OCTEL CORP.
AS PARENT
OCTEL ASSOCIATES
AND
THE COMPANIES NAMED HEREIN
AS BORROWERS AND/OR GUARANTORS
BARCLAYS CAPITAL
AS ARRANGER
THE BANKS NAMED HEREIN
AS ORIGINAL BANKS
BARCLAYS BANK PLC
AS FACILITY AGENT
AND SECURITY AGENT
AND
OTHERS
------------------------------------------------------------
$100,000,000 TERM LOAN AGREEMENT
------------------------------------------------------------
XXXXXXXX CHANCE
CONTENTS
Clause Page
1. Interpretation.............................................................1
2. The Facilities............................................................24
3. Participation Of Banks....................................................25
4. Conditions Precedent......................................................26
5. Borrowers Under The Facilities............................................27
6. Utilisation Procedures....................................................29
7. Interest..................................................................30
8. Selection Of Interest Periods.............................................31
9. Market Disruption.........................................................31
10. Repayment Of Advances.....................................................32
11. Prepayment And Cancellation...............................................33
12. Payments..................................................................35
13. Taxes.....................................................................36
14. Change In Circumstances...................................................38
15. Fees, Expenses And Stamp Duties...........................................40
16. Guarantee And Additional Guarantors.......................................42
17. Security And Releases.....................................................44
18. Representations And Warranties............................................45
19. Undertakings..............................................................55
20. Events Of Default.........................................................77
21. The Agents And The Other Finance Parties..................................83
22. Certificates Conclusive And Application Of Moneys.........................89
23. Pro Rata Payments.........................................................89
24. Set-Off...................................................................91
25. Notices...................................................................91
26. No Implied Waivers........................................................92
27. Invalidity Of Any Provision...............................................92
28. Confidentiality...........................................................93
29. Changes To Parties........................................................93
30. Banks' Decisions..........................................................95
31. Indemnities...............................................................97
32. Miscellaneous.............................................................98
33. Governing Law And Submission To Jurisdiction .............................98
34. Counterparts .............................................................98
Schedule 1 The Original Banks ................................................99
Schedule 2 ..................................................................100
Part A Borrowers And/Or Guarantors ......................................100
Part B The Security Documents ...........................................101
Schedule 3 Documentary Conditions Precedent .................................102
Schedule 4 Form Of Utilisation Request ......................................104
Schedule 5 Mandatory Costs Rate .............................................105
Schedule 6 Substitution Certificate .........................................107
Schedule 7 ..................................................................111
Part A Formalities Certificate (Octel Associates) .......................111
Part B Formalities Certificate (Us Obligors) ............................113
Part C Formalities Certificate (Others) .................................115
Schedule 8 Guarantee Provisions .............................................117
Schedule 9 Accession Document ...............................................120
Schedule 10 Form Of Confidentiality Undertaking .............................123
Schedule 11 Form Of Syndication Agreement ...................................126
THIS FACILITY AGREEMENT is made on 3 June 1999
BETWEEN:
(1) OCTEL CORP., a corporation organised under the laws of the State of
Delaware, USA (the "Parent");
(2) OCTEL TRADING LIMITED (formerly Hamsard One Thousand and Seventy Five
Limited) (a company incorporated in England with registered number 3516648)
("Octel Trading") and OCTEL RESOURCES LIMITED (formerly Hamsard One
Thousand and Thirty Three Limited) (a company incorporated in England with
registered number 3316334) ("Octel Resources") (each a "Partner" and
together the "Partners") in their capacity as partners of a partnership
trading in the United Kingdom under the name of Octel Associates, whose
address is Xxxx 0, Xxxxxx Xxxxx, Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx Xxxxxx,
Xxxxxx X0;
(3) OCTEL ASSOCIATES and THE COMPANIES named in Part A of Schedule 2 as
Borrowers and/or Guarantors;
(4) BARCLAYS CAPITAL as arranger (the "Arranger");
(5) THE BANKS AND FINANCIAL INSTITUTIONS named in Schedule 1 as original banks
(the "Original Banks");
(6) BARCLAYS BANK PLC as facility agent (the "Facility Agent"); and
(7) BARCLAYS BANK PLC as security agent under the April 1998 Agreement (the
"Security Agent").
NOW IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement, unless the context otherwise requires, the following
expressions have the following meanings:
"Accession Document" means an agreement substantially in the form set out in
Schedule 9 pursuant to which a Group Company becomes a Borrower and/or a
Guarantor under this Agreement.
"Accounting Quarter" means each three month period ending on the last day of
March, June, September and December in each Financial Year of the Parent.
"Acquisition" bears the meaning given to it in the Bridge Facility
Agreement.
"Advance" means a Tranche A Advance or a Tranche B Advance.
"Affiliated Bank" means:
(a) an institution which is, in relation to a Bank, its Subsidiary or its
Holding Company or another Subsidiary of any such Holding Company; and
-1-
(b) whether or not within paragraph (a) above, with respect to any person,
any other person (an "Affiliate") directly or indirectly controlling,
controlled by, or under direct or indirect common control with, that
person. A person shall be deemed to control another person if that
person possesses, directly or indirectly, the power to direct or cause
the direction of the management and policies of that other person,
whether through the ownership of voting securities, by contract or
otherwise.
"Agents" means the Facility Agent and the Security Agent and "Agent" means
either one of them.
"Agency Fee Letter" means the letter from the Facility Agent to the
Obligors' Agent dated 24 May 1999 setting out the amount of the agency fees
payable under Clause 15.2 (Agency Fees).
"Agreed Financial Projections" means the financial projections and forecasts
for the Business in the agreed form.
"April 1998 Agreed Financial Projections" means the financial projections
and forecast for the Business in the agreed form provided in connection with
the April 1998 Facility.
"AOC" means The Associated Octel Company Limited (a company incorporated in
England with registered number 344359).
"AOC (Plant)" means Associated Octel Company (Plant) Limited (a company
incorporated in England with registered number 873396).
"Approved Accounting Principles" means those accounting principles,
standards and practices which were used in the Latest Accounts.
"Approved Bank" means any bank and/or financial institution which has been
approved by the Facility Agent for the purposes of this definition.
"April 1998 Agreement" means the $280,000,000 term loan and $20,000,000
revolving credit facilities agreement dated 27 April 1998 made between Octel
Corp. as parent, Octel Associates and others as borrowers and/or guarantors,
Xxxxxxx Sachs International and Barclays Capital as joint arrangers and
joint syndication agents, Barclays Bank PLC as provider of the Barclays
facilities and Barclays Bank PLC as facility agent and security agent.
"April 1998 Facilities" means the facilities provided under the April 1998
Agreement.
"April 1998 Tranche A Facility" means the term loan facility provided under
the April 1998 Agreement.
"Arrangement Fees Letter" means the letter from the Arranger to the
Obligors' Agent dated 24 May 1999 setting out the amount of the arrangement
fees payable under Clause 15.3 (Arrangement Fees).
-2-
"Auditors" means Ernst & Young or such other firm of accountants as may be
appointed in accordance with sub-clause 19.6.3.
"Available Amount" means, in respect of any Accounting Quarter (the "current
Account Quarter"), an amount equal to 50 per cent. of the aggregate amount
of Surplus Cash Flow for each Accounting Quarter comprised in the
Calculation Period relating to the current Accounting Quarter (provided that
the amount of such Surplus Cash Flow shall (to the extent such amounts are
included in Surplus Cash Flow) be reduced by the aggregate of all amounts
which have been applied or are required to be applied in prepayment of the
April 1998 Facilities in accordance with Clauses 14.1 (Voluntary Prepayments
of Tranche A Facility) to 14.6 (Insurance) (inclusive) of the April 1998
Agreement during that Calculation Period) less:
(a) the total cost of all acquisitions made in that Calculation Period in
accordance with sub-clause 19.3.14(vi) (which for this purpose shall
be the aggregate of the amounts specified in sub-clause 19.3.14(vi)
(1) and (2) thereof in respect of the relevant acquisitions);
(b) the total cost of all Permitted Investments made in that Calculation
Period (which for this purpose shall be the aggregate of the amounts
specified in paragraph (b) of the definition of "Permitted Investment"
in this Clause 1.1 in respect of the relevant Permitted Investments);
(c) the total amount applied in that Calculation Period in the making of
Permitted Payments referred to in sub-clause 19.4.6(c)(v) of the
definition of that term in sub-clause 19.4.6; and
(d) the aggregate amount of dividends paid (directly or indirectly) by the
Parent during that Calculation Period and the aggregate amount of the
consideration for the purchase by the Parent (directly or indirectly)
of stock issued by the Parent paid during that Calculation Period, to
the extent that the aggregate of all such amounts exceeds in respect
of any Calculation Period, US$15,000,000.
"Bank" means:
(a) when designated "Tranche A", an Original Bank identified in Schedule 1
as participating in the Tranche A Facility; or
(b) when designated "Tranche B", an Original Bank identified in Schedule 1
as participating in the Tranche B Facility,
and, in each case, any Transferee to whom rights and/or obligations are
assigned or transferred in accordance with Clause 29 (Changes to Parties)
(until, in each case, its entire participation in the Facilities has been
assigned or transferred to a Transferee in accordance with Clause 29
(Changes to Parties)) (collectively, the "Banks").
"Barclays Facilities" means the credit facilities made available by Barclays
Bank PLC to AOC pursuant to the Barclays Facility Letter.
-3-
"Barclays Facility Letter" means the facility letter entered into on or
before the date of this Agreement in the agreed form between Barclays Bank
PLC and AOC in respect of bonding, guarantee and indemnity and letter of
credit facilities.
"Bidco" means OBOAdler Company Limited incorporated in England and Wales.
"Borrowers" means:
(a) AOC; and
(b) each Subsidiary of Octel Associates which becomes a borrower hereunder
pursuant to Clause 5 (Borrowers under the Facilities) by executing an
Accession Document,
and "Borrower" means any one of them.
"Bridge Facility Agreement" means the $90,000,000 term loan agreement of
even date herewith between, inter alia, Barclays Capital and Bidco.
"Business" means the petroleum additives, petroleum specialities,
performance chemicals and related businesses carried on by the Borrower and
other members of the Group.
"Business Day" means a day (other than a Saturday or a Sunday) which is not
a public holiday and on which banks are open for general business in London
and, if on that day a payment is required to be made, in New York City also.
"Calculation Period" means in relation to any Accounting Quarter, the period
comprising the four Accounting Quarters immediately preceding that
Accounting Quarter.
"Capital Expenditure" means expenditure which should be treated as capital
expenditure in the audited consolidated accounts of the Group in accordance
with the Approved Accounting Principles.
"Capital Stock" of any person means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such person, including any
Preferred Stock, but excluding any debt securities convertible into such
equity.
"Cash Equivalents" means:
(a) marketable direct obligations issued by, or unconditionally guaranteed
by, the United Kingdom Government or issued by any agency thereof and
backed by the full faith and credit of the United Kingdom, in each
case maturing within one year from the date of acquisition thereof;
(b) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having a rating of
at least A-1 from S&P or at least P-1 from Xxxxx'x;
-4-
(c) certificates of deposit or bankers' acceptances maturing within one
year from the date of acquisition thereof issued by any bank having a
rating of at least A-1 from S&P or at least P-1 from Xxxxx'x;
(d) any investments in direct obligations of the United States government
(or any agency thereof) or in obligations fully and unconditionally
guaranteed by the United States government (or any agency thereof), in
each case maturing within one year from the date of acquisition
thereof; and
(e) investments in money market funds which invest substantially all their
assets in securities of the types described in paragraphs (a) to (d)
above.
"Cashflow" has the meaning given to it in Clause 19.9 (Financial
Definitions).
"Change of Control" means the occurrence of any of the following events:
(a) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that, for the
purposes of this paragraph (a), such person shall be deemed to have
"beneficial ownership" of all shares that any such person has the
right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than
40 per cent. of the total voting power of the Voting Stock of the
Parent;
(b) individuals who on the date of this Agreement constitute the Board of
Directors of the Parent (together with any new directors whose
election by the Board of Directors of the Parent or whose nomination
for election by the shareholders of the Parent was approved by a vote
of 66 2/3 per cent. of the directors of the Parent then still in
office who were either directors on the date of this Agreement or
whose election or nomination for election was previously so approved),
cease for any reason to constitute a majority of the Board of
Directors of the Parent then in office;
(c) the merger or consolidation of the Parent with or into another person
or the merger of another person with or into the Parent and, in the
case of any such merger or consolidation, the securities of the Parent
that are outstanding immediately prior to such transaction and which
represent 100 per cent. of the aggregate voting power of the Voting
Stock of the Parent are changed into or exchanged for cash, securities
or property, unless pursuant to such transaction such securities are
changed into or exchanged for, in addition to any other consideration,
securities of the surviving corporation that represent immediately
after such transaction, at least a majority of the aggregate voting
power of the Voting Stock of the surviving corporation; or
(d) any change of control (or similar event, however designated) with
respect to the Parent under and as defined in any indenture or
agreement relating to Financial Indebtedness to which any Group
Company is a party.
"Commitment" means:
-5-
(a) when designated "Tranche A", in relation to an Original Bank and the
Tranche A Facility, the amount set opposite its name in Schedule 1 in
relation to the Tranche A Facility and, in relation to any other Bank,
the amount or the total amount of the Tranche A Commitments
transferred to it under a Substitution Certificate or Substitution
Certificates or other document pursuant to which it becomes party to,
or acquires rights and obligations under, this Agreement; and
(b) when designated "Tranche B", in relation to an Original Bank and the
Tranche B Facility, the amount set opposite its name in Schedule 1 in
relation to the Tranche B Facility and, in relation to any other Bank,
the amount or the total amount of the Tranche B Commitments
transferred to it under a Substitution Certificate or Substitution
Certificates or other document pursuant to which it becomes party to,
or acquires rights and obligations under, this Agreement,
less, in any such case:
(i) that part thereof transferred by it in accordance with Clause 29
(Changes to Parties); and
(ii) that part thereof which has been cancelled, reduced or terminated in
accordance with this Agreement,
and without any such designation means "Tranche A Commitment" and/or
"Tranche B Commitment", as the context requires.
"Computer System" means any computer hardware or software or any equipment
operated by electronic means.
"Conditional Sale Agreement" bears the meaning given to it in the Bridge
Facility Agreement.
"Constitutional Documents" means, in relation to Octel Associates, the
Partnership Agreement, the Settlement Deed, the Managing Agency Agreement
and the Leasing Agreement.
"Corporate Services Transition Agreement" means the corporate services
transition agreement dated on or before the date of the April 1998 Agreement
between GLCC and AOC relating to the provision of services by the Parent and
entered into pursuant to the Distribution Agreement.
"Distribution" means the transfer of certain assets and properties of the
Business by GLCC to the Parent and the distribution as a dividend to holders
of common stock in GLCC of common stock in Octel Corp., in each case
pursuant to the Distribution Documents.
"Distribution Agreement" means the transfer and distribution agreement dated
on or before the date of this Agreement between GLCC and Octel Corp.
"Distribution Documents" means the Distribution Agreement, the Tax
Disaffiliation Agreement, the Corporate Services Transition Agreement, the
Supply and Toll Manufacturing Agreements, the Joint Representation and
Defense Agreement, the
-6-
Ellesmere Port Lease Agreement and all other documents, agreements,
transfers, instruments and certificates executed pursuant to the
Distribution Agreement.
"Dollars" or "$" means the lawful currency for the time being of the United
States of America.
"Dormant Company" means a member of the Group which:
(a) during the most recently ended Financial Year was dormant within the
meaning of section 250(3) of the Companies Xxx 0000 (which, for the
purposes of this definition, shall be deemed to apply to any body
corporate, wherever incorporated);
(b) has not entered into any significant accounting transaction (for the
purposes of that section) since the end of that Financial Year; and
(c) the Obligors' Agent demonstrates to the satisfaction of the Facility
Agent does not own assets with an aggregate realisable value greater
than $50,000 (or its equivalent in other currencies) and has no
material liabilities.
"EBITDA" has the meaning given to it in Clause 19.9 (Financial Definitions).
"Ellesmere Port Lease Agreement" means the Ellesmere Port lease agreement
dated on or before the date of this Agreement between GLCC and AOC relating
to the site at Ellesmere Port and entered into pursuant to the Distribution
Agreement.
"Employee Share Scheme" means any arrangement or scheme for the remuneration
or incentivisation of employees and/or officers of any Group Company by way
of issue of stock of the Parent or the grant of any rights to receive,
acquire or sell stock of the Parent in the future.
"Environment" means all gases, air, vapors, liquids, water, land, surface
and sub-surface soils, rock, flora, fauna, wetlands and all other natural
resources or part thereof including artificial or man-made buildings,
structures or enclosures.
"Environmental Approval" means any permit, license, authorisation, consent
or other approval required under or in relation to Environmental Laws.
"Environmental Laws" means all European Union, foreign, national, federal,
state or local statutes, orders, regulations or other law or subordinate
legislation or common law or regulatory codes of practice concerning the
Environment or health and safety which are in existence now or in the future
and are binding upon any Group Company in the relevant jurisdiction in which
the relevant Group Company has been or is operating (including by the export
of its products or its waste thereto).
"Environmental Report" shall bear the same meaning in this Agreement as it
bears in the April 1998 Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974 of the
United States of America as amended from time to time, or any successor
statute and any regulations promulgated thereunder.
-7-
"ERISA Affiliate" means, as applied to any person, any trade or business
(whether or not incorporated) that, together with such person, is treated as
a single employer under Section 414(b) or (c) of the Internal Revenue Code
or, solely for purposes of Section 302 or ERISA and Section 412 of the
Internal Revenue Code, is treated as single employer under Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) a "reportable event" within the meaning of Section
4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to
the PBGC has been waived by regulation); (b) the existence with respect to
any Pension Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Internal Revenue Code or Section 302 or ERISA), whether
or not waived; (c) the filing pursuant to Section 412(d) of the Internal
Revenue Code or Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Pension Plan; (d) the
incurrence by any Obligor or any of its ERISA Affiliates of any liability
under Title IV of ERISA with respect to the termination of any Pension Plan;
(e) the receipt by any Obligor or any of its ERISA Affiliates from the U.S.
Pension Benefit Guaranty Corporation (or any successor entity under ERISA)
or a plan administrator of any notice relating to an intention to terminate
any Pension Plan or Pension Plans or to appoint a trustee to administer any
Pension Plan; (f) the incurrence by any Obligor or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Pension Plan or Multiemployer Plan; or (g) the receipt
by any Obligor or any of its ERISA Affiliates of any notice, or the receipt
by any Multiemployer Plan from such Obligor or any of its ERISA Affiliates
of any notice concerning the imposition of "Withdrawal Liability" or a
determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganisation, in each case within the meaning of Title IV of ERISA.
"Event of Default" means any of the events specified in Clause 20.1 (List of
Events).
"Exchange Act" means the Securities Exchange Act of 1934 of the United
States of America.
"Facilities" means the Tranche A Facility and the Tranche B Facility and
"Facility" means either one of them.
"Facility Agent's $ Spot Rate of Exchange" means, in relation to a currency
other than Dollars and on any day, the spot rate of exchange of the Facility
Agent (as determined by the Facility Agent) for the purchase of the
appropriate amount of that currency with Dollars in the London foreign
exchange market in the ordinary course of business at or about 10.00 a.m. on
the day in question for delivery two Business Days thereafter.
"Final Maturity Date" means 31 December 2002.
"Finance Co." means OBOAdler Finance Limited, incorporated in England and
Wales.
"Finance Documents" means this Agreement, each Security Document, the
Syndication Agreement, each Accession Document, each Substitution
Certificate, the Arrangement Fees Letter, the Agency Fees Letter, any
Hedging Agreement and each of the other
-8-
Finance Documents as defined in the April 1998 Agreement and "Finance
Document" means any of them.
"Finance Parties" means the Arranger, the Agent, the Security Agent and each
Bank and "Finance Party" means any one of them.
"Financial Indebtedness" means any indebtedness in respect of or arising
under or in connection with:
(a) moneys borrowed (including overdrafts); or
(b) any debenture, bond, note or loan stock or other similar instrument;
or
(c) any acceptance or documentary credit; or
(d) receivables sold or discounted (otherwise than on a non-recourse
basis); or
(e) the acquisition cost of any asset or service to the extent payable
after the time of acquisition or possession by the person liable as
principal obligor for the payment thereof, where the deferred payment
is either:
(i) arranged primarily as a method of raising finance or financing or
refinancing the acquisition of the asset acquired; or
(ii) paid more than six months after the date for acquisition or
supply (as appropriate) of that asset or service; or
(f) the sale price of any asset to the extent paid before the time of sale
or delivery by the person liable to effect such sale or delivery,
where the advance payment is arranged primarily as a method of raising
finance or financing or refinancing the manufacture, assembly,
acquisition or holding of the asset to be sold; or
(g) finance leases, credit sale or conditional sale agreements; or
(h) any agreement for managing or hedging currency and/or interest rate
and/or commodity risk whether by way of forward exchange, cap, collar,
swap, forward rate agreement or otherwise or any other derivative
transaction, provided however, that the amount of indebtedness taken
into account under this paragraph (h) in relation to a person at a
given time shall be the amount (if any) which would be payable by that
person to the relevant counterparty under that agreement or
transaction if it were terminated and/or closed out at the time of
determination or, as the case may be, if it has already been
terminated and/or closed out, the aggregate amount payable thereunder;
or
(i) the amount payable under any put option or other arrangement (other
than an Employee Share Scheme) whereby any member of the Group is
liable, at the request of a third party, to purchase share capital or
other securities issued by it or any other member of the Group; or
(j) the amount payable by any member of the Group in respect of the
redemption of any share capital or other securities issued by it or
any other member of the
-9-
Group (if the share capital or other securities are redeemable at the
option of their holder or if the relevant member of the Group is
otherwise obliged, or may on the occurrence of any event or
circumstance become otherwise obliged, to redeem them on or before the
Final Maturity Date); or
(k) amounts raised under any other transaction having the commercial
effect of a borrowing; or
(l) any guarantee, indemnity or similar assurance against financial loss
of any person;
and so that, where the amount of Financial Indebtedness falls to be
calculated, no amount shall be taken into account more than once in the same
calculation.
"Financial Year" means the period of 12 months ending on 31 December in each
year.
"Form 10" means the Form 10 statement filed pursuant to section 12(b) or (g)
of the Exchange Act on 21 April 1998 on behalf of the Parent in connection
with the Distribution.
"FTC" means the U.S. Federal Trade Commission.
"GLCC" means Great Lakes Chemical Corporation, a corporation organised under
the laws of the State of Delaware, USA.
"GLE" means Great Lakes Europe Limited (a company incorporated in England
with registered number 250695).
"Group" means the Parent and its Subsidiaries from time to time and "member
of the Group" or "Group Company" means any one of them.
"Guarantors" means:
(a) each Group Company which is listed in Part A of Schedule 2; and
(b) any Group Company which becomes a guarantor under this Agreement
pursuant to Clause 16.3 (Further Guarantors) by executing an Accession
Document,
and "Guarantor" means any of them.
"Hedging Agreements" means agreements entered into with the Hedging Banks
for the purpose of managing or hedging interest rate risk in relation to the
April 1998 Facilities or the Facilities, whether by way of forward exchange,
cap, collar, swap, forward rate agreement or otherwise;
"Hedging Bank" means any Bank in its capacity as provider of interest rate
hedging in relation to the April 1998 Facilities or the Facilities.
"Holding Company" means an entity of which another person is a Subsidiary.
"Intellectual Property" means the Intellectual Property Rights owned by
members of the Group throughout the world or the interests of any member of
the Group in any of the
-10-
foregoing, together with the benefit of all agreements entered into or the
benefit of which is enjoyed by any member of the Group relating to the use
or exploitation of any of the aforementioned rights;
"Intellectual Property Rights" means all patents and patent applications,
trade and service marks and trade and/or service xxxx applications (and all
goodwill associated with such applications), all brand and trade names, all
copyrights and rights in the nature of copyright, all design rights, all
registered designs and applications for registered designs, all trade
secrets, know-how and all other intellectual property rights;
"Intercompany Loans" shall bear the same meaning in this Agreement as it
bears in the April 1998 Agreement.
"Intercompany Loan Agreements" means:
(a) the intercompany loan agreement in the agreed form dated on or before
the date of this Agreement between Octel Developments and Octel
Trading; and
(b) the intercompany loan agreement in the agreed form dated on or before
the date of this Agreement between Octel Trading and Octel Associates.
"Interest Period" means a period by reference to which interest is
calculated and payable on an Advance or overdue amount.
"Internal Revenue Code" means the Internal Revenue Code of 1986 of the
United States of America.
"Joint Representation and Defense Agreement" means the joint representation
and defense agreement dated on or before the date of this Agreement between
GLCC and the Parent relating to potential litigation issues and entered into
pursuant to the Distribution Agreement.
"Key Properties" means:
(a) the freehold and leasehold land and premises at Oil Sites Road,
Ellesmere Port, Cheshire comprised in freehold title number CH363860,
leasehold title number CH403291, and various unregistered conveyances;
and
(b) freehold land and buildings at Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxxxx registered under title number WA622018.
"Latest Accounts" means the audited consolidated financial statements of the
Parent for the period year ended 31 December 1998.
"Latest Interim Accounts" means the unaudited consolidated financial
statements of the Parent for the three months ended 31 March 1999 (as set
out in the Parent's quarterly report on Form 10-Q for that period filed with
the SEC).
"Leasing Agreement" means the leasing agreement dated 15 April 1966 between
AOC (Plant) and The Shell Company of the United Kingdom Limited, BP Trading
Limited, Caltex (UK) Limited and Mobil Transportation Company Limited.
-11-
"Lending Office" means, in relation to a Bank, the office through which it
is acting for the purposes of this Agreement (which, subject to Clause 3.2
(Lending Office), will be the office set opposite the name of that Bank in
Schedule 1 or the office notified by that Bank to the Facility Agent when it
becomes a Bank).
"LIBOR" means, in relation to an Advance or overdue amount and any Interest
Period relating thereto:
(a) the rate per annum of the offered quotation for deposits in the
currency of that Advance or unpaid sum (as the case may be) in an
amount equal or comparable to such Advance or unpaid sum (as the case
may be) for the duration of the relevant Interest Period which appears
on Telerate Page 3750 at or about 11.00 a.m. on the applicable Rate
Fixing Day; or
(b) if no such offered quotation appears on Telerate Page 3750 at or about
11.00 a.m. on the applicable Rate Fixing Day:
(i) the arithmetic mean (rounded up, if necessary, to four decimal
places) of the respective rates (as quoted to the Facility Agent
at its request) offered by the Reference Banks to leading banks
in the London interbank market at or about 11.00 a.m. on the
applicable Rate Fixing Day for deposits in the currency of that
Advance or overdue amount in an amount equal or comparable to
that Advance or overdue amount (as the case may be) for the
duration of the relevant Interest Period; or
(ii) subject to sub-clause 9.1.3, if any Reference Bank does not
provide a quote as contemplated by paragraph (i), the relevant
arithmetic mean determined on the basis of the quotations
supplied by the remaining Reference Banks.
For the purposes of this definition, "Telerate Page 3750" means the display
designated as "Telerate Page 3750" on the Telerate Service (or such other
page as may replace Page 3750 on that service or such other service as may
be nominated by the British Bankers' Association as the information vendor
for the purpose of displaying British Bankers' Association Interest
Settlement Rates for deposits in dollars).
"Majority Banks" means, at any time:
(a) Banks whose Commitments at that time aggregate more than 66 2/3 per
cent of the Total Commitments at that time; or
(b) if the Total Commitments have been reduced to zero, Banks whose
Commitments aggregated more than 66 2/3 per cent of the Total
Commitments immediately before the reduction.
"Management" means the individuals listed in the paragraph headed "Executive
Officers" of the section headed "Management of the Company" in the Form 10.
-12-
"Managing Agency Agreement" means the managing agency agreement dated 15
April, 1966 between The Shell Company of the United Kingdom Limited, BP
Trading Limited, Caltex (UK) Limited, Mobil Transportation Company Limited
and AOC.
"Mandatory Costs Rate" means, in relation to each Advance or Unpaid Sum, the
rate from time to time determined in accordance with Schedule 5 (Mandatory
Costs Rate).
"Margin" means (a) 1.50 per cent per annum from the date hereof until the
date upon which the aggregate amount outstanding under the April 1998
Tranche A Facility plus the aggregate of the undrawn Commitments and the
outstanding Advances under this Agreement is less than US$140,000,000 and
(b) thereafter 1.25%.
"Material Adverse Effect" means any effect, event or matter:
(a) which is, or is reasonably likely to be, materially adverse to:
(i) the business, assets, operations or financial condition of the
Group (taken as a whole); or
(ii) the ability of any Obligor to perform in a timely manner any of
its material obligations (including without limitation its
payment obligations and its obligations under Clause 19.7
(Financial Covenants)) under any of the Finance Documents; or
(b) which results in any of the rights or obligations arising under the
Finance Documents not being legal, valid and binding on and
enforceable against any party thereto and/or, in the case of any
Security Documents, not providing to the Security Agent (on behalf of
itself and the other Finance Parties) perfected enforceable security
over the assets expressed to be secured under the Security Documents,
in each case to an extent or in a manner reasonably considered by the
Majority Banks to be materially adverse to their interests under the
Finance Documents.
"Material Group Company" means:
(a) each Obligor;
(b) any other Subsidiary of the Parent:
(i) the net worth of which accounts for more than five per cent of
the consolidated net worth of the Group; and/or
(ii) the profit from ordinary activities before interest, taxation and
exceptional items of which accounts for more than five per cent
of the consolidated profit from ordinary activities before
interest, taxation and exceptional items of the Group; and/or
(iii) the turn-over of which (excluding sales to other members of the
Group) accounts for more than five per cent of the consolidated
gross turn-over of the Group,
-13-
and for this purpose the calculation of net worth, profit from ordinary
activities before interest, taxation and exceptional items and turn-over
shall:
(iv) be made in accordance with US GAAP;
(v) in the case of a company which itself has Subsidiaries, be made
by using the consolidated net worth, profit from ordinary
activities before interest, taxation and exceptional items or
turn-over, as the case may be, of it and its Subsidiaries; and
(vi) be determined by reference to:
(1) the latest accounts of the relevant company used for the
purposes of the then latest audited annual financial
statements of the Group delivered by the Parent under
sub-clause 19.6.4 (Financial Statements); or
(2) if the relevant company becomes a Subsidiary of the Parent
after the end of the Financial Year to which those latest
audited annual financial statements of the Group relate, the
latest accounts of that Subsidiary; or
(c) any Subsidiary of the Parent to which has been transferred (whether by
one transaction or a series of transactions, related or not) the whole
or substantially the whole of the assets of a Subsidiary of the Parent
which immediately prior to those transactions was a Material Group
Company.
"Material Insurances" means the following insurance policies of the Group:
(a) all policies relating to property damage and business interruption;
(b) all policies relating to employer's liability and/or public/products
liability;
(c) all policies relating to marine insurance (including, without
limitation, cargo loss) (other than foul berth insurance); and
(d) any other policy entered into after the date of this Agreement which
the Facility Agent (acting reasonably) considers material in the
context of the Finance Documents.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Obligors" means each Borrower, each Guarantor, the Obligors' Agent and each
other Group Company which has undertaken (or in the future undertakes)
obligations to any Finance Party pursuant to any Finance Document and
"Obligor" means any of them.
"Obligors' Agent" means AOC appointed to act on behalf of each Obligor in
relation to the Finance Documents pursuant to Clause 5.4 (Obligors' Agent),
or such other Group Company located in the United Kingdom as shall be
appointed pursuant to sub-clause 5.4.3 on behalf of each Obligor.
-14-
"Octel America" means Octel America Inc., a corporation organised under the
laws of the State of Delaware, U.S.A.
"Octel Associates" means the Partners in their capacity as partners of the
partnership trading in the United Kingdom under the name of Octel
Associates.
"Octel Developments" means Octel Developments PLC (formerly Hamsard One
Thousand and Seventy Four Limited) (a company incorporated in England with
registered number 3516662).
"Operating Budget" means, in relation to each Financial Year of the Parent,
a budget comprising projected balance sheet, projected profit and loss
account and projected cashflow statement (including details of projected
Capital Expenditure) for the Group for that Financial Year delivered to the
Facility Agent pursuant to sub-clause 19.6.4 (Financial Statements).
"Operating Properties" means all real property (including, without
limitation, all buildings, fixtures or other improvements located thereon)
now, hereafter or heretofore owned, leased, operated or used by any Group
Company or any of their respective predecessors or affiliates.
"Part Owned Entity" means any limited liability company which is not a
wholly-owned Subsidiary of Octel Resources and in relation to which Octel
Resources directly or indirectly owns in excess of 25 per cent. of the
ordinary share capital.
"Partnership Agreement" means the agreement dated 15 April 1966 relating to
the establishment and operation of the partnership trading in the United
Kingdom under the name of Octel Associates, which was originally entered
into by The Shell Company of the United Kingdom Limited, BP Trading Limited,
Caltex (UK) Limited and Mobil Transportation Company Limited.
"Payment Blockage Period" has the meaning given to that expression in the
draft Senior Note Documents in the agreed form as delivered to the Facility
Agent under paragraph 3 of Schedule 3 of the April 1998 Agreement.
"Pension Plan" means any employee benefit plan, other than a Multiemployer
Plan, which is subject to the provisions of Title IV of ERISA or Section 412
of the Internal Revenue Code or Section 302 or ERISA, and in respect of
which any Obligor or any of its ERISA Affiliates is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an "employer"
as defined in Section 3(5) of ERISA.
"Permitted Guarantee" means any guarantee falling within the provisions of
sub-clauses 19.3.9(a) to (e) (inclusive).
"Permitted Indebtedness" means any indebtedness falling within the
provisions of sub-clauses 19.3.8(a) to (h) (inclusive).
"Permitted Investment" means any investment (whether by way of loan,
subscription of share capital, incurrence of any liability or otherwise) by
Octel Resources or a wholly-owned Subsidiary of Octel Resources in a Part
Owned Entity, provided that:
-15-
(a) such investment is in a business similar to, connected with, or
related to the development of the Business; and
(b) after the date of this Agreement, the aggregate (without
double-counting) of:
(i) any amount advanced, lent, contributed or subscribed for, or
otherwise invested in, such Part Owned Entity by any member of
the Group during an Accounting Quarter; and
(ii) the market value of any asset transferred (other than by way of a
transfer permitted under this Agreement) or contributed to such
Part Owned Entity by any member of the Group during an Accounting
Quarter; and
(iii) the maximum liability under any guarantee given by any member of
the Group during an Accounting Quarter in respect of any
Financial Indebtedness incurred (whether by way of guarantee or
otherwise) by such Part Owned Entity,
shall not exceed the Unutilised Available Amount in respect of that
Accounting Quarter at the relevant time.
"Permitted Payment" has the meaning given to it in sub-clause 19.4.6.
"Permitted Security Interest" means any Security Interest falling within the
provisions of sub-clauses 19.3.6(a) to (i) (inclusive).
"Potential Event of Default" means any event which, with the giving of
notice, the lapse of time, the making of any determination or the fulfilment
of any other applicable condition (or any combination of any of the
foregoing), in each case provided for in Clause 20.1 (List of Events), would
constitute an Event of Default.
"Preferred Stock", as applied to the Capital Stock of any person, means
Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such person, over shares of Capital Stock of any other class
of such person.
"Qualifying Bank" means, at any time a bank or financial institution which,
at that time:
(a) is a bank as defined in section 840A of the Income and Corporation
Taxes Act 1988 for the purposes of section 349 of that Act and which
is within the charge to UK corporation tax as respects, and is
beneficially entitled to, the interest payable or paid to it under
this Agreement; or
(b) does not carry on business in the United Kingdom through a permanent
establishment with which indebtedness in respect of which interest is
paid is effectively connected and which has its Lending Office outside
the United Kingdom and to which Lending Office payments of interest
under this Agreement can be made without any deduction or withholding
for on account of Taxes by reason of an applicable taxation treaty
between the United Kingdom
-16-
and the country in which that bank or financial institution is, or is
treated as, resident (as such term is defined in the appropriate
treaty) (a "Treaty Bank").
"Rate Fixing Day" means in respect of any Interest Period the day on which
quotations would ordinarily be given by prime banks in the London Interbank
Market for deposits in Dollars for delivery on the first day of the relevant
Interest Period.
"Reference Banks" means the principal London offices of Barclays Bank PLC,
Lloyds Bank Plc and National Westminster Bank plc or such other banks or
financial institutions as may be appointed from time to time by the Facility
Agent (following consultation with the Obligors' Agent).
"Repayment Dates" means each date on which an instalment is due for
repayment under Clause 10.1 (Repayment) and the Final Maturity Date.
"Security Documents" means each of the security documents specified in Part
B of Schedule 2 to the April 1998 Agreement and in Part B of Schedule 2
hereof and all other documents which create, evidence or grant a Security
Interest in favour of any Finance Party in respect of the obligations of any
Obligor under any Finance Document and "Security Document" means any one of
them.
"Security Interest" means any mortgage, charge (fixed or floating), pledge,
lien, hypothecation, right of set-off, security trust, assignment by way of
security, reservation of title, or any other security interest whatsoever,
howsoever created or arising or any other agreement or arrangement
(including, without limitation, a sale and repurchase arrangement) having
the commercial effect of conferring security and any agreement to enter
into, create or establish any of the foregoing.
"Senior Note Documents" shall bear the same meaning in this Agreement as it
bears in the April 1998 Agreement.
"Senior Note Indenture" shall bear the same meaning in this Agreement as it
bears in the April 1998 Agreement.
"Senior Noteholders" shall bear the same meaning in this Agreement as it
bears in the April 1998 Agreement.
"Senior Notes" shall bear the same meaning in this Agreement as it bears in
the April 1998 Agreement.
"Settlement Deed" means the settlement deed dated 4 February, 1997 between
GLCC, GLE, Great Lakes Chemical (Europe) Limited, BP Oil UK Limited, The
Dominion Motor Spirit Co., Limited, Dorchester Oil Trading Company Limited,
Mobil Coatings Limited, Mobil Holdings (UK) Limited, Texaco Limited, Texaco
International Trader Inc., Team Fuels Limited, The British Petroleum
Company, Mobil Corporation and Texaco Inc.
"Structure Document" shall bear the same meaning in this Agreement as in the
April 1998 Agreement.
-17-
"Subordination Deed" shall bear the same meaning in this Agreement as in the
April 1998 Agreement.
"Subsidiary" means:
(a) a subsidiary as defined in section 736 of the Companies Xxx 0000;
(b) a subsidiary undertaking as defined in section 258 of the Companies
Xxx 0000; or
(c) whether or not falling within paragraph (a) or (b) above, in relation
to any person, any entity which is controlled directly or indirectly
by that person and any entity (whether or not so controlled) treated
as a subsidiary in the latest financial statements of that person from
time to time, and "control" for this purpose means the direct or
indirect ownership of the majority of the voting share capital of such
entity or the right or ability to determine the composition of a
majority of the board of directors (or like board) of such entity, in
each case whether by virtue of ownership of share capital, contract or
otherwise.
For the avoidance of doubt, for the purposes of the Finance Documents
(except where the context requires otherwise):
(i) Octel Associates shall be deemed to be a Subsidiary of Octel Resources
and AOC shall be deemed to be a Subsidiary of Octel Associates; and
(ii) any wholly-owned Subsidiary of Octel Associates shall be deemed to be
a wholly-owned Subsidiary of Octel Trading.
"Substitution Certificate" means a certificate substantially in the form set
out in Schedule 6.
"Supply and Toll Manufacturing Agreements" means the various supply
agreements and the toll manufacturing agreement dated on or before the date
of this Agreement between GLCC and AOC relating to the supply by GLCC to AOC
and/or the toll manufacturing by GLCC for AOC of certain products and
entered into pursuant to the Distribution Agreement.
"Surplus Cash Flow" means, in respect of any Accounting Quarter of the
Parent, Cashflow less Total Debt Service of the Group for that Accounting
Quarter (and, for the purpose of this definition, the relevant testing
period for calculating Cashflow and Total Debt Service shall be that
Accounting Quarter).
"Syndication" has the meaning given to it in sub-clause 3.5.1.
"Syndication Agreement" means the syndication agreement substantially in the
form set out in Schedule 11.
"Syndication Date" means the earlier of:
(a) the date the Facility Agent notifies the Obligors' Agent and the
Finance Parties that Syndication has been completed; and
-18-
(b) the date falling 3 months after the date of the second Advance under
this Agreement.
"Syndication Information Memorandum" means a syndication information
memorandum agreed between the Obligors' Agent and the Facility Agent as
contemplated by sub-clause 3.5.3.
"Target Shares" bears the meaning given it in the Bridge Facility Agreement.
"Tax Disaffiliation Agreement" means the tax disaffiliation agreement dated
on or before the date of the April 1998 Agreement between GLCC and the
Parent relating to their respective obligations concerning various tax
liabilities and entered into pursuant to the Distribution Agreement.
"Tax on Overall Net Income" means, in respect of a person, any Tax (other
than Tax deducted or withheld from any payment) imposed on that person in
any jurisdiction on:
(a) the net income, profits or gains of that person worldwide; or
(b) such of its income, profits or gains as arise in or relate to the
jurisdiction in which it is resident or in which its principal office
(and/or its Lending Office) is located.
"Taxes" means all income and other taxes, levies, imposts, deductions,
charges, duties and withholdings in the nature of or on account of tax,
together with interest thereon and penalties and fines with respect thereto,
if any, and any payments made on or in respect thereof and "Tax" and
"Taxation" shall be construed accordingly.
"Total Commitments" means, at any time, the aggregate of all of the
Commitments at that time.
"Total Debt" has the meaning given to it in Clause 19.9 (Financial
Definitions).
"Total Debt Service" has the meaning given to it in Clause 19.9 (Financial
Definitions).
"Tranche A Advance" means the advance of $10,000,000 (as from time to time
consolidated, divided or reduced by repayment or cancellation in accordance
with the terms hereof) made or to be made by the Banks under the Tranche A
Facility.
"Tranche B Advance" means the advance of up to $90,000,000 (as from time to
time consolidated, divided or reduced by repayment or cancellation in
accordance with the terms hereof) made or to be made by the Banks under the
Tranche B Facility.
"Tranche A Availability Period" means the period commencing on the date
hereof and terminating on the final day of the Availability Period as
defined in the Bridge Facility Agreement.
"Tranche B Availability Period" means the period commencing on the date
hereof and terminating on (and including) the Repayment Date as defined in
the Bridge Facility Agreement.
-19-
"Tranche A Facility" means the term loan facility to be made available by
the Tranche A Banks pursuant to sub-clause 2.2.1.
"Tranche B Facility" means the term loan facility to be made available by
the Tranche B Banks pursuant to sub-clause 2.2.2.
"Transaction Costs" means all fees, costs and expenses and stamp,
registration, value added and similar taxes incurred by any member of the
Group for the purpose of and/or in connection with the Distribution and its
financing (including, without limitation, advisory fees and other fees in
relation to the Senior Notes) in an aggregate amount not exceeding
$17,000,000 (or its equivalent in other currencies).
"Transaction Documents" means the Finance Documents, the Distribution
Documents, the Senior Note Documents, the Intercompany Loan Agreements and
the Constitutional Documents.
"Transferee" has the meaning given to it in sub-clause 29.2.1.
"Treaty Bank" has the meaning given to it in the definition of "Qualifying
Bank" in this Clause 1.1.
"UK GAAP " means accounting principles and practices generally accepted from
time to time in the United Kingdom.
"Unutilised Available Amount" means, in respect of any Accounting Quarter,
the Available Amount for that Accounting Quarter, less:
(a) the total cost of all acquisitions made in that Accounting Quarter in
accordance with sub-clause 19.3.14(vi) (which for this purpose shall
be the aggregate of the amounts specified in sub-clause 19.3.14(vi)(1)
and (2) thereof in respect of the relevant acquisitions);
(b) the total cost of all Permitted Investments made in that Accounting
Quarter (which for this purpose shall be the aggregate of the amounts
specified in paragraph (b) of the definition of "Permitted Investment"
in this Clause 1.1 in respect of the relevant Permitted Investments);
(c) the total amount already applied in that Accounting Quarter in the
making of Permitted Payments referred to in sub-clause (C)(v) of the
definition of that term in sub-clause 19.4.6; and
(d) the aggregate amount of dividends paid (directly or indirectly) by the
Parent during that Accounting Quarter and the aggregate amount of the
consideration for the purchase by the Parent (directly or indirectly)
of stock issued by the Parent paid during that Accounting Quarter.
"US" means the United States of America.
"US GAAP " means accounting principles and practices generally accepted from
time to time in the United States of America.
-20-
"Utilisation" means a utilisation by a Borrower of the Tranche A Facility or
the Tranche B Facility, as the case may be.
"Utilisation Date" means, in relation to a Utilisation, the date for the
making of that Utilisation, as specified by the relevant Borrower in the
relevant Utilisation Request.
"Utilisation Request" means a notice requesting an Advance in the form set
out in Schedule 4.
"Voting Stock" of a person means all classes of Capital Stock or other
interests (including partnership interests) of such person then outstanding
and normally entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof.
"Year 2000 Compliant" means, in relation to any Computer System, that any
reference to or use of a date before, on or after 31 December 1999 in
operation of that Computer System will not have a material adverse effect on
the use of that Computer System.
1.2 Construction
In this Agreement, unless the context otherwise requires, a reference to:
1.2.1 an "agency" of a state includes any local, district, highway or other
authority, self-regulating or other recognised body or designated
agency, central or federal bank, department, government, legislature,
minister, ministry, self-regulatory organisation, official, or public
or statutory person (whether autonomous or not) of, or of the
government of, that state or any political sub-division in or of that
state;
1.2.2 a document being in "the agreed terms" or "in the agreed form" means
in a form agreed between the Obligors' Agent and the Facility Agent;
1.2.3 an "agreement" includes any legally binding arrangement, concession,
contract, deed or franchise (in each case whether oral or written);
1.2.4 "assets" includes property and rights of every kind, present, future
and contingent (including uncalled share capital) and every kind of
interest in an asset;
1.2.5 a "consent" includes an authorisation, approval, exemption, licence,
order or permission (and reference to obtaining "consents" shall be
construed accordingly);
1.2.6 a "filing" includes any filing, registration, recording or notice
(and references to making or renewing "filings" shall be construed
accordingly);
1.2.7 a "guarantee" includes:
(a) an indemnity; and
(b) any other obligation (whatever called (including without
limitation a performance bond)) of any person:
-21-
(i) to pay, purchase, provide funds (whether by the advance of
money, the purchase of or subscription for shares or other
investments, the purchase of assets or services, the making
of payments under an agreement or otherwise) for the payment
of, indemnify against the consequences of default in the
payment of, or otherwise be responsible for, any
indebtedness of any other person; or
(ii) to be responsible for the performance of any obligations by
or the solvency of any other person,
(and "guaranteed" and "guarantor" shall be construed accordingly);
1.2.8 "indebtedness" includes any obligation (whether incurred as
principal, guarantor or as surety) for the payment or repayment of
money, whether present or future, actual or contingent;
1.2.9 a "month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month
provided that if:
(a) any such period would otherwise end on a day which is not a
Business Day, it shall end on the next Business Day in the same
calendar month or, if none, on the preceding Business Day; and
(b) a period starts on the last Business Day in a calendar month or
if there is no numerically corresponding day in the month in
which that period ends, that period shall end on the last
Business Day in that later month,
(and references to "months" shall be construed accordingly);
1.2.10 a "person" includes any person, individual, firm, company,
corporation, partnership, government, state or agency of a state or
any undertaking (within the meaning of section 259(1) of the Companies
Act 1985) or other association (whether or not having separate legal
personality) or any two or more of the foregoing;
1.2.11 "reservations" means (a) the principle that equitable remedies are
remedies which may be granted or refused at the discretion of the
court, (b) the limitation on enforcement as a result of laws relating
to bankruptcy, insolvency, liquidation, reorganisation, court schemes,
moratoria, administration and other laws generally affecting the
rights of creditors generally, (c) the principle that certain types of
security expressed to take effect as fixed security may, as a result
of the ability of an Obligor to deal with the assets subject to that
security on terms permitted under the Finance Documents, take effect
as floating security, (d) the time-barring of claims under the
Limitation Acts, (e) rules against penalties and similar principles
and (f) any other qualifications or reservations as to matters of law
only contained in the legal opinions referred to in paragraph 7 of
Schedule 3 or any other written legal opinion obtained by any of the
Agents from its legal advisers under the terms of the Finance
Documents; and
-22-
1.2.12 "winding-up" of any person includes its dissolution and/or
termination and/or any equivalent or analogous proceedings under the
law of any jurisdiction in which the person concerned is incorporated,
registered, established or carries on business or to which that person
is subject.
1.3 Other References
Save where a contrary intention appears, in this Agreement:
1.3.1 a reference to a party to this Agreement or any other person is,
where relevant, deemed to be a reference to or to include, as
appropriate, their respective successors and permitted assignees or
transferees;
1.3.2 references to Clauses and Schedules are references to, respectively,
clauses of and schedules to this Agreement and references to this
Agreement include its Schedules;
1.3.3 a reference to (or to any specified provision of) any agreement, deed
or other instrument (including the Finance Documents) is to be
construed as a reference to that agreement, deed or other instrument
or that provision as it may have been or hereafter be, from time to
time, amended, varied, supplemented, restated or novated but excluding
for this purpose any amendment, variation, supplement or modification
which is contrary to any provision of any of the Finance Documents;
1.3.4 a reference to a statute or statutory instrument or accounting
standard or any provision thereof is to be construed as a reference to
that statute or statutory instrument or accounting standard or such
provision thereof as the same may have been, or may from time to time
hereafter be, amended or re-enacted;
1.3.5 a time of day is a reference to London time;
1.3.6 the index to and the headings in this Agreement are inserted for
convenience only and are to be ignored in construing this Agreement;
1.3.7 words importing the plural shall include the singular and vice versa;
and
1.3.8 if compliance with any monetary limit specified in any of the
provisions of Clauses 18 (Representations and Warranties), 19
(Undertakings) (other than 19.7 (Financial Covenants)) or 20 (Events
of Default) falls to be determined on any date, any conversion from
any currency to Dollars necessary for that purpose shall be by
reference to the Facility Agent's $ Spot Rate of Exchange on the date
of that determination.
1.4 Amendments to s349 ICTA 1988
If section 349 of the Income and Corporation Taxes Act 1988 is at any time
after the date of this Agreement amended or repealed, the Facility Agent
may, at any time and from time to time by notice to (and after consultation
with) the Obligors' Agent and by notice to the Banks, amend paragraph (a) of
the definition of "Qualifying Bank" in Clause 1.1 (Definitions) in such
manner and to such extent, or replace that definition with a new definition
in such form as the Facility Agent reasonably determines will have the same
or
-23-
equivalent effect as the existing definition thereof, having regard to
the context(s) in which the expression "Qualifying Bank" is used in this
Agreement (and which is consistent with general market practice at the
relevant time). The right of the Facility Agent to amend or replace the
definition of "Qualifying Bank" pursuant to this Clause 1.4 shall extend
also to any amended or replaced definition for the time being in force as a
result of the application of this Clause 1.4. If the definition of
"Qualifying Bank" is amended or replaced pursuant to the foregoing
provisions of this Clause 1.4, the amended or, as the case may be,
replacement definition shall take effect to the exclusion of the relevant
previous definition thereof as from such date as the Facility Agent shall
specify, but no earlier than the date on which the relevant amendment or
repeal takes effect.
1.5 Barclays Capital
References in the Finance Documents to "Barclays Capital" are references to
Barclays Capital, the investment banking division of Barclays Bank PLC.
2. THE FACILITIES
2.1 Facilities
On the terms and subject to the conditions of this Agreement:
2.1.1 the Tranche A Banks agree to make available to the Borrower a Dollar
term loan facility in a maximum aggregate principal amount not
exceeding $10,000,000; and
2.1.2 the Tranche B Banks agree to make available to the Borrowers a dollar
term loan facility in a maximum aggregate principal amount not
exceeding $90,000,000.
2.2 Purpose
2.2.1 The proceeds of the Tranche A Advance referred to in sub-clause 2.1.1
shall be applied in or towards making a subordinated loan to Finance
Co. of monies to be used in the funding by Bidco of the financing of
the Acquisition (as defined in the Bridge Facility Agreement).
2.2.2 The proceeds of the Tranche B Advance shall be applied in payment of
the price for acquisition of the Target Shares pursuant to the
Conditional Sale Agreement.
2.2.3 No Finance Party shall be obliged to concern themselves as to the use
or application of amounts raised hereunder.
2.3 No Recourse against Officers
No Finance Party shall have any recourse against any director or officer of
any Group Company by virtue of anything contained in any certificate or
other document signed in good faith by the relevant director or officer
believing its contents to be true, complete and accurate and delivered to
any Finance Party pursuant to any provision of this Agreement.
-24-
3. PARTICIPATION OF BANKS
3.1 Basis of Participation
3.1.1 Subject to the other provisions of this Agreement, each Tranche A
Bank will participate in each Tranche A Advance in the proportion
which its Tranche A Commitment bears to the total Tranche A
Commitments as at the date on which the Tranche A Advance is made.
3.1.2 Subject to the other provisions of this Agreement, each Tranche B
Bank will participate in each Tranche B Advance in the proportion
which its Tranche B Commitment bears to the total Tranche B
Commitments as at the date on which the Tranche B Advance is made.
3.2 Lending Office
3.2.1 Each Bank will participate in each Utilisation through its Lending
Office.
3.2.2 If any Bank changes its Lending Office for the purpose of the
Facilities, that Bank will notify the Facility Agent and the Obligors'
Agent promptly of such change and, until it does so, the Facility
Agent and the Obligors' Agent will be entitled to assume that no such
change has taken place.
3.3 Rights and Obligations of Finance Parties
3.3.1 The rights and obligations of each of the Banks and other Finance
Parties under the Finance Documents are several. Failure of a Bank or
other Finance Party to observe and perform its respective obligations
under any Finance Document shall neither:
(a) result in any other Finance Party incurring any liability
whatsoever; nor
(b) relieve any Obligor or any other Finance Party from their
respective obligations under the Finance Documents.
3.3.2 Notwithstanding any other provision of any Finance Document, the
interests of each Finance Party are several and the total amounts
outstanding at any time under the Finance Documents and due to each
Finance Party constitute separate and independent debts. Accordingly,
as regards each Bank and its participation in an Advance the amount of
principal advanced by that Bank will constitute a separate and
independent debt owed to it.
3.4 Enforcement of Rights
Subject to any provision of the Finance Documents to the contrary, each
Finance Party has the right to protect and enforce its rights arising out of
the Finance Documents and it will not be necessary for any other Finance
Party to be joined as an additional party in any proceedings brought for the
purpose of protecting or enforcing such rights.
3.5 Syndication
3.5.1 The parties confirm that, at the date of this Agreement, the
Facilities are being made available by the relevant Original Banks
with the intention (but not the obligation) that the Arranger should
co-ordinate syndication of the Facilities ("Syndication").
-25-
3.5.2 Prior to the Syndication Date, no Bank may assign or transfer, or
deliver a Substitution Certificate in respect of, all or any part of
its rights or obligations under any Finance Document without the prior
consent of the Arranger.
3.5.3 Each Obligor acknowledges that Syndication will take place and
undertakes to assist and co-operate with the Arranger in Syndication
in such manner and to such extent as the Arranger may from time to
time reasonably request including, without limitation, by:
(a) the review and approval of an information memorandum
("Syndication Information Memorandum") in relation to the Group
and the business, trading, prospects, financial condition, assets
and liabilities of the Group as a whole and of each Group
Company;
(b) participating in presentations to potential Banks concerning the
activities of the Group as a whole and of each Group Company;
(c) selecting Interest Periods in relation to Advances having a
duration of not more than one month in respect of all Advances
made on or before the date falling 3 months after the date of the
making of the second Advance; and
(d) entering into the Syndication Agreement with proposed new Banks
(incorporating any minor amendments to the Finance Documents as
may be reasonably requested by the proposed new Banks and agreed
to by the Arranger (in consultation with the Obligors' Agent),
but nothing in this sub-clause 3.5.3(d) will require the
Obligors' Agent to agree to any amendment which may prejudice any
Obligor in any way).
4. CONDITIONS PRECEDENT
4.1 Initial Conditions Precedent
4.1.1 Documentary: The Banks shall not be under any obligation to make any
Advance available to the Borrowers under this Agreement unless the
Facility Agent has received each of the documents and/or information
specified in Schedule 3 (or the Facility Agent is satisfied that,
subject only to the making of the Advances on the first Utilisation
Date, it will receive such documents and/or information) in form and
substance satisfactory to the Facility Agent.
4.1.2 Notification: When the Facility Agent is satisfied that the
conditions specified in sub-clause 4.1.1 have been fulfilled, it will
promptly notify the Obligors' Agent and the Original Banks.
4.2 Failure to Satisfy Conditions Precedent
If the conditions referred to in Clause 4.1 (Initial Conditions Precedent)
have not been fulfilled or waived by expiry of the Tranche A Availability
Period or, as the case may be, Tranche B Availability Period:
4.2.1 all the Tranche A Commitments or, as the case may be, Tranche B
Commitments will automatically be cancelled; and
-26-
4.2.2 the Banks will cease to have any obligation to make any Advance to
any Borrower.
4.3 Additional Conditions Precedent
The obligations of the Banks to make any Advance to the Borrowers are
subject to the following further conditions precedent that, on both the date
of the relevant Utilisation Request and the date of the making of the
relevant Advance:
4.3.1 no Event of Default or Potential Event of Default has occurred and is
continuing unwaived and no Event of Default or Potential Event of
Default could reasonably be expected to occur as a result of making
the Advance;
4.3.2 the representations and warranties set out in Clause 18
(Representations and Warranties) stipulated as being repeated on those
dates are true and accurate, in each case by reference to the facts
and circumstances then subsisting, and will remain true and accurate
immediately after the Advance is made; and
4.3.3 none of the circumstances specified in Clause 9 (Market Disruption)
has occurred and is continuing.
5. BORROWERS UNDER THE FACILITIES
5.1 Initial Borrower
The initial Borrower under this Agreement is AOC.
5.2 Additional Borrowers
A Group Company which is a Subsidiary of Octel Associates may become a
Borrower after the date of this Agreement if:
5.2.1 the Obligors' Agent gives written notice to the Facility Agent
identifying the relevant Group Company (such notice to be accompanied
by certified copies of such Group Company's most recent audited
accounts and its memorandum and articles);
5.2.2 the relevant Group Company is a wholly-owned Subsidiary of Octel
Resources incorporated in England or, if it is not, all the Banks
confirm to the Facility Agent that they consent to the relevant Group
Company becoming a Borrower;
5.2.3 the relevant Group Company, the Obligors' Agent (for itself and as
agent for the existing Obligors) and the Facility Agent execute an
Accession Document designating the relevant Group Company as a
Borrower and an accession agreement to the Subordination Deed; and
5.2.4 the relevant Group Company delivers the documents listed in paragraph
1 of Schedule 3 in relation to itself to the satisfaction of the
Facility Agent, together with such legal opinions as the Facility
Agent may reasonably require.
5.3 Effective Time
Upon the conditions set out in Clause 5.2 (Additional Borrowers) being
satisfied, the Facility Agent will notify the Obligors' Agent and the
Finance Parties and the relevant
-27-
Group Company will become a Borrower with effect from such notification as
if it had been an original party to this Agreement as a Borrower.
5.4 Obligors' Agent
5.4.1 Each Obligor by its execution of this Agreement or an Accession
Document irrevocably appoints the Obligors' Agent to act on its behalf
as its agent in relation to the Finance Documents and irrevocably
authorises the Obligors' Agent on its behalf to give and receive all
notices and instructions (including, in the case of a Borrower,
Utilisation Requests), to execute on its behalf the Syndication
Agreement and any Accession Document and to enter into any agreement
capable of being entered into by any Obligor (notwithstanding that
such Agreement may affect that Obligor) without further reference to,
or the consent of, that Obligor and that Obligor shall be bound
thereby as though that Obligor itself had given the relevant notices
and instructions (including, without limitation, any Utilisation
Requests) or entered into the relevant agreements.
5.4.2 Subject to sub-clause 5.4.1, every act, omission, agreement,
undertaking, settlement, waiver, notice or other communication given
or made by the Obligors' Agent under or in connection with any of the
Finance Documents (whether or not known to any Obligor and whether
occurring before or after that Obligor became an Obligor under this
Agreement) shall be binding for all purposes on all Obligors as if
those Obligors had expressly concurred with the same. In the event of
any conflict between any notices or other communications of the
Obligors' Agent and any Obligor, those of the Obligors' Agent shall
prevail.
5.4.3 The Parent may from time to time by not less than 10 Business Days'
prior written notice to the Facility Agent nominate any other Obligor
(a "new Obligors' Agent") as the Obligors' Agent in substitute for an
existing Obligors' Agent. Any such notice shall:
(a) contain the address details of the new Obligors' Agent for the
purposes of Clause 25 (Notices); and
(b) take effect on the later of the date specified in that notice and
the date falling 10 Business Days after the date of actual
receipt by the Facility Agent of that notice.
5.4.4 The effectiveness of any notice referred to in sub-clause 5.4.3 shall
not prejudice the validity of sub-clause 5.4.2 in respect of any
matters arising prior to that notice taking effect.
5.4.5 The Facility Agent shall notify the Banks promptly following receipt
of any notice referred to in sub-clause 5.4.3.
5.5 The Partners
Each Partner shall be severally (as well as jointly with the other Partner)
liable for the performance by Octel Associates of its payment and other
obligations under the Finance
-28-
Documents to which Octel Associates is a party and compliance by Octel
Associates with the terms of those Finance Documents.
6. UTILISATION PROCEDURES
6.1 Delivery of Utilisation Requests
In order to utilise the Facilities, the Obligors' Agent must deliver to the
Facility Agent a duly completed Utilisation Request not later than l0.00
a.m. three Business Days prior to the proposed Utilisation Date.
6.2 Content of Utilisation Requests
Each Utilisation Request delivered to the Facility Agent must be in the
relevant form set out in Schedule 4 and must specify (or attach, as
appropriate) each of the following:
6.2.1 whether the proposed Advance is a Tranche A Advance or a Tranche B
Advance;
6.2.2 the proposed Utilisation Date (which must be a Business Day falling
within the Tranche A Availability Period or, as the case may be,
Tranche B Availability Period);
6.2.3 the amount and, in the case of that Advance, which must be equal to
or less than the undrawn portion of the total Tranche A Commitments
or, as the case may be, Tranche B Commitments;
6.2.4 the duration of the first Interest Period applicable to such Tranche
A Advance which must comply with Clause 8 (Selection of Interest
Periods);
6.2.5 details of the payee and the account to which the proceeds of the
Advance are to be paid; and
6.2.6 the identity of the Borrower.
6.3 Requests Irrevocable
A Utilisation Request, once given, may not be withdrawn or revoked.
6.4 Notice to the Banks
The Facility Agent will promptly give each Bank details of each Utilisation
Request received and of the amount and currency of the Bank's participation
therein.
6.5 Making of Advances
Subject to the provisions of this Agreement, each Bank will make available
to the Facility Agent its participation in the Advance concerned on the
date on which the relevant Advance is made.
6.6 Automatic Cancellation
Any part of the Tranche A Commitments or, as the case may be, Tranche B
Commitments undrawn by 2.30 p.m. on the last day of the Tranche A
Availability Period or, as the case may be, Tranche B Availability Period
will be automatically cancelled.
-29-
7. INTEREST
7.1 Rate
Each Advance will bear interest for each of its Interest Periods at the
rate per annum determined by the Facility Agent to be the aggregate of:
7.1.1 the Margin applicable to that Advance; and
7.1.2 LIBOR applicable to that Advance; and
7.1.3 the Mandatory Costs Rate (if any) applicable to that Advance.
7.2 Calculation
Interest will accrue on a daily basis and be calculated on the basis of
actual days elapsed and a 360 day year and will accrue from day to day from
and including the first day of each Interest Period.
7.3 Payment
The relevant Borrower will pay interest accrued on each Advance to the
Facility Agent (for the account of the Banks) in arrears on the last day of
each Interest Period applicable to that Advance, provided that, where such
Interest Period is of a duration of longer than 6 months, accrued interest
in respect of the relevant Advance will be paid every 6 months during such
Interest Period and on the last day of the Interest Period.
7.4 Default Interest
If any Obligor fails to pay any sum (including, without limitation, any sum
payable pursuant to this Clause 7.4) under any Finance Document on its due
date (an "overdue amount"), such Obligor will pay default interest on such
overdue amount from its due date to the date of actual payment (both before
and after judgment) at a rate determined by the Facility Agent in
accordance with this Clause 7.4. Such interest shall be calculated and
payable by reference to successive Interest Periods, each of which (other
than the first, which shall begin on the due date) shall begin on the last
day of the previous one. Each such Interest Period shall be of such
duration as the Facility Agent may from time to time select and the rate of
interest applicable for a particular Interest Period shall be the rate per
annum (the "Default Rate") equal to the sum of 1 per cent. per annum and:
7.4.1 where the overdue amount is principal which has fallen due prior to
the expiry of the relevant Interest Period, the rate applicable to
such principal immediately prior to the date it so fell due (but
only for the period from such date to the end of the relevant
Interest Period); or
7.4.2 in any other case (including principal falling within sub-clause
7.4.1 once the relevant Interest Period has expired), the rate which
would be payable if the overdue amount was an Advance made for a
period equal to the period of non-payment divided into successive
Interest Periods of such duration as shall be selected by the
Facility Agent (each "Default Interest Period").
7.5 Compounding
Default interest will be payable on demand by the Facility Agent and will
be compounded at the end of each Default Interest Period.
-30-
7.6 Notification
The Facility Agent will promptly notify the relevant Borrower and the Banks
of each determination of an interest rate (including a Default Rate) and
each selection of a Default Interest Period.
8. SELECTION OF INTEREST PERIODS
8.1 Selection
Subject to sub-clause 3.5.3(c) and the other provisions of this Agreement,
the duration of each Interest Period for an Advance shall be 1, 2, 3 or 6
months, may be, as notified by the Obligors' Agent to the Facility Agent
not later than 10.00 a.m. three Business Days prior to the commencement of
such Interest Period (or such other period as the Facility Agent (acting on
the instructions of all the Banks) may, at the request of the Obligors'
Agent, agree in writing), provided that:
8.1.1 the first Interest Period in relation to an Advance will commence on
the Utilisation Date relating thereto and each subsequent Interest
Period relating to that Advance will commence on the expiry of the
immediately preceding Interest Period relating thereto;
8.1.2 the Obligors' Agent will select the duration principal amount of
Advances with Interest Periods ending on each Repayment Date relating
thereto is at least equal to the amount of any repayment instalment
due on that date and, for this purpose, the Obligors' Advances, one
of which shall (if applicable) be in an amount at least equal to the
amount of the instalment due on the next following Repayment Date
relating thereto and having an Interest Period expiring on that
Repayment Date and the other of which shall have an Interest Period
of the duration selected by the Obligors' Agent in accordance with
this Clause 8.1;
8.1.3 if the Obligors' Agent fails to select an Interest Period then,
subject as provided in this Clause 8, it will be deemed to have
selected a period of 3 months, or such lesser period so as to comply
with the requirements of sub-clause 8.1.2.
8.2 Non-Business Days
If any Interest Period would, but for this Clause 8.2, end on a day which
is not a Business Day, that Interest Period shall be extended to the next
succeeding Business Day, unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event such
Interest Period shall end on the last preceding Business Day.
9. MARKET DISRUPTION
9.1 Market Disruption Notice
If, in relation to any Advance and the Interest Period relating thereto
(the "Affected Advance"):
9.1.1 the Facility Agent, after consultation with the Reference Banks and
the Obligors' Agent, determines that, by reason of circumstances
affecting the London interbank market generally, adequate and fair
means do not or will not exist for ascertaining LIBOR applicable to
the Affected Advance; or
-31-
9.1.2 Banks whose participations in the Affected Advance exceed 50 per
cent. of the amount of that Advance notify the Facility Agent that
LIBOR would not accurately reflect the cost to those Banks of making
or maintaining their respective participations in the Affected
Advance; or
9.1.3 LIBOR applicable to the Affected Advance is to be calculated in
accordance with paragraph (b) of the definition of "LIBOR" in Clause
1.1 (Definitions) and none or only one of the Reference Banks
notifies a rate to the Facility Agent for the purposes of determining
LIBOR applicable to the Affected Advance,
the Facility Agent will give notice of such event to the Obligors' Agent
and the Banks (a "Market Disruption Notice").
9.2 Substitute Basis
During the 30 days following the giving of a Market Disruption Notice, the
Facility Agent and the Obligors' Agent will negotiate in good faith in
order to agree on a mutually acceptable substitute basis for calculating
the interest payable on the Affected Advance. If a substitute basis is
agreed within that period then it shall apply in accordance with its terms
(and may be retrospective to the beginning of the relevant Interest
Period).
9.3 Cost of Funds
Unless and until a substitute basis is agreed under Clause 9.2 (Substitute
Basis), the interest payable on each Bank's participation in the Affected
Advance for the relevant Interest Period will be the rate certified by that
Bank to be its cost of funds (from such sources as it may reasonably
select) plus the Mandatory Costs Rate (if relevant) plus the applicable
Margin.
9.4 Approval of Banks
The Facility Agent will not agree a substitute basis under Clause 9.2
(Substitute Basis) without first obtaining the approval of all the Banks.
10. REPAYMENT OF ADVANCES
10.1 Repayment
10.1.1 The Borrowers shall procure that, subject to the application of
Clause (Prepayments: Order of Application), the aggregate
outstanding principal amount of the Advances shall be repaid in
instalments, each instalment falling due on each of the dates
specified in column (1) below and being in the amount specified
opposite that date in column (2) below and any balance of the
aggregate outstanding principal amount of the Advances remaining
outstanding on the Final Maturity Date shall be repaid in full on
the Final Maturity Date:
(1) Repayment Date (2) Amount ($)
---------------- ----------
31 December 1999 10,000,000
30 June 2000 10,000,000
31 December 2000 10,000,000
30 June 2001 15,000,000
-32-
(1) Repayment Date (2) Amount ($)
---------------- ----------
31 December 2001 15,000,000
30 June 2002 20,000,000
31 December 2002 20,000,000
10.1.2 No amount repaid in respect of an Advance may be redrawn by any
Borrower.
10.2 Miscellaneous
The provisions of Clause 11.5 (Miscellaneous) shall apply to any
repayment under this Clause 10.
11. PREPAYMENT AND CANCELLATION
11.1 Voluntary Prepayment
Any Borrower may prepay the whole or any part of an Advance at any time,
provided that the Facility Agent has received not less than ten Business
Days' irrevocable written notice from the Obligors' Agent of the proposed
date and amount of the prepayment and provided that:
11.1.1 any partial prepayment of an Advance will be in a minimum amount of
$10,000,000 and, if greater, an integral multiple of $1,000,000;
11.1.2 if paid other than on the last day of an Interest Period, the
relevant Borrower indemnifies the Banks for breakage costs (if
applicable) in accordance with Clause 31.1 (General Indemnity and
Breakage Costs); and
11.1.3 such prepayment shall be applied in accordance with Clause 11.3
(Prepayments: Order of Application).
11.2 Additional Right of Prepayment
If:
11.2.1 a Borrower is required to pay a Bank any additional amount under
Clause (Gross-Up); or
11.2.2 the Obligors' Agent is required to pay a Bank (or procure payment to
a Bank of) any amount under Clause 14.1 (Increased Costs),
then, without prejudice to the obligations of any Obligor under those
Clauses, the Obligors' Agent may, whilst the circumstances continue, serve
a notice of prepayment and cancellation on that Bank through the Facility
Agent. If the Obligors' Agent serves any such notice:
(a) on the date which is ten Business Days' after the date of service of
the notice, each Borrower shall prepay that Bank's participation in
all Advances drawn by it, together with accrued interest thereon;
and
(b) all that Bank's Commitments shall be cancelled as at the date of
service of the notice.
-33-
11.3 Prepayments: Order of Application:
11.3.1 Prepayments made pursuant to Clauses 11.1 (Voluntary Prepayment)
shall be applied against the outstanding principal amount of the
Advances and, in relation to the unpaid instalments in respect of
the Facilities, against the scheduled instalments of principal
detailed in Clause 10.1 (Repayment) in inverse order of maturity,
until the Facilities have been reduced to zero.
11.3.2 Subject as otherwise provided in this Agreement, the Obligors' Agent
shall, by notice in writing to the Facility Agent to be received not
later than three Business Days prior to the date of the relevant
repayment or prepayment, designate which Advances are to be repaid
or prepaid in order to meet amounts due on such date.
11.4 Restrictions on Prepayment
No prepayment may be made except at the times and in the manner expressly
provided by this Agreement.
11.5 Miscellaneous:
11.5.1 Any repayment or prepayment must be accompanied by any accrued
interest on the amount repaid or prepaid and any other sum then due
under this Agreement.
11.5.2 Any repayment or prepayment of an Advance (or part thereof) shall be
made in the currency in which that Advance is denominated.
11.5.3 No amount prepaid in respect of any Advance may be reborrowed by any
Borrower.
11.5.4 The Facility Agent shall notify the Banks promptly following receipt
of any notice of prepayment and/or cancellation under this
Agreement.
11.6 Cancellation
11.6.1 The Obligors' Agent may cancel the Tranche A Commitments or Tranche
B Commitments in whole or in part (but if in part a minimum of
$10,000,000 and an integral multiple of $1,000,000) at any time
during the Tranche B Availability Period or, as the case may be, the
Tranche A Availability Period by giving not less than 10 Business
Days' irrevocable written notice to that effect to the Facility
Agent specifying the date and amount of the proposed cancellation.
11.6.2 No Borrower may cancel all or any part of the Facilities except as
expressly provided in this Agreement. Any notice of cancellation
shall be irrevocable and no part of the Facilities which has been
cancelled shall be capable of being re-utilised.
11.6.3 The Tranche B Facility shall be cancelled in full in that the event
the Acquisition (as defined in the Bridge Facility Agreement) lapses
or is withdrawn or such Acquisition is referred to any competent
competition authorities in a relevant state.
-34-
12. PAYMENTS
12.1 By Banks:
12.1.1 On each date on which an Advance is to be made, each Bank shall make
its share of that Advance available to the Facility Agent on that
date by payment in the currency of that Advance and in immediately
available cleared funds to such account as the Facility Agent shall
specify for that purpose.
12.1.2 The Facility Agent shall make the amounts so paid to it available to
the relevant Borrower before close of business on that date by
payment in the same currency and funds as received by the Facility
Agent to such account of the relevant Borrower as the Obligors'
Agent shall have specified in the notice requesting that Advance. If
any Bank makes its share of any Advance available to the Facility
Agent later than required by sub-clause 12.1.1, the Facility Agent
shall make that share available to the relevant Borrower as soon as
practicable thereafter.
12.2 By Obligors:
12.2.1 On each date on which any sum is due from any Obligor under the
Finance Documents, that Obligor shall pay that sum on that date to
the Facility Agent in the currency in which it is due and in
immediately available cleared funds to such account as the Facility
Agent shall specify for that purpose.
12.2.2 The Facility Agent shall pay to the party to the Finance Documents
to which such sum is due before close of business on that date its
pro rata share (if any) of any sums so paid to the Facility Agent in
the same currency and funds as received by the Facility Agent to
such account of that party with such bank as it shall have specified
to the Facility Agent. If any sum is paid to the Facility Agent
later than required by sub-clause 12.2.2, the Facility Agent shall
make that party's share (if any) available to it as soon as
practicable thereafter.
12.3 Assumed Receipt
Where a sum is to be paid under any Finance Document for the account of
another person, the Facility Agent will not be obliged to make any such
sum available to that 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 the sum it paid
out, then such person will on request ensure that the amount so made
available is refunded to the Facility Agent and such person will be liable
(a) to pay to the Facility Agent interest on the amount in question at the
rate determined by the Facility Agent to be equal to the cost to the
Facility Agent of funding such amount for the period from payment out by
the Facility Agent until refund to the Facility Agent thereof and (b) to
indemnify the Facility Agent against any additional cost or loss it may
have suffered or incurred by reason of it having paid out such sum prior
to it having received the same.
12.4 No Set-off or Deductions
All payments made by any Obligor under the Finance Documents (whether of
principal, interest, acceptance commission, fees or otherwise) will be
paid in full without set-off or counterclaim and not subject to any
condition and free and clear of and without any
-35-
deduction or withholding for or on account of any Taxes (except as
provided in Clause 13 (Taxes)).
12.5 Business Days
Subject to Clause 8.2 (Non-Business Days), if any sum would otherwise
become due for payment pursuant to any of the Finance Documents on a day
which is not a Business Day, such sum shall become due on the next
succeeding Business Day and all sums payable under any of the Finance
Documents calculated by reference to any period of time shall be
recalculated on the basis of such extension in time.
13. TAXES
13.1 Gross-Up
If any deduction or withholding for or on account of Taxes or any other
deduction or withholding from any payments made or to be made by any
Obligor or by any Agent to any other Finance Party under any of the
Finance Documents is required by law, then, subject to Clause 13.2
(Exemptions from Gross-Up), such Obligor will:
13.1.1 pay to the relevant Taxation or other authorities within the period
for payment permitted by the applicable law, such amount as is
required to be paid in consequence of the deduction or withholding
(including, but without prejudice to the generality of the
foregoing, the full amount of any deduction from any additional
amount paid pursuant to this Clause 13.1 (Gross Up) and shall
deliver to the Facility Agent appropriate evidence of payment of
that amount;
13.1.2 promptly pay to the Finance Party concerned such additional amounts
as may be required to procure that the aggregate net amount
received by such Finance Party will equal the full amount which
would have been received by it had no such deduction or withholding
been made; and
13.1.3 indemnify each of the Finance Parties against any losses or costs
incurred by it by reason of (a) any failure on the part of the
relevant Obligor to make any deduction or withholding or (b) any
such additional amount not being paid on the due date for payment
thereof.
13.2 Exemptions from Gross-Up
No additional amount will be payable to a Finance Party under Clause 13.1
(Gross-Up) in respect of Taxes to the extent that the relevant deduction
or withholding would not have arisen if the relevant Finance Party had
been a Qualifying Bank at the time the payment concerned fell due (unless
the reason it is not a Qualifying Bank is the introduction of, or a change
after the date of this Agreement in, any law or regulation, or a change
after the date of this Agreement in the published interpretation or
published application of any law or regulation or in any published
practice or published concession of the Inland Revenue).
13.3 Indemnity
Without prejudice to Clause 13.1 (Gross-Up), if (as a result of any change
after the date of this Agreement in any law or regulation, or in the
published interpretation or published application thereof or in any
published practice or published concession of the Inland Revenue) any
Finance Party (or any person on its behalf) is required to make any
-36-
payment of Tax (other than Tax on Overall Net Income) on or calculated by
reference to the amount of any payment received or receivable by that
Finance Party (or any person on its behalf) under the Finance Documents
(including, without limitation, under Clause 13.1 (Gross-Up)) or any
liability for Tax in respect of any such payment is assessed, levied,
imposed or claimed against any Finance Party (or any person on its behalf)
the relevant Obligor shall, within five Business Days of demand by the
Facility Agent, indemnify the relevant Finance Party (or relevant other
person) against such payment or liability and any cost, charges and
expenses (including, without limitation, penalties) properly payable or
properly incurred in connection therewith.
13.4 Filings
If an Obligor is required (or would in the absence of any such filing be
required) to make a deduction or withholding for or on account of Taxes,
such Obligor shall, and each relevant Finance Party shall, promptly file
such forms and documents as the appropriate taxation authority may
reasonably require in order to enable such Obligor to make relevant
payments under the Finance Documents without having to make such deduction
or withholding.
13.5 Treaty Banks
A Treaty Bank will, as soon as reasonably practicable after receiving a
request from the Obligors' Agent to that effect, deliver to that Treaty
Bank's local revenue authority such United Kingdom Inland Revenue forms as
may be required in order to enable an Obligor to make relevant payments
under this Agreement without having to make a deduction or withholding on
account of United Kingdom Taxes.
13.6 Tax Credits:
13.6.1 If and to the extent that any Finance Party is able, in its sole
opinion exercised in good faith, to apply or otherwise take
advantage of any offsetting Tax credit or other similar Tax benefit
arising out of or in conjunction with any deduction or withholding
which gives rise to an obligation on any Obligor to pay any
additional amount pursuant to Clause 13.1 (Gross-Up), that Finance
Party shall, to the extent that, in its sole opinion it can do so
without prejudice to the retention of the amount of such credit or
benefit, reimburse to such Obligor at such time as such Tax credit
or benefit shall have actually been received by that Finance Party
such amount as that Finance Party shall, in its sole opinion, have
determined to be attributable to the relevant deduction or
withholding and as will leave it in no better or worse position
than it would have been in if the payment of such additional amount
had not been required. Such reimbursement (if any) shall (in the
absence of manifest error) be conclusive evidence of the amount due
to such Obligor and shall be accepted by such Obligor in full and
final settlement of any claim for reimbursement under this Clause
13.6 (Tax Credits).
13.6.2 Nothing in this Clause 13 shall oblige any Finance Party to
disclose to any Obligor or any other person any information
regarding its Tax affairs or Tax computations or interfere with the
right of any Finance Party to arrange its Tax affairs in whatever
manner it thinks fit and, in particular, no Finance Party shall be
under any obligation to claim relief from its corporate profits or
similar Tax
-37-
liability in priority to any other claims, reliefs, credits or
deductions available to it and, if it does claim, the extent, order
and manner in which it does so shall be at its absolute discretion.
13.6.3 Each Finance Party will notify the Obligors' Agent as soon as
reasonably practicable after becoming aware that it has received
any Tax credit or benefit referred to in sub-clause 13.6.1 and of
that Finance Party's opinion as to the amount or value of that Tax
credit or benefit.
13.7 Collecting Agents Rules
Each Bank represents to each Agent that, on the date it becomes a party to
this Agreement, it is:
13.7.1 either:
(a) not resident in the United Kingdom for United Kingdom tax
purposes; or
(b) a bank as defined in section 840A of the Income and Corporate
Taxes Act 1988 and resident in the United Kingdom; and
13.7.2 beneficially entitled to the principal and interest payable by the
Facility Agent to it under this Agreement,
(or, if it is not able to make those representations, will ensure that it
assigns, transfers or novates its rights in respect of each Advance then
made to an entity in respect of which both representations are correct)
and, if it is able to make those representations on the date on which it
becomes a party to this Agreement, shall forthwith notify the Facility
Agent if either representation ceases to be correct.
14. CHANGE IN CIRCUMSTANCES
14.1 Increased Costs:
14.1.1 If the effect of any change in or introduction or making (in each
case) after the date of this Agreement of any law, regulation,
treaty or official directive or official request applicable to any
Bank (an "Affected Bank") or any Holding Company of such Affected
Bank (whether or not having the force of law but, if not, being of a
type with which banks generally in the relevant jurisdiction are
accustomed, expected or required to comply) or any change in the
interpretation or application thereof or compliance by any Affected
Bank or any Holding Company of such Affected Bank with the same
(including without limitation those relating to Taxation, reserve
asset, special deposit, cash ratio, liquidity or capital adequacy
requirements or any other form of banking or monetary controls) is
to:
(a) impose an additional cost on the Affected Bank or any Holding
Company of such Affected Bank as a result of it having entered
into any of the Finance Documents or making or maintaining its
participation in any Advance or of it performing its
obligations under the Finance Documents; or
-38-
(b) reduce any amount payable to the Affected Bank or any Holding
Company of such Affected Bank hereunder or reduce the effective
return on the capital (or any class of capital) of the Affected
Bank or any Holding Company of the Affected Bank; or
(c) result in the Affected Bank or any Holding Company of such
Affected Bank making any payment or foregoing any interest or
other return on or calculated by reference to any amount
received or receivable by the Affected Bank or any Holding
Company of such Affected Bank from any other party under any of
the Finance Documents,
(each such increased cost, reduction, payment, foregone interest or other
return being hereafter referred to in this Clause 14.1 as an "increased
cost"), then:
(i) the Affected Bank will notify the Obligors' Agent and the
Facility Agent of such event promptly upon its becoming
aware of the same; and
(ii) upon demand from time to time by the Affected Bank, the
Obligors' Agent will pay or procure the payment to the
Affected Bank or any Holding Company of such Affected Bank
such amount as the Affected Bank shall reasonably
determine to be necessary to compensate the Affected Bank
or any Holding Company of such Affected Bank for such
increased cost (or the portion of such increased cost as
is in the reasonable opinion of the Affected Bank
attributable to its entering into the Finance Documents or
of making or maintaining its participation in any
Utilisation or of maintaining any Commitment).
14.1.2 The certificate of an Affected Bank specifying the amount of
compensation payable under sub-clause 14.1.1 and the basis for the
calculation of that amount will, in the absence of manifest error,
be conclusive.
14.1.3 The Obligors' Agent will not be obliged to compensate any Affected
Bank pursuant to sub-clause 14.1.1 in respect of any increased cost:
(a) compensated for by payment of the Mandatory Costs Rate; or
(b) attributable to a change in the rate of Tax or the manner of
calculation of Tax on Overall Net Income of the Affected Bank;
or
(c) compensated for by the operation of Clause 13 (Taxes).
14.2 Illegality
If it is or becomes contrary to any law, regulation, treaty, or official
directive or official request applicable to any Bank (a "Restricted Bank")
(whether or not having the force of law but, if not, being of a type with
which that Bank is accustomed, or expected or required to comply) in any
jurisdiction applicable to such Restricted Bank for it to make available
any of the Facilities or to maintain its participation in any Advance or
maintain
-39-
any Commitment, then the Restricted Bank may give written notice to that
effect to the Facility Agent and the Obligors' Agent, whereupon:
14.2.1 the relevant Borrowers will forthwith (or, if later, within any
period permitted by the relevant law, regulation, treaty or
official directive or official request) prepay the Restricted
Bank's participation in all Advances then outstanding together with
all interest accrued thereon and pay all other amounts due to the
Restricted Bank under this Agreement (including pursuant to Clause
31.1 (General Indemnity and Breakage Costs)); and
14.2.2 the Restricted Bank's undrawn Commitments (if any) will be
cancelled forthwith and the Restricted Bank will have no further
obligation to make the Facilities available.
14.3 Mitigation
If circumstances arise in relation to a particular Bank which would, or
may, result in:
14.3.1 an obligation to pay an additional amount under Clause 13.1
(Gross-Up); or
14.3.2 a demand for compensation pursuant to Clause 14.1 (Increased
Costs); or
14.3.3 an obligation to repay under Clause 14.2 (Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Obligors' Agent under any of the Clauses referred to
above, such Bank will promptly notify the Facility Agent and the Obligors'
Agent thereof and, in consultation with the Facility Agent and the
Obligors' Agent, take such reasonable steps as may be reasonably open to
it to mitigate the effects of such circumstances including (but without
limitation):
(a) changing its Lending Office for the purposes of this Agreement;
or
(b) transferring its rights and obligations hereunder pursuant to
Clause 29.2 (Assignments and Transfers by the Banks) or 29.3
(Substitution Provisions),
but the Bank concerned will not be obliged to take any action if to do so
would or could (in its opinion) reasonably be expected to have a material
adverse effect upon its business, operations or financial condition or
cause it to incur liabilities or obligations (including Taxation) which (in
its opinion) are material or would reduce its return in relation to its
participation in the Facilities.
15. FEES, EXPENSES AND STAMP DUTIES
15.1 Commitment Fee
The Borrower will pay, or procure payment, to the Facility Agent for the
account of each Bank a commitment fee on the Tranche A Facility from the
date of this Agreement which will:
15.1.1 be computed at the rate equal to 0.5 per cent. per annum on the
daily, undrawn, uncancelled amount of that Bank's Tranche A
Commitment; and
-40-
15.1.2 be payable quarterly in arrears from the date of this Agreement.
Accrued commitment fee is also payable to the Facility Agent for the
account of each Bank on the cancelled amount of any Commitment of
that Bank on the date on which any cancellation of any Commitment
takes effect.
15.2 Agency Fees
The Borrower will pay, or procure payment, to the Facility Agent:
15.2.1 for its own account an agency fee; and
15.2.2 for the account of the Security Agent an agency fee, at the times
and otherwise in accordance with the terms of the Agency Fees
Letter.
15.3 Arrangement Fees
The Borrower will pay, or procure payment, to the Arranger of an
Arrangement Fee at the times and otherwise in accordance with the terms of
the Arrangement Fees Letter.
15.4 VAT
All fees payable under the Finance Documents are exclusive of any value
added tax or other similar tax chargeable upon or in connection with such
fees. If any value added tax or other similar tax is or becomes so
chargeable, such tax will be added to the fee concerned at the appropriate
rate and will be paid by the relevant Obligor at the same time as the
relevant fee itself is paid.
15.5 Initial Expenses
The Borrower will on demand pay and reimburse to, or procure the payment
and re-imbursement to, the Agents and the Arranger, on the basis of a full
indemnity, all costs and expenses (including legal fees and other out-of-
pocket expenses and any value added tax or other similar tax thereon)
reasonably incurred by the Agents or the Arranger in connection with:
15.5.1 the negotiation, preparation, execution and completion of each of
the Finance Documents, the preparation, review and satisfaction of
all conditions precedent under any of the Finance Documents and the
registration of any security constituted by any of the Security
Documents;
15.5.2 any variation, amendment, restatement, waiver, consent or suspension
of rights (or any proposal for any of the same) relating to any of
the Finance Documents (and documents, matters or things referred to
therein);
15.5.3 the investigation of any Event of Default or Potential Event of
Default, and
15.5.4 Syndication (including the costs of preparing the Syndication
Information Memorandum and all matters incidental to Syndication).
15.6 Enforcement Expenses
The Borrower will on demand pay and reimburse, or procure the payment and
re-imbursement, to each Finance Party, on the basis of a full indemnity,
all costs and expenses (including legal fees and other out of pocket
expenses and any value added tax or other similar tax thereon) incurred by
such Finance Party in connection with the
-41-
preservation, enforcement or the attempted preservation or enforcement of
any of such Finance Party's rights under any of the Finance Documents (and
documents referred to therein).
15.7 Stamp Duties, etc.:
15.7.1 The Borrower will pay and on demand indemnify, or procure the
payment and indemnification of, each Finance Party from and against
any liability for any United Kingdom stamp duty, documentary and
registration Taxes (if any) which are or may hereafter become
payable in connection with the entry into, performance, execution or
enforcement of any of the Finance Documents or to which any of the
Finance Documents may otherwise be or become subject or give rise
(excluding, for the avoidance of doubt, any incurred in connection
with an assignment, transfer or novation pursuant to Clause 29
(Changes to Parties)).
15.7.2 No Finance Party may require any member of the Group to deliver any
original copy of a Transaction Document (other than a Finance
Document) to a place in the United Kingdom where such delivery could
reasonably be expected to have adverse stamp duty or other Tax
implications for any member of the Group, except where:
(a) an original copy of that Transaction Document is then, or has
at any time after the date of this Agreement already been, in
the United Kingdom; or
(b) that Finance Party (acting reasonably) considers it necessary
to require delivery of an original copy of that Transaction
Document for the purposes of, or in connection with, the
preservation or enforcement or the attempted preservation or
enforcement of its rights under the Finance Documents at that
time (including without limitation registration of any security
constituted by any of the Security Documents).
15.8 Delay in Payment
The Borrower will on demand indemnify, or procure the indemnification of,
each of the Finance Parties from and against any losses or liabilities
which they incur as a result of any delay or omission by the Parent to so
pay any such duties or Taxes.
15.9 Calculation and Payment:
All fees payable under this Agreement shall accrue on a daily basis and
shall be calculated by reference to a 360 day year in the case of fees
payable in any other Available Currency.
16. GUARANTEE AND ADDITIONAL GUARANTORS
16.1 Guarantee
In consideration of the Finance Parties entering into the Finance Documents
and making the Facilities available, each Guarantor irrevocably and
unconditionally:
16.1.1 guarantees as principal obligor to each Finance Party the due and
punctual payment by each other Obligor of all indebtedness owed or
owing by each such Obligor under or in connection with the Finance
Documents as and when it becomes due;
-42-
16.1.2 guarantees as principal obligor to each Finance Party the due and
punctual performance by each other Obligor of all such Obligor's
other obligations under the Finance Documents;
16.1.3 undertakes with each Finance Party that, if any other Obligor fails
to pay any of the indebtedness referred to in sub-clause 16.1.1 on
its due date, it will pay such sum to the Facility Agent on demand;
and
16.1.4 undertakes to indemnify each Finance Party on demand against all
losses, damages, costs and expenses incurred by such Finance Party
arising from any failure by any other Obligor to comply with its
obligations (or any of them) under any of the Finance Documents.
16.2 Further Guarantee Provisions
The guarantees, undertakings and indemnities given in Clause 16.1
(Guarantee):
16.2.1 are given subject to, and with the benefit of, the provisions set
out in Schedule 8;
16.2.2 are given on a joint and several basis; and
16.2.3 are to be a continuing security, notwithstanding any intermediate
payment or settlement of account or other matter or thing whatsoever
(in particular, but without limitation, the intermediate
satisfaction of the whole or any part of the indebtedness referred
to in Clause 16.1 (Guarantee)).
16.3 Further Guarantors
The Parent will procure that any Material Group Company which is not a
Guarantor shall (to the extent permitted under applicable law) become a
Guarantor by executing an Accession Document and an accession agreement to
the Subordination Deed as soon as reasonably practicable after being
required to become a Guarantor by the Facility Agent.
16.4 Accession Formalities
On each occasion that an Accession Document is entered into, there shall be
delivered to the Facility Agent with the original executed Accession
Document and accession agreement to the Subordination Deed certified copies
of the documents listed in paragraph 1 of Schedule 3 in respect of the
relevant Guarantor named in the Accession Document, each to be in a form
satisfactory to the Facility Agent (acting reasonably), together with
evidence that any necessary and available financial assistance procedures
have been complied with and together also with such legal opinions as the
Facility Agent may reasonably require (it being acknowledged that such
opinion will, where applicable, contain customary qualifications for the
jurisdiction in question as to the giving of a guarantee in such
circumstances (for example, regarding lack of corporate benefit, financial
assistance and insolvency laws)).
16.5 Execution of an Accession Document
Each Accession Document and accession agreement to the Subordination Deed
shall be executed by the relevant new Guarantor, by the Obligors' Agent
(for itself and as agent for the existing Obligors) and by the Facility
Agent (for itself and on behalf of the other Finance Parties).
-43-
16.6 Illegality Assistance Exemptions
If it is unlawful for a member of the Group to become a Guarantor pursuant
to Clause 16.3 (Further Guarantors) or provide security pursuant to Clause
17.2 (Further Security), then the Obligors' Agent will use all reasonable
endeavours to overcome the prohibition (and in the case of a financial
assistance or similar prohibition will procure such member of the Group
will undertake such whitewash procedures as are possible) to enable the
relevant guarantee and security to be given as soon as is reasonably
practicable.
17. SECURITY AND RELEASES
17.1 Initial Security
The obligations of the Obligors under the Finance Documents are to be
guaranteed and secured by the Security Documents.
17.2 Further Security
The Parent will procure that:
17.2.1 any Material Group Company which has not entered into a Security
Document shall (to the extent permitted under applicable law), as
soon as reasonably practicable after being required to do so by the
Facility Agent, execute a Security Document(s) in favour of the
Security Agent for the benefit of the Finance Parties over all its
assets, business and undertaking as security (inter alia) for all
indebtedness under the Finance Documents, such security to provide
(to the extent permissible under applicable law) equivalent security
over such assets, business and undertaking (together "Relevant
Assets") as granted to the Security Agent by Group Companies with
similar Relevant Assets incorporated in the same jurisdiction as
such Material Group Company and, if such Material Group Company is
incorporated in a jurisdiction in which no other Group Company
incorporated in that jurisdiction with similar Relevant Assets has
granted security or if there is no Group Company in that
jurisdiction, the Security Documents shall be in such form and
substance as (following consultation with the Obligors' Agent) may
be reasonably required by the Facility Agent; and
17.2.2 the immediate Holding Company of such Material Group Company will
(to the extent permissible under applicable law) execute a Security
Document in favour of, and in form and substance satisfactory to,
the Security Agent over the entire issued share capital of such
Material Group Company.
17.3 Additional Formalities
On each occasion that a Security Document is entered into pursuant to
Clause 17.2 (Further Security), there shall be delivered to the Facility
Agent with the original Security Document certified copies of the documents
listed in paragraph 1 of Schedule 3 in respect of the relevant Group
Company which executes that Security Document, each to be in a form
satisfactory to the Facility Agent (acting reasonably), together with
evidence that any necessary and available financial assistance procedures
have been complied with and together with such legal opinions as the
Facility Agent may reasonably require (it being acknowledged that such
opinion will, where applicable,
-44-
contain customary qualifications for the jurisdiction in question as to the
granting of such security in the circumstances, and over the assets, in
question).
17.4 Release of Security
If any Obligor shall dispose of any asset (including shares in any other
Group Company) which is the subject of security created in favour of the
Finance Parties and such disposal is permitted by the terms of the Finance
Documents or is otherwise consented to pursuant to the terms of the Finance
Documents, then such asset shall be automatically released from such
security and the Security Agent shall (and is hereby authorised by the
Finance Parties to) execute such documents effecting the release of such
asset from such security as shall be required to allow the disposal to take
place.
17.5 Release of Guarantors
If all of the shares in a Group Company which is a Guarantor are disposed
of to a person or persons who are not a member of the Group and such
disposal is permitted by the terms of the Finance Documents or consented to
pursuant to the terms of the Finance Documents and as a result the
Guarantor ceases to be a member of the Group, the Facility Agent and the
Security Agent shall promptly (and are hereby authorised by the Finance
Parties to) execute such documents as may be necessary to release such
Guarantor (and its assets) from all past, present and future liabilities
(including rights of contribution) under the Finance Documents and on the
basis that all existing Guarantors hereby consent to such release and
confirm that their respective liabilities as Guarantor shall not be
discharged or otherwise affected as a consequence of such release.
18. REPRESENTATIONS AND WARRANTIES
18.1 Representations and Warranties
Each Obligor represents and warrants to each of the Finance Parties that:
18.1.1 Incorporation: It, and each of its Subsidiaries, is duly
incorporated and validly existing with limited liability under the
laws of the place of its incorporation (or, in the case of Octel
Associates, constitutes a partnership in accordance with English
law) and has the power to own its assets and carry on its business
as it is now being conducted.
18.1.2 Power: It has the power to enter into, exercise its rights under,
and perform and comply with its obligations under, each of the
Transaction Documents to which it is party and to carry out the
transactions contemplated by such Transaction Documents.
18.1.3 Authority: All actions, conditions and things required to be taken,
fulfilled and done by it in order:
(a) to enable it to enter into, exercise its rights under, and
perform and comply with its obligations under, the Transaction
Documents to which it is party and to carry out the
transactions contemplated by such Transaction Documents; and
(b) to ensure that those obligations are valid, legally binding
and, subject to reservations, enforceable in accordance with
their terms; and
-45-
(c) to make each of the Transaction Documents to which it is party
admissible in evidence in the courts of the jurisdiction to
which it has submitted in such Transaction Document (save for
any filings or registrations required in relation to the
security constituted by the Security Documents, which filings
or registrations will be made promptly after execution of the
relevant Security Documents and in any event within applicable
time limits); and
(d) to create the security constituted by the Security Documents to
which it is party and, subject to the reservations, to ensure
that such security has the ranking specified therein,
have been taken, fulfilled and done (save, in the case of sub-clause 18.1.3,
to the extent permitted under sub-clause 15.7.2).
18.1.4 Consents and Compliance with laws: All consents and filings
required:
(a) for its entry into, exercise of its rights, and performance and
compliance with its obligations under, each of the Transaction
Documents to which it is party; and
(b) for it to carry out the transactions contemplated by each of the
Transaction Documents to which it is a party,
have been obtained or made and are in full force and effect (save for any
filings or registrations required in relation to the security constituted by
the Security Documents, which filings or registrations will be made promptly
after execution of the relevant documents and in any event within applicable
time limits), except (in the case of any Transaction Document which is not a
Finance Document) where failure to obtain or make the same or failure of the
same to be in full force and effect could not reasonably be expected to have
a Material Adverse Effect. It and each of its Subsidiaries is in all
material respects in compliance with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, any and all
agencies of each of their respective jurisdictions of incorporation or
operation, except where failure to be in compliance could not reasonably be
expected to have a Material Adverse Effect.
18.1.5 Non-Conflict: Its entry into, exercise of its rights under and
performance and compliance with its obligations under each of the
Finance Documents to which it is party and the carrying out of the
transactions contemplated by the Finance Documents do not:
(a) contravene any law, directive, judgment or order to which it or
any of its Subsidiaries is subject;
(b) in the case of AOC and Octel Associates, contravene any of the
Constitutional Documents applicable to it or, in the case of any
other Group Company, contravene its memorandum or articles of
association or other constitutional documents;
-46-
(c) breach any agreement or the terms of any consent to which it or
any of its Subsidiaries is a party or which is binding upon it
or any of its Subsidiaries or any of its or their respective
assets, in each case in a manner or to an extent which could
reasonably be expected to have a Material Adverse Effect;
(d) oblige it, or any of its Subsidiaries, to create any security or
result in the creation of any security over its or their
respective assets other than under the Security Documents.
18.1.6 Obligations Binding: Its obligations under the Transaction Documents
to which it is a party are valid, legally binding and, subject to
reservations, enforceable and each of the Security Documents to
which it is party constitute valid security ranking, subject to
reservations, in accordance with the terms of such documents.
18.1.7 Winding-up:
(a) No administrator, receiver, liquidator or similar officer has
been appointed with respect to it or any of its Subsidiaries or
its or any of their respective assets nor (so far as it is
aware) is any petition or proceeding for any such appointment
pending nor has any resolution for any such appointment been
passed.
(b) In the case of Octel Associates, in addition to the matters
referred to in sub-clause 18.1.7(a), no proceedings or other
steps have been commenced, and no order has been made, for its
dissolution and no other event has occurred which could
reasonably be expected to give rise to the dissolution of Octel
Associates.
18.1.8 No Defaults:
(a) No Event of Default has occurred and is continuing unwaived.
(b) No event has occurred and is continuing unwaived which
constitutes a default under any agreement or document to which
it or any of its Subsidiaries is a party and which has or could
reasonably be expected to have a Material Adverse Effect.
(c) No event has occurred and is continuing unwaived which, with
the giving of notice or the lapse of time or making of any
determination or fulfilment of any condition in each case as
provided for in the agreement or document concerned could
reasonably be expected to constitute a default, under any
agreement or document to which it or any of its Subsidiaries is
party and which has or could reasonably be expected to have a
Material Adverse Effect.
18.1.9 Litigation: No litigation, arbitration, administrative, regulatory
or similar proceeding is current, pending or, to its knowledge,
threatened:
-47-
(a) to restrain its entry into, the exercise of its rights under and
performance and compliance with its obligations under, or the
enforcement by it of, any of the Transaction Documents or the
carrying out of the transactions contemplated by the Transaction
Documents); or
(b) which has, or is reasonably likely to have, by itself or together
with any other such proceedings, a Material Adverse Effect.
18.1.10 Labour Disputes: There are no labour disputes current, pending or,
to its knowledge, threatened which have or are reasonably likely to
have a Material Adverse Effect.
18.1.11 No Security Interests/Guarantees:
(a) No Security Interest (or agreement to create the same) exists
on or over its or any of its Subsidiaries' assets, other than
a Permitted Security Interest (or an agreement to create the
same).
(b) Neither it nor any of its Subsidiaries has granted or agreed
to grant any guarantee, other than a Permitted Guarantee.
18.1.12 Assets: It or its Subsidiaries have good title to or valid leases
or licences of or are otherwise entitled to use all material assets
(including, without limitation, all Intellectual Property)
necessary to conduct the Business.
18.1.13 Consents, Licences and Filings for Business Operations: All
consents, licences and filings have been obtained or effected which
are necessary for the carrying on of the Business and all such
consents, licences and filings are in full force and effect and
there are no circumstances known to it which indicate that any such
consents, licences and filings are likely to be revoked or varied
in whole or in part, save in each case to the extent that absence
of any such consent, licence or filing or revocation or variation
of any such consent, licence or filing does not and could not
reasonably be expected to have a Material Adverse Effect.
18.1.14 Accounts:
(a) The audited consolidated financial statements (together with
the notes thereto) most recently delivered by or on behalf of
the relevant Obligor pursuant to sub-clause 19.6.4(a):
(i) give a true and fair view of the financial position of it
and its Subsidiaries as at the date to which they were
prepared and for the Financial Year then ended; and
(ii) (save as disclosed in the notes thereto) were prepared in
accordance with US GAAP (in the case of any such audited
consolidated financial statements of the Parent) or UK
GAAP (in the case of any such audited consolidated
financial statements of Octel Associates).
(b) The quarterly unaudited financial statements most recently
delivered pursuant to sub-clause 19.6.4(b):
-48-
(i) reasonably represent the financial position of it and
its Subsidiaries as at the date to which they were
prepared and for the Accounting Quarter then ended
(subject to normal year-end adjustments); and
(ii) were prepared on a basis substantially in accordance
with US GAAP (in the case of any such quarterly
unaudited financial statements of the Parent) or UK GAAP
(in the case of any such quarterly unaudited financial
statements of Octel Associates).
18.1.15 Material Adverse Changes:
(a) There has been no change in the Business or the assets of the
Group since 31 December 1998 which has or is reasonably
likely to have a Material Adverse Effect (ignoring any change
arising in connection with the Distribution or any of the
Transaction Documents or any other change notified to the
Facility Agent in writing before the date of this Agreement).
(b) There has been no change in the financial condition, business
or assets of the Group since the date of the most recently
delivered audited consolidated financial statements pursuant
to sub-clause 19.6.4(a) which has or is reasonably likely to
have a Material Adverse Effect.
18.1.16 Tax Liabilities:
(a) Except to the extent that any Group Company has the benefit
of an indemnity from GLCC under the Distribution Documents in
respect of such a claim, no claims are being, or are to its
knowledge reasonably likely to be, asserted against it or any
of its Subsidiaries with respect to Taxes imposed by any
government, statutory or public body or agency which are
reasonably likely to be determined adversely to it or to such
Subsidiary and which, if so adversely determined, would have
or be reasonably likely to have a Material Adverse Effect.
(b) All reports and returns on which such Taxes are required to
be shown have been filed punctually (or within any applicable
time limits) and all Taxes required to be paid have been paid
when due (or otherwise within any applicable time limit)
save, in each case, to the extent that failure to do so does
not have and is not reasonably likely to have a Material
Adverse Effect.
18.1.17 Agreed Financial Projections:
(a) All material statements of fact relating to the Business
which are reflected in the Agreed Financial Projections were
true and accurate in all material respects at the date at
which the Agreed Financial Projections were prepared.
(b) The Agreed Financial Projections represent the honestly held
opinions and views as at the date at which the Agreed
Financial Projections were
-49-
prepared of Octel Associates, AOC and the Management
regarding the future performance of the Business and the
other subject mater thereof and were arrived at after careful
consideration and were based on reasonable grounds.
(c) The projections and forecasts contained in the Agreed
Financial Projections were based upon assumptions (including
assumptions as to the future performance of the Business,
inflation, price increases and efficiency gains) which Octel
Associates, AOC and the Management carefully considered and
considered to be fair and reasonable as at the date at which
the Agreed Financial Projections were prepared.
(d) The Agreed Financial Projections do not omit to disclose any
matter known to Octel Associates, AOC or Management after due
and careful enquiry where failure to disclose such matter
would result in the Agreed Financial Projections (or any
information or projection contained therein) being misleading
in any material respect as at the date at which the Agreed
Financial Projections were prepared.
(e) Nothing has occurred or come to light since the date as at
which the Agreed Financial Projections were prepared which,
insofar as the Parent, Octel Associates, AOC or Management is
aware, renders any material facts contained therein
materially inaccurate or misleading or which makes any of the
opinions, projections or forecasts contained therein
materially unfair or unreasonable or renders any of the
assumptions upon which the projections are based materially
unfair or unreasonable.
18.1.18 Syndication Information Memorandum:
(a) The material statements of fact in relation to the assets,
financial condition and operations of the Business and the
Group contained in the Syndication Information Memorandum
were true, complete and accurate in all material respects at
the date ascribed thereto in the Syndication Information
Memorandum or (if no date is ascribed thereto) at the date of
the Syndication Information Memorandum.
(b) The opinions and views expressed in the Syndication
Information Memorandum represent the honestly held opinions
and views of Octel Associates, AOC and Management as at the
date of the Syndication Information Memorandum and were
arrived at after careful consideration and were based on
reasonable grounds.
(c) All projections and forecasts contained in the Syndication
Information Memorandum were based upon assumptions (including
assumptions as to the future performance of the Business,
inflation, price increases and efficiency gains) which Octel
Associates, AOC and Management carefully considered and
considered to be fair and reasonable as at the date of the
Syndication Information Memorandum.
-50-
(d) The Syndication Information Memorandum was not misleading at
the date thereof in any material respect nor did it omit to
disclose any matter failure to disclose which would result in
any information contained in the Syndication Information
Memorandum being misleading in any respect which could
reasonably be expected to be materially adverse to the
interests of the Finance Parties under the Finance Documents.
18.1.19 Latest Accounts:
(a) The Latest Accounts were (except as stated in the notes
thereto) prepared in accordance with US GAAP consistently
applied and give a true and fair view of the results of the
operations of the Group for the period to which they relate
and the financial position of the Group at the end of such
period.
(b) The Latest Interim Accounts were prepared on a basis
substantially in accordance with US GAAP and reasonably
represent the results of the operations of Octel Associates
and its Subsidiaries for the period to which they relate and
the financial position at the end of such period.
18.1.20 Other Documents:
(a) The Structure Document accurately records the structure of
the Group as it will be immediately following the
Distribution and the steps taken or to be taken in order to
effect the Distribution.
(b) The Distribution Documents as furnished to the Facility Agent
under this Agreement contain all the material terms of the
Distribution.
(c) The Senior Note Documents as furnished to the Facility Agent
under this Agreement contain all the material terms of the
agreements and arrangements between any Group Company and the
Senior Noteholders.
(d) The Intercompany Loan Agreements as furnished to the Facility
Agent under this Agreement contains all the material terms of
the agreements and arrangements between Octel Developments
and Octel Trading and Octel Trading and Octel Associates (as
the case may be) in respect of the Intercompany Loans.
18.1.21 Intellectual Property: The Intellectual Property it or any of its
Subsidiaries require in order to conduct its business:
(a) is beneficially owned by it or licensed to a member of the
Group free from any licences to third parties and Security
Interests which are materially prejudicial to the use of that
Intellectual Property and will not be adversely affected by
the transactions contemplated by the Transaction Documents;
(b) has not lapsed or been cancelled and all steps have been
taken to protect and maintain such Intellectual Property,
including paying renewal fees;
-51-
(c) comprises all Intellectual Property required by it to conduct
its business as it is now conducted and, so far as it is
aware after due and careful review and enquiry, the Business
does not infringe any intellectual property rights of any
third party; and
(d) where it is subject to any right, permission to use or
licence granted to or by any member of the Group, such
agreement has not been breached in any material respect or
terminated by any party,
except, in each case, in circumstances or to an extent which could not
reasonably be expected to have a Material Adverse Effect.
18.1.22 Environmental Warranties:
Save as expressly disclosed in the Environmental Report or the
Legal Report (each as defined in the April 1998 Agreement):
(a) it, and each of its Subsidiaries, are and have at all times
been, in compliance with all Environmental Laws and all
Environmental Approvals necessary in connection with the
ownership and operation of their respective businesses are in
full force and effect, in each case where failure to do so
would have, or be reasonably likely to have, a Material
Adverse Effect;
(b) to the best of its knowledge and belief having made due and
careful enquiry, there are no circumstances which could
reasonably be expected to prevent it or any of its
Subsidiaries being in compliance with any Environmental Law,
including, without limitation, obtaining or being in
compliance with any Environmental Approvals, in each case
where failure to do so could reasonably be expected to have a
Material Adverse Effect;
(c) there are no past or present acts or omissions of it or (to
the best of its knowledge and belief having made due and
careful enquiry) events, state of facts or circumstances
which have resulted in (or could reasonably be expected to
result in) any third party (including a regulatory authority)
taking any action or making any claim against it or any of
its Subsidiaries under any Environmental Laws including
remedial action (in particular in relation to contaminated
land) or the revocation, suspension, variation or non renewal
of any Environmental Approval, where such action or claim
could reasonably be expected to have a Material Adverse
Effect. Neither it nor any of its Subsidiaries has notice of
any complaints, demands, civil claims, enforcement
proceedings, requests for information, or of any action
required by any regulatory authority and there are no
investigations pending or threatened in relation to the
failure of it or any of its Subsidiaries to obtain any
Environmental Approval or comply with Environmental Law in
any such case which has or is reasonably likely to have a
Material Adverse Effect; and
-52-
(d) neither it, nor any of its Subsidiaries, has any actual or
contingent contractual obligation in respect of liabilities
arising under Environmental Laws or otherwise in connection
with matters pertaining to the Environment, in each case
which is material to the interests of the Finance Parties
under the Finance Documents.
18.1.23 Insurance: It and each of its Subsidiaries have in place
insurances complying with the requirements of sub-clause 19.2.4
and no act, omission, event or default has occurred which has
rendered or could reasonably be expected to render any policies of
insurance taken out by it void or voidable to an extent or in a
manner which could reasonably be expected to be materially adverse
to the interests of the Finance Parties under the Finance
Documents.
18.1.24 Partners:
(a) The Partners are the current partners of Octel Associates and
there are no other partners and no other person has any share
or interest in the assets of Octel Associates (other than
Permitted Security Interests and interests arising under the
Finance Documents) other than the Partners.
(b) The Constitutional Documents referred to in paragraph (b) of
the definition of "Constitutional Documents" in Clause 1.1
(Definitions) contain all the material terms of the
agreements and arrangements between the Partners in respect
of Octel Associates and there is no agreement in relation to
the constitution, objects or operation of Octel Associates,
other than those Constitutional Documents.
18.1.25 Governmental Regulation:
(a) It is not subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act or the Investment Company Act of
1940.
(b) It is not subject to regulation under any other federal or
state statute or regulation which may limit its ability to
incur Financial Indebtedness under the Finance Documents or
which may otherwise render all or any portion of the
obligations under the Finance Documents unenforceable, in
each case to an extent or in a manner which has or could
reasonably be expected to have a Material Adverse Effect.
18.1.26 Employee Benefit Plans:
(a) If it is subject to regulation under ERISA, it and each of
its ERISA Affiliates are in material compliance with all
applicable provisions and requirements of ERISA and the
regulations published thereunder with respect to each
Employee Benefit Plan.
(b) No ERISA Event has occurred or is reasonably expected to
occur which has or is reasonably likely to result in a
Material Adverse Effect.
-53-
(c) The present value of all accumulated benefit obligations
under each Pension Plan (based on the assumptions used for
the purposes of U.S. Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed the fair
market value of the assets of such Pension Plan to an extent
which has or is reasonably likely to result in a Material
Adverse Effect,
(d) The present value of all accumulated benefit obligations of
all underfunded Pension Plans (based on the assumptions used
for the purposes of U.S. Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed the fair
market value of the assets of all such underfunded Pension
Plans to an extent which has or is reasonably likely to
result in a Material Adverse Effect.
18.1.27 Year 2000 Compliance: It believes:
(a) (the Parent having undertaken a comprehensive review and
assessment) that all Computer Systems used by any member of
the Group are or will be, on a timely basis, Year 2000
Compliant; and
(b) (having made due enquiry) believes that each of the Group's
suppliers and customers which are of material importance to
the business and operations of the Group will also, on a
timely basis, ensure that their Computer Systems are Year
2000 Compliant,
in each case where failure to be Year 2000 Compliant could
reasonably be expected to have a Material Adverse Effect.
18.1.28 Repetition: The representations and warranties in Clause 18.1
(Representations and Warranties) shall be deemed repeated by each
Obligor on the date of each Utilisation Request, each Utilisation
Date and on the last day of each Interest Period by reference to
the facts and circumstances existing on such date, provided that:
(a) the representations and warranties set out in sub-clause
18.1.18 shall only be made on the date of the Syndication
Information Memorandum;
(b) the representations and warranties set out in sub-clauses
18.1.8(c) (No Defaults), 18.1.9 (Litigation), 18.1.10 (Labour
Disputes), 18.1.15(a) (Material Adverse Changes), 18.1.17
(Agreed Financial Projections), 18.1.19 (Latest Accounts),
18.1.20 (Other Documents) and 18.1.24 (Partners) shall only
be made on the date of this Agreement and only repeated on
the first Utilisation Date (if different); and
(c) the representations and warranties set out in sub-clauses
18.1.1 to 18.1.7 shall in addition be repeated on each date
on which an Accession Document is entered into pursuant to
sub-clause 5.2.3 or 16.3 (Further
-54-
Guarantors) or additional
security is entered into pursuant to Clause 17.2 (Further
Security) in respect of the relevant acceding Obligor.
19. UNDERTAKINGS
19.1 Duration of Undertakings
The undertakings in this Clause 19 shall continue for so long as any sum
remains payable or capable of becoming payable under the Finance Documents.
19.2 General Undertakings
19.2.1 Authorisations and Consents: Each Obligor will, and will procure
that each of its Subsidiaries will, apply for, obtain and promptly
renew from time to time and maintain in full force and effect all
consents and comply with the terms of all such consents, and
promptly make and renew from time to time all such filings (save
to the extent permitted under sub-clause 15.7.2), as may be
required under any applicable law or directive to enable it:
(a) to enter into, exercise its rights, and perform and comply
with its obligations under the Transaction Documents to which
it is party;
(b) to carry out the transactions contemplated by the Transaction
Documents to which it is a party;
(c) to ensure that its obligations under the Transaction
Documents to which it is party are valid, legally binding
and, subject to reservations, enforceable; and
(d) to ensure that each of the Security Documents to which it is
party constitutes valid security ranking, subject to the
reservations, in accordance with its terms,
except (in the case of any Transaction Document which is not a
Finance Document) where failure to do so could not reasonably be
expected to have a Material Adverse Effect.
19.2.2 Maintenance of Status and Authorisation: Each Obligor will, and
will procure that each of its Subsidiaries will:
(a) do all such things as are necessary to maintain its corporate
(or, in the case of Octel Associates, its partnership)
existence;
(b) ensure that it has the right and is duly qualified to conduct
its business and will obtain and maintain all material
consents and make all material filings necessary for the
conduct of such business and take all steps necessary to
ensure that the same are in full force and effect except
where failure to do so could not reasonably be expected to
have a Material Adverse Effect; and
(c) comply with all laws, regulations and directives binding upon
it and procure compliance by all of its respective officers
and employees with all applicable laws, regulation and
directives except where failure to be in
-55-
compliance could not reasonably be expected to have a
Material Adverse Effect;
19.2.3 Pari Passu Ranking: Each Obligor will ensure that its payment
obligations under each of the Finance Documents rank and will at
all times rank at least pari passu in right and priority of
payment with all its other present and future unsecured and
unsubordinated indebtedness (actual or contingent), except
indebtedness preferred solely by operation of law.
19.2.4 Insurances:
(a) Each Obligor will, and will procure that each of its
Subsidiaries (other than any Dormant Company) will, effect
and thereafter maintain insurances in respect of all its
material assets and business of an insurable nature with
reputable insurers of good standing. Such insurances must:
(i) provide cover against all risks which are normally
insured against by other companies owning or
possessing similar assets or carrying on similar
business;
(ii) be in such amounts as would in the circumstances be
prudent for such companies taking into account the
size and nature of the business carried on, and the
assets owned, by such companies and the jurisdictions
in which such businesses are carried on and such
assets located;
(iii) in the case of the Group's property damage and
business interruption insurance policies, be in the
joint names of Octel Associates and/or the owner of
the relevant assets and the Security Agent and:
(1) provide that the insurance shall not be rendered
void, voidable or unenforceable by reason of any
non-disclosure by the Security Agent, that the
insurer will give not less than 28 days written
notice to the Security Agent of any intention to
avoid such insurance and that the Security Agent
shall not in any circumstances be liable for the
relevant premium; and
(2) contain a loss payee clause providing that all
moneys payable in excess of $2,500,000 (or its
equivalent in other currencies) shall be paid to
(or to the order of) the Security Agent (for
application in accordance with Clause 14.6
(Insurances) of the April 1998 Agreement), which
shall alone be entitled to give a good discharge
therefor; and
(iv) in the case of any other Material Insurance, have the
interest of the Security Agent as mortgagee noted on
the relevant policy on or before the date falling two
months after the date of this Agreement.
(b) Each Obligor will, and will procure that each of its
Subsidiaries (other than any Dormant Company) will:
-56-
(i) supply to the Facility Agent on reasonable notice
copies of each Material Insurance required to be
maintained in accordance with sub-clause 19.2.4(a)(1)
and (2) above, together with the current premium
receipts relating thereto (or other evidence of the
existence of each such policy and the payment of
related premiums as the Facility Agent (acting
reasonably) may accept);
(ii) promptly notify the Facility Agent in writing of any
material change to its cover in respect of Material
Insurances from time to time; and
(iii) promptly notify the Facility Agent in writing of any
claim under any of its insurance policies which is
for, or is reasonably likely to result in a claim
under such policy for, an amount in excess of
$2,500,000 (or its equivalent in other currencies).
19.2.5 Taxes: Each Obligor will, and will procure that each of its
Subsidiaries will, pay when due (or within any applicable time
limit) all Taxes imposed by any government, statutory or public
body or agency upon it or any of them or any of its or their
assets, income or profits or any transactions undertaken or
entered into by it or any of them, except where:
(a) (and for so long as) the liability to pay any such Taxes is
being contested by that Obligor in good faith and by
appropriate means and proper provision or reserve for that
liability has been made by that Obligor; or
(b) failure to pay such amount could not reasonably be expected
to have a Material Adverse Effect.
19.2.6 Hedging Arrangements:
(a) Each Borrower will ensure, and each Hedging Bank agrees,
that:
(i) any Hedging Agreement to which it is at any time party
will be in the form of the ISDA 1992 Master Agreement
and will provide for "Second Method" and "Market
Quotation" in the event of a termination of any
hedging transaction entered into under such Hedging
Agreement whether upon a termination event or an Event
of Default (as defined therein);
(ii) if, on termination of any hedging transaction under
any Hedging Agreement to which any Borrower is a
party, a settlement amount or other amount falls due
from a Hedging Bank to any Borrower then, if the
security constituted by the Security Documents has
become enforceable, that amount shall be paid by such
Hedging Bank to the Security Agent and treated as
proceeds of enforcement of the security conferred by
the Security Documents for application in the order
prescribed in this Agreement;
(iii) until service of a notice by the Facility Agent under
Clause 20.3 (Cancellation and Repayment), no Hedging
Bank will exercise any
-57-
right it might otherwise have pursuant to any Hedging
Agreement to terminate any hedging transactions under
that Hedging Agreement or to refuse to make any
payment due from it thereunder; and
(iv) each Hedging Bank will, promptly after the Facility
Agent has served a notice under Clause 20.3
(Cancellation and Repayment), exercise any and all
rights it may have to terminate the hedging
transactions under each Hedging Agreement to which it
is party, unless the Facility Agent (acting on the
instructions of the Majority Banks) otherwise agrees
or requires.
19.2.7 Banking Business: Each Obligor will, and will procure that each of
its Subsidiaries will, only maintain bank accounts with Banks or
Approved Banks.
19.3 General Restrictions:
19.3.1 Amalgamations and Change of Business: No Obligor will, and each
Obligor will procure that none of its Subsidiaries will, except
with the prior written approval of the Majority Banks:
(a) amalgamate, merge or consolidate with or into any other
person; or
(b) materially change the nature of the business of the Group as
a whole.
19.3.2 Arm's Length Transactions:
(a) No Obligor will, and each Obligor will procure that none of
its Subsidiaries will, enter into any arrangement or
transaction (an "Affiliate Transaction") with any of its
Affiliates or any shareholder of it or any of its Affiliates
(each a "connected person"), unless:
(i) the terms of that Affiliate Transaction are no less
favourable to the relevant Group Company than those
terms that could be obtained at the time of that
Affiliate Transaction in arm's length dealings with a
person who is not such a connected person; or
(ii) that Affiliate Transaction (together with any other
Affiliate Transaction which is related thereto,
whether entered into at the same time or over a period
of time) involves an amount not exceeding $500,000.
(b) Sub-clause 19.3.2(a) shall not prohibit:
(i) arrangements or transactions pursuant to the
Transaction Documents;
(ii) disposals permitted under sub-clause 22.3.(d)
(Disposals) of the April 1998 Agreement;
(iii) intercompany credit or loans permitted under sub-
clause 22.3(j) (Loans) of the April 1998 Agreement;
-58-
(iv) issues of shares or relevant securities permitted under
sub-clause 19.4.1 (Control);
(v) arrangements or transactions where the party receiving the
benefit of the transaction being on less than arm's length
terms is an Obligor which has entered into Security
Documents constituting Security Interests over all or
substantially all of its assets; or
(vi) arrangements or transactions approved by the Majority Banks.
19.3.3 Distribution Documents: The Parent will not, and will procure that
none of its Subsidiaries will, amend, vary or waive any of the terms
of the Distribution Documents without the prior written consent of
the Majority Banks or exercise any discretion arising thereunder or
give any consent thereunder without the prior written consent of the
Majority Banks, except where the same is not materially prejudicial
to the interests of any Finance Party under the Finance Documents.
19.3.4 Disposals: [Note: There is a restriction on disposals under Clause
22.3(d) (Disposals) of the April 1998 Agreement which benefits the
Finance Parties. This restriction will continue to apply
notwithstanding the repayment of amounts outstanding under the April
1998 Agreement. The Obligors have agreed in Clause 30.5 (Changes to
April 1998 Agreement) not to amend such clause without the prior
written consent of the Majority Banks.]
19.3.5 Disposals for Full Consideration: [Note: There is a restriction on
disposals under Clause 22.3(e) (Disposals for Full Consideration) of
the April 1998 Agreement which benefits the Finance Parties. This
restriction will continue to apply notwithstanding the repayment of
amounts outstanding under the April 1998 Agreement. The Obligors
have agreed in Clause 30.5 (Changes to April 1998 Agreement) not to
amend such clause without the prior written consent of the Majority
Banks.]
19.3.6 Negative Pledge: No Obligor will, and each Obligor will procure that
none of its Subsidiaries will, create or agree to create or permit
to subsist any Security Interest on or over the whole or any part of
its undertaking or assets (present or future), except for:
(a) liens arising solely by operation of law and in the ordinary
course of business;
(b) rights of set-off existing in the ordinary course of trading
activities between any member of the Group and its respective
suppliers or customers;
(c) rights of set-off arising by operation of law or by contract by
virtue of the provision to any member of the Group of clearing
bank facilities, overdraft facilities or hedging facilities
permitted under this Agreement;
-59-
(d) any retention of title to goods supplied to any member of the
Group where such retention is required by the supplier in the
ordinary course of its trading activities and on its standard
terms and the goods in question are supplied on credit;
(e) Security Interests (except for any Security Interest expressed
to be created as a floating charge) arising under finance
leases, hire purchase, conditional sale agreements or other
agreements for the acquisition of assets on deferred payment
terms permitted under sub-clause 19.3.11 and only to the extent
such Security Interests are granted by the relevant Obligor
over assets comprised within or constituted by such
arrangements;
(f) Security Interests arising under the Security Documents;
(g) Security Interests existing at the time of acquisition on or
over any asset acquired by it after the date of this Agreement
or, in the case of a person which becomes a member of the Group
after the date of this Agreement, any Security Interest
existing on or over its assets when it became a member of the
Group, in each case where such Security Interest was not
created in contemplation of or in connection with that
acquisition or, as the case may be, it becoming a member of the
Group;
(h) any Security Interest to which the Majority Banks have given
their prior written consent; or
(i) Security Interests (except for any Security Interest expressed
to be created as a floating charge) created otherwise then
pursuant to sub- clauses 19.3.6(a) to 19.3.6(h) (inclusive)
above securing Financial Indebtedness not exceeding an
aggregate amount of $2,500,000 (or its equivalent in other
currencies) at any time.
19.3.7 Factoring: [Note: There is a restriction on factoring under Clause
22.3(g) (Factoring) of the April 1998 Agreement which benefits the
Finance Parties. This restriction will continue to apply
notwithstanding the repayment of amounts outstanding under the April
1998 Agreement. The Obligors have agreed in Clause 30.5 (Changes to
April 1998 Agreement) not to amend such clause without the prior
written consent of the Majority Banks.]
19.3.8 Indebtedness: No Obligor will, and each Obligor will procure that
none of its Subsidiaries will, incur or agree to incur or permit to
subsist any Financial Indebtedness other than Permitted
Indebtedness. For this purpose, "Permitted Indebtedness" means:
(a) Financial Indebtedness arising under the Transaction Documents,
provided that:
(i) the maximum aggregate principal amount of the Senior Notes
shall at no time exceed $150,000,000; and
-60-
(ii) the maximum aggregate principal amount outstanding under
the Barclays Facility Letter shall at no time exceed
$20,000,000 (or its equivalent in other currencies);
(b) Financial Indebtedness permitted by sub-clauses 19.3.9, 19.3.11
and 19.3.12 hereof and Clause 22.3(j) of the April 1998
Agreement;
(c) Financial Indebtedness incurred under unsecured overdraft and
working capital facilities (including hedging, foreign exchange
and guarantee facilities) in an aggregate principal amount
which, when aggregated with the aggregate principal amount
outstanding under the Barclays Facility Letter at the same
time, does not exceed $30,000,000 (or its equivalent in other
currencies);
(d) Financial Indebtedness incurred under the unsecured settlement
facility (comprising BACS and Business Master facilities) made
available by Barclays Bank PLC to AOC in an aggregate principal
amount not exceeding (Pounds)17,600,000;
(e) Financial Indebtedness incurred under unsecured overdraft and
working capital facilities in respect of which a Letter of
Credit (as defined in the April 1998 Agreement) or Bank
Guarantee (as defined in the April 1998 Agreement) (in an
amount not less than the maximum principal amount of such
facilities) has been issued under the Tranche B Facility made
available under the April 1998 Agreement;
(f) any Financial Indebtedness to which the Majority Banks have
given their prior written consent;
(g) any Financial Indebtedness not falling within sub-clauses
19.3.8(a) - 19.3.8(f) (inclusive) or sub-clause 19.3.8(h), the
aggregate principal amount of which for the Group taken as a
whole does not at any time exceed $2,500,000 (or its equivalent
in other currencies); or
(h) any Financial Indebtedness the proceeds of which are applied in
accordance with Clause 14.3(b) of the April 1998 Agreement;
19.3.9 Guarantees: No Obligor will and each Obligor will procure that none
of its Subsidiaries will, grant or agree to grant or permit to
subsist any guarantee by it, other than a Permitted Guarantee. For
this purpose, "Permitted Guarantee" means:
(a) guarantees given in the ordinary course of business in respect
of any obligations of Octel Resources or any wholly-owned
Subsidiary of Octel Resources;
(b) guarantees contained in this Agreement or any Transaction
Document;
(c) any guarantee issued during an Accounting Quarter in connection
with a Permitted Investment the maximum liability under which
(when
-61-
aggregated (without double-counting) with the other items in
respect of the Permitted Investment specified in paragraph (b)
of the definition of "Permitted Investment" in Clause 1.1
(Definitions)) does not exceed the relevant Unutilised
Available Amount in respect of that Accounting Quarter at the
relevant time; or
(d) any guarantee to which the Majority Banks have given their
prior written consent; or
(e) any guarantees not falling within sub-clauses (a) to (d)
(inclusive) above, the maximum aggregate actual or contingent
liability under which the Group taken as a whole does not at
any time exceed $2,500,000 (or its equivalent in other
currencies).
19.3.10 Loans: [Note: There is a restriction on loans under Clause 22.3(j)
(Loans) of the April 1998 Agreement which benefits the Finance
Parties. This restriction will continue to apply notwithstanding
the repayment of amounts outstanding under the April 1998
Agreement. The Obligors have agreed in Clause 30.5 (Changes to
April 1998 Agreement) not to amend such clause without the prior
written consent of the Majority Banks.]
19.3.11 Leasing Arrangements: No Obligor will, and each Obligor will
procure that none of its Subsidiaries will, enter into or have
outstanding any Financial Indebtedness of a type described in
paragraph (e) or (g) of the definition of "Financial Indebtedness"
in Clause 1.1 (Definitions) (which, for the avoidance of doubt,
shall not include operating leases) except where the aggregate
capital element of all future rentals during any Financial Year of
the Parent under all such Financial Indebtedness (determined in
accordance with US GAAP) does not exceed $2,500,000 (or its
equivalent in other currencies).
19.3.12 Hedging Transactions: No Group Company will enter into any interest
rate swap, cap, ceiling, collar or floor or any currency swap,
futures, foreign exchange or commodity contract or option, other
than:
(a) the Hedging Agreements; or
(b) for hedging interest rate, currency or commodity exposure
entered into by a Group Company in the ordinary course of its
business (and not for speculative purposes).
19.3.13 Joint Ventures: No Group Company will except with the prior written
consent of the Majority Banks, enter into or permit to subsist any
joint venture, partnership or equivalent arrangement with any
person, other than:
(a) any such joint venture, partnership or equivalent arrangement
subsisting at the date of this Agreement; or
(b) any Permitted Investment, provided that, in connection with
the making of any Permitted Investment, no Group Company shall
incur any liability (whether contractual or otherwise) (an
"ancillary liability") (excluding
-62-
for this purpose any liability in respect of Financial
Indebtedness the amount of which has been included in the
calculation of the Available Amount in respect of the
Accounting Quarter in which that Permitted Investment is made)
where that ancillary liability has or could reasonably be
expected to have a Material Adverse Effect; or
(c) commercial contracts entered into in the ordinary course of
trading not involving the acquisition of shares or similar
investments or interests in partnerships.
19.3.14 Acquisitions and Investments: No Group Company will:
(a) acquire any real property or business or acquire any
Subsidiary or the whole or substantially the whole of the
assets of any other person or enter into any agreement so to
do; or
(b) own any interest in any share or equity related investment,
in each case, without the prior written consent of the Majority
Banks, save for:
(i) pursuant to the Distribution Documents;
(ii) any shares or partnership interests owned by it in
entities which are at the date of this Agreement (and
which at the relevant time remain) its Subsidiaries or
Part Owned Entities, or in any Subsidiary formed after
the date of this Agreement;
(iii)any acquisition by a Group Company pursuant to a disposal
permitted under sub-clause 19.3.4;
(iv) any acquisition of Cash Equivalents for treasury
management purposes;
(v) a Permitted Investment; or
(vi) any other acquisition of any business, assets or shares
in a limited liability company carrying on any business
similar to or connected with (or related to the
development of) the Business, provided that the aggregate
of:
(1) all amounts paid or to be paid during an Accounting
Quarter in connection with such acquisition; and
(2) the liabilities assumed or incurred during an
Accounting Quarter in respect of Financial
Indebtedness (whether by way of novation, guarantee
or otherwise) by any member of the Group in
connection with or as a result of that acquisition,
does not exceed the Unutilised Available Amount in
respect of that Accounting Quarter at the relevant time,
and provided further that, in connection with the making
of that acquisition, no Group
-63-
Company shall incur any liability (whether contractual or
otherwise) (an "ancillary liability") (excluding for this
purpose any liability in respect of Financial
Indebtedness the amount of which has been included in the
calculation of the Available Amount in respect of that
Accounting Quarter) where that ancillary liability has or
could reasonably be expected to have a Material Adverse
Effect.
19.4 Shares and Share Capital:
19.4.1 Control: No Obligor will, and each Obligor will procure that none of
its Subsidiaries will, except with the prior written consent of the
Majority Banks, allot or issue any shares or any relevant securities
(as defined in Section 80(2) of the Companies Act 1985) other than:
(a) an issue of shares or relevant securities expressly referred to
in the Distribution Documents;
(b) by one member of the Group to another member of the Group which
is Octel Resources or a wholly-owned Subsidiary of Octel
Resources;
(c) by Octel America to the Parent;
(d) an issue of shares in the Parent the proceeds of which are
applied in accordance with Clause 14.3(a) of the April 1998
Agreement; or
(e) pursuant to any Employee Share Scheme.
19.4.2 Variation of Documents: No Obligor will, and each Obligor will
procure that none of its Subsidiaries will, without the prior
written consent of the Majority Banks, agree to any amendment or
variation to the terms of:
(a) any of the Constitutional Documents which could reasonably be
expected to:
(i) affect the partnership structure of Octel Associates; or
(ii) be materially adverse to the interests of the Finance
Parties under the Finance Documents; or
(b) any of the Senior Note Documents or the Intercompany Loan
Agreements (as defined in the April 1998 Agreement), provided
that Octel Developments may agree with the trustee for the
Senior Noteholders minor or technical amendments to the Senior
Note Documents (not being adverse to the interests of the
Majority Banks) without the consent of the Majority Banks.
19.4.3 Restriction on Payment of Dividends: The Parent will not pay,
directly or indirectly, any dividend or make any other distribution
or pay any interest or other amount, whether in cash or otherwise,
on any shares or relevant securities (as defined in Section 80(2) of
the Companies Act 1985) or set apart any sum for any such purpose,
provided that the Parent may pay any dividend on the stock issued by
it if (and only if) each of the following conditions is met:
-64-
(a) that dividend is paid following delivery to the Facility Agent
of the unaudited consolidated management accounts of the Parent
for the last complete Accounting Quarter ending prior to the
date of the dividend payment;
(b) that dividend is paid following delivery to the Facility Agent
of the compliance certificate required to be delivered under
sub-clause 19.6.5(a) at the same time as the accounts referred
to in sub-clause 19.4.3(a) demonstrating compliance with Clause
19.7 (Financial Covenants);
(c) the Parent has not received notice from any Agent certifying
that an Event of Default or Potential Event of Default has
occurred and is continuing or would occur as a result of paying
that dividend;
(d) the Facility Agent has received 5 Business Days' notice of the
intention to make that dividend payment and the amount of that
payment; and
(e) the amount of the dividend payment does not exceed the
Unutilised Available Amount at the relevant time in respect of
the Accounting Quarter in which that dividend payment is made.
19.4.4 Restriction on Redemption and Acquisition of Own Shares: The Parent
will not directly or indirectly redeem, purchase, retire or
otherwise acquire for consideration any shares, stock or warrants
issued by it or set apart any sum for any such purpose (other than
for the purpose of any Employee Share Scheme) or otherwise reduce
its capital, in each case without the consent of the Majority Banks,
provided that the Parent may purchase or otherwise acquire any stock
issued by it if (and only if) each of the following conditions is
met:
(a) the consideration for any such purchase or other acquisition is
paid following delivery to the Facility Agent of the unaudited
consolidated management accounts of the Parent for the last
complete Accounting Quarter ending prior to the date of the
payment of that consideration;
(b) the consideration for any such purchase or other acquisition is
paid following delivery to the Facility Agent of the compliance
certificate required to be delivered under sub-clause 19.6.5(a)
at the same time as the accounts referred to in sub-clause
19.4.4(a) demonstrating compliance with Clause 19.7;
(c) the Parent has not received notice from any Agent certifying
that an Event of Default or Potential Event of Default has
occurred and is continuing or would occur as a result of that
purchase or other acquisition;
(d) the Facility Agent has received 5 Business Days' notice of the
intention to make that that purchase or other acquisition and
the amount of the consideration for it; and
(e) the aggregate consideration for that purchase or other
acquisition does not exceed the Unutilised Available Amount at
the relevant time in respect of
-65-
the Accounting Quarter in which that purchase or other
acquisition is made.
19.4.5 Cashflow Restrictions: No Obligor will, and each Obligor will
procure that none of its Subsidiaries will, be a party to any
contractual arrangement pursuant to which any member of the Group is
prohibited from making any payment of dividends or other cash
distributions on its share capital, other than the Finance Documents
and the Senior Note Documents.
19.4.6 Payment Restrictions: [Note: There is a restriction on the making of
certain payments under Clause 22.4(f) (Payment Restrictions) of the
April 1998 agreement which benefits the Finance Parties. This
restriction will continue to apply notwithstanding the repayment of
amounts outstanding under the April 1998 Agreement. The Obligors
have agreed in Clause 30.5 (Changes to the April 1998 Agreement) not
to amend such clause without the prior written consent of the
Majority Banks.]
19.4.7 Holding Companies: The Parent shall not, and shall procure that
neither Octel Developments nor any Holding Company of Octel
Developments, shall:
(a) carry on any trading activities related to the Business; or
(b) own any assets required for use in the Business;
19.4.8 Redemption or Purchase of Senior Notes: Octel Developments shall
not, and the Parent shall procure that no other member of the Group
will, save as permitted under sub-clause 22.4(f) of the April 1998
Agreement:
(a) repay, redeem, prepay (by defeasance or otherwise) or otherwise
retire the principal amount of the Senior Notes; or
(b) purchase, repurchase, acquire or agree to acquire (or procure
any other person to acquire on its account) all or any part of
the Senior Notes.
19.5 Environmental Undertakings:
Each Obligor will, and will procure that each of its Subsidiaries will:
19.5.1 comply with the terms and conditions of all Environmental Approvals
and all Environmental Laws applicable to it where failure so to do
would have or be reasonably likely to have a Material Adverse Effect
and will implement procedures to monitor compliance and contain
liability under any Environmental Laws;
19.5.2 promptly upon receipt of the same after the date of this Agreement,
notify the Facility Agent of any claim, notice or other
communication served on it in respect of or if it becomes aware of:
(a) any suspension, revocation or material variation of any
Environmental Approval applicable to it (save where such
suspension or revocation arises by reason of and is immediately
followed by the issue of an
-66-
Environmental Approval in substantially the same terms) which
would have or be reasonably likely to have a Material Adverse
Effect; or
(b) any breach of any Environmental Laws by a Group Company which
has or is reasonably likely to have a Material Adverse Effect;
or
(c) any material unbudgeted investment by a Group Company required
to maintain, acquire or renew any Environmental Approval; or
(d) the issue of any enforcement or prohibition or similar notice
by a regulatory authority or receipt by any member of the Group
of any complaint, demand, civil claim or enforcement proceeding
which has or is reasonably likely to have a Material Adverse
Effect; and
19.5.3 use all reasonable endeavours (by employing the best available
techniques not involving excessive cost) to prevent any acts,
omissions, events, state of facts or circumstances occurring or
being exacerbated which could result in any third party taking any
action or making any claim against any member of the Group under any
Environmental Laws where any such action or claim could reasonably
be expected to have a Material Adverse Effect.
19.6 Information and Accounting Undertakings:
19.6.1 Events of Default: Each Group Company (through the Obligors' Agent)
will promptly notify the Facility Agent of the occurrence of any
Event of Default or Potential Event of Default and each Group
Company will from time to time on reasonable request deliver to the
Facility Agent a certificate from one of its directors confirming
that no Event of Default or Potential Event of Default has occurred
and is continuing or setting out details of any Event of Default or
Potential Event of Default and the action taken or proposed to be
taken to remedy it.
19.6.2 Books of Account: Each Group Company will keep proper books of
account relating to its business and will permit the Facility Agent
or any authorised representative of the Facility Agent upon
reasonable notice and at reasonable times to visit it and inspect
the same at the place where they are maintained.
19.6.3 Appointment of Auditors: Except with the prior written consent of
the Majority Banks, no Group Company will appoint any auditors other
than Price Xxxxxxxxxx, Xxxxx & Xxxxx, Coopers & Xxxxxxx, KPMG,
Xxxxxx Xxxxxxxx or Deloitte & Touche or any amalgamation of the same
or their successors.
19.6.4 Financial Statements: The Parent (or, as the case may be, Octel
Associates) will deliver to the Facility Agent for distribution to
the Banks sufficient copies for each of the Banks of the following:
(a) as soon as available and in any event within 110 days after the
end of each of its Financial Years, the audited consolidated
financial statements of the Group and the audited consolidated
financial statements of Octel Associates for that Financial
Year;
-67-
(b) as soon as available and in any event within 45 days of the end
of each Accounting Quarter, the quarterly unaudited financial
statements of the Group and the quarterly unaudited financial
statements of Octel Associates and its Subsidiaries as at the
end of and for that Accounting Quarter; and
(c) not less than 60 days after the beginning of each of its
Financial Years, the Operating Budget for such Financial Year;
such accounts, Operating Budget and update to the Operating Budget:
(i) in the case of audited annual financial statements:
(1) in respect of the Parent, to be in the form of, and
contain the same information as a Form 10K; and
(2) in respect of Octel Associates, to include a profit
and loss account, balance sheet, cash-flow statement
and directors' and auditors' report thereon;
(ii) in the case of quarterly unaudited financial statements:
(1) in respect of the Parent, to be in the form of and
contain the same information as a Form 10Q; and
(2) in respect of Octel Associates, to include a profit
and loss account, balance sheet, cash-flow
statement;
(iii) in the case of the Operating Budget, to be in a format
and with a level of information reasonably satisfactory
to the Facility Agent,
and, in each case, to have been approved by the chief financial officer of
the Parent or Octel Associates (as the case may be) (or another officer
acceptable to the Facility Agent).
-68-
19.6.5 Financial Covenant Compliance Certificates/Management Meetings:
(a) Each of the annual financial statements of the Parent and each of
the quarterly financial statements of the Parent for an
Accounting Quarter delivered under sub-clause 19.6.4 must be
accompanied by a certificate signed by the chief financial
officer of the Parent (or other officer acceptable to the
Facility Agent) and another director of the Parent certifying
whether or not, as at the date of the relevant accounts, the
Parent was in compliance with the financial covenants contained
in Clause 19.7 (Financial Covenants) (such certificate to contain
reasonably detailed calculations acceptable to the Facility Agent
demonstrating such compliance) confirming that, as at that date,
no Event of Default or Potential Event of Default had occurred or
giving details of any Event of Default or Potential Event of
Default which has occurred and the action taken or proposed to be
taken to remedy it.
(b) Each of the annual audited financial statements of the Parent
delivered under sub-clause 19.6.4(a) above must be accompanied by
a certificate from the Auditors (in such form and with such level
of detail as the Facility Agent may reasonably require):
(i) demonstrating whether or not as at the date of such
financial statements the Parent was in compliance with the
financial covenants contained in Clause 19.7 (Financial
Covenants); and
(ii) confirming the ratio of Total Debt to EBITDA (together with
a calculation of how that ratio has been determined) for the
purpose of Clause 14.7 (Surplus Cash Flow) of the April 1998
Agreement and the definition of Available Amount in Clause
1.1. (Definitions).
(c) Each of the quarterly financial statements of the Parent
delivered under Sub-clause 19.6.4.(b) above must be accompanied
by a certificate signed by the chief financial officer of the
Parent (or other officer acceptable to the Facility Agent) and
another director of the Parent (in such form and with such level
of detail as the Facility Agent may reasonably require)
confirming:
(i) the amount of Surplus Cash Flow (together with a calculation
of how that amount has been determined) for the purposes of
Clause 14.7 (Surplus Cash Flow) of the April 1998 Agreement,
and the definition of Available Amount in Clause 1.1
(Definitions); and
(ii) the ratio of Total Debt to EBITDA (together with a
calculation of how that ratio has been determined) for the
purposes of Clause 14.7 (Surplus Cash Flow) of the April
1998 Agreement and the definition of Available Amount in
Clause 1.1. (Definitions).
(d) The Facility Agent acting on the instructions of the Majority
Banks shall be entitled to call for meetings with Management
twice in each Financial
-69-
Year of the Parent to discuss financial information delivered
under sub- clause 19.6.4 on reasonable prior written notice and
at times reasonably convenient to Management.
19.6.6 Accounting Reference Date: No alteration may be made to the
Financial Year end of the Parent without the prior written consent of
the Facility Agent acting on the instructions of the Majority Banks
(in which event the Facility Agent may require such changes to the
financial covenants contained in this Agreement as will fairly reflect
such change) and the Parent shall procure that the Financial Year end
of each of its Subsidiaries shall be the same as its own.
19.6.7 Other Information: Each Group Company will promptly deliver to the
Facility Agent for distribution to the Banks:
(a) details of any litigation, arbitration, administrative or
regulatory proceedings which, if resolved against it, would
result or be reasonably likely to (whether itself or together
with any related claims) result in the Group suffering a loss in
excess of $2,500,000 (or its equivalent in other currencies) or
would have or be reasonably likely to have a Material Adverse
Effect;
(b) details of any labour dispute affecting it which has or is
reasonably likely to have a Material Adverse Effect;
(c) at the same time as sent to its creditors or shareholders, any
other document or information sent to all or any class of its
creditors or shareholders (excluding for this purpose creditors
which are members of the Group);
(d) such other information relating to its financial condition or
operation as the Facility Agent (or any other Bank through the
Facility Agent) may from time to time reasonably request (except
where the information is subject to confidentiality obligations
owed to a person outside the Group and the relevant Group Company
has used all reasonable endeavours to have that confidentiality
obligation waived in respect of that information, but without
success);
(e) details of any breach of the provisions of any of the Senior Note
Documents or the Intercompany Loan Agreements by any party
thereto of which it is aware;
(f) details of any breach of the provisions of any of the
Distribution Documents by any parts thereto of which it is aware
where such breach could reasonably be expected to be material to
the interests of the Finance Parties under the Finance Documents;
(g) details of any Subsidiary formed by it; and
(h) details of any Group Company which becomes, or ceases to be, a
Material Group Company after the date of this Agreement.
-70-
19.6.8 Approved Accounting Principles: All financial statements of the
Parent delivered or to be delivered to the Facility Agent under this
Agreement shall be prepared in accordance with the Approved Accounting
Principles. If as a result of a change in accounting principles such
financial statements are required to be prepared on a different basis
(and that difference is or could reasonably be expected to be relevant
to the calculation of the financial ratios under this Agreement or
otherwise material to the interests of the Finance Parties under this
Agreement):
(a) the Obligors' Agent shall, as soon as reasonably practicable
after becoming aware of that change, so advise the Facility
Agent;
(b) on request of the Facility Agent, the Obligors' Agent and the
Facility Agent (on behalf of the Banks) shall negotiate in good
faith with a view to agreeing such amendments to Clause 19.7
(Financial Covenants) and/or the definitions of any or all of the
terms used therein as are necessary to give the Banks comparable
protection to that contemplated at the date of this Agreement;
(c) if amendments satisfactory to the Banks are agreed by the
Obligors' Agent and the Facility Agent in writing within 30 days
of such notification to the Agent, those amendments shall take
effect in accordance with the terms of that agreement; and
(d) if such amendments are not so agreed within 30 days, within 15
days after the end of that 30 day period, the Obligors' Agent
shall either:
(i) deliver to the Facility Agent, in reasonable detail and in a
form satisfactory to the Facility Agent, details of all such
adjustments as need to be made to the relevant financial
statements in order to bring them into line with Approved
Accounting Principles; or
(ii) ensure that the relevant financial statements are prepared
in accordance with Approved Accounting Principles.
19.7 Financial Covenants:
The Parent undertakes that it will procure that:
19.7.1 Net Interest Cover: The ratio of EBITDA to Net Interest shall not,
in respect of the relevant testing period specified in sub-clause
19.8.1 ending on each of the dates specified in Column A below, be
less than the ratio specified opposite that date in Column B below:
Column A Column B
30 September 1999 4.50:1
31 December 1999 4.50:1
31 March 2000 4.75:1
30 June 2000 5.00:1
30 September 2000 5.25:1
31 December 2000 5.50:1
-71-
31 March 2001 5.75:1
30 June 2001 6.00:1
30 September 2001 6.25:1
31 December 2001 6.50:1
31 March 2002 6.50:1
30 June 2002 6.50:1
30 September 2002 6.50:1
31 December 2002 6.50:1
19.7.2 Fixed Charge Cover: The ratio of Cashflow to Total Debt Service
shall not, in respect of the relevant testing period specified in
sub-clause 19.8.1 ending on each of the dates specified in Column A
below, be less than the ratio specified opposite that date in Column B
below:
Column A Column B
30 September 1999 1.05:1
31 December 1999 1.05:1
31 March 2000 1.05:1
30 June 2000 1.05:1
30 September 2000 1.05:1
31 December 2000 1.05:1
31 March 2001 1.05:1
30 June 2001 1.05:1
30 September 2001 1.05:1
31 December 2001 1.05:1
31 March 2002 1.05:1
30 June 2002 1.05:1
30 September 2002 1.05:1
31 December 2002 1.05:1
19.7.3 Leverage: The ratio of Total Debt on each date specified in Column A
below to EBITDA in respect of the relevant testing period specified in
sub- clause 19.8.1 (Calculation) ending on that date, shall not be
greater than the ratio specified opposite that date in Column B below:
Column A Column B
30 September 1999 2.00:1
31 December 1999 2.00:1
31 March 2000 1.88:1
30 June 2000 1.75:1
30 September 2000 1.50:1
31 December 2000 1.50:1
31 March 2001 1.45:1
30 June 2001 1.40:1
30 September 2001 1.35:1
31 December 2001 1.25:1
31 March 2002 1.25:1
30 June 2002 1.25:1
-72-
30 September 2002 1.25:1
31 December 2002 1.25:1
19.8 Calculation:
19.8.1 The covenants contained in Clause 19.7 (Financial Covenants) will
be tested on a rolling aggregate basis for the immediately
preceding 12 months ending on each of the dates specified in the
relevant Column A.
19.8.2 The covenants contained in Clause 19.7 (Financial Covenants) will
be tested by reference to the accounts delivered to the Facility
Agent under sub-clause 19.6.4(b) on the most recent Accounting
Quarter, unless in any such case the audited accounts required to
be delivered to the Facility Agent pursuant to Clause 19.6.4(a) for
the relevant period or any part thereof are available on the
relevant date on which any such covenant is tested, in which case
such audited accounts shall be used instead.
19.8.3 If the audited accounts are not available when the covenant is
tested, but when such audited accounts become available the audited
accounts demonstrate that the figures in any relevant quarterly
accounts utilised for any such calculation cannot have been
substantially accurate, then the Facility Agent shall require such
adjustment to the calculations made or to be made as it, in good
faith, considers appropriate to rectify such inaccuracy and
compliance with the covenants in Clause 19.7 (Financial Covenants)
will be determined by reference to such adjusted figures.
19.8.4 The components of each definition used in Clause 19.7 (Financial
Covenants) will be calculated in accordance with Approved
Accounting Principles as varied by this Agreement.
19.9 Financial Definitions:
In this Agreement, unless the context requires otherwise, the following
expressions shall have the following meanings:
"Cashflow" means, in respect of the relevant testing period, EBITDA for
that period:
(a) plus the amount of any tax rebate or credit in respect of any Tax
received in cash during that period;
(b) minus any Tax paid in cash during that period;
(c) minus all Capital Expenditure during that period;
(d) plus any extraordinary items received in cash during that period;
(e) minus any extraordinary items paid in cash during that period;
(f) minus the amount of the increase or plus the amount of the decrease
(as the case may be) in Working Capital during that period;
-73-
(g) plus the amount of any dividends or other profit distributions (net of
Tax) received in cash by any member of the Group during that period
from companies which are not members of the Group;
(h) minus the lesser of:
(i) the amount of any dividends paid and payments made by the Parent
in connection with any purchase by the Parent of stock issued by
it, in each case in accordance with Clause 19.4 (Shares and Share
Capital); and
(ii) $15,000,000;
(i) minus the amount of any net income of any subsidiary of AOC taken into
account in EBITDA for that period which whether by law or for any
other reason cannot be distributed by way of dividend, loan or other
means to AOC;
(j) after adding back or deducting, as the case may be, the amount of any
gain or any loss against book value arising on a disposal of any asset
(not being inventory disposed of in the ordinary course of trading)
during such period to the extent deducted or added back in arriving at
EBITDA for that period;
(k) after adding back or deducting, as the case may be, the amount of any
non-cash cost or any non-cash gain during such period to the extent
deducted or added back in arriving at EBITDA for that period;
(l) less (to the extent already included) the amount of any Net Proceeds
arising on the disposal of any asset (not being inventory disposed of
in the ordinary course of trading) which are applied in prepayment of
the advances or provision of cash cover in accordance with Clause 14.4
(Mandatory Prepayments on Asset Disposals) of the April 1998
Agreement;
(m) minus the additional amount (if any) paid in respect of non-current
liabilities in cash during that period to the extent not included in
EBITDA for that period; and
(n) minus the additional amount (if any) paid to the Group's pension fund
in cash during that period to the extent not included in EBITDA for
that period;
"EBIT" means, in respect of the relevant testing period, the consolidated
net income of the Group for such period:
(a) before any deduction of corporation tax or other taxes on income or
gains;
(b) before any deduction for Interest Payable;
(c) after deducting (to the extent included) Interest Receivable;
(d) excluding extraordinary items;
(e) after deducting (to the extent otherwise included) the amount of net
income (or adding back the loss) of any member of the Group (other
than the Parent) which
-74-
is attributable to any third party (not being a member of the Group)
which is a shareholder in such member of the Group;
(f) after deducting (to the extent otherwise included) any gain over book
value arising in favour of a member of the Group on the disposal of
any asset (not being any disposals made in the ordinary course of
trading) during such period and any gain arising on any revaluation of
any asset during such period; and
(g) after adding back (to the extent otherwise deducted) any loss against
book value incurred by a member of the Group on the disposal of any
asset (not being any disposals made in the ordinary course of trading)
during such period;
"EBITDA" means, in respect of the relevant testing period, EBIT for such
period adding back depreciation and amortisation of:
(a) goodwill;
(b) Transaction Costs on the basis set out in the Agreed Financial
Projections; and
(c) pre-paid hedge expenses incurred before the date of this Agreement in
respect of the Senior Notes on the basis set out in the April 1998
Agreed Financial Projections,
in each case during that period deducted in arriving at EBIT;
"Interest" means interest and amounts in the nature of interest paid or
payable in respect of any Financial Indebtedness of any member of the Group
excluding any interest paid or payable on Financial Indebtedness between
any member of the Group and any other member of the Group but including,
without limitation:
(a) the interest element of capital leases;
(b) discount and acceptance fees payable (or deducted) in respect of any
Financial Indebtedness;
(c) fees payable in connection with the issue or maintenance of any bond,
letter of credit, guarantee or other assurance against financial loss
which constitutes Financial Indebtedness and is issued by a third
party on behalf of a member of the Group;
(d) repayment and prepayment penalties or premiums payable or incurred in
repaying or prepaying any Financial Indebtedness; and
(e) commitment, utilisation and non-utilisation fees payable or incurred
in respect of Financial Indebtedness;
"Interest Payable" means, in respect of the relevant testing period, the
aggregate of:
(a) Interest accrued (whether or not paid or capitalised) during that
testing period;
(b) the amount of the discount element of any Financial Indebtedness
amortised during such period;
-75-
in each case, as an obligation of any member of the Group during that
period and calculated on the basis that:
(i) the amount of Interest accrued will be increased by an amount
equal to any amount payable by members of the Group under hedging
agreements in relation to that testing period; and
(ii) the amount of Interest accrued will be reduced by an amount equal
to any amount payable to members of the Group under hedging
agreements in relation to that testing period.
"Interest Receivable" means, in respect of the relevant testing period, the
amount of interest (which for this purpose shall include all interest and
amounts in the nature of interest, including (without limitation) amounts of
the type described in paragraphs (a) to (e) (inclusive) of the definition of
"Interest" above) accrued due (whether or not received) to members of the
Group (other than by other members of the Group) during such period;
"Net Interest" means, in respect of the relevant testing period, the amount
of Interest Payable during that period less the amount of Interest
Receivable;
"Total Debt" means, at any time, the aggregate outstanding principal or
capital amount of all Financial Indebtedness of the Group calculated on a
consolidated basis excluding any Financial Indebtedness between any member
of the Group and any other member of the Group provided that;
(a) in the case of capital leases referred to in the definition of
Financial Indebtedness, only the capitalised value of any items
falling thereunder as determined in accordance with Approved
Accounting Principles shall be included;
(b) in the case of guarantees referred to in the definition of Financial
Indebtedness, any items falling thereunder shall not be included to
the extent relating to indebtedness of another member of the Group
already included in this calculation;
"Total Debt Service" means, in respect of the relevant testing period, the
aggregate of:
(a) Net Interest for that period; and
(b) all scheduled repayments of principal under the terms of any Financial
Indebtedness of any member of the Group (excluding any Financial
Indebtedness between any member of the Group and any other member of
the Group) falling due during that period:
(i) including, without limitation, all capital payments falling due
in respect of any Financial Indebtedness falling within paragraph
(g) of the definition of that term; and
-76-
(ii) excluding any repayment or prepayment of any overdraft or
revolving credit facility falling due during that period and
capable of being simultaneously redrawn under the terms of the
relevant facility; and
"Working Capital" means trade and other debtors/receivables in respect of
operating items plus prepayments and inventories less trade and other
creditors/payables in respect of operating items and less accrued expenses
and accrued costs.
19.10 FTC Notification Undertaking
The Borrower undertakes to file, or to procure the filing of, any
necessary notifications to the FTC (and/or the US Department of Justice)
in connection with the proposed direct or indirect acquisition by members
of the Group of the Target Shares (as defined in the Bridge Facility)
within 30 days of the date of this Agreement.
19.11 Cancellation of Bridge Facility
On or prior to the delivery date of a Utilisation Request in respect of
the Tranche B Facility to the Facility Agent, the Borrower undertakes to
provide irrevocable payment instructions instructing the Facility Agent to
apply the proceeds of the Tranche B Advance in repayment of any amounts
outstanding under the Bridge Facility Agreement.
20. EVENTS OF DEFAULT
20.1 List of Events
Each of the events set out in this Clause 30.1 constitutes an Event of
Default, whether or not the occurrence of the event concerned is outside
the control of the Parent or any other member of the Group.
20.1.1 Payment Default: Any Obligor fails to pay on the due date any
amount payable by it under any of the Finance Documents at the
place and in the currency at or in which it is expressed to be
payable, unless:
(a) in the case of any payment of principal, the Facility Agent is
satisfied that such non-payment is due solely to
administrative or technical errors or delays in the
transmission of funds and payment is made within two Business
Days of its due date; or
(b) in the case of any payment (other than any payment of
principal) either:
(i) that payment is made within one Business Day of its due
date; or
(ii) the Facility Agent is satisfied that such non-payment is
due solely to administrative or technical errors or
delays in the transmission of the funds and payment is
made within two Business Days of its due date.
20.1.2 Breach of Other Obligations
(a) Any Obligor fails to comply with any of its obligations under
any of Clauses 19.3.3 to 19.3.9 (inclusive), 19.4 (Shares and
Share Capital) or 19.7 (Financial Covenants);
-77-
(b) Any Obligor fails to observe or perform any of its obligations
or undertakings under any of the Finance Documents, other than
those specified in sub-clause 20.1.1 or sub-clause 20.1.2(a)
and, if such failure is capable of remedy, it is not remedied
within 20 Business Days of the earlier of:
(i) the Facility Agent notifying the Obligors' Agent of such
default and requiring its remedy; or
(ii) such Obligor becoming aware of the relevant matter and
that it constitutes a default.
20.1.3 Misrepresentation: Any representation, warranty or written
statement which is made by any Obligor in any of the Finance
Documents or is contained in any certificate, statement or notice
provided under or pursuant to any of the Finance Documents proves
to be incorrect in any respect (or, if not contained in any Finance
Document, in any material respect) when made (or when deemed to be
made or repeated), unless the circumstances giving rise to that
default are capable of remedy and are remedied within 20 Business
Days of the earlier of:
(a) the Facility Agent notifying Obligors' Agent of such default
and requiring its remedy; or
(b) such Obligor becoming aware of the relevant matter and that it
constitutes a default.
20.1.4 Invalidity and Unlawfulness:
(a) Any provision of any Finance Document is or becomes invalid or
(other than by reason of the reservations) unenforceable for
any reason or shall be repudiated or the validity or
enforceability of any provision of any Finance Document shall
at any time be contested by any party thereto, in each case to
an extent or in a manner which could reasonably be expected to
be materially adverse to the interests of the Finance Parties
under the Finance Documents.
(b) Any Security Document fails or ceases to provide effective
security over the assets in respect of which security was
intended to be created by that Security Document in a manner
and to an extent which could reasonably be expected to be
materially adverse to the interests of the Finance Parties
under the Finance Documents.
(c) At any time it is or becomes unlawful under any applicable
jurisdiction for any Obligor to perform any of its obligations
under any of the Finance Documents in circumstances or to an
extent which could reasonably be expected to have a Material
Adverse Effect.
20.1.5 Insolvency: Any Group Company stops or suspends or threatens or
announces an intention to stop or suspend payment of its debts or
shall for the purpose of section 123(1) of the Insolvency Xxx 0000
(excluding section 123(1)(a) and on
-78-
the basis that the words "proved to the satisfaction of the court" are
deemed omitted from section 123(1)(e)) or any other applicable law be
deemed to be unable or shall admit its inability to pay its debts as
they fall due or shall become insolvent or a moratorium is declared in
respect of any Group Company.
20.1.6 Receivership and Administration:
(a) Any encumbrancer, receiver or similar officer takes possession
of, or is appointed over or in respect of (or any petition is
presented or meeting convened or application made for the purpose
of any such appointment over or in respect of):
(i) all or substantially all of the business or assets of any
Group Company; or
(ii) subject to Clause 20.2 (Excluded Events), any part (not
comprising all or substantially all) of the business or
assets of any Group Company.
(b) An administrator or similar officer is appointed over or in
respect of any Group Company or any petition is presented or
meeting convened or application made for the purpose of
appointing an administrator or other similar officer of, or for
the making of an administration order in respect of, any Group
Company.
20.1.7 Compositions and Arrangements:
(a) Any Group Company convenes a meeting of its creditors generally
or proposes or makes any arrangement or composition with, or any
assignment for the benefit of, its creditors generally.
(b) Any Group Company enters into any negotiations for or in
connection with the re-scheduling, restructuring or readjustment
of any Financial Indebtedness (other than under the Finance
Documents) by reason of financial difficulties.
20.1.8 Winding-up:
(a) Any meeting of a Group Company (other than a Dormant Company) is
convened for the purpose of considering any resolution for (or to
petition for) its winding up or any Group Company (other than a
Dormant Company) passes such a resolution or a petition is
presented for the winding-up of a Group Company (other than a
petition which is contested on bona fide grounds and discharged
at least seven days before its hearing date) or an order is made
for the winding-up of any Group Company (other than a Dormant
Company).
(b) Any meeting of the Partners or of the management committee of
Octel Associates is convened for the purpose of considering any
resolution for
-79-
(or to petition or apply for) its dissolution of Octel Associates
passes such a resolution or a petition or application is
presented for the dissolution of Octel Associates or an order is
made for the dissolution of Octel Associates.
20.1.9 Suspension of Payments: Any order is made or resolution passed or
other action taken for the suspension of payments, protection from
creditors or bankruptcy of a Group Company.
20.1.10 Similar Events Elsewhere: There occurs in relation to a Group
Company or any of their assets in any country or territory in which it
is incorporated or carries on business or to the jurisdiction of whose
courts it or any of its property is subject to any event which
corresponds in that country or territory with any of those mentioned
in sub-clause 20.1.5 to 20.1.9 (inclusive) above.
20.1.11 Attachment or Process: Subject to Clause 20.2 (Excluded Events), a
creditor attaches or takes possession of, or a distress, execution,
sequestration or other process is levied or enforced upon or sued out
against any of the undertaking, assets, rights or revenues of a Group
Company, except where:
(a) that Group Company is, in good faith, contesting the distress,
execution, attachment, sequestration or other process by
appropriate proceedings diligently pursued with a reasonable
prospect of success; and
(b) if those proceedings were adversely determined against that Group
Company, such distress, execution, attachment, diligence or other
process could not reasonably be expected to have a Material
Adverse Effect.
20.1.12 Cessation of Business: An Obligor ceases, or threatens or proposes
to cease, to carry on all or a substantial part of its business,
except:
(a) in consequence of any reorganisation, reconstruction or
amalgamation permitted under this Agreement; or
(b) as may result from any disposal of assets or wind-down of
business activities not otherwise prohibited by the terms of this
Agreement; or
(c) as previously approved in writing by the Majority Banks.
20.1.13 Cross Default: Any Financial Indebtedness of a Group Company or
Group Companies in excess of $2,500,000 (or its equivalent in other
currencies) in aggregate:
(a) is not paid when due or within any applicable grace period in any
agreement relating to that Financial Indebtedness; or
(b) becomes due and payable (or capable of being declared due and
payable) before its normal maturity or is placed upon demand (or
any commitment for any such indebtedness is cancelled or
suspended) by reason of a default or event of default however
described.
-80-
20.1.14 Litigation: Any litigation, arbitration, or administrative or
regulatory proceeding is commenced by or against a Group Company which
could reasonably be expected to be adversely determined against the
relevant Group Company and, if so determined, could reasonably be
expected to have a Material Adverse Effect.
20.1.15 Auditor's Qualification: The auditors of the Parent qualify their
report on the audited consolidated accounts of the Parent in any
manner which is, in the reasonable opinion of the Majority Banks,
materially adverse in the context of the Finance Documents.
20.1.16 Change of Control/Partners:
(a) Any Obligor is not or ceases to be a wholly-owned Subsidiary of
the Parent.
(b) A Change of Control occurs.
(c) Either of the Partners ceases to be a partner of Octel Associates
or any person (other than the Partners) becomes a partner of
Octel Associates.
20.1.17 Constitutional Documents: Any of the provisions of the
constitutional documents of any Group Company are amended, modified or
replaced in a manner or to an extent which could reasonably be
expected to:
(a) affect the partnership structure of Octel Associates; or
(b) be materially adverse to the interests of the Finance Parties
under the Finance Documents
in each case except with the prior approval of the Majority
Banks.
20.1.18 Environmental:
(a) Any material liability is imposed on any of the Finance Parties
as a consequence of the Finance Parties being party to the
Finance Documents, which liability results from any change or
change in the interpretation of any applicable Environmental Laws
(in each case, after the date of this Agreement).
(b) Any change in applicable Environmental Laws results in the rights
of any person against a Group Company ranking ahead of the rights
of any Finance Party in a manner which is materially prejudicial
to the interests of any Finance Party.
(c) Any discovery or finding that an Operating Property or any part
thereof is or is likely to be, in such a condition in relation to
the Environment as would impose an actual or contingent liability
on a Group Company which is:
-81-
(i) not contemplated by the Environmental Report and which has
or is reasonably likely to have a Material Adverse Effect;
or
(ii) which, if it is contemplated by the Environmental Report,
exceeds the amount so contemplated to an extent which has or
is reasonably likely to have a Material Adverse Effect.
20.1.19 Material Adverse Change: At any time there occurs an event which,
in the reasonable opinion of the Majority Banks, has, or is
reasonably likely to have, a Material Adverse Effect (but ignoring
for this purpose any anticipated decline in the Business
contemplated in the Syndication Information Memorandum).
20.2 Excluded Events
None of the events specified in sub-clauses 20.1.6(a)(ii) or 20.1.11 shall
constitute an Event of Default unless the aggregate value of all the
business, assets, undertakings, rights, revenues and properties in respect
of which any of those events is outstanding at any time exceeds $2,500,000
(or its equivalent in other currencies).
20.3 Cancellation and Repayment
At any time after the occurrence of an Event of Default (and whilst the
same is continuing) the Facility Agent may, and will if so directed by the
Majority Banks, by written notice to the Obligors' Agent do all or any of
the following in addition and without prejudice to any other rights or
remedies which it or any other Finance Party may have under this Agreement
or any of the other Finance Documents:
20.3.1 terminate the availability of the Facilities, whereupon the
Facilities shall cease to be available for drawing, the undrawn
portion of the Commitments of each of the Banks shall be cancelled
and no Bank shall be under any further obligation to make Advances
under this Agreement; and/or
20.3.2 declare all Advances, accrued interest thereon and any other sum
then payable under this Agreement and any of the other Finance
Documents to be immediately due and payable, whereupon such amounts
shall become so due and payable; and/or
20.3.3 declare all Advances to be payable on demand whereupon the same
shall become payable on demand.
20.4 Consent and Waiver
With effect from the date hereof, the Agents and the Banks consent to the
entry into and performance by any member of the Group of the following
transactions (i) the Acquisition, (ii) the Conditional Sale Agreement and
(iii) the making by Octel Trading Limited of a subordinated loan in the
principal amount of $10,000,000 in connection with the Acquisition and
permanently waive any Event of Default or Potential Event of Default which
may arise as a result of these transactions and which are contemplated by
the Finance Parties at the date hereof.
-82-
21. THE AGENTS AND THE OTHER FINANCE PARTIES
21.1 Appointment and Duties of the Agents
21.1.1 Each Finance Party (other than the Facility Agent) hereby appoints
the Facility Agent to act as its agent under and in connection with
the Finance Documents and irrevocably authorises the Facility Agent
for and on its behalf to exercise such rights, powers and
discretions as are specifically delegated to it by the terms of the
Finance Documents, together with all such rights, powers and
discretions as are incidental thereto and to give a good discharge
for any moneys payable under the Finance Documents.
21.1.2 The Facility Agent will act solely as agent for the Finance Parties
in carrying out its functions as agent under the Finance Documents.
21.1.3 The relationship between the Finance Parties and the Facility Agent
is that of principal and agent only. The Facility Agent shall not
have, nor be deemed to have, assumed any obligations to, or trust or
fiduciary relationship with, the other Finance Parties or any
Obligor, other than those for which specific provision is made by
the Finance Documents.
21.2 Duties
21.2.1 The Facility Agent shall:
(a) promptly send to each Bank details of each communication
received by it from an Obligor under any of the Finance
Documents, except in respect of details of any communication
relating to a particular Bank which shall be sent to that Bank
only;
(b) promptly send to each Bank a copy of any legal opinion
delivered under this Agreement or any of the other Finance
Documents and of any document or information received by it in
its capacity as Facility Agent pursuant to Clause 19.6
(Information and Accounting Undertakings);
(c) subject to those provisions of this Agreement which require the
consent of all the Banks to act in accordance with any
instructions from the Majority Banks or, if so instructed by
the Majority Banks, refrain from exercising a right, power or
discretion vested in it under any of the Finance Documents; and
(d) without prejudice to sub-clause 21.6.3, promptly notify each
Bank if it becomes aware of the occurrence of any Event of
Default or Potential Event of Default.
21.2.2 The Facility Agent shall have only those duties, obligations and
responsibilities expressly specified in the Finance Documents.
21.3 Rights
The Facility Agent may:
21.3.1 perform any of its duties, obligations and responsibilities under
the Finance Documents by or through its personnel, delegates or
agents (on the basis that
-83-
the relevant Agent may extend the benefit of any indemnity received
by it hereunder to its personnel, delegates or agents);
21.3.2 (except as expressly provided to the contrary in the Finance
Documents) refrain from exercising any right, power or discretion
vested in it under the Finance Documents until it has received
instructions from the Majority Banks or all the Banks, (as
applicable pursuant to the Finance Documents);
21.3.3 unless it has (in its capacity as the Facility Agent) received
notice in writing to the contrary, treat (a) the Bank which makes
available any portion of an Advance as the person entitled to
repayment of that portion and (b) the office referred to under a
Bank's name in Schedule 1 (or, in the case of a Transferee, at the
end of the Substitution Certificate to which it is a party as
Transferee) as its Lending Office;
21.3.4 refrain from doing anything which would or might in its opinion be
contrary to any law, regulation, directive or judgment of any court
of any jurisdiction or otherwise render it liable to any person and
may do anything which is in its opinion necessary to comply with
any such law, regulation, judgment or directive;
21.3.5 assume that no Event of Default or Potential Event of Default has
occurred unless an officer of the relevant Agent while active on
the account of the Parent acquires actual knowledge to the
contrary;
21.3.6 refrain from taking any step (or further step) to protect or
enforce the rights of any Bank under this Agreement or any of the
other Finance Documents until it has been indemnified and/or
secured to its satisfaction against any and all costs, losses,
expenses or liabilities (including legal fees) which it would or
might sustain or incur as a result;
21.3.7 rely on any communication or document believed by it to be genuine
and correct and to have been communicated or signed by the person
to whom it purports to be communicated and signed;
21.3.8 rely as to any matter of fact which might reasonably be expected to
be within the knowledge of an Obligor on a statement by or on
behalf of an Obligor;
21.3.9 obtain and pay for such legal or other expert advice or services as
may reasonably seem necessary to it or desirable and rely on any
such advice;
21.3.10 accept without enquiry such title as an Obligor may have to any
asset or assets intended to be the subject of the security created
by the Security Documents; and
21.3.11 hold or deposit any title deeds, Security Documents or any other
documents in connection with any of the assets charged by the
Security Documents with any banker or banking company or any
company whose business includes undertaking the safe custody of
deeds or documents or with any lawyer or firm of lawyers and it
shall not be responsible for or be required to insure against any
-84-
loss incurred in connection with any such holding or deposit and it
may pay all sums required to be paid on account or in respect of
any such deposit.
21.4 Exoneration of Arranger and the Facility Agents
Neither the Arranger nor the Facility Agent nor any of their respective
personnel or agents:
21.4.1 shall be responsible for the adequacy, accuracy or completeness
of any representation, warranty, statement or information in the
Syndication Information Memorandum, any of the Finance Documents or
any notice or other document delivered under the Finance Documents;
21.4.2 shall be responsible for the execution, delivery, validity,
legality, adequacy, enforceability or admissibility in evidence
of any of the Finance Documents;
21.4.3 shall be obliged to enquire as to the occurrence or
continuation of an Event of Default or a Potential Event of Default
or as to the accuracy or completeness of any representation or
warranty made by any Obligor hereunder;
21.4.4 shall be responsible for any failure of any Obligor or any of
the Banks duly and punctually to observe and perform their
respective obligations under the Finance Documents;
21.4.5 shall be responsible for the consequences of relying on the
advice of any professional advisers selected by any of them in
connection with the Finance Documents;
21.4.6 shall be liable for acting (or refraining from acting) in what
it believes to be in the best interests of the Creditors in
circumstances where it has been unable, or it is not practicable,
to obtain the instructions of the Banks or the Majority Banks (as
the case may be);
21.4.7 shall be liable for anything done or not done by it under or in
connection with the Finance Documents save in the case of its own
negligence or wilful misconduct.
21.5 The Arranger and the Facility Agent individually:
21.5.1 If it is a Bank, each of the Arranger and the Facility Agent shall
have the same rights and powers under the Finance Documents as any
other Bank and may exercise those rights and powers as if it were
not also acting as Arranger or Agent.
21.5.2 Each of the Arranger and the Facility Agent may:
(a) retain for its own benefit and without liability to account any
fee or other sum receivable by it for its own account;
(b) accept deposits from, lend money to, provide any advisory, trust
or other services to or engage in any kind of banking or other
business with any party to this Agreement, or any subsidiary of
any party (and, in each case, may do so without liability to
account).
-85-
21.6 Communications and Information:
21.6.1 All communications to an Obligor in connection with the Finance
Documents are to be made by or through the Facility Agent. Each
Finance Party will notify the Facility Agent of, and provide the
Facility Agent with a copy of, any communication between such
Finance Party, an Obligor or any other of the Finance Parties on any
matter concerning the Facilities or the Finance Documents.
21.6.2 The Facility Agent will not be obliged to transmit to the other
Finance Parties any information in any way relating to any of the
parties to the Finance Documents which that Facility Agent may have
acquired otherwise than in connection with the Facilities or the
Finance Documents. Notwithstanding anything to the contrary
expressed or implied herein, the Facility Agent shall, as between
itself and the other Finance Parties, not be bound to disclose to
any other Finance Party or other person any information, disclosure
of which might in the opinion of the Facility Agent result in a
breach of any law or regulation or be otherwise actionable at the
suit of any person.
21.6.3 In acting as the Facility Agent for the Finance Parties, the
Facility Agent's banking and agency divisions will be treated as
separate entities from any other of its divisions (or similar units
of the Facility Agent in any subsequent re-organisation) or
subsidiaries (the "Other Divisions") and, in the event the Facility
Agent should act for the Parent or any other Group Company in a
corporate finance or other advisory capacity ("Advisory Capacity"),
any information given by the Parent or any other Group Company to
one of the Other Divisions is to be treated as confidential and will
not be available to the Finance Parties without the consent of the
Parent, provided that:
(a) the consent of the Parent will not be required in relation to
any information which the relevant Agent in its discretion
determines relates to an Event of Default or Potential Event of
Default or in respect of which the Banks have given a
confidentiality undertaking in a form satisfactory to the
Facility Agent and the relevant Group Company acting
reasonably; and
(b) if representatives or employees of the Facility Agent receive
information in relation to an Event of Default or Potential
Event of Default whilst acting in an Advisory Capacity, they
will not be obliged to disclose such information to
representatives or employees of the Facility Agent in their
capacity as agent bank or security agent hereunder or to any of
the Finance Parties if to do so would breach any rule or
regulation or fiduciary duty imposed upon such persons.
21.7 Non-Reliance on Facility Agent
Each Finance Party confirms that it is (and will at all times continue to
be) solely responsible for making its own independent investigation and
appraisal of the business, operations, financial condition,
creditworthiness, status and affairs of the Parent and each
-86-
other Group Company and has not relied, and will not at any time rely on
the Facility Agent:
21.7.1 to provide it with any information relating to the business,
operations, financial condition, creditworthiness, status and
affairs of the Parent and any other Group Company, whether coming
into its possession before or after the making of any Advance except
as otherwise specifically provided herein; or
21.7.2 to check or enquire into the adequacy, accuracy or completeness of
any information provided by the Parent under or in connection with
any of the Finance Documents (whether or not such information has
been or is at any time circulated to it by the Agent), including,
without limitation, that contained in the Syndication Information
Memorandum; or
21.7.3 to assess or keep under review the business, operations, financial
condition, creditworthiness, status or affairs of the Parent or any
other Group Company.
21.8 Indemnity to Agents:
21.8.1 Each Bank shall on demand indemnify each Agent (in proportion to its
participation in the outstanding Advances at the relevant time)
against any cost, expense (including, without limitation, legal
fees) or liability sustained or incurred by that Agent in complying
with any instructions from the Banks or the Majority Banks (as the
case may be) or otherwise sustained or incurred with the Finance
Documents or its duties, obligations and responsibilities under the
Finance Documents, except to the extent that they are sustained or
incurred as a result of the gross negligence or wilful misconduct of
that Agent or any of its respective personnel.
21.8.2 The provisions of sub-clause 21.8.1 are without prejudice to any
obligations of the Obligors to indemnify the Agents pursuant to the
Finance Documents.
21.9 Termination and Resignation of Agency
21.9.1 The Facility Agent may resign its appointment at any time by giving
notice to the Banks and Obligors' Agent.
21.9.2 A successor to the Facility Agent shall be selected:
(a) by the retiring Facility Agent nominating one of its Affiliates
(as defined below) following consultation with the Obligors'
Agent as successor to that Agent in its notice of resignation;
or
(b) if the retiring Facility Agent makes no such nomination, by the
Majority Banks nominating one of the Banks acting through an
office in the UK as successor to the Facility Agent (following
consultation with the Obligors' Agent); or
(c) if the Majority Banks have failed to nominate a successor to
the Facility Agent within 30 days of the date of the retiring
Facility Agent's notice of resignation, by the retiring
Facility Agent (following consultation with the
-87-
Obligors' Agent) nominating a financial institution of good
standing acting through an office in the UK to be that
successor Agent.
For this purpose "Affiliate" in relation to a Facility Agent means
one of its Subsidiaries or Holding Companies or another Subsidiary
of any such Holding Company, in each case acting through an office
in the UK.
21.9.3 The resignation of the retiring Facility Agent and the appointment
of the successor Facility Agent will become effective only upon
that successor Agent accepting its appointment as the Facility
Agent in writing, at which time:
(a) the successor Facility Agent will become bound by all the
obligations of the Facility Agent and become entitled to all
the rights, privileges, powers, authorities and discretions
of the Facility Agent hereunder;
(b) the agency of the retiring Facility Agent will terminate, but
without prejudice to any liabilities which the retiring
Facility Agent may have incurred prior to the termination of
its agency;
(c) the retiring Facility Agent will be discharged from any
further liability or obligation under or in connection with
the Finance Documents (save that the outgoing Facility Agent
shall pay to the successor a pro rata proportion of the
agency fee referred to in Clause 15.2) (Agency Fees)).
21.9.4 The retiring Facility Agent will co-operate with the successor
Facility Agent in order to ensure that its functions are
transferred to the successor Facility Agent without disruption to
the service provided to the Creditors and will promptly make
available to the successor Facility Agent such documents and
records as have been maintained in connection with this Agreement
in order that the successor Facility Agent is able to discharge
its functions.
21.9.5 The provisions of this Agreement will continue in effect for the
benefit of any retiring Facility Agent in respect of any actions
taken or omitted to be taken by it or any event occurring before
the termination of its agency.
21.10 Payments to Finance Parties
21.10.1 The Facility Agent will account to the other Finance Parties for
their respective due proportions of all sums received by the
Facility Agent for such Finance Parties, whether by way of
repayment of principal or payment of interest, commitment
commission, fees or otherwise.
21.10.2 The Facility Agent may retain for its own use and benefit, and
will not be liable to account to the other Finance Parties for all
or any part of any sums received by way of agency or arrangement
fee or by way of reimbursement of expenses incurred by it.
21.11 Change of Office
The Facility Agent may at any time and from time to time in its sole
discretion by written notice to the Obligors' Agent and each of the other
Finance Parties designate a different
-88-
office in the United Kingdom from which their respective duties as the
Facility Agent will thereafter be performed.
22. CERTIFICATES CONCLUSIVE AND APPLICATION OF MONEYS
22.1 Certificates Conclusive
Save as expressly provided to the contrary in the Finance Documents, a
certificate, determination, notification or opinion of any Finance Party
or the Majority Banks stipulated for in any Finance Document or as to any
rate of interest or any other amount payable under any Finance Document
will be prima facie evidence of the rate or other amount payable.
22.2 Application of Moneys
Following service of notice by the Facility Agent under Clause 20.3
(Cancellation and Repayment), the Facility Agent or the Security Agent (as
the case may be) shall apply all sums received under the Finance Documents
against amounts outstanding under the Finance Documents in the order set
out below, provided that, such sums are first applied under Clause 25.2 of
the April 1998 Agreement until such time as all amounts outstanding under
the April 1998 Agreement has been repaid in full:
22.2.1 first to any unpaid fees and reimbursement of unpaid expenses of
the Agents due under the Finance Documents;
22.2.2 second to any unpaid fees and reimbursement of unpaid expenses of
the Banks due under the Finance Documents;
22.2.3 third to unpaid interest due under the Finance Documents;
22.2.4 fourth to unpaid principal due under the Finance Documents
(including without limitation provision of cash cover in respect
of contingent liabilities and payment of amounts due under the
Hedging Agreements and the Barclays Facility Letter as defined in
the April 1998 Agreement); and
22.2.5 fifth to other amounts due under the Finance Documents,
in each case (other than sub-clause 22.2.1) pro rata to the outstanding
amounts owing to the Finance Parties under the Finance Documents.
23. PRO RATA PAYMENTS
23.1 Recoveries
If any amount owing by any Obligor under any Finance Document to a Finance
Party (the "Recovering Bank") is discharged by payment, set-off or any
other manner other than through the Facility Agent in accordance with
Clause 12 (Payments) or in accordance with Clause 22.2 (Application of
Moneys) (such amount being referred to in this Clause 23.1 as a
"Recovery") then:
23.1.1 within 2 Business Days of receipt of the Recovery, the Recovering
Bank shall (prior to service of any notice under Clause 20.3
(Cancellation and Repayment)) pay to the Facility Agent an amount
equal (or equivalent) to such Recovery or (at any time after
service of any notice under Clause 20.3 (Cancellation and
Repayment)) pay to the Security Agent an amount equal (or
equivalent) to such Recovery;
-89-
23.1.2 the Facility Agent shall treat such payment as if it were part of
the payment to be made by the relevant Obligor to the Banks
rateably in accordance with their respective entitlements or, as
the case may be, the Security Agent shall apply such payment in
accordance with Clause 22.2 (Application of Moneys); and
23.1.3 (save for any receipt by the Recovering Bank as a result of the
operation of sub-clause 23.1.2), as between the relevant Obligor
(as the case may be) and the Recovering Bank, the Recovery shall
be treated and deemed as not having been paid.
23.2 Notification of Recovery
Each Finance Party will notify the Facility Agent promptly of any such
Recovery by that Finance Party other than by payment through the Facility
Agent or the Security Agent. If any Recovery subsequently has to be wholly
or partly refunded by the Recovering Bank which paid an amount equal
thereto to the Facility Agent under sub-clause 26.1.1, each Finance Party
to which any part of that amount was distributed will, on request from the
Recovering Bank, repay to the Recovering Bank such Finance Party's pro
rata share of the amount which has to be refunded by the Recovering Bank.
23.3 Information
Each Finance Party will on request supply to the Facility Agent such
information as the Facility Agent may from time to time request for the
purpose of this Clause 23.
23.4 Exceptions to sharing of Recoveries
Notwithstanding the foregoing provisions of this sub-clause 23.4, no
Recovering Bank will be obliged to share any Recovery which it receives
pursuant to legal proceedings taken by it to recover any sums owing to it
under the Finance Documents which any other party which has a legal right
to, but does not, either join in such proceedings or commence and
diligently pursue separate proceedings to enforce its rights in the same
or another court (unless the proceedings instituted by the Recovering Bank
are instituted by it without prior notice having been given to such party
through the Facility Agent).
23.5 Several Obligations
Failure by any Recovering Bank to comply with any of the provisions of
this Clause 23 will not release any other Recovering Bank from any of its
obligations or liabilities under this Clause 23.
23.6 Obtaining Consents
Each party to this Agreement agrees to take all steps required of it
pursuant to Clause 23.1 (Recoveries) and to use its reasonable endeavours
to obtain any consents or authorisations which may at any relevant time be
required in respect of any payment to be made by it pursuant to this
Clause 23.6.
23.7 No Security
The provisions of this sub-clause 23.7 shall not, and shall not be
construed so as to, constitute a charge by any Finance Party over all or
any part of any sum received or recovered by it under any of the
circumstances mentioned in this sub-clause 23.7.
-90-
23.8 Hedging Banks
This Clause 23 shall not, for the avoidance of doubt, apply to any Finance
Party in its capacity as a Hedging Bank prior to service of notice under
Clause 20.3 (Cancellation and Repayment).
24. SET-OFF
24.1 Set-off Rights
Any Finance Party may at any time following the occurrence of an Event of
Default which is continuing unwaived (without notice to the relevant
Obligor):
24.1.1 set-off or otherwise apply sums standing to the credit of any
Obligor's accounts with the Finance Party (irrespective of the
terms applicable to such accounts and whether or not such sums are
then due for repayment to that Obligor); and
24.1.2 set-off any other obligations (whether or not then due for
performance) owed by the Finance Party to the relevant Obligor,
against any liability of the relevant Obligor to the relevant Finance
Party under the Finance Documents which is due and unpaid.
24.2 Different Currencies
A Finance Party may exercise such rights notwithstanding that the amounts
concerned may be expressed in different currencies and each Finance Party
is authorised to effect any necessary conversions at a market rate of
exchange selected by it.
24.3 Unliquidated Claims
If the relevant obligation or liability is unliquidated or unascertained,
the Finance Party may set-off the amount it estimates (in good faith) will
be the final amount of such obligation or liability once it becomes
liquidated or ascertained.
25. NOTICES
25.1 Mode of Service
Save as specifically otherwise provided in this Agreement, any notice,
demand or other communication to be served under the Finance Documents
will be in writing and will be served only by posting by first class post
or by personally delivering the same or sending the same by facsimile
transmission to the party to be served at its address, facsimile number
shown immediately after its name on the signature page of this Agreement
or set out under its name in Schedule 1 (in the case of parties to this
Agreement) or given in the relevant Finance Document (in the case of other
parties) or at its registered office or at such other address or number as
it may from time to time notify in writing to the other parties hereto.
Any notice, demand or other communication to be served by an Obligor on
the Agents or the Banks will be effective only if the same is expressly
marked for the attention of the department or officer (if any) specified
in Schedule 1 or in the relevant Finance Document (or such other
department or officer as the relevant Agent or the relevant Bank may from
time to time specify for this purpose).
25.2 Deemed Service:
25.2.1 A notice or demand served on an Obligor by first class post in
the United Kingdom will be deemed served 48 hours after posting
or when delivered if
-91-
served personally. A notice or demand served on an Obligor
overseas by air mail will be deemed duly served 72 hours after
posting or when delivered if served personally. A notice or demand
sent to an Obligor by facsimile transmission will be deemed served
at the time of transmission unless served on a non- Business Day
or after 5.00 p.m. London time in which case it will be deemed
served at 9.00 a.m. on the following Business Day.
25.2.2 A notice or demand served on a Finance Party by post or air-mail
will be deemed served when delivered to that Finance Party. A
notice or demand sent to a Finance Party by facsimile transmission
will be deemed served when received by that Finance Party.
25.2.3 Notwithstanding sub-clauses 25.2.1 and 25.2.2, a notice deemed
served in accordance with sub-clauses 25.2.1 and 25.2.2 on a non-
working day or after business hours in the place of receipt will
only be deemed to be served at commencement of business hours in
the place of receipt on the next working day in that place.
25.3 Proof of Service:
In proving service of any notice, it will be sufficient to prove, in the
case of a letter, that such letter was properly stamped or franked first
class, addressed and placed in the post or, in the case of personal
delivery, was left at the correct address and, in the case of a facsimile
transmission, that such facsimile was duly transmitted to the facsimile
number of the addressee referred to in Clause 25.1 (Mode of Service).
26. NO IMPLIED WAIVERS
26.1 Failure to Exercise Rights
No failure or delay by any Finance Party in exercising any right, power or
privilege under any of the Finance Documents will operate as a waiver
thereof nor will any single or partial exercise of any right, power or
privilege preclude any other or further exercise thereof or the exercise of
any other right, power or privilege.
26.2 Cumulative Rights
The rights and remedies provided in the Finance Documents are cumulative
and not exclusive of any rights and remedies provided by law and all such
rights and remedies howsoever arising will, save where expressly provided
to the contrary therein, be available to the Finance Parties severally and
any Finance Party shall be entitled to commence proceedings in connection
therewith in its own name.
26.3 Grant of Waivers:
A waiver given or consent granted by any Finance Party under this Agreement
will be effective only if given in writing and then only in the instance
and for the purpose for which it is given.
27. INVALIDITY OF ANY PROVISION
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not be affected or
impaired in any way.
-92-
28. CONFIDENTIALITY
Subject to Clause 29.5 (Disclosure of Information), the parties will keep
the Transaction Documents, the Syndication Information Memorandum, the
Agreed Financial Projections and the subject matter of all such documents
(including all details relating to the structure and financing of the
Distribution) confidential, save to the extent that they are required by
law or regulation to disclose the same. Each of the Finance Parties agrees
with each Obligor to hold confidential all information which it acquires
under or in connection with the Finance Documents, save to the extent it is
required by law or regulation to disclose the same or the same comes into
the public domain (otherwise than as a result of a breach of this Clause
28). A Finance Party may, however, disclose such information to its
auditors, legal advisers or other professional advisers (the "Advisers")
for purposes connected with the Finance Documents provided that such
Finance Party takes reasonable steps to procure that each Adviser maintains
the confidentiality of such information.
29. CHANGES TO PARTIES
29.1 Assignment by the Obligors
No Obligor may assign or transfer all or any part of its rights, benefits
or obligations under this Agreement or any of the other Finance Documents.
29.2 Assignments and Transfers by the Banks:
29.2.1 A Bank, or any successor or assignee of such Bank, (in this
capacity the "Transferor") may at any time assign, novate or
otherwise transfer all or any part of its rights or obligations
under the Finance Documents (or any of them) to any person (a
"Transferee"), provided that, save where the Transferee is an
Affiliated Bank of the Transferor:
(a) subject to sub-clause 29.2.1(b), that Bank has first
consulted with the Obligors' Agent; and
(b) in the case of an assignment, novation or transfer which
would result in the aggregate of the Transferee's Commitments
exceeding 66% per cent of the aggregate of the Total
Commitments, the Obligors' Agent has approved the identity of
that Transferee.
29.2.2 A transfer of obligations will only be effective if made in
accordance with Clause 29.3 (Substitution Provisions) or if the
Transferee has, prior to the transfer taking effect, confirmed in
writing to the Facility Agent (acting as agreed on behalf of all
the other Finance Parties) and to the Obligors' Agent (acting as
agent on behalf of all the other Obligors) that it undertakes to
be bound by the terms of each of the Finance Documents as a Bank
in form and substance satisfactory to the Facility and the
Obligors' Agent, in the case of the Obligors' Agent not to be
unreasonably withheld or delayed. On any such transfer being made,
the Transferor will be relieved of its obligations to the extent
that they are transferred to the Transferee.
29.2.3 If any assignment, transfer or novation is effected in accordance
with this Clause 29.2 and (as a result of laws or regulations in
force or known to be
-93-
coming into force at that time), on the occasion of any subsequent
payment to the Transferee, any amount would, but for this sub-
clause 29.2.3, be required to be paid by an Obligor under Clause
13 (Taxes) or 14.1 (Increased Costs), then that Obligor shall not
be liable to pay any such amount in excess of the amount it would
have been obliged to pay if that assignment, transfer or novation
had not been effected.
29.2.4 The Obligors' Agent (for itself and as agent for the existing
Obligors) will execute or procure that there are executed such
documents and agreements as are necessary to effect a transfer of
rights or obligations to a Transferee hereunder.
29.2.5 Nothing in this Agreement will restrict the ability of a Bank to
sub-contract any or all of its obligations under the Finance
Documents (or any of them) if such Bank remains liable under this
Agreement in relation to those obligations.
29.3 Substitution Provisions:
29.3.1 A Transferor may (subject to sub-clause 29.2.1) transfer all or
any of its rights and obligations under the Finance Documents to a
Transferee by means of a novation effected by the Facility Agent
executing a Substitution Certificate duly completed and signed on
behalf of both the Transferee and the Transferor.
29.3.2 On the later of (a) the date specified in the Substitution
Certificate as being the date on or as from which the substitution
under this Clause 29.3 is to take effect and (b) the date on which
the Facility Agent executes the Substitution Certificate, the
following shall occur:
(a) to the extent that in the Substitution Certificate the
Transferor seeks to transfer its rights and obligations under
the Finance Documents, each Obligor and the Transferor shall
each be released from further obligations to the other
parties under the Finance Documents (and the appropriate
reduction will be made to the Commitment of the Transferor)
and their respective rights against each other will be
cancelled (such rights and obligations being referred to in
this Clause 29.3 as "Discharged Rights and Obligations");
(b) each Obligor and the Transferee will each assume obligations
towards each other and acquire rights against each other
which differ from the Discharged Rights and Obligations only
insofar as each Obligor and such Transferee have assumed and
acquired the same in place of each Obligor and the
Transferor;
(c) each Obligor, the Transferee and the other Finance Parties
will, acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed
had the Transferee been an original party to this Agreement
as a "Bank" and each other Finance Document to which the
Transferor is a party as such, with the rights and
obligations acquired or assumed by it as a result of the
novation; and
-94-
(d) on the date on which such transfer takes effect, the
Transferee will pay to the Facility Agent for its own account
a transfer fee of (Pounds)1,000.
29.3.3 Nothing in this Agreement or any other Finance Document will
oblige a Transferor or cause a Transferor to be liable:
(a) to accept a re-assignment or re-transfer from a Transferee of
any of the rights or obligations assigned, transferred or
novated pursuant to this Clause 29; or
(b) to support any losses incurred by a Transferee by reason of
the non- performance by any Obligor of its obligations under
any of the Finance Documents.
29.3.4 Each of the parties to this Agreement (other than the Transferor
and the Transferee) hereby irrevocably authorises the Facility
Agent to execute on its behalf any Substitution Certificate which
has been duly completed in accordance with this Clause 29.3 and
executed on behalf of each of the Transferor and the Transferee
and to execute on its behalf the Syndication Agreement.
29.3.5 The Facility Agent will promptly notify the other parties to this
Agreement of the receipt and execution by it on their behalf of
any Substitution Certificate.
29.4 Benefit of Agreement
This Agreement will be binding upon, and enure for the benefit of; each
party hereto and its or any subsequent successors or permitted assigns.
29.5 Disclosure of Information
Each Bank may disclose to a proposed assignee or transferee or any sub-
participant, risk participant or other participant proposing to enter or
having entered into a contract with such Bank regarding the Finance
Documents any information in the possession of such Bank relating to the
Parent (or any member of the Group) which it reasonably considers should be
disclosed, provided that such Bank first obtains a confidentiality
undertaking in the form set out in Schedule 13 from the proposed assignee
or transferee.
29.6 Reference Banks
If a Reference Bank ceases to be one of the Banks then:
29.6.1 the Bank shall cease to be a Reference Bank; and
29.6.2 the Facility Agent shall in consultation with the Obligors' Agent
appoint another Bank or an Affiliated Bank of another Bank to be a
Reference Bank.
30. BANKS' DECISIONS
30.1 Procedures
Subject to Clauses 30.2 (Exceptions) and 30.3 (Express Provisions) and 30.5
(Changes to April 1998 Agreement), any provision of this Agreement or any
of the other Finance Documents (other than the Barclays Facility Letter)
may be amended, waived, varied or modified (each a "Modification") with the
agreement of the Majority Banks and the
-00-
Xxxxxxxx' Xxxxx. A Modification so agreed may be effected by the Facility
Agent executing such documents as may be required for such purpose on
behalf of all the Banks and the Obligors' Agent executing such documents on
behalf of the other Obligors. The Facility Agent will promptly notify the
other parties to this Agreement and the other Finance Documents of the
Modification so effected. Such Modification will take effect from the date
upon which such notification is given (or such later date as the Facility
Agent may specify therein) and will be binding on all parties to the
Finance Documents.
30.2 Exceptions:
30.2.1 The following matters will require the unanimous agreement of all
of the Banks:
(a) any change in the amount of any Commitment of any Bank (other
than as a result of any transfer in accordance with Clause
29.2 (Assignments and Transfers by the Banks));
(b) any change in the definition of Margin;
(c) any change to the Tranche A Availability Period, the Tranche
B Availability Period or any Repayment Date or any other date
for payment of any sum due, owing or payable to any Bank;
(d) any change in the amount or currency of any sum due, owing or
payable to any Bank;
(e) any change in the amount of any payment of principal,
interest or commissions payable hereunder by any party;
(f) any amendment, variation or modification of Clause 22.2
(Application of Moneys), Clause 23 (Pro Rata Payments),
Clause 24 (Set-off), Clause 29.1 (Assignment by the
Obligors), this Clause 30 or to the definition of "Majority
Banks" in Clause 1.1 (Definitions); and
(g) any release of security (otherwise than as provided in Clause
17.4 (Release of Security) or in connection with any
enforcement action).
30.3 Express Provisions
Any waiver or any consent, approval or other matter which by the express
terms of this Agreement or any other Finance Document is to be given by all
of the Banks will not be effective unless all of the Banks have agreed
thereto but, subject thereto, may be given by the Facility Agent on behalf
of all of the Banks.
30.4 Hedging Banks
Subject to sub-clause 19.2.6, the Hedging Agreements may be amended,
varied, waived or modified by agreement between the parties thereto.
30.5 Changes to April 1998 Agreement
The Obligors shall not agree to any amendment of Clauses 22.3(d),(e),(g) or
(j) or Clause 22.4(f) of the April 1998 Agreement without the consent of
the Majority Banks.
-96-
31. INDEMNITIES
31.1 General Indemnity and Breakage Costs
The Borrower will fully indemnify each of the Finance Parties on demand
from and against any expense (including legal fees), loss, damage or
liability (other than loss of profit) which any of them may incur as a
consequence of any sum not being paid when due pursuant to the Finance
Documents, any failure to borrow (or otherwise utilise the Facilities) when
obliged to do so in accordance with this Agreement, any Advance being
repaid or prepaid otherwise than on the last day of an Interest Period, the
occurrence of any Event of Default or otherwise in connection with a breach
by a breach by any Obligor of any Finance Document. Without prejudice to
its generality, the foregoing indemnity:
31.1.1 extends to any interest, fees or other sums whatsoever paid or
payable on account of any funds borrowed in order to carry any
amount which an Obligor fails to pay in breach of any Finance
Document and to any loss, premium, penalty or expenses which may
be incurred in liquidating or employing deposits from third
parties acquired to make, maintain or fund outstanding Advances or
any other amount due or to become due under any Finance Document;
and
31.1.2 will entitle the relevant Finance Party to recover breakage costs
from the Borrower in the event of an Advance or other sum being
repaid or pre-paid prior to the last day of an Interest Period
even though the relevant Finance Party has financed such Advance
or other sum from its own resources, the costs it thereby incurs
being calculated on the assumption it had borrowed an amount equal
to the Advance or other sum in question in the London interbank
market for the duration of the relevant Interest Period.
31.2 Currency Indemnity
Without prejudice to Clause 31.1 (General Indemnity and Breakage Costs),
if:
31.2.1 any amount payable by any Obligor under or in connection with any
Finance Document is received by any Finance Party (or by any Agent
on behalf of any Finance Party) in a currency (the "Payment
Currency") other than that agreed in the relevant Finance Document
(the "Agreed Currency"), whether as a result of any judgement or
order or the enforcement thereof, the liquidation of the relevant
Obligor or otherwise and the amount produced by converting the
Payment Currency so received into the Agreed Currency is less than
the relevant amount of the Agreed Currency; or
31.2.2 any amount payable by any Obligor under or in connection with any
Finance Document has to be convened from the Agreed Currency into
another currency for the purpose of (a) making or filing a claim
or proof against any Obligor, (b) obtaining an order or judgment
in any court or other tribunal or (c) enforcing any order or
judgment given or made in relation to any Finance Document,
then the Obligor will, as an independent obligation, indemnify the relevant
Finance Party for the deficiency and any loss sustained as a result. Any
conversion required will be made at such prevailing rate of exchange on
such date and in such market as is
-97-
determined by the relevant Finance Party as being most appropriate for the
conversion. The Obligor will, in addition pay the costs of the conversion.
31.3 Waiver
Each Obligor waives any right it may have in any jurisdiction to pay any
amount under any Finance Document in a currency other than that in which it
is expressed to be payable in the relevant Finance Document.
32. MISCELLANEOUS
The parties to this Agreement hereby confirm that the Subordination Deed
shall continue in full force and effect and shall apply to the outstandings
under the Finance Documents notwithstanding the terms hereof.
33. GOVERNING LAW AND SUBMISSION TO JURISDICTION
33.1 Governing Law
Any dispute, controversy, proceedings or claim of whatever nature arising
out of or relating to, or breach of, this Agreement shall be governed by
and this Agreement shall be construed in all respects in accordance with
English law.
33.2 Submission to Jurisdiction
For the benefit of each of the Finance Parties, each Obligor irrevocably
submits to the jurisdiction of the courts in England for the purpose of
hearing and determining any dispute arising out of this Agreement and for
the purpose of enforcement of any judgement against its assets. Without
prejudice to any other permitted mode of service, each Obligor agrees that
service of any writ, notice or other document for the purpose of any
proceedings in such courts shall be duly served upon it if delivered or
sent by registered post to the Obligors' Agent.
33.3 Freedom of Choice
The submission to the jurisdiction of the courts referred to in Clause 33.2
(Submission to Jurisdiction) shall not (and shall not be construed so as
to) limit the right of any Finance Party to take proceedings against any
Obligor in any other court of competent jurisdiction nor shall the taking
of proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction (whether concurrently or not) if and
to the extent permitted by applicable law.
34. COUNTERPARTS
This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and the
same instrument.
IN WITNESS whereof the parties hereto have caused this Agreement to be duly
executed on the date first written above.
-98-
SCHEDULE 1
The Original Banks
Tranche A Facility Tranche B Facility
Commitment ($) Commitment ($)
Barclays Bank PLC 90,000,000 10,000,000
Lending Office North West Large
and address for Corporate Banking
notices: XX Xxx 000
00-00 Xxxxxxxxxx
Xxxxxxxxx X00 0XX
Facsimile: 0151 801 3669
Attention: Xxx Xxxx
----------------------------------------
90,000,000 10,000,000
----------------------------------------
-99-
SCHEDULE 2
Part A
Borrowers and/or Guarantors
Group Company Registered number/
State of Incorporation
Octel Corp. Delaware, USA
Octel International Limited 3316194
Octel Developments PLC 3516662
Octel Trading Limited 3516648
Octel Resources Limited 3316334
Octel Associates (not applicable)
The Associated Octel Company Limited 344359
Associated Octel Company (Plant) Limited 873396
AKC Trading Limited 2627121
-100-
Part B
The Security Documents
1. Second Priority Collateral Assignment and Security Agreement executed by
Octel Corp. in favour of the Security Agent and dated on or about the date
of this Agreement.
2. Debenture executed by Octel Associates, the Partners, AOC, AOC (Plant) and
AKC Trading Limited in favour of the Security Agent and dated on or about
the date of this Agreement.
3. Debenture executed by Octel Developments and Octel International Limited in
favour of the Security Agent and dated on or about the date of this
Agreement.
-101-
SCHEDULE 3
Documentary Conditions Precedent
1. Formalities Certificate(s):
1.1 a certificate from Octel Associates in the form set out in Part A of
Schedule 7 signed by an authorised director or the secretary of each of the
Partners which shall have attached to it the documents referred to in such
certificate, including the requisite constitutional documents of Octel
Associates referred to in paragraphs 3.1 to 3.6 (inclusive) below;
1.2 a certificate from each Obligor (other than Octel Associates, Octel
America and Octel LLC) in the form set out in Part B of Schedule 7 (in the
case of the Parent) or Part C of Schedule 7 (in any other case) signed by an
authorised director, the secretary or other officer acceptable to the
Facility Agent of that Obligor which shall have attached to it the documents
referred to in such certificate including the requisite constitutional
documents of that Obligor and the appropriate board and (if applicable)
shareholder resolutions approving the relevant Finance Documents to which
that Obligor is a party.
2. Finance Documents: each of the following documents in the agreed form duly
executed and delivered by all parties thereto (except the Finance Parties):
2.1 this Agreement;
2.2 the Security Documents (together with such original notices of assignment or
charge required to be given under the Security Documents); and
2.3 the Agency and Arrangement Fees Letter.
3. Constitutional Documents: copies of the following documents:
3.1 the Partnership Agreement;
3.2 the Settlement Deed;
3.3 the Managing Agency Agreement;
3.4 the Leasing Agreement;
3.5 supplemental partnership agreements dated 29 December 1967, 19 December 1969
and 21 December 1978 respectively, deeds of assumption dated 18 May 1989, 18
November 1991, 16 March 1992, 13 March 1997, 31 October 1997 and 6 November
1997 respectively and a retirement agreement dated 20 November 1997, in each
case relating to the Partnership Deed;
3.6 all other documents executed to effect the transfer of partnership interests
to the Partners as required under the Structure Document.
4. Structure Document: a copy of the Structure Document (initialled by the
Obligors' Agent and the Facility Agent for identification purposes only).
5. Financial Information: certified copies of:
-102-
5.1 the Latest Accounts; and
5.2 the Latest Interim Accounts.
6. Company Searches: a search of each UK member of the Group's register of
mortgages and charges and company file at the Companies Registry or Register
showing, inter alia, no Security Interests over any of its assets (other
than any Permitted Security Interest) and no appointment of a receiver,
liquidator or administrator or the presentation of any petition in respect
of any of the same.
7. Legal Opinions
7.1 a legal opinion of Xxxxxxxx Chance as to matters of English law in form and
substance satisfactory to the Facility Agent.
7.2 a legal opinion of Xxxxxxxx Chance, New York as to matters of US law in form
and substance satisfactory to the Facility Agent.
7.3 a legal opinion of Xxxxxxxx & Xxxxx as to matters of US law in form and
substance satisfactory to the Facility Agent.
-103-
SCHEDULE 4
Form of Utilisation Request
To: [ ] as Facility Agent
Attention: . , 19 .
From: [Name of Company]
Dear Sirs,
Re: $100,000,000 term loan agreement dated . 1999 (the "Facility Agreement")
We request Utilisation of the [Tranche A/Tranche B] Facility as follows:
(a) Amount: .
(b) Date on which Advance is to be made: .
(c) Interest Period: .
(d) Payment should be made to: .
(e) The Borrower is: .
We confirm that:
(i) the representations and warranties made in Clause 18 of the Facility
Agreement stipulated as being made or repeated on the date hereof are
true and accurate as if made with respect to the facts and circumstances
existing on such date;
(ii) we are in full compliance with the undertakings contained in Clause 19 of
the Facility Agreement; and
(iii) no Event of Default or Potential Event of Default has occurred and is
continuing or will occur as a result of the proposed Advance being made.
Terms defined in the Facility Agreement shall have the same meanings when used
in this request.
...........................
[Authorised Signatory]
for and on behalf of
[Obligors' Agent]
-104-
SCHEDULE 5
Mandatory Costs Rate
1. The Mandatory Cost Rate is an addition to the interest rate to compensate
Banks for the cost of compliance with the requirements of the Financial
Services Authority (or any other authority which replaces all or any of its
functions).
2. On the first day of each Interest Period (or as soon as possible thereafter)
the Agent shall calculate, as a percentage rate, a rate (the "additional
costs rate") for each Bank, in accordance with the formula set out below.
The Mandatory Cost Rate will be calculated by the Agent as a weighted
average of such Bank's additional costs rates (weighted in proportion to the
percentage participation of each Bank in the Advance) and will be expressed
as a percentage rate per annum.
3. The additional cost rate for each Bank will be calculated by the Agent as
follows:
Fx0.01
------ per cent per annum.
300
Where F is the rate of charge payable by that Bank to the Financial Services
Authority pursuant to the Fees Regulations (but, for this purpose, ignoring
any minimum fee required pursuant to the Fees Regulations) and expressed in
pounds per (Pounds)1,000,000 of the Fee Base of that Bank.
4. For the purposes of this Schedule:
(a) "Fees Regulations" means the Banking Supervision (Fees) Regulations
1998 or such other law as may be in force from time to time in respect
of the payment of fees for banking supervision;
(b) "Fee Base" has the meaning given to it, and will be calculated in
accordance with, the Fees Regulations; and
(c) the resulting figure will be rounded to four decimal places.
5. Each Bank shall supply any information required by the Agent for the purpose
of calculating the above formula. In particular, but without limitation,
each Bank shall supply the following information in writing on or prior to
the date on which it becomes a Bank:
(d) its jurisdiction of incorporation and the jurisdiction of its Facility
Office; and
(e) such other information that the Agent may reasonably require for such
purpose.
Each Bank shall promptly notify the Agent in writing of any change to the
information provided by it pursuant to this clause.
-105-
6. The rates of charge of each Bank for the purpose of F above shall be
determined by the Agent based upon the information supplied to it pursuant
to clause 5 and on the assumption that unless a Bank notifies the Agent to
the contrary, each Bank's obligations in relation to the Fees Regulations
are the same as those of a typical bank from its jurisdiction of
incorporation with a Facility Office in the same jurisdiction as its
Facility Office.
The Agent shall have no liability to any person if such determination
results in an additional costs rate which over or under compensates any Bank
and shall be entitled to assume that the information provided by any Bank
pursuant to clause 5 is true and correct in all respects.
7. The Agent shall distribute the additional amounts received pursuant to the
Mandatory Cost Rate to the Banks on basis of the additional cost rate
incurred by each Bank, as calculated in accordance with the above formula
and based on the information provided by each Bank pursuant to clause 5.
8. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost Rate, an additional costs rate or any amount
payable to a Bank shall, in the absence of manifest error, be conclusive and
binding on all of the parties hereto.
The Agent may from time to time, after consultation with the Borrower and the
Banks, determine and notify to all parties any amendments or variations which
are required to be made to any of the formula set out above in order to comply
with any change in law or any requirements from time to time imposed by the
Financial Services Authority (or any other authority which replaces all or any
of its functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all the parties hereto.
-106-
SCHEDULE 6
Substitution Certificate/1/
[(referred to in Clause 32.3 (Substitution Provisions)]
To: [ ]
for and on behalf of the Obligors and the Banks
(each as defined in the Facility Agreement referred to below).
This substitution certificate (this "Certificate") relates to a facility
agreement dated 1999 and made between, inter alia, [ ] (the "Facility
Agreement", which expression includes any amendments or supplements thereto or
restatements thereof). Terms defined in the Facility Agreement shall, unless
otherwise defined in this Certificate, have the same meanings when used in this
Certificate.
1. Transferor Confirmation and Request: [Name of Transferor] (the
"Transferor") by its execution of this Certificate:
1.1 requests [name of Transferee] (the "Transferee") to accept and procure, in
accordance with Clause 29.3 of the Facility Agreement (Substitution
Provisions), transfer to the Transferee of the portion of the Transferor's
participation in the Facilities (and in the Advances made by it) as
specified in Schedule 1 of this Certificate (the "Transfer Rights") by
counter-signing this Certificate and delivering it to the Agent at its
address for the giving of notices under the Facility Agreement so as to take
effect on the date specified in Schedule 2 of this Certificate (the
"Transfer Date"); and
1.2 confirms that the details which appear in Schedule 1 of this Certificate
accurately record respectively, the amount of the Transferor's Commitment
and the principal amount of the Transfer Rights at the date of this
Certificate.
2. Transferee Request: The Transferee by its execution of this Certificate
requests the Obligors' Agent, each other Obligor, the Banks and the Facility
Agent to accept this Certificate as being delivered under and for the
purposes of Clause 29 of the Facility Agreement so as to take effect in
accordance with the terms of that clause on the Transfer Date.
3. Transfer Fee: The Transferee undertakes to pay to the Facility Agent for
the Facility Agent's own account a transfer fee of (Pounds)1,000 as provided
in Clause 29.3.2(d) of the Facility Agreement.
4. Transferee Representations: The Transferee hereby:
--------------------------------------------------------------------------------
/1/ Each of the Transferor and Transferee should ensure that all regulatory
requirements are satisfied in connection with its entry into of any Substitution
Certificate.
-107-
4.1 confirms that it has received from the Transferor a copy of the Facility
Agreement together with such other documents and information as it has
requested in connection with this transaction;
4.2 confirms that it has not relied, and will not hereafter rely, on the
Transferor or any other Finance Party to check or enquire on its behalf into
the legality, validity, effectiveness, adequacy, accuracy or completeness of
any such documents or information;
4.3 agrees that it has not relied, and will not hereafter rely, on the
Transferor or any other Finance Party to assess or keep under review on its
behalf the financial condition, creditworthiness, condition, affairs, status
or nature of any Obligor or any other party to the Facility Agreement; and
4.4 represents and warrants to the Transferor and all other parties to the
Facility Agreement that it has power to become a party to the Facility
Agreement as a "Bank" on the terms herein and therein set out, has taken all
necessary steps to authorise execution and delivery of this Certificate.
5. Transferee Covenants: The Transferee hereby undertakes with the Transferor
and all other parties to the Facility Agreement that it will perform in
accordance with its terms all those obligations which, by the terms of the
Facility Agreement, will be assumed by it following delivery of this
Certificate to the Facility Agent.
6. Exclusion of Transferor's Liabilities: Neither the Transferor nor any other
Finance Party makes any representation or warranty nor assumes any
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Finance Documents and assumes no
responsibility for the financial condition of the Parent or any other party
to the Finance Documents or for the performance and observance by the
Obligors' Agent or any Obligor of any of its obligations under the Finance
Documents and any and all such conditions and warranties, whether express or
implied by law or otherwise, are hereby excluded.
7. Novation: On execution of this Certificate by the Facility Agent (on behalf
of the Transferor and the Transferee) the Transferee will become a party to
the Facility Agreement, on and with effect from the Transfer Date in
substitution for the Transferor with respect to those rights and obligations
which by the terms of the Facility Agreement and this Certificate are
assumed by the Transferee.
8. Law: This Certificate and the rights and obligations of the parties hereto
shall be governed by and construed in accordance with English Law.
AS WITNESS the hands of authorised signatories for and on behalf of the
Transferor, the Transferee and the Facility Agent on the respective dates
appearing below.
-108-
Schedule 1 to the Substitution Certificate
Transferor's Existing Tranche A Commitment: $
Transferor's Existing Tranche B Commitment: $
Portion of Transferor's Existing [Tranche A Commitment/participation
in Tranche A Advance] to be transferred: $
Portion of Transferor's Existing Tranche B Commitment to be transferred: $
-109-
Schedule 2 to the Substitution Certificate
Particulars relating to the Transferee
Transfer Date:
Lending Office:
Contact Name:
Account for Payments:
Address for Notices:
Telephone:
Telex:
Facsimile:
Signature Clauses to Substitution Certificate
[Transferor] [Transferee]
By:................ By:..............
Date: Date:
[Facility Agent]
By:................
Date:
-110-
SCHEDULE 7
Part A
Formalities Certificate (Octel Associates)
Octel Associates
(the "Obligor")
Facility Agreement dated . 1999
(the "Facility Agreement")
To: Barclays Bank PLC as facility agent under the Facility Agreement.
We Octel Trading Limited and Octel Resources Limited being the partners of the
Obligor at the date of the Facility Agreement hereby make the following
certifications and confirmations.
1. Constitutional Documents
Attached hereto marked A are documents which, to the best of our knowledge
and belief having made all due enquiries, are true, complete and up-to-date
copies of:
1.1 Partnership Agreement;
1.2 the Settlement Deed;
1.3 the Managing Agency Agreement;
1.4 the Leasing Agreement;
1.5 supplemental partnership agreements dated 29 December 1967, 19 December 1969
and 21 December 1978 respectively, deeds of assumption dated 18 May 1989, 18
November 1991, 16 March 1992, 13 March 1997, 31 October 1997 and 6 November
1997 respectively and a retirement agreement dated 20 November 1997, in each
case relating to the Partnership Deed; and
1.6 [specify documents executed to effect the transfer or partnership interests
to the Partners as required under the Structure Documents]
2. Authorised Signatories
The following signatures are the specimen signatures of the persons
authorised by resolution of the Partners to execute all Finance Documents to
which it is a party, utilisation requests under the Facility Agreement and
all other documents and notices required in connection therewith:
Name Position Signature
---- -------- ---------
-111-
3. No Breach of Borrowings Limit
We have examined the terms of all loan agreements, trust deeds and similar
borrowing instruments together with the constitutional documents of the
Obligor and all other relevant instruments and agreements to which either of
us is a party ("Relevant Documents") and we can confirm to you that the
drawing by the Obligor of all sums capable of being drawn under the Facility
Agreement (the "Maximum Drawings") does not infringe the terms of the
Relevant Documents and that the borrowing of the Maximum Drawings when
aggregated with any other Financial Indebtedness of both of us:
3.1 will be within our partnership powers; and
3.2 does not or will not cause to be exceeded any limit or restriction on any of
the powers of either of us (whether contained in any Relevant Documents or
otherwise) or the right or ability of the management committee of the
Obligor to exercise such powers.
4. No Events of Default
We confirm to you that, as at the date of this Certificate, no Event of
Default or Potential Event of Default exists and the Obligor and all other
Obligors (as defined in the Facility Agreement) are in full compliance with
their obligations under the Finance Documents.
Terms defined in the Facility Agreement shall bear the same meaning when used
herein.
Signed: -----------------------
For and on behalf of
Octel Trading Limited
Date:
-----------------------
Signed:
-----------------------
For and on behalf of
Octel Resources Limited
Date:
-----------------------
-112-
Part B
Formalities Certificate (US Obligors)
[insert name of Corporation]
(the "Obligor")
Facility Agreement dated . 1999
(the "Facility Agreement")
To: Barclays Bank PLC as facility agent under the Facility Agreement.
I . being a director or duly authorised signatory of the Obligor hereby make the
following certifications and confirmations.
1. Constitutional Documents
Attached hereto marked A are true, complete and up-to-date copies of:
1.1 [specify Obligor. constitutional documents].
2. Extract Board Resolutions
Attached hereto marked B is a true and complete extract from the minutes of
a meeting of the board of directors of the Obligor duly convened and held
(during which a quorum was present throughout) recording resolutions passed
at such meeting (which resolutions are in full force and effect and have not
been rescinded or varied) and which approve the Finance Documents to which
it is a party and all transactions contemplated thereby.
3. Authorised Signatories
The following signatures are the specimen signatures of the persons
authorised by resolution of the board of directors of the Obligor to execute
all Finance Documents to which it is a party and all other documents and
notices required in connection therewith:
Name Position Signature
---- -------- ---------
4. No Breach of Borrowings Limit
I have examined the terms of all loan agreements, trust deeds and similar
borrowing instruments together with the constitutional documents of the
Obligor and all other relevant instruments and agreements to which the
Obligor is a party ("Relevant Documents") and I can confirm to you that the
guarantee by the Obligor of all sums capable of being drawn under the
Facility Agreement (the "Maximum Drawings") does not infringe the terms of
the Relevant Documents and that the guarantee by the Obligor of the Maximum
Drawings when aggregated with any other Financial Indebtedness of the
Obligor:
-113-
4.1 will be within the corporate powers of the Obligor; and
4.2 does not or will not cause to be exceeded any limit or restriction on any of
the powers of the Obligor (whether contained in any Relevant Documents or
otherwise) or the right or ability of the directors of the Obligor to
exercise such powers.
5. No Events of Default
I confirm to you that, as at the date of this Certificate, no Event of
Default or Potential Event of Default exists and the Obligor and all other
Obligors (as defined in the Facility Agreement) are in full compliance with
their obligations under the Finance Documents.
Terms defined in the Facility Agreement shall bear the same meaning when used
herein.
Signed:
---------------------------
Date:
------------------
-114-
Part C
Formalities Certificate (Others)
[Insert name of Company]
(the "Obligor")
Facility Agreement dated . 1999
(the "Facility Agreement")
To: Barclays Bank PLC as facility agent under the Facility Agreement.
I . being a director or authorised signatory of the Obligor being duly
authorised by the Obligor to deliver this Certificate hereby make the following
certifications and confirmations.
1. Constitutional Documents
Attached hereto marked A are true, complete and up-to-date copies of:
(a) the certificate of incorporation of the Obligor;
(b) all certificates of incorporation on change of name of the Obligor (if
any); and
(c) the constitutional documents of the Obligor consisting of . .
2. Extract Board Resolutions
Attached hereto marked B is a true and complete extract from the minutes of
a meeting of the board of directors of the Obligor duly convened and held
(during which a quorum was present throughout) recording resolutions passed
at such meeting (which resolutions are in full force and effect and have
not been rescinded or varied) and which approve the Finance Documents to
which it is a party and all transactions contemplated thereby.
3. Shareholder Resolutions
Attached hereto marked C is a true and complete copy of a resolution of all
the shareholders of the Obligor unanimously passed authorising and
directing the execution and performance by the Obligor of the Finance
Documents to which it is a party.
4. Authorised Signatories
The following signatures are the specimen signatures of the persons
authorised by resolution of the board of directors of the Obligor to
execute all Finance Documents to which it is a party, utilisation requests
under the Facility Agreement and all other documents and notices required
in connection therewith:
Name Position Signature
---- -------- ---------
-115-
5. No Breach of Borrowings Limit
I have examined the terms of all loan agreements, trust deeds and similar
borrowing instruments together with our memorandum and articles of
association or other constitutional document of the Obligor (as the case may
be) and all other relevant instruments and agreements to which the Obligor
is a party ("Relevant Documents") and I can confirm to you that the [drawing
by/guarantee of] the Obligor of all sums capable of being drawn under the
Facility Agreement (the "Maximum Drawings") does not infringe the terms of
the Relevant Documents and that the [borrowing/guaranteeing] of the Maximum
Drawings when aggregated with any other Financial Indebtedness of the
Obligor:
(a) will be within the corporate powers of the Obligor; and
(b) does not or will not cause to be exceeded any limit or restriction on
any of the powers of the Obligor (whether contained in any Relevant
Documents or otherwise) or the right or ability of the directors of the
Obligor to exercise such powers.
6. No Events of Default
I confirm to you that as at the date of this Certificate no Event of Default
or Potential Event of Default exists and the Obligor and all other Obligors
(as defined in the Facility Agreement) are in full compliance with their
obligations under the Finance Documents.
Terms defined in the Facility Agreement shall bear the same meaning when used
herein.
Signed:
---------------------------
Date:
------------------
-116-
SCHEDULE 8
Guarantee Provisions
1. No Discharge: The obligations of each Guarantor under Clause 16.1
(Guarantee) shall not be discharged, diminished or in any way affected as a
result of:
1.1 any time or indulgence or waiver given to, or composition made with, any
Obligor or any other person;
1.2 any amendment, variation or modification to, or replacement of, the Finance
Documents or any increase in the amount of the Facilities (or any of them);
1.3 the taking, variation, compromise, renewal or release or refusal or neglect
to perfect or enforce any right, remedies or securities against any Obligor
or any other person;
1.4 any other guarantee, indemnity, charge or other security or right or remedy
held by or available to the Finance Parties being or becoming wholly or in
part void, voidable or unenforceable on any ground whatsoever or by any
Finance Party from time to time dealing with, exchanging, varying,
realising, releasing or failing to perfect or enforce any of the same;
1.5 any Obligor becoming insolvent, being dissolved, going into receivership or
liquidation or having an administrator appointed;
1.6 any change in the identity of the partners of Octel Associates;
1.7 any change in the constitution of any Finance Party (or any Finance Party's
successors or assigns) or the amalgamation or consolidation by a Finance
Party with any other company or entity; or
1.8 any other act, omission, circumstance, matter or thing (other than an
express release in writing) which, but for this provision, might operate to
release or otherwise exonerate the Guarantor from its obligations under
Clause 16.1 whether in whole or in part.
2. Continuing Obligations: The Guarantee Obligations shall continue in full
force and effect notwithstanding:
2.1 the fact that any purported obligation of any Obligor or any other person to
any Finance Party (or any security therefor) becomes wholly or partly void,
invalid or unenforceable for any reason whether or not known to the Finance
Party or the Guarantor; or
2.2 any incapacity or any change in the constitution of, or any amalgamation or
reconstruction of, any Guarantor or any Obligor or any other matter
whatsoever.
3. New Accounts: If notwithstanding Clause 16.2.3 the Guarantee Obligations
shall for whatever reason cease to be continuing obligations, each Finance
Party may continue any account or open one or more new accounts with the
Borrowers (or any of them) and the liability of each Guarantor shall not be
reduced or affected in any way by any subsequent transactions or receipts or
payments into or out of any such account or accounts.
-117-
4. Liability for Indebtedness: If, not withstanding Clause 16.2.3, the
Guarantee Obligations are determined for any reason, each Guarantor will
remain liable in respect of all indebtedness referred to in Clause 16.1.1 as
at the date of determination (whether demanded or not) and whether or not
any other Obligor is then in default under the Finance Documents.
5. Primary Obligations: The Guarantee Obligations shall constitute the primary
obligations of each Guarantor and no Finance Party shall be obliged, before
enforcing its rights against any Guarantor under Clause 16.1 to:
5.1 proceed against any Obligor or any other person;
5.2 proceed against or exhaust any security held from any Obligor or any other
person;
5.3 proceed against or have resort to any balance of any deposit account or
credit on the books of any Finance Party in favour of any Obligor or any
other person; or
5.4 pursue any other remedy in the power of any Finance Party whatsoever.
6. No Subrogation: Subject to paragraph 1.7, until all the indebtedness under
the Finance Documents has been irrevocably paid and discharged in full and
the Finance Parties have no further commitment to provide facilities or
accommodation to any Borrower, no Guarantor shall:
6.1 be subrogated to or otherwise entitled to share in, any security or monies
held, received or receivable by any Finance Party or be entitled to any
right of contribution in respect of any payment made by any Guarantor
hereunder;
6.2 exercise or enforce any of its rights of subrogation and indemnity or any
other claim or right against any Borrower or any co-surety;
6.3 following a claim being made on any Guarantor under Clause 16.1, demand or
accept repayment of any monies due from any other Obligor to such Guarantor
or claim any set-off or counterclaim against any other Obligor;
6.4 claim or prove in a liquidation or other insolvency proceeding of any
Borrower or any co-surety in competition with any Finance Party without the
consent of the Facility Agent; or
6.5 exercise any claim, right or remedy with respect to any collateral or
security now or hereafter held by any Finance Party.
Each Guarantor further agrees that, to the extent the agreement to withhold
the exercise of its rights of subrogation, reimbursement, indemnification
and contribution as set forth herein is found by a court of competent
jurisdiction to be void or voidable for any reason, any rights of
subrogation, reimbursement or indemnification which the Guarantor may have
against any Obligor or against any collateral or security, and any rights of
contribution such Guarantor may have against any such other Obligor, shall
be junior and subordinate to any rights any Finance Party may have against
any Obligor (including, without limitation, such Guarantor), to all right,
title and interest which any Finance Party may have in any such collateral
or security and to any right which any
-118-
Finance Party may have against such other Obligor. Any Finance Party may
use, sell or dispose of any item of collateral or security as it sees fit
without regard to any subrogation rights any Guarantor may have and, upon
any such disposition or sale, any rights of subrogation such Guarantor may
have had shall terminate. If any amount shall be paid to any Guarantor on
account of any such subrogation, reimbursement or indemnification rights at
any time when all Guarantee Obligations shall not have been irrevocably paid
in full, that amount shall be held in trust for the Finance Parties and
shall forthwith be paid over to the Finance Parties to be credited and
applied against the Guarantee Obligations, whether matured or unmatured, in
accordance with the terms hereof.
7. Exercise of Subrogation: Following the making of a demand on the Guarantor
under Clause 16.1, the Guarantor will (at its own cost) promptly take such
of the steps or action as are referred to in Clause 1.6 as the Facility
Agent may from time to time stipulate.
8. Turnover: The Guarantor shall promptly pay to the Facility Agent an amount
equal to any set-off, proof or counterclaim in fact exercised by it against
a Borrower or any co-surety and shall hold in trust for and promptly pay or
transfer to the Facility Agent any payment or distribution or benefit of
security in fact received by it whether arising as a result of a breach of
paragraph 1.6 or compliance with directions given under paragraph 1.7.
9. Suspense Account: The Facility Agent may place and keep (for such time as it
shall think prudent) any money received, recovered or realised in respect of
the Guarantee Obligations in or at a separate account (without liability to
pay interest on the amounts standing to the credit of such account). The
Facility Agent may retain such monies in the suspense account for such
period as it considers expedient without having any obligation to apply the
same or any part thereof in or towards discharge of the Guarantee
Obligations.
-119-
SCHEDULE 9
Accession Document
THIS ACCESSION AGREEMENT is made 19
BETWEEN:
(1) LIMITED (No. ) (the "New [Borrower/Guarantor]");
(2) [ ] (No. ) (the "Obligors' Agent");
(3) [ ] in its capacity as Facility Agent and Security
Agent under the Facility Agreement.
WHEREAS:
(A) This Agreement is entered into in connection with a facility agreement (the
"Facility Agreement") dated 1999 and made between [ ].
(B) This Agreement has been entered into to record the admission of the New
[Borrower/Guarantor] as a [Borrower/Guarantor] under the Facility
Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS
Terms defined in the Facility Agreement shall have the same meaning when
used in this Agreement.
2. ADMISSION OF NEW [BORROWER/GUARANTOR]
2.1 The New [Borrower/Guarantor] agrees to become a [Borrower/Guarantor] under
the Facility Agreement and agrees to be bound by the terms of the Facility
Agreement as if it had been named as a [Borrower/Guarantor] thereunder.
2.2 The New [Borrower/Guarantor] hereby confirms the appointment of the
Obligors' Agent as its agent in the terms of the Facility Agreement.
2.3 The New [Borrower/Guarantor] confirms that its address details for notices
in relation to Clause 25 (Notices) of the Facility Agreement are as follows:
Address:
Facsimile:
Telex:
Attention of:
-120-
2.4 By their signature below the parties to this Agreement (other than the New
[Borrower/Guarantor]) confirm their acceptance of the New
[Borrower/Guarantor] as a [Borrower/Guarantor] for the purpose of the
Facility Agreement.
3. LAW
This Accession Agreement shall be governed by and construed in all respects
in accordance with English law.
IN WITNESS whereof the parties have caused this Agreement to be duly executed on
the date first written above.
SCHEDULE 1
Existing Borrowers
SCHEDULE 2
Existing Guarantors
-121-
Signatories to Accession Document
New [Borrower/Guarantor]
.
By: ..................
Obligors' Agent
.
By: ..................
for itself and as agent
for and on behalf of
the Existing Borrowers
and the Existing Guarantors
The Facility Agent
[ ]
By: ..................
for itself and as Facility Agent
and on behalf of the Security Agent
and the Banks
-122-
SCHEDULE 10
Form of Confidentiality Undertaking
Confidentiality Undertaking
To: Octel Corp. and Octel Associates (together the "Company");
Great Lakes Chemical Corporation ("GLCC"); and
[Transferor] (the "Transferor")
In connection with the possible purchase by the Receiving Party which has signed
this Undertaking from [ ] (the "Transferor") or its designee
of an interest in the Transferor's participation in a facility agreement (the
"Facility Agreement") dated . 1999 between [ ] (the "Transaction"), the
Transferor will be providing the Receiving Party which has signed this
undertaking with certain information with respect thereto that is non-public,
confidential or proprietary in nature, including, without limitation,
information relating to the Parent and its subsidiaries (the "Information"). In
consideration of the Information being made available to the Receiving Party,
the Receiving Party agrees and confirms as follows to the Company, GLCC and the
Transferor:
1. It will keep all such Information disclosed to it confidential and will not
disclose the whole or any part of it, without the prior written consent of
the Company and the Transferor, to any person other than its directors,
officers, employees and legal advisers (and other advisers to whom the
Company and the Transferor have consented in writing) who in each case need
to know the Information for the purposes of the Transaction and so long as
such directors, officers, employees, legal and other advisers shall be
informed by it of the confidential nature of the Information and the
provisions of this Undertaking and it shall procure that they treat such
Information confidentially and act as if bound hereby.
2. It shall use and copy the Information only in connection with the
Transaction and not for any other purpose.
3. That it is aware, and that it will advise any directors, officers, and
employees to whom any of the Information is disclosed, that it may be
illegal for any person who has received from the Company or its advisers
material, non-public information to deal in, or to encourage others to deal
in, securities of the Company or another party to the Transaction or, except
in the proper performance of his office or employment, to communicate such
information to any other person.
4. It will not, without the prior written consent of the Transferor, and will
procure that its directors, officers, employees and legal and other advisers
will not, disclose to any person either the approach to it in connection
with, or its interest in, the Transaction or the fact that discussions or
negotiations are taking or have taken place concerning its possible
participation in the Transaction or any of the terms, conditions or other
facts with respect thereto, including the status thereof, unless such
Information is already within the public domain.
5. In the event that the Receiving Party ceases to be involved in the
Transaction, or at any time, at the request of the Company or the Transferor
(whichever occurs first), without
-123-
prejudice to its other obligations under this Undertaking, it shall return,
and procure that its directors, officers, employees and legal and other
advisers shall return, to the Transferor without delay all Information
received, whether written or graphic, and will not retain any copies thereof
in whatever form, including electronic, and the Receiving Party shall, and
shall procure that its directors, officers, employees and legal and other
advisers shall, destroy all documents, memoranda, notes and other writing in
whatever form, including electronic, prepared by it or them based on the
Information and to the extent reasonably practicable (and to the extent not
so practicable subject to such Information remaining subject to all the
obligations under this Undertaking) expunge all Information from any
computer, word processor or any other device in its possession.
6. This Undertaking shall not prohibit the Receiving Party from making any
disclosure of the Information in relation to which it has received an
unqualified opinion of a lawyer who shall not be one of its employees and
who shall be satisfactory to the Company and the Transferor confirming that
it is necessary in order to comply with a legal obligation to disclose, a
lawful subpoena or other legal process binding on the Receiving Party or a
binding request or direction of, any government department or government
regulatory agency, provided in each case that written notice of any such
disclosure and a copy of such opinion is given to the Company and the
Transferor as soon as practicable and the Receiving Party shall consult and
co-operate with the Company and the Transferor on the advisability of taking
legally available steps to resist or narrow such disclosure and, if
disclosure is required, co-operate with the Company and the Transferor in
any attempt that the Company or the Transferor may make to resist or narrow
such obligation to disclose and/or to obtain an order or other reliable
assurance that confidential treatment will be accorded to the Information.
7. The Receiving Party agrees that any disclosure of Information to it shall
not be deemed to confer upon it any rights whatsoever and such Information
shall remain the property of the Company and the Transferor.
8. Paragraph 1 shall not apply to any of the Information which:
8.1.1 at the time of being obtained by the Receiving Party is already
within the public domain; or
8.1.2 subsequently comes within the public domain other than by breach by
the Receiving Party or any of its directors, officers, employees or
legal or other advisers of this Undertaking; or
8.1.3 has been or is acquired by the Receiving Party from a third party who
is rightfully in possession of it and free to disclose it.
8.2 In disclosing the Information, none of the Transferor, the Company or GLCC
or any affiliate, director, employee, agent or representative of the
Transferor, the Company or GLCC make any representations or warranties,
express or implied, concerning the completeness, suitability or accuracy of
the Information, and none of the Transferor, the Company or GLCC or any
affiliate, director, officer, employee, agent or representative of the
Transferor, the Company or GLCC shall be under any obligation or liability
to the Receiving Party or any of its directors, officers, employees or legal
or other advisers with
-124-
respect to the Information. If the Receiving Party or any of its directors,
officers, employees or legal or other advisers elect to rely on any of the
Information, they do so at their own risk.
8.3 In this Undertaking, the term "affiliate" means any subsidiary or holding
company (or any other subsidiary of that holding company) of, or other body
or partnership controlling, controlled by or under common control with the
Company or, as the case may be, the Transferor and "holding company" and
"subsidiary" have the meanings given to them under Section 736 of the
Companies Xxx 0000 (as amended).
9. The Company, GLCC and the Transferor shall be entitled to equitable relief,
including injunction and specific performance, in the event of any breach or
threatened breach of the provisions of this Undertaking and the Receiving
Party shall not oppose the granting of such relief. Further, the Receiving
party agrees to indemnify the Company, GLCC and the Transferor for any
costs, claims, damages, losses or liabilities of whatsoever nature arising
directly or indirectly from any breach of its obligations hereunder.
10. No failure or delay on the part of the Company, GLCC or the Transferor in
exercising any right, power or privilege conferred by this Undertaking shall
operate as a waiver of either that right, power or privilege, or of this
Undertaking as a whole. No single or partial exercise of any right, power or
privilege shall preclude any further exercise of that right, power or
privilege.
11. If any obligation arising from this Undertaking shall be held unenforceable
or illegal, in whole or in part for whatever reason, the enforceability of
the rest of the obligations under this Undertaking shall be unaffected.
12. This Undertaking shall be governed by and construed in accordance with
English law. The Receiving Party submits to the jurisdiction of the English
courts.
Signed
For and on behalf of
(the "Receiving Party")
Dated: [ ]
-125-
SCHEDULE 11
Form of Syndication Agreement
THIS AGREEMENT is dated [ ], 1999 between:
(1) [ ] for itself and as agent for and on behalf of
the other Obligors (the "Obligors' Agent");
(2) BARCLAYS CAPITAL as arranger (the "Arranger");
(3) BARCLAYS BANK PLC as existing bank (the "Existing Bank");
(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as the banks who wish to
accede to the Credit Agreement as Banks (the "New Banks"); and
(5) BARCLAYS BANK PLC as facility agent (in this capacity the "Facility Agent")
and as security agent under the Original Credit Agreement (in this capacity
the "Security Agent").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement, unless the contrary intention appears or the context
otherwise requires:
1.1.1 "Credit Agreement" means the Original Credit Agreement as amended
pursuant to this Agreement;
1.1.2 "Effective Date" means [ ]; and
1.1.3 "Original Credit Agreement" means the credit agreement dated . , 1999
between, amongst others, the Obligors' Agent, the Arranger, the
Facility Agent and the Security Agent.
1.2 Incorporation of Original Credit Agreement interpretations
1.2.1 Terms defined in the Original Credit Agreement shall, unless the
contrary intention appears or the context otherwise requires, have
the same meaning in this Agreement.
1.2.2 Clauses 1.2 (Construction), 1.3 (Other References), 27 (Invalidity of
any Provision) and 33 (Counterparts) of the Original Credit Agreement
shall apply to this Agreement as though they were set out in full in
this Agreement, but as if references to the Original Credit Agreement
were construed as references to this Agreement.
-126-
2. CONSENT AND CONFIRMATION
The Agent, the Arranger, the Existing Banks, the Facility Agent and the
Security Agent each consent to:
[(a) [the amendments set out in Clause 3 (Amendments to the Original Credit
Agreement) below and agree that the Original Credit Agreement shall be
amended, with effect from the Effective Date; and
(b)] the New Banks becoming Banks,
and confirm that, except as expressly provided by the terms of this
Agreement, each of the Finance Documents shall continue in full force and
effect.
3. [AMENDMENTS TO THE ORIGINAL CREDIT AGREEMENT
The Obligors' Agent has requested the Banks to agree that the Original Credit
Agreement shall be amended as follows:
[ ] ]
4. NOVATION
4.1 Novation of Commitments and Related Rights and Obligations
On the Effective Date (regardless of whether a Default is then continuing):
4.1.1 each New Bank will become a Bank under the Credit Agreement with a
Tranche A Commitment and a Tranche B Commitment as set out opposite
its name in Schedule 1;
4.1.2 each Existing Bank's Tranche A Commitment and Tranche B Commitment
shall be reduced down to the respective amounts set out opposite its
name in Schedule 1; and
4.1.3 each New Bank will automatically obtain and assume, and undertakes to
perform, all of the rights and obligations of a Bank under and in
respect of each of the Finance Documents in respect of the rights and
obligations transferred to it under sub-clauses 4.1.1 and 4.1.2
above, including, without limitation, its corresponding proportion of
the rights and obligations of the Existing Banks in respect of: [list
outstanding Advances].
4.2 Amounts Due on or Before the Effective Date
4.2.1 All amounts (if any) payable to the Existing Banks by the Borrowers
on or before the Effective Date (including, without limitation, all
interest and fees payable on the Effective Date) in respect of any
period ending prior to the Effective Date shall be for the account of
the Existing Banks, and none of the New Banks shall have any interest
in, or any rights in respect of, any such amounts.
4.2.2 If any Advance falls to be made on the Effective Date:
-127-
(a) the Facility Agent will promptly notify each of the New Banks of
that fact (and the amount of its participation in that Advance
in accordance with sub-clause 4.2.2(b); and
(b) each Existing Bank and each New Bank shall participate in that
Advance (subject to the terms of the Credit Agreement) as if the
novation of the Commitments and rights and obligations under
Clauses 4.1.1 and 4.1.2 (Novation of Commitments and Related
Rights and Obligations) of this Agreement had taken effect prior
to opening of business on the Business Day before the Effective
Date,
and the Obligors' Agent acknowledges that no Existing Bank will be
obliged to participate in any such Advance to any greater extent.
4.3 Administrative Details
Each New Bank has delivered to the Facility Agent its initial details for
the purposes of Clause 25 (Notices) of the Credit Agreement.
5. NATURE OF THIS AGREEMENT
The novation of Commitments and rights and obligations contemplated by this
Agreement shall take effect (in accordance with its terms) as a novation so
that Clause 29.3 (Substitution Provisions) of the Credit Agreement shall
apply to the Commitments, rights and obligations transferred, assumed and
released under Clause 4.1 (Novation of Commitments and Related Rights and
Obligations) of this Agreement and to the associated rights and obligations
under the Finance Documents, as if this Agreement were a Substitution
Certificate.
6. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
-128-
SCHEDULE 1
Banks and Commitments
Banks Tranche A Tranche B
Commitment Commitment
($) ($)
----------- ----------
Total
-129-
Signatories to Syndication Agreement
Obligors' Agent
THE ASSOCIATED OCTEL COMPANY LIMITED
By: ..........................
Arranger
BARCLAYS CAPITAL
By: ..........................
Existing Bank
BARCLAYS BANK PLC
By: ..........................
New Banks
[ ]
By: ..........................
Facility Agent and Security Agent
BARCLAYS BANK PLC
By: ..........................
-130-
Signatories to Facility Agreement
The Parent
OCTEL CORP.
By: X X Xxxxxxxx
Notice Details
Address:
Facsimile:
Attention:
The Partners
OCTEL TRADING LIMITED
By: X X Xxxxxxxx
Notice Details
Address: XX Xxx 00
Oil Xxxxx Xxxx
Xxxxxxxxx Xxxx
Xxxxx Xxxxxx X00 0XX
Facsimile: 0151 356 6298
Attention: Company Secretary
OCTEL RESOURCES LIMITED
By: X X Xxxxxxxx
Notice Details
As for Octel Trading Limited above.
The Borrowers/Guarantors
OCTEL ASSOCIATES X X Xxxxxxxx
By: X X Xxxxxxxx By: X X Xxxxxxxx
For and on behalf of For and on behalf of
OCTEL TRADING LIMITED OCTEL RESOURCES LIMITED
Notice Details
As for Octel Trading Limited above.
OCTEL CORP.
-131-
By: X X Xxxxxxxx
Notice Details
As for OCTEL Trading Limited above.
OCTEL INTERNATIONAL LIMITED
By: X X Xxxxxxxx
Notice Details
As for OCTEL Trading Limited above.
OCTEL DEVELOPMENTS PLC
By: X X Xxxxxxxx
Notice Details
As for OCTEL Trading Limited above.
OCTEL TRADING LIMITED
By: X X Xxxxxxxx
Notice Details
As for OCTEL Trading Limited above.
OCTEL RESOURCES LIMITED
By: X X Xxxxxxxx
Notice Details
As for OCTEL Trading Limited above.
THE ASSOCIATED OCTEL COMPANY LIMITED
By: X X Xxxxxxxx
Notice Details
As for OCTEL Trading Limited above.
ASSOCIATED OCTEL COMPANY (PLANT) LIMITED
By: X X Xxxxxxxx
Notice Details
As for OCTEL Trading Limited above.
-132-
AKC TRADING LIMITED
By: X X Xxxxxxxx
Notice Details
As for OCTEL Trading Limited above.
The Arranger
BARCLAYS CAPITAL
By: Xxxx Xxxxxx
Notice Details
Address: 5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Facsimile: 0171 773 4894
Attention: Xxxx Xxxxxx
The Original Banks
BARCLAYS BANK PLC
By: Xxxx Xxxxxx
Notice Details
Address: North West Large Corporate Banking
XX Xxx 000
00-00 Xxxxxxxxxx
Xxxxxxxxx X00 0XX
Facsimile: 0151 801 3669
Attention: Xxx Xxxx
The Facility Agent
BARCLAYS BANK PLC
By: Xxxx Xxxxxx
Notice Details
Address: 5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Facsimile: 0171 773 4893
Attention: Xxxxx Xxxxxx
-133-
The Security Agent
BARCLAYS BANK PLC
By: Xxxx Xxxxxx
Notice Details
Address: 5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Facsimile: 0171 773 4893
Attention: Xxxxx Xxxxxx
-134-
