EXHIBIT 2.2
Dated 3 October 1999
(as amended by the Amendment Agreement dated 13 December 2002)
LUCITE INTERNATIONAL LIMITED
as Parent
and certain of its subsidiaries as Borrowers and/or Guarantors
DEUTSCHE BANK AG LONDON and
XXXXXXX XXXXX INTERNATIONAL
as Joint Lead Arrangers
DEUTSCHE BANK AG LONDON and
XXXXXXX XXXXX CAPITAL CORPORATION
as Original Banks
DEUTSCHE BANK AG LONDON
as Facility Agent
DEUTSCHE BANK AG LONDON
as Security Agent
------------------------------------
CREDIT FACILITIES
FOR THE ACQUISITION OF
THE ACRYLICS BUSINESS OF
IMPERIAL CHEMICAL INDUSTRIES PLC
-----------------------------------
[GRAPHIC]
SHEARMAN & STERLING
LONDON
CONTENTS
CLAUSE PAGE
1. INTERPRETATION.............................................................1
2. THE FACILITIES............................................................22
3. PARTICIPATION OF BANKS....................................................23
4. CONDITIONS PRECEDENT......................................................26
5. DRAWINGS..................................................................27
6. INTEREST..................................................................28
7. REPAYMENT.................................................................32
8. PREPAYMENT................................................................33
9. CANCELLATION..............................................................36
10. FEES.....................................................................36
11. CURRENCY OPTION..........................................................37
12. TAXES AND OTHER DEDUCTIONS...............................................39
13. CHANGE IN CIRCUMSTANCES..................................................41
14. PAYMENTS.................................................................43
15. REPRESENTATIONS AND WARRANTIES...........................................45
16. UNDERTAKINGS.............................................................52
17. EVENTS OF DEFAULT........................................................81
18. GUARANTEES...............................................................85
19. THE AGENTS AND THE ARRANGERS.............................................89
20. ASSIGNMENTS AND TRANSFERS................................................94
21. PRO RATA PAYMENTS, RECEIPTS AND SET OFF..................................95
22. NOTICES, CONFIDENTIALITY AND CERTIFICATES................................98
23. AMENDMENTS, WAIVERS AND CONSENTS.........................................99
24. INDEMNITIES.............................................................101
25. PARTIAL INVALIDITY......................................................103
26. GOVERNING LAW AND SUBMISSION TO JURISDICTION............................103
1
27. COUNTERPARTS............................................................104
SCHEDULE 1..................................................................105
THE BANKS...........................................................105
SCHEDULE 2..................................................................106
THE BORROWERS AND THE GUARANTORS....................................106
PART A - THE BORROWERS..............................................106
PART B - THE GUARANTORS.............................................106
SCHEDULE 3..................................................................107
DOCUMENTARY CONDITIONS PRECEDENT....................................107
SCHEDULE 4..................................................................111
FORM OF DRAWING REQUEST.............................................111
SCHEDULE 5..................................................................112
ADDITIONAL COSTS RATE...............................................112
SCHEDULE 6..................................................................114
TRANSFER CERTIFICATE................................................114
SCHEDULE 7..................................................................119
ACCESSION DOCUMENT..................................................119
SCHEDULE 8..................................................................121
ANCILLARY FACILITIES................................................121
SCHEDULE 9..................................................................123
PROVISIONS RELATING TO LETTERS OF CREDIT/BANK GUARANTEES............123
SCHEDULE 10.................................................................126
SECURITY DOCUMENTS..................................................126
SCHEDULE 11.................................................................127
FORM OF CONFIDENTIALITY UNDERTAKING.................................127
SCHEDULE 12.................................................................129
FORMALITIES CERTIFICATE.............................................129
SCHEDULE 13.................................................................131
FORMS OF LETTER OF CREDIT/BANK GUARANTEE............................131
2
PART I - FORM OF LETTER OF CREDIT...................................131
PART II - FORM OF BANK GUARANTEE....................................134
3
THIS FACILITY AGREEMENT is made on 3 October 1999 (as amended by the Amendment
Agreement dated 13 December 2002).
BETWEEN:-
(1) LUCITE INTERNATIONAL LIMITED (a company incorporated in England with
registered number 3830507) (the "PARENT");
(2) THE COMPANIES identified in Part A of Schedule 2 as Borrowers;
(3) THE COMPANIES identified in Part B of Schedule 2 as Guarantors;
(4) DEUTSCHE BANK AG LONDON and XXXXXXX XXXXX INTERNATIONAL as joint lead
arrangers (together the "ARRANGERS");
(5) DEUTSCHE BANK AG LONDON and XXXXXXX XXXXX CAPITAL CORPORATION as
original banks (the "ORIGINAL BANKS");
(6) DEUTSCHE BANK AG LONDON as Facility Agent;
(7) DEUTSCHE BANK AG LONDON as Security Agent.
NOW IT IS HEREBY AGREED as follows:-
1 INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the context otherwise requires the following
expressions shall have the following meanings:-
"ACCESSION DOCUMENT" means an agreement substantially in the form set
out in Schedule 7 pursuant to which a member of the Group becomes a
Borrower and/or a Guarantor;
"ACCOUNTING QUARTER" means each period in respect of which quarterly
consolidated management accounts are required to be prepared by the
Parent being in each case a period of approximately thirteen weeks
ending on or about 31 March, 30 June, 30 September and 31 December of
each Financial Year;
"ACQUISITION" means the acquisition of the Target Shares and the Target
Business pursuant to the Acquisition Documents;
"ACQUISITION AGREEMENT" means the agreement dated on or around the date
hereof relating to the acquisition of the Target Shares and the Target
Business made between, inter alia, UK ParentCo 3 and others as
purchasers and the Vendor;
"ACQUISITION DOCUMENTS" means the Acquisition Agreement and all other
agreements executed pursuant to the Acquisition Agreement between the
parties thereto;
"ACRYLICS JAPAN" means Ineos Acrylics Japan KK, a company to be
incorporated in Japan with its registered office at Xxxxxxx Xxxxxxx
Xxxxxxxx 0X, 0-00 Xxxxxxx, 0-xxxxx Xxxxx-xx, Xxxxx 111-0051;
1
"ADDITIONAL COSTS RATE" means in relation to an Advance or unpaid sum
the rate per annum notified by any Bank to the Facility Agent to be the
cost to that Bank of compliance with all reserve asset, liquidity or
cash margin or other like requirements of the Bank of England, the
Financial Services Authority, the European Central Bank or in relation
to Regulation D in the United States of America and which in the case of
the Bank of England and the Financial Services Authority shall be
determined in accordance with Schedule 5;
"ADVANCE" means:-
(a) when designated "TRANCHE A", the principal amount of each
advance made or to be made under the Tranche A Term Facility;
(b) when designated "TRANCHE B", the principal amount of each
advance made or to be made under the Tranche B Term Facility;
(c) when designated "TRANCHE C", the principal amount of each
advance made or to be made under the Tranche C Term Facility;
(d) when designated "REVOLVING", the principal amount of each
advance made or to be made under the Revolving Facility; and
(e) and without any such designation, a "TRANCHE A ADVANCE",
"Tranche B Advance", "TRANCHE C ADVANCE" and/or a "REVOLVING
ADVANCE", as the context requires;
in each case as from time to time reduced by repayment or prepayment and
in each case subject as provided in Clause 6 (Interest);
"AFFILIATE" has the meaning given in the Acquisition Agreement;
"AGENTS" means collectively the Facility Agent and the Security Agent;
"AGREED FINANCIAL PROJECTIONS" means the financial projections and
forecast for the Business in the agreed form;
"AMENDMENT AGREEMENT" means the amendment agreement to this Agreement in
the agreed terms dated on or about 13 December 2002 between the Parent
and the Facility Agent;
"ANCILLARY BANK" means a Revolving Bank in its capacity as provider of
Ancillary Facilities;
"ANCILLARY DOCUMENTS" means the documents setting out the terms on which
the Ancillary Facilities are made available;
"ANCILLARY FACILITIES" means working capital facilities made available
by a Revolving Bank by redesignation of a portion of its Revolving
Commitment in accordance with Clause 2.2 (Ancillary Facilities) and
Schedule 8;
"ANCILLARY LIMIT" means, in relation to an Ancillary Bank, the maximum
amount (excluding accrued uncapitalised interest, fees and like charges)
which it has agreed to make available by way of Ancillary Facilities as
varied from time to time in accordance with this Agreement and the
Ancillary Documents;
"APPLICABLE GAAP" means accounting principles, standards and practices
generally accepted from time to time in the United Kingdom;
2
"AUDITORS" means such firm of accountants as may be appointed auditors
of the Group in accordance with Clause 16.6(c) (Appointment of
Auditors);
"AVAILABILITY PERIOD" means the period commencing on the date of this
Agreement and ending on:-
(a) in the case of each Term Facility, 30 November, 1999; or
(b) in the case of the Revolving Facility, the date which is one
month prior to the Revolving Facility Repayment Date;
"AVAILABLE AMOUNT" means, in respect of any Permitted Joint Venture or
acquisition (other than of China Project Newco or the China Project)
made or to be made in any Capex Period:
(a) the Capex Limit for that Capex Period; less
(b) the aggregate of all Adjusted Capital Expenditure during that
Capex Period, other than in respect of the Permitted Joint
Venture or acquisition referred to above;
"BANK" means:-
(a) when designated "TRANCHE A", the Original Banks identified in
Schedule 1 as participating in the Tranche A Term Facility;
(b) when designated "TRANCHE B", the Original Banks identified in
Schedule 1 as participating in the Tranche B Term Facility;
(c) when designated "TRANCHE C", the Original Banks identified in
Schedule 1 as participating in the Tranche C Term Facility;
(d) when designated "REVOLVING", the Original Banks identified in
Schedule 1 as participating in the Revolving Facility,
and in each case any Transferee to whom rights and/or obligations are
assigned or transferred in accordance with Clause 20 (Assignments and
Transfers) (until, in each case, its entire participation in the
Facilities has been assigned or transferred to a Transferee in
accordance with Clause 20 (Assignments and Transfers)) (collectively the
"BANKS");
"BANKING DISCLOSURE LETTER" means the disclosure letter dated of even
date hereof in the agreed terms from the Parent to, inter alia, the
Facility Agent;
"BANK GUARANTEE" means a guarantee issued or to be issued by an Issuing
Bank under the Revolving Facility in the form provided for in Part II of
Schedule 13 or in such other form as may be agreed between the Parent,
the Facility Agent and the relevant Issuing Bank;
"BORROWERS" means each of the companies identified in Part A of Schedule
2 and each member of the Group which becomes a borrower hereunder by
executing an Accession Document in accordance with Clause 2.4 and
"BORROWER" means any of them;
"BRIDGE FACILITIES" means the bridge loan facilities to be made
available by the Bridge Finance Parties under the terms of the Bridge
Facilities Agreements;
"BRIDGE FACILITIES AGREEMENTS" has the meaning specified in the
Intercreditor Agreement;
3
"BRIDGE FINANCE PARTIES " means the parties specified as Bridge
Creditors in Part B of Schedule 1 to the Intercreditor Agreement and
their successors, assignees and transfers and "BRIDGE FINANCE PARTY"
means any of them;
"BUSINESS" means the acrylics business carried on by the Target more
particularly described in the Acquisition Agreement;
"BUSINESS DAY" means:
(a) a day (not being a Saturday or Sunday) on which banks are
generally open for business (other than a day on which banks are
open only for the operation of business in euros):
(b) in London; and
(c) if such reference relates to the date for payment or purchase of
any sum denominated in any Optional Currency, the principal
financial centre of the country of such Optional Currency; and
(d) in relation to rate fixing for Euros only, a day on which the
Trans-European Automated Real-Time Gross Settlement Express
Transfer System ("TARGET") is operating;
"CAPEX LIMIT" means, in respect of any Capex Period, the maximum amount
of Adjusted Capital Expenditure for the Group in respect of that Capex
Period permitted under (and as adjusted in accordance with) Clause
16.7(e) (Capital Expenditure);
"CAPEX PERIOD" means:
(a) the period from the Completion Date to 31 December 1999; or
(b) thereafter, each consecutive Financial Year of the Parent, until
and including the year ended 31 December 2007; or
(c) thereafter, the period from 1 January 2008 to 30 September 2008;
"CASH COLLATERAL ACCOUNT" means any interest bearing account with the
Facility Agent or any Ancillary Bank opened or to be opened in the name
of a Borrower into which sums are to be paid in accordance with Clause 8
(Prepayment) or in the provision of cash cover and held as security for
the obligations of such Borrower under the Senior Finance Documents and
in relation to which such Borrower shall have complied with the
requirements of paragraph 6 of Schedule 9 (Cash Cover);
"CASH EQUIVALENTS" means:
(a) securities issued by, or unconditionally guaranteed by, the
United Kingdom Government, the United States Government or the
government of any Specified Sovereign or issued by any agency
thereof and, as the case may be, guaranteed by the United
Kingdom Government or backed by the full faith and credit of the
United States Government or the government of any Specified
Sovereign, in each case maturing within one year of the date of
acquisition;
(b) commercial paper issued by any corporation organised under the
laws of the United Kingdom, the United States or a Specified
Sovereign maturing no more than one year from the date of
acquisition thereof and, at the time of acquisition, having a
rating of at least A-1 from Standard and Poors' Corporation or
at least P-1 from Xxxxx'x Investor Services Inc.;
(c) certificates of deposit or bankers' acceptances issued by any
commercial bank organised under the laws of the United Kingdom,
the United States or a Specified Sovereign maturing within
4
one year from the date of acquisition thereof issued by any bank
having a long term unsecured debt rating of at least A-1 from
Standard and Poors' Corporation or at least P-1 from Xxxxx'x
Investor Services Inc.;
(d) investments in money market funds which invest substantially all
their assets in securities of the types described in paragraphs
(a) to (c) above;
"CDC DDBS" means the subordinated, unsecured and unguaranteed deep
discounted bonds 2004 in an aggregate principal nominal amount not
exceeding Pound Sterling53,400,000 in the agreed form, issued or to be
issued by the Parent from time to time to the CDC DDBs Holders in
accordance with the terms of the CDC DDBs Documents;
"CDC DDBS CREDITORS" has the meaning given to that expression in the
Subordination Agreement;
"CDC DDBS DOCUMENT" means the CDC DDBs Subscription Agreement, the CDC
DDBs Instrument, the CDC DDBs, the Subordination Agreement and any other
document, agreement or instrument in the agreed form providing for the
payment of any amount by a member of the Group to the CDC DDBs
Creditors;
"CDC DDBS HOLDER" has the meaning given to the expression "Deep Discount
Bond Holder" in the CDC DDBs Instrument;
"CDC DDBS INSTRUMENT" means the instrument, in the agreed form, dated on
or before the Effective Date pursuant to which the CDC DDBs are issued
from time to time by the Parent to the CDC DDBs Holders;
"CDC DDBS SUBSCRIPTION AGREEMENT" means the subscription agreement, in
the agreed form dated on or before the Effective Date pursuant to which
the Subscribers (as defined therein) agree to subscribe for CDC DDBs
from time to time;
"CDC DDBS SUBSCRIPTION PERIOD" means the "Subscription Period" as
defined in the CDC DDBs Subscription Agreement;
"CHANGE OF CONTROL" shall mean:
(a) any change in the legal or beneficial ownership of the shares of
the Parent after the date hereof or entry into any agreement
which results in the Original Equity Investors ceasing to own
either:
(i) more than 50% of the equity share capital of the Parent;
or
(ii) equity share capital having the right to cast more than
50% of the votes capable of being cast in general
meetings of the Parent; or
(b) UK ParentCo 3 ceasing to be a wholly-owned subsidiary of UK
ParentCo 2, UK ParentCo 2 ceasing to be a wholly-owned
subsidiary of UK ParentCo 1 and UK ParentCo 1 ceasing to be a
wholly-owned subsidiary of the Parent;
(c) UK Xxxxx, UK BondCo, UK Overseas HoldCo, UK Trader HoldCo, UK-US
HoldCo ceasing to be directly wholly-owned subsidiaries of UK
ParentCo 3;
(d) any change of control as such term is defined or described in
the Bond Finance Documents;
5
"CHINA PROJECT" means the Chinese company (WOFE) incorporated by China
Project Newco for the purpose of constructing a methyl methacrylate
plant in China to take the HCN by-product from a proposed acrylonitrile
plant to be built by British Petroleum and the Shanghai Petrochemical
Corporation;
"CHINA PROJECT NEWCO" means Ever1918 Limited (to be renamed Lucite
International China Holdings Limited), a company incorporated in England
with registered number 4563520 and a direct wholly-owned Subsidiary of
the Parent;
"CLOSING ACCOUNT" means each account with the Facility Agent opened for
the purposes of collection of funds required to effect Completion and
references to the "CLOSING ACCOUNT" shall be construed as references to
any such account;
"COMMITMENT" means:-
(a) when designated "TRANCHE A", in relation to an Original Bank and
the Tranche A Term Facility, the amount set opposite its name in
Schedule 1 in relation to the Tranche A Term Facility and, in
relation to any other Bank, the amount or the total amount of
the Tranche A Commitments transferred to it under a Transfer
Certificate or Transfer Certificates or other document pursuant
to which it becomes party to, or acquires rights under, this
Agreement;
(b) when designated "TRANCHE B", in relation to an Original Bank and
the Tranche B Term Facility, the amount set opposite its name in
Schedule 1 in relation to the Tranche B Term Facility and, in
relation to any other Bank, the amount or the total amount of
the Tranche B Commitments transferred to it under a Transfer
Certificate or Transfer Certificates or other document pursuant
to which it becomes party to, or acquires rights under, this
Agreement;
(c) when designated "TRANCHE C", in relation to an Original Bank and
the Tranche C Term Facility, the amount set opposite its name in
Schedule 1 in relation to the Tranche C Term Facility and, in
relation to any other Bank, the amount or the total amount of
the Tranche C Commitments transferred to it under a Transfer
Certificate or Transfer Certificates or other document pursuant
to which it becomes party to, or acquires rights under, this
Agreement;
(d) when designated "REVOLVING", in relation to an Original Bank and
the Revolving Facility, the amount set opposite its name in
Schedule 1 in relation to the Revolving Facility and, in
relation to any other Bank, the amount or the total amount of
the Revolving Commitments transferred to it under a Transfer
Certificate or Transfer Certificates or other document pursuant
to which it becomes party to, or acquires rights under, this
Agreement;
less, in any such case:-
(a) that part thereof transferred by it in accordance with Clause 20
(Assignments and Transfers); and
(b) that part thereof which has been cancelled, reduced or
terminated in accordance with this Agreement,
and without any such designation means "TRANCHE A COMMITMENT", "TRANCHE
B COMMITMENT", "TRANCHE C COMMITMENT" and/or "REVOLVING COMMITMENT";
"COMPLETION" means completion of the sale and purchase of the Target
Shares and the Target Business pursuant to the Acquisition Agreement;
"COMPLETION ACCOUNTING PRINCIPLES" means:-
6
"DUTCH OVERSEAS HOLDCO" means Sythol Investment BV (to be renamed Ineos
Acrylics Dutch Overseas HoldCo BV), a company incorporated in The
Netherlands with registered office at Xxxxxxxxx 00, X.X. Xxx 0000, 0000
XX Xxxxxxxxx, Xxx Xxxxxxxxxxx;
(a) for the purposes of the preparation and/or audit of any audited
financial statements (whether consolidated or unconsolidated) of
any member of the Group, those accounting principles, standards
and practices which were utilised in the Latest Audited
Accounts; or
(b) for the purposes of the preparation of management accounts
(whether consolidated or unconsolidated) of any member of the
Group, such accounting principles, standards and practices as
are consistent with the Completion Accounting Principles
referred to in paragraph (a) above applied to the extent
appropriate in the context of preparation of management accounts
drawn up in accordance with good accounting practice;
subject to any changes made in accordance with Clause 16.6(i)
(Completion Accounting Principles);
"COMPLETION DATE" means the date on which Completion takes place;
"CONSTITUTIONAL DOCUMENTS" means the constitutional documents of the
Parent and each of UK ParentCo 1, UK ParentCo 2, UK ParentCo 3, UK
Xxxxx, UK BondCo, UK Overseas HoldCo, UK Trader HoldCo, UK TraderCo,
UK-US HoldCo, UK Partner Co 1, UK Partner Co 2, Dutch Overseas HoldCo,
Dutch HoldCo, US Partnership and US HoldCo;
"CONTINGENT LIABILITY" means, at any time:-
(a) in relation to an Issuing Bank and a Letter of Credit or Bank
Guarantee, the actual and/or contingent liability of that
Issuing Bank under that Letter of Credit or Bank Guarantee at
that time; or
(b) in relation to a Revolving Bank and a Letter of Credit or a Bank
Guarantee, the actual and/or contingent liability of that
Revolving Bank in relation to that Letter of Credit or Bank
Guarantee at that time as a result of the obligations assumed by
it under paragraph 4(b) (Indemnity) of Schedule 9;
"DELAYED COMPLETION" has the meaning specified in the Acquisition
Agreement;
"DELAYED COMPLETION DATE" has the meaning specified in the Acquisition
Agreement;
"DRAWDOWN EVENT" has the meaning given to that expression in the
Amendment Agreement;
"DRAWING" means a drawing by a Borrower of the Tranche A Term Facility,
the Tranche B Term Facility, the Tranche C Term Facility or the
Revolving Facility, as the case may be;
"DRAWING DATE" means, in relation to a Drawing, the date for the making
of such Drawing as specified by the relevant Borrower in the relevant
Drawing Request;
"DRAWING REQUEST" means a notice requesting an Advance or issue of a
Letter of Credit or Bank Guarantee in the form set out in Schedule 4;
"DUTCH HOLDCO" means Ferndale International BV (to be renamed Ineos
Acrylics Netherlands BV), a company incorporated in The Netherlands with
registered office at Xxxxxxxxx 00, X.X. Xxx 0000, 0000 XX Xxxxxxxxx, The
Netherlands;
7
"DUTCH RE-ORGANISATION" means the share for share contribution by UK
Overseas HoldCo to Dutch Overseas HoldCo of the shares in ICI Acrylics
GmbH, ICI Acrylics Holland BV and Dutch HoldCo in exchange for shares in
Dutch Overseas HoldCo;
"EFFECTIVE DATE" has the meaning given to that expression in the
Amendment Agreement;
"ENVIRONMENT" means all gases, air, vapours, liquids, water, land,
surface and sub-surface soils, rock, flora, fauna, wetlands and all
other natural resources or part thereof including artificial or manmade
buildings, structures or enclosures;
"ENVIRONMENTAL CONSENT" means any consent required under or in relation
to Environmental Laws;
"ENVIRONMENTAL LAWS" means all laws, directives or regulatory codes of
practice concerning the Environment or health and safety which are at
any time binding upon a member of the Group in the jurisdictions in
which such member of the Group carries on business or operates
(including, without limitation, by the export of its products or its
waste thereto);
"EQUITY INVESTORS" means the Original Equity Investors, any assignee or
transferee of any interest in the Parent and any other person at any
time having an equity interest in the Parent;
"ERISA" means the Employee Retirement Income Security Act of 1974 of the
United States of America as amended from time to time and any
regulations promulgated and rulings issued thereunder;
"ERISA AFFILIATE" means any person that for the purposes of Title IV of
ERISA is from time to time a member of the controlled group of any
Obligor, or under common control with any Obligor within the meaning of
Section 414 of the Internal Revenue Code of the United States of
America;
"ERISA EVENT" means (a)(i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless
the 30-day notice requirement with respect to such event has been waived
by the PBGC or (ii) the requirements of Section 4043(b) of ERISA apply
with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to
in Section 4041(e) of ERISA); (d) the cessation of operations at a
facility of any Obligor or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by any Obligor
or any ERISA Affiliate from a Multiple Employer Plan during a plan year
for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under
Section 302(f) of ERISA shall have been met with respect to any Plan;
(g) the adoption of an amendment to a Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA; or (h) the
institution by the PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such
Plan;
"EURO", "EURO" or "EUROS" means the single currency of Participating
Member States;
"EVENT OF DEFAULT" means any of the events specified in Clause 17.1
(Events of Default);
"EXCESS CASH FLOW" means, in respect of any Financial Year, Cashflow for
that Financial Year less:-
8
(a) Total Debt Service of the Group for that Financial Year;
(b) the aggregate amount of prepayments of Term Advances made
pursuant to Clause 8.1 (Voluntary Prepayments) and applied in
accordance with Clause 8.5 (Prepayments: Order of Application)
during that Financial Year;
(c) an amount equal to the amount of Capital Expenditure which has
not been made in that Financial Year and which is permitted to
be made in the following Financial Year pursuant to Clause 16.7
(e) (Capital Expenditure); and
(d) the net cash proceeds of any issue of equity or any capital
contributions not required to be applied in prepayment in
accordance with Clause 8.3 (Mandatory Prepayments from
Receipts);
"EXISTING JV COMPANIES" means Kaohsiung Monomer Company Limited, ICI
Alpha BV and Asiatic Acrylics Co Limited and "EXISTING JV COMPANY" means
any of them;
"FACILITIES" means the Term Facilities, the Revolving Facility and the
Ancillary Facilities and "FACILITY" means any of them;
"FACILITY AGENT" means Deutsche Bank AG LONDON acting in its capacity as
agent for the Banks or such other agent for the Banks as shall be
appointed pursuant to Clause 19.9 (Resignation of Agents);
"FACILITY AGENT'S SPOT RATE OF EXCHANGE" with respect to any currency on
any date means the spot rate of exchange of the Facility Agent for the
purchase of the appropriate amount of such currency with such other
currency as shall be specified in the London Foreign Exchange Market at
or about 11.00 am for delivery two Business Days thereafter;
"FEES LETTERS" means the letters from the Arrangers to the Parent dated
on or about the date of this Agreement setting out details of certain
fees payable by the Parent in connection with the Facilities and
referred to in Clause 10 (Fees);
"FINAL TRANCHE A REPAYMENT DATE" means 30 September 2006;
"FINAL TRANCHE B REPAYMENT DATE" means 30 September 2007;
"FINAL TRANCHE C REPAYMENT DATE" means 30 September 2008;
"FINANCE DOCUMENTS" means:-
(a) when designated "SENIOR", this Agreement, each Security
Document, the Intercreditor Agreement, the Investor Side-Letter,
the Hedging Documents, the Ancillary Documents, each Accession
Document, the Amendment Agreement, the Subordination Agreement,
each Transfer Certificate and the Fees Letters;
(b) when designated "SENIOR SUBORDINATED", the Bridge Finance
Documents and the Bond Finance Documents together;
(c) when designated "BOND ", the indenture constituting the High
Yield Notes, the High Yield Guarantees, the Intercreditor
Agreement, and any other agreement or document evidencing the
terms of the High Yield Notes and any other agreement or
document that may be entered into or executed pursuant thereto
or in connection therewith, in each case, in the agreed form;
9
(d) when designated "BRIDGE ", the Bridge Facilities Agreements, the
Intercreditor Agreement, and any other agreement or document
that may be entered into or executed pursuant thereto or in
connection therewith, in each case, in the agreed form; and
(e) without any such designation, the Senior Finance Documents and
the Senior Subordinated Finance Documents;
"FINANCIAL INDEBTEDNESS" means any indebtedness in respect of or arising
under or in connection with:-
(a) moneys borrowed (including overdrafts); or
(b) money raised including any debenture, bond (other than a
performance bond issued in the ordinary course of trading by one
member of the Group in respect of the obligations of another
member of the Group), note or loan stock or other similar
instrument; or
(c) any acceptance or documentary credit; or
(d) receivables sold or discounted (otherwise than on a non-recourse
basis); or
(e) the acquisition cost of any asset to the extent payable after
the time of acquisition or possession by the person liable as
principal obligor for the payment thereof where the deferred
payment is arranged primarily as a method of raising finance or
financing or refinancing the acquisition of the asset acquired;
or
(f) the sale price of any asset to the extent paid before the time
of sale or delivery by the person liable to effect such sale or
delivery where the advance payment is arranged primarily as a
method of raising finance or financing or refinancing the
manufacture, assembly, acquisition or holding of the asset to be
sold; or
(g) finance leases, credit sale or conditional sale agreements
(whether in respect of land, buildings, plant, machinery,
equipment or otherwise) which are treated as finance leases in
accordance with Applicable GAAP (but not including liabilities
under operating leases); or
(h) any agreement for managing or hedging currency and/or interest
rate and/or commodity risk provided that where such agreement
provides for netting to occur this paragraph (h) shall include
the net amount of the payment obligation outstanding from the
relevant member of the Group thereunder after such netting-off
has occurred; or
(i) the amount payable under any put option or other arrangement
whereby any member of the Group is liable, at the request of a
third party, to purchase share capital or other securities
issued by it or any other member of the Group; or
(j) the amount payable by any member of the Group in respect of the
redemption of any share capital or other securities issued by it
or any other member of the Group (if the share capital or other
securities are redeemable at the option of their holder or if
the relevant member of the Group is otherwise obliged to redeem
them); or
(k) amounts raised under any other transaction required to be
accounted for as a borrowing under Applicable GAAP; or
(l) any guarantee, indemnity or similar assurance against financial
loss of any person in respect of any indebtedness falling within
paragraphs (a) to (k) inclusive of this definition,
and so that, where the amount of Financial Indebtedness falls to be
calculated, no amount shall be taken into account more than once in the
same calculation;
10
"FINANCIAL YEAR" means each period ending on 31st December in respect of
which audited consolidated financial statements of the Group are
required to be prepared;
"XXXXX/BONDCO LOAN AGREEMENT" means the loan agreement made between UK
BondCo and UK Xxxxx pursuant to which the proceeds of the Bridge
Facilities are advanced to UK Xxxxx by UK BondCo;
"GROUP" means the Parent and its Subsidiaries from time to time and
"MEMBER OF THE GROUP" means any one of them;
"GUARANTORS" means each of the companies identified in Part B of
Schedule 2 and any other member of the Group which shall have become a
guarantor hereunder by executing an Accession Document and "GUARANTOR"
means any of them;
"HEDGING BANK" means any Bank in its capacity as provider of interest
rate hedging in relation to the Term Facilities under the Hedging
Documents;
"HEDGING DOCUMENTS" has the meaning given to that term in the
Intercreditor Agreement;
"HIGH YIELD GUARANTEES" means together the High Yield Senior Guarantees
and the High Yield Subordinated Guarantees (as such terms are defined in
the Intercreditor Agreement);
"HIGH YIELD NOTEHOLDERS" means the subscribers for the High Yield Notes
and any successor, assignee or transferee of any such person;
"HIGH YIELD NOTES" means the bonds issued or to be issued by UK BondCo
(in an aggregate principal amount of approximately US$200,000,000 with
such terms and guarantees as permitted by the Intercreditor Agreement
pursuant to Rule 144A and/or Regulation S under the US Securities Xxx
0000, as amended, or any notes issued pursuant to an exchange of such
bonds for notes registered with the US Securities and Exchange
Commission and bearing terms identical to those of the original bonds
other than the provision relating to registration rights);
"ICI GROUP" has the meaning given in the Acquisition Agreement;
"INFORMATION PACKAGE" means the Syndication Memorandum and the Agreed
Financial Projections;
"INSUFFICIENCY" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA;
"INTELLECTUAL PROPERTY" means all patents and patent applications, trade
and service marks and trade and service xxxx applications (and all
goodwill associated with such applications), all brand and trade names,
all copyrights and rights in the nature of copyright, all design rights,
all registered designs and applications for registered designs, all
trade secrets, know-how and all other intellectual property rights owned
by members of the Group throughout the world or the interests of any
member of the Group in any of the foregoing, and all rights under any
agreements entered into by or for the benefit of any member of the Group
relating to the use or exploitation of any such rights;
"INTELLECTUAL PROPERTY RIGHTS" has the meaning given in the Acquisition
Agreement;
"INTER-COMPANY LOAN AGREEMENTS" means (i) the loan agreement, in the
agreed terms, made between UK Xxxxx, Dutch HoldCo, UK Trader and
Acrylics Japan and (ii) the loan agreement, in the agreed terms, made
between UK Xxxxx and US Partnership;
11
"INTERCREDITOR AGREEMENT" means the intercreditor agreement, in the
agreed terms, entered or to be entered into between, inter alia, each of
the Senior Finance Parties, the Bridge Finance Parties and the Obligors;
"INTEREST PERIOD" means a period by reference to which interest is
calculated and payable on an Advance or overdue sum;
"INVESTMENT AGREEMENT" means the investment and shareholders agreement
in the agreed terms dated on or about the date of this Agreement
between, inter alia, the Management, the Original Equity Investors and
the Parent providing, inter alia, for the subscription of shares in the
Parent;
"INVESTOR DOCUMENTS" means the Constitutional Documents and the
Investment Agreement;
"INVESTOR SIDE-LETTER" means together the letters, in the agreed form,
to be entered into by each Original Equity Investor and any transferee
or assignee in favour of the Security Agent;
"ISSUING BANK" means Deutsche Bank AG London in its capacity as issuer
of any Letter of Credit or Bank Guarantee and/or any other Bank which
agrees to issue a Letter of Credit and/or Bank Guarantee in accordance
with Clause 5.6(c) (Issue of Letters of Credit/Bank Guarantees) in its
capacity as issuer of such Letter of Credit or Bank Guarantee;
"LATEST AUDITED ACCOUNTS" means the audited accounts of the Target for
the Financial Year ending 31st December 1998;
"LATEST MANAGEMENT ACCOUNTS" means the management accounts of the Target
for the month ending on or about 31st August 1999;
"LENDING OFFICE" means, in relation to a Bank, the office through which
it is acting for the purposes of this Agreement and any other office
which it has notified in accordance with Clause 3.2(b) is to be its
Lending Office for the purposes of a particular Drawing or particular
type of Drawing to be made available to an Obligor;
"LETTER OF CREDIT" means a letter of credit issued or to be issued by an
Issuing Bank under the Revolving Facility in the form set out in Part I
of Schedule 13 or in such other form as may be agreed between the
Parent, the Facility Agent and an Issuing Bank;
"LEVERAGE RATIO" means the ratio of Total Debt to EBITDA (each as
defined in Clause 16.9 (Financial Definitions)) of the Group;
"LIBOR" means, in relation to an Advance or unpaid sum the rate which
appears on Telerate Page 3740 or 3750 for deposits in the currency of
and in an amount equal or comparable to such Advance or unpaid sum for
the duration of the relevant Interest Period at or about 11.00 am on the
applicable Rate Fixing Day or if no such rate appears on Telerate Page
3740 or 3750 at or about 11.00 am on the relevant Rate Fixing Day, then:
(a) the arithmetic mean (rounded up, if necessary, to the nearest
four decimal places) of the respective rates (as quoted to the
Facility Agent at its request) offered by the Reference Banks to
leading banks in the London interbank market at or about 11.00
am on the applicable Rate Fixing Day for deposits in the
relevant currency in an amount equal or comparable to such
Advance or unpaid sum for the duration of the relevant Interest
Period; or
12
(b) if any Reference Bank does not provide a quote as contemplated
by paragraph (a) above, the relevant arithmetic mean determined
on the basis of the quotations supplied by the remaining
Reference Banks; or
(c) if no (or only one) Reference Bank supplies a quote as
contemplated by paragraph (b), above the provisions of Clause
13.4 (Change in Market Conditions) shall apply.
For the purposes of this Agreement the references to "TELERATE PAGE 3740
OR 3750" means the display designated as Page 3740 or Page 3750 on the
Telerate Service (or such other page as may replace Page 3740 or Page
3750 on that service), or such other service as may be nominated by the
British Bankers' Association as the information vendor for the purpose
of displaying the British Bankers' Association Interest Settlement Rates
for deposits in the relevant currencies;
"LISTING" means a listing of all or any part of the share capital of any
member of the Group on the London Stock Exchange or on any other
recognised investment exchange (as defined in the Financial Services Act
1986) or any other sale or issue by way of flotation or public offering
or any equivalent circumstances in relation to any member of the Group
in any jurisdiction or country.
"MAJORITY BANKS" means, at any time:-
(a) Banks whose Commitments aggregate more than 66 2/3 per cent. of
the Total Commitments (and for this purpose the amount of an
Ancillary Bank's Revolving Commitment shall not be reduced by
the amount of its Ancillary Limit); or
(b) if the Total Commitments have been reduced to zero, Banks whose
Commitments aggregated more than 66 2/3 per cent. of the Total
Commitments immediately before the reduction;
"MARGIN" means:-
(a) in relation to the Tranche A Term Facility, 2 per cent. per
annum; and
(b) in relation to the Tranche B Term Facility, 2.5 per cent. per
annum; and
(c) in relation to the Tranche C Term Facility, 3 per cent. per
annum; and
(d) in relation to the Revolving Facility, 2 per cent. per annum;
subject, in the case of the Tranche A Term Facility and the Revolving
Facility, to the provisions of Clause 6.6 (Margin Adjustment);
"MATERIAL ADVERSE EFFECT" means any effect, event, matter or
circumstance:-
(a) which in the reasonable opinion of the Majority Banks is
materially adverse to:-
(i) the business, assets or financial condition of the Group
(taken as a whole); or
(ii) the ability of any Obligor to perform any of its payment
obligations under any of the Finance Documents or the
ability of the Parent to perform its obligations under
Clause 16.7 (Financial Covenants); or
(b) which results in any of the Senior Finance Documents not being
legal, valid and binding on and, subject to reservations,
enforceable against any party thereto and/or in the case of any
Security Documents not providing to the Security Agent security
over the assets expressed to be secured under the Security
Documents in each case in a manner or to an extent which the
13
Majority Banks reasonably consider to be materially prejudicial
to the interests of any Senior Finance Party under the Senior
Finance Documents;
"MATERIAL GROUP COMPANY" means:-
(a) each Obligor; and
(b) any other Subsidiary of the Parent, the profit from ordinary
activities before interest, taxation, depreciation, amortisation
and exceptional items, turnover or gross assets of which exceeds
5% of the profit from ordinary activities before interest,
taxation, depreciation, amortisation and exceptional items,
turnover or gross assets of the Group, and for this purpose the
calculation of profit from ordinary activities before interest,
taxation, depreciation, amortisation and exceptional items,
turnover or gross assets shall:-
(i) be made in accordance with Applicable GAAP;
(ii) in the case of a company which itself has Subsidiaries,
be made by using the consolidated profit from ordinary
activities before interest, taxation, depreciation,
amortisation and exceptional items, turnover or gross
assets, as the case may be, of it and its Subsidiaries;
and
(iii) be made by reference to the latest available quarterly
financial information of the relevant Subsidiary and the
Group;
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Obligor or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to
make contributions;
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
any Obligor or any ERISA Affiliate and at least one person (other than
the Obligors and the ERISA Affiliates) or (b) was so maintained and in
respect of which any Obligor or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or
were to be terminated;
"NET PROCEEDS" means:-
(a) in relation to any disposal, the total consideration received by
any member or members of the Group in respect of the disposal
from the Group of any member of the Group or of all or any part
of the business, undertaking or assets of any member of the
Group (including, without limitation, the amount of any debt
owed to continuing members of the Group by any member of the
Group disposed of which is repaid in connection with that
disposal) but after deduction of the amount of any tax required
to be paid as a result of the disposal or in connection with any
prepayment required to be made hereunder and after deduction of
all other costs and expenses properly incurred by continuing
members of the Group in connection with that disposal;
(b) in relation to any Listing, the cash proceeds (net of
underwriting discounts and commissions and other reasonable
costs and expenses associated therewith) received from such
Listing;
"OBLIGORS" means the Parent, each Borrower and each Guarantor and
"OBLIGOR" means any of them;
"OPTIONAL CURRENCY" means Euro, Sterling and any other currency which is
freely transferable and convertible into US Dollars and deposits of
which are freely available in the London Interbank Market;
14
"ORIGINAL EQUITY INVESTORS" means the Investors (as defined in the
Investment Agreement) as at the date on which the Investment Agreement
is entered into;
"PARTICIPATING MEMBER STATE" means any member state which adopts the
euro unit of the single currency pursuant to the Treaty;
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor);
"PERMITTED INDEBTEDNESS" has the meaning given in Clause 16.3(f)
(Indebtedness);
"PERMITTED JOINT VENTURE" means (i) a joint venture, partnership or
similar arrangement, pursuant to which the liability of members of the
Group is limited in amount (but excluding, for the avoidance of doubt,
China Project Newco and the China Project) or (ii) a joint venture,
partnership or similar arrangement in which the member of the Group
participates through a special purpose company with limited liability
and no other business or assets and, in either case, in which the
interest of the Parent or a directly or indirectly wholly-owned
subsidiary of the Parent is less than 100% but more than 25%, (but for
the avoidance of doubt not including Existing JV Companies, China
Project Newco and the China Project provided that:-
(a) such joint venture, partnership or similar arrangement is in a
business similar to or connected with the Business;
(b) the aggregate of:
(i) any amount advanced, lent, contributed or subscribed
for, or otherwise invested in, such Permitted Joint
Venture by any member of the Group; and
(ii) the market value of any asset transferred or contributed
to such Permitted Joint Venture by any member of the
Group; and
(iii) any liability incurred (whether by way of guarantee or
otherwise) in relation to such Permitted Joint Venture
by any member of the Group; and
(iv) any obligation of any member of the Group directly or
indirectly pursuant to any agreement or arrangement to
lend to or guarantee or transfer assets to or otherwise
fund or incur any liability in relation to such joint
venture, partnership or similar arrangement or acquire
any shares or other interest therein or assets thereof,
shall not exceed, in any Capex Period the Available Amount in
respect of that joint venture, partnership or similar
arrangement; and
(c) all items specified in paragraphs (i) to (iv) above when
aggregated in respect of all Permitted Joint Ventures shall not
after the date of this Agreement exceed Pound
Sterling10,000,000;
"PERMITTED SECURITY INTEREST" means the Security Interests set out in
Clause 16.3(d)(i) to (xiii) (inclusive);
"PLAN" means a Single Employer Plan or a Multiple Employer Plan;
"POTENTIAL EVENT OF DEFAULT" means any event which with the giving of
notice or the lapse of time or the making of any determination or
fulfilment of any condition provided for in Clause 17.1 (Events of
Default) would constitute an Event of Default;
"PRODUCTS" has the meaning given in the Acquisition Agreement;
15
"RATE FIXING DAY" means, in relation to an Advance or other amount
denominated in Sterling, the first day of an Interest Period relating
thereto, and in relation to an amount denominated in any other currency,
the day two Business Days prior to the first day of the Interest Period
relating thereto;
"REFERENCE BANKS" means the principal London offices of Deutsche Bank AG
LONDON, Barclays Bank PLC, The Chase Manhattan Bank and The Royal Bank
of Scotland plc or if any such Bank ceases to be a Reference Bank such
other Bank as the Facility Agent shall select after consultation with
the Parent;
"REGISTERED INTELLECTUAL PROPERTY RIGHTS" has the meaning given in the
Acquisition Agreement;
"REPAYMENT DATES" means each date on which an instalment is due for
repayment under Clause 7.1 (Term Advances), the Final Tranche A
Repayment Date, the Final Tranche B Repayment Date, the Final Tranche C
Repayment Date and the Revolving Facility Repayment Date;
"REPORTS" means:
(a) each of the accountants reports on the Business in the approved
form prepared by each of KPMG and PriceWaterhouseCoopers;
(b) each of the legal due diligence reports in the approved form
prepared by Freshfields and Xxxxxxx Xxxxxxx & Xxxxxxxx;
(c) the environmental report in the approved form prepared by Dames
& Xxxxx;
(d) the industry report in the approved form prepared by Tecnon (UK)
Limited;
(e) the pensions report in the approved form prepared by Xxxxxx
Xxxxx Worldwide;
(f) the tax report in the approved form prepared by
PriceWaterhouseCoopers;
(g) the reports on title in the approved form prepared by
Freshfields;
and "REPORT" means any of them;
"REVOLVING FACILITY" means the revolving credit facility to be made
available by the Revolving Banks pursuant to Clause 2.1(d) (Facilities);
"REVOLVING FACILITY REPAYMENT DATE" means 30th September, 2006;
"SECURITY AGENT" means Deutsche Bank AG LONDON as security trustee for
the Senior Finance Parties under the Security Documents or such other
person as may from time to time hold the whole or any part of the
security created thereby;
"SECURITY DOCUMENTS" means the documents specified in Schedule 10 and
any other document providing for a guarantee or Security Interest in
favour of the Senior Finance Parties (or any of them) in respect of the
obligations of the Obligors under the Senior Finance Documents;
"SECURITY INTEREST" means any mortgage, charge (fixed or floating),
standard security, pledge, lien, hypothecation, right of set-off,
security trust, assignment by way of security, reservation of title, or
any other security interest whatsoever, howsoever created or arising or
any other agreement or arrangement (including, without limitation, a
sale and repurchase arrangement) entered into for the purposes of
conferring security and any agreement to enter into, create or establish
any of the foregoing;
16
"SENIOR FINANCE PARTIES" means the Arrangers, the Facility Agent, the
Security Agent, each Bank, each Ancillary Bank, each Issuing Bank and
each Hedging Bank and "SENIOR FINANCE PARTY" means any of them;
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
any Obligor or any ERISA Affiliate and no person other than the Obligors
and the ERISA Affiliates or (b) was so maintained and in respect of
which any Obligor or any ERISA Affiliate could have liability under
Section 4069 of ERISA in the event such plan has been or were to be
terminated;
"SPECIFIED SOVEREIGN" means any member state of the European Union as
comprised on the Completion Date (other than Greece or Portugal);
"STERLING" OR "POUND STERLING" means the lawful currency for the time
being of the United Kingdom;
"STERLING EQUIVALENT" in relation to an amount denominated or expressed
in US Dollars or Euro means the equivalent thereof in Sterling converted
at the Facility Agent's spot rate of exchange on the date specified for
the relevant calculation;
"STRUCTURE DOCUMENT" means the document in the agreed form comprising,
inter alia, diagrams of the Group before and after Completion and
indicating the movements of funds which will take place on the
Completion Date;
"SUBORDINATION AGREEMENT" means the subordination agreement, in the
agreed terms, dated on or before the Effective Date between, inter alia,
each of the Senior Finance Parties, the CDC DDBs Creditors and the
Parent;
"SUBSIDIARY" means:-
(a) a subsidiary as defined in Section 736 of the Companies Xxx
0000; and
(b) a subsidiary undertaking as defined in Section 21 of the
Companies Xxx 0000;
"SYNDICATION MEMORANDUM" means the information memorandum to be agreed
between the Parent and the Facility Agent as contemplated by Clause 3.5
(Syndication);
"TARGET" means the Target Business and the Target Shares;
"TARGET BUSINESS" means the Business Assets (as defined in the
Acquisition Agreement);
"TARGET SHARES" means the Shares and the TPA Shares each as defined in
the Acquisition Agreement;
"TERM ADVANCES" means the Tranche A Advances, the Tranche B Advances and
the Tranche C Advances and "TERM ADVANCE" means any of them;
"TERM FACILITIES" means the Tranche A Term Facility, the Tranche B Term
Facility and the Tranche C Term Facility and "TERM FACILITY" means any
of them;
"THIRD PARTY-OWNED RIGHTS" has the meaning given in the Acquisition
Agreement;
"TOTAL COMMITMENTS" means, at any time, the aggregate of all of the
Commitments at that time;
17
"TRANCHE A TERM FACILITY" means the term loan facility to be made
available by the Tranche A Banks pursuant to Clause 2.1(a) (Facilities);
"TRANCHE B TERM FACILITY" means the term loan facility to be made
available by the Tranche B Banks pursuant to Clause 2.1(b) (Facilities);
"TRANCHE C TERM FACILITY" means the term loan facility to be made
available by the Tranche C Banks pursuant to Clause 2.1(c) (Facilities);
"TRANSACTION COSTS" means all fees, costs and expenses and stamp,
registration, notarial and similar taxes incurred by the Parent in
connection with the Acquisition and its financing (including the High
Yield Notes);
"TRANSACTION DOCUMENTS" means the Finance Documents, the Investor
Documents, the CDC DDBs documents, the Acquisition Documents, the
Xxxxx/Bondco Loan Agreement and the Intercompany Loan Agreements;
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 6;
"TRANSFER DATE" means in relation to any Transfer Certificate, the date
for the making of the transfer as specified in such Transfer
Certificate;
"TRANSFEREE" means a person to whom a Bank seeks to transfer all or part
of its rights, benefits and obligations hereunder;
"TREATY" means the treaty establishing the European Community being the
Treaty of Rome as amended from time to time;
"UK BONDCO" means Ineos Acrylics UK Bondco Limited a company
incorporated in England with registered number 3830500;
"UK XXXXX" means Ineos Acrylics UK Xxxxx Limited a company incorporated
in England with registered number 3830160;
"UK OVERSEAS HOLDCO" means Ineos Acrylics UK Overseas HoldCo1 Limited, a
company incorporated in England with registered number 3830166;
"UK PARENTCO 1" means Ineos Acrylics UK ParentCo1 Limited, a company
incorporated in England with registered number 3829877;
"UK PARENTCO 2" means a company to be incorporated in England as a
wholly owned subsidiary of UK ParentCo1;
"UK PARENTCO 3" means Ineos Acrylics UK Parentco2 Limited (to be renamed
Ineos Acrylics UK ParentCo3 Limited), a company incorporated in England
with registered number 3830184;
"UK PARTNERCO 1" means Ineos Acrylics UK PartnerCo1 Limited, a company
incorporated in England with registered number 3830156;
"UK PARTNERCO 2" means Ineos Acrylics UK PartnerCo2 Limited, a company
incorporated in England with registered number 3830689;
18
"UK TRADER CO" means Ineos Acrylics UK Trader Limited, a company
incorporated in England with registered number 3830161;
"UK TRADER HOLDCO" means Ineos Acrylics UK Trader HoldCo Limited, a
company incorporated in England with registered number 3830164;
"UK-US HOLDCO" means Ineos Acrylics US HoldCo Limited, a company
incorporated in England with registered number 3830157;
"US DOLLAR EQUIVALENT" in relation to an amount denominated or expressed
in an Optional Currency means the equivalent thereof in US Dollars
converted at the Facility Agent's spot rate of exchange on the date
specified for the relevant calculation;
"US DOLLARS", "DOLLARS" or " US$" means the lawful currency for the time
being of the United States of America;
"US HOLDCO" means a company to be incorporated under the laws of the
state of Delaware as a wholly owned subsidiary of the US Partnership;
"US OBLIGOR" means any Obligor incorporated in any part of the United
States of America;
"US PARTNERSHIP" means a Delaware general partnership to be incorporated
with UK PartnerCo1 and UK PartnerCo2 as the general partners;
"VENDOR" means Imperial Chemicals Industries plc;
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of Subtitle E
of Title IV of ERISA;
"YEAR 2000 COMPLIANT" means that all information systems, software and
equipment used by any member of the Group will:
(a) accurately process data (including calculating, comparing and
sequencing) during and after the year 2000 where failure to do
so would have a Material Adverse Effect; and
(b) when used in combination with, or interfacing with, other
information systems and equipment, will in all material respects
continue to perform and function in the same manner required for
it to conduct the Business and will not suffer any processing
difficulties associated with the year 2000 which would have a
Material Adverse Effect.
1.2 CONSTRUCTION: In this Agreement, unless the context otherwise requires,
a reference to:-
an "AFFILIATE" of a person shall mean a Subsidiary of such person or a
Subsidiary of any holding company of such person or any holding company
of such person;
an "AGENCY" of a state includes any local or other authority, self
regulating or other recognised body or agency, central or federal bank,
department, government, legislature, minister, ministry, self regulating
organisation, official or public or statutory person (whether autonomous
or not) of, or of the government of, that state or any political
sub-division in or of that state;
a document being "IN THE AGREED TERMS" or "IN THE AGREED FORM" or "IN
THE APPROVED FORM" means, as the case may be, on terms, in a form agreed
and/or approved by the Facility Agent; and
19
an "AGREEMENT" includes any legally binding agreement, arrangement,
concession, contract, deed or franchise (in each case whether oral or
written);
"ASSETS" includes property and rights of every kind, present, future and
contingent (including uncalled share capital) and every kind of interest
in an asset;
a "CONSENT" includes an authorisation, approval, exemption, licence,
permit, order or permission (and reference to obtaining "CONSENTS" shall
be construed accordingly);
a "DIRECTIVE" means any directive, regulation, request or requirement;
a "FILING" includes any filing, registration, recording or notice (and
references to making or renewing "FILINGS" shall be construed
accordingly);
a "GUARANTEE" includes:-
(a) an indemnity; and
(b) any other obligation (whatever called) of any person:-
(i) to pay, purchase, provide funds (whether by the advance
of money, the purchase of or subscription for shares or
other investments, the purchase of assets or services,
the making of payments under an agreement or otherwise)
for the payment of, indemnify against the consequences
of default in the payment of, or otherwise be
responsible for, any indebtedness of any other person;
or
(ii) to be responsible for the performance of any obligations
by or the solvency of any other person,
(and "GUARANTEED" and "GUARANTOR" shall be construed accordingly);
"INDEBTEDNESS" includes any obligation (whether incurred as principal,
guarantor or as surety) for the payment or repayment of money, whether
present or future, actual or contingent;
a "MONTH" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month
provided that if:-
(a) any such period would otherwise end on a day which is not a
Business Day, it shall end on the next Business Day in the same
calendar month or, if none, on the preceding Business Day; and
(b) a period starts on the last Business Day in a calendar month or
if there is no numerically corresponding day in the month in
which that period ends, that period shall end on the last
Business Day in that later month,
(and references to "MONTHS" shall be construed accordingly);
a "PERSON" includes any person, unincorporated association, firm,
partnership, company, corporation or other body corporate, government,
state or agency of a state (whether or not having separate legal
personality);
"RESERVATIONS" means the principle that equitable remedies are remedies
which may be granted or refused at the discretion of the court, the
limitation on enforcement as a result of laws relating to bankruptcy,
insolvency, liquidation, reorganisation, court schemes, moratoria,
administration and other laws affecting the rights of creditors
generally, the time-barring of claims under the Limitation Acts,
20
rules against penalties and similar principles and generally applicable
limitations of law in other jurisdictions relevant in the context of the
Transaction Documents;
"TAXES" includes all present and future income and other taxes, levies,
assessments, imposts, deductions, charges, duties, compulsory loans and
withholdings on account of tax whatsoever and wheresoever imposed and
any charges in the nature of taxation together with interest thereon and
penalties and fines with respect thereto, if any, and any payments made
on or in respect thereof and "TAX" and "TAXATION" shall be construed
accordingly;
"WINDING-UP" of any person includes its dissolution and/or termination
and/or any equivalent or analogous proceedings under the law of any
jurisdiction to which that person is subject.
1.3 OTHER REFERENCES: Save where a contrary intention appears, in this
Agreement:-
(a) a reference to a person is, where relevant, deemed to be a
reference to or to include, as appropriate, their respective
successors, permitted assignees or transferees;
(b) references to Clauses and Schedules are references to,
respectively, clauses of and schedules to this Agreement and
references to this Agreement include its Schedules;
(c) a reference to any agreement (including, without limitation, any
of the Senior Finance Documents) is to be construed as a
reference to that agreement as it may from time to time be
amended, varied, supplemented, restated or novated but excluding
for this purpose any amendment, variation, supplement or
modification which is contrary to any provision of any of the
Senior Finance Documents;
(d) a reference to a statute or statutory instrument or any
provision thereof is to be construed as a reference to that
statute or statutory instrument or such provision thereof as the
same may have been, or may from time to time hereafter be,
amended or re-enacted;
(e) a time of day is a reference to London time;
(f) the index to and the headings in this Agreement are inserted for
convenience only and are to be ignored in construing this
Agreement;
(g) words importing the plural shall include the singular and vice
versa;
(h) in the event that compliance with any monetary limit specified
in this Agreement (other than Clause 16.7 (Financial Covenants))
shall fall to be determined any conversion from any currency to
another currency necessary for that purpose shall be by
reference to the Facility Agent's spot rate of exchange on the
date of determination; and
(i) for the purposes of (i) calculating the Commitments for the
definition of "Majority Banks" in Clause 1.1, and (ii) effecting
transfers or assignments pursuant to Clause 20.3 (Assignments
and Transfers by Banks), any reference to a Bank shall also be
deemed to include a reference to any affiliate which it has
nominated pursuant to Clause 3.3 (Lending Affiliates).
1.4 CASH COVER: Whenever a Borrower is obliged under the terms of this
Agreement:-
(a) to repay or prepay any Contingent Liability or provide cash
cover in respect of any Contingent Liability, that Borrower
shall on the date for such repayment or prepayment or provision
of such cash cover:-
(i) by agreement with the beneficiary of such Letter of
Credit or Bank Guarantee, reduce such Contingent
Liability by the relevant amount; or
21
(ii) pay the relevant amount to the credit of a Cash
Collateral Account; or
(b) to repay or prepay any contingent liability arising under the
Ancillary Facilities, it shall do so in accordance with
paragraph (a) above or as otherwise specified in the relevant
Ancillary Documents;
(c) to provide cash cover in respect of a Letter of Credit or Bank
Guarantee such cash cover shall be provided in the currency of
that Letter of Credit or Bank Guarantee.
2 THE FACILITIES
2.1 FACILITIES: On the terms and subject to the conditions of this
Agreement:-
(a) the Tranche A Banks agree to make available to UK Xxxxx a
Sterling term loan facility in a maximum aggregate principal
amount not exceeding Pound Sterling95,000,000 which shall be
available for drawing in US Dollars or Euro in proportions to be
agreed by the Facility Agent and the Parent;
(b) the Tranche B Banks agree to make available to UK Xxxxx a
Sterling term loan facility in a maximum aggregate principal
amount not exceeding Pound Sterling70,000,000 which shall be
available for drawing in US Dollars or Euro in proportions to be
agreed by the Facility Agent and the Parent;
(c) the Tranche C Banks agree to make available to UK Xxxxx a
Sterling term loan facility in a maximum aggregate principal
amount not exceeding Pound Sterling50,000,000 which shall be
available for drawing in US Dollars; and
(d) the Revolving Banks agree to make available to the Borrowers a
US Dollar revolving credit facility in a maximum aggregate
principal amount not exceeding US$85,000,000 which shall be
available for drawing in US Dollars and Optional Currencies and
by way of Revolving Advances, issue of Letters of Credit or Bank
Guarantees and, on the basis provided for in Clause 2.2, by way
of Ancillary Facilities.
2.2 ANCILLARY FACILITIES:
(a) A Revolving Bank may by notice to the Facility Agent and subject
to the provisions of this Agreement at any time designate a
portion of its Revolving Commitment to be made available by way
of Ancillary Facilities under and in accordance with the terms
of Ancillary Documents. Any such notice shall specify the type
of Ancillary Facilities to be made available and the Ancillary
Limit applicable thereto.
(b) In the event that a Revolving Bank designates a portion of its
Revolving Commitment to be made available by way of Ancillary
Facilities then with effect from such date as the relevant
Revolving Bank, the Parent and the Facility Agent may agree the
Revolving Commitment of such Revolving Bank shall be reduced by
the Ancillary Limit applicable to the Ancillary Facilities made
available by that Revolving Bank. In the event that such
Revolving Bank ceases to make available all or part of such
Ancillary Facilities its Revolving Commitment shall be increased
accordingly.
2.3 PURPOSE:-
(a) The proceeds of the Term Advances shall be applied:-
(i) in part discharging the purchase price for the Target
Shares and the Target Business pursuant to the
Acquisition Documents;
(ii) in discharging existing indebtedness of the Target; and
22
(iii) in part discharging Transaction Costs.
(b) Subject to Clause 2.3(a), the proceeds of the Term Advances
shall be borrowed by UK Xxxxx and on-lent pursuant to the
Inter-Company Loan Agreements in accordance with the Structure
Document;
(c) The proceeds of Revolving Advances and each Letter of Credit and
Bank Guarantee issued under the Revolving Facility and the
Ancillary Facilities shall be used for the general corporate
purposes of the Group arising after the Completion Date or to
purchase cash funded by the Vendor after the date of the
Acquisition Agreement pursuant to the terms of the Acquisition
Agreement.
(d) No Senior Finance Party shall be obliged to enquire as to the
use or application of amounts raised under the Finance
Documents.
2.4 ADDITIONAL BORROWERS: A wholly owned Subsidiary of the Group other than
the initial Borrowers referred to in Part A of Schedule 2 may become a
Borrower after Completion in respect of the Revolving Facility if:-
(a) the Parent gives written notice to the Facility Agent
identifying the relevant wholly owned Subsidiary of the Group;
(b) the Banks confirm to the Facility Agent that they consent to the
relevant wholly owned Subsidiary of the Group becoming a
Borrower which consent may be given subject to such conditions
as the Majority Banks shall reasonably specify but shall not be
unreasonably withheld or delayed in the case of a company
incorporated in the United Kingdom or in any state of the United
States of America;
(c) the relevant wholly owned Subsidiary of the Group, the Parent
and the Facility Agent execute an Accession Document designating
the relevant wholly owned Subsidiary of the Group as a Borrower;
(d) the relevant wholly owned Subsidiary of the Group delivers such
evidence of the due execution of such documents as the Facility
Agent shall reasonably require together with a legal opinion
satisfactory to the Facility Agent (acting reasonably).
2.5 DELAYED COMPLETION: Any proceeds of the Term Advances drawn at
Completion to be applied in discharging the purchase price for any
Delayed Completion shall be paid to the credit of a Cash Collateral
Account in the name of UK Xxxxx until so applied. In the event that such
proceeds are not applied in discharging the purchase price for such
Delayed Completion in accordance with the terms of the Acquisition
Agreement, the relevant Borrower shall apply such proceeds in prepayment
of the Facilities in accordance with Clause 8.5 (Prepayments: Order of
Application).
3 PARTICIPATION OF BANKS
3.1 BASIS OF PARTICIPATION: Subject to the other provisions of this
Agreement:
(a) each Tranche A Bank will participate in each Tranche A Advance
in the proportion which its Tranche A Commitment bears to the
total Tranche A Commitments as at the relevant Drawing Date;
(b) each Tranche B Bank will participate in each Tranche B Advance
in the proportion which its Tranche B Commitment bears to the
total Tranche B Commitments as at the relevant Drawing Date;
23
(c) each Tranche C Bank will participate in each Tranche C Advance
in the proportion which its Tranche C Commitment bears to the
total Tranche C Commitments as at the relevant Drawing Date;
(d) each Revolving Bank will participate in each Revolving Advance
in the proportion which its Revolving Commitment bears to the
total Revolving Commitments as at the relevant Drawing Date;
(e) each Revolving Bank will participate (by way of indemnity in
favour of the relevant Issuing Bank pursuant to paragraph 4(b)
of Schedule 9 (Indemnity)) in each Bank Guarantee and Letter of
Credit in the proportion which its Revolving Commitment bears to
the total Revolving Commitments as at the relevant Drawing Date.
For the purposes of Clauses 3.1(d) and (e) (Basis of Participation) and
determining the Revolving Banks' respective participations in Drawings
of the Revolving Facility, the Revolving Commitment of each Ancillary
Bank will be reduced by the amount of its Ancillary Limit and the total
Revolving Commitments will be reduced by the total Ancillary Limits in
each case as at the relevant Drawing Date.
3.2 LENDING OFFICES:
(a) Subject as provided in Clause 3.3 (Lending Affiliates) below,
each Bank will participate in each Drawing through its Lending
Office. If any Bank changes its Lending Office for the purpose
of this Agreement, that Bank will notify the Facility Agent and
the Parent promptly of such change and, until it does so, the
Facility Agent and the Parent will be entitled to assume that no
such change has taken place.
(b) Any Bank may nominate a different Lending Office for the
purposes of making a particular Drawing or particular type of
Drawing to an Obligor in which event such Lending Office shall
be for all purposes of this Agreement its Lending Office for
that Drawing or type of Drawing but not otherwise.
(c) If any Bank changes its Lending Office or nominates a different
Lending Office for the purpose of the Facilities and that change
or nomination would (but for this Clause 3.2(c) and as a result
of laws or regulations in force or known to be coming into force
at that time) result on the occasion of any subsequent payment
to that Bank in any amount being required to be paid by an
Obligor under Clause 12 (Taxes and Other Deductions) or 13.2
(Increased Costs), that Obligor shall not be liable to pay any
such amount in excess of the amount it would have been obliged
to pay if that Bank had not changed its Lending Office or
nominated a different Lending Office.
3.3 LENDING AFFILIATES:
(a) The obligations of each Bank in respect of each Drawing to be
made available by it under this Agreement may be discharged by
such Bank nominating in this Agreement or in the Transfer
Certificate pursuant to which it becomes party to this
Agreement, an affiliate of such Bank as being the lender of one
or more Drawings, or by such affiliate executing this Agreement
in such capacity, for the purposes of mitigating any obligation
to deduct withholding tax from any payment to such Bank pursuant
to Clause 12 (Taxes and Other Deductions) or any payment
obligation which might otherwise arise pursuant to Clause 13
(Change in Circumstances). Such affiliate may lend or otherwise
make available the amount which such Bank is obliged to lend or
so make available in accordance with and subject to the terms of
this Agreement. Any amount made available by an affiliate shall
be due for repayment to it in accordance with the terms of this
Agreement as though it had been made available by such Bank.
Such affiliate shall be entitled to the extent of its
participation by virtue of such Drawing to all the rights and
benefits of this Agreement and the other Senior Finance
Documents including without limitation Clause 12 (Taxes and
Other Deductions) and Clause
24
13 (Change in Circumstances) provided that such rights and
benefits shall be exercised on its behalf by its nominating Bank
save where law or regulation requires the affiliate to do so.
Each Bank shall remain liable and responsible for the
performance of all obligations assumed by the affiliate on its
behalf, and non-performance of a Bank's obligations by its
affiliate shall not relieve such Bank from its obligations under
this Agreement.
(b) If any Bank nominates an affiliate for the purposes of Clause
3.3(a) and that nomination would (but for this Clause 3.3 as a
result of laws or regulations in force or known to be coming
into force at that time) result on the occasion of any
subsequent payment to that affiliate in any amount being
required to be paid by an Obligor under Clause 12 (Taxes and
Other Deductions) or Clause 13.2 (Increased Costs), that Obligor
shall not be liable to pay any such amount in excess of the
amount it would have been obliged to pay if that Bank had not
nominated its affiliate to participate in the Facilities as
above. Each Bank shall notify the Facility Agent and the Parent
of the tax jurisdiction from which its affiliate will
participate in the relevant Drawings.
(c) Any notice or communication to be made to an affiliate pursuant
to Clause 22.1 (Notices) shall be deemed to be served if
delivered to the Lending Office of the Bank which nominated the
affiliate pursuant to Clause 3.3 provided that any such notice
or communication may be served directly upon the affiliate to
the extent required to mitigate any obligation to deduct
withholding tax from any payment to such Bank pursuant to Clause
12 (Taxes and Other Deductions) or any payment obligation which
might otherwise arise pursuant to Clause 13 (Change in
Circumstances).
3.4 RIGHTS AND OBLIGATIONS OF SENIOR FINANCE PARTIES: The rights and
obligations of each of the Senior Finance Parties under the Senior
Finance Documents are several and the total amounts outstanding at any
time under the Senior Finance Documents constitute separate and
independent debts. Failure of a Senior Finance Party to observe and
perform its obligations under any Senior Finance Document shall
neither:-
(a) result in any other Senior Finance Party incurring any liability
whatsoever; nor
(b) relieve any Obligor or any other Senior Finance Party from their
respective obligations under the Senior Finance Documents.
3.5 ENFORCEMENT OF RIGHTS: Subject to any provision of the Senior Finance
Documents to the contrary, each Senior Finance Party has the right to
protect and enforce its rights arising out of the Senior Finance
Documents and it will not be necessary for any other Senior Finance
Party to be joined as an additional party in any proceedings brought for
the purpose of protecting or enforcing such rights.
3.6 SYNDICATION:-
(a) The parties acknowledge that, at the date of this Agreement, the
Facilities are being made available by the Original Banks with
the intention (but not the obligation) that the Facility Agent
should coordinate syndication of the Facilities.
(b) The Parent undertakes to assist and co-operate with the Facility
Agent in syndication of the Facilities in such manner and to
such extent as the Facility Agent may from time to time
reasonably request including, without limitation, by:-
(i) the preparation of the Syndication Memorandum in
relation to the Group and the business, trading,
prospects, financial condition, assets and liabilities
of the Group;
(ii) participating in presentations to potential Banks
concerning the activities of the Group; and
(iii) (save to the extent otherwise required by the terms of
Clause 6.1(f)) selecting Interest Periods in relation to
Advances having a duration of not more than one month in
25
respect of all Advances made on or until the earlier of
(i) the date falling six months from the date of this
Agreement, and (ii) the date on which the Facility Agent
advises the Parent that syndication of the Facilities is
complete.
4 CONDITIONS PRECEDENT
4.1 INITIAL CONDITIONS PRECEDENT: The Banks shall not be under any
obligation to make any Drawing available to the Borrowers under this
Agreement unless:-
(a) DOCUMENTARY: the Facility Agent has received each of the
documents specified in Schedule 3 (or the Facility Agent is
satisfied that, subject only to the making of the Advances on
the Completion Date, it will receive such documents) in form and
substance satisfactory to the Facility Agent;
(b) EQUITY: the Facility Agent is satisfied that:-
(i) the Original Equity Investors have subscribed in full in
cash an aggregate amount of not less than Pound
Sterling175,000,000 by way of subscription for ordinary
and preference shares issued by the Parent;
(ii) such shares are unconditionally owned by the Original
Equity Investors and registered in their respective
names in the books of the Parent; and
(iii) the total proceeds of the shares have been subscribed
for ordinary shares in UK ParentCo 1 and by UK ParentCo
1 for ordinary shares in UK ParentCo 2 and by UK
ParentCo 2 for ordinary shares in UK ParentCo 3 and are
standing to the credit of the Closing Account;
(c) COMPLETION: the Facility Agent is satisfied that Completion will
occur immediately after the making of the Term Advances under
this Agreement.
When the Facility Agent is satisfied that the conditions specified in
this Clause 4.1 have been fulfilled, it will notify the Parent and the
Banks.
4.2 ADDITIONAL CONDITIONS PRECEDENT: In addition the Banks shall be under no
obligation to make any Drawing available to the Borrowers unless, on
both the date of the relevant Drawing Request and the relevant Drawing
Date:-
(a) (subject as provided in Clause 4.3) no Event of Default or
Potential Event of Default has occurred and is continuing and no
Event of Default or Potential Event of Default will occur as a
result of making such Drawing;
(b) (subject as provided in Clause 4.3) the representations and
warranties set out in Clause 15 (Representations and Warranties)
stipulated in Clause 15.2 (Repetition) as being repeated on
those dates are true and accurate in each case by reference to
the facts and circumstances then subsisting and will remain true
and accurate immediately after the Drawing is made; and
(c) (save in respect of Advances drawn on the Completion Date) none
of the circumstances specified in Clause 13.4(a)(ii)(a) (Change
in Market Conditions) has occurred and is continuing,
(d) (in relation to Advances drawn at Completion) the Parent or the
appropriate Subsidiary is not entitled to terminate the
Acquisition Agreement under the terms thereof and has not been
so entitled at any time before Completion and is not and has not
been entitled to refuse to complete the Acquisition in
accordance with the Acquisition Agreement (nor would have been
so entitled but for any waiver, amendment or variation of the
Parent's or the appropriate
26
Subsidiary's rights under the Acquisition Agreement or exercise
of any discretion thereunder to which the Facility Agent has not
consented in writing).
4.3 TARGET: Clauses 4.2(a) and (b) (Additional Conditions Precedent) shall
not apply to Advances drawn at Completion unless the relevant Event of
Default, Potential Event of Default or representation and warranty
relates only to the Parent or any person which is a Subsidiary of the
Parent immediately prior to Completion, and not to the Target.
5 DRAWINGS
5.1 DELIVERY OF DRAWING REQUESTS: In order to draw the Term Facilities or
the Revolving Facility, the Parent or the relevant Borrower must deliver
to the Facility Agent a duly completed Drawing Request not later than
10.00 a.m. three Business Days (or, in the case of an Advance to be
denominated in Sterling, one Business Day and, in the case of a Letter
of Credit or Guarantee to be denominated in Sterling, two Business Days)
prior to the proposed Drawing Date (or, in the case of Advances to be
made at Completion at such later time and date as the Facility Agent may
agree) specifying:
(a) which of the Facilities the Drawing is to be made under, whether
the Drawing is of an Advance, (or in the case of the Revolving
Facility) a Letter of Credit or Bank Guarantee and the identity
of the Borrower;
(b) the proposed Drawing Date (which must be a Business Day falling
within the relevant Availability Period);
(c) if the Drawing is by way of a Term Advance, the amount of such
Advance which must be in compliance with Clause 2.1 (Facilities)
and together with all such Term Advances be equal to (or in the
case of a Drawing in US Dollars or Euro have a Sterling
Equivalent on the Drawing Date equal to) the undrawn portion of
the total Commitments in relation to the Term Facility under
which such Advance is being requested;
(d) in the case of a Drawing under the Revolving Facility, the
amount of such Drawing which must be equal to or less than (or
in the case of a Drawing in an Optional Currency have a US
Dollar Equivalent equal to or less than) the undrawn portion of
the total Revolving Commitments (as reduced by the amount of the
total Ancillary Limits) and must be, if less:
(i) in the case of a Drawing by way of an Advance, in a
minimum amount of US$750,000 (and, if greater, an
integral multiple of US$250,000) in the case of a
Drawing in US Dollars or in the case of a Drawing in an
Optional Currency have a US Dollar Equivalent of not
less than US$750,000; and
(ii) in the case of a Drawing by way of a Letter of Credit or
Guarantee, in a minimum amount of US$150,000 in the case
of a Drawing in US Dollars or in the case of a Drawing
in an Optional Currency have a US Dollar Equivalent of
not less than US$150,000;
(e) if the Drawing is by way of an Advance the duration of the first
Interest Period applicable to such Advance;
(f) details of the payee and the account to which the proceeds of
the Drawing (if by way of an Advance) are to be paid (which
account must be in the principal financial centre of the country
of the currency of such Drawing and for this purpose, in the
case of a Drawing in Euro, the principal financial centre of any
Participating Member State may be nominated);
(g) if the Drawing is by way of issue of a Letter of Credit or Bank
Guarantee:-
(i) the beneficiary of such Letter of Credit or Bank
Guarantee;
27
(ii) the expiry date of the Letter of Credit or Bank
Guarantee which must be a date on or before the
Revolving Facility Repayment Date and must not be more
than twelve months after the date of issue of such
Letter of Credit or Bank Guarantee;
(iii) the terms of the arrangement to which the issue of the
Letter of Credit or Bank Guarantee relate; and
attaching the execution copy of the Letter of Credit or Bank
Guarantee to be issued.
5.2 REQUESTS IRREVOCABLE: A Drawing Request once given may not be withdrawn
or revoked.
5.3 FREQUENCY/NUMBER OF DRAWINGS: Not more than 15 Drawings of the Revolving
Facility may be outstanding at any one time.
5.4 NOTICE TO THE BANKS OF A PROPOSED DRAWING: The Facility Agent will
promptly give each Bank details of each Drawing Request received and of
the amount and currency of the Bank's participation in the relevant
Drawing.
5.5 MAKING OF ADVANCES: Subject to the provisions of this Agreement, each
Bank will make available to the Facility Agent its participation in any
Advance properly requested under this Agreement on the relevant Drawing
Date.
5.6 ISSUE OF LETTERS OF CREDIT/BANK GUARANTEES:
(a) Subject to the provisions of this Agreement, the Issuing Bank
will issue any Letter of Credit or Bank Guarantee properly
requested by delivery of such Letter of Credit or Bank Guarantee
to (or to the order of) the beneficiary of such Letter of Credit
or Bank Guarantee on the relevant Drawing Date.
(b) No Letter of Credit or Bank Guarantee shall be issued for the
account of a member of the Group which is not a Borrower under
this Agreement or to a beneficiary which the Issuing Bank or any
Bank is prohibited from dealing with by any law or directive.
(c) The Issuing Bank shall be Deutsche Bank AG LONDON unless another
Bank shall agree with the Parent and the Facility Agent that it
will issue any Letter of Credit or Bank Guarantee, in which case
that Bank shall be the Issuing Bank for the purposes of that
Letter of Credit or Bank Guarantee.
(d) The provisions of Schedule 9 shall apply in relation to any
Letter of Credit or Bank Guarantee issued under this Agreement.
6 INTEREST
6.1 INTEREST PERIODS: Interest shall be calculated and payable on each
Advance by reference to Interest Periods. Subject to the other
provisions of this Agreement each Interest Period shall be of 1, 2, 3 or
6 months' duration as selected by the Parent in the Drawing Request for
that Advance or, in the case of any subsequent Interest Period relating
to a Term Advance, in a notice received by the Facility Agent not later
than 11.00 a.m. on the third Business Day (or, in the case of a Term
Advance denominated in Sterling, the Business Day) before the first day
of that Interest Period (or such other period as may be agreed between
the Parent and the Banks) except that:-
(a) each Advance shall have an Interest Period commencing on its
Drawing Date and each successive Interest Period applicable to a
Term Advance shall commence on the expiry of the immediately
preceding Interest Period for that Term Advance;
(b) if the Parent wishes to select an Interest Period for a Term
Advance extending beyond a Repayment Date, it may do so only in
relation to that part of the Term Advance not due for
28
repayment on that date. The remainder (being equal to the
repayment instalment due on that date) shall be deemed to be a
separate Term Advance with an Interest Period ending on that
date;
(c) no Interest Period in relation to a Revolving Advance may extend
beyond the Revolving Facility Repayment Date;
(d) no Interest Period may end on any date falling between 22nd
December 1999 and 7th January 2000 (both dates inclusive) or any
date falling between 27th February 2000 and 3rd March 2000 (both
dates inclusive);
(e) subject to the above exceptions, any Interest Period for which
no effective selection notice is received by the Facility Agent
shall be of three months' duration; and
(f) if the Parent so elects in writing, not more than five and not
less than three business days prior to the date on which an
Interest Period is due to commence in respect of one or more
Term Advances, it may select different Interest Periods for each
Term Advance or (if there is only one Term Advance) designate
different Interest Periods for different parts of such Advance
(each such part to have a Sterling Equivalent on the first day
of the relevant Interest Period of not less than Pound
Sterling10,000,000 (or, if greater, an integral multiple of
Pound Sterling1,000,000)), and each such part shall thenceforth
be deemed to be a separate Term Advance provided that there
shall never be, at any time, more than 9 Interest Periods for
Term Advances concurrent having different durations.
6.2 INTEREST RATE: The rate of interest applicable to an Advance for a
particular Interest Period shall be the rate per annum determined by the
Facility Agent to be the sum of:
(a) the Additional Costs Rate;
(b) the applicable Margin; and
(c) LIBOR for that Advance for that Interest Period.
Interest will accrue daily and shall be calculated on the basis of a 365
day year in the case of Sterling and a 360 day year in the case of
Advances denominated in any other currency or in either case on the
basis of such other calculation period as market convention dictates.
6.3 NOTIFICATION OF INTEREST PERIODS AND RATES: The Facility Agent shall
promptly notify the Parent and the Banks of the duration of each
Interest Period and the rate of interest applicable to such Interest
Period.
6.4 PAYMENT OF INTEREST: On the last day of each Interest Period, the
relevant Borrower shall pay the unpaid interest accrued during the
relevant Interest Period on the Advance to which it relates provided
that if an Interest Period is in excess of six months, unpaid interest
accrued during each six month period shall be paid on the last business
day of such six month period with the balance of the unpaid interest
accrued during that Interest Period to be paid on the last day of the
relevant Interest Period.
6.5 DEFAULT INTEREST: If any Obligor fails to pay any sum (including,
without limitation, any sum payable pursuant to this Clause 6.5 (Default
Interest)) under any Senior Finance Document on its due date (an "UNPAID
SUM"), such Obligor will pay default interest on such unpaid sum from
its due date to the date of actual payment (as well after as before
judgment) at a rate determined by the Facility Agent to be 1 per cent.
per annum above:-
(a) where the unpaid sum is principal which has fallen due prior to
the expiry of the relevant Interest Period, the rate applicable
to such principal immediately prior to the date it so fell due
(but only for the period from such due date to the end of the
relevant Interest Period); or
29
(b) in any other case (including principal falling within Clause
6.5(a) (Default Interest) above once the relevant Interest
Period has expired), the rate which would be payable if the
unpaid sum was an Advance made for a period equal to the period
of non-payment divided into successive Interest Periods of such
duration as shall be selected by the Facility Agent (each a
"DEFAULT INTEREST PERIOD").
For the purposes of determining the rate of interest on an overdue sum
under this Clause 6.5, the Margin shall be:-
(a) if such sum comprises principal or interest or any other amount
due under the Tranche A Term Facility or the Revolving Facility,
the Margin in relation to the Tranche A Term Facility and the
Revolving Facility;
(b) if such sum comprises principal or interest of or any other
amount due under the Tranche B Term Facility, the Margin in
relation to the Tranche B Facility;
(c) if such sum comprises principal or interest of or any other
amount due under the Tranche C Term Facility, the Margin in
relation to the Tranche C Term Facility; and
(d) if such sum is not properly attributable to either the Tranche A
Term Facility, the Revolving Facility, the Tranche B Term
Facility or the Tranche C Term Facility, the Margin under the
Tranche A Term Facility.
Default interest will be payable on demand by the Facility Agent and
will be compounded at the end of each Default Interest Period.
6.6 MARGIN ADJUSTMENT:
(a) Save as provided in this Clause 6.6 (Margin Adjustment) the
Margin in relation to each Advance shall be the rate applicable
to that Advance as specified in the definition of Margin
contained in Clause 1.1 (Definitions).
(b) In the event that the quarterly consolidated financial
statements of the Group last received by the Facility Agent
pursuant to Clause 16.6(d) (Financial Statements) together with
the certificate relating thereto delivered pursuant to Clause
16.6(e)(i) (Compliance Certificates) disclose a Leverage Ratio
as at and for the 12 month period ending on the last day of the
relevant Accounting Quarter at a level which in accordance with
the table set out below indicates a reduced Margin then the
Margin shall be a percentage per annum determined as follows:
LEVERAGE RATIO TERM A FACILITY REVOLVING FACILITY
(x) (%) (%)
x > 4.25 2 2
4.25 /X/ x > 3.50 1.75 1.75
3.50 /X/ x > 2.50 1.5 1.5
2.50 /X/ x 1.25 1.25
30
provided that:
(A) there shall be no reduction in the
Margin and the provisions of this Clause
6.6(b) shall be suspended until the
Facility Agent has received the
quarterly consolidated financial
statements of the Group for the
Accounting Quarter ending 31 December
2003 in accordance with Clause 16.6(d)
(Financial Statements) together with the
certificate relating thereto in
accordance with Clause 16.6(e)(i)
(Compliance Certificates);
(B) any change in the Margin shall take
effect during (but only during) the
period from (and including) the date on
which the Facility Agent has received
the relevant quarterly financial
statements of the Group in accordance
with Clause 16.6(d) (Financial
Statements) and the certificate relating
thereto in accordance with Clause
16.6(e)(i) (Compliance Certificates)
until (but excluding) the date (a
"READJUSTMENT DATE") being the earlier
of:-
(I) the date on which the Facility
Agent next receives quarterly
financial statements pursuant to
Clause 16.6(d) (Financial
Statements) and the certificate
relating thereto pursuant to
Clause 16.6(e)(i) (Compliance
Certificates);
(II) the latest date by which the
Facility Agent should have
received the quarterly financial
statements and certificates
relating thereto referred to in
sub paragraph (I) above;
and, on each Readjustment Date, the Margin shall
revert to its original level at the date of this
Agreement, unless a lower Margin than the
original level of Margin shall be applicable in
accordance with this Clause 6.6 (Margin
Adjustment);
(C) notwithstanding the provisions of Clause
6.6(b), the Margin shall not reduce by
more than 0.25% on any Readjustment
Date; provided that if the quarterly
consolidated financial statements of the
Group for the Accounting Quarter ending
31 December 2003 only are received by
the Facility Agent in accordance with
Clause 16.6(d) (Financial Statements)
together with the certificate relating
thereto in accordance with Clause
16.6(e) (Compliance Certificates) and
such financial statements and
certificates disclose a Leverage Ratio
as at and for the twelve month period
ending on the last day of the Accounting
Quarter ending 31 December 2003 at a
level which in accordance with the table
set out above indicates a reduced
Margin, then the Margin on that date
shall be set at the relevant percentage
per annum indicated in that table for
the period commencing on that date until
(but excluding) the next Readjustment
Date, and thereafter the Margin shall
not reduce by more than 0.25% on any
Readjustment Date;
(D) there shall be no decrease in the Margin
if an Event of Default or Potential
Event of Default has occurred which is
continuing and the Margin shall
immediately revert to its original level
at the date of this Agreement until such
time as any Event of Default or
Potential Event of Default is no longer
continuing, whereupon the Margin shall
be determined in accordance with this
Clause 6.6 (Margin
31
Adjustment) on the basis of the most
recently delivered quarterly
consolidated financial statements of the
Group; and
(E) in calculating the Leverage Ratio, there
shall be excluded from consolidated
EBITDA, EBITDA which is attributable to
UK Xxxxx.
6.7 MARGIN INACCURACY: If any annual audited financial statements delivered
under Clause 16.6(d) (Financial Statements) demonstrate that the Margin:
(a) should have been varied in accordance with Clause 6.6 (Margin
Adjustment) when it has not been; or
(b) should not have been varied in accordance with Clause 6.6
(Margin Adjustment) when it has been,
in either case by reason of an inaccuracy in the relevant quarterly
accounts, payments of interest shall following receipt of the relevant
audited financial statements by the Facility Agent be adjusted by such
amount as the Facility Agent shall determine is necessary to give effect
to the correct variation in the Margin as demonstrated by the audited
accounts. The Facility Agent's determination of the adjustments payable
under this Clause 6.7 (Margin Inaccuracy) shall, save in the case of
manifest error, be conclusive and the Facility Agent shall provide the
Parent with reasonable details of the calculation of such adjustments.
7 REPAYMENT
7.1 TERM ADVANCES:
(a) The Borrowers of the Tranche A Advances shall procure that the
aggregate outstanding principal amount of the Tranche A Advances
shall be repaid in instalments in the currency in which such
Tranche A Advances were outstanding. An instalment shall fall
due on each of the dates specified in column (1) below and be in
the percentage amount specified opposite that date in column (2)
below. Any balance of the Tranche A Advances remaining
outstanding on the Final Tranche A Repayment Date shall be
repaid in full on that date. For the purposes of calculating
whether a repayment is in accordance with the percentages
specified, amounts repaid shall be converted to Sterling using
the Facility Agent's spot rate of exchange used for determining
the amount of the relevant Advances in US Dollars and Euro on
the Completion Date.
(1) DATE (2) AMOUNT (%)
---- ----------
30 June 2000 1.05
31 December 2000 2.64
30 June 2001 2.64
31 December 2001 5.27
30 June 2002 5.27
31 December 2002 8.42
30 June 2003 8.42
31 December 2003 9.47
30 June 2004 9.47
32
(1) DATE (2) AMOUNT (%)
---- ----------
31 December 2004 9.47
30 June 2005 9.47
31 December 2005 9.47
30 June 2006 9.47
30 September 2006 9.47
--------
100
(b) The Borrowers of the Tranche B Advances shall procure that the
aggregate outstanding principal amount of the Tranche B Advances
shall be repaid by way of two equal instalments each 50% of the
outstanding principal amount on 30 June 2007 and the Final
Tranche B Repayment Date. For the purposes of calculating
whether a repayment is in accordance with the percentages
specified, amounts repaid shall be converted to Sterling using
the Facility Agent's spot rate of exchange used for determining
the amount of the relevant Advances in US Dollars and Euro on
the Completion Date.
(c) The Borrowers of the Tranche C Advances shall procure that the
aggregate outstanding principal amount of the Tranche C Advances
shall be repaid by way of two equal instalments each of 50% of
the outstanding principal amount on 30 June 2008 and the Final
Tranche C Repayment Date.
7.2 REVOLVING ADVANCES:
(a) Each Revolving Advance shall be repaid by the relevant Borrower
on the last day of the Interest Period applicable to that
Revolving Advance. All Revolving Advances outstanding on the
Revolving Facility Repayment Date shall be repaid on that date
and no further Revolving Advances shall be capable of being
drawn after that date.
(b) Subject to the provisions of this Agreement, any amount repaid
or prepaid under the Revolving Facility shall be capable of
being redrawn.
7.3 MISCELLANEOUS: The provisions of Clause 8.7 (Miscellaneous) shall apply
to any repayment under this Clause 7 (Repayment).
8 PREPAYMENT
8.1 VOLUNTARY PREPAYMENTS: Any Borrower may prepay an Advance or any part
thereof at any time provided that the Facility Agent has received not
less than 3 Business Days notice from the Parent of the proposed date
and amount of the prepayment and provided that any partial prepayment of
an Advance will be in a minimum amount of Pound Sterling1,000,000 (or,
if an Optional Currency have a Sterling Equivalent in a minimum amount
of Pound Sterling1,000,000), and if paid other than on the last day of
an Interest Period is made together with any amount payable under Clause
24.4 (General Indemnity).
8.2 MANDATORY PREPAYMENTS ON CHANGE OF CONTROL: If a Change of Control
occurs:-
(a) the Borrowers will immediately prepay all Advances and provide
cash cover in an amount equal to the total Contingent Liability
of all the Revolving Banks under all outstanding Letters of
Credit and Bank Guarantees;
33
(b) the undrawn element of the Facilities will be cancelled and no
further Drawing may be requested under this Agreement;
(c) each Borrower will immediately repay all sums advanced to it
under any Ancillary Facility and provide cash cover in respect
of contingent liabilities outstanding under such Ancillary
Facility and for its account.
8.3 MANDATORY PREPAYMENTS FROM RECEIPTS: The Parent will procure that the
Advances will be prepaid and/or cash cover provided in an amount equal
to:
(a) the Net Proceeds of any disposal of any asset of the Parent or
any other member of the Group (other than a disposal permitted
by Clause 16.3(b)(i) to (xi) (inclusive) and 16.3(xiii)
(Disposals)) which when aggregated with the Net Proceeds of
other such disposals made in the same Financial Year of the
Parent exceed Pound Sterling1,000,000 provided that such Net
Proceeds shall not be required to be so applied to the extent
that such Net Proceeds are reinvested within 180 days in assets
of a similar type; and
(b) any proceeds (net of costs and expenses incurred in recovery
thereof) received or recovered as a result of a claim for breach
of contract or warranty under the Acquisition Documents or
otherwise received from the Vendor under the Acquisition
Documents or received as a result of claims against any
professionals in relation to any of the Reports provided that
such proceeds shall not be required to be so applied to the
extent that such proceeds are reinvested or applied within 180
days in replacing or investing in assets or to meet a liability
in respect of which such proceeds are received or recovered (or
to the extent that an amount equal to such proceeds has been so
applied prior to receipt of the relevant proceeds); and
(c) any moneys received by a member of the Group as a result of a
claim under any insurance to the extent not used to reinstate,
replace, repair or otherwise invest in assets in respect of
which such moneys were received or to meet a liability in
respect of which such moneys were received, in either case
within 180 days (or such longer period as the Parent notifies
the Facility Agent is reasonably necessary to reinstate,
replace, repair or otherwise invest in the relevant assets)
after receipt (or to the extent that an amount equal to such
moneys has been so applied prior to receipt of such moneys);
(d) any Net Proceeds received by the Parent or any other member of
the Group from any Listing not resulting in a Change of Control;
Any moneys not immediately applied in prepayment and/or provision of
cash cover in accordance with paragraphs (a), (b) and (c) above shall be
held in a Cash Collateral Account (in such currency as the Parent
selects) pending application in accordance with paragraphs (a), (b) and
(c) above and if not so applied within 180 days (or such longer period
as may be apply to paragraph (c) above) after receipt, shall be applied
in prepayment of the Advances and/or provision of cash cover.
8.4 EXCESS CASH FLOW: Within 10 Business Days of delivery of the audited
consolidated financial statements of the Group in each Financial Year of
the Parent ending 31 December 2000 or later pursuant to Clause 16.6(d)
(Financial Statements), the Parent will prepay or procure the prepayment
of the Advances and/or provide cash cover in an amount equal to 50 per
cent. of the amount of Excess Cash Flow for such Financial Year,
provided that if such audited consolidated financial statements disclose
a Leverage Ratio as at and for the 12 month period ending on the last
day of the relevant Financial Year which is less than 2.5:1, the
percentage of Excess Cash Flow to be prepaid shall be reduced to 25 per
cent. The Parent will procure that the Auditors will deliver, together
with the audited consolidated financial statements, a confirmation
confirming that in the opinion of the Auditors, the figures used in
calculating the amount of the Excess Cash Flow (if any) have been
properly extracted from such audited consolidated financial statements
and that the amount of Excess Cash Flow has been calculated correctly.
34
8.5 PREPAYMENTS: ORDER OF APPLICATION:
(a) Prepayments made pursuant to Clauses 8.1 (Voluntary
Prepayments), 8.3 (Mandatory Prepayments from Receipts), 8.4
(Excess Cash Flow) and 2.6 (Delayed Completion) shall:-
(i) as between the Tranche A Term Facility, the Tranche B
Term Facility and the Tranche C Term Facility, be
applied against outstandings pro rata to (A) the
outstanding principal amount of the Term A Advances, (B)
the outstanding principal amount of the Term B Advances
and (C) the outstanding principal amount of the Term C
Advances; and
(ii) in relation to the unpaid instalments in respect of the
Tranche A Term Facility, the Tranche B Term Facility and
the Tranche C Term Facility be applied pro rata against
the scheduled instalments of principal detailed in
Clause 7.1 (Term Advances);
until in each case the Term Facilities have been reduced to
zero; and
(iii) thereafter in permanent prepayment of Revolving Advances
and cash advances outstanding forming part of Ancillary
Outstandings in such order as the Parent may select and
thereafter in providing cash cover in respect of any
Contingent Liability under any Letter of Credit or Bank
Guarantee issued under the Revolving Facility or
contingent liability under any Ancillary Facility.
The Revolving Commitments of the Banks shall be cancelled in an
amount equal to each amount prepaid or provided as cash cover
under sub-paragraph (iii) above. Each Bank's Revolving
Commitment shall be reduced proportionately (and the relevant
Ancillary Limit reduced). Any such amounts shall be applied in
reduction of the Revolving Commitments of the Revolving Banks on
a pro rata basis.
(b) Subject as otherwise provided in this Agreement, the Parent
shall by notice in writing to the Facility Agent to be received
not later than three Business Days prior to the date of the
relevant repayment or prepayment designate which Advances are to
be repaid or prepaid in order to meet amounts due on such date.
8.6 PREPAYMENTS DURING INTEREST PERIODS: Where any amount required to be
prepaid under Clauses 8.3 (Mandatory Prepayments from Receipts) or 8.4
(Excess Cash Flow) is received by the Facility Agent during an Interest
Period, the Parent may by notice to the Facility Agent to be received
not less than 5 Business Days prior to payment of the relevant amount to
the Facility Agent, request such amount to be placed in a Cash
Collateral Account in which event such amount shall be paid to the
credit of a Cash Collateral Account and shall be applied by the Facility
Agent against the relevant Advance or Advances at the expiry of the
relevant Interest Period. The interest earned on such account will be
applied by the Facility Agent towards the interest due by the relevant
Borrower in respect of the relevant Advance at the time the amount is
applied in repayment of the relevant Advance.
8.7 MISCELLANEOUS:
(a) No prepayment of an Advance may be made except at the times and
in the manner expressly provided by this Agreement.
(b) Any repayment or prepayment must be accompanied by accrued
interest on the amount repaid or prepaid and any other sum then
due under this Agreement.
(c) Any repayment or prepayment of an Advance (or part thereof)
shall be made in the currency of that Advance.
(d) No amount repaid or prepaid may be redrawn save as provided in
Clause 7.2 (Revolving Advances).
35
(e) Any notice of prepayment delivered by a Borrower under this
Agreement shall be irrevocable.
9 CANCELLATION
9.1 ALL FACILITIES: If the first Term Advance shall not have been made under
this Agreement on or prior to the last Business Day of the Availability
Period for the Term Facilities the Facilities shall be cancelled and the
Senior Finance Parties shall be under no further obligation to permit
Drawings under this Agreement and no Ancillary Bank shall be under any
obligation to the Borrowers under any Ancillary Documents.
9.2 TERM FACILITIES: On the last Business Day of the Availability Period for
the Term Facilities any portion of the Commitments in relation to the
Term Facilities remaining undrawn will be cancelled.
9.3 REVOLVING FACILITY:
(a) The Parent may cancel the Revolving Commitments in whole or in
part (but if in part a minimum of Pound Sterling1,000,000 at any
time during the Availability Period for the Revolving Facility
by giving not less than 5 Business Days irrevocable written
notice to that effect to the Facility Agent specifying the date
and amount of the proposed cancellation. Any such cancellation
shall reduce each Bank's Revolving Commitment on a pro rata
basis (ignoring for this purpose any reduction in the Revolving
Commitment of an Ancillary Bank by reason of an Ancillary
Limit).
(b) No cancellation of the Revolving Facility may be made if it
would result in the aggregate of the Revolving Advances and the
Contingent Liability of all the Revolving Banks under Letters of
Credit and Bank Guarantees issued under the Revolving Facility
at the time of the proposed cancellation exceeding the total
Revolving Commitments as reduced by the total Ancillary Limits
at such time.
9.4 MISCELLANEOUS: No Borrower may cancel all or any part of the Facilities
except as expressly provided in this Agreement or, in relation to the
Ancillary Facilities, any Ancillary Facility Letter. Any notice of
cancellation shall be irrevocable and no part of the Facilities which
has been cancelled shall be capable of being drawn.
10 FEES
10.1 COMMITMENT FEES:
(a) The Parent will pay or procure there is paid to the Facility
Agent for the account of the Revolving Banks a commitment fee on
the Revolving Facility from the date of this Agreement which
will:-
(i) be computed at the rate of 0.75 per cent. per annum or
50 per cent of the Margin (whichever is the lower) on
the daily, undrawn, uncancelled amount of the total
Revolving Commitments; and
(ii) be payable quarterly in arrears and on the Revolving
Facility Repayment Date.
(b) The Parent will pay or procure there is paid to the Facility
Agent for the account of the Tranche A Banks a commitment fee on
the Tranche A Term Facility from the date of this Agreement
which will be computed at the rate of 0.5% per cent. per annum
on the daily, undrawn amount of the total Tranche A Commitments,
and will be payable on the Completion Date.
(c) The Parent will pay or procure there is paid to the Facility
Agent for the account of the Tranche B Banks a commitment fee on
the Tranche B Term Facility from the date of this Agreement
which will be computed at the rate of 0.5% per cent. per annum
on the daily,
36
undrawn amount of the total Tranche B Commitments, and will be
payable on the Completion Date.
(d) The Parent will pay or procure there is paid to the Facility
Agent for the account of the Tranche C Banks a commitment fee on
the Tranche C Term Facility from the date of this Agreement
which will be computed at the rate of 0.5% per cent. per annum
on the daily, undrawn amount of the total Tranche C Commitments,
and will be payable on the Completion Date.
(e) The commitment fees payable under this Clause 10.1 (Commitment
Fees) will each accrue from day to day and will be calculated on
the basis of a 365 day year and the actual number of days
elapsed.
10.2 ARRANGEMENT FEE: The Parent will pay or procure there is paid to the
Arrangers for their own account the arrangement fee in the amounts and
at the times as specified in the Fees Letters.
10.3 AGENCY FEES: The Parent will pay or procure there is paid to the
Facility Agent for its own account and to the Security Agent for its own
account agency fees at the times and otherwise in accordance with the
terms of the Fees Letters.
10.4 LETTER OF CREDIT/BANK GUARANTEE COMMISSION: Each Borrower for whose
account a Letter of Credit or Bank Guarantee is issued shall pay to each
Revolving Bank a commission at a rate equal to the Margin (as adjusted
from time to time in accordance with Clause 6.6 (Margin Adjustment)) for
the Revolving Facility on that Revolving Bank's Contingent Liability
from day to day in relation to that Letter of Credit or Bank Guarantee.
That commission shall be payable quarterly in arrears for so long as
that Revolving Bank has any such Contingent Liability and on the date on
which it ceases to have any such Contingent Liability.
10.5 ISSUING BANK FEE: Each Borrower for whose account a Letter of Credit or
Bank Guarantee is issued shall pay to the Issuing Bank which issued that
Letter of Credit or Bank Guarantee a fee equal to 0.125 per cent. per
annum on the aggregate of the Contingent Liabilities of the Revolving
Banks (other than such Issuing Bank) from day to day in relation to that
Letter of Credit or Bank Guarantee. That fee shall be payable quarterly
in arrears for so long as a Revolving Bank has any such Contingent
Liability and on the date on which it ceases to have any such Contingent
Liability.
10.6 VAT: All fees payable under the Senior Finance Documents are exclusive
of any value added tax or other similar tax chargeable upon or in
connection with such fees. If any value added tax or other similar tax
is or becomes chargeable such tax will be added to the fee concerned at
the appropriate rate and will be paid by the relevant Obligor at the
same time as the fee itself is paid.
11 CURRENCY OPTION
11.1 REQUESTS FOR OPTIONAL CURRENCY: Subject as otherwise provided in this
Agreement if the Parent so requests in a Drawing Request for a Revolving
Advance or a Letter of Credit or Bank Guarantee that Revolving Advance,
Letter of Credit or Bank Guarantee shall be denominated in an Optional
Currency provided that Revolving Advances may not be denominated at any
one time in more than five Optional Currencies at any time.
11.2 RESPONSE TO REQUEST FOR AN OPTIONAL CURRENCY: If not later than close of
business three business days prior to the first day of an Interest
Period during which a Revolving Advance is to be denominated in an
Optional Currency:-
(a) any Bank notifies the Facility Agent that:-
(i) that Bank reasonably expects to be unable to obtain
matching deposits in that Optional Currency in the
London inter-bank market at or about 11 a.m. on the
37
relevant date in sufficient amounts to fund its share of
that Revolving Advance during that Interest Period; or
(ii) it would by reason of national or international
financial, political or economic conditions, currency
availability, currency exchange rates or exchange
controls be impossible or impracticable or it would be
unlawful or contrary to a directive (whether or not
having the force of law but, if not having the force of
law, being one with which it is the practice of banks in
the relevant jurisdiction to comply) for its share of
that Revolving Advance to be denominated in that
Optional Currency during that Interest Period; or
(b) the Facility Agent determines that:-
(i) the relevant Optional Currency is for any reason not
freely convertible into US Dollars and/or not freely
transferable; or
(ii) it is impossible to make payment in the country of the
currency in which the Revolving Advance is to be
denominated in the manner provided for in this
Agreement;
the Facility Agent shall promptly notify the Parent and the
Banks.
11.3 FALLBACK CURRENCY: If in relation to any Interest Period relating to a
Revolving Advance the Facility Agent gives notice to the Parent and the
Banks in accordance with Clause 11.2 (Response to a request for an
Optional Currency) that Revolving Advance shall during that Interest
Period instead be denominated in US Dollars.
11.4 COMMITMENTS: On the date on which any Drawing under the Revolving
Facility is requested (whether or not in an Optional Currency), the
Facility Agent shall determine whether the aggregate of:
(a) the amount in US Dollars of that Drawing or, if denominated in
an Optional Currency, the US Dollar Equivalent (determined as at
or about 11:00 am two Business Days prior to the relevant
Drawing Date) of that Drawing; and
(b) the US Dollar Equivalent (determined as at or about 11:00 am two
Business Days prior to the relevant Drawing Date) of each
existing Revolving Advance denominated in an Optional Currency
which will be outstanding on the relevant Drawing Date; and
(c) each existing Revolving Advance denominated in US Dollars which
will be outstanding on the relevant Drawing Date; and
(d) the US Dollar Equivalent (determined as at or about 11:00 am two
Business Days prior to the relevant Drawing Date) of the total
Contingent Liability of all the Revolving Banks under Letters of
Credit and Bank Guarantees already issued and denominated in
Optional Currencies which will be outstanding on the relevant
Drawing Date; and
(e) the total Contingent Liability of all the Revolving Banks under
Letters of Credit and Bank Guarantees already issued and
denominated in US Dollars which will be outstanding on the
relevant Drawing Date,
exceeds the total amount of the Revolving Commitments of the Banks. In
the event that the Commitments of the Banks are so exceeded the
requested Revolving Advance, Letter of Credit or Bank Guarantee shall be
reduced by the amount by which the total Revolving Commitments of the
Banks are so exceeded.
38
12 TAXES AND OTHER DEDUCTIONS
12.1 PAYMENTS TO BE FREE AND CLEAR: All sums payable by each Obligor under
this Agreement shall be paid (a) free of any restriction or condition
(b) free and clear of and (except to the extent required by law) without
any deduction or withholding for or on account of any tax and (c)
without deduction or withholding (except to the extent required by law)
on account of any other amount whether by way of set-off, counter-claim
or otherwise.
12.2 GROSSING-UP OF PAYMENTS: If any Obligor or any other person is required
by law to make any deduction or withholding on account of any such tax
or other amount from any sum paid or payable by any Obligor to any
Senior Finance Party under the Senior Finance Documents:-
(a) such Obligor shall notify the Facility Agent of any such
requirement or any change in any such requirement as soon as
such Obligor becomes aware of it;
(b) such Obligor shall pay any such tax or other amount before the
date on which penalties attach thereto, such payment to be made
for its own account unless that liability is imposed on any
other party in which case it shall be made on behalf of and in
the name of that party;
(c) the sum payable by such Obligor in respect of which the relevant
deduction or withholding is required shall be increased to the
extent necessary to ensure that, after the making of that
deduction or withholding, that party receives on the due date
and retains (free from any liability in respect of any such
deduction or withholding) a net sum equal to the sum which it
would have received and so retained had no such deduction or
withholding been required or made; and
(d) within 30 days after paying any sum from which it is required by
law to make any deduction or withholding, and within 30 days
after the due date of payment of any tax or other amount which
it is required by Clause 12.2(b) (Grossing-Up of Payments) to
pay, such Obligor shall deliver to the Facility Agent evidence
satisfactory to the other affected parties of such deduction or
withholding and of the remittance of such payment to the
relevant taxing or other authority.
12.3 INDEMNITY: Without prejudice to Clauses 12.1 (Payments to be free and
clear) and 12.2 (Grossing-Up of Payments), if any Senior Finance Party
(or any person on its behalf) is required to make any payment on account
of tax or otherwise (except on account of tax on the overall net income
of that party or that other person) on or calculated by reference to the
amount of any sum receivable or received by that Senior Finance Party
(or any person on its behalf) under the Senior Finance Documents from
any Obligor (including, without limitation, under Clause 12.1 (Payments
to be free and clear) or 12.2 (Grossing-Up of Payments)) or any
liability in respect of any such payment is assessed, levied, imposed or
claimed against any Senior Finance Party (or any person on its behalf),
such Obligor shall, on demand by the Facility Agent, forthwith indemnify
that Senior Finance Party (or such person) against such payment or
liability, and any costs, charges and expenses (including, without
limitation, penalties) payable or incurred in connection therewith.
12.4 TAX CREDITS: If and to the extent that any Senior Finance Party is able,
in its sole opinion, to apply or otherwise take advantage of any
offsetting tax credit or other similar tax benefit out of or in
conjunction with any deduction, withholding or payment which gives rise
to an obligation on any Obligor to pay any additional amount pursuant to
Clause 12.2 (Grossing-Up of Payments) or 12.3 (Indemnity) that Senior
Finance Party shall, to the extent that in its sole opinion it can do so
without prejudice to the retention of the amount of such credit or
benefit and without any other adverse tax consequences for that Senior
Finance Party, reimburse to such Obligor, at such time as such tax
credit or benefit shall have actually been received by that Senior
Finance Party such amount as that Senior Finance Party shall, in its
sole opinion, have determined to be attributable to the relevant
deduction, withholding or payment and as will leave it in no better or
worse position in respect of its worldwide tax liabilities than it would
have been in if the payment of such additional amount had not been
required. Such reimbursement (if any) shall be conclusive evidence of
the amount due to such Obligor,
39
and shall be accepted by such Obligor, in full and final settlement of
any claim for reimbursement under this Clause 12.4 (Tax Credits).
12.5 TAX AFFAIRS: Nothing herein contained shall oblige any Senior Finance
Party to disclose to any Obligor or any other person any information
regarding its tax affairs or tax computations or interfere with the
right of any Senior Finance Party to arrange its tax affairs in
whatsoever manner it thinks fit and, in particular, no Senior Finance
Party shall be under any obligation to claim relief from its corporate
profits or similar tax liability in credits or deductions available to
it (and, if it does claim, the extent, order and manner in which it does
so shall be at its absolute discretion).
12.6 EXCEPTIONS: No additional amount will be payable to a Senior Finance
Party under clause 12.2 (Grossing-Up of Payments) as a result of any
deduction or withholding or payment of United Kingdom taxes to the
extent that at the time such payment falls due such Senior Finance Party
is not a Qualifying Person and such payment would not have fallen due
had such Senior Finance Party been a Qualifying Person unless the reason
such Senior Finance Party is not a Qualifying Person is a change (after
the date of this Agreement or in the case of a Senior Finance Party
which became a party to this Agreement after the date of this Agreement
the date on which it became a party) in any law or directive or in the
interpretation or application thereof or in any practice or concession
of the United Kingdom Inland Revenue.
For this purpose "QUALIFYING PERSON" means at any time:
(a) a bank as defined in the Taxes Xxx 0000 Section 840(A) for the
purposes of Section 349 of that Act which is within the charge
to United Kingdom corporation tax as regards any interest
payable or paid to it under this Agreement; or
(b) (in the case of a person which has its Lending Office outside
the United Kingdom) a person to whom payments under the Senior
Finance Documents may be made without deduction or withholding
for or on account of taxes by reason of an applicable taxation
treaty between the United Kingdom and the country in which that
person is, or is treated as, resident or carrying on business
and pursuant to which there is a valid and extant claim of such
person.
12.7 COLLECTING AGENTS RULES: Each Bank represents to the Facility Agent that
(unless it has notified the Facility Agent to the contrary), on the date
it becomes a party to this Agreement, it is:
(a) either:
(i) not resident in the United Kingdom for United Kingdom
tax purposes; or
(ii) a bank as defined in the Taxes Xxx 0000 Section 840A and
resident in the United Kingdom; and
(b) beneficially entitled to the principal and interest payable by
the Facility Agent to it under this Agreement;
and, if it is able to make these representations on the date on which it
becomes party to this Agreement, shall forthwith notify the Facility
Agent if either representation ceases to be correct.
12.8 NON-US BANKS:
(a) Each Bank organized or incorporated under the laws of a
jurisdiction outside the United States, on or prior to the date
of its execution and delivery of this Agreement in the case of
each Original Bank and on the date of the Transfer Certificate
pursuant to which it becomes a Bank in the case of any other
Bank, and from time to time thereafter as requested in writing
by the Parent (but only so long as such Bank remains lawfully
able to do so), shall provide the Facility Agent and the Parent
with two original Internal Revenue Service forms W-8EBN or
W-8ECI, as appropriate, or any successor or other form
prescribed by the Internal Revenue
40
Service, certifying that such Bank is exempt from or entitled to
a reduced rate of United States withholding tax on payments
pursuant to this Agreement.
(b) If any form provided by a Bank pursuant to Clause 12.8(a) at the
time such Bank first becomes a Bank hereunder indicates a United
States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from
any applicable gross-up or indemnity unless and until such Bank
provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from such applicable gross-up or
indemnity for periods governed by such form provided, however,
that if at the date a Bank transferee under a Transfer
Certificate becomes a party to this Agreement, the Bank
transferor was entitled to payments under Clause 12.8(a) in
respect of United States withholding tax in connection with
interest paid at such date, then, to that extent, the applicable
gross-up or indemnity shall include (in addition to withholding
taxes that may be imposed in the future or other amounts
otherwise included therein) United States withholding tax
applicable with respect to the Bank transferor on such date. If
any form or document referred to in this Clause 12.8 requires
the disclosure of information, other than information necessary
to compute the tax payable and information required on the date
hereof by Internal Revenue Service form W-8EBN or W-8ECI, that a
Bank reasonably considers to be confidential, such Bank shall
give notice thereof to the Parent and shall not be obliged to
include in any such form or document any such confidential
information.
13 CHANGE IN CIRCUMSTANCES
13.1 ILLEGALITY: If at any time, as a result of the introduction of or any
change in, or in the interpretation or application or administration of
any law or (whether or not having the force of law but, if not having
the force of law, being one with which it is the practice of banks in
the relevant jurisdiction to comply) any directive of any agency of any
state, it is or will become unlawful or contrary to any such directive
for any Bank to allow all or part of its Commitments to remain
outstanding and/or to make, fund or allow to remain outstanding all or
part of its share of any Drawing and/or to carry out all or any of its
other obligations under this Agreement:-
(a) upon that Bank notifying the Parent, its Commitments shall be
cancelled; and
(b) the Borrowers shall forthwith prepay that Bank's portion of each
Advance and provide cash cover in an amount equal to that Bank's
Contingent Liability in relation to each Letter of Credit or
Bank Guarantee or on such later date as that Bank shall certify
to be necessary to comply with the relevant law or directive
with accrued interest thereon and any other sum then due to that
Bank under this Agreement.
13.2 INCREASED COSTS:
(a) If, as a result of the introduction of or any change in, or in
the interpretation or application or administration of (in each
case after the date of this Agreement), any law or (whether or
not having the force of law but, if not having the force of law,
being one with which it is the practice of banks in the relevant
jurisdiction to comply) any directive of any agency of any state
including, without limitation, any law or directive relating to
taxation, reserve asset, special deposit, cash ratio, liquidity
or capital adequacy requirements or other forms of banking,
fiscal, monetary, or regulatory controls:-
(i) the cost to any Bank of maintaining all or any part of
its Commitments and/or of making, maintaining or funding
all or any part of its share of any Drawing or overdue
sum is increased; and/or
(ii) any sum received or receivable by the Facility Agent or
any Bank under the Senior Finance Documents or the
effective return to it under the Senior Finance
Documents is reduced; and/or
41
(iii) the Facility Agent or any Bank makes any payment or
foregoes any interest or other return on or calculated
by reference to the amount of any sum received or
receivable by it under the Senior Finance Documents;
the Parent shall indemnify the Facility Agent or that Bank
against that increased cost, reduction, payment or foregone
interest or other return and, accordingly, shall from time to
time on demand (whenever made) pay to the Facility Agent for its
own account or for the account of that Bank the amount certified
by it to be necessary so to indemnify it.
(b) The Parent will not be obliged to compensate the Facility Agent
or any Bank pursuant to Clause 13.2 (Increased Costs) in respect
of any increased cost, reduction, payment, foregone interest or
other return:-
(i) compensated for by payment of the Additional Costs Rate;
or
(ii) attributable to a change (whether of basis, timing or
otherwise) in the tax on the overall net income of the
Facility Agent or that Bank or compensated for under
Clause 12 (Taxes and other Deductions);
(c) To the extent that any holding company of the Facility Agent or
any Bank suffers a cost which would have been recoverable by the
Facility Agent or that Bank under this Clause 13.2 (Increased
Costs) had that cost been imposed on the Facility Agent or that
Bank the Facility Agent or that Bank shall be entitled to
recover that amount under this Clause 13.2 (Increased Costs) on
behalf of the relevant holding company.
13.3 MITIGATION:
(a) If in respect of any Bank, circumstances arise which would, or
would upon the giving of notice, result in:
(i) an obligation to make any payment under Clause 12 (Taxes
and Other Deductions); or
(ii) an obligation to make payment under Clause 13.1
(Illegality); or
(iii) a demand for compensation under Clause 13.2 (Increased
Costs);
then, without in any way limiting, reducing or otherwise
qualifying the obligations of the Obligors under those Clauses,
upon the request of the Parent, such Bank, in consultation with
the Facility Agent and the Parent, shall take such reasonable
steps as may be open to it to mitigate the effects of such
circumstances, on terms mutually acceptable to the Facility
Agent, the Banks and the Parent, provided that the Bank
concerned will not be obliged to take any action if to do so
would or might in the opinion of the Bank have an adverse effect
upon its business, operations or financial condition or cause it
to incur liabilities or obligations (including, without
limitation, tax liabilities) which, in its opinion, are material
or cause it to incur any costs or expenses for which it has not
been indemnified to its satisfaction by the Parent.
13.4 CHANGE IN MARKET CONDITIONS:
(a) If in relation to any Interest Period:-
(i) no or only one Reference Bank supplies a quotation in
accordance with the definition of LIBOR; or
42
(ii) on the basis of notifications from Banks whose
Commitments exceed 50% of the Total Commitments, the
Facility Agent determines that (a) matching deposits are
not available in the London Inter-Bank Market at or
about 11 a.m. on the Rate Fixing Day for that Interest
Period in sufficient amounts to fund their respective
shares of the amount to which that Interest Period
relates during that Interest Period or (b) the
quotations supplied do not accurately reflect the cost
to the Banks of obtaining such deposits; or
(iii) the Facility Agent determines that, by reason of
circumstances affecting the London Inter-Bank Market,
adequate and fair means do not or will not exist for
determining the rate of interest applicable for that
Interest Period;
the Facility Agent shall promptly notify the Parent and the
Banks.
(b) The Facility Agent (on behalf of and after consultation with the
Banks) shall then negotiate with the Parent with a view to
agreeing an alternative basis for calculating the interest
payable on the Advance(s) to which that Interest Period relates.
Any alternative basis agreed in writing by the Facility Agent
(on behalf of and with the consent of all the Banks) and the
Parent within 10 Business Days of the Facility Agent's
notification of the event in question shall take effect in
accordance with its terms. If an alternative basis is not so
agreed, each Bank's share of such Advance(s) shall during that
Interest Period bear interest at the rate per annum equal to the
sum of (i) the applicable Margin and (ii) the cost to that Bank
(as certified by it to the Parent within 10 Business Days of the
end of that 10 Business Day period and expressed as a rate per
annum) of funding its share during that Interest Period by
whatever means that Bank determines to be most appropriate.
13.5 ISSUING BANK: References in Clause 12 (Taxes) and Clause 13.1
(Illegality) and 13.2 (Increased Costs) shall include any Bank in its
capacity as an Issuing Bank.
14 PAYMENTS
14.1 BY BANKS:
(a) On each date on which an Advance is to be made, each Bank shall
make its share of that Advance available to the Facility Agent
in the place for payment to the relevant Borrower by payment in
the currency of that Advance and in immediately available
cleared funds to such account as the Facility Agent shall
specify.
(b) The Facility Agent shall make the amounts so made available to
it available to the relevant Borrower before close of business
in the place of payment on that date by payment in the same
currency and funds as received by the Facility Agent to such
account of the relevant Borrower as shall have been specified in
the notice requesting that Advance. If any Bank makes its share
of any Advance available to the Facility Agent later than
required by Clause 14.1(a) (By Banks), the Facility Agent shall
make that share available to the relevant Borrower as soon as
practicable thereafter.
14.2 BY OBLIGORS:
(a) On each date on which any sum is due from any Obligor, it shall
make that sum available to the Facility Agent in the place for
payment by payment in the currency in which that sum is due and
in immediately available cleared funds to such account as the
Facility Agent shall specify.
(b) The Facility Agent shall make available to each Senior Finance
Party before close of business in that place on that date its
pro rata share (if any) of any sum so made available to the
Facility Agent in the same currency and funds as received by the
Facility Agent to such account of that Senior Finance Party with
such bank in that place as it shall have specified to the
Facility
43
Agent. If any sum is made available to the Facility Agent later
than required by Clause 14.2(a) (By Obligors), the Facility
Agent shall make each Bank's share (if any) available to it as
soon as practicable thereafter.
14.3 REFUNDING OF PAYMENTS: The Facility Agent shall not be obliged to make
available to any person any sum which it is expecting to receive for the
account of that person until it has been able to establish that it has
received that sum. However, it may do so if it wishes. If and to the
extent that it does so but it transpires that it had not then received
the sum which it paid out:-
(a) the person to whom the Facility Agent made that sum available
shall on request refund it to the Facility Agent; and
(b) the person by whom that sum should have been made available or,
if that person fails to do so the person to whom that sum should
have been made available, shall on request pay to the Facility
Agent the amount (as certified by the Facility Agent) which will
indemnify the Facility Agent against any funding or other cost,
loss, expense or liability sustained or incurred by it as a
result of paying out that sum before receiving it.
14.4 NON-BUSINESS DAYS:
(a) The duration of an Interest Period shall not be changed after 11
a.m. on the Rate Fixing Day for that Interest Period unless it
later becomes apparent to the Facility Agent that the day on
which that Interest Period would otherwise end is not a Business
Day. In that event, that Interest Period shall instead end on
the Business Day succeeding or preceding that day (whichever is
selected by the Facility Agent and notified by it to the Parent
and the Banks).
(b) Any Repayment Date which would otherwise fall on a day which is
not a Business Day shall be adjusted on the same basis so as to
fall on a Business Day which is the last day of an Interest
Period.
(c) Any payment to be made by any Obligor on a day which is not the
last day of an Interest Period or a Repayment Date and which
would otherwise be due on a day which is not a Business Day
shall instead be due on the next Business Day.
14.5 CHANGE IN CURRENCY:
(a) If a single currency or currency unit becomes the lawful
currency of two or more countries or any change occurs in a
currency or currency unit of any country or if more than one
currency or currency unit are at the same time recognised by the
central bank of any relevant country as the lawful currency of
such country, then:
(i) any reference in the Senior Finance Documents to, and
any obligations arising under the Senior Finance
Documents in, the currency of that country shall be
translated into, or paid in, the currency or currency
unit designated by the Facility Agent after consultation
with the Banks and the Parent; and
(ii) any translation from one of such country's currencies or
currency units to another shall be at the official rate
of exchange recognised by that central bank for the
conversion of such currencies or currency unit into the
other, rounded up or down to the nearest whole unit of
such other currency.
(b) If a change in any currency of any relevant country occurs
(including in consequence of European Monetary Union), this
Agreement will be amended to the extent to which the Facility
Agent, in good faith, determines to be necessary to reflect the
change in currency or any financial market practices relating to
dealing in the new currency and to put the Banks and the
Obligors in the same position, so far as is possible, that they
would have been in if no change in currency had occurred.
44
15 REPRESENTATIONS AND WARRANTIES
15.1 REPRESENTATIONS AND WARRANTIES: Each Obligor represents and warrants to
each of the Senior Finance Parties that (subject to the Banking
Disclosure Letter):-
(a) INCORPORATION: It, and each of its Subsidiaries, is duly
incorporated and validly existing with limited liability under
the laws of the place of its incorporation and has the power to
own its assets and carry on its business as it is now being
conducted.
(b) POWER: It has power to enter into, exercise its rights under,
and perform and comply with its obligations under, each of the
Transaction Documents to which it is party and to carry out the
transactions contemplated by such Transaction Documents.
(c) AUTHORITY: All actions, conditions and things required to be
taken, fulfilled and done by it in order:
(i) to enable it to enter into, exercise its rights under,
and perform and comply with its obligations under, the
Transaction Documents to which it is party and to carry
out the transactions contemplated by such Transaction
Documents; and
(ii) to ensure that those obligations are valid, legally
binding and, subject to reservations, enforceable in
accordance with their terms; and
(iii) to make each of the Transaction Documents to which it is
party admissible in evidence in the courts of the
jurisdiction to which it has submitted in such
Transaction Document; and
(iv) to create the security constituted by the Security
Documents to which it is party and, subject to the
reservations, to ensure that such security has the
ranking specified therein,
have (subject as provided in Clause 15.1(d) (Consents and
Filings) in relation to the security constituted by the Security
Documents) been taken, fulfilled and done, save for the payment
of stamp duty on the Transaction Documents in accordance with
their terms.
(d) CONSENTS AND FILINGS: All consents and filings required:-
(i) for its entry into, exercise of its rights, and
performance and compliance with its obligations under,
each of the Transaction Documents to which it is party;
and
(ii) for it to carry out the transactions contemplated by the
Transaction Documents
have been obtained or made and are in full force and effect
(save for any filings required in relation to the security
constituted by the Security Documents which filings or
registrations will be made promptly after execution of the
relevant documents and in any event within applicable time
limits).
(e) NON-CONFLICT: Its entry into, exercise of its rights under and
performance and compliance with its obligations under each of
the Transaction Documents to which it is party and the carrying
out of the transactions contemplated by the Transaction
Documents do not:-
(i) contravene any law, directive, judgment or order to
which it or any of its Subsidiaries is subject;
(ii) contravene its memorandum or articles of association or
other constitutional documents;
45
(iii) breach in any material respect any agreement or the
terms of any consent to which it or any of its
Subsidiaries is a party or which is binding upon it or
any of its Subsidiaries or any of its or their
respective assets;
(iv) oblige it, or any of its Subsidiaries, to create any
security or result in the creation of any security over
its or their respective assets other than under the
Security Documents.
(f) OBLIGATIONS BINDING: Its obligations under the Transaction
Documents to which it is a party are valid, legally binding and,
subject to reservations, enforceable and each of the Security
Documents to which it is party constitute valid security
ranking, subject to reservations and subject as provided in
Clause 15.1(d) in relation to the security constituted by the
Security Documents, in accordance with the terms of such
documents.
(g) WINDING-UP: No administrator, receiver, liquidator or similar
officer has been appointed with respect to it or any of its
Subsidiaries or any of its or their respective assets nor (so
far as it is aware after due and careful review) is any petition
or proceeding for any such appointment pending nor has any
resolution for any such appointment been passed.
(h) NO DEFAULTS:
(i) No Event of Default or Potential Event of Default has
occurred and is continuing.
(ii) No event has occurred and is continuing which
constitutes a default, and no event has occurred and is
continuing which, with the giving of notice or the lapse
of time or making of any determination or fulfilment of
any condition in each case as provided for in the
agreement concerned is reasonably likely to constitute a
default, under any agreement to which it or any of its
Subsidiaries is party which has or is reasonably likely
to have a Material Adverse Effect.
(i) LITIGATION: No litigation, arbitration, administrative,
regulatory or similar proceeding is current, pending or, to its
knowledge, threatened:-
(i) to restrain its entry into, the exercise of its rights
under and performance and compliance with its
obligations under, or the enforcement by it of, any of
the Transaction Documents or the carrying out of the
transactions contemplated by the Transaction Documents;
or
(ii) which has, or is reasonably likely to have, by itself or
together with any other such proceedings, a Material
Adverse Effect.
(j) NO SECURITY INTERESTS/GUARANTEES/FINANCIAL INDEBTEDNESS:
(i) No Security Interest (or agreement to create the same)
exists or is permitted to subsist on or over its or any
of its Subsidiaries' assets or is permitted to subsist
other than a Permitted Security Interest;
(ii) Neither it nor any of its Subsidiaries has granted or
agreed to grant any guarantee except as permitted by
Clause 16.3(g) (Guarantees); and
(iii) Neither it nor any of its Subsidiaries has incurred any
Financial Indebtedness except for Permitted
Indebtedness.
(k) LABOUR DISPUTES: There are no labour disputes current, pending
or, to its knowledge, threatened which have or are reasonably
likely to have a Material Adverse Effect.
(l) ASSETS:
46
(i) The Target Shares to be acquired by the relevant
acquisition vehicle as set out in the Structure Document
under the Acquisition Documents will on Completion be
beneficially owned by such acquisition vehicle and such
acquisition vehicle will be entitled to and will
forthwith become the legal and beneficial registered
owner of the Target Shares free from any Security
Interest (or agreement to create the same) and all
consents and filings necessary for the transfer of the
Target Shares to such acquisition vehicle have been or
will on Completion have been obtained or made.
(ii) All of the material assets to be acquired by the
relevant acquisition vehicle as set out in the Structure
Document under the Acquisition Documents will on
Completion be beneficially owned by it free from any
Security Interest (other than a Permitted Security
Interest) and all material consents and filings
necessary for the transfer of such assets have been or
will be obtained within any applicable time period.
(iii) It or its Subsidiaries has or will on Completion have
good title to or valid leases or licences of or
otherwise be entitled to use all material assets
necessary to conduct the Business (or in respect of the
properties forming part of assets being acquired, is
beneficially entitled to use and occupy such
properties).
PROVIDED THAT each representation and warranty at sub-paragraphs
(i) and (ii) above shall apply to any Target Shares and assets
which in either case are the subject of a Delayed Completion
only on the applicable Delayed Completion Date.
(m) CONSENTS, FILINGS AND LAWS APPLICABLE TO OPERATIONS:
(i) All consents and filings have been obtained or effected
which are necessary for the carrying on of the Business
and all such consents and filings are in full force and
effect and there are no circumstances known to it which
indicate that any such consents and filings are likely
to be revoked or varied in whole or in part, save in
each case to the extent that absence of any such consent
or filing or variation of any such consent does not and
is not reasonably likely to have a Material Adverse
Effect.
(ii) It and each of its Subsidiaries is in compliance with
all laws and directives binding upon it in its
jurisdiction of incorporation or jurisdictions in which
it operates save to the extent non-compliance is not
reasonably likely to have a Material Adverse Effect.
(n) ACCOUNTS:
(i) The audited consolidated financial statements (together
with the notes thereto) most recently delivered pursuant
to Clause 16.6(d) (Financial Statements):-
(A) give a true and fair view of the
financial position of it and its
Subsidiaries as at the date to which
they were prepared and for the Financial
Year then ended; and
(B) were prepared in accordance with
Applicable GAAP.
(ii) The quarterly and monthly consolidated management
accounts most recently delivered pursuant to Clause
16.6(d) (Financial Statements):-
(A) reasonably represent the financial
position of it and its Subsidiaries as
at the date to which they were prepared
and for the quarter or month then ended
(as the case may be);
(B) take account of all material liabilities
(contingent or otherwise) of it and its
subsidiaries at that date; and
47
(C) were prepared on a basis substantially
in accordance with Applicable GAAP.
(o) MATERIAL ADVERSE CHANGES:
(i) There has been no change in the financial condition,
business or assets of the Target since the date of the
Latest Audited Accounts which has or is reasonably
likely to have a Material Adverse Effect.
(ii) There has been no change in the financial condition,
business or assets of the Group since the date of the
most recently delivered audited consolidated financial
statements pursuant to Clause 16.6(d) (Financial
Statements) which has or is reasonably likely to have a
Material Adverse Effect.
(p) TAX LIABILITIES: No claims are being, or are reasonably likely
to be, asserted against it or any of its Subsidiaries with
respect to taxes which are reasonably likely to be determined
adversely to it or to such Subsidiary and which, if so adversely
determined, would have or be reasonably likely to have a
Material Adverse Effect (after taking into account the income
and gains on which the tax is charged) and all reports and
returns on which such taxes are required to be shown have been
filed within any applicable time limits and all taxes required
to be paid have been paid within any applicable time limit save,
in each case, to the extent that failure to do so does not have
and is not reasonably likely to have a Material Adverse Effect.
(q) LATEST ACCOUNTS: The Latest Management Accounts and the Latest
Audited Accounts;
(i) were prepared in accordance with Applicable GAAP
consistently applied;
(ii) give a true and fair view of or, in the case of the
Latest Management Accounts, reasonably represent the
financial position of the Target as at the date to which
they were prepared and for the period then ended; and
(iii) take account of all material liabilities (contingent or
otherwise) of the Target at that date.
(r) INFORMATION PACKAGE:
(i) All statements of fact relating to the assets, financial
condition and operations of the Business contained in
the Information Package are true and accurate in all
material respects.
(ii) The opinions and views expressed in the Information
Package represent the honestly held opinions and views
of the Parent and were arrived at after careful
consideration and were based on reasonable grounds at
the time of being made.
(iii) The projections and forecasts contained in the
Information Package are based upon assumptions
(including, without limitation, assumptions as to the
future performance of the Business, inflation, price
increases and efficiency gains) which the Parent has
carefully considered and consider to be fair and
reasonable at the time of being made.
(iv) The Information Package does not omit to disclose or
take into account any matter known to the Parent after
due and careful enquiry where failure to disclose or
take into account such matter would result in the
Information Package (or any information or projection
contained therein) being misleading in any material
respect.
(v) Nothing has occurred or come to light since the date as
at which the Information Package were prepared which,
insofar as the Parent is aware, renders any material
facts forming the basis thereof materially inaccurate or
misleading or which makes any of the projections or
forecasts contained therein materially unfair or
unreasonable
48
or renders any of the assumptions upon which the
projections are based materially unfair or unreasonable.
(s) REPORTS:
(i) So far as the Parent is aware, after due and careful
review, none of the Reports is misleading in any
material respect and there is no expression of opinion,
forecast or projection contained therein or conclusion
reached therein in relation to any material matter which
is not fair and reasonable in all material respects
(provided that nothing in this sub-clause shall require
the Parent to review or make any enquiry in relation to
matters within the technical or professional expertise
of the adviser preparing the relevant Report).
(ii) All material factual information furnished by or on
behalf of the Target to any of the firms which prepared
any of the Reports and contained or referred to therein
was, so far as the Parent is aware after due and careful
review, true and accurate in all material respects at
the time supplied and, so far as the Parent is aware
after due and careful review, all opinions, forecasts
and projections supplied to such firms which are
contained or referred to in any of the Reports were
arrived at after careful consideration, were fair and
were based on reasonable grounds at the time of being
made.
(iii) So far as the Parent is aware, after due and careful
review, the Reports do not omit to disclose any matter
where failure to disclose such matter would result in
the Reports (or any opinion, forecast or projection
contained in the Reports) being misleading in any
material respect.
(iv) The Parent is not aware of anything which has occurred
or come to light since the date of the Reports which
renders any material facts contained in the Reports
inaccurate or misleading in any material respect or
which makes any of the opinions, projections and
forecasts contained in the Reports other than fair and
reasonable in all material respects.
(t) DOCUMENTS:
(i) The Structure Document accurately records the structure
of the Group as it will be immediately following
Completion (and assuming completion of the Dutch
Re-organisation and that the Delayed Completions occur)
and includes details of any minority shareholdings in
any member of the Group held by any person who is not a
member of the Group and details of all companies, joint
ventures and partnerships in which any member of the
Group has an interest or participation.
(ii) The Acquisition Documents as furnished to the Facility
Agent under this Agreement contain all the material
terms of the Acquisition, the Investor Documents as
furnished to the Facility Agent under this Agreement
contain all the material terms of the agreements between
the Original Equity Investors, the Parent and each other
member of the Group, the Bridge Finance Documents
contain all material terms of the agreements between the
Bridge Finance Parties, UK BondCo and each other member
of the Group and the Bond Finance Documents contain all
material terms of the agreements between the High Yield
Noteholders, UK BondCo and each other member of the
Group;
(u) INTELLECTUAL PROPERTY:
(i) Annex 3 of the Disclosure Letter (as such term is
defined in the Acquisition Agreement) contains a list of
all Registered Intellectual Property Rights which relate
and are material to the Business and which, immediately
before Completion, a
49
member of the Group is entitled to have assigned or
licensed to it pursuant to the Acquisition Agreement
(the "REGISTERED RIGHTS").
(ii) No Registered Rights are subject to any notice of
opposition or application for cancellation or amendment
and so far as reasonably practicable all application,
renewal and other official statutory and regulatory fees
relating to the Registered Rights which are due for
payment at the Completion Date have been duly paid.
(iii) The Group has taken reasonable steps in accordance with
accepted business practice to seek to avoid the
infringement of any Intellectual Property owned by a
third party.
(iv) No written notice has been received by any member of the
Group (in relation to the Business) that it infringes or
may infringe any right in confidential information or
other Intellectual Property Rights of any third party.
(v) All agreement and licences in respect of Intellectual
Property granted to a member of the Group and all Third
Party-Owned Rights which are material to the Business
are set out in the Disclosure Letter (as defined in the
Acquisition Agreement).
(vi) So far as the Parent is aware, there exists no actual or
threatened infringement (including misuse of
confidential information) by any third party of any
Registered Rights which is material to the Business.
(v) ENVIRONMENTAL WARRANTIES:
(i) It, and each of its Subsidiaries, is in compliance with
all Environmental Laws and all Environmental Consents
necessary in connection with the ownership and operation
of its business are in full force and effect in each
case where failure to do so would have or be reasonably
likely to have a Material Adverse Effect.
(ii) To the best of its knowledge and belief having made due
and careful enquiry, there are no circumstances which
may reasonably be expected to prevent or interfere with
it or any of its Subsidiaries being in compliance with
any Environmental Law including, without limitation,
obtaining or being in compliance with any Environmental
Consents in the future where failure to so comply would
have or be reasonably likely to have a Material Adverse
Effect.
(iii) No material unbudgeted investment is necessary to obtain
or renew any Environmental Consent or comply with any
Environmental Law where the failure to obtain or renew
that Environmental Consent or comply with that
Environmental Law would have or be reasonably likely to
have a Material Adverse Effect.
(iv) To the best of its knowledge and belief having made due
and careful enquiry, there are no circumstances which
are reasonably likely to result in any person
(including, without limitation, a regulatory authority)
taking any legal proceedings or other action against it
or any of its Subsidiaries (and no such proceedings or
other action is pending or threatened) under any
Environmental Laws including, without limitation,
remedial action or the revocation, suspension, variation
or non renewal of any Environmental Consent where any
such proceedings would have or be reasonably likely to
have a Material Adverse Effect.
(w) HOLDING COMPANY: Each of the Parent, UK ParentCo 1, UK ParentCo
2, UK ParentCo 3, UK Xxxxx, UK BondCo, UK Overseas HoldCo, UK
Trader HoldCo, UK TraderCo, UK-US HoldCo, UK PartnerCo 1, UK
PartnerCo 2, Dutch Overseas HoldCo, Dutch HoldCo and US HoldCo
is a holding company and it has not traded (other than by
entering into the Transaction Documents) nor does it have
liabilities to any person other than (i) in respect of its share
capital, (ii) pursuant to the Transaction Documents, the
Xxxxx/Bondco Loan Agreement
50
or the Inter-Company Loan Agreements and (iii) in respect of
payment of legal fees, auditors fees and expenses in connection
with the Transaction Documents;
(x) YEAR 2000:
(i) There is set out in the Disclosure Letter (as defined in
the Acquisition Agreement) the details of the ICI
Group's programme of work (the "MILLENNIUM PROGRAMME")
which is designed with the objective of ensuring that
all information technology and communications systems
and networks, and embedded process technology which in
all cases are material to the Business or the Products,
are able to handle without any reduction in
functionality or performance, or will not be adversely
affected by, any date data relating to a date on or
after 1 January 2000.
(ii) The Millennium Programme was designed by or on behalf of
the Vendor, or by one or more members of the ICI Group,
exercising reasonable skill and care or using reasonable
endeavours to procure that third parties exercise
reasonable skill and care and, so far as the Parent is
aware, there are no facts or circumstances which may
reasonably be expected to prevent the completion of the
Millennium Programme in accordance with its provisions.
(iii) All tasks required by the Millennium Programme to be
performed during the period up to the Completion Date
have been performed in accordance with the Millennium
Programme.
(y) US GOVERNMENT REGULATIONS:
(i) Neither any US Obligor nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the
Investment Company Act of 1940, as amended. Neither the
making of any Drawing, nor the application of the
proceeds or repayment thereof by any Obligor, nor the
consummation of the other transactions contemplated
hereby, will violate any provision of such Act or any
rule, regulation or order of the Securities and Exchange
Commission thereunder.
(ii) Neither it nor any of its Subsidiaries is a "holding
company", a "public utility company" or an "affiliate"
or "subsidiary company" of a "registered holding
company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(iii) No Obligor is engaged in the business of extending
credit for the purpose of purchasing or carrying margin
stock within the meaning of Regulations T, U and X of
the Board of Governors of the Federal Reserve System of
the United States of America as in effect from time to
time ("MARGIN STOCK"), and no proceeds of any Advance
will be used in violation thereof.
(z) EMPLOYEE BENEFIT PLANS:
(iv) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan that has resulted in or
is reasonably expected to result in a material liability
of any Obligor or any ERISA Affiliate.
(v) Any Schedule B (Actuarial Information) to the most
recent annual report (Form 5500 Series) required to be
filed for each Plan, copies of which have been filed
with the Internal Revenue Service of the United States
of America and furnished to the Banks, is complete and
accurate and fairly presents the funding status of such
Plan, and since the date of such Schedule B there has
been no material adverse change in such funding status.
51
(vi) Neither any Obligor nor any ERISA Affiliate has incurred
or is reasonably expected to incur any Withdrawal
Liability to any Multiemployer Plan.
(vii) Neither any Obligor nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and
no such Multiemployer Plan is reasonably expected to be
in reorganization or to be terminated, within the
meaning of Title IV of ERISA.
15.2 REPETITION: The representations and warranties in Clause 15.1
(Representations and Warranties) shall be deemed repeated on the date of
each Drawing Request, each Drawing Date and on the last day of each
Interest Period by reference to the facts and circumstances existing on
such date provided that:
(a) the representations and warranties set out in Clause 15.1(r)
(Information Package) shall, in respect of the Syndication
Memorandum only, be made on the date of the Syndication
Memorandum and, in respect of the Agreed Financial Projections,
be made on the date of this Agreement and only repeated on the
date of the First Drawing Request and the First Drawing Date and
shall, on such repetition, be qualified by any matter disclosed
by the Parent to the Facility Agent in writing after the date of
this Agreement but prior to the date of repetition, and which
relates to an event or circumstance which occurred during such
period;
(b) the representations and warranties set out in Clauses 15.1(g)
(Winding-Up), 15.1(i) (Litigation), 15.1(j) (No Security
Interests/Guarantees/Financial Indebtedness), 15.1(l) (Assets),
15.l(o)(i) (Material Adverse Changes), 15.1(q) (Latest
Accounts), 15.1(s) (Reports), 15.1(t) (Documents) and 15.1(w)
(Holding Companies) shall be made on the date of this Agreement
and only repeated on the date of the first Drawing Request and
the first Drawing Date and shall, on such repetition (other than
in the case of Clauses 15.1(t) (Documents) and 15.1 (w) (Holding
Companies), be qualified by any matter disclosed by the Parent
to the Facility Agent in writing after the date of this
Agreement but prior to the date of repetition, (provided such
disclosure is a specific disclosure against a specific
representation and warranty) and which relates to an event or
circumstance which occurred during such period, provided that
the representation and warranty set out Clauses 15.1(l)(i) and
(ii) (Assets) applying to Target Shares and assets which are the
subject of a Delayed Completion shall be made on the applicable
Delayed Completion Date;
(c) the representations and warranties set out in Clauses 15.1(k)
(Labour Disputes), 15.1(m) (Consents, Filings and Laws
Applicable to Operations), 15.1 (u) (Intellectual Property),
15.1(v) (Environmental Warranties), 15.1(y) (Government
Regulations) and 15.1(z) (Employee Benefit Plans) shall, on
being repeated on the date of the first Drawing Request and the
first Drawing Date, be qualified by any matter disclosed by the
Parent to the Facility Agent in writing after the date of this
Agreement but prior to the date of repetition, (provided such
disclosure is a specific disclosure against a specific
representation and warranty) and which relates to an event or
circumstance which occurred during such period; and
(d) the representations and warranties set out in Clauses 15.1(a)
(Incorporation) to 15.1(g) (Winding-up) (inclusive) shall in
addition be repeated on each date on which an Accession Document
or an additional Security Document is entered into; and
16 UNDERTAKINGS
16.1 DURATION OF UNDERTAKINGS: The undertakings in this Clause 16 shall
continue for so long as any sum remains payable or capable of becoming
payable under the Senior Finance Documents.
16.2 GENERAL UNDERTAKINGS:
(a) AUTHORISATIONS AND CONSENTS: Each Obligor will, and will procure
that each of its Subsidiaries will, apply for, obtain and
promptly renew from time to time and maintain in full force and
effect all consents and comply with the terms of all such
consents, and promptly
52
make and renew from time to time all such filings, as may be
required under any applicable law or directive to enable it to
enter into, exercise its rights, and perform and comply with its
obligations under the Transaction Documents to which it is party
and to carry out the transactions contemplated by the
Transaction Documents to which it is a party and to ensure that
its obligations under the Transaction Documents to which it is
party are valid, legally binding and, subject to reservations,
enforceable and each of the Security Documents to which it is
party constitutes valid security ranking, subject to the
reservations, in accordance with its terms.
(b) MAINTENANCE OF STATUS AND AUTHORISATION: Each Obligor will, and
will procure that each of its Subsidiaries will:-
(i) do all such things as are necessary to maintain its
corporate existence;
(ii) ensure that it has the right to conduct its business and
will obtain and maintain all consents and make all
filings necessary for the carrying on of the Business
and take all steps necessary to ensure that the same are
in full force and effect save to the extent that the
absence of any consent or filing or variation of any
such consent does not and is not reasonably likely to
have a Material Adverse Effect; and
(iii) comply with all laws and directives binding upon it and
procure compliance by all of its respective officers and
employees with all applicable laws and directives
binding upon it save to the extent non-compliance does
not have and is not reasonably likely to have a Material
Adverse Effect.
(c) PARI PASSU RANKING: Each Obligor will, and will procure that
each of its Subsidiaries will, ensure that its payment
obligations under each of the Senior Finance Documents rank and
will at all times rank at least pari passu in right and priority
of payment with all its other present and future unsecured and
unsubordinated indebtedness (actual or contingent) except
indebtedness preferred solely by operation of law.
(d) INSURANCES:
Each Obligor will, and will procure that each of its
Subsidiaries will, on or prior to the Completion Date effect and
thereafter maintain insurances at its own expense in respect of
all its assets and business of an insurable nature with
reputable insurers of good standing. Such insurances must:
(A) provide cover against all risks which
are normally insured against by other
companies owning, possessing or leasing
similar assets and carrying on similar
businesses and include, without
limitation, cover against loss of
profits, product liability, pollution
and public liability; and
(B) be in such amounts as would in the
circumstances be prudent for such
companies.
(e) TAXES: Each Obligor will, and will procure that each of its
Subsidiaries will, pay within any applicable time limit all
taxes imposed by any agency of any state upon it or any of them
or any of its or their assets, income or profits or any
transactions undertaken or entered into by it or any of them
save in the event of a bona fide dispute with regard to any tax
in respect of which proper provision has, if appropriate, been
made in the accounts of the relevant member of the Group.
53
(f) ACQUISITION DOCUMENTS:
(i) UK ParentCo 3 will take all action to enforce any claim
it has in relation to the warranties given under the
Acquisition Documents and to enforce all other rights
and entitlements it may have under the Acquisition
Documents.
(ii) UK ParentCo 3 will not amend, vary or waive any of the
terms of the Acquisition Documents and will not prior to
the Completion Date exercise any discretion thereunder
or give any consent or waiver thereunder.
(g) HEDGING ARRANGEMENTS: The Parent will, by no later than 45 days
after the Completion Date, procure that UK ParentCo 3 or one of
its subsidiaries (not being UK BondCo) enter into Hedging
Agreements with Hedging Banks or, if the counterparty does not
have a credit exposure on the relevant member of the Group, such
other bank or financial institution so as to ensure that for a
period of no less than three years from the Completion Date the
Group has hedging of interest rate exposure in respect of not
less than 50 per cent. of the aggregate Commitments in relation
to the Term Facilities on the date of this Agreement.
(h) BANKING BUSINESS: Each Obligor will, and will procure that each
of its Subsidiaries will only maintain bank accounts with
Ancillary Banks or any other bank which the Facility Agent shall
approve in writing and only carry on banking business with Banks
or other banks approved by the Facility Agent in writing.
(i) PENSION SCHEMES: Each Obligor will, and will procure that each
of its Subsidiaries will, if requested by the Facility Agent,
deliver to the Facility Agent at such time as those reports are
prepared in order to comply with then current statutory or
auditing requirements, actuarial reports in relation to the
pension schemes for the time being operated by members of the
Group, and will ensure that all such pension schemes are fully
funded to the extent required by law based on reasonable
actuarial assumptions applicable in the jurisdiction in which
the relevant pension scheme is maintained.
(j) FINANCIAL ASSISTANCE: Each Obligor will, and will procure that
each of its Subsidiaries will, comply in any and all respects
with sections 151 to 158 (inclusive) of the Companies Xxx 0000
or any similar enactments or financial assistance laws in any
other applicable jurisdiction, including in relation to the
execution of the Finance Documents and the payment of amounts
due under the Finance Documents.
(k) YEAR 2000 REPORTING REQUIREMENTS: The Parent will use all
reasonable endeavours to procure that the Millennium Programme
shall be continued and undertaken in accordance with its terms
and shall notify the Facility Agent and any Bank promptly upon
detecting any material failure of the Information Systems and
Equipment to be Year 2000 Compliant. In addition, the Parent
shall provide the Facility Agent and any Bank with such
information about its Year 2000 computer readiness (including,
without limitation, information as to contingency plans, budgets
and testing results) as the Facility Agent or such Bank shall
reasonably request.
(l) INTELLECTUAL PROPERTY: Each Obligor will and each Obligor will
procure that each of its Subsidiaries will:
(i) observe and comply with all obligations and laws to
which it in its capacity as registered proprietor,
beneficial owner, user, licensor or licensee of the
Intellectual Property required to conduct the Business
or any part of it is subject where failure to do so
would have or could be reasonably expected to have a
Material Adverse Effect;
(ii) do all acts as are necessary to maintain, register,
protect and safeguard such Intellectual Property as is
required to conduct the Business or any part of it where
failure to do so would have or could be reasonably
expected to have a Material Adverse Effect and not
discontinue the use of any of such Intellectual Property
nor
54
allow it to be used in such a way that it is put at risk
by becoming generic or by being identified as
disreputable if in each case to do so would have or
could be reasonably expected to have a Material Adverse
Effect; and
(iii) not grant any licence to any person to use the
Intellectual Property required to conduct the Business
if to do so would have or could be reasonably expected
to have a Material Adverse Effect.
(m) TERMINATION OF FINANCING STATEMENTS: Upon the request of the
Facility Agent, and at the expense of the Parent, within 10 days
after such request, the Parent will procure that the Facility
Agent is provided with proper termination statements on Form
UCC-3 covering such financing statements as the Facility Agent
may reasonably request.
(n) DUTCH SHARE PLEDGE: Dutch Overseas HoldCo will within 180 days
of the date hereof grant a perfected first ranking Dutch law
share pledge over the shares which it owns in ICI Alpha BV and
pay or procure payment of all costs and expenses incurred in
connection with the grant of such pledge including, without
limitation, notarial, registration and legal fees. Dutch
Overseas HoldCo will take all steps as may be required to enable
Dutch counsel to the Security Agent to issue a legal opinion
reasonably satisfactory to the Security Agent.
(o) US SECURITY: The Parent will procure that as soon as reasonably
practicable and in any event within 30 days following the
Completion Date:
(i) a mortgagee title insurance policy or binding commitment
to issue such title insurance policy is delivered to the
Facility Agent in respect of the property at Nederland,
Texas (the "Mortgage Policy") on terms reasonably
satisfactory to the Facility Agent and in an amount no
exceeding US$5,000,000 and shall include an endorsement
for future advances under this Agreement and for any
other matter that the Facility Agent in its discretion
may reasonably request (to the extent available in the
jurisdiction of such property), (b) shall not include an
exception for mechanics' liens, and (c) shall provide
for affirmative insurance and such reinsurance
(including direct access agreements) as the Facility
Agent in its discretion may reasonably request;
(ii) a mortgage over the property at Nederland, Texas is
granted providing a valid and enforceable first priority
security on such property free of encumbrances except as
permitted under this Agreement;
(iii) if it does not do so on or prior to the date of
Completion the Facility Agent receives an opinion of
local counsel to the Borrowers in Tennessee, Mississippi
and Texas, in form and substance satisfactory to the
Facility Agent, with respect to, among other things, the
enforceability of the mortgages that secure any
properties in each jurisdiction;
(iv) if not satisfied on or prior to the date of Completion,
use all reasonable endeavours to obtain a landlord's
consent and agreement in the form agreed to by the
Parent and the Facility Agent, from each of the
landlords under the lease agreements with respect to
properties located in Olive Branch, Mississippi;
Nederland, Texas; Tustin, CA; Xxxxxxx Xxxxxx, MO;
Xxxxxxx, Tennessee and Memphis, Tennessee.
16.3 RESTRICTIONS:
(a) AMALGAMATIONS AND CHANGE OF BUSINESS: No Obligor will and each
Obligor will procure that none of its Subsidiaries will:
(i) amalgamate, merge or consolidate with or into any other
person or be the subject of any reconstruction; or
55
(ii) materially change the nature or scope of the business of
the Group as a whole.
(b) DISPOSALS: No Obligor will and each Obligor will procure that
none of its Subsidiaries will, (whether by a single transaction
or a number of related or unrelated transactions and whether at
the same time or over a period of time) sell, transfer, lease
out, lend or otherwise dispose of any of its assets or all or
any part of its undertaking or agree to do so. The following
transactions shall not be prohibited by this Clause:-
(i) disposals of assets (other than shares in any member of
the Group) in the ordinary course of trading;
(ii) the application of funds in any manner not prohibited by
the Senior Finance Documents and the disposal of Cash
Equivalents and instruments referred to in Clause
16.3(j)(ii);
(iii) the exchange of assets (other than shares in any member
of the Group) for other assets of a similar nature and
value;
(iv) any disposal of assets by a member of the Group to an
Obligor which has entered into Security Documents
constituting Security Interests over all or
substantially all of its assets;
(v) any disposal of assets (other than shares in any member
of the Group) which are obsolete for the purpose for
which such assets are normally utilised or which are no
longer required for the purpose of the Group's business
or operations;
(vi) any disposal to which the Majority Banks shall have
given their prior written consent;
(vii) any disposal effected solely by the creation of a
Permitted Security Interest pursuant to Clauses
16.3(d)(iv) or (v);
(viii) any disposal (other than shares in any member of the
Group) where the Net Proceeds are to be applied within 6
months to purchase an asset to replace the asset
disposed of;
(ix) the disposals of shares in members of the Group
necessary to implement the Dutch Re-organisation in
accordance with its terms within 180 days of the date
hereof and to implement a transfer of the shares in ICI
Acrylics Canada Inc. and ICI Acrylics (Mexico) S.A. by
ICI Acrylics Inc. to Dutch Overseas HoldCo;
(x) the disposal of shares in ICI Acrylics GmbH as
contemplated by, and in accordance with, the Framework
Agreement dated 16 July, 1999 between ICI Acrylics
Holland BV and Veha NV;
(xi) a disposal by ICI Alpha BV of shares in Kaohsiung
Monomer Company Limited provided that ICI Alpha BV
retains more than 50 per cent of the shares in Kaohsiung
Monomer Company Limited;
(xii) disposals of assets (other than shares in any member of
the Group) with a value which does not exceed Pound
Sterling500,000 and where the aggregate value of the
assets so disposed of by members of the Group other than
in accordance with sub-paragraphs (i) to (x) (inclusive)
above in any Financial Year of the Parent does not
exceed Pound Sterling2,000,000;
(xiii) one or more disposals by the Parent of shares in China
Project Newco provided that the Parent retains at all
times more than 50 per cent of each class of shares in
China Project Newco;
56
provided that
(xiv) disposals under sub-paragraph (iv), (v), (vii) and
(xiii) above will only be permitted so long as no Event
of Default or Potential Event of Default has occurred
and is continuing;
(xv) any asset disposed of in accordance with sub-paragraph
(iv) above which is subject to security at the time of
disposal shall be subject to security under a Security
Document following disposal and the relevant subsidiary
of the Parent shall take all steps necessary to create,
perfect or register such security and shall deliver to
the Security Agent such evidence as the Security Agent
shall require of the due execution of the relevant
Security Document together, in the case of assets
situated outside England and Wales, with a legal opinion
satisfactory to the Security Agent (acting reasonably);
and
(xvi) any moneys in excess of Pound Sterling1,000,000 received
pursuant to a disposal under sub-paragraph (viii) above
which are not immediately applied in accordance with
such sub-paragraph shall be held in a Cash Collateral
Account pending such application.
(c) ARM'S LENGTH TRANSACTIONS: No Obligor will and each Obligor will
procure that none of its Subsidiaries will, enter into any
arrangement or transaction other than on an arm's length basis
save for:-
(i) loans to employees permitted under Clause 16.3(h)(iv)
(Loans);
(ii) transactions or arrangements between members of the
Group not otherwise prohibited by the Senior Finance
Documents;
(iii) guarantees permitted under Clause 16.3(g)(i)
(Guarantees); or
(iv) the provision of management and administrative services
and the secondment of employees in each case to other
members of the Group;
and each Obligor will and will procure that each of its
Subsidiaries will not dispose of any assets (save for any
disposal permitted under Clause 16.3(b)(iii) or 16.3 (b)(iv)
(Disposals)) other than for cash consideration payable on or
before completion of the relevant disposal and on terms that the
purchaser thereof does not obtain title or possession of any
asset the subject of such disposal prior to completion of such
disposal and payment of the whole consideration therefor (save,
in each case, for the provision of trade credit in the ordinary
course of trading).
(d) NEGATIVE PLEDGE: No Obligor will, and each Obligor will procure
that none of its Subsidiaries will, create or agree to create or
permit to subsist any Security Interest on or over the whole or
any part its undertaking or assets (present or future) except
for:-
(i) liens arising solely by operation of law and in the
ordinary course of its trading activities and not as a
result of any default or omission on the part of any
member of the Group;
(ii) rights of set-off existing in the ordinary course of
trading activities between any member of the Group and
its respective suppliers or customers;
(iii) rights of set-off or netting arising by operation of law
or by contract by virtue of the provision to any member
of the Group of clearing bank facilities or overdraft
facilities permitted under this Agreement;
57
(iv) any retention of title to goods supplied to any member
of the Group where such retention is required by the
supplier in the ordinary course of its trading
activities and on customary terms;
(v) Security Interests (except floating charges) arising
under finance leases, hire purchase, conditional sale
agreements or other agreements for the acquisition of
assets on deferred payment terms permitted under Clause
16.3(i) (Leasing Arrangements) and only to the extent
such Security Interests are granted by the relative
member of the Group over assets comprised within or
constituted by such arrangements;
(vi) Security Interests arising under the Security Documents;
(vii) any Security Interest to which the Majority Banks shall
have given prior written consent;
(viii) any Security Interest over goods and documents of title
to goods arising on the ordinary course of letter of
credit transactions entered into in the ordinary course
of trading;
(ix) any Security Interest over cash paid into an escrow
account pursuant to any purchase price retention
arrangement as part of any disposal or acquisition made
by any member of the Group which is permitted by Clauses
16.2(b) and (l) respectively provided that in respect of
any disposal, the cash paid into any such escrow account
does not represent more than 15% of the Net Proceeds;
(x) any Security Interest over an asset of a company which
becomes a Subsidiary of the Parent (other than by reason
of its incorporation) after the date of Completion,
being a Security Interest which is in existence at the
time at which that company becomes such a Subsidiary but
only if (i) that Security Interest was not created in
contemplation of that company becoming such a
Subsidiary, (ii) the principal amount secured by that
Security Interest has not been and shall not be
increased and (iii) that Security Interest is discharged
within 6 months of that company becoming such a
Subsidiary;
(xi) any Security Interest in respect of assets of Existing
JV Companies where the aggregate value of all assets
subject to such Security Interests does not exceed Pound
Sterling10,000,000 and are securing obligations of
Existing JV Companies;
(xii) any Security Interest in respect of assets of Permitted
Joint Ventures and are securing obligations of Permitted
Joint Ventures;
(xiii) any Security Interest not otherwise permitted pursuant
to paragraphs (i) to (viii) (above inclusive) in respect
of any assets having a value not exceeding, in
aggregate, Pound Sterling100,000; and
(xiv) any Security Interest in respect of assets of the China
Project which secure obligations of the China Project.
(e) FACTORING: No Obligor will, and each Obligor will procure that
none of its Subsidiaries will:
(i) sell or otherwise dispose of any asset on terms whereby
such asset is or may be leased to or re-acquired or
acquired by it or any other member of the Group; or
(ii) sell or otherwise dispose of any receivable.
58
(f) INDEBTEDNESS: No Obligor will, and each Obligor will procure
that none of its Subsidiaries will, incur or agree to incur or
permit to subsist any Financial Indebtedness other than
Permitted Indebtedness. For this purpose, "PERMITTED
INDEBTEDNESS" means:-
(i) Financial Indebtedness arising under the Finance
Documents provided that the aggregate principal amount
of the Financial Indebtedness under the Senior
Subordinated Finance Documents shall at no time exceed
US$200,000,000 (other than by reason of the
capitalisation of interest under the Bridge Facility
Agreements in accordance with the terms thereof);
(ii) Financial Indebtedness permitted by Clauses 16.3(g)
(Guarantees), 16.3(h) (Loans), 16.3(i) (Leasing
Arrangements) and 16.3(j) (Hedging Transactions);
(iii) facilities in respect of which a Letter of Credit or
Bank Guarantee in an amount equal to the maximum
principal amount of such facilities has been issued
under the Revolving Facility;
(iv) Financial Indebtedness of Existing JV Companies (taken
as a group) in an aggregate principal amount of Pound
Sterling10,000,000 at any time;
(v) Financial Indebtedness of Permitted Joint Ventures
incurred with recourse to any other member of the Group
in a principal amount which:
(A) when aggregated (without
double-counting) with the other items in
respect of that Permitted Joint Venture
specified in paragraph (b) of the
definition of Permitted Joint Ventures
in Clause 1.1 (Definitions) does not
exceed the Available Amount for the
Capex Period in which that Financial
Indebtedness is incurred; and
(B) when aggregated with all other such
Financial Indebtedness of Permitted
Joint Ventures outstanding at any time
does not exceed Pound Sterling5,000,000;
(vi) Financial Indebtedness of Permitted Joint Ventures not
incurred to members of the Group and without recourse to
any other member of the Group;
(vii) Financial Indebtedness not otherwise referred to in
paragraphs (i) to (v) above in an aggregate principal
amount not exceeding Pound Sterling5,000,000 for the
Group taken as a whole at any time;
(viii) Financial Indebtedness of the Parent arising under the
CDC DDBs Documents provided that:
(A) no CDC DDBs shall be issued other than
for cash and in accordance with the
terms of the CDC DDBs Documents as at
the Effective Date;
(B) the aggregate amount subscribed and/or
advanced in cash by the CDC DDBs
Subscribers by way of subscription for
CDC DDBs which are issued for the
purposes of financing or re-financing
the investment of China Project Newco in
the China Project may not exceed Pound
Sterling12,000,000 prior to 31 December
2003;
(C) the aggregate amount subscribed and/or
advanced in cash by the CDC DDBs
Subscribers by way of subscription for
issued CDC DDBs shall not exceed at any
time Pound Sterling40,000,000;
59
(D) the proceeds of an issue of CDC DDBs
made upon the occurrence of a Drawdown
Event shall be immediately applied by
way of subscription for ordinary shares
by the Parent in UK Parentco 1, by UK
Parentco 1 for ordinary shares in UK
Parentco 2 and by UK Parentco 2 for
ordinary shares in UK Parentco 3 and
thereafter shall be applied by UK
Parentco 3 in a manner permitted by the
terms of this Agreement and the
Intercreditor Agreement; and
(E) the proceeds of an issue of CDC DDBs
made for the purposes of financing or
refinancing China Project Newco's
investment in the China Project shall be
applied by the Parent by way of
subscription for shares in China Project
Newco or by way of a loan to China
Project Newco, in each case in a manner
permitted by the terms of this Agreement
and the Intercreditor Agreement;
(ix) Financial Indebtedness of (A) China Project Newco
provided it is not incurred to any member of the Group
and is without recourse to any member of the Group other
than the Parent and (B) the China Project provided it is
not incurred to any member of the Group and is without
recourse to any member of the Group other than China
Project Newco, in each case in accordance with Clause
16.3(k)(iii) (Joint Ventures);
(x) Financial Indebtedness of the Parent arising under an
issue of subordinated debt or other securities made in
accordance with Clause 16.4(a)(v) (Control); and
(xi) Financial Indebtedness arising under an issue of high
yield notes made in accordance with Clause 16.4(k)(iii)
(CDC Bridge Facility).
(g) GUARANTEES: No Obligor will, and each Obligor will procure that
none of its Subsidiaries will, grant or agree to grant or permit
to subsist any guarantee other than:-
(i) guarantees, indemnities or performance bonds given in
the ordinary course of trading activities in respect of
the Parent's or the Parent's wholly-owned Subsidiaries'
obligations;
(ii) guarantees contained in the Finance Documents; or
(iii) guarantees entered into solely for the purpose of
arrangements referred to in Clause 16.3(d)(iii);
(iv) guarantees by UK ParentCo 3 or any of its Subsidiaries
in respect of the Financial Indebtedness of Permitted
Joint Ventures permitted under Clause 16.3(f)(v);
(v) guarantees in respect of the Financial Indebtedness of
any Existing JV Company permitted under Clause
16.3(f)(iv).
(h) LOANS: No Obligor will, and each Obligor will procure that none
of its Subsidiaries will, make or agree to make or permit to be
outstanding any loans or grant or agree to grant any credit
other than:-
(i) trade credit given in the ordinary course of its trading
activities; or
(ii) loans and the granting of credit by Obligors to other
Obligors; or
(iii) loans made on the Completion Date in accordance with the
Structure Document;
(iv) loans to employees of the Group, provided that the
maximum aggregate principal amount of all such loans
shall not exceed Pound Sterling1,000,000 at any time;
60
(v) loans made by members of the Group which are not
Obligors to other such members of the Group;
(vi) loans made by wholly owned members of the Group which
are not Obligors to Obligors;
(vii) loans made by Obligors to wholly-owned members of the
Group which are not Obligors which do not exceed, in
aggregate Pound Sterling10,000,000 at any time;
(viii) loans made to a Permitted Joint Venture in a principal
amount which:-
(A) when aggregated (without
double-counting) with the other items in
respect of that Permitted Joint Venture
specified in paragraph (b) of the
definition of Permitted Joint Ventures
in Clause 1.1 (Definitions) does not
exceed the Available Amount for the
Capex Period in which that loan is made
for that Permitted Joint Venture; and
(B) when aggregated with all other loans to
Permitted Joint Ventures outstanding at
any time does not exceed Pound
Sterling5,000,000.
(ix) loans made by the Parent to China Project Newco and by
China Project Newco to the China Project which in each
case have been financed directly or indirectly in cash
from the proceeds of CDC DDBs issued by the Parent in
accordance with Clause 16.6(f)(viii) (Indebtedness).
(i) LEASING ARRANGEMENTS: No Obligor will, and each Obligor will
procure that none of its Subsidiaries will enter into or permit
to subsist any finance lease, hire purchase, conditional sale
agreement or other agreement for the acquisition of any asset
upon deferred payment terms provided that members of the Group
may enter into or permit to subsist such finance leases or other
agreements in connection with the acquisition of equipment and
other items required for the Business provided that the
aggregate of the capital element of all rentals during the life
of the Facilities under all such finance leases and agreements
(determined in accordance with Applicable GAAP) does not exceed
Pound Sterling7,500,000.
(j) HEDGING TRANSACTIONS: No Obligor will, and each Obligor will
procure that none of its Subsidiaries will, enter into any
interest rate swap, cap, ceiling, collar or floor or any
currency swap, futures, foreign exchange or commodity contract
or option or any similar instrument for managing or hedging
currency exposure (where, in each case, the counterparty has a
credit exposure on the relevant Obligor) other than:
(i) the Hedging Documents; or
(ii) for hedging currency exposure arising in the ordinary
course of its trading of a member of the Group (and not
for speculative purposes) where no such instrument has a
duration exceeding 12 months.
(k) JOINT VENTURES: No Obligor will, and each Obligor will procure
that none of its Subsidiaries will enter into or permit to
subsist any joint venture, partnership or similar arrangement
with any person,
other than:-
(i) any such joint venture, partnership, or equivalent
arrangement subsisting at the date of this Agreement;
(ii) Permitted Joint Ventures; and
61
(iii) in relation to China Project Newco and the China Project
provided that:-
(A) the ownership interests in China Project
Newco are held directly by the Parent
(and by no other member of the Group)
and the ownership interests in the China
Project are held directly by China
Project Newco (and by no other member of
the Group);
(B) no advance, loan, investment or
contribution in China Project Newco or
the China Project, or any subscription
for shares or acquisition of other
ownership interests in China Project
Newco or the China Project, shall be
made by the Parent or China Project
Newco, respectively, other than by way
of cash or the provision or licensing of
technological assistance and engineering
know-how to China Project Newco and the
China Project, respectively, to the
extent that the provision or licensing
of such assistance and know-how by the
Parent or China Project Newco would not
otherwise be prohibited by this
Agreement;
(C) all amounts which are advanced, lent,
invested in or contributed to China
Project Newco and the China Project, or
which are subscribed for or otherwise
used for the acquisition of shares or
other ownership interests in China
Project Newco and the China Project by
the Parent or by China Project Newco,
respectively, shall be financed or
re-financed solely from the proceeds of
the CDC DDBs and prior to 31 December
2003, the aggregate amount of all such
proceeds which may be advanced, lent,
invested in or contributed to China
Project Newco and the China Project
shall not exceed Pound
Sterling12,000,000; and
(D) notwithstanding any other provision of
this Agreement (other than Clauses
16.4(h) (Holding Companies) and 16.4(l)
(China Project Newco), no member of the
Group shall directly or indirectly at
any time (save to the extent expressly
contemplated by Clauses 16.3(k)(iii)(A)
to (C) above, Clause 16.3(h)(ix)(Loans)
and the proviso to Clause 16.4(f)
(Structural Subordination)):-
(1) advance, lend or contribute to, or
subscribe for shares or acquire
ownership interests or otherwise invest
in, China Project Newco or the China
Project;
(2) transfer or contribute any asset to
China Project Newco or the China
Project;
(3) incur any liability (whether by way of
guarantee or otherwise) in relation to
China Project Newco or the China
Project; or
(4) incur any obligation pursuant to any
agreement or arrangement to lend to or
guarantee or transfer assets to or
otherwise fund or incur any liability in
relation to China Project Newco or the
China Project or to acquire any shares
or other interest therein or assets
thereof,
save that members of the Group may provide or
licence technological assistance and engineering
know-how to China Project Newco and the China
Project to the extent that the provision or
licensing of such assistance and know-how by the
relevant members of the Group would not
otherwise be prohibited by this Agreement.
62
(l) ACQUISITIONS AND INVESTMENTS: No Obligor will and each Obligor
will procure that none of its subsidiaries will:
(i) acquire any business or acquire any Subsidiary or the
whole or substantially the whole of the assets of any
other person or enter into any agreement so to do;
(ii) own or acquire any interest in or subscribe for any
share or equity related investment or debt or equity
security, or
(iii) make any capital contribution to any person (not being
one of its wholly-owned Subsidiaries).
other than:
(1) pursuant to the Acquisition Documents;
(2) any shares owned by it in Subsidiaries at the
date of this Agreement;
(3) any acquisition by a member of the Group
pursuant to a disposal permitted under Clauses
16.3(b)(iv) and (ix) (Disposals);
(4) any acquisition of Cash Equivalents for treasury
management purposes;
(5) the acquisition of any interest in, any share or
equity related investment in an Existing JV
Company during a Capex Period provided that the
aggregate of:-
(A) all amounts paid or to be paid in
connection with such acquisition; and
(B) the liabilities assumed or incurred in
respect of Financial Indebtedness
(whether by way of novation, guarantee
or otherwise) by any member of the Group
in connection with or as a result of
that acquisition,
does not exceed the Available Amount in respect
of that acquisition in that Capex Period;
(6) a Permitted Joint Venture;
(7) China Project Newco and the China Project
(provided the acquisition of any interest in
China Project Newco and the China Project is
made in accordance with Clause 16.3(k)(iii)); or
(8) any other acquisition of an asset for use in the
Business or shares in a limited liability
company (which results in the acquisition of
control of such company) carrying on any
business similar to or connected with the
Business, in each case provided that the
aggregate of:-
(A) all amounts paid or to be paid in
connection with such acquisition; and
(B) the liabilities assumed or incurred
(whether by way of guarantee or
otherwise) by any member of the Group in
connection with or as a result of that
acquisition,
63
does not exceed the lower of Pound
Sterling2,000,000 (when aggregated with all
other amounts of the type referred to in
paragraphs (A) and (B) spent or incurred on
acquisitions under this Clause 16.3(l)(8) during
that Capex Period) and the Available Amount in
respect of that acquisition in that Capex
Period.
16.4 CAPITAL STRUCTURE:
(a) CONTROL: No Obligor will, and each Obligor will procure that
none of its Subsidiaries will allot or issue any shares or any
relevant securities (as defined in Section 80(2) of the
Companies Act 1985) other than:
(i) an issue of shares by one wholly owned Subsidiary of the
Parent to another wholly owned Subsidiary of the Parent
or the Parent provided that a subscription of shares by
any member of the Group in UK Bondco financed directly
or indirectly from the proceeds of the CDC DDBs shall
not be permitted; or
(ii) an issue of shares by one member of the Group to a
person which acts or is to act as the trustee of any
Group pension scheme or employee incentive scheme
provided that such scheme has been approved in writing
by the Majority Banks; or
(iii) subject to the Intercreditor Agreement and the
Subordination Agreement, an issue of ordinary and/or
preference share capital in the Parent carrying no
creditor rights (including, without limitation, any such
issue made for the purposes of converting any CDC DDBs
from debt into equity in accordance with the terms of
the CDC DDBs Instrument (as in force at the Effective
Date));
(iv) an issue of subordinated debt by the Parent which is
subordinated in a manner satisfactory to the Facility
Agent provided that the proceeds of any such issue are
subscribed for ordinary shares in UK ParentCo 1, by UK
ParentCo 1 for ordinary shares in UK ParentCo 2 and by
UK ParentCo 2 for ordinary shares in UK ParentCo 3;
(v) subject to the Subordination Agreement, an issue of
subordinated non-cash pay debt securities by the Parent
which are subordinated to the Facilities and the High
Yield Notes in a manner satisfactory to the Majority
Banks, the net proceeds of which are used to refinance
all outstandings under the CDC DDBs Documents in full;
or
(vi) an issue of ordinary or preference shares by the China
Project to any person (other than China Project Newco
and any other member of the Group) where the entire
proceeds of such issue are retained by the China Project
for the purposes of financing its capital expenditure
and working capital requirements and on condition that
such proceeds are not paid or distributed by the China
Project, whether directly or indirectly, to any other
member of the Group for any purpose including, without
limitation, the financing of any repayment, prepayment
or redemption of any amounts outstanding under the CDC
DDBs which is not permitted under the Subordination
Agreement.
(b) VARIATION OF DOCUMENTS:
(i) Subject to sub-paragraph (ii) below, the Parent will
not, and will procure that no member of the Group will,
agree to any waiver, amendment or variation to the terms
of the Investor Documents which could reasonably be
expected to prejudice the interests of the Senior
Finance Parties under the Senior Finance Documents.
(ii) Notwithstanding the provisions of sub-paragraph (i)
above, the Parent will not agree to any waiver,
amendment or variation:-
64
(1) to any provisions of the Investor Documents
which specify that such documents are subject to
the provisions of the Intercreditor Agreement,
the Investor Side-Letter or the Senior Finance
Documents or similar provisions; or
(2) if the effect of such amendment or variation is
to:
(A) change any provision relating to payment
or distribution of amounts to
shareholders or noteholders or other
holders of any relevant instrument which
could have the effect of increasing or
accelerating any payment thereunder; or
(B) change any provision relating to
redemption of share capital or notes or
other relevant instrument.
in each case where payment or redemption would
be permitted to occur prior to the Senior
Discharge Date (as defined in the Intercreditor
Agreement).
(iii) The Parent will not and will procure that no other
member of the Group will, agree to any amendment, waiver
or variation of any of the Senior Subordinated Finance
Documents, save as permitted under the Intercreditor
Agreement; and
(iv) The Parent will not and will procure that no other
member of the Group will, agree to any amendment, waiver
or variation of any of the CDC DDBs Documents save as
permitted under the Subordination Agreement.
(c) CASHFLOW RESTRICTIONS: No Obligor will, and each Obligor will
procure that none of its Subsidiaries (other than Existing JV
Companies or Permitted Joint Ventures or, following a disposal
of the Parent's shares in China Project Newco permitted under
Clause 16.3(b) (Disposals), China Project Newco and the China
Project), will be a party to any contractual or similar
arrangement pursuant to which any member of the Group (other
than the Parent) is prohibited from making any payment of
dividends, distributions of income and other amounts other than
the Senior Finance Documents and the Senior Subordinated Finance
Documents.
(d) RESTRICTION ON REDEMPTION AND ACQUISITION OF OWN SHARES: No
Obligor will, and each Obligor will procure that none of its
Subsidiaries will, directly or indirectly redeem, purchase,
retire or otherwise acquire for consideration any shares or
warrants issued by it for any such purpose or otherwise reduce
its capital (except (i) where any resulting payment or
distribution of cash or other assets is made to a wholly-owned
Subsidiary of UK ParentCo 3) and (ii) the redemption by the
Parent of shares with an amount equivalent to the proceeds of a
subscription for shares as contemplated by the Investment
Agreement in force as at the date hereof.
(e) RESTRICTION ON PAYMENT OF DIVIDENDS: No Obligor will, and each
Obligor will procure that none of its Subsidiaries will declare
or pay, directly or indirectly, any dividends or make any other
distribution or pay any interest or other amounts, whether in
cash or otherwise, on or in respect of its share capital or any
class of its share capital or set apart any sum for any such
purpose other than:-
(i) by a member of the Group to another member of the Group
which is a wholly owned subsidiary of UK ParentCo 3 or
UK ParentCo 3; or
(ii) as permitted in accordance with the Intercreditor
Agreement.
(f) STRUCTURAL SUBORDINATION: Notwithstanding any other provision of
the Senior Finance Documents, no Obligor will, and each Obligor
will procure that none of its Subsidiaries will:-
65
(i) declare or pay, directly or indirectly, any dividends or
make any distribution in favour of either the Parent, UK
ParentCo 1 or UK ParentCo 2;
(ii) make any loan to or grant any financial accommodation to
the Parent, UK ParentCo 1 or UK ParentCo 2;
(iii) pay any interest or other amounts to the Parent, UK
ParentCo 1 or UK ParentCo 2 under or in connection with
any loan received from the Parent, UK ParentCo 1 or UK
ParentCo 2 pay any amount to or transfer monies to the
Parent, UK ParentCo 1 or UK ParentCo 2 whatsoever, other
than in respect of any loan made to UK BondCo which is
subordinated in a manner satisfactory to the Facility
Agent and which is lent from UK ParentCo 3, UK Xxxxx, UK
TraderCo or any US Obligor which has granted security
over all its assets and which loan is ultimately funded
from equity subscribed in the Parent which has been
subscribed by the Parent in ordinary shares in UK
ParentCo 1 and subscribed by UK ParentCo 1 in shares in
UK ParentCo 2 and subscribed by UK ParentCo 2 in shares
in UK ParentCo 3;
(iv) sell, transfer, lease out, lend or otherwise dispose of
any asset to the Parent, UK ParentCo 1 or UK ParentCo 2;
or
(v) grant any guarantee or enter into any participation or
purchase arrangements in relation to any obligation of
the Parent, UK ParentCo 1 or UK ParentCo 2;
except as permitted in accordance with the Intercreditor
Agreement provided that any payments or other distributions made
by UK Parentco 3 to the Parent, UK Parentco 1 or UK Parent Co2
pursuant to clause 7.5 (Other Permitted Payments to the Parent,
ParentCo One and Parentco Two) of the Intercreditor Agreement
which relate directly or indirectly to China Project Newco or
the China Project, together with any travel costs and expenses
attributable to the operation of the China Project, shall not
exceed an aggregate amount of Pound Sterling300,000 in any
Financial Year.
(g) UK BONDCO: Notwithstanding any other provision of the Senior
Finance Documents, no Obligor will, and each Obligor will
procure that none of its Subsidiaries will:-
(i) declare or pay, directly or indirectly, any dividends or
make any distribution in favour of UK BondCo;
(ii) make any loan to or grant any financial accommodation to
UK BondCo, other than a loan which is subordinated in a
manner which is satisfactory to the Facility Agent and
which is lent from UK ParentCo 3, UK Xxxxx, UK TraderCo
or any US Obligor which has granted security over all
its assets and which loan is ultimately funded from
equity subscribed in the Parent (and not, for the
avoidance of doubt, funded from the proceeds of any CDC
DDBs) and which has been subscribed by the Parent in
ordinary shares in UK ParentCo 1 and subscribed by UK
ParentCo 1 in shares in UK ParentCo 2 and subscribed by
UK ParentCo 2 in shares in UK ParentCo 3;
(iii) pay any interest or other amount to UK BondCo under or
in connection with any loan received from UK BondCo or
pay any amount to or transfer monies to UK BondCo
whatsoever;
(iv) sell, transfer, lease out, lend or otherwise dispose of
any asset to UK BondCo; or
(v) grant any guarantee or enter into any participation or
purchase arrangements in relation to any obligation of
UK BondCo other than (aa) the guarantee of UK ParentCo 1
of the Bridge Facility Agreements and (bb) the
guarantees from each of the UK ParentCo 1, UK ParentCo
2, UK ParentCo 3, UK Overseas HoldCo and UK-
66
US HoldCo in respect of the obligations of UK BondCo to
the High Yield Noteholders under the High Yield Notes,
except as permitted in accordance with the Intercreditor
Agreement.
(h) HOLDING COMPANIES: Notwithstanding any other provision of the
Finance Documents each of the Parent, UK Xxxxx, UK BondCo, UK
ParentCo 1, UK ParentCo 2 and UK ParentCo 3:-
(i) shall carry on business solely as a holding company of
the Group and, in the case of UK Xxxxx and UK BondCo,
finance companies of the Group and shall not carry on
any other business other than the holding of shares in
their respective Subsidiaries at the date hereof and, in
the case of the Parent, its shares in China Project
Newco; the entry into and performance of the
transactions contemplated by the Transaction Documents
(including, in the case of UK XxxXx, borrowing under the
Revolving Facility); and the making, receiving and
repaying of loans and associated interest pursuant to
the terms of the Inter-Company Loan Agreements and, in
the case of UK Xxxxx and UK BondCo, the Xxxxx/Bondco
Loan Agreement and, in the case of UK Parentco 3,
pursuant to the terms of any loans entered into by UK
Parentco 3 with its Subsidiaries (other than UK Bondco)
which are permitted by Clause 16.3(h) (Loans);
(ii) shall not own any assets other than (A) shares in their
respective Subsidiaries at the date hereof and rights
deriving therefrom or partnership interests in the US
Partnership and, in the case of the Parent, its shares
in China Project Newco; (B) loans made pursuant to the
Inter-Company Loan Agreements and, in the case of UK
Xxxxx and UK BondCo, the Xxxxx/Bondco Loan Agreement
and, in the case of UK Parentco 3, pursuant to the terms
of any loans entered into by UK Parentco 3 with its
Subsidiaries (other than UK Bondco) which are permitted
by Clause 16.3(h) (Loans) and in each case, monies
received by UK Xxxxx, UK Bondco or UK Parentco 3,
respectively, thereunder which are permitted to be
received by UK Xxxxx, UK Bondco or UK Parentco 3 in
accordance with the Intercreditor Agreement; and
(iii) incur or agree to incur or permit to subsist any
Financial Indebtedness or grant or permit to subsist any
guarantee or Security Interest other than pursuant to
the Transaction Documents or as permitted under Clause
16.4(g)(ii) (UKBondCo).
(i) INTERMEDIATE HOLDING COMPANIES: Notwithstanding any other
provision of the Finance Documents each of UK Overseas HoldCo,
UK Trader HoldCo, UK-US HoldCo, UK PartnerCo 1, UK PartnerCo 2
and Dutch Overseas HoldCo shall carry on business solely as a
holding company of the Group and shall not carry on any other
business other than the holding of shares or partnership
interests in their respective Subsidiaries at the date hereof,
the entry into and performance of the transactions contemplated
by the Transaction Documents (including borrowing under the
Revolving Facility), and the making, receiving and repaying of
loans and associated interest pursuant to the terms of the
Inter-Company Loan Agreements.
(j) REDEMPTION OR PURCHASE OF HIGH YIELD NOTES/BRIDGE FACILITIES:
The Parent shall not, and the Parent shall procure that no other
member of the Group will:
(i) repay, redeem, prepay (by defeasance or otherwise) or
otherwise retire the principal amount of the High Yield
Notes;
(ii) purchase, repurchase, acquire or agree to acquire (or
procure any other person to acquire on its account) all
or any part of the High Yield Notes; or
(iii) repay, redeem or prepay all or any part of the Bridge
Facilities except as permitted in accordance with the
Intercreditor Agreement.
67
(k) CDC DDBS: The Parent shall not, and shall procure that no member
of the Group will repay, redeem, re-finance or prepay all or any
part of the CDC DDBs or any other amounts which may otherwise be
due and payable to the CDC DDBs Creditors other than:-
(i) as permitted under the Subordination Agreement;
(ii) in full from the net proceeds of an issue of
subordinated non-cash pay debt securities by the Parent
in accordance with Clause 16.4(a)(v) (Control);
(iii) from the net proceeds of an issue by UK Bondco unsecured
high yield notes in an aggregate amount not exceeding
the amount which is necessary to repay all outstandings
under the CDC DDBs Documents in full, which high yield
notes are subordinated to, or rank pari passu with, the
High Yield Notes (and guaranteed only by the same
members of the Group who have provided guarantees under
the Senior Subordinated Finance Documents, such
guarantees to be subordinated where any guarantees given
by such members of the Group for existing Financial
Indebtedness are also subordinated) and which have a
scheduled maturity date no earlier than the scheduled
maturity date of the High Yield Notes and which are
otherwise issued on terms satisfactory to the Majority
Banks provided that no such issue of any high yield
notes may be made unless on the date of the proposed
issue, the quarterly consolidated management accounts
for the Group delivered in accordance with Clause
16.6(d) (Financial Statements) as at and for the end of
the Accounting Quarter most recently ended (or, if
available, the audited consolidated financial statements
of the Group for the relevant period (including that
Accounting Quarter)) demonstrate that the ratio of
Cashflow to Total Debt Service for the twelve month
period ending on the last day of that Accounting Quarter
is more than 1.20:1. For the purposes of this Clause
16.4(k)(iii) only, Total Debt Service shall be
calculated so that "Net Total Interest" includes (A) the
projected amount of interest payable on the proposed
high yield notes for the twelve month period commencing
after the issue date and (B) the transaction costs
incurred by the Group in connection with the issue of
such high yield notes; or
(iv) a redemption of the portion of CDC DDBs issued by the
Parent for the purposes of financing or re-financing
China Project Newco's investment in the China Project
(but not, for the avoidance of doubt, any CDC DDBs which
have been issued due to the occurrence of a Drawdown
Event) in accordance with the terms of the CDC DDBs
Documents (as in force on the Effective Date) provided
that such redemption may be funded only from the
proceeds of a disposal made by the Parent of its shares
in China Project Newco which is permitted under Clause
16.3(b) (Disposals) and that the total commitments of
the subscribers under the CDC DDBs Subscription
Agreement are increased immediately upon such redemption
occurring by an amount equal to the amount subscribed
and/or advanced in cash by the relevant CDC DDBs
Subscribers on the issue date of the CDC DDBs which have
been redeemed, such increase in commitments to be made
in accordance with the terms of the CDC DDBs
Subscription Agreement (as in force on the Effective
Date).
(l) CHINA PROJECT NEWCO: Notwithstanding any other provision of the
Finance Documents, China Project Newco:-
(i) shall carry on business solely as a holding company of
the China Project and shall not carry on any other
business other than the holding of shares in the China
Project, the entry into and performance of transactions
in relation to the China Project contemplated by this
Agreement and the making and receiving of loans and
receipt of associated interest to the extent permitted
by Clause 16.3(k)(iii) (Joint Ventures);
(ii) shall not own any assets other than (A) shares in the
China Project and rights deriving therefrom and (B)
loans made to the China Project in accordance with
Clause
68
16.3(k)(iii) and monies received by it thereunder which
are permitted to be received by it under this Agreement
and the Intercreditor Agreement; and
(iii) shall not incur or agree to incur or permit to subsist
any Financial Indebtedness or grant or permit to subsist
any guarantee or Security Interest other than as
permitted by this Agreement.
16.5 ENVIRONMENTAL UNDERTAKINGS: No Obligor will, and each Obligor will
procure that each of its Subsidiaries will:-
(a) comply with the terms and conditions of all Environmental
Consents and all Environmental Laws applicable to it where
failure so to do would have or be reasonably likely to have a
Material Adverse Effect;
(b) promptly upon receipt of the same notify the Facility Agent of
any claim, notice or other material communication served on it
by any regulatory authority in respect of or if it becomes aware
of:-
(i) any suspension, revocation or material variation of any
Environmental Consent applicable to it which has or is
reasonably likely to have a Material Adverse Effect; or
(ii) any breach of any Environmental Laws or any change in
Environmental Laws which has or is reasonably likely to
have a Material Adverse Effect; or
(iii) any material investment by any member of the Group
required to maintain, acquire or renew any Environmental
Consent required in connection with the Business; or
(iv) the issue of any enforcement or prohibition or similar
notice by a regulatory authority or receipt by any
member of the Group of any complaint, demand, civil
claim or enforcement proceeding which has or is
reasonably likely to have a Material Adverse Effect;
(c) use all reasonable endeavours (by employing the best available
techniques not involving excessive cost) to prevent any
circumstances occurring which could result in any person taking
any action or making any claim against any member of the Group
under any Environmental Laws where such action or claim would
have or be reasonably likely to have a Material Adverse Effect.
16.6 INFORMATION AND ACCOUNTING UNDERTAKINGS:
(a) EVENTS OF DEFAULT: Each Obligor will, and will procure that each
of its Subsidiaries will, promptly notify the Facility Agent of
the occurrence of any Event of Default or Potential Event of
Default and will from time to time on request deliver to the
Facility Agent a certificate from one of its directors
confirming that no Event of Default or Potential Event of
Default has occurred and is continuing or setting out details of
any Event of Default or Potential Event of Default and the
action taken or proposed to be taken to remedy it.
(b) BOOKS OF ACCOUNT: Each Obligor will keep, and each Obligor will
procure that each of its Subsidiaries will keep, proper books of
account relating to its business and will permit the Facility
Agent or any authorised representative of the Facility Agent
upon reasonable notice and at reasonable times to visit it and
each of its Subsidiaries and inspect the same at the place where
they are maintained.
(c) APPOINTMENT OF AUDITORS: No Obligor will, and each Obligor will
procure that none of its Subsidiaries will, appoint any auditors
in respect of any consolidated accounts of the Group other than
PriceWaterhouseCoopers, Ernst & Young, KPMG, Xxxxxx Xxxxxxxx or
Deloitte & Touche or any amalgamation of the same or their
successors.
69
(d) FINANCIAL STATEMENTS: The Parent will deliver to the Facility
Agent for distribution to the Banks sufficient copies for each
of the Banks of the following:-
(i) as soon as available and in any event within 120 days
after the end of each of its Financial Years, the
audited consolidated financial statements of the Group
for that Financial Year;
(ii) as soon as available and in any event within 45 days of
the end of each Accounting Quarter the quarterly
consolidated management accounts as at the end of and
for that Accounting Quarter;
(iii) as soon as available and in any event within 30 days of
the end of each month comprised in an Accounting Quarter
the monthly consolidated management accounts of the
Group as at the end of and for that month;
(iv) before the beginning of each of its Financial Years the
operating budget for such Financial Year; and
(v) as soon as available and in any event within 60 days of
the end of each Accounting Quarter ending in June in
each year, an update of the projections contained in the
most recent operating budget;
such accounts, operating budget and update to the operating
budget:-
(vi) in the case of audited annual financial statements, to
include a profit and loss account, balance sheet,
cashflow statement and directors and auditors report
thereon;
(vii) in the case of monthly and quarterly management
accounts, to include a profit and loss account, balance
sheet, cashflow statement and management commentary for
the Group, and (in the case of quarterly management
accounts) segmental reporting for the upstream business
and the downstream business of the Group, and to be in
such form as the Facility Agent (acting on the
instructions of the Majority Banks) may reasonably
require;
(viii) in the case of the Operating Budget and updates to the
Operating Budget to be in a format and with a level of
information reasonably satisfactory to the Facility
Agent (acting on the instructions of the Majority Banks)
and in any event to include a projected balance sheet,
projected cashflow statement, projected profit and loss
account and details of projected capital expenditure,
and, in each case, (other than in the case of the monthly
management accounts) to have been approved by the finance
director of the Parent or such other director of the Parent
acceptable to the Facility Agent.
(e) COMPLIANCE CERTIFICATES:
(i) Each of the annual financial statements and each of the
quarterly financial statements delivered under Clause
16.6(d) (Financial Statements) must be accompanied by a
certificate signed by the finance director of the Parent
(or other officer acceptable to the Facility Agent) and
another director of the Parent certifying whether or not
as at the date of the relevant accounts the Parent was
in compliance with the financial covenants contained in
Clause 16.7 (Financial Covenants) (such certificate to
contain reasonably detailed calculations acceptable to
the Facility Agent demonstrating such compliance),
confirming that as at that date no Event of Default or
Potential Event of Default had occurred or giving
details of any Event of Default or Potential Event of
Default which has occurred and the action taken or
proposed to be taken to remedy it and, in respect of the
certificate delivered with the annual financial
statements,
70
confirming the amount of Excess Cash Flow (together with
a calculation of how that amount has been determined)
for the purpose of Clause 8.4 (Excess Cash Flow).
(ii) Each of the annual audited financial statements
delivered under Clause 16.6(d)(i) (Financial Statements)
must be accompanied by a confirmation from the Auditors
(in such form and with such content as the Facility
Agent may reasonably require) confirming that in the
opinion of the Auditors the numbers on which the
calculations of the Financial Covenants contained in
Clause 16.7 (Financial Covenants) and the amount of
Excess Cash Flow have been based have been properly
extracted from such annual audited financial statements
and that such Financial Covenants and the amount of
Excess Cash Flow have been calculated correctly.
(f) ACCOUNTING REFERENCE DATE: No alteration may be made to the
Financial Year end of the Parent without the prior written
consent of the Facility Agent acting on the instructions of the
Majority Banks (in which event the Facility Agent may require
such changes to the financial covenants and shall permit such
changes to limits which are expressed to refer to a Financial
Year contained in this Agreement as will, in each case, fairly
reflect such change) and the Parent shall procure that the
Financial Year end of each of its Subsidiaries shall be the same
as its own.
(g) INVESTIGATIONS: If an Event of Default shall have occurred and
be continuing or if the Majority Banks believe in good faith and
on reasonable grounds that any financial statements or
calculations provided by the Parent are inaccurate or incomplete
in any material respect the Facility Agent (acting on the
instructions of the Majority Banks) may (following consultation
with the Parent as to the scope of the investigation and its
cost):-
(i) instruct (or require the Parent to instruct) the
Auditors or other firm of accountants selected by the
Facility Agent to carry out an investigation into the
affairs of the Group and/or the financial performance of
the Group and/or the accounting and other reporting
procedures and standards of the Group; or
(ii) instigate such other investigations and commission such
other reports (including, without limitation, legal and
valuation reports) as the Facility Agent (acting on the
instructions of the Majority Banks) shall reasonably
require into the affairs of the Group,
in each case, to the extent that the Facility Agent (acting
reasonably) considers them to be relevant to that Event of
Default or the circumstances giving rise to that Event of
Default or establishing the accuracy of such financial
statements. The expense of any such investigations or reports
shall be borne by the Obligors.
(h) OTHER INFORMATION: Each Obligor will, and will procure that each
of its Subsidiaries will, promptly deliver to the Facility Agent
for distribution to the Banks:-
(i) details of any litigation, arbitration, administrative
or regulatory proceedings which, if resolved against it
or its Subsidiaries, would result or be reasonably
likely to (whether individually or together with any
such claims) result in the Group suffering an aggregate
loss in excess of Pound Sterling500,000 or which would
have or be reasonably likely to have a Material Adverse
Effect;
(ii) details of any labour dispute affecting it or any of its
Subsidiaries which has or is reasonably likely to have a
Material Adverse Effect;
(iii) at the same time as sent to the Parent's shareholders or
to such Obligor's creditors (as the case may be), any
other document or information sent to the Parent's
shareholders or to an Obligor's creditors as a class;
71
(iv) such other information relating to its financial
condition or operation, or those of its Subsidiaries, as
the Facility Agent (or any other Bank through the
Facility Agent) may from time to time reasonably
request;
(v) details of any breach of the terms of the Acquisition
Documents or any claim made by or against it under the
terms of the Acquisition Documents;
(vi) details of any breach of the Investor Documents and/or
the CDC DDBs Documents and/or the Senior Subordinated
Finance Documents by any party thereto of which it is
aware;
(vii) details of any member of the Group which becomes a
Material Group Company after the date of this Agreement;
(viii) details of any change in the structure of the Group from
that set out in the Structure Document; and
(ix) copies of any environmental reports received by the
Parent or any member of the Group which identify
significant environmental issues relating to the Group.
(i) COMPLETION ACCOUNTING PRINCIPLES: All financial statements of
the Parent or any other member of the Group delivered or to be
delivered to the Facility Agent under this Agreement shall be
prepared in accordance with Completion Accounting Principles
unless as a result of a change in accounting principles, such
financial statements are required to be prepared on a different
basis in which case:-
(i) the Parent shall promptly so advise the Facility Agent;
(ii) on request of the Facility Agent, the Parent and the
Facility Agent (on behalf of the Banks) shall negotiate
in good faith with a view to agreeing such amendments to
Clause 16.7 (Financial Covenants) and Clause 16.3(i)
(Leasing Arrangements) and/or the definitions of any or
all of the terms used therein as are necessary to give
the Banks comparable protection to that contemplated at
the date of this Agreement;
(iii) if amendments satisfactory to the Majority Banks are
agreed by the Parent and the Facility Agent in writing
within 30 days of such notification to the Facility
Agent, those amendments shall take effect in accordance
with the terms of that agreement; and
(iv) if such amendments are not so agreed within 30 days,
within 15 days after the end of that 30 day period, the
Parent shall either:-
(1) deliver to the Facility Agent, in reasonable
detail and in a form satisfactory to the
Facility Agent, details of all such adjustments
as need to be made to the relevant financial
statements in order to bring them into line with
Completion Accounting Principles; or
(2) ensure that the relevant financial statements
are prepared in accordance with Completion
Accounting Principles.
(j) ERISA REPORTING REQUIREMENTS: Each Obligor will:-
(i) ERISA EVENTS AND ERISA REPORTS: (A) promptly and in any
event within 20 Business Days after any Obligor or any
ERISA Affiliate knows or has reason to know that any
ERISA Event that could reasonably be expected to result
in a material liability of any Obligor or any ERISA
Affiliate has occurred, deliver to the Facility Agent a
statement of the finance director of the Parent
describing such ERISA Event
72
and the action, if any, that such Obligor or such ERISA
Affiliate has taken and proposes to take with respect thereto
and (B) on the date any records, documents or other information
must be furnished to the PBGC with respect to any Plan pursuant
to Section 4010 of ERISA, a copy of such records, documents and
information;
(ii) PLAN TERMINATIONS: promptly and in any event within 3 Business
Days after receipt thereof by any Obligor or any ERISA
Affiliate, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed
to administer any Plan;
(iii) PLAN ANNUAL REPORTS: promptly upon request of the Facility
Agent, copies of the most recent Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) with
respect to each Plan;
(iv) MULTIEMPLOYER PLAN NOTICES: promptly and in any event within 20
Business Days after receipt thereof by any Obligor or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning:-
(A) the imposition of Withdrawal Liability by any
such Multiemployer Plan;
(B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such
Multiemployer Plan; or
(C) the amount of liability incurred, or that may be
incurred, by such Obligor or any ERISA Affiliate
in connection with any event described in
Clauses 16.6(j)(iv)(A) or (B) above.
16.7 FINANCIAL COVENANTS: The Parent undertakes that it will procure that:-
(a) INTEREST COVER: The ratio of EBITDA to Net Total Interest shall
not, in respect of the relevant testing period specified in
Clause 16.8(a) (Calculation) ending on each of the dates
specified in Column A below, be less than the ratio specified
opposite that date in Column B below:-
COLUMN A COLUMN B
31 December 2002 2.75:1
31 March 2003 2.75:1
30 June 2003 3.00:1
30 September 2003 3.40:1
31 December 2003 3.50:1
31 March 2004 3.50:1
30 June 2004 3.50:1
30 September 2004 3.50:1
31 December 2004 3.50:1
and on each 31 March, 30 June, 30
September and 31 December thereafter 3.50:1
(b) CASHFLOW/TOTAL DEBT SERVICE: The ratio of Cashflow to Total Debt
Service shall not, in respect of the relevant testing period
specified in Clause 16.8(a) (Calculation) ending on each
73
of the dates specified in Column A below, be less than the ratio
specified opposite that date in Column B below:
COLUMN A COLUMN B
31 December 2000 1.00:1
31 March 2001 1.00:1
30 June 2001 1.00:1
30 September 2001 1.00:1
31 December 2001 1.00:1
31 March 2002 1.00:1
30 June 2002 1.00:1
30 September 2002 1.00:1
31 December 2002 1.00:1
31 March 2003 1.00:1
30 June 2003 1.00:1
30 September 2003 1.00:1
31 December 2003 1.00:1
and on each 31 March, 30 June, 30
September and 31 December thereafter
(c) LEVERAGE: The ratio of Total Debt on each date specified in
Column A below to EBITDA for the testing period specified in
Clause 16.8(a) (Calculations) ending on such date shall not be
greater than the ratio specified opposite that date in Column B
below:-
COLUMN A COLUMN B
31 December 2002 5.00:1
31 March 2003 4.75:1
30 June 2003 4.25:1
30 September 2003 3.75:1
31 December 2003 3.25:1
31 March 2004 2.75:1
30 June 2004 2.50:1
30 September 2004 2.50:1
31 December 2004 2.50:1
and on each 31 March, 30 June, 30
September and 31 December thereafter 2.50:1
74
(d) CASHFLOW: Cashflow shall not, in respect of the relevant testing
period specified in Clause 16.8(a) (Calculation) ending on each
of the dates specified in Column A below, be less than the
amount specified in Column B below (or its equivalent in other
currencies):
COLUMN A COLUMN B
(POUND STERLING)
31 December 2002 20,000,000
31 March 2003 20,000,000
30 June 2003 35,000,000
30 September 2003 45,000,000
(e) CAPITAL EXPENDITURE: Adjusted Capital Expenditure for the Group
in each of its Financial Years or period specified in Column A
below will not exceed the amount specified opposite that
Financial Year or period (as the case may be) in Column B below
(or its equivalent in other currencies):
COLUMN A COLUMN B
(POUND STERLING)
Completion Date - 31 December 1999 6,600,000
Year ended 31 December 2000 31,000,000
Year ended 31 December 2001 27,600,000
Year ended 31 December 2002 30,000,000
Year ended 31 December 2003 31,500,000
Year ended 31 December 2004 31,500,000
Year ended 31 December 2005 31,500,000
Year ended 31 December 2006 31,500,000
Year ended 31 December 2007 31,500,000
1 January 2008 - 30 September 2008 23,600,000
provided that in the event that not all Adjusted Capital
Expenditure specified in Column B above for a Financial Year of
the Group shall be made, (i) an amount equal to 75% of the
amount of Adjusted Capital Expenditure which has not been made
in that Financial Year or, if less, an amount equal to Pound
Sterling10,000,000 may be made in the immediately following
Financial Year of the Group (but not any subsequent Financial
Year) in addition to the Adjusted Capital Expenditure which
would otherwise be permitted for that Financial Year as
specified in Column B above for that Financial Year (and for
this purpose any Adjusted Capital Expenditure carried forward to
the following Financial Year shall be deemed to be used after
the permitted Adjusted Capital Expenditure for that Financial
Year) and (ii) an amount up to Pound Sterling12,000,000 of the
Adjusted Capital Expenditure which has not been made in the
Financial Year ended 31 December 2000 may be made in any of the
Financial Years ended 31 December 2001, 31 December 2002 and 31
December 2003 in addition to the Adjusted Capital Expenditure
which would otherwise be permitted for that Financial Year as
specified
75
in Column B above for that Financial Year, for the purpose of
financing a HCN facility, for the Group's European operations,
at Seal Sands or a comparable site with a similar costing
structure.
16.8 CALCULATION:
(a) The covenants contained in Clauses 16.7(a) (Interest Cover),
16.7(b) (Cashflow/Total Debt Service), 16.7(c) (Leverage) and
16.7(d) (Minimum Cashflow) will be tested on a rolling aggregate
basis for the immediately preceding twelve months ending on each
of the dates specified in the relevant Column A, provided that
in respect of any covenant testing date falling less than 12
months after the Completion Date Net Total Interest shall be
calculated by multiplying Net Total Interest for the period from
the Completion Date up to and including the relevant covenant
testing date (the "Calculation Period") by A/B, where A = 12 and
B = the number of months in the relevant Calculation Period.
(b) The covenants contained in Clause 16.7 (Financial Covenants)
will be tested by reference to the accounts delivered to the
Facility Agent under Clause 16.6(d)(ii) (Financial Statements)
for the relevant Accounting Quarter unless in any such case the
audited accounts required to be delivered to the Facility Agent
pursuant to Clause 16.6(d)(i) (Financial Statements) for the
relevant period or any part thereof are available on the
relevant date on which any such covenant is tested, in which
case such audited accounts shall be used instead.
(c) If the audited accounts are not available when the covenant is
tested but when such audited accounts become available the
audited accounts demonstrate that the figures in any relevant
quarterly accounts utilised for any such calculation cannot have
been substantially accurate then the Facility Agent shall
require such adjustment to the calculations to be made as it, in
good faith, considers appropriate to rectify such inaccuracy and
compliance with the covenants in Clause 16.7 (Financial
Covenants) will be determined by reference to such adjusted
figures.
(d) For the purposes of calculating compliance with the covenants in
Clause 16.7 (Covenants):
(i) all Financial Indebtedness incurred by any member of the
Group in connection with China Project Newco and the
China Project (including Financial Indebtedness incurred
by the Parent under the CDC DDBs Documents) and all
interest, costs and expenses associated therewith shall
not be included; and
(ii) China Project Newco and the China Project shall not be
included as members of the Group,
and the relevant definitions in Clause 16.9 (Financial
Definitions) shall be construed accordingly.
(e) The components of each definition used in Clause 16.7 will be
calculated in accordance with Completion Accounting Principles.
16.9 FINANCIAL DEFINITIONS: In this Agreement, unless the context requires
otherwise, the following expressions shall have the following meanings,
and each of the expressions shall refer to the position of the Group on
a consolidated basis, unless the context otherwise requires:-
"ACQUISITION GOODWILL" means goodwill arising on consolidation as a
result of the Acquisition;
"ADJUSTED CAPITAL EXPENDITURE" means, in respect of any Capex Period,
the aggregate (without double-counting) of:
(a) Capital Expenditure of the Group;
76
(b) the total cost of any Permitted Joint Venture (which, for this
purpose, shall be the aggregate of the amounts specified in
paragraph (b) of the definition of Permitted Joint Venture in
Clause 1.1 (Definitions)); and
(c) the total cost of any acquisition made in accordance with
Clauses 16.3(l)(8) and 16.3(l)(5) (Acquisitions and Investments)
(which, for this purpose, shall be the aggregate of the amounts
specified in sub-paragraphs (A) and (B) thereof in respect of
the relevant acquisition)
provided that
(i) costs and expenditure incurred by a member of the Group in
connection with the China Project (including, without
limitation, the cost of acquiring any ownership interest in the
China Project); and
(ii) from and including the Accounting Quarter ending 31 March 2004,
costs and expenditure incurred by members of the Group in
respect of its monomer production facilities (as described and
forecast in the Group's business plan dated 8 November 2002 and
being costs and expenditure previously charged to revenue in the
Group's consolidated profit and loss account) which are required
to be capitalised in accordance with FRS 12,
shall not be included when calculating "Adjusted Capital Expenditure"
for the relevant Capex Periods;
"CAPITAL EXPENDITURE" means expenditure of the Group which should be
treated as capital expenditure in accordance with Completion Accounting
Principles;
"CASHFLOW" means, in respect of the relevant testing period, EBITDA for
that period:-
(a) minus any tax paid in cash during that period and net of any tax
rebate actually received;
(b) minus all Adjusted Capital Expenditure paid by members of the
Group during that period and for this purpose to the extent that
any Adjusted Capital Expenditure is financed by finance lease,
hire purchase or similar arrangement the amount included in
Adjusted Capital Expenditure shall be the amount which would
have been included had such Adjusted Capital Expenditure not
been so financed but after including the principal amount
financed under such financing arrangement as a cash inflow;
(c) plus any extraordinary or exceptional items received in cash
during that period;
(d) minus any extraordinary or exceptional items paid in cash during
that period;
(e) minus the amount of the increase or plus the amount of the
decrease (as the case may be) in Working Capital during that
period;
(f) plus the amount of any dividends or other profit distributions
(net of tax) received in cash by any member of the Group during
that period from companies which are not members of the Group;
(g) plus, to the extent not already included in EBITDA or as an
exceptional item (i) any Net Proceeds arising on the disposal of
any asset (not being disposals in the ordinary course of
trading) and (ii) any amounts applied in prepayment of Advances
or provision of cash cover in accordance with Clauses 8.3(b) or
8.3(c);
(h) less (to the extent already included) (i) the amount of any Net
Proceeds arising on the disposal of any asset (not being
disposals in the ordinary course of trading) which are applied
in prepayment of the Advances or provision of cash cover in
accordance with Clause 8.3 (Mandatory Prepayments from Receipts)
and (ii) any amounts applied in prepayment of Advances or
provision of cash cover in accordance with Clauses 8.3(b) or
8.3(c);
77
(i) plus (to the extent not already included) any amount of
additional available cash resulting from the release of pension
surpluses;
provided that for the purposes of the definition of Excess Cash Flow
there shall be excluded from Cashflow any portion of the Net Proceeds of
the disposal of any asset not required to be applied in prepayment in
accordance with Clause 8.3(a) (Mandatory Prepayments from Receipts) and
provided that, for the purposes of Clause 16.7(b), in respect of the
covenant testing dates falling on 31 December 2000, 31 March 2001, 30
June 2001 and 30 September 2001 the definition of Cashflow shall be
amended by replacing paragraph (c) with the following paragraph:-
"(c) minus the amount of Maintenance Capital Expenditure paid by
members of the Group during that period"
and provided further that for the purposes of calculating the financial
covenant ratios in Clause 16.7(b) (Cashflow/Total Debt Service) for the
testing periods up to and including 31 December 2003, an amount (the
"CDC DDBS AVAILABLE AMOUNT") equal to the total amount then available
for subscription of CDC DDBs under the CDC DDBs Documents (less Pound
Sterling12,000,000) shall be added to EBITDA (to the extent not already
included) for the relevant testing period provided that, prior to a
disposal in accordance with Clause 16.3(b)(xiii) (Disposals) and a
consequent increase in the commitments of the CDC DDBs Subscribers to
subscribe for CDC DDBs in accordance with Clause 16.4(k)(iv) (CDC DDBs),
the CDC DDBs Available Amount shall not exceed Pound Sterling28,000,000
at any time;
"EBITDA" means, in respect of the relevant testing period, the
consolidated profit on ordinary activities of the Group for such
period:-
(a) before any deduction of corporation tax or other taxes on income
or gains;
(b) before any deduction for Interest Payable;
(c) after deducting (to the extent included) Interest Receivable;
(d) excluding extraordinary or exceptional items and redundancy
costs;
(e) after deducting (to the extent otherwise included) any gain over
book value arising in favour of a member of the Group on the
disposal of any asset (not being any disposals made in the
ordinary course of trading) during such period and any gain
arising on any revaluation of any asset during such period;
(f) after adding back (to the extent otherwise deducted) any loss
against book value incurred by a member of the Group on the
disposal of any asset (not being any disposals made in the
ordinary course of trading) during such period and any loss
arising on any revaluation of any asset during such period;
(g) adding back Transaction Costs to the extent charged;
(h) excluding any currency gain or loss added or charged to
operating expenses resulting from the retranslation of the
amount of the Facilities and set out in the relevant financial
statements;
(i) after adding back depreciation and amortisation of goodwill
(including Acquisition Goodwill) or intangible assets (including
intellectual property and non-compete covenants) during that
period, to the extent deducted; and
(j) up to and including the Accounting Quarter ending 31 December
2003 only, adding back (to the extent otherwise deducted) an
amount equal to the aggregate amount subscribed and/or advanced
in cash by CDC DDBs Subscribers by way of subscription for CDC
DDBs
78
(excluding any amounts subscribed and/or advanced in cash by CDC
DDBs Subscribers by way of subscription for CDC DDBs issued for
the purposes of financing or refinancing the investment of
members of the Group in the China Project);
"INTEREST" means interest and amounts in the nature of interest paid or
payable in respect of any Financial Indebtedness of any member of the
Group excluding any interest paid or payable on Financial Indebtedness
between any member of the Group and any other member of the Group but
including, without limitation:-
(a) the interest element of finance leases;
(b) discount and acceptance fees payable (or deducted) in respect of
any Financial Indebtedness;
(c) fees payable in connection with the issue or maintenance of any
bond, letter of credit, guarantee or other assurance against
financial loss which constitutes Financial Indebtedness and is
issued by a third party on behalf of a member of the Group;
(d) repayment and prepayment premiums payable or incurred in
repaying or prepaying any Financial Indebtedness; and
(e) periodic commitment, utilisation and non-utilisation fees
payable or incurred in respect of Financial Indebtedness;
"INTEREST PAYABLE" means, in respect of the relevant testing period, the
aggregate of:
(a) Interest accrued (whether or not paid or capitalised but
excluding interest which is capitalised on the Bridge
Facilities) during that testing period;
(b) the amount of the discount element of any Financial Indebtedness
amortised during such period (excluding, for the avoidance of
doubt, the upfront fees payable in connection with the High
Yield Notes or the Bridge Facilities);
(c) in each case, as an obligation of any member of the Group during
that period and calculated on the basis that:-
(i) the amount of Interest accrued will be increased by an
amount equal to any amount payable by members of the
Group under hedging agreements (entered into for
interest rate protection) in relation to that testing
period;
(ii) the amount of Interest accrued will be reduced by an
amount equal to any amount payable to members of the
Group under hedging agreements (entered into for
interest rate protection) in relation to that testing
period;
(iii) amortisation of Transaction Costs, to the extent
amortised or written off, will be excluded;
(iv) the discounted element of the CDC DDBs will be excluded;
and
(v) any currency gain or loss added or charged to Interest
Payable resulting from the retranslation of the amount
of the Facilities and set out in the relevant financial
statements shall be excluded;
"INTEREST RECEIVABLE" means, in respect of the relevant testing period,
the amount of interest (which for this purpose shall include all
payments of the type described in the definition of Interest above)
accrued due to members of the Group (other than by other members of the
Group) during such period whether or not paid excluding any currency
gain or loss added or charged to Interest Receivable
79
resulting from the retranslation of the amount of the Facilities and set
out in the relevant financial statements;
"MAINTENANCE CAPITAL EXPENDITURE" means, in respect of the relevant
testing period, the amount of Capital Expenditure incurred in respect of
maintenance which, for the purposes of the definition of Cashflow, shall
be deemed to be Pound Sterling12,500,000 in respect of the covenant
testing date falling on 31 December 2000, Pound Sterling15,000,000 in
respect of the covenant testing date following on 31 March 2001, Pound
Sterling15,000,000 in respect of the covenant testing date falling on 30
June 2001 and Pound Sterling20,000,000 in respect of the covenant
testing date falling on 30 September 2001;
"NET TOTAL INTEREST" means, in respect of the relevant testing period,
the amount of Interest Payable during that period less Interest
Receivable during that period;
"TOTAL DEBT" means, at any time, the aggregate outstanding principal or
capital amount of all Financial Indebtedness of the Group calculated on
a consolidated basis excluding any Financial Indebtedness between any
member of the Group and any other member of the Group and the CDC DDBs
less:
(i) cash at hand and cash deposited with any Bank; and
(ii) Cash Equivalents,
provided that:
(a) in the case of finance leases referred to in the definition of
Financial Indebtedness, only the capitalised value of any items
falling thereunder as determined in accordance with Completion
Accounting Principles shall be included;
(b) in the case of guarantees referred to in the definition of
Financial Indebtedness, any items falling thereunder shall not
be included to the extent relating to indebtedness of another
member of the Group already included in this calculation;
"TOTAL DEBT SERVICE" means, in respect of the relevant testing period,
the aggregate of:-
(a) Net Total Interest for that period;
(b) all scheduled repayments of the Facilities falling due during
that period (excluding any voluntary or mandatory prepayments);
(c) all scheduled repayments and prepayments (whether voluntary or
mandatory) of principal under the terms of any other Financial
Indebtedness of any member of the Group (excluding any Financial
Indebtedness between any member of the Group and any other
member of the Group and the CDC DDBs) falling due during that
period:-
(i) including, without limitation, all capital payments
falling due in respect of any Financial Indebtedness
falling within paragraph (g) (Finance Leases) of the
definition of that term; and
(ii) excluding any repayment or prepayment of any overdraft
or revolving credit facility (including, without
limitation, the Revolving Advances) falling due during
that period and capable of being simultaneously redrawn
under the terms of the relevant facility; and
(iii) excluding any repayment or prepayment of the Bridge
Facilities in accordance with the Intercreditor
Agreement.
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"WORKING CAPITAL" means trade and other debtors in respect of operating
items plus prepayments and stock less trade and other creditors in
respect of operating items and less accrued expenses and accrued costs
(excluding liabilities for taxes on profits or gains or deferred
taxation.)
17 EVENTS OF DEFAULT
17.1 EVENTS OF DEFAULT: Save as provided in Clause 17.5, each of the events
set out in this Clause 17.1 (Events of Default) constitutes an Event of
Default whether or not the occurrence of the event concerned is outside
the control of the Parent or any other member of the Group.
(a) PAYMENT DEFAULT: Any Obligor fails to pay on the due date any
amount payable by it under any of the Senior Finance Documents
at the place and in the currency at or in which it is expressed
to be payable unless the Facility Agent is satisfied that such
non-payment is due solely to administrative or technical delays
in the transmission of funds and payment is made within three
Business Days of its due date.
(b) BREACH OF OTHER OBLIGATIONS:
(i) Any Obligor fails to comply with any of its obligations
in Clause 16.3(d) (Negative Pledge), Clause 16.4(f)
(Structural Subordination), Clause 16.4(g)(UK BondCo),
Clause 16.4(j) (Redemption or Purchase of High Yield
Notes/Bridge Facilities) and Clause 16.4(k) (CDC DDBs).
(ii) The Parent fails to comply with its obligations under
Clauses 16.7(a), (b), (c), (d) or (e) (Financial
Covenants).
(iii) Any Obligor fails to observe or perform any of its
obligations or undertakings under any of the Senior
Finance Documents (other than those specified in Clause
17.1(a) (Payment Default) or Clause 17.1(b)(i) or (ii)
(Breach of other Obligations)) and, if such failure is
capable of remedy, it is not remedied within 20 Business
Days of such Obligor becoming aware of the relevant
matter and that it constitutes a default.
(c) MISREPRESENTATION: Any representation, warranty or written
statement which is made by any Obligor in any of the Senior
Finance Documents or is contained in any certificate, statement
or notice provided under or pursuant to any of the Senior
Finance Documents proves to be incorrect in any respect when
made (or when repeated or deemed to be repeated) unless the
circumstances giving rise to that default are capable of remedy
and are remedied within 20 Business Days of such Obligor
becoming aware of the relevant matter and that it constitutes a
default.
(d) INVALIDITY AND UNLAWFULNESS:
(i) Any provision of any Senior Finance Document is or
becomes invalid or (subject to reservations)
unenforceable for any reason or shall be repudiated or
the validity or enforceability of any provision of any
Senior Finance Document shall at any time be contested
by any party thereto (other than a Senior Finance
Party).
(ii) At any time it is or becomes unlawful for any Obligor to
perform any of its obligations under any of the Senior
Finance Documents in circumstances or to an extent which
the Majority Banks consider to be materially prejudicial
to the interests of any Senior Finance Party under the
Senior Finance Documents.
(iii) At any time any act, condition or thing required to be
done, fulfilled or performed in order (A) to enable any
Obligor lawfully to enter into, exercise its rights
under or perform the obligations expressed to be assumed
by it under any of the Senior Finance Documents to which
it is party, (B) to ensure that the obligations
expressed to be assumed by any Obligor under any Senior
Finance Document to which it is
81
party are legal, valid and binding (C) to make each
Senior Finance Document admissible in evidence in the
English courts and (D) to create the security
constituted by the Security Documents to which any
Obligor is party, is not done, fulfilled or performed.
(e) CROSS DEFAULT: Any Financial Indebtedness of a member or members
of the Group (other than the China Project) in excess of Pound
Sterling1,500,000 or its equivalent in other currencies in
aggregate:-
(i) is not paid when due or within any applicable grace
period in any agreement relating to that Financial
Indebtedness; or
(ii) becomes due and payable (or capable of being declared
due and payable) before its normal maturity or is placed
upon demand (or any commitment for any such indebtedness
is cancelled or suspended) by reason of a default or
event of default however described.
(f) INSOLVENCY: Any Material Group Company stops or suspends or
threatens or announces an intention to stop or suspend payment
of its debts or shall admit its inability to pay its debts as
they fall due or shall for the purpose of any applicable law be
or be deemed to be unable to pay its debts or shall otherwise be
or be deemed to be insolvent or a moratorium is declared in
respect of indebtedness of any Material Group Company.
(g) RECEIVERSHIP AND ADMINISTRATION:
(i) Any encumbrancer takes possession of, or a receiver or
administrator or similar officer is appointed over or in
respect of all or any part of the business or assets of
any Material Group Company; or
(ii) A petition is presented or meeting convened or
application made for the purpose of appointing an
administrator or receiver or other similar officer of,
or for the making of an administration order in respect
of, any Material Group Company and:-
(1) (other than in the case of a petition to appoint
an administrator) such petition or application
is not discharged within 14 days; or
(2) in the case of a petition to appoint an
administrator, the Facility Agent is satisfied
that it will be discharged before it is heard.
(h) COMPOSITIONS AND ARRANGEMENTS:
(i) Any Material Group Company convenes a meeting of its
creditors generally or proposes or makes any arrangement
or composition with, or any assignment for the benefit
of, its creditors generally.
(ii) Any Material Group Company enters into any negotiations
for or in connection with the re-scheduling,
restructuring or readjustment of any Financial
Indebtedness by reason of, or with a view to avoiding,
financial difficulties.
(i) WINDING-UP: (Other than in connection with a solvent
re-organisation the terms of which have been approved in advance
by the Majority Banks) any meeting of any Material Group Company
is convened for the purpose of considering any resolution for
(or to petition for) its winding up or any Material Group
Company passes such a resolution or a petition is presented for
the winding-up of a Material Group Company (other than a
frivolous or vexatious petition discharged within 14 days of
being presented or any other petition which is contested on bona
fide grounds and discharged prior to it being advertised) or an
order is made for the winding-up of any Material Group Company.
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(j) SUSPENSION OF PAYMENTS: Any other order is made or resolution
passed or other action taken for the suspension of payments,
protection from creditors or bankruptcy of a Material Group
Company.
(k) SIMILAR EVENTS ELSEWHERE: There occurs in relation to a Material
Group Company or any of its assets in any country or territory
in which it is incorporated or carries on business or to the
jurisdiction of whose courts it or any of its assets is subject
any event which the Facility Agent reasonably consider to
correspond in that country or territory with any of those
mentioned in Clauses 17.1(f) (Insolvency) to 17.1(j) (Suspension
of Payments) (inclusive).
(l) ATTACHMENT OR PROCESS: A creditor attaches or takes possession
of, or a distress, execution, sequestration or other process is
levied or enforced upon or sued out against any of the asset, of
a Material Group Company and is not discharged within 14 days.
(m) SECURITY ENFORCEABLE: Any Security Interest granted by any
member of the Group (other than the China Project) becomes
enforceable and steps are taken to enforce the same which are
not withdrawn or stayed within 14 days.
(n) CESSATION OF BUSINESS: A Material Group Company ceases, or
threatens or proposes to cease, to carry on all or a substantial
part of its business.
(o) COMPULSORY ACQUISITION: All or part of the assets of a Material
Group Company are seized, nationalised, expropriated or
compulsorily acquired by, or by the order of, any agency of any
state.
(p) LITIGATION: Any litigation, arbitration, or administrative or
regulatory proceeding is commenced by or against a member of the
Group which could reasonably be expected to be adversely
determined against the relevant member of the Group and, if so
determined, (whether by itself or together with any related
claims) could reasonably be expected to have a Material Adverse
Effect.
(q) AUDITOR'S QUALIFICATION: The Auditors qualify their report on
the audited consolidated financial statements of the Parent in
any manner which is, in the reasonable opinion of the Majority
Banks, materially adverse in the context of the Finance
Documents.
(r) INTERCREDITOR/CONSTITUTIONAL DOCUMENTS:
(i) Any party to the Intercreditor Agreement (other than the
Senior Finance Parties) fails to comply with its
obligations thereunder or the Intercreditor Agreement
ceases to be binding upon any such party for whatever
reason and, as a result, the position of the Senior
Finance Parties under the Senior Finance Documents is
materially prejudiced; or
(ii) the Constitutional Documents are amended or varied in a
manner which is not permitted under Clause 16.4(b)
(Investor Documents) (regardless for these purposes of
whether or not the undertaking contained in that Clause
in relation to the Constitutional Documents is legally
enforceable).
(s) CHANGE OF CONTROL: Any Obligor (other than the Parent) ceases to
be a wholly-owned subsidiary of the Parent.
(t) MATERIAL ADVERSE CHANGE: At any time there occurs an event which
has or is reasonably likely to have a Material Adverse Effect.
(u) ERISA EVENTS OF DEFAULT:
(i) Any ERISA Event shall have occurred with respect to a
Plan, the sum (determined as of the date of occurrence
of such ERISA Event) of the Insufficiency of such Plan
and
83
the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have occurred and
then exist (or the liability of the Obligors and the
ERISA Affiliates related to such ERISA Event) exceeds
Pound Sterling1,500,000, and it is reasonably likely
that any Obligor or ERISA Affiliate will incur such
liability, taking into account for purposes of
determining such likelihood the probability that such
liability would be avoided through reduction or
elimination of the Insufficiency by, for example and
without limitation, an equity injection or the use of
uncommitted cashflow.
(ii) Any Obligor or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it
has incurred Withdrawal Liability to such Multiemployer
Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by
the Obligors and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such
notification), exceeds Pound Sterling1,500,000 or
requires payments exceeding Pound Sterling375,000 per
annum.
(iii) Any Obligor or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, and
as a result of such reorganization or termination the
aggregate annual contributions of the Obligors and the
ERISA Affiliates to all Multiemployer Plans that are
then in reorganization or being terminated have been or
will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such
Multiemployer Plans immediately preceding the plan year
in which such reorganization or termination occurs by an
amount exceeding Pound Sterling375,000;
(v) SENIOR SUBORDINATED DEBT: By 31 October 1999, the Bridge Finance
Parties have not loaned in full in cash an amount of not less
than the US Dollar Equivalent of Pound Sterling116,400,000
pursuant to the terms of the Bridge Finance Documents, and UK
BondCo has not lent an amount of not less than the US Dollar
Equivalent of Pound Sterling116,400,000 to UK Xxxxx pursuant to
the Xxxxx/Bondco Loan Agreement and UK Xxxxx has not lent an
amount of not less than the US Dollar Equivalent of Pound
Sterling116,400,000 pursuant to the Inter-Company Loan
Agreements and the proceeds of such loans have not been applied
immediately in payment of part of the consideration to the
Vendor pursuant to the terms of the Acquisition Agreement.
(w) CDC DDBS DOCUMENTS:
(i) any of the parties to the CDC DDBs Documents (other than
the Senior Finance Parties) fails to perform or comply
with any of its obligations thereunder or cancels its
commitments thereunder; or
(ii) any CDC DDBs Document ceases to be binding upon any
party to the CDC DDBs Documents (other than the Senior
Finance Parties) for any reason or at any time it is or
becomes unlawful for any such party to perform any of
its obligations or maintain or increase its commitments
or participations under any CDC DDBs Document, in each
case in circumstances or to an extent which the Majority
Banks consider to be materially prejudicial to the
interests of the Senior Finance Parties under the Senior
Finance Documents.
17.2 CANCELLATION AND REPAYMENT: At any time after the occurrence of an Event
of Default (and whilst the same is continuing) the Facility Agent may,
and will if so directed by the Majority Banks, by written notice to the
Parent do all or any of the following in addition and without prejudice
to any other rights or remedies which it or any other Senior Finance
Party may have under this Agreement or any of the other Senior Finance
Documents:-
(a) terminate the availability of the Facilities whereupon the
Facilities shall cease to be available for drawing, the undrawn
portion of the Commitments of each of the Banks shall be
cancelled and no Bank shall be under any further obligation to
make Advances under this Agreement
84
and no further Letters of Credit or Bank Guarantees may be
requested under this Agreement; and/or
(b) declare all or any of the Advances, accrued interest thereon and
any other sum then payable under this Agreement and any of the
other Senior Finance Documents to be immediately due and
payable, whereupon such amounts shall become so due and payable;
and/or
(c) declare all or any of the Advances to be payable on demand
whereupon the same shall become payable on demand; and/or
(d) require the provision of cash cover whereupon each Borrower
shall immediately provide cash cover in an amount equal to the
total Contingent Liability of the Banks under all Letters of
Credit and Bank Guarantees issued under this Agreement for its
account.
17.3 ANCILLARY FACILITIES: On the occurrence of an Event of Default and
whilst the same is continuing, an Ancillary Bank may (but prior to
notice being served under Clause 17.2 (Cancellation and Repayment) only
if so instructed by the Facility Agent on the instructions of the
Majority Banks) and shall if so instructed by the Majority Banks:
(a) terminate the availability of the Ancillary Facilities,
whereupon the Ancillary Facilities shall cease to be available
and the relevant Ancillary Bank shall no longer be under any
obligation to provide any credit provided for thereunder; and/or
(b) declare all amounts outstanding under the Ancillary Facilities
due and payable whereupon such amounts shall become due and
payable together with accrued interest thereon and any other sum
then payable under the relevant Ancillary Documents; and/or
(c) require the provision of cash cover whereupon the relevant
Borrowers shall immediately provide cash cover in an amount
equal to the contingent liability of the Ancillary Bank under
all instruments issued under the terms thereof which give rise
to a contingent liability on the part of the Ancillary Bank;
and/or
(d) terminate any foreign exchange or hedging agreement entered into
by the Ancillary Bank under the terms of the Ancillary
Facilities.
17.4 US OBLIGORS: Notwithstanding Clause 17.2 (Cancellation and Repayment),
upon the actual or deemed entry of an order for relief under the US
Bankruptcy Code with respect to any US Obligor, the Facilities shall
cease to be available to such US Obligor, all Advances outstanding to
such US Obligor shall become immediately due and payable and such US
Obligor shall be required to provide cash cover in respect of all
Letters of Credit and Bank Guarantees issued for its account in each
case automatically and without any further action by any party hereto.
17.5 EXCLUDED EVENTS: None of the events specified in Clauses 17.1(g), (k)
(to the extent to which it relates to Clause 17.1(g)), (l), (m) or (o)
shall constitute an Event of Default unless the aggregate of the value
of all the business, assets, undertakings, rights, revenues and
properties in respect of which any of those events is from time to time
outstanding exceeds Pound Sterling1,500,000 or its equivalent in other
currencies.
18 GUARANTEES
18.1 GUARANTEE: In consideration of the Senior Finance Parties entering into
the Senior Finance Documents each Guarantor (jointly and severally with
the other Guarantors) irrevocably and unconditionally;
(a) guarantees to each Senior Finance Party as principal obligor the
performance by each other Obligor of all its obligations under
the Senior Finance Documents and the payment when due by each
other Obligor of all sums payable under the Senior Finance
Documents;
85
(b) undertakes with each Senior Finance Party that if any other
Obligor fails to pay any of the indebtedness referred to in
Clause 18.1 (a) (Guarantee) on its due date it will pay that sum
on demand; and
(c) indemnifies each Senior Finance Party on demand against all
losses, damages, costs and expenses incurred by such Senior
Finance Party arising as a result of any obligation of any
Obligor under the Senior Finance Documents being or becoming
unenforceable, invalid or illegal.
18.2 GUARANTORS AS PRINCIPAL DEBTORS: As between each Guarantor and the
Senior Finance Parties but without affecting the obligations of any
Borrower, each Guarantor shall be liable under Clause 18.1 (Guarantee)
as if it were the sole principal debtor and not merely a surety.
Accordingly, its obligations thereunder and any liability deriving
therefrom shall not be discharged or affected by any circumstance which
would so discharge or affect such obligations or liability if such
Guarantor were the sole principal debtor including:-
(a) any time, indulgence, waivers or consents given to any Obligor
or any other person;
(b) any amendment, variation or modification to any Finance Document
or any other security or guarantee or any increase in the amount
of the Facilities;
(c) the making or absence of any demand on any Obligor or any other
person for payment or performance of any other obligations, or
the application of any moneys at any time received from any
Obligor or any other person;
(d) the enforcement, perfecting or protecting of or absence of
enforcement, perfecting or protecting of any security, guarantee
or undertaking (including, without limitation, all or any of the
obligations and liabilities of any Obligor);
(e) the release, taking, giving or abstaining from taking of any
security, guarantee or undertaking (including, without
limitation, the Senior Finance Documents);
(f) the insolvency, winding-up, administration, receivership or the
commencement of any other insolvency procedure under the laws of
any relevant jurisdiction in relation to any Obligor, any Senior
Finance Party or any other person or the making of any
arrangement or composition with or for the benefit of creditors
by any other Obligor, any Senior Finance Party or any other
person;
(g) any amalgamation, merger or change in constitution in relation
to any Obligor, any Senior Finance Party or any other person;
(h) the illegality, invalidity or unenforceability of or any defect
in any provision of any Finance Document or any security,
obligations or liabilities arising or expressed to arise
thereunder;
(i) any Senior Finance Party ceasing or refraining from giving
credit or making loans or advances to or otherwise dealing with
any Obligor or any other person or any other security, guarantee
or undertaking; or
(j) any other circumstance which, but for this provision, might
operate to release or otherwise exonerate the Guarantor from its
obligations hereunder.
18.3 OTHER GUARANTORS: It is specifically acknowledged and agreed that the
Senior Finance Parties may from time to time make any arrangement,
compromise, waiver or other dealing with any Obligor in relation to any
guarantee or other obligations under the Senior Finance Documents which
such Senior Finance Parties may think fit and no such arrangement,
compromise, waiver or other dealing shall exonerate or discharge any
other Obligor from its obligations under the Senior Finance Documents.
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18.4 GUARANTORS' OBLIGATIONS CONTINUING: Each Obligor's obligations under
this Agreement are and will remain in full force and effect by way of
continuing security until no sum remains to be lent or remains payable
under this Agreement. Furthermore, those obligations are additional to,
and not instead of, any security or other guarantee or indemnity at any
time existing in favour of any person, whether from that Obligor or
otherwise and each Obligor waives any right it may have to require any
Senior Finance Party to enforce any such security, guarantee or
indemnity before claiming against it.
18.5 EXERCISE OF GUARANTORS' RIGHTS: So long as any sum remains payable or
capable of becoming payable under the Senior Finance Documents:-
(a) any right of an Obligor (by reason of performance of any of its
obligations hereunder), to be indemnified by any other Obligor
or to take the benefit of or enforce any security or other
guarantee or to receive any payment from any other Obligor shall
be exercised and enforced by such Obligor and shall only be
exercised and enforced by such Obligor in such manner and on
such terms as the Facility Agent may require; and
(b) any amount received or recovered by such Obligor as a result of
any exercise of any such right shall be held in trust for the
Senior Finance Parties and immediately paid to the Facility
Agent.
18.6 AVOIDANCE OF PAYMENTS: Each Obligor shall on demand indemnify the
Facility Agent and each Senior Finance Party against any funding or
other cost, loss, expense or liability sustained or incurred by it as a
result of it being required for any reason to refund all or part of any
amount received or recovered by it from such Obligor in respect of any
sum payable by any Borrower under this Agreement.
18.7 SUSPENSE ACCOUNTS: Any amount received or recovered by any Senior
Finance Party (otherwise than as a result of a payment by a Borrower to
the Facility Agent) in respect of any sum due and payable by any
Borrower under this Agreement may be placed in a suspense account and
kept there for so long as the recipient thinks fit. Amounts deposited in
any such account shall accrue interest at the Facility Agent's usual
rate for deposits of a similar amount and nature from time to time and
interest accrued shall be credited to such account.
18.8 PRIMARY OBLIGATIONS: As a separate and alternative stipulation, each
Obligor unconditionally and irrevocably agrees that any sum expressed to
be payable by any Obligor under this Agreement but which is for any
reason (whether or not now existing and whether or not now known or
becoming known to any party to this Agreement) not recoverable from such
Obligor on the basis of a guarantee shall nevertheless be recoverable
from it as if it were the sole principal debtor and shall be paid by it
to the Facility Agent on demand.
18.9 FURTHER GUARANTORS: The Parent will:-
(a) procure that any Material Group Company (other than an Existing
JV Company which has not become a wholly owned subsidiary) which
is not a Guarantor shall (unless prohibited by law or unless on
the date hereof it is a subsidiary of a US Obligor incorporated
outside the United States of America ) become a Guarantor by
delivering an Accession Document duly executed by it and by the
Parent to the Facility Agent within 10 Business Days after being
required to become a Guarantor by the Facility Agent (acting on
the instructions of the Majority Banks);
(b) procure that any Material Group Company which enters into an
Accession Document shall within 10 Business Days execute such
Security Documents (in favour of the Security Agent for the
benefit of the Senior Finance Parties) as the Facility Agent
shall require; and
(c) procure that there shall be delivered to the Facility Agent with
the original executed Accession Document any such Security
Documents such evidence of the due execution of the Accession
Document and such Security Documents as the Facility Agent shall
require together with a legal opinion satisfactory to the
Facility Agent;
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18.10 US GUARANTEE LIMITATIONS:
The liability of each Guarantor organised under the laws of the United
States of America (a "U.S. GUARANTOR") under this Clause 18 (Guarantees)
shall not exceed the sum of:
(i) the net benefit realised by each such U.S. Guarantor from the
proceeds of Drawings; and
(ii) the greater of (x) 95% of the Adjusted Net Assets of such U.S.
Guarantor on the date of delivery hereof and (y) 95% of the
Adjusted Net Assets of such U.S. Guarantor on the date of any
payment hereunder.
"ADJUSTED NET ASSETS" of any U.S. Guarantor at any date means the lesser
of (x) the amount by which the fair value of the property of such U.S.
Guarantor exceeds the total amount of liabilities (including, without
limitation, contingent liabilities, but excluding liabilities under this
Clause 18 (Guarantees), of such U.S. Guarantor at such date) and (y) the
amount by which the present fair salable value of the assets of such
U.S. Guarantor at such date exceeds the amount that will be required to
pay the probable liability of such U.S. Guarantor on its debts,
excluding debt in respect of this Clause 18 (Guarantees), as they become
absolute and matured.
18.11 THE NETHERLANDS GUARANTEE LIMITATIONS:
(a) Notwithstanding anything to the contrary in any Senior Finance
Document, the maximum liability of each Guarantor organised
under the laws of The Netherlands (a "DUTCH GUARANTOR") under
this Clause 18 (Guarantees) shall not exceed the higher of (i)
the net assets value of such Dutch Guarantor determined at the
date immediately following completion of the Dutch
Reorganisation or (ii) the net assets value determined in
accordance with generally accepted accounting principles for The
Netherlands consistently applied, at the time the Facility Agent
(or any of the Senior Finance Parties) makes a demand for
payment in respect of such Dutch Guarantor under this Clause or
any applicable Security Document.
(b) On receipt of a demand for payment from the Facility Agent (or
any of the Senior Finance Parties) as referred to above, the
Dutch Guarantor shall provide the Facility Agent with a
certificate from the Auditors confirming the net assets value of
such Dutch Guarantor.
(c) The Dutch Guarantor will not guarantee any obligation if to do
so would constitute unlawful financial assistance under Section
2: 207C of the Dutch Civil Code or similar provisions under
relevant law.
18.12 RELEASE OF SECURITY: If a member of the Group shall dispose of any asset
(including shares in any other member of the Group) and such disposal is
permitted by the terms of the Senior Finance Documents or is otherwise
consented to pursuant to the terms of the Senior Finance Documents then
the Facility Agent shall promptly (and is hereby authorised by the
Senior Finance Parties to) execute and instruct the Security Agent to
execute such documents effecting the release of such asset from the
security created in favour of the Senior Finance Parties as shall be
required to allow the disposal to take place.
18.13 RELEASE OF GUARANTORS: If all of the shares in a member of the Group
which is a Guarantor are disposed of and such disposal is permitted by
the terms of the Senior Finance Documents or consented to pursuant to
the terms of the Senior Finance Documents and as a result the Guarantor
ceases to be a member of the Group, the Facility Agent shall promptly
(and is hereby authorised by the Senior Finance Parties to) execute and
instruct the Security Agent to execute such documents as may be
necessary to release such Guarantor from all past, present and future
liabilities (including rights of contribution) under the Senior Finance
Documents and all existing Guarantors hereby consent to such release and
confirm that their respective liabilities as Guarantor shall not be
discharged or otherwise affected as a consequence of such release.
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19 THE AGENTS AND THE ARRANGERS
19.1 AUTHORISATION:
(a) Each Bank hereby appoints Deutsche Bank AG LONDON as the
Facility Agent and each Senior Finance Party hereby appoints
Deutsche Bank AG LONDON as the Security Agent to act as agent
and security trustee for the purposes of the Security Documents
entered into by it in such capacity. Each Bank authorises the
Facility Agent and each Senior Finance Party authorises the
Security Agent to take such action as agent on its behalf and to
exercise such rights, powers and discretions under the Senior
Finance Documents as are delegated to such Agent by the terms of
the Senior Finance Documents together with such other powers and
discretions as are reasonably incidental thereto and to give a
good discharge for any moneys payable under the Senior Finance
Documents.
(b) Each of the Agents will act solely as agent for the Banks and/or
the Senior Finance Parties (as the case may be) in carrying out
its respective functions as agent under the Senior Finance
Documents. No Agent shall have, nor be deemed to have, assumed
any obligations to, or trust or fiduciary relationship with, the
other Senior Finance Parties or any Obligor other than those for
which specific provision is made by the Senior Finance
Documents.
19.2 AGENTS' DUTIES: Each Agent shall:-
(a) promptly send to each Bank each notice received by it from an
Obligor under any of the Senior Finance Documents except in the
case of any notice relating to a particular Bank which shall be
sent to that Bank only;
(b) promptly send to each Bank a copy of any document or information
received by it pursuant to Clause 16.6 (Information and
Accounting Undertakings) and (if requested by the relevant Bank)
a copy of any legal opinion delivered in relation to this
Agreement or any Security Document and a copy of any document
delivered to it pursuant to Clause 4.1 (Initial Conditions
Precedent);
(c) subject to those provisions of the Senior Finance Documents
which require the consent of all the Banks and, in the case of
the Security Agent, subject as provided in Clause 19.12 (Role of
Security Agent), act in accordance with any instructions from
the Majority Banks or, if so instructed by the Majority Banks,
refrain from exercising a right, power or discretion vested in
it under any of the Senior Finance Documents;
(d) have only those duties, obligations and responsibilities
expressly specified in the Senior Finance Documents; and
(e) without prejudice to Clause 19.7 (Information), promptly notify
each Bank and the Facility Agent if it becomes aware of the
occurrence of any Event of Default or Potential Event of
Default.
19.3 AGENTS' RIGHTS: Each Agent may:-
(a) perform any of its duties, obligations and responsibilities
under this Agreement or any of the other Senior Finance
Documents by or through its personnel or agents on the basis
that each Agent may extend the benefits of any indemnity
received by it hereunder to its personnel or agents;
(b) refrain from exercising any right, power or discretion vested in
it under the Senior Finance Documents until it has received
instructions from the Majority Banks or the Facility Agent or
the Majority Senior Creditors (as defined in the Intercreditor
Agreement), as the case may be, as to whether (and, if it is to
be, the way in which) it is to be exercised and shall in all
cases be fully protected when acting, or (if so instructed)
refraining from acting, in accordance with
89
instructions from the Majority Banks or the Facility Agent or
the Majority Senior Creditors (as the case may be);
(c) treat (a) the Bank which makes available any portion of an
Advance as the person entitled to repayment of that portion
unless the Facility Agent has received a Transfer Certificate in
relation to all or part of it in accordance with Clause 20
(Assignments and Transfers); and (b) the office set under a
Bank's name at the end of this Agreement (or, in the case of a
Transferee, at the end of the Transfer Certificate to which it
is a party as Transferee) as its Lending Office unless the
Facility Agent has received from that Bank a notice of change of
Lending Office and each Agent may act on any such notice until
it is superseded by a further such notice;
(d) refrain from doing anything which would or might in its opinion
be contrary to any law, regulation or judgment of or of any
court of any jurisdiction or any directive of any agency of any
state or otherwise render it liable to any person and may do
anything which is in its opinion necessary to comply with any
such law, regulation, judgment or directive;
(e) assume that no Event of Default or Potential Event of Default
has occurred unless an officer of such Agent, while active on
the account of the Obligors in connection with the Facilities,
acquires actual knowledge to the contrary;
(f) refrain from taking any step (or further step) to protect or
enforce the rights of any Senior Finance Party under the Senior
Finance Documents until it has been indemnified and/or secured
to its satisfaction against any and all costs, losses, expenses
or liabilities (including legal fees) which it would or might
sustain or incur as a result;
(g) rely on any communication or document believed by it to be
genuine and correct and assume it to have been communicated or
signed by the person by whom it purports to be communicated;
(h) rely as to any matter of fact which might reasonably be expected
to be within the knowledge of any person on a statement by or on
behalf of such person;
(i) obtain and pay for such legal or other expert advice or services
as may to it seem necessary or desirable and rely on any such
advice;
(j) accept deposits from, lend money to, provide any advisory or
other services to or engage in any kind of banking or other
business with any party to the Senior Finance Documents, or any
affiliate of any party (and, in each case, may do so without
liability to account);
(k) in the case of the Security Agent, accept without enquiry such
title as an Obligor may have to any asset or assets intended to
be the subject of the security created by the Security
Documents; and
(l) in the case of the Security Agent, hold or deposit any title
deeds, Security Documents or any other documents in connection
with any of the assets charged by the Security Documents with
any banker or banking company or any company whose business
includes undertaking the safe custody of deeds or documents or
with any lawyer or firm of lawyers and it shall not be
responsible for or be required to insure against any loss
incurred in connection with any such holding or deposit and it
may pay all sums required to be paid on account or in respect of
any such deposit.
19.4 EXONERATION OF ARRANGERS AND AGENTS:
Neither the Arrangers nor any Agent nor any of their respective
personnel or agents:-
90
(a) shall be responsible for the adequacy, accuracy or completeness
of any representation, warranty, statement or information in the
Senior Finance Documents or any notice or other document
delivered under the Senior Finance Documents (including, without
limitation, the Syndication Memorandum);
(b) shall be responsible for the execution, delivery, validity,
legality, adequacy, enforceability or admissibility in evidence
of any of the Senior Finance Documents;
(c) shall be obliged to enquire as to the occurrence or continuation
of an Event of Default or Potential Event of Default or as to
the accuracy or completeness of any representation or warranty
made by any person;
(d) shall be liable for anything done or not done by it or any of
them under or in connection with the Senior Finance Documents
save in the case of its own or their own negligence or wilful
misconduct;
(e) shall be responsible for any failure of any Obligor or any other
Senior Finance Party duly and punctually to observe and perform
their respective obligations under the Senior Finance Documents;
(f) shall be responsible for the consequences of relying on the
advice of any professional advisers selected by any of them in
connection with the Senior Finance Documents; or
(g) shall be liable for acting (or refraining from acting) in what
it believes in good faith to be in the best interests of the
Senior Finance Parties or any of them in circumstances where it
has been unable, or it is not practicable, to obtain
instructions in accordance with this Agreement.
19.5 AGENTS AS SENIOR FINANCE PARTIES: Each Agent shall have the same rights
and powers with respect to its participation in the Senior Finance
Documents as any other Senior Finance Party and may exercise those
rights and powers as if it were not also acting as an Agent.
19.6 NON-RELIANCE ON ARRANGERS AND AGENTS: Each Senior Finance Party confirms
that it has itself been, and will at all times continue to be, solely
responsible for making its own independent investigation and appraisal
of the business, financial condition, creditworthiness, status and
affairs of each Obligor and the Subsidiaries of each Obligor and has not
relied, and will not at any time rely, on any Agent or any Arranger:-
(a) to provide it with any information relating to the business,
financial condition, creditworthiness, status or affairs of any
Obligor or the Subsidiaries of any Obligor, whether coming into
its possession before or after the making of any Drawing (save
as provided in Clause 19.2 ( Agents' Duties)); or
(b) to check or enquire into the adequacy, accuracy or completeness
of any information provided by any Obligor or the Subsidiaries
of any Obligor under or in connection with the Senior Finance
Documents (whether or not such information has been or is at any
time circulated to it by any Agent or any Arranger); or
(c) to assess or keep under review the business, financial
condition, creditworthiness, status or affairs of any Obligor or
the Subsidiaries of any Obligor.
19.7 INFORMATION:
(a) All communications to an Obligor are to be made by or through
the Facility Agent save in respect of any communication in
connection with the Security Documents to which the Security
Agent is a party in which case all such communications are to be
made by or through the Security Agent. Each Senior Finance Party
will notify the Facility Agent of and provide the Facility Agent
with, a copy of any communication between such Senior Finance
Party and
91
an Obligor or any other of the Senior Finance Parties on any
matter concerning the Facilities or the Senior Finance
Documents.
(b) Notwithstanding anything to the contrary expressed or implied
herein, no Agent shall as between itself and the other Senior
Finance Parties be bound to disclose to any other Senior Finance
Party or other person (i) any information, disclosure of which
might, in the opinion of such Agent, result in a breach of any
law or directive or be otherwise actionable at the suit of any
person, or (ii) any information supplied by any member of the
Group to such Agent which is identified by a member of the Group
at the time of supply as being unpublished, confidential, or
price sensitive information relating to a proposed transaction
by a member of the Group and supplied solely for the purpose of
evaluating in consultation with such Agent whether such
transaction might require a waiver or amendment to any of the
provisions of the Senior Finance Documents.
(c) In acting as an Agent for the Senior Finance Parties, each
Agent's department which undertakes the relevant agency role
will be treated as a separate entity from any of its other
departments (or similar unit of such Agent in any subsequent
reorganisation) or affiliates and, any information given by any
member of the Group to one of the other departments which is
acting in an advisory or other capacity to the Group and not in
the capacity of an Agent is to be treated as confidential and
will not be available to the Senior Finance Parties without the
consent of the Parent provided that:-
(i) the consent of the Parent will not be required in
relation to any information which an Agent in its
discretion, determines relates to an Event of Default or
Potential Event of Default or in respect of which the
Banks have given, prior to the disclosure of such
information, a confidentiality undertaking in the form
substantially set out in Schedule 11 (Form of
Confidentiality Undertaking); and
(ii) if representatives or employees of an Agent receive
information in relation to a Event of Default or
Potential Event of Default whilst acting in an advisory
capacity they will not be obliged to disclose such
information to representatives or employees of such
Agent in their capacity as agent bank or security agent
hereunder or to any of the Banks if to do so would
breach any rule or directive or fiduciary duty imposed
upon such persons.
19.8 INDEMNITY TO AGENTS: To the extent that any Obligor does not do so on
demand or is not obliged to do so, each Bank shall on demand indemnify
each Agent in the proportion borne by its Commitments to the Total
Commitments at the relevant time (or, if no Commitments are then
outstanding, in the proportion borne by its Commitments to the Total
Commitments at the last time there were any) against any cost, expense
or liability referred to in Clause 24 (Indemnities) or sustained or
incurred by each Agent in complying with any instructions from the
Majority Banks or otherwise sustained or incurred by each Agent in
connection with the Senior Finance Documents or its or their respective
duties, obligations and responsibilities under the Senior Finance
Documents except to the extent that they are sustained or incurred as a
result of the negligence or wilful misconduct of an Agent or any of its
personnel or agents.
19.9 RESIGNATION OF AGENTS:
(a) Each Agent may resign its appointment hereunder at any time
without assigning any reason therefor by giving not less than
thirty days' prior written notice to that effect to the Parent
and each of the other Senior Finance Parties provided that no
such resignation shall be effective until a successor for such
Agent is appointed in accordance with this Clause 19.9
(Resignation of Agents). If the retiring Agent gives notice of
its resignation then any reputable and experienced bank or other
financial institution with offices in London may be appointed as
a successor to that Agent by the Majority Banks during the
period of such notice but, if no such successor is so appointed,
the retiring Agent may appoint a successor itself. If a
successor to such Agent is so appointed, then (i) the retiring
Agent shall be discharged from any further obligation hereunder
but shall remain entitled to the benefit of the provisions of
this Clause 19
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(The Agents and the Arrangers) and (ii) its successor and each
of the other parties hereto shall have the same rights and
obligations amongst themselves as they would have had if such
successor had been an original party hereto.
(b) The retiring Agent will co-operate with the successor Agent in
order to ensure that its functions are transferred to the
successor Agent and will promptly make available to the
successor Agent such documents and records as have been
maintained in connection with the Senior Finance Documents in
order that the successor Agent is able to discharge its
functions.
(c) The provisions of this Agreement will continue in effect for the
benefit of any retiring Agent in respect of any actions taken or
omitted to be taken by it or any event occurring before the
termination of its agency.
(d) The Security Agent's resignation shall not take effect until all
necessary deeds and documents have been entered into in order to
substitute its successor as holder of the Security Documents and
each other party to this Agreement agrees to promptly enter into
any documents reasonably required for this purpose.
19.10 PAYMENTS TO SENIOR FINANCE PARTIES:
(a) Each Agent will account to the other Senior Finance Parties for
their respective due proportions of all sums received by it for
such Senior Finance Parties, whether by way of repayment of
principal or payment of interest, commitment commission, fees or
otherwise.
(b) Each Agent and each Arranger may retain for its own use and
benefit, and will not be liable to account to the other Senior
Finance Parties for all or any part of any sums received by way
of agency or arrangement fee or by way of reimbursement of
expenses incurred by it.
19.11 CHANGE OF OFFICE OF AGENTS: Each Agent may at any time and from time to
time in its sole discretion by written notice to the Parent and each of
the other Senior Finance Parties designate a different office in the
United Kingdom from which its duties as an Agent will be performed.
19.12 ROLE OF THE SECURITY AGENT: The Security Agent shall hold the benefit of
the Security Documents to which it is party as agent and security
trustee for itself and the Senior Finance Parties to apply all payments
and other benefits received by it by reason thereof, or otherwise
realised thereunder, in accordance with this Agreement, and shall act in
relation to the Security Documents in accordance with the requirements
of the Intercreditor Agreement.
19.13 JOINT CREDITORSHIP: Each of the Obligors and each of the Senior Finance
Parties agree that the Security Agent shall be the joint and several
creditor (together with the relevant Senior Finance Party) of each and
every obligation of any Obligor towards each of the Senior Finance
Parties under the Senior Finance Documents and that accordingly the
Security Agent will have its own independent right to demand performance
by the relevant Obligor of those obligations. Any discharge of any such
obligation to one of the Security Agent or any other Senior Finance
Party shall, to the same extent, discharge the corresponding obligation
owing to the other, and a Senior Finance Party or the Security Agent
shall not, by virtue of this Clause 19.13, be entitled to pursue the
Obligor concurrently for the same obligation.
Without limiting or affecting the Security Agent's rights against any
Obligor (whether under this paragraph or any other provision of the
Senior Finance Documents), the Security Agent agrees with each of the
other Senior Finance Parties (on a several and divided basis) that,
subject as set out in the following sentence, it will not exercise its
rights as a joint creditor with a Senior Finance Party except with the
consent of the relevant Senior Finance Party. For the avoidance of
doubt, nothing in the previous sentence shall in any way limit the
Security Agent's right to act in the protection or preservation of
rights under or to enforce any Security Document as contemplated by this
Agreement and/or the relevant Security Document (or to do any act
reasonably incidental to any of the foregoing).
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20 ASSIGNMENTS AND TRANSFERS
20.1 SUCCESSORS: This Agreement shall be binding upon and enure to the
benefit of each party hereto and its or any subsequent successors,
Transferees and assigns.
20.2 ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS: No Obligor shall be entitled
to assign or transfer all or any of its rights, benefits and obligations
hereunder.
20.3 ASSIGNMENTS AND TRANSFERS BY BANKS: Any Bank may, at any time after
consultation with the Parent, assign all or any of its rights and
benefits hereunder or transfer in accordance with Clause 20.6 (Transfers
by Banks) all or any of its rights, benefits and obligations hereunder
to a bank or financial institution, provided that:-
(a) such assignment or transfer shall be in a minimum amount of
Pound Sterling5,000,000 except in the case of an assignment or
transfer which has the effect of reducing the participation of
the relevant Bank to zero;
(b) each Issuing Bank has approved the Transferee (such consent not
to be unreasonably withheld) in the case of an assignment or
transfer of the Revolving Facility; and
(c) any assignee or Transferee has entered into an accession
agreement to the Intercreditor Agreement.
20.4 DEEMED CONSENT: Any consent required to be given by a party under Clause
20.3 (Assignments and Transfers by Banks) shall be deemed to have been
given unless such party shall have notified the requesting party to the
contrary within five business days of the request for such consent.
20.5 ASSIGNMENTS BY BANKS: If any Bank assigns all or any of its rights and
benefits hereunder in accordance with Clause 20.3 (Assignments and
Transfers by Banks), then, unless and until the assignee has delivered a
notice to the Facility Agent confirming in favour of the Facility Agent
and the other Senior Finance Parties that it shall be under the same
obligations towards each of them as it would have been under if it had
been an original party hereto as a Bank (whereupon such assignee shall
become a party hereto as a "Bank"), the Facility Agent and the other
Senior Finance Parties shall not be obliged to recognise such assignee
as having the rights against each of them which it would have had if it
had been such a party hereto.
20.6 TRANSFERS BY BANKS: If any Bank wishes to transfer by novation all or
any of its rights, benefits and/or obligations hereunder as contemplated
in Clause 20.3 (Assignments and Transfers by Banks), then such transfer
may be effected by the delivery to the Facility Agent of a duly
completed Transfer Certificate executed by such Bank and the relevant
Transferee in which event, on the later of the Transfer Date specified
in such Transfer Certificate and the fifth Business Day after (or such
earlier Business Day endorsed by the Facility Agent on such Transfer
Certificate falling on or after) the date of delivery of such Transfer
Certificate to the Facility Agent:
(a) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer by novation its rights, benefits and
obligations hereunder, each of the Obligors and such Bank shall
be released from further obligations towards one another
hereunder and their respective rights against one another shall
be cancelled (such rights and obligations being referred to in
this Clause 20.6 as "DISCHARGED RIGHTS AND OBLIGATIONS");
(b) each of the Obligors and the Transferee party thereto shall
assume obligations towards one another and/or acquire rights
against one another which differ from such discharged rights and
obligations only insofar as such Obligor and such Transferee
have assumed and/or acquired the same in place of such Obligor
and such Bank;
(c) the Facility Agent, such Transferee and the other Senior Finance
Parties shall acquire the same rights and benefits and assume
the same obligations between themselves as they would have
94
acquired and assumed had such Transferee been an original party
hereto as a Bank with the rights, benefits and/or obligations
acquired or assumed by it as a result of such transfer and to
that extent the Facility Agent and the relevant Bank shall each
be released from further obligations to each other hereunder;
(d) such Transferee shall become a party hereto as a "BANK".
20.7 ASSIGNMENT AND TRANSFER FEES: On the date upon which an assignment takes
effect pursuant to Clause 20.5 (Assignments by Banks) or a transfer
takes effect pursuant to Clause 20.6 (Transfers by Banks) the relevant
assignee or Transferee shall pay to the Facility Agent for its own
account a fee of Pound Sterling750.
20.8 DISCLOSURE OF INFORMATION: Any Bank may disclose to any person:-
(a) to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights,
benefits and obligations hereunder; or
(b) with (or through) whom such Bank 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,
the Senior Finance Documents or any Obligor,
such information about any Obligor or any of its Subsidiaries or the
Senior Finance Documents as such Bank shall consider appropriate,
PROVIDED THAT the person to whom such information is to be given has
entered into a Confidentiality Undertaking.
20.9 TRANSFER OF RISK: Nothing in this Agreement or any other Senior Finance
Document will oblige a Bank which assigns or transfers all or part of
its rights and/or obligations under this Agreement or cause such Bank to
be liable:-
(a) to accept a re-assignment or re-transfer from a Transferee of
any of the rights or obligations assigned, transferred or
novated pursuant to this Clause 20 (Assignment and Transfers);
or
(b) to support any losses incurred by a Transferee by reason of the
non-performance by any Obligor of its obligations under any of
the Finance Documents.
20.10 SUB-PARTICIPATION: Nothing in this Agreement shall restrict the ability
of a Bank to sub-participate any or all of its obligations hereunder so
long as such Bank remains liable under this Agreement in relation to
those obligations provided that Bank shall notify the Parent of any such
participation.
20.11 AFFILIATES: Any affiliate of a Bank nominated by such Bank to make
available Drawings shall by virtue of its signature of the relevant
Transfer Certificate become party to this Agreement for the purposes of
making available such Drawings with the rights specified in Clause 3.3
(Lending Affiliates) and shall be a Senior Finance Party for the
purposes of the Senior Finance Documents to the extent necessary to give
effect to Clause 3.3 (Lending Affiliates).
20.12 CONSEQUENCES OF ASSIGNMENT OR TRANSFER: No Obligor shall be liable to
pay any amount following any assignment or transfer of a Senior Finance
Party under Clause 20 (Assignments and Transfers) pursuant to Clause 12
(Taxes and Other Deductions) or 13.2 (Increased Costs) in excess of the
amount it would have been liable to pay in the absence of such
assignment or transfer (other than as a result of laws or regulations in
force or known to be coming into force at that time).
21 PRO RATA PAYMENTS, RECEIPTS AND SET OFF
21.1 PRO RATA PAYMENTS:
(a) RECOVERIES: If any amount owing by any Obligor under any
Senior Finance Document to a Bank (the "RECOVERING BANK") is
discharged by payment, set-off or any other manner other
95
than through the Facility Agent in accordance with Clause 14
(Payments) (such amount being referred to in this Clause 21.1
(Pro Rata Payments) as a "RECOVERY") then:-
(i) within 2 Business Days of receipt of the Recovery the
Recovering Bank shall pay to the Facility Agent an
amount equal (or equivalent) to such Recovery;
(ii) the Facility Agent shall treat such payment as if it
were part of the payment to be made by the relevant
Obligor to the Banks rateably in accordance with their
respective entitlements; and
(iii) (save for any receipt by the Recovering Bank as a result
of the operation of paragraph (ii) above) as between the
relevant Obligor (as the case may be) and the Recovering
Bank the Recovery shall be treated and deemed as not
having been paid.
(b) NOTIFICATION OF RECOVERY: Each Bank will notify the Facility
Agent promptly of any such Recovery by that Bank other than by
payment through the Facility Agent. If any Recovery subsequently
has to be wholly or partly refunded by the Recovering Bank which
paid an amount equal thereto to the Facility Agent under Clause
21.1(a) (Recoveries), each Bank to which any part of that amount
was distributed will, on request from the Recovering Bank, repay
to the Recovering Bank such Bank's pro rata share of the amount
which has to be refunded by the Recovering Bank. (c)
INFORMATION: Each Bank will on request supply to the Facility
Agent such information as the Facility Agent may from time to
time request for the purpose of this Clause 21.1 (Pro Rata
Payments).
(d) EXCEPTIONS TO SHARING OF RECOVERIES: Notwithstanding the
foregoing provisions of this Clause 21.1 (Pro Rata Payments), no
Recovering Bank will be obliged to share any Recovery which it
receives pursuant to legal proceedings taken by it to recover
any sums owing to it under the Senior Finance Documents with any
other party which has a legal right to, but does not, either
join in such proceedings or commence and diligently pursue
separate proceedings to enforce its rights in the same or
another court (unless the proceedings instituted by the
Recovering Bank are instituted by it without prior notice having
been given to such party through the Facility Agent).
(e) OBTAINING CONSENTS: Each party to this Agreement agrees to take
all steps required of it pursuant to Clause 21.1(a) (Recoveries)
and to use its reasonable endeavours to obtain any consents or
authorisations which may at any relevant time be required in
respect of any payment to be made by it pursuant to this Clause
21.1 (Pro Rata Payments).
(f) NO SECURITY: The provisions of this Clause 21.1 (Pro Rata
Payments) shall not, and shall not be construed so as to,
constitute a charge by any Bank over all or any part of any sum
received or recovered by it under any of the circumstances
mentioned in this Clause 21.1 (Pro Rata Payments).
(g) ANCILLARY BANKS AND HEDGING BANKS:
(i) This Clause 21.1 (Pro Rata Payments) shall not, for the
avoidance of doubt, apply to any Recovery by a Bank in
its capacity as an Ancillary Bank or Hedging Bank at any
time prior to service of notice under Clause 17.2
(Cancellation and Repayment).
(ii) Following service of notice under Clause 17.2
(Cancellation and Repayment) this Clause 21.1 (Pro Rata
Payments) shall apply to all Recoveries by Ancillary
Banks and Hedging Banks which arise otherwise than as a
result of a payment made in accordance with Clause 21.2
(Receipts) provided that this Clause 21.1 (Pro Rata
Payments) shall not apply to amounts recovered by an
Ancillary Bank or a Hedging Bank as a result of
exercising rights under the Ancillary Documents or
Hedging Agreements respectively to set off or net sums
due and payable by and to it under
96
those documents in its capacity as an Ancillary Bank or
Hedging Bank, as the case may be, or as a result of
exercising its rights under any memorandum of deposit
granted thereunder.
21.2 RECEIPTS: If any sum paid or recovered in respect of the liabilities of
an Obligor under any of the Senior Finance Documents is less than the
amount then due, the Facility Agent or the Security Agent (as the case
may be) shall apply that sum against amounts outstanding under the
Senior Finance Documents in the following order:-
(a) first to any unpaid fees and reimbursement of unpaid expenses of
the Facility Agent and the Security Agent due under the Senior
Finance Documents;
(b) second to any unpaid fees and reimbursement of unpaid expenses
of the Banks due under the Senior Finance Documents;
(c) third to unpaid interest;
(d) fourth to unpaid principal (including without limitation
provision of cash cover in respect of contingent liabilities);
and
(e) fifth to other amounts due under the Senior Finance Documents,
in each case (other than (a)) pro rata to the outstanding amounts owing
to the Senior Finance Parties under the Senior Finance Documents taking
into account any applications under this Clause 21.2 (Receipts) but for
this purpose the Hedging Banks and the Hedging Agreements shall be
excluded in determining any distribution under this Clause 21.2
(Receipts) to the extent that the Hedging Banks already received a pro
rata share of the relevant amount pursuant to Clause 13.1 of the
Intercreditor Agreement.
21.3 SET-OFF:
(a) After an Event of Default has occurred and for so long as it is
continuing each Senior Finance Party is hereby authorised at any
time and from time to time (without notice to the relevant
Obligor) to set-off or otherwise apply any and all deposits
(irrespective of the terms applicable to such deposits) at any
time held and other indebtedness at any time owing by such
Senior Finance Party to or for the account of any Obligor (in
any such case whether or not then matured or due) against any
indebtedness of the relevant Obligor to the relevant Senior
Finance Party under the Senior Finance Documents which is due
and unpaid.
(b) The rights of each Senior Finance Party under this Clause are in
addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Senior Finance
Party may have.
(c) This Clause 21.3 (Set-Off) shall be without prejudice to any
rights of set-off which may be agreed between the Obligors and
any Ancillary Bank under the Ancillary Documents and any rights
of set-off or netting arrangements contained in any Hedging
Agreements.
(d) A Senior Finance Party may exercise such rights notwithstanding
that the amounts concerned may be expressed in different
currencies and each Senior Finance Party is authorised to effect
any necessary conversions at a market rate of exchange selected
by it.
97
22 NOTICES, CONFIDENTIALITY AND CERTIFICATES
22.1 NOTICES
(a) MODE OF SERVICE: Any notice or other communication to be served
under or in connection with this Agreement shall, unless
otherwise stated, be made in writing and served by letter, telex
or facsimile to the relevant party at its address, telex or
facsimile number shown immediately after its name on the
signature page of this Agreement or set out under its name in
Schedule 1 or set out in the Transfer Certificate or Accession
Document by which it became party hereto or such other address
or number notified by it to the other parties to this Agreement
and, in the case of any Senior Finance Party, marked for the
attention of the person or department there specified.
(b) DEEMED SERVICE: Any notice or other communication served by post
will, unless otherwise stated, be deemed served 48 hours after
posting, if served in the United Kingdom, and 5 days after
posting if served overseas by air mail, or on delivery if
delivered personally or by courier. A notice or other
communication sent by telex or facsimile transmission will,
unless otherwise stated, be deemed served at the time of
transmission unless served on a day which is not a Business Day
or after 5 pm London time in which case it will be deemed served
at 9 am on the following Business Day provided that any drawdown
notice or request, or other notice or communication requesting
funding or notifying any repayment, prepayment or cancellation
served on any Senior Finance Party will only be deemed served on
receipt by the relevant party.
(c) PROOF OF SERVICE: In proving service of any notice or other
communication it will be sufficient to prove:-
(i) in the case of a letter, that such letter was properly
stamped or franked, addressed and placed in the post or
in the case of personal delivery, was left at the
correct address; and
(ii) in the case of a telex or facsimile transmission, that
such telex or facsimile was duly transmitted to the
telex or facsimile number, as appropriate, of the
addressee referred to in Clause 22.1(a) (Mode of
Service) above.
22.2 CERTIFICATES: Any certificate, determination, notification or opinion of
any Senior Finance Party or group of Senior Finance Parties as to any
rate of interest or any other amount payable under any Senior Finance
Document will be, in the absence of manifest error, prima facie evidence
of the matters to which it relates. Where any person gives a certificate
on behalf of any of the parties to the Senior Finance Documents pursuant
to any provision thereof and such certificate proves to be incorrect,
the individual shall incur no personal liability in consequence of such
certificate being incorrect save where such individual acted
fraudulently or recklessly in giving such certificate (in which case any
liability of such individual shall be determined in accordance with
applicable law).
22.3 CONFIDENTIALITY: Subject to Clause 20.8 (Disclosure of Information), the
parties will keep confidential the Senior Finance Documents and all
information which they acquire under or in connection with the Senior
Finance Documents save that such information may be disclosed:
(a) if so required by law or regulation or, if requested by any
regulator with jurisdiction over any Senior Finance Party or any
affiliate of any Senior Finance Party;
(b) if it comes into the public domain (other than as a result of a
breach of this Clause 22.3 (Confidentiality));
(c) to auditors, professional advisers or rating agencies; or
(d) in connection with any legal proceedings; or
98
(e) to Senior Subordinated Finance Parties or Equity Investors.
The provisions of this Clause 22.3 (Confidentiality) shall supercede any
undertakings with respect to confidentiality previously given by any
Senior Finance Party in favour of any Obligor.
23 AMENDMENTS, WAIVERS AND CONSENTS
23.1 BANKS:
(a) MAJORITY BANKS: Subject to Clauses 23.1(b) and (c), 23.2 and
23.3, any provision of this Agreement or any of the other Senior
Finance Documents may be amended, waived, varied or modified and
all consents hereunder may be given with the agreement of the
Majority Banks and the Parent. The Facility Agent shall seek the
agreement of the Majority Banks if requested to do so by the
Parent.
(b) ALL BANKS: Any amendment, waiver, variation, modification or
consent shall require the unanimous agreement of all of the
Banks if it results in:-
(i) any extension of the final scheduled maturity date of
any Facility or any extension of the expiry date of any
Letter of Credit or Bank Guarantee beyond the Revolving
Facility Repayment Date;
(ii) any increase in the Commitments of any Bank;
(iii) any reduction in the rate of interest (other than by
reason of the provisions of Clause 6.6 (Margin
Adjustment)) or fees or extension of the time for
payment of any interest or fees;
(iv) any reduction in the principal amount outstanding under
any Facility or in the amount of any Letter of Credit or
Bank Guarantee (except as a result of a repayment or
prepayment of cash);
(v) release of the security constituted by the Security
Documents other than pursuant to the enforcement of such
security or in accordance with the express terms of the
Senior Finance Documents;
(vi) release of any Guarantor from its obligations under
Clause 18 (Guarantees) save as expressly permitted in
accordance with the Senior Finance Documents;
(vii) any amendment, variation or modification of this Clause
23.1(b), Clause 20.2 (Assignments and Transfers by the
Obligors) or to the definition of Majority Banks;
provided further that (in addition to the agreement of the
Majority Banks):
(A) any reduction in the Commitments of any
Bank shall require the consent of such
Bank;
(B) any reduction in any scheduled repayment
in relation to a Facility or extension
of any scheduled payment date for any
repayment in relation to a Facility
shall require the consent of each Bank
participating in that Facility;
(C) any change in the required application
of any prepayments in accordance with
Clause 8 (Prepayments) as between the
Facilities shall require the consent of
Banks whose Commitments in relation to
each Facility which is being allocated a
lesser prepayment aggregate more than
66K% of all the Commitments of
Banks in
99
relation to such Facility (provided
that, for the avoidance of doubt, the
Majority Banks may waive any such
prepayment as long as the application of
prepayments between the Facilities is
not altered).
(c) CONSENTS: Any matter which by the terms of the Senior Finance
Documents as at the date hereof is stated to be subject to the
consent of all Banks shall not be waived, amended, varied or
modified save with the consent of all the Banks.
23.2 SPECIFIC PARTIES:
(a) AGENTS/ARRANGERS/ISSUING BANK: Any decision which will affect
the rights or obligations of the any of the Agents, any of the
Arrangers or any Issuing Bank shall require its consent also.
(b) ANCILLARY BANKS: Any decision which will affect the rights or
obligation of any Ancillary Bank will require its consent also
subject as specifically provided otherwise in the Senior Finance
Documents. The Ancillary Documents may be amended, varied,
waived or modified by agreement between the parties thereto
subject as provided in Schedule 8 (Ancillary Facilities).
(c) HEDGING BANKS: Any decision which will affect the rights or
obligation of any Hedging Bank will require its consent also
subject as specifically provided otherwise in the Senior Finance
Documents. The Hedging Documents may be amended, varied, waived
or modified by agreement between the parties thereto subject as
provided in the Intercreditor Agreement.
23.3 SECURITY DOCUMENTS: The Security Documents may be amended, varied,
waived or modified with the agreement of the relevant Obligor and the
Security Agent (acting on the instructions of the Majority Senior
Creditors (as defined in the Intercreditor Agreement)).
23.4 OBLIGORS: Each Obligor irrevocably authorises the Parent:
(a) to give all notices and instructions and make such agreements
expressed to be capable of being given or made by the Parent on
behalf of the Obligors or any of them under this Agreement; and
(b) to agree on behalf of the Obligors or any of them the terms of
any consents or waivers given or required under the Senior
Finance Documents and all amendments made to any of them
(including this Agreement),
notwithstanding in either case that they may affect rights and
obligations of such Obligor and in either case without further reference
to or the consent of such Obligor and such Obligor shall as regards each
of the other parties to this Agreement and the other Senior Finance
Documents be bound thereby as though it had itself given such notice of
instruction, made such agreement or agreed such consent, waiver or
amendment.
23.5 NO IMPLIED WAIVERS
(a) FAILURE TO EXERCISE RIGHTS: No failure or delay by any Senior
Finance Party in exercising any right, power or privilege under
any of the Senior Finance Documents will operate as a waiver
thereof nor will any single or partial exercise of any right,
power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
(b) CUMULATIVE RIGHTS: The rights and remedies provided in the
Senior Finance Documents are cumulative and not exclusive of any
rights and remedies provided by law and all such rights and
remedies howsoever arising will, save where expressly provided
to the contrary therein, be available to the Senior Finance
Parties severally and any Senior Finance Party shall be entitled
to commence proceedings in connection therewith in its own name.
100
(c) GRANT OF WAIVERS: A waiver given or consent granted by the any
Senior Finance Party under the Senior Finance Documents will be
effective only if given in writing and then only in the instance
and for the purpose for which it is given.
24 INDEMNITIES
24.1 INITIAL EXPENSES: The Parent will, or will procure that a member of the
Group will, on demand pay and reimburse to the Facility Agent, the
Security Agent and the Arrangers, on the basis of a full indemnity, all
reasonable costs and expenses (including legal fees and other
out-of-pocket expenses and any irrecoverable value added tax or other
similar tax thereon) properly incurred by the Facility Agent, the
Security Agent or the Arrangers in connection with:-
(a) the negotiation, preparation, execution and completion of each
of the Senior Finance Documents,
(b) any variation, amendment, restatement, waiver, consent or
suspension of rights (or any proposal for any of the same)
relating to any of the Senior Finance Documents which is
requested by or on behalf of an Obligor or which becomes
necessary as a result of circumstances affecting any Obligor;
(c) the investigation of any Event of Default or Potential Event of
Default; and
(d) legal fees incurred in connection with syndication of the
Facilities.
24.2 ENFORCEMENT EXPENSES: The Parent will, or will procure that a member of
the Group will, on demand pay and reimburse to each Senior Finance
Party, on the basis of a full indemnity, all costs and expenses
(including legal fees and other out of pocket expenses and any value
added tax or other similar tax thereon) properly incurred by such Senior
Finance Party in connection with the preservation, enforcement or the
attempted preservation or enforcement of any of such Senior Finance
Party's rights under any of the Senior Finance Documents.
24.3 STAMP DUTIES, ETC.: The Parent will, or will procure that a member of
the Group will, pay and on demand indemnify each Senior Finance Party
from and against any liability for any stamp duty, documentary or
registration taxes or notarial fees which are or may hereafter become
payable in connection with the entry into, performance, execution or
enforcement of any of the Senior Finance Documents or to which any of
the Senior Finance Documents may otherwise be or become subject or give
rise other than duties, taxes or fees chargeable on or in respect of any
transfer or assignment of any of its rights or benefits by any Bank
pursuant to Clause 20 (Assignments and Transfers). The Parent will, or
will procure that a member of the Group will, in addition on demand
indemnify each of the Senior Finance Parties from and against any losses
or liabilities which they incur as a result of any delay or omission by
the Parent to so pay any such duties, taxes or fees.
24.4 GENERAL INDEMNITY: The Parent shall, or will procure that a member of
the Group will, on demand indemnify each of the Senior Finance Parties
against any funding or other cost, loss, expense or liability (but
excluding loss of profit) sustained or incurred by it as a result of:
(a) a Drawing not being made by reason of non-fulfilment of any of
the conditions in Clauses 4.1 (Initial Conditions Precedent) or
4.2 (Additional Conditions Precedent);
(b) any sum payable by any Borrower under the Senior Finance
Documents not being paid when due (but credit shall be given to
such Borrower for any interest paid when due);
(c) the occurrence of any Event of Default or any breach of the
Senior Finance Documents;
(d) the accelerated repayment of the Advances under Clause 17.2
(Cancellation and Repayment);
101
(e) the receipt or recovery by any Senior Finance Party (or the
Facility Agent on its behalf) of all or part of any Advance or
overdue sum otherwise than on the last day of an Interest Period
relating to that Advance or overdue sum; or
(f) any prepayment payable by any Borrower under the Senior Finance
Documents not being paid after notice of such prepayment has
been made to the Facility Agent,
provided that such cost, loss, expense or liability is not incurred as a
result of the gross negligence or wilful misconduct of the relevant
Senior Finance Party, or the inability of the relevant Senior Finance
Party to fund itself on a matched basis in the London interbank market
other than if the provisions of Clauses 11.3 or 13.4 apply.
Without prejudice to its generality, the foregoing indemnity:-
(a) extends to any interest, fees or other sums whatsoever paid or
payable on account of any funds borrowed in order to fund any
amount which an Obligor fails to pay in breach of this Agreement
and to any loss, premium, penalty or expenses which may be
incurred in liquidating or employing deposits from third parties
acquired to make, maintain or fund outstanding Advances or any
other amount due or to become due under this Agreement; and
(b) will entitle the relevant Senior Finance Party to recover
breakage costs from the Parent in the event of an Advance or
other sum being repaid or pre-paid prior to the last day of an
Interest Period even though the relevant Senior Finance Party
has financed such Advance or other sum from its own resources,
the costs it thereby incurs being calculated on the assumption
it had borrowed an amount equal to the Advance or other sum in
question in the London interbank market for the duration of the
relevant Interest Period.
24.5 CURRENCY INDEMNITY: Without prejudice to Clause 24.4 (General
Indemnity), if:-
(a) any amount payable by any Obligor under or in connection with
any Senior Finance Document is received by any Senior Finance
Party (or by the Facility Agent on behalf of any Senior Finance
Party) in a currency (the "PAYMENT CURRENCY") other than that
agreed in the relevant Senior Finance Document (the "AGREED
CURRENCY"), whether as a result of any judgement or order or the
enforcement thereof, the liquidation of the relevant Obligor or
otherwise and the amount produced by converting the Payment
Currency so received into the Agreed Currency is less than the
relevant amount of the Agreed Currency; or
(b) any amount payable by any Obligor under or in connection with
any Senior Finance Document has to be converted from the Agreed
Currency into another currency for the purpose of (i) making or
filing a claim or proof against any Obligor, (ii) obtaining an
order or judgment in any court or other tribunal or (iii)
enforcing any order or judgment given or made in relation to any
Senior Finance Document,
then the Obligor will, as an independent obligation, indemnify the
relevant Senior Finance Party for the deficiency and any loss sustained
as a result. Any conversion required will be made at such prevailing
rate of exchange on such date and in such market as is determined by the
relevant Senior Finance Party as being most appropriate for the
conversion. The Obligor will, in addition pay the costs of the
conversion.
24.6 WAIVER: The Parent waives any right it may have in any jurisdiction to
pay any amount under any Senior Finance Document in a currency other
than that in which it is expressed to be payable in the relevant Senior
Finance Document.
24.7 SENIOR FINANCE PARTY INDEMNITY: The Parent agrees to indemnify and hold
harmless each Senior Finance Party and each of their affiliates and
their officers, directors, employees, agents and advisors (each, an
"INDEMNIFIED PARTY") from and against any and all claims, damages,
losses, liabilities and
102
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or
by reason of, or in connection with the preparation for a defence of,
any investigation (which results in any litigation or proceeding),
litigation or proceeding arising out of, related to or in connection
with any failure by a member of the Group to comply with any
Environmental Law or Environmental Consent or with any regulatory
consent, whether or not such investigation, litigation or proceeding is
brought by the Parent, its shareholders or creditors or an Indemnified
Party or an Indemnified Party is otherwise a party thereto, except to
the extent such claim, damage, loss, liability or expense is found by a
court of competent jurisdiction to have resulted from such Indemnified
Party's, gross negligence or wilful misconduct, provided that:
(a) the potential Indemnified Party shall immediately inform the
Parent of any circumstances of which it is aware and which would
be reasonably likely to give rise to any such investigation,
litigation or proceeding (whether or not any such investigation,
litigation or proceeding has occurred or been threatened); and
(b) the Indemnified Party will consult with the Parent with respect
to conduct of any such investigation, litigation or proceeding;
and
(c) the Indemnified Party will not agree to a settlement of any such
investigation, litigation or proceeding without the consent of
the Parent.
No act, failure to act, or breach by a Senior Finance Party shall affect
the rights of any other Senior Finance Party under this Clause.
25 PARTIAL INVALIDITY
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect in any jurisdiction, that shall not affect
the legality, validity or enforceability of the remaining provisions in
that jurisdiction or that or any other provision in any other
jurisdiction.
26 GOVERNING LAW AND SUBMISSION TO JURISDICTION
26.1 GOVERNING LAW: This Agreement (and any dispute, controversy,
proceedings or claims of whatever nature arising out of or in any way
relating to this Agreement) shall be governed by and construed in all
respects in accordance with English law.
26.2 SUBMISSION TO JURISDICTION: For the benefit of each of the Senior
Finance Parties, each Obligor irrevocably submits to the jurisdiction of
the courts in England for the purpose of hearing and determining any
dispute arising out of this Agreement and for the purpose of enforcement
of any judgement against its assets.
26.3 FREEDOM OF CHOICE: The submission to the jurisdiction of the courts
referred to in Clause 26.2 (Submission to Jurisdiction) shall not (and
shall not be construed so as to) limit the right of any Senior Finance
Party to take proceedings against any Obligor in the courts of any
country in which any Obligor has assets or in any other court of
competent jurisdiction nor shall the taking of proceedings in any one or
more jurisdictions preclude the taking of proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent
permitted by applicable law.
26.4 PROCESS AGENT: Each Obligor which is not a company incorporated in
England and Wales hereby irrevocably and unconditionally appoints and
agrees to maintain the Parent as its agent in England to receive, for
and on behalf of itself, service of process in such jurisdiction in any
suit, action or proceeding (together "PROCEEDINGS") in relation to such
dispute or enforcement.
26.5 SERVICE: Each Obligor hereby irrevocably and unconditionally:-
103
(a) waives any objection it may now or at any time have on any
grounds whatsoever to the laying of venue of any Proceedings, in
any of the aforesaid courts;
(b) agrees that failure by any such process agent to give notice of
the process to it shall not impair the validity of such service
or of any judgment based on that service;
(c) agrees that nothing in any of the Senior Finance Documents shall
affect the right to serve process in any other manner permitted
by law;
(d) to the fullest extent permitted by law, waives any right it may
have in any jurisdiction to have any Proceedings take the form
of a trial by jury; and
(e) agrees that a judgment or order of an English court in
connection with the Senior Finance Documents is conclusive and
binding on it and maybe enforced against it in the courts of any
other jurisdiction.
27 COUNTERPARTS
This Agreement may be executed in any number of counterparts and all
such counterparts taken together shall be deemed to constitute one and
the same instrument.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed on the date first written above.
104
SCHEDULE 1
THE BANKS
Tranche A Tranche B Tranche C Revolving
Term Facility Term Facility Term Facility Facility
Commitment Commitment Commitment Commitment
(Pound Sterling) (Pound Sterling) (Pound Sterling) (US$)
DEUTSCHE BANK AG LONDON 47,500,000 35,000,000 25,000,000 42,500,000
Lending Office:
0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile: 0171 933 3419/0171 545 4638
Attention: Xxxxx Xxxxxxxx/Xxxxx Xxxxxxx
XXXXXXX XXXXX CAPITAL CORPORATION 47,500,000 35,000,000 25,000,000 42,500,000
Lending Office:
World Financial Centre
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: 000 000 000 1719
Attention: Xxxx Xxxxxxxx/
Xxxx Xxxxxxxxx
------------- ------------ -------------- ------------
95,000,000 70,000,000 50,000,000 85,000,000
105
SCHEDULE 2
THE BORROWERS AND THE GUARANTORS
PART A - THE BORROWERS
Ineos Acrylics UK Xxxxx Limited
Ineos Acrylics UK Trader Limited
ICI Acrylics Inc. (subject to accession in accordance with the terms hereof)
US HoldCo (subject to accession in accordance with the terms hereof)
PART B - THE GUARANTORS
UK ParentCo 2 (subject to accession in accordance
with the terms hereof) Ineos
Acrylics UK Xxxxx Limited
Ineos Acrylics UK Overseas HoldCo1 Limited
Ineos Acrylics UK PartnerCo1 Limited
Ineos Acrylics UK PartnerCo2 Limited
Ineos Acrylics UK Trader Limited
Ineos Acrylics UK Trader HoldCo Limited
Ineos Acrylics US HoldCo Limited
UK ParentCo 3
Dutch Overseas Holdco (subject to accession in
accordance with the terms hereof)
ICI Acrylics Inc. (subject to accession in accordance
with the terms hereof)
US HoldCo (subject to accession in accordance with
the terms hereof)
US Partnership (subject to accession in accordance
with the terms hereof)
106
SCHEDULE 3
DOCUMENTARY CONDITIONS PRECEDENT
1. FORMALITIES CERTIFICATE(s): a certificate from each Obligor in the form
set out in Schedule 12 signed by an authorised director or the secretary
of such Obligor which shall have attached to it the documents referred
to in such certificate including, without limitation, the constitutional
documents of such Obligor and board and shareholder resolutions
approving the Transaction Documents to which such Obligor is a party all
such documents to be in the agreed form (including, without limitation,
all documentation required in relation to financial assistance laws (if
applicable)).
2. SENIOR FINANCE DOCUMENTS: each of the following documents in the agreed
form duly executed and delivered by all parties thereto:-
(1) this Agreement;
(2) Accession Documents executed by UK ParentCo 2, Dutch Overseas
HoldCo, ICI Acrylics Inc., US HoldCo and US Partnership pursuant
to the terms of which they accede to this Agreement and the
Intercreditor Agreement as Borrowers (in the case of ICI
Acrylics Inc. and US HoldCo) and Guarantors.
(3) each Security Document;
(4) the Intercreditor Agreement;
(5) the Fees Letters; and
(f) the Investor Side-Letter.
3. SENIOR SUBORDINATED FINANCE DOCUMENTS: certified copies of the Bridge
Facility Agreements in the agreed form duly executed and delivered by
all parties thereto.
4. INVESTOR DOCUMENTS: certified copies of the following documents in the
agreed form duly executed and delivered by all parties thereto:-
(a) Investment Agreement;
(b) Articles of Association of the Parent.
5. ACQUISITION DOCUMENTS: certified copies of the following documents in
the agreed form duly executed and delivered by all parties thereto:-
(a) the Acquisition Agreement; and
(b) the Disclosure Letter (as defined in the Acquisition Agreement).
6. STRUCTURE DOCUMENT: a copy of the Structure Document certified by a
director of the Parent as true and correct.
7. REPORTS: originals of each of the Reports duly addressed to each of the
Senior Finance Parties (and the successors, assignees and transferees)
or accompanied by confirmation from the person that has produced the
relevant Report that the same may be relied upon by the Senior Finance
Parties (and their successors, assignees and transferees), with the tax
report produced by PricewaterhouseCoopers to contain confirmation of the
funds flow at Completion and confirmation that the proposed funds flow
of the Group to service its Financial Indebtedness, including without
limitation, the Facilities does not have adverse legal, tax or
accounting consequences.
8. FINANCIAL INFORMATION: certified copies of:-
107
(a) the Latest Audited Accounts and the consolidated audited
accounts for the financial years ending 1996 and 1997;
(b) the Latest Management Accounts;
(c) the Agreed Financial Projections and the business plan for the
Business; and
(d) the pro forma income statement for the 12 month periods ending
31 December 1998 and 30 June 1999 and the pro forma balance
sheet for 30 June 1999.
9. SECURITY RELEASES: evidence that all Security Interests in favour of
third parties granted by any member of the Target or any of its
Subsidiaries (and which are not permitted under the terms of this
Agreement) have been or will be discharged and released on the
Completion Date.
10. CONSENTS/NOTICES: all landlord consents (other than in the United States
of America) which the Security Agent requires in connection with the
creating of any Security Interest contained in any Security Document and
all notices of assignment or charge required to be given under the terms
of the Security Documents.
11. SHARE CERTIFICATES AND STOCK TRANSFERS: share certificates in respect of
each member of the Group other than the Parent, UK ParentCo 1 and UK
ParentCo 2 together with stamped, executed blank stock transfers or
other relevant transfer documents in respect of all shares charged or
pledged under the Security Documents.
12. INSURANCE LETTER: a letter from the insurance brokers of the Group duly
addressed to the Senior Finance Parties (and the successors, assignees
and transferees) to contain a list of all insurance policies of the
Group required to be taken out in accordance with Clause 16.2
(Insurances) and including confirmation that such insurance policies are
adequate and are in full force and effect, and that the security
interest of the Senior Finance Parties will be noted on such insurance
policies.
13. CONSENTS AND FILINGS: a certificate in the agreed form signed by a
director of the Parent certifying that no consents and filings (other
than those which have been obtained and which are listed in such
certificate) are necessary for any of the transactions contemplated by
the Finance Documents and the other Transaction Documents and their
validity and/or enforceability have been obtained and are in full force
and effect.
14. INTRA-GROUP LOANS: certified copies of any inter-company loan
documentation between Obligors in relation to any inter-company loans
made or to be made on or after the Completion Date including the
Inter-Company Loan Agreements and the Xxxxx/Bondco Loan Agreement.
15. COMPLETION:
(a) a certificate in the agreed form signed by a director of the
Parent and addressed to the Facility Agent confirming that all
conditions precedent to the Acquisition Documents (other than
payment of the price) have been satisfied, that the provisions
of Clause 16.2(f)(ii) (Acquisition Documents) have been complied
with and that the Local Asset Sale Agreements and Local Share
Sale Agreements (as such terms are defined in the Acquisition
Agreement) are completed in accordance with their terms (save as
they relate to a Delayed Completion);
(b) evidence that all conditions (other than provision of the
Facilities) to the Bridge Finance Documents have been satisfied.
16. FEES: an instruction to the Facility Agent that all fees payable in
accordance with the Fees Letters and all other fees, costs and expenses
(including, without limitation, legal fees and all costs of
registration,
108
property transfers, security or otherwise) details of which are
specified in such instruction may be deducted from the first Advance
under this Agreement.
17. STAMP DUTY: evidence satisfactory to the Facility Agent that all stamp
duty payable in connection with the Acquisition has been paid or will be
paid immediately following completion other than stamp duty payable on
documents executed outside the United Kingdom.
18. LEGAL OPINIONS:
(a) a legal opinion of Shearman & Sterling as to matters of English
law in form and substance satisfactory to the Facility Agent;
(b) a legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx as to matters of
US law in form and substance satisfactory to the Facility Agent;
(c) a legal opinion of Trenite van Doorne as to matters of Dutch law
in form and substance satisfactory to the Facility Agent.
19. TITLE DEEDS: all original title deeds and (if appropriate) Land
Certificates (or, in the case of the property known as Chapel's Park, a
statutory declaration from Field Xxxxxx Waterhouse) in respect of the
relevant Obligor's interest in real property in the United Kingdom
together with such undertakings as to the safe custody and delivery of
documents of title and such copies of such documents as the Facility
Agent may require.
20. PROPERTY REGISTRATION UNDERTAKING: a letter from Freshfields or such
other firm of solicitors as the Security Agent may require addressed to
the Security Agent undertaking:-
(a) to deal with registration of the Security Agent's legal charges
over such of the relevant Obligors' Properties as are situate in
England and Wales (subject to the limitation referred to in the
Reports prepared by Freshfields); and
(b) subject as required to comply with (a) above, to hold the title
deeds to such properties to the order of the Security Agent.
21. PROPERTY SEARCHES: official priority searches relating to the Properties
situated in the UK charged under the Security Documents in favour of the
Security Agent in respect of any registered titles giving a sufficient
period of priority and official priority searches relating to the
Properties charged under the Security Documents in favour of the
Security Agent in respect of any unregistered land in respect of each of
the land charges registers giving a sufficient period of priority.
22. US CONDITIONS PRECEDENT:
(a) executed copies of Financing Statements (Form UCC-1 and/or
UCC-2) or appropriate local equivalent in appropriate form for
filing under the UCC or appropriate local equivalent of each
jurisdiction as agreed between the Parent and the Facility Agent
to perfect the Security Interests purported to be created by
each Security Document (including any assignment of any existing
security) entered into by a member of the Group incorporated in
a state of the United States of America or in respect of shares
of any such company (each such Security Document a "US SECURITY
DOCUMENT");
(b) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, each of a recent date listing
all effective Financing Statements that name the Business or any
member of the Group or a division or operating unit of any such
person, as debtor and that are filed in the jurisdictions
referred to in (a) above, together with copies of such Financing
109
Statements in respect of all of which appropriate termination
statements executed by the secured lender thereunder shall be
delivered to the Facility Agent;
(c) evidence of the completion of all other recordings and filings
of, or with respect to, each US Security Document as may be
necessary to perfect the Security Interests intended to be
created by the US Security Documents;
(d) mortgagee title insurance policies (or binding commitments to
issue such title insurance policies) issued by title insurers
reasonably satisfactory to the Facility Agent (the "MORTGAGE
POLICIES") on terms and in amounts reasonably satisfactory to
the Facility Agent and assuring the Facility Agent that the
mortgages over the fee properties in the United States of
America created under the US Security Documents are valid and
enforceable first priority Security Interests on the respective
properties, free and clear of all defects and encumbrances
except Security Interests permitted under this agreement. Such
Mortgage Policies shall be in form and substance satisfactory to
the Facility Agent and (i) shall include an endorsement for
future advances under this Agreement and for any other matter
that the Facility Agent in its discretion may reasonably request
(to the extent available in the respective jurisdiction of each
relevant property), (ii) shall not include an exception for
mechanics' liens and (iii) shall provide for affirmative
insurance and such reinsurance (including direct access
agreements) as the Facility Agent in its discretion may
reasonably request;
(e) a solvency certificate issued by each US Obligor and addressed
to the Facility Agent confirming the solvency of such Obligor
immediately following entry by it into any US Security Document
to which it is a party;
(f) delivery by each member of the Group which is incorporated in a
state of the United States of America of stock certificates,
instruments and other collateral the delivery of which is
required by the Security Agent pursuant to the US Security
Documents.
110
SCHEDULE 4
FORM OF DRAWING REQUEST
To: Deutsche Bank AG LONDON
(as Facility Agent for the Banks)
ATTENTION:
DATE:
From: [NAME OF COMPANY]
Dear Sirs,
FACILITIES AGREEMENT DATED [-] 1999 (THE "FACILITIES AGREEMENT")
We request a Drawing of the [Tranche A Term/Tranche B Term/Tranche C
Term/Revolving] Facility as follows:
[ADVANCE]
1. Amount:
2. Facility:
3. Drawing Date:
4. Interest Period:
5. Currency:
6. Payment should be made to:
7. Borrower:
[LETTER OF CREDIT/BANK GUARANTEE]
1. Amount:
2. Drawing Date:
3. Duration:
4. Currency:
5. Beneficiary:
6. Borrower:
7. Obligation Guaranteed:
We attach the form of the proposed Letter of Credit/Bank Guarantee.
We confirm that:-
(i) the representations and warranties made in Clause 15 (Representations
and Warranties) of the Facilities Agreement stipulated as being made or
repeated on the date hereof and on the date of the relevant Drawing are
true and accurate as if made with respect to the facts and circumstances
existing on such date; and
(ii) no Event of Default or Potential Event of Default has occurred and is
continuing or will occur as a result of the proposed Drawing being made.
Terms defined in the Facility Agreement shall have the same meanings when used
in this request.
...........................
[AUTHORISED SIGNATORY]
for and on behalf of
[BORROWER/PARENT]
111
SCHEDULE 5
ADDITIONAL COSTS RATE
1. The Additional Costs Rate shall be the rate determined by the Facility
Agent to be equal to the arithmetic mean (rounded upwards, if necessary,
to four decimal places) of the rates notified by each of the Reference
Banks in accordance with its respective status weighted in proportion to
the percentage participation of that Reference Bank in the related
Advance to the Facility Agent as the rate resulting from the application
(as appropriate) of the following formulae:
in relation to Sterling Advances:
XL + S(X-X) + (E x 0.01)
------------------------
100 - (X+S)
in relation to other Advances:
E x 0.01
--------
300
where, in each case, on the day of application of a formula:
X is the percentage of Eligible Liabilities (in excess of any
stated minimum) by reference to which the Reference Bank is
required under or pursuant to the Bank of England Act 1998 to
maintain cash ratio deposits with the Bank of England;
L is the interest rate at which Sterling deposits for the relevant
Interest Period are offered to the Reference Bank in the London
Interbank Market at or about 11.00 a.m. on the first day of that
Interest Period;
E is the rate of charge being payable by that Bank to the
Financial Services Authority ("FSA") pursuant to paragraph 2.02
or 2.03 (as the case may be) of the Fees Regulations (but where,
for this purpose, the figures at paragraph 2.02(b) and 2.03(b)
of the Fees Regulations shall be deemed to be zero) and
expressed in pounds per Pound Sterling1 million of the Fee Base
of that Reference Bank;
S is the level of interest bearing Special Deposits, expressed as
a percentage of Eligible Liabilities, which the Reference Bank
is required to maintain by the Bank of England (or other United
Kingdom governmental authorities or agencies); and
D is the percentage rate per annum payable by the Bank of England
to the Reference Bank on Special Deposits.
(X, L, S and D shall be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from L shall
be counted as zero).
112
2. For the purposes of this Schedule 5:-
"ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given to
those terms under or pursuant to the Bank of Xxxxxxx Xxx 0000 or by the
Bank of England (as may be appropriate), on the day of the application
of the formula;
"FEE BASE" has the meaning given to that term for the purposes of, and
shall be calculated in accordance with, the Fees Regulations;
"FEES REGULATIONS" means, as appropriate, either:
(a) the Banking Supervision (Fees) Regulations 1999; or
(b) such regulations as from time to time may be in force, relating
to the payment of fees for banking supervision in respect of
periods subsequent to 31 March 2000.
3. The Additional Costs Rate shall be calculated at or about 11.00 a.m. on
the first day of each Interest Period and for the duration of such
Interest Period and shall be payable on the date on which interest is
payable in respect of the relevant Advance in accordance with the terms
of this Agreement.
4. Each Reference Bank shall determine the Additional Costs Rate by
application of the formula set out in paragraph 1 above on the first day
of each Interest Period and shall notify the Facility Agent of such
determination as soon as it has been made. Promptly upon receipt of
notifications from each of the Reference Banks, the Facility Agent shall
calculate the Additional Costs Rate for the purposes of this Agreement.
5. In the event that there is any change in applicable law or regulation,
or the interpretation thereof, by any agency of any state, or in the
nature of any request or requirement by the Financial Services
Authority, the Bank of England, or other applicable banking or
regulatory authority, the effect of which is to impose, modify or deem
applicable any fees or any reserve, special deposit, liquidity or
similar requirements against assets held by, or deposits in, or for the
account of, or advances by the Banks, or in any other respect
whatsoever, the Facility Agent shall be entitled to vary the formula set
forth in paragraph 1 above so as (but only so as) to restore the Banks'
position - in terms of overall return to the Banks - to that which
prevailed before such change became necessary. The Facility Agent shall
notify the Parent of any such necessary variation to the formula and the
formula, as so varied, shall be the formula for the purposes of this
Agreement with effect from the date of notification.
113
SCHEDULE 6
TRANSFER CERTIFICATE (1)
[(REFERRED TO IN CLAUSE 20 (ASSIGNMENTS AND TRANSFERS))]
To: Deutsche Bank AG LONDON
[Details]
for and on behalf of the Obligors and the Banks
(each as defined in the Facilities Agreement referred to below).
This transfer certificate (this "CERTIFICATE") relates to a Facilities Agreement
dated [-] 1999 and made between, inter alia, [-] as Parent, the banks and
financial institutions named therein as Original Banks and Deutsche Bank AG
LONDON as Facility Agent and Deutsche Bank AG LONDON as Security Agent (the
"FACILITIES AGREEMENT" which expression includes any amendments or supplements
thereto or restatements thereof). Terms defined in the Facilities Agreement
shall, unless otherwise defined in this Certificate, have the same meanings when
used in this Certificate.
1. TRANSFEROR CONFIRMATION AND REQUEST: [Name of Transferor] (the
"Transferor") by its execution of this Certificate:-
(i) requests [NAME OF TRANSFEREE] (the "TRANSFEREE") to accept and
procure, in accordance with Clause 20 (Assignments and
Transfers) of the Facilities Agreement, transfer to the
Transferee of the portion of the Transferor's participation in
the Facilities as specified in the First Schedule of this
Certificate (the "TRANSFER RIGHTS") by counter-signing this
Certificate and delivering it to the Facility Agent at its
address for the giving of notices under the Facilities Agreement
so as to take effect on the date specified in the Second
Schedule of this Certificate (the "TRANSFER DATE"); and
(ii) confirms that the details which appear in the First Schedule of
this Certificate accurately record respectively, the amount of
the Transferor's Commitment and the principal amount of the
Transfer Rights at the date of this Certificate.
2. TRANSFEREE REQUEST: The Transferee by its execution of this Certificate
requests each Obligor, the Banks and the Facility Agent to accept this
Certificate as being delivered under and for the purposes of Clause 20.6
(Transfers by Banks) of the Facilities Agreement so as to take effect in
accordance with the terms of that clause on the Transfer Date.
3. TRANSFER FEE: The Transferee undertakes to pay to the Facility Agent for
the Facility Agent's own account a transfer fee of Pound Sterling750 as
provided in Clause 20.7 (Assignment and Transfer Fees) of the Facilities
Agreement.
---------------------
1 Each of the Transferor and Transferee should ensure that all regulatory
requirements are satisfied in connection with its entry into of any Transfer
Certificate. Steps may be required to be taken to preserve security interests
for the benefit of a Transferee and appropriate advice should be taken.
114
4. TRANSFEREE REPRESENTATIONS: The Transferee hereby:-
(i) confirms that it has received from the Transferor a copy of the
Facilities Agreement together with such other documents and
information as it has requested in connection with this
certificate;
(ii) confirms that it has not relied, and will not hereafter rely, on
the Transferor or any Senior Finance Party to check or enquire
on its behalf into the legality, validity, effectiveness,
adequacy, accuracy or completeness of any such documents or
information;
(iii) agrees that it has not relied, and will not hereafter rely, on
the Transferor or any other Senior Finance Party to assess or
keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of any
Obligor, any Subsidiary of any Obligor or any other party to the
Facilities Agreement; and
(iv) represents and warrants to the Transferor and all other parties
to the Facilities Agreement that it has power to become a party
to the Facilities Agreement as a "Bank" on the terms herein and
therein set out and has taken all necessary steps to authorise
execution and delivery of this Certificate.
5. TRANSFEREE COVENANTS: The Transferee hereby undertakes with the
Transferor and all other parties to the Facilities Agreement that it
will perform in accordance with its terms all those obligations which,
by the terms of the Facilities Agreement, will be assumed by it
following delivery of this Certificate to the Facility Agent.
6. EXCLUSION OF TRANSFEROR'S LIABILITIES: Neither the Transferor nor any
other Senior Finance Party makes any representation or warranty nor
assumes any responsibility with respect to the legality, validity,
effectiveness, adequacy or enforceability of the Senior Finance
Documents or assumes any responsibility for the financial condition of
any Obligor, any Subsidiary of any Obligor or any other party to the
Senior Finance Documents or for the performance and observance by any
Obligor of any of its obligations under the Senior Finance Documents and
any and all such conditions and warranties, whether express or implied
by law or otherwise, are hereby excluded.
7. NOVATION: On execution of this Certificate by the Facility Agent the
Transferee will become a party to the Facilities Agreement, on and with
effect from the Transfer Date in substitution for the Transferor with
respect to those rights and obligations which by the terms of the
Facilities Agreement and this Certificate are assumed by the Transferee.
8. LAW: This Certificate and the rights and obligations of the parties
hereto shall be governed by and construed in accordance with English
Law.
AS WITNESS the hands of authorised signatories for and on behalf of the
Transferor, the Transferee and the Facility Agent on the respective dates
appearing below.
115
FIRST SCHEDULE TO THE TRANSFER CERTIFICATE
Transferor's Existing Term Commitment:
(a)Tranche A Facility Pound Sterling
(b) Tranche B Facility Pound Sterling
(c) Tranche C Facility Pound Sterling
Transferor's Existing Revolving Commitment: Pound Sterling
Portion of Transferor's Existing [TERM A/B/C COMMITMENT/PARTICIPATION IN TERM A/B/C Pound Sterling
ADVANCE] to be transferred:
Portion of Transferor's Existing Revolving Commitment to be transferred: Pound Sterling
[PARTICIPATION IN REVOLVING ADVANCE(s) TO BE TRANSFERRED (2):-
REVOLVING PARTICIPATION: POUND STERLING INTEREST PERIOD: MONTHS, MATURITY DATE: 19
ADVANCE 1:
REVOLVING PARTICIPATION: POUND STERLING INTEREST PERIOD: MONTHS, MATURITY DATE: 19
ADVANCE 2:
[REVOLVING
ADVANCE [ ] Participation: Pound Sterling Interest Period: months, Maturity Date: 19
-------------------------
(2) Only relevant if Transfer Date is during an Interest Period.
116
SECOND SCHEDULE TO THE TRANSFER CERTIFICATE
Particulars relating to the Transferee
Transfer Date:
Lending Office:
Contact Name:
Account for Payments:
Address for Notices:
Telephone:
Telex:
Facsimile:
SIGNATURE CLAUSES TO TRANSFER CERTIFICATE
[TRANSFEROR] [TRANSFEREE]
By: By:
.................... ....................
Date: 19 Date: 19
117
[FACILITY AGENT]
By:
....................
DATE: 19
118
SCHEDULE 7
ACCESSION DOCUMENT
THIS ACCESSION AGREEMENT is made [ ]
BETWEEN:-
(1) LIMITED (registered no. ) (the "NEW [BORROWER/GUARANTOR]");
(2) [ ] (registered no. ) (the "PARENT");
(3) DEUTSCHE BANK AG LONDON in its capacity as Facility Agent under the
Facilities Agreement.
WHEREAS:-
(A) This Agreement is entered into in connection with a facilities
agreement (the "FACILITIES AGREEMENT") dated [-] 1999 and made between,
inter alia, the Parent, the banks and financial institutions named
therein and Deutsche Bank AG LONDON as Facility Agent.
(B) This Agreement has been entered into to record the admission of the
[New Borrower/Guarantor] as a [Borrower/Guarantor] under the Facilities
Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:-
1 DEFINITIONS
Terms defined in the Facilities Agreement shall have the same meaning
when used in this Agreement.
2 ADMISSION OF NEW [BORROWER/GUARANTOR]
2.1 The New [Borrower/Guarantor] agrees to become a [Borrower/Guarantor]
under the Facilities Agreement and agrees to be bound by the terms of
the Facilities Agreement as if it had been named as a
[Borrower/Guarantor] thereunder.
2.2 The New [Borrower/Guarantor] thereby confirms the appointment of the
Parent as its agent on the terms provided for in the Facilities
Agreement in relation to Obligors.
2.3 The New [Borrower/Guarantor] confirms that its address details for
notices the Facilities Agreement are as follows:-
Address:
Facsimile:
Telex:
Attention of:
119
2.4 By their signature below the parties to this Agreement (other than the
New [Borrower/Guarantor]) confirm their acceptance of the New
[Borrower/Guarantor] as a [Borrower/Guarantor] for the purpose of the
Facilities Agreement.
3 GOVERNING LAW AND SUBMISSION TO JURISDICTION
The provision of Clause 26 (Governing Law and Submission to
Jurisdiction) shall apply to this Accession Agreement as though set out
in full herein.
IN WITNESS WHEREOF THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE DULY EXECUTED ON
THE DATE FIRST WRITTEN ABOVE.
[Execution provisions]
120
SCHEDULE 8
ANCILLARY FACILITIES
1 DEFINITIONS: IN THIS SCHEDULE, UNLESS THE CONTEXT OTHERWISE REQUIRES,
THE FOLLOWING EXPRESSIONS HAVE THE FOLLOWING MEANINGS:
"ANCILLARY LIMIT" means, in relation to an Ancillary Bank, the maximum
exposure (excluding accrued uncapitalised interest, fees and like
charges) which it has agreed to accept (whether by way of loan or
otherwise) by way of Ancillary Facilities in accordance with Clause 2.2
(Ancillary Facilities) less that part thereof cancelled, reduced or
terminated from time to time in accordance with this Agreement and/or
the relevant Ancillary Documents;
"ANCILLARY OUTSTANDINGS" means, in relation to an Ancillary Bank at any
time, the aggregate outstanding amount of the Ancillary Facilities due
to that Ancillary Bank, at such time, calculated on the following
basis:-
(a) all amounts of principal then outstanding under any overdraft
or other current account facilities, calculated on a net basis
in accordance with the usual practice of that Ancillary Bank;
(b) the amount of any outstanding utilisation of any BACS
facilities made available by that Ancillary Bank (to the
extent not included in the calculation of (a) above);
(c) the maximum liability under all guarantees, bonds and letters
of credit then outstanding and issued under any guarantee,
bonding or letter of credit facilities made available by that
Ancillary Bank; and
(d) in respect of any other facility or financial accommodation,
such other amount as that Ancillary Bank (acting reasonably)
may determine represents the aggregate exposure of that
Ancillary Bank with respect thereto in accordance with its
usual practice for calculating its exposure;
2 LIMITATIONS:
(a) The aggregate of the Advances drawn under the Revolving
Facility, the total Contingent Liability of the Revolving
Banks in relation to Letters of Credit and Bank Guarantees
issued under the Revolving Facility and the total Ancillary
Outstandings at any time may not exceed the aggregate of the
Commitments of the Revolving Banks in relation to the
Revolving Facility at that time (before (and ignoring) any
reduction therein on account of any Ancillary Limit).
(b) The Ancillary Outstandings of an Ancillary Bank may not at any
time exceed the Ancillary Limit of that Ancillary Bank.
(c) In the event that the Ancillary Limit of an Ancillary Bank
would exceed its Revolving Commitment it shall be entitled to
reduce the Ancillary Limit applicable to the Ancillary
Facilities by an amount equal to the excess and require the
Borrowers to prepay the Ancillary Outstandings in the amount
necessary to procure that the Ancillary Outstandings do not
exceed the Ancillary Limit.
(d) No member of the Group which is not also a Borrower under this
Agreement shall be permitted to draw the Ancillary Facilities.
121
(e) Each Ancillary Document shall be in a form approved by the
Facility Agent such approval not to be unreasonably withheld
or delayed in the event that such Ancillary Document is in
compliance with the requirements of the Senior Finance
Documents.
3 TERMS OF ANCILLARY FACILITIES: THE TERMS ON WHICH ANCILLARY FACILITIES
ARE MADE AVAILABLE SHALL BE AS SET OUT IN THE RELEVANT ANCILLARY
DOCUMENT AS AMENDED FROM TIME TO TIME BY AGREEMENT BETWEEN THE RELEVANT
ANCILLARY BANK AND THE PARENT (WITH THE PRIOR WRITTEN APPROVAL OF THE
FACILITY AGENT (SUCH APPROVAL NOT TO BE UNREASONABLY WITHHELD))
PROVIDED ALWAYS THAT THE FOLLOWING PROVISIONS WILL APPLY TO THE
ANCILLARY FACILITIES:-
(a) that no drawing of the Ancillary Facilities will be permitted
which gives rise to an actual or contingent liability of the
relevant Borrower to the Ancillary Bank which may mature after
or otherwise extend beyond the Revolving Facility Repayment
Date;
(b) in any circumstances where the relevant Borrower would be
obliged to prepay the Revolving Facility it will also prepay
the Ancillary Facilities (or provide appropriate cash cover)
and the Ancillary Facilities shall be cancelled in an amount
equal to each amount prepaid or provided as cash cover in
accordance with this paragraph (b);
(c) that unless the Majority Banks agree otherwise no utilisation
of the Ancillary Facilities shall be permitted if as a result
of the terms of Clause 4.2 (Additional Conditions Precedent)
the Borrowers would not be entitled to request a Revolving
Advance or the issue of a Letter of Credit or Bank Guarantee.
4 FEES: NO ANCILLARY BANK SHALL CHARGE INTEREST OR FEES IN RELATION TO
ANCILLARY FACILITIES ANY GREATER THAN THOSE SET OUT BELOW:-
(a) a margin over cost of funds or base rate on any funded
drawings under the Ancillary Facilities equal to the Margin in
relation to the Revolving Facility;
(b) a fee on the contingent liability of the Ancillary Bank in
relation to any letter of credit, bank guarantee, performance
bond or similar instrument issued by the Ancillary Bank under
the Ancillary Facilities equal to the Margin; and
(c) usual bank charges and expenses payable in connection with the
provision of the Ancillary Facilities as agreed between the
Parent and the relevant Ancillary Bank.
122
SCHEDULE 9
PROVISIONS RELATING TO LETTERS OF CREDIT/BANK GUARANTEES
1. DEMANDS: Each Issuing Bank shall forthwith notify the Facility Agent of
any demand received by it under and in accordance with any Letter of
Credit or Bank Guarantee (including details of the Letter of Credit or
Bank Guarantee under which such demand has been received and the amount
demanded) and the Facility Agent on receipt of any such notice shall
forthwith notify the Parent, the Borrower for whose account that Letter
of Credit or Bank Guarantee was issued (the "ACCOUNT PARTY") and each
of the Revolving Banks.
2. PAYMENTS:
(a) The Account Party shall immediately on receipt of any notice
from the Facility Agent under paragraph 1 (Demands) of this
Schedule pay to the Facility Agent for the account of the
relevant Issuing Bank the amount demanded from that Issuing
Bank as notified by the Facility Agent in accordance with that
paragraph less any amount standing to the credit of any Cash
Collateral Account and which has been paid to the credit of
that Cash Collateral Account (including interest accrued and
credited to that Cash Collateral Account) to provide cash
cover in respect of the Letter of Credit or Bank Guarantee
under which the relevant Issuing Bank has received demand.
(b) The Facility Agent shall pay to the relevant Issuing Bank any
amount received by it from the Account Party under paragraph
2(a) (Payments) of this Schedule together with any amount
standing to the credit of any Cash Collateral Account in
respect of the Letter of Credit or Bank Guarantee under which
such Issuing Bank has received demand.
3. AUTHORITY TO PAY: The Account Party hereby irrevocably authorises each
Issuing Bank to pay without investigation or confirmation by it any
demand which appears on its face to be validly made under or pursuant
to any Letter of Credit or Bank Guarantee issued by that Issuing Bank
and agrees that as between itself, such Issuing Bank and the Banks,
that any such demand (in the absence of manifest error) shall be
conclusive evidence that demand has been properly made.
4. INDEMNITY:
(a) The Account Party hereby irrevocably and unconditionally
agrees to indemnify each Issuing Bank and keep each Issuing
Bank indemnified on its first demand from and against all
actions, losses, damages, claims, proceedings, costs, demands
and liabilities which may be suffered or incurred by that
Issuing Bank (other than by reason of that Issuing Bank's
gross negligence or wilful misconduct) under or in connection
with any Letter of Credit or Bank Guarantee (including,
without limitation, by making payment of any amount which it
is required to pay under paragraph 2(a) (Payments) of this
Schedule).
(b) Without prejudice to the Account Party's obligations under
paragraph 4(a) (Indemnity) of this Schedule, each Revolving
Bank hereby irrevocably, unconditionally and severally agrees
to indemnify and pay to each Issuing Bank on its first demand
an amount equal to its proportion (determined pursuant to
Clause 3.1(e) (Basis of Participation) on the date of issue of
the relevant Letter of Credit or Bank Guarantee (subject as
provided in Clause 20 (Assignments and Transfers)) of the
amount which the Issuing Bank has paid under the relevant
Letter of Credit or Bank Guarantee.
123
(c) The Account Party hereby irrevocably and unconditionally
agrees to indemnify and keep indemnified each Revolving Bank
on its first demand from and against all actions, losses,
damages, claims, proceedings, costs, demands and liabilities
which may be suffered or incurred by such Revolving Bank as a
result of the obligations assumed by it to each Issuing Bank
under paragraph 4(b) (Indemnity) of this Schedule.
5. INTEREST:
(a) The Account Party shall pay interest on all amounts paid by an
Issuing Bank under or in connection with any Letter of Credit
or Bank Guarantee or by any Revolving Bank under paragraph
4(b) (Indemnity) of this Schedule from (and including) the
date of payment by such Issuing Bank or such Revolving Bank
until the date of indemnification calculated and payable in
accordance with Clause 6.5 (Default Interest).
(b) Amounts standing to the credit of any Cash Collateral Account
opened with a Finance Party shall bear interest at the rate
normally offered by such Finance Party to corporate depositors
of amounts similar to the relevant amount for periods of
deposit similar to the anticipated period of deposit of the
relevant amount.
6. CASH COVER:
(a) Any Obligor providing cash cover or paying any other sum to
the credit of a Cash Collateral Account (including, without
limitation, pursuant to Clause 8 (Prepayment)) in accordance
with the Senior Finance Documents shall (if such Cash
Collateral Account is not or will not be upon coming into
existence be subject to a fixed charge under a Security
Document) execute and deliver to the Security Agent an
additional Security Document, in such form as the Facility
Agent shall reasonably require, constituting a first fixed
charge over such Cash Collateral Account, together with such
evidence of due execution of such Security Document as the
Security Agent shall reasonably require and, in the case of an
Obligor not incorporated in England and Wales, a legal opinion
satisfactory to the Security Agent.
(b) The Facility Agent shall be and is hereby irrevocably
authorised by the Account Party following a demand under and
in accordance with any Letter of Credit or Bank Guarantee to
apply all amounts standing to the credit of any Cash
Collateral Account in respect of that Letter of Credit or Bank
Guarantee in satisfaction of the Account Party's obligations
hereunder in respect of that Letter of Credit or Bank
Guarantee.
7. PROTECTIVE PROVISIONS: The following provisions shall apply to each of
the indemnities (the "INDEMNITIES") contained in paragraph 4
(Indemnity) of this Schedule.
(a) Each of the Indemnities are and will remain in full force and
effect by way of continuing security until such time as no
amounts to which such Indemnities are expressed to relate
remain payable or capable of becoming payable under the Senior
Finance Documents. Furthermore the Indemnities are additional
to and not instead of any security or other guarantee at any
time existing in favour of any person.
(b) Any settlement or discharge of any claim under any of the
Indemnities shall be conditional upon no payment made under
the Indemnities being avoided or set aside or ordered to be
refunded by virtue of any provision of any enactment relating
to bankruptcy, insolvency, winding-up or liquidation.
124
(c) The obligations arising under the Indemnities and any
liability deriving therefrom shall not be discharged or
affected by any circumstance which would so discharge or
affect it but for this provision including, without
limitation:-
(i) any time, indulgence, waivers or consents given to
any Obligor or any other person;
(ii) any amendment, variation or modification of the
Finance Documents or any other security or guarantee
or any increase in the amount of the Facilities;
(iii) the making or absence of any demand on any Obligor or
any other person for payment or performance of any
other obligations or the application of any moneys at
any time received from any Obligor or any other
person;
(iv) the enforcement, perfecting or protecting of or
absence of enforcement, perfecting or protecting of
any security, guarantee or undertaking (including,
without limitation, all or any of the obligations and
liabilities of any Obligor);
(v) the release, taking, giving or abstaining from taking
of any security, guarantee or undertaking (including,
without limitation, the Senior Finance Documents);
(vi) the insolvency, winding-up, administration,
receivership or commencement of any other insolvency
procedure under the laws of any relevant jurisdiction
in relation to any Obligor, any Senior Finance Party
or any other person or the making or any arrangement
or composition with or for the benefit of creditors
by any Obligor, any Senior Finance Party or any other
person;
(vii) any amalgamation, merger or change in constitution in
relation to any Obligor, any Senior Finance Party or
any other person.
(viii) the illegality, invalidity or unenforceability of or
any defect in any provision of any Finance Document
or any security, obligations or liabilities arising
or expressed to arise thereunder;
8. SUBROGATION: No Borrower shall by virtue of any payment made under the
Indemnities claim any right of subrogation, contribution or indemnity
against any person for so long as any sum remains payable or capable of
becoming payable under the Senior Finance Documents.
125
SCHEDULE 10
SECURITY DOCUMENTS
OBLIGOR SECURITY DOCUMENTS
Ineos Acrylics UK Xxxxx Limited Debenture
Ineos Acrylics UK Overseas HoldCo1 Limited Debenture
Ineos Acrylics UK PartnerCo1 Limited Debenture
Ineos Acrylics UK PartnerCo2 Limited Debenture
Ineos Acrylics UK Trader Limited Debenture
Ineos Acrylics UK Trader HoldCo Limited Debenture
Ineos Acrylics US HoldCo Limited Debenture
UK ParentCo 3 Debenture
Ineos Acrylics UK ParentCo2 Limited Debenture
US Security Agreement
Ineos Acrylics UK PartnerCo1 Limited (in respect of interests in US Partnership)
US Security Agreement
Ineos Acrylics UK PartnerCo2 Limited (in respect of interests in US Partnership)
US Security Agreement over all assets and
US Partnership undertaking, including all investments
US Security Agreement over all assets and
US HoldCo undertaking, including all investments
US Security Agreement over all assets and
undertaking, including all investments, US
Collateral Mortgages with respect to the fee
US Trader interests in the Tennessee and Mississippi properties
Dutch law share pledge over shares in Dutch Overseas
Ineos Acrylics UK Overseas HoldCo1 Limited HoldCo
126
SCHEDULE 11
FORM OF CONFIDENTIALITY UNDERTAKING
[DATE]
To: [-] as Parent (as defined in the Facilities Agreement referred to
below); and
DEUTSCHE BANK AG LONDON in its capacity as Facility Agent (as defined
in the Facilities Agreement referred to below).
Dear Sirs,
CONFIDENTIALITY UNDERTAKING
1. We confirm that this undertaking is entered into in connection with the
facilities agreement dated - 1999 between, inter alia, the companies
referred to therein as Borrowers and Guarantors, Deutsche Bank AG
LONDON and Xxxxxxx Xxxxx International as Arrangers, the banks and
financial institutions referred to therein as Original Banks and
Deutsche Bank AG LONDON as Facility Agent (as amended, novated, and
supplemented from time to time, the "FACILITIES AGREEMENT"). Unless
otherwise defined herein, all terms used in this undertaking shall bear
the same meanings as in the Facilities Agreement. This undertaking
records our agreement to the confidentiality requirements contained in
Clause 20.8 (Disclosure of Information) and Clause 22.3
(Confidentiality) of the Facilities Agreement.
2. We refer to our [THE INTENDED ASSIGNMENT, TRANSFER, SUB-PARTICIPATION,
RISK PARTICIPATION OR OTHER PARTICIPATION] in the Senior Finance
Documents (the "INTENDED TRANSACTION").
3. In consideration of your providing us with information concerning the
Obligors or any member of the Group, we hereby undertake to you that:
(a) we will keep the Senior Finance Documents and the information
provided under or in connection therewith confidential.
Notwithstanding the foregoing, we or any of our officers,
employees agents or advisers may disclose all or any of the
information so supplied:
(i) if so required by law or regulation or, if requested
by any regulator with jurisdiction over us or any of
our affiliates;
(ii) if it comes into the public domain (other than as a
result of a breach of this Confidentiality
Agreement);
(iii) to auditors, professional advisers or rating agencies
who need to know or review the information for the
purposes of evaluating the Intended Transaction, who
are informed by you of the confidential nature of the
information and who agree to be bound by the terms of
this Agreement;
(iv) in connection with any legal proceedings; or
(v) to Senior Subordinated Finance Parties or Equity
Investors.
(b) we will make no use of any information supplied other than for
the purpose of giving consideration thereto in connection with
the Intended Transactions.
127
4. In the event that you or any of your officers, employees, agents or
advisers become legally compelled to disclose any of the information,
you will, to the extent permitted by law, provide the Transferor and
the Parent with notice promptly after becoming aware thereof.
5. This Confidentiality Agreement is governed by English law.
Yours faithfully
For and on behalf of
[-]
128
SCHEDULE 12
FORMALITIES CERTIFICATE
[INSERT NAME OF COMPANY]
(THE "OBLIGOR")
FACILITIES AGREEMENT DATED [-] 1999
(THE "FACILITIES AGREEMENT")
To: Deutsche Bank AG LONDON as Facility Agent under the Facility Agreement.
We and being respectively the director and secretary
of the Obligor being duly authorised by the Obligor to deliver this Certificate
hereby make the following certifications and confirmations.
1. CONSTITUTIONAL DOCUMENTS
Attached hereto marked A are true, complete and up-to-date copies of:-
(i) the certificate of incorporation of the Obligor;
(ii) all certificates of incorporation on change of name of the
Obligor (if any); and
(iii) the constitutional documents of the Obligor consisting
of [ ] .
2. EXTRACT BOARD RESOLUTIONS
Attached hereto marked B is a true and complete extract from the
minutes of a meeting of the board of directors of the Obligor duly
convened and held (during which a quorum was present throughout)
recording resolutions passed at such meeting (which resolutions are in
full force and effect and have not been rescinded or varied) and which
approve the Transaction Documents to which it is a party and all
transactions contemplated thereby.
3. [SHAREHOLDER RESOLUTIONS
Attached hereto marked C is a true and complete copy of a resolution of
all the shareholders of the Obligor unanimously passed authorising and
directing the execution and performance by the Obligor of the
Transaction Documents to which it is a party.]
4. AUTHORISED SIGNATORIES
The following signatures are the specimen signatures of the persons
authorised by resolution of the board of directors of the Obligor to
execute all Senior Finance Documents and other Transaction Documents to
which it is a party, drawing requests under the Facilities Agreement
and all other documents and notices required in connection therewith:-
Name Position Signature
129
5. NO BREACH OF BORROWINGS LIMIT
We have examined the terms of all relevant agreements to which the
Obligor is a party and the constitutional documents of the Obligor
("RELEVANT DOCUMENTS") and we can confirm to you that entry into the
Transaction Documents and drawing of all amounts capable of being drawn
by the Obligor under the Transaction Documents taking into account any
other Financial Indebtedness of the Obligor:-
(a) will be within the corporate powers of the Obligor; and
(b) does not or will not cause to be exceeded any limit or
restriction on any of the powers of the Obligor (whether
contained in any Relevant Documents or otherwise) or the right
or ability of the directors of the Obligor to exercise such
powers.
Terms defined in the Facilities Agreement shall bear the same meaning when used
herein.
Signed: ..........................................
DIRECTOR
Date: ..............................
Signed: ..........................................
SECRETARY
Date: ..............................
130
SCHEDULE 13
FORMS OF LETTER OF CREDIT/BANK GUARANTEE
PART I - FORM OF LETTER OF CREDIT
[HEADED NOTEPAPER OF ISSUING BANK]
To: [DETAILS]
[DATE]
Dear Sirs
We hereby issue our irrevocable non-transferable standby letter of credit no
[DETAILS] the terms of which are set out below.
1. In this standby letter of credit:
"BANK" means [DETAILS OF ISSUING BANK];
"BENEFICIARY" means [DETAILS];
"BORROWER" means [DETAILS];
"BUSINESS DAY" means a day (not being a Saturday or Sunday) on which
banks are generally open for business (other than a day on which banks
are open only for the operation of business in euros) (i) in London and
(ii) in [DETAILS - PRINCIPAL FINANCIAL CENTRE OF CURRENCY OF L.C.]3;
"EXPIRY DATE" means [DETAILS];
"FACILITY" means [DETAILS];
"MAXIMUM AMOUNT" means [DETAILS];
"PAYMENT AMOUNT" means the amount specified by the Beneficiary in the
Required Documents;
"REQUIRED DOCUMENT" means a request for payment in the form set out in
Appendix A hereto completed in a manner consistent with the
requirements of this letter of credit and signed on behalf of the
Beneficiary.
2. Within five Business Days of receipt by the Bank at its offices at
[DETAILS] (Attn: [DETAILS]) of the Required Document the Bank will pay
to the Beneficiary the lesser of:-
(a) the Payment Amount as stated in the Required Document; and
-----------------------
3 3 Consider intended operation on Target days.
131
(b) the Maximum Amount
provided that only one request for payment by delivery of the Required
Document may be made hereunder and the Bank shall not be obliged to
make any payment hereunder at any time after the Expiry Date.
3. Any payment made hereunder shall be made in [DETAILS - CURRENCY] by
payment to the account of the Beneficiary at a principal bank in
[DETAILS] specified in the Required Document.
4. This letter of credit is not assignable or transferable in whole or in
part and shall be payable only against presentation of the Required
Document.
5. Save insofar as such provisions may be inconsistent with the express
terms of this letter of credit, this letter of credit is subject to
Uniform Customs and Practice for Documentary Credits (1993 revision)
ICC Publication no 500 (the "UCP") (with the exception of Articles
22-44 inclusive (other than Articles 40a, 42 and 44a which shall each
apply)) [or ISP 98 in respect of a standby letter of credit].
Notwithstanding Article 17 of the UCP if the Bank suffers an
interruption of business as described therein and the Expiry Date
occurs during such interruption the Bank shall honour any demand made
under this letter of credit at any time within 30 days after such
interruption of business ends and shall notify the Beneficiary promptly
when it does so end.
6. This letter of credit is governed by and shall be construed in
accordance with English law.
Yours faithfully
For and on behalf of
[ISSUING BANK]
132
APPENDIX A
[HEADED NOTEPAPER OF BENEFICIARY]
To: [NAME AND ADDRESS OF
ISSUING BANK]
LETTER OF CREDIT NO (THE "LETTER OF CREDIT")
We refer to the Letter of Credit and certify that:
(a) we have provided the Facility to the Borrower;
(b) an aggregate amount (the "PAYMENT AMOUNT") of (comprising of
principal and of interest and/or other charges) fell due for payment
in by on and remains due and unpaid at the date of this
letter.
Accordingly, we hereby request payment under the Letter of Credit of the Payment
Amount. Payment is to be made to our account (A/c No ) with at .
Terms defined in the Letter of Credit shall bear the same meaning in this
letter.
Yours faithfully
For and on behalf of
133
PART II - FORM OF BANK GUARANTEE
[HEADED NOTEPAPER OF ISSUING BANK]
To: [DETAILS]
[DATE]
Ref: [DETAILS]
Dear Sirs,
1. In this letter:
"BANK" means [DETAILS OF ISSUING BANK]
"BORROWER" means [DETAILS];
"BUSINESS DAY" means a day (not being a Saturday or Sunday) on which
banks are generally open for business (other than a day on which banks
are open only for the operation of business in euros) (i) in London and
(ii) in [DETAILS - PRINCIPAL FINANCIAL CENTRE OF CURRENCY OF L.C.](4);
"EXPIRY DATE" means [DETAILS];
"FACILITY" means [DETAILS];
"PAYMENT DATE" means the date for payment of a demand being [DETAILS -
MINIMUM FIVE] Business Days after the date of receipt of demand.
2. In consideration of your agreeing to make available the Facility the
Bank irrevocably and unconditionally guarantees to you on receipt of
written demand, the payment and discharge by the Borrower of all
amounts payable or expressed to be payable to you pursuant to the
Facility. This guarantee is given subject as follows:-
(a) Any demand made hereunder shall be made in writing addressed
to the Bank or its offices at [DETAILS] (Attention: [DETAILS])
in the form provided in Appendix A;
(b) The maximum aggregate liability of the Bank hereunder
(inclusive of all principal, interest, costs and expenses) is
[DETAILS];
--------------------------------
4 4 Consider intended operation on Target days.
134
(c) No demand may be made hereunder after the Expiry Date and only
one demand may be made hereunder.
3. Any payment made hereunder shall be made on the Payment Date in
[DETAILS - CURRENCY] by payment to the account of the Beneficiary at a
principal bank in [DETAILS] specified in the demand.
4. This guarantee is not assignable or transferable in whole or in part.
5. This guarantee shall be construed in accordance with English Law.
Yours faithfully
For and on behalf of
[ISSUING BANK]
135
APPENDIX A
[HEADED NOTEPAPER OF BENEFICIARY]
To: [NAME AND ADDRESS OF
ISSUING BANK]
BANK GUARANTEE REF NO (THE "BANK GUARANTEE")
We refer to the Bank Guarantee and certify that:
(a) we have provided the Facility to the Borrower;
(b) an aggregate amount (the "PAYMENT AMOUNT") of [-] (comprising [-] of
principal and [-] of interest and/or other charges) fell due for
payment in [-] by [-] on [-] and remains due and unpaid at the date of
this letter.
Accordingly, we hereby request payment under the Bank Guarantee of the Payment
Amount. Payment is to be made to our account (A/c No [-]) with [-] at [-].
Terms defined in the Bank Guarantee shall bear the same meaning in this letter.
Yours faithfully
For and on behalf of
136
SIGNATORIES TO THE SENIOR FACILITIES AGREEMENT
THE PARENT
INEOS ACRYLICS LIMITED
By:
Notice Details
Address: 00 Xxxx Xxxxxx
Xxxxxx
Xxxxxxxxx XX00 0XX
Facsimile: 01794 825860
Attention: Company Secretary
THE ORIGINAL BORROWERS
INEOS ACRYLICS UK XXXXX LIMITED
By:
Notice Details
as for the Parent:
INEOS ACRYLICS UK TRADER LIMITED
By:
Notice Details
as for the Parent:
THE ORIGINAL GUARANTORS
INEOS ACRYLICS UK XXXXX LIMITED
By:
Notice Details
as for the Parent:
137
INEOS ACRYLICS UK OVERSEAS HOLDCO1 LIMITED
By:
Notice Details
as for the Parent:
INEOS ACRYLICS UK PARTNERCO1 LIMITED
By:
Notice Details
as for the Parent:
INEOS ACRYLICS UK PARTNERCO2 LIMITED
By:
Notice Details
as for the Parent:
INEOS ACRYLICS UK TRADER LIMITED
By:
Notice Details
as for the Parent:
138
INEOS ACRYLICS UK TRADER HOLDCO LIMITED
By:
Notice Details
as for the Parent:
INEOS ACRYLICS US HOLDCO LIMITED
By:
Notice Details
as for the Parent:
INEOS ACRYLICS UK PARENTCO3 LIMITED
By:
Notice Details
as for the Parent:
THE ARRANGERS
DEUTSCHE BANK AG LONDON
By:
Notice Details
Address: 0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile: 0171 933 3419/0171 545 4638
Attention: Xxxxx Xxxxxxxx/Xxxxx Xxxxxxx
139
XXXXXXX XXXXX INTERNATIONAL
By:
Notice Details
Address: Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile:
Attention:
THE ORIGINAL BANKS
DEUTSCHE BANK AG LONDON
By:
Notice Details
Address: 0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile: 0171 933 3419/0171 545 4638
Attention: Xxxxx Xxxxxxxx/Xxxxx Xxxxxxx
XXXXXXX XXXXX CAPITAL CORPORATION
By:
Notice Details
Address: World Financial Centre
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, XX00000-0000
Facsimile: 000 000 000 1719
Attention: Xxxx Xxxxxxxx/Xxxx Xxxxxxxxx
140
FACILITY AGENT
DEUTSCHE BANK AG LONDON
By:
Notice Details Notice Details
(for all matters other than drawdown notices) (for drawdown notices)
Address: 0 Xxxxx Xxxxxxxxxx Xxxxxx Address: 0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxx XX0X 0XX
Facsimile: 0171 933 3419 Facsimile: 0171 545 4638
Attention: Xxxxx Xxxxxxxx Attention: Xxxxx Xxxxxxx, Credit Administration Group
(and copy to Xxxxx Xxxxxxxx at details opposite)
SECURITY AGENT
DEUTSCHE BANK AG LONDON
By:
Notice Details
Address: 0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile: 0171 933 3419/0171 545 4638
Attention: Xxxxx Xxxxxxxx/Xxxxx Xxxxxxx
141
