
|
obliges
the Agent or any Lender (or, in the case of paragraph (iii) above, any
prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information is
not already available to it, each Obligor shall promptly upon the request of the
Agent or any Lender supply, or procure the supply of, such documentation and
other evidence as is reasonably requested by the Agent (for itself or on behalf
of any Lender) or any Lender (for itself or, in the case of the event described
in paragraph (iii) above, on behalf of any prospective new Lender) in order for
the Agent, such Lender or, in the case of the event described in paragraph (iii)
above, any prospective new Lender to carry out and be satisfied it has complied
with all necessary "know your customer" or other similar checks under all
applicable laws and regulations pursuant to the transactions contemplated in the
Finance Documents.
|
(b)
|
Each
Lender shall promptly upon the request of the Agent supply, or procure the
supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself) in order for the Agent to carry out
and be satisfied it has complied with all necessary "know your customer"
or other similar checks under all applicable laws and regulations pursuant
to the transactions contemplated in the Finance
Documents.
|
|
(c)
|
The
Company shall, by not less than 10 Business Days' prior written notice to
the Agent, notify the Agent (which shall promptly notify the Lenders) of
its intention to request that one of its Subsidiaries becomes an
Additional Obligor pursuant to Clause 27 (Changes
to the Obligors).
|
|
(d)
|
Following
the giving of any notice pursuant to paragraph (c) above, if the accession
of such Additional Obligor obliges the Agent or any Lender to comply with
"know your customer" or similar identification procedures in circumstances
where the necessary information is not already available to it,
the
|
75
CONFORMED
COPY
|
Company shall
promptly upon the request of the Agent or any Lender supply, or procure
the supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself or on behalf of any Lender) or any
Lender (for itself or on behalf of any prospective new Lender) in order
for the Agent or such Lender or any prospective new
Lender to carry out and be satisfied it has complied with all necessary
"know your customer" or other similar checks under all applicable laws and
regulations pursuant to the accession of such Subsidiary to this Agreement
as an Additional Obligor.
|
23.1
|
Financial
definitions
|
In this
Clause 23.1:
"Acquisition
Costs" means all non-periodic fees, costs and expenses, stamp,
registration and other Taxes incurred by the Company or any other member of the
Group in connection with the Akzo Nobel Retirement.
"Borrowings"
means, at any time, the outstanding principal, capital or nominal amount and any
fixed or minimum premium payable on prepayment or redemption of any indebtedness
for or in respect of:
|
(a)
|
moneys
borrowed and debit balances with financial
institutions;
|
|
(b)
|
any
amount raised by acceptance under any acceptance credit
facility;
|
|
(c)
|
any
amount raised pursuant to any note purchase facility or the issue of
bonds, notes, debentures, loan stock or any similar
instrument;
|
|
(d)
|
the
amount of any liability in respect of any lease or hire purchase contract
which would, in accordance with GAAP, be treated as a finance or capital
lease;
|
|
(e)
|
receivables
sold or discounted (other than any receivables to the extent they are sold
on a non-recourse basis);
|
|
(f)
|
any
counter-indemnity obligation in respect of a guarantee, indemnity, bond,
standby or documentary letter of credit or any other instrument issued by
a bank or financial institution (excluding any given in respect of trade
credit arising in the ordinary course of
business);
|
|
(g)
|
any
amount raised by the issue of redeemable shares which are redeemable
before the Termination Date of each
Facility;
|
|
(h)
|
any
amount of any liability under an advance or deferred purchase agreement
arranged primarily as a method of raising finance or financing the
acquisition of an asset;
|
|
(i)
|
any
amount raised under any other transaction (including any forward sale or
purchase agreement) having the commercial effect of a borrowing;
and
|
76
CONFORMED
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|
(j)
|
(without double counting) the amount of any liability
in respect of any guarantee or indemnity for any of the items referred to
in paragraph (a) to (i) above.
|
"Combined
EBITDA" means in respect of
any Relevant Period, the combined earnings before Combined Senior Interest
Expenses, taxation, depreciation and amortisation of the
Group,
|
(a)
|
excluding:
|
|
(i)
|
(to
the extent otherwise included) any gain over book value of any member of
the Group or any Affiliate of any such member and after adding back any
loss on book value arising on the sale, lease or disposal of any asset by
any member of the Group or any Affiliate of any such member (other than on
the sale of trading stock) during such period and any gain or loss arising
on revaluation of any asset during such period);
and
|
|
(ii)
|
realised
and unrealised exchange gains and losses which do not relate to ordinary
trading activities,
|
|
(b)
|
and
adding back:
|
|
(i)
|
the
non-cash component of any restructuring charges or asset impairments
arising as a result of restructuring incurred during the period;
and
|
|
(ii)
|
the
cash component of any restructuring expenditure incurred during the period
(subject to a maximum in any one 12 month period of US$15,000,000 and a
cumulative cap during the term of the Facilities of US$30,000,000);
and
|
|
(iii)
|
any
cash expenditures incurred during the period for the purposes of defending
the Group's Intellectual Property
rights.
|
"Combined
Financial Statements" of the Group means the financial statements
reflecting the combined financial statements of Flexsys Holding B.V. (and its
Subsidiaries), Flexsys Rubber Chemicals Limited and Flexsys America L.P.
(calculated in accordance with GAAP).
"Combined
Senior Interest Expenses" means, for any Relevant Period, the aggregate
amount of the accrued interest, commission, fees, discounts, prepayment
penalties or premiums and other finance payments in respect of Borrowings
whether paid, payable or capitalised by any member of the Group in respect of
that Relevant Period:
|
(a)
|
excluding
any such obligations to any other member of the
Group;
|
|
(b)
|
including
the interest element of leasing and hire purchase
payments;
|
|
(c)
|
including
any accrued commission, fees, discounts and other finance payments payable
by any member of the Group under any interest rate hedging
|
77
CONFORMED
COPY
|
|
arrangement
(but excluding, for the avoidance of doubt, any marked to market hedging
gains or losses);
|
|
(d)
|
deducting
any accrued commission, fees, discounts and other finance payments owing
to any member of the Group under any interest rate hedging instrument
(but
excluding, for the avoidance of doubt, any marked to market hedging gains
or losses);
|
|
(e)
|
excluding
any Acquisition Costs;
and
|
|
(f)
|
excluding
any interest in respect of the loan made under the Subordinated
Loan.
|
"Combined
Senior Total Financial Debt" means, at any time, the Combined Total Debt
after deducting the aggregate amount of all obligations of the Group for or in
respect of Borrowings under the Subordinated Loan and so that no amount shall be
included or excluded more than once.
"Combined
Tangible Net Worth" means, at any time, the aggregate of the amounts paid
up or credited as paid up on the issued ordinary share capital of the Company
and Flexsys America L.P. and Flexsys Rubber Chemicals Limited and the aggregate
amount of the reserves of the Group,
including:
|
(a)
|
any
amount credited to the share premium
account;
|
|
(b)
|
any
capital redemption reserve fund;
and
|
|
(c)
|
any
balance standing to the credit of the combined profit and loss account of
the Group,
|
but
deducting:
|
(a)
|
any
debit balance on the combined profit and loss account of the
Group;
|
|
(b)
|
(to
the extent included) any amount shown in respect of goodwill (including
goodwill arising only on consolidation) or other intangible assets of the
Group;
|
|
(c)
|
any
amount in respect of interests of non-Group members in Group subsidiaries
(other than the interests in Flexsys America LP and Flexsys Rubber
Chemicals Ltd);
|
|
(d)
|
(to
the extent included) any amounts arising from an upward revaluation of
assets made at any time after 2006;
and
|
|
(e)
|
(to
the extent included) any non-cash adjustments arising from accumulated
currency adjustments made at any time after
2006,
|
and so
that no amount shall be included or excluded more than once.
78
CONFORMED
COPY
"Combined
Total Debt" means, at any time, the aggregate amount of all obligations
of the Group for or in respect of Borrowings but:
|
(a)
|
excluding
any such obligations to any other member of the Group;
and
|
|
(b)
|
including,
in the case of finance leases, only the capitalised value
therefore,
|
|
and so that no amount shall be
included or excluded more than once.
"EBITDA"
means earnings before Combined Senior Interest Expenses, taxation,
depreciation and amortisation.
"Relevant
Period" means each period of twelve months ending on the last day
of each quarter of the Company's financial year.
|
23.2
|
Financial
condition
The Company shall ensure
that:
|
|
(a)
|
Interest
Cover
The ratio of Combined EBITDA
to Combined Senior Interest Expenses in respect of any Relevant Period
shall not be less than 4:1.
|
|
(b)
|
Senior
Leverage
The ratio of Combined Senior
Total Financial Debt at any time to Combined EBITDA (the "Senior
Leverage Ratio") in respect of any Relevant Period shall not at any
time exceed 3:1.
|
|
(c)
|
Combined
Tangible Net Worth
The Combined Tangible Net
Worth in respect of any Relevant Period shall not be less than
US$75,000,000 plus an amount equal to 75 per cent. of the combined net
income of the Group in respect of each complete financial year of the
Company ending after the date of this
Agreement.
|
23.3
|
Financial
testing
The financial covenants set
out in Clause 23.2 (Financial
condition) shall be tested quarterly by reference to each of the
Combined Financial Statements of the Group and/or each Compliance
Certificate delivered pursuant to Clause 22.2 (Compliance
Certificate).
|
24.
|
The undertakings in this
Clause 24 remain in force from the date of this Agreement for so long as
any amount is outstanding under the Finance Documents or any Commitment is
in force.
|
24.1
|
Authorisations
Each Obligor shall promptly
obtain, comply with and do all that is necessary to maintain in full force
and effect any Authorisation required under any law or regulation of the
Relevant Jurisdictions to enable it to perform its obligations under the
Finance
|
79
CONFORMED
COPY
Documents
and subject to any Reservation to ensure the legality, validity, enforceability
or admissibility in evidence in each Relevant Jurisdiction of any Finance
Document.
24.2
|
Compliance
with laws
|
|
(a)
|
Each
Obligor shall comply in all respects with all laws to which it may be
subject, if failure so to comply might be reasonably likely to have a
Material Adverse Effect subject to any
Reservations.
|
|
(b)
|
Each
Dutch Obligor shall comply in all respects with the Dutch
FSA.
|
24.3
|
Negative
pledge
|
|
(a)
|
No
Obligor shall (and the Company shall ensure that no other member of the
Group will) create or permit to subsist any Security over any of its
assets.
|
|
(b)
|
No
Obligor shall (and the Company shall ensure that no other member of the
Group will):
|
|
(i)
|
sell,
transfer or otherwise dispose of any of its assets on terms whereby they
are or may be leased to or re-acquired by an Obligor or any other member
of the Group;
|
|
(ii)
|
sell,
transfer or otherwise dispose of any of its receivables on recourse
terms;
|
|
(iii)
|
enter
into any arrangement under which money or the benefit of a bank or other
account may be applied, set-off or made subject to a combination of
accounts; or
|
|
(iv)
|
enter
into any other preferential arrangement having a similar
effect,
|
in
circumstances where the arrangement or transaction is entered into primarily as
a method of raising Financial Indebtedness or of financing the acquisition of an
asset (any such matter being "Quasi-Security").
|
(c)
|
Subject
to paragraph (d) below, paragraphs (a) and (b) above do not apply
to:
|
|
(i)
|
any
netting or set-off arrangement entered into by any member of the Group in
the ordinary course of its banking arrangements for the purpose of netting
debit and credit balances;
|
|
(ii)
|
any
lien arising by operation of law in the ordinary course of business and
securing amounts not more than 30 days
overdue;
|
|
(iii)
|
any
lien arising by operating of law in the ordinary course of business and
securing amounts more than 30 days overdue provided
that such overdue amounts are being contested by the relevant
Obligor in good faith;
|
80
CONFORMED
COPY
|
(iv)
|
any
Security over or affecting (or transaction ("Quasi-Security")
described in paragraph (b) above) affecting any asset acquired by a member
of the Group after the date of this Agreement
if:
|
|
(A)
|
the
Security or Quasi-Security was not created in contemplation of the
acquisition of that asset by a member of the
Group;
|
|
(B)
|
the
principal amount secured has not been increased in contemplation of, or
since the acquisition of that asset by a member of the Group;
and
|
|
(C)
|
the
Security or Quasi-Security is removed or discharged within three months of
the date of acquisition of such
asset;
|
|
(v)
|
any
Security or Quasi-Security over or affecting any asset of any company
which becomes a member of the Group after the date of this Agreement,
where the Security or Quasi-Security is created prior to the date on which
that company becomes a member of the Group,
if:
|
|
(A)
|
the
Security or Quasi-Security was not created in contemplation of the
acquisition of that company;
|
|
(B)
|
the
principal amount secured has not increased in contemplation of or since
the acquisition of that company;
and
|
|
(C)
|
the
Security or Quasi-Security is removed or discharged within three months of
that company becoming a member of the Group;
or
|
|
(vi)
|
the
Transaction Security;
|
|
(vii)
|
any
netting or set-off arrangement entered into under any hedging transaction
permitted under Clause 24.14 where the obligations of the parties are
calculated by reference to net exposure under that hedging
transaction;
|
|
(viii)
|
any
Quasi-Security arising as a result of a sale, transfer or other disposal
which is a permitted under Clause 24.4 (Disposals);
|
|
(ix)
|
any
Security or Quasi-Security created after the commencement of legal
proceedings with a view to preserving the status quo between the litigants
pending the outcome of those proceedings, provided
that such Security or Quasi-Security does not secure Financial
Indebtedness exceeding in aggregate US$1,000,000 (or its equivalent in
another currency or currencies) at any time and is released forthwith upon
final determination of such litigation provided
that such Security or Quasi-Security shall be created or arise
solely pursuant to a legal obligation or
requirement;
|
|
(x)
|
any
Security or Quasi-Security over goods, documents of title to goods and
related documents and insurances and their proceeds to secure liabilities
of any member of the Group in respect of a letter of credit or other
similar instrument issued for all or part of the purchase price and
|
81
CONFORMED
COPY
|
|
costs
of shipment, insurance and storage of goods acquired by any member of the
Group in the ordinary course of
trading;
|
|
(xi)
|
easements,
zoning restrictions and similar encumbrances on real property and minor
irregularities in the title thereto that do not (i) secure obligations for
the payment of money or (ii) materially impair the value of such property
or its use by any member of the Group in the ordinary course of
business;
|
|
(xii)
|
any Security or Quasi-Security
arising under any retention of title, hire purchase or conditional sale
arrangement or arrangements having similar effect in respect of goods
supplied to a member of the Group in the ordinary
course of trading and not as a result of any default or omission by any
member of the
Group;
|
|
(xiii)
|
any
Quasi Security arising as a result of any factoring of receivables
permitted under Clause 24.14;
|
|
(xiv)
|
any
Security or Quasi-Security with the consent of the Majority
Lenders;
|
|
(xv)
|
any
Security or Quasi-Security created or subsisting to secure any obligations
incurred in order to comply with the requirements of Section 8a of the
German Partial Retirement Act (Altersteilzeitgesetz) and/or Section 7d of
the German Sozialgesetzbuch IV;
|
|
(xvi)
|
any
Security or Quasi-Security securing indebtedness the principal amount of
which (when aggregated with the principal amount of any other indebtedness
which has the benefit of Security or Quasi Security given by any member of
the Group other than any permitted under paragraphs (i) to (xv)
above) does not at any time exceed US$1,500,000 (or its equivalent in
another currency or currencies).
|
|
(d)
|
Flexsys
Indústria e Comercío Ltda is not permitted to create or permit to subsist
any Security or Quasi-Security nor incur any secured or quasi-secured
obligations (howsoever described) referred to in paragraph (c)(iv) to
(c)(xv) above.
|
|
(e)
|
No
Belgian Obligor shall create any Security or Quasi-Security (including but
by no means limited to any pledge) over or affecting any inventory of that
Belgian Obligor.
|
24.4
|
Disposals
|
|
(a)
|
No
Obligor shall (and the Company shall ensure that no other member of the
Group will), enter into a single transaction or a series of transactions
(whether related or not) and whether voluntary or involuntary to sell,
lease, transfer or otherwise dispose of any
asset.
|
82
CONFORMED
COPY
|
(b)
|
Paragraph
(a) above does not apply to any sale, lease, transfer or other
disposal:
|
|
(i)
|
made
in the ordinary course of trading and on arm's length terms of the
disposing entity;
|
|
(ii)
|
of
assets in exchange for other assets comparable or superior as to type,
value and quality;
|
|
(iii)
|
by
one Obligor to another Obligor provided
that if the first Obligor has granted security over any such asset
that other Obligor must be party to a legally valid binding and
enforceable Security Document which creates a first priority Security over
the assets transferred;
|
|
(iv)
|
for
cash on arm's length terms of any obsolete assets not required for the
efficient operation of the business of the Group by any member of the
Group;
|
|
(v)
|
of
cash where that disposal is not otherwise prohibited by the Finance
Documents;
|
|
(vi)
|
by
the Company of all shares held in Flexsys America Co. to Solutia Inc. (or
any of its affiliates); or
|
|
(vii)
|
of
assets by a member of the Group which is not an Obligor to another member
of the Group which is not an Obligor;
or
|
|
(viii)
|
of
assets with the consent of the Majority Lenders;
or
|
|
(ix)
|
not
otherwise permitted where the higher of the market value and consideration
receivable (when aggregated with the higher of the market value and/or
consideration (as the case may be) receivable for any other sale, lease,
transfer or other disposal) does not exceed US$10,000,000 (or its
equivalent in another currency or
currencies).
|
24.5
|
Merger
|
No
Obligor shall (and the Company shall ensure that no other member of the Group
will) enter into any amalgamation, demerger, merger or corporate reconstruction
(including by way of dividend in specie), other than:
|
(a)
|
any
such arrangements involving only members of the Group;
or
|
|
(b)
|
the
transfer of ownership of Flexsys America Co. to Solutia
Inc..
|
24.6
|
Change
of Business
|
Save as
may be required in connection with the German Debt Pushdown, the Company shall
procure that no material adverse change is made to the general nature of the
business of the Company or the Group from that carried on at the date of this
Agreement.
24.7
|
Insurance
|
|
(a)
|
Each
Obligor shall (and the Company shall ensure that each other member of the
Group will) maintain insurances on and in relation to its business and
assets with reputable independent underwriters or insurance
companies:
|
83
CONFORMED
COPY
|
(i)
|
against
those risks, and to the extent, usually insured against by prudent
companies located in the same or a similar location and carrying on a
similar business; and
|
|
(ii)
|
against
those risks, and to the extent, required by applicable law or by
contract.
|
|
(b)
|
Without
limiting paragraph (a) above, each Obligor shall (and the Company shall
ensure that each other member of the Group will) maintain insurance on all
of its assets of an insurable nature against loss or damage by fire and
other risks normally insured against by persons carrying on a similar
business in a sum or sums at least equal to their replacement value
(meaning the total cost of entirely rebuilding, reinstating or replacing
those assets if completely destroyed, together with architects',
surveyors' and other professional
fees).
|
|
(c)
|
Each
Obligor shall (and the Company shall ensure that each other member of the
Group will) promptly pay premiums and do all things necessary to maintain
insurances required of it by paragraphs (a) and (b)
above
|
24.8
|
Environmental
Compliance
|
Each
Obligor shall (and the Company shall ensure that each member of the Group will)
comply in all material respects with all Environmental Law and obtain and
maintain any Environmental Permits and take all reasonable steps in anticipation
of known or expected future changes to or obligations under the same where
failure to do so might be reasonably likely to have a Material Adverse
Effect.
24.9
|
Environmental
Claims
|
The
Company shall inform the Agent in writing as soon as reasonably practicable upon
becoming aware of the same:
|
(a)
|
if
any Environmental Claim has been commenced or (to the best of the
Company's knowledge and belief) is threatened against any member of the
Group; or
|
|
(b)
|
of
any facts or circumstances which will or are reasonably likely to result
in any Environmental Claim being commenced or threatened against any
member of the Group,
|
where the
claim would be reasonably likely, if determined against that member of the
Group, to have a Material Adverse Effect.
24.10
|
Taxation
|
Each
Obligor shall (and the Company shall ensure that each member of the Group will)
duly and punctually pay and discharge all Taxes imposed upon it or its assets
within the time period allowed without incurring penalties (expect to the extent
that (a) such payment is being contested in good faith, (b) adequate reserves
are being maintained for those Taxes and (c) where such payment can be lawfully
withheld).
84
CONFORMED
COPY
24.11
|
Acquisitions
|
|
(a)
|
No
Obligor shall (and the company shall ensure that no other member of the
Group will) acquire any company, business or
undertaking.
|
|
(b)
|
Paragraph
(a) above shall not apply to any acquisition by a member of the Group of
any company, business or undertaking (including for the avoidance of
doubt, any acquisition in connection with the German Debt Pushdown)
provided that:
|
|
(i)
|
the
Finance Parties will enjoy the same or equivalent Security and recourse to
such asset following completion of that
acquisition;
|
|
(ii)
|
the
Company certifies to the Agent (signed by two directors) in form and
substance substantially similar to the certificate contained in Schedule
13 (Sources
and Uses Table) that following such acquisition, the Group will
continue to have excess liquidity (as defined in Clause 24.18 (Subordinated
Loan) of this Agreement) of at least
US$40,000,000;
|
|
(iii)
|
the
Company delivers financial projections demonstrating compliance with the
financial covenants contained in Clause 23 (Financial
Covenants) of
this Agreement for the balance of the term of the Facilities, financial
projections of which shall take into account such acquisition and be
prepared on a pro forma basis; and
|
|
(iv)
|
the
consideration for any acquisition (when aggregated with the consideration
for any other acquisition permitted under this paragraph (b)) does not
exceed US$30,000,000 in any financial year of the Group and if the
consideration for such acquisitions exceeds US$30,000,000 in aggregate in
any financial year the Group must have the prior consent of the Agent
(acting on instruction of the Majority
Lenders).
|
24.12
|
Loans
and Guarantees
|
|
(a)
|
No
Obligor shall (and the Company shall ensure that no member of the Group
will) make any loans, grant any credit (save in the ordinary course of
business or to another member of the Group (including for the avoidance of
doubt, as may be required in connection with the German Debt Pushdown)) or
give any guarantee or indemnity (except as required under any of the
Finance Documents) to or for the benefit of any person or otherwise
voluntarily assume any liability, whether actual or contingent, in respect
of any obligation of any person other
than:
|
|
(i)
|
any
guarantee, bond, indemnity or counter-indemnity existing at the date of
this Agreement; or
|
|
(ii)
|
any
unsecured guarantee issued by an Obligor in respect of the Financial
Indebtedness of any other member of Group which Financial Indebtedness is
permitted under the Finance
Documents;
|
85
CONFORMED
COPY
|
(iii)
|
any
unsecured guarantee issued by a member of the Group on arm's length terms
(including any counter-indemnity obligation) and in the ordinary course of
its trading, not in respect of Financial
Indebtedness;
|
|
(iv)
|
the
endorsement of negotiable instruments in the ordinary course of
trade;
|
|
(v)
|
a
loan from a member of the Group to its directors and/or employees provided
that the aggregate amount of loans to directors or employees of
members of the Group does not exceed US$10,000 at any
time;
|
|
(b)
|
No
Obligor shall (and the Company shall ensure that no member of the Group
will) agree to any arrangement after the date of this Agreement which
might increase the amount which it may be liable to pay in connection with
any guarantee, bond, indemnity or counter-indemnity permitted under
paragraph (a)(i) above, other than in respect of any guarantee, bond,
indemnity or counter-indemnity issued by an Obligor to another member of
the Group.
|
|
(c)
|
Notwithstanding the foregoing, no
loans or credit will be provided by any member of the Group to Solutia
Inc. or any of its affiliated debtors and no member of the Group will give
any guarantee or indemnity to any person (except
as required under any of the Finance Documents) to or for the benefit of
any person or otherwise voluntarily assume any liability, whether actual
or contingent, in respect of any obligation of Solutia Inc. or any of its
Affiliates.
|
24.13
|
Dividends
|
|
(a)
|
Subject
to Clause 24.5(b) and Clause 24.18(c), no Obligor shall (and the Company
shall ensure that no member of the Group will) pay, make or declare any
dividend or other distribution in respect of any financial year of that
member of the Group to any person or persons outside the Group unless and
until:
|
|
(i)
|
Solutia
Inc.'s proceedings under Title 11 of the United States of America Code
entitled Bankruptcy have closed and a final decree has been entered by the
bankruptcy court in which such proceedings have been filed;
and
|
|
(ii)
|
after
giving effect to the dividend or other distribution, the Combined Tangible
Net Worth as calculated on a pro forma basis will equal or exceed
US$200,000,000; and
|
|
(iii)
|
after
giving effect to the dividend or other distribution, the Senior Leverage
ratio (as calculated on a pro forma basis and in accordance with paragraph
(b) of Clause 23.2 (Financial
condition) will be less than
1.75:1.
|
|
(b)
|
Notwithstanding
the foregoing, the Company may distribute in kind its shareholding in
Flexsys America Co.
|
24.14
|
Indebtedness
|
|
(a)
|
The
Company shall ensure that no member of the Group shall incur, create or
permit to subsist or have outstanding any Financial Indebtedness for the
credit
|
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|
|
of
any person (including, for the avoidance of doubt, Solutia Inc. or any of
its Affiliates) which is not a member of the Group or enter into any
agreement or arrangement whereby it is entitled to incur, create or permit
to subsist any Financial
Indebtedness.
|
|
(b)
|
Paragraph
(a) above does not apply to any Financial
Indebtedness:
|
|
(i)
|
arising
under or permitted by the Finance
Documents;
|
|
(ii)
|
arising
under the Subordinated Loan as in force at the date of this Agreement and
subject always to the terms of this Agreement and the Intercreditor
Agreement;
|
|
(iii)
|
any
Financial Indebtedness arising under a loan or guarantee permitted
pursuant to Clause 24.12;
|
|
(iv)
|
any
Financial Indebtedness arising under any unsecured derivative transaction
to hedge actual or projected interest or currency exposure arising in the
ordinary course of business of a member of the Group and not for
speculative purposes; or
|
|
(v)
|
not
falling within paragraph (b)(i) to (b)(iv) above (including letters of
credit issued pursuant to arrangements outside of this Agreement) if the
aggregate amount drawn at any time does not exceed US$30,000,000 (or its
equivalent) and provided
that such Financial Indebtedness is not incurred for the credit of
Solutia Inc. or any of its
Affiliates.
|
|
(c)
|
Notwithstanding
the foregoing, Flexsys Indústria e Comercío Ltda is not entitled to incur,
create or permit to subsist any Financial Indebtedness other
than:
|
|
(i)
|
Financial
Indebtedness arising under or permitted by the Finance
Documents;
|
|
(ii)
|
Financial
Indebtedness incurred for the credit of another member of the Group;
and/or
|
|
(iii)
|
Financial
Indebtedness constituting trade credit incurred in the ordinary course of
trading.
|
|
(d)
|
Notwithstanding
the foregoing, Flexsys America L.P. and Flexsys Indústria e Comercío Ltda
are not entitled to incur, create or permit to subsist any Financial
Indebtedness other than:
|
|
(i)
|
Financial
Indebtedness arising under or permitted by the Finance
Documents;
|
|
(ii)
|
Financial
Indebtedness incurred for the credit of another member of the
Group;
|
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|
(iii)
|
Financial
Indebtedness constituting trade credit incurred in the ordinary course of
trading;
|
|
(iv)
|
Financial
Indebtedness under the Subordinated Loan;
and/or
|
|
(v)
|
Financial
Indebtedness not exceeding US$5,000,000 in aggregate between both Flexsys
America L.P. and Flexsys Indústria e Comercío
Ltda.
|
24.15
|
Preservation
of Assets
Each Obligor shall, and the
Company shall ensure that each member of the Group shall, maintain and
preserve, to a standard of repair consistent with that maintained by
companies carrying on businesses similar to that carried on by the Group
(ordinary wear and tear excepted), all of its assets that are necessary
for the conduct of its business, as conducted at the date of this
Agreement.
|
24.16
|
Access
Each Obligor shall, and the
Company shall ensure that each member of the Group whose shares are the
subject of the Transaction Security
shall:
|
|
(a)
|
subject to pre-existing duties of
confidentiality, on request of the Agent, provide the Agent and Security
Trustee with any information the Agent or Security Trustee may reasonably
require about that company's business and affairs, the Charged
Property and its compliance with the terms of the Security Documents;
and
|
|
(b)
|
permit
the Security Trustee, its representatives, delegates, professional
advisers and contractors, free access at all reasonable times and on
reasonable notice at the cost of the Obligors, (a) subject to pre-existing
duties of confidentiality, to inspect and take copies and extracts from
the books, accounts and records of that company and (b) to view the
Charged Property (without becoming liable as mortgagee in possession) but
so that prior to the occurrence of an Event of Default, no more than one
such inspection and/or viewings may take place in any financial year in
respect of any Obligor.
|
24.17
|
Pari
Passu ranking
Each Obligor shall, and the
Company shall ensure that each member of the Group shall ensure that its
payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to
companies generally.
|
24.18
|
Subordinated
Loan
|
|
(a)
|
Any
increase to the principal amount of the Subordinated Loan (such increase
being up to a maximum principal amount of US$175,000,000) that may be
agreed between the Company and Solutia Inc. having regard to the liquidity
and funding needs of the Group as a whole shall be permitted, subject to
prior approval of the increase being obtained from the bankruptcy court in
which Solutia Inc.'s proceedings under Title 11 of the United States of
America Code entitled Bankruptcy have been filed, if
applicable.
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(b)
|
Interest
on the Subordinated Loan shall be capitalised and shall not be due and
payable unless and until:
|
|
(i)
|
Solutia
Inc.'s proceedings under Title 11 of the United States of America Code
entitled Bankruptcy have closed and a final decree has been entered by the
bankruptcy court in which such proceedings have been filed;
and
|
|
(ii)
|
after
giving effect to desired level of interest to be paid, the Combined
Tangible Net Worth as calculated on a pro forma basis will equal or exceed
$200,000,000; and
|
|
(iii)
|
after
giving effect to desired level of interest to be paid, the Senior Leverage
ratio (as calculated on a pro forma basis and in accordance with paragraph
(b) of Clause 23.2 (Financial
Condition)) will be less than
1.75:1.
|
|
(c)
|
If
the Borrower determines that there is excess liquidity in the Group
("excess
liquidity" being understood by all parties to this Agreement to be
cash and availability under this Agreement that is readily available to
the Group and not required by the Group to meet its funding requirements,
disregarding any cash that is being used for collateral or similar
purposes of the Group) as a direct result of the Acquisition Costs being
less than anticipated at Financial Close, the Borrower shall be entitled
to make a one-time repayment towards the balance of the debt outstanding
under the Subordinated Loan (or by payment of a preferred dividend to
Solutia Europe N.V.) of an amount up to the excess of liquidity in the
Group within 30 days of Financial Close provided
that:
|
|
(i)
|
the
Borrower certifies that there is excess liquidity in the Group and the
amount thereof;
|
|
(ii)
|
the
Borrower certifies that the Acquisition Costs were or will be less than
anticipated at Financial Close;
|
|
(iii)
|
the
Borrower completes and certifies the Sources and Uses Table set out in
Schedule 13 (Sources
and Uses Table);
|
|
(iv)
|
in
calculating the excess liquidity of the Group the Borrower
must:
|
|
(A)
|
take
into account all cash and undrawn availability under Facility B;
and
|
|
(B)
|
take
into account the principal amount outstanding under the Subordinated Loan
at Financial Close; and
|
|
(C)
|
take
into account the principal amount outstanding under the Facilities at
Financial Close; and
|
|
(D)
|
take
into account any (growth) capital expenditure in excess of the capital
expenditure either included in the financial model or that the Group can
reasonably expect to entertain; and
|
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|
(E)
|
deduct
the actual purchase price of the Akzo Nobel Retirement;
and
|
|
(F)
|
deduct
the payments made (or to be made) pursuant to the Long Term Incentive
Compensation; and
|
|
(G)
|
deduct
the payments made (or to be made) under the Pension Fund Obligations;
and
|
|
(H)
|
deduct
the payments made (or to be made) pursuant to the Crystex Acquisition;
and
|
|
(I)
|
deduct
the repayment in full of all amounts outstanding under the Existing
Facility; and
|
|
(J)
|
deduct
US$40,000,000; and
|
|
(v)
|
after
giving effect to the one-time repayment, the balance of the debt still
outstanding under the Subordinated Loan shall be a minimum of
US$100,000,000;
|
|
(vi)
|
the
Borrower shall continue to be in compliance with all applicable provisions
under Clause 22 (Information
Undertakings), Clause 23 (Financial
covenants) and Clause 24 (General
Undertakings); and
|
|
(vii)
|
if
a portion of the payment is made by way of a preferred dividend to Solutia
Europe N.V., the aggregate amount of such preferred dividend does not
exceed US$10,000,000.
|
24.19
|
Relationship
with Solutia Inc.
|
|
(a)
|
The
Company shall ensure that no member of the Group shall become a debtor in
a proceeding pursuant to Title 11 of the United States Code including in
connection with the Chapter 11 proceedings of Solutia Inc. and its
affiliated debtors in such proceedings from time to time (collectively,
for the purposes of this Clause 24.19 (Relationship
with Solutia Inc.), "Solutia")
currently pending and jointly administered before the United States
Bankruptcy Court for the Southern District of New York 03-17949
(PCB).
|
|
(b)
|
Ordinary
corporate formalities (as construed in accordance with accounting
principles and practices generally accepted in the Relevant Jurisdictions)
shall be maintained and observed at all times between all members of the
Group and Solutia. In connection therewith, at all times, all
members of the Group shall (i) maintain separate books, accounting records
(which includes separate financial statements (which may be unaudited)
showing assets and liabilities separate and apart from those of any other
Person), bank accounts, and other entity documents and records separate
from those of Solutia; (ii) hold itself out to the public as a legal
entity separate from Solutia; (iii) not commingle its assets with assets
of Solutia or any other Person and not hold itself out as being liable for
the debts of another; (iv) conduct business in its own name and through
its own authorised officers and agents and strictly comply with all
organisational formalities necessary to maintain its existence; (v) manage
its liabilities
|
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|
|
separately
from those of Solutia and pay and discharge its own liabilities (including
all administrative expenses) from its own separate assets; (vi) maintain
an arm's length relationship with Solutia and enter into transactions with
Solutia only on a commercially reasonable basis; (vii) not hold out its
credit or assets as being available to satisfy the obligations of others;
and (viii) not pledge its assets for the benefit of Solutia or enter into
any guarantees or otherwise become liable for the obligations of
Solutia.
|
24.20
|
Additional
security
|
|
(a)
|
Subject
to compliance with the Agreed Security Principles, each of the Company and
each Material Group Member shall accede to this Agreement as a Guarantor
within 45 days of becoming a Material Group Member and grant such
security as the Security Trustee reasonably requests within such time
period (and having regard to the type of Security Interests created over
relevant classes of assets under the Security Documents at Financial
Close).
|
|
(b)
|
Subject to the Agreed Security
Principles each of the Company and each Material Group Member shall
promptly (and in any event within 45 days of being requested or such
longer period as the Agent (acting on instructions of the Majority
Lenders) may agree, having regard to any practical issues involved in the
granting of such additional Security)) grant to the Security Trustee
additional Security in the form of first ranking fixed Security over all
of its assets
and undertakings if so requested by the Agent (acting reasonably on its
own behalf or on instruction of the Majority Lenders) having regard to the
circumstances of the Group and the shareholders of the Group as a
whole.
|
24.21
|
Compliance
with ERISA
No Obligor
shall:
|
|
(a)
|
allow,
or permit any of its ERISA Affiliates to allow, (i) the termination of any
Employee Plan with respect to which any Obligor or any ERISA Affiliate may
have any liability, (ii) any Obligor or ERISA Affiliates to withdraw from
any Employee Plan, (iii) any ERISA Event to occur with respect to any
Employee Plan, or (iv) any Accumulated Funding Deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code), whether or not waived,
to exist involving any of its Employee Plans; to the extent that any of
the events described in (i), (ii), (iii) or (iv), singly or in the
aggregate, could have a Material Adverse
Effect;
|
|
(b)
|
allow,
or permit any of its ERISA Affiliates to allow, (i) the aggregate amount
of Unfunded Pension Liability among all Employee Plans (taking into
account only Employee Plans with positive Unfunded Pension Liability) at
any time to exist where such amount could have a Material Adverse Effect;
or (ii) the aggregate potential withdrawal liability under Section 4201 of
ERISA, if the Company and its ERISA Affiliates were to completely or
partially withdraw from all Multiemployer Plans, to exist where such
amount could have a Material Adverse Effect;
or
|
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CONFORMED
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|
(c)
|
fail,
or permit any of its ERISA Affiliates to fail, to comply in any material
respect with ERISA or the related provisions of the Code, if any such
non-compliance, singly or in the aggregate, would be reasonably likely to
have a Material Adverse Effect.
|
24.22
|
Federal
Reserve Regulations
Each
U.S. Borrower will use the Facilities without violating Regulations T, U
and X.
|
24.23
|
Compliance
with U.S. Regulations
No
Obligor shall (and the Company shall ensure that no other member of the
Group will) become an "investment company," or an "affiliated person" of,
or "promoter" or "principal underwriter" for, an "investment company," as
such terms are defined in the 1940 Act. Neither the making of
any Loan, or the application of the proceeds or repayment of any Loan by
any Obligor nor the consummation of the other transactions contemplated by
this agreement will violate any provision of such act or any rule,
regulation or order of the SEC under the 1940
Act.
|
24.24
|
Anti-Money
Laundering
Each Obligor will use
commercially reasonable efforts to ensure that no funds used to pay the
obligations under the Finance Documents are derived from any unlawful
activity.
|
24.25
|
Further
assurance
|
|
(a)
|
Each Obligor shall (and the Company
shall ensure that each member of the Group will) promptly do all such acts
or execute all such documents (including assignments,
transfers, mortgages, charges, notices and instructions) as the Security
Trustee may reasonably specify) and in such form as the Security Trustee
may reasonably require in favour of the Security Trustee or its
nominee(s)):
|
|
(i)
|
to
perfect the Security created or intended to be created under or evidenced
by the Security Documents (which may include the execution of a mortgage,
charge, assignment or other Security over all or any of the assets which
are, or are intended to be, the subject of the Transaction Security) or
for the exercise of any rights powers and remedies of the Security Trustee
or the Finance Parties provided by or pursuant to the Finance Documents or
by law;
|
|
(ii)
|
to
confer on the Security Trustee or confer on the Finance Parties Security
over any property and assets of that Obligor located in any jurisdiction
equivalent or similar to the Security intended to be conferred by or
pursuant to the Security Documents;
and/or
|
|
(iii)
|
take
all such action as is available to it (including making all filings and
registrations) as may be necessary for the purpose of the creation,
perfection, protection or maintenance of any Security conferred or
intended to be conferred on the Security Trustee or the Finance Parties by
or pursuant to the Finance
Documents.
|
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24.26
|
Company
and Material Group Member profit
Subject
to compliance with the Agreed Security Principles, the Obligors shall at
all times represent in aggregate a minimum
of:
|
|
(a)
|
85
per cent. of the Combined EBITDA;
and/or
|
|
(b)
|
85
per cent. of the combined assets of the Group;
and/or
|
|
(c)
|
85
per cent. of the combined revenue (as calculated in accordance with GAAP)
of the Group,
|
|
and
to be determined by reference to the quarterly unaudited Combined
Financial Statements of the
Group.
|
24.27
|
Capital
reduction
|
|
(a)
|
The
Company, Flexsys America L.P. and Flexsys Rubber Chemicals Limited shall
not be subject to any cancellation of shares, share buy-back or other
reduction of issued share capital or partnership
interests.
|
|
(b)
|
Paragraph
(a) above does not apply to any cancellation of shares or other capital
reduction that arises as a direct consequence of the Akzo Nobel Retirement
(whensoever cancelled or reduced).
|
24.28
|
Malaysian
Central Bank
Flexsys Chemicals (M) Sdn. Bhd.
undertakes to submit the following information in relation to the
guarantee given by it under this Agreement and the security created by it
under the deed of debenture, the xxxx xxxxxx'x caveat and the charge of
its real property held
under HS(D) 20034 PT 8004 and HS(D) 20035 PT both in the
Mukim of Sungai Karang, District of Kuantan, State of Pahang, Malaysia, to
BNM for registration and to obtain an acknowledgement of registration from
BNM prior to delivery of the first Utilisation Request and the Company
undertakes to procure that Flexsys Chemicals (M) Sdn. Bhd. complies with
its obligations under this Clause 24.28 (Malaysian
Central Bank) within such time
period:
|
|
(a)
|
its
full name, as issuer of the relevant guarantee, the debenture, the xxxx
xxxxxx'x caveat and the charge;
|
|
(b)
|
the
full names of all parties whose obligations are guaranteed under such
guarantee and in favour of whom the debenture and charge are
created;
|
|
(c)
|
the
amount guaranteed under such guarantee and the amount secured under the
debenture and the charge;
|
|
(d)
|
the
full name and address of the beneficiary(ies) of such guarantee, debenture
and charge; and
|
|
(e)
|
the
purpose of such guarantee, debenture, the xxxx xxxxxx'x caveat and charge;
and
|
|
(f)
|
any
other information required by BNM.
|
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CONFORMED
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|
On and at
any time after the occurrence of an Event of Default, Flexsys Chemicals
(M) Sdn. Bhd, undertakes to notify BNM that the guarantee given by it
under this Agreement and the security created by it under the deed of
debenture, the xxxx xxxxxx'x caveat and the charge of its real property
held under HS(D) 20034 PT 8004 and HS(D) 20035 PT both in
the Mukim of Sungai Karang, District of Kuantan, State of Pahang, Malaysia
to BNM will be called upon, failing which the Security Trustee shall be
entitled to notify BNM of the same.
Flexsys
Chemicals (M) Sdn. Bhd. further undertakes to notify BNM changes to the
guarantee under this Agreement and the security created by it under the
deed of debenture, the xxxx xxxxxx'x caveat and the charge, and to provide
BNM with any information they may require from time to
time.
|
24.29
|
Pensions
|
|
(a)
|
The
Company shall ensure that all pension schemes maintained or operated by or
for the benefit of any member of the Group and/or any of its
employees:
|
|
(i)
|
are
maintained and operated in all material respects in accordance with all
applicable laws and contracts and their governing provisions;
and
|
|
(ii)
|
are
funded substantially in accordance with the governing provisions of the
scheme with any funding shortfall advised by actuaries of recognised
standing being rectified in accordance with those governing
provisions
|
|
except where
failure to maintain or fund could not be reasonably likely to have a
Material Adverse
Effect.
|
|
(b)
|
The Company shall promptly notify the Agent of any material change in the rate of contributions to any pension schemes referred to in paragraph (a) above paid or recommended to be paid (whether by the scheme actuary or otherwise) or required (by law or otherwise). |
24.30
|
Perfection
The Obligors shall complete
any applicable Perfection Requirements in accordance with the Finance
Documents and, where a time limit is imposed by law or regulation, in any
event within such time limit.
|
24.31
|
Limitations
of General Undertakings
|
|
(a)
|
Notwithstanding
the introductory provision of Clause 24 (General
Undertakings) (but with-out prejudice to the performance of any of
the obligations under Clause 24 (General
Undertakings) by any Obligor whose relevant jurisdiction is not the
Federal Republic of Germany), the undertakings set out in Clauses 24.4
(Disposals),
24.5 (Merger),
24.6 (Change
of Business), 24.11 (Acquisitions),
and 24.13 (Dividends)
(such undertakings, the "Relevant
Undertakings") are not and shall not be given by any German Obligor
whose relevant jurisdiction is the Federal Republic of Germany (each a
"German
Obligor"). However:
|
|
(i)
|
each
German Obligor shall give to the Agent not less than 20 Business Days'
prior written notice if it or any of its Subsidiaries proposes to take
|
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|
|
or
permit any action or circumstance which, if all the Relevant Undertakings
had been given by that German Obligor on the Closing Date and had
thereafter remained in force, would constitute a breach of any of the
Relevant Undertakings by a member of the German Group. On receipt of any
such notice, the Agent shall without undue delay send a copy to each
Lender;
|
|
(ii)
|
the
Agent shall be entitled, within 10 Business Days of receipt of a notice
under sub-paragraph (a) above, to request that the relevant German Obligor
supply to the Agent in sufficient copies for the Lenders, such further
relevant information as the Agent (acting reasonably) may consider
necessary for the purposes of this Clause 24.31 (Limitations
of General Undertakings) and such German Obligor shall supply such
further information promptly and in any event within 10 Business Days of
the date of request therefore;
|
|
(iii)
|
if
any Lender considers that the relevant action or circumstance (taken alone
or together with other actions or circumstances, whether or not permitted
hereunder), may have a Material Adverse Effect or materially and adversely
affects its interests as a Lender under the Facility Documents, it may so
notify the Agent in writing;
|
|
(iv)
|
if, by not later than the date 10
Business Days after receipt by the Agent of a notice pursuant to
sub-paragraph (i) above (or, if later and additional information has been
requested pursuant to sub-paragraph (ii) above, by not later than the date
10 Business Days after receipt by the Agent of such additional
information if received within the prescribed time or the date 10 Business
Days after the request therefore if not), the Agent has received notices
pursuant to sub-paragraph (iii) above from Lenders which constitute the
Majority Lenders, the Agent shall promptly notify the Borrower and the
Lenders; and
|
|
(v)
|
if
the Agent gives notice to the Borrower pursuant to sub-paragraph (iv)
above or the relevant action is undertaken or circumstance is permitted
before the date 2 Business Days after the latest time for the receipt by
the Agent of notices pursuant to sub-paragraph (iv) above, the undertaking
of the relevant action or permitting of the relevant circumstances shall
immediately constitute an Event of Default provided
that, for the avoidance of doubt, no failure of any German Obligor
to duly perform or comply with any obligation under a Relevant Undertaking
shall of itself constitute an Event of
Default.
|
|
(b)
|
If,
in the opinion of the Agent or the Majority Lenders any of the measures
referred to in the Relevant Undertaking when implemented by a member of
the Group would negatively affect the risk assessment of the Lenders in
respect of the ability of relevant German Obligor to perform its
obligations under the Finance Documents, the Parent will ensure that the
relevant German Obligor will, to the fullest extent legally permissible,
provide additional Security to the
|
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|
|
Finance
Parties as soon as possible but in any event within 20 Business Days
following request for the same by the
Agent.
|
24.32
|
Amendment
of Constitutional Documents and
Shares
|
|
(a)
|
Each
member of the Group granting Security over Shares (the "Pledgor")
in another Group company shall not without the prior written consent of
the Security Trustee (such consent not to be unreasonably delayed or
withheld) vote in favour of, and undertakes to procure that the Group
company whose Shares it has granted Security over (the "Pledgee")
shall not without the prior written consent of the Security Trustee pass a
resolution whereby:
|
|
(i)
|
the
constitutional documents of the Pledgee would otherwise be changed as
regards the Pledgee's capital structure in a way which would adversely
affect the Security Trustee's or the Secured Parties' rights under the
relevant Security Document;
|
|
(ii)
|
subject
to Clause 24.13 (Dividends),
the Pledgee would materially change its policy with respect to dividends
(unless such change is required in order to comply with any applicable law
or regulation);
|
|
(iii)
|
where
applicable, the objects clause of the Pledgee contained in its current
constitutional documents would be
amended;
|
|
(iv)
|
the
relevant Shares would be modified or altered in a way which would
adversely affect the Security Trustee's or the Secured Parties' rights
under the relevant Security Documents;
and
|
|
(v)
|
any
term of the relevant Security Document and/or this Agreement would be
violated.
|
|
(b)
|
In
the event that a Pledgee seeks to issue new shares or quotas the Company
will procure that any such new shares are only issued to existing
shareholders in such Pledgee pro-rata to their existing shareholding as at
the date of the proposed issuance.
|
|
(c)
|
In
the event that the Pledgee changes its constitutional documents as regards
its capital structure (with the prior written consent of the Security
Trustee), the Security created over the Shares of the Pledgee shall to the
extent possible under applicable laws automatically extend to any new
shares, quotas, participation certificates or similar right or rights
attaching thereto, created in connection with such change, and the Pledgor
granting Security over the Shares undertakes to comply fully with all
instructions received from the Security Trustee acting in the name and on
behalf of the Secured Parties to perfect such Security granted under the
Security Document.
|
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24.33
|
General
Property Undertakings
Each member of the Group that
has granted Security over Real Property
shall:
|
|
(a)
|
repair
and keep in good and substantial repair and condition, in a manner
consistent with a reasonably prudent owner, all the Real Property at any
time forming part of the Transaction
Security;
|
|
(b)
|
comply
with and observe and perform (a) all applicable requirements of all
planning and environmental legislation, regulations and by-laws relating
to the Real Property, (b) any conditions attaching to any planning
permissions relating to or affecting the Real Property and (c) any notices
or other orders made by any planning, environmental or other public body
in respect of all or any part of the Real Property as would a prudent
owner/operator of such Real
Property.
|
24.34
|
German
Debt Pushdown
The Company may undertake a
corporate reorganisation and debt push down in Germany as described below
or substantially as described below or as otherwise agreed to by the Agent
acting on the instructions of the Majority Lenders provided that following
such corporate reorganisation and debt push down the Finance Parties will
enjoy the same or equivalent security and recourse under the relevant
Security Documents and this Agreement as they enjoyed immediately prior
thereto.
The corporate reorganisation
and debt push down referred to above is as
follows:
|
|
(a)
|
Flexsys
AG shall sell all, or substantially all, of its 50 per cent. equity
interest in Flexsys Verkauf GmbH to Flexsys Verwaltungs- under
Beteiligungs GmbH;
|
|
(b)
|
Flexsys
AG shall distribute a dividend of all proceeds from the sale of its
interest in Flexsys Verkauf GmbH to the Company. The amount is to be equal
to the net distributable earnings as determined and confirmed by Flexsys
AG statutory auditors under the relevant balance
sheet;
|
|
(c)
|
the
Company shall create New German Hold Co with nominal
capital;
|
|
(d)
|
New
German Hold Co shall accede to this Agreement as an Additional Borrower
and as an Additional Guarantor in accordance with this Agreement and
comply with all representations and undertakings required of it in such
capacities under Section 8 (Representations,
Undertakings and Events of Default) of this
Agreement;
|
|
(e)
|
in
accordance with Clause 27.4 (Additional
Guarantors), New German Hold Co shall grant Security over its
shares in favour of the Lenders;
|
|
(f)
|
New
German Hold Co shall borrow under any part of Facility
B;
|
|
(g)
|
the
Company shall sell/or contribute shares held in Flexsys Verwaltung- und
Beteiligungs GmbH to New German Hold
Co;
|
|
(h)
|
the
Company shall provide all funds received either as a dividend from Flexsys
AG or from the sale of shares in Flexsys Verwaltungs- und Beteiligungs
GmbH
|
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CONFORMED
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|
|
to
Flexsys Co-ordination Centre N.V. either by way of a capital contribution
or an intercompany loan;
|
|
(i)
|
Flexsys
Co-ordination Centre N.V. shall apply all funds received from the Company
in accordance with the step outlined in paragraph (h) above towards
repayment of its Utilisations outstanding under either
Facility;
|
|
(j)
|
Flexsys
Co-ordination Centre N.V. may transfer by way of novation a portion of its
borrowings under Facility A to the New German Hold Co. This
transfer will be subject to all necessary measures to be taken by the
Obligors and the Lenders to preserve the existing
Security.
|
24.35
|
Conditions
subsequent
The Company will ensure that
by the latest date stipulated therefor in Part II of Schedule 2 it will
deliver to the Agent all of the documents and other evidence listed in
Part II of Schedule 2 and will complete all of the matters referred to
therein.
|
25.
|
Each of the events or
circumstances set out in this Clause 25 is an Event of Default (save for
Clause 25.19 (Acceleration))
(whether or not caused by any reason whatsoever outside the control of any
Obligor or any other person).
|
25.1
|
Non-payment
An Obligor does not pay on the
due date any amount payable pursuant to a Finance Document at the place at
and in the currency in which it is expressed to be payable
unless:
|
|
(a)
|
its
failure to pay is caused by:
|
|
(i)
|
administrative
or technical error; or
|
|
(ii)
|
a
Disruption Event; and
|
|
(b)
|
payment
is made within 5 Business Days of its due
date.
|
25.2
|
Financial
covenants and indebtedness
Any requirement of Clause 23
(Financial
covenants) is not satisfied or any Obligor does not comply with any
provision of Clause 24.14 (Indebtedness)
or Clause 24.35 (Conditions
Subsequent).
|
25.3
|
Company
and Material Group Member profit
The requirements of
Clause 24.26 (Company
and Material Group Member Profit) are not satisfied and are not
remedied within 45 Business Days (or such longer period as the Majority
Lenders may agree).
|
25.4
|
Other
obligations
|
|
(a)
|
An
Obligor does not comply with any provision of the Finance Documents (other
than those referred to in Clause 25.1 (Non-payment),
Clause 25.2 (Financial
covenants and Indebtedness) and Clause 25.3 (Company
and Material Group Member
profit)).
|
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CONFORMED
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|
(b)
|
No
Event of Default under paragraph (a) above will occur if the failure to
comply is capable of remedy and is remedied within 15 Business Days of the
Agent giving notice to the Company or the Company becoming aware of the
failure to comply.
|
25.5
|
Misrepresentation
Any representation or
statement made or deemed to be made by an Obligor in the Finance Documents
or any other document delivered by or on behalf of any Obligor under or in
connection with any Finance Document is or proves to have been incorrect
or misleading in any material respect when made or deemed to be made and,
if capable of remedy within the grace period referred to below, is not
remedied to the reasonably satisfaction of the Agent within 30 days
from the earlier of notice thereof to the Company and the relevant Obligor
becoming aware of it.
|
25.6
|
Cross
default
|
|
(a)
|
Any
Financial Indebtedness of any member of the Group is not paid when due nor
within any originally applicable grace
period.
|
|
(b)
|
Any
Financial Indebtedness of any member of the Group is declared to be or
otherwise becomes due and payable prior to its specified maturity as a
result of an event of default (however
described).
|
|
(c)
|
Any
commitment for any Financial Indebtedness of any member of the Group is
cancelled or suspended by a creditor of any member of the Group as a
result of an event of default (however
described).
|
|
(d)
|
Any
creditor of any member of the Group becomes entitled to declare any
Financial Indebtedness of any member of the Group due and payable prior to
its specified maturity as a result of an event of default (however
described).
|
|
(e)
|
No Event of Default will occur under
this Clause 25.6 if the aggregate amount of Financial Indebtedness or
commitment for Financial Indebtedness falling within
paragraphs (a) to (d) above is less than US$5,000,000 (or its equivalent
in any other currency or
currencies).
|
25.7
|
Insolvency
|
|
(a)
|
A
member of the Group is unable or admits inability to pay its debts as they
fall due, suspends making payments on any of its debts or, by reason of
actual or anticipated financial difficulties, commences negotiations with
one or more of its creditors with a view to rescheduling any of its
indebtedness (including, without limitation, in respect of a member of the
Group incorporated in Germany it is unable to pay its debts as they fall
due (Zahlungsunfähigkeit)
or is deemed unable to pay its debts as they fall due (drohende
Zahlungsunfähigkeit) in the meaning of sections 17 and 18 of the
German Insolvency Code (Insolvenzordnung)).
|
|
(b)
|
Save
in relation to Flexsys Rubber Chemicals Limited, the value of the assets
of any material Subsidiary of the Group is less than its liabilities
(taking into account contingent and prospective liabilities) (including,
without limitation, in respect of a member of the Group incorporated in
Germany it is over-indebted
|
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CONFORMED
COPY
|
|
(überschuldet)
in the meaning of section 19 of the German Insolvency Code (Insolvenzordnung)).
|
|
(c)
|
A
moratorium is declared in respect of any indebtedness of any member of the
Group.
|
|
(d)
|
Any
member of the Group which conducts business in France is in a state of
cessation
des paiements, or any member of the Group becomes insolvent for the
purpose of any insolvency law.
|
|
(e)
|
Any
Obligor shall in any U.S.
jurisdiction:
|
|
(i)
|
apply
for, or consent to, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator of itself or of all
or a substantial part of its
property;
|
|
(ii)
|
make
a general assignment for the benefit of its
creditors;
|
|
(iii)
|
commence
a voluntary case under Title 11 of the United States of America Code
entitled Bankruptcy (or any successor thereof), as
amended;
|
|
(iv)
|
file
a petition with respect to itself seeking to take advantage of any other
law relating to bankruptcy, insolvency, reorganisation, liquidation,
dissolution, arrangement or winding up, or composition or readjustment of
debts; or
|
|
(v)
|
take
any corporate action for the purpose of effecting any of the foregoing
with respect to itself.
|
25.8
|
Insolvency
proceedings
|
|
|
(a)
|
Any
corporate action, legal proceedings or other procedure or step is taken in
relation to:
|
|
(i)
|
the
suspension of payments, a moratorium of any indebtedness (including concordat
judiciaire/gerechtelijk akkoord) winding-up, dissolution,
administration, bankruptcy (including faillite/faillissement),
or reorganisation (by way of voluntary arrangement, scheme of arrangement
or otherwise) of any Obligor or Material Group
Member;
|
|
(ii)
|
a
composition, compromise, assignment or arrangement with any creditor of
any Obligor or Material Group Member. In relation to an Obligor
incorporated in Belgium, these concepts shall mean a "minnelijk
akkoord met alle schuldeisers" /'accord amiable avec tous les
créanciers";
|
|
(iii)
|
the
appointment of a liquidator, receiver, administrative receiver,
administrator, an administrateur judiciaire/gerechtelijk bestuurder, a
commissaire spécial/speciaal commissaris, administrateur
provisoire/voorlopige bewindvoerder, compulsory manager or other similar
officer in respect of any Obligor or Material Group Member or any of its
assets; or
|
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CONFORMED
COPY
|
(iv)
|
the
enforcement of any Security over any assets of any Obligor or Material
Group Member where such Security secures Financial Indebtedness in excess
of EUR2,500,000 (or its equivalent in another currency or
currencies),
|
|
(v)
|
or
any analogous procedure or step is taken in any jurisdiction, in
particular (in relation to a German Obligor or a Material Group Member
incorporated in Germany and in relation to Flexsys
SARL):
|
|
(A)
|
a
petition for insolvency proceedings in respect of its assets (Antrag
auf Eröffnung eines Insolvenzverfahrens) is filed or any event
occurs which constitutes a mandatory cause for the initiation of
insolvency proceedings (Eröffnungsgrund)
as set out in sections 17 and 19 of the German Insolvency Code (Insolvenzordnung)
or;
|
|
(B)
|
actions
are taken pursuant to section 21 of the German Insolvency Code by the
competent court.
|
|
(C)
|
any
member of the Group commences proceedings for conciliation in accordance
with article L.611-4 to L.611-15 of the French Code
de commerce.
|
|
(D)
|
a
judgment for sauvegarde,
redressement judiciare, cession totale de l'entreprise or liquidiation
judiciaire is entered in relation to any member of the Group under
articles L.620-1 to L.670-8 of the French Code de
commerce.
|
|
(b)
|
Paragraph
(a) above shall not apply to any winding-up petition which is frivolous or
vexatious and which is discharged, stayed or dismissed within 21 days
of commencement or, if earlier, the date on which it is
advertised.
|
|
(c)
|
In
respect of any Obligor, a proceeding or case shall be commenced, without
the application or consent of such Obligor, in any US court of competent
jurisdiction, seeking:
|
|
(i)
|
its
reorganisation, liquidation, dissolution, arrangement or winding-up or the
composition or readjustment of its
debts;
|
|
(ii)
|
the
appointment of a receiver, custodian, trustee, examiner, liquidator or the
like of the Obligor or of all or any substantial part of its property;
or
|
|
(iii)
|
similar
relief in respect of any Obligor under any law relating to the bankruptcy
insolvency, reorganisation, winding-up or composition or adjustment of
debts,
|
|
|
and any
such proceeding or case referred to in paragraphs (i) to (iii) above shall
continue undismissed, or an order, judgment or decree approving or
ordering any of the foregoing shall be entered and continue unstayed and
in effect, for a period of 21 or more days, or an order for relief against
such Obligor shall be
|
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CONFORMED
COPY
|
entered in
an involuntary case under Title 11 of the United States of America Code
entitled Bankruptcy (or any successor thereto) as
amended.
|
25.9
|
Creditors'
process
Any
expropriation, attachment, sequestration, distress or execution affects
any asset or assets of a member of the Group and is not discharged within
21 days.
|
25.10
|
Unlawfulness
It
is or becomes unlawful for an Obligor or any other member of the Group
that is a party to the Intercreditor Agreement to perform any of its
obligations under the Finance Documents or any Transaction Security
created or expressed to be created or evidenced by the Security Documents
ceases to be effective or any subordination created under the
Intercreditor Agreement ceases to be
effective.
|
25.11
|
Repudiation
An
Obligor repudiates a Finance Document or any of the Transaction Security
or evidences an intention to repudiate a Finance Document or any of the
Transaction Security.
|
25.12
|
Governmental
Intervention
By or under the authority of
any government:
|
|
(a)
|
the
management of any member of the Group is wholly or partially displaced or
the authority of any member of the Group in the conduct of its business is
wholly or partially curtailed; or
|
|
(b)
|
all or a majority of the issued
shares of any member of the Group or the whole or any part (the book value
of which is 20 per cent. or more of the book value of the
whole) of its revenues or assets is seized, nationalised, expropriated or
compulsorily
acquired.
|
25.13
|
Transaction
Security
|
|
(a)
|
Any
Obligor fails to perform or comply with any of the obligations assumed by
it in the Security Documents.
|
|
(b)
|
At
any time any of the Transaction Security is or becomes unlawful or is not,
or ceases to be legal, valid, binding or enforceable or otherwise ceases
to be effective, unless otherwise permitted by the Finance
Documents.
|
25.14
|
Change
of Ownership
The Company ceases to own,
directly or indirectly, the entire issued share capital of its
Subsidiaries as at the date hereof, other than Flexsys America
Co.
|
25.15
|
Material
adverse change
Any event or circumstance
occurs which the Majority Lenders believe is reasonably likely to have a
Material Adverse Effect.
|
25.16
|
Cessation
of business
An
Obligor ceases, or threatens to cease, to carry on all or a substantial
part of its business.
|
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COPY
25.17
|
Intercreditor
Agreement
|
|
(a)
|
Any
party to the Intercreditor Agreement (other than a Finance Party or an
Obligor) fails to comply with the provisions of, or does not perform its
obligations under, the Intercreditor Agreement;
or
|
|
(b)
|
a
representation or warranty given by that party in the Intercreditor
Agreement is incorrect in any material
respect,
|
and, if
the non-compliance or circumstances giving rise to the misrepresentation are
capable of remedy, it is not remedied within 15 days of the earlier of the
Agent giving notice to that party or that party becoming aware of the
non-compliance or misrepresentation.
25.18
|
Employee
Plans
|
Any ERISA
Event shall have occurred, or Clause 24.21 (Compliance
with ERISA) shall be breached, and the liability of a U.S. Obligor or its
ERISA Affiliates, either individually or in the aggregate, related to such ERISA
Event or breaches, individually or when aggregated with all other ERISA Events,
and all such breaches would have or would be reasonably expected to have a
Material Adverse Effect.
25.19
|
Acceleration
|
|
(a)
|
On
and at any time after the occurrence of an Event of Default which is
continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice in writing to the
Company:
|
|
(i)
|
cancel
the Total Commitments whereupon they shall immediately be cancelled;
and
|
|
(ii)
|
declare
that all or part of the Utilisations, together with accrued interest, and
all other amounts accrued or outstanding under the Finance Documents be
immediately due and payable, whereupon they shall become immediately due
and payable; and/or
|
|
(iii)
|
declare
that all or part of the Utilisations be payable on demand, whereupon they
shall immediately become payable on demand by the Agent on the
instructions of the Majority Lenders;
and
|
|
(iv)
|
exercise,
or direct the Security Trustee to exercise, any or all of its rights,
remedies and powers under any of the Finance Documents;
and/or
|
|
(v)
|
declare
that full cash cover in respect of each Letter of Credit is immediately
due and payable whereupon it shall become immediately due and
payable,
|
but,
notwithstanding the foregoing, upon the occurrence of an Event of Default
specified in Clause 25.8 (Insolvency
proceedings), the Facility shall be cancelled and all Utilisations,
together with accrued interest, and all other amounts accrued or outstanding
under the Finance Documents and full cash cover in respect of each Letter of
Credit shall become immediately due and
103
CONFORMED
COPY
payable,
in each case without declaration, notice or demand by or to any
persons.
|
(b)
|
If
an Event of Default under paragraph (e) of Clause 25.7 (Insolvency)
or paragraph (a)(v)(C) or (a)(v)(D) of Clause 25.8 (Insolvency
Proceedings) shall occur in respect of any Obligor and to the
extent of the imposition of any automatic stay, then without notice to
such Obligor or any other act by the Agent or any other person, the loans
to such Obligor, interest thereon and all other amounts owed by such
Obligor under the Finance Documents shall become immediately due and
payable without presentment, demand, protest or notice of any kind, all of
which are expressly waived.
|
104
CONFORMED
COPY
SECTION
9
CHANGES
TO PARTIES
26.1
|
Assignments
and transfers by the Lenders
|
Subject
to this Clause 26, a Lender (the "Existing
Lender") may:
|
(a)
|
assign
any of its rights; or
|
|
(b)
|
transfer
by novation any of its rights and
obligations,
|
to
another bank or financial institution or to a trust, fund or other entity which
is regularly engaged in or established for the purpose of making, purchasing or
investing in loans, securities or other financial assets (the "New
Lender").
26.2
|
Conditions
of assignment or transfer
|
|
(a)
|
In
relation to Facility B only, the consent of the Company and in respect of
a Letter of Credit the consent of the relevant Issuing Bank is required
for an assignment or transfer by an Existing Lender, unless the assignment
or transfer is to another Lender or an Affiliate of a Lender or an Event
of Default is continuing.
|
|
(b)
|
The
consent of the Company (and, if relevant, the consent of the relevant
Issuing Bank) to an assignment or transfer referred to in paragraph (a)
above must not be unreasonably withheld or delayed. The Company
will be deemed to have given its consent five Business Days after the
Existing Lender has requested it unless consent is expressly refused by
the Company within that time.
|
|
(c)
|
The
consent of the Company (and, if relevant, the consent of the relevant
Issuing Bank) to an assignment or transfer referred to in paragraph (a)
above must not be withheld solely because the assignment or transfer may
result in an increase to the Mandatory
Cost.
|
|
(d)
|
The
minimum amount transferred to a New Lender in relation to a
Loan/Commitment made to any Borrower shall be at least the equivalent of
EUR 50,000 or if it is less, the New Lender shall confirm in writing
to the relevant Borrower that it, the New Lender, is a professional market
party within the meaning of the Dutch
FSA.
|
|
(e)
|
An
assignment will only be effective
on:
|
|
(i)
|
receipt
by the Agent of written confirmation from the New Lender (in form and
substance satisfactory to the Agent) that the New Lender will assume the
same obligations to the other Finance Parties and the other Secured
Parties as it would have been under if it was an Original
Lender;
|
|
(ii)
|
performance
by the Agent of all necessary "know your customer" or other similar checks
under all applicable laws and regulations relation to
such
|
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CONFORMED
COPY
|
assignment
to a New Lender, the completion of which the Agent shall promptly notify
to the Existing Lender and the New
Lender;
|
|
(iii)
|
the
New Lender entering into the documentation required for it to accede as a
party to the Intercreditor Agreement;
and
|
|
(iv)
|
the
New Lender entering into the documentation required for it to accede as a
party to the Security Documents if required under the laws of the Relevant
Jurisdiction.
|
|
(f)
|
A
transfer will only be effective if the New Lender enters into the
documentation required for it to accede as a party to the Intercreditor
Agreement and the procedure set out in Clause 26.5 (Procedure
for transfer) is complied
with.
|
|
(g)
|
If:
|
|
(i)
|
a
Lender assigns or transfers any of its rights or obligations under the
Finance Documents or changes its Facility Office;
and
|
|
(ii)
|
as
a result of circumstances existing at the date the assignment, transfer or
change occurs, an Obligor would be obliged to make a payment to the New
Lender or Lender acting through its new Facility Office under Clause 15
(Tax
gross-up and indemnities) or Clause 16 (Increased
costs),
|
then the
New Lender or Lender acting through its new Facility Office is only entitled to
receive payment under those Clauses to the same extent as the Existing Lender or
Lender acting through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
|
(h)
|
Subject
to the terms of this Agreement, the obligations of each Guarantor under
this Agreement will continue in full force and effect following any
novation (novation)
within the meaning of article 1271 et
seq. of the French and Belgian Code
civil. In the event of an assignment, a transfer, a
novation or disposal of all part of the rights and obligations by any
Lender, each Lender expressly reserves the rights, powers, privileges and
actions that it enjoys under any Security Documents governed by French and
Belgian law in favour of its assignees, or, as the case may be, its
successors, in accordance with the provisions of article 1278 et
seq. of the French and Belgian Code
civil.
|
26.3
|
Assignment
or transfer fee
|
The New
Lender shall, on the date upon which an assignment or transfer takes effect, pay
to the Agent (for its own account) a fee of US$2,500.
26.4
|
Limitation
of responsibility of Existing
Lenders
|
|
(a)
|
Unless
expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender
for:
|
|
(i)
|
the
legality, validity, effectiveness, adequacy or enforceability of the
Finance Documents, the Transaction Security or any other
documents;
|
106
CONFORMED
COPY
|
(ii)
|
the
financial condition of any Obligor;
|
|
(iii)
|
the
performance and observance by any Obligor of its obligations under the
Finance Documents or any other documents;
or
|
|
(iv)
|
the
accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or any other
document,
|
and any
representations or warranties implied by law are excluded.
|
(b)
|
Each
New Lender confirms to the Existing Lender and the other Finance Parties
that it:
|
|
(i)
|
has
made (and shall continue to make) its own independent investigation and
assessment of the financial condition and affairs of each Obligor and its
related entities in connection with its participation in this Agreement
and has not relied exclusively on any information provided to it by the
Existing Lender in connection with any Finance Document;
and
|
|
(ii)
|
will
continue to make its own independent appraisal of the creditworthiness of
each Obligor and its related entities whilst any amount is or may be
outstanding under the Finance Documents or any Commitment is in
force.
|
|
(c)
|
Nothing
in any Finance Document obliges an Existing Lender
to:
|
|
(i)
|
accept
a re-transfer from a New Lender of any of the rights and obligations
assigned or transferred under this Clause 26;
or
|
|
(ii)
|
support
any losses directly or indirectly incurred by the New Lender by reason of
the non-performance by any Obligor of its obligations under the Finance
Documents or otherwise.
|
26.5
|
Procedure
for transfer
|
|
(a)
|
Subject
to the conditions set out in Clause 26.2 (Conditions
of assignment or transfer) a transfer is effected in accordance
with paragraph (c) below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing Lender and
the New Lender and the Agent makes a corresponding entry in the Register
pursuant to Clause 26.9 (The
Register). The Agent shall, subject to paragraph (b)
below as soon as reasonably practicable after receipt by it of a duly
completed Transfer Certificate appearing on its face to comply with the
terms of this Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer Certificate and make such corresponding
entry in the Register.
|
|
(b)
|
The
Agent shall only be obliged to execute a Transfer Certificate delivered to
it by the Existing Lender and the New Lender and make a corresponding
entry in the Register once it is satisfied it has complied with all
necessary "know your customer" or other similar checks under all
applicable laws and regulations in relation to the transfer to such New
Lender.
|
107
CONFORMED
COPY
|
(c)
|
On
the Transfer Date:
|
|
(i)
|
to
the extent that in the Transfer Certificate the Existing Lender seeks to
transfer by novation its rights and obligations under the Finance
Documents and in respect of the Transaction Security each of the Obligors
and the Existing Lender shall be released from further obligations towards
one another under the Finance Documents and in respect of the Transaction
Security and their respective rights against one another shall be
cancelled (being the "Discharged
Rights and Obligations");
|
|
(ii)
|
each
of the Obligors and the New Lender shall assume obligations towards one
another and/or acquire rights against one another which differ from the
Discharged Rights and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of that Obligor and
the Existing Lender;
|
|
(iii)
|
the
Agent, the Arranger, the Security Trustee, the New Lender and other
Lenders shall acquire the same rights and assume the same obligations
between themselves and in respect of the Transaction Security as they
would have acquired and assumed had the New Lender been an Original Lender
with the rights and/or obligations acquired or assumed by it as a result
of the transfer and to that extent the Agent, the Arranger, the Security
Trustee and the Existing Lender shall each be released from further
obligations to each other under the Finance
Documents;
|
|
(iv)
|
the
benefit of each Security Document shall be maintained in favour of the New
Lender; and
|
|
(v)
|
the
New Lender shall become a Party as a
"Lender".
|
26.6
|
Copy
of Transfer Certificate to
Company
|
The Agent
shall, as soon as reasonably practicable after it has executed a Transfer
Certificate, send to the Company a copy of that Transfer
Certificate.
26.7
|
Disclosure
of information
|
|
(a)
|
Any
Lender may disclose to any of its Affiliates and any other
person:
|
|
(i)
|
to
(or through) whom that Lender assigns or transfers (or may potentially
assign or transfer) all or any of its rights and obligations under this
Agreement;
|
|
(ii)
|
with
(or through) whom that Lender enters into (or may potentially enter into)
any sub-participation in relation to, or any other transaction under which
payments are to be made by reference to, this Agreement or any Obligor;
or
|
|
(iii)
|
to
whom, and to the extent that, information is required to be disclosed by
any applicable law or regulation,
|
108
CONFORMED
COPY
|
any
information about any Obligor, the Group and the Finance Documents as that
Lender shall consider appropriate if the recipient has agreed with the
relevant Lender to keep the document or information confidential on the
same terms (with consequential changes) as are set out in paragraph (b)
below.
|
|
(b)
|
Subject
to paragraph (a) above, each Finance Party shall keep confidential and
shall not, without the prior consent of the Company, use any information
(other than information which is publicly available other than as a result
of a breach by that Finance Party of this paragraph (b)) supplied by or on
behalf of any Obligor under the Finance Documents otherwise than in
connection with the Finance Documents. However, the restriction
set out in this paragraph (b) shall not apply to, and each Finance Party
shall be entitled to disclose,
information:
|
|
(i)
|
in
connection with any legal proceedings arising out of or in connection with
a Finance Document; or
|
|
(ii)
|
if
required to do so by an order of a court of competent jurisdiction whether
under any procedure for discovering documents or otherwise;
or
|
|
(iii)
|
pursuant
to any law or regulation in accordance with which that Lender is required
or accustomed to act; or
|
|
(iv)
|
to
a governmental, banking, taxation or other regulatory authority of any
competent jurisdiction; or
|
|
(v)
|
to
its accountants or legal advisers.
|
Notwithstanding
any of the provisions of the Finance Documents, the Obligors and the Finance
Parties hereby agree that each Party and each employee, representative or other
agent of each Party may disclose to any and all persons, without limitation of
any kind, the "tax
structure" and "tax
treatment" (in each case within the meaning of the U.S. Treasury
Regulation Section 1.6011-4) of the Facility and any materials of any kind
(including opinions or other tax analyses) that are provided to any of the
foregoing relating to such tax structure and tax treatment.
26.8
|
Assignment
to Federal Reserve Bank
|
Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement, without notice to or consent of any
Party, to any U.S. Federal Reserve Bank provided
that (i) no Lender shall be relieved of any of its obligations under this
Agreement as a result of any such assignment and pledge and (ii) in no event
shall such U.S. Federal Reserve Bank be considered to be a "Lender" or be
entitled to require the assigning Lender to take or omit to take any action
under this Agreement.
26.9
|
The
Register
|
For U.S. federal income tax purposes only,
the Agent, acting solely for this purpose as an agent of the Obligors, shall
maintain at one of its offices a copy of each Transfer Certificate delivered to
it and a register (the "Register")
for the recordation of the names and addresses of each Lender and the
Commitments of and obligations owing to each Lender. Without
limitation of any other provision of this Clause 26 (Changes
to the
109
CONFORMED
COPY
Lenders),
no transfer shall be effective until recorded in the Register. The
entries in the Register shall be conclusive absent manifest error and each
Obligor, the Agent and each Lender may treat each person whose name is recorded
in the Register as a Lender notwithstanding any notice to the
contrary. The Register shall be available for inspection by each
Obligor at any reasonable time and from time to time upon reasonable prior
notice.
27.1
|
Assignment
and transfers by Obligors
|
No
Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
27.2
|
Additional
Borrowers
|
|
(a)
|
Subject
to compliance with the provisions of paragraphs (c) and (d) of Clause 22.8
("Know
your customer" checks), the Company may request that any of its
Subsidiaries becomes an Additional Borrower. That Subsidiary
shall become an Additional Borrower
if:
|
|
(i)
|
all
the Lenders approve the addition of that Subsidiary (such approval not to
be unreasonably withheld or
delayed);
|
|
(ii)
|
the
Company delivers to the Agent a duly completed and executed Accession
Letter and duly completed and executed documentation required for it to
accede as a party to the Intercreditor
Agreement;
|
|
(iii)
|
the
Subsidiary is (or becomes) a Guarantor prior to becoming a
Borrower;
|
|
(iv)
|
the
Company confirms that no Default is continuing or would occur as a result
of that Subsidiary becoming an Additional Borrower;
and
|
|
(v)
|
the
Agent has received all of the documents and other evidence listed in Part
I of Schedule 2 (Conditions
Precedent) in relation to that Additional Borrower, each in form
and substance satisfactory to the
Agent.
|
|
(b)
|
The
Agent shall notify the Company and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to it)
all the documents and other evidence listed in Part I of Schedule 2 (Conditions
Precedent).
|
27.3
|
Resignation
of a Borrower
|
|
(a)
|
The
Company may request that a Borrower (other than the Company) ceases to be
a Borrower by delivering to the Agent a Resignation
Letter.
|
|
(b)
|
The
Agent shall accept a Resignation Letter and notify the Company and the
Lenders of its acceptance if:
|
|
(i)
|
no
Default is continuing or would result from the acceptance of the
Resignation Letter (and the Company has confirmed this is the case);
and
|
110
CONFORMED
COPY
|
(ii)
|
the
Borrower is under no actual or contingent obligations as a Borrower under
any Finance Documents,
|
whereupon
that company shall cease to be a Borrower and shall have no further rights or
obligations under the Finance Documents and the Security Trustee shall be
instructed by the Agent to release any Transaction Security granted by the
Borrower, in accordance with Clause 29.22 (Releases).
27.4
|
Additional
Guarantors
|
|
(a)
|
Subject
to compliance with the provisions of Clause 22.8 ("Know
your customer" checks), the Company may request that any of its
Subsidiaries become an Additional
Guarantor.
|
|
(b)
|
The
Company shall procure that any other member of the Group which is a
Material Group Member shall as soon as possible after becoming a Material
Group Member become an Additional Guarantor and, subject to the Agreed
Security Principles, grant Security as the Agent may require and shall
accede to the Intercreditor
Agreement.
|
|
(c)
|
A
member of the Group shall become an Additional Guarantor
if:
|
|
(i)
|
the
Company delivers to the Agent a duly completed and executed Accession
Letter; and
|
|
(ii)
|
the
Agent has received all of the documents and other evidence listed in Part
I of Schedule 2 (Conditions
Precedent) in relation to that Additional Guarantor, each in form
and substance satisfactory to the
Agent.
|
|
(d)
|
The
Agent shall notify the Company and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to it)
all the documents and other evidence listed in Part II of Schedule 2
(Conditions
Precedent).
|
27.5
|
Repetition
of Representations
|
Delivery
of an Accession Letter constitutes confirmation by the relevant Subsidiary that
the Repeating Representations are true and correct in relation to it as at the
date of delivery as if made by reference to the facts and circumstances then
existing.
27.6
|
Resignation
of a Guarantor
|
|
(a)
|
The
Company may request that a Guarantor (other than the Company) ceases to be
a Guarantor by delivering to the Agent a Resignation
Letter.
|
|
(b)
|
The
Agent shall accept a Resignation Letter and notify the Company and the
Lenders of its acceptance if:
|
|
(i)
|
no
Default is continuing or would result from the acceptance of the
Resignation Letter (and the Company has confirmed this is the case);
and
|
|
(ii)
|
all
the Lenders have consented to the Company's
request.
|
111
CONFORMED
COPY
|
(c)
|
If
the resignation of a Guarantor is accepted in accordance with paragraph
(b) above the Agent shall instruct the Security Trustee to release any
Transaction Security granted by that Guarantor, in accordance with Clause
29.22 (Releases).
|
112
CONFORMED
COPY
SECTION
10
THE
FINANCE PARTIES
28.1
|
Appointment
of the Agent
|
|
(a)
|
Each
other Finance Party (other than the Security Trustee) appoints the Agent
to act as its agent under and in connection with the Finance
Documents.
|
|
(b)
|
Each
other Finance Party authorises the Agent to exercise the rights, powers,
authorities and discretions specifically given to the Agent under or in
connection with the Finance Documents together with any other incidental
rights, powers, authorities and
discretions.
|
|
(c)
|
Each
other Finance Party hereby releases the Agent to the extent permissible
under each Finance Party's respective constitutional documentation from
any restrictions on representing several persons and self-dealing under
any applicable law, and in particular from the restrictions of Section 181
of the German Civil Code (Bürgerliches
Gesetzbuch), to make use of any authorisation granted under this
Agreement and to perform its duties and obligations as Agent
hereunder.
|
28.2
|
Duties
of the Agent
|
|
(a)
|
The
Agent shall promptly forward to a Party the original or a copy of any
document which is delivered to the Agent for that Party by any other
Party.
|
|
(b)
|
Except
where a Finance Document specifically provides otherwise, the Agent is not
obliged to review or check the adequacy, accuracy or completeness of any
document it forwards to another
Party.
|
|
(c)
|
If
the Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a
Default, it shall promptly notify the other Finance
Parties.
|
|
(d)
|
If
the Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than the
Agent, the Arranger or the Security Trustee) under this Agreement it shall
promptly notify the other Finance
Parties.
|
|
(e)
|
The
Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
|
|
(f)
|
The
Agent shall promptly forward to the Security Trustee a copy of all notices
issued pursuant to Clause 25.19 (Acceleration).
|
28.3
|
Role
of the Arranger
|
Except as
specifically provided in the Finance Documents, the Arranger has no obligations
of any kind to any other Party under or in connection with any Finance
Document.
113
CONFORMED
COPY
28.4
|
No
fiduciary duties
|
|
(a)
|
Nothing
in this Agreement constitutes the Agent or the Arranger as a trustee or
fiduciary of any other person.
|
|
(b)
|
Neither
the Agent nor the Arranger shall be bound to account to any Lender for any
sum or the profit element of any sum received by it for its own
account.
|
28.5
|
Business
with the Group
The
Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member
of the Group.
|
28.6
|
Rights
and discretions of the Agent
|
|
(a)
|
The
Agent may rely on:
|
|
(i)
|
any
representation, notice or document believed by it to be genuine, correct
and appropriately authorised; and
|
|
(ii)
|
any
statement made by a director, authorised signatory or employee of any
person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to
verify.
|
|
(b)
|
The
Agent may assume (unless it has received notice to the contrary in its
capacity as agent for the Lenders)
that:
|
|
(i)
|
no
Default has occurred (unless it has actual knowledge of a Default arising
under Clause 25.1 (Non-payment));
|
|
(ii)
|
any
right, power, authority or discretion vested in any Party or the Majority
Lenders has not been exercised; and
|
|
(iii)
|
any
notice or request made by the Company (other than a Utilisation Request or
Selection Notice) is made on behalf of and with the consent and knowledge
of all the Obligors.
|
|
(c)
|
The
Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other
experts.
|
|
(d)
|
The
Agent may act in relation to the Finance Documents through its personnel
and agents.
|
|
(e)
|
The
Agent may disclose to any other Party any information it reasonably
believes it has received as agent under this
Agreement.
|
|
(f)
|
Notwithstanding
any other provision of any Finance Document to the contrary, neither the
Agent nor the Arranger is obliged to do or omit to do anything if it would
or might in its reasonable opinion constitute a breach of any law or
regulation or a breach of a fiduciary duty or duty of
confidentiality.
|
28.7
|
Majority
Lenders' instructions
|
|
(a)
|
Unless
a contrary indication appears in a Finance Document, the Agent shall (i)
exercise any right, power, authority or discretion vested in it as Agent
in accordance with any instructions given to it by the Majority Lenders
(or, if so
|
114
CONFORMED
COPY
|
instructed
by the Majority Lenders, refrain from exercising any right, power,
authority or discretion vested in it as Agent) and (ii) not be liable for
any act (or omission) if it acts (or refrains from taking any action) in
accordance with an instruction of the Majority
Lenders.
|
|
(b)
|
Unless
a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders will be binding on all the Finance Parties
other than the Security Trustee.
|
|
(c)
|
The
Agent may refrain from acting in accordance with the instructions of the
Majority Lenders (or, if appropriate, the Lenders) until it has received
such security as it may require for any cost, loss or liability (together
with any associated VAT) which it may incur in complying with the
instructions.
|
|
(d)
|
In
the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the
Lenders.
|
|
(e)
|
The
Agent is not authorised to act on behalf of a Lender (without first
obtaining that Lender's consent) in any legal or arbitration proceedings
relating to any Finance Document.
|
28.8
|
Responsibility
for documentation
|
Neither
the Agent nor the Arranger:
|
(a)
|
is
responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, the Arranger,
an Obligor or any other person in or in connection with any Finance
Document or the Information Memorandum or the transactions contemplated in
the Finance Documents; or
|
|
(b)
|
is
responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or the Transaction Security or any
other agreement, arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document or the
Transaction Security.
|
28.9
|
Exclusion
of liability
|
|
(a)
|
Without
limiting paragraph (b) below (and without prejudice to the provisions of
paragraph (e) of Clause 32.10 (Disruption
to Payment Systems etc.), the Agent will not be liable (including,
without limitation, for negligence or any other category of liability
whatsoever) for any action taken by it under or in connection with any
Finance Document or the Transaction Security, unless directly caused by
its gross negligence or wilful
misconduct.
|
|
(b)
|
No
Party (other than the Agent) 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 by that
officer, employee or agent in relation to any Finance Document and any
officer, employee or agent of the Agent may rely on this
Clause.
|
115
CONFORMED
COPY
|
(c)
|
The
Agent will not be liable for any delay (or any related consequences) in
crediting an account with an amount required under the Finance Documents
to be paid by the Agent if the Agent has taken all necessary steps as soon
as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used by the
Agent for that purpose.
|
|
(d)
|
Nothing
in this Agreement shall oblige the Agent or the Arranger to carry out any
"know your customer" or other checks in relation to any person on behalf
of any Lender and each Lender confirms to the Agent and the Arranger that
it is solely responsible for any such checks it is required to carry out
and that it may not rely on any statement in relation to such checks made
by the Agent or the Arranger.
|
28.10
|
Lenders'
indemnity to
the Agent
|
Each
Lender shall (in proportion to its share of the Total Commitments or, if the
Total Commitments are then zero, to its share of the Total Commitments
immediately prior to their reduction to zero) indemnify the Agent, within three
Business Days of demand, against any cost, loss or liability (including, without
limitation, for negligence or any other category of liability whatsoever)
incurred by the Agent (otherwise than by reason of the Agent's gross negligence
or wilful misconduct) (or, in the case of any cost, loss or liability pursuant
to Clause 32.10 (Disruption
to Payment Systems etc.) notwithstanding the Agent's negligence, gross
negligence, or any other category of liability whatsoever but not including any
claim based on the fraud of the Agent) in acting as Agent under the Finance
Documents (unless the Agent has been reimbursed by an Obligor pursuant to a
Finance Document).
28.11
|
Resignation
of the Agent
|
|
(a)
|
The
Agent may resign and appoint one of its Affiliates as successor by giving
notice to the other Finance Parties and the
Company.
|
|
(b)
|
Alternatively
the Agent may resign by giving notice to the other Finance Parties and the
Company, in which case the Majority Lenders (after consultation with the
Company) may appoint a successor
Agent.
|
|
(c)
|
If
the Majority Lenders have not appointed a successor Agent in accordance
with paragraph (b) above within 30 days after notice of resignation was
given, the Agent (after consultation with the Company) may appoint a
successor Agent.
|
|
(d)
|
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 Agent under the Finance
Documents.
|
|
(e)
|
The
Agent's resignation notice shall only take effect upon the appointment of
a successor.
|
116
CONFORMED
COPY
|
(f)
|
Upon
the appointment of a successor, the retiring Agent shall be discharged
from any further obligation in respect of the Finance Documents but shall
remain entitled to the benefit of this Clause 28. Its successor
and each of the other Parties shall have the same rights and obligations
amongst themselves as they would have had if such successor had been an
original Party.
|
|
(g)
|
After
consultation with the Company, the Majority Lenders may, by notice to the
Agent, require it to resign in accordance with paragraph (b)
above. In this event, the Agent shall resign in accordance with
paragraph (b) above.
|
28.12
|
Confidentiality
|
|
(a)
|
In
acting as agent for the Finance Parties, the Agent shall be regarded as
acting through its agency division, or as appropriate, trustee division
which shall be treated as a separate entity from any other of its
divisions or departments.
|
|
(b)
|
If
information is received by another division or department of the Agent, it
may be treated as confidential to that division or department and the
Agent shall not be deemed to have notice of
it.
|
28.13
|
Relationship
with the Lenders
|
|
(a)
|
The
Agent may treat each Lender as a Lender, entitled to payments under this
Agreement and acting through its Facility Office unless it has received
not less than five Business Days prior notice from that Lender to the
contrary in accordance with the terms of this
Agreement.
|
|
(b)
|
Each
Lender shall supply the Agent with any information required by the Agent
in order to calculate the Mandatory Cost in accordance with Schedule 4
(Mandatory
Cost Formulae).
|
|
(c)
|
Each
Secured Party shall supply the Agent with any information that the Trustee
may reasonably specify (through the Agent) as being necessary or desirable
to enable the Security Trustee to perform its functions as security
trustee. Each Lender shall deal with the Security Trustee
exclusively through the Agent and shall not deal directly with the
Security Trustee.
|
28.14
|
Credit
appraisal by the Secured
Parties
|
Without
affecting the responsibility of any Obligor for information supplied by it or on
its behalf in connection with any Finance Document, each Secured Party confirms
to the Agent and the Arranger that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with any Finance Document including but not
limited to:
|
(a)
|
the
financial condition, status and nature of each member of the
Group;
|
|
(b)
|
the
legality, validity, effectiveness, adequacy or enforceability of any
Finance Document and the Transaction Security and any other agreement,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document or the Transaction
Security;
|
117
CONFORMED
COPY
|
(c)
|
whether
that Secured Party has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or in
connection with any Finance Document, the Transaction Security, the
transactions contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance
Document;
|
|
(d)
|
the
adequacy, accuracy and/or completeness of the Information Memorandum and
any other information provided by the Agent, the Security Trustee, any
Party or by any other person under or in connection with any Finance
Document, the transactions contemplated by the Finance Documents or any
other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document;
and
|
|
(e)
|
the
right or title of any person in or to, or the value or sufficiency of any
part of the Charged Property, the priority of any of the Transaction
Security or the existence of any Security affecting the Charged
Property.
|
28.15
|
Reference
Banks
|
If a
Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it
is an Affiliate) ceases to be a Lender, the Agent shall (in consultation with
the Company) appoint another Lender or an Affiliate of a Lender to replace that
Reference Bank.
28.16
|
Agent's
Management Time
|
Any
amount payable to the Agent under Clause 17.3 (Indemnity
to the Agent), Clause 19 (Costs
and expenses) and Clause 28.10 (Lenders'
indemnity to the Agent) shall include the cost of utilising the Agent's
management time or other resources and will be calculated on the basis of such
reasonable daily or hourly rates as the Agent may notify to the Company and the
Lenders, and is in addition to any fee paid or payable to the Agent under Clause
14 (Fees).
28.17
|
Deduction
from amounts payable by the
Agent
|
If any
Party owes an amount to the Agent under the Finance Documents the Agent may,
after giving notice to that Party, deduct an amount not exceeding that amount
from any payment to that Party which the Agent would otherwise be obliged to
make under the Finance Documents and apply the amount deducted in or towards
satisfaction of the amount owed. For the purposes of the Finance
Documents that Party shall be regarded as having received any amount so
deducted.
29.1
|
Trust
|
|
(a)
|
The
Security Trustee declares that it shall hold the Transaction Security on
trust for the Secured Parties (and both on trust for the Secured Parties
and as agent on behalf of the other Secured Parties in respect of any
Transaction Security governed by French Law) on the terms contained in
this Agreement. Each of the parties to this Agreement agrees
that the Security Trustee shall have only those duties, obligations and
responsibilities expressly specified in
this
|
118
CONFORMED
COPY
|
Agreement,
the Intercreditor Agreement or in the Security Documents (and
no others shall be implied).
|
29.2
|
Appointment
of the Security Trustee
|
|
(a)
|
The
Security Trustee shall:
|
|
(i)
|
hold
and administer any Transaction Security governed by German law which is
security assigned (Sicherungseigentum/Sicherungsabtretung)
or otherwise transferred under a non-accessory security right (nicht-akzessorische
Sicherheit) to it as trustee (treuhänderisch)
for the benefit of the Secured Parties;
and
|
|
(ii)
|
administer
any Transaction Security governed by German law which is pledged (Verpfändung)
or otherwise transferred to any Secured Party under an accessory security
right (akzessorische
Sicherheit) as agent.
|
|
(b)
|
Each
Secured Party hereby appoints the Security Trustee to act as its trustee
and its agent in connection herewith (with power to sub-delegate and under
exemption from any restrictions regarding acting on behalf of several
parties and acting both on its own behalf as well as on behalf of other
parties, as may be contained in applicable local
law).
|
|
(c)
|
Each
Secured Party hereby authorises the Security Trustee (whether or not by or
through employees or agents):
|
|
(i)
|
to
exercise such rights, remedies, powers and discretions as are specifically
delegated to or conferred upon the Security Trustee by the terms hereof
and/or under the Security Documents together with such rights, remedies,
powers and discretions as are reasonably incidental thereto or necessary
to give effect to the rights, remedies, powers and discretions of the
Security Trustee hereby created;
|
|
(ii)
|
to
enter into each Security Document for and on their behalf as trustee and
as agent;
|
|
(iii)
|
to
hold the Transaction Security on trust and as security agent for and on
their behalf in connection herewith unless otherwise provided under any
Transaction Security;
|
|
(iv)
|
to
acknowledge the provisions of each Security Document, including without
limitation any "parallel debt" provision contained
therein;
|
|
(v)
|
to
take such action on its behalf as may from time to time be authorised
under or in accordance with the Security Documents and this Agreement;
and
|
|
(vi)
|
to
accept as its representative (Stellvertreter)
any pledge or other creation of any accessory security right granted in
favour of such Secured Party in connection with the Finance Documents
under German law and to agree to and execute on its behalf as its
representative (Stellvertreter)
any
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|
amendments
and/or alterations to any Security Document governed by German law which
creates a pledge or any other accessory security right (akzessorische
Sicherheit) including the release or confirmation of re-lease of
such Security.
|
|
(d)
|
Each
of the Secured Parties hereby releases the Security Trustee to the extent
permissible under each Secured Party's respective constitutional
documentations from any restrictions on representing several persons and
self-dealing under any applicable law, and in particular from the
restrictions of Section 181 of the German Civil Code (Bürgerliches
Gesetzbuch), to make use of any authorisation granted under this
Agreement and to perform its duties and obligations as Security Trustee
hereunder and under the Security
Documents.
|
|
(e)
|
Each
Secured Party hereby ratifies and approves all acts and declarations
previously done by the Security Trustee on such Secured Party's behalf
(including for the avoidance of doubt the declarations made by the
Security Trustee as representative without power of attorney (Vertreter
ohne Vertretungsmacht) in relation to the creation of any pledge
(Pfandrecht)
on behalf and for the benefit of any Secured Party as future pledgee or
otherwise).
|
29.3
|
Italian
Security Documents
|
Each of
the Secured Parties hereby:
|
(a)
|
appoints,
with the express consent pursuant to article 1395 of the Italian Civil
Code, the Security Trustee to be its mandatario
con rappresentanza and common representative for the purpose of
executing in the name and on behalf of the Secured Parties any Security
Document which is expressed to be governed by Italian
law;
|
|
(b)
|
grants
the Security Trustee the power to negotiate and approve the terms and
conditions of such Security Document, execute any other agreement or
instrument, give or receive any notice and take any other action in
relation to the creation, perfection, maintenance, enforcement and release
of the security created thereunder in the name and on behalf of the
Secured Parties; and
|
|
(c)
|
undertakes
to ratify and approve any such action taken in the name and on behalf of
the Secured Parties by the Security Trustee acting in its appointed
capacity.
|
29.4
|
Japanese
Security Documents
|
|
(a)
|
Each
of the Secured Parties irrevocably appoints the Security Trustee to be its
attorney and in its name and on its behalf to execute, deliver and perfect
all documents and do all things which the attorney may in its absolute
discretion consider necessary or desirable in connection with any Japanese
Security Documents.
|
|
(b)
|
Each
of the Secured Parties shall ratify and confirm all things done and all
Japanese Security Documents executed by any attorney and further confirm
that it accepts the terms of such Japanese Security
Document.
|
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CONFORMED
COPY
|
(c)
|
The
Secured Parties will procure the enforcement of the Japanese Security
Documents pursuant to clause 11 (Enforcement
of Security) of the Intercreditor Agreement only at the request of
the Agent. In relation to the manner of enforcement (apart from
the decision or right to commence an enforcement, which shall be in
accordance with the other provisions of this Agreement) of the Japanese
Security Documents, the Secured Parties and Security Trustee will always
act on the directions of the Agent.
|
|
(d)
|
All
amounts received by a Secured Party pursuant to any enforcement of the
Japanese Security Documents shall be immediately paid to the Security
Trustee for application in accordance with Clause 34 (Application
of Proceeds) save that any Secured Party instructed by the Security
Trustee to enforce any Japanese Security Document in accordance with this
Clause shall be entitled to deduct from the proceeds of each enforcement
its costs, charges and expenses incurred in connection with such
enforcement prior to paying the proceeds of such enforcement to the
Security Trustee in accordance with Clause 34 (Application
of Proceeds).
|
29.5
|
Brazilian
Security Documents
|
Each of
the Secured Parties hereby expressly appoints the Security Trustee to act in the
name and on behalf of the Secured Parties in any Security Document which is
governed by Brazilian law, with powers to execute, deliver and perfect all
documents and enforce, collect and/or take any and all measures as deemed
necessary to create, perfect and enforce the securities under such Security
Documents (including, but not limited to, the pledge and usufruct over the
quotas issued by Flexsys Indústria e Comércio Ltda and the Brazilian Guarantee
Agreement.
29.6
|
Parallel
Debt (Covenant to pay the Security
Trustee)
|
|
(a)
|
Notwithstanding
any other provision of this Agreement, each Obligor hereby irrevocably and
unconditionally undertakes to pay to the Security Trustee, as creditor in
its own right and not as representative of the other Finance Parties, sums
equal to and in the currency of each amount payable by such Obligor to
each of the Finance Parties under each of the Finance Documents as and
when that amount falls due for payment under the relevant Finance Document
or would have fallen due but for any discharge resulting from failure of
another Finance Party to take appropriate steps, in insolvency proceedings
affecting that Obligor, to preserve its entitlement to be paid that
amount.
|
|
(b)
|
The
Security Trustee shall have its own independent right to demand payment of
the amounts payable by each Obligor under this Clause 29.6, irrespective
of any discharge of such Obligor's obligation to pay those amounts to the
other Finance Parties resulting from failure by them to take appropriate
steps, in insolvency proceedings affecting that Obligor, to preserve their
entitlement to be paid those
amounts.
|
|
(c)
|
Any
amount due and payable by an Obligor to the Security Trustee under this
Clause 29.6 shall be decreased to the extent that the other Finance
Parties have received (and are able to retain) payment in full of the
corresponding amount
|
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CONFORMED
COPY
|
under
the other provisions of the Finance Documents and any amount due and
payable by an Obligor to the other Finance Parties under those provisions
shall be decreased to the extent that the Security Trustee has received
(and is able to retain) payment in full of the corresponding amount under
this Clause 29.6.
|
|
(d)
|
The
rights of the Finance Parties (other than the Security Trustee) to receive
payment of amounts payable by each Obligor under the Finance Documents are
several and are separate and independent from, and without prejudice to,
the rights of the Security Trustee to receive payment under this Clause
29.6.
|
29.7
|
No
Independent Power
|
The
Secured Parties shall not have any independent power to enforce, or have
recourse to, any of the Transaction Security or to exercise any rights or powers
arising under the Security Documents except through the Security
Trustee.
29.8
|
Security
Trustee's Instructions
|
The
Security Trustee shall:
|
(a)
|
unless
a contrary indication appears in a Finance Document, act in accordance
with any instructions given to it by the Agent and shall be entitled to
assume that (i) any instructions received by it from the Agent are duly
given by or on behalf of the Majority Lenders or, as the case may be, the
Lenders in accordance with the terms of the Finance Documents and (ii)
unless it has received actual notice of revocation that any instructions
or directions given by the Agent have not been
revoked;
|
|
(b)
|
be
entitled to request instructions, or clarification of any direction, from
the Agent as to whether, and in what manner, it should exercise or refrain
from exercising any rights, powers and discretions and the Security
Trustee may refrain from acting unless and until those instructions or
clarification are received by it;
and
|
|
(c)
|
be
entitled to, carry out all dealings with the Lenders through the Agent and
may give to the Agent any notice or other communication required to be
given by the Security Trustee to the
Lenders.
|
29.9
|
Security
Trustee's Actions
|
Subject
to the provisions of this Clause 29:
|
(a)
|
the
Security Trustee may, in the absence of any instructions to the contrary,
take such action in the exercise of any of its powers and duties under the
Finance Documents which in its absolute discretion it considers to be for
the protection and benefit of all the Secured Parties;
and
|
|
(b)
|
at
any time after receipt by the Security Trustee of notice from the Agent
directing the Security Trustee to exercise all or any of its rights,
remedies, powers or discretions under any of the Finance Documents, the
Security Trustee may, and shall if so directed by the Agent, take any
action as in its sole discretion it thinks fit to enforce the Transaction
Security.
|
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CONFORMED
COPY
29.10
|
Security
Trustee's Discretions
The Security Trustee
may:
|
|
(a)
|
assume
(unless it has received actual notice to the contrary in its capacity as
trustee for the Secured Parties) that (i) no Default has occurred and no
Obligor is in breach of or default under its obligations under any of the
Finance Documents and (ii) any right, power, authority or discretion
vested in any person has not been
exercised;
|
|
(b)
|
if
it receives any instructions or directions from the Agent to take any
action in relation to the Transaction Security, assume that all applicable
conditions under the Finance Documents for taking that action have been
satisfied;
|
|
(c)
|
engage,
pay for and rely on the advice or services of any lawyers, accountants,
surveyors or other experts (whether obtained by the Security Trustee or by
any other Secured Party) whose advice or services may at any time seem
necessary, expedient or desirable;
|
|
(d)
|
rely
upon any communication or document believed by it to be genuine and, as to
any matters of fact which might reasonably be expected to be within the
knowledge of a Secured Party or an Obligor, upon a certificate signed by
or on behalf of that person; and
|
|
(e)
|
refrain
from acting in accordance with the instructions of the Agent or Lenders
(including bringing any legal action or proceeding arising out of or in
connection with the Finance Documents) until it has received any
indemnification and/or security that it may in its absolute discretion
require (whether by way of payment in advance or otherwise) for all costs,
losses and liabilities which it may incur in bringing such action or
proceedings.
|
29.11
|
Security
Trustee's Obligations
The Security Trustee shall
promptly inform the Agent of:
|
|
(a)
|
the
contents of any notice or document received by it in its capacity as
Security Trustee from any Obligor under any Finance Document;
and
|
|
(b)
|
the
occurrence of any Default or any default by an Obligor in the due
performance of or compliance with its obligations under any Finance
Document of which the Security Trustee has received notice from any other
party to this Agreement.
|
29.12
|
Excluded
Obligations
Notwithstanding anything to
the contrary expressed or implied in the Finance Documents, the Security
Trustee shall not:
|
|
(a)
|
be
bound to enquire as to (i) whether or not any Default has occurred or (ii)
the performance, default or any breach by an Obligor of its obligations
under any of the Finance Documents;
|
|
(b)
|
be
bound to account to any other Party for any sum or the profit element of
any sum received by it for its own
account;
|
123
CONFORMED
COPY
|
(c)
|
be
bound to disclose to any other person (including but not limited to any
Secured Party) (i) any confidential information or (ii) any other
information if disclosure would, or might in its reasonable opinion,
constitute a breach of any law or be a breach of fiduciary
duty;
|
|
(d)
|
be
under any obligations other than those which are specifically provided for
in the Finance Documents; or
|
|
(e)
|
have
or be deemed to have any duty, obligation or responsibility to, or
relationship of trust or agency with, any
Obligor.
|
29.13
|
Exclusion
of Security Trustee's liability
The
Security Trustee shall not accept responsibility or be liable
for:
|
|
(a)
|
the
adequacy, accuracy and/or completeness of any information (whether oral or
written) supplied by the Security Trustee or any other person in or in
connection with any Finance Document or the Information Memorandum or the
transactions contemplated in the Finance
Documents.
|
|
(b)
|
the
legality, validity, effectiveness, adequacy or enforceability of any
Finance Document or the Transaction Security or any other agreement,
arrangement or document entered into, made or executed in anticipation of
or in connection with any Finance Document or the Transaction
Security;
|
|
(c)
|
any
losses to any person or any liability arising as a result of taking or
refraining from taking any action in relation to any of the Finance
Documents or the Transaction Security or otherwise, whether in accordance
with an instruction from the Agent or otherwise, unless directly caused by
its gross negligence or wilful
misconduct;
|
|
(d)
|
the
exercise of, or the failure to exercise, any judgement, discretion or
power given to it by or in connection with any of the Finance Documents,
the Transaction Security or any other agreement, arrangement or document
entered into, made or executed in anticipation of or in connection with
the Finance Documents or the Transaction Security;
or
|
|
(e)
|
any
shortfall which arises on the enforcement of the Transaction
Security.
|
29.14
|
No
proceedings
No
Party (other than the Security Trustee) may take any proceedings against
any officer, employee or agent of the Security Trustee in respect of any
claim it might have against the Security Trustee or in respect of any act
or omission of any kind by that officer, employee or agent in relation to
any Finance Document or any Transaction Security and any officer, employee
or agent of the Security Trustee may rely on this
Clause.
|
29.15
|
Own
responsibility
Without
affecting the responsibility of any Obligor for information supplied by it
or on its behalf in connection with any Finance Document, each Secured
Party confirms to the Security Trustee that it has been, and will continue
to be, solely responsible for
making
|
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CONFORMED
COPY
its own
independent appraisal and investigation of all risks arising under or in
connection with any Finance Document including but not limited to:
|
(a)
|
the
financial condition, status and nature of each member of the
Group;
|
|
(b)
|
the
legality, validity, effectiveness, adequacy and enforceability of any
Finance Document and the Transaction Security and any other agreement,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document or the Transaction
Security;
|
|
(c)
|
whether
that Secured Party has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or in
connection with any Finance Document, the Transaction Security, the
transactions contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document or the Transaction
Security;
|
|
(d)
|
the
adequacy, accuracy and/or completeness of the Information Memorandum and
any information provided by the Security Trustee or by any other person
under or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement, arrangement
or document entered into, made or executed in anticipation of, under or in
connection with any Finance Document;
and
|
|
(e)
|
the
right or title of any person in or to, or the value or sufficiency of any
part of the Charged Property, the priority of any of the Transaction
Security or the existence of any Security affecting the Charged
Property.
|
29.16
|
No
responsibility to perfect Transaction Security
The
Security Trustee shall not be liable for any failure
to:
|
|
(a)
|
require
the deposit with it of any deed or document certifying, representing or
constituting the title of any Obligor to any of the Charged
Property;
|
|
(b)
|
obtain
any licence, consent or other authority for the execution, delivery,
legality, validity, enforceability or admissibility in evidence of any of
the Finance Documents or the Transaction
Security;
|
|
(c)
|
register,
file or record or otherwise protect any of the Transaction Security (or
the priority of any of the Transaction Security) under any applicable laws
in any jurisdiction or to give notice to any person of the execution of
any of the Finance Documents or of the Transaction
Security;
|
|
(d)
|
take,
or to require any of the Obligors to take, any steps to perfect its title
to any of the Charged Property or to render the Transaction Security
effective or to secure the creation of any ancillary Security under the
laws of any jurisdiction; or
|
|
(e)
|
require
any further assurances in relation to any of the Security
Documents.
|
125
CONFORMED
COPY
29.17
|
Insurance
by Security Trustee
|
|
(a)
|
The
Security Trustee shall not be under any obligation to insure any of the
Charged Property, to require any other person to maintain any insurance or
to verify any obligation to arrange or maintain insurance contained in the
Finance Documents. The Security Trustee shall not be
responsible for any loss which may be suffered by any person as a result
of the lack of or inadequacy of any such
insurance.
|
|
(b)
|
Where
the Security Trustee is named on any insurance policy as an insured party,
it shall not be responsible for any loss which may be suffered by reason
of, directly or indirectly, its failure to notify the insurers of any
material fact relating to the risk assumed by the insurers or any other
information of any kind, unless any Secured Party has requested it to do
so in writing and the Security Trustee has failed to do so within fourteen
days after receipt of that request.
|
29.18
|
Custodians
and Nominees
|
The
Security Trustee may appoint and pay any person to act as a custodian or nominee
on any terms in relation to any assets of the trust as the Security Trustee may
determine, including for the purpose of depositing with a custodian this
Agreement or any document relating to the trust created under this Agreement and
the Security Trustee shall not be responsible for any loss, liability, expense,
demand, cost, claim or proceedings incurred by reason of the misconduct,
omission or default on the part of any person appointed by it under this
Agreement or be bound to supervise the proceedings or acts of any
person.
29.19
|
Acceptance
of Title
|
The
Security Trustee shall be entitled to accept without enquiry, and shall not be
obliged to investigate, any right and title that any of the Obligors may have to
any of the Charged Property and shall not be liable for or bound to require any
Obligor to remedy any defect in its right or title.
29.20
|
Refrain
from Illegality
|
The
Security Trustee may refrain from doing anything which in its opinion will or
may be contrary to any relevant law, directive or regulation of any jurisdiction
which would or might otherwise render it liable to any person, and the Security
Trustee may do anything which is, in its opinion, necessary to comply with any
law, directive or regulation.
29.21
|
Business
with the Obligors
|
The
Security Trustee may accept deposits from, lend money to, and generally engage
in any kind of banking or other business with any of the Obligors.
29.22
|
Releases
|
Upon a
disposal of any of the Charged Property or the resignation of an Obligor in
accordance with Clause 27 (Changes
to the Obligors):
|
(a)
|
pursuant
to the enforcement of the Transaction Security by a Receiver or the
Security Trustee; or
|
|
(b)
|
if
that disposal is permitted under the Finance Documents;
or
|
126
CONFORMED
COPY
|
(c)
|
if
the Security Trustee is instructed to release the Transaction Security
granted by the resigning Obligor under the terms of Clause 27 (Changes
to the Obligors),
|
the
Security Trustee shall (at the cost of the Obligors) release that property from
the Transaction Security or the Transaction Security given by that Obligor and
is authorised to execute, without the need for any further authority from the
Secured Parties, any release of the Transaction Security or other claim over
that asset or Obligor and to issue any certificates of non-crystallisation of
floating charges that may be required or desirable.
29.23
|
Winding
up of Trust
|
If the
Security Trustee, with the approval of the Majority Lenders, determines that (a)
all of the Secured Obligations and all other obligations secured by any of the
Security Documents have been fully and finally discharged and (b) none of the
Secured Parties is under any commitment, obligation or liability (actual or
contingent) to make advances or provide other financial accommodation to any
Obligor pursuant to the Finance Documents, the trusts set out in this Agreement
shall be wound up and the Security Trustee shall release, without recourse or
warranty, all of the Transaction Security and the rights of the Security Trustee
under each of the Security Documents.
29.24
|
Perpetuity
Period
|
The
perpetuity period under the rule against perpetuities, if applicable to this
Agreement, shall be the period of eighty years from the date of this
Agreement.
29.25
|
Powers
Supplemental
|
The
rights, powers and discretions conferred upon the Security Trustee by this
Agreement shall be supplemental to the Trustee Xxx 0000 and the Trustee Xxx 0000
and in addition to any which may be vested in the Security Trustee by general
law or otherwise.
29.26
|
Trustee
division separate
|
|
(a)
|
In
acting as trustee for the Secured Parties, the Security Trustee shall be
regarded as acting through its agency or trustee division which shall be
treated as a separate entity from any other of its divisions or
departments.
|
|
(b)
|
If
information is received by another division or department of the Security
Trustee, it may be treated as confidential to that division or department
and the Security Trustee shall not be deemed to have notice of
it.
|
29.27
|
Lender'
indemnity to the Security
Trustee
|
Each
Lender shall (in proportion to its share of the Total Commitments or, if the
Total Commitments are then zero, to its share of the Total Commitments
immediately prior to their reduction to zero) indemnify the Security Trustee,
within three Business Days of demand, against any cost, loss or liability
incurred by the Security Trustee (otherwise than by reason of the Security
Trustee's gross negligence or wilful misconduct) in acting as Security Trustee
under the Finance Documents (unless the Security Trustee has been reimbursed by
an Obligor pursuant to a Finance Document).
127
CONFORMED
COPY
29.28
Disapplication
Section 1
of the Trustee Act 2000 shall not apply to the duties of the Security Trustee in
relation to the trusts constituted by this Agreement. Where there are
any inconsistencies between the Trustee Xxx 0000 or the Trustee Xxx 0000 and the
provisions of this Agreement, the provisions of this Agreement shall, to the
extent allowed by law, prevail and, in the case of any inconsistency with the
Trustee Xxx 0000, the provisions of this Agreement shall constitute a
restriction or exclusion for the purposes of that Act.
29.29
|
Resignation
of Security Trustee
|
|
(a)
|
The
Security Trustee may resign and appoint one of its Affiliates as successor
by giving notice to the Company and to the Agent on behalf of the
Lenders.
|
|
(b)
|
Alternatively
the Security Trustee may resign by giving notice to the other Parties (or
to the Agent on behalf of the Lenders) in which case the Majority Lenders
may appoint a successor Security
Trustee.
|
|
(c)
|
If
the Majority Lenders have not appointed a successor Security Trustee in
accordance with paragraph (b) above within 30 days after the notice of
resignation was given, the Security Trustee (after consultation with the
Agent) may appoint a successor Security
Trustee.
|
|
(d)
|
The
retiring Security Trustee shall, at its own cost, make available to the
successor Security Trustee such documents and records and provide such
assistance as the successor Security Trustee may reasonably request for
the purposes of performing its functions as Security Trustee under the
Finance Documents.
|
|
(e)
|
The
Security Trustee's resignation notice shall only take effect upon (i) the
appointment of a successor and (ii) the transfer of all of the Transaction
Security to that successor.
|
|
(f)
|
Upon
the appointment of a successor, the retiring Security Trustee shall be
discharged from any further obligation in respect of the Finance Documents
but shall remain entitled to the benefit of Clauses 28 (Role
of the Agent and the Arranger) and 29 (Role
of Security Trustee). Its successor and each of the
other Parties shall have the same rights and obligations amongst
themselves as they would have had if such successor had been an original
Party.
|
|
(g)
|
The
Majority Lenders may, by notice to the Security Trustee, require it to
resign in accordance with paragraph (b) above. In this event,
the Security Trustee shall resign in accordance with paragraph (b)
above.
|
29.30
|
Delegation
|
|
(a)
|
The
Security Trustee may, at any time, delegate by power of attorney or
otherwise to any person for any period, all or any of the rights, powers
and discretions vested in it by any of the Finance
Documents.
|
|
(b)
|
The
delegation may be made upon any terms and conditions (including the power
to sub-delegate) and subject to any restrictions that the Security Trustee
may think fit in the interests of the Secured Parties and it shall not be
bound to
|
128
CONFORMED
COPY
|
supervise,
or be in any way responsible for any loss incurred by reason of any
misconduct or default on the part of any delegate or
sub-delegate.
|
29.31
|
Additional
Security Trustees
|
|
(a)
|
The
Security Trustee may at any time appoint (and subsequently remove) any
person to act as a separate trustee or as a co-trustee jointly with it (i)
if it considers that appointment to be in the interests of the Secured
Parties or (ii) for the purposes of conforming to any legal requirements,
restrictions or conditions which the Security Trustee deems to be relevant
or (iii) for obtaining or enforcing any judgment in any jurisdiction, and
the Security Trustee shall give prior notice to the Company and the Agent
of that appointment.
|
|
(b)
|
Any
person so appointed shall have the rights, powers and discretions (not
exceeding those conferred on the Security Trustee by this Agreement) and
the duties and obligations that are conferred or imposed by the instrument
of appointment.
|
|
(c)
|
The
remuneration that the Security Trustee may pay to any person, and any
costs and expenses incurred by that person in performing its functions
pursuant to that appointment shall, for the purposes of this Agreement, be
treated as costs and expenses incurred by the Security
Trustee.
|
29.32
|
Voting
Rights
|
|
(a)
|
Notwithstanding
any other provision of this Agreement or any other Finance Document the
Security Trustee may in its absolute discretion and without any consent or
authority from the Secured Parties by notice in accordance with the notice
provisions of each Security Document that grants Security over Shares
(which notice shall be irrevocable) elect to give up the right to exercise
(or refrain from exercising) voting rights in respect of those Shares
conferred or to be conferred on the Security Trustee pursuant to the
relevant clauses of that Security
Document.
|
|
(b)
|
The
Secured Parties unconditionally waive any rights they may otherwise have
either to prevent the Security Trustee from making the election referred
to in paragraph (a) above or to require the Security Trustee to indemnify
or otherwise compensate them for any losses, costs or liabilities incurred
by any of them in relation to or as a consequence of the Security Trustee
making such election.
|
No
provision of this Agreement will:
|
(a)
|
interfere
with the right of any Finance Party to arrange its affairs (tax or
otherwise) in whatever manner it thinks
fit;
|
|
(b)
|
oblige
any Finance Party to investigate or claim any credit, relief, remission or
repayment available to it or the extent, order and manner of any claim;
or
|
|
(c)
|
oblige
any Finance Party to disclose any information relating to its affairs (tax
or otherwise) or any computations in respect of
Tax.
|
129
CONFORMED
COPY
31.1
|
Payments
to Finance
Parties
|
If a
Finance Party (a "Recovering
Finance Party") receives or recovers any amount from an Obligor other
than in accordance with Clause 32 (Payment
mechanics) or Clause 34 (Application
of Proceeds) and applies that amount to a payment due under the Finance
Documents then:
|
(a)
|
the
Recovering Finance Party shall, within three Business Days, notify details
of the receipt or recovery, to the
Agent;
|
|
(b)
|
the
Agent shall determine whether the receipt or recovery is in excess of the
amount the Recovering Finance Party would have been paid had the receipt
or recovery been received or made by the Agent and distributed in
accordance with Clause 32 (Payment
mechanics), without taking account of any Tax which would be
imposed on the Agent in relation to the receipt, recovery or distribution;
and
|
|
(c)
|
the
Recovering Finance Party shall, within three Business Days of demand by
the Agent, pay to the Agent an amount (the "Sharing
Payment") equal to such receipt or recovery less any amount which
the Agent determines may be retained by the Recovering Finance Party as
its share of any payment to be made, in accordance with Clause 32.5 (Partial
payments).
|
31.2
|
Redistribution
of payments
|
The Agent
shall treat the Sharing Payment as if it had been paid by the relevant Obligor
and distribute it between the Finance Parties (other than the Recovering Finance
Party) in accordance with Clause 32.5 (Partial
payments).
31.3
|
Recovering
Finance Party's rights
|
|
(a)
|
On
a distribution by the Agent under Clause 31.2 (Redistribution
of payments), the Recovering Finance Party will be subrogated to
the rights of the Finance Parties which have shared in the
redistribution.
|
|
(b)
|
If
and to the extent that the Recovering Finance Party is not able to rely on
its rights under paragraph (a) above, the relevant Obligor shall be liable
to the Recovering Finance Party for a debt equal to the Sharing Payment
which is immediately due and
payable.
|
31.4
|
Reversal
of redistribution
|
If any
part of the Sharing Payment received or recovered by a Recovering Finance Party
becomes repayable and is repaid by that Recovering Finance Party,
then:
|
(a)
|
each Finance Party which has received
a share of the relevant Sharing Payment pursuant to Clause 31.2 (Redistribution
of payments) shall, upon request of the Agent, pay to the Agent for
account of that Recovering Finance Party an amount equal to the
appropriate part of its share of the Sharing Payment (together
with an amount as is necessary to reimburse that Recovering Finance Party
for its proportion of any interest on the Sharing Payment which that
Recovering Finance Party is required to pay);
and
|
130
CONFORMED
COPY
|
(b)
|
that
Recovering Finance Party's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable
to the reimbursing Finance Party for the amount so
reimbursed.
|
31.5
|
Exceptions
|
|
(a)
|
This
Clause 31 shall not apply to the extent that the Recovering Finance Party
would not, after making any payment pursuant to this Clause, have a valid
and enforceable claim against the relevant
Obligor.
|
|
(b)
|
A
Recovering Finance Party is not obliged to share with any other Finance
Party any amount which the Recovering Finance Party has received or
recovered as a result of taking legal or arbitration proceedings,
if:
|
|
(i)
|
it
notified that other Finance Party of the legal or arbitration proceedings;
and
|
|
(ii)
|
that
other Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal or
arbitration proceedings.
|
131
CONFORMED
COPY
SECTION
11
ADMINISTRATION
32.1
|
Payments
to the Agent
|
|
(a)
|
On
each date on which an Obligor or a Lender is required to make a payment
under a Finance Document, that Obligor or Lender shall make the same
available to the Agent (unless a contrary indication appears in a Finance
Document) for value on the due date at the time and in such funds
specified by the Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of
payment.
|
|
(b)
|
Payment
shall be made to such account in the principal financial centre of the
country of that currency (or, in relation to euro, in a principal
financial centre in a Participating Member State or London) with such bank
as the Agent specifies.
|
32.2
|
Distributions
by the Agent
|
Each
payment received by the Agent under the Finance Documents for another Party
shall, subject to Clause 32.3 (Distributions
to an Obligor), Clause 32.4 (Clawback)
and Clause 28.17 (Deduction
from amounts payable by the Agent) be made available by the Agent as soon
as practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account of its
Facility Office), to such account as that Party may notify to the Agent by not
less than five Business Days' notice with a bank in the principal financial
centre of the country of that currency (or, in relation to euro, in the
principal financial centre of a Participating Member State or
London).
32.3
|
Distributions
to an Obligor
|
The Agent
may (with the consent of the Obligor or in accordance with Clause 33 (Set-off))
apply any amount received by it for that Obligor in or towards payment (on the
date and in the currency and funds of receipt) of any amount due from that
Obligor under the Finance Documents or in or towards purchase of any amount of
any currency to be so applied.
32.4
|
Clawback
|
|
(a)
|
Where
a sum is to be paid to the Agent under the Finance Documents for another
Party, the Agent is not obliged to pay that sum to that other Party (or to
enter into or perform any related exchange contract) until it has been
able to establish to its satisfaction that it has actually received that
sum.
|
|
(b)
|
If
the Agent pays an amount to another Party and it proves to be the case
that the Agent had not actually received that amount, then the Party to
whom that amount (or the proceeds of any related exchange contract) was
paid by the Agent shall on demand refund the same to the Agent together
with interest on that amount from the date of payment to the date of
receipt by the Agent, calculated by the Agent to reflect its cost of
funds.
|
132
CONFORMED
COPY
32.5
|
Partial
payments
|
|
(a)
|
If
the Agent receives a payment that is insufficient to discharge all the
amounts then due and payable by an Obligor under the Finance Documents,
the Agent shall apply that payment towards the obligations of that Obligor
under the Finance Documents in the following
order:
|
|
(i)
|
first,
in or towards payment pro rata of any unpaid fees, costs and expenses of
the Agent, the Issuing Bank, the Security Trustee (including of any
Receiver or Delegate) and the Arranger under the Finance
Documents;
|
|
(ii)
|
secondly,
in or towards payment pro rata of any accrued interest, fee or commission
due but unpaid under this
Agreement;
|
|
(iii)
|
thirdly,
in or towards payment pro rata of any principal due but unpaid under this
Agreement and any amount due but unpaid under Clauses 7.4 (Claims
under a Letter of Credit) and 7.5 (Indemnities);
and
|
|
(iv)
|
fourthly,
in or towards payment pro rata of any other sum due but unpaid under the
Finance Documents.
|
|
(b)
|
The
Agent shall, if so directed by the Majority Lenders, vary the order set
out in sub-paragraphs (a)(ii) to (iv)
above.
|
|
(c)
|
Paragraphs
(a) and (b) above will override any appropriation made by an
Obligor.
|
32.6
|
No
set-off by Obligors
|
All
payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for) set-off
or counterclaim.
32.7
|
Business
Days
|
|
(a)
|
Any
payment which is due to be made on a day that is not a Business Day shall
be made on the next Business Day in the same calendar month (if there is
one) or the preceding Business Day (if there is
not).
|
|
(b)
|
During
any extension of the due date for payment of any principal or Unpaid Sum
under this Agreement interest is payable on the principal or Unpaid Sum at
the rate payable on the original due
date.
|
32.8
|
Currency
of account
|
|
(a)
|
Subject
to paragraphs (b) to (e) below, the Base Currency is the currency of
account and payment for any sum due from an Obligor under any Finance
Document.
|
|
(b)
|
A
repayment of a Utilisation or Unpaid Sum or a part of a Utilisation or
Unpaid Sum shall be made in the currency in which that Utilisation or
Unpaid Sum is denominated on its due
date.
|
133
CONFORMED
COPY
|
(c)
|
Each
payment of interest shall be made in the currency in which the sum in
respect of which the interest is payable was denominated when that
interest accrued.
|
|
(d)
|
Each
payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are
incurred.
|
|
(e)
|
Any
amount expressed to be payable in a currency other than the Base Currency
shall be paid in that other
currency.
|
32.9
|
Change
of currency
|
|
(a)
|
Unless
otherwise prohibited by law, if more than one currency or currency unit
are at the same time recognised by the central bank of any country as the
lawful currency of that country,
then:
|
|
(i)
|
any
reference in the Finance Documents to, and any obligations arising under
the Finance Documents in, the currency of that country shall be translated
into, or paid in, the currency or currency unit of that country designated
by the Agent (after consultation with the Company);
and
|
|
(ii)
|
any
translation from one currency or currency unit to another shall be at the
official rate of exchange recognised by the central bank for the
conversion of that currency or currency unit into the other, rounded up or
down by the Agent (acting
reasonably).
|
|
(b)
|
If
a change in any currency of a country occurs, this Agreement will, to the
extent the Agent (acting reasonably and after consultation with the
Company) specifies to be necessary, be amended to comply with any
generally accepted conventions and market practice in the Relevant
Interbank Market and otherwise to reflect the change in
currency.
|
32.10
|
Disruption
to Payment Systems etc.
|
If either
the Agent determines (in its discretion) that a Disruption Event has occurred or
the Agent is notified by the Company that a Disruption Event has
occurred:
|
(a)
|
the
Agent may, and shall if requested to do so by the Company, consult with
the Company with a view to agreeing with the Company such changes to the
operation or administration of the Facilities as the Agent may deem
necessary in the circumstances;
|
|
(b)
|
the
Agent shall not be obliged to consult with the Company in relation to any
changes mentioned in paragraph (a) above if, in its opinion, it is not
practicable to do so in the circumstances and, in any event, shall have no
obligation to agree to such
changes;
|
|
(c)
|
the
Agent may consult with the Finance Parties in relation to any changes
mentioned in paragraph (a) above but shall not be obliged to do so if, in
its opinion, it is not practicable to do so in the
circumstances;
|
134
CONFORMED
COPY
|
(d)
|
any
such changes agreed upon by the Agent and the Company shall (whether or
not it is finally determined that a Disruption Event has occurred) be
binding upon the Parties as an amendment to (or, as the case may be,
waiver of) the terms of the Finance Documents notwithstanding the
provisions of Clause 39 (Amendments
and Waivers);
|
|
(e)
|
the
Agent shall not be liable for any damages, costs or losses
whatsoever (including, without limitation for negligence, gross
negligence or any other category of liability whatsoever but not including
any claim based on the fraud of the Agent) arising as a result of its
taking, or failing to take, any actions pursuant to or in connection with
this Clause 32.10; and
|
|
(f)
|
the
Agent shall notify the Finance Parties of all changes agreed pursuant to
paragraph (d) above.
|
33.
|
Following
the occurrence of an Event of Default, a Finance Party may set off any matured
obligation due from an Obligor under the Finance Documents (to the extent
beneficially owned by that Finance Party) against any matured obligation owed by
that Finance Party to that Obligor, regardless of the place of payment, booking
branch or currency of either obligation. If the obligations are in
different currencies, the Finance Party may convert either obligation at a
market rate of exchange in its usual course of business for the purpose of the
set-off.
34.1
|
Order
of Application
|
All
moneys from time to time received or recovered by the Security Trustee under
Clause 29.6 (Parallel
Debt (Covenant to pay the Security Trustee)) and/or in connection with
the realisation or enforcement of all or any part of the Transaction Security
shall be held by the Security Trustee on trust to apply them at such times as
the Security Trustee sees fit, to the extent permitted by applicable law, in the
following order of priority:
|
(a)
|
in
discharging any sums owing to the Security Trustee (in its capacity as
trustee), any Receiver or any
Delegate;
|
|
(b)
|
in
payment to the Agent, on behalf of the Secured Parties, for application
towards the discharge of all sums due and payable by any Obligor under any
of the Finance Documents in accordance with Clause 32.5 (Partial
Payments);
|
|
(c)
|
if
none of the Obligors is under any further actual or contingent liability
under any Finance Document, in payment to any person to whom the Security
Trustee is obliged to pay in priority to any Obligor;
and
|
|
(d)
|
the
balance, if any, in payment to the relevant
Obligor.
|
34.2
|
Investment
of Proceeds
|
Prior to
the application of the proceeds of the Transaction Security in accordance with
Clause 34.1 (Order
of Application) the Security Trustee may, at its discretion, hold all or
part of those proceeds in an interest bearing suspense or impersonal account(s)
in the
135
CONFORMED
COPY
name of
the Security Trustee or Agent with any financial institution (including itself)
and for so long as the Security Trustee thinks fit (the interest being credited
to the relevant account) pending the application from time to time of those
monies at the Security Trustee's discretion in accordance with the provisions of
this Clause 34.
34.3
|
Currency
Conversion
|
|
(a)
|
For
the purpose of or pending the discharge of any of the Secured Obligations
the Security Trustee may convert any moneys received or recovered by the
Security Trustee from one currency to another, at the spot rate at which
the Security Trustee is able to purchase the currency in which the Secured
Obligations are due with the amount
received.
|
|
(b)
|
The
obligations of any Obligor to pay in the due currency shall only be
satisfied to the extent of the amount of the due currency purchased after
deducting the costs of conversion.
|
34.4
|
Permitted
Deductions
|
The
Security Trustee shall be entitled (a) to set aside by way of reserve amounts
required to meet and (b) to make and pay, any deductions and withholdings (on
account of Tax or otherwise) which it is or may be required by any applicable
law to make from any distribution or payment made by it under this Agreement,
and to pay all Tax which may be assessed against it in respect of any of the
Charged Property, or as a consequence of performing its duties, or by virtue of
its capacity as Trustee under any of the Finance Documents or otherwise (except
in connection with its remuneration for performing its duties under this
Agreement).
34.5
|
Discharge
of Secured Obligations
|
|
(a)
|
Any
payment to be made in respect of the Secured Obligations by the Security
Trustee may be made to the Agent on behalf of the Lenders and that payment
shall be a good discharge to the extent of that payment, to the Security
Trustee.
|
|
(b)
|
The
Security Trustee is under no obligation to make payment to the Agent in
the same currency as that in which any Unpaid Sum is
denominated.
|
34.6
|
Sums
received by Obligors
|
If any of
the Obligors receives any sum which, pursuant to any of the Finance Documents,
should have been paid to the Security Trustee, that sum shall promptly be paid
to the Security Trustee for application in accordance with this
Clause.
34.7
|
Security
Trustee application of
proceeds
|
In
consideration for the covenants given to the Security Trustee by each Obligor in
Clause 29.6 (Parallel
Debt (Covenant to pay the Security Trustee)), the Security Trustee agrees
with each Obligor to apply all moneys from time to time paid by such Obligor to
the Security Trustee in accordance with the provisions of Clause 34.1 (Order
of Application).
136
CONFORMED
COPY
35. NOTICES
35.1
|
Communications
in writing
|
Any
communication to be made under or in connection with the Finance Documents shall
be made in writing and, unless otherwise stated, may be made by fax or
letter.
35.2
|
Addresses
|
The
address and fax number (and the department or officer, if any, for whose
attention the communication is to be made) of each Party for any communication
or document to be made or delivered under or in connection with the Finance
Documents is:
|
(a)
|
in
the case of the Company, that identified with its name
below;
|
|
(b)
|
in
the case of each Lender or any other Original Obligor, that notified in
writing to the Agent on or prior to the date on which it becomes a Party;
and
|
|
(c)
|
in
the case of the Agent and Security Trustee, that identified with its name
below,
|
or any
substitute address or fax number or department or officer as the Party may
notify to the Agent (or the Agent may notify to the other Parties, if a change
is made by the Agent) by not less than five Business Days' notice.
35.3
|
Delivery
|
|
(a)
|
Any
communication or document made or delivered by one person to another under
or in connection with the Finance Documents will only be
effective:
|
|
(i)
|
if
by way of fax, when received in legible form;
or
|
|
(ii)
|
if
by way of letter, when it has been left at the relevant address or five
Business Days after being deposited in the post postage prepaid in an
envelope addressed to it at that
address,
|
|
|
and,
if a particular department or officer is specified as part of its address
details provided under Clause 35.2 (Addresses),
if addressed to that department or
officer.
|
|
(b)
|
Any
communication or document to be made or delivered to the Agent or to the
Security Trustee will be effective only when actually received by the
Agent or the Security Trustee and then only if it is expressly marked for
the attention of the department or officer identified with the Agent's or
the Security Trustee's signature below (or any substitute department or
officer as the Agent shall specify for this
purpose).
|
|
(c)
|
All
notices from or to an Obligor shall be sent through the
Agent.
|
|
(d)
|
Any
communication or document made or delivered to the Company in accordance
with this Clause will be deemed to have been made or delivered to each of
the Obligors.
|
|
(e)
|
All
notices to a Lender from the Security Trustee shall be sent through the
Agent.
|
137
CONFORMED
COPY
35.4
|
Notification
of address and fax number
|
Promptly
upon receipt of notification of an address and fax number or change of address
or fax number pursuant to Clause 35.2 (Addresses)
or changing its own address or fax number, the Agent shall notify the other
Parties.
35.5
|
Electronic
communication
|
|
(a)
|
Any
communication to be made between the Agent or the Security Trustee and a
Lender under or in connection with the Finance Documents may be made by
electronic mail or other electronic means, if the Agent, the Trustee and
the relevant Lender:
|
|
(i)
|
agree
that, unless and until notified to the contrary, this is to be an accepted
form of communication;
|
|
(ii)
|
notify
each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by
that means; and
|
|
(iii)
|
notify
each other of any change to their address or any other such information
supplied by them.
|
|
(b)
|
Any
electronic communication made between the Agent and a Lender or the
Security Trustee will be effective only when actually received in readable
form and in the case of any electronic communication made by a Lender to
the Agent or the Security Trustee only if it is addressed in such a manner
as the Agent or Security Trustee shall specify for this
purpose.
|
35.6
|
English
language
|
|
(a)
|
Any
notice given under or in connection with any Finance Document must be in
English.
|
|
(b)
|
All
other documents provided under or in connection with any Finance Document
must be:
|
|
(i)
|
in
English; or
|
|
(ii)
|
if
not in English, and if so required by the Agent, accompanied by a
certified English translation and, in this case, the English translation
will prevail unless the document is a constitutional, statutory or other
official document.
|
36.1
|
Accounts
|
In any
litigation or arbitration proceedings arising out of or in connection with a
Finance Document, the entries made in the accounts maintained by a Finance Party
are prima
facie evidence of the matters to which they relate.
138
CONFORMED
COPY
36.2
|
Certificates
and Determinations
|
Any
certification or determination by a Finance Party of a rate or amount under any
Finance Document is, in the absence of manifest error, conclusive evidence of
the matters to which it relates.
36.3
|
Day
count convention
|
Any
interest, commission or fee accruing under a Finance Document will accrue from
day to day and is calculated on the basis of the actual number of days elapsed
and a year of 360 days or, in any case where the practice in the Relevant
Interbank Market differs, in accordance with that market practice.
If, at
any time, any provision of the Finance Documents is or becomes illegal, invalid
or unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
No
failure to exercise, nor any delay in exercising, on the part of any Secured
Party or the Arranger, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise or the exercise of any other right
or remedy. The rights and remedies provided in this Agreement are
cumulative and not exclusive of any rights or remedies provided by
law.
39.1
|
Required
consents
|
|
(a)
|
Subject
to Clause 39.2 (Exceptions)
and Clause 29.22 (Releases)
any term of the Finance Documents may be amended or waived only with the
consent of the Majority Lenders and the Obligors and any such amendment or
waiver will be binding on all
Parties.
|
|
(b)
|
The
Agent, or in respect of the Security Documents the Security Trustee, may
effect, on behalf of any Finance Party, any amendment or waiver permitted
by this Clause.
|
39.2
|
Exceptions
|
|
(a)
|
An
amendment or waiver that has the effect of changing or which relates
to:
|
|
(i)
|
the
definition of "Majority Lenders" in Clause 1.1 (Definitions);
|
|
(ii)
|
an
extension to the date of payment of any amount under the Finance
Documents;
|
|
(iii)
|
a
reduction in the Margin or a reduction in the amount of any payment of
principal, interest, fees or commission
payable;
|
|
(iv)
|
an
increase in or an extension of any
Commitment;
|
139
CONFORMED
COPY
|
(v)
|
a
change to the Borrowers or Guarantors other than in accordance with Clause
27 (Changes
to the Obligors);
|
|
(vi)
|
any
provision which expressly requires the consent of all the
Lenders;
|
|
(vii)
|
Clause
2.2 (Finance
Parties' rights and obligations), Clause 26 (Changes
to the Lenders) or this Clause
39;
|
|
(viii)
|
the
nature or scope of the Charged Property or the manner in which the
proceeds of enforcement of the Transaction Security are
distributed;
|
|
(ix)
|
any
amendment to the order of priority or subordination under the
Intercreditor Agreement;
|
shall not
be made without the prior consent of all the Lenders.
|
(b)
|
An
amendment or waiver which relates to the rights or obligations of the
Agent, the Security Trustee or the Arranger may not be effected without
the consent of the Agent, the Security Trustee or the
Arranger.
|
39.3
|
Amendments
required to Security
Documents
|
Any
amendment made to any term of this Agreement (including but not limited to an
amendment or waiver that relates to an increase in or extension of any
Commitment and the payment of principal, interest, fees or commission payable),
is not effective unless and until all Security Documents which, in the
reasonable opinion of the Secured Trustee, require any confirmation or amendment
as a result thereof in order to preserve the security thereby created shall have
been confirmed or amended (including, without limitation, the Brazilian Quota
Pledge Agreement and the Italian Share Pledge).
40.
|
Each
Finance Document 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
the Finance Document.
41.
|
Each
Lender hereby notifies each Obligor that pursuant to the requirements of the USA
Patriot Act, such Lender is required to obtain, verify and record information
that identifies such Obligor, which information includes the name and address of
such Obligor and other information that will allow such Lender to identify such
Obligor in accordance with the USA Patriot Act.
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CONFORMED
COPY
SECTION
12
GOVERNING
LAW AND ENFORCEMENT
42.
|
This
Agreement is governed by English law.
43.
|
43.1
|
Jurisdiction
of English courts
|
|
(a)
|
The
courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this Agreement) (a
"Dispute").
|
|
(b)
|
The
Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue
to the contrary.
|
|
(c)
|
This
Clause 43.1 is for the benefit of the Finance Parties only. As
a result, no Finance Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To
the extent allowed by law, the Finance Parties may take concurrent
proceedings in any number of
jurisdictions.
|
43.2
|
Service
of process
|
Without
prejudice to any other mode of service allowed under any relevant law, each
Obligor (other than an Obligor incorporated in England and Wales):
|
(a)
|
irrevocably
appoints Flexsys Rubber Chemicals Limited as its agent for service of
process in relation to any proceedings before the English courts in
connection with any Finance Document;
and
|
|
(b)
|
agrees
that failure by an agent for service of process to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
|
43.3
|
Waiver
of Immunity
|
Each
Obligor waives generally all immunity it or its assets or revenues may otherwise
have in any jurisdiction, including immunity in respect of:
|
(a)
|
the
giving of any relief by way of injunction or order for specific
performance or for the recovery of assets or revenues;
and
|
|
(b)
|
the
issue of any process against its assets or revenues for the enforcement of
a judgment or, in an action in
rem, for the arrest, detention or sale of any of its assets and
revenues.
|
43.4
|
Título
Executivo Extrajudicial
|
In
accordance with Section 585, item II and Section 585, second paragraph of the
Brazilian Code of Civil Procedure (Law 5,869/73 as amended from time to time),
this Agreement shall be deemed as an out-of-court document (título
executivo extrajudicial) for all purposes under Brazilian law, including
but not limited to for the purposes of execution, collection, receipt or
otherwise for the taking of any and all measures required
141
CONFORMED
COPY
to
perfect and enforce the Guarantee and the Security created herein and under the
Security Documents against Flexsys Indústria e Comércio Ltda., being understood
and agreed that the Parties appoint Brazil as the place for compliance by
Flexsys Indústria e Comércio Ltda. of its obligations under this Agreement, the
Security Documents and the Finance Documents.
EACH OF
THE PARTIES TO THIS AGREEMENT AGREES TO WAIVE IRREVOCABLY ITS RIGHTS TO A JURY
TRIAL OF ANY CLAIM BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE
DOCUMENTS REFERRED TO IN THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN THIS
AGREEMENT. This waiver is intended to apply to all
Disputes. Each party acknowledges that (a) this waiver is a material
inducement to enter into this Agreement, (b) it has already relied on this
waiver in entering into this Agreement and (c) it will continue to rely on this
waiver in future dealings. Each party represents that it has reviewed
this waiver with its legal advisers and that it knowingly and voluntarily waives
its jury trial rights after consultation with its legal advisers. In
the event of litigation, this Agreement may be filed as a written consent to a
trial by the court.
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
142