EXHIBIT 10.74
Conformed Copy
XXXXXX CHEMCIAL EUROPE LTD
NAMSCO (UK) LTD
SALT UNION LIMITED
Original Borrowers
IMC GLOBAL INC.
IMC INORGANIC CHEMICALS INC.
Guarantors
CHASE MANHATTAN plc
Arranger
CHASE MANHATTAN INTERNATIONAL LIMITED
Agent
And
OTHERS
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45,000,000
REVOLVING LOAN AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation 1
2. The Facility 14
3. Utilisation Of The Facility 15
4. Payment And Calculation Of Interest 16
5. Market Disruption And Alternative Interest Rates 16
6. Notification 18
7. Repayment 18
8. Cancellation And Prepayment 18
9. Taxes 19
10. Tax Receipts 21
11. Increased Costs 22
12. Illegality 23
13. Mitigation 23
14. Representations And Warranties 24
15. Covenants 28
16. Events Of Xxxxxxx 00
00. Guarantee And Indemnity 40
18. Commitment Commission And Fees 42
19. Costs And Expenses 43
20. Default Interest And Break Costs 44
21. Borrowers' Indemnities 45
22. Currency Of Account And Payment 46
23. Payments 46
24. Set-Off 47
25. Sharing 47
26. The Agent, The Arranger And The Banks 48
27. Assignments And Transfers 53
28. Economic And Monetary Union 55
29. Calculations And Evidence Of Debt 57
30. Remedies And Waivers, Partial Invalidity 58
31. Notices 58
32. Counterparts 59
33. Amendments 59
34. Additional Borrowers 60
35. Governing Law 60
36. Jurisdiction 60
Schedule 1 The Banks 63
Schedule 2 Form Of Transfer Certificate 64
Schedule 3 Conditions Precedent 67
Schedule 4 Notice Of Drawdown 68
Schedule 5 Determination Of Margin And Commitment
Commission 69
Schedule 6 Deed Of Accession 71
THIS AGREEMENT is made on 18 December 1998
BETWEEN
(1) XXXXXX CHEMICAL EUROPE LTD (registered no. 3107016), NAMSCO
(UK) LTD (registered no. 2654680) and SALT UNION LIMITED
(registered no. 2654529) (each, an "Original Borrower");
(2) IMC GLOBAL INC. and IMC INORGANIC CHEMICALS INC. (formerly
Xxxxxx Chemical Group Inc.) (each, a "Guarantor");
(3) CHASE MANHATTAN plc as arranger of the Facility (the
"Arranger");
(4) CHASE MANHATTAN INTERNATIONAL LIMITED as agent for the Banks
(the "Agent"); and
(5) THE BANKS (as defined below).
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Acquisition" means an acquisition by an Obligor or any of
its Consolidated Subsidiaries of a company, a division, a
location or a line of business or of all or substantially all
of the assets of any of the foregoing.
"Advance" means an advance made or to be made by the Banks
hereunder.
"Additional Borrower" means any company which has executed
and delivered to the Agent a Deed of Accession pursuant to
Clause 34 (Additional Borrowers).
"Affiliate" means (i) any person that directly, or indirectly
through one or more intermediaries, controls the Company (a
"Controlling Person") or (ii) any person (other than the
Company or a subsidiary of the Company) which is controlled
by or is under common control with a Controlling Person. As
used herein, the term "control" means possession, directly or
indirectly, of the power to vote 10 per cent. or more of any
class of voting securities of a person or to direct or cause
the direction of the management or policies of a person,
whether through the ownership of voting securities, by
contract or otherwise.
"Agrico" means IMC-Agrico Company, a Delaware general
partnership.
"Associated Costs Rate" means, in relation to each Advance or
Unpaid Sum, the percentage rate from time to time determined
by the Agent (in its reasonable discretion) as reflecting the
cost, loss or difference in return which would be suffered or
incurred by the Agent (and/or any Bank as it may from time to
time reasonably determine) (if the Agent or any Bank funded
such Advance or Unpaid Sum) as a result of:
(a) funding (at LIBOR and on a match funded basis) any
special deposit or cash ratio deposit required to be
placed with the Bank of England (or any other
authority which replaces all or any of its functions);
and/or
(b) any charge imposed by the Financial Services Authority
(or any other authority which replaces all or any of
its functions),
in respect of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which relate to funding such
Advance or Unpaid Sum.
"Authorised Signatory" means, in relation to an Obligor, any
person who is duly authorised (in such manner as may be
reasonably acceptable to the Agent) and in respect of whom
the Agent has received a certificate signed by a director or
another Authorised Signatory of such Obligor setting out the
name and signature of such person and confirming such
person's authority to act.
"Available Commitment" means, in relation to a Bank at any
time and save as otherwise provided herein, its Commitment at
such time less the aggregate of its portions of the Advances
which are then outstanding, provided that such amount shall
not be less than zero.
"Available Facility" means, at any time, the aggregate amount
of the Available Commitments adjusted, in the case of any
proposed drawdown, so as to take into account:
(a) any reduction in the Commitment of a Bank pursuant to
the terms hereof;
(b) any Advance which, pursuant to any other drawdown, is
to be made; and
(c) any Advance which is due to be repaid,
on or before the proposed drawdown date.
"Bank" means any financial institution:
(a) named in Schedule 1 (The Banks); or
(b) which has become a party hereto in accordance with
Clause 27.5 (Assignments by Banks) or Clause 27.6
(Transfers by Banks), and which has not ceased to be a
party hereto in accordance with the terms hereof.
"Benefit Arrangement" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not
a Plan or a Multiemployer Plan which is maintained or
otherwise contributed to by any member of the ERISA Group.
"Borrower" means each Original Borrower and each Additional
Borrower.
"BoS Cross Guarantee" means the document under which each of
HCEL, NAMSCO (UK) Ltd and Salt Union Limited grant a cross
guarantee to the Bank of Scotland in support of the bank
overdraft facility, in aggregate amount of 4,000,000,
extended to them by the Bank of Scotland.
"Business Day" means a day (other than a Saturday or Sunday)
on which commercial banks generally are open for business in
London and Chicago.
"Commitment" means, in relation to a Bank at any time and
save as otherwise provided herein, the amount set opposite
its name in Schedule 1 (The Banks).
"Company" means IMC Global Inc., a Delaware corporation.
"Consolidated Net Worth" means in relation to an Obligor at
any date, the consolidated shareholders' equity of the
Obligor and its Consolidated Subsidiaries determined as of
such date (other than any amount attributable to stock which
is required to be redeemed or is redeemable at the option of
the holder, if certain events or conditions occur or exist or
otherwise.)
"Consolidated Subsidiary" means, for any person, at any date
any subsidiary or other entity the accounts of which would be
consolidated with those of such person in its consolidated
financial statements if such statements were prepared as at
such date.
"Debt" of any person means at any date, without duplication,
(i) all obligations of such person for borrowed money, (ii)
all obligations of such person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all
obligations of such person to pay the deferred purchase price
of property or services, except trade accounts payable and
similar items arising in the ordinary course of business,
(iv) all obligations of such person as lessee which are
capitalised in accordance with generally accepted accounting
principles, (v) all non-contingent obligations (and, for
purposes of Clause 15.11 (Negative Pledge) and the definition
of "Material Financial Obligations", all contingent
obligations) of such person to reimburse any bank or other
person in respect of amounts paid under a letter of credit or
similar instrument, (vi) all Debt secured by an Encumbrance
on any asset of such person, whether or not such Debt is
otherwise an obligation of such person, provided that the
amount of such Debt treated as Debt of such person solely
pursuant to this sub-clause (vi) shall not exceed the greater
of the book value or the fair market value of the collateral,
and (vii) all Debt of others guaranteed by such person. For
purposes of sub-clause (v) above, a reimbursement obligation
in respect of a letter of credit or similar instrument is
contingent unless and until there has been a drawing under
such letter of credit or instrument.
"Deed of Accession" means a deed substantially in the form of
Schedule 6 (Deed of Accession).
"Derivatives Obligations" of any person means all obligations
of such person in respect of any rate swap transaction, basis
swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency swap
transaction, currency option or any other similar transaction
(including any option with respect to any of the foregoing
transactions) or any combination of the foregoing
transactions.
"Eligible Liabilities" means eligible liabilities as defined
under or pursuant to the Bank of Xxxxxxx Xxx 0000 or by the
Bank of England (as may be appropriate) for the time being.
"Encumbrance" means a mortgage, charge, pledge, security
interest, lien or other encumbrance securing any obligation
of any person or any other type of preferential arrangement
(including any title transfer and retention arrangement but
excluding any banker's right of set-off) having a similar
effect.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, regulations, ordinances, rules,
judgements, orders, decrees, permits, concessions, grants,
franchises, licences, agreements or other governmental
restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or
wastes into the environment including ambient air, surface
water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants,
contaminants, chemicals or industrial, toxic or hazardous
substances or wastes.
"ERISA" means at any date, the Employee Retirement Income
Security Xxx 0000 (US) and the regulations promulgated and
rulings issued thereunder, as the same shall be in effect on
such date.
"ERISA Group" means the Company, any subsidiary and all
members of a controlled group of corporations and all trades
or businesses (whether or not incorporated) under common
control which, together with the Company or any subsidiary,
are treated as a single employer under Section 414 of the
Internal Revenue Code.
"Event of Default" means any circumstance described as such
in Clause 16 (Events of Default).
"Facility" means the sterling revolving loan facility granted
to the Borrowers in this Agreement.
"Facility Office" means in relation to the Agent, the office
identified with its signature below or such other office as
it may select by notice and, in relation to any Bank, the
office notified by it to the Agent in writing prior to the
date hereof (or, in the case of a Transferee, at the end of
the Transfer Certificate to which it is a party as
Transferee) or such other office as it may from time to time
select by notice to the Agent.
"Final Maturity Date" means the day which is 60 months after
the date hereof.
"Finance Parties" means the Agent, the Arranger and the
Banks.
"Group" means the Company and its subsidiaries from time to
time.
"Guarantee" means any, guarantee, indemnity, bond, letter of
credit, legally binding letter of comfort or suretyship. It
includes any other obligation or irrevocable offer (whatever
called and of whatever nature):
(a) to pay or purchase;
(b) to provide funds (whether by the advance of money,
the purchase of or subscription for shares or other
securities, the purchase of assets, rights or
services, or otherwise) for the payment or discharge
of:
(c) to indemnify against the consequences of default of
the payment of:
(d) to be responsible otherwise for,
an obligation or debt of another person, a dividend,
distribution, capital or premium on shares, stock or other
interests, or the solvency or financial condition of another
person.
"Xxxxxx Chemical Acquisition" means, collectively, the merger
of IMC Inorganic Chemicals Inc. with and into IMC Merger Sub
Inc., a wholly-owned subsidiary of the Company, with IMC
Inorganic Chemicals Inc. as the successor thereto, pursuant
to the certain Agreement and Plan of Merger, dated
11 December 1997, by and among the Company, IMC Merger Sub,
Inc. and IMC Inorganic Chemicals Inc., and the acquisition,
directly or indirectly, by the Company of all of the
outstanding shares of Xxxxxx Chemical Australia Pty Limited
pursuant to the Sale and Purchase Agreement made as of
11 December 1997 among Prudential Asset Management Asia
Limited, DGHA persons and Trusts named therein, Search
Investment NV, Xxxxxx Chemical Australia Pty Limited,
Marsupial L.L.C., Marsupial-II L.L.C., Soda Ash (L) BHD,
Manager Shareholders named therein and the Company.
"Xxxxxx Chemical Europe Group" means HCEL, NAMSCO (UK) Ltd,
Salt Union Limited and any other subsidiary of HCEL from time
to time other than Xxxxxx Soda Products (Europe) SAS, Xxxxxx
Inorganic Chemicals BV, Societa Chimica Larderello SpA and
Xxxxxxx & Xxxxx GmbH.
"HCEL" means Xxxxxx Chemical Europe Ltd.
"Information Memorandum" means the document concerning the
Obligors which, at their request and on their behalf, was
prepared in relation to this transaction and distributed by
the Arrangers to selected banks during November 1998.
"Instructing Group" means:
(a) whilst no Advances are outstanding, a Bank or Banks
whose Commitments amount (or, if each Bank's
Commitment has been reduced to zero, did immediately
before such reduction to zero, amount) in aggregate to
more than two thirds of the Total Commitments; and
(b) whilst at least one Advance is outstanding, a Bank or
Banks to whom in aggregate more than two thirds of the
Loan is owed.
"Inter-Company Loans" means, collectively:
(a) that certain Note dated 21 July 1998, issued by Salt
Union Limited to the Company in principal amount of
33,700,000;
(b) that certain Note dated 29 July 1998, issued by Salt
Union Limited to the Company in principal amount of
32,338,356;
(c) that certain Revolving Note dated 27 August 1998,
issued by Salt Union Limited to the Company in
principal amount of 10,000,000;
(d) that certain Subordinated Revolving Note dated on or
about the date of this Agreement, issued by either
HCEL or Salt Union Limited to the Company in principal
amount of 40,000,000; and
(e) that certain Subordinated Note dated on or about the
date of this Agreement, issued by Salt Union Limited
to the Company in principal amount of 2,559,701.58.
"LIBOR" means, in relation to any amount owed by an Obligor
hereunder on which interest for a given period is to accrue:
(a) the percentage rate per annum equal to the offered
quotation which appears on the page of the Telerate
Screen which displays an average British Bankers
Association Interest Settlement Rate for sterling
(being currently "3750") or the currency of any Unpaid
Sum for such period at or about 11.00 a.m. on the
Quotation Date for such period or, if such page or
such service shall cease to be available, such other
page or such other service for the purpose of
displaying an average British Bankers Association
Interest Settlement Rate for sterling (or the currency
of such Unpaid Sum) as the Agent, after consultation
with the Banks and with the approval of the Company
(not to be unreasonably withheld or delayed), shall
select; or
(b) if no quotation for sterling (or the currency of such
Unpaid Sum) and the relevant period is displayed and
the Agent has not selected an alternative service on
which a quotation is displayed, the arithmetic mean
(rounded upwards to four decimal places) of the rates
(as notified to the Agent) at which each of the
Reference Banks was offering to prime banks in the
London Interbank Market deposits in sterling (or the
currency of such Unpaid Sum) for such period at or
about 11.00 a.m. on the Quotation Date for such
period.
"Loan" means the aggregate principal amount for the time
being outstanding hereunder.
"Margin" means the rate calculated in accordance with
Schedule 5 (Determination of Margin and Commitment
Commission).
"Material Adverse Effect" means a material adverse effect on
(a) the business, financial position or results of operations
of the Group taken as a whole; (b) the ability of an Obligor
to perform its obligations under this Agreement; or (c) the
validity or enforceability of this Agreement or the rights or
remedies of any Finance Party hereunder.
"Material Financial Obligations" means:
(a) in relation to the Guarantors, a principal or face
amount of Debt and/or payment or collateralisation
obligations in respect of Derivatives Obligations of
the Guarantors and/or one or more of their
subsidiaries, arising in one or more related or
unrelated transactions, exceeding in the aggregate
$100,000,000 (or its equivalent); and
(b) in relation to the Xxxxxx Chemical Europe Group, a
principal or face amount of Debt and/or payment or
collateralisation obligations in respect of
Derivatives Obligations of the Xxxxxx Chemical Europe
Group, arising in one or more related or unrelated
transactions, exceeding in the aggregate $8,000,000
(or its equivalent).
"Material Plan" means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $100,000,000.
"Material Subsidiary" means, at any date:
(a) any subsidiary having (i) at least 5 per cent of the
total consolidated assets of the Group (determined as
of the last day of the fiscal quarter of such person
most recently ended on or prior to such date) or (ii)
at least 5 per cent of Consolidated EBITDA for four
consecutive fiscal quarters most recently ended on or
prior to such date; or
(b) collectively, any one or more subsidiaries having (i)
at least 10 per cent. of the total consolidated assets
of the Group (determined as of the last day of the
fiscal quarter of such persons most recently ended on
or prior to such date) or (ii) at least 10 per cent of
Consolidated EBITDA for four consecutive fiscal
quarters most recently ended on or prior to such date.
For the purposes of this definition, the term "Consolidated
EBITDA" shall have the meaning given to it in sub-clause
15.13.2 of Clause 15.13 (Leverage Ratio).
"Multiemployer Plan" means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of
ERISA to which any member of the ERISA Group either (i) is
then making or accruing an obligation to make contributions
or (ii) has within the preceding five plan years made
contributions, including for these purposes any person which
was at the time such contribution was made a member of the
ERISA Group.
"Notice of Drawdown" means a notice substantially in the form
set out in Schedule 4 (Notice of Drawdown).
"Obligor" means each Borrower and each Guarantor.
"Obligors' Representations and Warranties" means in relation
to each Obligor other than the Company, the representations
and warranties set out in Clauses 14.2 (Corporate and
Governmental Authorisation), 14.3 (Binding Effect), 14.4.4,
14.6 (Compliance with Laws), 14.9 (Existence and Corporate
Power of Obligors) and Clauses 14.12 (Year 2000) to 14.16 (No
Deduction or Withholding), inclusive.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Plan" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title
IV of ERISA or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code and either (i) is
maintained, or contributed to, by any member of the ERISA
Group for employees of any member of the ERISA Group or (ii)
has at any time within the preceding five years been
maintained, or contributed to, by any person which was at
such time a member of the ERISA Group for employees of any
person which was at such time a member of the ERISA Group.
"Potential Event of Default" means any event which shall have
occurred and be continuing and which is reasonably likely to
become (with the passage of time, the giving of notice, the
making of any determination hereunder or any combination
thereof) an Event of Default.
"Proportion" means, in relation to a Bank:
(a) whilst no Advances are outstanding, the proportion
borne by its Commitment to the Total Commitments (or,
if the Total Commitments are then zero, by its
Commitment to the Total Commitments immediately prior
to their reduction to zero); or
(b) whilst at least one Advance is outstanding, the
proportion borne by its share of the Loan to the Loan.
"Qualifying Lender" means:
(a) a bank or financial institution which is entitled to
receive payments of interest hereunder free of
withholding or deduction for or on account of United
Kingdom tax under Section 349(3)(a) of the Income and
Corporation Xxxxx Xxx 0000; or
(b) a Treaty Lender.
"Quotation Date" means, in relation to any period for which
an interest rate is to be determined hereunder, the day on
which quotations would ordinarily be given by prime banks in
the London Interbank Market for deposits in sterling (or the
currency of any Unpaid Sum) for delivery on the first day of
that period, provided that, if, for any such period,
quotations would ordinarily be given on more than one date,
the Quotation Date for that period shall be the last of those
dates.
"Reference Banks" means the principal London offices of The
Chase Manhattan Bank, Midland Bank plc and Lloyds Bank Plc or
such banks as may be appointed as such by the Agent with the
approval of the Company (not to be unreasonably withheld or
delayed).
"Repayment Date" means, in relation to any Advance, the last
day of its Term.
"Repeated Representations" means:
(a) in relation to the Company, each of the
representations (except, in relation to a Rollover
Advance, the representation set out in sub-clauses
14.4.3 of Clause 14.4 (Financial Information)) set out
in Clause 14.1 (Corporate Existence and Power) to
Clause 14.12 (Year 2000), inclusive; and
(b) in relation to each other Obligor, each of the
representations set out in Clauses 14.2 (Corporate and
Governmental Authorisation), 14.3 (Binding Effect),
14.4.4, 14.6 (Compliance with Laws), 14.9 (Existence
and Corporate Power of Other Obligors) and 14.12 (Year
2000).
"Rollover Advance" means an Advance which is used to
refinance a maturing Advance and which is in the same amount
as such maturing Advance and is to be drawn on the day such
maturing Advance is to be repaid.
"Subordination Deed" means the document of that name dated on
or before the date of this Agreement between the Company,
HCEL, Salt Union Limited and the Agent.
"Substantial Assets" means, in relation to a Guarantor or the
Xxxxxx Chemical Europe Group, assets sold or otherwise
disposed of in a single transaction or a series of related
transactions representing 25 per cent. or more of the
consolidated assets of the Guarantor and its Consolidated
Subsidiaries (taken as a whole), or the Xxxxxx Chemical
Europe Group (as the case may be).
"Term" means, save as otherwise provided herein:
(a) in relation to any Advance, the period for which such
Advance is borrowed as specified in the Notice of
Drawdown relating thereto; and
(b) in relation to an Unpaid Sum, any of those periods
mentioned in Clause 20.1 (Default Interest Periods).
"Total Commitments" means, at any time, the aggregate of the
Banks' Commitments.
"Transfer Certificate" means a certificate substantially in
the form set out in Schedule 2 (Form of Transfer Certificate)
signed by a Bank and a Transferee under which:
(a) such Bank seeks to procure the transfer to such
Transferee of all or a part of such Bank's rights,
benefits and obligations hereunder upon and subject to
the terms and conditions set out in Clause 27.3
(Assignments and Transfers by Banks); and
(b) such Transferee undertakes to perform the obligations
it will assume as a result of delivery of such
certificate to the Agent as contemplated in
Clause 27.6 (Transfers by Banks).
"Transfer Date" means, in relation to any Transfer
Certificate, the date for the making of the transfer as
specified in such Transfer Certificate.
"Transferee" means a person to which a Bank seeks to transfer
by novation all or part of such Bank's rights, benefits and
obligations hereunder.
"Treaty Lender" means a bank or financial institution which
is resident (as such term is defined in the appropriate
double taxation treaty) in a country with which the United
Kingdom has an appropriate double taxation treaty giving
residents of that country complete exemption from United
Kingdom tax on interest and which does not carry on business
in the United Kingdom at or through a permanent establishment
with which the interest is paid is effectively connected.
For the purpose of this definition, "double taxation treaty"
means any convention or agreement between the government of
the United Kingdom and any other government for the avoidance
of double taxation and the prevention of fiscal evasion with
respect to taxes on income and capital gains.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the value of all
benefit liabilities under such Plan, determined on a plan
termination basis using the assumptions prescribed by the
PBGC for purposes of Section 4044 of ERISA (or other
applicable standard), exceeds (ii) the fair market value of
all Plan assets allocable to such liabilities under Title IV
of ERISA (excluding any accrued but unpaid contributions),
all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents
a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including
the States and District of Columbia, but excluding its
territories and possessions.
"Unpaid Sum" means the unpaid balance of any of the sums
referred to in Clause 20.1 (Default Interest Periods).
"Voting Stock" means capital stock issued by a corporation,
or equivalent interests in any other person, the holders of
which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons
performing similar functions) of such person, even if the
right so to vote has been suspended by the happening of such
a contingency.
1.2 Interpretation
Any reference in this Agreement to:
"continuing", in relation to an Event of Default, shall be
construed as a reference to an Event of Default which has not
been waived in accordance with the terms hereof and, in
relation to a Potential Event of Default, one which has not
been remedied within the relevant grace period or waived in
accordance with the terms hereof;
a "Guarantor and its subsidiaries" shall be construed as a
reference to the Guarantor and each of its subsidiaries from
time to time other than any member of the Xxxxxx Chemical
Europe Group;
a "holding company" of a company or corporation shall be
construed as a reference to any company or corporation of
which the first-mentioned company or corporation is a
subsidiary;
"indebtedness" shall be construed so as to include any
obligation (whether incurred as principal or as surety) for
the payment or repayment of money, whether present or future,
actual or contingent;
a "law" shall be construed as any law (including common or
customary law), statute, constitution, decree, judgement,
treaty, regulation, directive, by-law, order or any other
legislative measure of any government, supranational, local
government, statutory or regulatory body or court;
a "month" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding
day in the next succeeding calendar month save that:
(a) if any such numerically corresponding day is not a
Business Day, such period shall end on the immediately
succeeding Business Day to occur in that next
succeeding calendar month or, if none, it shall end on
the immediately preceding Business Day; and
(b) if there is no numerically corresponding day in that
next succeeding calendar month, that period shall end
on the last Business Day in that next succeeding
calendar month,
(and references to "months" shall be construed accordingly);
a "person" shall be construed as a reference to any person,
firm, company, corporation, government, state or agency of a
state or any association or partnership (whether or not
having separate legal personality) of two or more of the
foregoing;
"repay" (or any derivative form thereof) shall, subject to
any contrary indication, be construed to include "prepay"
(or, as the case may be, the corresponding derivative form
thereof);
a "subsidiary" of a company or corporation shall be construed
as a reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or
(c) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation,
and, for these purposes, 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;
a "successor" shall be construed so as to include an assignee
or successor in title of such party and any person who under
the laws of its jurisdiction of incorporation or domicile has
assumed the rights and obligations of such party under this
Agreement or to which, under such laws, such rights and
obligations have been transferred;
"tax" shall be construed so as to include any tax, levy,
impost, duty or other charge 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);
"VAT" shall be construed as a reference to value added tax
including any similar tax which may be imposed in place
thereof from time to time;
a "wholly-owned subsidiary" of a company or corporation shall
be construed as a reference to any company or corporation
which has no other members except that other company or
corporation and that other company's or corporation's
wholly-owned subsidiaries or persons acting on behalf of that
other company or corporation or its wholly-owned
subsidiaries; and
the "winding-up", "dissolution" or "administration" of a
company or corporation shall be construed so as to include
any equivalent or analogous proceedings under the law of the
jurisdiction in which such company or corporation is
incorporated or any jurisdiction in which such company or
corporation carries on business including the seeking of
liquidation, winding-up, reorganisation, dissolution,
administration, arrangement, adjustment, protection or relief
of debtors.
1.3 Currency Symbols
"sterling" denotes lawful currency of the United Kingdom
and "$" and "dollars" denote the lawful currency of
the United States.
1.4 Agreements and Statutes
Any reference in this Agreement to:
1.4.1 this Agreement or any other agreement or document
shall be construed as a reference to this Agreement
or, as the case may be, such other agreement or
document as the same may have been, or may from time
to time be, amended, varied, novated or supplemented;
1.4.2 a statute or to a provision of a statute shall be
construed as a reference to a modification or re-
enactment of it, a legislative provision substituted
for it and a regulation or statutory instrument
issued under it; and
1.4.3 a treaty shall be construed as a reference to it as
modified from time to time.
1.5 Headings
Clause and Schedule headings are for ease of reference only.
1.6 Time
Any reference in this Agreement to a time of day shall,
unless a contrary indication appears, be a reference to
London time.
1.7 Parts of Speech
Where:
1.7.1 a word or phrase is defined, its other grammatical
forms have a corresponding meaning; and
1.7.2 anything is mentioned after "include", "includes" or
"including", it does not limit what else might be
included.
1.8 Accounting Terms and Determinations
1.8.1 In relation to each Obligor and save as provided
herein:
(a) all accounting terms used herein shall be
interpreted;
(b) all accounting determinations hereunder shall
be made; and
(c) all financial statements required to be
delivered hereunder shall be prepared in
accordance with,
generally accepted accounting principles as in effect
from time to time in the place of incorporation of
the relevant Obligor (and any jurisdiction in which
it carries on business), applied on a basis
consistent in all material respects (except for
changes agreed with the Obligor's auditor) with the
most recent audited (and consolidated where
applicable) financial statements of the Obligor and
its Consolidated Subsidiaries.
1.8.2 If at any time an Obligor notifies the Agent that it wishes
to amend any covenant in Clause 15 (Covenants) to eliminate
the effect of any change in generally accepted accounting
principles in its place of incorporation (and any
jurisdiction in which it carries on business) on the
operation of such covenant (or if the Agent notifies an
Obligor that an Instructing Group wishes to amend Clause 15
(Covenants) for such purpose), then the relevant Obligor's
compliance with such covenant shall be determined on the
basis of generally accepted accounting principles in effect
immediately before the relevant change in generally accepted
accounting principles became effective, until either:
(a) such notice is withdrawn; or
(b) such covenant is amended in a manner
satisfactory to the Obligor and the
Instructing Group,
and the parties hereto agree to enter into
negotiations in good faith in order to amend
such provisions in a credit-neutral manner so
as to reflect equitably such changes with the
desired result that the criteria for
evaluating the financial condition and
performance of the relevant Obligor and its
Consolidated Subsidiaries shall be the same
after such changes as if such changes had not
been made.
1.9 Parties
A reference to a party to this Agreement or any other
document includes that person's successors and permitted
substitutes and assigns.
1.10 Economic and Monetary Union Definitions
In Clause 28 (Economic and Monetary Union) and in each other
provision of this Agreement to which reference is made in
Clause 28 (Economic and Monetary Union) expressly or
impliedly:
"Commencement Date" means the date of commencement of the
third stage of EMU (at the date of this Agreement expected to
be 1 January 1999) or on which circumstances arise which (in
the opinion of an Instructing Group) have substantially the
same effect and result in substantially the same consequences
as commencement of the third stage of EMU as contemplated by
the Treaty on European Union.
"EMU" means Economic and Monetary Union as contemplated in
the Treaty on European Union.
"EMU legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation
of a single or unified European currency (whether known as
the euro or otherwise), being in part the implementation of
the third stage of EMU.
"euro" means the single currency of participating member
states of the European Union.
"euro unit" means the currency unit of the euro.
"national currency unit" means the unit of currency (other
than a euro unit) of a participating member state.
"participating member state" means each state so described in
any EMU legislation.
"Treaty on European Union" means the Treaty of Rome of 25
March 1957, as amended by the Single Xxxxxxxx Xxx 0000 and
the Maastricht Treaty (which was signed at Maastricht on 7
February 1992 and came into force on 1 November 1993).
2. THE FACILITY
2.1 Grant of the Facility
The Xxxxx xxxxx to the Borrowers, upon the terms and subject
to the conditions hereof, a sterling revolving loan facility
in an aggregate principal amount, save as provided herein, of
up to 45,000,000.
2.3 Purpose and Application
The Facility is intended for general corporate purposes,
including repayment of the Inter-Company Loans (subject to
Clause 15.17 (Subordination of Inter-Company Loans)) and any
bank overdraft facility. Accordingly, each Borrower shall
apply all amounts raised by it hereunder in or towards
satisfaction of its general corporate financing requirements
including the refinancing of the Inter-Company Loans. No
Finance Party shall be obliged to concern itself with such
application.
2.4 Conditions Precedent
Save as the Banks may otherwise agree, no Borrower may
deliver any Notice of Drawdown unless the Agent has confirmed
to the Borrowers and the Banks that it has received all of
the documents and other evidence listed in Schedule 3
(Conditions Precedent) and that each is, in form and
substance, reasonably satisfactory to the Agent.
2.5 Banks' Obligations Several
The obligations of each Bank are several and the failure by a
Bank to perform its obligations hereunder shall not affect
the obligations of an Obligor towards any other party hereto
nor shall any other party be liable for the failure by such
Bank to perform its obligations hereunder.
2.6 Banks' Rights Several
The rights of each Bank are several and any debt arising
hereunder at any time from an Obligor to any of the other
parties hereto shall be a separate and independent debt.
Each such party shall be entitled to protect and enforce its
individual rights arising out of this Agreement independently
of any other party (so that it shall not be necessary for any
party hereto to be joined as an additional party in any
proceedings for this purpose).
3. UTILISATION OF THE FACILITY
3.1 Delivery of Notice of Drawdown
Each Borrower may from time to time request the making of an
Advance by the delivery to the Agent, by 10 a.m. not more
than ten nor less than two Business Days before the proposed
date for the making of such Advance, of a completed Notice of
Drawdown.
3.2 Drawdown Details
Each Notice of Drawdown delivered to the Agent pursuant to
Clause 3.1 (Delivery of Notice of Drawdown) shall specify:
3.2.1 the proposed date for the making of the Advance
requested, which shall be a Business Day falling one
month or more before the Final Maturity Date;
3.2.2 the amount of the Advance requested, which shall be
(a) (if less than the Available Facility) a minimum
amount of 3,000,000 and an integral multiple of
1,000,000 or (b) equal to the amount of the
Available Facility;
3.2.3 the proposed Term of the Advance requested, which
shall be a period of one, two, three or six months or
such other period as the Banks may agree ending on or
before the Final Maturity Date; and
3.2.4 the account to which the proceeds of the proposed
drawdown are to be paid.
3.3 Drawdown Conditions
If a Borrower requests an Advance in accordance with the
preceding provisions of this Clause 3 and, on the proposed
date for the making of such Advance:
3.3.1 (save in relation to a Rollover Advance) neither of
the events mentioned in sub-clauses 5.1.1 and 5.1.2
of Clause 5.1 (Market Disruption) shall have
occurred;
3.3.2 such Advance will not exceed the Available Facility
on that date or on the date on which the Term of such
Advance is due to expire; and
3.3.3 on and as of the proposed date for the making of such
Advance (i) no Event of Default or (save in relation
to a Rollover Advance) Potential Event of Default is
continuing and (ii) the Repeated Representations are
true in all material respects,
then, save as otherwise provided herein, such Advance will be
made in accordance with the provisions hereof.
3.4 Each Bank's Participation
Each Bank will participate through its Facility Office in
each Advance made pursuant to this Clause 3 in the proportion
borne by its Available Commitment to the Available Facility
immediately prior to the making of that Advance.
3.5 Reduction of Available Commitment
If a Bank's Commitment is reduced in accordance with the
terms hereof after the Agent has received the Notice of
Drawdown for an Advance and such reduction was not taken into
account in the Available Facility, then the amount of that
Advance shall be reduced accordingly.
4. PAYMENT AND CALCULATION OF INTEREST
4.1 Payment of Interest
On the Repayment Date relating to each Advance (and, if the
Term of such Advance exceeds six months, on the expiry of
each period of six months during such Term) the relevant
Borrower shall pay accrued interest on that Advance.
4.2 Calculation of Interest
The rate of interest applicable to an Advance from time to
time during its Term shall be the rate per annum which is the
sum of the Margin at such time, the Associated Costs Rate at
such time and LIBOR on the Quotation Date therefor.
5. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
5.1 Market Disruption
If, in relation to any Advance or Unpaid Sum:
5.1.1 LIBOR is to be determined by reference to Reference
Banks and at or about 11.00 a.m. on the Quotation Date
for the relevant Term none or only one of the
Reference Banks supplies a rate for the purpose of
determining LIBOR for the relevant Term; or
5.1.2 before the close of business in London on the
Quotation Date for such Advance or Unpaid Sum the
Agent has been notified by a Bank or each of a group
of Banks to whom in aggregate fifty per cent. or more
of such Advance if made would be owed (or such Unpaid
Sum is owed) that, due to circumstances affecting the
London Interbank Market generally, the LIBOR rate does
not accurately reflect the cost of funding its
participation in such Advance or Unpaid Sum,
then, the Agent shall notify the other parties hereto of such
event and, notwithstanding anything to the contrary in this
Agreement, Clause 5.2 (Substitute Term and Interest Rate)
shall apply to such Advance (if it is a Rollover Advance) or
Unpaid Sum. If sub-clause 5.1.1 or 5.1.2 of this Clause 5.1
applies to a proposed Advance, such Advance other than a
Rollover Advance shall not be made.
5.2 Substitute Term and Interest Rate
If sub-clause 5.1.1 of Clause 5.1 (Market Disruption) applies
to a Rollover Advance, the duration of the relevant Term
shall be one month or, if less, such that it shall end on the
Final Maturity Date. If either sub-clause 5.1.1 or 5.1.2 of
Clause 5.1 (Market Disruption) applies to a Rollover Advance
or an Unpaid Sum, the rate of interest applicable to such
Rollover Advance or Unpaid Sum during the relevant Term shall
(subject to any agreement reached pursuant to Clause 5.3
(Alternative Rate)) be the rate per annum which is the sum
of:
5.2.1 the Margin at such time;
5.2.2 the Associated Costs Rate at such time; and
5.2.3 the rate per annum notified to the Agent by such Bank
before the last day of such Term to be that which
expresses as a percentage rate per annum the cost to
such Bank of funding from whatever sources it may
reasonably select its portion of such Rollover
Advance or Unpaid Sum during such Term.
5.3 Alternative Rate
If (a) either of those events mentioned in sub-clauses 5.1.1
and 5.1.2 of Clause 5.1 (Market Disruption) occurs in
relation to an Advance or Unpaid Sum or (b) by reason of
circumstances affecting the London Interbank Market during
any period of three consecutive Business Days LIBOR is not
available for sterling to prime banks in the London Interbank
Market, then if the Agent or a Borrower so requires, the
Agent and the Borrower shall enter into negotiations with a
view to agreeing a substitute basis:
5.3.1 for determining the rates of interest from time to
time applicable to the Advances and Unpaid Sums;
and/or
5.3.2 upon which the Advances and Unpaid Sums may be
maintained (whether in sterling or some other
currency) thereafter and any such substitute basis
that is agreed shall take effect in accordance with
its terms and be binding on each party hereto,
provided that the Agent may not agree any such substitute
basis without the prior consent of each Bank.
5.4 Consultation with Borrowers
During any period in which interest rates are determined in
accordance with this Clause 5, the Agent shall consult with
the Borrowers on at least a weekly basis with a view to
calculating interest rates in accordance with Clause 4.2
(Calculation of Interest) as soon as possible.
6. NOTIFICATION
6.1 Advances and Term
By 12 p.m. not less than two Business Days before an Advance
is to be made, the Agent shall notify each Bank of the
proposed amount of the relevant Advance, its proposed Term
and the aggregate principal amount of the relevant Advance
allocated to such Bank pursuant to Clause 3.4 (Each Bank's
Participation).
6.2 Interest Rate Determination
The Agent shall promptly notify the Borrowers and the Banks
of each determination of LIBOR, the Associated Costs Rate and
the Margin.
6.3 Changes to Interest Rates
The Agent shall promptly notify the Borrowers and the Banks
of any change in interest rate or Term occasioned by the
operation of Clause 5 (Market Disruption and Alternative
Interest Rates).
7. REPAYMENT
Each Borrower shall repay each Advance made to it in full on
the Repayment Date relating thereto.
8. CANCELLATION AND PREPAYMENT
8.1 Cancellation at Option of Borrowers
The Borrowers may, by giving to the Agent not less than ten
Business Days' prior notice to that effect, cancel the whole
or any part (being a minimum amount of 3,000,000 and an
integral multiple of 1,000,000) of the Available Facility.
Any such cancellation shall reduce the Available Commitment
and the Commitment of each Bank rateably. No amount of the
Available Facility so cancelled may be reinstated.
8.2 Notice of Cancellation
Any notice of cancellation given by a Borrower pursuant to
Clause 8.1 (Cancellation at Option of Borrowers) shall be
irrevocable and shall specify the date upon which such
cancellation is to be made and the amount of such
cancellation.
8.3 Cancellation of a Bank's Commitment
If:
8.3.1 any sum payable to any Bank is required to be
increased pursuant to Clause 9.1 (Tax Gross-up);
8.3.2 any Bank claims indemnification from any Borrower
under Clause 9.2 (Tax Indemnity) or Clause 11.1
(Increased Costs); or
8.3.3 such Borrower is required to treat any payment of
interest to a Bank as a distribution for tax
purposes,
such Borrower may, whilst such circumstance continues, by not
less than ten Business Days' prior notice to the Agent (which
notice shall be irrevocable), cancel such Bank's Commitment
whereupon such Bank shall cease to be obliged to participate
in further Advances and its Commitment shall be reduced to
zero.
8.4 Prepayment of a Bank's Commitment
If a Borrower gives notice pursuant to Clause 8.3
(Cancellation of a Bank's Commitment), it shall, at the time
such notice expires prepay the relevant Bank's portion of all
outstanding Advances together with accrued interest thereon
and all other amounts owing to such Bank hereunder.
8.5 No Other Repayments
The Borrowers shall not repay all or any part of any Advance
except at the times and in the manner expressly provided
herein.
8.6 Mandatory Cancellation
The aggregate Commitments hereunder shall reduce
automatically:
8.6.1 to 37,500,000 on the day which is 36 months after
the date hereof; and
8.6.2 to 25,000,000 on the day which is 48 months after
the date hereof,
and each Bank's Commitment shall be reduced rateably.
9. TAXES
9.1 Tax Gross-up
All payments to be made by an Obligor to any Finance Party
hereunder shall be made free and clear of and without
deduction for or on account of tax unless such Obligor is
required to make such a payment subject to the deduction or
withholding of tax, in which case the sum payable by such
Obligor (in respect of which such deduction or withholding is
required to be made) shall be increased to the extent
necessary to ensure that such Finance Party receives a sum
net of any deduction or withholding equal to the sum which it
would have received had no such deduction or withholding been
made or required to be made.
9.2 Tax Indemnity
Without prejudice to Clause 9.1 (Tax Gross-up), if any
Finance Party is required to make any payment of or on
account of tax on or in relation to any sum received or
receivable hereunder or if any liability in respect of any
such payment is asserted, imposed, levied or assessed against
any Finance Party, the Borrowers shall, upon demand of the
Agent, promptly indemnify the Finance Party which suffers a
loss or liability as a result against such payment or
liability, together with any interest, penalties, costs and
reasonable expenses payable or incurred in connection
therewith, provided that this Clause 9.2 shall not apply to:
9.2.1 any tax imposed on and calculated by reference to the
net income actually received or receivable by such
Finance Party by the jurisdiction in which such
Finance Party is incorporated; or
9.2.2 any tax imposed on and calculated by reference to the
net income of the Facility Office of such Finance
Party actually received or receivable by such Finance
Party by the jurisdiction in which its Facility
Office is located.
9.3 Banks' Tax Status Confirmation
Each Bank confirms in favour of the Agent on the date hereof
or, in the case of a Bank which becomes a party hereto
pursuant to a transfer or assignment, on the date on which
the relevant transfer or assignment becomes effective, that
either:
9.3.1 it is not resident for tax purposes in the United
Kingdom and is beneficially entitled to its share of
the Loan and the interest thereon; or
9.3.2 it is a bank as defined for the purposes of Section
349 of the Income and Corporation Taxes Act 1988 and
is beneficially entitled to its share of the Loan and
the interest thereon,
and each Bank shall promptly notify the Agent if there is any
change in its position from that set out above.
9.4 Status as Qualifying Lender
Each Bank represents to each Borrower on the date hereof, or
in the case of a Bank which becomes a party hereto pursuant
to a transfer or assignment, on the date on which the
relevant transfer or assignment becomes effective, that it is
a Qualifying Lender.
9.5 Cessation of Status as Qualifying Lender
If at any time after the date of this Agreement any Bank
ceases, or becomes aware that it will cease, to be a
Qualifying Lender for any reason, it shall promptly notify
each Borrower, and no Obligor shall be liable to pay to such
Bank under Clause 9.1 (Tax Gross-up) or 9.2 (Tax Indemnity)
any amount in excess of the amount it would have been obliged
to pay if such Bank had not ceased to be a Qualifying Lender
provided that this Clause 9.5 shall not apply and no Obligor
shall be obliged to comply with its obligations under
Clauses 9.1 (Tax Gross-up) and 9.2 (Tax Indemnity) if after
the date hereof:
9.5.1 there shall have been any change in, or in the
interpretation or application of, any relevant law or
the practice of the United Kingdom Inland Revenue and
as a result thereof a Bank ceases to be a Qualifying
Lender; and/or
9.5.2 a Bank has transferred its Facility Office outside of
the United Kingdom at the request of a Borrower
pursuant to Clause 13 (Mitigation).
9.6 Treaty Lenders
Each Treaty Lender will submit such claim to the appropriate
authorities (together with such forms, papers, other
documents and/or evidence as necessary) as may be required
for a Borrower which is incorporated in the United Kingdom
and resident in the United Kingdom for tax purposes, to
receive a direction from the United Kingdom Inland Revenue to
make payment of interest to such Treaty Lender free of
withholding or deduction on account of United Kingdom tax.
9.7 Claims by Banks
A Bank intending to make a claim pursuant to Clause 9.2 (Tax
Indemnity) shall notify the Agent of the event or
circumstance giving rise to the claim giving reasonable
detail of such event or circumstance, whereupon the Agent
shall notify the Borrowers thereof provided that nothing
herein shall require any Bank to disclose any confidential
information relating to the organisation of its affairs.
10. TAX RECEIPTS
10.1 Notification of Requirement to Deduct Tax
If, at any time, an Obligor is required by law to make any
deduction or withholding from any sum payable by it hereunder
(or if thereafter there is any change in the rates at which
or the manner in which such deductions or withholdings are
calculated), such Obligor shall promptly notify the Agent.
10.2 Evidence of Payment of Tax
If an Obligor makes any payment hereunder in respect of which
it is required to make any deduction or withholding, it shall
pay the full amount required to be deducted or withheld to
the relevant taxation or other authority within the time
allowed for such payment under applicable law and shall
deliver to the Agent for each Bank, within thirty days after
it has made such payment to the applicable authority:
10.2.1 an original receipt (or a certified copy thereof)
issued by such authority evidencing the payment to
such authority of all amounts so required to be
deducted or withheld in respect of that Bank's share
of such payment; or
10.2.2 if no such receipt is issued, evidence of such
payment in form and substance reasonably satisfactory
to the Agent.
10.3 Tax Credit Payment
If an additional payment is made under Clause 9 (Taxes) by an
Obligor for the benefit of any Finance Party and such Finance
Party, in its sole discretion, determines that it has
obtained (and has derived full use and benefit from) a credit
against, a relief or remission for, or repayment of, any tax,
then, if and to the extent that such Finance Party, in its
sole opinion, determines that:
10.3.1 such credit, relief, remission or repayment is in
respect of or calculated with reference to the
additional payment made pursuant to Clause 9 (Taxes);
and
10.3.2 its tax affairs for its tax year in respect of which
such credit, relief, remission or repayment was
obtained have been finally settled,
such Finance Party shall, to the extent that it can do so
without prejudice to the retention of the amount of such
credit, relief, remission or repayment, pay to such Obligor
such amount as such Finance Party shall, in its sole opinion,
determine to be the amount which will leave such Finance
Party (after such payment) in no worse after-tax position
than it would have been in had the additional payment in
question not been required to be made by such Obligor.
10.4 Tax Credit Clawback
If any Finance Party makes any payment to an Obligor pursuant
to Clause 10.3 (Tax Credit Payment) and such Finance Party
subsequently determines, in its sole opinion, that the
credit, relief, remission or repayment in respect of which
such payment was made was not available or has been withdrawn
or that it was unable to use such credit, relief, remission
or repayment in full, such Obligor shall reimburse such
Finance Party such amount as such Finance Party determines,
in its sole opinion, is necessary to place it in the same
after-tax position as it would have been in if such credit,
relief, remission or repayment had been obtained and fully
used and retained by such Finance Party.
10.5 Tax and Other Affairs
No provision of this Agreement shall interfere with the right
of any Finance Party to arrange its tax or any other affairs
in whatever manner it thinks fit, oblige any Finance Party to
claim any credit, relief, remission or repayment in respect
of any payment under Clause 9.1 (Tax Gross-up) in priority to
any other credit, relief, remission or repayment available to
it nor oblige any Finance Party to disclose any information
relating to its tax or other affairs or any computations in
respect thereof.
11. INCREASED COSTS
11.1 Increased Costs
If, by reason of (a) any change in applicable law or in its
interpretation or administration and/or (b) compliance with
any request or requirement relating to the maintenance of
capital or any other request from or requirement of any
central bank or other comparable fiscal, monetary or other
authority in all cases not known generally in the London
Interbank Market at the date of this Agreement:
11.1.1 a Bank or any holding company of such Bank is unable
to obtain the rate of return on its capital which it
would have been able to obtain but for such Bank's
entering into or assuming or maintaining a commitment
or performing its obligations under this Agreement;
11.1.2 a Bank or any holding company of such Bank incurs a
cost as a result of such Bank's entering into or
assuming or maintaining a commitment or performing
its obligations under this Agreement; or
11.1.3 there is any increase in the cost to a Bank or any
holding company of such Bank of funding or
maintaining such Bank's share of the Advances or any
Unpaid Sum,
then the Borrowers shall, from time to time on demand of the
Agent, promptly pay to the Agent for the account of that Bank
amounts sufficient to indemnify that Bank or to enable that
Bank to indemnify its holding company from and against, as
the case may be, (i) such reduction in the rate of return of
capital, (ii) such cost or (iii) such increased cost.
11.2 Increased Costs Claims
A Bank intending to make a claim pursuant to Clause 11.1
(Increased Costs) shall notify the Agent of the event or
circumstance giving rise to such claim giving reasonable
detail of such event or circumstance, whereupon the Agent
shall notify the Borrowers thereof provided that nothing
herein shall require any Bank to disclose any confidential
information relating to the organisation of its affairs.
11.3 Exclusions
Notwithstanding the foregoing provisions of this Clause 11,
no Bank shall be entitled to make any claim under this
Clause 11 in respect of:
11.3.1 any cost, increased cost or liability compensated by
Clause 9 (Taxes); or
11.3.2 any cost, increased cost or liability as referred to
in Clause 11.1 (Increased Costs) to the extent the
same is compensated by the Associated Costs Rate.
12. ILLEGALITY
If, at any time, it is or will become unlawful for a Bank to
make, fund or allow to remain outstanding all or part of its
share of the Advances, then that Bank shall, promptly after
becoming aware of the same, deliver to the relevant Borrower
through the Agent a notice to that effect and:
12.0.1 such Bank shall not thereafter be obliged to
participate in the making of any Advances and the
amount of its Commitment shall be immediately reduced
to zero; and
12.0.2 if the Agent on behalf of such Bank so requires, the
relevant Borrower shall on or before the latest date
permitted by the relevant law repay such Bank's share
of any outstanding Advances together with accrued
interest thereon and all other amounts owing to such
Bank hereunder.
13. MITIGATION
If, in respect of any Bank, circumstances arise which would
or would upon the giving of notice result in:
13.1.1 an increase in any sum payable to it or for its
account pursuant to Clause 9.1 (Tax Gross-up);
13.1.2 a claim for indemnification pursuant to Clause 9.2
(Tax Indemnity) or Clause 11.1 (Increased Costs); or
13.1.3 the reduction of its Available Commitment to zero or
any repayment to be made by the relevant Borrower
pursuant to Clause 12 (Illegality),
then, without in any way limiting, reducing or otherwise
qualifying the rights of such Bank or the obligations of the
Obligors under any of the Clauses referred to in sub-clauses
13.1.1, 13.1.2 and 13.1.3 of this Clause 13, such Bank shall
promptly upon becoming aware of such circumstances notify the
Agent thereof and, in consultation with the Agent and the
Borrowers and to the extent that it can do so lawfully and
without prejudice to its own position, take reasonable steps
(including a change of location of its Facility Office or the
transfer of its rights, benefits and obligations hereunder to
another financial institution acceptable to the Borrowers and
willing to participate in the Facility) to mitigate the
effects of such circumstances, provided that such Bank shall
be under no obligation to take any such action if, in the
opinion of such Bank, to do so might have any adverse effect
upon its business, operations or financial condition (other
than any minor costs and expenses of an administrative
nature).
14. REPRESENTATIONS AND WARRANTIES
The Company makes each of the representations and warranties
set out in Clause 14.1 (Corporate Existence and Power) to
Clause 14.16 (No Deduction or Withholding), inclusive. Each
other Obligor makes each of the Obligors' Representations and
Warranties in respect of itself only. The Company and each
other Obligor acknowledge that the Finance Parties have
entered into this Agreement in reliance on those
representations and warranties.
14.1 Corporate Existence and Power
The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, and has all corporate powers and all material
governmental licences, authorisations, consents and approvals
required to carry on its business as now conducted and is
duly qualified to do business as a foreign corporation in
each jurisdiction where such qualification is required,
except where the failure so to qualify could not reasonably
be expected to have a Material Adverse Effect.
14.2 Corporate and Governmental Authorisation
The execution, delivery and performance by each Obligor of
this Agreement are within its corporate powers, have been
duly authorised by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or constitute
a default under, any provision of applicable law or
regulation or of the certificate of incorporation or
constituent documents of such Obligor or of any agreement,
judgement, injunction, order, decree or other instrument
binding upon it or any of its subsidiaries or result in the
creation or imposition of any Encumbrance on any asset of
such Obligor or any of its subsidiaries.
14.3 Binding Effect
This Agreement constitutes a valid and binding agreement of
each Obligor enforceable in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by
general principles of equity.
14.4 Financial Information
1.4.1 The most recent audited consolidated balance sheet of
the Company and its Consolidated Subsidiaries and the
related consolidated statements of earnings, cash
flows and changes in stockholders' equity for the
fiscal year then ended fairly present in all material
respects, in conformity with generally accepted
accounting principles, the consolidated financial
position of the Company and its Consolidated
Subsidiaries as of such date and their consolidated
results of operations and cash flows for such fiscal
year.
14.4.2 The financial statements presented in the Company's
most recent Form 10-Q, which the Company has filed
with the Securities and Exchange Commission, fairly
presents in all material respects on a basis
consistent with the financial statements referred to
in sub-clause 14.4.1 of this Clause 14.4 (Financial
Information), the consolidated financial position of
the Company and its Consolidated Subsidiaries as of
such date and their consolidated results of
operations and cash flows for the period to which it
relates (subject to normal year-end audit adjustments
and the absence of full footnotes).
14.4.3 Since the date of the Company's most recent Form 10-
Q, there has been no material adverse change in the
business, financial position or results of operations
of the Group, considered as a whole.
14.4.4 The most recent audited financial statements
(consolidated where applicable) of each Obligor
(other than the Company) and its Consolidated
Subsidiaries for the fiscal year then ended fairly
present in all material respects, in conformity with
generally accepted accounting principles, the
consolidated financial position of the Obligor and \
its Consolidated Subsidiaries as of such date and
since such date there has been no material adverse
change in the business, financial position or results
of operations of each Obligor (other than the
Company) and its Consolidated Subsidiaries,
considered as a whole.
14.5 Litigation
Except as disclosed in the Company's most recent annual
report on Form 10-K, each registration statement (other than
a registration statement on Form S-8 (or its equivalent)) and
each report on Form 10-K, 10-Q and 8-K (or their equivalents)
which the Company shall have filed with the Securities and
Exchange Commission at any time thereafter, there is no
action, suit or proceeding pending against, or to the
knowledge of the Company, threatened against or affecting,
any member of the Group before any court or arbitrator or any
governmental body, agency or official which could reasonably
be expected to have a Material Adverse Effect or which in any
manner draws into question the validity of this Agreement.
14.6 Compliance with Laws
14.6.1 Each member of the Group is in compliance in all
material respects with all applicable laws,
ordinances, rules, regulations and requirements of
governmental authorities except where (i) non-
compliance could not reasonably be expected to have a
Material Adverse Effect or (ii) the necessity of
compliance therewith is contested in good faith by
appropriate proceedings.
14.6.2 Each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of
ERISA and the Internal Revenue Code with respect to
each Plan and is in compliance in all material
respects with the presently applicable provisions of
ERISA and the Internal Revenue Code with respect to
each Plan. No member of the ERISA Group has (i)
sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect
of any Plan, (ii) failed to make any contribution or
payment to any Plan or Multiemployer Plan or in
respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which
has resulted or could result in the imposition of an
Encumbrance or the posting of a bond or other
security under ERISA or the Internal Revenue Code or
(iii) incurred any liability under Title IV of ERISA
other than a liability to the PBGC for premiums under
Section 4007 of ERISA.
14.7 Environmental Matters
In the ordinary course of its business, the Company conducts
a systematic review of the effects and reasonably
ascertainable associated liabilities and costs of
Environmental Laws on the business, operations and properties
of the Group. The associated liabilities and costs include:
any capital or operating expenditures required for clean-up
or closure of properties presently or previously owned, any
capital or operating expenditures required to achieve or
maintain compliance with Environmental Laws, any constraints
on operating activities related to achieving or maintaining
compliance with Environmental Laws, including any periodic or
permanent shutdown of any facility or reduction in the level
or change in the nature of operations conducted thereat, any
costs or liabilities in connection with off-site disposal of
wastes or hazardous substances and any actual or potential
liabilities to third parties, including employees, arising
under Environmental Laws, and any related costs and expenses.
On the basis of this review, the Company has reasonably
concluded that such associated liabilities and costs,
including the costs of compliance with Environmental Laws,
could not reasonably be expected to have a Material Adverse
Effect.
14.8 Taxes
Each member of the Group has filed all applicable United
States Federal income tax returns and all other material tax
returns which are required to be filed by it and have paid
all taxes due pursuant to such returns or pursuant to any
assessment received by any member of the Group except (i)
where non-payment could not reasonably be expected to have a
Material Adverse Effect or (ii) where the same are contested
in good faith by appropriate proceedings. The charges,
accruals and reserves on the books of each member of the
Group in respect of taxes or other governmental charges are,
in the opinion of the Company, adequate.
14.9 Existence and Corporate Power of Other Obligors
Each Obligor (other than the Company) is a corporation
validly existing and in good standing (where relevant) under
the laws of its jurisdiction of incorporation and any
jurisdiction in which it carries on business, and has all
corporate powers and all material governmental licences,
authorisations, consents and approvals required to carry on
its business as now conducted and is duly qualified to do
business as a foreign corporation in each jurisdiction where
such qualification is required, except where the failure so
to qualify could not reasonably be expected to have Material
Adverse Effect.
14.10 Regulatory Restrictions on Borrowing
The Company is not an "investment company" within the meaning
of the Investment Company Xxx 0000 (US), a "holding company"
within the meaning of the Public Utility Holding Company Xxx
0000 (US), or otherwise subject to any regulatory scheme
which restricts its ability to incur debt.
14.11 Full Disclosure
Neither the Company's most recent Form 10-K as of the date of
filing of such Form 10-K, nor any registration statement
(other than a registration statement on Form S-8 (or its
equivalent)) or report on Form 10-K, 10-Q and 8-K (or their
equivalents) which the Company shall have filed with the
Securities and Exchange Commission as at the time of filing
of such registration statement or report, as applicable,
contained any untrue statement of a material fact or omitted
to state a material fact necessary in order to make any
statements contained therein, in the light of the
circumstances under which they were made, not misleading;
provided that to the extent any such document contains
forecasts and/or projections, it is understood and agreed
that uncertainty is inherent in any forecasts or projections
and that no assurances can be given by the Company of the
future achievement of such performance.
14.12 Year 2000
Any reprogramming required to permit the proper functioning,
in and following year 2000, of (a) the Obligors' computer
systems and (b) equipment containing embedded microchips
(including systems and equipment supplied by others or with
which the Obligors' systems interface) and the testing of all
such systems and equipment, as so reprogrammed, will be
completed in a timely fashion. The cost to the Obligors of
such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the Obligors
(including reprogramming errors and the failure of others'
systems or equipment) will not result in an Event of Default
or Potential Event of Default or a Material Adverse Effect.
Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the computer and
management information systems of each Obligor and its
subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement, to
be sufficient to permit each Borrower to conduct its business
without Material Adverse Effect.
14.13 Information Memorandum
The factual information contained in the Information
Memorandum is true, complete and accurate in all material
respects, the financial projections contained therein have
been prepared on the basis of recent historical information
and on the basis of reasonable assumptions and nothing has
occurred or been omitted that renders the information
contained in the Information Memorandum untrue or misleading
in any material respect.
14.14 Claims Pari Passu
Under the laws of its jurisdiction of incorporation and any
jurisdiction in which it carries on business in force at the
date hereof, the claims of the Finance Parties against each
Obligor under this Agreement will rank at least pari passu
with the claims of all its other unsecured and unsubordinated
creditors save those whose claims are preferred solely by any
bankruptcy, insolvency, liquidation or other similar laws of
general application.
14.15 No Filing or Stamp Taxes
Under the laws of its jurisdiction of incorporation and any
jurisdiction in which it carries on business in force at the
date hereof, it is not necessary that this Agreement be
filed, recorded or enrolled with any court or other authority
in such jurisdiction or that any stamp, registration or
similar tax be paid on or in relation to this Agreement.
14.16 No Deduction or Withholding
Under the laws of its jurisdiction of incorporation and any
jurisdiction in which it carries on business, it will not be
required to make any deduction or withholding from any
payment it may make hereunder to any Qualifying Lender or to
the Agent.
14.17 Repetition of Representations
The Repeated Representations shall be deemed to be repeated
by each Obligor (as applicable) by reference to the facts and
circumstances then existing on each date on which an Advance
is or is to be made.
15. COVENANTS
The Company makes each of the covenants set out in
Clauses 15.1 (Provision of Information) to 15.13 (Leverage
Ratio), inclusive and Clauses 15.15 (Claims Pari Passu) to
15.17 (Subordination of Inter-Company Loans), inclusive.
Each other Obligor makes each of the covenants set out in
Clauses 15.2 (Payment of Obligations) to 15.12 (Transactions
with Affiliates), inclusive and Clauses 15.15 (Claims Pari
Passu), 15.16 (Compliance with Regulations T, U and X) and
15.18 (No Guarantees). In addition to any other covenant
made by it under this Clause 15, HCEL makes the covenants set
out in Clause 15.14 (Minimum Net Worth of HCEL) and (if
applicable) Clause 15.17 (Subordination of Inter-Company
Loans). In addition to any other covenant made by it under
this Clause 15, Salt Union Limited makes the covenants set
out in Clause 15.17 (Subordination of Inter-Company Loans).
15.1 Provision of Information
The Company will deliver to the Agent in sufficient copies
for the Banks:
15.1.1 as soon as available and in any event within 95 days
after the end of each fiscal year of the Company, an
audited consolidated balance sheet of the Company and
its Consolidated Subsidiaries as of the end of such
fiscal year and the related consolidated statements
of earnings, cash flows, and changes in stockholders'
equity for such fiscal year, setting forth in each
case in comparative form the figures for the previous
fiscal year, all reported on in a manner consistent
with the requirements of the Securities and Exchange
Commission, and audited by an internationally
recognised firm of independent public accountants;
15.1.2 as soon as available and in any event within 50 days
after the end of each of the first three quarters of
each fiscal year of the Company, an unaudited
consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such
quarter and the related unaudited consolidated
statements of earnings and cash flows for such
quarter and for the portion of the Company's fiscal
year ended at the end of such quarter, setting forth
in each case in comparative form the figures for the
corresponding quarter and the corresponding portion
of the Company's previous fiscal year, all certified
(subject to normal year-end adjustments) as to
fairness of presentation and preparation based on
financial accounting principles consistent with
generally accepted accounting principles by an
Authorised Signatory of the Company;
15.1.3 in relation to each other Obligor, as soon as
available, but in any event within 120 days after the
end of each fiscal year, the audited financial
statements (consolidated where applicable) of each
Obligor and its Consolidated Subsidiaries prepared in
accordance with generally accepted accounting
principles, in each case audited by a firm of
internationally recognised independent public
accountants;
15.1.4 simultaneously with the delivery of each set of
financial statements referred to in sub-clauses
15.1.1, 15.1.2 and 15.1.3 of this Clause 15.1, a
certificate of an Authorised Signatory of the
Company:
(a) setting forth in reasonable detail the
calculations required to establish whether:
(i) the Company is complying with the
requirements of Clause 15.13 (Leverage
Ratio) and HCEL is complying with the
requirements of Clause 15.14 (Minimum Net
Worth of HCEL), in each case on the date
of such financial statements; and
(ii) the Company and Salt Union Limited are
complying with the requirements of
sub-clauses 15.17.1(a) and (b) of
Clause 15.17 (Subordination of
Inter-Company Loans) in each case during
the relevant period to which such
calculation relates; and
(b) stating whether any Event of Default or
Potential Event of Default exists on the date
of such certificate and, if any Event of
Default or Potential Event of Default is
continuing, setting forth the details thereof
and the action which the Company is taking or
proposes to take with respect thereto;
15.1.5 simultaneously with the delivery of each set of
financial statements referred to in sub-clauses
15.1.1 and 15.1.3 of this Clause 15.1, a statement of
the firm of independent public accountants which
reported on such statements (i) that nothing has come
to their attention to cause them to believe that any
Event of Default or Potential Event of Default
arising from a failure to comply with Clause 15.13
(Leverage Ratio), Clause 15.14 (Minimum Net Worth of
HCEL) or Clause 15.17 (Subordination of Inter-Company
Loans) existed on the date of such statements (it
being understood that such accountants shall not
thereby be required to perform any procedures not
otherwise required under generally accepted auditing
standards) and (ii) confirming the calculations set
forth in the Authorised Signatory's certificate
delivered simultaneously therewith pursuant to
sub-clause 15.1.4 of this Clause 15.1;
15.1.6 within five days after any officer of an Obligor
obtains knowledge of any Event of Default or
Potential Event of Default, if such Event of Default
or Potential Event of Default is then continuing, a
certificate of an Authorised Signatory of such
Obligor setting forth the details thereof and the
action which it is taking or proposes to take with
respect thereto;
15.1.7 promptly upon the mailing thereof to the shareholders
of the Company generally, copies of all financial
statements, reports and proxy statements so mailed;
15.1.8 promptly after the filing thereof, copies of all
registration statements (other than the exhibits
thereto and any registration statements on Form S-8
or its equivalent) and reports (other than the
exhibits thereto) on Forms 10-K, 10-Q and 8-K (or
their equivalents) which the Company shall have filed
with the Securities and Exchange Commission;
15.1.9 if and when any member of the ERISA Group (i) gives
or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan
under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to
give notice of any such reportable event, a copy of
the notice of such reportable event given or required
to be given to the PBGC; (ii) receives notice of
complete or partial withdrawal liability under Title
IV of ERISA or notice that any Multiemployer Plan is
in reorganisation, is insolvent or has been
terminated, a copy of such notice; (iii) receives
notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for
premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy
of such notice; (iv) applies for a waiver of the
minimum funding standard under Section 412 of the
Internal Revenue Code, a copy of such application;
(v) gives notice of intent to terminate any Plan
under Section 4041(c) of ERISA, a copy of such notice
and other information filed with the PBGC; (vi) gives
notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or
(vii) fails to make any payment or contribution to
any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement or makes any amendment to any
Plan or Benefit Arrangement which has resulted or
could result in the imposition of an Encumbrance or
the posting of a bond or other security, a
certificate of the chief financial officer or the
chief accounting officer of the Company setting forth
details as to such occurrence and action, if any,
which the Company or applicable member of the ERISA
Group is required or proposes to take; and
15.1.10 from time to time such additional information
regarding the financial position or business of the
Group as the Agent, at the request of any Bank, may
reasonably request.
15.2 Payment of Obligations
Each Obligor will pay and discharge, and will cause each of
its subsidiaries to pay and discharge, at or before maturity,
all their respective material payment obligations and
liabilities (including tax liabilities and claims of
materialmen, warehousemen and the like which if unpaid might
by law give rise to an Encumbrance, but excluding the
Inter-Company Loans), except where the same may be contested
in good faith by appropriate proceedings, and will maintain,
and will cause each of its subsidiaries to maintain, in
accordance with generally accepted accounting principles,
appropriate reserves for the accrual of any of the same.
15.3 Maintenance of Property
Each Obligor will keep, and will cause each of its
subsidiaries to keep, all material property useful and
necessary in its business in good working order and
condition, ordinary wear and tear excepted.
15.4 Insurance
Each Obligor will, and will cause each of its subsidiaries
to, maintain (either in its name or in such subsidiary's
name) with financially sound and responsible insurance
companies, insurance on all its respective properties in at
least such amounts, against at least such risks and with such
risk retention as are usually maintained, insured against or
retained, as the case may be, in the same general area by
companies of established repute engaged in the same or a
similar business; provided that the Obligors and their
subsidiaries may self-insure to the same extent as other
companies of established repute engaged in the same or a
similar business in the same general area in which such
Obligor or such subsidiary operates and to the extent
consistent with prudent business practice. Each Obligor will
furnish to the Banks, upon request from the Agent,
information presented in reasonable detail as to the
insurance so carried.
15.5 Conduct of Business and Maintenance of Existence
Each Obligor and its subsidiaries taken as a whole will
continue to engage in business of the same general type as
now conducted by such Obligor and its subsidiaries and any
ancillary or related lines of business, and each Obligor will
preserve, renew and keep in full force and effect, and will
cause each of its subsidiaries to preserve, renew and keep in
full force and effect, its respective legal existence and its
respective rights, privileges and franchises necessary or
desirable in the normal conduct of business; provided that
nothing in this Clause 15.5 shall prohibit (i) the
consolidation or merger of a subsidiary (other than a
Borrower with obligations with respect to Advances
outstanding hereunder) with or into another person, (ii) the
consolidation or merger of an Obligor with or into the
Company or another Borrower or (iii) the termination of the
corporate existence of any subsidiary (other than a Borrower
with obligations with respect to Advances outstanding
hereunder) if, in the case of sub-clauses (i), (ii) and
(iii), such consolidation, merger or termination is not
materially disadvantageous to the Banks; and provided further
that nothing in this Clause 15.5 shall prohibit any sale or
other disposition of assets permitted under Clause 15.8
(Mergers) and Clause 15.9 (Disposals).
15.6 Compliance with Laws
Each Obligor will comply, and cause each of its subsidiaries
to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of
governmental authorities (including Environmental Laws and,
where relevant, ERISA and the rules and regulations
thereunder) except where (i) the necessity of compliance
therewith is contested in good faith by appropriate
proceedings or (ii) the failure to comply could not
reasonably be expected to have a Material Adverse Effect.
15.7 Inspection of Property, Books and Records
Each Obligor will keep, and will cause each of its
subsidiaries to keep, proper books of record and account in
which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and
activities; and will permit, and will cause each of its
subsidiaries to permit, representatives of any Bank at such
Bank's expense to visit and inspect any of its respective
properties, to examine and make abstracts from any of its
respective books and records and to discuss its respective
affairs, finances and accounts with its respective officers,
employees and independent public accountants, all at such
reasonable times as may be desired.
15.8 Mergers
Subject to Clause 15.5 (Conduct of Business and Maintenance
of Existence), no Obligor will consolidate or merge with or
into any other person; provided that the Company may merge
with another person if (i) the Company is the corporation
surviving such merger and (ii) after giving effect to such
merger, no Event of Default or Potential Event of Default
shall have occurred and be continuing.
15.9 Disposals
Neither the Guarantors nor the Xxxxxx Chemical Europe Group
shall sell, lease or otherwise transfer, directly or
indirectly, assets (exclusive of assets transferred in the
ordinary course of business and on normal commercial terms)
if after giving effect to such transfer the aggregate book
value of assets so transferred subsequent to the date of this
Agreement would constitute Substantial Assets as of the day
preceding the date of such transfer other than (i) sales of
accounts receivable to IMC-Agrico Receivables Company L.L.C.
or any other similar bankruptcy-remote subsidiary of the
Company or any of its subsidiaries established for the
purpose of engaging in transactions related to accounts
receivable, (ii) the sale of substantially all of the assets
comprising the IMC AgriBusiness business unit of the Company,
(iii) the sale of any equity interest in McMoRan Oil & Gas
Co., a Delaware corporation, or the sale or transfer of any
right to receive revenues from the MOXY-FRP Exploration
Program undertaken by McMoRan Oil & Gas Co., a Delaware
corporation, (iv) the sale of assets acquired pursuant to an
Acquisition that are unrelated to the business of the same
general type as now conducted by the Company and its
subsidiaries, and (v) the sale, lease or other transfer,
directly or indirectly, of assets acquired in or as a direct
result of the Xxxxxx Chemical Acquisition.
15.10 Use of Proceeds
The proceeds of any Advance made under this Agreement will be
used by the Obligors for general corporate purposes,
including the refinancing of Acquisitions or the repayment of
the Inter-Company Loans (subject to Clause 15.17
(Subordination of Inter-Company Loans)) and any bank
overdraft facility. None of such proceeds will be used in
violation of Regulation T, U or X of the Board of Governors
of the Federal Reserve System.
15.11 Negative Pledge
Neither the Guarantors and their subsidiaries nor the Xxxxxx
Chemical Europe Group shall create, assume or suffer to exist
any Encumbrance on any asset now owned or hereafter acquired
by it, except:
15.11.1 Encumbrances existing on the date of this Agreement
securing Debt outstanding on the date of this
Agreement in an aggregate principal or face amount
not exceeding $135,000,000 (or its equivalent) in the
case of the Guarantors and their subsidiaries and
$8,000,000 (or its equivalent) in the case of the
Xxxxxx Chemical Europe Group;
15.11.2 any Encumbrance existing on any asset of any person
at the time such person becomes a subsidiary of an
Obligor and not created in contemplation of such
event;
15.11.3 any Encumbrance on any asset securing Debt incurred
or assumed for the purpose of financing all or any
part of the cost of acquiring or constructing such
asset, provided that such Encumbrance attaches to
such asset concurrently with or within 90 days after
the acquisition or completion of construction
thereof;
15.11.4 any Encumbrance on any asset of any person existing
at the time such person is merged or consolidated
with or into an Obligor or a subsidiary of an Obligor
and not created in contemplation of such event;
15.11.5 any Encumbrance existing on any asset prior to the
acquisition thereof by an Obligor or a subsidiary of
an Obligor and not created in contemplation of such
acquisition;
15.11.6 any Encumbrance arising out of the refinancing,
extension, renewal or refunding of any Debt secured
by any Encumbrance permitted by any of the foregoing
paragraphs of this Clause 15.11, provided that the
proceeds of such Debt are used solely for the
foregoing purpose and to pay financing costs and such
Debt is not secured by any additional assets;
15.11.7 Encumbrances arising in the ordinary course of its
business which (i) do not secure Debt or Derivatives
Obligations, (ii) do not secure any obligation in an
amount exceeding $100,000,000 (or its equivalent) in
the case of the Guarantors and their subsidiaries and
$5,000,000 (or its equivalent) in the case of the
Xxxxxx Chemical Europe Group and (iii) do not in the
aggregate materially detract from the value of its
assets or materially impair the use thereof in the
operation of its business;
15.11.8 Encumbrances on cash and cash equivalents securing
Derivatives Obligations, provided that the aggregate
amount of cash and cash equivalents subject to such
Encumbrances may at no time exceed $10,000,000 (or
its equivalent) in the case of the Guarantors and
their subsidiaries and $1,000,000 (or its equivalent)
in the case of the Xxxxxx Chemical Europe Group; and
15.11.9 Encumbrances not otherwise permitted by the foregoing
paragraphs of this clause 15.11 securing Debt in an
aggregate principal or face amount, together with all
other Debt secured by Encumbrances permitted under
this sub-clause 15.11.9, not to exceed an amount
equal to 10 per cent of its Consolidated Net Worth
(calculated as of the last day of the fiscal quarter
most recently ended on or prior to the date of the
most recent incurrence of such Debt).
15.12 Transactions with Affiliates
No Obligor will, nor will it permit any of its subsidiaries
to, directly or indirectly, pay any funds to or for the
account of, make any investment (whether by acquisition of
stock or indebtedness, by loan, advance, transfer of
property, guarantee or other agreement to pay, purchase or
service, directly or indirectly, any Debt, or otherwise) in,
lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect, any
transaction with, any Affiliate except: (a) transactions on
an arms-length basis on terms at least as favourable to such
Obligor or such subsidiary as could have been obtained from a
third party who was not an Affiliate, (b) marketing services
provided by IMC Global Operations Inc. to Agrico, (c)
employee leasing services agreements between IMC Global
Operations Inc. and Agrico, (d) transactions between Agrico
and the Rainbow and FarMarkets business units of the Company,
(e) transactions between Agrico and the IMC Kalium business
unit of the Company, (f) loans from an Obligor or a
subsidiary to an Obligor or a subsidiary, (g) the declaration
and payment of any lawful dividend and (h) transactions
between Vigiron Partnership, a Delaware general partnership,
and the IMC AgriBusiness business unit of the Company,
provided further that nothing in this Clause 15.12 shall
prohibit any sale or other disposition of assets permitted
under Clause 15.8 (Mergers) and Clause 15.9 (Disposals).
15.13 Leverage Ratio
15.13.1 The Company shall ensure that the Leverage Ratio will
not at any time exceed 3.75 to 1.00.
15.13.2 In this Clause 15.13:
(a) "Consolidated Adjusted Debt" means at any date
the sum of (i) the Debt of the Company and its
Consolidated Subsidiaries plus (ii) the excess
(if any) of (A) the aggregate unrecovered
principal investment of transferees of
accounts receivable from the Company or a
Consolidated Subsidiary in transactions
accounted for as sales under generally
accepted accounting principles over (B)
$100,000,000 (or its equivalent), in each case
determined on a consolidated basis as of such
date;
(b) "Consolidated EBITDA" means, for any period,
the consolidated net income of the Company and
its Consolidated Subsidiaries for such period
before (i) income taxes, (ii) interest
expense, (iii) depreciation and amortisation,
(iv) minority interest, (v) extraordinary
losses or gains, (vi) discontinued operations
and (vii) the cumulative effect of changes in
accounting principles. Consolidated EBITDA
for each four-quarter period will be adjusted
on a pro-forma basis to reflect any
Acquisition closed during such period as if
such Acquisition had been closed on the first
day of such period; and
(c) "Leverage Ratio" means at any date the ratio
of Consolidated Adjusted Debt calculated as of
such date to Consolidated EBITDA calculated
for the period of four consecutive fiscal
quarters most recently ended on or prior to
such date.
15.14 Minimum Net Worth of HCEL
15.14.1 HCEL shall ensure that its Minimum Net Worth shall:
(a) be not less that 40,000,000 by no later than
the close of its fiscal year ending on 31
December 1999; and
(b) increase each fiscal year thereafter by not
less than 75 per cent of its Net Income in
such fiscal year so that X = Y + 0.75(a),
where:
X = Minimum Net Worth calculated on 31
December 2000 and at the date of each of
HCEL's fiscal years thereafter;
Y = Minimum Net Worth calculated at the
close of the immediately preceding
fiscal year to that for which it is
being calculated; and
a = Net Income for the fiscal year for which
X is being calculated.
15.14.2 In this Clause 15.14:
(a) "Minimum Net Worth" means at any date, the
consolidated shareholders' equity of HCEL and
its Consolidated Subsidiaries determined as of
such date (other than any amount attributable
to stock which is required to be redeemed or
is redeemable at the option of the holder, if
certain events or conditions occur or exist or
otherwise); and
(b) "Net Income" means, in any fiscal year, the
net income of HCEL and its Consolidated
Subsidiaries after the payment of tax and
dividends.
15.15 Claims Pari Passu
Each Obligor shall ensure that at all times the claims of the
Finance Parties against it under this Agreement rank at least
pari passu with the claims of all its other unsecured and
unsubordinated creditors save those whose claims are
preferred by any bankruptcy, insolvency, liquidation or other
similar laws of general application.
15.16 Compliance with Regulations T, U and X
No Obligor is engaged principally, or as one of its important
activities, in the business of extending credit for the
purpose of buying or carrying Margin Stock (as such term is
defined in Regulation U of the Regulations of the Board of
Governors of the Federal Reserve System of the United States)
and no part of the proceeds of any Advance will be used,
whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that entails a
violation of or is inconsistent with, the provisions of
Regulations T, U or X of such Regulations.
15.17 Subordination of Inter-Company Loans
15.17.1 The Company, HCEL and Salt Union Limited shall comply
with the terms of the Subordination Deed and shall
ensure that:
(a) all rights of the Company under the Inter-
Company Loans shall be subordinated in all
respects to the rights of the Finance Parties
hereunder; and
(b) no amount owing under the Inter-Company Loans
other than a Permitted Payment shall be paid
until all obligations of the Obligors
hereunder have been discharged in full and
this Agreement shall have been terminated.
15.17.2 In this Clause 15.17:
(a) "EBITDA" means, for any period, the net income
of Xxxxxx Chemical Europe Group for such
period before (i) income taxes, (ii) interest
expense, (iii) depreciation and amortisation,
(iv) minority interest, (v) extraordinary
losses or gains, (vi) discontinued operations
and (vii) the cumulative effect of changes in
accounting principles. EBITDA for each four-
quarter period will be adjusted on a pro-forma
basis to reflect any Acquisition closed during
such period as if such Acquisition had been
closed on the first day of such period;
(b) "Permitted Payment" means:
(i) the repayment of the outstanding
principal amount of each of the Notes
referred to in paragraphs (a) to (c)
inclusive of the definition of
Inter-Company Loans;
(ii) if an Event of Default or a Potential
Event of Default shall not have occurred
and be continuing, the payment of any
interest due to be paid under the Inter-
Company Loans on 31 December 1998
provided that the ratio of EBITDA to Net
Interest Expense is greater than 2.50 to
1.00 at such date;
(iii)if an Event of Default or a Potential
Event of Default shall not have occurred
and be continuing, the payment of any
other amount of interest due under the
Inter-Company Loans provided that EBITDA
to Net Interest Expense is greater than
2.50 to 1.00 on a quarterly rolling 12
month basis; and
(iv) the payment of any proceeds from the
transfer (whether by sale of assets or
shares, merger, recapitilisation or
otherwise) of Xxxxxx Soda Products
(Europe) SAS, Xxxxxx Inorganic Chemicals
BV, Societa Chimica Larderello SpA and
Xxxxxxx & Xxxxx GmbH or substantially all
of the chemicals business conducted
thereby.
(c) "Net Interest Expense" means for any period
all interest expense (including all interest
payable under the Inter-Company Loans),
commissions and discounts and other fees
payable by the Xxxxxx Chemical Europe Group
less any interest receivable by the Xxxxxx
Chemical Europe Group.
15.18 No Guarantees
No Obligor (other than the Company) shall give a Guarantee in
connection with an obligation or liability, whether actual or
contingent, of any of its holding companies other than the
BoS Cross Guarantee.
16. EVENTS OF DEFAULT
Clauses 16.1 (Failure to Pay) to 16.10 (Guarantee
Unenforceable) describe each circumstance which constitutes
an Event of Default if it occurs and continues.
16.1 Failure to Pay
An Obligor shall fail to pay when due any principal of any
Advance or shall fail to pay, within five Business Days of
the due date thereof, any interest, fees or any other amount
payable hereunder.
16.2 Specific Covenants
16.2.1 An Obligor shall fail to observe or perform any
covenant contained in Clauses 15.8 (Mergers) to 15.12
(Transactions with Affiliates), inclusive and
Clauses 15.15 (Claims Pari Passu) and
16.16 (Compliance with Regulations T, U and X).
16.2.2 The Company shall fail to observe or perform the
covenant contained in Clause 15.13 (Leverage Ratio).
16.2.3 HCEL shall fail to observe or perform the covenants
contained in Clause 15.14 (Minimum Net Worth of HCEL).
16.2.4 The Company or Salt Union Limited shall fail to
observe or perform the covenants contained in
Clause 15.17 (Subordination of Inter-Company Loans).
16.3 Misrepresentation
16.3.1 An Obligor shall fail to observe or perform any of
its covenants or agreements contained in this
Agreement (other than those covered by Clauses 16.1
(Failure to Pay) and 16.2 (Specific Covenants)) for
30 days after notice thereof has been given to it by
the Agent at the request of any Bank.
16.3.2 Any representation, warranty, certification or
statement made by an Obligor in this Agreement or in
any certificate, financial statement or other
document delivered pursuant to this Agreement shall
prove to have been incorrect in any material respect
when made or deemed made.
16.4 Cross Acceleration
Any member of the Group shall fail to make any payment in
respect of any Material Financial Obligation (other than the
Loan or the Inter-Company Loans) when due or within any
applicable grace period, or any event or condition shall
occur and continue beyond the applicable grace period (if
any) and the repayment of any Material Financial Obligations
shall be accelerated as a result thereof.
16.5 Insolvency Proceedings
16.5.1 An Obligor or any Material Subsidiary shall commence
a voluntary case or voluntary winding-up or other
proceeding seeking liquidation, reorganisation or
other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment
of a trustee, receiver, administrative receiver,
liquidator, custodian, compulsory manager or other
similar official of it or any substantial part of its
property, or shall consent to any such relief or to
the appointment of or taking possession by any such
official in an involuntary case or winding-up or
other proceeding commenced against it, or shall make
a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become
due, or shall take any corporate action to authorise
any of the foregoing.
16.5.2 An involuntary case or winding-up or other proceeding
shall be commenced against an Obligor or any Material
Subsidiary seeking liquidation, reorganisation or
other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of
a trustee, receiver, administrative receiver,
liquidator, custodian, compulsory manager or other
similar official of it or any substantial part of its
property, and such involuntary case or winding-up or
other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for
relief shall be entered against an Obligor or any
Material Subsidiary under the bankruptcy laws as now
or hereafter in effect.
16.6 ERISA Default
Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $25,000,000 (or
its equivalent) which it shall have become liable to pay
under Title IV of ERISA, notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any
combination of the foregoing, the PBGC shall institute
proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed
to administer any Material Plan, a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated, or
there shall occur a complete or partial withdrawal from, or a
Event of Default or Potential Event of Default, within the
meaning of Section 4219(c)(5) of ERISA, with respect to, one
or more Multiemployer Plans which causes one or more members
of the ERISA Group to incur a current payment obligation in
excess of $100,000,000 (or its equivalent) in the aggregate.
16.7 Failure to Comply with Final Judgement
Any final judgement or any final order for the payment of
money in excess of:
16.7.1 $100,000,000 (or its equivalent) in aggregate is
rendered against the Guarantors or any of their
subsidiaries which continues unsatisfied and unstayed
for a period of 30 days; or
16.7.2 $8,000,000 (or its equivalent) in aggregate is
rendered against the Xxxxxx Chemical Europe Group
which continues unsatisfied and unstayed for a period
of 30 days.
16.8 Change in Ownership of Company
16.8.1 Any person or two or more persons acting in concert
shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Xxxxxxxx Xxx 0000
(US)), directly or indirectly, of Voting Stock of the
Company (or other securities convertible into such
Voting Stock) representing 35 per cent or more of the
combined voting power of all Voting Stock of the
Company.
16.8.2 During any period of up to 24 consecutive months,
commencing after the date of this Agreement,
individuals who at the beginning of such 24-month
period were directors of the Company shall cease for
any reason (other than due to death or disability) to
constitute a majority of the board of directors of
the Company, except to the extent that individuals
who at the beginning of such 24-month period were
replaced by individuals (x) elected by two thirds of
the remaining members of the board of directors of
the Company or (y) nominated for election by a
majority of the remaining members of the board of
directors of the Company and thereafter elected as
directors by the shareholders of the Company.
16.8.3 Any person or two or more persons acting in concert
shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement
that has resulted in its or their acquisition of,
control over Voting Stock of the Company (or other
securities convertible into such securities)
representing 35 per cent or more of the combined
voting power of all Voting Stock of the Company.
16.9 Illegality
At any time it is or becomes unlawful for an Obligor to
perform or comply with all or any of its material obligations
hereunder or any of the material obligations of an Obligor
hereunder are not or cease to be legal, valid, binding and
effective.
16.10 Guarantee Unenforceable
Any obligation of a Guarantor under Clause 17 (Guarantee and
Indemnity) shall for any reason not be enforceable in
accordance with its terms, or a Guarantor shall so assert in
writing.
16.11 Acceleration and Cancellation
If an Event of Default occurs and is continuing, the Agent
may (and, if so instructed by an Instructing Group, shall) by
notice to the Company:
16.11.1 declare all or any part of the Advances to be
immediately due and payable (whereupon the same shall
become so payable together with accrued interest
thereon and any other sums then owed by a Borrower
hereunder) or declare all or any part of the Advances
to be due and payable on demand of the Agent; and/or
16.11.2 declare that the Facility shall be cancelled,
whereupon the same shall be cancelled and the
Commitment of each Bank shall be reduced to zero,
provided that, notwithstanding the foregoing, upon
the occurrence of an Event of Default specified in
Clause 16.5 (Insolvency Proceedings), the Available
Commitment of each Bank shall be immediately reduced
to zero and all Advances, interest thereon and other
sums then owed by the Borrower hereunder shall become
immediately due and payable, in each case without
declaration, notice or demand by or to any person.
16.12 Advances Due on Demand
If, pursuant to Clause 16.11 (Acceleration and Cancellation),
the Agent declares all or any part of the Advances to be due
and payable on demand of the Agent, then, and at any time
thereafter, the Agent may (and, if so instructed by an
Instructing Group, shall) by notice to the Borrowers:
16.12.1 require repayment of all or such part of the Advances
on such date as it may specify in such notice
(whereupon the same shall become due and payable on
the date specified together with accrued interest
thereon and any other sums then owed by the Borrowers
hereunder) or withdraw its declaration with effect
from such date as it may specify; and
16.12.2 declare that the Facility shall be cancelled,
whereupon the same shall be cancelled and the
Commitment of each Bank reduced to zero.
16.13 Length of Terms
If, pursuant to Clause 16.11 (Acceleration and Cancellation),
the Agent declares the Advances to be due and payable on
demand of the Agent, the Term in respect of any such Advance
shall, if the Agent subsequently demands payment before the
scheduled Repayment Date in respect of such Advance, be
deemed (except for the purposes of Clause 20.4 (Break Costs)
to be of such length that it ends on the date that such
demand is made.
17. GUARANTEE AND INDEMNITY
17.1 Guarantee
Each Guarantor jointly and severally irrevocably and
unconditionally guarantees to each Finance Party to pay on
demand any and every sum or sums of money which each Borrower
is at any time liable to pay to any Finance Party under or
pursuant to this Agreement and which has become due and
payable but has not been paid at the time such demand is
made.
17.2 Indemnity
Each Guarantor jointly and severally irrevocably and
unconditionally agrees as a primary obligation to indemnify
each Finance Party from time to time on demand from and
against any loss incurred by any Finance Party as a result of
any of the obligations of any Borrower under or pursuant to
this Agreement being or becoming void, voidable,
unenforceable or ineffective as against such Borrower for any
reason whatsoever, whether or not known to any Finance Party
or any other person, the amount of such loss being the amount
which the person or persons suffering it would otherwise have
been entitled to recover from such Borrower.
17.3 Additional Security
The obligations of each Guarantor herein contained shall be
in addition to and independent of every other security which
any Finance Party may at any time hold in respect of any of
the Borrowers' obligations hereunder.
17.4 Continuing Obligations
The obligations of each Guarantor herein contained shall
constitute and be continuing obligations notwithstanding any
settlement of account or other matter or thing whatsoever and
shall not be considered satisfied by any intermediate payment
or satisfaction of all or any of the obligations of each
Borrower under this Agreement and shall continue in full
force and effect until final payment in full of all amounts
owing by each Borrower hereunder and total satisfaction of
all each Borrower's actual and contingent obligations
hereunder.
17.5 Obligations not Discharged
Neither the obligations of any Guarantor herein contained nor
the rights, powers and remedies conferred in respect of any
Guarantor upon any Finance Party by this Agreement or by law
shall be discharged, impaired or otherwise affected by:
17.5.1 the winding-up, dissolution, administration or
re-organisation of a Borrower or any other person or
any change in its status, function, control or
ownership;
17.5.2 any of the obligations of a Borrower or any other
person hereunder or under any other security taken in
respect of any of its obligations hereunder being or
becoming illegal, invalid, unenforceable or
ineffective in any respect;
17.5.3 time or other indulgence being granted or agreed to
be granted to any Borrower in respect of its
obligations hereunder or under any such other
security;
17.5.4 any amendment to, or any variation, waiver or release
of, any obligation of any Borrower hereunder or under
any such other security;
17.5.5 any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken
in respect of any Borrower's obligations hereunder;
17.5.6 any failure to realise or fully to realise the value
of, or any release, discharge, exchange or
substitution of, any security taken in respect of any
Borrower's obligations hereunder; or
17.5.7 any other act, event or omission which, but for this
Clause 17.5, might operate to discharge, impair or
otherwise affect any of the obligations of a
Guarantor herein contained or any of the rights,
powers or remedies conferred upon any of the Finance
Parties by this Agreement or by law.
17.6 Settlement Conditional
Any settlement or discharge between a Guarantor and any of
the Finance Parties shall be conditional upon no security or
payment to any Finance Party by an Obligor or any other
person on behalf of an Obligor being avoided or reduced by
virtue of any laws relating to bankruptcy, insolvency,
liquidation or similar laws of general application and, if
any such security or payment is so avoided or reduced, each
Finance Party shall be entitled to recover the value or
amount of such security or payment from such Guarantor
subsequently as if such settlement or discharge had not
occurred.
17.7 Exercise of Rights
No Finance Party shall be obliged before exercising any of
the rights, powers or remedies conferred upon it in respect
of the Guarantors by this Agreement or by law:
17.7.1 to make any demand of any Borrower;
17.7.2 to take any action or obtain judgement in any court
against any Borrower;
17.7.3 to make or file any claim or proof in a winding-up or
dissolution of any Borrower; or
17.7.4 to enforce or seek to enforce any other security
taken in respect of any of the obligations of any
Borrower hereunder.
17.8 Deferral of Guarantors' Rights
Each Guarantor agrees that, so long as any amounts are or may
be owed by any Borrower hereunder or any Borrower is under
any actual or contingent obligations hereunder, the Guarantor
shall not exercise any rights which the Guarantor may at any
time have by reason of performance by it of its obligations
hereunder:
17.8.1 to be indemnified by any Borrower; and/or
17.8.2 to claim any contribution from any other guarantor of
any Borrower's obligations hereunder; and/or
17.8.3 to take the benefit (in whole or in part and whether
by way of subrogation or otherwise) of any rights of
the Finance Parties hereunder or of any other
security taken pursuant to, or in connection with,
this Agreement by all or any of the Finance Parties.
17.9 Suspense Accounts
All moneys received, recovered or realised by a Bank by
virtue of Clause 17.1 (Guarantee) or Clause 17.2 (Indemnity)
may, in that Bank's discretion, be credited to a suspense or
impersonal account (which shall bear interest at a commercial
rate) and may be held in such account for so long as such
Bank thinks fit pending the application from time to time (as
such Bank may think fit) of such moneys in or towards the
payment and discharge of any amounts owing by an Obligor to
such Bank hereunder.
18. COMMITMENT COMMISSION AND FEES
18.1 Commitment Commission
The Borrowers shall pay to the Agent for account of each Bank
a commitment commission on the amount of such Bank's
Available Commitment from day to day during the period
beginning on the date hereof and ending on the date of
termination of the Commitments, such commitment commission to
be calculated at the rate determined by the Agent in
accordance with Schedule_5 (Determination of Margin and
Commitment Commission) and payable in arrear on the last day
of each successive period of three months which ends during
such period and on the date of termination of the
Commitments. The Agent shall promptly notify the Borrowers
and the Banks of the commitment commission after is it
determined.
18.2 Arrangement Fee
The Borrowers shall pay to the Arranger the fees specified in
the letter of even date herewith from the Arranger to the
Original Borrowers at the times, and in the amounts,
specified in such letter.
18.3 Agency Fee
The Borrowers shall pay to the Agent for its own account the
agency fees specified in the letter of even date herewith
from the Agent to the Original Borrowers at the times, and in
the amounts, specified in such letter.
19. COSTS AND EXPENSES
19.1 Transaction Expenses
Each Borrower shall, from time to time on demand of the
Agent, reimburse each of the Agent and the Arranger for all
reasonable costs and expenses (including reasonable legal
fees) together with any VAT thereon incurred by it in
connection with the negotiation, preparation and execution of
this Agreement, any other document referred to in this
Agreement and the completion of the transactions herein
contemplated. The Agent or the Arranger may pay for any such
costs and expenses (including legal fees) together with any
VAT thereon prior to receiving payment in respect thereof
from any Borrower and (without prejudice to the provisions of
this Agreement) the Agent or the Arranger may debit an amount
equal to any such costs and expenses (including legal fees)
together with any VAT thereon to any account maintained by a
Borrower with any of them.
19.2 Preservation and Enforcement of Rights
The Borrowers shall, from time to time on demand of the
Agent, reimburse the Finance Parties for all reasonable costs
and expenses (including reasonable legal fees) on a full
indemnity basis together with any VAT thereon incurred in or
in connection with the preservation and/or enforcement of any
of the rights of the Finance Parties under this Agreement and
any other document referred to in this Agreement (including
any reasonable costs and expenses relating to any steps
necessary in connection with any proposal for remedying or
otherwise resolving an Event of Default or Potential Event of
Default).
19.3 Stamp Taxes
The Borrowers shall pay all stamp, registration and other
taxes to which this Agreement, any other document referred to
in this Agreement or any judgement given in connection
therewith is or at any time may be subject and shall, from
time to time on demand of the Agent, indemnify the Finance
Parties against any liabilities, reasonable costs, claims and
expenses resulting from any failure to pay or any delay in
paying any such tax.
19.4 Amendment Costs
If an Obligor requests any amendment, waiver or consent then
the Borrowers shall, within five Business Days of demand by
the Agent, reimburse the Finance Parties for all costs and
expenses (including legal fees) together with any VAT thereon
incurred by such person in responding to or complying with
such request.
19.5 Banks' Liabilities for Costs
If any Borrower fails to perform any of its obligations under
this Clause 19, each Bank shall, in its Proportion, indemnify
each of the Agent and the Arranger against any loss incurred
by any of them as a result of such failure.
19.6 Agent's Costs
The Borrowers shall, from time to time on demand of the Agent
(and without prejudice to the provisions of Clause 19.2
(Preservation and Enforcement Rights) and Clause 19.4
(Amendment Costs)) compensate the Agent for all reasonable
costs and expenses (including telephone, fax, copying, travel
and personnel costs) incurred by the Agent in connection with
its taking such action as are reasonable or in complying with
any instructions from an Instructing Group or any request by
a Borrower in connection with:
19.6.1 the granting or proposed granting of any waiver or
consent requested hereunder by any Borrower;
19.6.2 any actual breach by any Borrower of its obligations
hereunder;
19.6.3 the occurrence of any event which is an Event of
Default or a Potential Event of Default; or
19.6.4 the transfer of the role of Agent to another person.
20. DEFAULT INTEREST AND BREAK COSTS
20.1 Default Interest Periods
If any sum due and payable by an Obligor hereunder is not
paid on the due date therefor in accordance with Clause 23
(Payments) or if any sum due and payable by an Obligor under
any judgement of any court in connection herewith is not paid
on the date of such judgement, the period beginning on such
due date or, as the case may be, the date of such judgement
and ending on the date upon which the obligation of such
Obligor to pay such sum is discharged shall be divided into
successive periods, each of which (other than the first)
shall start on the last day of the preceding such period and
the duration of each of which shall (except as otherwise
provided in this Clause 20) be selected by the Agent.
20.2 Default Interest
An Unpaid Sum shall bear interest during each Term in respect
thereof at the rate per annum which is one per cent. per
annum above the percentage rate which would apply to an
Advance in the amount and currency of such Unpaid Sum and for
the same Term, provided that if such Unpaid Sum relates to an
Advance which became due and payable on a day other than the
last day of the Term thereof:
20.2.1 the first such Term applicable to such Unpaid Sum
shall be of a duration equal to the unexpired portion
of the current Term relating to that Advance; and
20.2.2 the percentage rate of interest applicable thereto
from time to time during such period shall be that
which exceeds by one per cent. the rate which would
have been applicable to it had it not so fallen due.
20.3 Payment of Default Interest
Any interest which shall have accrued under Clause 20.2
(Default Interest) in respect of an Unpaid Sum shall be due
and payable and shall be paid by the Obligor owing such
Unpaid Sum on the last day of its Term or on such other dates
as the Agent may specify by prior written notice to such
Obligor.
20.4 Break Costs
If any Bank or the Agent on its behalf receives or recovers
all or any part of such Bank's share of an Advance or Unpaid
Sum otherwise than on the last day of the Term thereof, the
Borrowers shall pay to the Agent on demand for account of
such Bank an amount equal to the amount (if any) by which (a)
the additional interest (excluding Margin) which would have
been payable on the amount so received or recovered had it
been received or recovered on the last day of the Term
thereof exceeds (b) the amount of interest which in the
reasonable opinion of the Agent would have been payable to
the Agent on the last day of the Term thereof in respect of a
sterling deposit equal to the amount so received or recovered
placed by it with a prime bank in London for a period
starting on the third Business Day following the date of such
receipt or recovery and ending on the last day of the Term
thereof.
21. BORROWERS' INDEMNITIES
21.1 Borrowers' Indemnity
Each Borrower undertakes to indemnify:
21.1.1 each Finance Party against any reasonable cost or any
claim, loss, expense (including reasonable legal
fees) or liability together with any VAT thereon,
whether or not reasonably foreseeable, which it may
sustain or incur (otherwise than as a result of the
gross negligence or wilful misconduct of a Finance
Party) as a consequence of the occurrence of any
Event of Default or any default by any Borrower in
the performance of any of the material obligations
expressed to be assumed by it in this Agreement;
21.1.2 each Bank against any cost or loss it may suffer
under Clause 19.5 (Banks' Liabilities for Costs) or
Clause 26.5 (Indemnification); and
21.1.3 each Bank against any cost or loss it may suffer or
incur as a result of its funding or making
arrangements to fund its portion of an Advance
requested by a Borrower but not made by reason of the
operation of any one or more of the provisions
hereof.
21.2 Currency Indemnity
If any sum (a "Sum") due from an Obligor under this Agreement
or any order or judgement given or made in relation hereto
has to be converted from the currency (the "First Currency")
in which such Sum is payable into another currency (the
"Second Currency") for the purpose of:
21.2.1 making or filing a claim or proof against such
Obligor;
21.2.2 obtaining an order or judgement in any court or other
tribunal; or
21.2.3 enforcing any order or judgement given or made in
relation hereto,
the Borrowers shall indemnify each person to whom such Sum is
due from and against any actual loss suffered or incurred as
a result of any discrepancy between (a) the rate of exchange
used for such purpose to convert such Sum from the First
Currency into the Second Currency and (b) the rate or rates
of exchange available to such person at the time of receipt
of such Sum.
22. CURRENCY OF ACCOUNT AND PAYMENT
Sterling is the currency of account and payment for each and
every sum at any time due from an Obligor hereunder, provided
that:
22.0.1 each payment in respect of costs and expenses shall
be made in the currency in which the same were
incurred; and
22.0.2 each payment pursuant to Clause 9.2 (Tax Indemnity)
or Clause 11.1 (Increased Costs) shall be made in the
currency reasonably specified by the party claiming
thereunder.
23. PAYMENTS
23.1 Payments to the Agent
On each date on which this Agreement requires an amount to be
paid by an Obligor or a Bank, such Obligor or, as the case
may be, such Bank shall make the same available to the Agent
for value on the due date at such time and in such funds and
to such account with such bank as the Agent shall specify
from time to time.
23.2 Payments by the Agent
Save as otherwise provided herein, each payment received by
the Agent pursuant to Clause 23.1 (Payments to the Agent)
shall:
23.2.1 in the case of a payment received for the account of
any Borrower, be made available by the Agent to such
Borrower by application:
(a) first, in or towards payment the same day of
any amount then due from such Borrower
hereunder to the person from whom the amount
was so received; and
(b) secondly, in or towards payment the same day
to the account of such Borrower with such bank
in London as such Borrower shall have
previously notified to the Agent for this
purpose; and
23.2.2 in the case of any other payment, be made
available by the Agent to the person entitled
to receive such payment in accordance with
this Agreement (in the case of a Bank, for the
account of the Facility Office) for value as
soon as reasonably practicable after receipt
by the Agent by transfer to such account of
such person with such bank in London as such
person shall have previously notified to the
Agent.
23.3 No Set-off
All payments required to be made by an Obligor hereunder
shall be calculated without reference to any set-off or
counterclaim and shall be made free and clear of and without
any deduction for or on account of any set-off or
counterclaim.
23.4 Clawback
Where a sum is to be paid hereunder to the Agent for account
of another person, the Agent shall not be obliged to make the
same available to that other person until it has been able to
establish to its satisfaction that it has actually received
such sum, but if it does so and it proves to be the case that
it had not actually received such sum, then the person to
whom such sum was so made available shall on request refund
the same to the Agent together with an amount sufficient to
indemnify the Agent against any cost or loss it may have
suffered or incurred by reason of its having paid out such
sum prior to its having received such sum.
23.5 Partial Payments
If and whenever a payment is made by an Obligor hereunder the
Agent may apply the amount received towards the obligations
of the Obligors under this Agreement in the following order:
23.5.1 first, in or towards payment of any unpaid costs and
expenses of each of the Agent and the Arranger;
23.5.2 secondly, in or towards payment pro rata of any
accrued interest due but unpaid;
23.5.3 thirdly, in or towards payment pro rata of any
principal due but unpaid; and
23.5.4 fourthly, in or towards payment pro rata of any other
sum due but unpaid.
23.6 Variation of Partial Payments
The order of payments set out in Clause 23.5 (Partial
Payments) shall override any appropriation made by the
Obligor to which the partial payment relates but the order
set out in sub-clauses 23.5.2, 23.5.3 and 23.5.4 of
Clause 23.5 (Partial Payments) may be varied if agreed by all
the Banks.
24. SET-OFF
24.1 Contractual Set-off
Each Obligor authorises each Bank to apply any credit balance
to which such Obligor is entitled on any account of such
Obligor with such Bank in satisfaction of any sum due and
payable from such Obligor to such Bank hereunder but unpaid.
For this purpose, each Bank is authorised to purchase with
the moneys standing to the credit of any such account such
other currencies as may be necessary to effect such
application.
24.2 Set-off not Mandatory
No Bank shall be obliged to exercise any right given to it by
Clause 24.1 (Contractual Set-off).
25. SHARING
25.1 Payments to Banks
If a Bank (a "Recovering Bank") applies any receipt or
recovery from an Obligor to a payment due under this
Agreement and such amount is received or recovered other than
in accordance with Clause 23 (Payments), then such Recovering
Bank shall:
25.1.1 notify the Agent of such receipt or recovery; and
25.1.2 at the request of the Agent, promptly 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 such Recovering Bank as
its share of any payment to be made in accordance
with Clause 23.5 (Partial Payments).
25.2 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 Bank) in
accordance with Clause 23.5 (Partial Payments).
25.3 Recovering Bank's Rights
The Recovering Bank will be subrogated into the rights of the
parties which have shared in a redistribution pursuant to
Clause 25.2 (Redistribution of Payments) in respect of the
Sharing Payment (and the relevant Obligor shall be liable to
the Recovering Bank in an amount equal to the Sharing
Payment).
25.4 Repayable Recoveries
If any part of the Sharing Payment received or recovered by a
Recovering Bank becomes repayable and is repaid by such
Recovering Bank, then:
25.4.1 each party which has received a share of such Sharing
Payment pursuant to Clause 25.2 (Redistribution of
Payments) shall, upon request of the Agent, pay to
the Agent for account of such Recovering Bank an
amount equal to its share of such Sharing
Payment; and
25.4.2 such Recovering Bank's rights of subrogation in
respect of any reimbursement shall be cancelled and
the relevant Obligor will be liable to the
reimbursing party for the amount so reimbursed.
25.5 Exception
This Clause 25 shall not apply if the Recovering Bank would
not, after making any payment pursuant hereto, have a valid
and enforceable claim against the relevant Obligor.
25.6 Recoveries Through Legal Proceedings
If any Bank intends to commence any action in any court it
shall give prior notice to the Agent and the other Banks. If
any Bank shall commence any action in any court to enforce
its rights hereunder and, as a result thereof or in
connection therewith, receives any amount, then such Bank
shall not be required to share any portion of such amount
with any Bank which has the legal right to, but does not,
join in such action or commence and diligently prosecute a
separate action to enforce its rights in another court.
26. THE AGENT, THE ARRANGER AND THE BANKS
26.1 Appointment of the Agent
Each of the Arranger and the Banks hereby appoints the Agent
to act as its agent in connection herewith and authorises the
Agent to exercise such rights, powers, authorities and
discretions as are specifically delegated to the Agent by the
terms hereof together with all such rights, powers,
authorities and discretions as are reasonably incidental
thereto.
26.2 Agent's Discretions
The Agent may:
26.2.1 assume, unless it has, in its capacity as agent for
the Banks, received notice to the contrary from any
other party hereto, that (a)any representation made or
deemed to be made by an Obligor in connection herewith
is true, (b) no Event of Default or Potential Event of
Default has occurred, (c) no Obligor is in breach of
or default under its obligations hereunder and (d) any
right, power, authority or discretion vested herein
upon an Instructing Group, the Banks or any other
person or group of persons has not been exercised;
26.2.2 assume that the Facility Office of each Bank is that
notified to it by such Bank in writing prior to the
date hereof (or, in the case of a Transferee, at the
end of the Transfer Certificate to which it is a party
as Transferee) until it has received from such Bank a
notice designating some other office of such Bank to
replace its Facility Office and act upon any such
notice until the same is superseded by a further such
notice;
26.2.3 engage and pay for the advice or services of any
lawyers, accountants, surveyors or other experts whose
advice or services may to it seem necessary, expedient
or desirable and rely upon any advice so obtained;
26.2.4 rely as to any matters of fact which might reasonably
be expected to be within the knowledge of an Obligor
upon a certificate signed by or on behalf of such
Obligor;
26.2.5 rely upon any communication or document believed by it
to be genuine;
26.2.6 refrain from exercising any right, power or discretion
vested in it as agent hereunder unless and until
instructed by an Instructing Group as to whether or
not such right, power or discretion is to be exercised
and, if it is to be exercised, as to the manner in
which it should be exercised; and
26.2.7 refrain from acting in accordance with any
instructions of an Instructing Group to begin any
legal action or proceeding arising out of or in
connection with this Agreement until it shall have
received such security as it may require (whether by
way of payment in advance or otherwise) for all costs,
claims, losses, expenses (including legal fees) and
liabilities together with any VAT thereon which it
will or may expend or incur in complying with such
instructions.
26.3 Agent's Obligations
The Agent shall:
26.3.1 promptly inform each Bank of the contents of any
notice or document received by it in its capacity as
Agent from an Obligor hereunder;
26.3.2 promptly notify each Bank of the occurrence of any
Event of Default or any default by an Obligor in the
due performance of or compliance with its obligations
under this Agreement of which the Agent has written
notice from any other party hereto;
26.3.3 save as otherwise provided herein, act as agent
hereunder in accordance with any instructions given to
it by an Instructing Group, which instructions shall
be binding on the Arranger and the Banks; and
26.3.4 if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it
as agent hereunder.
The Agent's duties to the Banks under this Agreement are
solely mechanical and administrative in nature.
26.4 Excluded Obligations
Notwithstanding anything to the contrary expressed or implied
herein, neither the Agent nor the Arranger shall:
26.4.1 be bound to enquire as to (a) whether or not any
representation made or deemed to be made by an Obligor
in connection herewith is true, (b) the occurrence or
otherwise of any Event of Default or Potential Event
of Default, (c) the performance by an Obligor of its
obligations hereunder or (d) any breach of or default
by an Obligor of or under its obligations hereunder;
26.4.2 be bound to account to any Bank for any sum or the
profit element of any sum received by it for its own
account;
26.4.3 be bound to disclose to any other person any
information relating to any member of the Group if (a)
such person, on providing such information expressly
stated to the Agent or, as the case may be, the
Arranger, that such information was confidential or
(b) such disclosure would or might in its opinion
constitute a breach of any law or be otherwise
actionable at the suit of any person;
26.4.4 be under any obligations other than those for which
express provision is made herein; or
26.4.5 be or be deemed to be a fiduciary for any other party
hereto.
26.5 Indemnification
Each Bank shall, in its Proportion, from time to time on
demand by the Agent, indemnify the Agent, against any and all
costs, claims, losses, expenses (including legal fees) and
liabilities together with any VAT thereon which the Agent may
incur, otherwise than by reason of its own gross negligence
or wilful misconduct, in acting in its capacity as agent
hereunder (other than any which have been reimbursed by the
Borrowers pursuant to Clause 21.1 (Borrowers' Indemnity)).
26.6 Exclusion of Liabilities
Each Bank confirms that it has read the "Important Notice" in
the Information Memorandum, that it has complied with the
Recipients' Obligations (as defined in the Important Notice)
and, accordingly, that it enters into this Agreement on the
basis of the Important Notice. In particular, each of the
Banks accepts that it is entering into this Agreement in
reliance only on the representations of the Obligors in this
Agreement and on its own investigations, that it has not
relied on the Arranger and that, except that in the case of
fraud, it neither has nor will have any claims against the
Arranger arising from or in connection with this Agreement.
Similarly, each of the Banks accepts that the Important
Notice in the Information Memorandum is applicable also to
the Agent as if the Agent had been named in addition to the
Arranger in the Important Notice. Except in the case of
gross negligence or wilful default, none of the Agent and the
Arranger accepts any responsibility:
26.6.1 for the adequacy, accuracy and/or completeness of the
Information Memorandum or any other information
supplied by the Agent or the Arranger, by an Obligor
or by any other person in connection with this
Agreement, the transactions herein contemplated or any
other agreement, arrangement or document entered into,
made or executed in anticipation of, pursuant to or in
connection with this Agreement;
26.6.2 for the legality, validity, effectiveness, adequacy or
enforceability of this Agreement or any other
agreement, arrangement or document entered into, made
or executed in anticipation of, pursuant to or in
connection with this Agreement; or
26.6.3 for the exercise of, or the failure to exercise, any
judgement, discretion or power given to any of them by
or in connection with this Agreement or any other
agreement, arrangement or document entered into, made
or executed in anticipation of, pursuant to or in
connection with this Agreement.
Accordingly, none of the Agent and the Arranger shall be
under any liability (whether in negligence or otherwise) in
respect of such matters, save in the case of gross negligence
or wilful misconduct.
26.7 No Actions
Each of the Banks agrees that it will not assert or seek to
assert against any director, officer or employee of the Agent
or the Arranger any claim it might have against any of them
in respect of the matters referred to in Clause 26.6
(Exclusion of Liabilities).
26.8 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, whether or not it may
or does lead to a conflict with the interests of any of the
Banks. Similarly, the Agent or the Arranger may undertake
business with or for others even though it may lead to a
conflict with the interests of any of the Banks
26.9 Resignation
The Agent may resign its appointment hereunder at any time
without assigning any reason therefor by giving not less than
thirty days' prior notice to that effect to each of the other
parties hereto, provided that no such resignation shall be
effective until a successor for the Agent is appointed in
accordance with the succeeding provisions of this Clause 26.
26.10 Successor Agent
If the Agent gives notice of its resignation pursuant to
Clause 26.9 (Resignation), then any reputable and experienced
bank or other financial institution may be appointed as a
successor to the Agent by an Instructing Group during the
period of such notice but, if no such successor is so
appointed, the Agent may appoint such a successor itself
provided that in each case, the prior written consent of the
Company (not to be unreasonably withheld or delayed) to any
successor to the Agent is obtained.
26.11 Rights and Obligations
If a successor to the Agent is appointed under the provisions
of Clause 26.10 (Successor Agent), then (a) the retiring
Agent shall be discharged from any further obligation
hereunder but shall remain entitled to the benefit of the
provisions of this Clause 26 and (b) its successor and each
of the other parties hereto shall have the same rights and
obligations amongst themselves as they would have had if such
successor had been a party hereto.
26.12 Own Responsibility
It is understood and agreed by each Bank that at all times it
has itself been, and will continue to be, solely responsible
for making its own independent appraisal of and investigation
into all risks arising under or in connection with this
Agreement including, but not limited to:
26.12.1 the financial condition, creditworthiness, condition,
affairs, status and nature of each member of the
Group;
26.12.2 the legality, validity, effectiveness, adequacy and
enforceability of this Agreement and any other
agreement, arrangement or document entered into, made
or executed in anticipation of, pursuant to or in
connection with this Agreement;
26.12.3 whether such Bank has recourse, and the nature and
extent of that recourse, against an Obligor or any
other person or any of their respective assets under
or in connection with this Agreement, the
transactions herein contemplated or any other
agreement, arrangement or document entered into, made
or executed in anticipation of, pursuant to or in
connection with this Agreement; and
26.12.4 the adequacy, accuracy and/or completeness of the
Information Memorandum and any other information
provided by the Agent or the Arranger, an Obligor, or
by any other person in connection with this
Agreement, the transactions contemplated herein or
any other agreement, arrangement or document entered
into, made or executed in anticipation of, pursuant
to or in connection with this Agreement.
Accordingly, each Bank acknowledges to the Agent and the
Arranger that it has not relied on and will not hereafter
rely on the Agent and the Arranger or any of them in respect
of any of these matters.
26.13 Receipt of Information by Agent
Any information or document received by the Agent shall only
be treated as having been received by the Agent if the same
has been delivered to the Agent's agency department in
accordance with Clause 31 (Notices). Accordingly, any
information or documents received by the Agent other than by
its agency department in accordance with Clause 31 (Notices)
is not by reason of that receipt to be treated as having been
received by the Agent unless and until the Agent's agency
department has received actual notice of the same in
accordance with such Clause. Save as expressly set out in
this Agreement and, unless the Agent's agency department
shall have received information or documents in accordance
with Clause 31 (Notices) the Agent shall have no duty to
disclose, and shall not be liable for the failure to
disclose, any information or documents, that re communicated
to or obtained by the Agent.
26.14 Confidential Information
Notwithstanding anything to the contrary expressed or implied
herein and without prejudice to Clause 26.13 (Receipt of
Information by Agent), the Agent shall not as between itself
and the Banks be bound to disclose to any Bank or other
person any information which is supplied by any member of the
Group to the Agent in its capacity as agent hereunder for the
Banks and which is identified by such member of the Group at
the time it is so supplied as being confidential information
provided that the consent of the relevant member of the Group
to such disclosure shall not be required in relation to any
information which in the reasonable opinion of the Agent
relates to an Event of Default or Potential Event of Default
or in respect of which the Banks have given a confidentiality
undertaking in a form satisfactory to the Agent.
26.15 Delegation
The Agent may delegate, transfer or assign to any subsidiary
of The Chase Manhattan Corporation or its successor from time
to time all or any of the rights, powers, authorities and
discretions vested in it hereunder and the performance of its
duties in accordance herewith, and such delegation, transfer
or assignment may be made upon such terms and subject to such
conditions (including the power to sub-delegate) and subject
to such regulations as the Agent may think fit (and the term
"Agent" as used in this Agreement shall include any such
delegate).
27. ASSIGNMENTS AND TRANSFERS
27.1 Binding Agreement
This Agreement shall be binding upon and enure to the benefit
of each party hereto and its or any subsequent successors and
Transferees.
27.2 No Assignments and Transfers by the Obligors
No Obligor shall be entitled to assign or transfer all or any
of its rights, benefits and obligations hereunder.
27.3 Assignments and Transfers by Banks
Any Bank may, at any time, assign all or any of its rights
and benefits hereunder or transfer in accordance with
Clause 27.6 (Transfers by Banks) all or any of its rights,
benefits and obligations hereunder to a bank or financial
institution, provided that (save in the case of any such
assignment or transfer (a) to any subsidiary or holding
company, or to any subsidiary of any holding company, of such
Bank or (b) to any other Bank and subject as provided in
Clause 27.4 (Deemed Consent)) no such assignment or transfer
may be made without the prior written consent of the
Borrowers, such consent not to be unreasonably withheld or
delayed.
27.4 Deemed Consent
Any consent required to be given by a party under Clause 27.3
(Assignments and Transfers by Banks) shall be deemed to have
been given unless such party shall have notified the
requesting party to the contrary within five Business Days
after the request for such consent.
27.5 Assignments by Banks
If any Bank assigns all or any of its rights and benefits
hereunder in accordance with Clause 27.3 (Assignments and
Transfers by Banks), then, unless and until the assignee has
delivered a notice to the Agent confirming in favour of the
Agent, the Arranger and the other Banks that it shall be
under the same obligations towards each of them as it would
have been under if it had been an original party hereto as a
Bank (whereupon such assignee shall become a party hereto as
a "Bank"), the Obligors, the Agent, the Arranger and the
other Banks shall not be obliged to recognise such assignee
as having the rights against each of them which it would have
had if it had been such a party hereto.
27.6 Transfers by Banks
If any Bank wishes to transfer all or any of its rights,
benefits and/or obligations hereunder as contemplated in
Clause 27.3 (Assignments and Transfers by Banks), then such
transfer may be effected by the delivery to the Agent of a
duly completed Transfer Certificate executed by such Bank and
the relevant Transferee in which event, on the later of the
Transfer Date specified in such Transfer Certificate and the
fifth Business Day after (or such earlier Business Day
endorsed by the Agent on such Transfer Certificate falling on
or after) the date of delivery of such Transfer Certificate
to the Agent:
27.6.1 to the extent that in such Transfer Certificate the
Bank party thereto seeks to transfer by novation its
rights, benefits and obligations hereunder, each of
the Obligors and such Bank shall be released from
further obligations towards one another hereunder and
their respective rights against one another shall be
cancelled (such rights and obligations being referred
to in this Clause 27.6 as "discharged rights and
obligations");
27.6.2 each of the Obligors and the Transferee party thereto
shall assume obligations towards one another and/or
acquire rights against one another which differ from
such discharged rights and obligations only insofar as
such Obligor and such Transferee have assumed and/or
acquired the same in place of such Obligor and such
Bank;
27.6.3 the Agent, the Arranger, such Transferee and the other
Banks shall acquire the same rights and benefits and
assume the same obligations between themselves as they
would have acquired and assumed had such Transferee
been an original party hereto as a Bank with the
rights, benefits and/or obligations acquired or
assumed by it as a result of such transfer and to that
extent the Agent, the Arranger and the relevant Bank
shall each be released from further obligations to
each other hereunder; and
27.6.4 such Transferee shall become a party hereto as a
"Bank".
27.7 Assignment and Transfer Fees
On the date upon which an assignment takes effect pursuant to
Clause 27.5 (Assignments by Banks) or a transfer takes effect
pursuant to Clause 27.6 (Transfers by Banks) the relevant
assignee or Transferee shall pay to the Agent for its own
account a fee of 1,000.
27.8 Disclosure of Information
Any Bank may disclose to any person:
27.8.1 to (or through) whom such Bank assigns or transfers
(or may potentially assign or transfer) all or any of
its rights, benefits and obligations hereunder;
27.8.2 with (or through) whom such Bank enters into (or may
potentially enter into) any sub-participation in
relation to, or any other transaction under which
payments are to be made by reference to, this
Agreement or any Obligor; or
27.8.3 to whom information may be required to be disclosed by
any applicable law,
such information about any Obligor or the Group and this
Agreement as such Bank shall consider appropriate provided
that the person to whom such information is disclosed shall
give a confidentiality undertaking in a form agreed between
the Company and the Agent.
27.9 Notification
The Agent shall within fourteen days after receiving a
Transfer Certificate notify the Borrowers and the other Banks
of any assignment or transfer completed pursuant to this
Clause 27.
28. ECONOMIC AND MONETARY UNION
28.1 Commencement
Clause 28.2 (Redenomination and Alternative Currencies) to
Clause 28.8 (Rounding and Other Consequential Changes)
(inclusive) shall come into effect on the Commencement Date
provided that, if and to the extent that any such
Clause relates to any state (or the currency of such state)
which shall not be a participating member state on the
Commencement Date, such Clause shall come into effect in
relation to such state (and the currency of such state) on
and from the date on which such state becomes a participating
member state.
28.2 Redenomination and Alternative Currencies
Each obligation under this Agreement which has been
denominated in a national currency unit shall be
redenominated into the euro unit in accordance with EMU
legislation. However, if and to the extent that any EMU
legislation provides that an amount (which is (a) denominated
either in the euro or in the national currency unit of a
participating member state and (b) payable within that
participating member state by crediting an account of the
creditor) can be paid by the debtor either in the euro unit
or in that national currency unit, each party to this
Agreement shall be entitled to pay or repay any such amount
either in the euro unit or in such national currency unit.
28.3 Advances
Any Advance in the currency of a participating member state
shall be made in the euro unit.
28.4 Business Days
In relation to any amount denominated or to be denominated in
the euro or a national currency unit, any reference to a
Business Day shall be construed as a reference to a day
(other than a Saturday or Sunday) on which commercial banks
are generally open for business in:
28.4.1 London and Chicago; and
28.4.2 the principal financial centre in such participating
member state as the Agent shall from time to time
nominate for this purpose.
28.5 Payments to the Agent
Clause 23.1 (Payments to the Agent) shall be construed so
that, in relation to the payment of any amount of euro units
or national currency units, such amount shall be made
available to the Agent in immediately available, freely
transferable, cleared funds to such account with such bank in
such principal financial centre in such participating member
state (or in London) as the Agent shall from time to time
nominate for this purpose.
28.6 Payments by the Agent to the Banks
Any amount payable by the Agent to the Banks under this
Agreement in the currency of a participating member state
shall be paid in the euro unit.
28.7 Payments System and the Agent
In relation to the payment of any amount denominated in the
euro or in a national currency unit, the Agent shall not be
liable to any Borrower or any of the Banks for any delay, or
the consequences of any delay, in the crediting to any
account of any amount required by this Agreement to be paid
by the Agent if the Agent shall have taken all relevant steps
to achieve, on the date required by this Agreement, the
payment of such amount in immediately available, freely
transferable, cleared funds (in the euro unit or, as the case
may be, in a national currency unit) to the account with the
bank in the principal financial centre in the participating
member state which any Borrower or, as the case may be, any
Bank shall have specified for such purpose. In this
Clause 28.7, "all relevant steps" means all such steps as may
be prescribed from time to time by the regulations or
operating procedures of such clearing or settlement system as
the Agent may from time to time reasonably determine for the
purpose of clearing or settling payments of the euro.
28.8 Rounding and Other Consequential Changes
Without prejudice and in addition to any method of conversion
or rounding prescribed by any EMU legislation:
28.8.1 each reference in this Agreement to a minimum amount
(or an integral multiple thereof) in a national
currency unit to be paid to or by the Agent shall be
replaced by a reference to such reasonably comparable
and convenient amount (or an integral multiple
thereof) in the euro unit as the Agent may from time
to time specify; and
28.8.2 save as expressly provided in this Clause 28, this
Agreement shall be subject to such reasonable changes
of construction as the Agent may from time to time
specify to be necessary or appropriate to reflect the
introduction of or changeover to the euro in
participating member states,
provided that this Clause shall not reduce or increase any
actual or contingent liability arising under this Agreement.
29. CALCULATIONS AND EVIDENCE OF DEBT
29.1 Basis of Accrual
Interest and commitment commission shall accrue from day to
day and shall be calculated on the basis of a year of
365 days (or, in any case where market practice differs, in
accordance with market practice) and the actual number of
days elapsed.
29.2 Quotations
If on any occasion a Reference Bank or Bank fails to supply
the Agent with a quotation required of it under the foregoing
provisions of this Agreement, the rate for which such
quotation was required shall be determined from those
quotations which are supplied to the Agent, provided that, in
relation to determining LIBOR, this Clause 29.2 shall not
apply if only one Reference Bank supplies a quotation.
29.3 Evidence of Debt
Each Bank shall maintain in accordance with its usual
practice accounts evidencing the amounts from time to time
lent by and owing to it hereunder.
29.4 Control Accounts
The Agent shall maintain on its books a control account or
accounts in which shall be recorded (a) the amount of any
Advance or Unpaid Sum and each Bank's share therein, (b) the
amount of all principal, interest and other sums due or to
become due from an Obligor and each Bank's share therein and
(c) the amount of any sum received or recovered by the Agent
hereunder and each Bank's share therein.
29.5 Prima Facie Evidence
In any legal action or proceeding arising out of or in
connection with this Agreement, the entries made in the
accounts maintained pursuant to Clause 29.3 (Evidence of
Debt) and Clause 29.4 (Control Accounts) shall be prima facie
evidence of the existence and amounts of the specified
obligations of the Obligors.
29.6 Certificates of Banks
A certificate of a Bank as to (a) the amount by which a sum
payable to it hereunder is to be increased under Clause 9.1
(Tax Gross-up), (b) the amount for the time being required to
indemnify it against any such cost, payment or liability as
is mentioned in Clause 9.2 (Tax Indemnity) or Clause 11.1
(Increased Costs) or (c) the amount of any credit, relief,
remission or repayment as is mentioned in Clause 10.3 (Tax
Credit Payment) or Clause 10.4 (Tax Credit Clawback) shall,
in the absence of manifest error, be prima facie evidence of
the existence and amounts of the specified obligations of the
Obligors.
29.7 Agent's Certificates
A certificate of the Agent as to the amount at any time due
from the Borrower hereunder or the amount which, but for any
of the obligations of the Borrowers hereunder being or
becoming void, voidable, unenforceable or ineffective, at any
time would have been due from the Borrowers hereunder shall,
in the absence of manifest error, be conclusive for the
purposes of Clause 17 (Guarantee and Indemnity).
30. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
30.1 Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the
part of any Finance Party any right or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial
exercise of any right or remedy prevent any further or other
exercise thereof or the exercise of any other right or
remedy. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies
provided by law.
30.2 Partial Invalidity
If, at any time, any provision hereof is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or
enforceability of the remaining provisions hereof nor the
legality, validity or enforceability of such provision under
the law of any other jurisdiction shall in any way be
affected or impaired thereby.
31. NOTICES
31.1 Communications in Writing
Each communication to be made hereunder shall be made in
writing and, unless otherwise stated, shall be made by fax or
letter.
31.2 Addresses
Any communication or document to be made or delivered
pursuant to this Agreement shall (unless the recipient of
such communication or document has, by fifteen days' written
notice to the Agent, specified another address or fax number)
be made or delivered to the address or fax number:
31.2.1 in the case of the Obligors and the Agent, identified
with its name below; and
31.2.2 in the case of each Bank, notified in writing to the
Agent prior to the date hereof (or, in the case of a
Transferee, at the end of the Transfer Certificate to
which it is a party as Transferee),
provided that not more than one address may be specified by
each party pursuant to this Clause 31.2 at any time.
31.3 Delivery
Any communication or document to be made or delivered by one
person to another pursuant to this Agreement shall:
31.3.1 if by way of fax, be deemed to have been received when
a transmission report which confirms that the
transmission was successfully completed has been
printed; and
31.3.2 if by way of letter, be deemed to have been delivered
when left at the relevant address or, as the case may
be, ten days after being deposited in the post postage
prepaid in an envelope addressed to it at such
address,
provided that any communication or document to be made or
delivered to the Agent shall be effective only when received
by its agency department and then only if the same is
expressly marked for the attention of the department or
officer identified with the Agent's signature below (or such
other department or officer as the Agent shall from time to
time specify for this purpose).
31.4 Notification of Changes
Promptly upon receipt of notification of a change of address
or fax number pursuant to Clause 31.2 (Addresses) or changing
its own address or fax number, the Agent shall notify the
other parties hereto of such change.
31.5 English Language
Each communication and document made or delivered by one
party to another pursuant to this Agreement shall be in the
English language or accompanied by a translation thereof into
English certified (by an officer of the person making or
delivering the same) as being a true and accurate translation
thereof.
32. COUNTERPARTS
This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same
instrument.
33. AMENDMENTS
33.1 Amendments
If the Agent has the prior consent of an Instructing Group,
the Agent and the Obligors may from time to time agree in
writing to amend this Agreement or to waive, prospectively or
retrospectively, any of the requirements of this Agreement
and any amendments or waivers so agreed shall be binding on
all the Finance Parties and the Obligors, provided that no
such waiver or amendment shall subject any party hereto to
any new or additional obligations without the consent of such
party.
33.2 Amendments Requiring the Consent of all the Banks
An amendment or waiver which relates to:
33.2.1 Clause 25 (Sharing) or this Clause 33;
33.2.2 reducing the proportion of any amount received or
recovered in respect of any amount due from the
Borrowers hereunder to which any Bank is entitled;
33.2.3 a change in the principal amount of or currency of any
Advance, or extending the term of the Facility or the
Term of any Advance;
33.2.4 a change in the Margin, the amount or currency of any
payment of interest, fees or any other amount payable
hereunder to any Finance Party or deferral of the date
for payment thereof;
33.2.5 the conditions set out in sub-clause 3.3.3 of
Clause 3.3 (Drawdown Conditions) if an Event of
Default or Potential Event of Default which relates to
a Repeated Representation is continuing;
33.2.6 the definition of "Event of Default", "Instructing
Group" or "Potential Event of Default"; or
33.2.7 any provision which contemplates the need for the
consent or approval of all the Banks,
shall not be made without the prior consent of all the
Banks.
33.3 Exceptions
Notwithstanding any other provisions hereof, the Agent shall
not be obliged to agree to any such amendment or waiver if
the same would:
33.3.1 amend or waive this Clause 33, Clause 19 (Costs and
Expenses) or Clause 26 (The Agent, the Arranger and
the Banks); or
33.3.2 otherwise amend or waive any of the Agent's rights
hereunder or subject the Agent or the Arranger to any
additional obligations hereunder.
34. ADDITIONAL BORROWERS
34.1 Designation of Additional Borrowers
The Company may, with the prior written consent of the Agent
(after consultation with the Banks), which consent shall not
be unreasonably withheld or delayed, at any time designate
another member of the Group as an Additional Borrower.
34.2 Accession of Additional Borrower
Such designation shall take effect and the member of the
Group so designated shall become an Additional Borrower on
the date the Agent receives in form and substance reasonably
satisfactory to it:
34.2.1 a Deed of Accession signed by each party to it other
than the Agent;
34.2.2 each of the documents referred to in Clause 4
(Conditions Precedent) of the Deed of Accession; and
34.2.3 such information relating to the member of the Group
to become a party to this Agreement in the capacity of
"Borrower" as the Agent may reasonably require.
35. GOVERNING LAW
This Agreement shall be governed by, and construed in
accordance with, English law.
36. JURISDICTION
36.1 English Courts
Each of the parties hereto irrevocably agrees for the benefit
of the Finance Parties that the courts of England shall have
non-exclusive jurisdiction to hear and determine any suit,
action or proceedings, and to settle any disputes, which may
arise out of or in connection with this Agreement
(respectively "Proceedings" and "Disputes") and, for such
purposes, irrevocably submits to the jurisdiction of such
courts.
36.2 New York Courts
Each of the parties hereto irrevocably agrees that the courts
of the State of New York and the courts of the United States
of America, in each case sitting in the county of New York,
shall have non-exclusive jurisdiction to hear and determine
any Proceedings and to settle any Disputes and, for such
purposes, irrevocably submits to the jurisdiction of such
courts.
36.3 Convenient Forum
The parties agree that the courts of England and the State of
New York are the most appropriate and convenient courts to
determine any proceedings and to settle Disputes between them
and, accordingly, that they will not argue to the contrary.
36.4 Non-Exclusive Jurisdiction
This Clause 36 is for the benefit of the Finance Parties
only. As a result and notwithstanding Clauses 36.1 (English
Courts) and 36.2 (New York Courts), it does not prevent any
Finance Party from taking Proceedings in any other courts
with jurisdiction. To the extent allowed by law, the Finance
Parties may take concurrent Proceedings in any number of
jurisdictions.
36.5 Service of Process
Each Obligor agrees that the documents which start any
Proceedings and any other documents required to be served in
relation to those Proceedings may be served on it:
36.5.1 in connection with any Proceedings in England on HCEL
at the address identified with its name below; and
36.5.2 in connection with any Proceedings in New York on CT
Corp. at 0000 Xx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000.
HCEL unconditionally accepts such appointment. If the
appointment of either of the persons mentioned in this
Clause 36.5 ceases to be effective, each of the Obligors
shall immediately appoint a further person in England or, as
the case may be, New York and, failing such appointment
within fifteen days, the Agent shall be entitled to appoint a
person by notice to each of the Obligors. Nothing contained
herein shall affect the right to serve process in any manner
permitted by law.
36.6 Waiver of Jury Trial
EACH OF THE PARTIES TO THIS AGREEMENT AGREES TO WAIVE
IRREVOCABLY ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE DOCUMENTS
REFERRED TO HEREIN OR ANY TRANSACTION CONTEMPLATED HEREIN.
This waiver is intended to apply to all Disputes. Each party
acknowledges that (a) this waiver is a material inducement to
enter into this Agreement, (b) it has already relied on this
waiver in entering into this Agreement and (c) it will
continue to rely on this waiver in future dealings. Each
party hereto represents that it has reviewed this waiver with
its legal advisers and that it knowingly and voluntarily
waives its jury trial rights after consultation with its
legal advisers. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.
AS WITNESS the hands of the duly authorised representatives of the
parties hereto the day and year first before written.
SCHEDULE 1
THE BANKS
Bank Commitment
Banca Nazionale del Lavoro S.p.A., London Branch 7,500,000
The Governor and Company of the Bank of Scotland 7,500,000
The Chase Manhattan Bank 7,500,000
Lloyds Bank Plc 7,500,000
Midland Bank plc 7,500,000
State Street Bank and Trust Company 7,500,000
-----------
45,000,000
SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To: Chase Manhattan International Limited
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied,
novated or supplemented, the "Facility Agreement") dated 18 December
1998 whereby a 45,000,000 revolving credit facility was made available
to Xxxxxx Chemical Europe Ltd, NAMSCO (UK) Ltd and Salt Union Limited
as original borrowers under the guarantee of IMC Global Inc. and IMC
Inorganic Chemicals Inc. by a group of banks on whose behalf Chase
Manhattan International Limited acted as agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any
contrary indication, have the same meanings herein. The terms
Bank and Transferee are defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule hereto
under the heading "Bank's Commitment" or "Advance(s)"
accurately summarises its Commitment and/or, as the case may
be, its participation in, and the Term and Repayment Date of,
one or more existing Advances and (ii) requests the Transferee
to accept and procure the transfer by novation to the
Transferee of the portion specified in the schedule hereto of,
as the case may be, its Commitment and/or its participation in
such Advance(s) by counter-signing and delivering this Transfer
Certificate to the Agent at its address for the service of
notices specified in the Facility Agreement.
3. The Transferee hereby requests the Agent to accept this
Transfer Certificate as being delivered to the Agent pursuant
to and for the purposes of Clause 27.6 (Transfers by Banks) of
the Facility Agreement so as to take effect in accordance with
the terms thereof on the Transfer Date or on such later date as
may be determined in accordance with the terms thereof.
4. The Transferee confirms that it has received a copy of the
Facility Agreement together with such other information as it
has required in connection with this transaction and that it
has not relied and will not hereafter rely on the Bank to check
or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such
information and further agrees that it has not relied and will
not rely on the Bank to assess or keep under review on its
behalf the financial condition, creditworthiness, condition,
affairs, status or nature of the Obligors.
5. The Transferee hereby undertakes with the Bank and each of the
other parties to the Facility Agreement that it will perform in
accordance with their terms all those obligations which by the
terms of the Facility Agreement will be assumed by it after
delivery of this Transfer Certificate to the Agent and
satisfaction of the conditions (if any) subject to which this
Transfer Certificate is expressed to take effect.
6. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity,
effectiveness, adequacy or enforceability of the Facility
Agreement or any document relating thereto and assumes no
responsibility for the financial condition of the Obligors or
for the performance and observance by the Obligors of any of
its obligations under the Facility Agreement or any document
relating thereto and any and all such conditions and
warranties, whether express or implied by law or otherwise, are
hereby excluded.
7. The Bank hereby gives notice that nothing herein or in the
Facility Agreement (or any document relating thereto) shall
oblige the Bank to (a) accept a re-transfer from the Transferee
of the whole or any part of its rights, benefits and/or
obligations under the Facility Agreement transferred pursuant
hereto or (b) support any losses directly or indirectly
sustained or incurred by the Transferee for any reason
whatsoever including the non-performance by an Obligor or any
other party to the Facility Agreement (or any document relating
thereto) of its obligations under any such document. The
Transferee hereby acknowledges the absence of any such
obligation as is referred to in (a) or (b) above.
8. This Transfer Certificate and the rights, benefits and
obligations of the parties hereunder shall be governed by and
construed in accordance with English law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Commitment:
Bank's Commitment Portion Transferred
5. Advance(s):
Amount of Term and
Bank's Participation Repayment Date Portion
Transferred
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments
in sterling:
Fax:
Telephone:
SCHEDULE 3
CONDITIONS PRECEDENT
1. Duly executed copies of this Agreement and the Subordination
Deed.
2. In relation to each Obligor:
(a) a copy, certified as at the date of this Agreement a
true and up-to-date copy by an Authorised Signatory
of such Obligor, of the constitutional documents of
such Obligor;
(b) copy, certified as at the date of this Agreement a
true and up-to-date copy by an Authorised Signatory
of such Obligor, of an extract of a board resolution
of such Obligor approving the execution, delivery and
performance of this Agreement and the terms and
conditions hereof and authorising a named person or
persons to sign this Agreement and any documents to
be delivered by such Obligor pursuant hereto;
(c) a certificate of an Authorised Signatory of such
Obligor setting out the names and signatures of the
persons authorised to sign, on behalf of such
Obligor, this Agreement and any documents to be
delivered by such Obligor pursuant hereto; and
(d) a certificate of an Authorised Signatory of such
Obligor confirming that utilisation of the Facility
would not breach any restriction on its borrowing
powers.
3. A copy, certified as at the date of this Agreement a true
and up-to-date copy by an Authorised Signatory of such
Obligor, of each of the most recent Form 10-K, Form 10-Q and
Form 8-K (or their equivalents) lodged by an Obligor with
the Securities Exchange Commission.
4. A copy, certified as at the date of this Agreement a true
and complete copy, of the Deed of Release dated on or about
the date of this Agreement between HCEL and the Bank of
Scotland.
5. Certificate from an Authorised Signatory of the Company
confirming that the guarantee granted by it under Clause 17
(Guarantee and Indemnity) is within the limit on guarantees
in respect of UK operations stipulated in the resolutions
referred to in paragraph 2(b) above.
6. An opinion of the General Counsel of the Company
satisfactory in form and substance to the Agent.
7. An opinion of the Obligors' US Counsel satisfactory in form
and substance to the Agent.
8. An opinion of the Banks' US Counsel satisfactory in form and
substance to the Agent.
9. An opinion of Xxxxxxxx Chance, solicitors to the Arranger.
10. Evidence that CT Corp has agreed to act as the agent of the
Obligors for the service of process in New York.
SCHEDULE 4
NOTICE OF DRAWDOWN
From: [Borrower]
To: Chase Manhattan International Limited
Dated:
Dear Sirs,
1. We refer to the agreement (the "Facility Agreement") dated
18 December 1998 and made between Xxxxxx Chemical Europe
Ltd, NAMSCO (UK) Ltd and Salt Union Limited as original
borrowers, IMC Global Inc and IMC Inorganic Chemicals Inc.
as guarantors, Chase Manhattan International Limited as
agent and the financial institutions named therein as
banks. Terms defined in the Facility Agreement shall have
the same meaning in this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Facility
Agreement and upon the terms and subject to the conditions
contained therein, we wish an Advance to be made to us as
follows:
4. Amount:
(a) Drawdown Date:
(b) Term:
5. We confirm that, at the date hereof, the Repeated
Representations are true in all material respects and no
Event of Default [or Potential Event of Default]( ) is
continuing.
6. The proceeds of this drawdown should be credited to
[insert account details].
Yours faithfully
------------------------
Authorised Signatory
for and on behalf of
[Name of Borrower]
SCHEDULE 5
DETERMINATION OF MARGIN AND COMMITMENT COMMISSION
1. The Margin and Commitment Commission for a period will be the
applicable percentage rate per annum set out in the table below.
Margin Commitment Commission
Credit Rating (% per annum) (% per annum)
Level 1 0.60 0.30
Level II 0.65 0.30
Level III 1.00 0.45
Level IV 1.50 0.75
2. The credit ratings to be used for the purposes of this Schedule
are those assigned to the senior unsecured long-term debt
securities of the Company excluding any credit enhancement
provided by any person other than a member of the Group. Any
rating assigned to any other debt security of the Company shall
be disregarded.
3. The credit rating on any day is the credit rating in effect at
the close of business on that day.
4. If on any calculation date the Company has split ratings and the
ratings differential is more than one increment, the median
rating (or if none, the higher of the intermediate ratings)
shall apply.
5. For the purposes of this Schedule:
(a) "Level I Status" exists at any date if the Company long
term debt is rated BBB+ or higher by S&P or Baa1 or better
by Moody's;
(b) "Level II Status" exists at any date if:
(i) the Company long term debt is rated BBB or higher by
S&P or Baa2 or better by Moody's; and
(ii) Level I Status does not exist;
(c) "Level III Status" exists at any date if:
(i) IMC Global Inc. long term debt is rated BBB- or
higher by S&P or Baa3 or better by Moody's; and
(ii) neither Level I Status nor Level II Status exists;
(d) "Level IV Status" exists at any date if no other status
exists;
(e) "Moody's" means Xxxxx'x Investor Services, Inc.; and
(f) "S&P" means Standard and Poor's Rating Services, a
division of The XxXxxx-Xxxx Companies, Inc.
SCHEDULE 6
DEED OF ACCESSION
THIS DEED is made on [*]
BETWEEN
(1) [*] (the "Additional Borrower");
(2) IMC GLOBAL INC. and IMC INORGANIC CHEMICALS INC. (each, a
"Guarantor") on their own behalf and on behalf of each
Borrower; and
(3) CHASE MANHATTAN INTERNATIONAL LIMITED in its capacity as
agent under the Facility Agreement (the "Agent").
WHEREAS
(A) This Deed is supplemental to an agreement (the "Facility
Agreement") dated 18 December 1998 between HCEL, NAMSCO (UK)
Ltd and Salt Union Limited as Original Borrowers, IMC Global
Inc. and IMC Inorganic Chemicals Inc. as Guarantors, Chase
Manhattan International Limited as Agent, Chase Manhattan plc
as Arranger and Banks referred to therein.
(B) The Additional Borrower wishes to become a party to the
Facility Agreement in the capacity of Borrower.
NOW THIS DEED WITNESSES:
1. Definitions
Definitions in the Facility Agreement apply in this Deed
unless the context requires otherwise.
2. Interpretation
This Deed and the Facility Agreement shall be read and
construed as one document and references in the Facility
Agreement to the Facility Agreement (however expressed) shall
be read and construed as references to the Facility Agreement
this Deed together.
3. Accession of Additional Borrower
In consideration of the Banks through the Agent agreeing to
the Additional Borrower becoming an Additional Borrower under
Clause 34 (Additional Borrowers) of the Facility Agreement,
the Additional Borrower agrees to observe and be bound by the
terms and provisions of the Facility Agreement to the extent
that they apply to the Borrower as if it were an original
party to the Facility Agreement.
4. Conditions Precedent
The obligations of the Agent and each Bank under this Deed
are subject to the condition precedent that the Agent has
received the following documents in form and substance
satisfactory to it:
4.1 a copy, certified by a director of the Additional Borrower as
being a true, complete and up-to-date, of the certificate of
incorporation and constituent documents of the Additional
Borrower;
4.2 a certificate of a director of the Additional Borrower which:
4.2.1 attaches an extract of the minutes of a meeting of
the directors of the Additional Borrower which
authorise (a) the execution, delivery and
performance on behalf of the Additional Borrower of
this Deed, (b) named persons to execute this Deed on
behalf of the Additional Borrower and to give any
notices or certificates required in connection with
it and which certifies that such minutes are a true
and complete copy and that such resolutions have not
been varied or rescinded;
4.2.2 a copy, certified to be a true copy, of the
signature of each Authorised Signatory of the
Additional Borrower;
4.2.3 a certificate of a director of the Additional
Borrower confirming that the aggregate of the
borrowings of the Additional Borrower do not or, as
the case may be, would not if fully drawn, exceed
any borrowing limit contained in the Additional
Borrower's constitutional documents or in any trust
deed or other agreement or instrument to which the
Additional Borrower is a party;
4.2.4 an English law legal opinion in a form satisfactory
to the Agent (together with a legal opinion (in a
form satisfactory to the Agent) from the
jurisdiction of incorporation of the Additional
Borrower (if the Additional Borrower is not
established in England)); and
4.2.5 [*Insert any other conditions precedent as Agent may
reasonably require*]
5. Representations
The Additional Borrower makes each of the Repeated
Representations made by the Obligors (other than the Company)
in respect of itself only and the representation set out in
Clause 14.14 (Claims Pari Passu).
6. Confirmation of Guarantee
Each Guarantor confirms that its obligations and the rights,
powers and remedies conferred upon the Agent and the Banks
under Clause 17 (Guarantee and Indemnity) of the Facility
Agreement shall not be discharged, impaired or otherwise be
affected by this Deed.
7. Notices
The Additional Borrower's address for notices is identified
beneath its name below.
8. Governing Law
This Deed shall be governed by and construed in accordance
with English law.
-------------------------------------------------
*Insert provisions to deal with process agent and jurisdiction
clause if Additional Borrower is a foreign company.
IN WITNESS whereof this Deed has been duly executed on the day and year
first above written.
Additional Borrower
[Name of Additional Borrower]
By:
Address: [*]
Fax: [*]
Attention: [*]
Guarantors
IMC GLOBAL INC.
By:
IMC INORGANIC CHEMICALS INC.
By:
Agent
CHASE MANHATTAN INTERNATIONAL LIMITED
By:
SIGNATURES
The Original Borrowers
XXXXXX CHEMICAL EUROPE LTD
By: Xxxxx Xxxxxx
Address: 0 Xxxxx Xxxxx, Xxxxx Xxxx Road
Xxxxx Xxxx
Xxxxxxx
Xxxxxxxx XX0 0XX
Fax: 00000 000 000
NAMSCO (UK) LTD
By: Xxxxx Xxxxxx
Address: 0 Xxxxx Xxxxx, Xxxxx Xxxx Road
Xxxxx Xxxx
Xxxxxxx
Xxxxxxxx XX0 0XX
Fax: 00000 000 000
SALT UNION LIMITED
By: Xxxxx Xxxxxx
Address: 0 Xxxxx Xxxxx, Xxxxx Xxxx Road
Xxxxx Xxxx
Xxxxxxx
Xxxxxxxx XX0 0XX
Fax: 00000 000 000
The Guarantors
IMC GLOBAL INC.
By: E. Xxxx Xxxx, Jr
Address: 0000 Xxxxxxx Xxxx
Xxxxxxxxxx
Xxxxxxxx 00000
XXX
Fax: 0 000 000 0000
IMC INORGANIC CHEMICALS INC.
By: E. Xxxx Xxxx, Jr
Address: 0000 Xxxxxxx Xxxx
Xxxxxxxxxx
Xxxxxxxx 00000
XXX
Fax: 0 000 000 0000
The Arranger
CHASE MANHATTAN plc
By: Xxxxxxxx XXXXXX
The Agent
CHASE MANHATTAN INTERNATIONAL LIMITED
By: Xxxxxxx Xxxxxx
Address: 000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Fax: 0000 000 0000
Attention: Loan Agency
The Banks
BANCA NAZIONALE DEL LAVORO S.p.A.,
LONDON BRANCH
By: Xxxx Xxxxxxx
Xxxxxx Xxxxxxx
THE GOVERNOR AND COMPANY OF
THE BANK OF SCOTLAND
By: Xxxxx Xxxxxxxxx
THE CHASE MANHATTAN BANK
By: Xxxxxxx Xxxxxx
LLOYDS BANK PLC
By: Xxxxx Xxxxxxxx
MIDLAND BANK plc
By: Xxxx Xxxxxxx
STATE STREET BANK AND TRUST COMPANY
By: Xxxxxxx X. Xxxxx III
