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Title: |
Facilities Agreement |
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Entities: |
Barclays Bank plc; Octel Corp.; International Swaps & Derivatives Association, Inc. |
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2002 |
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462KB total |
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$99 |
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#384044 |
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US$250,000,000
FACILITIES AGREEMENT
dated 29 October, 2001
for
OCTEL CORP.
with
BARCLAYS CAPITAL
acting as Mandated Lead Arranger
With
BARCLAYS BANK PLC
acting as Agent and Security Agent
---------------------------------------------------
MULTICURRENCY TERM AND REVOLVING FACILITIES
AGREEMENT
---------------------------------------------------
{PAGE}
CONTENTS
{TABLE}
{CAPTION}
CLAUSE PAGE
{S} {C}
1. Definitions And Interpretation.........................................1
2. The Facilities........................................................27
3. Purpose...............................................................28
4. Conditions Of Utilisation.............................................28
5. Utilisation...........................................................31
6. Optional Currencies...................................................32
7. Repayment.............................................................35
8. Prepayment And Cancellation...........................................36
9. Interest..............................................................40
10. Interest Periods......................................................41
11. Changes To The Calculation Of Interest................................42
12. Fees..................................................................43
13. Tax Gross Up And Indemnities..........................................45
14. Increased Costs.......................................................48
15. Other Indemnities.....................................................49
16. Mitigation By The Lenders.............................................50
17. Costs And Expenses....................................................50
18. Guarantee And Indemnity...............................................52
19. Representations.......................................................56
20. Information Undertakings..............................................63
21. Financial Covenants...................................................67
22. General Undertakings..................................................71
23. Events Of Default.....................................................91
24. Changes To The Lenders................................................96
25. Changes To The Obligors...............................................99
26. Role Of The Agent, Security Agent And The Arranger...................101
27. Conduct Of Business By The Finance Parties...........................109
28. Sharing Among The Lenders............................................109
29. Payment Mechanics....................................................112
30. Set-Off..............................................................116
31. Notices..............................................................116
32. Calculations And Certificates........................................118
{/TABLE}
-1-
{PAGE}
{TABLE}
{S} {C}
33. Partial Invalidity...................................................113
34. Remedies And Waivers.................................................113
35. Amendments And Waivers...............................................113
36. Obligors' Agent......................................................115
37. Counterparts.........................................................115
38. Governing Law........................................................116
39. Enforcement..........................................................116
40. Waiver Of Jury Trial.................................................116
Schedule 1 THE ORIGINAL PARTIES.............................................117
Schedule 2 CONDITIONS PRECEDENT.............................................119
Schedule 3 REQUESTS ........................................................127
Schedule 4 MANDATORY COST FORMULAE..........................................130
Schedule 5 FORM OF TRANSFER CERTIFICATES....................................133
Schedule 6 FORM OF ACCESSION LETTER.........................................139
Schedule 7 FORM OF RESIGNATION LETTER.......................................140
Schedule 8 FORM OF COMPLIANCE CERTIFICATE...................................141
Schedule 9 LMA FORM OF CONFIDENTIALITY UNDERTAKING..........................143
Schedule 10 TIMETABLES......................................................147
{/TABLE}
-2-
{PAGE}
THIS AGREEMENT is dated 29 October 2001 and made between:
(1) OCTEL CORP. (the "Parent")
(2) THE SUBSIDIARIES of the Parent listed in Part I of Schedule 1 as
original borrowers (The Original Parties), the "Original Borrowers");
(3) THE SUBSIDIARIES of the Parent listed in Part I of Schedule 1 (The
Original Parties) as original guarantors (together with the Parent the
"Original Guarantors");
(4) BARCLAYS CAPITAL as Mandated Lead Arranger ("Mandated Lead Arranger")
and BAYERISCHE LANDESBANK GIROZENTRALE, LONDON BRANCH and LLOYDS TSB
BANK PLC as joint arrangers (the "Joint Arrangers") (the Joint
Arrangers together with the Mandated Lead Arranger whether acting
individually or together, the "Arranger");
(5) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The
Original Parties) as lenders (the "Original Lenders");
(6) BARCLAYS BANK PLC as agent of the Lenders (the "Agent"); and
(7) BARCLAYS BANK PLC as security agent and trustee for the Finance Parties
(the "Security Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement and in the Key Property Debenture:
"Accession Letter" means a document substantially in the form set out
in Schedule 6 (Form of Accession Letter).
"Accounting Quarter" means each three month period ending on a Quarter
Date.
"Additional Borrower" means a company which becomes an Additional
Borrower in accordance with Clause 25 (Changes to the Obligors).
"Additional Guarantor" means a company which becomes an Additional
Guarantor in accordance with Clause 25 (Changes to the Obligors).
"Additional Obligor" means an Additional Borrower or an Additional
Guarantor.
"Additional Report" means a report provided pursuant to paragraph 1 of
Part III of Schedule 2 (Conditions Precedent).
"Affiliate" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
-1-
{PAGE}
"Agent's Spot Rate of Exchange" means the Agent's spot rate of exchange
for the purchase of the relevant currency with the Base Currency in the
London foreign exchange market at or about 11:00 a.m. on a particular
day.
"Agreed Financial Projections" means the financial projections and
forecasts for the Business for the period beginning on 1 January 2001
and ending on 31 December 2007 in the agreed form.
"Approved Accounting Principles" means those accounting principles,
standards and practices which were used in the Original Financial
Statements of the Parent.
"AOC" means The Associated Octel Company Limited, a company
incorporated in England with registered number 344359.
"AOC (Plant)" means Associated Octel Company (Plant) Limited, a company
incorporated in England with registered number 873396.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing or registration.
"Availability Period" means:
(a) in relation to Facility A the period from and including the
date of this Agreement to and including the day falling 75
days after the date of this Agreement; and
(b) in relation to Facility B, the period from and including the
date of this Agreement to and including the day falling 36
Months after the date of this Agreement.
If any of the above provisions of this definition of Availability
Period would operate so that (but for this provision) any Availability
Period ended on a day which is not a Business Day, then such
Availability Period shall end on the first Business Day to occur before
such day.
"Available Amount" means, in respect of any Accounting Quarter (the
"Current Accounting Quarter"), an amount equal to the aggregate amount
of Surplus Cash Flow for each Accounting Quarter comprised in the
Calculation Period relating to that current Accounting Quarter less:
(a) (to the extent such amounts are included in such Surplus Cash
Flow) all amounts which have been applied or are required to
be applied in prepayment of the Facilities in accordance with
Clauses 8.4 (Voluntary Prepayments of Facility A Loans) to 8.7
(Surplus Cash Flow) (inclusive) during that Calculation
Period;
(b) the amount (of any) required to be prepaid pursuant to Clause
8.7 (Surplus Cash Flow) from Surplus Cash Flow from the final
Accounting Quarter of the Calculation Period; and
(c) the total cost of all Permitted Investments made in that
Calculation Period (which for this purpose shall be the
aggregate of the amounts specified in paragraph (b) of the
definition of "Permitted Investment" in this Clause 1.1 in
respect of the relevant Permitted Investments).
-2-
{PAGE}
"Available Commitment" means, in relation to a Facility, a Lender's
Commitment under that Facility minus:
(a) the Base Currency Amount of its participation in any
outstanding Loans under that Facility; and
(b) in relation to any proposed Utilisation, the Base Currency
Amount of its participation in any Loans that are due to be
made under that Facility on or before the proposed Utilisation
Date,
other than, in relation to Facility B only, that Lender's participation
in any Facility B Loans that are due to be repaid or prepaid on or
before the proposed Utilisation Date.
"Available Facility" means, in relation to a Facility, the aggregate
for the time being of each Lender's Available Commitment in respect of
that Facility.
"Base Currency" means dollars.
"Base Currency Amount" means, in relation to a Loan, the amount
specified in the Utilisation Request delivered by a Borrower for that
Loan (or, if the amount requested is not denominated in the Base
Currency, that amount converted into the Base Currency at the Agent's
Spot Rate of Exchange on the date which is three Business Days before
the Utilisation Date or, if later, on the date the Agent receives the
Utilisation Request) adjusted to reflect any repayment (other than, in
relation to Facility A, a repayment arising from a change of currency),
prepayment, consolidation or division of the Loan.
"Bilateral Bank" means any Lender or Lenders selected as a Bilateral
Bank by the Parent by notice to the Agent. Barclays Bank PLC is a
Bilateral Bank as at the date of this Agreement.
"Bilateral Commitment" means, in relation to a Bilateral Bank, the
maximum amount from time to time of the Bilateral Facilities made
available by such Bilateral Bank to the extent not cancelled.
"Bilateral Facility Documents" means those documents relating to or
evidencing the terms of any Bilateral Facility.
"Bilateral Facility" means any of the following facilities (or a
combination thereof) provided by a Bilateral Bank to any Borrower and
identified by such Bilateral Bank and such Borrower as a Bilateral
Facility for the purpose of this Agreement and confirmed by the Agent
in writing to such Bilateral Bank and such Borrower that such facility
is a Bilateral Facility for the purpose of the Finance Documents:
(a) overdraft facilities; and
(b) guarantee, bonding, documentary or demand letter of credit
facilities.
The Agent hereby confirms by its signature to this Agreement that the
following are Bilateral Facilities at the date of this Agreement:
(i) a $25,000,000 bonding facility made between Barclays Bank PLC
and AOC dated the date of this Agreement; and
-3-
{PAGE}
(ii) a (pound)5,000,000 overdraft facility made between Barclays
Bank PLC and AOC and Octel Petroleum Specialities Limited
dated the date of this Agreement.
The Agent will confirm that any facility is a Bilateral Facility if it
is satisfied that such facility falls within (a) or (b) above and that
the provisions of paragraph (e) of Clause 22.12 (Indebtedness) are not
breached as a result of such facility being confirmed as a Bilateral
Facility.
"Bilateral Outstandings" means, at any time, the dollar equivalent of
the aggregate of the following amounts outstanding at such time under
any Bilateral Facility:
(a) all amounts of principal then outstanding under any overdraft
facilities determined on the same basis as that for
determination of any limit on such facilities imposed by the
terms thereof; and
(b) the maximum potential liability (excluding any cash cover)
under all guarantees, bonds and letters of credit issued by
the relevant Bilateral Bank which are then outstanding under
the relevant Bilateral Facility.
"Bilateral Utilisation" means an advance made or guarantee, bond or
letter of credit issued under a Bilateral Facility.
"Borrower" means an Original Borrower or an Additional Borrower unless
it has ceased to be a Borrower in accordance with Clause 25 (Changes to
the Obligors).
"Break Costs" means the amount (if any) by which:
(a) the interest (excluding the Margin and the Mandatory Cost)
which a Lender should have received for the period from the
date of receipt of all or any part of its participation in a
Loan or Unpaid Sum to the last day of the current Interest
Period in respect of that Loan or Unpaid Sum, had the
principal amount or Unpaid Sum received been paid on the last
day of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by
placing an amount equal to the principal amount or Unpaid Sum
received by it on deposit with a leading bank in the London
interbank market for a period starting on the Business Day
following receipt or recovery and ending on the last day of
the current Interest Period.
"Business" means the petroleum additives, petroleum specialties,
performance chemicals and related businesses carried on by AOC and
other members of the Group.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London , New York and:
(a) (in relation to any date for payment or purchase of a currency
other than euro) the principal financial centre of the country
of that currency; or
(b) (in relation to any date for payment or purchase of euro) any
TARGET Day.
-4-
{PAGE}
"Calculation Period" means, in relation to an Accounting Quarter, the
12 month period ending immediately prior to the first day of that
Accounting Quarter.
"Capital Expenditure" means expenditure which should be treated as
capital expenditure in the audited consolidated accounts of the Group
in accordance with the Approved Accounting Principles.
"Capital Stock" of any person means any and all shares, interests,
rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such
person, including any Preferred Stock, but excluding any debt
securities convertible into such equity.
"Cash Collateral Account" means any account with the Security Agent (or
such other bank which is a Lender as the Obligors' Agent may designate
for the purposes of Clause 8.9 (Prepayments during Interest Periods))
opened or to be opened in the name of a Borrower into which sums are to
be paid in accordance with Clause 8.9 (Prepayments during Interest
Periods) (or in the provision of cash cover for relevant Bilateral
Utilisations) and held as security by the Security Agent for the
obligations of such Borrower under the Finance Documents and in
relation to which (if not already expressed to be subject to a fixed
charge or equivalent security under a Security Document) such Borrower
has executed and delivered to the Security Agent a Cash Collateral
Charge, together with such evidence of the execution of such Cash
Collateral Charge as the Security Agent shall reasonably require and in
relation to which the Security Agent has received a legal opinion
satisfactory to it (acting reasonably).
"Cash Collateral Charge" means a charge in such form as the Security
Agent shall reasonably require granted or to be granted to the Security
Agent in relation to a Cash Collateral Account.
"Cash Equivalents" means:
(a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United Kingdom Government or Swiss
Government or issued by any agency of either such government
and backed by the full faith and credit of the United Kingdom
or Switzerland (as applicable), in each case maturing within
one year from the date of acquisition thereof by a member of
the Group;
(b) commercial paper maturing no more than one year from the date
of creation thereof and, at the time of acquisition, having a
rating of at least A-1 from Standard & Poors' Corporation or
at least P-1 from Moody's Investors Service Inc.;
(c) certificates of deposit or bankers' acceptances maturing
within one year from the date of acquisition thereof issued by
any bank having a rating of at least A-1 from Standard &
Poors' Corporation or at least P-1 from Moody's Investors
Service Inc.;
(d) any investments in marketable direct obligations of the United
States government (or any agency thereof) or in obligations
fully and unconditionally guaranteed by the United States
government (or any agency thereof), in each case maturing
within one year from the date of acquisition thereof by a
member of the Group; and
-5-
{PAGE}
(e) investments in money market funds which invest substantially
all their assets in securities of the types described in
paragraphs (a) to (d) above.
"Cashflow" has the meaning given to it in Clause 21.1 (Financial
definitions).
"Charged Property" means all of the assets of the Obligors which from
time to time are, or are expressed to be, the subject of the
Transaction Security.
"Closing Date" means the date of the first Utilisation under this
Agreement.
"Commitment" means a Facility A Commitment or Facility B Commitment.
"Compliance Certificate" means a certificate substantially in the form
set out in Schedule 8 (Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule 9
(LMA Form of Confidentiality Undertaking) or in any other form agreed
between the Parent and the Agent.
"Credit Participation" means, in relation to a Lender, the aggregate
of:
(a) its aggregate Commitments; and
(b) its aggregate Bilateral Commitments (if any); and
(c) the amount, if any, which would be payable to it under any
Hedging Agreement calculated in accordance with Section
6(e)(i)(3) of the relevant ISDA 1992 Master Agreement if the
date on which the calculation is made was deemed to be an
Early Termination Date for which the relevant Borrower party
to such Hedging Agreement is the Defaulting Party (and for
this purpose "Early Termination Date"and "Defaulting Party"
shall have the meanings given to them in the ISDA 1992 Master
Agreement) such amount to be certified by the relevant Lender
in accordance with the ISDA 1992 Master Agreement.
"Debentures" means each debenture entered into by each of the Original
Obligors which is incorporated in England in favour of the Security
Agent and dated after the date of this Agreement and on or before the
Closing Date.
"Default" means an Event of Default or any event or circumstance
specified in Clause 22.32 (Events of Default) which would (with the
expiry of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of any of
the foregoing) be an Event of Default.
"Default Rate" means the same rate at which default interest is payable
under Clause 9.3 (Default interest)
"Delegate" means any delegate, agent, attorney or co-trustee appointed
by the Security Agent.
-6-
{PAGE}
"Dormant Company" means a member of the Group (other than AOC (Plant))
which:
(a) during the most recently ended financial year of the Group was
dormant within the meaning of section 250(3) of the Companies
Act 1985 (which, for the purposes of this definition, shall be
deemed to apply to any body corporate, wherever incorporated);
(b) has not entered into any significant accounting transaction
(for the purposes of that section) since the end of that
financial year; and
(c) does not own assets with an aggregate realisable value greater
than $50,000 (or its equivalent in other currencies) and has
no material liabilities.
"EBITDA" has the meaning ascribed to it in Clause 21 (Financial
Covenants).
"Employee Share Scheme" means any arrangement or scheme for the
remuneration or incentivisation of employees and/or officers of any
member of the Group by way of issue of stock of the Parent or the grant
of any rights to receive, acquire or sell stock of the Parent in the
future.
"English Share Pledge" means, the charge over shares in Octel
International Limited made by Octel Corp. in favour of the Security
Agent dated after the date of this Agreement and on or before the
Closing Date.
"Environment" means all gases, air, vapours, liquids, water, land,
surface and sub-surface soils, rock, flora, fauna, wetlands and all
other natural resources or part thereof including artificial or
man-made buildings, structures or enclosures.
"Environmental Approval" means any permit, licence, authorisation,
consent or other approval required under or in relation to
Environmental Laws.
"Environmental Laws" means all European Union, foreign, national,
federal, state or local statutes, orders, regulations or other law or
subordinate legislation or common law or regulatory codes of practice
concerning the Environment or health and safety which are in existence
now or in the future and are binding upon any member of the Group in
the relevant jurisdiction in which the relevant member of the Group has
been or is operating (including by the export of its products or its
waste thereto).
"Environmental Report" means the report referred to in paragraph (a) of
the definition of Report in this Clause 1.1.
"ERISA" means, at any date, the Employee Retirement Income Security Act
of 1974 of the United States of America as amended from time to time,
or any successor legislation thereto and the regulations promulgated
and rulings issued thereunder, all as the same may be in effect at such
date.
"ERISA Affiliate" means any person that for purposes of Title I and
Title IV of ERISA and Section 412 of the Internal Revenue Code would be
deemed at any relevant time to be a single employer with a U.S. Group
Member, pursuant to Section 414(b), (c), (m) or (o) of the Internal
Revenue Code or Section 4001 of ERISA.
-7-
{PAGE}
"ERISA Event" means (a) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with
respect to any Pension Plan (excluding those for which the provision
for 30-day notice to the U.S. Pension Benefit Guaranty Corporation has
been waived by regulation); (b) the existence with respect to any
Pension Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Internal Revenue Code or Section 302 or ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the
Internal Revenue Code or Section 303(d) of ERISA of an application for
a waiver of the minimum funding standard with respect to any Pension
Plan; (d) the incurrence by any Obligor or any of its ERISA Affiliates
of any liability under Title IV of ERISA with respect to the
termination of any Pension Plan; (e) the receipt by any Obligor or any
of its ERISA Affiliates from the U.S. Pension Benefit Guaranty
Corporation (or any successor entity under ERISA) or a plan
administrator of any notice relating to an intention to terminate any
Pension Plan or Pension Plans or to appoint a trustee to administer any
Pension Plan; (f) the incurrence by any Obligor or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Pension Plan or Multiemployer Plan; (g) the receipt
by any Obligor or any of its ERISA Affiliates of any notice, or the
receipt by any Multiemployer Plan from such Obligor or any of its ERISA
Affiliates of any notice concerning the imposition of "Withdrawal
Liability" or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganisation, in each case within the
meaning of Title IV of ERISA; (h) the failure to make a required
contribution to any Pension Plan that would result in the imposition of
an encumbrance under Section 412 of the Internal Revenue Code or
Section 302 of ERISA; or (i) an engagement in a non-exempt prohibited
transaction within the meaning of Section 4975 of the Internal Revenue
Code or Section 406 of ERISA.
"Existing Bank Facilities" means:
(a) the $100,000,000 term loan agreement dated 3 June 1999 and
made between, among others, Octel Corp. as parent, The
Associated Octel Company Limited as a borrower and Barclays
Bank PLC as facility agent and security agent as amended and
restated by an amendment and consent agreement dated 22
December 2000;
(b) the $280,000,000 term loan and $20,000,000 revolving credit
facilities agreement dated 27 April 1998 and made between,
among others, Octel Corp. as parent and Barclays Bank PLC as
facility agent and security agent as amended pursuant to
amendment agreements dated 24 June 1998, 3 June 1999, 22
December 2000 and 13 August 2001;
(c) the US$20,000,000 bond, guarantee, indemnity and letter of
credit facility provided by Barclays Bank PLC to AOC pursuant
to a facility letter dated 27 April 1998.
"Event of Default" means any event or circumstance specified as such in
Clause 22.32 (Events of Default).
"Facility" means Facility A or Facility B.
"Facility A" means the term loan facility made available under this
Agreement as described in paragraph (a) of Clause 2 (The Facilities).
-8-
{PAGE}
"Facility A Commitment" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility A
Commitment" in Part II of Schedule 1 (The Original Parties)
and the amount of any other Facility A Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility A Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility A Loan" means a loan made or to be made under Facility A or
the principal amount outstanding for the time being of that loan.
"Facility A Repayment Date" means each of the dates specified in Clause
7.1 (Repayment of Facility A Loans) under the column headed Facility A
Repayment Dates provided that if any such date is not a Business Day
then the relevant Facility A Repayment Date shall be the Business Day
immediately preceding such date.
"Facility B" means the revolving loan facility made available under
this Agreement as described in paragraph (b) of Clause 2 (The
Facilities).
"Facility B Commitment" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility B
Commitment" in Part II of Schedule 1 (The Original Parties)
and the amount of any other Facility B Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility B Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility B Loan" means a loan made or to be made under Facility B or
the principal amount outstanding for the time being of that loan.
"Facility Office" means the office or offices notified by a Lender to
the Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
"Fee Letter" means any letter or letters dated on or about the date of
this Agreement between the Mandated Lead Arranger and AOC (or the Agent
or Security Agent and AOC) setting out any of the fees referred to in
Clause 12 (Fees).
"Finance Document" means this Agreement, any Fee Letter, the
Syndication Letter, any Accession Letter, any Security Document, any
Hedging Agreement, any Bilateral Facility Document, the Hedging
Strategy Letter and any other document designated as such by the Agent
and the Parent or the Agent and the Obligors' Agent.
-9-
{PAGE}
"Finance Parties" means the Agent, the Security Agent, the Arranger,
each Lender, each Hedging Bank and the Bilateral Bank and "Finance
Party" means any of them.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(d) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with US GAAP, be
treated as a finance or capital lease;
(e) receivables sold or discounted (other than any receivables to
the extent they are sold or discounted on a non-recourse
basis);
(f) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial
effect of a borrowing;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken
into account);
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or
any other instrument issued by a bank or financial
institution;
(i) any amount raised by the issue of redeemable shares if the
shares are redeemable at the option of their holder or if the
relevant member of the Group is otherwise obliged, or may on
the occurrence of any event or circumstance become otherwise
obliged, to redeem such shares on or before the date falling
60 Months after the date of this Agreement;
(j) any amount of any liability under an advance or deferred
purchase agreement if one of the primary reasons behind the
entry into this agreement is to raise finance or if the
deferred payment is to be paid more than 180 days after the
date of the acquisition or supply (as appropriate) of the
relevant asset or service provided under such agreement;
(k) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a)
to (j) above;
and so that, where the amount of Financial Indebtedness falls to be
calculated, no amount shall be taken into account more than once in the
same calculation.
"Group" means the Parent and its Subsidiaries for the time being.
"Group Company" means a member of the Group.
-10-
{PAGE}
"Group Structure Chart" means a group structure chart, in the agreed
form, showing as at the date of this Agreement:
(a) all members of the Group;
(b) any person in which any Group member has (or members of the
Group together have) an interest of more than 25% in the
issued share capital or equivalent ownership interest of such
person;
(c) the jurisdiction of incorporation of each person within (a)
and (b) above; and
(d) that all members of the Group are wholly-owned Subsidiaries of
the Parent or, if any members of the Group are not
wholly-owned Subsidiaries of the Parent, specifying the
percentage shareholding or other economic interest which the
Parent (directly or indirectly) holds in such members of the
Group.
"Guarantor" means an Original Guarantor or an Additional Guarantor,
unless it has ceased to be a Guarantor in accordance with Clause 25
(Changes to the Obligors).
"Hedging Agreements" means any hedging agreement entered by a Borrower
with a Lender pursuant to paragraph (a) of Clause 22.9 (Hedging
Arrangements) and which complies with the provisions of paragraph
(b)(i) of such Clause 22.9.
"Hedging Bank" means any Lender in its capacity as provider of hedging
under a Hedging Agreement.
"Hedging Strategy Letter" means the letter in the agreed form from the
Obligors' Agent to the Agent setting out the hedging strategy.
"Holding Company" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"Identified Target" means all (or substantially all) of the shares in,
or all (or substantially all) of the assets of, Leuna Polymer GmbH.
"Indebtedness" means all money and liabilities now or hereafter due,
owing or incurred to the Finance Parties (or any of them) by the
Obligors under the Finance Documents (or any of them) (including, for
the avoidance of doubt, any increase in the amount of the facilities
provided under any of them) in any currency or currencies, whether
present or future, actual or contingent, whether incurred solely or
jointly with any other person and whether as principal, guarantor or
surety, together with all interest accruing thereon and all costs,
charges and expenses incurred in connection therewith.
"Indebtedness for Borrowed Money" means Financial Indebtedness save for
any indebtedness for or in respect of paragraphs (g) or (h) of the
definition of "Financial Indebtedness" in this Clause 1.1.
"Information Memorandum" means the document in the form approved by the
Parent concerning the Group which, at the Parent's request and on its
behalf, is to be prepared in relation to this transaction and
distributed by the Mandated Lead Arranger to selected financial
institutions prior to the Syndication Date in connection with
syndication.
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{PAGE}
"Intellectual Property" means the Intellectual Property Rights owned by
members of the Group throughout the world or the interests of any
member of the Group in any of the foregoing, together with the benefit
of all agreements entered into or the benefit of which is enjoyed by
any member of the Group relating to the use or exploitation of any of
the aforementioned rights.
"Intellectual Property Rights" means all patents and patent
applications, trade and service marks and trade and/or service mark
applications (and all goodwill associated with such applications), all
brand and trade names, all copyrights and rights in the nature of
copyright, all design rights, all registered designs and applications
for registered designs, all trade secrets, know-how and all other
intellectual property rights.
"Interest Period" means, in relation to a Loan, each period determined
in accordance with Clause 10 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 9.3
(Default interest).
"Internal Revenue Code" means, at any date, the Internal Revenue Code
of 1986 of the United States of America or any successor legislation
thereto as amended from time to time, and the regulations promulgated
and rules issued thereunder, all as the same may be in effect at such
date.
"Key Properties" means:
(a) The land and buildings at Oil Sites Road, Ellesmere Port,
Cheshire comprising:-
(i) the freehold land abutting The Manchester Ship Canal
registered at H M Land Registry with freehold title
absolute under title number CH420032; and
(ii) the freehold land to the north of Oil Sites Road
registered at H M Land Registry with freehold title
absolute under title number CH363860; and
(iii) the freehold land on the North side of Oil Sites
Road, Ellesmere Port, Cheshire registered at H M Land
Registry with title absolute under title number
CH425646; and
(iv) the leasehold property being the Armco Barriers, Oil
Sites Road, Ellesmere Port registered at H M Land
Registry with good leasehold title under title number
CH403291; and
(v) land abutting the Manchester Ship Canal demised by a
lease dated 14 October 1998 and made between The
Manchester Ship Canal Company (1) and Associated
Octel Company (Plant) Limited (2) and registered at
HM Land Registry under Title Number CH431481; and
(b) The land and buildings at Watling Street, Bletchley,
Buckinghamshire being the remaining land registered at H M
Land Registry with freehold title absolute under title number
BM233973.
"Key Property Debenture" means the Debenture entered into by AOC
(Plant) creating Security over, inter alia, the Key Properties.
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{PAGE}
"Legal Reservations" means (a) the principle that equitable remedies
are remedies which may be granted or refused at the discretion of the
court, (b) the limitation on enforcement as a result of laws relating
to bankruptcy, insolvency, liquidation, reorganisation, court schemes,
moratoria, administration and other laws generally affecting the rights
of creditors generally, (c) the principle that certain types of
security expressed to take effect as fixed security may, as a result of
the ability of an Obligor to deal with the assets subject to that
security on terms permitted under the Finance Documents, take effect as
floating security, (d) the time-barring of claims under the Limitation
Acts, (e) rules against penalties and similar principles and (f) any
other qualifications or reservations as to matters of law only
contained in the legal opinions referred to in paragraph 2 of Part I of
Schedule 2 (Conditions Precedent) or any other written legal opinion
obtained by the Agent or Security Agent from its legal advisers under
the terms of the Finance Documents.
"Lender" means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Party in
accordance with Clause 24 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"Leverage Ratio" means, in relation to any period, the ratio of Total
Net Debt as at the last day of that period to EBITDA for that period,
each as determined in accordance with Clause 21 (Financial Covenants).
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at
its request quoted by the Reference Banks to leading banks in
the London interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable to
the Interest Period for that Loan.
"Loan" means a Facility A Loan or a Facility B Loan.
"LMA" means the Loan Market Association.
"Majority Creditors" means, at any time, a Lender or Lenders whose
Credit Participations at that time aggregate more than 662/3% of the
total Credit Participations at that time.
"Majority Lenders" means, at any time:
(a) a Lender or Lenders whose Commitments aggregate more than
662/3% of the Total Commitments at that time;
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{PAGE}
(b) or, if the Total Commitments have been reduced to zero, a
Lender or Lenders whose Commitments aggregated more than
662/3% of the Total Commitments immediately prior to the
reduction).
"Management" means, at any time, the chief executive officer and the
chief financial officer of the Parent at that time.
"Mandatory Cost" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost Formulae).
"Margin" means 2.625 per cent. per annum, but if:
(a) no Event of Default has occurred and is continuing; and
(b) the Leverage Ratio in respect of the most recently completed
Relevant Period falls in one of the ranges set out in the
table below,
then, for so long as the Leverage Ratio continues to fall in such range
and no Event of Default is continuing, the Margin shall be the
percentage rate per annum set out below opposite such range:
Leverage Ratio Margin
(% per annum)
equal to or less than 2.25:1 and greater than 2:1 2.375
equal to or less than 2:1 and greater than 1.50:1 2
equal to or less than 1.50:1 and greater than 1:1 1.625
equal to or less than 1:1 1.25
(and any reduction or increase in the Margin shall take effect 5
Business Days after receipt by the Agent of the Compliance Certificate
for that Relevant Period pursuant to Clause 20.2 (Compliance
Certificate)) provided that notwithstanding the above the Margin shall
be 2.625 per cent. per annum in any event from the date hereof until 5
Business Days after receipt by the Agent of the Compliance Certificate
for the Relevant Period ending 31 March 2002 pursuant to Clause 20.2
(Compliance Certificate).
"Margin Stock" means margin stock or "margin security" within the
meaning of Regulations T, U and X.
"Material Adverse Effect" means any effect, event or matter:
(a) which is, or is reasonably likely to be, materially adverse
to:
(i) the business, assets, operations or financial
condition of the Group (taken as a whole) (after
taking account of any anticipated decline in the
Business contemplated in the Information Memorandum
and/or the Agreed Financial Projections); or
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{PAGE}
(ii) the ability of any Obligor to perform in a timely
manner any of its material obligations (including
without limitation its payment obligations and its
obligations under Clause 21 (Financial Covenants))
under any of the Finance Documents; or
(b) which results in any of the rights or obligations arising
under the Finance Documents not being legal, valid and binding
on and (subject to the Legal Reservations) enforceable against
any party thereto (other than a Finance Party) and/or, in the
case of any Security Documents, not providing to the Security
Agent (on behalf of itself and the other Finance Parties)
perfected enforceable Security (subject to the Legal
Reservations) over the assets expressed to be secured under
the Security Documents, in each case to an extent or in a
manner reasonably considered by the Majority Lenders to be
materially adverse to their interests under the Finance
Documents.
"Material Group Company" means:
(a) each Obligor;
(b) any other Subsidiary of the Parent:
(i) whose gross assets account for more than five per
cent of the consolidated gross assets of the Group;
and/or
(ii) whose EBITDA ("Subsidiary EBITDA") accounts for more
than five per cent of the EBITDA of the Group,
and for this purpose the calculation of Subsidiary EBITDA and
gross assets shall:
(i) be made in accordance with US GAAP;
(ii) in the case of a company which itself has
Subsidiaries, be made by using the consolidated
Subsidiary EBITDA or consolidated gross assets, as
the case may be, of it and its Subsidiaries; and
(iii) be determined by reference to:
(1) the latest accounts of the relevant company
used for the purposes of the then latest
audited annual financial statements of the
Group delivered by the Parent under Clause
20.1 (Financial Statements); or
(2) if the relevant company becomes a Subsidiary
of the Parent after the end of the financial
year to which those latest audited annual
financial statements of the Group relate,
the latest accounts of that Subsidiary; and
(iv) Subsidiary EBITDA shall be calculated on the same
basis as EBITDA in Clause 21.1 (Financial
definitions) but adjusted so that references to the
Group are references to the relevant Subsidiary and
its Subsidiaries; or
(c) any Subsidiary of the Parent to which has been transferred
(whether by one transaction or a series of transactions,
related or not) the whole or substantially the
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{PAGE}
whole of the assets of a Subsidiary of the Parent which
immediately prior to those transactions was a Material Group
Company; or
(d) any Subsidiary of Parent which is a Holding Company of a
Relevant Holding Company.
A report by the auditors of the Parent that a Subsidiary is or is not a
Material Group Company shall, in the absence of manifest error, be
conclusive and binding on all Parties.
"Material Insurances" means all insurance policies of the Group
relating to property damage and business interruption.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
3(37) of ERISA contributed to for any employees of a U.S. Group Company
or any ERISA Affiliate.
"Month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month,
except that:
(a) (subject to paragraph (c) below) if the numerically
corresponding day is not a Business Day, that period shall end
on the next Business Day in that calendar month in which that
period is to end if there is one, or if there is not, on the
immediately preceding Business Day;
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest
Period is to end.
The above rules will only apply to the last Month of any period.
"Obligors" means each Borrower, each Guarantor, the Obligors' Agent and
each other member of the Group which has undertaken (or in the future
undertakes) obligations to any Finance Party pursuant to any Finance
Document and "Obligor" means any of them.
"Obligors' Agent" means AOC appointed to act on behalf of each Obligor
in relation to the Finance Documents pursuant to Clause 36 (Obligors'
Agent).
"Octel America" means Octel America Inc., a corporation organised under
the laws of the State of Delaware, U.S.A.
"Octel Developments" means Octel Developments PLC (a company
incorporated in England with registered number 3516662).
"Octel Petroleum" means Octel Petroleum Specialities Limited (formerly
known as Octel Resources Limited) (a company incorporated in England
with registered number 3316334).
"Octel Trading" means Octel Trading Limited (a company incorporated in
England with registered number 3516648).
-16-
{PAGE}
"Octel Trading Group" means Octel Trading and its Subsidiaries.
"Operating Budget" means, in relation to each financial year of the
Parent, a budget comprising projected balance sheet, projected profit
and loss account and projected cashflow statement (including details of
projected Capital Expenditure) for the Group for that financial year
delivered to the Agent pursuant to Clause 20.4 (Operating Budget).
"Operating Properties" means all real property (including, without
limitation, all buildings, fixtures or other improvements located
thereon) now, hereafter or heretofore owned, leased, operated or used
by any member of the Group.
"Optional Currency" means a currency (other than the Base Currency)
which complies with the conditions set out in Clause 4.3 (Conditions
relating to Optional Currencies).
"Original Financial Statements" means:
(a) in relation to the Parent, the audited consolidated financial
statements of the Group for the financial year ended 31
December 2000; and
(b) in relation to each Original Obligor other than the Parent,
its audited financial statements for its financial year ended
31 December 2000.
"Original Obligor" means an Original Borrower or an Original Guarantor.
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Union relating to
European Monetary Union.
"Part Owned Entity" means any limited liability company which is not a
wholly-owned Subsidiary of any Relevant Holding Company and in relation
to which a Relevant Holding Company directly or indirectly owns in
excess of 25 per cent. of the ordinary share capital.
"Party" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees.
"Pension Plan" means any employee benefit plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of
ERISA or Section 412 of the Internal Revenue Code or Section 302 or
ERISA, and in respect of which any U.S. Obligor or any ERISA Affiliate
is (or, if such plan were terminated, would under Section 4069 of ERISA
be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Permitted Guarantee" has the meaning ascribed to it in Clause 22.13
(Guarantees).
"Permitted Indebtedness" has the meaning ascribed to it in Clause 22.12
(Indebtedness).
"Permitted Investment" means any investment (whether by way of loan,
subscription of share capital, incurrence of any liability or
otherwise) by any member of the Group in a Part Owned Entity, provided
that:
(a) such investment is in a business similar to, connected with,
or related to the development of the Business and if made by a
member of the Relevant Group is made in a Part Owned Entity of
that Relevant Group; and
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{PAGE}
(b) after the date of this Agreement, the aggregate (without
double-counting) of:
(i) any amount advanced, lent, contributed or subscribed
for, or otherwise invested in, such Part Owned Entity
by any member of the Group during an Accounting
Quarter; and
(ii) the market value of any asset transferred (other than
by way of a transfer permitted under this Agreement)
or contributed to such Part Owned Entity by any
member of the Group during an Accounting Quarter; and
(iii) the maximum liability under any guarantee given by
any member of the Group during an Accounting Quarter
in respect of any Financial Indebtedness incurred
(whether by way of guarantee or otherwise) by such
Part Owned Entity,
shall not exceed the Unutilised Available Amount in respect of
that Accounting Quarter at that time.
"Permitted Security " means any Security falling within the provisions
of paragraph (b) of Clause 22.3 (Negative Pledge).
"Preferred Stock", as applied to the Capital Stock of any person, means
Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such person, over shares of Capital Stock of any other
class of such person.
"Prochem Acquisition" means the acquisition of all of the shares in
Prochem Chemicals Inc. by H. Performance Products Inc. (a Subsidiary of
Octel America which it is anticipated will change its name to Octel
Performance Chemicals Inc.) which completed on 15 August 2001.
"Prochem Refinancing Facility B Utilisation" means a Utilisation of
Facility B the proceeds of which are to be applied for the purposes
specified in paragraph (b)(iv) of Clause 3.1 (Purpose).
"Qualifying Lender" has the meaning given to it in Clause 13 (Tax
gross-up and indemnities).
"Quarter Date" has the meaning given to it in Clause 21.1 (Financial
definitions).
"Quotation Day" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is domestic sterling) the first day of that
period;
(b) (if the currency is euro) two TARGET Days before the first day
of that period; or
(c) (for any other currency) two Business Days before the first
day of that period,
unless market practice differs in the London Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the
London Interbank Market (and if quotations would normally be given by
leading banks in the London Interbank Market on more than one day, the
Quotation Day will be the last of those days).
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{PAGE}
"Receiver" means a receiver or receiver and manager or administrative
receiver of the whole or any part of the Charged Property.
"Reference Banks" means the principal London offices of Barclays Bank
PLC, Bayerische Landesbank Girozentrale, London Branch and Lloyds TSB
Bank plc.
"Regulations T, U and X" means, respectively, Regulations T, U and X of
the Board of Governors of the Federal Reserve System of the United
States (or any successor) as now and from time to time in effect.
"Relevant Acquisition" means an acquisition by a member of the Group of
the Identified Target in respect of which the Agent has received in
form and substance satisfactory to it the documents and evidence
referred to in Part III of Schedule 2 (Conditions Precedent) relating
to such acquisition.
"Relevant Acquisition Utilisation" means, a Utilisation of Facility B
the proceeds of which are to be applied for the purposes specified in
paragraph (b)(iii) of Clause 3.1 (Purpose).
"Relevant Groups" means each of the following:
(a) Octel Trading and its Subsidiaries;
(b) Octel Petroleum and its Subsidiaries;
(c) Octel America and its Subsidiaries,
(each of (a), (b) and (c) being individually a "Relevant
Group").
"Relevant Holding Companies" means each of the following:
(a) Octel Trading;
(b) Octel Petroleum;
(c) Octel America,
(each being a "Relevant Holding Company")
"Relevant GAAP " means, in relation to a company, accounting principles
and practices generally accepted from time to time in such company's
jurisdiction of incorporation.
"Relevant Period" has the meaning ascribed it in Clause 21 (Financial
Covenants).
"Reliance Letter" means any letter in the agreed form from a provider
of a Report or an Additional Report and which is addressed to the
Security Agent (on behalf of the Finance Parties) and pursuant to which
the provider of the Report agrees that the Finance Parties are entitled
to rely on such Report subject to and on the terms set out therein.
"Repayment Instalment" means each instalment for repayment of the
Facility A Loans referred to in Clause 7.1 (Repayment of Facility A
Loans).
"Repeating Representations" means each of the representations set out
in Clause 19 (Representations) (other than Clause 19.21 (Information
Memorandum)) except that the
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{PAGE}
representations set out in Clause 19.6 (Governing law and enforcement),
Clause 19.7 (No filing or stamp taxes), Clause 19.8 (No Default),
paragraph (a) of Clause 19.9 (Security interests), Clause 19.10
(Reports), Clause 19.12 (Financial statements), paragraph (a) of Clause
19.13 (Material Adverse Changes), Clause 19.15 (No proceedings pending
or threatened), Clause 19.20 (Agreed Financial Projections) are only
Repeating Representations for the purposes of the first Utilisation
Request and the first day of the first Interest Period.
"Reports" means each of the following:
(a) the environmental report, in the agreed form, prepared by
Dames & Moore in relation to the Business; and
(b) the market report, in the agreed form, prepared by Chem
Systems in relation to the Business.
"Resignation Letter" means a letter substantially in the form set out
in Schedule 7 (Form of Resignation Letter).
"Rollover Loan" means one or more Facility B Loans:
(a) made or to be made on the same day that a maturing Facility B
Loan is due to be repaid;
(b) the aggregate amount of which is equal to or less than the
maturing Facility B Loan;
(c) in the same currency as the maturing Facility B Loan (unless
it arose as a result of the operation of Clause 6.2
(Unavailability of a currency)); and
(d) made or to be made to the same Borrower for the purpose of
refinancing a maturing Facility B Loan.
"Screen Rate" means in relation to LIBOR, the British Bankers'
Association Interest Settlement Rate for the relevant currency and
period displayed on the appropriate page of the Telerate screen. If the
agreed page is replaced or service ceases to be available, the Agent
may specify another page or service displaying the appropriate rate
after consultation with the Obligors' Agent and the Lenders.
"Security" means a mortgage, charge, pledge, lien, hypothecation, right
of set-off, security trust, assignment by way of security, reservation
of title or other security interest securing any obligation of any
person or any other agreement or arrangement (including, without
limitation, a sale and repurchase agreement) having the commercial
effect of conferring security.
"Secured Obligations" means all obligations at any time due, owing or
incurred by any Obligor to any Finance Party under the Finance
Documents, whether present or future, actual or contingent (and whether
incurred solely or jointly and whether as principal or surety or in
some other capacity).
"Security Documents" means:
(a) the Debentures;
(b) the US Security Documents;
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{PAGE}
(c) the Swiss Assignment Agreement;
(d) the Swiss Share Pledge; and
(e) the English Share Pledge,
together with any other document entered into by any member of the
Group creating or expressed to create Security over all or any part of
its assets in respect of the obligations of any of the Obligors under
any of the Finance Documents.
"Selection Notice" means a notice substantially in the form set out in
Part II of Schedule 3 (Requests) given in accordance with Clause 10
(Interest Periods) in relation to Facility A.
"Senior Notes" means the 10% senior notes due 2006 issued by Octel
Developments plc (and guaranteed by the Parent) pursuant to an
indenture dated as of 1 May 1998.
"Specified Time" means a time determined in accordance with Schedule 10
(Timetables).
"Subsidiary" means:
(a) a subsidiary within the meaning of section 736 of the
Companies Act 1985; or
(b) a subsidiary undertaking within the meaning of Section 258 of
the Companies Act 1985; or
(c) whether or not falling within paragraphs (a) or (b) above, in
relation to any company or corporation, a company or
corporation:
(i) which is controlled, directly or indirectly, by the
first mentioned company or corporation;
(ii) more than half the issued share capital of which is
beneficially owned, directly or indirectly by the
first mentioned company or corporation; or
(iii) which is a Subsidiary of another Subsidiary of the
first mentioned company or corporation,
and for this purpose, a company or corporation shall be treated as
being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its
board of directors or equivalent body.
"Surplus Cash Flow" means, in respect of any Accounting Quarter of the
Parent, Cashflow less Consolidated Net Finance Charges of the Group for
that Accounting Quarter (and, for the purpose of this definition, the
relevant testing period for calculating Cashflow and Consolidated Net
Finance Charges shall be that Accounting Quarter).
"Swiss Assignment Agreement" means the assignment agreement entered
into by Alcor Chemie Vertriebs GmbH in favour of the Security Agent
dated after the date of this Agreement and on or before the Closing
Date.
"Swiss Share Pledge" means the share pledge agreement dated after the
date of this Agreement and on or before the Closing Date between
OBOAdler Company Limited as
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{PAGE}
pledgor and the Security Agent pursuant to which the shares in Alcor
Chemie Vertriebs GmbH are pledged by way of security to the Security
Agent.
"Syndication Date" means the earlier of:
(a) the day which is 6 Months after the date of this Agreement;
and
(b) the day specified by the Mandated Lead Arranger to the
Obligors' Agent as the day on which primary syndication of the
Facilities is completed.
"Syndication Letter" means the letter headed "Syndication Letter" dated
on or about the date of this Agreement and made between the Mandated
Lead Arranger, the Original Lenders and Octel Corp and the Obligors'
Agent.
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET Day" means any day on which TARGET is open for the settlement
of payments in euro.
"Tax" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
"Taxes Act" means the Income and Corporation Taxes Act 1988.
"Termination Date" means the day falling 36 Months after the date of
this Agreement.
"Total Commitments" means the aggregate of the Total Facility A
Commitments and the Total Facility B Commitments, being $250,000,000 at
the date of this Agreement.
"Total Facility A Commitments" means the aggregate of the Facility A
Commitments, being $210,000,000 at the date of this Agreement.
"Total Net Debt" has the meaning ascribed to it in Clause 21 (Financial
Covenants).
"Total Facility B Commitments" means the aggregate of the Facility B
Commitments, being $40,000,000 at the date of this Agreement.
"Transaction Security" means the Security created or expressed to be
created under the Security Documents.
"Transfer Certificate" means a certificate substantially in one of the
forms set out in Schedule 5 (Form of Transfer Certificates) or any
other form agreed between the Agent and the Obligors' Agent.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer
Certificate; and
(b) the date on which the Agent executes the Transfer Certificate.
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{PAGE}
"Trigger Date" means the date on which the Agent has confirmed to the
Lenders and the Obligors' Agent that the following conditions have been
satisfied:
(a) the Total Commitments have been permanently reduced by at
least 50% of the Total Commitments as at the date of this
Agreement; and
(b) the Leverage Ratio for the most recently ended Relevant Period
is no greater than 1.75:1 (tested in accordance with Clause 21
(Financial Covenants),
(and the Agent will as soon as reasonably practicable after being
requested to do so by the Obligors' Agent when the Obligors' Agent
believes that the above conditions have been satisfied notify it and
the Lenders when the above conditions have been satisfied for these
purposes).
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor
under the Finance Documents.
"UK GAAP " means accounting principles and practices generally accepted
from time to time in the United Kingdom.
"Unutilised Available Amount" means, in respect of any Accounting
Quarter, the Available Amount for that Accounting Quarter less the
total cost of all Permitted Investments made in that Accounting Quarter
(which for this purpose shall be the aggregate of the amounts specified
in paragraph (b) of the definition of "Permitted Investment" in this
Clause 1.1 in respect of the relevant Permitted Investments).
"US" or "USA" means the United States of America.
"US GAAP" means accounting principles and practices generally accepted
from time to time in the US.
"U.S. Group Member" means a member of the Group incorporated in the
U.S.
"U.S. Guarantor" means a Guarantor incorporated in the U.S.
"U.S. Obligor" means an Obligor incorporated in the U.S.
"US Security Documents" means each security agreement and pledge
agreement governed by the laws of a State of the USA entered into by
each of the Original Obligors which is incorporated in the US in favour
of the Security Agent and dated after the date of this Agreement and on
or before the Closing Date.
"Utilisation" means a utilisation of a Facility.
"Utilisation Date" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"Utilisation Request" means a notice substantially in the form set out
in Part I of Schedule 3 (Requests).
"VAT" means value added tax as provided for in the Value Added Tax Act
1994 and any other tax of a similar nature.
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"Voting Stock" of a person means all classes of Capital Stock issued by
a corporation or equivalent interests in any other person (including
partnership interests) of such person then outstanding, the holders of
which are normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, trustees
or persons performing similar functions thereof, even if the right to
vote has been suspended by the occurrence of such a contingency.
1.2 CONSTRUCTION
(a) Unless a contrary indication appears a reference in this
Agreement or the Key Property Debenture to:
(i) "assets" includes present and future properties,
revenues and rights of every description;
(ii) a document being in the "agreed form" means in a form
agreed between the Obligors' Agent and the Agent;
(iii) a "Finance Document" or any other agreement or
instrument is a reference to that Finance Document or
other agreement or instrument as amended, restated or
novated;
(iv) "indebtedness" includes any obligation (whether
incurred as principal or as surety) for the payment
or repayment of money, whether present or future,
actual or contingent;
(v) a "person" includes any person, firm, company,
corporation, government, state or agency of a state
or any association, trust or partnership (whether or
not having separate legal personality) of two or more
of the foregoing;
(vi) a "regulation" includes any regulation, rule,
official directive, request or guideline (whether or
not having the force of law) of any governmental,
intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other
authority or organisation;
(vii) a provision of law is a reference to that provision
as amended or re-enacted; and
(viii) a time of day is a reference to London time.
(b) Section, Clause and Schedule headings are for ease of
reference only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(d) A Default (other than an Event of Default) is "continuing" if
it has not been remedied or waived and an Event of Default is
"continuing" if it has not been remedied or waived.
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1.3 CURRENCY SYMBOLS AND DEFINITIONS
"$" and "dollars" denote lawful currency of the United States of
America, "(pound)" and "sterling" denotes lawful currency of the United
Kingdom and "EUR" and "euro" means the single currency unit of the
Participating Member States.
1.4 THIRD PARTY RIGHTS
(a) Except as provided in a Finance Document, the terms of a
Finance Document may be enforced only by a party to it and the
operation of the Contracts (Rights of Third Parties) Act 1999
is excluded.
(b) Notwithstanding any provision of any Finance Document, the
Parties to a Finance Document do not require the consent of
any third party to rescind or vary any Finance Document at any
time.
1.5 BARCLAYS CAPITAL
References in the Finance Documents to "Barclays Capital" are
references to Barclays Capital, the investment banking division of
Barclays Bank PLC.
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SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement, the Lenders make available:
(a) to Octel Developments a multicurrency term loan facility in an
aggregate amount equal to the Total Facility A Commitments;
and
(b) to the Borrowers a multicurrency revolving loan facility in an
aggregate amount equal to the Total Facility B Commitments.
2.2 BILATERAL FACILITIES
(a) Each Bilateral Bank makes available to the relevant Borrowers
the Bilateral Facilities applicable to that Bilateral Bank on
the terms set out in the relevant Bilateral Facility
Documents.
(b) Each Bilateral Bank and the relevant Borrower shall promptly
notify the Agent of:
(i) the establishment of any Bilateral Facility
applicable to it; and
(ii) such information relating to the operation of any
Bilateral Facility applicable to it (including,
without limitation, the Bilateral Outstandings and
Bilateral Commitments thereunder) as the Agent may
from time to time request and each Borrower hereby
consents to all such information being released to
the Agent and each Lender.
(c) In case of any inconsistency between any term of any Bilateral
Facility and this Agreement, the terms of this Agreement shall
prevail.
(d) Each Bilateral Bank and each relevant Borrower acknowledge the
terms of Clause 22.10 (Bilateral Facilities) and paragraph (e)
of Clause 22.12 (Indebtedness).
2.3 LENDERS' RIGHTS AND OBLIGATIONS
(a) The obligations of each Lender under the Finance Documents are
several. Failure by a Lender to perform its obligations under
the Finance Documents does not affect the obligations of any
other Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party
under the Finance Documents.
(b) The rights of each Lender under or in connection with the
Finance Documents are separate and independent rights and any
debt arising under the Finance Documents to a Lender from an
Obligor shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
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3. PURPOSE
3.1 PURPOSE
(a) Octel Developments shall apply all amounts borrowed by it
under Facility A towards refinancing the Existing Bank
Facilities and the Senior Notes and all broken funding,
make-whole amounts, accrued interest and other costs and
expenses relating to such refinancing.
(b) Each Borrower shall apply all amounts borrowed by it under
Facility B:
(i) towards general corporate purposes of the Group;
(ii) towards refinancing the revolving facility under the
Existing Bank Facilities and all broken funding,
accrued interest and other costs and expenses
relating to such refinancing;
(iii) towards the Relevant Acquisition (including
refinancing any indebtedness of the relevant acquired
company or business or any Subsidiary thereof) and
costs, expenses and fees related to such Relevant
Acquisition; or
(iv) to refinance indebtedness incurred by the Group in
connection with the Prochem Acquisition.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
(a) No Borrower may deliver a Utilisation Request unless the Agent
has received all of the documents and other evidence listed in
Part I of Schedule 2 (Conditions Precedent) in form and
substance satisfactory to the Agent. The Agent shall notify
the Obligors' Agent and the Lenders promptly upon being so
satisfied.
(b) In addition, no Borrower may deliver a Utilisation Request in
respect of any Utilisation of Facility B if that Utilisation
is to be a Relevant Acquisition Utilisation or a Prochem
Refinancing Facility B Utilisation unless:
(i) (if that Utilisation is to be a Relevant Acquisition
Utilisation) the Agent has received in respect of the
acquisition of the Identified Target to be financed
by that Utilisation all of the documents and other
evidence listed in Part III of Schedule 2 (Conditions
Precedent) relating to such acquisition in form and
substance satisfactory to the Agent (and the Agent
shall notify the Obligors' Agent and the Lenders
promptly upon being so satisfied); or
(ii) (if that Utilisation is to be a Prochem Refinancing
Facility B Utilisation) the Utilisation Request
relating to such Utilisation confirms that the
Utilisation is to be used to repay indebtedness
incurred by the Group in connection with the Prochem
Acquisition.
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4.2 FURTHER CONDITIONS PRECEDENT
(a) The Lenders will only be obliged to comply with Clause 5.4
(Lenders' participation) if on the date of the Utilisation
Request and on the proposed Utilisation Date:
(i) in the case of a Rollover Loan, no Event of Default
is continuing or would result from the proposed Loan
and, in the case of any other Loan, no Default is
continuing or would result from the proposed Loan;
and
(ii) the Repeating Representations to be made by each
Obligor are true in all material respects.
(b) The Lenders will only be obliged to comply with Clause 6.3
(Change of currency) if, on the first day of an Interest
Period, no Default is continuing or would result from the
change of currency and the Repeating Representations to be
made by each Obligor are true in all material respects.
4.3 CONDITIONS RELATING TO OPTIONAL CURRENCIES
(a) A currency will constitute an Optional Currency in relation to
a Loan if it is sterling or euro or (in the case of any other
currency) if:
(i) it is readily available in the amount required and
freely convertible into the Base Currency in the
London interbank market on the Quotation Day and the
Utilisation Date for that Loan; and
(ii) it has been approved by the Agent (acting on the
instructions of all the Lenders) on or prior to
receipt by the Agent of the relevant Utilisation
Request or Selection Notice for that Loan.
(b) If the Agent has received a written request from the Obligors'