XXXXXXXX LIMITED LIABILITY PARTNERSHIP
CHANCE
EXHIBIT 7.3 EXECUTION VERSION
US$250,000,000
FACILITIES AGREEMENT
dated 29 October, 2001
for
OCTEL CORP.
with
BARCLAYS CAPITAL
acting as Mandated Lead Arranger
With
BARCLAYS BANK PLC
acting as Agent and Security Agent
---------------------------------------------------
MULTICURRENCY TERM AND REVOLVING FACILITIES
AGREEMENT
---------------------------------------------------
CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation.........................................1
2. The Facilities........................................................27
3. Purpose...............................................................28
4. Conditions Of Utilisation.............................................28
5. Utilisation...........................................................31
6. Optional Currencies...................................................32
7. Repayment.............................................................35
8. Prepayment And Cancellation...........................................36
9. Interest..............................................................40
10. Interest Periods......................................................41
11. Changes To The Calculation Of Interest................................42
12. Fees..................................................................43
13. Tax Gross Up And Indemnities..........................................45
14. Increased Costs.......................................................48
15. Other Indemnities.....................................................49
16. Mitigation By The Lenders.............................................50
17. Costs And Expenses....................................................50
18. Guarantee And Indemnity...............................................52
19. Representations.......................................................56
20. Information Undertakings..............................................63
21. Financial Covenants...................................................67
22. General Undertakings..................................................71
23. Events Of Default.....................................................91
24. Changes To The Lenders................................................96
25. Changes To The Obligors...............................................99
26. Role Of The Agent, Security Agent And The Arranger...................101
27. Conduct Of Business By The Finance Parties...........................109
28. Sharing Among The Lenders............................................109
29. Payment Mechanics....................................................112
30. Set-Off..............................................................116
31. Notices..............................................................116
32. Calculations And Certificates........................................118
-1-
33. Partial Invalidity...................................................113
34. Remedies And Waivers.................................................113
35. Amendments And Waivers...............................................113
36. Obligors' Agent......................................................115
37. Counterparts.........................................................115
38. Governing Law........................................................116
39. Enforcement..........................................................116
40. Waiver Of Jury Trial.................................................116
Schedule 1 THE ORIGINAL PARTIES.............................................117
Schedule 2 CONDITIONS PRECEDENT.............................................119
Schedule 3 REQUESTS ........................................................127
Schedule 4 MANDATORY COST FORMULAE..........................................130
Schedule 5 FORM OF TRANSFER CERTIFICATES....................................133
Schedule 6 FORM OF ACCESSION LETTER.........................................139
Schedule 7 FORM OF RESIGNATION LETTER.......................................140
Schedule 8 FORM OF COMPLIANCE CERTIFICATE...................................141
Schedule 9 LMA FORM OF CONFIDENTIALITY UNDERTAKING..........................143
Schedule 10 TIMETABLES......................................................147
-2-
THIS AGREEMENT is dated 29 October 2001 and made between:
(1) OCTEL CORP. (the "Parent")
(2) THE SUBSIDIARIES of the Parent listed in Part I of Schedule 1 as
original borrowers (The Original Parties), the "Original Borrowers");
(3) THE SUBSIDIARIES of the Parent listed in Part I of Schedule 1 (The
Original Parties) as original guarantors (together with the Parent the
"Original Guarantors");
(4) BARCLAYS CAPITAL as Mandated Lead Arranger ("Mandated Lead Arranger")
and BAYERISCHE LANDESBANK GIROZENTRALE, LONDON BRANCH and LLOYDS TSB
BANK PLC as joint arrangers (the "Joint Arrangers") (the Joint
Arrangers together with the Mandated Lead Arranger whether acting
individually or together, the "Arranger");
(5) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The
Original Parties) as lenders (the "Original Lenders");
(6) BARCLAYS BANK PLC as agent of the Lenders (the "Agent"); and
(7) BARCLAYS BANK PLC as security agent and trustee for the Finance Parties
(the "Security Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement and in the Key Property Debenture:
"Accession Letter" means a document substantially in the form set out
in Schedule 6 (Form of Accession Letter).
"Accounting Quarter" means each three month period ending on a Quarter
Date.
"Additional Borrower" means a company which becomes an Additional
Borrower in accordance with Clause 25 (Changes to the Obligors).
"Additional Guarantor" means a company which becomes an Additional
Guarantor in accordance with Clause 25 (Changes to the Obligors).
"Additional Obligor" means an Additional Borrower or an Additional
Guarantor.
"Additional Report" means a report provided pursuant to paragraph 1 of
Part III of Schedule 2 (Conditions Precedent).
"Affiliate" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
-1-
"Agent's Spot Rate of Exchange" means the Agent's spot rate of exchange
for the purchase of the relevant currency with the Base Currency in the
London foreign exchange market at or about 11:00 a.m. on a particular
day.
"Agreed Financial Projections" means the financial projections and
forecasts for the Business for the period beginning on 1 January 2001
and ending on 31 December 2007 in the agreed form.
"Approved Accounting Principles" means those accounting principles,
standards and practices which were used in the Original Financial
Statements of the Parent.
"AOC" means The Associated Octel Company Limited, a company
incorporated in England with registered number 344359.
"AOC (Plant)" means Associated Octel Company (Plant) Limited, a company
incorporated in England with registered number 873396.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing or registration.
"Availability Period" means:
(a) in relation to Facility A the period from and including the
date of this Agreement to and including the day falling 75
days after the date of this Agreement; and
(b) in relation to Facility B, the period from and including the
date of this Agreement to and including the day falling 36
Months after the date of this Agreement.
If any of the above provisions of this definition of Availability
Period would operate so that (but for this provision) any Availability
Period ended on a day which is not a Business Day, then such
Availability Period shall end on the first Business Day to occur before
such day.
"Available Amount" means, in respect of any Accounting Quarter (the
"Current Accounting Quarter"), an amount equal to the aggregate amount
of Surplus Cash Flow for each Accounting Quarter comprised in the
Calculation Period relating to that current Accounting Quarter less:
(a) (to the extent such amounts are included in such Surplus Cash
Flow) all amounts which have been applied or are required to
be applied in prepayment of the Facilities in accordance with
Clauses 8.4 (Voluntary Prepayments of Facility A Loans) to 8.7
(Surplus Cash Flow) (inclusive) during that Calculation
Period;
(b) the amount (of any) required to be prepaid pursuant to Clause
8.7 (Surplus Cash Flow) from Surplus Cash Flow from the final
Accounting Quarter of the Calculation Period; and
(c) the total cost of all Permitted Investments made in that
Calculation Period (which for this purpose shall be the
aggregate of the amounts specified in paragraph (b) of the
definition of "Permitted Investment" in this Clause 1.1 in
respect of the relevant Permitted Investments).
-2-
"Available Commitment" means, in relation to a Facility, a Lender's
Commitment under that Facility minus:
(a) the Base Currency Amount of its participation in any
outstanding Loans under that Facility; and
(b) in relation to any proposed Utilisation, the Base Currency
Amount of its participation in any Loans that are due to be
made under that Facility on or before the proposed Utilisation
Date,
other than, in relation to Facility B only, that Lender's participation
in any Facility B Loans that are due to be repaid or prepaid on or
before the proposed Utilisation Date.
"Available Facility" means, in relation to a Facility, the aggregate
for the time being of each Lender's Available Commitment in respect of
that Facility.
"Base Currency" means dollars.
"Base Currency Amount" means, in relation to a Loan, the amount
specified in the Utilisation Request delivered by a Borrower for that
Loan (or, if the amount requested is not denominated in the Base
Currency, that amount converted into the Base Currency at the Agent's
Spot Rate of Exchange on the date which is three Business Days before
the Utilisation Date or, if later, on the date the Agent receives the
Utilisation Request) adjusted to reflect any repayment (other than, in
relation to Facility A, a repayment arising from a change of currency),
prepayment, consolidation or division of the Loan.
"Bilateral Bank" means any Lender or Lenders selected as a Bilateral
Bank by the Parent by notice to the Agent. Barclays Bank PLC is a
Bilateral Bank as at the date of this Agreement.
"Bilateral Commitment" means, in relation to a Bilateral Bank, the
maximum amount from time to time of the Bilateral Facilities made
available by such Bilateral Bank to the extent not cancelled.
"Bilateral Facility Documents" means those documents relating to or
evidencing the terms of any Bilateral Facility.
"Bilateral Facility" means any of the following facilities (or a
combination thereof) provided by a Bilateral Bank to any Borrower and
identified by such Bilateral Bank and such Borrower as a Bilateral
Facility for the purpose of this Agreement and confirmed by the Agent
in writing to such Bilateral Bank and such Borrower that such facility
is a Bilateral Facility for the purpose of the Finance Documents:
(a) overdraft facilities; and
(b) guarantee, bonding, documentary or demand letter of credit
facilities.
The Agent hereby confirms by its signature to this Agreement that the
following are Bilateral Facilities at the date of this Agreement:
(i) a $25,000,000 bonding facility made between Barclays Bank PLC
and AOC dated the date of this Agreement; and
-3-
(ii) a (pound)5,000,000 overdraft facility made between Barclays
Bank PLC and AOC and Octel Petroleum Specialities Limited
dated the date of this Agreement.
The Agent will confirm that any facility is a Bilateral Facility if it
is satisfied that such facility falls within (a) or (b) above and that
the provisions of paragraph (e) of Clause 22.12 (Indebtedness) are not
breached as a result of such facility being confirmed as a Bilateral
Facility.
"Bilateral Outstandings" means, at any time, the dollar equivalent of
the aggregate of the following amounts outstanding at such time under
any Bilateral Facility:
(a) all amounts of principal then outstanding under any overdraft
facilities determined on the same basis as that for
determination of any limit on such facilities imposed by the
terms thereof; and
(b) the maximum potential liability (excluding any cash cover)
under all guarantees, bonds and letters of credit issued by
the relevant Bilateral Bank which are then outstanding under
the relevant Bilateral Facility.
"Bilateral Utilisation" means an advance made or guarantee, bond or
letter of credit issued under a Bilateral Facility.
"Borrower" means an Original Borrower or an Additional Borrower unless
it has ceased to be a Borrower in accordance with Clause 25 (Changes to
the Obligors).
"Break Costs" means the amount (if any) by which:
(a) the interest (excluding the Margin and the Mandatory Cost)
which a Lender should have received for the period from the
date of receipt of all or any part of its participation in a
Loan or Unpaid Sum to the last day of the current Interest
Period in respect of that Loan or Unpaid Sum, had the
principal amount or Unpaid Sum received been paid on the last
day of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by
placing an amount equal to the principal amount or Unpaid Sum
received by it on deposit with a leading bank in the London
interbank market for a period starting on the Business Day
following receipt or recovery and ending on the last day of
the current Interest Period.
"Business" means the petroleum additives, petroleum specialties,
performance chemicals and related businesses carried on by AOC and
other members of the Group.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London , New York and:
(a) (in relation to any date for payment or purchase of a currency
other than euro) the principal financial centre of the country
of that currency; or
(b) (in relation to any date for payment or purchase of euro) any
TARGET Day.
-4-
"Calculation Period" means, in relation to an Accounting Quarter, the
12 month period ending immediately prior to the first day of that
Accounting Quarter.
"Capital Expenditure" means expenditure which should be treated as
capital expenditure in the audited consolidated accounts of the Group
in accordance with the Approved Accounting Principles.
"Capital Stock" of any person means any and all shares, interests,
rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such
person, including any Preferred Stock, but excluding any debt
securities convertible into such equity.
"Cash Collateral Account" means any account with the Security Agent (or
such other bank which is a Lender as the Obligors' Agent may designate
for the purposes of Clause 8.9 (Prepayments during Interest Periods))
opened or to be opened in the name of a Borrower into which sums are to
be paid in accordance with Clause 8.9 (Prepayments during Interest
Periods) (or in the provision of cash cover for relevant Bilateral
Utilisations) and held as security by the Security Agent for the
obligations of such Borrower under the Finance Documents and in
relation to which (if not already expressed to be subject to a fixed
charge or equivalent security under a Security Document) such Borrower
has executed and delivered to the Security Agent a Cash Collateral
Charge, together with such evidence of the execution of such Cash
Collateral Charge as the Security Agent shall reasonably require and in
relation to which the Security Agent has received a legal opinion
satisfactory to it (acting reasonably).
"Cash Collateral Charge" means a charge in such form as the Security
Agent shall reasonably require granted or to be granted to the Security
Agent in relation to a Cash Collateral Account.
"Cash Equivalents" means:
(a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United Kingdom Government or Swiss
Government or issued by any agency of either such government
and backed by the full faith and credit of the United Kingdom
or Switzerland (as applicable), in each case maturing within
one year from the date of acquisition thereof by a member of
the Group;
(b) commercial paper maturing no more than one year from the date
of creation thereof and, at the time of acquisition, having a
rating of at least A-1 from Standard & Poors' Corporation or
at least P-1 from Xxxxx'x Investors Service Inc.;
(c) certificates of deposit or bankers' acceptances maturing
within one year from the date of acquisition thereof issued by
any bank having a rating of at least A-1 from Standard &
Poors' Corporation or at least P-1 from Xxxxx'x Investors
Service Inc.;
(d) any investments in marketable direct obligations of the United
States government (or any agency thereof) or in obligations
fully and unconditionally guaranteed by the United States
government (or any agency thereof), in each case maturing
within one year from the date of acquisition thereof by a
member of the Group; and
-5-
(e) investments in money market funds which invest substantially
all their assets in securities of the types described in
paragraphs (a) to (d) above.
"Cashflow" has the meaning given to it in Clause 21.1 (Financial
definitions).
"Charged Property" means all of the assets of the Obligors which from
time to time are, or are expressed to be, the subject of the
Transaction Security.
"Closing Date" means the date of the first Utilisation under this
Agreement.
"Commitment" means a Facility A Commitment or Facility B Commitment.
"Compliance Certificate" means a certificate substantially in the form
set out in Schedule 8 (Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule 9
(LMA Form of Confidentiality Undertaking) or in any other form agreed
between the Parent and the Agent.
"Credit Participation" means, in relation to a Lender, the aggregate
of:
(a) its aggregate Commitments; and
(b) its aggregate Bilateral Commitments (if any); and
(c) the amount, if any, which would be payable to it under any
Hedging Agreement calculated in accordance with Section
6(e)(i)(3) of the relevant ISDA 1992 Master Agreement if the
date on which the calculation is made was deemed to be an
Early Termination Date for which the relevant Borrower party
to such Hedging Agreement is the Defaulting Party (and for
this purpose "Early Termination Date"and "Defaulting Party"
shall have the meanings given to them in the ISDA 1992 Master
Agreement) such amount to be certified by the relevant Lender
in accordance with the ISDA 1992 Master Agreement.
"Debentures" means each debenture entered into by each of the Original
Obligors which is incorporated in England in favour of the Security
Agent and dated after the date of this Agreement and on or before the
Closing Date.
"Default" means an Event of Default or any event or circumstance
specified in Clause 22.32 (Events of Default) which would (with the
expiry of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of any of
the foregoing) be an Event of Default.
"Default Rate" means the same rate at which default interest is payable
under Clause 9.3 (Default interest)
"Delegate" means any delegate, agent, attorney or co-trustee appointed
by the Security Agent.
-6-
"Dormant Company" means a member of the Group (other than AOC (Plant))
which:
(a) during the most recently ended financial year of the Group was
dormant within the meaning of section 250(3) of the Companies
Xxx 0000 (which, for the purposes of this definition, shall be
deemed to apply to any body corporate, wherever incorporated);
(b) has not entered into any significant accounting transaction
(for the purposes of that section) since the end of that
financial year; and
(c) does not own assets with an aggregate realisable value greater
than $50,000 (or its equivalent in other currencies) and has
no material liabilities.
"EBITDA" has the meaning ascribed to it in Clause 21 (Financial
Covenants).
"Employee Share Scheme" means any arrangement or scheme for the
remuneration or incentivisation of employees and/or officers of any
member of the Group by way of issue of stock of the Parent or the grant
of any rights to receive, acquire or sell stock of the Parent in the
future.
"English Share Pledge" means, the charge over shares in Octel
International Limited made by Octel Corp. in favour of the Security
Agent dated after the date of this Agreement and on or before the
Closing Date.
"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
man-made buildings, structures or enclosures.
"Environmental Approval" means any permit, licence, authorisation,
consent or other approval required under or in relation to
Environmental Laws.
"Environmental Laws" means all European Union, foreign, national,
federal, state or local statutes, orders, regulations or other law or
subordinate legislation or common law or regulatory codes of practice
concerning the Environment or health and safety which are in existence
now or in the future and are binding upon any member of the Group in
the relevant jurisdiction in which the relevant member of the Group has
been or is operating (including by the export of its products or its
waste thereto).
"Environmental Report" means the report referred to in paragraph (a) of
the definition of Report in this Clause 1.1.
"ERISA" means, at any date, the Employee Retirement Income Security Act
of 1974 of the United States of America as amended from time to time,
or any successor legislation thereto and the regulations promulgated
and rulings issued thereunder, all as the same may be in effect at such
date.
"ERISA Affiliate" means any person that for purposes of Title I and
Title IV of ERISA and Section 412 of the Internal Revenue Code would be
deemed at any relevant time to be a single employer with a U.S. Group
Member, pursuant to Section 414(b), (c), (m) or (o) of the Internal
Revenue Code or Section 4001 of ERISA.
-7-
"ERISA Event" means (a) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with
respect to any Pension Plan (excluding those for which the provision
for 30-day notice to the U.S. Pension Benefit Guaranty Corporation has
been waived by regulation); (b) the existence with respect to any
Pension Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Internal Revenue Code or Section 302 or ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the
Internal Revenue Code or Section 303(d) of ERISA of an application for
a waiver of the minimum funding standard with respect to any Pension
Plan; (d) the incurrence by any Obligor or any of its ERISA Affiliates
of any liability under Title IV of ERISA with respect to the
termination of any Pension Plan; (e) the receipt by any Obligor or any
of its ERISA Affiliates from the U.S. Pension Benefit Guaranty
Corporation (or any successor entity under ERISA) or a plan
administrator of any notice relating to an intention to terminate any
Pension Plan or Pension Plans or to appoint a trustee to administer any
Pension Plan; (f) the incurrence by any Obligor or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Pension Plan or Multiemployer Plan; (g) the receipt
by any Obligor or any of its ERISA Affiliates of any notice, or the
receipt by any Multiemployer Plan from such Obligor or any of its ERISA
Affiliates of any notice concerning the imposition of "Withdrawal
Liability" or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganisation, in each case within the
meaning of Title IV of ERISA; (h) the failure to make a required
contribution to any Pension Plan that would result in the imposition of
an encumbrance under Section 412 of the Internal Revenue Code or
Section 302 of ERISA; or (i) an engagement in a non-exempt prohibited
transaction within the meaning of Section 4975 of the Internal Revenue
Code or Section 406 of ERISA.
"Existing Bank Facilities" means:
(a) the $100,000,000 term loan agreement dated 3 June 1999 and
made between, among others, Octel Corp. as parent, The
Associated Octel Company Limited as a borrower and Barclays
Bank PLC as facility agent and security agent as amended and
restated by an amendment and consent agreement dated 22
December 2000;
(b) the $280,000,000 term loan and $20,000,000 revolving credit
facilities agreement dated 27 April 1998 and made between,
among others, Octel Corp. as parent and Barclays Bank PLC as
facility agent and security agent as amended pursuant to
amendment agreements dated 24 June 1998, 3 June 1999, 22
December 2000 and 13 August 2001;
(c) the US$20,000,000 bond, guarantee, indemnity and letter of
credit facility provided by Barclays Bank PLC to AOC pursuant
to a facility letter dated 27 April 1998.
"Event of Default" means any event or circumstance specified as such in
Clause 22.32 (Events of Default).
"Facility" means Facility A or Facility B.
"Facility A" means the term loan facility made available under this
Agreement as described in paragraph (a) of Clause 2 (The Facilities).
-8-
"Facility A Commitment" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility A
Commitment" in Part II of Schedule 1 (The Original Parties)
and the amount of any other Facility A Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility A Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility A Loan" means a loan made or to be made under Facility A or
the principal amount outstanding for the time being of that loan.
"Facility A Repayment Date" means each of the dates specified in Clause
7.1 (Repayment of Facility A Loans) under the column headed Facility A
Repayment Dates provided that if any such date is not a Business Day
then the relevant Facility A Repayment Date shall be the Business Day
immediately preceding such date.
"Facility B" means the revolving loan facility made available under
this Agreement as described in paragraph (b) of Clause 2 (The
Facilities).
"Facility B Commitment" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility B
Commitment" in Part II of Schedule 1 (The Original Parties)
and the amount of any other Facility B Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility B Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility B Loan" means a loan made or to be made under Facility B or
the principal amount outstanding for the time being of that loan.
"Facility Office" means the office or offices notified by a Lender to
the Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
"Fee Letter" means any letter or letters dated on or about the date of
this Agreement between the Mandated Lead Arranger and AOC (or the Agent
or Security Agent and AOC) setting out any of the fees referred to in
Clause 12 (Fees).
"Finance Document" means this Agreement, any Fee Letter, the
Syndication Letter, any Accession Letter, any Security Document, any
Hedging Agreement, any Bilateral Facility Document, the Hedging
Strategy Letter and any other document designated as such by the Agent
and the Parent or the Agent and the Obligors' Agent.
-9-
"Finance Parties" means the Agent, the Security Agent, the Arranger,
each Lender, each Hedging Bank and the Bilateral Bank and "Finance
Party" means any of them.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(d) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with US GAAP, be
treated as a finance or capital lease;
(e) receivables sold or discounted (other than any receivables to
the extent they are sold or discounted on a non-recourse
basis);
(f) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial
effect of a borrowing;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken
into account);
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or
any other instrument issued by a bank or financial
institution;
(i) any amount raised by the issue of redeemable shares if the
shares are redeemable at the option of their holder or if the
relevant member of the Group is otherwise obliged, or may on
the occurrence of any event or circumstance become otherwise
obliged, to redeem such shares on or before the date falling
60 Months after the date of this Agreement;
(j) any amount of any liability under an advance or deferred
purchase agreement if one of the primary reasons behind the
entry into this agreement is to raise finance or if the
deferred payment is to be paid more than 180 days after the
date of the acquisition or supply (as appropriate) of the
relevant asset or service provided under such agreement;
(k) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a)
to (j) above;
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.
"Group" means the Parent and its Subsidiaries for the time being.
"Group Company" means a member of the Group.
-10-
"Group Structure Chart" means a group structure chart, in the agreed
form, showing as at the date of this Agreement:
(a) all members of the Group;
(b) any person in which any Group member has (or members of the
Group together have) an interest of more than 25% in the
issued share capital or equivalent ownership interest of such
person;
(c) the jurisdiction of incorporation of each person within (a)
and (b) above; and
(d) that all members of the Group are wholly-owned Subsidiaries of
the Parent or, if any members of the Group are not
wholly-owned Subsidiaries of the Parent, specifying the
percentage shareholding or other economic interest which the
Parent (directly or indirectly) holds in such members of the
Group.
"Guarantor" means an Original Guarantor or an Additional Guarantor,
unless it has ceased to be a Guarantor in accordance with Clause 25
(Changes to the Obligors).
"Hedging Agreements" means any hedging agreement entered by a Borrower
with a Lender pursuant to paragraph (a) of Clause 22.9 (Hedging
Arrangements) and which complies with the provisions of paragraph
(b)(i) of such Clause 22.9.
"Hedging Bank" means any Lender in its capacity as provider of hedging
under a Hedging Agreement.
"Hedging Strategy Letter" means the letter in the agreed form from the
Obligors' Agent to the Agent setting out the hedging strategy.
"Holding Company" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"Identified Target" means all (or substantially all) of the shares in,
or all (or substantially all) of the assets of, Leuna Polymer GmbH.
"Indebtedness" means all money and liabilities now or hereafter due,
owing or incurred to the Finance Parties (or any of them) by the
Obligors under the Finance Documents (or any of them) (including, for
the avoidance of doubt, any increase in the amount of the facilities
provided under any of them) in any currency or currencies, whether
present or future, actual or contingent, whether incurred solely or
jointly with any other person and whether as principal, guarantor or
surety, together with all interest accruing thereon and all costs,
charges and expenses incurred in connection therewith.
"Indebtedness for Borrowed Money" means Financial Indebtedness save for
any indebtedness for or in respect of paragraphs (g) or (h) of the
definition of "Financial Indebtedness" in this Clause 1.1.
"Information Memorandum" means the document in the form approved by the
Parent concerning the Group which, at the Parent's request and on its
behalf, is to be prepared in relation to this transaction and
distributed by the Mandated Lead Arranger to selected financial
institutions prior to the Syndication Date in connection with
syndication.
-11-
"Intellectual Property" means the 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, together with the benefit
of all agreements entered into or the benefit of which is enjoyed by
any member of the Group relating to the use or exploitation of any of
the aforementioned rights.
"Intellectual Property Rights" means all patents and patent
applications, trade and service marks and trade and/or 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.
"Interest Period" means, in relation to a Loan, each period determined
in accordance with Clause 10 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 9.3
(Default interest).
"Internal Revenue Code" means, at any date, the Internal Revenue Code
of 1986 of the United States of America or any successor legislation
thereto as amended from time to time, and the regulations promulgated
and rules issued thereunder, all as the same may be in effect at such
date.
"Key Properties" means:
(a) The land and buildings at Oil Sites Road, Ellesmere Port,
Cheshire comprising:-
(i) the freehold land abutting The Manchester Ship Canal
registered at H M Land Registry with freehold title
absolute under title number CH420032; and
(ii) the freehold land to the north of Oil Sites Road
registered at H M Land Registry with freehold title
absolute under title number CH363860; and
(iii) the freehold land on the North side of Oil Sites
Road, Ellesmere Port, Cheshire registered at H M Land
Registry with title absolute under title number
CH425646; and
(iv) the leasehold property being the Armco Barriers, Oil
Sites Road, Ellesmere Port registered at H M Land
Registry with good leasehold title under title number
CH403291; and
(v) land abutting the Manchester Ship Canal demised by a
lease dated 14 October 1998 and made between The
Manchester Ship Canal Company (1) and Associated
Octel Company (Plant) Limited (2) and registered at
HM Land Registry under Title Number CH431481; and
(b) The land and buildings at Watling Street, Bletchley,
Buckinghamshire being the remaining land registered at H M
Land Registry with freehold title absolute under title number
BM233973.
"Key Property Debenture" means the Debenture entered into by AOC
(Plant) creating Security over, inter alia, the Key Properties.
-12-
"Legal Reservations" means (a) the principle that equitable remedies
are remedies which may be granted or refused at the discretion of the
court, (b) the limitation on enforcement as a result of laws relating
to bankruptcy, insolvency, liquidation, reorganisation, court schemes,
moratoria, administration and other laws generally affecting the rights
of creditors generally, (c) the principle that certain types of
security expressed to take effect as fixed security may, as a result of
the ability of an Obligor to deal with the assets subject to that
security on terms permitted under the Finance Documents, take effect as
floating security, (d) the time-barring of claims under the Limitation
Acts, (e) rules against penalties and similar principles and (f) any
other qualifications or reservations as to matters of law only
contained in the legal opinions referred to in paragraph 2 of Part I of
Schedule 2 (Conditions Precedent) or any other written legal opinion
obtained by the Agent or Security Agent from its legal advisers under
the terms of the Finance Documents.
"Lender" means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Party in
accordance with Clause 24 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"Leverage Ratio" means, in relation to any period, the ratio of Total
Net Debt as at the last day of that period to EBITDA for that period,
each as determined in accordance with Clause 21 (Financial Covenants).
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at
its request quoted by the Reference Banks to leading banks in
the London interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable to
the Interest Period for that Loan.
"Loan" means a Facility A Loan or a Facility B Loan.
"LMA" means the Loan Market Association.
"Majority Creditors" means, at any time, a Lender or Lenders whose
Credit Participations at that time aggregate more than 662/3% of the
total Credit Participations at that time.
"Majority Lenders" means, at any time:
(a) a Lender or Lenders whose Commitments aggregate more than
662/3% of the Total Commitments at that time;
-13-
(b) or, if the Total Commitments have been reduced to zero, a
Lender or Lenders whose Commitments aggregated more than
662/3% of the Total Commitments immediately prior to the
reduction).
"Management" means, at any time, the chief executive officer and the
chief financial officer of the Parent at that time.
"Mandatory Cost" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost Formulae).
"Margin" means 2.625 per cent. per annum, but if:
(a) no Event of Default has occurred and is continuing; and
(b) the Leverage Ratio in respect of the most recently completed
Relevant Period falls in one of the ranges set out in the
table below,
then, for so long as the Leverage Ratio continues to fall in such range
and no Event of Default is continuing, the Margin shall be the
percentage rate per annum set out below opposite such range:
Leverage Ratio Margin
(% per annum)
equal to or less than 2.25:1 and greater than 2:1 2.375
equal to or less than 2:1 and greater than 1.50:1 2
equal to or less than 1.50:1 and greater than 1:1 1.625
equal to or less than 1:1 1.25
(and any reduction or increase in the Margin shall take effect 5
Business Days after receipt by the Agent of the Compliance Certificate
for that Relevant Period pursuant to Clause 20.2 (Compliance
Certificate)) provided that notwithstanding the above the Margin shall
be 2.625 per cent. per annum in any event from the date hereof until 5
Business Days after receipt by the Agent of the Compliance Certificate
for the Relevant Period ending 31 March 2002 pursuant to Clause 20.2
(Compliance Certificate).
"Margin Stock" means margin stock or "margin security" within the
meaning of Regulations T, U and X.
"Material Adverse Effect" means any effect, event or matter:
(a) which is, or is reasonably likely to be, materially adverse
to:
(i) the business, assets, operations or financial
condition of the Group (taken as a whole) (after
taking account of any anticipated decline in the
Business contemplated in the Information Memorandum
and/or the Agreed Financial Projections); or
-14-
(ii) the ability of any Obligor to perform in a timely
manner any of its material obligations (including
without limitation its payment obligations and its
obligations under Clause 21 (Financial Covenants))
under any of the Finance Documents; or
(b) which results in any of the rights or obligations arising
under the Finance Documents not being legal, valid and binding
on and (subject to the Legal Reservations) enforceable against
any party thereto (other than a Finance Party) and/or, in the
case of any Security Documents, not providing to the Security
Agent (on behalf of itself and the other Finance Parties)
perfected enforceable Security (subject to the Legal
Reservations) over the assets expressed to be secured under
the Security Documents, in each case to an extent or in a
manner reasonably considered by the Majority Lenders to be
materially adverse to their interests under the Finance
Documents.
"Material Group Company" means:
(a) each Obligor;
(b) any other Subsidiary of the Parent:
(i) whose gross assets account for more than five per
cent of the consolidated gross assets of the Group;
and/or
(ii) whose EBITDA ("Subsidiary EBITDA") accounts for more
than five per cent of the EBITDA of the Group,
and for this purpose the calculation of Subsidiary EBITDA and
gross assets shall:
(i) be made in accordance with US GAAP;
(ii) in the case of a company which itself has
Subsidiaries, be made by using the consolidated
Subsidiary EBITDA or consolidated gross assets, as
the case may be, of it and its Subsidiaries; and
(iii) be determined by reference to:
(1) the latest accounts of the relevant company
used for the purposes of the then latest
audited annual financial statements of the
Group delivered by the Parent under Clause
20.1 (Financial Statements); or
(2) if the relevant company becomes a Subsidiary
of the Parent after the end of the financial
year to which those latest audited annual
financial statements of the Group relate,
the latest accounts of that Subsidiary; and
(iv) Subsidiary EBITDA shall be calculated on the same
basis as EBITDA in Clause 21.1 (Financial
definitions) but adjusted so that references to the
Group are references to the relevant Subsidiary and
its Subsidiaries; or
(c) any Subsidiary of the Parent to which has been transferred
(whether by one transaction or a series of transactions,
related or not) the whole or substantially the
-15-
whole of the assets of a Subsidiary of the Parent which
immediately prior to those transactions was a Material Group
Company; or
(d) any Subsidiary of Parent which is a Holding Company of a
Relevant Holding Company.
A report by the auditors of the Parent that a Subsidiary is or is not a
Material Group Company shall, in the absence of manifest error, be
conclusive and binding on all Parties.
"Material Insurances" means all insurance policies of the Group
relating to property damage and business interruption.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
3(37) of ERISA contributed to for any employees of a U.S. Group Company
or any ERISA Affiliate.
"Month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month,
except that:
(a) (subject to paragraph (c) below) if the numerically
corresponding day is not a Business Day, that period shall end
on the next Business Day in that calendar month in which that
period is to end if there is one, or if there is not, on the
immediately preceding Business Day;
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest
Period is to end.
The above rules will only apply to the last Month of any period.
"Obligors" means each Borrower, each Guarantor, the Obligors' Agent and
each other member of the Group which has undertaken (or in the future
undertakes) obligations to any Finance Party pursuant to any Finance
Document and "Obligor" means any of them.
"Obligors' Agent" means AOC appointed to act on behalf of each Obligor
in relation to the Finance Documents pursuant to Clause 36 (Obligors'
Agent).
"Octel America" means Octel America Inc., a corporation organised under
the laws of the State of Delaware, U.S.A.
"Octel Developments" means Octel Developments PLC (a company
incorporated in England with registered number 3516662).
"Octel Petroleum" means Octel Petroleum Specialities Limited (formerly
known as Octel Resources Limited) (a company incorporated in England
with registered number 3316334).
"Octel Trading" means Octel Trading Limited (a company incorporated in
England with registered number 3516648).
-16-
"Octel Trading Group" means Octel Trading and its Subsidiaries.
"Operating Budget" means, in relation to each financial year of the
Parent, a budget comprising projected balance sheet, projected profit
and loss account and projected cashflow statement (including details of
projected Capital Expenditure) for the Group for that financial year
delivered to the Agent pursuant to Clause 20.4 (Operating Budget).
"Operating Properties" means all real property (including, without
limitation, all buildings, fixtures or other improvements located
thereon) now, hereafter or heretofore owned, leased, operated or used
by any member of the Group.
"Optional Currency" means a currency (other than the Base Currency)
which complies with the conditions set out in Clause 4.3 (Conditions
relating to Optional Currencies).
"Original Financial Statements" means:
(a) in relation to the Parent, the audited consolidated financial
statements of the Group for the financial year ended 31
December 2000; and
(b) in relation to each Original Obligor other than the Parent,
its audited financial statements for its financial year ended
31 December 2000.
"Original Obligor" means an Original Borrower or an Original Guarantor.
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Union relating to
European Monetary Union.
"Part Owned Entity" means any limited liability company which is not a
wholly-owned Subsidiary of any Relevant Holding Company and in relation
to which a Relevant Holding Company directly or indirectly owns in
excess of 25 per cent. of the ordinary share capital.
"Party" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees.
"Pension Plan" means any employee benefit plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of
ERISA or Section 412 of the Internal Revenue Code or Section 302 or
ERISA, and in respect of which any U.S. Obligor or any ERISA Affiliate
is (or, if such plan were terminated, would under Section 4069 of ERISA
be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Permitted Guarantee" has the meaning ascribed to it in Clause 22.13
(Guarantees).
"Permitted Indebtedness" has the meaning ascribed to it in Clause 22.12
(Indebtedness).
"Permitted Investment" means any investment (whether by way of loan,
subscription of share capital, incurrence of any liability or
otherwise) by any member of the Group in a Part Owned Entity, provided
that:
(a) such investment is in a business similar to, connected with,
or related to the development of the Business and if made by a
member of the Relevant Group is made in a Part Owned Entity of
that Relevant Group; and
-17-
(b) after the date of this Agreement, the aggregate (without
double-counting) of:
(i) any amount advanced, lent, contributed or subscribed
for, or otherwise invested in, such Part Owned Entity
by any member of the Group during an Accounting
Quarter; and
(ii) the market value of any asset transferred (other than
by way of a transfer permitted under this Agreement)
or contributed to such Part Owned Entity by any
member of the Group during an Accounting Quarter; and
(iii) the maximum liability under any guarantee given by
any member of the Group during an Accounting Quarter
in respect of any Financial Indebtedness incurred
(whether by way of guarantee or otherwise) by such
Part Owned Entity,
shall not exceed the Unutilised Available Amount in respect of
that Accounting Quarter at that time.
"Permitted Security " means any Security falling within the provisions
of paragraph (b) of Clause 22.3 (Negative Pledge).
"Preferred Stock", as applied to the Capital Stock of any person, means
Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such person, over shares of Capital Stock of any other
class of such person.
"Prochem Acquisition" means the acquisition of all of the shares in
Prochem Chemicals Inc. by H. Performance Products Inc. (a Subsidiary of
Octel America which it is anticipated will change its name to Octel
Performance Chemicals Inc.) which completed on 15 August 2001.
"Prochem Refinancing Facility B Utilisation" means a Utilisation of
Facility B the proceeds of which are to be applied for the purposes
specified in paragraph (b)(iv) of Clause 3.1 (Purpose).
"Qualifying Lender" has the meaning given to it in Clause 13 (Tax
gross-up and indemnities).
"Quarter Date" has the meaning given to it in Clause 21.1 (Financial
definitions).
"Quotation Day" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is domestic sterling) the first day of that
period;
(b) (if the currency is euro) two TARGET Days before the first day
of that period; or
(c) (for any other currency) two Business Days before the first
day of that period,
unless market practice differs in the London Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the
London Interbank Market (and if quotations would normally be given by
leading banks in the London Interbank Market on more than one day, the
Quotation Day will be the last of those days).
-18-
"Receiver" means a receiver or receiver and manager or administrative
receiver of the whole or any part of the Charged Property.
"Reference Banks" means the principal London offices of Barclays Bank
PLC, Bayerische Landesbank Girozentrale, London Branch and Lloyds TSB
Bank plc.
"Regulations T, U and X" means, respectively, Regulations T, U and X of
the Board of Governors of the Federal Reserve System of the United
States (or any successor) as now and from time to time in effect.
"Relevant Acquisition" means an acquisition by a member of the Group of
the Identified Target in respect of which the Agent has received in
form and substance satisfactory to it the documents and evidence
referred to in Part III of Schedule 2 (Conditions Precedent) relating
to such acquisition.
"Relevant Acquisition Utilisation" means, a Utilisation of Facility B
the proceeds of which are to be applied for the purposes specified in
paragraph (b)(iii) of Clause 3.1 (Purpose).
"Relevant Groups" means each of the following:
(a) Octel Trading and its Subsidiaries;
(b) Octel Petroleum and its Subsidiaries;
(c) Octel America and its Subsidiaries,
(each of (a), (b) and (c) being individually a "Relevant
Group").
"Relevant Holding Companies" means each of the following:
(a) Octel Trading;
(b) Octel Petroleum;
(c) Octel America,
(each being a "Relevant Holding Company")
"Relevant GAAP " means, in relation to a company, accounting principles
and practices generally accepted from time to time in such company's
jurisdiction of incorporation.
"Relevant Period" has the meaning ascribed it in Clause 21 (Financial
Covenants).
"Reliance Letter" means any letter in the agreed form from a provider
of a Report or an Additional Report and which is addressed to the
Security Agent (on behalf of the Finance Parties) and pursuant to which
the provider of the Report agrees that the Finance Parties are entitled
to rely on such Report subject to and on the terms set out therein.
"Repayment Instalment" means each instalment for repayment of the
Facility A Loans referred to in Clause 7.1 (Repayment of Facility A
Loans).
"Repeating Representations" means each of the representations set out
in Clause 19 (Representations) (other than Clause 19.21 (Information
Memorandum)) except that the
-19-
representations set out in Clause 19.6 (Governing law and enforcement),
Clause 19.7 (No filing or stamp taxes), Clause 19.8 (No Default),
paragraph (a) of Clause 19.9 (Security interests), Clause 19.10
(Reports), Clause 19.12 (Financial statements), paragraph (a) of Clause
19.13 (Material Adverse Changes), Clause 19.15 (No proceedings pending
or threatened), Clause 19.20 (Agreed Financial Projections) are only
Repeating Representations for the purposes of the first Utilisation
Request and the first day of the first Interest Period.
"Reports" means each of the following:
(a) the environmental report, in the agreed form, prepared by
Dames & Xxxxx in relation to the Business; and
(b) the market report, in the agreed form, prepared by Chem
Systems in relation to the Business.
"Resignation Letter" means a letter substantially in the form set out
in Schedule 7 (Form of Resignation Letter).
"Rollover Loan" means one or more Facility B Loans:
(a) made or to be made on the same day that a maturing Facility B
Loan is due to be repaid;
(b) the aggregate amount of which is equal to or less than the
maturing Facility B Loan;
(c) in the same currency as the maturing Facility B Loan (unless
it arose as a result of the operation of Clause 6.2
(Unavailability of a currency)); and
(d) made or to be made to the same Borrower for the purpose of
refinancing a maturing Facility B Loan.
"Screen Rate" means in relation to LIBOR, the British Bankers'
Association Interest Settlement Rate for the relevant currency and
period displayed on the appropriate page of the Telerate screen. If the
agreed page is replaced or service ceases to be available, the Agent
may specify another page or service displaying the appropriate rate
after consultation with the Obligors' Agent and the Lenders.
"Security" means a mortgage, charge, pledge, lien, hypothecation, right
of set-off, security trust, assignment by way of security, reservation
of title or other security interest securing any obligation of any
person or any other agreement or arrangement (including, without
limitation, a sale and repurchase agreement) having the commercial
effect of conferring security.
"Secured Obligations" means all obligations at any time due, owing or
incurred by any Obligor to any Finance Party under the Finance
Documents, whether present or future, actual or contingent (and whether
incurred solely or jointly and whether as principal or surety or in
some other capacity).
"Security Documents" means:
(a) the Debentures;
(b) the US Security Documents;
-20-
(c) the Swiss Assignment Agreement;
(d) the Swiss Share Pledge; and
(e) the English Share Pledge,
together with any other document entered into by any member of the
Group creating or expressed to create Security over all or any part of
its assets in respect of the obligations of any of the Obligors under
any of the Finance Documents.
"Selection Notice" means a notice substantially in the form set out in
Part II of Schedule 3 (Requests) given in accordance with Clause 10
(Interest Periods) in relation to Facility A.
"Senior Notes" means the 10% senior notes due 2006 issued by Octel
Developments plc (and guaranteed by the Parent) pursuant to an
indenture dated as of 1 May 1998.
"Specified Time" means a time determined in accordance with Schedule 10
(Timetables).
"Subsidiary" means:
(a) a subsidiary within the meaning of section 736 of the
Companies Xxx 0000; or
(b) a subsidiary undertaking within the meaning of Section 258 of
the Companies Xxx 0000; or
(c) whether or not falling within paragraphs (a) or (b) above, in
relation to any company or corporation, a company or
corporation:
(i) which is controlled, directly or indirectly, by the
first mentioned company or corporation;
(ii) more than half the issued share capital of which is
beneficially owned, directly or indirectly by the
first mentioned company or corporation; or
(iii) which is a Subsidiary of another Subsidiary of the
first mentioned company or corporation,
and for this purpose, a company or corporation shall be treated as
being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its
board of directors or equivalent body.
"Surplus Cash Flow" means, in respect of any Accounting Quarter of the
Parent, Cashflow less Consolidated Net Finance Charges of the Group for
that Accounting Quarter (and, for the purpose of this definition, the
relevant testing period for calculating Cashflow and Consolidated Net
Finance Charges shall be that Accounting Quarter).
"Swiss Assignment Agreement" means the assignment agreement entered
into by Alcor Chemie Vertriebs GmbH in favour of the Security Agent
dated after the date of this Agreement and on or before the Closing
Date.
"Swiss Share Pledge" means the share pledge agreement dated after the
date of this Agreement and on or before the Closing Date between
OBOAdler Company Limited as
-21-
pledgor and the Security Agent pursuant to which the shares in Alcor
Chemie Vertriebs GmbH are pledged by way of security to the Security
Agent.
"Syndication Date" means the earlier of:
(a) the day which is 6 Months after the date of this Agreement;
and
(b) the day specified by the Mandated Lead Arranger to the
Obligors' Agent as the day on which primary syndication of the
Facilities is completed.
"Syndication Letter" means the letter headed "Syndication Letter" dated
on or about the date of this Agreement and made between the Mandated
Lead Arranger, the Original Lenders and Octel Corp and the Obligors'
Agent.
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET Day" means any day on which TARGET is open for the settlement
of payments in euro.
"Tax" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
"Taxes Act" means the Income and Corporation Taxes Xxx 0000.
"Termination Date" means the day falling 36 Months after the date of
this Agreement.
"Total Commitments" means the aggregate of the Total Facility A
Commitments and the Total Facility B Commitments, being $250,000,000 at
the date of this Agreement.
"Total Facility A Commitments" means the aggregate of the Facility A
Commitments, being $210,000,000 at the date of this Agreement.
"Total Net Debt" has the meaning ascribed to it in Clause 21 (Financial
Covenants).
"Total Facility B Commitments" means the aggregate of the Facility B
Commitments, being $40,000,000 at the date of this Agreement.
"Transaction Security" means the Security created or expressed to be
created under the Security Documents.
"Transfer Certificate" means a certificate substantially in one of the
forms set out in Schedule 5 (Form of Transfer Certificates) or any
other form agreed between the Agent and the Obligors' Agent.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer
Certificate; and
(b) the date on which the Agent executes the Transfer Certificate.
-22-
"Trigger Date" means the date on which the Agent has confirmed to the
Lenders and the Obligors' Agent that the following conditions have been
satisfied:
(a) the Total Commitments have been permanently reduced by at
least 50% of the Total Commitments as at the date of this
Agreement; and
(b) the Leverage Ratio for the most recently ended Relevant Period
is no greater than 1.75:1 (tested in accordance with Clause 21
(Financial Covenants),
(and the Agent will as soon as reasonably practicable after being
requested to do so by the Obligors' Agent when the Obligors' Agent
believes that the above conditions have been satisfied notify it and
the Lenders when the above conditions have been satisfied for these
purposes).
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor
under the Finance Documents.
"UK GAAP " means accounting principles and practices generally accepted
from time to time in the United Kingdom.
"Unutilised Available Amount" means, in respect of any Accounting
Quarter, the Available Amount for that Accounting Quarter less the
total cost of all Permitted Investments made in that Accounting Quarter
(which for this purpose shall be the aggregate of the amounts specified
in paragraph (b) of the definition of "Permitted Investment" in this
Clause 1.1 in respect of the relevant Permitted Investments).
"US" or "USA" means the United States of America.
"US GAAP" means accounting principles and practices generally accepted
from time to time in the US.
"U.S. Group Member" means a member of the Group incorporated in the
U.S.
"U.S. Guarantor" means a Guarantor incorporated in the U.S.
"U.S. Obligor" means an Obligor incorporated in the U.S.
"US Security Documents" means each security agreement and pledge
agreement governed by the laws of a State of the USA entered into by
each of the Original Obligors which is incorporated in the US in favour
of the Security Agent and dated after the date of this Agreement and on
or before the Closing Date.
"Utilisation" means a utilisation of a Facility.
"Utilisation Date" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"Utilisation Request" means a notice substantially in the form set out
in Part I of Schedule 3 (Requests).
"VAT" means value added tax as provided for in the Value Added Tax Xxx
0000 and any other tax of a similar nature.
-23-
"Voting Stock" of a person means all classes of Capital Stock issued by
a corporation or equivalent interests in any other person (including
partnership interests) of such person then outstanding, the holders of
which are normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, trustees
or persons performing similar functions thereof, even if the right to
vote has been suspended by the occurrence of such a contingency.
1.2 CONSTRUCTION
(a) Unless a contrary indication appears a reference in this
Agreement or the Key Property Debenture to:
(i) "assets" includes present and future properties,
revenues and rights of every description;
(ii) a document being in the "agreed form" means in a form
agreed between the Obligors' Agent and the Agent;
(iii) a "Finance Document" or any other agreement or
instrument is a reference to that Finance Document or
other agreement or instrument as amended, restated or
novated;
(iv) "indebtedness" includes any obligation (whether
incurred as principal or as surety) for the payment
or repayment of money, whether present or future,
actual or contingent;
(v) a "person" includes any person, firm, company,
corporation, government, state or agency of a state
or any association, trust or partnership (whether or
not having separate legal personality) of two or more
of the foregoing;
(vi) a "regulation" includes any regulation, rule,
official directive, request or guideline (whether or
not having the force of law) of any governmental,
intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other
authority or organisation;
(vii) a provision of law is a reference to that provision
as amended or re-enacted; and
(viii) a time of day is a reference to London time.
(b) Section, Clause and Schedule headings are for ease of
reference only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(d) A Default (other than an Event of Default) is "continuing" if
it has not been remedied or waived and an Event of Default is
"continuing" if it has not been remedied or waived.
-24-
1.3 CURRENCY SYMBOLS AND DEFINITIONS
"$" and "dollars" denote lawful currency of the United States of
America, "(pound)" and "sterling" denotes lawful currency of the United
Kingdom and "EUR" and "euro" means the single currency unit of the
Participating Member States.
1.4 THIRD PARTY RIGHTS
(a) Except as provided in a Finance Document, the terms of a
Finance Document may be enforced only by a party to it and the
operation of the Contracts (Rights of Third Parties) Xxx 0000
is excluded.
(b) Notwithstanding any provision of any Finance Document, the
Parties to a Finance Document do not require the consent of
any third party to rescind or vary any Finance Document at any
time.
1.5 BARCLAYS CAPITAL
References in the Finance Documents to "Barclays Capital" are
references to Barclays Capital, the investment banking division of
Barclays Bank PLC.
-25-
SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement, the Lenders make available:
(a) to Octel Developments a multicurrency term loan facility in an
aggregate amount equal to the Total Facility A Commitments;
and
(b) to the Borrowers a multicurrency revolving loan facility in an
aggregate amount equal to the Total Facility B Commitments.
2.2 BILATERAL FACILITIES
(a) Each Bilateral Bank makes available to the relevant Borrowers
the Bilateral Facilities applicable to that Bilateral Bank on
the terms set out in the relevant Bilateral Facility
Documents.
(b) Each Bilateral Bank and the relevant Borrower shall promptly
notify the Agent of:
(i) the establishment of any Bilateral Facility
applicable to it; and
(ii) such information relating to the operation of any
Bilateral Facility applicable to it (including,
without limitation, the Bilateral Outstandings and
Bilateral Commitments thereunder) as the Agent may
from time to time request and each Borrower hereby
consents to all such information being released to
the Agent and each Lender.
(c) In case of any inconsistency between any term of any Bilateral
Facility and this Agreement, the terms of this Agreement shall
prevail.
(d) Each Bilateral Bank and each relevant Borrower acknowledge the
terms of Clause 22.10 (Bilateral Facilities) and paragraph (e)
of Clause 22.12 (Indebtedness).
2.3 LENDERS' RIGHTS AND OBLIGATIONS
(a) The obligations of each Lender under the Finance Documents are
several. Failure by a Lender to perform its obligations under
the Finance Documents does not affect the obligations of any
other Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party
under the Finance Documents.
(b) The rights of each Lender under or in connection with the
Finance Documents are separate and independent rights and any
debt arising under the Finance Documents to a Lender from an
Obligor shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
-26-
3. PURPOSE
3.1 PURPOSE
(a) Octel Developments shall apply all amounts borrowed by it
under Facility A towards refinancing the Existing Bank
Facilities and the Senior Notes and all broken funding,
make-whole amounts, accrued interest and other costs and
expenses relating to such refinancing.
(b) Each Borrower shall apply all amounts borrowed by it under
Facility B:
(i) towards general corporate purposes of the Group;
(ii) towards refinancing the revolving facility under the
Existing Bank Facilities and all broken funding,
accrued interest and other costs and expenses
relating to such refinancing;
(iii) towards the Relevant Acquisition (including
refinancing any indebtedness of the relevant acquired
company or business or any Subsidiary thereof) and
costs, expenses and fees related to such Relevant
Acquisition; or
(iv) to refinance indebtedness incurred by the Group in
connection with the Prochem Acquisition.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
(a) No Borrower may deliver a Utilisation Request unless the Agent
has received all of the documents and other evidence listed in
Part I of Schedule 2 (Conditions Precedent) in form and
substance satisfactory to the Agent. The Agent shall notify
the Obligors' Agent and the Lenders promptly upon being so
satisfied.
(b) In addition, no Borrower may deliver a Utilisation Request in
respect of any Utilisation of Facility B if that Utilisation
is to be a Relevant Acquisition Utilisation or a Prochem
Refinancing Facility B Utilisation unless:
(i) (if that Utilisation is to be a Relevant Acquisition
Utilisation) the Agent has received in respect of the
acquisition of the Identified Target to be financed
by that Utilisation all of the documents and other
evidence listed in Part III of Schedule 2 (Conditions
Precedent) relating to such acquisition in form and
substance satisfactory to the Agent (and the Agent
shall notify the Obligors' Agent and the Lenders
promptly upon being so satisfied); or
(ii) (if that Utilisation is to be a Prochem Refinancing
Facility B Utilisation) the Utilisation Request
relating to such Utilisation confirms that the
Utilisation is to be used to repay indebtedness
incurred by the Group in connection with the Prochem
Acquisition.
-27-
4.2 FURTHER CONDITIONS PRECEDENT
(a) The Lenders will only be obliged to comply with Clause 5.4
(Lenders' participation) if on the date of the Utilisation
Request and on the proposed Utilisation Date:
(i) in the case of a Rollover Loan, no Event of Default
is continuing or would result from the proposed Loan
and, in the case of any other Loan, no Default is
continuing or would result from the proposed Loan;
and
(ii) the Repeating Representations to be made by each
Obligor are true in all material respects.
(b) The Lenders will only be obliged to comply with Clause 6.3
(Change of currency) if, on the first day of an Interest
Period, no Default is continuing or would result from the
change of currency and the Repeating Representations to be
made by each Obligor are true in all material respects.
4.3 CONDITIONS RELATING TO OPTIONAL CURRENCIES
(a) A currency will constitute an Optional Currency in relation to
a Loan if it is sterling or euro or (in the case of any other
currency) if:
(i) it is readily available in the amount required and
freely convertible into the Base Currency in the
London interbank market on the Quotation Day and the
Utilisation Date for that Loan; and
(ii) it has been approved by the Agent (acting on the
instructions of all the Lenders) on or prior to
receipt by the Agent of the relevant Utilisation
Request or Selection Notice for that Loan.
(b) If the Agent has received a written request from the Obligors'
Agent for a currency to be approved under paragraph (a)(ii)
above, the Agent will confirm to the Obligors' Agent by the
Specified Time:
(i) whether or not the Lenders have granted their
approval; and
(ii) if approval has been granted, the minimum amount
(and, if required, integral multiples) for any
subsequent Utilisation in that currency.
(c) If the euro constitutes an Optional Currency at any time, a
Loan will only be made available in the euro unit.
4.4 MAXIMUM NUMBER OF LOANS AND OPTIONAL CURRENCIES
(a) A Borrower may not deliver a Utilisation Request if as a
result of the proposed Utilisation:
(i) more than eight Loans would be outstanding; or
(ii) the Loans would be outstanding in more than three
currencies.
(b) A Borrower may not request that a Facility A Loan be divided
if, as a result of the proposed division, more than eight
Loans would be outstanding.
-28-
(c) Any Loan made by a single Lender under Clause 6.2
(Unavailability of a currency) shall not be taken into account
in this Clause 4.4.
4.5 SINGLE DRAWING FOR FACILITY A
(a) Facility A shall be drawndown in one amount by Octel
Developments.
(b) No Facility B Loans may be drawn until a Facility A Loan has
been drawn.
-29-
SECTION 3
UTILISATION
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
A Borrower may utilise a Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time.
5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request is irrevocable and will not be
regarded as having been duly completed unless:
(i) it identifies the Facility to be utilised and if that
is Facility B (where relevant) if it is for a
Relevant Acquisition Utilisation or a Prochem
Refinancing Facility B Utilisation;
(ii) the proposed Utilisation Date is a Business Day
within the Availability Period applicable to that
Facility;
(iii) the currency and amount of the Utilisation comply
with Clause 5.3 (Currency and amount);
(iv) the proposed Interest Period complies with Clause 10
(Interest Periods);
(v) if it is for a Relevant Acquisition Utilisation it
provides reasonable details as to how the proceeds of
the Utilisation are to be applied towards the
Relevant Acquisition;
(vi) if it is for a Prochem Refinancing Facility B
Utilisation, it specifies that the proceeds are to be
used to repay indebtedness incurred by the Group in
connection with the Prochem Acquisition; and
(vii) if it is in relation to Facility A, the Borrower is
Octel Developments.
(b) Only one Loan may be requested in each Utilisation Request.
5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request must be the
Base Currency or an Optional Currency.
(b) The amount of the proposed Loan must be an amount whose Base
Currency Amount is not more than the Available Facility and
which is:
(i) if the currency selected is the Base Currency, a
minimum of $10,000,000 for Facility A and $5,000,000
for Facility B or in any case, if less, the Available
Facility; or
(ii) if the currency selected is sterling or euro, a
minimum of (pound)7,000,000 or euro 10,000,000 for
Facility A and (pound)3,000,000 or euro 5,000,000 for
Revolving Facility B or in any case, if less, the
Available Facility; or
-30-
(iii) if the currency selected is an Optional Currency
other than sterling or euro, the minimum amount (or
an integral multiple, if required) specified by the
Agent pursuant to paragraph (b) (ii) of Clause 4.3
(Conditions relating to Optional Currencies) or, if
less, the Available Facility.
5.4 LENDERS' PARTICIPATION
(a) If the conditions set out in this Agreement have been met,
each Lender shall make its participation in each Loan
available by the Utilisation Date through its Facility Office.
(b) The amount of each Lender's participation in each Loan will be
equal to the proportion borne by its Available Commitment to
the Available Facility immediately prior to making the Loan.
(c) The Agent shall notify each Lender of the amount, currency and
the Base Currency Amount of each Loan at the Specified Time.
6. OPTIONAL CURRENCIES
6.1 SELECTION OF CURRENCY
(a) A Borrower (or the Obligors' Agent on behalf of a Borrower)
shall select the currency of a Loan:
(i) (in the case of an initial Utilisation) in a
Utilisation Request; and
(ii) (afterwards in relation to a Facility A Loan made to
it) in a Selection Notice.
(b) If a Borrower (or the Obligors' Agent on behalf of a Borrower)
fails to issue a Selection Notice in relation to a Facility A
Loan, the Loan will remain denominated for its next Interest
Period in the same currency in which it is then outstanding.
(c) If a Borrower (or the Obligors' Agent on behalf of a Borrower)
issues a Selection Notice requesting a change of currency and
the first day of the requested Interest Period is not a
Business Day for the new currency, the Agent shall promptly
notify the Borrower and the Lenders and the Loan will remain
in the existing currency (with Interest Periods running from
one Business Day until the next Business Day) until the next
day which is a Business Day for both currencies, on which day
the requested Interest Period will begin.
6.2 UNAVAILABILITY OF A CURRENCY
If before the Specified Time on any Quotation Day:
(a) the Agent has received notice from a Lender that the Optional
Currency requested is not readily available to it in the
amount required; or
(b) a Lender notifies the Agent that compliance with its
obligation to participate in a Loan in the proposed Optional
Currency would contravene a law or regulation applicable to
it,
the Agent will give notice to the relevant Borrower to that effect by
the Specified Time on that day. In this event, any Lender that gives
notice pursuant to this Clause 6.2 will be required to participate in
the Loan in the Base Currency (in an amount equal to that Lender's
proportion of
-31-
the Base Currency Amount, or in respect of a Rollover Loan, an amount
equal to that Lender's proportion of the Base Currency Amount of the
maturing Facility B Loan that is due to be repaid) and its
participation will be treated as a separate Loan denominated in the
Base Currency during that Interest Period.
6.3 CHANGE OF CURRENCY
(a) If a Facility A Loan is to be denominated in different
currencies during two successive Interest Periods:
(i) if the currency for the second Interest Period is an
Optional Currency, the amount of the Loan in that
Optional Currency will be calculated by the Agent as
the amount of that Optional Currency equal to the
Base Currency Amount of the Loan at the Agent's Spot
Rate of Exchange at the Specified Time;
(ii) if the currency for the second Interest Period is the
Base Currency, the amount of the Loan will be equal
to the Base Currency Amount;
(iii) (unless the Agent and the Borrower agree otherwise in
accordance with paragraph (b) below) the Borrower
that has borrowed the Loan shall repay it on the last
day of the first Interest Period in the currency in
which it was denominated for that Interest Period;
and
(iv) (subject to Clause 4.2 (Further conditions
precedent)) the Lenders shall re-advance the Loan in
the new currency in accordance with Clause 6.5
(Agent's calculations).
(b) If the Agent and the Borrower that has borrowed the Facility A
Loan agree, the Agent shall:
(i) apply the amount paid to it by the Lenders pursuant
to paragraph (a)(iv) above (or so much of that amount
as is necessary) in or towards purchase of an amount
in the currency in which the Facility A Loan is
outstanding for the first Interest Period; and
(ii) use the amount it purchases in or towards
satisfaction of the relevant Borrower's obligations
under paragraph (a)(iii) above.
(c) If the amount purchased by the Agent pursuant to paragraph
(b)(i) above is less than the amount required to be repaid by
the relevant Borrower, the Agent shall promptly notify that
Borrower and that Borrower shall, on the last day of the first
Interest Period, pay an amount to the Agent (in the currency
of the outstanding Facility A Loan or Facility B Loan (as the
case may be) for the first Interest Period) equal to the
difference.
(d) If any part of the amount paid to the Agent by the Lenders
pursuant to paragraph (a)(iv) above is not needed to purchase
the amount required to be repaid by the relevant Borrower, the
Agent shall promptly notify that Borrower and pay that
Borrower, on the last day of the first Interest Period that
part of that amount (in the new currency).
-32-
6.4 SAME OPTIONAL CURRENCY DURING SUCCESSIVE INTEREST PERIODS
(a) If a Facility A Loan is to be denominated in the same Optional
Currency during two successive Interest Periods, the Agent
shall calculate the amount of the Facility A Loan in the
Optional Currency for the second of those Interest Periods (by
calculating the amount of Optional Currency equal to the Base
Currency Amount of that Facility A Loan at the Agent's Spot
Rate of Exchange at the Specified Time) and (subject to
paragraph (b) below):
(i) if the amount calculated is less than the existing
amount of that Facility A Loan in the Optional
Currency during the first Interest Period, promptly
notify the Borrower that has borrowed that Facility A
Loan and that Borrower shall pay, on the last day of
the first Interest Period, an amount equal to the
difference; or
(ii) if the amount calculated is more than the existing
amount of that Facility A Loan in the Optional
Currency during the first Interest Period, promptly
notify each Lender and, if no Event of Default is
continuing, each Lender shall, on the last day of the
first Interest Period, pay its participation in an
amount equal to the difference.
(b) If the calculation made by the Agent pursuant to paragraph (a)
above shows that the amount of the Facility A Loan in the
Optional Currency for the second of those Interest Periods
converted into the Base Currency at the Agent's Spot Rate of
Exchange at the Specified Time has increased or decreased by
less than 5 per cent. compared to its Base Currency Amount, no
notification shall be made by the Agent and no payment shall
be required under paragraph (a) above.
6.5 AGENT'S CALCULATIONS
(a) All calculations made by the Agent pursuant to this Clause 6
will take into account any repayment, prepayment,
consolidation or division of Facility A Loans to be made on
the last day of the first Interest Period.
(b) Each Lender's participation in a Loan will, subject to
paragraph (a) above, be determined in accordance with
paragraph (b) of Clause 5.4 (Lenders' participation).
-33-
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. REPAYMENT
7.1 REPAYMENT OF FACILITY A LOANS
(a) Octel Developments shall repay the Facility A Loans in
instalments by repaying on each Facility A Repayment Date the
amount set out opposite each Facility A Repayment Date below:
Facility A Repayment Date Repayment Instalment
($)
31 March 2002 40,000,000
30 September 2002 25,000,000
31 March 2003 25,000,000
30 September 2003 20,000,000
31 March 2004 20,000,000
30 September 2004 20,000,000
Termination Date 60,000,000
(b) If, in relation to a Facility A Repayment Date, the aggregate
amount of the Facility A Loans made to the Borrowers exceeds
the Repayment Instalment to be repaid by Octel Developments,
the Obligors' Agent may, if it gives the Agent not less than
five Business Days' prior notice, select which of those
Facility A Loans will be wholly or partially repaid so that
the Repayment Instalment is repaid on the relevant Facility A
Repayment Date in full. The Obligors' Agent may not make a
selection if as a result more than one Facility A Loan will be
partially repaid.
(c) If the Obligors' Agent fails to deliver a notice to the Agent
in accordance with paragraph (b) above, the Agent shall select
the Facility A Loans to be wholly or partially repaid.
(d) Any repayment or prepayment of a Facility A Loan denominated
in an Optional Currency shall reduce the amount of that
Facility A Loan by the amount of that Optional Currency repaid
and shall reduce the Base Currency Amount of that Facility A
Loan proportionally.
(e) No Borrower may reborrow any part of Facility A which is
repaid.
7.2 REPAYMENT OF FACILITY B LOANS
Each Borrower which has drawn a Facility B Loan shall repay that Loan
on the last day of its Interest Period.
-34-
8. PREPAYMENT AND CANCELLATION
8.1 ILLEGALITY
If it becomes unlawful in any jurisdiction for a Lender to perform any
of its obligations as contemplated by this Agreement or to fund its
participation in any Loan:
(a) that Lender shall promptly notify the Agent upon becoming
aware of that event;
(b) upon the Agent notifying the Obligors' Agent, the Commitment
of that Lender will be immediately cancelled; and
(c) each Borrower shall repay that Lender's participation in the
Loans made to that Borrower on the last day of the Interest
Period for each Loan occurring after the Agent has notified
the Obligors' Agent or, if earlier, the date specified by the
Lender in the notice delivered to the Agent (being no earlier
than the last day of any applicable grace period permitted by
law).
8.2 CHANGE OF CONTROL
(a) If any person or group of persons acting in concert gains
control of the Parent (a "Change of Control"):
(i) the Parent shall promptly notify the Agent upon
becoming aware of that event;
(ii) if the Parent so requires, the Parties shall enter
into good faith negotiations with a view to
determining whether and on what terms the Facilities
can continue to remain outstanding and be provided;
(iii) if no agreement between the Lenders and the Parent is
reached within 30 days of the Change of Control
occurring as to the terms on which the Facilities can
continue to remain outstanding and be provided, the
Agent shall, by not less than 15 days notice to the
Parent, cancel the Facilities and declare all
outstanding Loans, together with accrued interest,
and all other amounts accrued under the Finance
Documents immediately due and payable, whereupon the
Facilities will be cancelled and all such outstanding
amounts will become immediately due and payable.
(b) For the purpose of paragraph (a) above "control" means:
(i) the power (whether by way of ownership of shares,
proxy, contract, agency or otherwise) to:
(1) cast, or control the casting of, more than
one-half of the maximum number of votes that
might be cast at a general meeting of the
Parent; or
(2) appoint or remove all, or the majority, of
the directors or other equivalent officers
of the Parent; or
(3) give directions with respect to the
operating and financial policies of the
Parent which the directors or other
equivalent officers of the Parent are
obliged to comply with; or
-35-
(ii) the holding of more than one-half of the issued share
capital of the Parent (excluding any part of that
issued share capital that carries no right to
participate beyond a specified amount in a
distribution of either profits or capital).
(c) For the purpose of paragraph (a) above "acting in concert"
means a group of persons who, pursuant to an agreement or
understanding (whether formal or informal), actively
co-operate, through the acquisition by any of them, either
directly or indirectly, of shares in the Parent, to obtain or
consolidate control of the Parent.
8.3 VOLUNTARY CANCELLATION
The Parent may, if it gives the Agent not less than five Business Days'
(or such shorter period as the Majority Lenders may agree) prior
notice, cancel the whole or any part (being a minimum amount of
$10,000,000) of an Available Facility. Any cancellation under this
Clause 8.3 shall reduce the Commitments of the Lenders rateably under
that Facility.
8.4 VOLUNTARY PREPAYMENT OF FACILITY A LOANS
(a) A Borrower to which a Facility A Loan has been made may, if it
gives the Agent not less than ten Business Days' (or such
shorter period as the Majority Lenders may agree) prior
notice, prepay the whole or any part of any Facility A Loan
(but, if in part, being an amount that reduces the Base
Currency Amount of the Facility A Loan by a minimum amount of
$10,000,000).
(b) A Facility A Loan may only be prepaid after the last day of
the applicable Availability Period (or, if earlier, the day on
which the applicable Available Facility is zero).
(c) Any prepayment under this Clause 8.4 shall satisfy the
obligations under Clause 7.1 (Repayment of Facility A Loans)
pro rata across the repayment instalments of the Facility A
Loans then outstanding.
8.5 VOLUNTARY PREPAYMENT OF FACILITY B LOANS
The Borrower to which a Facility B Loan has been made may, if it gives
the Agent not less than ten Business Days' (or such shorter period as
the Majority Lenders may agree) prior notice, prepay the whole or any
part of a Facility B Loan (but if in part, being an amount that reduces
the Base Currency Amount of the Facility B Loan by a minimum amount of
$10,000,000).
8.6 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER
(a) If:
(i) any sum payable to any Lender by an Obligor is
required to be increased under paragraph (c) of
Clause 13.2 (Tax gross-up); or
(ii) any Lender claims indemnification from the Obligors'
Agent under Clause 13.3 (Tax indemnity) or Clause
14.1 (Increased costs),
the Parent may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent
notice of cancellation of the Commitment of that Lender and
its intention to procure the repayment of that Lender's
participation in the Loans.
-36-
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to
zero.
(c) On the last day of each Interest Period which ends after the
Parent has given notice under paragraph (a) above (or, if
earlier, the date specified by the Parent in that notice),
each Borrower to which a Loan is outstanding shall repay that
Lender's participation in that Loan.
8.7 SURPLUS CASH FLOW
(a) Subject to paragraph (c) below, within 20 Business Days of
delivery of the quarterly unaudited consolidated financial
statements of the Parent in respect of an Accounting Quarter
of the Parent pursuant to Clause 20.1 (Financial Statements),
the Parent will (or will procure that a Borrower will) prepay
an amount of the Facilities in accordance with Clause 8.8
(Prepayments: Order of Application) and in an amount equal to
50 per cent. of the amount of Surplus Cash Flow for such
Accounting Quarter, provided that Surplus Cash Flow for any
Accounting Quarter shall (to the extent such amounts are
included in Surplus Cash Flow) be reduced by the aggregate
amount of prepayments made pursuant to Clause 8.4 (Voluntary
prepayment of Facility A Loans) during that Accounting
Quarter.
(b) The Parent will deliver, together with the quarterly unaudited
consolidated financial statements referred to in paragraph (a)
above, a certificate confirming:
(i) the amount of the Surplus Cash Flow (if any),
together with a calculation of how that amount has
been determined; and
(ii) the ratio of Total Net Debt (as at the end of the
Accounting Quarter to which those management accounts
relate) to EBITDA (for the 12 month period ending on
the last day of that Accounting Quarter), together
with a calculation of how that ratio has been
determined.
(c) The Parent shall be under no obligation to make any prepayment
under this Clause 8.7 in respect of the Surplus Cash Flow for
any Accounting Quarter beginning after the Trigger Date has
occurred.
8.8 PREPAYMENTS: ORDER OF APPLICATION
Prepayments made pursuant to Clause 8.7 (Surplus Cash Flow) shall be
applied in prepayment of Facility A Loans (and such prepayment shall
satisfy the obligations under Clause 7.1 (Repayment of Facility A
Loans) in inverse order of maturity) until Facility A has been reduced
to zero.
8.9 PREPAYMENTS DURING INTEREST PERIODS
(a) Where any amount required to be prepaid under Clause 8.7
(Surplus Cash Flow) is received by the Agent during an
Interest Period relating to any Loan to be prepaid, the Agent
will (subject to paragraph (c) below) retain such amount until
the end of such Interest Period and will apply the same
against the relevant Loan or Loans on the last day of the
relevant Interest Period.
(b) Subject to paragraph (c) below, pending application against
the relevant Loan or Loans the sums held by the Agent under
paragraph (a) above will be placed in a Cash
-37-
Collateral Account designated by the Obligors' Agent (or,
failing designation, selected by the Agent) and the interest
earned on such account will be applied by the Agent towards
the interest due by the relevant Borrower in respect of the
relevant Loan or Loans at the time the amount is applied in
repayment of the relevant Loan or Loans.
(c) The Obligors' Agent may, by notice to the Agent, require that
any Interest Period be broken and that the proceeds arising
under Clause 8.7 (Surplus Cash Flow) be applied immediately
towards repayment of the relevant Loan or Loans.
8.10 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party
under this Clause 8 shall be irrevocable and, unless a
contrary indication appears in this Agreement, shall specify
the date or dates upon which the relevant cancellation or
prepayment is to be made and the amount of that cancellation
or prepayment.
(b) Any prepayment under this Agreement shall be made together
with accrued interest on the amount prepaid and, subject to
any Break Costs, without premium or penalty.
(c) No Borrower may reborrow any part of Facility A which is
prepaid.
(d) Unless a contrary indication appears in this Agreement, any
part of Facility B which is prepaid may be reborrowed in
accordance with the terms of this Agreement.
(e) The Borrowers shall not repay or prepay all or any part of the
Loans or cancel all or any part of the Commitments except at
the times and in the manner expressly provided for in this
Agreement.
(f) No amount of the Total Commitments cancelled under this
Agreement may be subsequently reinstated.
(g) If the Agent receives a notice under this Clause 8 it shall
promptly forward a copy of that notice to either the Parent or
the affected Lender, as appropriate.
-38-
SECTION 5
COSTS OF UTILISATION
9. INTEREST
9.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) LIBOR; and
(c) Mandatory Cost, if any.
9.2 PAYMENT OF INTEREST
The Borrower to which a Loan has been made shall pay accrued interest
on that Loan on the last day of each Interest Period (and, if the
Interest Period is longer than six Months, on the dates falling at six
Monthly intervals after the first day of the Interest Period).
9.3 DEFAULT INTEREST
(a) If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual
payment (both before and after judgment), subject to paragraph
(b) below, at a rate one per cent higher than the rate which
would have been payable if the overdue amount had, during the
period of non-payment, constituted a Loan in the currency of
the overdue amount for successive Interest Periods, each of a
duration selected by the Agent (acting reasonably). Any
interest accruing under this Clause 9.3 shall be immediately
payable by the Obligor on demand by the Agent.
(b) If any overdue amount consists of all or a part of a Loan
which became due on a day which was not the last day of an
Interest Period relating to that Loan:
(i) the first Interest Period for that overdue amount
shall have a duration equal to the unexpired portion
of the current Interest Period relating to that Loan;
and
(ii) the rate of interest applying to the overdue amount
during that first Interest Period shall be the sum of
1 per cent and the rate which would have applied if
the overdue amount had not become due.
(c) Default interest (if unpaid) arising on an overdue amount will
be compounded with the overdue amount at the end of each
Interest Period applicable to that overdue amount but will
remain immediately due and payable.
9.4 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify the Lenders and the relevant Borrower
of the determination of a rate of interest under this Agreement.
-39-
10. INTEREST PERIODS
10.1 SELECTION OF INTEREST PERIODS
(a) A Borrower (or the Obligors' Agent on behalf of a Borrower)
may select an Interest Period for a Loan in the Utilisation
Request for that Loan or (if the Loan has already been
borrowed) in a Selection Notice.
(b) Each Selection Notice for a Facility A Loan is irrevocable and
must be delivered to the Agent by the Borrower (or the
Obligors' Agent on behalf of a Borrower) to which that
Facility A Loan was made not later than the Specified Time.
(c) If a Borrower (or the Obligors' Agent) fails to deliver a
Selection Notice to the Agent in accordance with paragraph (b)
above, the relevant Interest Period will, subject to Clause
10.2 (Changes to Interest Periods), be one Month.
(d) Subject to this Clause 10, a Borrower (or the Obligors' Agent)
may select an Interest Period of one, two, three or six Months
or any other period agreed between the Obligors' Agent and the
Agent (acting on the instructions of all the Lenders). In
addition a Borrower (or the Obligors' Agent on its behalf) may
(in relation to Facility A) select an Interest Period of less
than one Month, if necessary to ensure that there are Facility
A Loans (with an aggregate Base Currency Amount equal to or
greater than the Repayment Instalment) which have an Interest
Period ending on a Facility A Repayment Date for the Borrowers
to make the Repayment Instalment due on that date.
(e) An Interest Period for a Loan shall not extend beyond the
Termination Date applicable to its Facility.
(f) Each Interest Period for a Facility A Loan shall start on the
Utilisation Date or (if already made) on the last day of its
preceding Interest Period.
(g) A Facility B Loan has one Interest Period only.
(h) Prior to the Syndication Date, Interest Periods shall be one
month or such other period as the Agent and the Obligors'
Agent may agree and any Interest Period which would otherwise
end during the month preceding or extend beyond the
Syndication Date shall end on the Syndication Date.
10.2 CHANGES TO INTEREST PERIODS
(a) Prior to determining the interest rate for a Facility A Loan,
the Agent may shorten an Interest Period for any Facility A
Loan to ensure there are sufficient Facility A Loans with an
Interest Period ending on a Facility A Repayment Date for the
Borrowers to make the Repayment Instalment due on that
Facility A Repayment Date.
(b) If the Agent makes any of the changes to an Interest Period
referred to in this Clause 10.2, it shall promptly notify the
Obligors' Agent and the Lenders.
10.3 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next
Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
-40-
10.4 CONSOLIDATION AND DIVISION OF FACILITY A LOANS
(a) Subject to paragraph (b) below, if two or more Interest
Periods:
(i) relate to Facility A Loans in the same currency made
under the same Facility; and
(ii) end on the same date; and
(iii) are made to the same Borrower
those Facility A Loans will, unless that Borrower (or the
Obligors' Agent on its behalf) specifies to the contrary in
the Selection Notice for the next Interest Period, be
consolidated into, and treated as, a single Facility A Loan on
the last day of the Interest Period.
(b) Subject to Clause 4.4 (Maximum number of Loans and Optional
Currencies) and Clause 5.3 (Currency and amount), if a
Borrower (or the Obligors' Agent on its behalf) requests in a
Selection Notice that a Facility A Loan be divided into two or
more Facility A Loans, that Facility A Loan will, on the last
day of its Interest Period, be so divided with Base Currency
Amounts specified in that Selection Notice, being an aggregate
Base Currency Amount equal to the Base Currency Amount of the
Facility A Loan immediately before its division.
11. CHANGES TO THE CALCULATION OF INTEREST
11.1 ABSENCE OF QUOTATIONS
Subject to Clause 11.2 (Market disruption), if LIBOR is to be
determined by reference to the Reference Banks but a Reference Bank
does not supply a quotation by the Specified Time on the Quotation Day,
the applicable LIBOR shall be determined on the basis of the quotations
of the remaining Reference Banks.
11.2 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Loan for
any Interest Period, then the rate of interest on each
Lender's share of that Loan for the Interest Period shall be
the rate per annum which is the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender as soon
as practicable and in any event before interest is
due to be paid in respect of that Interest Period, to
be that which expresses as a percentage rate per
annum the cost to that Lender of funding its
participation in that Loan from whatever source it
may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that
Lender's participation in the Loan.
(b) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the
relevant Interest Period the Screen Rate is not
available and none or only one of the Reference Banks
-41-
supplies a rate to the Agent to determine LIBOR for
the relevant currency and Interest Period; or
(ii) before close of business in London on the Quotation
Day for the relevant Interest Period, the Agent
receives notifications from a Lender or Lenders
(whose participations in a Loan exceed 35 per cent.
of that Loan) that the cost to it of obtaining
matching deposits in the London Interbank Market
would be in excess of LIBOR.
11.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Agent or the
Obligors' Agent so requires, the Agent and the Obligors' Agent
shall enter into negotiations (for a period of not more than
thirty days) with a view to agreeing a substitute basis for
determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the
Obligors' Agent, be binding on all Parties.
11.4 BREAK COSTS
(a) Each Borrower shall, within three Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being
paid by that Borrower on a day other than the last day of an
Interest Period for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a
demand by the Agent, provide a certificate confirming the
amount and basis of calculation of its Break Costs for any
Interest Period in which they accrue.
12. FEES
12.1 COMMITMENT FEE
(a) AOC shall pay to the Agent (for the account of each Lender) a
fee in the Base Currency computed at the Applicable Rate on
that Lender's Available Commitment under each Facility for the
Availability Period applicable to that Facility.
(b) The accrued commitment fee is payable on the last day of each
successive period of three Months which ends during the
relevant Availability Period, on the last day of the relevant
Availability Period and on the cancelled amount of the
relevant Lender's Commitment at the time the cancellation is
effective.
(c) The "Applicable Rate" for the purposes of this Clause 12.1
means the percentage rate per annum which is the lower of (1)
50% of the Margin applicable to the relevant Facility at that
time and (2) one per cent. per annum.
12.2 ARRANGEMENT FEE
AOC shall pay to the Mandated Lead Arranger an arrangement fee in the
amount and at the times agreed in a Fee Letter.
12.3 AGENCY FEES
AOC shall pay to the Agent (for its own account) an agency fee and to
the Security Agent (for its own account) a security agency fee in the
amounts and at the times agreed in a Fee Letter.
-42-
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
13. TAX GROSS UP AND INDEMNITIES
13.1 DEFINITIONS
(a) In this Clause 13:
"Protected Party" means a Finance Party which is or will be
subject to any liability or required to make any payment for
or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be
received or receivable) under a Finance Document.
"Qualifying Lender" means:
(i) in respect of a payment made by an Obligor
incorporated in the United Kingdom, a Lender which
is:
(A) within the charge to United Kingdom
corporation tax as respects that payment and
that is a Lender in respect of an advance
made by a person that was a bank (as defined
for the purpose of section 349 of the Taxes
Act in section 840A of the Taxes Act) at the
time that advance was made; or
(B) a Treaty Lender with respect to the United
Kingdom; and
(ii) in respect of a payment by an Obligor not
incorporated in the United Kingdom, any Lender.
"Tax Credit" means a credit against, relief or remission for,
or repayment of, any Tax.
"Tax Deduction" means a deduction or withholding for or on
account of Tax from a payment under a Finance Document.
"Tax Payment" means an increased payment made by an Obligor to
a Finance Party under Clause 13.2 (Tax gross-up) or a payment
under Clause 13.3 (Tax indemnity).
"Treaty Lender" means, in respect of a jurisdiction, a Lender
entitled under the provisions of a double taxation treaty to
receive payments of interest from a person resident in such
jurisdiction without a Tax Deduction (subject to the
completion of any necessary procedural formalities).
(b) In this Clause 13 a reference to "determines" or "determined"
means a determination made in the absolute discretion of the
person making the determination.
13.2 TAX GROSS-UP
(a) Each Obligor shall make all payments to be made by it under
any Finance Document without any Tax Deduction, unless a Tax
Deduction is required by law.
-43-
(b) The Obligors' Agent or a Lender shall promptly upon becoming
aware that an Obligor must make a Tax Deduction (or that there
is any change in the rate or the basis of a Tax Deduction)
notify the Agent accordingly. If the Agent receives such
notification from a Lender it shall notify the Obligors' Agent
and that Obligor.
(c) If a Tax Deduction is required by law to be made by an Obligor
in one of the circumstances set out in paragraph (d) below,
the amount of the payment due from that Obligor shall be
increased to an amount which (after making any Tax Deduction)
leaves an amount equal to the payment which would have been
due if no Tax Deduction had been required.
(d) The circumstances referred to in paragraph (c) above are where
a person entitled to the payment:
(i) is the Agent, the Security Agent or the Arranger (on
its own behalf); or
(ii) is a Qualifying Lender, unless that Qualifying Lender
is a Treaty Lender and the Obligor making the payment
is able to demonstrate the Tax Deduction is required
to be made as a result of the failure of that
Qualifying Lender to comply with paragraph (g) below;
or
(iii) is not or has ceased to be a Qualifying Lender to the
extent that this altered status results from any
change after the date of this Agreement in (or in the
interpretation, administration, or application of)
any law or double taxation agreement or any published
practice or published concession of any relevant
taxing authority.
(e) If an Obligor is required to make a Tax Deduction, that
Obligor shall make that Tax Deduction and any payment required
in connection with that Tax Deduction within the time allowed
and in the minimum amount required by law.
(f) Within thirty days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the
Obligor making that Tax Deduction shall deliver to the Agent
for the Finance Party entitled to the payment evidence
reasonably satisfactory to that Finance Party that the Tax
Deduction has been made or (as applicable) any appropriate
payment paid to the relevant taxing authority.
(g) A Treaty Lender and each Obligor which makes a payment to
which that Treaty Lender is entitled shall co-operate as soon
as reasonably practicable in completing any procedural
formalities necessary for that Obligor to obtain authorisation
to make that payment without a Tax Deduction.
13.3 TAX INDEMNITY
(a) The Obligors' Agent shall (within three Business Days of
demand by the Agent) pay to a Protected Party an amount equal
to the loss, liability or cost which that Protected Party
determines will be or has been (directly or indirectly)
suffered for or on account of Tax by that Protected Party in
connection with any Finance Document.
(b) Paragraph (a) above shall not apply with respect to any Tax
assessed on a Finance Party:
-44-
(i) under the law of the jurisdiction in which that
Finance Party is incorporated or, if different, the
jurisdiction (or jurisdictions) in which that Finance
Party is treated as resident for tax purposes; or
(ii) under the law of the jurisdiction in which that
Finance Party's Facility Office is located in respect
of amounts received or receivable in that
jurisdiction,
if that Tax is imposed on or calculated by reference to the
net income received or receivable (but not any sum deemed to
be received or receivable) by that Finance Party.
(c) A Protected Party making, or intending to make a claim
pursuant to paragraph (a) above shall promptly notify the
Agent of the event which will give, or has given, rise to the
claim, following which the Agent shall notify the Obligors'
Agent.
(d) A Protected Party shall, on receiving a payment from an
Obligor under this Clause 13.3, notify the Agent.
13.4 TAX CREDIT
If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
(i) a Tax Credit is attributable to that Tax Payment; and
(ii) that Finance Party has obtained, utilised and retained that
Tax Credit,
the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same
after-Tax position as it would have been in had the Tax Payment not
been made by the Obligor.
13.5 STAMP TAXES
The Obligors' Agent shall pay and, within three Business Days of
demand, indemnify each Finance Party against any cost, loss or
liability that Finance Party incurs in relation to all notarial fees,
stamp duty, registration and other similar Taxes payable in respect of
any Finance Document or any Transaction Security.
13.6 VALUE ADDED TAX
(a) All consideration payable under a Finance Document by an
Obligor to a Finance Party shall be deemed to be exclusive of
any VAT. If VAT is chargeable, the Obligor shall pay to the
Finance Party (in addition to and at the same time as paying
the consideration) an amount equal to the amount of the VAT.
(b) Where a Finance Document requires an Obligor to reimburse a
Finance Party for any costs or expenses, that Obligor shall
also at the same time pay and indemnify that Finance Party
against all VAT incurred by that Finance Party in respect of
the costs or expenses save to the extent that that Finance
Party is entitled to repayment or credit in respect of the
VAT.
-45-
14. INCREASED COSTS
14.1 INCREASED COSTS
(a) Subject to Clause 14.3 (Exceptions) the Obligors' Agent shall,
within three Business Days of a demand by the Agent, pay for
the account of a Finance Party the amount of any Increased
Costs incurred by that Finance Party or any of its Affiliates
as a result of (i) the introduction of or any change in (or in
the interpretation or application of) any law or regulation or
(ii) compliance with any law or regulation made after the date
of this Agreement.
(b) In this Agreement "Increased Costs" means:
(i) a reduction in the rate of return from the Facility
or on a Finance Party's (or its Affiliate's) overall
capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any
Finance Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that
Finance Party having entered into its Commitment or funding or
performing its obligations under any Finance Document.
14.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause
14.1 (Increased costs) shall notify the Agent of the event
giving rise to the claim, following which the Agent shall
promptly notify the Obligors' Agent.
(b) Each Finance Party shall, as soon as practicable after a
demand by the Agent, provide a certificate confirming the
amount and basis of calculation of its Increased Costs.
14.3 EXCEPTIONS
(a) Clause 14.1 (Increased costs) does not apply to the extent any
Increased Cost is:
(i) attributable to a Tax Deduction required by law to be
made by an Obligor;
(ii) compensated for by Clause 13.3 (Tax indemnity) (or
would have been compensated for under Clause 13.3
(Tax indemnity) but was not so compensated solely
because the exclusion in paragraph (b) of Clause 13.3
(Tax indemnity) applied);
(iii) compensated for by the payment of the Mandatory Cost;
or
(iv) attributable to the wilful breach by the relevant
Finance Party or its Affiliates of any law or
regulation or the gross negligence of the relevant
Finance Party or its Affiliates.
(b) In this Clause 14.3, a reference to a "Tax Deduction" has the
same meaning given to the term in Clause 13.1 (Definitions).
-46-
15. OTHER INDEMNITIES
15.1 CURRENCY INDEMNITY
(a) If any sum due from an Obligor under the Finance Documents (a
"Sum"), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency (the
"First Currency") in which that Sum is payable into another
currency (the "Second Currency") for the purpose of:
(i) making or filing a claim or proof against that
Obligor;
(ii) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration
proceedings,
that Obligor shall as an independent obligation, within three
Business Days of demand, indemnify each Finance Party to whom
that Sum is due against any cost, loss or liability arising
out of or as a result of the conversion including any
discrepancy between (A) the rate of exchange used to convert
that Sum from the First Currency into the Second Currency and
(B) the rate or rates of exchange available to that person at
the time of its receipt of that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction
to pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
15.2 OTHER INDEMNITIES
The Borrowers shall (or shall procure that an Obligor will), within
three Business Days of demand, indemnify each Lender against any cost,
loss or liability incurred by that Lender as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any
cost, loss or liability arising as a result of Clause 28
(Sharing among the Lenders);
(c) funding, or making arrangements to fund, its participation in
a Loan requested by a Borrower in a Utilisation Request but
not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default
or negligence by that Lender alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance
with a notice of prepayment given by a Borrower or the
Obligors' Agent.
15.3 INDEMNITY TO THE AGENT
The Borrowers shall promptly indemnify the Agent against any cost, loss
or liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a
Default; or
(b) entering into or performing any foreign exchange contract for
the purposes of Clause 6 (Optional Currencies); or
-47-
(c) acting or relying on any notice, request or instruction which
it reasonably believes to be genuine, correct and
appropriately authorised.
16. MITIGATION BY THE LENDERS
16.1 MITIGATION
(a) Each Finance Party shall, in consultation with the Obligors'
Agent, take all reasonable steps to mitigate any circumstances
which arise and which would result in any amount becoming
payable under, or cancelled pursuant to, any of Clause 8.1
(Illegality), Clause 13 (Tax gross-up and indemnities) or
Clause 14 (Increased costs) including (but not limited to)
transferring its rights and obligations under the Finance
Documents to another Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations
of any Obligor under the Finance Documents.
16.2 LIMITATION OF LIABILITY
(a) The Borrowers shall indemnify each Finance Party for all costs
and expenses reasonably incurred by that Finance Party as a
result of steps taken by it under Clause 16.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause
16.1 (Mitigation) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
17. COSTS AND EXPENSES
17.1 TRANSACTION EXPENSES
The Borrowers shall promptly on demand pay the Agent, the Security
Agent and the Arranger the amount of all costs and expenses (including
legal fees) reasonably incurred by any of them in connection with:
(a) the negotiation, preparation, printing, execution and
syndication of this Agreement, any Finance Document and the
Information Memorandum;
(b) any other Finance Documents executed after the date of this
Agreement; and
(c) the completion of the transactions and perfection of the
Transaction Security contemplated in the Finance Documents.
The Agent, Security Agent or Arranger (as the case may be) shall obtain
the consent of the Obligors' Agent prior to incurring costs and
expenses relating to (a) or (b) or (c) above which will exceed
(pound)5,000 (or its equivalent in other currencies) if such Finance
Party intends to demand payment of such costs and expenses pursuant to
this Clause 17.1.
17.2 AMENDMENT COSTS
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 29.9 (Change of currency), the
Obligors' Agent shall, within three Business Days of demand, reimburse
the Agent and the Security Agent for the amount of all costs and
expenses (including legal fees) reasonably incurred by the Agent and
the Security Agent in responding to, evaluating, negotiating or
complying with that request or requirement.
-48-
17.3 ENFORCEMENT COSTS
The Obligors' Agent shall, within three Business Days of demand, pay to
each Finance Party the amount of all costs and expenses (including
legal fees) incurred by that Finance Party in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document or the Transaction Security and the Security Agent may, in
priority to any payment to the Finance Parties, indemnify itself out of
the Charged Property in respect of (and pay and retain) all sums
necessary to give effect to this Clause.
-49-
SECTION 7
GUARANTEE
18. GUARANTEE AND INDEMNITY
18.1 GUARANTEE AND INDEMNITY
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees to each Finance Party punctual performance by each
Borrower of all that Borrower's obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever a Borrower does
not pay any amount when due under or in connection with any
Finance Document, that Guarantor shall immediately on demand pay
that amount as if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against any
cost, loss or liability suffered by that Finance Party if any
obligation guaranteed by it is or becomes unenforceable, invalid
or illegal. The amount of the cost, loss or liability shall be
equal to the amount which that Finance Party would otherwise have
been entitled to recover.
18.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the
ultimate balance of sums payable by any Obligor under the Finance
Documents, regardless of any intermediate payment or discharge in whole
or in part.
18.3 REINSTATEMENT
If any payment by an Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security
for those obligations or otherwise) is avoided or reduced as a result
of insolvency or any similar event:
(a) the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) each Finance Party shall be entitled to recover the value or
amount of that security or payment from each Obligor, as if the
payment, discharge, avoidance or reduction had not occurred.
18.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 18 will not be
affected by an act, omission, matter or thing which, but for this
Clause, would reduce, release or prejudice any of its obligations under
this Clause 18 (without limitation and whether or not known to it or
any Finance Party) including:
(a) any time, waiver or consent granted to, or composition with, any
Obligor or other person;
(b) the release of any other Obligor or any other person under the
terms of any composition or arrangement with any creditor of any
member of the Group;
-50-
(c) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any Obligor or other
person or any non-presentation or non-observance of any formality
or other requirement in respect of any instrument or any failure
to realise the full value of any security;
(d) any incapacity or lack of power, authority or legal personality
of or dissolution or change in the members or status of an
Obligor or any other person;
(e) any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document or
security; or
(g) any insolvency or similar proceedings.
18.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment from
any person before claiming from that Guarantor under this Clause 18.
This waiver applies irrespective of any law or any provision of a
Finance Document to the contrary.
18.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full, each Finance Party (or any trustee or agent on its behalf) may
while a Default is continuing:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account (bearing interest at
an appropriate market rate) any moneys received from any
Guarantor or on account of any Guarantor's liability under this
Clause 18.
18.7 DEFERRAL OF GUARANTORS' RIGHTS
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full and unless the Agent otherwise directs, no Guarantor will
exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents:
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any
-51-
other guarantee or security taken pursuant to, or in connection
with, the Finance Documents by any Finance Party.
18.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by
any other guarantee or security now or subsequently held by any Finance
Party.
18.9 SPECIFIC PROVISIONS FOR SWISS GUARANTORS
(a) If and to the extent the payment obligations of a Guarantor
incorporated in Switzerland (a "Swiss Guarantor") Swiss Guarantor
as a Guarantor would, at the time payment is due, under Swiss
laws and regulations not be permitted or be of an amount
rendering the directors of that Swiss Guarantor personally liable
pursuant to Swiss law to any of its creditors as a consequence of
paying such amount, then such payment obligations shall remain
limited to the amount permitted to be paid and not triggering
such directors' liability. Such limitation amount shall however
in no event be less than the unrestricted equity capital surplus
(including the unrestricted portion of general reserves, other
free reserves, retained earnings and current net profits) freely
available for distribution to the shareholder(s) of that Swiss
Guarantor under the Swiss Code of Obligations at the time or
times payment(s) under or pursuant to this Agreement is requested
from that Swiss Guarantor. Each Swiss Guarantor and its immediate
Holding Company hereby undertake to take all such measures as may
then be necessary to make the payment valid and non-refundable
under Swiss corporate law.
(b) If and to the extent at the time a payment from a Swiss Guarantor
as Guarantor is demanded such payment is subject to the
limitation pursuant to paragraph (a) above and may only be made
as a distribution of profits, then such payment shall only be
made upon completion of the following measures to the extent they
are from time to time required under Swiss corporate law:
(i) an audited balance sheet of that Swiss Guarantor has been
prepared;
(ii) the auditors of that Swiss Guarantor have approved the
amount of the proposed payment based on applicable Swiss
corporate law and the articles of association;
(iii) the shareholder(s) of that Swiss Guarantor must have had
access to the above mentioned audited balance sheet as
well as to the auditors' report; and
(iv) the shareholders of that Swiss Guarantor must properly be
convened (or all shareholders must be present) and vote in
favour of the payment of the amount under the guarantee
given by that Swiss Guarantor.
(c) Each Swiss Guarantor and each immediate Holding Company of each
Swiss Guarantor and the Parent undertake to take and/or cause all
measures necessary or useful, as the case may be, to implement
the foregoing documents and other acts referred to in paragraph
(b) above.
Subject only to the foregoing, such payments to be made by a Swiss
Guarantor under this guarantee shall be timely made in full as provided
for in this Agreement.
-52-
18.10 SPECIFIC PROVISION FOR U.S. GUARANTORS
Notwithstanding any term or provision of this Clause 18 or any other
term in this Agreement or any Finance Document, if any US federal or
state fraudulent conveyance laws are determined by a court of competent
jurisdiction to be applicable to the obligations of a U.S. Guarantor
hereunder, such U.S. Guarantor's obligations hereunder shall be limited
to the maximum aggregate amount of the obligations that would not
render such U.S. Guarantor's obligations subject to avoidance under
applicable US federal or state fraudulent conveyance laws
-53-
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
19. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this
Clause 19 to each Finance Party on the date of this Agreement except
that:
(a) to the extent that any representation and warranty relates to a
Finance Document which has not at the date of this Agreement been
executed it shall be made on the date of that Finance Document in
relation to that Finance Document;
(b) the representations and warranties set out in Clause 19.21
(Information Memorandum) are only made on the date of the
Information Memorandum.
19.1 STATUS
(a) It is a corporation, duly incorporated and validly existing (and,
with respect to any U.S. Obligor, in good standing) under the law
of its jurisdiction of incorporation.
(b) It and each of its Subsidiaries has the power to own its assets
and carry on its business as it is being conducted.
19.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document
are legal, valid, binding and (subject to the Legal Reservations)
enforceable obligations.
19.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not:
(a) conflict with any law or regulation applicable to it or any of
its Subsidiaries;
(b) contravene its constitutional documents; or
(c) breach (in a manner or to an extent which could reasonably be
expected to have a Material Adverse Effect) any agreement or
instrument binding upon it or any member of the Group or any of
its or any member of the Group's assets; or
(d) 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.
19.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery
of, the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
19.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required or desirable:
-54-
(a) to enable it lawfully to enter into, exercise its rights and
comply with its obligations in the Finance Documents to which it
is a party;
(b) to make the Finance Documents to which it is a party admissible
in evidence in its jurisdiction of incorporation (save for any
filings or registrations required in relation to the Security
constituted by the Security Documents, which filings or
registrations will be made promptly after execution of the
relevant Security Documents and in any event within applicable
time limits); and
(c) to create the Security constituted by the Security Documents to
which it is party and, subject to the Legal Reservations, to
ensure that such Security has the ranking specified therein, have
been obtained or effected and are in full force and effect.
19.6 GOVERNING LAW AND ENFORCEMENT
(a) The choice of English law as the governing law of the Finance
Documents (or, in respect of any Security Document to which it is
a party, the relevant governing laws of that Security Document)
will (subject to the Legal Reservations) be recognised and
enforced in its jurisdiction of incorporation.
(b) Any judgment obtained in England in relation to a Finance
Document (or, in respect of any Security Document to which it is
a party, any judgment obtained in the courts which are expressed
to have jurisdiction to hear disputes under such Security
Document) will (subject to the Legal Reservations) be recognised
and enforced in its jurisdiction of incorporation.
19.7 NO FILING OR STAMP TAXES
Save to the extent identified in any legal opinion delivered pursuant
to Clause 4 (Conditions of Utilisation) or Clause 25 (Changes to the
Obligors), under the law of its jurisdiction of incorporation it is not
necessary that the Finance Documents be filed, recorded or enrolled
with any court or other authority in that jurisdiction or that any
stamp, registration or similar tax be paid on or in relation to the
Finance Documents or the transactions contemplated by the Finance
Documents.
19.8 NO DEFAULT
(a) No Event of Default is continuing or would result from the making
of any Utilisation.
(b) No other event or circumstance is outstanding which constitutes a
default under any other agreement or instrument which is binding
on it or any of its Subsidiaries or to which its (or its
Subsidiaries') assets are subject which could reasonably be
expected to have a Material Adverse Effect.
19.9 SECURITY INTERESTS
(a) It is the absolute legal and, where applicable, beneficial owner
of all the assets over which it purports to create Security
pursuant to the Security Documents and (subject to the Legal
Reservations) each Security Document to which it is a party
creates the Security which that Security Document purports to
create or, if that Security Document purports to evidence
Security, accurately evidences Security which has been validly
created.
-55-
(b) The shares of any member of the Group mortgaged or pledged by it
pursuant to the Security Documents are all fully paid up and not
subject to any option to purchase or similar rights. The
constitutional documents of any such member of the Group do not
restrict or inhibit any transfer of such shares on creation or
enforcement of such Security over such shares.
19.10 REPORTS
Having made all reasonable enquiries in the circumstances:
(a) it is not aware of any materially adverse inaccuracy as to
factual matters relating to the Group contained in the Reports;
and
(b) it is not aware of any facts or matters not stated in the
Reports, the omission of which make any statements contained
therein (taking the Reports as a whole) misleading in any
materially adverse respect.
19.11 NO MISLEADING INFORMATION
All written information (other than the Information Memorandum)
supplied by any member of the Group after the date of this Agreement to
the Agent in or pursuant to or in connection with any Finance Document
is correct in all material respects as at the date it was given and was
not misleading in any material respect as at the date it was given.
19.12 FINANCIAL STATEMENTS
(a) Its Original Financial Statements were prepared in accordance
with US GAAP (in the case of the Parent) or UK GAAP (in the case
of AOC and each other Original Obligor incorporated in England)
or Relevant GAAP (in the case of any other Obligor) in each case
consistently applied unless expressly disclosed to the contrary.
(b) Its Original Financial Statements fairly represent its financial
condition and operations (consolidated in the case of the Parent)
during the relevant financial year.
19.13 MATERIAL ADVERSE CHANGES
(a) There has been no change in the Business or the assets of the
Group since 31 December 2000 which has or is reasonably likely to
have a Material Adverse Effect.
(b) 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 paragraph
(a)(i) of Clause 20.1 (Financial Statements) which has or is
reasonably likely to have a Material Adverse Effect.
19.14 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying
to companies generally.
19.15 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which are likely to be adversely
determined and, if adversely determined, would reasonably be expected
to have a Material Adverse Effect have (to the best of its knowledge
and belief) been started or threatened against it or any of its
Subsidiaries.
-56-
19.16 NO SECURITY OR GUARANTEES:
(a) No Security (or agreement to create the same) exists on or over
its or any of its Subsidiaries' assets, other than Permitted
Security (or an agreement to create the same).
(b) Neither it nor any of its Subsidiaries has granted or agreed to
grant any guarantee, other than a Permitted Guarantee.
19.17 ASSETS
It or its Subsidiaries have good title to or valid leases or licences
of or are otherwise entitled to use all material assets (including,
without limitation, all Intellectual Property) necessary to conduct the
Business.
19.18 CONSENTS FOR BUSINESS OPERATIONS
All consents, licences and filings have been obtained or effected which
are necessary for the carrying on of the Business and all such
consents, licences and filings are in full force and effect and there
are no circumstances known to it which indicate that any such consents,
licences 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,
licence or filing or revocation or variation of any such consent,
licence or filing does not and could not reasonably be expected to have
a Material Adverse Effect.
19.19 TAXATION
(a) It is not overdue in the filing of any Tax returns and it has
duly and punctually paid and discharged all Taxes imposed upon it
or its assets within the time period allowed without incurring
penalties save, 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.
(b) No claims are being or are to its knowledge 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.
19.20 AGREED FINANCIAL PROJECTIONS
(a) All material statements of fact relating to the Business which
are reflected in the Agreed Financial Projections were true and
accurate in all material respects at the date at which the Agreed
Financial Projections were prepared.
(b) The Agreed Financial Projections represent the honestly held
opinions and views as at the date at which the Agreed Financial
Projections were prepared of AOC and the Management regarding the
future performance of the Business and the other subject matter
thereof and were arrived at after careful consideration and were
based on reasonable grounds.
(c) The projections and forecasts contained in the Agreed Financial
Projections were based upon assumptions (including assumptions as
to the future performance of the Business, inflation, price
increases and efficiency gains) which AOC and the Management
carefully considered and considered to be fair and reasonable as
at the date at which the Agreed Financial Projections were
prepared.
-57-
(d) The Agreed Financial Projections do not omit to disclose any
matter known to AOC or Management after due and careful enquiry
where failure to disclose such matter would result in the Agreed
Financial Projections (or any information or projection contained
therein) being misleading in any material respect as at the date
at which the Agreed Financial Projections were prepared.
(e) Nothing has occurred or come to light since the date as at which
the Agreed Financial Projections were prepared which, insofar as
the Parent, AOC or Management is aware, renders any material
facts contained therein materially inaccurate or misleading or
which makes any of the opinions, projections or forecasts
contained therein materially unfair or unreasonable or renders
any of the assumptions upon which the projections are based
materially unfair or unreasonable.
19.21 INFORMATION MEMORANDUM
(a) The material statements of fact in relation to the assets,
financial condition and operations of the Business and the Group
contained in the Information Memorandum were true, complete and
accurate in all material respects at the date ascribed thereto in
the Information Memorandum or (if no date is ascribed thereto) at
the date of the Information Memorandum.
(b) The opinions and views expressed in the Information Memorandum
represent the honestly held opinions and views of AOC and
Management as at the date of the Information Memorandum and were
arrived at after careful consideration and were based on
reasonable grounds.
(c) All projections and forecasts contained in the Information
Memorandum were based upon assumptions (including assumptions as
to the future performance of the Business, inflation, price
increases and efficiency gains) which AOC and Management
carefully considered and considered to be fair and reasonable as
at the date of the Information Memorandum.
(d) The Information Memorandum was not misleading at the date thereof
in any material respect nor did it omit to disclose any matter
failure to disclose which would result in any information
contained in the Information Memorandum being misleading in any
respect which could reasonably be expected to be materially
adverse to the interests of the Finance Parties under the Finance
Documents.
19.22 ENVIRONMENTAL WARRANTIES:
Save as expressly disclosed in the Environmental Report:
(a) it, and each of its Subsidiaries, are and have at all times been,
in compliance with all Environmental Laws and all Environmental
Approvals necessary in connection with the ownership and
operation of their respective businesses 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;
(b) to the best of its knowledge and belief having made due and
careful enquiry, there are no circumstances which could
reasonably be expected to prevent it or any of its Subsidiaries
being in compliance with any Environmental Law, including,
without
-58-
limitation, obtaining or being in compliance with any
Environmental Approvals, in each case where failure to do so
could reasonably be expected to have a Material Adverse Effect;
(c) there are no past or present acts or omissions of it or (to the
best of its knowledge and belief having made due and careful
enquiry) events, state of facts or circumstances which have
resulted in (or could reasonably be expected to result in) any
third party (including a regulatory authority) taking any action
or making any claim against it or any of its Subsidiaries under
any Environmental Laws including remedial action (in particular
in relation to contaminated land) or the revocation, suspension,
variation or non renewal of any Environmental Approval, where
such action or claim could reasonably be expected to have a
Material Adverse Effect;
(d) neither it nor any of its Subsidiaries has notice of any
complaints, demands, civil claims, enforcement proceedings,
requests for information, or of any action required by any
regulatory authority and there are no investigations pending or
threatened in relation to the failure of it or any of its
Subsidiaries to obtain any Environmental Approval or comply with
Environmental Law in any such case which has or is reasonably
likely to have a Material Adverse Effect; and
(e) neither it, nor any of its Subsidiaries, has any actual or
contingent contractual obligation in respect of liabilities
arising under Environmental Laws or otherwise in connection with
matters pertaining to the Environment, in each case which is
material to the interests of the Finance Parties under the
Finance Documents.
19.23 INSURANCE
It and each of its Subsidiaries have in place insurances complying with
the requirements of paragraph (a) of Clause 22.7 (Insurance) and no
act, omission, event or default has occurred which has rendered or
could reasonably be expected to render any policies of insurance taken
out by it void or voidable to an extent or in a manner which could
reasonably be expected to be materially adverse to the interests of the
Finance Parties under the Finance Documents.
19.24 US GOVERNMENTAL REGULATION
(a) It is not an "investment company" or an "affiliated person" of an
"investment company" as such terms are defined in the United
States Investment Company Act of 1940 or otherwise subject to
regulation under the United States Public Utility Holding Company
Act of 1935, the United States Federal Power Act, the United
States Interstate Commerce Act or the United States Investment
Company Act of 1940.
(b) It is not subject to regulation under any other federal or state
statute or regulation which may limit its ability to incur
Financial Indebtedness under the Finance Documents or which may
otherwise render all or any portion of the obligations under the
Finance Documents unenforceable, in each case to an extent or in
a manner which has or could reasonably be expected to have a
Material Adverse Effect.
19.25 EMPLOYEE BENEFIT PLANS
(a) If it is subject to regulation under ERISA, it and each of its
ERISA Affiliates and each Pension Plan maintained by or
contributed to by it or them are in material compliance
-59-
with all applicable provisions and requirements of ERISA and the
Internal Revenue Code and all other applicable laws and
regulations.
(b) No ERISA Event has occurred or is reasonably expected to occur
which has or is reasonably likely to result in a Material Adverse
Effect.
(c) The present value of all accumulated benefit obligations under
each Pension Plan (based on the assumptions used for the purposes
of U.S. Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the
assets of such Pension Plan to an extent which has or is
reasonably likely to result in a Material Adverse Effect.
(d) The present value of all accumulated benefit obligations of all
underfunded Pension Plans (based on the assumptions used for the
purposes of U.S. Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value
of the assets of all such underfunded Pension Plans to an extent
which has or is reasonably likely to result in a Material Adverse
Effect.
(e) Each Pension Plan which is intended to be qualified under Section
401(a) of the Internal Revenue Code has been determined by the US
Internal Revenue Service to be so qualified or is in the process
of being submitted to the US Internal Revenue Service for
approval or will be so submitted during the applicable remedial
amendment period, and, nothing has occurred since the date of
such determination that would be reasonably likely to adversely
affect such determination (or, in the case of a Pension Plan with
no determination, nothing has occurred that would be reasonably
likely to materially adversely affect such qualification).
(f) There are no actions, suits or claims pending against or
involving any Pension Plan (other than routine claims for
benefits) or, to the knowledge of the Parent or any US Group
Member or any ERISA Affiliate, threatened, which would reasonably
be expected to be asserted successfully against any Pension Plan
and, if so asserted successfully, would reasonably be expected
either singly or in the aggregate to have a Material Adverse
Effect.
19.26 MARGIN STOCK
(a) No US Group Member is engaged nor will it engage principally, or
as one of its important activities, in the business of owning or
extending credit for the purpose of "buying" or "carrying" any
Margin Stock.
(b) None of the proceeds of the Loans or other extensions of credit
under this Agreement will be used, directly or indirectly, for
the purpose of buying or carrying any Margin Stock, for the
purpose of reducing or retiring any indebtedness that was
originally incurred to buy or carry any Margin Stock or for any
other purpose which might cause all or any Loans or other
extensions of credit under this Agreement to be considered a
"purpose credit" within the meaning of Regulation U or Regulation
X.
-60-
(c) No US Group Member or any agent acting on its behalf has taken or
will take any action which might cause the Finance Documents to
violate any regulation of the Board of Governors of the Federal
Reserve System of the United States.
19.26 REPETITION
The Repeating Representations are deemed to be made by each Obligor (by
reference to the facts and circumstances then existing) on:
(a) the date of each Utilisation Request and the first day of each
Interest Period; and
(b) in the case of an Additional Obligor, the day on which the
relevant company becomes (or it is proposed that the relevant
company becomes) an Additional Obligor.
20. INFORMATION UNDERTAKINGS
The undertakings in this Clause 20 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
20.1 FINANCIAL STATEMENTS
The Parent shall supply to the Agent in sufficient copies for all the
Lenders:
(a) as soon as the same become available, but in any event within 110
days after the end of each of its financial years:
(i) its audited consolidated financial statements for that
financial year; and
(ii) the audited financial statements of each Obligor for that
financial year; and
(b) as soon as the same become available, but in any event within 45
days after the end of each quarter of each of its financial years
its consolidated financial statements for that financial quarter.
20.2 COMPLIANCE CERTIFICATE
(a) The Parent shall supply to the Agent, with each set of financial
statements delivered pursuant to paragraph (a)(i) and (b) of
Clause 20.1 (Financial statements), a Compliance Certificate:
(i) setting out (in reasonable detail) computations as to
compliance with Clause 21 (Financial covenants) as at the
date as at which those financial statements were drawn up;
(ii) confirming the ratio of Total Net Debt to EBITDA (together
with a calculation of how the ratio has been determined)
for the purposes of Clause 8.7 (Surplus Cash Flow), the
definition of Available Amount in Clause 1.1 (Definitions)
and determining the Margin; and
(iii) (in the case of the audited financial statements)
confirming which companies constitute Material Group
Companies and details required by paragraph (c) of Clause
22.24 (Guarantors and Security).
(b) Each Compliance Certificate shall be signed by Management or two
directors of the Parent.
-61-
20.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered by the Parent pursuant
to Clause 20.1 (Financial statements) shall be certified by a
director of the relevant company as fairly representing its
financial condition as at the date as at which those financial
statements were drawn up.
(b) All financial statements of the Parent delivered or to be
delivered to the Agent under this Agreement shall be prepared in
accordance with the Approved Accounting Principles and shall
include (in the case of any consolidated financial statements of
the Parent) a consolidated cashflow statement. If as a result of
a change in accounting principles such financial statements are
required to be prepared on a different basis (and that difference
is or could reasonably be expected to be relevant to the
calculation of the financial ratios under this Agreement or
otherwise material to the interests of the Finance Parties under
this Agreement):
(i) the Obligors' Agent shall, as soon as reasonably
practicable after becoming aware of that change, so advise
the Agent;
(ii) on request of the Agent, the Obligors' Agent and the Agent
(on behalf of the Lenders) shall negotiate in good faith
with a view to agreeing such amendments to Clause 21
(Financial covenants) and/or the definitions of any or all
of the terms used therein as are necessary to give the
Lenders comparable protection to that contemplated at the
date of this Agreement;
(iii) if amendments satisfactory to the Lenders are agreed by
the Obligors' Agent and the Agent in writing within 30
days of such notification to the 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
Obligors' Agent shall either:
(1) deliver to the Agent, in reasonable detail and in a
form satisfactory to the Agent, details of all such
adjustments as need to be made to the relevant
financial statements in order to bring them into line
with Approved Accounting Principles (any reference in
this Agreement to those financial statements shall be
construed as a reference to those financial
statements as so adjusted); or
(2) ensure that the relevant financial statements are
prepared in accordance with Approved Accounting
Principles.
20.4 OPERATING BUDGET
The Parent shall, as soon as reasonably practicable and in any event
not more than 60 days after the beginning of each of its financial
years (commencing with the financial year beginning 1 January 2002)
deliver to the Agent (in sufficient copies for the Lenders) its
Operating Budget (in substantially the format used by the Parent in its
most recent operating budget prior to the date of this Agreement or (if
different) in a format and with a level of information satisfactory to
the Agent (acting reasonably)) for such financial year.
-62-
20.5 INFORMATION: MISCELLANEOUS
The Parent shall supply to the Agent (in sufficient copies for all the
Lenders, if the Agent so requests):
(a) all documents dispatched by the Parent to its shareholders (or
any class of them) or its creditors generally at the same time as
they are dispatched;
(b) promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which are
current, threatened or pending against any member of the Group,
and which would, if adversely determined, have or be reasonably
likely to have a Material Adverse Effect; and
(c) promptly, such further information regarding the financial
condition, business and operations of any member of the Group as
any Finance Party (through the Agent) may reasonably request,
except to the extent that disclosure of the information would
breach any law, regulation, stock exchange requirement or duty of
confidentiality.
20.6 NOTIFICATION OF DEFAULT
(a) Each Obligor shall notify the Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon becoming
aware of its occurrence (unless that Obligor is aware that a
notification has already been provided by another Obligor).
(b) Promptly upon a request by the Agent, the Parent shall supply to
the Agent a certificate signed by two of its directors or senior
officers on its behalf certifying that no Default is continuing
(or if a Default is continuing, specifying the Default and the
steps, if any, being taken to remedy it).
20.7 USE OF WEBSITES
(a) The Parent may satisfy its obligation under this Agreement to
deliver any information in relation to those Lenders who accept
this method of communication by posting this information onto an
electronic website designated by the Parent and the Agent (the
"DESIGNATED WEBSITE") if:
(i) the Agent expressly agrees (after consultation with each
of the Lenders) that it will accept communication of the
information by this method;
(ii) both the Parent and the Agent are aware of the address of
and any relevant password specification for the Designated
Website; and
(iii) the information is in a format previously agreed between
the Parent and the Agent.
If any Lender does not agree to the delivery of information
electronically then the Agent shall notify the Parent accordingly
and the Parent shall supply the information to the Agent (in
sufficient copies for each relevant Lender) in paper form. In any
event the Parent shall supply the Agent with at least one copy in
paper form of any information required to be provided by it.
(b) The Agent shall supply each relevant Lender with the address of
and any relevant password specifications for the Designated
Website following designation of that website by the Parent and
the Agent.
-63-
(c) The Parent shall promptly upon becoming aware of its occurrence
notify the Agent if:
(i) the Designated Website cannot be accessed due to technical
failure;
(ii) the relevant password specifications for the Designated
Website change;
(iii) any new information which is required to be provided under
this Agreement is posted onto the Designated Website;
(iv) any existing information which has been provided under
this Agreement and posted onto the Designated Website is
amended; or
(v) the Parent becomes aware that the Designated Website or
any information posted onto the Designated Website is or
has been infected by any electronic virus or similar
software.
If the Parent notifies the Agent under paragraph (c)(i) or
paragraph (c)(v) above, all information to be provided by the
Parent under this Agreement after the date of that notice shall
be supplied in paper form unless and until the Agent and the
relevant Lenders are satisfied that the circumstances giving rise
to the notification are no longer continuing.
(d) Any Lender may request, through the Agent, one paper copy of any
information required to be provided under this Agreement which is
posted onto the Designated Website. The Parent shall comply with
any such request within ten Business Days.
21. FINANCIAL COVENANTS
21.1 FINANCIAL DEFINITIONS
In this Clause 21 and in this Agreement:
"CASHFLOW" means, in respect of any period, net cash of the Group
provided by operating activities (as set out in the consolidated
cashflow statement of the Group for that period ("NET CASH"):
(a) minus all Capital Expenditure during that period;
(b) 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;
(c) minus the amount of any dividends (and the amount for purchase of
its own shares) paid in cash by any member of the Group to any
person who is not a member of the Group;
(d) minus the amount of any net income of any subsidiary of AOC taken
into account in Net Cash for that period which whether by law or
for any other reason cannot be distributed by way of dividend,
loan or other means to AOC.
"CONSOLIDATED NET FINANCE CHARGES" means, in respect of any period, the
aggregate of:
(a) Net Interest for that period; and
-64-
(b) all scheduled repayments of principal under the terms of any
Indebtedness for Borrowed Money of any member of the Group
(excluding any Indebtedness for Borrowed Money between any member
of the Group and any other member of the Group) falling due
during that period:
(i) including, without limitation, all capital payments
falling due in respect of any Financial Indebtedness
falling within paragraph (d) of the definition of that
term; and
(ii) excluding any repayment or prepayment of any overdraft or
revolving credit facility falling due during that period
and capable of being simultaneously redrawn under the
terms of the relevant facility;
(iii) "scheduled repayments" do not for these purposes include:
(1) voluntary prepayments under the terms of any
Indebtedness for Borrowed Money; or
(2) repayments or prepayments of Indebtedness for
Borrowed Money which are not part or all of a Loan
but which are made by drawing other Indebtedness for
Borrowed Money (other than a Loan) which is Permitted
Indebtedness; and
(iv) for the purposes of calculating the amount of scheduled
repayments under this definition only, any reduction in
any repayment instalment due under Clause 7 (Repayment) as
a result of any voluntary prepayment shall be ignored in
calculating the amount of such scheduled repayment.
"EBIT" means, in respect of any period, the consolidated net income 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) before any inclusion of Interest Receivable;
(d) excluding extraordinary or exceptional items;
(e) after deducting (to the extent otherwise included) the amount of
net income (or adding back the loss) of any member of the Group
(other than the Parent) which is attributable to any third party
(not being a member of the Group) which is a shareholder in such
member of the Group;
(f) 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; and
(g) 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
-65-
disposals made in the ordinary course of trading) during such
period and any loss on any revaluation of any asset during such
period.
"EBITDA" means, in respect of any period, EBIT for such period adding
back (to the extent deducted in calculating EBIT) depreciation and
amortisation of tangible and intangible assets.
"INTEREST" means interest and amounts in the nature of interest paid or
payable in respect of any Indebtedness for Borrowed Money of any member
of the Group excluding any interest paid or payable on Indebtedness for
Borrowed Money between any member of the Group and any other member of
the Group but including, without limitation:
(a) the interest element of capital leases;
(b) discount and acceptance fees payable (or deducted) in respect of
any Indebtedness for Borrowed Money;
(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 Indebtedness for Borrowed Money
and is issued by a third party on behalf of a member of the
Group;
(d) repayment and prepayment penalties or premiums payable or
incurred in repaying or prepaying any Indebtedness for Borrowed
Money (other than in respect of the Senior Notes); and
(e) commitment, utilisation and non-utilisation fees payable or
incurred in respect of Indebtedness for Borrowed Money.
"INTEREST PAYABLE" means, in respect of any period, the aggregate of:
(a) Interest accrued (whether or not paid or capitalised) during that
period; and
(b) the amount of the discount element of any Indebtedness for
Borrowed Money amortised during such period;
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 in relation to that period; and
(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 in relation to that period.
"INTEREST RECEIVABLE" means, in respect of any period, the amount of
interest (which for this purpose shall include all interest and amounts
in the nature of interest, including (without limitation) amounts of
the type described in paragraphs (a) to (e) (inclusive) of the
definition of "Interest" above) accrued due (whether or not received)
to members of the Group (other than by other members of the Group)
during such period.
"NET INTEREST" means, in respect of any period, the amount of Interest
Payable during that period less the amount of Interest Receivable
during that period.
-66-
"QUARTER DATE" means each of 31 March, 30 June, 30 September and 31
December.
"RELEVANT PERIOD" means each period of twelve months ending on the last
day of each Quarter Date.
"TOTAL NET DEBT" means, at any time, the aggregate outstanding
principal or capital amount of all Indebtedness for Borrowed Money of
the Group calculated on a consolidated basis but (1) excluding any
Indebtedness for Borrowed Money between any member of the Group and any
other member of the Group (2) subtracting the aggregate amount of cash
at hand and at bank and Cash Equivalents of the Group at such time
PROVIDED THAT:
(a) in the case of capital leases referred to in the definition of
Financial Indebtedness, only the capitalised value of any items
falling thereunder as determined in accordance with Approved
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.
"WORKING CAPITAL" means trade and other debtors/receivables in respect
of operating items plus prepayments and inventories less trade and
other creditors/payables in respect of operating items and less accrued
expenses and accrued costs.
21.2 FINANCIAL CONDITION
The Parent shall ensure that:
(a) Cashflow Cover: The ratio of Cashflow to Consolidated Net Finance
Charges for the Relevant Period ending 31 December 2001 and each
Relevant Period thereafter shall not be less than 1.05:1.
(b) Leverage: The ratio of Total Net Debt on each of the Quarter
Dates specified in Column 1 below to EBITDA for the Relevant
Period ending on such Quarter Date (subject to Clause 21.3
(Financial Testing)) shall not be more than the ratio set out in
Column 2 below corresponding to that Quarter Date:
COLUMN 1 COLUMN 2
QUARTER DATE TOTAL NET DEBT: EBITDA
31 December 2001 2.25:1
31 March 2002 2.25:1
30 June 2002 2.25:1
30 September 2002 2.00:1
31 December 2002 2.00:1
31 March 2003 2.00:1
30 June 2003 2.00:1
30 September 2003 1.75:1
31 December 2003 1.75:1
31 March 2004 and each Quarter 1.50:1
Date thereafter
-67-
(c) Interest Cover: The ratio of EBITDA to Net Interest for the
Relevant Period ending 31 December 2001 and each Relevant Period
thereafter shall not be less than 5.5:1.
21.3 FINANCIAL TESTING
(a) The financial covenants set out in Clause 21.2 (Financial
Condition) shall be tested by reference to each of the financial
statements delivered pursuant to paragraphs (a)(i) or (b) of
Clause 20.1 (Financial Statements) and/or each Compliance
Certificate delivered pursuant to Clause 20.2 (Compliance
Certificate).
(b) For the purpose of testing the ratio set out in paragraph (b) of
Clause 21.2 (Financial Condition) and the definition of Leverage
Ratio, EBITDA for a Relevant Period shall also:
(i) (where the Relevant Acquisition has been made on a date
(the "ACQUISITION DATE") during that Relevant Period) have
added to it an amount representing the Parent's good faith
estimate (as certified to the Agent by Management or two
directors of the Parent together with reasonable
supporting evidence and calculations) of EBITDA of the
company(ies) or business comprising the Relevant
Acquisition for the period from the start of that Relevant
Period to the Acquisition Date and for this purpose, the
definitions of EBIT and EBITDA in Clause 21.1 (Financial
Definitions) shall be applied, mutatis mutandis, to the
company(ies) or business comprising the Relevant
Acquisition;
(ii) (where a disposal of all or substantially all of the
shares or all or substantially all of the assets of a
member of the Group (each a "RELEVANT DISPOSAL") has been
made by a member of the Group on a date (the "DISPOSAL
DATE") during that Relevant Period) have deducted from it
an amount representing the Parent's good faith estimate
(as certified to the Agent by the Management or two
directors of the Parent together with reasonable
supporting evidence and calculations) of EBITDA
attributable to the company(ies) or business comprising
the Relevant Disposal for the period from the start of
that Relevant Period to the Disposal Date and for this
purpose the definitions of EBIT and EBITDA in Clause 21.1
(Financial Definitions) shall be applied, mutatis
mutandis, to the company(ies) or business comprising the
Relevant Disposal.
22. GENERAL UNDERTAKINGS
The undertakings in this Clause 22 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
22.1 AUTHORISATIONS
Each Obligor shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in
full force and effect; and
(b) supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its
jurisdiction of incorporation to enable it to perform its obligations
under the Finance Documents and to ensure the legality,
-68-
validity, (subject to the Legal Reservations) enforceability or
admissibility in evidence in its jurisdiction of incorporation of any
Finance Document.
22.2 COMPLIANCE WITH LAWS AND MAINTENANCE OF AUTHORITIES
Each Obligor will, and will procure that each of its Subsidiaries
(other than a Dormant Company) will:
(a) do all such things as are necessary to maintain its corporate
existence;
(b) ensure that it has the right and is duly qualified to conduct its
business and will obtain and maintain all material consents and
make all material filings necessary for the conduct of such
business and take all steps necessary to ensure that the same are
in full force and effect except where failure to do so could not
reasonably be expected to have a Material Adverse Effect; and
(c) comply with all laws, regulations and directives binding upon it
and procure compliance by all of its respective officers and
employees with all applicable laws, regulation and directives
except where failure to be in compliance could not reasonably be
expected to have a Material Adverse Effect.
22.3 NEGATIVE PLEDGE
(a) No Obligor shall (and each Obligor shall ensure that none of its
Subsidiaries will) create or permit to subsist any Security over
any of its assets.
(b) Paragraph (a) above does not apply to:
(i) liens arising solely by operation of law and in the
ordinary course of business;
(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 arising by operation of law or by
contract by virtue of the provision to any member of the
Group of clearing bank facilities, overdraft facilities or
hedging facilities permitted under this Agreement;
(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
its standard terms and the goods in question are supplied
on credit;
(v) Security (except for any Security expressed to be created
as a floating charge) arising under finance leases, hire
purchase, conditional sale agreements or other agreements
for the acquisition of assets on deferred payment terms
permitted under Clause 22.15 (Leasing Arrangements) and
only to the extent such Security is granted by the
relevant Obligor over assets comprised within or
constituted by such arrangements;
(vi) Security arising under the Security Documents;
(vii) Security existing at the time of acquisition on or over
any asset acquired by it after the date of this Agreement
or, in the case of a person which becomes a
-69-
member of the Group after the date of this Agreement, any
Security existing on or over its assets when it became a
member of the Group, in each case, if:
(A) such Security was not created in contemplation of or
in connection with that acquisition or, as the case
may be, it becoming a member of the Group;
(B) the principal amount secured has not been increased
in contemplation of or in connection with that
acquisition or, as the case may be, it becoming a
member of the Group;
(viii) any Security securing the Existing Bank Facilities
PROVIDED THAT no such Security is permitted after the
Closing Date;
(ix) any Security to which the Majority Lenders have given
their prior written consent;
(x) existing Security granted by Bycosin AB being a floating
charge and a real estate mortgage and securing
indebtedness of Bycosin AB to Handelsbanken up to Swedish
Kroner 25,500,000, which Security was existing at the time
Bycosin AB became a member of the Group PROVIDED THAT such
floating charge is discharged and released within 45 days
of the date of this Agreement and PROVIDED THAT the
indebtedness secured by such real estate mortgage is
discharged in full within 45 days of the date of this
Agreement;
(xi) any Security securing indebtedness the principal amount of
which (when aggregated with the principal amount of any
other indebtedness which has the benefit of Security other
than any permitted under paragraphs (i) to (x) above) does
not exceed $5,000,000 (or its equivalent in another
currency or currencies) at any time.
22.4 DISPOSALS
(a) No Obligor shall (and each Obligor shall ensure that none of its
Subsidiaries will), enter into a single transaction or a series
of transactions (whether related or not) and whether voluntary or
involuntary to sell, lease, transfer or otherwise dispose of any
asset.
(b) Paragraph (a) above does not apply to any sale, lease, transfer
or other disposal:
(i) of assets (other than the Key Properties and shares in any
Obligor) made in the ordinary course of trading of the
disposing entity;
(ii) of assets (other than the Key Properties and shares in any
Obligor) in exchange for other assets of a similar nature
and value;
(iii) of assets (other than Key Properties and shares in any
Obligor) which are obsolete for the purpose for which such
assets are normally utilised or which are no longer
required for the purpose of the Business;
(iv) of assets (other than Key Properties or shares in any
Obligor) by any member of the Group to an Obligor PROVIDED
THAT if such disposal is of assets which are
-70-
secured pursuant to a Security Document immediately prior
to such disposal it remains secured under a Security
Document immediately after such disposal;
(v) of assets from a member of the Group which is not an
Obligor to any other member of the Group;
(vi) the application of funds or the disposal of Cash
Equivalents by any member of the Group:
(A) in the ordinary course of its business for any
purpose not prohibited under the Finance Documents;
or
(B) in any other manner permitted under the Finance
Documents;
(vii) of assets of or shares in a member of the Group (other
than shares in any Obligor) on arm's length terms where
the business of that Subsidiary is not required for the
operation of the Business and such business has been, or
is in the process of being, wound down or terminated;
(viii) of assets (other than Key Properties or shares in any
Obligor) where the net disposal proceeds of such assets
are reinvested (by the member of the Group making such a
disposal or by an Obligor who has entered into a Security
Document) in other assets of a similar nature and value;
(ix) leases of assets (including real estate) which are not (in
the reasonable opinion of the member of the Group granting
such lease) required for the efficient running of its
business on arm's length terms to third parties where the
annual rental for any such lease does not
exceed(pound)50,000 (or its equivalent in other
currencies) per annum and the term of such lease is not
more than 2 years (or if it is more than 2 years is
capable of being terminated at the option of the lessor at
least every 2 years during its term);
(x) to which the Majority Lenders have given their prior
written consent; and
(xi) of assets (other than Key Properties or shares in any
Obligor) where the aggregate fair market value of the
assets so sold, leased, transferred or otherwise disposed
of by members of the Group (which are not permitted to be
disposed of pursuant to paragraphs (i) to (x) above) in
any financial year of the Parent does not exceed
$5,000,000 (or its equivalent in other currencies).
(c) Any asset disposed of in accordance with sub-paragraph (iv) of
paragraph (b) above which is subject to fixed Security under a
Security Document at the time of disposal shall be subject to
equivalent fixed Security under a Security Document following
disposal and the relevant Obligor will take all steps (if any)
necessary to create, perfect or register such Security and will
deliver to the Agent such evidence as the Agent shall reasonably
require of due execution of the relevant Security Document
together with a legal opinion satisfactory to the Agent (acting
reasonably).
(d) No disposal shall be permitted by this Clause 22.4 which is
prohibited by Clause 22.22 (Holding Companies).
-71-
22.5 MERGER
(a) No Obligor shall (and each Obligor shall ensure that none of the
Subsidiaries will) enter into any amalgamation, demerger, merger
or corporate reconstruction unless the Majority Lenders have
given their prior written consent thereto save that a member of
the Group may merge with another member of the Group pursuant to
a solvent re-organisation PROVIDED THAT:
(i) AOC may not merge with any of its Holding Companies;
(ii) if an Obligor merges with any member of the Group that is
not an Obligor that Obligor shall be the surviving entity;
(iii) no such merger shall be permitted if it would reasonably
be expected to be prejudicial to any Transaction Security;
and
(iv) the surviving entity of any such merger would be liable
for the obligations of the entity it has merged with.
(b) Paragraph (a) above does not apply to any disposal permitted
under Clause 22.4 (Disposals).
22.6 CHANGE OF BUSINESS
The Parent shall procure that no substantial change is made to the
general nature of the business of the Group taken as a whole from that
carried on at the date of this Agreement (and taking into account the
potential acquisition of the Identified Target and any other changes to
the business of the Group contemplated by the Information Memorandum).
22.7 INSURANCE
(a) The Parent will ensure that insurances in respect of all the
material assets and material business and material potential
liabilities of an insurable nature of the Group as a whole are
effected and thereafter maintained with reputable insurers of
good standing. Such insurances must:
(i) provide cover against all risks which are normally insured
against by other companies owning or possessing similar
assets or carrying on similar business as the Group as a
whole;
(ii) be in such amounts as would in the circumstances be
prudent for the Group as a whole taking into account the
size and nature of the business carried on, and the assets
owned, by the Group as a whole and the jurisdictions in
which such businesses are carried on and such assets
located;
(iii) in the case of Material Insurances, be (in relation to
those Material Insurances in place as at the date of this
Agreement or which are put in place between the date of
this Agreement and the Closing Date, within 30 days of the
Closing Date and in relation to any Material Insurances
put in place after the Closing Date at the time they are
put in place) in the joint names of AOC and/or the owner
of the relevant assets and the Security Agent and:
(1) provide that the insurance shall not be rendered
void, voidable or unenforceable by reason of any
non-disclosure by the Security Agent, that
-72-
the insurer will give not less than 28 days written
notice to the Security Agent of any intention to
avoid such insurance and that the Security Agent
shall not in any circumstances be liable for the
relevant premium; and
(2) contain a loss payee clause providing that following
the written declaration by the Agent that an Event of
Default has occurred which is continuing, all moneys
payable in excess of $2,500,000 (or its equivalent in
other currencies) shall (unless otherwise instructed
by the Security Agent) be paid to (or to the order
of) the Security Agent (for application in accordance
with Clause 29.10 (Application of Proceeds by
Security Agent), which shall alone be entitled to
give a good discharge therefor.
(b) The Parent will:
(i) supply to the Agent upon reasonable notice copies of each
Material Insurance, together with the current premium
receipts relating thereto (or, if copies of such insurance
are not then available a letter from the relevant
insurance broker confirming in reasonable detail the
matters covered by any such insurance, the financial
limits to that cover, the members of the Group to which
such cover relates, that the premiums relating to such
insurance which are due have been paid and confirming
compliance with paragraphs (a)(iii)(1) and (2) above;
(ii) promptly notify the Agent in writing of any material
change to its cover in respect of Material Insurances from
time to time; and
(iii) promptly notify the Agent in writing of any claim under
any of its Material Insurance which is for, or is
reasonably likely to result in a claim under such policy
for, an amount in excess of $5,000,000 (or its equivalent
in other currencies).
22.8 TAXATION
Each Obligor shall (and each Obligor shall ensure that each of its
Subsidiaries will) duly and punctually pay and discharge all Taxes
imposed upon it or its assets within the time period allowed without
incurring penalties (save to the extent that (a) payment is being
contested in good faith and adequate provision or reserves are being
maintained for those Taxes or (b) failure to make such payment could
not reasonably be expected to have a Material Adverse Effect).
22.9 HEDGING ARRANGEMENTS
(a) The Obligors' Agent shall procure that, within 90 days of the
date of this Agreement, a Borrower or Borrowers acceptable to the
Agent enter into hedging agreements with a lender or lenders
implementing the hedging strategy set out in the Hedging Strategy
Letter.
(b) Each Borrower will ensure, and each Hedging Bank agrees, that:
(i) any Hedging Agreement to which it is at any time party
will be in the form of the ISDA 1992 Master Agreement and
will provide for "Second Method" (that is, two way
payments) in the event of a termination of any hedging
transaction
-73-
entered into under such Hedging Agreement whether upon a
Termination Event or an Event of Default (as defined
therein);
(ii) if, on termination of any hedging transaction under any
Hedging Agreement to which any Borrower is a party, a
settlement amount or other amount falls due from a Hedging
Bank to any Borrower then, if any of the Transaction
Security has become enforceable, that amount shall be paid
by such Hedging Bank to the Security Agent and treated as
proceeds of enforcement of the Transaction Security for
application in the order prescribed by Clause 29.10
(Application of Proceeds by Security Agent);
(iii) each Hedging Agreement (and any amendment to any Hedging
Agreement) shall be delivered to the Agent as soon as
reasonably practicable after it has been entered into;
(iv) the Hedging Agreements to which they are party will not
(unless the Majority Lenders have otherwise consented in
writing) be amended, varied or supplemented in a manner
which would result in:
(1) any payment under any such Hedging Agreement being
required to be made by a Borrower earlier than the
date originally provided for in the relevant Hedging
Agreement; or
(2) any Borrower becoming liable to make an additional
payment (or increase an existing payment) under any
such Hedging Agreement which liability does not arise
from the original provisions of that Hedging
Agreement
if, in either case that would be inconsistent with the
Hedging Strategy Letter or the requirements of this Clause
22.9.
(c) Each Lender which is a Hedging Bank undertakes that it will not
(unless the Majority Creditors have otherwise consented in
writing) demand (other than as may be necessary in order to
exercise any right to terminate or close out any hedging
transaction as provided in and permitted under paragraph (d)
below) payment, prepayment or repayment of, or any distribution
in respect of, or on account of, any of the obligations of the
relevant Borrower to it under any Hedging Agreement to which it
is party in cash or in kind except:
(i) for scheduled payments arising under the original terms of
any Hedging Agreement to which it is party (without regard
to any amendments made after the date of such Hedging
Agreement prohibited by paragraph (b)(iii) of this Clause
22.9); and/or
(ii) for the proceeds of enforcement of the Security Documents
received and applied in the order permitted by Clause
29.10 (Application of Proceeds by Security Agent); and/or
(iii) payments due under any Hedging Agreement to which it is a
party which has been terminated or closed-out by the
relevant Borrower.
-74-
(d) Each Lender which is a Hedging Bank undertakes that it will not
(unless the Majority Creditors have otherwise consented in
writing) exercise any right to terminate or close out any hedging
transaction under any Hedging Agreements to which it is party
prior to its stated maturity (whether by reason of the Borrower
counterparty becoming a Defaulting Party or Affected Party
thereunder (and as defined therein) or otherwise) unless:
(i) such Borrower has defaulted on a payment due under such
Hedging Agreement, after allowing for any required notice
and any applicable days of grace, and such default
continues for more than 21 days after notice of such
default being given to the Agent; or
(ii) an Illegality or a Tax Event (each as defined in the ISDA
1992 Master Agreement) has occurred; or
(iii) the Agent has served a notice under Clause 23.17
(Acceleration); or
(iv) all Loans have been prepaid or repaid in full and the
Lenders are no longer under any obligation to participate
in further Loans; or
(v) there is a prepayment of Facility A pursuant to Clause 8
(Prepayment and Cancellation); PROVIDED THAT the Hedging
Bank may only exercise its right to terminate or close out
that element of the hedging transaction (if any) which
corresponds to the amount so prepaid; or
(vi) the parties to the Hedging Agreement have voluntarily
agreed to close out any hedging transaction in that
Hedging Agreement and the relevant Borrower has
demonstrated to the Agent that it will be in compliance
with the terms of the Hedging Strategy Letter.
(e) Each Lender which is a Hedging Bank will, promptly after the
Agent has served a notice under Clause 23.17 (Acceleration),
exercise any and all rights it may have to terminate the hedging
transactions under each Hedging Agreement to which it is party,
unless the Agent (acting on the instructions of the Majority
Creditors) otherwise agrees or requires.
(f) Each Lender which is a Hedging Bank agrees that (unless the
Majority Creditors have otherwise agreed in writing) it will not
enforce any Transaction Security or require any other person to
enforce the same in respect of amounts owing under any Hedging
Agreement to which it is party.
(g) The provisions of this Clause 22.9 shall cease to apply after the
Loans have been prepaid or repaid in full and the Lenders are
under no obligation to participate in further Loans.
-75-
22.10 BILATERAL FACILITIES
(a) Each Lender which is a Bilateral Bank agrees that:
(i) until service of a notice by the Agent under Clause 23.17
(Acceleration), that Bilateral Bank will not, unless the
Agent (acting on the instructions of the Majority
Creditors) otherwise agrees:
(1) exercise any right it might otherwise have pursuant
to the Bilateral Facilities provided by it to cancel
or otherwise terminate those Bilateral Facilities; or
(2) demand repayment of or otherwise take any enforcement
action in respect of the Bilateral Facilities
provided by it (or require the Agent or Security
Agent or any other person to exercise any enforcement
rights under the Finance Documents in respect of
amounts owing under the Bilateral Facilities provided
by it);
(ii) it will, promptly after service of a notice by the Agent
under Clause 23.17 (Acceleration), exercise any and all
rights it may have to cancel the Bilateral Facilities
provided by it and demand payment of all amounts
outstanding in respect of the Bilateral Facilities
provided by it, unless the Agent (acting on the
instructions of the Majority Creditors) otherwise agrees
or requires.
(b) No Borrower shall be liable to pay, and no Bilateral Bank shall
charge, fees in relation to a Bilateral Facility any greater than
those set out below:
(i) a margin over cost of funds or base rate on any funded
drawings under the Bilateral Facilities equal to the
Margin at that time;
(ii) a commitment fee on the unutilised portion of the
Bilateral Facilities from time to time equal to one half
of the Margin at that time;
(iii) a fee on the contingent liability of a Bilateral Bank in
relation to any instrument giving rise to a contingent
liability on the part of that Bilateral Bank to any person
other than a Borrower equal to the Margin at that time;
and
(iv) usual bank charges and expenses payable in connection with
the provision of the Bilateral Facilities, as agreed
between the relevant Borrower and the relevant Bilateral
Bank.
(c) The provisions of this Clause 22.10 shall cease to apply after
the Loans have been prepaid or repaid in full and the Lenders are
under no obligation to participate in any further Loans.
22.11 ARM'S LENGTH TRANSACTIONS
(a) No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, enter into any arrangement or transaction (an
"AFFILIATE TRANSACTION") with any of its Affiliates or any
shareholder of it or any of its Affiliates (each a "CONNECTED
PERSON"), unless:
-76-
(i) the terms of that Affiliate Transaction are no less
favourable to the relevant member of the Group than those
terms that could be obtained at the time of that Affiliate
Transaction in arm's length dealings with a person who is
not such a connected person; or
(ii) that Affiliate Transaction (together with any other
Affiliate Transaction which is related thereto, whether
entered into at the same time or over a period of time)
involves an amount not exceeding $1,000,000.
(b) Paragraph (a) shall not prohibit:
(i) disposals permitted under Clause 22.4 (Disposals);
(ii) intercompany credit or loans permitted under Clause 22.14
(Loans);
(iii) arrangements or transactions where the party receiving the
benefit of the transaction being on less than arm's length
terms is an Obligor which has entered into Security
Documents constituting Security over all or substantially
all of its assets;
(iv) arrangements or transactions approved by the Majority
Lenders;
(v) arrangements or transactions where the party suffering the
disadvantage of the transaction being on less than arm's
length terms is not an Obligor; or
(vi) issues of shares or relevant securities (as defined in
Section 80(2) Companies Act 1985) by one member of the
Group to another member of the Group
22.12 INDEBTEDNESS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, incur or agree to incur or prevent to subsist any
Financial Indebtedness other than Permitted Indebtedness. For this
purpose, "Permitted Indebtedness" means:
(a) Financial Indebtedness arising under the Senior Notes and the
Existing Bank Facilities PROVIDED THAT no such Financial
Indebtedness will be permitted after the first Loan has been made
under this Agreement;
(b) Financial Indebtedness permitted by Clauses 22.13 (Guarantees),
22.14 (Loans), 22.15 (Leasing Arrangements) and 22.16 (Permitted
Hedging Transactions);
(c) Financial Indebtedness incurred under unsecured settlement
facilities (including BACs, "BusinessMaster", international
payments, daylight exposure and UK three day settlement
facilities) entered into by any member of the Group in the
ordinary course of its business to enable it to effect its
payment obligations;
(d) any Financial Indebtedness to which the Majority Lenders have
given their prior written consent;
(e) Financial Indebtedness incurred under the Bilateral Facilities
PROVIDED THAT the aggregate amount of principal outstanding under
such Bilateral Facilities does not at any time exceed $40,000,000
(or its equivalent in other currencies) and the aggregate
-77-
amount of principal outstanding under all overdraft facilities
which are Bilateral Facilities does not at any time exceed
(pound)5,000,000 (or its equivalent in other currencies);
(f) Financial Indebtedness incurred by Bycosin AB to Handelsbanken
under facilities which were existing at the date Bycosin AB
became a member of the Group, the aggregate principal amount of
which does not at any time exceed Swedish Kroner 25,500,000
PROVIDED THAT no such Financial Indebtedness will be permitted
after the date falling 45 days after the date of this Agreement;
or
(g) any Financial Indebtedness not falling within paragraphs (a) to
(f) above, the aggregate principal amount of which for the Group
taken as a whole does not at any time exceed $10,000,000 (or its
equivalent in other currencies).
22.13 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 by it, other than a Permitted Guarantee. For this purpose,
"PERMITTED GUARANTEE" means:
(a) guarantees given in the ordinary course of business in respect of
any obligations of any wholly-owned Subsidiary of a Relevant
Holding Company excluding guarantees given by a member of a
Relevant Group to or in respect of the obligations of a member of
a different Relevant Group;
(b) guarantees contained in or given in respect of this Agreement or
(prior to them being repaid in full) the Existing Bank
Facilities;
(c) any guarantee given by a Holding Company of any Relevant Holding
Company or by a member of a Relevant Group in each case to or in
respect of the obligations of another member of that Relevant
Group issued during an Accounting Quarter in connection with a
Permitted Investment the maximum liability under which (when
aggregated (without double-counting) with the other items in
respect of the Permitted Investment specified in paragraph (b) of
the definition of "Permitted Investment" in Clause 1.1
(Definitions)) does not exceed the relevant Unutilised Available
Amount in respect of that Accounting Quarter at the relevant
time;
(d) any guarantee to which the Majority Lenders have given their
prior written consent; or
(e) any guarantees not falling within sub-clauses (a) to (d)
(inclusive) above, the maximum aggregate actual or contingent
liability under which the Group taken as a whole has does not at
any time exceed $5,000,000 (or its equivalent in other
currencies) PROVIDED THAT guarantees given by a member of the
Octel Trading Group in respect of the obligations of a member of
the Group which is not a member of the Octel Trading Group shall
not be permitted pursuant to this paragraph (e).
22.14 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:
-78-
(a) credit arising in the ordinary course of its trading activities;
(b) loans made or credit given by an Obligor to any other Obligor;
(c) loans made from one member of the Group to another member of the
Group from the proceeds of Facility B which are proceeds of a
Relevant Acquisition Utilisation or a Prochem Refinancing
Acquisition which are applied as required by paragraph (b)(iii)
or (b)(iv) (as the case may be) of Clause 3.1 (Purpose);
(d) loans made or credit given by a member of a Relevant Group to
another member of that Relevant Group;
(e) loans made or credit given by an Obligor to a member of the Group
which is not an Obligor provided that the aggregate principal
amount of all such loans and credit permitted pursuant to this
paragraph (e) does not at any time exceed $5,000,000 (or its
equivalent in other currencies);
(f) any loan by a Holding Company of any Relevant Holding Company or
by a member of a Relevant Group to another member of that
Relevant Group in each case which is made during an Accounting
Quarter in connection with a Permitted Investment up to a
principal amount which (when aggregated with the other items in
respect of that Permitted Investment specified in paragraph (b)
of the definition of Permitted Investment in Clause 1.1
(Definitions)) does not exceed the relevant Unutilised Available
Amount in respect of that Accounting Quarter at the relevant
time;
(g) loans required to be made by Octel Trading to Octel Developments
to enable Octel Developments to pay amounts owing by it in
respect of Facility A;
(h) loans made or credit given by one member of the Group to another
member of the Group prior to the date of this Agreement or any
Loan given by one member of the Group to another member of the
Group which is applied to repay the Financial Indebtedness
referred to in paragraph (f) of Clause 22.12 (Indebtedness); or
(i) any other loan or credit to which the Majority Lenders have given
their prior written consent,
PROVIDED THAT (unless permitted pursuant to paragraph (g), (h) or (i)
above) no member of the Octel Trading Group shall make or permit to be
outstanding any loans or credit to a member of the Group which is not a
member of the Octel Trading Group.
22.15 LEASING ARRANGEMENTS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, enter into or have outstanding any Financial
Indebtedness of a type described in paragraph (d) or (j) of the
definition of "Financial Indebtedness" in Clause 1.1 (Definitions)
(which, for the avoidance of doubt, shall not include operating leases)
except where the aggregate capital element of all future rentals during
any financial year of the Parent under all such Financial Indebtedness
(determined in accordance with US GAAP) does not exceed $5,000,000 (or
its equivalent in other currencies).
-79-
22.16 PERMITTED 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, other than:
(a) the Hedging Agreements; or
(b) for hedging interest rate, currency or commodity exposure entered
into by a member of the Group in the ordinary course of its
business (and not for speculative purposes).
22.17 JOINT VENTURES
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, (except with the prior written consent of the
Majority Lenders), enter into or permit to subsist any joint venture,
partnership or equivalent arrangement with any person, other than:
(a) any such joint venture, partnership or equivalent arrangement
subsisting at the date of this Agreement; or
(b) any Permitted Investment, PROVIDED THAT, in connection with the
making of any Permitted Investment, no member of the Group shall
incur any liability (whether contractual or otherwise) (an
"ANCILLARY LIABILITY") (excluding for this purpose any liability
in respect of Financial Indebtedness the amount of which has been
included in the calculation of the Available Amount in respect of
the Accounting Quarter in which that Permitted Investment is
made) where that ancillary liability has or could reasonably be
expected to have a Material Adverse Effect; or
(c) commercial contracts entered into in the ordinary course of
trading not involving the acquisition of shares or similar
investments or interests in partnerships; or
(d) the proposed joint venture in India between Octel Petroleum
Specialties Limited and Dorf Ketal Chemicals India Pvte Limited
on substantially the terms set out in the paper headed "Business
proposed for JV in India" delivered to the Agent by the Parent
pursuant to Part I of Schedule I (Conditions Precedent).
22.18 ACQUISITIONS AND INVESTMENTS
(a) No Obligor will, and each Obligor shall 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; or
(ii) own any interest in any share or equity related
investment,
in each case, without the prior written consent of the Majority
Lenders.
(b) Paragraph (a) will not apply to:
(i) acquisitions by a member of the Group of any shares or
partnership interests in entities which are at the date of
this Agreement (and which at the relevant time remain) its
Subsidiaries or Part Owned Entities, or in any Subsidiary
formed after the date of this Agreement;
-80-
(ii) any acquisition by a member of the Group pursuant to a
disposal permitted under paragraph (b)(ii) of Clause 22.4
(Disposals) and any acquisition from net disposal proceeds
as contemplated by paragraph (b)(viii) of Clause 22.4
(Disposals);
(iii) any acquisition of Cash Equivalents for treasury
management purposes;
(iv) a Permitted Investment or to (the extent permitted by
paragraph (d) of Clause 22.17 (Joint Ventures)) an
investment in the proposed joint venture in India;
(v) the Relevant Acquisition; or
(vi) any other acquisition of any business, assets or shares
where such acquisition satisfies the following criteria:
(1) if it is an acquisition of a business or assets
(other than shares), such business (or the business
for which such assets are to be used) is similar to
or connected with (or related to the development of)
the Business;
(2) if it is an acquisition of shares, such shares are in
a limited liability company which will, upon such
acquisition, became a wholly-owned Subsidiary of the
Parent;
(3) the business, assets or shares being acquired have
generated positive earnings before interest tax,
depreciation and amortisation for a period of 12
months before the acquisition is due to become
effective;
(4) the total consideration (both cash and non-cash,
including the amount of indebtedness assumed by the
purchaser or any other member of the Group, the
amount of indebtedness remaining in the assets
acquired and the amount of any deferred purchase
price) for such acquisition does not exceed
$10,000,000 (or its equivalent in other currencies)
or if such acquisition occurs after the Trigger Date,
$20,000,000 (or its equivalent in other currencies);
(5) the total consideration (both cash and non-cash,
including the amount of indebtedness assumed by the
purchaser or any other member of the Group, the
amount of indebtedness remaining in the assets
acquired and any deferred purchase price) when
aggregated with all acquisitions which have been made
pursuant to this paragraph (vi) in the financial year
in which such acquisition is proposed to be made does
not exceed $15,000,000 (or its equivalent in other
currencies) or, if that financial year begins after
the Trigger Date, $30,000,000 (or its equivalent in
other currencies);
(6) in connection with the making of that acquisition, no
member of the Group shall incur any liability
(whether contractual or otherwise) (an "ANCILLARY
LIABILITY") where that ancillary liability has or
could reasonably be expected to have a Material
Adverse Effect; and
-81-
(7) at the time of such acquisition no Event of Default
is continuing or would occur as a result of such
acquisition.
22.19 RESTRICTION ON PAYMENT OF DIVIDENDS
The Parent will not pay, directly or indirectly, any dividend or make
any other distribution or pay any interest or other amount, whether in
cash or otherwise, on any shares or relevant securities (as defined in
Section 80(2) of the Companies Act 1985) or set apart any sum for any
such purpose, PROVIDED THAT the Parent may pay any dividend on the
stock issued by it if (and only if) each of the following conditions is
met:
(a) the Parent has supplied to the Agent (in sufficient copies for
the Lenders) pro forma financial statements prepared by it
demonstrating that it will be in compliance with paragraph (a) of
Clause 22.2 (Financial Condition) if the dividend is paid and the
chief financial officer or other appropriate director of the
Parent has certified that he is satisfied that the Parent will be
in compliance with such paragraph (a) for the Relevant Period
during which the dividend is proposed to be paid;
(b) the Parent has not received notice from the Agent certifying that
a Default has occurred and is continuing or would occur as a
result of paying that dividend; and
(c) the Agent has received 5 Business Days' prior notice from the
Parent of the intention to make that dividend payment and the
amount of that payment.
22.20 RESTRICTION ON REDEMPTION AND ACQUISITION OF OWN SHARES
The Parent will not directly or indirectly redeem, purchase, retire or
otherwise acquire for consideration any shares, stock or warrants
issued by it or set apart any sum for any such purpose (other than for
the purpose of any Employee Share Scheme) or otherwise reduce its
capital, in each case without the consent of the Majority Lenders,
PROVIDED THAT the Parent may purchase or otherwise acquire any stock
issued by it if (and only if) each of the following conditions is met:
(a) the Parent is satisfied that it will be in compliance with
paragraph (a) of Clause 22.2 (Financial Condition) if that
purchase or other acquisition is made;
(b) the Parent has not received notice from the Agent certifying that
a Default has occurred and is continuing.
22.21 FACTORING
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will:
(a) (other than in the ordinary course of trading) 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 Group Company;
or
(b) sell or otherwise dispose of any receivable (other than where the
receivable has been fully written off in the accounts of the
relevant Group Company in accordance with US GAAP or UK GAAP (as
applicable)).
-82-
22.22 HOLDING COMPANIES
(a) The Parent shall not, and shall procure that neither any Relevant
Holding Company nor any Holding Company of a Relevant Holding
Company, shall:
(i) carry on any trading activities related to the Business or
otherwise (other than insignificant trading activities);
or
(ii) own any assets required for use in the Business (other
than insignificant assets).
(b) Paragraph (a) of this Clause shall not prohibit Octel America
from trading as it is currently at the date of this Agreement.
22.23 ENVIRONMENTAL UNDERTAKINGS
Each Obligor will, and will procure that each of its Subsidiaries will:
(a) comply with the terms and conditions of all Environmental
Approvals and all Environmental Laws applicable to it where
failure so to do would have or be reasonably likely to have a
Material Adverse Effect and will implement procedures to monitor
compliance and contain liability under any Environmental Laws;
(b) promptly upon receipt of the same after the date of this
Agreement, notify the Agent of any claim, notice or other
communication served on it in respect of or if it becomes aware
of:
(i) any suspension, revocation or material variation of any
Environmental Approval applicable to it (save where such
suspension or revocation arises by reason of and is
immediately followed by the issue of an Environmental
Approval in substantially the same terms) which would have
or be reasonably likely to have a Material Adverse Effect;
or
(ii) any breach of any Environmental Laws by a member of the
Group which has or is reasonably likely to have a Material
Adverse Effect; or
(iii) any material unbudgeted investment by a member of the
Group required to maintain, acquire or renew any
Environmental Approval; 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; and
(c) use all reasonable endeavours (by employing the best available
techniques not involving excessive cost) to prevent any acts,
omissions, events, state of facts or circumstances occurring or
being exacerbated which could result in any third party taking
any action or making any claim against any member of the Group
under any Environmental Laws where any such action or claim could
reasonably be expected to have a Material Adverse Effect.
-83-
22.24 GUARANTORS AND SECURITY
(a) The Parent shall ensure that (taking into account paragraph (e)
below) any member of the Group which is not a Guarantor which is
or becomes a Material Group Company shall, as soon as reasonably
practicable but in any event within three Months after becoming a
Material Group Company, become an Additional Guarantor in
accordance with Clause 25.4 (Additional Guarantors).
(b) The Parent shall ensure that (taking into account paragraph (e)
below) at all times the aggregate (without double counting) of
(i) EBITDA of the Guarantors ("GUARANTOR EBITDA") and (ii) gross
assets of the Guarantors (determined in each case by reference to
the most recent annual unconsolidated financial statements of
each of the Guarantors delivered pursuant to Clause 20.1
(Financial Statements) and, prior to the first such financial
statements being so delivered, by reference to the most recent
annual unconsolidated financial statements of each of the
Guarantors) shall equal or exceed 85 per cent. of (as
appropriate) (1) consolidated EBITDA and (2) consolidated gross
assets (as applicable) of the Group (as determined by reference
to the most recent annual consolidated financial statements of
the Parent delivered pursuant to Clause 20.1 (Financial
Statements) and, prior to the first such financial statements
being delivered, by reference to the Original Financial
Statements of the Parent.
(c) Within 110 days after the last day of each of its financial years
(commencing with its financial year ended 31 December 2001) the
Parent shall deliver to the Agent:
(i) a certificate addressed to the Agent signed by two
directors of the Parent confirming that the Parent is in
compliance with paragraph (b) above and paragraph (f)
below in relation to the financial year of the Parent
ending immediately prior to the delivery of such
certificate; or
(ii) duly executed Accession Letter(s) in relation to a
Subsidiary (or Subsidiaries) of the Parent acceding as
Guarantor(s) together with the documents and other
evidence set out in Part II of Schedule 2 (Conditions
Precedent), each in a form and substance satisfactory to
the Agent, such Subsidiary (or Subsidiaries) to be such
that, if taken into an account as a Guarantor (or
Guarantors) for the purposes of determining compliance
with paragraph (b) above in relation to the financial year
of the Parent ending immediately prior to the delivery of
such documents, would result in the Parent being in
compliance with such paragraph (b) in respect of such
financial year.
(d) For these purposes, the calculation of Guarantor EBITDA and gross
assets shall be made in accordance with US GAAP and in relation
to any Guarantor shall be made on an unconsolidated basis and
Guarantor EBITDA shall be calculated on the same basis as EBITDA
in Clause 22.1 (Financial definitions) but adjusted so that it is
on an unconsolidated basis applicable to the relevant Guarantor
only.
(e) The Parent shall not be required to meet any of the requirements
of paragraphs (a), (b) or (c) above or (f) or (g) below to the
extent that it satisfies the Agent (acting reasonably) that it
(or a relevant Subsidiary which would otherwise meet such
requirements) cannot meet such requirements:
-84-
(i) by reason of legal or regulatory impediment which are
beyond its or any member of the Group's control (acting
reasonably) (including, but not limited to, prohibitions
relating to financial assistance or lack of corporate
benefit); or
(ii) without becoming liable to pay taxes, duties or other
amounts which are disproportionate to the value or
practical benefit of the Security or guarantee; or
(iii) because directors of the relevant Subsidiary would be
subject to a material risk of civil or criminal liability
if such Subsidiary was to provide a guarantee and/or
Security for the Facilities.
The Parent shall use reasonable endeavours to ensure that
relevant members of the Group do all that is necessary
(including, without limitation, following the procedures set out
in sections 155-158 of the Companies Xxx 0000 or equivalent
whitewash procedures) in order to ensure that such relevant
members of the Group can become Additional Guarantors.
(f) The Parent shall ensure that (taking into account paragraph (e)
above and paragraphs (g) and (h) below) at all times Guarantors
required to meet the requirements of paragraph (b) above have
each provided Transaction Security in accordance with the
provisions of this Agreement and that all such Transaction
Security remains, subject to the provisions of the Finance
Documents, in place.
(g) If required by the Agent (and to the extent permitted under
applicable law), each entity which is to become an Additional
Obligor shall enter into Security Documents(s) in favour of the
Security Agent for the benefit of the Finance Parties (or, if
applicable, directly in favour of the Finance Parties) over all
its assets, business and undertaking as Security for all
indebtedness under the Finance Documents, such Security to
provide (to the extent permissible and practicable under
applicable law) equivalent security over such assets, business
and undertaking (together "RELEVANT ASSETS") as granted to the
Security Agent (or, as applicable, the Finance Parties) by Group
Companies with similar Relevant Assets incorporated in the same
jurisdiction as such Additional Obligor and, if such Additional
Obligor is incorporated in a jurisdiction in which no other Group
Company incorporated in that jurisdiction with similar Relevant
Assets has granted Security, the Security Documents shall be in
such form and substance as (following consultation with the
Obligors' Agent) may be reasonably required by the Agent (having
due regard to the practicality and costs involved in taking any
such Security).
(h) Notwithstanding the provisions of paragraph (g) above, if a
proposed Additional Obligor is not a Holding Company of a
Relevant Holding Company and is required to become an Additional
Guarantor as a result of the provisions of paragraph (a) above
and without such Additional Obligor providing Transaction
Security other Guarantors which together satisfy the requirements
of paragraph (b) above have all provided Transaction Security in
accordance with the provisions of this Agreement (which
Transaction Security continues to remain in place) then such
proposed Additional Obligor shall not be required to give any
Transaction Security.
-85-
22.25 PARI PASSU RANKING
Each Obligor will ensure that its payment obligations under each of the
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.
22.26 ACCOUNTING REFERENCE DATE AND AUDITORS
(a) The Parent shall not change its accounting reference date from 31
December and shall not change the duration of any of its
financial years unless the Majority Lenders have given their
prior written consent to any such change.
(b) The Parent shall ensure that the financial year of each of its
Subsidiaries shall be the same as its own (or in the case of a
Subsidiary which is acquired after the date of this Agreement,
such Subsidiary changes its financial year end to coincide with
the Parent's financial year end within 3 months of such
acquisition).
(c) The Parent will not appoint any auditors for its consolidated
accounts other than PricewaterhouseCoopers, Ernst & Young, KPMG,
Xxxxxx Xxxxxxxx or Deloitte & Touche (or any amalgamation of the
same or their successors), except with the prior consent of the
Majority Lenders.
22.27 FEDERAL RESERVE REGULATIONS
The Obligors' Agent shall procure that each Borrower which is
incorporated in the US will use the Facilities without violating
Regulations T, U and X.
22.28 COMPLIANCE WITH ERISA
No Obligor shall:
(a) allow, or permit any of its ERISA Affiliates to allow, (i) any
Pension Plan, with respect to which any US Group Member or any of
its ERISA Affiliates may have any liability, to terminate, (ii)
any US Group Member or ERISA Affiliate to withdraw from any
Pension Plan or Multiemployer Plan, (iii) any ERISA Event to
occur with respect to any Pension Plan, or (iv) any accumulated
funding deficiency (as defined in Section 302 of ERISA and
Section 412 of the Internal Revenue Code), whether or not waived,
to exist involving any of its Pension Plans; to the extent that
any of the events described in (i), (ii), (iii) or (iv), singly
or in the aggregate, could have a Material Adverse Effect; or
(b) fail, or permit any of its ERISA Affiliates to fail, to comply in
any material respect with ERISA or the related provisions of the
Internal Revenue Code, if such non-compliance, singly or in the
aggregate, would be reasonably likely to have a Material Adverse
Effect.
22.29 COMPLIANCE WITH US REGULATIONS
No Obligor shall (and the Parent shall ensure that no other member of
the Group will) become an "investment company," or an "affiliated
person" of or "promoter" or "principal underwriter" for an "investment
company," as such terms are defined in the Investment Company Act of
1940
-86-
22.30 SECURITY
Each Obligor shall, at its own expense, take all such action and shall
ensure that each of its subsidiaries shall, at its own expense, take
all such action:
(a) as the Agent or the Security Agent may require (acting
reasonably) for the purpose of perfecting or protecting the
Finance Parties' rights under and preserving the Security
intended to be created or evidenced by any of the Security
Documents; and
(b) as the Agent or the Security Agent may require following the
making of any declaration pursuant to Clause 23.17 (Acceleration)
for facilitating the realisation of any such Security or any part
thereof.
22.31 SYNDICATION
The Parent shall provide reasonable assistance to the Mandated Lead
Arranger in the preparation of the Information Memorandum and the
primary syndication of the Facility (including, without limitation, by
making senior management available for the purpose of making
presentations to, or meeting, potential lending institutions) and will
(except to the extent that the disclosure of the information would
breach any law, regulation, stock exchange requirement or duty of
confidentiality) comply with all reasonable requests for information
from potential syndicate members prior to the Syndication Date. Each
Obligor agrees to be bound by the provisions of the Syndication Letter.
22.32 DISCHARGE OF REAL ESTATE MORTGAGE
The Parent shall ensure that the real estate mortgage referred to in
paragraph (b)(x) of Clause 22.3 (Negative Pledge) is released and
discharged in full as soon as reasonably practicable after the
indebtedness which it secures is discharged in full.
23. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 23.32 is an Event
of Default.
23.1 NON-PAYMENT
An Obligor does not pay on the due date any amount payable pursuant to
a Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
(a) in the case of any payment of principal, the Agent is satisfied
that such non-payment is due solely to administrative or
technical errors or delays in the transmission of funds and
payment is made within two Business Days of its due date; or
(b) in the case of any payment (other than any payment of principal)
either:
(i) that payment is made within one Business Day of its due
date; or
(ii) the Agent is satisfied that such non-payment is due solely
to administrative or technical errors or delays in the
transmission of the funds and payment is made within two
Business Days of its due date.
23.2 FINANCIAL COVENANTS
Any requirement of Clause 21 (Financial covenants) is not satisfied.
-87-
23.3 OTHER OBLIGATIONS
(a) An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 23.1
(Non-payment) and Clause 23.2 (Financial covenants)).
(b) No Event of Default under paragraph (a) above in relation to
Clauses 23.1 (Authorisation), 23.2 (Compliance with laws and
maintenance of authorities), 23.7 (Insurance) to 23.11 (Arm's
Length Transactions) (inclusive), 23.15 (Leasing Arrangements) to
23.17 (Joint Ventures) (inclusive), 23.23 (Environmental
Undertakings) or 23.25 (Pari Passu Ranking) to 23.31
(Syndication) (inclusive) (or any obligation contained in a
Security Document) will occur if the failure to comply is capable
of remedy and is remedied within 20 Business Days of the earlier
of the Agent giving notice to the Obligors' Agent or the relevant
Obligor becoming aware of the failure to comply.
23.4 CROSS DEFAULT
(a) Any Financial Indebtedness of any member of the Group is not paid
when due nor within any originally applicable grace period.
(b) Any Financial Indebtedness of any member of the Group is validly
declared to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default (however
described).
(c) Any commitment for any Financial Indebtedness of any member of
the Group is validly cancelled or suspended by a creditor of any
member of the Group as a result of an event of default (however
described).
(d) Any creditor of any member of the Group becomes entitled to
declare any Financial Indebtedness of any member of the Group due
and payable prior to its specified maturity as a result of an
event of default (however described).
(e) No Event of Default will occur under this Clause 23.4 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d) above
is less than $3,500,000 (or its equivalent in any other currency
or currencies).
23.5 MISREPRESENTATION
(a) Any representation or statement made or deemed to be made by an
Obligor in the Finance Documents or any other document delivered
by or on behalf of any Obligor under or in connection with any
Finance Document is or proves to have been incorrect or
misleading in any material respect when made or deemed to be
made.
(b) No Event of Default will occur under paragraph (a) above if the
circumstances giving rise to the incorrect or misleading
representation or statement are capable of remedy and are
remedied within 20 Business Days of the earlier of the Agent
giving notice to the Obligors' Agent or the relevant Obligor
being aware of those circumstances.
23.6 INSOLVENCY
(a) A member of the Group (other than a Dormant Company or Octel LLC)
is unable or admits inability to pay its debts as they fall due,
suspends making payments on any of
-88-
its debts or, by reason of actual or anticipated financial
difficulties, commences negotiations with one or more of its
creditors with a view to rescheduling any of its indebtedness.
(b) The value of the assets of any member of the Group (other than a
Dormant Company or Octel LLC) is less than its liabilities
(taking into account contingent and prospective liabilities).
(c) A moratorium is declared in respect of any indebtedness of any
member of the Group (other than a Dormant Company or Octel LLC).
23.7 INSOLVENCY PROCEEDINGS
Any corporate action, legal proceedings or other formal procedure is
taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by way
of voluntary arrangement, scheme of arrangement or otherwise) of
any Obligor or Material Group Company other than a solvent
liquidation or reorganisation of any member of the Group which is
not an Obligor;
(b) a composition, assignment or arrangement with creditors generally
or any class of creditors of any Obligor or Material Group
Company;
(c) the appointment of a liquidator (other than in respect of a
solvent liquidation of a member of the Group which is not an
Obligor), receiver, administrator, administrative receiver,
compulsory manager or other similar officer in respect of any
Obligor or Material Group Company or any of its assets,
or any analogous procedure or step is taken in any jurisdiction. No
Event of Default will occur under this Clause 23.7 if the Majority
Lenders (acting reasonably) are satisfied that the relevant corporate
action, legal proceedings or other procedure (together, the "Relevant
Action") is of a frivolous or vexatious nature, is being contested in
good faith and by appropriate proceedings by the relevant member of the
Group and that it is reasonably likely that such Relevant Action will
be set aside, dismissed or withdrawn within 14 days of being taken or
instituted (or such other period which the Majority Lenders agree
reflects a realistic time by which such a Relevant Action can be set
aside, dismissed or withdrawn) unless prior to such time a binding
court order is made in respect of any matters set out in paragraphs
(a), (b) or (c) above.
23.8 CREDITORS' PROCESS
(a) Any expropriation, attachment, sequestration, distress, execution
or enforcement of any Security affects any asset or assets of a
member of the Group (other than a Dormant Company or Octel LLC)
having an aggregate value greater than $5,000,000 (or its
equivalent in other currencies);
(b) No Event of Default under paragraph (a) above will occur if:
(i) that member of the Group is, in good faith, contesting the
expropriation, attachment, sequestration, distress,
execution or enforcement by appropriate proceedings
diligently pursued with a reasonable prospect of success;
and
-89-
(ii) if those proceedings were adversely determined against
that member of the Group, such expropriation, attachment,
sequestration, distress, execution or enforcement could
not reasonably be expected to have a Material Adverse
Effect.
23.9 OWNERSHIP OF THE OBLIGORS
An Obligor (other than the Parent) is not or ceases to be a
wholly-owned Subsidiary of the Parent.
23.10 UNLAWFULNESS AND INVALIDITY
(a) It is or becomes unlawful under any applicable jurisdiction for
an Obligor to perform any of its obligations under the Finance
Documents in circumstances or to an extent which could reasonably
be expected to have a Material Adverse Effect.
(b) Any provision of any Finance Document is or becomes invalid or
(other than by reason of matters referred to in the Legal
Reservations) unenforceable for any reason or the validity or
enforceability of any provision of any Finance Document shall at
any time be contested by any party thereto (other than a Finance
Party) , in each case to an extent or in a manner which could
reasonably be expected to be materially adverse to the interests
of the Finance Parties under the Finance Documents.
(c) Any Security Document fails or ceases to provide (other than by
reason of matters referred to in the Legal Reservations)
effective Security over the assets in respect of which Security
was intended to be created by that Security Document in a manner
and to an extent which could reasonably be expected to be
materially adverse to the interests of the Finance Parties under
the Finance Documents. 23.11 Repudiation An Obligor repudiates a
Finance Document or evidences in writing an intention to
repudiate a Finance Document or any Transaction Security.
23.12 CESSATION OF BUSINESS
An Obligor ceases, or threatens or proposes to cease, to carry on all
or a substantial part of its business, except:
(a) in consequence of any reorganisation, reconstruction or
amalgamation permitted under this Agreement; or
(b) as may result from any disposal of assets or wind-down of
business activities not otherwise prohibited by the terms of this
Agreement; or
(c) as previously approved in writing by the Majority Lenders.
23.13 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, could reasonably be expected to have a
Material Adverse Effect.
-90-
23.14 AUDITOR'S QUALIFICATION
The auditors of the Parent qualify their report on the audited
consolidated accounts of the Parent in any manner which is, in the
reasonable opinion of the Majority Lenders, materially adverse in the
context of the Finance Documents.
23.15 ENVIRONMENTAL
(a) Any material liability is imposed on any of the Finance Parties
as a consequence of the Finance Parties being party to the
Finance Documents, which liability results from any change or
change in the interpretation of any applicable Environmental Laws
(in each case, after the date of this Agreement).
(b) Any change in applicable Environmental Laws results in the rights
of any person against a member of the Group ranking ahead of the
rights of any Finance Party in a manner which is materially
prejudicial to the interests of any Finance Party.
(c) Any discovery or finding that an Operating Property or any part
thereof is or is likely to be, in such a condition in relation to
the Environment as would impose an actual or contingent liability
on a member of the Group which is:
(i) not contemplated by the Environmental Report and which has
or is reasonably likely to have a Material Adverse Effect;
or
(ii) which, if it is contemplated by the Environmental Report,
exceeds the amount so contemplated to an extent which has
or is reasonably likely to have a Material Adverse Effect.
23.16 MATERIAL ADVERSE CHANGE
At any time there occurs an event or circumstance which, in the
reasonable opinion of the Majority Lenders, has, or is reasonably
likely to have, a Material Adverse Effect.
23.17 ACCELERATION
On and at any time after the occurrence of an Event of Default which is
continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice to the Obligors' Agent:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled; and/or
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent on the instructions of the Majority Lenders; and/or
(d) exercise, or direct the Security Agent to exercise, any or all of
its rights, remedies, powers or discretions under any of the
Finance Documents (PROVIDED THAT the Agent is not obliged to
direct the Security Agent to take any enforcement action in
relation to the Transaction Security unless the Majority
Creditors have so directed the Agent).
-91-
SECTION 9
CHANGES TO PARTIES
24. CHANGES TO THE LENDERS
24.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 24, a Lender (the "EXISTING LENDER") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or financial institution (the "NEW LENDER").
24.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) The consent of the Parent is required for an assignment or
transfer by a Lender, unless the assignment or transfer is to
another Lender or an Affiliate of a Lender.
(b) The consent of the Parent to an assignment or transfer must not
be unreasonably withheld or delayed. The Parent will be deemed to
have given its consent five Business Days after the Lender has
requested it unless consent is expressly refused by the Parent
within that time.
(c) The consent of the Parent to an assignment or transfer must not
be withheld solely because the assignment or transfer may result
in an increase to the Mandatory Cost.
(d) An assignment will only be effective on receipt by the Agent of
written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the
same obligations to the other Finance Parties as it would have
been under if it was an Original Lender.
(e) A transfer will only be effective if the procedure set out in
Clause 24.5 (Procedure for transfer) is complied with.
(f) IF:
(i) a Lender assigns or transfers any of its rights or
obligations under the Finance Documents or changes its
Facility Office; and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor would be
obliged to make a payment to the New Lender or Lender
acting through its new Facility Office under Clause 13
(Tax gross-up and indemnities) or Clause 14 (Increased
costs),
then the New Lender or Lender acting through its new Facility
Office is only entitled to receive payment under those Clauses to
the same extent as the Existing Lender or Lender acting through
its previous Facility Office would have been if the assignment,
transfer or change had not occurred.
-92-
24.3 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of
(pound)1,000.
24.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a
New Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its
obligations under the Finance Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or oral)
made in or in connection with any Finance Document or any
other document,
and any representations or warranties implied by law are
excluded.
(b) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition
and affairs of each Obligor and its related entities in
connection with its participation in this Agreement and
has not relied exclusively on any information provided to
it by the Existing Lender in connection with any Finance
Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
whilst any amount is or may be outstanding under the
Finance Documents or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under this
Clause 24; or
(ii) support any losses directly or indirectly incurred by the
New Lender by reason of the non-performance by any Obligor
of its obligations under the Finance Documents or
otherwise.
24.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 24.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph (b) below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing
Lender and the New Lender. The Agent shall, as soon as reasonably
practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of
this Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer Certificate.
-93-
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer by novation its rights
and obligations under the Finance Documents each of the
Obligors and the Existing Lender shall be released from
further obligations towards one another under the Finance
Documents and their respective rights against one another
shall be cancelled (being the "DISCHARGED RIGHTS AND
OBLIGATIONS");
(ii) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor and
the New Lender have assumed and/or acquired the same in
place of that Obligor and the Existing Lender;
(iii) the Agent, the Security Agent, the Arranger, the New
Lender and other Lenders shall acquire the same rights and
assume the same obligations between themselves as they
would have acquired and assumed had the New Lender been an
Original Lender with the rights and/or obligations
acquired or assumed by it as a result of the transfer and
to that extent the Agent, the Security Agent, the Arranger
and the Existing Lender shall each be released from
further obligations to each other under this Agreement;
and
(iv) the New Lender shall become a Party as a "Lender".
24.6 DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation to, or
any other transaction under which payments are to be made by
reference to, this Agreement or any Obligor; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Finance Documents
as that Lender shall consider appropriate if, in relation to paragraphs
(a) and (b) above, the person to whom the information is to be given
has entered into a Confidentiality Undertaking.
24.7 CONFIDENTIALITY
Each Finance Party undertakes with each Obligor to keep confidential
and not to disclose to anyone any information (including projections)
relating to the Group, any member of the Group, the Identified Target,
or any Finance Document, in whatever form, except:
(a) for any information lawfully obtained from any other source, or
that is or becomes public knowledge, other than as a direct or
indirect result of any breach of any obligation of
confidentiality; or
-94-
(b) as permitted by Clause 24.6 (Disclosure of Information) or by a
Confidentiality Undertaking envisaged by that Clause; or
(c) to any of its officers, directors, employees and professional
advisers; or
(d) so long as any Security constituted by the Security Documents
remains subsisting or any amounts remain outstanding under any
Finance Document, to any Finance Party; or
(e) as required by the provisions of any Finance Document.
25. CHANGES TO THE OBLIGORS
25.1 ASSIGNMENT AND TRANSFERS BY OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights
or obligations under the Finance Documents.
25.2 ADDITIONAL BORROWERS
(a) The Parent may request that any of its wholly owned Subsidiaries
becomes an Additional Borrower. That Subsidiary shall become an
Additional Borrower if:
(i) that Subsidiary is a limited liability company
incorporated in England and Wales or all the Lenders
approve the addition of that Subsidiary;
(ii) the Obligors' Agent delivers to the Agent a duly completed
and executed Accession Letter;
(iii) the Obligors' Agent confirms that no Default is continuing
or would occur as a result of that Subsidiary becoming an
Additional Borrower; and
(iv) the Agent has received all of the documents and other
evidence listed in Part II of Schedule 2 (Conditions
Precedent) in relation to that Additional Borrower, each
in form and substance satisfactory to the Agent.
(b) The Agent shall notify the Obligors' Agent and the Lenders
promptly upon being satisfied that it has received (in form and
substance satisfactory to it) all the documents and other
evidence listed in Part II of Schedule 2 (Conditions Precedent).
25.3 RESIGNATION OF A BORROWER
(a) The Parent may request that a Borrower ceases to be a Borrower by
delivering to the Agent a Resignation Letter.
(b) The Agent shall accept a Resignation Letter and notify the Parent
and the Lenders of its acceptance if:
(i) no Default is continuing or would result from the
acceptance of the Resignation Letter (and the Parent has
confirmed this is the case); and
(ii) the Borrower is under no actual or contingent obligations
as a Borrower under any Finance Documents,
-95-
whereupon that company shall cease to be a Borrower and
shall have no further rights or obligations under the
Finance Documents.
25.4 ADDITIONAL GUARANTORS
(a) The Parent may request that any of its Subsidiaries become an
Additional Guarantor. That Subsidiary shall become an Additional
Guarantor if:
(i) the Parent delivers to the Agent a duly completed and
executed Accession Letter; and
(ii) the Agent has received all of the documents and other
evidence listed in Part II of Schedule 2 (Conditions
Precedent) in relation to that Additional Guarantor, each
in form and substance satisfactory to the Agent.
(b) The Agent shall notify the Parent and the Lenders promptly upon
being satisfied that it has received (in form and substance
satisfactory to it) all the documents and other evidence listed
in Part II of Schedule 2 (Conditions Precedent).
25.5 REPETITION OF REPRESENTATIONS
Delivery of an Accession Letter constitutes confirmation by the
relevant Subsidiary that the Repeating Representations are true and
correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then existing.
25.6 RESIGNATION OF A GUARANTOR
(a) The Parent may request that a Guarantor (other than the Parent or
AOC) ceases to be a Guarantor by delivering to the Agent a
Resignation Letter.
(b) The Agent shall accept a Resignation Letter and notify the Parent
and the Lenders of its acceptance if:
(i) no Default is continuing or would result from the
acceptance of the Resignation Letter (and the Parent has
confirmed this is the case);
(ii) all the Lenders have consented to the Parent's request;
and
(iii) the provisions of paragraph (b) of Clause 22.24
(Guarantors) would be complied with immediately after the
acceptance of the Resignation Letter (and the Parent has
confirmed this is the case together with supporting
confirmation from its auditors).
-96-
SECTION 10
THE FINANCE PARTIES
26. ROLE OF THE AGENT, SECURITY AGENT AND THE ARRANGER
26.1 APPOINTMENT OF THE AGENT
(a) Each of the Arranger and the Lenders appoints the Agent to act as
its agent under and in connection with the Finance Documents.
(b) Each of the Arranger and the Lenders authorises the Agent to
exercise the rights, powers, authorities and discretions
specifically given to the Agent under or in connection with the
Finance Documents together with any other incidental rights,
powers, authorities and discretions.
26.2 DUTIES OF THE AGENT AND SECURITY AGENT
(a) The Agent and the Security Agent shall promptly forward to a
Party the original or a copy of any document which is delivered
to it in its capacity as Agent or Security Agent for that Party
by any other Party.
(b) If the Agent or the Security Agent receives notice from a Party
referring to this Agreement, describing a Default and stating
that the circumstance described is a Default, it shall promptly
notify the Lenders.
(c) The Agent shall promptly notify the Lenders of any Default
arising under Clause 23.1 (Non-payment).
(d) The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
26.3 ROLE OF THE ARRANGER
Except as specifically provided in the Finance Documents, the Arranger
has no obligations of any kind to any other Party under or in
connection with any Finance Document.
26.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Agent or the Arranger
as a trustee or fiduciary of any other person.
(b) Neither the Agent nor the Arranger nor the Security Agent shall
be bound to account to any Lender for any sum or the profit
element of any sum received by it for its own account.
(c) The Security Agent shall not have or be deemed to have any duty,
obligation or responsibility to, or a relationship of trust or
agency with any Obligor.
26.5 CERTAIN SECURITY HELD ON TRUST
(a) The Security Agent declares that it shall hold the Transaction
Security on trust for the Finance Parties on the terms contained
in this Agreement.
(b) Each of the Parties agrees that the Security Agent shall have
only those duties, obligations and responsibilities expressly
specified in the Finance Documents to which it is a party (and no
others shall be implied).
-97-
(c) The Finance Parties shall not have any independent power to
enforce, or have recourse to, any of the Transaction Security or
to exercise any rights or powers pursuant to the Security
Documents except through the Security Agent.
(d) The rights, powers and discretions conferred upon the Security
Agent by this Agreement shall be supplemental to the Trustee Xxx
0000 and in addition to any which may be vested in the Security
Agent by general law or otherwise.
26.6 BUSINESS WITH THE GROUP
The Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any
member of the Group.
26.7 RIGHTS AND DISCRETIONS OF THE AGENT AND SECURITY AGENT
(a) The Agent and Security Agent may rely on:
(i) any representation, notice or document believed by it to
be genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within
his power to verify.
(b) The Agent and the Security Agent may assume (unless it has
received notice to the contrary in its capacity as agent for the
Lenders or, as trustee or security agent for the Finance Parties)
that:
(i) no Default has occurred (unless, in the case of the Agent,
it has actual knowledge of a Default arising under Clause
23.1 (Non-payment));
(ii) any right, power, authority or discretion vested in any
Party or the Majority Lenders has not been exercised; and
(iii) any notice or request made by the Obligors' Agent
(including, without limitation, any Utilisation Request or
Selection Notice) is made on behalf of and with the
consent and knowledge of all the Obligors.
(c) The Agent and the Security Agent may engage, pay for and rely on
the advice or services of any lawyers, accountants, surveyors or
other experts.
(d) The Agent and the Security Agent may act in relation to the
Finance Documents through its personnel and agents.
26.8 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document, the
Agent and Security Agent shall (a) act in accordance with any
instructions given to it by the Majority Lenders (or, if so
instructed by the Majority Lenders, refrain from acting or
exercising any right, power, authority or discretion vested in it
as Agent or as Security Agent) and (b) not be liable for any act
(or omission) if it acts (or refrains from taking any action) in
accordance with such an instruction of the Majority Lenders.
-98-
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all
the Lenders and the Arranger.
(c) The Agent and the Security Agent may refrain from acting in
accordance with the instructions of the Majority Lenders (or, if
appropriate, the Lenders or, if appropriate, the Majority
Creditors) (including any instruction to begin any legal actions
or proceedings arising out of or in connection with the Finance
Documents) until it has received such security as it may require
for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders or, if appropriate, the Majority
Creditors) the Agent may act (or refrain from taking action) as
it considers to be in the best interest of the Lenders.
(e) The Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or
arbitration proceedings relating to any Finance Document.
(f) The Security Agent shall be entitled to request instructions, or
clarification of any direction, from the Majority Lenders (or, if
appropriate, the Lenders or, if appropriate, the Majority
Creditors) as to whether, and in what manner, it should exercise
or refrain from exercising any rights, powers and discretions and
the Security Agent may refrain from acting unless and until those
instructions or clarification are received by it.
(g) The Security Agent may, in the absence of any instructions to the
contrary, take such action in the exercise of any of its duties
under the Finance Documents which in its absolute discretion it
considers to be for the protection and benefit of all of the
Finance Parties.
(h) The Security Agent may, and shall if so directed by the Agent at
any time after receipt by the Security Agent of notice pursuant
to Clause 23.17 (Acceleration), enforce the Transaction Security
in accordance with the terms of the Security Documents. The
Security Agent may take such action as in its sole discretion it
thinks fit to enforce the Transaction Security.
26.9 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor the Arranger nor the Security Agent:
(a) is responsible for the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the Agent,
the Arranger, the Security Agent, an Obligor or any other person
given in or in connection with any Finance Document or the
Information Memorandum; or
(b) is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document, the
Transaction Security or any other agreement, arrangement or
document entered into, made or executed in anticipation of or in
connection with any Finance Document or the Transaction Security.
-99-
26.10 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, neither the Agent nor the
Security Agent will be liable for any action taken by it under or
in connection with any Finance Document or the Transaction
Security, unless directly caused by its gross negligence or
wilful misconduct.
(b) No Party may take any proceedings against any officer, employee
or agent of the Agent or Security Agent in respect of any claim
it might have against the Agent or Security Agent or in respect
of any act or omission of any kind by that officer, employee or
agent in relation to any Finance Document or the Transaction
Security and any officer, employee or agent of the Agent may rely
on this Clause. Any third party referred to in this paragraph (b)
may enjoy the benefit of and enforce the terms of this paragraph
in accordance with the provisions of the Contracts (Rights of
Third Parties) Xxx 0000.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required
under the Finance Documents to be paid by the Agent if the Agent
has taken all necessary steps as soon as reasonably practicable
to comply with the regulations or operating procedures of any
recognised clearing or settlement system used by the Agent for
that purpose.
(d) The Security Agent shall not be liable for any shortfall which
arises on the enforcement of any of the Transaction Security.
(e) The Security Agent shall not be liable for any failure to:
(i) require the deposit with it of any deed or document
certifying, representing or constituting the title of any
Obligor to any of the Charged Property;
(ii) obtain any licence, consent or other authority for the
execution, delivery, legality, validity, enforceability or
admissibility in evidence of any of the Finance Documents
or the Transaction Security;
(iii) register, file or record or otherwise protect any of the
Security (or the priority of any of the Transaction
Security) under any applicable laws in any jurisdiction or
to give notice to any person of the execution of any of
the Finance Documents or of the Transaction Security;
(iv) take, or to require any of the Obligors to take, any steps
to perfect its title to any of the Charged Property or to
render the Transaction Security effective or to secure the
creation of any ancillary Security under the laws of any
jurisdiction; or
(v) require any further assurances in relation to any of the
Security Documents.
26.11 LENDERS' INDEMNITY TO THE AGENT/SECURITY AGENT
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent or the
-100-
Security Agent (as the case may be), within three Business Days of
demand, against any cost, loss or liability incurred by the Agent or
the Security Agent (as the case may be) (otherwise than by reason of
the Agent's (or, as the case may be, the Security Agent's) gross
negligence or wilful misconduct) in acting as Agent or Security Agent
under the Finance Documents (unless the Agent or Security Agent has
been reimbursed by an Obligor pursuant to a Finance Document). In this
Clause 26.11 Total Commitments shall include the Bilateral Commitments.
26.12 RESIGNATION OF THE AGENT/SECURITY AGENT
(a) The Agent may resign and appoint one of its Affiliates acting
through an office in the United Kingdom as successor by giving
notice to the Lenders and the Parent.
(b) Each of the Agent and the Security Agent may resign by giving
notice to the Lenders and the Obligors' Agent, in which case the
Majority Lenders (after consultation with the Parent) may appoint
a successor Agent or Security Agent (as the case may be).
(c) If the Majority Lenders have not appointed a successor Agent or
Security Agent (as the case may be) in accordance with paragraph
(b) above within 30 days after notice of resignation was given,
the Agent (after consultation with the Obligors' Agent) may
appoint a successor Agent or Security Agent (as the case may be)
(acting through an office in the United Kingdom).
(d) The retiring Agent or retiring Security Agent (as the case may
be) shall, at its own cost, make available to the successor Agent
or Security Agent (as the case may be) such documents and records
and provide such assistance as the successor Agent or Security
Agent (as the case may be) may reasonably request for the
purposes of performing its functions as Agent or Security Agent
(as the case may be) under the Finance Documents.
(e) The Agent's or the Security Agent's resignation notice shall only
take effect upon the appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent or
Security Agent (as the case may be) shall be discharged from any
further obligation as Agent or Security Agent (as the case may
be) in respect of the Finance Documents but shall remain entitled
to the benefit of this Clause 26. Its successor and each of the
other Parties shall have the same rights and obligations amongst
themselves as they would have had if such successor had been an
original Party.
(g) After consultation with the Obligors' Agent, the Majority Lenders
may, by notice to the Agent or Security Agent (as applicable),
require it to resign in accordance with paragraph (b) above. In
this event, the Agent or Security Agent (as applicable) shall
resign in accordance with paragraph (b) above.
26.13 CONFIDENTIALITY
(a) In acting as agent or trustee for the Finance Parties, the Agent
shall be regarded as acting through its agency division and the
Security Agent shall be regarded as acting through its trustee
division (if separate from its agency division) each of which
shall be treated as a separate entity from any other of its
divisions or departments.
-101-
(b) If information is received by another division or department of
the Agent or Security Agent, it may be treated as confidential to
that division or department and the Agent or (as the case may be)
the Security Agent shall not be deemed to have notice of it.
(c) Notwithstanding any other provision of any Finance Document to
the contrary, neither the Agent, the Security Agent nor the
Arranger are obliged to disclose to any other person (i) any
confidential information or (ii) any other information if the
disclosure would or might in its reasonable opinion constitute a
breach of any law or a breach of a fiduciary duty.
26.14 RELATIONSHIP WITH THE LENDERS AND BILATERAL BANKS
(a) The Agent and Security Agent may treat each Lender as a Lender,
entitled to payments under this Agreement and acting through its
Facility Office unless it has received not less than five
Business Days prior notice from that Lender to the contrary in
accordance with the terms of this Agreement.
(b) Each Lender shall supply the Agent with any information required
by the Agent in order to calculate the Mandatory Cost in
accordance with Schedule 4 (Mandatory Cost Formulae).
(c) The Agent and Security Agent may treat each Bilateral Bank as a
Bilateral Bank entitled to payments in respect of the relevant
Bilateral Facility unless it has (in its capacity as Agent or
Security Agent) received notice in writing to the contrary from
that Bilateral Bank.
26.15 CREDIT APPRAISAL BY THE LENDERS
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms to the Agent, the Security Agent and the
Arranger that it has been, and will continue to be, solely responsible
for making its own independent appraisal and investigation of all risks
arising under or in connection with any Finance Document including but
not limited to:
(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document, any Transactional Security and any other
agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance
Document or any Transactional Security;
(c) whether that Lender has recourse, and the nature and extent of
that recourse, against any Party or any of its respective assets
under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance
Document;
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent, any
Party or by any other person under or in connection with any
Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document entered
into,
-102-
made or executed in anticipation of, under or in connection with
any Finance Document; and
(e) the right or title of any person in or to, or the value or
sufficiency of any part of, the Charged Property, the priority of
any Transactional Security or the existence of any Security
affecting the Charged Property.
26.16 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Lender, the
Lender of which it is an Affiliate) ceases to be a Lender, the Agent
shall (in consultation with the Parent) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
26.17 INSURANCE BY SECURITY AGENT
The Security Agent shall not be under any obligation to insure any of
the Charged Property, to require any other person to maintain any
insurance or to verify any obligation to arrange or maintain insurance
contained in the Finance Documents. The Security Agent shall not be
responsible for any loss which may be suffered by any person as a
result of the lack of or inadequacy of any such insurance. Where the
Security Agent is named on any insurance policy as an insured party, it
shall not be responsible for any loss which may be suffered by reason
of, directly or indirectly, its failure to notify the insurers of any
material fact relating to the risk assumed by such insurers or any
other information of any kind, unless any Finance Party shall have
requested it to do so in writing and the Security Agent shall have
failed to do so within fourteen days after receipt of that request.
26.18 MANNER OF ENFORCEMENT SECURITY
Each of the Obligors waives, to the extent permitted under applicable
law, all rights it may otherwise have to require that the Transaction
Security be enforced in any particular order or manner or at any
particular time or that any sum received or recovered from any person,
or by virtue of the enforcement of any Transaction Security or any
other Security, which is capable of being applied in or towards
discharge of any of the Secured Obligations is so applied.
26.19 WINDING-UP OF TRUST AND PERPETUITY PERIOD
If the Security Agent, with the approval of the Majority Lenders,
determines that (a) all of the Secured Obligations and all other
obligations secured by any of the Security Documents, have been fully
and finally discharged and (b) none of the Finance Parties is under any
commitment, obligation or liability (whether actual or contingent) to
make Loans or provide other financial accommodation to any Obligor
pursuant to the Finance Documents, the trusts set out in this Agreement
shall be wound up. At that time the Security Agent shall release,
without recourse or warranty, all of the Transaction Security then held
by it and the rights of the Security Agent under each of the Security
Documents, at which time each of the Security Agent, the Agent, the
Finance Parties and the Obligors shall be released from its obligations
in respect of these trusts and the Transaction Security (save for those
which arose prior to such winding-up). The perpetuity period under the
rule against perpetuities, if applicable to this Agreement, shall be
the period of eighty years from the date of this Agreement.
26.20 OTHER PROVISIONS RELATING TO SECURITY AGENT
(a) The Security Agent shall be entitled to carry out all dealings
with the Lenders through the Agent, to give to the Agent any
notice or other communication required to be
-103-
given by the Security Agent to the Lenders and to rely on a
certificate from the Agent as to the amount owed to any of the
Finance Parties or by any Obligor.
(b) The Security Agent may place (at the cost of the Obligors) any of
the Finance Documents and any other documents relating to the
Transaction Security in any safe custody selected by the Security
Agent or with any financial institution, any company whose
business includes the safe custody of documents or any firm of
lawyers of good repute and the Security Agent shall not be
responsible for, or be required to insure against, any loss
incurred in connection with that deposit.
(c) The Security Agent may accept without enquiry, and shall not be
obliged to investigate, such right and title as each of the
Obligors may have to any of the Charged Property and shall not be
liable for or bound to require any Obligor to remedy any defect
in its right or title.
(d) The Security Agent may refrain from doing anything which in its
opinion will or may be contrary to any relevant law, directive or
regulation of any jurisdiction which would or might otherwise
render it liable to any person, and the Security Agent may do
anything which is, in its opinion, necessary to comply with any
such law, directive or regulation.
26.21 DELEGATION AND ADDITIONAL TRUSTEES
(a) The Security Agent may at any time delegate by power of attorney
or otherwise to any person for any period, all or any of the
rights, powers and discretions vested in it by any of the Finance
Documents and such delegation may be made upon such terms and
conditions (including the power to sub-delegate) and subject to
such restrictions as the Security Agent may think fit in the
interest of the Finance Parties and it shall not be bound to
supervise, or be in any way responsible for any loss incurred by
reason of any misconduct or default on the part of any such
delegate or sub-delegate; and
(b) The Security Agent may at any time appoint (and subsequently
remove) any person to act as a separate trustee or as a
co-trustee jointly with it (a) if it considers such appointment
to be in the interests of the Finance Parties or (b) for the
purposes of conforming to any legal requirements, restrictions or
conditions which the Security Agent deems to be relevant or (c)
for obtaining or enforcing any judgement in any jurisdiction, and
the Security Agent shall give prior notice to the Obligors' Agent
and the Agent of any such appointment. Any person so appointed
(subject to the terms of this Agreement) shall have such rights,
powers and discretions (not exceeding those conferred on the
Security Agent by this Agreement) and such duties and obligations
as are conferred or imposed by the instrument of appointment. The
remuneration the Security Agent may pay to any such person, and
any costs and expenses incurred by such person in performing its
functions pursuant to that appointment shall, for the purposes of
this Agreement, be treated as costs and expenses incurred by the
Security Agent.
25.22 RELIANCE AND ENGAGEMENT LETTERS
Each Finance Party confirms that each of the Agent and the Security
Agent has authority to accept on its behalf the terms of any Reliance
Letter or engagement letters relating to
-104-
the Reports or any reports or letters provided by accountants in
connection with the Finance Documents or the transactions contemplated
therein and to bind it in respect of such Reports, reports or letters
and to sign such letters on its behalf and further confirms that it
accepts the terms and qualifications set out in such letters.
27. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to
its affairs (tax or otherwise) or any computations in respect of
Tax.
28. SHARING AMONG THE LENDERS
28.1 PAYMENTS TO LENDERS
If a Lender (a "Recovering Lender") receives or recovers any amount
from an Obligor other than in accordance with Clause 29 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents then:
(a) the Recovering Lender shall, within three Business Days, notify
details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Lender would have been paid
had the receipt or recovery been received or made by the Agent
and distributed in accordance with Clause 29 (Payment mechanics),
without taking account of any Tax which would be imposed on the
Agent in relation to the receipt, recovery or distribution; and
(c) the Recovering Lender shall, within three Business Days of demand
by the Agent, pay to the Agent an amount (the "Sharing Payment")
equal to such receipt or recovery less any amount which the Agent
determines may be retained by the Recovering Lender as its share
of any payment to be made, in accordance with Clause 29.5
(Partial payments).
28.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Lender) in accordance with Clause 29.5 (Partial
payments).
28.3 RECOVERING LENDER'S RIGHTS
(a) On a distribution by the Agent under Clause 28.2 (Redistribution
of payments), the Recovering Lender will be subrogated to the
rights of the Finance Parties which have shared in the
redistribution.
-105-
(b) If and to the extent that the Recovering Lender is not able to
rely on its rights under paragraph (a) above, the relevant
Obligor shall be liable to the Recovering Lender for a debt equal
to the Sharing Payment which is immediately due and payable.
28.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a
Recovering Lender becomes repayable and is repaid by that Recovering
Lender, then:
(a) each Lender which has received a share of the relevant Sharing
Payment pursuant to Clause 28.2 (Redistribution of payments)
shall, upon request of the Agent, pay to the Agent for account of
that Recovering Lender an amount equal to its share of the
Sharing Payment (together with an amount as is necessary to
reimburse that Recovering Lender for its proportion of any
interest on the Sharing Payment which that Recovering Lender is
required to pay); and
(b) that Recovering Lender's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable to the reimbursing Lender for the amount so reimbursed.
28.5 EXCEPTIONS
(a) This Clause 28 shall not apply to the extent that the Recovering
Lender would not, after making any payment pursuant to this
Clause, have a valid and enforceable claim against the relevant
Obligor.
(b) A Recovering Lender is not obliged to share with any other Lender
any amount which the Recovering Lender has received or recovered
as a result of taking legal or arbitration proceedings, if:
(i) it notified the other Lenders of the legal or arbitration
proceedings; and
(ii) the other Lender had an opportunity to participate in
those legal or arbitration proceedings but did not do so
as soon as reasonably practicable having received notice
or did not take separate legal or arbitration proceedings.
(c) This Clause 28 shall not apply to the extent that the Recovering
Lender is a Bilateral Bank or a Hedging Bank and the amounts
recovered are amounts which are owing under a Bilateral Facility
or, as the case may be, a Hedging Agreement and are received at a
time when no notice has been served by the Agent under Clause
23.17 (Acceleration).
-106-
XXXXXXX 00
XXXXXXXXXXXXXX
00. PAYMENT MECHANICS
29.1 PAYMENTS TO THE AGENT
(a) On each date on which an Obligor or a Lender is required to make
a payment under a Finance Document, that Obligor or Lender shall
make the same available to the Agent (unless a contrary
indication appears in a Finance Document) for value on the due
date at the time and in such funds specified by the Agent as
being customary at the time for settlement of transactions in the
relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal financial
centre of the country of that currency (or, in relation to euro,
in a principal financial centre in a Participating Member State
or London) with such bank as the Agent specifies.
29.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 29.3 (Distributions to an
Obligor) and Clause 29.4 (Clawback) be made available by the Agent as
soon as practicable after receipt to the Party entitled to receive
payment in accordance with this Agreement (in the case of a Lender, for
the account of its Facility Office), to such account as that Party may
notify to the Agent by not less than five Business Days' notice with a
bank in the principal financial centre of the country of that currency
(or, in relation to euro, in the principal financial centre of a
Participating Member State or London).
29.3 DISTRIBUTIONS TO AN OBLIGOR
The Agent may (with the consent of the Obligor or in accordance with
Clause 30 (Set-off)) apply any amount received by it for that Obligor
in or towards payment (on the date and in the currency and funds of
receipt) of any amount due from that Obligor under the Finance
Documents or in or towards purchase of any amount of any currency to be
so applied.
29.4 CLAWBACK
(a) Where a sum is to be paid to the Agent under the Finance
Documents for another Party, the Agent is not obliged to pay that
sum to that other Party (or to enter into or perform any related
exchange contract) until it has been able to establish to its
satisfaction that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to be
the case that the Agent had not actually received that amount,
then the Party to whom that amount (or the proceeds of any
related exchange contract) was paid by the Agent shall on demand
refund the same to the Agent together with interest on that
amount from the date of payment to the date of receipt by the
Agent, calculated by the Agent to reflect its cost of funds.
29.5 PARTIAL PAYMENTS
(a) Save in the circumstances described in paragraph (c) below, if
the Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by an
-107-
Obligor under the Finance Documents, the Agent shall apply that
payment towards the obligations of that Obligor under the Finance
Documents in the following order:
(i) FIRST, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent, the Security Agent and
the Arranger under the Finance Documents;
(ii) SECONDLY, in or towards payment pro rata of any accrued
interest or commission due but unpaid under this
Agreement;
(iii) THIRDLY, in or towards payment pro rata of any principal
due but unpaid under this Agreement; and
(iv) FOURTHLY, in or towards payment pro rata of any other sum
due but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (iv) above.
(c) If after the service of a notice by the Agent under Clause 23.17
(Acceleration) or pursuant to the provisions of Clause 29.10
(Application of Proceeds by Security Agent) the Agent receives a
payment that is insufficient to discharge all the amounts then
due and payable by an Obligor under the Finance Documents, the
Agent shall apply that payment towards the obligations of that
Obligor under the Finance Documents in the following order:
(i) FIRST, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent, the Security Agent and
the Arranger under the Finance Documents;
(ii) SECONDLY, in or towards payment pro rata of any accrued
interest or commission due but unpaid under the Finance
Documents;
(iii) THIRDLY, in or towards payment pro rata of any principal
due but unpaid under the Finance Documents (including
without limitation provisions of cash cover in respect of
contingent liabilities and payments due under the
Bilateral Facilities and Hedging Agreements); and
(iv) FOURTHLY, in or towards payment pro rata of any other sum
due but unpaid under the Finance Documents.
(d) The Agent shall, if so directed by the Majority Creditors, vary
the order set out in paragraphs (c)(ii) to (iv) above.
(e) Paragraphs (a), (b), (c) and (d) above will override any
appropriation made by an Obligor.
29.6 NO SET-OFF BY OBLIGORS
All payments to be made by an Obligor under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
-108-
29.7 BUSINESS DAYS
(a) Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the same
calendar month (if there is one) or the preceding Business Day
(if there is not).
(b) During any extension of the due date for payment of any principal
or an Unpaid Sum under this Agreement interest is payable on the
principal at the rate payable on the original due date.
29.8 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (e) below, the Base Currency is the
currency of account and payment for any sum due from an Obligor
under any Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid
Sum shall be made in the currency in which that Loan or Unpaid
Sum is denominated on its due date.
(c) Each payment of interest shall be made in the currency in which
the sum in respect of which the interest is payable was
denominated when that interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be made
in the currency in which the costs, expenses or Taxes are
incurred.
(e) Any amount expressed to be payable in a currency other than the
Base Currency shall be paid in that other currency.
(f) For the purpose of or pending the discharge of any of the Secured
Obligations the Security Agent may convert any moneys received or
recovered by it from one currency to another, at the spot rate at
which the Security Agent is able to purchase the currency in
which the Secured Obligations are due with the amount received.
The obligations of any Obligor to pay in the due currency shall
only be satisfied to the extent of the amount of the due currency
purchased after deducting the costs of conversion.
29.9 CHANGE OF CURRENCY
(a) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank
of any country as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in, the
currency of that country shall be translated into, or paid
in, the currency or currency unit of that country
designated by the Agent (after consultation with the
Parent); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of that
currency or currency unit into the other, rounded up or
down by the Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this Agreement
will, to the extent the Agent (acting reasonably and after
consultation with the Parent) specifies to be
-109-
necessary, be amended to comply with any generally
accepted conventions and market practice in the London
interbank market and otherwise to reflect the change in
currency.
29.10 APPLICATION OF PROCEEDS BY SECURITY AGENT
All moneys from time to time received or recovered by the Security
Agent or Receiver in connection with the realisation or enforcement of
all or any part of the Transaction Security shall be held by the
Security Agent on trust to apply them as soon as the Security Agent in
its sole discretion determines to be reasonably practicable, to the
extent permitted by applicable law (subject to the provisions of this
Clause and notwithstanding any purported appropriation by any Obligor),
in the following order of priority:
(a) in discharging any sums owing to the Security Agent (in its
capacity as trustee), any Receiver or any Delegate;
(b) in payment to the Agent, on behalf of the Finance Parties, for
application towards the discharge of all sums due and payable by
any Obligor under any of the Finance Documents in the order set
out in paragraph (c) of Clause 29.5 (Partial Payments);
(c) if none of the Obligors is under any further actual or contingent
liability under any Finance Document, in payment to any person to
whom the Security Agent is obliged to pay in priority to any
Obligor; and
(d) the balance, if any, in payment to the relevant Obligor.
29.11 INVESTMENT OF PROCEEDS BY SECURITY AGENT
Prior to the application of the proceeds of the Transaction Security in
accordance with Clause 29.10 (Application of Proceeds by Security
Agent) the Security Agent may, at its discretion, hold all or part of
those proceeds in an interest bearing suspense or impersonal account(s)
in the name of the Security Agent or Agent with such financial
institution (including itself) for so long as the Security Agent shall
think fit (the interest being credited to the relevant account) pending
the application from time to time of those monies at the Security
Agent's discretion in accordance with the provisions of this Clause 29.
29.12 PERMITTED DEDUCTIONS BY SECURITY AGENT
The Security Agent shall be entitled (a) to set aside by way of reserve
amounts required to meet and (b) to make and pay, any deductions and
withholdings (on account of Taxes or otherwise) which it is or may be
required by any applicable law to make from any distribution or payment
made by it under this Agreement, and to pay all Taxes which may be
assessed against it in respect of any of the Charged Property, or as a
consequence of performing its duties, or by virtue of its capacity as
Security Agent under any of the Finance Documents or otherwise (other
than in connection with its remuneration for performing its duties
under this Agreement).
29.13 DISCHARGE OF SECURED OBLIGATIONS
Each of the Obligors agrees that the Secured Obligations shall only be
discharged to the extent of the receipts by or recoveries of the
Security Agent pursuant to the enforcement of the Transaction Security.
Any payment to be made in respect of the Secured Obligations by the
Security Agent may be made to the Agent and any payment so made shall
be a good discharge to the extent of such payment, to the Security
Agent.
-110-
29.14 SUMS RECEIVED BY OBLIGORS
If any of the Obligors receives any sum which, pursuant to any of the
Finance Documents, should have been paid to the Security Agent, that
sum shall be held by that Obligor on trust for the Finance Parties and
shall promptly be paid to the Security Agent for application in
accordance with this Clause.
30. SET-OFF
Save as otherwise provided in Clause 22.9 (Hedging Agreements) or
Clause 22.10 (Bilateral Facilities), whilst an Event of Default is
continuing a Finance Party may set off any matured obligation due from
an Obligor under the Finance Documents (to the extent beneficially
owned by that Finance Party) against any matured obligation owed by
that Finance Party to that Obligor, regardless of the place of payment,
booking branch or currency of either obligation. If the obligations are
in different currencies, the Finance Party may convert either
obligation at a market rate of exchange in its usual course of business
for the purpose of the set-off.
31. NOTICES
31.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter or telex.
31.2 ADDRESSES
The address, fax number and telex number (and the department or
officer, if any, for whose attention the communication is to be made)
of each Party for any communication or document to be made or delivered
under or in connection with the Finance Documents is:
(a) in the case of the Parent and AOC, that identified with its name
below;
(b) in the case of each Lender or any other Original Obligor, that
notified in writing to the Agent on or prior to the date on which
it becomes a Party; and
(c) in the case of the Agent and the Security Agent, that identified
with its name below,
or any substitute address, fax number, telex number or department or
officer as the Party may notify to the Agent (or the Agent may notify
to the other Parties, if a change is made by the Agent) by not less
than five Business Days' notice.
31.3 DELIVERY
(a) Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will
only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the
post postage prepaid in an envelope addressed to it at
that address; or
(iii) if by way of telex, when despatched, but only if, at the
time of transmission, the correct answerback appears at
the start and at the end of the sender's copy of the
notice;
-111-
and, if a particular department or officer is specified as part
of its address details provided under Clause 31.2 (Addresses), if
addressed to that department or officer.
(b) Any communication or document to be made or delivered to the
Agent or the Security Agent will be effective only when actually
received by the Agent or the Security Agent (as the case may be)
and then only if it is expressly marked for the attention of the
department or officer identified with the Agent's (or, as
applicable, Security Agent's) signature below (or any substitute
department or officer as the Agent or the Security Agent (as the
case may be) shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the
Agent.
(d) Any communication or document made or delivered to the Obligors'
Agent in accordance with this Clause will be deemed to have been
made or delivered to each of the Obligors.
31.4 NOTIFICATION OF ADDRESS, FAX NUMBER AND TELEX NUMBER
Promptly upon receipt of notification of an address, fax number and
telex number or change of address, fax number or telex number pursuant
to Clause 31.2 (Addresses) or changing its own address, fax number or
telex number, the Agent shall notify the other Parties.
31.5 ENGLISH LANGUAGE
(a) Any notice given under or in connection with any Finance Document
must be in English.
(b) All other documents provided under or in connection with any
Finance Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Agent,
accompanied by a certified English translation and, in
this case, the English translation will prevail unless the
document is a constitutional, statutory or other official
document.
32. CALCULATIONS AND CERTIFICATES
32.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters
to which they relate.
32.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
32.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days or, in any case where the
practice in the London interbank market differs, in accordance with
that market practice.
-112-
33. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way
be affected or impaired.
34. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
of the Finance Parties or the Arranger, any right or remedy under the
Finance Documents shall operate as a waiver, nor shall any single or
partial exercise of any right or remedy prevent any further or other
exercise or the exercise of any other right or remedy. The rights and
remedies provided in this Agreement are cumulative and not exclusive of
any rights or remedies provided by law.
35. AMENDMENTS AND WAIVERS
35.1 REQUIRED CONSENTS
(a) Subject to Clause 35.2 (Exceptions) any term of the Finance
Documents (other than the Security Documents, the Bilateral
Facilities and the Hedging Agreements) may be amended or waived
only with the consent of the Majority Lenders and the Obligors
and any such amendment or waiver will be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
35.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "Majority Lenders" or "Majority
Creditors" in Clause 1.1 (Definitions);
(ii) an extension to the date of payment of any amount under
the Finance Documents;
(iii) a reduction in the Margin or the amount of any payment of
principal, interest, fees or commission payable;
(iv) an increase in Commitment;
(v) a change to the Borrowers or Guarantors other than in
accordance with Clause 25 (Changes to the Obligors);
(vi) any provision which expressly requires the consent of all
the Lenders;
(vii) Clause 2.3 (Lenders' rights and obligations), Clause 24
(Changes to the Lenders) or this Clause 35; or
(viii) Clause 29.10 (Application of Proceeds by Security Agent),
shall not be made without the prior consent of all the Lenders.
-113-
(b) An amendment or waiver which has the effect of changing or which
relates to any provision in this Agreement relating to the terms
of any Bilateral Facility or Hedging Agreement or the rights of a
Bilateral Bank or Hedging Bank thereunder may not be affected
without the consent of the relevant Bilateral Bank or Hedging
Bank (as the case may be).
(c) An amendment or waiver which relates to the rights or obligations
of the Agent, the Security Agent or the Arranger may not be made
without the consent of the Agent, the Security Agent or the
Arranger (as the case may be).
(d) An amendment or waiver that has the effect of changing or which
relates to any provision which expressly requires the consent of
the Majority Creditors, shall not be made without the prior
consent of the Majority Creditors.
35.3 AMENDMENTS TO SECURITY DOCUMENTS
Subject to Clause 35.4 (Exceptions relating to Security), the Security
Agent may, if authorised by the Majority Lenders, amend the terms of,
waive any of the requirements of, or grant consents under, any of the
Security Documents, any such amendment, waiver or consent being binding
on all the Parties.
35.4 EXCEPTIONS RELATING TO SECURITY
(a) The prior consent of all of the Lenders is required to authorise
any amendment of any Security Document which would affect the
nature or the scope of the Charged Property or the manner in
which proceeds of enforcement are distributed.
(b) No waiver or amendment of any Security Document may impose any
new or additional obligations on any person without the consent
of that person.
35.5 RELEASES BY SECURITY AGENT
Upon a disposal of any of the Charged Property (a) pursuant to the
enforcement of the Transaction Security by a Receiver or the Security
Agent or (b) if such disposal is permitted by paragraph (b) of Clause
22.4 (Disposals) of this Agreement or any other provision of the
Finance Documents, the Security Agent shall (at the cost of the
Obligor) release that property from the Transaction Security and is
authorised to execute, without the need for any further authority from
the Finance Parties, any release of the Transaction Security or other
claim over that asset and to issue any certificates of
non-crystallisation of floating charges that may be required or
desirable.
35.6 AMENDMENTS BY OBLIGORS' AGENT
The Obligors' Agent (acting on behalf of each of the Obligors) may
agree any amendment to or modification of the provisions of any of the
Finance Documents or any schedule thereto, or grant any waiver or
consent in relation thereto and the Obligors will be bound by any such
amendment or modification.
35.7 AMENDMENT TO CORRECT MANIFEST ERROR
The Agent may agree with the Obligors' Agent (acting on behalf of each
of the Obligors) any amendment to or the modification of the provisions
of any of the Finance Documents or any schedule thereto, which is
necessary to correct a manifest error and the Obligors will be bound by
any such amendment or modification.
-114-
35.8 AMENDMENTS TO HEDGING AGREEMENTS
Subject to the provisions of Clause 22.9 (Hedging Arrangements), a
Hedging Agreement may be amended, varied, waived or modified by
agreement between the parties thereto.
35.9 AMENDMENTS TO BILATERAL FACILITIES
Subject to the provisions of Clause 22.10 (Bilateral Facilities), a
Bilateral Facility may be amended, varied, waived or modified by
agreement between the parties thereto.
36. OBLIGORS' AGENT
Each Obligor by its execution of this Agreement or an Accession Letter
irrevocably authorises the Obligors' Agent to act on its behalf as its
agent in relation to the Finance Documents and irrevocably authorises:
(a) the Obligors' Agent on its behalf to supply all information
concerning itself, its financial condition and otherwise to the
relevant persons contemplated under this Agreement and to give
all notices and instructions (including, in the case of a
Borrower (and without limitation), Utilisation Requests and
Selection Notices) on its behalf under the Finance Documents
without further reference to or the consent of such Obligor; and
(b) each Finance Party to give any notice, demand or other
communication to be given to or served on such Obligor pursuant
to the Finance Documents to the Obligors' Agent on its behalf;
and in each such case such Obligor will be bound thereby as though such
Obligor itself had supplied such information, given such notice and
instructions or received any such notice, demand or other
communication.
37. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts,
and this has the same effect as if the signatures on the counterparts
were on a single copy of the Finance Document.
-115-
SECTION 12
GOVERNING LAW AND ENFORCEMENT
38. GOVERNING LAW
This Agreement is governed by English law.
39. ENFORCEMENT
39.1 JURISDICTION OF ENGLISH COURTS
(a) The courts of England have exclusive jurisdiction to settle
any dispute arising out of or in connection with this
Agreement (including a dispute regarding the existence,
validity or termination of this Agreement) (a "Dispute").
(b) The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 39.1 is for the benefit of the Finance Parties
only. As a result, no Finance Party shall be prevented from
taking proceedings relating to a Dispute in any other courts
with jurisdiction. To the extent allowed by law, the Finance
Parties may take concurrent proceedings in any number of
jurisdictions.
39.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any
relevant law, each Obligor (other than an Obligor incorporated in
England and Wales):
(a) irrevocably appoints AOC as its agent for service of process
in relation to any proceedings before the English courts in
connection with any Finance Document; and
(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
40. WAIVER OF JURY TRIAL
Each of the Finance Parties irrevocably waives trial by jury in any
action or proceeding with respect to any Finance Document.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
-116-
SCHEDULE 1
THE ORIGINAL PARTIES
Part I
The Original Obligors
Name of Original Borrower Jurisdiction of Incorporation and
registration number (or equivalent, if
any)
The Associated Octel Company Limited England, 344359
Octel Petroleum Specialties Limited England, 3316334
Octel Developments PLC England, 3516662
Name of Original Guarantor Jurisdiction of Incorporation and
registration number (or equivalent, if
any)
The Associated Octel Company Limited England, 344359
Octel Petroleum Specialties Limited England, 3316334
Octel Developments PLC England, 3516662
Octel Corp. Delaware, USA,
OboAdler Company Limited England, 3760777
Octel Trading Limited England, 3516648
Octavision Limited England, 4109325
Octel International Limited England, 3316194
Alcor Chemie Vertriebs GmbH Switzerland, CH-170.4.002.974-7
Associated Octel Company (Plant) England, 873396
Limited
Octel America Inc. Delaware, USA,
-117-
Part II
The Original Lenders
Name of Original Lender Facility A Facility B Commitment
Commitment ($)
($)
BARCLAYS BANK PLC 109,200,000 20,800,000
BAYERISCHE LANDESBANK GIROZENTRALE
LONDON BRANCH 50,400,000 9,600,000
LLOYDS TSB BANK plc 50,400,000 9,600,000
Total 210,000,000 40,000,000
-118-
SCHEDULE 2
CONDITIONS PRECEDENT
Part I
Conditions precedent to initial Utilisation
1. Corporate Documents
(a) A copy of the constitutional documents of each Original
Obligor.
(b) A copy of a resolution of the board of directors (or
equivalent thereof) of each Original Obligor:
(i) approving the terms of, and the transactions
contemplated by, the Finance Documents to which it is
a party and resolving that it execute the Finance
Documents to which it is a party;
(ii) authorising a specified person or persons to execute
the Finance Documents to which it is a party on its
behalf; and
(iii) authorising a specified person or persons, on its
behalf, to sign and/or despatch all documents and
notices (including, if relevant, any Utilisation
Request and Selection Notice) to be signed and/or
despatched by it under or in connection with the
Finance Documents to which it is a party.
(c) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above.
(d) A certificate of the Parent (signed by a member of Management
or a director) confirming that borrowing or guaranteeing, as
appropriate, the Total Commitments would not cause any
borrowing, guaranteeing or similar limit binding on any
Original Obligor to be exceeded.
(e) The Group Structure Chart.
(f) To the extent not otherwise provided above, the constitutive
documents of any member of the Group incorporated in England
and Wales or the US whose shares are subject to Security under
any of the Security Documents together with any resolutions of
the shareholders of such member of the Group adopting such
changes to the constitutive documents of such member of the
Group as the Agent shall have reasonably required (prior to
the date of this Agreement) to, among other things, remove any
restriction on any transfer of shares or partnership interests
(or equivalent) in such member of the Group pursuant to any
enforcement of any of such Security Documents.
(g) A copy of a good standing certificate with respect to each US
Group Member which is an Original Guarantor, issued as of a
recent date by the Secretary of State or other appropriate
official of such US Group Member's jurisdiction of
incorporation or organisation
-119-
(h) A certificate of an authorised signatory of the relevant
Original Obligor certifying that each copy document relating
to it specified in this paragraph 1 of Part I of Schedule 2 is
correct, complete and in full force and effect as at a date no
earlier than the date of this Agreement.
2. Legal opinions
(a) A legal opinion of Xxxxxxxx Chance LLP, legal advisers to the
Mandated Lead Arranger and the Agent in England as to English
law, substantially in the form distributed to the Original
Lenders prior to signing this Agreement.
(b) A legal opinion of Xxxxxxxx Chance LLP, legal advisers to the
Mandated Lead Arranger and the Agent as to the laws of the US,
substantially in the form distributed to the Original Lenders
prior to signing this Agreement.
(c) A legal opinion of Bar & Xxxxxx, the legal advisers to the
Mandated Lead Arranger and the Agent as to Swiss law,
substantially in the form distributed to the Original Lenders
prior to signing this Agreement.
3. Accounts and Reports
(a) The Original Financial Statements of each Original Obligor.
(b) The Agreed Financial Projections.
(c) The Reports either addressed to, or with Reliance Letters in
favour of, the Security Agent (on behalf of the Finance
Parties).
4. Other Financing Documents
(a) The Hedging Strategy Letter duly signed by the parties
thereto.
(b) The Fee Letter referred to in Clause 12.2 (Arrangement Fee)
duly signed by the parties thereto.
(c) The Fee Letter referred to in Clause 12.3 (Agency Fees) duly
signed by the parties thereto.
(d) The Syndication Letter in the agreed form duly signed by the
parties thereto.
5. Security
(a) Duly executed Debentures in the agreed form (to be dated the
first Utilisation Date).
(b) Duly executed Swiss Assignment Agreement in the agreed form
(to be dated the first Utilisation Date).
(c) Duly executed US Security Documents in the agreed form (to be
dated the first Utilisation Date).
(d) Duly executed English Share Pledge in the agreed form (to be
dated the first Utilisation Date).
-120-
(e) Duly executed Swiss Share Pledge in the agreed form (to be
dated the first Utilisation Date).
6. Perfection of Security
(a) Key Properties - Registration:
(i) The results of HM Land Registry searches in favour of
the Agent on the appropriate forms against all of the
registered titles comprising each Key Property giving
not less than 14 days priority beyond the date each
Key Property became subject to the terms of the
relevant Finance Documents and showing no adverse
entries.
(ii) An undertaking from Linklaters & Alliance (legal
counsel to AOC) to use reasonable endeavours to
satisfy any requisitions raised by HM Land Registry
without delay in connection with the application to
register the Security created in respect of each Key
Property under the Finance Documents.
(iii) Appropriate land registry application forms
completed, land registry fees (including any related
fees) to enable Xxxxxxxx Chance LLP to register the
Security created in respect of each Key Property
under the Finance Documents.
(iv) Title Deeds for the Key Properties.
(v) Notice of Charge (to be dated the first Utilisation
Date).
(b) All original share certificates and related stock transfer
forms executed in blank in relation to shares subject to the
Security Documents to the extent appropriate under applicable
law.
(c) Executed notices of assignment/charge (to be dated the first
Utilisation Date) of any contracts specifically identified in
the Security Documents and any bank accounts listed in the
Security Documents.
(d) All insurance policies relating to Material Insurances in
force as at the Closing Date or, if not available, broker's
letters confirming the matters specified in paragraph (b)(i)
of Clause 22.7 (Insurance).
7. Other documents and evidence
(a) Evidence that upon the date that the first Loan is made:
(i) all Financial Indebtedness under the Senior Notes
will be immediately repaid in full;
(ii) all Financial Indebtedness under the Existing Bank
Facilities will be immediately repaid in full and all
commitments under the Existing Bank Facilities
cancelled;
(iii) all of the existing Security relating to the Existing
Bank Facilities will be immediately released.
-121-
(b) Evidence that the fees, costs and expenses then due pursuant
to Clause 12 (Fees) and Clause 17 (Costs and expenses) have
been paid or will be paid by or on the first Utilisation Date.
(c) Either (i) a letter from the Parent to the Agent (attaching
supporting advice from the Borrower's English solicitors)
confirming that each of the Original Obligors incorporated in
England is not prohibited by Section 151 of the Companies Xxx
0000 from entering into the Finance Documents and/or (ii)
evidence that each of the Original Obligors incorporated in
England has done all that is necessary (including, without
limitation, by re-registering as a private company) to follow
the procedures set out in Sections 155 to 158 of the Companies
Xxx 0000 in order to enable it to enter into the Finance
Documents and perform its obligations under the Finance
Documents.
(d) A certificate of solvency signed by the chief financial
officer of each Original Obligor incorporated in the US.
(e) Evidence that the Original Guarantors satisfy the requirements
of paragraph (b) of Clause 22.24 (Guarantors) (by reference to
the consolidated accounts of the Parent for the year ending 31
December 2000).
(f) The Business Proposal for JV in India.
-122-
Part II
Conditions Precedent required to be
delivered by an Additional Obligor
1. An Accession Letter, duly executed by the Additional Obligor and the
Parent.
2. A copy of the constitutional documents of the Additional Obligor.
3. A copy of a resolution of the board of directors of the Additional
Obligor:
(a) approving the terms of, and the transactions contemplated by,
the Accession Letter and the Finance Documents and resolving
that it execute the Accession Letter;
(b) authorising a specified person or persons to execute the
Accession Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to
sign and/or despatch all other documents and notices
(including, in relation to an Additional Borrower, any
Utilisation Request or Selection Notice) to be signed and/or
despatched by it under or in connection with the Finance
Documents.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
5. Where the Agent's relevant counsel deems such to be either necessary or
desirable either in place of or in addition to the resolution referred
to in paragraph (b) above, a certificate or extract from a public
commercial registry or other evidence setting out the names and
signatures of the persons authorised to sign, on behalf of the
Additional Obligor, each Finance Document to which such company is or
is to be a party and any documents to be delivered by such company
pursuant to any of the Finance Documents.
6. Where the Agent's relevant counsel deems such to be either necessary or
desirable, either a copy of a resolution signed by all the holders of
the issued shares in such company or a resolution of the supervisory
board, work council or equivalent supervisory body of the Additional
Obligor, approving the terms of, and the transactions contemplated by,
the Finance Documents to which that company is a party.
7. A certificate of the Additional Obligor (signed by a director)
confirming that borrowing or guaranteeing, as appropriate, the Total
Commitments would not cause any borrowing, guaranteeing or similar
limit binding on it to be exceeded.
8. A certificate of an authorised signatory of the Additional Obligor
certifying that each copy document listed in this Part II of Schedule 2
is correct, complete and in full force and effect as at a date no
earlier than the date of the Accession Letter.
9. A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable in
connection with the entry into and performance of the transactions
contemplated by the Accession Letter or for the validity and
enforceability of any Finance Document.
10. If available, the latest audited financial statements of the Additional
Obligor.
-123-
11. A legal opinion of Xxxxxxxx Chance LLP, legal advisers to the Mandated
Lead Arranger and the Agent in England.
12. If the Additional Obligor is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the
Mandated Lead Arranger and the Agent in the jurisdiction in which the
Additional Obligor is incorporated.
13. If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and Wales, evidence that the process agent specified
in Clause 39.2 (Service of process), if not an Obligor, has accepted
its appointment in relation to the proposed Additional Obligor.
14. If the proposed Additional Obligor is incorporated in England, either
(i) a letter from the Parent to the Agent (attaching supporting advice
from the Borrower's English solicitors) confirming that the Additional
Guarantor is not prohibited by Section 151 of the Companies Xxx 0000
from entering into the Finance Documents and/or (ii) evidence that the
Additional Guarantor has done all that is necessary (including, without
limitation, by re-registering as a private company) to follow the
procedures set out in Sections 155 to 158 of the Companies Xxx 0000 in
order to enable each Guarantor to enter into the Finance Documents and
perform its obligations under the Finance Documents.
15. Such Security Document(s) executed by the Additional Obligor in favour
of the Security Agent for the benefit of the Finance Parties (or, if
applicable, directly in favour of the Finance Parties) as the Agent
shall have required in accordance with the provisions of Clause 22.24
(Guarantors and Security).
16. (To the extent permissible under applicable law) an executed Security
Document by the immediate Holding Company of the Additional Obligor
over the entire issued share capital of the Additional Obligor held by
such Holding Company.
17. If the Additional Obligor is incorporated or organised in any state of
the United States of America, a certificate of solvency signed by the
Chief Financial Officer of such Additional Obligor and a copy of a good
standing certificate with respect to that Additional Obligor issued as
of a recent date by the Secretary of State or other appropriate
official of that Additional Obligor's jurisdiction of incorporation or
organisation.
18. Where the Agent's relevant counsel reasonably deems such to be either
necessary or advisable and to the extent practicable (taking into
account the commercial benefit for the Finance Parties and the burden
on the Obligors), any recordings, filings or other action required to
perfect the Security purported to be created by the Security Documents
referred to above (including, without limitation, delivery of share
certificates and stock transfer forms executed in blank in relation to
pledged shares, noting of pledges on share registers, application for
registration of security and notices of assignment).
19. The constitutive documents of any member of the Group whose shares are
subject to Security under any of the Security Documents referred to
above in the form required by the Agent together with any resolutions
of the shareholders of such member of the Group adopting such changes
to the constitutive documents of such member of the Group as the Agent
shall have reasonably required to, among other things, remove any
restriction on any transfer of shares or
-124-
partnership interests (or equivalent) in such member of the Group
pursuant to any enforcement of any of such Security Documents.
-125-
Part III
Conditions Precedent required to be delivered by
Obligors' Agent in connection with the acquisition of
the Identified Target
1. All of the reports from appropriate professional advisers which the
Majority Lenders (acting reasonably) have required in connection with
the acquisition of the Identified Target, either addressed to, or with
Reliance Letters in favour of, the Security Agent (on behalf of the
Finance Parties).
2. Drafts of all of the contracts relating to the acquisition of the
Identified Target together with confirmation from the Obligors' Agent
that such documents contain all the material terms of such acquisition
and that it will not complete the acquisition of the Identified Target
if there are any material changes to such terms without the approval of
the Majority Lenders of such material changes.
3. The relevant recent financial statements and relevant financial
projections relating to the Identified Target and the Group as a whole
including the Identified Target.
4. Evidence that upon the relevant Facility B Loan being made and/or the
relevant purchase consideration being paid to the vendor of the
Identified Target all of the conditions to the acquisition of the
Identified Target contained in the draft contracts delivered pursuant
to paragraph 2 above will have been satisfied without being waived or
modified (unless such waiver or modification has been consented to by
the Majority Lenders in writing or could not reasonably be expected to
be adverse to the interests of the Finance Parties under the Finance
Documents).
-126-
SCHEDULE 3
REQUESTS
Part I
Utilisation Request
From: [Borrower/Obligors' Agent]
To: [Agent]
Dated:
Dear Sirs
Octel Corp. - US$[250,000,000] Facilities Agreement
dated [ ] (the "Facility Agreement")
1. We wish [Name of Borrower] to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a
Business Day, the next Business Day)
Facility to be utilised: [Facility A]/[Facility B] *
[Type of Utilisation [only
relevant if is under Facility
B]: [Relevant Acquisition Utilisation] /
[Prochem Refinancing Facility B
Utilisation] / [Neither a Relevant
Acquisition nor a Prochem Refinancing
Facility B Utilisation]]*
Currency of Loan: [ ]
Amount: [ ] or, if less, the Available
Facility
Interest Period: [ ]
2. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Utilisation
Request.
3. The proceeds of this Loan should be credited to [account].
[4] [The proceeds of this Loan are to be used to repay indebtedness
incurred by the Group in connection with the Prochem Acquisition.**
[4] The proceeds of this Loan are to be used towards the acquisition of
[specify Identified Target] as follows: [ ]***
[4/5] This Utilisation Request is irrevocable.
* delete as appropriate
** include if it is a Prochem Refinancing Facility B Utilisation
*** include if it is a Relevant Acquisition Utilisation
-127-
Yours faithfully
..................................
authorised signatory for
[the Obligors' Agent on behalf of]
[name of relevant Borrower]
-128-
Part II
Selection Notice
Applicable to a Facility A Loan
From: [Borrower/Obligors' Agent]
To: [Agent]
Dated:
Dear Sirs
Octel Corp. - US$[250,000,000] Facilities Agreement
dated [ ] (the "Facility Agreement")
1. We refer to the following Facility A Loan[s] in [identify currency]
with an Interest Period ending on [__________]*.
2. [We request that the above Facility A Loan[s] be divided into
[ ] Facility A Loans with the following Base Currency Amounts
and Interest Periods:] **
or
[We request that the next Interest Period for the above Facility A
Loan[s] is [ ]].***
3. We request that the above Facility A Loan[s] [is]/[are] [denominated in
the same currency for the next Interest Period]/[denominated in the
following currencies: [ ]. As this results in a change of
currency we confirm that each condition specified in Clause 4.2
(Further conditions precedent) is satisfied on the date of this
Selection Notice. The proceeds of any change in currency should be
credited to [account].].
4. This Selection Notice is irrevocable.
Yours faithfully
..................................
authorised signatory for
[the Obligors' Agent on behalf of] [name of relevant Borrower]
* Insert details of all Facility A Loans in the same currency which have an
Interest Period ending on the same date.
** Use this option if division of Facility A Loans is requested.
*** Use this option if sub-division is not required.
-129-
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the
Bank of England and/or the Financial Services Authority (or, in either
case, any other authority which replaces all or any of its functions)
or (b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate
(the "Additional Cost Rate") for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by the
Agent as a weighted average of the Lenders' Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per
annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office
in a Participating Member State will be the percentage notified by that
Lender to the Agent as the cost of complying with the minimum reserve
requirements of the European Central Bank.
4. The Additional Cost Rate for any Lender lending from a Facility Office
in the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a domestic sterling Loan:
AB + C(B - D) + E x 0.01
------------------------ per cent. per annum
100 - (A + C)
(b) in relation to a Loan in any currency other than domestic
sterling:
E x 0.01
-------- per cent. per annum.
300
Where:
A is the percentage of Eligible Liabilities (assuming these to
be in excess of any stated minimum) which that Lender is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash
ratio requirements.
B is the percentage rate of interest (excluding the Margin and
the Mandatory Cost) payable for the relevant Interest Period
on the Loan.
C is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of
England to the Agent on interest bearing Special Deposits.
-130-
E is the rate of charge payable by that Lender to the Financial
Services Authority pursuant to the Fees Regulations (but, for
this purpose, ignoring any minimum fee required pursuant to
the Fees Regulations) and expressed in pounds per
(pound)1,000,000 of the Fee Base of that Lender.
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the
meanings given to them from time to time under or pursuant to
the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England;
(b) "Fees Regulations" means the Banking Supervision (Fees)
Regulations 2001 or such other law or regulation as may be in
force from time to time in respect of the payment of fees for
banking supervision; and
(c) "Fee Base" has the meaning given to it, and will be calculated
in accordance with, the Fees Regulations.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5 per cent. will be included in the
formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information
in writing on or prior to the date on which it becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
(b) any other information that the Agent may reasonably require
for such purpose.
Each Lender shall promptly notify the Agent in writing of any change to
the information provided by it pursuant to this paragraph.
8. The percentages or rates of charge of each Lender for the purpose of A,
C and E above shall be determined by the Agent based upon the
information supplied to it pursuant to paragraph 7 above and on the
assumption that, unless a Lender notifies the Agent to the contrary,
each Lender's obligations in relation to cash ratio deposits, Special
Deposits and the Fees Regulations are the same as those of a typical
bank from its jurisdiction of incorporation with a Facility Office in
the same jurisdiction as its Facility Office.
9. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Lender pursuant to paragraphs 3 and 7 above is true and correct in
all respects.
10. The Agent shall distribute the additional amounts received as a result
of the Mandatory Cost to the Lenders on the basis of the Additional
Cost Rate for each Lender based on the information provided by each
Lender pursuant to paragraphs 3 and 7 above.
-131-
11. Any determination by the Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
12. The Agent may from time to time, after consultation with the Parent and
the Lenders, determine and notify to all Parties any amendments which
are required to be made to this Schedule in order to comply with any
change in law, regulation or any requirements from time to time imposed
by the Bank of England, the Financial Services Authority or the
European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall,
in the absence of manifest error, be conclusive and binding on all
Parties.
-132-
SCHEDULE 5
FORM OF TRANSFER CERTIFICATES
Part I
To: [ ] as Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the
"New Lender")
Dated:
Octel Corp. - US$[250,000,000] Facilities Agreement
dated [ ] (the "Facility Agreement")
1. We refer to Clause 24.5 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing
Lender and the New Lender transferring by novation all or part
of the Existing Lender's Commitment, rights and obligations
referred to in the Schedule in accordance with Clause 24.5
(Procedure for transfer).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention
details for notices of the New Lender for the purposes of
Clause 31.2 (Addresses) are set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 24.4
(Limitation of responsibility of Existing Lenders).
3. This Transfer Certificate is governed by English law and unless
otherwise specified terms defined in the Facility Agreement shall have
the same meaning in this Transfer Certificate.
-133-
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for
notices and account details for payments,]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer
Date is confirmed as [ ].
[Agent]
By:
-134-
Part II
LMA Transfer Certificate (Par)
BANK: Date:
TRANSFEREE:
This Transfer Certificate is entered into pursuant to (i) the agreement (the
"Sale Agreement") evidenced by the Confirmation dated between the Bank
and the Transferee (acting directly or through their respective agents) and (ii)
the Credit Agreement.
On the Transfer Date, the transfer by way of novation from the Bank to the
Transferee on the terms set out herein and in the Credit Agreement shall become
effective subject to:-
(i) the Sale Agreement and the terms and conditions incorporated
in the Sale Agreement;
(ii) the terms and conditions annexed hereto; and
(iii) the schedule annexed hereto,
all of which are incorporated herein by reference.
The Bank The Transferee
[ ] [ ]
By: By:
-135-
The Schedule
Credit Agreement Details:
Borrower(s): ____________________________________
Credit Agreement Dated ____________________________________
Guarantor(s): ____________________________________
Agent Bank: No Yes (specify)_____________
Security: ____________________________________
Total Facility Amount: ____________________________________
Governing Law: ____________________________________
Additional Information: ____________________________________
Transfer Details:
Name of Tranche Facility: _______________ _______________
Nature (Revolving, Term, Acceptances
Guarantee/Letter of Credit, Other): _______________ _______________
Final Maturity: _______________ _______________
Participation Transferred
Commitment transferred1 _______________ _______________
Drawn Amount (details below):/1/ _______________ _______________
Undrawn Amount:/1/ _______________ _______________
Settlement Date: ____________________________________
Details of outstanding Credits/1/
Specify in respect of each Credit:
Transferred Portion (amount): _______________
Tranche/Facility: _______________
Nature: Term Revolver Acceptance
Guarantee/Letter of Credit
Other (specify)_______________
Details of other Credits are set out on the attached sheet
Administration Details
Bank's Receiving Account: ___________________________
Transferee's Receiving Account: ___________________________
Addresses
Bank Transferee
[ ] [ ]
Address: Address:
Telephone: Telephone:
Facsimile: Facsimile:
Telex: Telex:
Attn/Ref Attn/Ref
/1/ As at the date of the Transfer Certificate
-136-
TERMS AND CONDITIONS
These are the Terms and Conditions applicable to the transfer certificate
including the Schedule thereto (the "Transfer Certificate") to which they are
annexed.
1. Interpretation
In these Terms and Conditions words and expressions shall (unless
otherwise expressly defined herein) bear the meaning given to them in
the Transfer Certificate, the Credit Agreement or the Sale Agreement.
2. Transfer
The Bank requests the Transferee to accept and procure the transfer by
novation of all or a part (as applicable) of such participation of the
Bank under the Credit Agreement as is set out in the relevant part of
the Transfer Certificate under the heading "Participation Transferred"
(the "Purchased Assets") by counter-signing and delivering the Transfer
Certificate to the Agent at its address for the service of notice
specified in the Credit Agreement. On the Transfer Date the Transferee
shall pay to the Bank the Settlement Amount as specified in the pricing
letter between the Bank and the Transferee dated the date of the
Transfer Certificate (adjusted, if applicable, in accordance with the
Sale Agreement) and completion of the transfer will take place.
3. Effectiveness of Transfer
The Transferee hereby requests the Agent to accept the Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of the Credit Agreement so as to take effect in accordance
with the terms of the Credit Agreement on the Transfer Date or on such
later date as may be determined in accordance with the terms thereof.
4. Transferee's Undertaking
The Transferee hereby undertakes with the Agent and the Bank and each
of the other parties to the Credit Documentation that it will perform
in accordance with its terms all those obligations which by the terms
thereof will be assumed by it after delivery of the Transfer
Certificate to the Agent and satisfaction of the conditions (if any)
subject to which the Transfer Certificate is to take effect.
5. Payments
(1) Place
All payments by either party to the other under the Transfer
Certificate shall be made to the Receiving Account of that other party.
Each party may designate a different account as its Receiving Account
for payment by giving the other not less than five Business Days notice
before the due date for payment.
-137-
(2) Funds
Payments under the Transfer Certificate shall be made in the currency
in which the amount is denominated for value on the due date at such
times and in such funds as are customary at the time for settlement of
transactions in that currency.
6. The Agent
The Agent shall not be required to concern itself with the Sale
Agreement and may rely on the Transfer Certificate without taking
account of the provisions of such agreement.
7. Assignment of Rights
The Transfer Certificate shall be binding upon and enure to the benefit
of each party and its successors and permitted assigns provided that
neither party may assign or transfer its rights thereunder without the
prior written consent of the other party.
8. Governing Law and Jurisdiction
The Transfer Certificate (including, without limitation, these Terms
and Conditions) shall be governed by and construed in accordance with
the laws of England, and the parties submit to the non-exclusive
jurisdiction of the English courts.
Each party irrevocably appoints the person described as process agent
(if any) specified in the Sale Agreement to receive on its behalf
service of any action, suit or other proceedings in connection with the
Transfer Certificate. If any person appointed as process agent ceases
to act for any reason the appointing party shall notify the other party
and shall promptly appoint another person incorporated within England
and Wales to act as its process agent.
-138-
SCHEDULE 6
FORM OF ACCESSION LETTER
To: [ ] as Agent
From: [Subsidiary] and [Parent]
Dated:
Dear Sirs
Octel Corp. - US$[250,000,000] Facilities Agreement
dated [ ] (the "Facility Agreement")
1. [Subsidiary] agrees to become an Additional [Borrower]/[Guarantor] and
to be bound by the terms of the Facility Agreement as an Additional
[Borrower]/[Guarantor] pursuant to clause [25.2 (Additional
Borrowers)]/[Clause 25.4 (Additional Guarantors)] of the Facility
Agreement. [Subsidiary] is a company duly incorporated under the laws
of [name of relevant jurisdiction].
2. [Incorporate wording limiting the guarantee to the extent appropriate
to satisfy any local legal requirements regarding corporate benefit,
financial assistance etc. and to avoid any material risk of legal
liability of a director of the proposed Guarantor.]
3. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
4. This letter is governed by English law.
This Guarantor Accession Letter is entered into by a deed.
[Parent] [Subsidiary]
-139-
SCHEDULE 7
FORM OF RESIGNATION LETTER
To: [ ] as Agent
From: [resigning Obligor] and [Parent]
Dated:
Dear Sirs
Octel Corp. - US$[250,000,000] Facilities Agreement
dated [ ] (the "Facility Agreement")
1. Pursuant to [Clause 25.3 (Resignation of a Borrower)]/[Clause 25.6
(Resignation of a Guarantor)], we request that [resigning Obligor] be
released from its obligations as a [Borrower]/[Guarantor] under the
Facility Agreement.
2. We confirm that:
(a) no Default is continuing or would result from the acceptance
of this request; and
(b) [ ]*
3. This letter is governed by English law.
[Parent] [Subsidiary]
By: By:
* Insert any other conditions required by the Facility Agreement.
-140-
SCHEDULE 8
FORM OF COMPLIANCE CERTIFICATE
To: [ ] as Agent
From: [Parent]
Dated:
Dear Sirs
Octel Corp. - US$[250,000,000] Facilities Agreement
dated [ ] (the "Facility Agreement")
1. We refer to the Facility Agreement. This is a Compliance Certificate.
2. We confirm that:
(a) The ratio of the Cashflow to Consolidated Net Finance Charges
for the Relevant Period ending on [Quarter Date] was [ ]:1.0.
(b) The ratio of Total Net Debt on [Quarter Date] to EBITDA for
the Relevant Period ending on such Quarter Date was [ ]:1.0.
(c) The ratio of EBITDA to Net Interest for the Relevant Period
ending on [Quarter Date] was [ ]:1.0..
(d) Surplus Cash Flow for the Accounting Quarter ending on
[Quarter Date] was [ ],
and attach calculations showing how these ratios were calculated.
3. On the basis of the above, we confirm that:
(a) the Margin in respect of Loans after your receipt of this
Compliance Certificate will be [ ] per cent. per annum; and
(b) the amount due to be applied in prepayment of the Facilities
in accordance with Clause 8.7 (Surplus Cash Flow) is [ ] on
the basis that [explain].
4. [We also confirm that:
(a) the aggregate (without double counting) EBITDA of the
Guarantors for the Relevant Period ending on [ ] was [ ]% of
the consolidated EBITDA of the Group for that Relevant Period;
(b) the aggregate gross assets (without double counting) of the
Guarantors as at [ ] was [ ]% of the consolidated gross
assets of the Group as at such date;
(c) Guarantors representing at least 85% of consolidated EBITDA of
the Group for that relevant period and at least 85% of the
consolidated gross assets of the Group as at [insert date of
Relevant Period] have provided Transaction Security which
continue to be in place; and
-141-
(d) the Material Group Companies for the purpose of paragraphs (b)
and (d) of the definition of Material Group Company are as
follows:
[ ]. [Note: This paragraph 4 only to be given with
annual statements]
5. [We confirm that no Default is continuing.] [If this statement cannot
be made, this certificate should identify the Default and the steps, if
any, being taken to remedy it.]
Signed: .......................... ..........................
[Director/member of Management] [Director/member of Management]
of of
[Parent] [Parent]
-142-
SCHEDULE 9
LMA FORM OF CONFIDENTIALITY UNDERTAKING
LMA CONFIDENTIALITY LETTER (SELLER)
[Letterhead of Seller/Seller's agent/broker]
To:
==================================================
[insert name of Potential
Purchaser/Purchaser's
agent/broker]
==================================================
Re: The Agreement
==================================================
Parent: Octel Corp.
Borrowers: The Associated Octel Company Limited
and others
Date: [ ] 2001
Amount: [$250,000,000]
Agent: Barclays Bank PLC
==================================================
Dear Sirs
We understand that you are considering [acquiring] (Note: delete if addressee is
acting as broker or agent]/[arranging the acquisition of] [Note: delete if
addressee is acting as principal] an interest in the Agreement (the
"Acquisition"). In consideration of us agreeing to make available to you certain
information, by your signature of a copy of this letter you agree as follows:
1. Confidentiality Undertaking You undertake (a) to keep the Confidential
Information confidential and not to disclose it to anyone except as
provided for by paragraph 2 below and to ensure that the Confidential
Information is protected with security measures and a degree of care
that would apply to your own confidential information, (b) to use the
Confidential Information only for the Permitted Purpose, (c) to use all
reasonable endeavours to ensure that any person to whom you pass any
Confidential Information (unless disclosed under paragraph 2[(c)/(d)]
below) acknowledges and complies with the provisions of this letter as
if that person were also a party to it, and (d) not to make enquiries
of any member of the Group or any of their officers, directors,
employees or professional advisers relating directly or indirectly to
the Acquisition.
2. Permitted Disclosure We agree that you may disclose Confidential
Information:
(a) to members of the Purchaser Group and their officers,
directors, employees and professional advisers to the extent
necessary for the Permitted Purpose and to any auditors of
members of the Purchaser Group;
-143-
[(a) subject to the requirements of the Agreement, in accordance
with the Permitted Purpose so long as any prospective
purchaser has delivered a letter to you in equivalent form to
this letter;]
[(b/c)] subject to the requirements of the Agreement, to any person to
(or through) whom you assign or transfer (or may potentially
assign or transfer) all or any of the rights, benefits and
obligations which you may acquire under the Agreement or with
(or through) whom you enter 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 Agreement or the Borrower or any member of the Group
so long as that person has delivered a letter to you in
equivalent form to this letter; and
[(c/d)] (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental,
supervisory or regulatory body, (ii) where required by the
rules of any stock exchange on which the shares or other
securities of any member of the Purchaser Group are listed or
(iii) where required by the laws or regulations of any country
with jurisdiction over the affairs of any member of the
Purchaser Group.
3. Notification of Required or Unauthorised Disclosure You agree (to the
extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraph 2[(c)/(d)] or upon becoming aware that
Confidential Information has been disclosed in breach of this letter.
4. Return of Copies If we so request in writing, you shall return all
Confidential Information supplied to you by us and destroy or
permanently erase all copies of Confidential Information made by you
and use all reasonable endeavours to ensure that anyone to whom you
have supplied any Confidential Information destroys or permanently
erases such Confidential Information and any copies made by them, in
each case save to the extent that you or the recipients are required to
retain any such Confidential Information by any applicable law, rule or
regulation or by any competent judicial, governmental, supervisory or
regulatory body or in accordance with internal policy, or where the
Confidential Information has been disclosed under paragraph 2[(c)/(d)]
[Note: delete as applicable] above.
5. Continuing Obligations The obligations in this letter are continuing
and, in particular, shall survive the termination of any discussions or
negotiations between you and us. Notwithstanding the previous sentence,
the obligations in this letter shall cease (a) if you become a party to
or otherwise acquire (by assignment or sub-participation) an interest,
direct or indirect, in the Agreement or (b) twelve months after you
have returned all Confidential Information supplied to you by us and
destroyed or permanently erased all copies of Confidential Information
made by you (other than any such Confidential Information or copies
which have been disclosed under paragraph 2 above (other than
sub-paragraph 2(a)) or which, pursuant to paragraph 4 above, are not
required to be returned or destroyed).
6. No Representation; Consequences of Breach, etc. You acknowledge and
agree that:
(a) neither we, [nor our principal] nor any member of the Group
nor any of our or their respective officers, employees or
advisers (each a "Relevant Person") (i) make any
representation or warranty, express or implied, as to, or
assume any responsibility for, the accuracy, reliability or
completeness of any of the Confidential Information or any
-144-
other information supplied by us or the assumptions on which
it is based or (ii) shall be under any obligation to update or
correct any inaccuracy in the Confidential Information or any
other information supplied by us or be otherwise liable to you
or any other person in respect to the Confidential Information
or any such information; and
(b) we [or our principal] [Note: delete if letter is sent out by
the Seller rather than the Seller's broker or agent] or
members of the Group may be irreparably harmed by the breach
of the terms hereof and damages may not be an adequate remedy;
each Relevant Person may be granted an injunction or specific
performance for any threatened or actual breach of the
provisions of this letter by you.
7. No Waiver; Amendments, etc This letter sets out the full extent of your
obligations of confidentiality owed to us in relation to the
information the subject of this letter. No failure or delay in
exercising any right, power or privilege hereunder will operate as a
waiver thereof nor will any single or partial exercise of any right,
power or privilege preclude any further exercise thereof or the
exercise of any other right, power or privileges hereunder. The terms
of this letter and your obligations hereunder may only be amended or
modified by written agreement between us.
8. Inside Information You acknowledge that some or all of the Confidential
Information is or may be price-sensitive information and that the use
of such information may be regulated or prohibited by applicable
legislation relating to insider dealing and you undertake not to use
any Confidential Information for any unlawful purpose.
9. Nature of Undertakings The undertakings given by you under this letter
are given to us and (without implying any fiduciary obligations on our
part) are also given for the benefit of [our principal,] the Borrower
and each other member of the Group.
10. Third party rights
(a) Subject to paragraph 6 and paragraph 9 the terms of this
letter may be enforced and relied upon only by you and us and
the operation of the Contracts (Rights of Third Parties) Xxx
0000 is excluded.
(b) Notwithstanding any provisions of this letter, the parties to
this letter do not require the consent of any Relevant Person
or any member of the Group to rescind or vary this letter at
any time.
11. Governing Law and Jurisdiction This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed by
and construed in accordance with the laws of England and the parties
submit to the non-exclusive jurisdiction of the English courts.
12. Definitions In this letter (including the acknowledgement set out
below) terms defined in the Agreement shall, unless the context
otherwise requires, have the same meaning and:
"Confidential Information" means any information relating to the
Borrower, the Group, the Agreement and/or the Acquisition provided to
you by us or any of our affiliates or advisers, in whatever form, and
includes information given orally and any document, electronic file or
any other way of representing or recording information which contains
or is derived or copied from
-145-
such information but excludes information that (a) is or becomes public
knowledge other than as a direct or indirect result of any breach of
this letter or (b) is known by you before the date the information is
disclosed to you by us or any of our affiliates or advisers or is
lawfully obtained by you thereafter, other than from a source which is
connected with the Group and which, in either case, as far as you are
aware, has not been obtained in violation of, and is not otherwise
subject to, any obligation of confidentiality;
"Group" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies (as
each such term is defined in the Companies Act 1985);
"Permitted Purpose" means [subject to the terms of this letter, passing
on information to a prospective purchaser for the purpose of]
considering and evaluating whether to enter into the Acquisition; and
"Purchaser Group" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as
each such term is defined in the Companies Act 1985).
Please acknowledge your agreement to the above by signing and returning
the enclosed copy.
Yours faithfully
...................................
For and on behalf of
[Seller/Seller's agent/broker]
To: [Seller]
[Seller's agent/broker]
The Borrower and each other member of the Group
We acknowledge and agree to the above:
...................................
For and on behalf of
[Potential Purchaser/Purchaser's agent/broker]
-146-
SCHEDULE 10
TIMETABLES
Loans in euro Loans in sterling Loans in other
dollars currencies
Agent notifies the Parent if a currency is -- -- U-4
approved as an Optional Currency in
accordance with Clause 4.3 (Conditions
relating to Optional Currencies)
Delivery of a duly completed Utilisation U-3 U-1 U-3
Request (Clause 5.1 (Delivery of a
Utilisation Request) or a Selection 9.30am 9.30am 9.30am
Notice (Clause 10.1 (Selection of
Interest Periods))
Agent determines (in relation to a U-3 U-1 U-3
Utilisation) the Base Currency Amount
of the Loan, if required under Clause 11.00am 11.00am 11.00am
5.4 (Lenders' participation)
Agent notifies the Lenders of the Loan U-3 U-1 U-3
in accordance with Clause 5.4 (Lenders'
participation) 3.00pm 3.00pm 3.00pm
Agent receives a notification from a U-3 U-1 U-3
Lender under Clause 6.2 (Unavailability
of a currency) 5.00pm 5.00pm 5.00pm
Agent gives notice in accordance with U-2 U U-2
Clause 6.2 (Unavailability of a
currency) 9.30am 9.30am 9.30am
Agent determines amount of the Loan in U-3 U U-3
Optional Currency in accordance with
Clause 6.3 (Change of currency) noon noon noon
-147-
LIBOR is fixed Quotation Day as of Quotation Day Quotation Day as of 11:00
11:00 a.m. London as of 11:00 a.m. a.m.
time in respect of
LIBOR
"U" = date of utilisation
"U - X" = X Business Days prior to date of utilisation
-148-
SIGNATURES
THE PARENT
OCTEL CORP.
By:
Address: Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx
X00 0XX
Fax: 0000 000 0000
THE ORIGINAL BORROWERS
THE ASSOCIATED OCTEL COMPANY LIMITED
By:
Address: Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx
X00 0XX
Fax: 0000 000 0000
OCTEL PETROLEUM SPECIALTIES LIMITED
By:
Address: Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx
X00 0XX
Fax: 0000 000 0000
OCTEL DEVELOPMENTS PLC
-149-
By:
Address: Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx
X00 0XX
Fax: 0000 000 0000
THE ORIGINAL GUARANTORS
THE ASSOCIATED OCTEL COMPANY LIMITED
By:
Address: Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx
X00 0XX
Fax: 0000 000 0000
OCTEL PETROLEUM SPECIALTIES LIMITED
By:
Address: Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx
X00 0XX
Fax: 0000 000 0000
OCTEL DEVELOPMENTS PLC
By:
Address: Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx
X00 0XX
Fax: 0000 000 0000
-150-
OCTEL CORP.
By:
Address: Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx
X00 0XX
Fax: 0000 000 0000
OBOADLER COMPANY LIMITED
By:
Address: Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx
X00 0XX
Fax: 0000 000 0000
OCTEL TRADING LIMITED
By:
Address: Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx
X00 0XX
Fax: 0000 000 0000
OCTAVISION LIMITED
By:
Address: Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx
X00 0XX
Fax: 0000 000 0000
OCTEL INTERNATIONAL LIMITED
-151-
By:
Address: Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx
X00 0XX
Fax: 0000 000 0000
ALCOR CHEMIE VERTRIEBS GMBH
By:
Address: CH-6340 BAAR
Xxxxxxxxxxxxxx 00-00
Xxxxxxxxxxx
Fax: 00 00 0 000 0000
ASSOCIATED OCTEL COMPANY (PLANT) LIMITED
By:
Address: Xxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxxx
X00 0XX
Fax: 0000 000 0000
OCTEL AMERICA INC
By:
Address: 000 Xxxxxxxxx Xxxxx
Xxxxxx
XX 00000, XXX
Fax: 000 000 000 0000
-152-
THE MANDATED LEAD ARRANGER
BARCLAYS CAPITAL
By:
THE JOINT ARRANGERS
BAYERISCHE LANDESBANK GIROZENTRALE
LONDON BRANCH
By:
LLOYDS TSB BANK plc
By:
THE AGENT AND SECURITY AGENT
BARCLAYS BANK PLC
By:
Address: 5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax: 000 0000 0000
Attention: Agency - Xxxxx Xxxxxx/Xxxxx Xxxxx
THE LENDERS
BARCLAYS BANK PLC
By:
Address: 5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
BAYERISCHE LANDESBANK GIROZENTRALE
LONDON BRANCH
-153-
By:
Address: 00/00 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 000 0000 0000 or 5127
Fax: 000 0000 0000
Attention: Loan Administration
LLOYDS TSB BANK plc
By:
Address: Loans Xxxxxxxxxxxxxx Xxxxxxxxxx
0xx Xxxxx
Xxxx Xxxxxx
Xxxxxxx
XX0 0XX
Telephone: 0000 000 0000
Fax: 0000 000 0000
Attention: Xxx Xxxxx, Assistant Manager
-154-
